Right Court, Right Argument Can Make All the Difference

Should a person be able to sue the police in a civil suit for money damages for failing to enforce a restraining order? The answer from the U.S. Supreme Court's decisions during the last week of its

Should a person be able to sue the police in a civil suit for money damages for failing to enforce a restraining order? The answer from the U.S. Supreme Court's decisions during the last week of its term was no, but I think the answer could have been different with a different legal theory. The case is Castle Rock v. Gonzales.

Jessica Gonzales lived in the small Colorado town of Castle Rock with her three young daughters. She was separated from her husband, Simon, and had recently gotten a restraining order against him. Under the terms of that order, Simon was only allowed to be with his daughters at certain set times or by advance agreement with Jessica. Otherwise, he was to stay away from all of them.

Despite this order, and in clear violation of it, one evening Simon took the three girls while they were playing outside their house. As soon as Jessica realized they were missing, she immediately called the police — the first of five calls over the course of the evening, a visit to Simon's empty apartment and finally a visit to the police station at about 1 a.m.

Each time she explained Simon was in violation of the restraining order, expressed her mounting worries about Simon and asked the police to enforce that order. Each time the police blew her off, even though the restraining order, mirroring Colorado's domestic restraining order statute, stated the police "shall use every reasonable means to enforce" the order and to make an arrest when they had probable cause to believe the order had been violated.

Shortly after 3 o'clock in the morning, Simon drove his pickup truck into the police station and opened fire with a semi-automatic handgun he had purchased earlier that day. He was killed by the police. The bodies of all three of his daughters were found dead in the cab of the truck, murdered earlier by their father.

Jessica Gonzales sued the town and the police. She picked a very difficult legal theory for her suit. She filed a lawsuit in federal court, arguing that, by failing to enforce the restraining order, the police had violated her due process rights under the 14th Amendment to the U.S. Constitution. That theory proved to be her undoing.

The 14th Amendment provides that a state shall not "deprive any person of life, liberty or property without due process of law." There are two kinds of due process under the 14th Amendment, procedural and substantive. Procedural due process deals with fairness issues in the procedures themselves, such as the adequacy of the hearing process, of notice requirements and of the opportunity to be heard. Substantive due process, on the other hand, has been described by distinguished constitutional scholar Professor Erwin Chemerinsky as asking "whether the government has an adequate reason for taking away a person's life, liberty or property."

To me, Jessica Gonzales was in a bind with this distinction. She really had no complaint that she was not given the right to be heard in the enforcement of the restraining order or that somehow the process by which the police came to their decisions was unfair. What she was really complaining about was that the police arbitrarily and for no good reason refused to enforce the restraining order in her case. To me, that raises substantive complaints, not procedural ones.

So why didn't Gonzales go forward with a substantive due process claim instead of a procedural one? She tried, but federal precedent was against her on that point. In 1989 the U.S. Supreme Court held that substantive due process does not require states to protect its citizens from the conduct of private third parties. So Gonzales was left only with a procedural due process argument in this case — too much of a square peg in a round hole.

A 7-2 court, in a rare majority opinion authored by Justice Antonin Scalia, rejected Gonzales' argument. But Scalia didn't dwell on the distinctions between procedural and substantive due process as the Iower courts in this case had done. He backed up a step and rejected the notion that Gonzales had been deprived of any kind of property the 14th Amendment protects. Her claim of a property interest in the enforcement of a restraining order fell on that basis.

Yet, because I teach torts — the field of law dealing with personal injuries — I was intrigued that at oral argument several of the justices asked whether Gonzales should have filed a tort lawsuit in state court instead of trying her difficult federal procedural due process argument. Even though cities and police often have immunity against such claims unless the conduct involved is willful, I think Gonzales might have been better off in state court.

There is a tort doctrine called the public duty rule, which in shorthand means "duty to all, duty to none." In other words, when a duty is imposed to provide care to the public at large, no single individual can claim a breach of that duty. This rule is an offshoot of sovereign immunity, and it would have hurt, not helped, Gonzales' state tort claim.

But there is a "special duty" exception to this rule. If an individual can show a special relationship to the city officials involved, then a tort claim may be allowed. To prove that special relationship, a person must prove the city assumed an affirmative duty to act on behalf of the injured party, knew that failure to do so would create harm, had direct contact with the injured party and the injured person relied on the city's undertaking.

Gonzales could have used the mandatory language in Colorado's domestic restraining order statute to boost this point. Justice John Paul Stevens suggested some of this in his dissent, and he chided the majority for not letting the Colorado courts decide this point of Colorado law.

I think Jessica Gonzales deserves a remedy. But as Justice Stephen Breyer said in oral argument, there seemed to be a "misfit between the remedy (sought) and the harm that was done."

Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.

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