supremes to women: you're on your own

On June 27, the Supreme Court once again turned back the clock on social progress. For some, this reversal will be fatal.

In the not-distant past, when the police were called to a home because of domestic violence, it was up to them whether or not they made an arrest. Traditionally, they did nothing.

Because domestic violence was perceived as a private, family matter, rather than the criminal behavior that it is, many women and children were killed by raging husbands, boyfriends and stepfathers. (Occasionally the genders are reversed, or both victim and abuser are the same gender. I'm using the most common scenario.)

The cause-and-effect link between police discretion and escalating violence or murder has been well documented.

Anti-domestic-violence activists have worked very hard, on the state and county level, to pass mandatory arrest laws. Mandatory arrest means that when the police are called to a domestic violence scene, someone is going to spend the night in jail. In some states, the law requires a pre-existing restraining order or an order of protection. Therefore, women have been urged to take that step against their assailants.

But restraining orders without mandatory arrest laws are worth less than the paper they're printed on. If calling the police results in "You play nice now, y'hear?" or "Hey, if he needs to teach his wife a lesson, that's his business," why would women ever call the police?

Mandatory arrest works on another level, too. By correctly classifying domestic violence as assault, it causes people to think about domestic violence in a different way. It's part of a profound shift in social attitudes that's occurred in the last 25 years.

The movement towards mandatory arrest has been a long road, traveled by thousands of activists across the country. It has educated people, it has changed attitudes, and it has saved lives.

Lest I be accused of being unfair to the police, please know that I'm not talking about all police officers, by any means. Attitudes towards domestic violence have changed tremendously (thanks to activists), and that includes police attitudes, too. Through special training, and through their own compassion and sense of justice, police officers all over the US have helped save the lives of women and children who were being brutalized. In fact, the police are often at the forefront of changes in a community. It's certainly true in New York City.

However, attitudinal changes happen slowly, and unevenly, and in some places, not at all. Police are human, they live in society, and their attitudes will reflect that. It stands to reason that some cops will cling to outdated assumptions about domestic violence. Mandatory arrest laws guard against that.

Now the Supreme Court has seen fit to turn back the clock. The story is no longer available online, so I'm copying the whole thing here.

Please read it. It's terrible, and important. Emphasis mine.

Justices rule police do not have a constitutional duty to protect someone

By Linda Greenhouse
New York Times

WASHINGTON, June 27 - The Supreme Court ruled on Monday that the police did not have a constitutional duty to protect a person from harm, even a woman who had obtained a court-issued protective order against a violent husband making an arrest mandatory for a violation.

The decision, with an opinion by Justice Antonin Scalia and dissents from Justices John Paul Stevens and Ruth Bader Ginsburg, overturned a ruling by a federal appeals court in Colorado. The appeals court had permitted a lawsuit to proceed against a Colorado town, Castle Rock, for the failure of the police to respond to a woman's pleas for help after her estranged husband violated a protective order by kidnapping their three young daughters, whom he eventually killed.

For hours on the night of June 22, 1999, Jessica Gonzales tried to get the Castle Rock police to find and arrest her estranged husband, Simon Gonzales, who was under a court order to stay 100 yards away from the house. He had taken the children, ages 7, 9 and 10, as they played outside, and he later called his wife to tell her that he had the girls at an amusement park in Denver.

Ms. Gonzales conveyed the information to the police, but they failed to act before Mr. Gonzales arrived at the police station hours later, firing a gun, with the bodies of the girls in the back of his truck. The police killed him at the scene.

The theory of the lawsuit Ms. Gonzales filed in federal district court in Denver was that Colorado law had given her an enforceable right to protection by instructing the police, on the court order, that "you shall arrest" or issue a warrant for the arrest of a violator. She argued that the order gave her a "property interest" within the meaning of the 14th Amendment's due process guarantee, which prohibits the deprivation of property without due process.

The district court and a panel of the United States Court of Appeals for the 10th Circuit dismissed the suit, but the full appeals court reinstated it and the town appealed. The Supreme Court's precedents made the appellate ruling a challenging one for Ms. Gonzales and her lawyers to sustain.

A 1989 decision, DeShaney v. Winnebago County, held that the failure by county social service workers to protect a young boy from a beating by his father did not breach any substantive constitutional duty. By framing her case as one of process rather than substance, Ms. Gonzales and her lawyers hoped to find a way around that precedent.

But the majority on Monday saw little difference between the earlier case and this one, Castle Rock v. Gonzales, No. 04-278. Ms. Gonzales did not have a "property interest" in enforcing the restraining order, Justice Scalia said, adding that "such a right would not, of course, resemble any traditional conception of property."

Although the protective order did mandate an arrest, or an arrest warrant, in so many words, Justice Scalia said, "a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes."

But Justices Stevens and Ginsburg, in their dissenting opinion, said "it is clear that the elimination of police discretion was integral to Colorado and its fellow states' solution to the problem of underenforcement in domestic violence cases." Colorado was one of two dozen states that, in response to increased attention to the problem of domestic violence during the 1990's, made arrest mandatory for violating protective orders.

"The court fails to come to terms with the wave of domestic violence statutes that provides the crucial context for understanding Colorado's law," the dissenting justices said.

Organizations concerned with domestic violence had watched the case closely and expressed disappointment at the outcome. Fernando LaGuarda, counsel for the National Network to End Domestic Violence, said in a statement that Congress and the states should now act to give greater protection.

In another ruling on Monday, the court rebuked the United States Court of Appeals for the Sixth Circuit, in Cincinnati, for having reopened a death penalty appeal, on the basis of newly discovered evidence, after the ruling had become final.

The 5-to-4 decision, Bell v. Thompson, No. 04-514, came in response to an appeal by the State of Tennessee after the Sixth Circuit removed a convicted murderer, Gregory Thompson, from the state's death row.

After his conviction and the failure of his appeals in state court, Mr. Thompson, with new lawyers, had gone to federal district court seeking a writ of habeas corpus on the ground that his initial lawyers had been constitutionally inadequate. The new lawyers obtained a consultation with a psychologist, who diagnosed Mr. Thompson as schizophrenic.

But the psychologist's report was not included in the file of the habeas corpus petition in district court, which denied the petition. It was not until the Sixth Circuit and then the Supreme Court had also denied his petition, making the case final, that the Sixth Circuit reopened the case, finding that the report was crucial evidence that should have been considered.

In overturning that ruling in an opinion by Justice Anthony M. Kennedy, the majority said the appeals court had abused its discretion in an "extraordinary departure from standard appellate procedures." Chief Justice William H. Rehnquist and Justices Scalia, Clarence Thomas and Sandra Day O'Connor joined the opinion.

In a dissenting opinion, Justice Stephen G. Breyer said the majority had relied on rules to the exclusion of justice. Judges need a "degree of discretion, thereby providing oil for the rule-based gears," he said. Justices Stevens, Ginsburg and David H. Souter joined the dissent.

If "well-established tradition" can trump law, what do we have?