Second Thoughts I: Castle Rock

A correspondent asked me about Castle Rock, the recent Supreme Court case that concerned a failure to enforce a restraining order that led to the murder of 3 children. My initial post, I think, wasn’t really sufficient. Upon further reflection, I am more convinced than ever that the Court’s decision, while tragic, was correct. The key point, as Lindsay correctly noted, is the question of remedy. Even if the state’s failure to enforce the restraining order was a violation of Jessica Gonzales’ right to equal protection under the laws–a plausible if not compelling interpretation–there is the additional question of whether she has a civil remedy. On this question, I don’t really think Stevens adequately answers Scalia’s claim that such a remedy is not available. As grim as it seems to reach this conclusion, I’m afraid that Gonzales’ legal remedies were exhausted when her ex-husband turned the gun on himself.

An additional point to make is that the state of Colorado could, if it chose, create a remedy by making police departments potentially liable for the consequences of not enforcing restraining orders. Would this be advisable? I would be very cautious. If restraining orders are being systematically underenforced primarily because police departments don’t take domestic violence seriously, then making departments liable might be justifiable and useful. If, however, these orders are unenforced because of resources, making departments liable would compound the problem. And I suspect that the latter factor is, at least, important, particularly in a western red state. A large part of the electorate likes the idea of vigorous law enforcement but when it comes to paying the taxes necessary (and categorically enforcing restraining orders would require a lot of resources), this enthusiasm has a tendency to mysteriously vanish. If police departments simply don’t have the necessary money and bodies to enforce the law without creating problems elsewhere, allowing departments to be sued is not only bad but counterproductive. And, certainly, the complexities of the underlying issues makes judicial deference a wise course, as difficult as the outcome is to accept in this case.