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July 15, 2005

Press Contact:
Kirston Fortune, UT Law Communications, (512) 471.7330 or (512) 825-9525.

Buel: For battered women, a chilling court ruling

By Sarah Buel
Published Friday, July 15, 2005, in The Austin American-Statesman
Reprinted with the author's permission.

Photo of Professor Sarah Buel
Professor Sarah Buel
Photo Credit: Wyatt McSpadden

The U.S. Supreme Court recently issued an imprudent and erroneous ruling that says police are not required to enforce protective orders, even if state law says they must. As an advocate and prosecutor in the courts of six states for the past 28 years — and as a domestic violence survivor — I was particularly disillusioned.

For decades, we have worked to improve legal remedies for domestic abuse victims, starting, in the late 1970s, with promoting civil protective orders, admonishing batterers to stop their violence and prompting police investigations and arrests for violations. Widespread police under-enforcement of these orders resulted in 19 states, including Texas, passing laws in the 1980s and '90s mandating that police arrest batterers for violating protective orders.

The high court's decision gives abuse victims a contrary message; we chastise them for not seeking help when threatened, yet appear to be saying that calls to police for help might not be answered. Jessica Gonzales, the plaintiff in Castle Rock v. Gonzales, did exactly what the court advised her to do. When her estranged husband kidnapped their three daughters — in violation of a protective order — she called the Castle Rock, Colo., police. Over eight hours, she called six times, including numerous calls after she had spoken with her husband and established that he had the children.

Repeatedly, she pleaded with police to enforce her protective order and rescue her daughters, reminding them of the father's history of extreme violence and mental instability. Each time, police told her to call back later. The father finally appeared at the police station at 3:20 a.m., where he was shot and killed after opening fire on officers. The bullet-ridden bodies of the three girls, ages 7, 9 and 10, were found in his pickup truck.

The Supreme Court's decision in this case is riddled with Orwellian doublespeak. Although Colorado requires that a police officer "shall use every reasonable means to enforce" a protective order, the court decided that this language permits officer discretion.

The absurdity of this interpretation was voiced by Justice John Paul Stevens (joined by Justice Ruth Bader Ginsburg) in his eloquent dissent. Stevens wrote that the obvious goal of mandating specific action was to ensure that officers could not choose inaction. He 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.)

Four battered women are killed every day in the United States, one every four days in Texas. Thousands more are maimed or severely injured. If foreign terrorists were killing four Americans per day, it's likely that the F-16s would be fired up and troops readied. But apparently if the terrorist is a current or former partner, the Supreme Court warrants discretionary assistance.

Sadly, some police officers will take this decision as a green light to ignore battered women's pleas for help. I left my abusive husband in 1977, when protective orders were nonexistent and police told me to be a more patient wife. The good news is that most police officers take seriously their job of protecting abuse victims and enforcing the law. But we must hold responsible those cops who don't.

How can we better protect battered women? Maybe we need a Web site to post the names of unresponsive officers. Not fair, you say? But what can we do if the court won't protect us? What response, then, for the Castle Rock cop who, after Jessica Gonzales' sixth call for help, still took no action? His response was to go to dinner.

Certainly I cannot endorse the court majority's intellectually dishonest approach of pretending to locate legal justification when protection of municipal coffers would seem to be the guiding force.

Yes, survivors and advocates are already discussing in earnest the mobilization of state legislatures to push for laws that unequivocally hold police responsible for enforcing protective orders. And because so many lives depend on us, we would not even consider the option of doing nothing.

Buel is a clinical professor of law at UT.

Related Link:
Professor Sarah Buel's Web Page: http://www.utexas.edu/law/faculty/buelsm/
Commentary in The Los Angeles Times: Sarah Buel's "Battered Women Betrayed": http://www.utexas.edu/law/news/2005/070505_buel.html