Kevins:
Here is a copy of an article from the NY Times
you might want to show your girlfriend:
Justices Rule Police Do Not Have a Constitutional Duty to Protect Someone - New York
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Justices Rule Police Do Not Have a Constitutional Duty to Protect Someone
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By LINDA GREENHOUSE
Published: June 28, 2005
WASHINGTON, June 27 - The Supreme Court ruled on Monday that the police did not
have a constitutional duty to protect a person from harm, even a woman who had
obtained a court-issued protective order against a violent husband making an
arrest mandatory for a violation.
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Complete Coverage: Monday's Supreme Court Decisions
Forum: Issues Before the Supreme Court The decision, with an opinion by Justice
Antonin Scalia and dissents from Justices John Paul Stevens and Ruth Bader
Ginsburg, overturned a ruling by a federal appeals court in Colorado. The
appeals court had permitted a lawsuit to proceed against a Colorado town, Castle
Rock, for the failure of the police to respond to a woman's pleas for help after
her estranged husband violated a protective order by kidnapping their three
young daughters, whom he eventually killed.
For hours on the night of June 22, 1999, Jessica Gonzales tried to get the
Castle Rock police to find and arrest her estranged husband, Simon Gonzales, who
was under a court order to stay 100 yards away from the house. He had taken the
children, ages 7, 9 and 10, as they played outside, and he later called his wife
to tell her that he had the girls at an amusement park in Denver.
Ms. Gonzales conveyed the information to the police, but they failed to act
before Mr. Gonzales arrived at the police station hours later, firing a gun,
with the bodies of the girls in the back of his truck. The police killed him at
the scene.
The theory of the lawsuit Ms. Gonzales filed in federal district court in Denver
was that Colorado law had given her an enforceable right to protection by
instructing the police, on the court order, that "you shall arrest" or issue a
warrant for the arrest of a violator. She argued that the order gave her a
"property interest" within the meaning of the 14th Amendment's due process
guarantee, which prohibits the deprivation of property without due process.
The district court and a panel of the United States Court of Appeals for the
10th Circuit dismissed the suit, but the full appeals court reinstated it and
the town appealed. The Supreme Court's precedents made the appellate ruling a
challenging one for Ms. Gonzales and her lawyers to sustain.
A 1989 decision, DeShaney v. Winnebago County, held that the failure by county
social service workers to protect a young boy from a beating by his father did
not breach any substantive constitutional duty. By framing her case as one of
process rather than substance, Ms. Gonzales and her lawyers hoped to find a way
around that precedent.
But the majority on Monday saw little difference between the earlier case and
this one, Castle Rock v. Gonzales, No. 04-278. Ms. Gonzales did not have a
"property interest" in enforcing the restraining order, Justice Scalia said,
adding that "such a right would not, of course, resemble any traditional
conception of property."
Although the protective order did mandate an arrest, or an arrest warrant, in so
many words, Justice Scalia said, "a well-established tradition of police
discretion has long coexisted with apparently mandatory arrest statutes."
But Justices Stevens and Ginsburg, in their dissenting opinion, said "it is
clear that the elimination of police discretion was integral to Colorado and its
fellow states' solution to the problem of underenforcement in domestic violence
cases." Colorado was one of two dozen states that, in response to increased
attention to the problem of domestic violence during the 1990's, made arrest
mandatory for violating protective orders.
"The court fails to come to terms with the wave of domestic violence statutes
that provides the crucial context for understanding Colorado's law," the
dissenting justices said.
Organizations concerned with domestic violence had watched the case closely and
expressed disappointment at the outcome. Fernando LaGuarda, counsel for the
National Network to End Domestic Violence, said in a statement that Congress and
the states should now act to give greater protection.
In another ruling on Monday, the court rebuked the United States Court of
Appeals for the Sixth Circuit, in Cincinnati, for having reopened a death
penalty appeal, on the basis of newly discovered evidence, after the ruling had
become final.
The 5-to-4 decision, Bell v. Thompson, No. 04-514, came in response to an appeal
by the State of Tennessee after the Sixth Circuit removed a convicted murderer,
Gregory Thompson, from the state's death row.
After his conviction and the failure of his appeals in state court, Mr.
Thompson, with new lawyers, had gone to federal district court seeking a writ of
habeas corpus on the ground that his initial lawyers had been constitutionally
inadequate. The new lawyers obtained a consultation with a psychologist, who
diagnosed Mr. Thompson as schizophrenic.
But the psychologist's report was not included in the file of the habeas corpus
petition in district court, which denied the petition. It was not until the
Sixth Circuit and then the Supreme Court had also denied his petition, making
the case final, that the Sixth Circuit reopened the case, finding that the
report was crucial evidence that should have been considered.
In overturning that ruling in an opinion by Justice Anthony M. Kennedy, the
majority said the appeals court had abused its discretion in an "extraordinary
departure from standard appellate procedures." Chief Justice William H.
Rehnquist and Justices Scalia, Clarence Thomas and Sandra Day O'Connor joined
the opinion.
In a dissenting opinion, Justice Stephen G. Breyer said the majority had relied
on rules to the exclusion of justice. Judges need a "degree of discretion,
thereby providing oil for the rule-based gears," he said. Justices Stevens,
Ginsburg and David H. Souter joined the dissent.
