The Police Have No Reason to Help You

Perhaps the most illustrative example of the current legal landscape is Castle Rock v. Gonzales, a Supreme Court case from 2005. It also arose from an unspeakable tragedy. Jessica Gonzales, the lawsuit’s plaintiff, had begged the police department in Castle Rock, Colorado, in 1999 to enforce a restraining order against her ex-husband after he absconded with their three daughters. The officers made no efforts to locate or arrest him until her ex-husband showed up at the police station early the next morning and died in a shootout with the police. The officers then found the three girls’ bodies in the trunk of his car.

Gonzales sued the police department under Section 1983, the federal tort that allows people to sue state and local officials in federal court for violating their federal constitutional rights. She argued that the Colorado legislature had made enforcement of the restraining orders mandatory and that, as a result, the police had violated the Due Process Clause by not carrying it out. A federal district court judge ruled against her, as did a three-judge panel in the Tenth Circuit Court of Appeals. The Tenth Circuit then reinstated her lawsuit, after using a rare procedure to reconsider it with all judges taking part. The city then asked the Supreme Court to intervene.

In a 7–2 decision in 2005, the court sided with the city and the police. The justices, led by Antonin Scalia, ruled that Gonzales was not entitled to a Due Process Clause claim because the officers had discretion on whether to enforce the protection order. Scalia then went further than that and ruled that even if the Colorado legislature had made it truly mandatory for officers to enforce orders, it was not clear that Gonzales had a right to demand it—or, accordingly, to take them to court for not doing so.