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Police will protect: Castle Rock v. Gonzales

The Supremes have just issued a ruling in Castle Rock v. Gonzales (pdf version available here.

Essentially, the plaintiff obtained a domestic violence restraining order against her husband, which order contained a command that law enforcement arrest if there was probable cause to believe he had violated it. The husband kidnapped their three children, and she reported it to police. They responded there was nothing they could do, but call back in a few hours. Husband later called and said he had the kids at an amusement park. She asked police to go over there or put out an all points bulletin for him -- they declined. She called repeatedly through the night, and was told to wait. The husband turned out to have murdered the three kids and was killed after he drove to a police station and came in shooting.

The mother sued under 42 USC 1983, alleging that the town had a pattern of nonenforcement, and this amounted to a violation of the 14th Amendment's requirement that no state deprive a person of life, liberty or property without due process. The Supreme Court uphold the dismissal of her complaint. What rights State law gave her, in terms of enforcement of the order, were not property interests protected by the constitution. State law did not give her an absolute right: it commanded that the officer use every reasonable means to enforce the order, that he shall arrest unless it proves "impractical," and this indicated that the right to enforcement was discretionary with the government (and hence not a matter of her "property"). Moreover, such right has little resemblance to any ordinary concept of property. "In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its “substantive” manifestations."

Souter and Breyer concur. Stevens and Ginsberg dissent. Their points: if she had hired a private security firm, wouldn't that contract have been "property"? They argue that the State law did in fact make enforcement mandatory; at the very least, the Court ought to certify the question to the State supreme court for determination.

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