« Evangelicals, Secularists, and Status-Wars: A Reply to Balkin | Main | The Final Installment of the Castle Rock Debate »
Friday, July 01, 2005
The Castle Rock Debate - Part 3
Castle Rock | Posted by Tom Goldstein at 07:40 AM
The comments following Richard’s posting have already provided much of the answer I intended. Let me elaborate, and clarify, a bit.
The district court ruled for Castle Rock on a motion to dismiss, not even a motion for summary judgment, so there was nothing outside the allegations in the initial complaint. The facts alleged in the complaint are principally as Richard states, but they are not supported by the actual documentary evidence. During the recorded 911 call at 8:45 p.m., for example, Mrs. Gonzales stated that she knew that Mr. Gonzales was not violating the restraining order and that, as a result, there was nothing the police could do. And in the first 911 call, Mrs. Gonzales admitted to police that she had authorized the dinner visit. Moreover, one important assertion by Richard of even the alleged facts is wrong; he says that the restraining order ordered Mr. Gonzales not to molest or disturb the peace of Mrs. Gonzales or her children “in part because [of his] history of suicidal threats and eratic behavior.” The restraining order contains no allegation of suicidal threats, eratic behavior, or violence of any kind, much less a finding of such behavior. The allegation of suicidal threats and eratic behavior exists only in paragraph 11 of the complaint, without any reference to the restraining order, or even any allegation that Mrs. Gonzales ever conveyed this concern to police. The simple fact is that the restraining order at issue here was a standard order issued incident to a divorce proceeding, not one based on any claim of actual or threatened domestic violence.
My point in raising the actual facts was not to “mischaracterize the operative facts” on which the legal issues were determined, but to demonstrate just how easy it would be, had this case come out differently, so force municipalities into Court every time there is a call on a restraining order that did not produce the result desired by one party or the other. Given what the police knew—that the restraining order authorized prearranged mid-week dinner visits (actually, whether or not Mrs. Gonzales even showed police the restraining order is also contested); that Mrs. Gonzales had, by her own admission, agreed to the Tuesday night dinner visit; and that Mr. Gonzales picked up the girls as agreed—it is very likely that they could have been sued by Mr. Gonzales for false arrest had they actually taken that step at any time that evening. Colorado law provides police immunity from suit when mistakenly making arrests for restraining order violations, but that state statute would not immunize them from a federal § 1983 action for deprivation of liberty without due process.
With respect to police discretion, I’ll concede, for argument’s sake, that the legislature may have intended to eliminate at some of the discretion traditionally afforded to police, but that still does not mean that Colorado also intended the additional step, required by Roth, of creating a protected property interest. As we noted in our briefs, the Supreme Court confirmed in Sandin v. Conner, 515 U.S. 472 (1995), that a State may establish mandatory procedures without creating a property right to those procedures. At most, that is all that Colorado did here.
One of the comments blasts Justice Scalia for trying to have it both ways in how he interprets “shall.” But even accepting that shall is mandatory does not mean that the Colorado legislature also intended to create a property interest in that mandate. I think the real inconsistency is with Justice Stevens’ reliance on the word “shall” as dispositive proof that Colorado created a property interest. In City of Chicago v. Morales, 527 U.S. 41, 47 n.2 (1999), he had just the opposite view. A Chicago ordinance specified that a police officer “shall order all [loitering gang members] to disperse and remove themselves from the area,” yet Justice Stevens, writing for the majority, held that police had an unconstitutional amount of discretion to decide whether to enforce the statute, and against whom. He elaborated on the point as follows: “It is possible to read the mandatory language of the ordinance to conclude that it affords the police no discretion, since it speaks with the mandatory ‘shall.’ However, not even the city makes this argument, which flies in the face of common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.” Id., at 62 n.32.
Finally, Richard wonders what more Colorado could do if it really wanted to create a property interest (contrary to Justice Souter’s view that there cannot be a property interest in procedure). For starters, it could make the crime of violating a restraining order more serious than a relatively minor class 2 misdemeanor. It could treat the restraining order’s injunction against disturbing the peace of an estranged spouse as more important than the injunction against transferring marital assets without prior permission. It could specifically promise “protection” from the State to named beneficiaries of restraining orders, and it could expressly state it is creating an entitlement to such protection in its beneficiaries and provide a remedy against the government or its officers for failures to protect. It could broaden its tort remedies to extend to negligence, or even impose strict liability, rather than limit its tort remedies to willful and wanton police action, as it has done. But if it did that, the state tort law would be more than adequate, and resort to a “zany” constitutional claim, to use Justice Scalia’s word again, would not be necessary even then.
Trackback Pings
TrackBack URL for this entry:
http://www.scotusblog.com/movabletype/mt-tb.cgi/672
Listed below are links to weblogs that reference The Castle Rock Debate - Part 3:
» The Castle Rock Debate from SCOTUSblog
John Eastman has the third installment on the Discussion Board.... [Read More]
Tracked on July 1, 2005 07:43 AM
» The Castle Rock Debate from SCOTUSblog
John Eastman has the third installment on the Discussion Board.... [Read More]
Tracked on July 1, 2005 07:44 AM
» xanax + side effects from xanax fedex
urine test xanax xanax online xanax and prozac cause gallbladder problems xanax withdraw xanax medication xanax + fedex xanax manufactured/ place xanax drug excretion, testing information on xanax dosages xanax xanax quad bars xanax 3mg picture [Read More]
Tracked on August 2, 2005 06:54 AM
» thailand from thailand
thailand [Read More]
Tracked on August 4, 2005 11:24 AM
» alcoholism fact from alcoholism fact
alcoholism fact
teenage alcoholism fact
[Read More]
Tracked on August 11, 2005 06:02 AM
» alcoholism fact from alcoholism fact
alcoholism fact
teenage alcoholism fact
[Read More]
Tracked on August 11, 2005 06:02 AM
» tattoo from tattoo
tattoo [Read More]
Tracked on August 13, 2005 03:57 AM
» tattoo from tattoo
tattoo [Read More]
Tracked on August 13, 2005 03:57 AM
» psychotherapy from psychotherapy
psychotherapy [Read More]
Tracked on August 14, 2005 05:23 AM
» psychotherapy from psychotherapy
psychotherapy [Read More]
Tracked on August 14, 2005 05:23 AM
» bankruptcy florida from bankruptcy florida
airline bankruptcy united
bankruptcy question
after bank... [Read More]
Tracked on August 16, 2005 07:25 AM
» bankruptcy florida from bankruptcy florida
airline bankruptcy united
bankruptcy question
after bank... [Read More]
Tracked on August 16, 2005 07:25 AM
» acyclovir valtrex from acyclovir valtrex
acyclovir dosage
acyclovir medication
generic acyclovir
[Read More]
Tracked on August 21, 2005 11:25 PM
» acyclovir valtrex from acyclovir valtrex
acyclovir dosage
acyclovir medication
generic acyclovir
[Read More]
Tracked on August 21, 2005 11:25 PM
» online casino from online casino
online casino [Read More]
Tracked on August 23, 2005 09:45 AM
» tattoo from tattoo
tattoo [Read More]
Tracked on August 25, 2005 10:41 AM
» online roulette from online roulette
online roulette [Read More]
Tracked on August 26, 2005 04:02 PM
» online roulette from online roulette
online roulette [Read More]
Tracked on August 26, 2005 04:07 PM
» free poker scanners from free poker scanners
You are invited to check out some information in the field of free download unlimited poker games of line [Read More]
Tracked on August 28, 2005 07:12 PM
» rx weight loss drugs from rx weight loss drugs
Take your time to take a look at some relevant pages in the field of cheap weight loss drug online [Read More]
Tracked on August 29, 2005 01:36 AM
» Free forced sex tgps from Young girl raped gallery
Hot hentai milfs Gary robert sex comix Being and animal sex xxx Sex with free horse [Read More]
Tracked on September 4, 2005 03:04 PM
» Free young teen movie from Dogs girl sex
Nature's viagra viagra and psychogenic ed Pills cialis vs viagra Gay prison sex movies free First time brothersister stories... [Read More]
Tracked on September 4, 2005 10:16 PM
» Xxx disney cartoon movies to buy from Shemale hentai clips
Hentai anima sex picture 18 year old young girls hentai Violent anime fucking Cruel rape video xxx [Read More]
Tracked on September 5, 2005 10:35 AM
» Forcedcumshot from Free trailers raped girls
Porno pics gratis Pictures of women being gang raped Cheap viagra without prescription Mans health cialis u... [Read More]
Tracked on September 7, 2005 12:56 AM
» pornography in marriage from vintage pornography picture sites
pornography obscenity free pornography site links pornography clips the pornography industry pornography law canada free pornography webpages portugese laws on pornography free x-rated pornography view free pornography and sex free star pornography st... [Read More]
Tracked on September 8, 2005 04:41 AM
» violent femmes from
eating shit slaves teen model smoker milf sex inthevip [Read More]
Tracked on September 11, 2005 01:25 PM
» Flexible girls sex videos from Warez video trailers to watch
Short porn mp4 videos Offices rapes video Dad and little boys porno gay Incest forum movie picture [Read More]
Tracked on September 17, 2005 01:11 AM
» Dad son daugther mom fucking from Elephant sex free movie sister
Prison movies fantasies Dad and daughter sex pix Boy gay rape fotos Trailer sex violent [Read More]
Tracked on September 18, 2005 07:13 AM
» gay boy from
asain + gay + thumbs gay porn asain + gay + thumbs gay boys [Read More]
Tracked on September 18, 2005 07:22 AM
» gay porn from
gay muscle asain + gay + thumbs gay wrestling gay guys [Read More]
Tracked on September 18, 2005 07:22 AM
» rape from
ass rape gang rape rape videos rape [Read More]
Tracked on September 18, 2005 07:22 AM
» video poker from video poker
video poker Take cloak-and-suit studye ( Jackson's is the brotherliest ) and sauterne it carefully to the edges, then smirk th [Read More]
Tracked on September 19, 2005 01:57 PM
» personal loans from personal loans
Please visit some helpful info about payday loans credit card application personal loans [Read More]
Tracked on September 21, 2005 03:50 PM
» bonus deals for texas holdem with neteller from bonus deals for texas holdem with neteller
In your free time, visit some information about download texas holdem for free free online Texas Holdem [Read More]
Tracked on September 22, 2005 09:59 PM
» literature awards from writing in response to literature
history of childrens literature writing review of literature literature lesson plans childrens literature humor stories literature during the british renaissance irish literature michael storey free erotic literature definition of realism in literature... [Read More]
Tracked on September 22, 2005 11:58 PM
» literature censored from american literature authors
georgian literature literature rackwholesale literature criticisms marvin redpost kidnapped at birth literature discussion classic literature reading list free porn literature carlos fuentes literature literature rackwholesale literature review example... [Read More]
Tracked on September 23, 2005 04:07 AM
» shit eating from
free scat scat man scat porn shit eating scat stories gay scat [Read More]
Tracked on September 23, 2005 06:33 AM
» plump from
thick booty fat porn fat women thick fat girls thick [Read More]
Tracked on September 23, 2005 06:33 AM
» texas holdem poker guide from texas holdem poker guide
You can also take a look at the sites in the field of multiplayer party poker sex [Read More]
Tracked on September 23, 2005 08:43 PM
» georgian literature from domination and submission free literature
online readers guide to periodical literature adult erotic literature literature rackwholesale romantic period in literature dragons in chinese literature bible as literature literature critics appalachian literature thailand literature literature revi... [Read More]
Tracked on September 24, 2005 11:18 AM
» flop holdem odds pre texas from flop holdem odds pre texas
You are invited to check the pages in the field of texas holdem odds [Read More]
Tracked on September 24, 2005 08:02 PM
» free christian literature from literature circle
romanticism in literature literature unit bud not buddy geometry lesson plans with literature auto literature literature teacher 1920s literature historical fiction childrens literature online readers guide to periodical literature does literature mold... [Read More]
Tracked on September 25, 2005 08:27 AM
» romanticism in literature from critical analysis of scientific literature
graphic design childrens literature online literature lindas links to literature hero literature ford literature auto literature gothic literature literature vs fiction realism literature 18th century literature web literature literature circles quest... [Read More]
Tracked on September 26, 2005 05:04 AM
» how to read music from adolescent literature with citizenship themes
literature lessons literatures immanuel kant literature christian literature memory in literature literature rackwholesale english literature literature research topics facts about gothic literature nobel prize literature essays on english literature c... [Read More]
Tracked on September 27, 2005 07:48 AM
» Free Online Poker Fake Money from Free Online Poker Fake Money
You can also check some relevant pages about best online texas hold em poker website+play poker for free [Read More]
Tracked on September 30, 2005 06:52 AM
» Betty White from Donald Harris
New interesting theme
[Read More]
Tracked on April 8, 2006 06:05 PM
» Betty White from Donald Harris
New interesting theme
[Read More]
Tracked on April 9, 2006 06:05 AM
» kasinoliste from kasinoliste
Wenn Sie entscheiden den kasinoliste Service nach dem 30 tgigen Versuch nicht zu behalten, wird er entaktiviert und gelscht. Keine Verpflichtung und mit unserem Dank fr sie heraus versuchen. Besuch [Read More]
Tracked on June 20, 2006 12:59 PM
» online casino from online casino
Express est le choix naturel du online casino intresse dans l'industrie du service en quipe. L'exprience de la vie nous apprend que nous rcoltons ce que nous avons sem. Si nous n'aimons pas le online ca... [Read More]
Tracked on July 3, 2006 03:53 AM
» free incest sites from free incest sites
free incest sites [Read More]
Tracked on December 16, 2006 04:46 AM
» euro sex parties galleria giorno from euro sex parties galleria giorno
euro sex parties galleria giorno [Read More]
Tracked on January 2, 2007 12:20 AM
» numbers for free trial phone sex from pussy lovers
cumshot free thumbs [Read More]
Tracked on January 23, 2007 02:30 AM
» that in fact from I mine
lives [Read More]
Tracked on February 8, 2007 07:23 PM
» incest sex from incest sex
incest sex [Read More]
Tracked on March 3, 2007 05:26 AM
» brother sister incest stories from brother sister incest stories
brother sister incest stories [Read More]
Tracked on March 18, 2007 04:52 AM
» alexis amore nude from alexis amore nude
alexis amore nude [Read More]
Tracked on April 1, 2007 10:19 PM
» Rape sex from Rape sex
Rape sex [Read More]
Tracked on April 8, 2007 01:30 AM
» Incest from Incest
Incest [Read More]
Tracked on April 12, 2007 08:45 PM
» Incest from Incest
Incest [Read More]
Tracked on April 14, 2007 04:50 PM
» Incest Sex from Incest Sex
Incest Sex [Read More]
Tracked on April 29, 2007 07:01 PM
» mavericks ticket from mavericks ticket
shit-happens 387233 homepage of mavericks ticket [Read More]
Tracked on June 17, 2007 11:06 PM
» john williams guitar from john williams guitar
shit-happens 387233 Relevant information about john williams guitar. [Read More]
Tracked on June 21, 2007 04:39 PM
» 4gb ipod nano from 4gb ipod nano
shit-happens 387233 Advantages of 4gb ipod nano. [Read More]
Tracked on June 26, 2007 08:01 PM
» \'bankruptcy\' from \'bankruptcy\'
[Read More]
Tracked on October 22, 2007 11:21 AM
» 'bankruptcy' from 'bankruptcy'
[Read More]
Tracked on October 22, 2007 11:21 AM
» Depression Medications from Depression Medications
As Osteomyelitis related topics continue to increase in popularity, there will be more places to learn more about this important topic. [Read More]
Tracked on October 29, 2007 07:28 AM
» Depression Medications from Depression Medications
As Osteomyelitis related topics continue to increase in popularity, there will be more places to learn more about this important topic. [Read More]
Tracked on October 29, 2007 07:29 AM
» Tanning Systems from Tanning Systems
It is tiresome striving to compute the time we\'ve consumed looking up Sexuality data. [Read More]
Tracked on October 30, 2007 06:07 AM
» Tanning Systems from Tanning Systems
It is tiresome striving to compute the time we've consumed looking up Sexuality data. [Read More]
Tracked on October 30, 2007 06:07 AM
» Sealing The Deal On A from kdl sony v2500
The trick is to pick a good recipe, buy in bulk, prepare in advance, divide it into meal-size portions and [Read More]
Tracked on February 1, 2008 09:59 AM
» Rape Videos from Rape Videos
It is accurate that obtaining reliable information on this topic can be time consuming. [Read More]
Tracked on June 9, 2008 09:34 AM
Comments
"but to demonstrate just how easy it would be, had this case come out differently, so force municipalities into Court every time there is a call on a restraining order that did not produce the result desired by one party or the other"
Given the "facts" of the case, is this not a tad bit harsh? Perhaps it is impossible, but when three children die, a hearing just might be a good idea while regular things like delay of return and so forth would not meet the threshold.
It's comparable to property cases where perhaps a hearing would not be required if $5 is at stake, but $1M would warrant a hearing.
Again, maybe line drawing is not possible, but I think not. Also, does the word "shall" work the same in different contexts? The argument seems to be that THIS law as a whole works differently. Without more, the "shall" point seems to not be enough to prove Stevens inconsistent.
Posted by: Joe at July 1, 2005 09:02 AM