High Court Issues Restraining Ruling

By: Justin Williams
By: Justin Williams

A landmark decision by the U.S. Supreme Court this past week has some citizens concerned about police response.

The high court essentially said Jessica Gonzales did not have the right to sue police after they failed to arrest her estranged husband for violating her restraining order. The man would eventually kill Jessica's three young daughters.

Local police say area residents needn't be concerned, while an attorney says others may not be so fortunate.

"It seems as if a lotta people wanna talk about police not enforcing a restraining order and that's not the case," says Madison Police officer, Howard Payne, who explains the recent Supreme Court decision which upheld police discretion in determining whether to respond, will not lead to any changes in department protocol.

"We are going to operate under the same pretense that we've always operated under when it comes to restraining order violations," says Officer Payne.

He adds Madison police will make an arrest once they determine: the existence of am order filed by complainant, that the order has been duly served, and that a violation of the order has occurred.

"Even in that situation, the police cannot be sued for failing to arrest someone, and the reason is that we have to preserve police discretion," says UW political scientist and local attorney Howard Schweber, who explains the decision reinforces the absence of affirmative rights.

"We do not have a Constitutionally guaranteed right to have the government do things for us," says Schweber. He adds Madison residents shouldn't necessarily feel vulnerable in light of the ruling, but he explains it could have negative implications in communities which complain of poor police response.

"If you have reason to be mistrustful of your police department, then you have, indeed, lost what was, perhaps the most potent weapon that an individual private, citizen had in that situation," continues Schweber.

Schweber also calls the decision ironic explaining it continues the practice of denying affirmative rights by judicial conservatives -- the same folks who argued for the same rights in a recent Florida case.

"They were claiming that Terry Schiavo has a right to have the government protect her, which is exactly the claim Mrs. Gonzales made in the Castle Rock case, and, of course, she lost that one."

Schweber says Wisconsin -- like Colorado -- is one of 30 states which require an arrest if there is probable cause to believe a restraining order has been violated.

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