Police serve as government’s front-line service providers for victims of domestic violence (Friday, Metzgar, and Walters 1991). While some law enforcement officers effectively respond to domestic violence (Younglove, Kerr, and Vitello 2002), other police have been slow to appropriately enforce restraining orders, make mandatory arrests, be sensitive to victims’ needs, and refer victims to social service agencies (Huisman, Martinez, and Wilson 2005). In an analysis of actual domestic violence calls for service, for example, victims perceived more domestic violence than the police reported (Harris et al. 2001), suggesting an increased need for police training and appropriate enforcement of existing domestic violence laws by police.
The tepid law enforcement response to family violence has led to the charge that police do not place a priority on domestic violence (Blackwell and Vaughn 2003). Some police continue to believe that domestic violence calls for service are for social workers to handle, not crime fighters (Sherman, Schmidt, and Rogan 1992). When empathetic police show sympathy toward victims at domestic violence scenes, many colleagues within the masculine police culture perceive this sensitivity to be a weakness (Adelman 2003). To the contrary, research shows that empathetic initial response by on-scene police at domestic violence incidents can lead to positive victim outcomes (Miller 2003). Moreover, when police refer victims to appropriate social service agencies, research indicates that law enforcement officers get a ‘‘broader understanding of [police] agency procedures and policies geared toward solving the social problem of family violence, as well as to understanding the general nature of family violence from a variety of perspectives’’ (Giacomazzi and Smithey 2001, pp. 118–119). Slow and inappropriate police response to domestic violence incidents, however, has resulted in police being held legally accountable through the courts via civil litigation.
Remedy for Violation of Federally Guaranteed Rights: Section 1983
The 1871 Civil Rights Act, also known as the 1871 Ku Klux Klan Act, has been codified into federal law as Title 42 of the United States Code, Section 1983 (del Carmen 1991). This federal law serves as a civil remedy for victims to recover monetary damages when their federally guaranteed rights are violated by defendants who are acting under color of law (Vaughn and Coomes 1995). Section 1983 was rarely used for the first one hundred years of its existence (Kappeler 2001). The statute did not have teeth until four legal developments occurred.
First, the U.S. Supreme Court ruled in a series of cases that officers acting outside the scope of their legitimate law enforcement authority could be considered to be officers acting under the ‘‘color of law’’; therefore, under this interpretation of the ‘‘color of law’’ element, officers acting in violation of the law could now be sued under Section 1983 if they acted pursuant to the power given to them by the state and used their state-sanctioned authority to violate victims’ federally guaranteed rights (Vaughn and Coomes 1995). Along these lines, in 1961 the U.S. Supreme Court ruled in Monroe v. Pape that officers could be sued under Section 1983 for an illegal search of a family’s home, even though the search was outside the officers’ legal authority.
The second development that led to more Section 1983 lawsuits involved the interpretation of who can be sued under the statute. According to the statute itself, only ‘‘persons’’ can be sued. Up until 1978, for purposes of Section 1983, municipal entities were not considered persons. The statute became much more appealing to plaintiffs’ attorneys once the U.S. Supreme Court decided Monell v. New York Department of Social Services (1978), in which the Court held that municipalities are ‘‘persons’’ for purposes of Section 1983. The Monell case established that cities, counties, and police departments are subject to Section 1983 liability if a departmental policy, custom, or practice was the cause of the victim’s constitutional violation. The Monell ruling made all municipal corporations, e.g., cities, counties, sheriff’s offices, police departments, subject to suit under Section 1983, allowing plaintiffs to sue the ‘‘deep pockets’’ of governmental entities when their officers violate victims’ federally guaranteed rights (del Carmen 1991).
A third development that increased police liability across a broad spectrum of issues was the Court’s ruling in City of Canton v. Harris (1989), in which the Court held that municipal entities and police departments can be sued for failure to adequately train their officers. The Canton Court held that departments and municipal entities were subject to suit if their deliberate indifference in failing to adequately train their officers in ‘‘plainly obvious’’ areas was the moving force behind the victims’ constitutional violation (Board of the County Commissioners of Bryan County v. Brown 1997).
A fourth important development in Section 1983 jurisprudence from the U.S. Supreme Court was Pembauer v. City of Cincinnati (1986), where the Court held that cities and, by extension, police departments can be held liable under Section 1983 for a single decision by an authorized departmental policymaker. The Pembauer decision led to increased lawsuits against police departments, cities, and counties whenever their officers became involved in a domestic violence dispute and a negative outcome resulted, especially when a chief of police or sheriff or other upper-level policymaking official gave direction, orders, supervised, or had knowledge of the domestic violence incident in question.
All Section 1983 litigation has increased because of plaintiffs’ ability to sue:
- officers who act outside the appropriate confines of their behavior,
- police policymakers for a single decision that violates federally guaranteed rights,
- municipal corporations (e.g., cities, counties, sheriff’s offices, police departments), and
- departments for failing to adequately train their officers in obvious areas.
Under this legal landscape, a logical prediction would be that lawsuits against the police for inappropriate response to domestic violence would increase, especially given the growing awareness of the scope and severity of the domestic violence problem. Indeed, research has confirmed that police liability for domestic violence is a concern among law enforcement administrators (Vaughn, Cooper, and del Carmen 2001).
Town of Castle Rock v. Gonzales: The United States Supreme Court Rules on Police Civil Liability in Domestic Violence Incidents
In Town of Castle Rock v. Gonzales (2005), the U.S. Supreme Court held that the police and the municipality for which they were employed were not liable for failing to properly enforce a domestic violence restraining order. Jessica Gonzales brought a Title 42 U.S.C. Section 1983 lawsuit against the City of Castle Rock, Colorado, and the Castle Rock police, alleging that the defendants violated her procedural and substantive due process rights as specified by the Fourteenth Amendment to the U.S. Constitution when they refused to enforce a restraining order against her estranged husband.
The facts of the case were undisputed. In May 1999, Ms. Gonzales, in connection with her divorce, obtained a restraining order against her estranged husband, Simon Gonzales. The restraining order limited Mr. Gonzales’ contact with the couple’s children to certain hours and indicated that the children could leave their house only with Ms. Gonzales’ approval. In June 1999, two months after Ms. Gonzales obtained the restraining order, Mr. Gonzales abducted their three daughters (Gonzales v. City of Castle Rock 2002). When Ms. Gonzales discovered that her daughters were missing, she called the Castle Rock police to request assistance. Police officers were dispatched to Ms. Gonzales’ home, where she told them that her estranged husband had abducted her daughters. She showed the officers the restraining order and requested the police to enforce it, so her children could be returned to her immediately.
Without specifying a reason, the on-scene officers told Ms. Gonzales that they could not enforce her restraining order. Rather, the officers instructed Ms. Gonzales to wait for her children to return home. After several phone calls to the Castle Rock Police Department requesting that the police attempt to find Mr. Gonzales and return her children, Ms. Gonzales drove to the police station, where a police officer took an incident report. A couple of hours after the incident report was filed, Mr. Gonzales drove to and opened fire in the Castle Rock Police Station. Mr. Gonzales died during a shootout with police. Later, the police discovered the bodies of the three Gonzales children in the cab of Mr. Gonzales’ truck.
In bringing a Section 1983 lawsuit in the U.S. District Court for the District of Colorado, Ms. Gonzales claimed that the City of Castle Rock and its police violated her and her deceased children’s Fourteenth Amendment procedural due process rights under the U.S. Constitution by failing to enforce a restraining order that she had against her estranged husband. The district court dismissed Ms. Gonzales’ lawsuit, holding that she failed to state a claim under the Fourteenth Amendment for violation of her procedural and substantive due process rights. On appeal, a three-judge panel of the United States Court of Appeals for the Tenth Circuit also rejected Ms. Gonzales’ substantive due process rights claim under the ‘‘danger creation theory,’’ which arose out of the 1989 U.S. Supreme Court case DeShaney v. Winnebago County of Department of Social Services (1989). The danger creation theory postulates that if a state’s affirmative conduct places a person in jeopardy, then the state may be liable for the harm inflicted on that person by a third party. This is an exception to the general principle that the state is not liable for an injury that a third party inflicts on a member of the public (Black 1990).
DeShaney involved a social work agency that released a boy to his father even though agency personnel knew that the boy’s father was abusive. Against the mother’s pleas not to release the boy to the father, the boy was released, whereby the father beat the boy into serious brain injury. In denying the mother’s suit under the Fourteenth Amendment’s substantive due process clause, the U.S. Supreme Court held that the social work agency could not be held liable because of the public duty doctrine. Under the public duty doctrine, the government cannot be held liable for third-party victimization, and in DeShaney it was the father who injured the boy, not the government. The Court added, however, that substantive due process may be violated in very narrow circumstances: when someone is in custody, when a special relationship exists between the government and the victim, and when the government by its actions creates more danger or enhances the danger for the victim that sets in motion the third-party victimization. Under these three narrow exceptions, substantive due process liability may be pursued under Section 1983.
Using the U.S. Supreme Court’s ‘‘danger creation’’ theory, the three-judge Tenth Circuit panel concluded that Ms. Gonzales’ substantive due process claims failed because the Castle Rock police did not create or increase the danger to Ms. Gonzales or her children, or place them in jeopardy. With respect to Ms. Gonzales’ substantive due process claims, the three-judge Tenth Circuit panel followed DeShaney, saying that the police were not constitutionally obligated to protect individuals against harm from nongovernment agents.
While DeShaney barred recovery for Ms. Gonzales under substantive due process, the three-judge Tenth Circuit panel turned to her procedural due process claim. The formation of a federal constitutional right under procedural due process originated with Board of Regents v. Roth (1972), where the Court recognized that citizens under certain circumstances have property interests entitling them to procedural due process protections. Under the Roth rubric, the three-judge Tenth Circuit panel ruled that Ms. Gonzales’ procedural due process rights were violated.
According to the three-judge Tenth Circuit panel, the state statute mandated protection for Ms. Gonzales by the police pursuant to violation of the restraining order. The court interpreted the mandatory language of the statute to mean that when probable cause exists to show that a restraining order has been violated, police officers ‘‘shall arrest, or if an arrest would be impractical under the circumstances, seek a warrant for the arrest.’’ The three-judge Tenth Circuit panel concluded that the protective order created a property interest specifically for Ms. Gonzales under the due process clause of the Fourteenth Amendment to the U.S. Constitution. The court was careful to point out that the property interest would not be a general obligation of the police to protect the public, but solely to protect Ms. Gonzales.
On rehearing en banc, the entire Tenth Circuit agreed with the three-judge panel, holding that Ms. Gonzales adequately stated a procedural due process violation against the City of Castle Rock, although the individual police officers were entitled to qualified immunity. The qualified immunity defense is never available to municipal entities or police departments, only to individual police officers (Owens v. City of Independence 1980). The en banc Tenth Circuit ruled that a reasonable officer in the same situation would not have known that the restraining order required mandatory arrest, or in other words, the law in the Tenth Circuit was not clearly established that arrest had to occur. In this instance, the court stressed that a reasonable police officer could not be expected to know that a property interest was created on the basis of the restraining order and a Colorado law that mandated arrest.
The en banc Tenth Circuit ruled that Ms. Gonzales was entitled to police enforcement of the restraining order against Mr. Gonzales from the state court judge. In reaching this decision, the Tenth Circuit was following a line of U.S. Supreme Court decisions on what has been termed the ‘‘negative implication jurisprudence’’ (Greenholtz v. Nebraska Penal Inmates 1979; Hewitt v. Helms 1983), even though the U.S. Supreme Court questioned the legitimacy of this legal methodology, at least in prison cases, in Sandin v. Conner (1995).
Under the negative implication jurisprudence framework, mandatory language within state statutes, procedural rules, and/or policy manuals create due process property interests protected by the U.S. Constitution. The en banc Tenth Circuit said that the restraining order in the Gonzales case stated that police shall enforce the order, emphasizing that the language clearly intended its terms to be enforced by the police.
On appeal to the U.S. Supreme Court, Justice Antonin Scalia struck down the Tenth Circuit’s ruling, declining to hold that a state-law restraining order created a property interest under the U.S. Constitution. In other words, the Colorado state law did not give Ms. Gonzales a right to police enforcement of the restraining order, which absolved the City of Castle Rock of civil liability under Section 1983.
According to the U.S. Supreme Court, although Colorado law entitled Ms. Gonzales to enforcement of her restraining order, she did not have a property interest in that enforcement. The Court explained that there were no due process rights violated, since an entitlement to enforcement of the restraining order did not create a constitutional property interest, but only an entitlement to procedure. Even if the statute did create entitlement to enforcement of the restraining order, Justice Scalia explained that such a right would not be a constitutional property interest.
As they did in Sandin v. Conner (1995), the Court rejected the legal methodology of the negative implication jurisprudence inTown of Castle Rock, explaining that entitlements are created by state law, not the U.S. Constitution, and a violation of an entitlement under state law does not necessarily violate a federally guaranteed right. An individual may have a benefit under state law, but he or she may not be protected by the U.S. Constitution whenever that benefit is violated. In contrast, to have an entitlement protected under the U.S. Constitution, the benefit must be described by a U.S. law, making such a benefit a federally guaranteed right and subject to suit under Section 1983. The Court was careful to stress that not every benefit is protected by the procedural due process clause, meaning that although Ms. Gonzales had the benefit of having her restraining order enforced, police had discretion as to which benefits were enforced.
Another justification the Court gave for finding no property interest was the Tenth Circuit’s failure to rely on ‘‘state expertise.’’ Prior to finding a property interest in a state statute, the Court specified that the Tenth Circuit should have interpreted state law, instead of simply ‘‘quoting language from the restraining order, the statutory text, and a state-legislative- hearing transcript.’’ Based on the restraining order language and Colorado state law, the Court concluded that police officers are not required to make arrests, but only to seek a warrant, which did not entitle Ms. Gonzales to a property interest; it entitled Ms. Gonzales only to the procedure that the police would seek an arrest warrant.
The Court concluded that police operate with discretion when interpreting mandatory arrest laws and restraining orders, which means that they are not truly mandatory. Interpreting Colorado state law, the Court said that the police maintained discretion, since the state law gave police officers two options: make an arrest or pursue an arrest warrant. The Court held that police use discretion to enforce restraining orders, especially when suspects are not present and their whereabouts are unknown. In fact, in the Gonzales case, the only proper response, according to the Court, was to pursue a warrant. Thus, the Court suggested that there is property interest in the Fourteenth Amendment due process clause when the suspect is present and his or her whereabouts are known. In other words, police officers have no discretion when they can identify immediately the suspect, because as soon as that happens, a procedural due process duty to arrest attaches (Black 1990).
Turning to the public duty doctrine, the Court held that police officers are not required to enforce restraining orders even under a state law mandate. The ‘‘public duty’’ doctrine specifies that police owe a general duty to protect general society, and no duty is owed to protect specific individuals. The public duty doctrine is a rule in tort law that a governmental entity (such as a state or municipality) cannot be held liable for an individual plaintiff ’s injury resulting from third-party victimization (Black 1990). Even if domestic violence restraining order statutes specifically mandate enforcement, under the public duty doctrine, an individual victim of nonpolice enforcement does not have a specific entitlement to enforcement of the restraining order. Similar to mandatory arrest laws that serve the general well-being of the public and not specific victims of domestic violence, the Court reiterated that the public duty doctrine also limits liability for nonenforcement of restraining orders.
The Court also emphasized that under DeShaney, the police cannot be held liable for third-party victimization. When victims are not directly harmed by the government, the victim’s injuries are a result of a third party, not a state employee. When the government harms victims, there is a direct benefit to the state which triggers a property interest and due process protections because the FourteenthAmendment protects the victim’s life, liberty, and property from direct government actions; however, the Court ruled that indirect or incidental actions caused by thirdparty victimization remove due process protections from the victim.
The Court concluded that the ‘‘public duty’’ doctrine prevents police liability in Section 1983 cases under federal law when third parties injure domestic violence victims for both substantive and procedural due process violations. Thus, the Court ruled that there was no property interest in the police enforcing the restraining order under the procedural component of the Fourteenth Amendment’s due process clause.
The Impact of the Violence against Women Act on Domestic Violence and Police Civil Liability
Congress enacted the Violence against Women Act (VAWA) in 1994 as a pioneering piece of legislation geared toward stopping both domestic and street violence against women. While VAWA was divided into seven lettered sections, the focus here, domestic violence, represents one of the multitude of problems that Congress was attempting to address when President Bill Clinton signed the legislation into law.
VAWA was enacted because previous institutional efforts to combat violence against women, including domestic violence, failed to receive adequate federal funding. By recognizing the extent of the problem, Congress funded VAWA grants specifically designed for ‘‘personnel, training, technical assistance, data collection, and other equipment.’’ With increased federal funding, VAWA was designed, in part, to assist police agencies to reduce violence against women, especially domestic violence.
VAWA funded hotline training so that victims could receive emergency counseling and referrals for victim services over the telephone in a timely manner. VAWA funding also trained law enforcement personnel on the interstate travel patterns of domestic batterers, developing databases of domestic abusers who traveled across state lines and threatened and/or abused their victims. In an attempt to control post-separation domestic violence and stalking, VAWA funded police training on identification of criminal history records, protection orders, and wanted person records.
Because homelessness is highly correlated with domestic violence, VAWA addressed the need for temporary victim housing. In this effort, VAWA funded construction and maintenance of battered women’s shelters. Also related to family life, since youth growing up in violent homes are at increased risk of engaging in violence themselves, VAWA provided youth grants to create programs to educate ‘‘young people about domestic violence and violence among intimate partners.’’
After Congress enacted VAWA, police training occurred on mediation, dispute resolution, verbal judo, and intervention without use of force in domestic violence incidents (Blackwell and Vaughn 2003). VAWA sparked passage of civil protection orders and mandatory arrest laws, requiring police officers to arrest batterers. VAWA also encouraged criminal prosecutions against batterers without the victim’s consent (Catania 2005). Despite those laws, evidence suggests, and the Town of Castle Rock case demonstrates, that police officers need additional training on how to respond to domestic violence incidents.
An additional problem for domestic violence victims remains confidentiality and direct links to support systems that keep victims safe from their abusers. With VAWA, Congress addressed this need, stressing the importance of trust and respect as the foundations of the relationship between victims and their support team. VAWA monies helped to provide sensitivity training for police on the needs of domestic violence victims. Many departments have instituted victim-witness assistance programs and have hired specially trained victim advocates who respond to domestic violence calls for service. These domestic violence advocates are law enforcement employees, but they focus exclusively on the victims’ needs (Herman 2005).
Of particular concern to police civil liability for inappropriate response to enforcement of an existing restraining order as discussed in this research paper, VAWA also ‘‘encouraged states, Indian tribal governments, or local units of government to treat domestic violence as a serious violation of criminal law.’’ As a result, VAWA grants were designed for implementation of mandatory arrest and protection order violation policies. Also part of the Town of Castle Rock case and addressed in VAWA was the heightened violence that often accompanies the separation of the abuser and the abused. A common misperception regarding women in abusive relationships is that if they would simply end the relationship, the abuse would end (Fugate et al. 2005); however, research shows that domestic violence may increase upon separation of the parties (Fleury, Sullivan, and Bybee 2000), as was evidenced in the Town of Castle Rock case.
Discussion and Conclusion
Notwithstanding the outcome of Town of Castle Rock v. Gonzales (2005), where the U.S. Supreme Court ruled that there was no Section 1983 civil liability for inappropriate police response to domestic violence, liability remains a risk for law enforcement under various state tort laws (del Carmen 1991) and pursuant to Section 1983 under the Fourteenth Amendment’s equal protection clause (Thurman v. City of Torrington 1984). Despite negative perceptions of police among some victims, a few studies report that domestic violence victims can favorably view police interactions at calls for service (Apsler, Cummis, and Carl 2003). Domestic violence victims trust police when they respond appropriately and enforce existing restraining orders, follow through on mandatory arrest of the primary aggressor, and steer victims to counseling and social service agencies (Apsler et al. 2003).
Research confirms what the Town of Castle Rock case demonstrates: Future domestic violence is likely when abusers make repeated violent threats, engage in actual violence, and have arrest histories for domestic violence. Hirschel and Hutchinson’s (2003, p. 332) research also ‘‘supports the argument that officials should pay attention to the preferences of victims of domestic violence.’’ Although not liable under Section 1983, the Castle Rock Police should have immediately, per Ms. Gonzales’ request, attempted to enforce her restraining order. Kane’s (2000) research also sheds light on the tragic outcome in the Town of Castle Rock case, reporting that in his sample, as the violent threats to victims escalated, a restraining order against the offender was less likely to be enforced by the police, thereby doing little to diminish the violence against the very individuals the restraining order was designed to protect.
While the field of domestic violence research enters its second decade, much more remains to be discovered (Rhatigan, Moore, and Street 2005). To the extent that community policing can improve police–citizen relations, it has a welcomed place in the overall law enforcement response to domestic violence (Giacomazzi and Smithey 2001). Research has shown that reducing violence against women is more nuanced than simply mandating arrest for all domestic violence perpetrators (Finn et al. 2004). Thus, more research, study, and analyses are needed regarding the most appropriate police response to lessen victim exposure to domestic violence and lessen police exposure to legal action. Research also needs to identify the particular risk factors associated with victim injury when police respond to domestic violence incidents (Michalski 2004). In other words, more needs to be known about what police should and should not do in domestic violence incidents to reduce victim injury, increase offender deterrence, and provide faithful enforcement of statutory enactments and judicial precedents.
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