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The odds appeared to be against Jessica Gonzales and domestic violence advocates lobbying on her behalf at the Supreme Court on Monday, with justices openly skeptical about giving constitutional protection to protective orders in domestic violence cases. At issue in Castle Rock v. Gonzales, a case that has gained national media attention, is a ruling by the 10th U.S. Circuit Court of Appeals holding that a protective order creates a property interest enforceable under the 14th Amendment. The morning began with the return of Chief Justice William Rehnquist, absent from the bench since October because of his continuing battle with thyroid cancer. He sat in his usual center seat as John Eastman, a law professor from Chapman University in Southern California, made his case on behalf of the petitioner, the town of Castle Rock, Colo. In Castle Rock, Jessica Gonzales, a resident of the town, obtained a protective order against her husband, Simon Gonzales, in 1999. Court-issued protective orders are intended to keep abusive spouses or partners away from their victims. Not long after Jessica Gonzales obtained the protective order, her husband abducted their three daughters while they were playing outside her home. Jessica Gonzales contacted the police six times throughout the evening, but they failed to respond. Nearly eight hours later, Simon Gonzales showed up at the town police station, where he opened fire and was shot to death by police. The three girls were found dead in his truck. Jessica Gonzales sued the police officers and town for $30 million under the federal Civil Rights Act and claimed she had a protected property interest in the enforcement of the protective order. A divided panel of the 10th Circuit agreed, saying that the failure to enforce the order was a denial of process required under the Constitution. The appeals court’s decision was rooted in the language of the Colorado statute, which says that police “shall” make a determination whether a protective order is being violated. The town of Castle Rock argues that the language gives police more discretion. During arguments today, the justices did not appear swayed by the 10th Circuit’s decision or the nine amicus briefs, signed by 113 organizations, filed on Gonzales’ behalf. Justices Ruth Bader Ginsburg, Sandra Day O’Connor, and Antonin Scalia asked whether the state of Colorado intended to create a property interest in the order’s enforcement. Eastman, arguing for Castle Rock, said that the 10th Circuit decision was “creating something Colorado didn’t intend to create.” Such a suit uses “state law to invoke federal protection. … [We] can’t allow federal courts to make that decision,” he said. Justice Stephen Breyer voiced concern that reading a property right into a statute with mandatory language would open the courts to all kinds of suits. Justices David Souter and Scalia both echoed that concern, with Scalia asking, “Is everything in the world life, liberty, or property?” Eastman also argued that Castle Rock wasn’t liable for its actions, because the town wasn’t a party to the protective order. “The protective order was issued against Mr. Gonzales; it was not issued to the police,” Eastman said. In a barely audible voice, Rehnquist suggested that Gonzales may have had an alternative remedy of a civil suit in tort, rather than under a federal statute. Ginsburg appeared to be the only justice probing the issue from the side of domestic violence advocates. “What does the protective order do then?” she asked John Elwood, an assistant U.S. solicitor general who also argued in support of Castle Rock. “The police are not bound to respond?” Elwood said that police did not have a legal duty to respond, citing Supreme Court precedent. The Court in its 1989 DeShaney v. Winnebago County ruling held that state actors, such as Castle Rock, are generally not liable for private violence or the acts of third parties. The Court in DeShaney held that social workers and social services were not liable for placing a young boy, Joshua DeShaney, in his father’s custody despite knowledge of physical abuse. That decision was written by Rehnquist and joined by current Justices Anthony Kennedy and John Paul Stevens, as well as by O’Connor and Scalia. DeShaney addressed substantive due process — which involves fundamental rights emerging from the Constitution — rather than the procedural due process at issue in Castle Rock. Procedural due process may involve state statutes that create a property entitlement or process.Gonzales’ attorney, Brian Reichel of Broomfield, Colo., opened his argument stating that a high school student threatened with detention receives “more process” than his client. “We believe that what my client asks is much less than what police officers do every day,” he said. He argued that the statute required some “good faith assessment of probable cause” and for the police to give some kind of notice concerning their response to the order. Breyer acknowledged that “[i]t’s outrageous what happened and a terrible tragedy” and said police “should respond,” but they didn’t. But he, too, said that Gonzales should have sought alternative remedies through state rather than federal law. And Kennedy suggested that it was “the result, not the procedure” that Reichel was disputing.Reichel countered that there was “no procedure,” emphasizing that the police failed to respond and Gonzales was never notified. “The point at which she realized the police weren’t doing anything,” he argued, “the children were dead.”

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