Failure to enforce domestic abuse restraining order does not state a constitutional claim

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Scott Lewis

In De Shaney v. Winnebago County Department of Social Services, 489 U. S. 189 (1989), the U. S. Supreme Court held that the State did not have a constitutional duty — absent a special relationship — to protect its citizens against deprivation of life, liberty or property committed by private third party actors.

The decision was based upon Fourteenth Amendment substantive due process grounds. The court specifically declined to address whether procedural due process would apply, since De Shaney raised the issue for the first time in his brief before the court. Id., at 195, n. 2.

In a case decided June 27, Town of Castle Rock v. Gonzales, 2005 WL 1499788, the Supreme Court reached the issue, and similarly ruled that a constitutional claim for "failure to protect" against non-State tortfeasors did not lie under procedural due process.

Acts of Abuse

The facts in Gonzales were as tragic as in De Shaney. Both cases involved a father committing acts of violence toward his child or children. In De Shaney the father beat and permanently injured his son; social workers, who were or should have been aware of the abuse, failed to intercede.

In Gonzales, the mother and her children obtained a domestic abuse restraining order against her husband, who ultimately ended up murdering all three children. The restraining order contained a clause mandating that law enforcement officers "shall arrest" or, if impractical, seek an arrest warrant in all cases in which officers had probable cause to believe the restraining order had been violated. Additionally, Colorado law contained similar mandatory arrest provisions regarding enforcement of restraining orders. Officers from the Castle Rock Police Department ignored the mother, Jessica Gonzales, despite her repeated pleas for help after her husband abducted the children.

Jessica Gonzales filed suit under § 1983, alleging an official policy or custom of the Town of Castle Rock to ignore or fail to enforce restraining orders and wanton disregard for her civil rights in violation of the Fourteenth Amendment Due Process Clause. Castle Rock moved to dismiss for failure to state a constitutional claim, and the federal district court dismissed her action.

The U.S. Court of Appeals for the Tenth Circuit affirmed as to substantive due process, but reversed on procedural due process grounds. On rehearing en banc, the court reaffirmed its procedural due process ruling, stating that the Gonzales had a "protected property interest in the enforcement of the terms of her restraining order" and that "the police never 'heard' nor seriously entertained her request to enforce and protect her interests in the restraining order." 366 F. 3d 1093, at 1101, 1117 (10th Cir. 2004).

No Property Interest

The United States Supreme Court reversed in a 7-2 decision. Justice Antonin Scalia, writing for the majority, first noted that a property interest under procedural due process must involve "a legitimate claim of entitlement." Further, the entitlement flows not from the Constitution, but "from an independent source such as state law." In the Gonzales case, the Court of Appeals had ruled that the mandatory arrest language of Colorado law created an entitlement. Scalia wrote that the Supreme Court owed no deference to the Court of Appeals' interpretation of Colorado state law since the issue was "ultimately one of federal constitutional law."

Whereas the Court of Appeals decided that the plain text of the law, its legislative history and another law granting good faith immunity from civil or criminal penalties to officers making an arrest rendered an arrest mandatory, Scalia disagreed. Instead, he opined, "[a] well established tradition of police discretion has long coexisted with apparently mandatory arrest statutes." He used the facts of the Gonzales case as an example where an officer must be afforded discretion because "the suspected violator is not actually present and his whereabouts are unknown."

Citing a Washington state case interpreting a similar mandatory arrest statute, Scalia pointed out that there is a big difference between a mandatory duty to arrest when the offender is on the scene and a mandatory duty to conduct a follow up investigation when the alleged abuser is not present. Scalia wondered: What is the nature of the so-called "entitlement?" If the offender cannot be found and the "entitlement" is to seek out an arrest warrant, as the Colorado law provided, then there is an entitlement "to nothing but procedure — which we have held inadequate even to support standing … much less can it be the basis for a property interest."

Assuming that enforcement of the restraining order was mandatory, an entitlement was not thereby created for a specific individual. That is, a tough domestic abuse law could serve the public end, yet not provide an actionable property interest to a private person. Scalia used the example of how prison regulations couched in mandatory terms did not create a liberty interest for individual prisoners because such regulations were not written solely to benefit the prisoners.

Finally, the court stated that even if some sort of entitlement to enforcement existed, such an entitlement would not create a property interest under the Due Process Clause. Put another way, the "benefit" conferred by enforcement was an indirect or incidental benefit flowing from the traditionally discretionary decision to arrest or not arrest based upon probable cause. In a footnote, Scalia drew a comparison to a prosecutor's discretion and observed that "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another."

The court concluded by noting that it would not address the liability of Castle Rock based on its alleged "custom or policy" of non-enforcement because no constitutional violation existed. However, the court did state that Colorado was free under state law to "create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented… ." In the final footnote of its decision, the majority also cited to several state cases from other jurisdictions where liability for failure to protect lay under state statutory or state common law.

What About Wisconsin?

Does the Gonzales decision affect Wisconsin? It does in the sense that a failure to enforce a restraining order or injunction under Wis. Stat. §§ 813.12 (domestic abuse), 813.122 (child abuse), or 813.125 (harassment) — which all contain the mandatory "shall arrest" language similar to the Colorado statute — does not state a cognizable federal constitutional claim.

Citing a 2004 Wisconsin Law Review article, among other authorities, dissenting Justices John Paul Stevens and Ruth Bader Ginsburg noted that many states (including Wisconsin) reacted to a 1984 study by the Minneapolis Police Department which demonstrated that arresting domestic batterers had a greater impact on reducing recidivism than the traditional police response of mediating the dispute or ordering the offender out of the house temporarily
. The dissent observed that "[t]he crisis of underenforcement had various causes, not least of which was the perception by police departments and police officers that domestic violence was a private, 'family' matter and that arrest was to be used as a last resort."

Accordingly, the dissenting justices wrote, "[t]he innovation of the domestic violence statutes was to make police enforcement, not 'more mandatory,' but simply mandatory. … [T]the crucial point is that, under the statute, the police were required to provide enforcement; they lacked the discretion to do nothing." (Emphasis in original.) In their view the mandatory arrest provision created an entitlement and property interest, "no less concrete and no less valuable than other government services, such as education." The minimal procedural safeguards (lacking in the Gonzales case) were that "the relevant state decisionmaker listen to the claimant and then apply the relevant criteria in reaching his decision." (Emphasis in original.) The dissenters denounced the "process" afforded to Mrs. Gonzales by the Castle Rock police as "nothing more than a 'sham or a pretense.'"

Town of Castle Rock v. Gonzales, 2005 WL 1499788