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Duty to Protect     By Karen MacNutt

n March of 2005, Jessica Gonzales, backed by an impressive group of civil rights and women's groups, argued her case to [he United States Supreme Court. Gonzales wants the right to sue the Casrle Rock, Colorado, Police Deparrment for the death of her three daughters. She says that the police refused, or failed, to enforce a court order that protected the girls from their estranged father, Simon. It is a tragic story.

According to reports, the legal history began in 1999 when a court granted Jessica a restraining order prohibiting Simon, her husband, from having contact with Jessica or their daughters. According to a statement from the American Civil Liberties Union (ACLU), about a month after the court order was entered, the husband "abducted" the girls. It was not clear from the statement whether the girls vol unrarily went with him or if he used force to take them. Although his taking the girls may have violated the restraining order, it is not clear that his taking them equaled the legal definition of an abduction.

Jessica called the police. They told her there was nothing they could do but that she should call back later that night if the girls did not turn up. Jessica drove to the station that night but the police would still not initiate a search. Later that evening the husband, Simon, drove to the police station and started shooting with a gun at the station. Simon was killed in the resulting gun battle. After he was killed, the bodies of his three daughters were found in his vehicle.

Jessica is suing the police because she says they failed to enforce the court order. As bizarre as it might seem, she is fighting an uphill battle. The police have no obligation to protect individual members of the public. Their duty is to the community as a whole. That is why businesses hire security guards and executives hire bodyguards. Jessica's case is by no means the most egregious case to challenge this well-established principal. Some years back, a woman in Massachusetts was assaulted and stabbed in her own apartment. She called the local police for help. They never sent help and she bled to death. The state supreme court found no liability against the police.

Without knowing all the details of Jessica's case, it is difficult to comment on her chances of success. There are, however, thousands of domestic relations restraining orders issued through out the country. Most of the parties involved in these orders do not engage in life-threatening aggressive behavior. Many of the orders are issued with only one side present. Sometimes the allegations of abuse or fear of abuse are very thin. Because conduct of the parties is often considered by judges making property settlements in divorces, a certain number of the restraining orders are sought to strengthen later demands for money. If the police posted a guard at the home of everyone with a domestic relations restraining order, no other police work would get done.

Until fairly recently the law did not allow you to sue the government for damages, no matter how wrongful the government's conduct was. In civil rights cases, such as when a police officer uses excessive force, the theory is that you are not suing the government but an individual officer. He is not protected as an agent of the government because when he violated someone's civil rights, he violated his duty as a police office and therefore was not advancing the interests of his employer, the government.

Over the last 60 years state and federal laws have been passed making the government liable in a narrow range of circumstances. A federal law called the Federal Tort Claims Act was one of the first laws opening the government up for suit as a result of negligent acts. "Negligence" is a legal word for being careless. "Tort" is a legal word meaning you were careless and hurt someone or damaged someone's property. "Liability" is the obligation to pay for the damage you caused by your carelessness. Since the passage of the federal law, states have passed similar laws which are generally referred to as "Tort Claims Acts."

Although the laws vary in details, generally they only allow "liability" (the obligation to pay) if the activity which lead to the injury was not unique to government. Or, to put it another way, if the activity is unique to government, or is discretionary within government's power, there is no liability. For example, if the city has a swimming pool, fails to maintain it properly, and as a result of that failure, someone is hurt, the injured person can sue the city. Running the swimming pool is not an activity unique to governments. On the other hand, the city cannot be sued for not opening the swimming pool. The decision to open the pool and expend public funds is both discretionary and unique to government.

Government could not function if it could be sued every time a policy decision was made. Such suits would effectively pass control of government from the elected representatives of the people, to judges. That would not be good. Based upon the "decision making" function exemption from liability, there are certain types of people you can almost never sue as a result of harm flowing from the performance of their public functions. These people include judges, district attorneys, legislators, members of public boards, and the like.

Generally police can only be sued in narrow circumstances. They can be sued for civil rights violations because their acts have exceeded their authority. The excessive use of force, false imprisonment, extortion, theft, malicious destruction of private property and negligent operation of vehicles are some of the things that police can be sued for. They cannot be sued for arresting a person on a warrant even if the warrant later turns out to be groundless. They generally cannot be sued for injury to the public that occurs in the course of a law enforcement activity if they are acting in accordance with procedure. There have been mixed results of citizens suing cities for failing to properly train their officers.

Staffing, arrest policies, patrol policies, and allocation of manpower are all discretionary functions of the police management team which are not subject to review. They are. public policy decisions that have been made on the basis of funding which is driven by budgets set by elected officials.

On the other hand, if the actions of the police place someone in a particular situation where they become vulnerable by reason of the action of the police, and the police fail to use reasonable care towards that person, then there is liability. For example, if you were arrested and then are not taken care of, the police could be liable for any injury you suffered.

The person responsible for the death of Jessica's children was Simon, not the courts, not the police, not Jessica. Too often we try to shift blame in search of someone to seek vengeance against.

Without holding the victim responsible in any way, there are things people can do to reduce the chance that they, or a family member, is killed as a result of domestic violence.

The first and foremost is to be careful about who you establish a relationship with. Odd behavior that might seem quaint, cute, or manly, is still odd behavior. It should be a warning to be very careful about establishing a relationship with the person. People seldom change. Do not enter a serious relationship with someone, move in with someone, or have a child by someone thinking you can change that person. It simply does not work most of the time. Certain types of behavior should send out sky rocket warnings. Some of the danger signs are: people who treat other people as if they were property to be possessed; people who try to control everything their partner does; people who act as if the world revolves around them and who can never see anyone else's point of view; people who try to cut their partners off from their other friends and activities; people who are excessively jealous; people who are always demeaning or embarrassing their partner; people who never want to take their partner out in public; people who discourage their partner from attempting to better themselves; men who constantly say derogatory things about women or the female members of their family; men who attempt to get their way by intimidation; people who are always making excuses as to why other people are responsible for their own failures; and people who are violent during dating.

Learn to listen to your head, not your heart, in these cases. If deep inside a little voice is trying to tell you something is wrong about this person, listen to the voice.

If you are going to end a relationship, make the break clean and polite. Keep emotion and blame out of the equation. It makes no difference whose fault it is. If the other person sees you are upset about something, that will simply encourage the inappropriate behavior. Do not even consider getting even or making the other person sorry or pay for whatever you think it is that they have that is wrong.

Don't deprive the other person of personal items they brought to a relationship or to which they have sentimental value. Don't argue about who gets the TV or CD collection. Give it to the other person to get rid of them. During the break up, try to have another person present during any meetings you have with the person you are breaking up with. This should not be the new boyfriend, but rather it should be a family member or someone who will not be seen as a rival. If you have been living with someone, change the locks and avoid going to places where you have reason to believe you will see the other person.

"Well," you might say, "I have just as much right as he does to go hang our at Joe's Pizza Parlor." Yes, you have a right. You also have a right to stand in the middle of the street at night wearing all black. You have a right, but if you are smart, you will not do so. Your purpose is to dump your ex and start new.

Restraining orders are a mixed blessing. They are frequently misunderstood and misused.

A restraining order is an order from a judge telling someone to do or not to do something. The judge is not in charge of the police department. A restraining order is not a criminal warrant, it is a civil warrant and, if it were not for special legislation, is not enforced by the police in many states. It is served and enforced by a sheriff or constable. In most states police may only serve criminal warrants of the court.

How do you enforce a restraining order? You go back to the judge who issued the order and file a complaint saying the other person has disobeyed the judge. The person accused of violating the order is served with papers by a civil process server (usually a deputy sheriff) and ordered to appear before rhe court to tell the judge why the offender should not be held in contempt of court. Mter a hearing the judge will determine if the order was violated. The judge may consider the violation of his or her order as criminal or civil. The judge has the power to place rhe offender in jail.

"So," you might ask, "how can such an awkward system stop domestic violence?" It will not protect you from someone bent on hurting you. What it does is establish boundaries in hopes of preventing violence and allowing the government to intervene before violence has occurred.

Some people claim that women should not seek restraining orders because the order can precipitate violence on the part of the man. The orders can be very useful as long as they are used properly. That is, as long as they are used to establish boundaries, not as tools to inflict damage.

If by order of the court a man is thrown Out of his home with only such items as he can grab in five or ten minutes, if he is left insufficient funds to have an apartment and buy food, if he is denied the company of his children, he is more apt to do something stupid feeling he has nothing to lose. Any time a couple that has been living together breaks up, there will be a drop in the standard of living. Both parties must understand this and attempt to work out a financial arrangement that gives both parties some standard of living. Except in extraordinary circumstances, the non-custodial parent should have access to the children. Access might be limited or supervised, but it must exist to establish sufficient interest in the children by the non-custodial parent so as to encourage the non-custodial parent to help support the children financially. Women also must understand that a restraining order wil1 not protect them, neither will the police. They, like all citizens, must assume responsibility for their own safety.

Danny Divito, in the movie, "War of the Roses," stated, "There are no winners in divorce, only degrees of losing." That is a true statement.


This article was reprinted from Women&Guns May-Jun, 2005, Copyright © 2005 Karen MacNutt