From Progressive Unionism to Progress on Gun Rights?

Imagine this: You are a Republican state legislator in Wisconsin. You’ve already received multiple death threats, threats the police are taking very seriously. But they don’t have sufficient manpower to serve as bodyguards. They know where you live, and that might -- might -- reduce their response time. It’s 2 PM and two busloads of protestors pull up in front of your home, disgorging 150 angry, crude, and thuggish “protestors.” Most are wearing union colors and carrying identical, professionally painted signs. Others carry signs calling for your death. Your wife and small children are terrified. You call 911 and make sure your doors are locked. They’re swarming your home, trampling your lawn and greenery, and the first brick comes through a window just after you hang up. More follow. Kicks began to strike your back door, the door inside your fenced yard, out of sight of the street and media cameras. Suddenly, the door splinters and three burly men rush in. They are not carrying signs and they are not smiling. What do you do?

Have you ever heard of Castle Rock v. Gonzales? It’s a Supreme Court case that, like so many Supreme Court decisions, directly affects the lives of every American, yet like so many Supreme Court decisions, few know anything about it.

Jessica Gonzales of Castle Rock, Colorado, obtained a permanent restraining order against her estranged husband, but on June 22, 1999, at about 5:15 PM, in violation of that order, he took his three daughters from their mother’s yard without her knowledge. Jessica called the Castle Rock Police at 7:30, 8:30, and 10:10 PM, and went to the police station in person at 12:40 AM on the 23rd. By early evening of the previous night, Jessica had received a call from her estranged husband who confirmed that he had the girls. She told the police, begged them, and despite her repeated pleas, the Castle Rock Police did nothing.

At about 3:20 AM, Gonzales attacked the Castle Rock police station, firing a handgun he purchased earlier. He was shot and killed by the police, who soon found his three daughters, dead, in his vehicle. Gonzales had murdered them earlier.

Jessica filed suit, and a federal district court dismissed her case. The Court of Appeals for the Tenth Circuit overturned part of the district court’s dismissal, allowing the case to continue on a procedural due process claim. The Supreme Court, in 2002, overturned the Tenth Circuit and upheld the district court’s dismissal of the case. Jessica could not sue the Castle Rock Police Department or its officers for failing to protect her daughters. This may sound cruel or absurd, but it is rational; it adheres to the Constitution, American values, and long-standing precedence; and it is quite necessary. If police officers could be sued for failing to protect a citizen, what city could afford a police force? Who would become a police officer knowing financial ruin awaited them at any minute for the acts of criminals beyond their knowledge and control?

There are a number of important lessons in this case. Restraining or protection orders have limited value. Such orders commonly allow the police to immediately arrest the suspect if he is within, say, 100’ of the victim (not normally, in and of itself, a crime). This was the case with Gonzales’ restraining order, but unless the police happen to be present when an order is violated, or can immediately find and arrest the suspect, this too is of limited value. Such orders should not be dismissed out of hand as useless, but as is usual with the criminal law, violators may be arrested only after they commit a crime, not before. This too, if we wish to live in a constitutional republic, is also quite necessary.

But the most important lesson is that while the police have a duty to suppress and investigate crime for the public in general, they cannot be held liable for failing to protect individual citizens. Police lore is full of true stories of victims who called 911, only to have their calls for help misplaced, disregarded, or simply ignored. In some cities, at some times, 911 calls are put on hold or never answered, so great is the emergency call volume. Sometimes, due to mistakes, negligence or apathy, victims are raped, maimed, even killed, yet the police have no duty to protect those individuals. The police know well a simple, yet true, aphorism: when seconds count, the police are only minutes away, if, that is, they actually know about the emergency.