Saturday, July 02, 2005
The Final Installment of the Castle Rock Debate
Castle Rock | 05:31 AM | Tom Goldstein | Comments (0) | TrackBack
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.
Friday, July 01, 2005
The Castle Rock Debate - Part 3
Castle Rock | 07:40 AM | Tom Goldstein | Comments (1) | TrackBack
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.
Wednesday, June 29, 2005
The Castle Rock Debate Continues
Castle Rock | 09:30 PM | Tom Goldstein | Comments (6) | TrackBack
Richard Smith responds to John Eastman's opening post in the debate over the Castle Rock case:
Let me first thank Tom and ScotusBlog.com for inviting me to participate in this online discussion. Along with others in my law firm McDermott Will & Emery, I had the honor of serving as pro bono counsel for a collection of law enforcement organizations in this case, and on behalf of those law enforcement groups filed an amicus brief in support of Ms. Gonzales.
Two points initially struck me as I read John Eastman's provocative initial posting. First, I was puzzled by John's description of the facts of the case, a description that has been amplified by the town in media interviews over the past few months. Second, I was intrigued by John's (accurate) statement that the Supreme Court interpreted the Colorado statute "against the backdrop of ... discretion." Because the Colorado Legislature enacted the mandatory enforcement statute precisely to eliminate that historical discretion, it is curious that the Gonzales Court would interpret the state statute following a guiding principle that enhances discretion. The unintended result leaves states with few legislative options.
I have tremendous respect for John, who is a fine advocate and who served his client well in this case. But in his initial posting here, as the town as done in its briefs to the Court, he has consistently mischaracterized the operative facts. He has argued that the Castle Rock police responded appropriately to Ms. Gonzales and worked hard to find her children. But in the procedural posture of this appeal, we are required to assume that Ms. Gonzales's rendition is true. It follows:
On May 21, 1999, Ms. Gonzales obtained from a Colorado court a temporary restraining order against her estranged husband, Simon Gonzales. In part because Mr. Gonzales's history of suicidal threats and erratic behavior, the restraining order ordered Mr. Gonzales not to molest or disturb the peace of Ms. Gonzales or her three children and excluded him from the family home. When made permanent on June 4, 1999, the restraining order was slightly modified to allow Mr. Gonzales occasional visitation with the children in the form of summer and alternating weekend visits and a "pre-arranged, advance notice mid-week dinner visit." Eighteen days after being served with the permanent order, Mr. Gonzales abducted the children from their yard, without advance notice or prior arrangements.
At 7:30 p.m., in a moment that every parent fears, Ms. Gonzales was unable to find her children and called the police or help. She had done everything right; she had obtained a restraining order against her children's assailant and now relied on the police to enforce it. Two detectives were dispatched to her home. She handed them a copy of the restraining order and asked that it be enforced as the law required, and her children returned to her immediately. The detectives responded in but one way: "they stated that there was nothing they could do about the TRO and suggested that [Ms. Gonzales] call the Police Department again if the three children did not return home by 10:00 p.m."
Ms. Gonzales spoke with Mr. Gonzales at 8:30 p.m., who admitted to taking the children. She called one of the detectives who had earlier rejected her pleas, and was again told to wait until 10 p.m. Shortly after 10 p.m., Ms. Gonzales again called police and was told to wait until midnight. She called again at midnight. Nothing. She went to Mr. Gonzales's house, calling from outside on her cell phone, and was told to wait there for police. They never showed up. At nearly 1 a.m., she finally went to the police department itself and demanded assistance. An officer had her fill out a form and went to dinner, making "no reasonable effort to enforce" the restraining order. Two hours later, Mr. Gonzales would arrive at that same police station with his three murdered children and begin firing at it with a handgun he had purchased with the girls that night. He was shot dead at the scene.
Under no circumstances can these events be described as "explicitly authorized" under Ms. Gonzales's restraining order, as John has argued. As alleged, the abduction was neither "pre-arranged," nor with "advance notice"; and at least by 10 p.m., after which Ms. Gonzales made four desperate pleas for help, there is no justification even to believe that it was a "mid-week dinner visit" for three girls as young as seven. John made these same fact arguments to the Court, and it refused to take the bait.
The simple truths are that Mr. Gonzales allegedly violated the restraining order, that the police knew it, and that they ignored their responsibility to act because Mr. Gonzales was the children's father. The tragically violent end is all too familiar. The National Network to End Domestic Violence reports that as many as one out of every three American women say that they have been physically or sexually abused by a husband or boyfriend at some point in their lives. Millions of innocent children witness those acts of violence.
Victims advocates recognize the alleged reaction of the Castle Rock police -- to ignore Ms. Gonzales, to defer her until later in the evening, and ultimately to determine that further action (to use John's words) "was clearly not warranted to track down a father" -- as the time-honored historical standard. Advocates say that police, who typically are men, are loathe to get involved in what are predominately thought of as private, family matters. And it is the police's inherent ability to use discretion to act on that instinct that in many cases prevents them from protecting victims.
Colorado was supposed to be different. Following more than a dozen other states that had recently enacted mandatory enforcement laws, the Colorado Legislature eliminated police discretion in the domestic violence context in 1994, and made enforcement of restraining orders mandatory. The Colorado statute explicitly directed that police "shall use every reasonable means to enforce" restraining orders. In an individual case, that may be by arresting violators, or it by employing other reasonable means, but in all instances, the obligation to enforce was mandatory.
As John implies, the Gonzales Court's interpretation of the Colorado statute, holding that "shall" does not mean "shall," can only be understood as an effort to preserve traditional police discretion. John and the majority opinion correctly point out that many of Colorado's law enforcement statutes seemingly mandate some form of action, yet only in the domestic violence context is it clear that the elimination of police discretion was integral to the statutory scheme. Where elimination of police discretion in responding to domestic violence was the very point of mandatory enforcement statutes, to conclude that a legislature's use of the obligatory "shall" does not really mean "shall" is to say that a legislature is powerless to eliminate police discretion.
Of course, John is correct that "[t]he State of Colorado may want to commit itself to the expense of 24-hour-a-day police protective services, and a 'drop-everything' command to enforce restraining orders," and some would say it tried to do so here. But despite the Court's seemingly hollow recognition that its decision "does not mean States are powerless" and that "the people of Colorado are free to craft such a system under state law," it is difficult to see how such legislation would be crafted.
If one assumes that Colorado intended to eliminate discretion here, then what language must the state have used to do so? If "shall" was not enough, is "must" qualitatively better? Or was the Legislature to include a boldfaced preamble noting: "We really mean shall this time"?
Tuesday, June 28, 2005
A Debate Over Castle Rock
Castle Rock | 06:53 PM | Tom Goldstein | Comments (13) | TrackBack
We're pleased to host a debate over the Court's recent Castle Rock decision between the city's lead attorney (John Eastman) and the lead attorney for some of the principal amici supporting the respondent, Richard Smith of McDermott Will & Emery. (You can see the SCOTUSblog write-up of the case here.) We held a similar debate on SCOTUSblog regarding the beef ads case. We'll have a new post each day, alternating sides, with four posts in total.
John Eastman begins the debate:
Castle Rock v. Gonzales, decided by the Supreme Court on Monday, June 27, presented the federal courts with a tragic set of facts. Simon Gonzales, an estranged husband and father of three little girls, took his daughters out for a mid-week dinner visit in June, 1999, as the standard-form restraining order that had been issued against him explicitly authorized. Tragically, before the night was out, he had shot and killed his three daughters and then committed “suicide by cop” by opening fire on the Castle Rock, Colorado police station.
The wrongdoer here was quite obviously Simon Gonzales, but the girls’ mother filed a $30 million federal lawsuit against the Town of Castle Rock and three individual police officers, claiming that the police violated her constitutional rights by not arresting Simon when she first alleged he had the girls in violation of a restraining order that told police to use every reasonable means to enforce it and that they “shall arrest or seek a warrant for an arrest” if they had probable cause to believe that the restraining order was being violated.
During oral argument in Castle Rock v. Gonzales, Justice Breyer asking Brian Reichel, attorney for Mrs. Gonzales, why he chose to ask the federal courts to invent a new constitutional entitlement to police enforcement of restraining orders rather than simply pursue the tort remedies that were available under Colorado state law. Mr. Reichel’s response was quite telling: Colorado law required that he prove causation and foreseeability—in other words, that the police department’s alleged inaction actually caused the harm to the Gonzales girls, and that the harm was foreseeable. Mr. Reichel implicitly conceded that he could not prove causation and foreseeability, so he sought to create a constitutional remedy for failure to act that would not put him to those pesky proof requirements.
The Supreme Court has repeatedly held that the Constitution should not become a substitute for state tort law, and it reiterated that position on Monday. Even constitutional law scholars who wish the rule were otherwise, such as Duke Law Professor Erwin Chemerinsky, have conceded that “the Supreme Court clearly followed precedent” in this case. It is precedent that is both common sensical and compelling. Without it, municipal governments would find themselves subject to massive liability every time they failed to foresee criminal conduct, or failed to arrive on the scene of a fire, or prevent a riot, in time to protect citizens against the tortuous conduct of their fellow citizens whenever the state has used the word “shall” to give guidance to police or firefighters or paramedics in the daily performance of their jobs. The State of Colorado may want to commit itself to the expense of 24-hour-a-day police protective services, and a “drop-everything” command to enforce restraining orders, but the Supreme Court made clear on Monday that the federal courts should not be in the business of creating such a “zany property right,” to use Justice Scalia’s phrase, without a much more clear indication of Colorado’s intent than the use of the word “shall.”
In other words, the Supreme Court rightly interpreted the Colorado statute against the backdrop of the discretion that police need to do their jobs every day. Here, police drove out to meet with Mrs. Gonzales immediately after her first telephone call. The Town of Castle Rock put two officers—50% of the force on duty that night—on the investigation to try to locate Simon Gonzales and his daughters. Those officers searched for Mr. Gonzales’s truck from one end of town to the other. They did not put out a statewide All Points Bulletin, but under the circumstances known to them at the time (rather than with the benefit of hindsight), an APB was clearly not warranted to track down a father who was out for a mid-week dinner visit with his daughters, as he was permitted. It would be nice if police could anticipate every crime before it happens, but the Supreme Court was right not to allow the creation of a federal constitutional case for their inability to predict this particular tragedy.