On Monday the Court will hear oral arguments in Town of Castle Rock v. Gonzales. It's a hearbreaking case.
Ms. Gonzales obtained a restraining order against her mentally and physically abusive husband. Her husband violated the restraining order and went to her home while she was at work. Mr. Gonzales kidnapped her children.
Over the course of several hours, Ms. Gonzales called the police. They blew her off. Later that night - and several hours after Ms. Gonzales begged the police to help -- Mr. Gonzales murdered his three children. Ms. Gonzales sued the police and city of Castle Rock under section 1983. An en banc panel of the Tenth Circuit Court of Appeals allowed her claim to go foward. City of Casle Rock v. Gonzales (CA10).
But what about DeShaney? In DeShaney, the Court held that private citizens did not have a substantive due process right to protection from private violence (there are two exceptions, but they do not apply here). In DeShaney a social worker removed a child from an abusive home and then returned the child to the home, where he suffered more abuse and ultimately was brain-damaged. DeShaney is a miserable case that disregards clear principles of tort law.
The Court often says that section 1983 is to be read against the background of general principles of tort liability. Under general principles of tort there is no duty to act. But once you remove someone from a dangerous position, you may not return them to that dangerous position. To paraphrase Judge Posner -- You can't rescue someone from a lion's den, return him to the lions, and then pretend it's not you fault when the lions eat him. But Rehnquist, always more concerned with state autonomy than child welfare, led a 5-4 Court in disregarding this clear principle.
But DeShaney is the law. To get around DeShaney, the plaintiff's lawyers argued that it was a procedural due process case.
They argued that Ms. Gonzales had a property interest in the restraining order, and that in not enforcing the order, the police deprived her of her procedural due process rights. If a person has a property interest in welfare payments, then the state must pay those benefits. Thus, is a person has a property interest in a restraining order, then the government must act according to the restraining order's terms. Ms. Gonzales' restraing order said that police should take all reasonable measures necessary to enforce the order.
Since the Court will look to state law to determine whether the plaintiff has a property interest, the plaintiffs have to establish that the state intended to create a property interest in a restraining order. The restraining order is unlike tenure or entitlement benefits, which we can think of as "vesting." A restraining order acts like an injunction. If a person violates a restraining order, just as if a person violates an injunction, he or she can be arrested. But there is no precedent that an injunction is is property. Even if there is a property interest in a restraining order, Gonzales faces problems.
To side with Gonzales the Court would have to hold that the government owes an affirmative duty to protect a parties' property interest. There isn't any precedent for this. Although the state can not arbitrarily deprive one of his welfare benefits, they are not required to ensure that I don't steal someone's welfare check from her mailbox. That is a distinction that will control Gonzales. Indeed, the Question Presented sets the tone disfavorably towards Gonzales.
Gonzales is a sad case, but it's a sure loser. Although I disagree with the rationale of DeShaney, there is no escaping that it applies here.
It's also worth nothing that the police aren't as heartless and they might appear in Gonzales. Every criminal lawyer reading this has had a case where a wife gets a restraining order yet still invites husband over. Husband visits wife, then they get into an argument, and wife calls the police, saying that husband is violating the restraining order. Husband says, "But she invited me over, and I have the phone records to prove it!" Although that doesn't matter legally, it does matter factually. Sometimes the police get fed up playing marital-therapist-with-a-gun.
I'm not saying the police should have ignored Gonzales' cries for help -- It seems she was very sincere. But I can understand why the police did not drop everything, given the nature of the restraining order game.
UPDATE: Counting heads, we see that four of the DeShaney five remain on the Court - Rehnquist, Stevens (yeah, I was surprised about that, too), O'Connor, and Kennedy. There's no question how Scalia and Thomas will vote. At most, two justices would defect. But Kennedy will not side against Castle Rock.
So even if Stevens and O'Connor switch, there will be a 5-4 majority. (Rehnquist will not let this case turn out otherwise, and no matter how sick he is, will participate). Though I doubt this case will be that close.