In brief, in 1999, Jessica Gonzales got a restraining order against her husband while she was in the process of divorcing him. He violated the restraining order, and took their three daughters from their home and killed them, and was then shot and killed by police officers after he opened fire on a police station.
Now, the mother is suing the city police department for failing to enforce the restraining order. The case will be heard by SCOTUS today.
I have mixed emotions about this. I absolutely believe that victims of domestic violence need stronger protections from their abusers. But, realistically, what could the police have done that they didn't do? The way I understand it, the only time he was actually in violation of the restraining order was when he came to the house to pick up the children. Once he left with them, he was "legal" because he did have visitation rights with the girls. So unless the police caught him in the 5 minutes or so he was at the house (and according to the story, it's not even clear that the children were even at the house... they were "out playing" so he may have picked them up somewhere else) their hands were tied.
According to the story I heard on NPR, the police did put out an alert for the guy and tried to find him once the mother called to report the girls missing. And they asked her if she thought he would harm the children and she stated that she didn't think he would.
So what do you legal minds think about this? Is the police department liable here?
Posts: 2069 | Registered: May 2001
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Well, basically - there is NO WAY any law enforcement agency can perfectly enforce a restraining order without following the person around 24/7 as a personal bodyguard. That's the truth of it.
Restraining orders were not designed by police officers! They enforce them to the best of their ability with the inadequate resources they have, because the orders are court ordered.
I, too, wish there was a better way, but I don't have a good solution for men who walk through restraining orders and hurt or kill others. (other than the song "Goodbye Earl")
posted
I see no reason the police need to be protected from all lawsuits to cover this instance not necessarily being the best lawsuit (though I lack enough information to determine that).
In fact, I can readily imagine situations where the police are negligent in their duties, but not being under pressure to change without lawsuits (not to mention those people done injustice by their lack of care not having recourse).
Posts: 15770 | Registered: Dec 2001
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posted
Unfortunately, the basic policing model follows a reactive and not proactive system.
As others have noted, very few police departments have the resources and manpower to assign 24/7 bodyguards to every victim or possible victim and they cannot take action against the accused without probable cause or the presence of a clear and present danger.
Restraining orders, as any domestic violence counselor will tell you, are used to generate a paper trail and documentable evidence in court and not as a deterrent to violent, abusive aggressors.
posted
I would, however, advocate some moderation of lawsuits against police - because given the opportunity, people can and will sue for anything and defending against even the most absurd lawsuits costs the department and ultimately the government time and money.
What's worse, a department may opt to settle a case in order to minimize any possible loss - what kind of message does that send?
Which is not to say any and all lawsuits should be restricted - but there is an amazingly fine line that needs to be monitored.
posted
That isn't the point here..the specifics of each case would still be decided at trial, so if they had done all they could then they probably would not be found liable.
What is really at stake here is IF a case CAN be brought...and I think it should be allowed. I was involved with a restraining order being constantly violated, but the police wouldn't do anything at all, even though there was proof...a tape of him admitting he violated it on more than one occasion.
My friend ended up really hurt in a physical altercation with him, and IMO she should have sued the police for failing to respond on more than one occasion involving him. Not all police departments are like that, but this one was, and it lead to a ton of hurt more than once.
posted
I agree with Farmgirl, and perhaps I asked the wrong question as the title for this thread.
I think this case is not a good example of the police failing to do their duty. They were not on the scene when he violated the restraining order. They made an effort to try to find the man and the children. Even the wife/mother didn't think he would harm the children.
This was a horrible tragedy, but not the police's fault.
Posts: 2069 | Registered: May 2001
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posted
The news report I heard some of is telling a significantly more complex story, that she alerted the police to him violating the restraining order (taking the kids) several times over the phone, but they weren't going to do anything, and that even when she went down to the station they dragged their feet.
Posts: 15770 | Registered: Dec 2001
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posted
I've refrained from commenting because this is an incredibly fact-specific type of issue, and I can't find the facts.
I do think that the police should have wide lattitude in responding to threats against people. There are resource issues (we can't divert the entire police force for one case), efficacy issues (the police might not have been able to do anything), and discretion (the police might not have thought there was an immediate danger to the children). These are professional judgments that we should be reluctant to second guess in court via torts law.
I'm not sure what type of presumptions the police should have, but they should be pretty significant.
quote: here are resource issues (we can't divert the entire police force for one case)
But the resources of the Senate, the House of Representatives and White House should be diverted for Terri Shiavo?
quote:These are professional judgments that we should be reluctant to second guess in court via torts law.
Like the Doctors opinions in the Terri Shiavo case that we should be reluctant to second guess in the Senate, the House of Representatives and White House?
Posts: 171 | Registered: Jun 2001
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posted
I believe that the police should have a fair amount of leeway when handling crimes and disturbances. But the issue at hand here weighs on a whole lot of other things, like what Dag said, which can vary from county to county and state to state. I don't consider myself informed enough on the issue to say anything I would think worthwhile.
Posts: 2258 | Registered: Aug 2003
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posted
As fugu13 pointed out, this case is, as I understand it, a lot more complicated than simply the father violating the restraining order. The police had been called I think several times in the past about the problem, had been called by Gonzalez when she found her children were missing, and I think they were actually contacted by somebody else who saw the father later that evening and believed him to be a danger to the children.
As I understand it though, the Supreme Court is simply deciding whether Gonzalez is legally permitted to sue the police. I suspect that they will rule that the police can be sued in certain cases of negligence. It will then be up to lower courts to decide whether the police qualify as negligent in this case and what the reward should be.
Posts: 4 | Registered: Mar 2005
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posted
Question: Did the restraining order only specify that he couldn't bother HER, or that he coudn't see the kids?
Because if he had normal visitation with the kids, and only had the restraining order to leave her alone -- then this is a difficult situation. Obviously he had permission to see the kids, and the police would know that, if that were the case.
My sister had a restraining order against her ex, but he did not have any orders to leave the kids alone - in fact he had rights to see them. So I was wondering if this was similar.
I wonder how the police would have responded had she told the police her husband had kidnapped her children. If the restraining order included the children, then isn't that what happened?
Posts: 4 | Registered: Mar 2005
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As the daughter of a law enforcement officer, I know how hard it is for the police to be everywhere at all times and always make the right decision. It isn't possible.
As a former victim of domestic violence, I know what it is like to wish they could do SOMETHING to make it stop.
Once, when I was married and at the time we only had one child, my husband pulled a gun out and was ranting and raving and threatening to kill us, then threatening to kill himself in front of us, etc. I was able to flee the house. Went to a friends a few miles away and called police. They went to my house. Talked to my husband (who by this time had somewhat calmed down, and of course hid the gun as soon as they pulled in). They had no search warrant to look for a gun. He talked to them in a calm, controlled way like nothing was wrong.
They really did all they could, legally, under the law.
They called me back and said he seemed to be okay now -- but it was up to me whether or not I chose to go back home. But that he didn't seem upset or angry, and was apologetic.
After a few hours, I went home -- only to have him meet me in twice the tirade at the door -- how dare I call the police on him! How dare I leave and report him! He let me know in no uncertain terms he would kill me or us if I was ever stupid enough to do that again! And I never did.
The police couldn't have done more, under law, because they weren't witnessing any crime or threat, etc. I'm not upset with the police in my case.
And there is so much domestic violence. How do they distinguish between the ones who are really off the deep end and going to kill, from the ones that are simply emotional, upset and hurt? I know I can't pick out a killer before he kills.
posted
"Why didn't they sue...Whoever sold him the gun?"
Cuz the NRA has strongly supported the "right"s of folks to sell weapons to nutcases. Has strongly supported legislation allowing nutcases their "right" to possess concealed weapons. Has strongly supported the "right" of all gun owners to be totally irresponsible without the slightest fear of legal repercussions.
Posts: 8501 | Registered: Jul 2001
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Although I've never been a victim of domestic violence, I have experienced the frustration of wishing the police could do more (due to my once and future stalker, I don't want to say anymore here). But realistically, the police really are limited in what they can do.
I've heard a couple more news stories on this case, and I'm still not convinced that in this case the police are at fault. It seems when the mother was calling the police every couple of hours, she was more concerned that the girls were out late and had school the next day than that there was any threat of danger. So of course the police are going to treat that differently than if he'd made threats or had some history of violence.
It's a tragic case for sure, but I'm not sure what she hopes to accomplish by bringing it to court. Posts: 2069 | Registered: May 2001
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