Advocates defend restraining orders
Court rejected police liability
By Jon Sarche, Associated Press
Boston Globe
June 29, 2005

DENVER -- Victims' advocates scrambled to reassure the public that restraining orders are still effective for preventing domestic violence, despite a US Supreme Court ruling that police cannot be sued over the way they enforce them.

The 7-to-2 ruling Monday ended a lawsuit by a Colorado woman who contended that Castle Rock police did not do enough to prevent her estranged husband from killing their three young daughters. The ruling said Jessica Gonzales did not have a constitutional right to police enforcement of the court order against her husband.

''The second tragedy in this case could very well be that victims of domestic violence will read this opinion to mean that protection orders are not worth the paper they're printed on, and that impression would be false," said Richard Smith, a Washington lawyer who filed a brief in support of Gonzales.

Mary R. Lauby, executive director of Jane Doe Inc., the Massachusetts Coalition Against Sexual Assault and Domestic Violence, said the organization ''is extremely disappointed with the Supreme Court's decision that victims do not have a federal constitutional right to due process in enforcement of protective orders." She said police still have a responsibility to enforce such orders.

''We call upon our allies in law enforcement in Massachusetts to continue, and strengthen, their efforts to enforce protective orders," Lauby said. ''This case shows the real dangers victims and their families face when protective orders are not enforced."

City governments feared that a ruling in Gonzales' favor could open them to a slew of lawsuits. Judges in Colorado issued more than 14,000 restraining orders in fiscal 2004.

''The potential for liability was just completely out of this world," said Brad Bailey, an assistant city attorney in Littleton, Colo. who filed a brief in support of the Castle Rock police department.

On ABC's ''Good Morning America," Gonzales said now that the Supreme Court has ruled, she is moving on.

''I'm going to continue my advocacy for other victims," she said. ''I believe that there is a lot to be done . . . And continuing to try to find some resolution for why my three children were murdered."

Gonzales sued the Castle Rock Police Department, claiming officers ignored pleas to find her husband after he took the three girls, ages 10, 9, and 7, from the front yard of her home in June 1999 in violation of a restraining order. Hours later, Simon Gonzales died in a gunfight with officers outside a police station. The bodies of the girls were in his truck.

Gonzales argued that she was entitled to sue based on her rights under the 14th Amendment to the US Constitution and under a Colorado law that says officers must use ''every reasonable means" to enforce a restraining order.

She contended that her restraining order should be considered property under the 14th Amendment and that it was taken from her without due process when police failed to enforce it.

A federal judge in Denver dismissed her lawsuit, but the US Court of Appeals for the 10th Circuit revived it, saying the restraining order was a government benefit that should be treated like any other property.

But Justice Antonin Scalia, writing for the high court's majority, said Colorado's law does not entitle people who receive protective orders to police enforcement.
Smith, Gonzales' attorney, called the ruling ''an open invitation to states to look at their statutes and enhance them and to provide the kind of protections that victims need." He said lawmakers should ensure that police departments can be sued in state courts for failure to enforce protective orders.