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June 28, 2005

SCOTUS: Police not required to do their job

From the New York Times:

A 1989 decision, DeShaney v. Winnebago County, held that the failure by county social service workers to protect a young boy from a beating by his father did not breach any substantive constitutional duty. By framing her case as one of process rather than substance, Ms. Gonzales and her lawyers hoped to find a way around that precedent.

But the majority on Monday saw little difference between the earlier case and this one, Castle Rock v. Gonzales, No. 04-278. Ms. Gonzales did not have a "property interest" in enforcing the restraining order, Justice Scalia said, adding that "such a right would not, of course, resemble any traditional conception of property."

Although the protective order did mandate an arrest, or an arrest warrant, in so many words, Justice Scalia said, "a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes."

But Justices Stevens and Ginsburg, in their dissenting opinion, said "it is clear that the elimination of police discretion was integral to Colorado and its fellow states' solution to the problem of underenforcement in domestic violence cases."

Even though he had violated the restraining order that was supposed to prevent him from going near his wife's house, Simon Gonzales kidnapped his children, killed them, and was later killed by the police. During that time, before the children were killed, Mrs. Gonzales had repeatedly called the police to have her husband arrested, but they ignored her. Colorado has a law making arrests mandatory in incidences of domestic violence, therefore the police not only didn't do their job, they violated state law.

You cane read the decision here. I don't really get where Scalia sees this as having anything to do with property. Does denial of due process only apply if someone has lost “property”? The children were murdered because the police failed to do their job, as pretty much any citizen of any town would expect them to.

It is inappropriate here to defer to the Tenth Circuit's determination that Colorado law gave respondent a right to police enforcement of the restraining order.

Then what use is a restraining order? It seems to me the logical conclusion is to ignore restraining orders, and just go get a gun. If the courts and the police want people to take them seriously, then they need to do their jobs seriously, and not let children get murdered while they're off scarfing down some Krispy Kremes.

Posted by Danny Carlton at June 28, 2005 08:00 AM

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