OK, a few pre-post warnings are in order here.

First, this post is long, but I'd really appreciate it if you read it. I am ranting, but it's very, very important ranting.

Second, this post contains facts that are sad and even sickening. If you're in a bad mood now, you'll be in a worse one by the end of it. If you need to, go away and come back, but please read it.


Supreme Court Language Tip #1: When a Supreme Court justice starts an opinion by talking about how bad someone is, it's usually a tipoff that the good guy's going to lose. The starting-with-the-talking-about-the-bad-guy thing is really saying, "Look, I don't like what happened here either, but I'm not going to give the point to the other guy."

Case in point comes early in Justice Scalia's majority opinion in Town of Castle Rock v. Gonzales. "The horrible facts of this case are contained in the complaint that respondent Jessica Gonzales filed in Federal District Court." Translation: "Jessica, baby, I'm about to sock it to you royally. But I don't want you to think I'm completely unsympathetic. I feel for you. After all, the case's full name lists the status of your children as 'deceased minors.' That means there's blood on the floor. And the system failed you. But, don't worry, we can fail you again. Watch!"

OK, here's the "horrible facts," as recited by Justice Scalia. Jessica Gonzales had a restraining order against her husband. This restraining order "commanded him 'not to molest or disturb the peace of [respondent] or of any child,' and to remain at least 100 yards from the family home at all times."

On the back of the form, there was a preprinted warning, which read as follows [bold and caps from the Supreme Court opinion]:

"WARNING":

"A KNOWING VIOLATION OF A RESTRAINING ORDER IS A CRIME ... . A VIOLATION WILL ALSO CONSTITUTE CONTEMPT OF COURT. YOU MAY BE ARRESTED WITHOUT NOTICE IF A LAW ENFORCEMENT OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT YOU HAVE KNOWINGLY VIOLATED THIS ORDER."

Then, there was a "NOTICE TO LAW ENFORCEMENT OFFICIALS":

"YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING ORDER. YOU SHALL ARREST, OR, IF AN ARREST WOULD BE IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK A WARRANT FOR THE ARREST OF THE RESTRAINED PERSON WHEN YOU HAVE INFORMATION AMOUNTING TO PROBABLE CAUSE THAT THE RESTRAINED PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE ANY PROVISION OF THIS ORDER AND THE RESTRAINED PERSON HAS BEEN PROPERLY SERVED WITH A COPY OF THIS ORDER OR HAS RECEIVED ACTUAL NOTICE OF THE EXISTENCE OF THIS ORDER."

Since we're dealing with law enforcement officers and their liability here, I'd like to slice and dice this notice to law enforcement officers a bit. Bear with me:

"YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING ORDER."

Many of us would read this as a fairly clear directive to enforce the restraining order. But, apparently, not the Supreme Court. So, I figured, what the hey, I'm probably a little rusty on my basic vocabulary. I mean, I've been so busy studying for the bar, it's completely possible the meaning of words like SHALL eludes me. So, I went to the Mirriam & Webster's dictionary online. Here's the definition:

1 archaic a : will have to : MUST b : will be able to : CAN
2 a -- used to express a command or exhortation b -- used in laws, regulations, or directives to express what is mandatory
3 a -- used to express what is inevitable or seems likely to happen in the future b -- used to express simple futurity
4 -- used to express determination intransitive senses, archaic : will go

OK, so, Jessica Gonzales has this protection order in hand, and let's say, being a nosy person, she reads the notice to law enforcement on the back. Because Jessica doesn't understand the meaning of the word "shall" (thus possibly qualifying her to be a Supreme Court justice), she goes home and reads in the dictionary that shall means...

"will have to": "Ah ha!" says Jessica. "If I tell the police my spouse is violating the protection order, they will have to enforce the order and arrest him."

"used to express a command or exhortation": "Oh, this is even better!" she says, feeling all warm and safe. "The Court is exhorting and commanding the officers to enforce my protection orders and keep me safe."

"used to express what is inevitable or seems likely to happen in the future": "Well, it's inevitable: I have an order from the court! It's the law! It has to be enforced. It seems likely in the future I will no longer be troubled by my ex-husband."

"used to express determination": "That represents the determination of the state to protect me and my children!"

Jessica, sadly, got a very cruel education in what the word "shall" meant on June 22, 1999, when her three daughters, who were playing in the front yard, went missing. She immediately suspected her ex-husband, and called the police. Two officers were dispatched, and she showed them a copy of her restraining order. She "requested that it be enforced and the three children be returned to her immediately. [The officers] stated that there was nothing they could do about the TRO and suggested that [Jessica] call the Police Department again if the three children did not return home by 10:00 P.M."

OK, let's all step back for a moment. First of all, let's think through this conversation.

Jessica: Right, my children are missing and I'd like them back.

Officer: Golly, y'know, I'd really like to help you, but, well, what am I supposed to do? I'm just with the police department, I'm no good at finding things out. And it might be that someone has 'em and wants 'em, and then if they won't return 'em, I can't do anything.

This sounds far-fetched, but it isn't. I know of a case where a woman couldn't get the police to help enforce her visitation orders because the magistrate hadn't signed his name, but rather used a stamp, to sign her orders. I'm not kidding.

Another thing that bothers me about this: Haven't I heard somewhere the most critical time in a missing persons case is the first twenty-four hours? OK, so, the police just abdicated the first two and a half.

An hour after this occurred with the police, Jessica talks to her husband on his cell phone and he tells her he has the children at an amusement park. Jessica calls the police and asks them to check for her husband, or his vehicle, or the children, or put out an APB. The police tell her to wait until 10:00.

Let's just imagine that conversation.

Dispatcher: Castle Rock Police Department.

Jessica: Hi, this is Jessica Gonzalez. Um, I talked to one of your officers about an hour ago, and I reported my children missing. I had this suspicion it was my husband, since I'm in a high-conflict divorce with him and I have a restraining order, which I'm holding here in my hand, and, well, it says you "shall" enforce it. Well, you told me to wait until ten and I was going to, but I just got a tip I thought you might be interested.

Dispatcher: You think we might, eh?

Jessica: Yeah, my husband called me and he said he has the kids. At this amusement park in Denver. And I was wondering if you could, like, do something about it, 'cause, like, it's orders of the court and that's, well, what you're supposed to do. I mean, a judge found he was dangerous enough to issue a protection order against. So, could you do me that favor?

Dispatcher: Well, look, lady, I'd love to help you out, but, y'know, that's pretty tough. I mean, your kids are missing, tough break. But, they could be with anyone.

Jessica: No, my husband has them. He called and told me.

Dispatcher: Well, y'know, Colorado's a big state. Lots of wide open spaces. Tall mountains. We can't go out on some wild goose chase.

Jessica [sick with frustration]: You don't have to! He's at an amusement park.

Dispatcher [sound in the background]: Look, it's a tough case, but, they're sure to turn up. You sure you didn't put 'em somewhere and forget about it? Maybe you should go look. Make a game of it. We do. If you don't find 'em by ten, call us back.

So, at 10:10 PM, Jessica called back, presumably to report that she had not found her children yet. The police told her to call back at midnight. (I mean, they were bound to turn up sometime.) They told her to wait for an officer. After forty minutes, she went to the police department, where she made a report. The officer who took it then went...out to dinner.

I'm not kidding.

Finally, at 3:20 AM, the police station and Jessica's husband were united. He pulled into the police station and opened fire with a semiautomatic handgun. (For the life of me, I can't imagine what his beef was with the PD; they seem to have been in his corner all along.) The police returned fire, and he was killed.

Sadly, they discovered the bodies of his three daughters in the backseat. He had murdered them.

Jessica brought suit against the Castle Rock Police Department. If there were any sense of justice in the world, she'd have ended up owning it. But, apparently, there's not.

Hers was, admittedly, an uphill battle from the start. In DeShaney v. Winnebago County Social Services Dept., 489 US 189 (1989), a county department of social services was sued. The "undeniably tragic" facts of DeShaney, as Chief Justice Rehnquist put it (remember Tip #1, people) were that the department had received multiple reports that Joshua DeShaney had been abused by his father; Joshua had been admitted to the hospital with multiple bruises and abrasions; and multiple other warning signs were present. Yet, the Department never removed Joshua from the home, and, in March of 1984, Joshua's father beat him so severely as to put him in a life-threatening coma. He didn't die, but will spend the rest of his life "confined to an institution for the profoundly retarded." Jessica's mother brought suit against the Department and claimed that the state, by failing to act, had denied Joshua of his due process of law and his right to be free from bodily injury. The Court basically said, "Well, the state doesn't have to protect you from private actors." (Even when it's their job, for heaven's sakes!)

OK, so with that background in mind, I guess it shouldn't have been much of a surprise when the Supreme Court on Monday said that Jessica Gonzales had no property interest in having her protection order enforced. (It was essential that this be proven if she was to succeed in her case.) Still, (a) the Supreme Court could have taken the opportunity to think if this really made sense; (b) they might have gotten rid of the abominable decision of DeShaney. Even without those things, it's worth looking at the opinion to see how much our courts and our system of government doesn't understand, and is thus unable to prevent, domestic violence.

One need look no further than this statement from Justice Scalia's decision. Here it is:

"The Court of Appeals concluded that this statutory provision--especially taken in conjunction with a statement from its legislative history,6 and with another statute restricting criminal and civil liability for officers making arrests7--established the Colorado Legislature's clear intent "to alter the fact that the police were not enforcing domestic abuse retraining orders," and thus its intent "that the recipient of a domestic abuse restraining order have an entitlement to its enforcement." 366 F. 3d, at 1108. Any other result, it said, "would render domestic abuse restraining orders utterly valueless." Id., at 1109.

" This last statement is sheer hyperbole. Whether or not respondent had a right to enforce the restraining order, it rendered certain otherwise lawful conduct by her husband both criminal and in contempt of court."

Nino, Nino, Nino. First of all, for a textualist, this is a remarkably tortured disquisition on what the legislature meant.

Beyond that, you don't get it. Not that any of us are terribly surprised -- failure to understand domestic violence in judges is endemic in our society -- but, dude, you're a Supreme Court justice. We coulda hoped. Allow me to educate you.

You're arguing that "[w]hether or not respondent had a right to enforce the restraining order, it rendered certain otherwise lawful conduct by her husband both criminal and in contempt of court."

OK, why would it render this conduct unlawful? Because he was dangerous. To whom? Well, Sunshine, it certainly wasn't the Pillsbury Doughboy...it was Jessica. THAT'S WHY SHE GOT THE RESTRAINING ORDER IN THE FIRST PLACE.

Now, could criminal charges have been filed against her husband for violating the restraining order? Sure. But wouldn't it have been better to just enforce them and, say, not cost the lives of three children? Doesn't she have, like, some sort of property interest in not having her children kidnapped? Or killed? (I know, revolutionary concept here. Drink lots of water and avoid high altitudes while I deal with these upper level concepts.)

Oh, and contempt of court. When I read your comment on that, to paraphrase Wayne's World, I laughed, I cried, I hurled. So would you, were you to visit Ottawa County, Ohio, where women file contempt of court motions that are pending two and a half years later without so much as a hearing, let alone a decision. Contempt of court is difficult to get and rarely enforced.

This was a pretty awful decision, Nino. Just like you devalued the life of Joshua DeShaney, you devalued the three lives of the Gonzales children and the loss their mother suffered. You also gave a "Good Housekeeping Seal of Approval" to law enforcement continuing to look the other way and saying, "Wow, that's messy. I'm going to stay out of it."

But, berate you though I do, you are fond of solving society's problems legislatively and not through the court. There's a great deal to be said for that. And, your decision here can be salved through the legislative process as well. Legislators could pass a law creating a right of action against those who don't enforce protection orders. Making police departments liable to those adversely affected by their inaction.

I plan to petition my legislators to redress this grievance, and I hope others will. Perhaps it's a good thing -- it'll get us talking about a huge problem.

I think the best way to conclude a discussion on this new case is to borrow a conclusion from an old case. Justice Harry Blackmun was one of three justices to dissent from the DeShaney decision, and his dissent was as moving and eloquent as anything I've ever read. Here are the last two paragraphs. They make as much sense now as they did then:

"Like the antebellum judges who denied relief to fugitive slaves, see id., at 119-121, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case [489 U.S. 189, 213] is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) ("We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort").

"Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles - so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" - that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve - but now are denied by this Court - the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. 1983 is meant to provide."

posted at 11:01 PM by Michael 0 comments