Here's another SCOTUS case to overturn, edgehopper

[trinityvixen]

No, seriously, how fuck can anyone defend Castle Rock v Gonzales? Wow, 7-to-2, too. Colorado, you fucking suck.

I was all set to rant a little about Rush Limbaugh and his racist comments about Colin Powell until I read this. Now I'm just sorta flabbergasted to the point of horrified silence. I hope this woman wins. Goddamn.

(Limbaugh's commentary, it goes without saying, is ignorant and inflammatory. But there is something fucking wrong with his listeners not being revolted by his claims that Powell is a traitor who "owes" the Republicans something. You know, for rescuing a brother's ass and making him general n'shit. 'Cause he wouldn't have been able to do that without Republicans. Do they not know that his honor and dignity was most tarnished by the Republican President who borrowed it to sell a phony war? Probably not. The idiots who listen to Limbaugh can't remember that Obama can't be a secret muslim if he spent twenty years listening to a radical Christian pastor...)

Comments

[shell524.livejournal.com]

Wow. Nice. I guess the Colorado police can rest easy at night knowing that they have no responsibility to the citizenry whatsoever.

Regarding restraining orders... why would the Colorado court system even offer them as an option if they aren't requiring anyone to ENFORCE them?

[chuckro.livejournal.com]

I must be misunderstanding something, because it seems like the Supreme Court ruled that you didn't need to enforce a restraining order (or, apparently, respond to a kidnapping charge) because there was no law specifically stating that you had to do so.

So...the law which creates "restraining orders" as a legal concept doesn't require the police to enforce them?

I wonder how many other laws are like that. "Well, we should arrest you for murder, but the law doesn't say we have to enforce it, and I'm kinda tired and wanna go play GTA, so you're free to go."

[edgehopper.livejournal.com]

The case is actually a lot narrower than you think. The question isn't "Do states have to enforce their restraining orders," but "Is a failure to enforce a restraining order a due process violation under the 14th amendment."

The 14th amendment gives rise to 2 types of due process claims. One, "substantive due process", is directed at cases where the state is violating some sort of basic right to life, liberty, or property; it doesn't obligate the state to protect one citizen from another (which would, if that were the case, federalize tort law.) That wasn't at issue in Castle Rock

The issue in Castle Rock was one of procedural due process, which is a rule that states can't deny a person a benefit without appropriate procedural safeguards. Scalia's argument is essentially that since an arrest is subject to police and prosecutorial discretion, it's not a "benefit" that can't be denied under the 14th amendment. It's a narrow holding--Colorado could have amended its mandatory arrest statute to create an entitlement, allowing police to be held liable for failing to enforce a restraining order.

This doesn't mean that police are completely immune from liability for this kind of screw up--they're still subject to state tort claims, for example (though those have to meet the tough bar of police immunity). It just means that you don't have a constitutional right to the state's enforcement of a restraining order--just like you don't have a constitutional right to have the state arrest and prosecute, well, anyone.

[edgehopper.livejournal.com]

It's not that the state doesn't have to enforce restraining orders, but that they haven't violated the U.S. Constitution by failing to do so. An important, but hard to notice, distinction.

[droidguy1119.livejournal.com]

This is a particularly shitty and conflicting case. I feel several ways about it.

Obviously, it's horrible that the guy ended up killing the daughters, although I have a hard time arguing with the ruling. As unfortunate as it is, the job of the justices in the court case is to see if something was violated based on the existing standards of the law, and it looks like it wasn't. Maybe I'm not following, but this suggests not that the court was wrong to rule against Gonzales, but that Colorado law, and the law surrounding restraining orders needs to be heavily, heavily revised, and in a hurry. I know if I had a restraining order against someone and it was being violated, then I would certainly want the police to do something about it.

It also seems like a bit of a pick your battles case. Again, maybe I'm not following it correctly, but it seems she had a domestic violence restraining order against him. He certainly kidnapped the kids, and he was apparently violating his visiting hours, AND he already violated his order when he came and got them, but at the time she called the police, he was not posing a threat to HER personal safety. Maybe she got the order to protect her kids from him, but that doesn't seem to be who it was designed to protect. I wonder if perhaps she would have had a better shot at getting some sort of justice served if a bigger deal had been made about her kids being kidnapped. Certainly this is a violation of their personal safety and her rights regardless of whether she has a restraining order against him or not.

The police in Colorado clearly suck, though. Regardless of all of the technicalities they seem to have gotten away on, there doesn't seem to be any reason at all they chose not to act, and they could have saved lives. If police aren't serving and protecting, then what's the point? And it's infuriating that the law does not have a clear-cut, X-marks-the-spot answer in a case where an abusive asshole kidnaps his three daughters and murders them when his ex-wife calls the police on him and has a restraining order against him.

[trinityvixen.livejournal.com]

That's what I'm puzzling at. If there's no legal impetus to enforce them, what's the point of getting a restraining order? You could, theoretically get an abusive ex hauled off to jail if he violates the demarcation zone, but your chances are entirely dependent on the moods and whims of the police? What's even the point?

[trinityvixen.livejournal.com]

I wonder how many other laws are like that. "Well, we should arrest you for murder, but the law doesn't say we have to enforce it, and I'm kinda tired and wanna go play GTA, so you're free to go."

Some laws are like that. I mean, people don't often use arrest where warnings will do (usually on younger criminals committing acts of petty theft, etc.). But it seems to me that once the idea of violence--with intent--is introduced, there has to be a legal requirement that the cops intervene. Apparently not.

[trinityvixen.livejournal.com]

It just means that you don't have a constitutional right to the state's enforcement of a restraining order--just like you don't have a constitutional right to have the state arrest and prosecute, well, anyone.

Which, again, begs the question: what is the fucking point of getting a restraining order? Are we just supposed to assume that the threat of a potential victim having one against a potential stalker/abuser/killer should be enough to discourage that person from committing the crime? People who are violent (and, like the man in this case, possibly psychotic) aren't likely to stop and think about consequences before they act. The threat of arrest, therefore, is a very minor deterrent. The certain knowledge of arrest upon violation of a restraining order would be a better one.

[trinityvixen.livejournal.com]

I guess we can't advocate judicial activism, but if ever there were a case where you'd say SCOTUS should just kill all of Colorado for this, hey, this is it.

The problem here as I see it is the marginalization of "domestic violence." There's such a high bar for that. Abuse comes in all forms, and physical abusers are just as likely to threaten livelihood or even their own children to hurt their victims. The fact that you try to argue that one sort of restraining order wouldn't cover the kidnapping is pointless--it is still part of his campaign to terrorize his wife. There's also the fact that he, you know, kidnapped the girls.

[droidguy1119.livejournal.com]

Well, I think that just means I'm uninformed about the varying levels of domestic violence (I'd say I was going off the "violence", which to me suggests physical altercations, as opposed to the broader "abuse"), but that would also fall under the need to revise laws concerning the restraining order. It would be tricky to legally define how much is covered by "terrorizing" in a domestic abuse restraining order, but I suppose most of it could be legally considered harassment.

However, I would also say that based on how deranged he clearly was, I doubt he was in that kind of mindframe. A regular, run-of-the-mill jackass would probably have taken the daughters on the wrong day just to piss her off, but this guy was obviously just crazy. Which, really, poses another loophole for the Colorado police to jump through even if the restraining order law was changed. It seems like the police should respond since the guy is a credible threat, but terming him a credible threat (before he had acted) seems to be flawed because then you have trouble with people who have yet to demonstrate a pattern of violence or craziness.

Thinking about it now, it seems clear that this kind of thing is why the court ruled the way it did, especially the two dissenters. It all reads "this is a big can of worms we don't want to open".

[edgehopper.livejournal.com]

Yes, I'd agree that Colorado needs a stricter mandatory arrest rule. The point of the case, though, is that there isn't a federal right to have a guy arrested for breaking a restraining order. There may be a state right, and the state may have an obligation under other laws, but there's no federal right.

If you look at the dissent, all 9 justices agree on that basic point, the question is really only over whether Colorado law, as interpreted by its highest court, creates a cognizable property right. That question is a bit hypertechnical, and the majority and dissent get bogged down over the question of deference to circuit courts on issues of state law, and over the effect of Colorado's interpretation of its own law on the federal right. I.e., it's a big mess. But not the Supreme Court's fault--it's Colorado's.

It's interesting to note that of the 3 opinions, Scalia's majority opinion actually seems to be the moderate, narrow one; Souter's concurrence actually pushes for a broader holding than Scalia's opinion.

While I agree with you on the basic principle, the place to direct ire is at the Colorado legislature, not the Supreme Court. And while I don't particularly care what the IACHR does with the case, I'd have hoped they'd stay out of American legal disputes when they primarily involve issues of separation of powers unique to the American legal system.

[edgehopper.livejournal.com]

I wonder how many other laws are like that. "Well, we should arrest you for murder, but the law doesn't say we have to enforce it, and I'm kinda tired and wanna go play GTA, so you're free to go."

It's actually a basic principle of American law--prosecutorial discretion. Prosecutors can always choose not to prosecute, and as far as I know there's no way to hold a prosecutor liable for choosing not to prosecute.

[chuckro.livejournal.com]

There's no penalty for "negligence"? This seemed like a fairly clear-cut case of "shit's going down, even if you can't tell how bad it is", and they apparently did nothing. What are the checks on the police doing their duty? Is it just the possibility of the police chief/comissioner/mayor yelling at them?

[edgehopper.livejournal.com]

Nope. Police have qualified immunity short of gross negligence, and that's a good thing. See this article, on the subject.

I'm much happier leaving it up to police discretion whether to arrest--do you want the police hauling everyone off to jail for petty theft, minor unarmed assaults, etc.? Even in the domestic violence situation, there are cases where a vindictive spouse will invite the other person over, then call the police to enforce a restraining order and arrest the other party. Better to give the police some amount of discretion, and use other means than civil lawsuits to force them to do their jobs.

[cbreakr.livejournal.com]

If a restraining order doesn't obligate police action then what exactly is a restraining order? What place does it have in the realm of legal agreements? Could she instead sue the department for the equivalent of a breach of contract? Was the problem in this case the specific kind of suit that was brought against the department? How is it that this isn't a violation of life, liberty, and property (depending on how you want to view child custody in that spectrum, in which it clearly resides in spirit)?

[edgehopper.livejournal.com]

It does obligate police action--but it's not a right or entitlement of the person who gets the restraining order. The police obligation is, as far as the law is concerned, owed to the government. The dissent followed a reasoning somewhat similar to yours, analogizing to a contract for protection with a private security force--but there are a number of problems with that analogy, starting with the fact that the private security force doesn't have the power to make arrests.

[chuckro.livejournal.com]

I realize that this is a seething morass of legalese, but it seems to me that the rules lawyers are running the asylum here. If the restraining order, issued by the court, specifically says someone violating it will be arrested, but the cops have the choice not to do so, then either the court or the police are failing in their duty to the public, and there should be reprecussions for that. Even if they only consist of changing the language on restraining orders to "Anyone violating this order might be arrested if the police deem it necessary".

[chuckro.livejournal.com]

The police obligation is, as far as the law is concerned, owed to the government.

Then how does the government enforce that obligation, preferably on behalf of citizens who have been harmed by lack of enforcement?

[edgehopper.livejournal.com]

Heh--I wonder if Gonzales could have sued the state on a false advertising theory?

[edgehopper.livejournal.com]

Disciplinary action up to and including termination.

[chuckro.livejournal.com]

That'd be funny if it worked.

I think my real issue with this is that I think the police, when informed of a crime in progress, should have some obligation to act, and citizens harmed by that failure to act should have some sort of means of recovery. I realize that this needs to be balanced with protection for the police from being sued by every Tom, Dick and Shyster who thinks they're an easy mark. But it just seems wrong that a series of phone calls of "Crime! Being committed! Right now!" can be waved away without reprecussions.

That's much more of an emotional argument than a legal one, I realize, but this whole situation makes me identify more with the victim, given that I've been ignored and screwed over by beauracracy before.

[shell524.livejournal.com]

I would think that the presence of the restraining order would be evidence of a demonstrated pattern of violence or craziness, given how difficult I keep hearing it is to obtain one in most cases.

[droidguy1119.livejournal.com]

Yes, what I meant was, if you decide to identify a restraining order as a "pattern of violence or craziness" and deem that worthy of police response, you're going to have problems with people who don't get help because previously unabusive people have become abusive for the first time, but the police didn't feel there was any history upon which to act.

[wellgull.livejournal.com]

I would also say that based on how deranged he clearly was, I doubt he was in that kind of mindframe.

Irrational people's behavior is surprisingly rational.
What I mean by that is, even if he was totally looney tunes, that doesn't mean that he *wouldn't* kill the kids as a way of punishing the wife, or out of some belief that if he couldn't have them, no one should. And that could easily be part of a learned-if-subconscious tendency to act out in order to get his way; I've read a fair amount of things suggesting that people can learn irrational behavior because it is an effective tool to achieve rational ends, even when they don't realize how their actions are structured to benefit them and don't believe themselves to be in control of their actions.