SCOTUSblog - Discussion: The Final Installment of the Castle Rock Debate

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Saturday, July 02, 2005

The Final Installment of the Castle Rock Debate

Castle Rock | Posted by Tom Goldstein at 05:31 AM

Richar Smith concludes the debate:

First, let me thank those who have followed this online debate and especially those who have contributed to it. This being my first blog debate, I was unsure how it would be received. But I have been pleased not only by the quality of the commentary, but also by the genuine interest in what I believe is a very important case.

I have three primary reactions to John’s latest statement and then conclude with two general observations.

First, a final note on the factual discussion. John has highlighted his client's version (which the town may or may not have been able to prove at trial) in an effort to justify in the public's mind the Court's disturbing decision. The town obviously prefers the version that has its police scouring "one end of town to the other" to Ms. Gonzales's version -- the version that was actually before the district court, the 10th Circuit, and the Supreme Court -- which has the police doing nothing but essentially ignoring her as her children are murdered. In the motion to dismiss posture, this case was decided on Ms. Gonzales's allegations, which is why I highlight them. Moreover, it is important to remember that this was a procedural due process case. Though the town pretends that anyone disappointed by bad policing could sue, that is not accurate. Ms. Gonzales would not have had a case if the police had considered her complaint and told her that there was no probable cause to believe a violation had occurred (as the town now alleges). A procedural due process claim like this requires an allegation that the plaintiff was ignored.

John argues that the “restraining order contained no allegation of suicidal threats, erratic behavior, or violence of any kind, much less a finding of such behavior.” He suggests that the order was a routine incident to the divorce proceeding. To the contrary, Ms. Gonzales obtained her restraining order pursuant to Section 14-10-108(2)(b)-(c) of the Uniform Dissolution of Marriage Act, which authorizes state courts to award an order "enjoining a party from molesting or disturbing the peace of the other party or of any child [or] excluding a party from the family home ... upon a showing that physical or emotional harm would otherwise result." It is true, as John says, that the legal requirements for the restraining order were not alleged, but that is of no moment. He does not dispute that the restraining order issued, nor that Mr. Gonzales is alleged to have exhibited that behavior.

Second, I am aware of no legal authority for John's suggestion that a due process right arises out of state law only if the state intends "the additional step ... of creating a protected property interest." In fact, as the early history of the 14th Amendment ably demonstrates, the due process right is abridged when a state establishes a benefit (i.e., enforcement), creates an expectation that it will be conferred on a particular individual (i.e., issues a restraining order), and then arbitrarily denies the benefit (i.e., ignores her). This is true even if the state has established no recourse mechanism. That is, even if the state does not intend its citizens to be able to sue for expected benefits, it cannot arbitrarily distribute them. Were that not the rule, and property rights existed only where states had private remedies, then there would be no need for the 14th Amendment.

More fundamentally, John’s argument confuses the role of state law. As Justice Scalia properly notes, the state statutes merely define applicable benefits and create justifiable expectations. The question of whether a state has created "a property interest for purposes of the Fourteenth Amendment ... is ultimately one of federal constitutional law" and is independent of state intent.

Third, reflecting on John's final sentence, it appears that the Gonzales opinion leaves no room for a state even to create purposefully a "zany" property interest in police protection even if it desired to do it. In Pennsylvania, for example, where the Legislature created a mandatory enforcement duty a decade ago with full knowledge that it would constitute a “property” right, the Gonzales Court has replaced the legislative intent with its own and upended the statute. In 1990, the U.S. District Court for the Eastern District found that Pennsylvania's enforcement statute was too permissive to create a mandatory duty sufficient to support a due process claim. See Hynson v. City of Chester, 731 F. Supp. 1236, 1240 (ED Pa. 1990) (no entitlement to arrest). The same Court later that year found that a protection order issued pursuant to the statute sufficiently mandated enforcement to create an enforceable constitutional duty. See Coffman v. Wilson Police Department, 739 F. Supp. 257, 264 (ED Pa. 1990). The Legislature's response was to strengthen the statute to provide mandatory duties, knowing full well that violations of those duties without due process would be actionable in federal court as constitutional violations. See Burella v. City of Philadelphia, No. 00-884, 2003 U.S. Dist. LEXIS 25170 (ED Pa. Dec. 17, 2003). The Gonzales opinion with its sweeping dicta ("In light of today's decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause") seems to leave no room for Pennsylvania's intent.

Stepping back from the trees to look at the forest for a moment, I have two general observations that I think are worth some discussion and further thought. First, as I implied in my initial posting, I am struck by the Court's decision to interpret the Colorado statute in a way that purposefully enhances police discretion. The logical assumption underlying the opinion appears to be that police (as a subset of the Executive) are possessed with inherent discretion in determining how, when, and, in fact, whether, to enforce the Legislature's mandates. Some would say there is nothing new or controversial about that statement, but as this case highlights, if that assumption true, then the Legislatures' hands are tied -- even the preamble language that I suggested in my prior post would be futile.

Second, in the debate over legal minutia, let us not forget that the practical impact of this opinion could be devastating. Representative headlines certainly are disturbing: "Police Need Not Enforce Restraining Orders," "Cops Not Responsible For Protection." Victims already are questioning whether this decision means that they can no longer rely on the police to answer the call for help. And if the abused believe that they cannot rely on restraining orders as an effective part of the solution and to extricate themselves from abusive relationships, then we have failed them.

The Gonzales decision sounds a wake-up call to state legislatures to stand up and take responsibility for the protection of those who are most in need. It bears repeating that as many as one out of every three American women have been physically or sexually abused by a husband or boyfriend at some point in their lives, and millions of innocent children have witnessed those acts of violence.

Thus, in the wake of the Gonzales opinion, the critical question is what to do next. If you have read my online bio (www.mwe.com), you know that I am not often confused with a liberal. And truly, I do not believe the solutions to the domestic violence epidemic must be politically divisive. John's suggested steps that States could take to improve protections are a good first start, but our efforts should not end there.

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