No-Drop Civil Protection Orders: Exploring the Bounds of Judicial Intervention in the Lives of Domestic Violence Victims

Abstract

for their thoughtful comments on earlier drafts, and to Stephanie Fuqua for her research assistance. 2. 545 U.S. 748 (2005). In Castle Rock, Jessica Gonzales had a civil protection order against her estranged husband. Id. at 752. One night Gonzales' husband took the parties' daughters without permission, in violation of the order. Id. at 753. The police told Ms. Gonzales there was nothing they could do. Id. at 753-54. At 3:20a.m., the husband arrived at the police station, opened fire, and was shot and killed by the police. Id. The police found the bodies of all three daughters, whom the husband had already murdered, in his truck. Id. Ms. Gonzales asserted that the failure of the police to respond to her report of her husband's violation violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Id. at 754-55. Specifically, she alleged that because the protection order statute required police to arrest when they had probable cause to believe a restrained party violated a provision of the order, she had a property interest in the enforcement of the terms of her order. Id. at 753. 3. Despite language in the Colorado statute telling police they "shall arrest" perpetrators who violate civil protection orders, the Court reasoned that the police had discretion to decide whether or not to do so. Id. at 757. The pertinent part of the statute read as follows: "A peace officer shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of a restrained person when the peace officer has information amounting to probable cause that... the restrained person has violated or attempted to violate any provision of a restraining order .... " Id. The Court found that other Colorado statutes used the word "shall," but still gave police discretion, so that the statute underlying the protection order would have used much stronger language if it truly mandated police action. Id. at 756. The Court thus held that there was no personal entitlement to "something as vague and novel as enforcement of restraining orders." Id. at 757.