Justices Rule Police Do Not Have a Constitutional Duty to Protect Someone

[Guest TnRebel]

http://www.nytimes.com/2005/06/28/politics/28scotus.html?_r=1

June 28, 2005

Justices Rule Police Do Not Have a Constitutional Duty to Protect Someone

By LINDA GREENHOUSE

WASHINGTON, June 27 - The Supreme Court ruled on Monday that the police did not have a constitutional duty to protect a person from harm, even a woman who had obtained a court-issued protective order against a violent husband making an arrest mandatory for a violation.

The decision, with an opinion by Justice Antonin Scalia and dissents from Justices John Paul Stevens and Ruth Bader Ginsburg, overturned a ruling by a federal appeals court in Colorado. The appeals court had permitted a lawsuit to proceed against a Colorado town, Castle Rock, for the failure of the police to respond to a woman's pleas for help after her estranged husband violated a protective order by kidnapping their three young daughters, whom he eventually killed.

For hours on the night of June 22, 1999, Jessica Gonzales tried to get the Castle Rock police to find and arrest her estranged husband, Simon Gonzales, who was under a court order to stay 100 yards away from the house. He had taken the children, ages 7, 9 and 10, as they played outside, and he later called his wife to tell her that he had the girls at an amusement park in Denver.

Ms. Gonzales conveyed the information to the police, but they failed to act before Mr. Gonzales arrived at the police station hours later, firing a gun, with the bodies of the girls in the back of his truck. The police killed him at the scene.

The theory of the lawsuit Ms. Gonzales filed in federal district court in Denver was that Colorado law had given her an enforceable right to protection by instructing the police, on the court order, that "you shall arrest" or issue a warrant for the arrest of a violator. She argued that the order gave her a "property interest" within the meaning of the 14th Amendment's due process guarantee, which prohibits the deprivation of property without due process.

The district court and a panel of the United States Court of Appeals for the 10th Circuit dismissed the suit, but the full appeals court reinstated it and the town appealed. The Supreme Court's precedents made the appellate ruling a challenging one for Ms. Gonzales and her lawyers to sustain.

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." Colorado was one of two dozen states that, in response to increased attention to the problem of domestic violence during the 1990's, made arrest mandatory for violating protective orders.

"The court fails to come to terms with the wave of domestic violence statutes that provides the crucial context for understanding Colorado's law," the dissenting justices said.

Organizations concerned with domestic violence had watched the case closely and expressed disappointment at the outcome. Fernando LaGuarda, counsel for the National Network to End Domestic Violence, said in a statement that Congress and the states should now act to give greater protection.

In another ruling on Monday, the court rebuked the United States Court of Appeals for the Sixth Circuit, in Cincinnati, for having reopened a death penalty appeal, on the basis of newly discovered evidence, after the ruling had become final.

The 5-to-4 decision, Bell v. Thompson, No. 04-514, came in response to an appeal by the State of Tennessee after the Sixth Circuit removed a convicted murderer, Gregory Thompson, from the state's death row.

After his conviction and the failure of his appeals in state court, Mr. Thompson, with new lawyers, had gone to federal district court seeking a writ of habeas corpus on the ground that his initial lawyers had been constitutionally inadequate. The new lawyers obtained a consultation with a psychologist, who diagnosed Mr. Thompson as schizophrenic.

But the psychologist's report was not included in the file of the habeas corpus petition in district court, which denied the petition. It was not until the Sixth Circuit and then the Supreme Court had also denied his petition, making the case final, that the Sixth Circuit reopened the case, finding that the report was crucial evidence that should have been considered.

In overturning that ruling in an opinion by Justice Anthony M. Kennedy, the majority said the appeals court had abused its discretion in an "extraordinary departure from standard appellate procedures." Chief Justice William H. Rehnquist and Justices Scalia, Clarence Thomas and Sandra Day O'Connor joined the opinion.

In a dissenting opinion, Justice Stephen G. Breyer said the majority had relied on rules to the exclusion of justice. Judges need a "degree of discretion, thereby providing oil for the rule-based gears," he said. Justices Stevens, Ginsburg and David H. Souter joined the dissent

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More reason for the 2A and self defiance.

[towerclimber37]

That's why we all carry guns

[E4 No More]

It's things like this that make some people question why we pay for police services, and why many of us are armed to begin with. I can see both sides of the coin since I was a LEO back in the day.

[leroy]

As i remember, this is not "new" news. These issues have come up before all thru our history. As others have said; you are principally responsible for protecting yourself and you always have been. Moral of the story; the state cannot (...and many times will not...) protect you and your family. They cannot be everywhere. Arm yourselves and become proficient in their use.

Kind regards,

Leroy

[E4 No More]

As i remember, this is not "new" news. These issues have come up before all thru our history. As others have said; you are principally responsible for protecting yourself and you always have been. Moral of the story; the state cannot (...and many times will not...) protect you and your family. They cannot be everywhere. Arm yourselves and become proficient in their use.

Kind regards,

Leroy

I think that the "news" is that there was a court order on this one. Why would the court not be holding the officers in contempt? Answer: It wouldn't generate any revenue for them. Let's face it, orders of protection are only something to make the victim feel better before they become victims.

[Guest HvyMtl]

Point this out to the Anti's who use the argument, "The Police will protect you..."

[bubbiesdad]

This won't last long.

Edited July 2, 2010 by bubbiesdad

[Reservoir Dog]

As i remember, this is not "new" news.

You're right. Anyways, the news article in the OP is 5 years old.

[wjh2657]

Nothing new here guys, this one has gone around in the courts for a long time. I haven’t been able to find the original ruling but it involved a citizen and the City of New York back in the 50s. Those below pretty well spell it out. The last two have to do with the police knowing beforehand that the attack probably will take place. They owe nothing to the to-be victim, not even a warning, much less protection. The only people that the police are legally bound to protect are people incarcerated or in police custody.

The strangest part of most of these court cases is that they take place in communities where guns are not allowed and state that it is the citizen’s responsibility to protect themselves, so long as they are not `using a weapon to do it!

Warren v. District of Columbia, 444 A.2d 1 (D.C. 1981).

"...a government and its agencies are under no general duty to provide public services, such as police protection, to any particular individual citizen..." -Warren v. District of Columbia, 444 A.2d 1 (D.C. App. 1981)

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

Balistreri v. Pacifica Police Department. (901 F.2d 696 9th Cir. 1990)