Niji Jain, Engendering Fairness in Domestic Violence Arrests: Improving Police Accountability Through the Equal Protection Clause

• Publication year: 2011

ENGENDERING FAIRNESS IN DOMESTIC VIOLENCE ARRESTS: IMPROVING POLICE ACCOUNTABILITY THROUGH THE EQUAL PROTECTION CLAUSE

ABSTRACT

When police decline to respond to reported violations of restraining orders, victims of gender-based violence and their children suffer tragic consequences. Congress enacted 42 U.S.C. § 1983 to remedy problems of this sort by lifting the shield of immunity when a state actor violates an individual’s constitutional rights. A credible threat of liability for police officers is imperative to encourage police to act in a way that protects individuals from harm. However, the Supreme Court has substantially limited the possible

§ 1983-based causes of action a victim of gender-based violence can bring

against a police officer. The only remaining avenue for liability is an equal protection claim. However, equal protection challenges have met such consistent rejection in the lower federal courts that many scholars believe they are not a tenable strategy for police accountability.

This Comment develops an equal protection claim distinct from those that have failed in lower courts. Rather than relying on disparate impact-based arguments, this Comment formulates a new equal protection claim by reframing the challenged state action and the basis of classification. The claim challenges an officer’s use of gender stereotypes in responding to victims. This Comment will show that basing a discretionary decision about how to respond to a victim on a stereotypical assumption about women is an unconstitutional gender classification that fails intermediate scrutiny and therefore violates the victim’s right to equal protection.

INTRODUCTION 1013

1. POLICE (UN)ACCOUNTABILITY TODAY: A SAD STATE OF AFFAIRS . 1015

   1. Historical Background and Restraining Orders Today 1015

   2. State Immunity from Claims of Ineffective Enforcement 1017

   3. Past Attempts to Overcome the Barriers of Immunity 1019

      1. Substantive Due Process 1019

      2. Procedural Due Process 1020

      3. State Tort Remedy 1022

   4. Making the Case for Police Accountability: Why Police Enforcement Is Necessary 1023

2. EQUAL PROTECTION: A BELEAGUERED AVENUE FOR POLICE ACCOUNTABILITY 1025

   1. Background and Summary of Equal Protection Under the Constitution 1025

   2. Past Attempts to Obtain Intermediate Scrutiny: Discrimination Against Women or Against Victims of Domestic Violence 1027

      1. Failed Attempts at Intermediate Scrutiny 1028

         1. Lack of Data to Demonstrate Discriminatory Policies 1029

         2. Feeney’s Overly Stringent Standard: Showing a Discriminatory Purpose 1031

      2. Rational Basis Review: An Impossible Standard to Meet .. 1033

3. REFORMULATING THE CLAIM: REVIVING INTERMEDIATE SCRUTINY FOR VICTIMS OF GENDER-BASED VIOLENCE 1034

   1. The Government Action and Triggering Intermediate Scrutiny: Gender-Based Stereotypes Instead of Disparate Impact 1034

      1. The Government Action 1035

      2. Gender-Based Stereotypes in Discretionary Police Decisions 1036

         1. Gender-Based Stereotypes and the Law 1037

         2. Gender-Based Stereotypes and Police Discretion in Domestic Violence Arrests 1039

   2. The Government Interest: Applying the Intermediate Scrutiny

      Test 1043

      1. Interpretation Number One: The Interest in Discrimination 1044

      2. Interpretation Number Two: The Interest in Allocation of

         Time and Resources 1044

      3. Interpretation Number Three: The Broadest Government Interest 1046

CONCLUSION 1047

INTRODUCTION

In 1999, Jessica Gonzales obtained a domestic violence restraining order1 protecting herself and her three daughters against her abusive ex-husband, Simon Gonzales.2 In the month after she obtained the restraining order, Ms. Gonzales called the local Castle Rock police on four or five occasions to report serious violations of the order by Mr. Gonzales.3 On none of these occasions did the Castle Rock police arrest Mr. Gonzales, despite having probable cause to do so.4 A month after the order was issued, Mr. Gonzales kidnapped the three girls from the front yard of the family home.5 When Ms. Gonzales realized the girls were missing, she immediately called the police department because she suspected that Mr. Gonzales had taken them. Despite Ms. Gonzales’s indication to the dispatcher that Mr. Gonzales’s actions were in violation of a restraining order, the Castle Rock police took no action in response to Ms. Gonzales’s request for help.6 When two police officers were dispatched to her home two hours later in response to a second phone call, they told her they could not do anything, despite the restraining order, because the children were with their father.7

1. Town of Castle Rock v. Gonzales, 545 U.S. 748, 751 (2005). On May 21, 1999, a Colorado trial court issued a temporary restraining order prohibiting Mr. Gonzales from “molest[ing] or disturb[ing] the peace” of Ms. Gonzales and their children, ages seven, nine, and ten, and from coming within one hundred yards of the family home. Id. On June 4, 1999, with both Mr. and Ms. Gonzales present in court, the judge made the order permanent as part of their divorce proceedings after modifying it to allow Mr. Gonzales “a midweek dinner visit arranged by the parties.” Id. at 752–53 (quoting Gonzales v. City of Castle Rock, 366 F.3d 1093 (10th Cir. 2004) (internal quotation marks omitted)).

2. Brief for Petitioner at 6, Gonzales v. United States, Case 12.626, Inter-Am. Comm’n H.R. (2008)

   [hereinafter Gonzales Brief]. Jessica and Simon Gonzales had been married for nine years, during which time they had three daughters. Id. Since 1996, Mr. Gonzales’s behavior had become increasingly “erratic.” Id. Ms. Gonzales decided to file for divorce in 1999, after Mr. Gonzales attempted to hang himself in the family garage and Ms. Gonzales determined that she needed to take steps to protect herself and her children from his behavior. Id.

3. Id. at 9.

4. Id.

5. Castle Rock, 545 U.S. at 753.

6. Gonzales Brief, supra note 2, at 10, 11.

7. Castle Rock, 545 U.S. at 753; Gonzales Brief, supra note 2, at 12.

   Later that night, Ms. Gonzales reached Mr. Gonzales on his cell phone, and he informed her that he had the girls at an amusement park in Denver.8 Again, Ms. Gonzales contacted the police. But the officer with whom she spoke refused to send anyone to the amusement park, instead telling her to wait and see if Mr. Gonzales returned the girls.9 At midnight, when the children still had not returned, Ms. Gonzales drove to Mr. Gonzales’s apartment to see if he and the children were there; when she found no one at home, she drove to the police station to make an incident report.10 The officer to whom she submitted the report “made no reasonable effort to enforce the [restraining order] or locate the three children. Instead, he went to dinner.”11

   
   

   At approximately 3:20 a.m., Mr. Gonzales arrived at the police station, parked his pick-up truck, and opened fire on the station with a semi-automatic handgun that he had purchased earlier that evening.12 The police fired back, killing Mr. Gonzales. Inside his truck, they found the dead bodies of all three Gonzales daughters.13

   
   

   Although the sad facts of Castle Rock occurred more than ten years ago, such cases remain salient because the Supreme Court has held that the federal government has no substantive role in regulating and preventing violence against women.14 This Comment begins with the premise that the police

   should have done more to enforce Ms. Gonzales’s restraining order. Failure to do so resulted in the death of three of the four individuals protected by a court-

   
   

8. Castle Rock, 545 U.S. at 753.

9. Id. According to Ms. Gonzales, the officer refused to send someone to the amusement park because it was outside of the Castle Rock Police Department’s jurisdiction, and refused to put out an all points bulletin— an electronic dissemination of information about a wanted person—because it would “needlessly go statewide and would cost the state money.” Gonzales Brief, supra note 2, at 14.

10. Castle Rock, 545 U.S. at 753.

11. Id. at 754 (internal quotation marks omitted).

12. Id.

13. Id.

14. See United States v. Morrison, 529 U.S. 598, 598–99 (2000). In Morrison, the Court struck down a provision of the Violence Against Women Act, which created a federal cause of action allowing victims of gender-based violence to sue their perpetrators in federal court, as an unconstitutional exercise of

    congressional power under both the Commerce Clause and section 5 of the Fourteenth Amendment. Id. The Court held that such a remedy encroached too far upon states’ rights despite extensive congressional findings that gender-based violence affects interstate commerce and that pervasive bias in state justice systems against victims of gender-motivated violence was resulting in systematic underprosecution of gender-based violence crimes. Id. The attorneys general of thirty-six states had endorsed this remedy provision as “a particularly appropriate remedy for the harm caused by gender-motivated violence” in light of the “States’ own studies demonstrat[ing] that their efforts to combat gender-motivated violence, while substantial, are not sufficient by themselves.” Brief of the State of Arizona et al. as Amici Curiae Supporting Petitioners, United States v. Morrison, 529 U.S. 598 (2000) (Nos. 99-5, 99-29).

    issued order of protection and significant emotional trauma to the fourth. One way to encourage the enforcement of restraining orders is to present police with a credible threat of liability if they fail to do so. This Comment develops a new litigation strategy under § 1983 for victims who are harmed by, and wish to hold police accountable for, police failure to enforce their restraining orders. Part I of this Comment describes the present state of police unaccountability, including the Supreme Court’s rejection of both substantive and procedural due process theories for police liability under § 1983. Part II analyzes the failure of equal protection-based § 1983 challenges in lower courts. Part III presents an equal protection argument distinct from those that lower courts have thus far heard and rejected. This claim argues that police may no longer use gender stereotypes when responding to violations of restraining...