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Posted: 1/9/2005 7:20:04 PM EDT

From www.9news.com, Denver Colorado, by Jan Laitos (University of Denver law professor)

What consequences follow when there is a restraining order on a person, and that person ignores the order and menaces the person who is protected by the order?

If the police fail to enforce that order, and if the person under the restraining order does damage, can the police be held accountable? Are the police responsible when a person who is under a restraining order harms another?

The United States Supreme Court has agreed to take up, and decide, the question of whether individuals have a due process right to enforcement of a domestic abuse restraining order. The case should be decided by the summer of 2005.

In the case before the Court, which comes out of Castle Rock, Colorado, the domestic abuse restraining order specifically directed that the husband stay away from the wife and their three daughters. The order contained explicit terms directing law enforcement officials that they "shall use every reasonable means to enforce" the restraining order, they "shall arrest" or seek an arrest warrant for those who violate the restraining order, and they "shall take the restrained person to the nearest jail or detention facility."

Despite the order's terms, the husband abducted the girls, who were aged 10, 9, and seven, one day while they were playing outside their home. The wife called the police and, when officers arrived at her home, showed them a copy of the restraining order. The officers apparently stated that there was nothing they could and suggested that she call them again if the children did not return home by 10 PM that day.

About an hour later, the wife spoke with husband by telephone, and he told her that he and girls were at an amusement park. She again called the police, who again suggested that she wait until 10 PM. Shortly after 10 PM, she called to report that her daughters had yet to be returned home. She was told to wait for another two hours. At midnight she called the police department again and then proceeded to the husband's apartment complex and found no one at home.

From there, she placed a fifth call to the police department and was advised by the dispatcher to wait there until the police arrived. No officers ever came, and at 12:50 AM, she went to the police station, where she met with an officer who took an incident report, but made no further effort to enforce the restraining order.

At approximately 3:20 AM, the husband arrived at the police station in his truck, where he opened fire on the station with a semi-automatic handgun. He was shot dead at the scene. The police found the bodies of the three girls in the cab of the truck, who had been murdered by their father earlier that evening.

The question for the US Supreme Court will be whether the wife was entitled, as a matter of constitutional law, to police enforcement of the restraining order at the time she made the initial call, and all the calls to the police thereafter.

The wife has argued that she has a claim based on the police officer's refusal to enforce the domestic abuse restraining order. She alleges that she was denied the due process right that is hers to have the police follow the applicable Colorado statute requiring enforcement of restraining orders.

The city is alleging that any such due process right only arises when the police have probable cause that the restraining order was being violated, and here there was no such probable cause of such a violation. The police allege that they had no notice, based on the husband's actions, that he was endangering the children. The police only learned of the danger when the husband assaulted the police station, not before.

This will be a tough question for the Court, because in a previous case the Court had stated that victims of government INACTION have no substantive constitutional right against the government, when the harm is by an individual, not the government. Only when there is action by police can there be a possible claim. Here, as in that previous case, there was alleged police inaction, and the question will be whether that inaction gives rise to a constitutional claim.

The police departments across the entire nation will be watching the Court here, since this Colorado case raises important questions about accountability for police inaction.


Gonzales v. City of Castle Rock, 366 F. 3d 1093 (10th Circ. 2004)

DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989)

Link Posted: 1/9/2005 7:21:43 PM EDT
This directly inpacts our right to concealed carry. I expect the court will find, (as it has in the past) that the police have no duty to act to protect us. To me that's a very concrete reason why we should be allowed (and prepared) to defend ourselves.
Link Posted: 1/9/2005 7:24:14 PM EDT
[Last Edit: 1/9/2005 7:26:02 PM EDT by vanilla_gorilla]
We handle these sort of cases every single day. This is neglect of the grossest sort and needs to be handled from the top down. Evreryone involved here, from the watch commander on duty, to the patrol officer who told the mother to wait, is liable and should be paying for this.

(If it occurred as the news article says, wasn't there, can't be sure)

ETA: Bear in mind a restraining order is useless if the LEO does not SEE it being violated. They should have acted on the abduction though.
Link Posted: 1/9/2005 7:26:41 PM EDT
[Last Edit: 1/9/2005 7:38:35 PM EDT by CS223]

If the police fail to enforce that order, and if the person under the restraining order does damage, can the police be held accountable? Are the police responsible when a person who is under a restraining order harms another?

Police not obligated to protect you. Next stupid question?

Bowers v. DeVito, (1982) 686 F.2d 616. (No federal constitutional requirements that police provide protection.)
Calgorides v. Mobile, (1985) 475 So.2d 560.
Davidson v. Westminister, (1982) 32 Cal.3d 197, 185 Cal.Rep. 252.
Stone v. State, (1980) 106 Cal.App. 3d 924, 165 Cal.Rep. 339.
Morgan v. District of Columbia, (1983) 468 A.2d 1306.
Warren v. District of Columbia, (1983) 444 A.2d 1.
Sapp v. Tallahassee, (1977) 348 So.2d 363, cert. denied 354 So.2d 985.
Keane v. Chicago, (1968) 98 ILL.App.2d 460, 240 N.E.2d 321.
Jamison v. Chicago, (1977) 48 ILL.App.3d 567.
Simpson's Food Fair v. Evansville, 272 N.E.2d 871.
Silver v. Minneapolis, (1969) 170 N.W.2d 206.
Wuetrich v. Delia, (1978) 155 N.J.Super. 324, 382 A.2d 929.
Chapman v. Philadelphia, (1981) 290 Pa.Super. 281, 434 A.2d 753.
Morris v. Musser, (1984) 84 Pa.Cmwth. 170, 478 A.2d 937.
Weiner v. Metropolitan Authority, and Shernov v. New York Transit Authority, (1982) 55 N.Y. 2d 175, 948 N.Y.S. 141.
DeShaney v. Winnebago County Social Services, 489 U.S. 189, 196, 197 (1989).

Exact same thing has happened before, woman had restrainting order, husband, boyfriend said he would kill her & the kids, she calls cops, cops don't do jack, scumbag kills kids/ woman. Court says cops did their job, case dismissed.
Link Posted: 1/9/2005 7:26:58 PM EDT
Absolutely. The police have a responsibility to society as a whole. This brings up interesting questions to the role of such institutions in society and the social cotract as a whole. I doubt that the SCOTUS will overturn its prior decisions and hold in favor of the woman. This court has had a pro police bent for a long time. I can't see the conservatives on this court holding that the police have a responsibility to enforce restraining orders constantly. The man power needs would be too great. There are a lot of interesting cases before the court right now. As a group (commerce clause, this case, justice memo, etc.) they could herald a new basis for challegning gun control.

Link Posted: 1/9/2005 7:30:54 PM EDT
This is about 15 miles from my home, and everything went down just as the article says it did. It was all widely reported in the local media. The local PD is a joke, the county sheriff is the real law around here, and he's very good. Would have been a different story if he was in the loop I'm sure.

I'll be surprised if the court finds legal liability rests with the PD though. Can you imagine if any crime victim could sue the cops for non-protection? I just don't see that happening.

But were the local cops to blame for this tragedy? Absolutely.
Link Posted: 1/9/2005 7:34:21 PM EDT
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