High court weighs police, restraining orders
Will decide if police may be sued for failure to enforce

The Associated Press


Updated: 4:50 p.m. ET Nov. 1, 2004

WASHINGTON - The Supreme Court agreed Monday to consider whether local governments can be sued for failing to enforce restraining orders, a case that could open the door to thousands of lawsuits.

At issue is whether the Constitution’s 14th Amendment obligates police to protect residents from violence when a local government issues a restraining order and promises its enforcement.

Jessica Gonzales of Castle Rock, Colo., obtained a restraining order to keep her estranged husband away from her three daughters, ages 10, 9 and 7. She contends police ignored multiple phone calls for help when Simon Gonzales took the daughters from the front yard of her home one night in 1999.

Eight hours later, Simon Gonzales showed up at the Castle Rock police station and started a gunfight with officers. He was killed; the girls were later found dead in his pickup truck.

Jessica Gonzales sued the city for $30 million, alleging a due process violation because Castle Rock did not enforce the restraining order. The 10th U.S. Circuit Court of Appeals agreed, noting that Castle Rock had a duty under state law to respond to her calls but instead routinely ignored her.

“According to Ms. Gonzales’ allegations, the police never engaged in a bona fide consideration of whether there was probable cause to enforce the restraining order,” the court stated. “Their response, in other words, was a sham.”

Castle Rock officials disagree, arguing in their appeal that the Supreme Court has never allowed lawsuits against public officials when their alleged gross negligence permits a child to be harmed by a parent. The Constitution only protects individuals against abuses by the government, not third parties, they say.

20 states call for enforcement
Nationwide, about 20 states have laws providing for the enforcement of restraining orders, making them vulnerable to lawsuits if Gonzales’ claim is upheld, according to the National League of Cities, which filed a friend-of-the-court brief in the case. In those states, thousands of protective orders are issued each year.

“The real danger here is that getting a court order somehow imposes upon law enforcement, whether it’s a sheriff’s office in a rural county or a police officer in a major city, an absolute duty to protect people from each other,” said Brad Bailey, an attorney representing the league.


“The only way to do that efficiently is to provide someone with a bodyguard at public expense, and that’s impossible to do,” he said.

As a result, police may be unduly distracted from their day-to-day jobs of promoting safety if they are constantly forced to second-guess their decisions for fear of a lawsuit, the group argues.

Initially, a federal judge dismissed the lawsuit against Castle Rock. But the Denver-based 10th Circuit sided with Gonzales on a 6-5 vote.

Colorado bars negligence claims
The mother’s lawyer, Brian Reichel of Broomfield, Colo., said police ignored his client’s calls for help over a five-hour span and could have prevented the deaths if they had enforced the restraining order.

Legal relief for police neglect is often available under state laws. But Colorado bars the negligence claim, leaving Gonzales without recourse to sue if the high court reverses the 10th Circuit decision. If suits like Gonzales’ are allowed to proceed, officers may still claim they made reasonable efforts to prevent harm.

Oral arguments in the case will be heard next year, with a decision expected by July.

The case is Town of Castle Rock v. Gonzales, 04-278.

© 2004 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.