By Sarah Buel
Published Monday July 4, 2005, in The Los Angeles Times.
Reprinted with the author's permission.
Last week, the Supreme Court ruled that police are not required to enforce restraining orders, even if state law mandates that they do so.
It was a bizarre decision, and a terribly misguided one. Having spent the last 28 years as an advocate and prosecutor in the courts of six states — and having spent three years before that as a battered wife — I was particularly disappointed.
For one thing, the ruling threatens to sabotage many hard-won gains. Principal among these was the advent, in the late 1970s, of civil restraining orders, warning batterers to cease their abuse and triggering police investigation and arrest for violations. In response to widespread police under-enforcement of these orders in the early days, 19 states — including Colorado, where this case originated — passed laws in the 1980s and 1990s mandating that police arrest batterers if restraining orders were violated.
The high court's decision also sends mixed messages to abuse victims, who have often been chastised for not seeking the help of the state when they feel threatened.
But in fact, the plaintiff in this case, Jessica Gonzales, did exactly what she was supposed to. As soon as her estranged husband absconded with their three daughters — in violation of a court's restraining order — she called the Castle Rock, Colo., police. She called six times over an eight-hour period — including numerous calls after she had reached her husband on his cellphone and confirmed that he had the children with him.
She repeatedly begged the police to enforce the restraining order and retrieve her daughters, citing the father's extremely violent and unstable history — to no avail. Over and over again, she was told to call back later. At 3:20 a.m., the father appeared at the police station, where he opened fire on officers and was shot and killed. The dead bodies of the three girls, ages 7, 9 and 10, were found in the back of his pickup.
What's stunning about the Supreme Court's decision is its reliance on Orwellian doublespeak. Even though Colorado specifically mandates that a police officer "shall use every reasonable means to enforce" a restraining order, the court concluded that the legislative intent of the Colorado law was actually to permit officer discretion.
That's ridiculous. As Justice John Paul Stevens (joined by Justice Ruth Bader Ginsburg) eloquently argued in his dissent, the undisputed goal of requiring specific action was to relieve officers of the option to choose inaction. Stevens noted that "the crucial point is that, under the statute, the police were required to provide enforcement; they lacked the discretion to do nothing" (original emphasis).
The court's majority opinion is as illogical as it is dangerous in suggesting that Gonzales should have filed a contempt-of-court action against her estranged husband.
This suggestion bespeaks profound ignorance of the potential — and here, fulfilled — violence that is an ever-present threat in such cases. Most "intimate partner" crime occurs when courts are closed — which is precisely the reason for enlisting the police. Gonzales' husband kidnapped their daughters at 5 p.m. and murdered them about 1 a.m. Because courts are generally open 9 to 5, a contempt order would appear to have offered a Pyrrhic victory at best.
The Justice Department reports that each day in the U.S., four women are murdered by their spouses or partners, and thousands more are maimed or severely injured. If foreign terrorists were killing four Americans per day, the F-16s would have long since been fired up and troops readied for battle. But when the terrorist is a current or former partner, the high court offers no assistance.
The unavoidable result of this decision is that cowardly cops will once again feel empowered to ignore battered women's pleas for help. When I left my abusive husband in 1977, domestic violence restraining orders were nonexistent and the police repeatedly counseled me to be a more patient wife. Today, that mind-set has begun to change. Most police officers are now aware of the dangers women can face in their homes, and take seriously their job of enforcing the law. But those cops who refuse to do so must be held responsible.
How can we begin to take matters into our own hands? Perhaps we need a website where women could post the names of unresponsive officers. Unfair you think? But what else can we do if the court won't stand up for us? How else can we sanction the Castle Rock officer who, on Jessica Gonzales' sixth plea for help, still refused to investigate? Instead, he went to dinner.
Professor Sarah Buel's Web Page: http://www.utexas.edu/law/faculty/buelsm/
Commentary in The Austin American-Statesman: Sarah Buel's "For battered women, a chilling court ruling": http://www.utexas.edu/law/news/2005/071505_buel.html