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Absolutely Uncommon Analysis of Family –and "Conciliation" — Courts' Operations, Practices, and History

Independence Day + 3: Police Have No Duty To Protect, says lawsuit after lawsuit….

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I am getting tired of this blog’s cumulative format.   Am planning a different kind of blog, that should be more useful to both men and women in the family law courts, without antagonizing either.  It will be less reporting / narrative and more tools.

Because all the toolkits and technical assistance for special resource centers are great for disseminating information — among professional advocacy groups at least — but they do not stop bullets.  And they do not say why, when this happens, a family law case went south resulting in a family wipeout, or another parent completely eliminated from the children’s life.

The  best people to explain the systems which do this is NOT the people on the take — or on the legitimate grant system — from the same systems!   It’s important to read their reasonings, self-descriptions, and literature, but not necessary to accept their analysis.   

I study grants on certain topics or certain companies related to family courts — and I know I have barely scratched the surface (because to study them properly requires database search tools and time I don’t have.  I also know — quite well – -that neither TAGGS nor USASPENDING.GOV are completely accurate or, for that matter, complete.  For example, one should be able to search by DUNS#.  However, many database entries of groups with DUNS#s — have none in TAGGS and wouldn’t be pulled up by such a search.   One should be able to search by name, but there are some remarkable misspellings of the words “responsible fatherhood” and “initiative” in TAGGS, and enough of them I wonder why.  Most people can spellcheck, or if an error has been found, correct it, right?  Why have these errors gone on for years?

IF RESTRAINING ORDERS ARE UNENFORCEABLE, WHY ARE THEY STILL BEING ISSUED AS A SOLUTION TO VIOLENCE?  IS THIS REASONING APPLIED IN DIPLOMACY BETWEEN FOREIGN COUNTRIES AND THE U.S.?    – – – – NO!    There’s reasoning, debate, diplomacy, sanctions, and/or war.  It is always a matching of strength to strength.

 

Here’s a statement from Catherine Pearce, then of OVW, as to what is being done — it is a summary, from 2009, before the Senate Committee on the Judiciary:

 

 

STATEMENT OF
CATHERINE PIERCE

ACTING DIRECTOR
OFFICE ON VIOLENCE AGAINST WOMEN
UNITED STATES DEPARTMENT OF JUSTICE

BEFORE THE
UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY

HEARING ENTITLED
“THE CONTINUED IMPORTANCE OF THE VIOLENCE AGAINST WOMEN ACT”

PRESENTED JUNE 10, 2009

Introduction

Thank you, Chairman Leahy, Senator Sessions, and members of the Committee, for the opportunity to speak with you today. My name is Catherine Pierce, and I am the Acting Director of the Department of Justice’s Office on Violence Against Women (OVW). I am here today to discuss both the great strides forward that we have made in the fifteen years since the Violence Against Women Act (VAWA) was enacted and the many challenges that still lie ahead of us in our efforts to combat violence against women.

Support for Community Efforts to End Violence Against Women

The Office on Violence Against Women (OVW) administers financial support and technical assistance to communities across the country that are creating programs, policies, and practices aimed at ending domestic violence, dating violence, sexual assault and stalking.

 

This is an honest description of what’s being done — creating “Programs, policies and practice” AIMED at ending these things….  After listing many of their programs (worth a read!) and how $3.5 billion had been spent since 1995 on this).  it is, in fact, a programs, policies and practices-creator, a.k.a. virtual business incubator.

For example, in the six-month reporting period from January to June 2008 alone, OVW discretionary program grantees reported that:

  • Nearly 115,500 victims were served;
  • More than 228,000 services (including shelter, civil legal assistance and crisis intervention) were provided to victims;
  • More than 3,500 individuals were arrested for violation of protection orders; and
  • 261,622 protection orders were granted in jurisdictions that receive funding from OVW’s Grants to Encourage Arrest Policies and Enforcement of Protection Orders Program (Arrest Program).

In addition, subgrantees receiving funding awarded by States through OVW’s STOP Violence Against Women Formula Grant Program (STOP Program) reported that, in calendar year 2007:

  • More than 505,000 victims were served;
  • Over 1,201,000 services were provided to victims; and
  • More than 4,700 individuals were arrested for violations of protection orders.

These funds not only help the victims who receive services; they are used by OVW grantees to change the way that our criminal justice system responds to domestic violence, dating violence, sexual assault, and stalking. Again, the raw numbers show the far reach of VAWA funding:

  • During the three-and-a-half year period from January 2005, through June 2008, OVW’s grantees reported training nearly 875,000 individuals, including 142,339 law enforcement officers, 15,380 prosecutors, and 24,159 court personnel.
  • During the four-year period of 2004 through 2007 combined, STOP subgrantees reported training about 1,138,000 individuals, including 347,382 law enforcement officers, 25,715 prosecutors, and 37,775 court personnel.

Scroll down — down — still further down past all the programs and wonderful things OVW has done and is doing, and read the astounding proclamation, about 1/4′ below the bottom of the web page, as to the scroll bar) — and we learn that:

Addressing Domestic Violence Homicide

OVW recognizes the need to focus future efforts on the prevention of domestic violence homicide.

Amazing that this isn’t the TOP priority, throughout, given that this is where the movement started stop it!

Research has identified several risk factors associated with increased danger for women in violent relationships.

Yes it has — and this risk assessment was out as far back as 1999.   I’ve read’em.  Now, they are marketing risk assessment to family law professionals (Border & McLaughlin) and Barbara J. Hart ,who authored some of the earlier risk assessments (which are still ignored routinely when it comes to custody matters) is now doing webinars with BWJP, from  Maine.

These include an abuser’s threats to kill or harm her, himself, or their children; unemployment; forced sex; and the presence of a gun. Advocates, law enforcement officers, prosecutors, and the courts {{WHICH COURTS?   BECAUSE, IT’S 2011, and CERTAIN COURTS WILL NOT DO THIS YOU KNOW WHICH ONES I MEAN!) must take aggressive steps to plan for a victim’s safety when any combination of risk factors is present.

MUST THEY?  The Police have no duty to protect, judges are immune from prosecution for damages incurred while ruling as a judge (Luzerne County PA, even when they were convicted of violation of RICO outside it!). Family law judges have wide discretion, and there are no sentencing guidelines for family law as there are for criminal law.  We may want all these entities to “plan for a victim’s safety” but is there a legal way to force them to?  Probably not.

By the time abuse escalates to homicide, we know that someone in the family, the neighborhood, or the perpetrator’s or victim’s workplace is aware that something is terribly wrong.

Yes, but these other entities — family, neighborhood, employers — probably all pay taxes and believe it’s the courts and the police’s duty to protect at some level.  They cannot take on the entire situation, and in fact a woman out of the San Diego “Family Justice Center” even sued its head for requiring her to function as a domestic violence counselor/advocate (and much more) at work — her work was clerical in nature, not social work.

OVW will continue to partner with other Federal agencies, the research community, criminal justice organizations, and advocacy groups to develop innovative responses with the hope and intention of preventing future domestic violence homicides.

The only kind of thing one can prevent is something in the future; why add the word “future domestic violence homicides”?

While I am glad that the OVW and these groups “hope and intend” to prevent domestic violence homicides (to save women’s lives who have been targeted for it), who, really, can translate their hope and intention to actual lives saved?  The evidence sited above talks about restraining orders issued, people trained, people served.

Research indicates that a victim of domestic violence is more likely to suffer a fatal injury if a firearm is present in her home.** For that reason, OVW has recently focused our efforts on the federal firearms provisions that prohibit firearms possession by persons subject to qualified restraining orders and convicted of misdemeanor crimes of domestic violence

**That’s IF the aggressor is in her home.   Now let’s talk about whether restraining orders actually restrain and whether women should rely on them.  They come with disclaimers, I know — but they are still being sold and pushed.  Because if these restraining orders (#1) don’t protect, really; (#2) aren’t enforceable, really (and this post will prove why they aren’t); you cannot DEMAND any police officer arrest for a violatino of a restraining order; and if — much more vital (#3) the next step in separating from any abuser one has children with is a visit to the local family law courthouse — that restraining order IS going to come off, and probably sooner rather than later.  Why?  The Family law system is run by AFCC; AFCC is father friendly and mother hostile, no matter how the posturing continues.  If you want to challenge me on that, and have read at least the last 2 months’ posts, then submit a comment with an intelligent question, and I’ll point to the evidence..

Prohibiting them from owning or possessing firearms is a deterrent, probably (depending on the person), but are we talking only statistics, likelihoods, or — when it comes to individual lives — absolutely saving them.  I happen to believe that any $3.5 billion program that creates ore programs should have to prove LIVES SAVED, not PEOPLE SERVED.

If a determined person with a restraining order on has ONE friend with a gun, that person could then use the gun to shoot the intended victim.  Or use something else.  Why is there no recommendation to teach victims self-defense at least in their own homes?  I even did a 10-year survey of DV homicides in (I forget whether PA or MN) — and the woman who deterred a restraining order violation, her home — with a gun — she LIVED.  Many of the others did not.  Incidentally, she shot the man. She did not rely on the police exclusively and I’ll bet she knew the legal ramifications of having a gun in the home.

NO –  This is not the way to “end domestic violence’ it is the way to continue creating programs, policies and practices that aim at, hope for, and intend to end domestic violence, including “future homicides.”  Take the “aim at, hope for, and intend to” standard to any other sphere of life — medicine, lifeguard, emergency room personnel, or say, teaching kids to read — and is it good enough to justify more money for more ongoing programs, when they haven’t succeeded or even proved to have made a  dent?  No, that standard is not good enough.

 

What we (particularly women) need to know:

Perhaps THE most important thing any woman with a restraining order on and who has children with the restrained person in her household needs to know is that it does NOT necessarily increase her safety more than for a few days.  She also needs to know who she is dealing with — and that while her instincts are for HER and her kids’ survival; the institutions issuing the restraining orders instincts are for THEIR own organizational an dinstitutional survival, in the long term.

She NEEDS to know that Castle Rock v. Gonzales got to the US Supreme Court and was turned back, and is now being cited by others for immunity when parents with dead children try to get some accountability for why the police wouldn’t do something about a violated restraining order, or children not returned in time from visitation in the context of previous death threats.

She needs to change her center of balance and where she looks for the power to stay alive and keep her kids alive and well. 

She needs to also know about the family law system — and that means, AFCC professionals, case-steering, case-prolonging, adding professionals to the case unnecessarily — and the role of the child support system as leverage.   She needs to completely understand that these courts consider themselves therapy-dispensers FIRST and law & evidence SECOND (if then).    She needs to know that it’s unlikely a judge will be held accountable for a bad decision – and what tools there are (instead, legally) to hold them accountable, for example, continuing to preside on a case when a conflict of interest says they should have recused themselves.

 

I mistakenly thought I could, with court order in hand, go to police (when we were exchanging children there) and expect them to enforce a VERY clear order.  “Law enforcement” — right?    On that one, I lost custody of my children; they lost a mother involved in their lives (and all prospects of any child support, in this particular context) and it STILL hasn’t been brought out exactly who all was involved.  Officers enabled my husband to violate a standing custody order in the context of prior reported threats to kidnap, which information I had turned in and reported, and sought protection from — very recently and more than once.   That one refusal to enforce by the officers involved led to a swift degradation on the father’s side of any idea that he was at all accountable to these court orders, and mine that anyone was around who might help me – if judges and mediators wouldn’t.   This was long before I knew about “Access and visitation.”

 

WHY SUPPORT ALL THESE “FAMILY” and “PROTECT” INDUSTRIES WHEN WE KNOW BOTH POLICE AND FAMILY LAW JUDGES HAVE SUCH WIDE DISCRETION AS TO MAKE ORDERS UNENFORCEABLE, AND WITHOUT CONSEQUENCES IF INTENTIONAL FAILURE TO ENFORCE?  DOES THAT MAKE GOOD BUSINESS SENSE, is it COMMON SENSE?  OR JUST SOME MYTHS WE HAVE BEEN FORCE-FED; WITHOUT ANALYZING THEM?

 

 

Both Domestic Violence and Fatherhood are now full-fledged industries.  They are not as large, I think, as the Child Support Collection Industry, but they are mainstreamed.  The Domestic Violence Statewide Coalitions have not yet ONCE, to my knowledge, even actually blogged, publicized or “outed” what is happening with funding on the other side, and allegedly opposing their initiatives – – – i.e., the “fatherhood” grants,  but even more relevant, I have yet to see a mainstreamed domestic violence nonprofit actually “out” the Association for Family and Conciliation Courts along with Children’s Rights Council; put it in a historical context, and recommend others talk about this, or do anything about it.

The Court professionals (addition of mediators, evaluators, psychiatrists, parenting coordinators, attorneys, judges, etc., etc.) have many associations — several interrelated with each other — but the primary one to bring on the mental health specialists was indeed Association of Family & Conciliation Courts (CRC), with help from the Children’s Rights Council (CRC).  These then helped from groups at the judicial level in California and maybe another state or so, called “CFCCs” — Center for Family & Children in the Courts.”  Some law schools also have CFCCs (for example, University of Baltimore School of Law).  These are other industries of trainers; they are constantly training young blood in how to handle difficult parents, or high-conflict families — while profiting from the conflict they help stir up elsewhere in the system by very unfair rulings.

 

Bottom line:

We are still not equal under the law (men and women) in practice, and both sides feel slighted.   Yet somehow (see “wingspread conference”) both DV experts and FR experts feel free to conference together and NOT question the Duluth model, i.e., that a “Collective Community Response” (CCR) _- which of course they are ready to spearhead — will indeed stop violence.  This model should be questioned in terms of what proof it has that it is saving lives.  Saving lives should be NUMBER ONE in any response to violence, and after that, I’d have to say, stop anyone from raping and molesting kids.    What men and women SHOULD have in common is an understanding that it’s best for ALL of us if there is no favoritism in the law –but as both law enforcement and Congress are so dominated by males (and Congress by white males, specifically) and is basically a male institution — there remains a problem if police will not interfere, arrest, and judges not prosecute when there has been a domestic violence incident.

 

Remembering the Distant Past:

The people who wrote our constitution were under few illusions about the depths to which human nature could go (and we know many owned slaves, and tolerated slave-trafficking).  I posted the articles on the Irish Slave Trade in the 1600s yesterday remembering also that these were years of turbulence around who got to dominate the religion of the land as well.  The Puritan religion was fierce, and Cromwell claimed to be backed by God in his abuses to counteract the abuses of the king.  The king protested the pope.    Religion entrenched in government IS the worst, because of human capacity for hate, and to abuse power.  It is pure unmitigated control — control of the military, the monetary, the food, and obviously the information.  Also, may I add control of the children– the next generation.

Religion plus greed is not bad combination, and while some heirarchy is need to get things done in life, too much in government means too much government.     And of course, we are there and beyond there already.

 

Remember Castle Rock v. Gonzales

I also posted on this, around the series talking about Luzerne County; I believe the post was called “What Decade Is This?”

 

2005 — a New York Times article reminds us that there is NO duty to protect between officers and a specific person, even a specific person with a restraining order in a state with a mandatory arrest policy!

From a NYT article:

Justices Rule

Police Do Not Have a Constitutional Duty

to Protect Someone

By LINDA GREENHOUSE
Published: June 28, 2005

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.

Yes, it is clear that children are not property — or IS it?   But listen to the reasoning from Scalia and from the dissenting justices:

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.

 

 

 

The sites which come up under “no Duty To Protect” tend to be about the 2nd amendment, right-to-carry and sometimes from the mouth of law enforcement.

I think these are good reality-checks.   We have a Supreme Court which enabled the Gonzales children to die, needlessly, with impunity to the police who refused to do anything until the Dad showed up firing — at the police station; which was too late for the girls.  A case in Pennsylvania involving a violent policeman  / husband also showed he was getting worked up to kill someone — but never got the restraining order til the last minute, and almost never spent a night in jail, no matter what he did to his wife.  (I blogged it).  Finally, he shot a hole in his wife’s chest (shortly after restraining order, and subsequent release) and she tried to get some justice for her kids — financial damages (the man killed himself afterwards.  In this case, I am wondering if some medication was not related…..).  She couldn’t — why?  They cited Castle Rock v. Gonzales (Burella — I blogged this one).       I also reported the NJ Toms River case where the woman shot had also done all the “right” things — and she was a DFYS employee — but he got released suddenly, and she died.  And I looked at the domestic violence funding for NJ, too.

 

So, I am NOT telling anyone what to do (not being a lawyer or in law enforcement myself), but I feel it relevant to point out — the Police have no duty to protect — and most of them know this.  There are still heroic police all over who give their lives, including in some high-profile domestic violence shootings.  On the other hand, like in other sectors of humanity, there are corrupt police who themselves assault women and engage in bribery & extortion, putting a blot on the reputation of the honest ones.

Here’s a little ore information — and you can look up the same information.  The police have no DUTY to protect YOU, no matter what court order you have.  They also have no duty to enforce any standing family court order, nice as it might sound.  If you are going to then file contempt of court orders and require some kind of sanctions within the family law system, good luck, if you are female.  I personally feel it’s more important (if it came to community action) to figure out who has conflicts of interest surrounding the courtroom with related nonprofits taking grants money — or court-ordered business.  More than that, figure out if your judge or commissioner is AFCC.  If they are, then you know approximately what to expect in the courtroom.

When mediation has been PRIVATELY (as to tell both sides of the divorcing or separating parents) advertised and funded as one way to increase noncustodial parenting time — and this is obvious by now — then to force a CUSTODIAL parent into mediation is unfair and wrong, and potentially a setup.  Same for the supervised visitation and counseling industries.   Who does supervised visitation help the most?  Why should it even be there — to further empower the supervisors and who they report to? 

 

Use it or Lose it.  The duty to protect yourself (and your kids) lies with YOU — in all the ways that a monarch would usurp control (religion, safety, food & water, education, controlling your children).  The communal duty, seems to me is, to the extent you can, understand how your community is run, and get out of sleepwalk mode where necessary.    Seems to me, as we do live in the internet age, we have also a duty to develop some skills to figure out how our taxes are being spent.

When I was being assaulted in my home and asked repeatedly for help (various people & institutions) it took a LONG time to know about a restraining order option or that that behavior was criminal.  Years to find out.  Thereafter, in the family law courts, none of the helping information gave the most relevant help.  They gave other kinds of information, but when you got right down to it, if your problem (and the family law system IS the problem….) didn’t fit in the precise category they were funded for, too bad.

When a family leaving an abusive relationship has to utilize Title IV-D funds, they are set up from the start, via the child support system.  There is a flag on their case that could be used to obtain more funds (not for them,but for the programs) and control over child support is OUT of that parent’s hands.  I didn’t even file a child support order at any time in my case.  Many women don’t — the county filed it on their behalf.  This seems good up front — but not when one considers that the grants administered by the OCSE are fatherhood and marriage-promotion friendly.

I knew I wanted to just not need child support, and was en route to doing so, but what I didn’t know was how the restraining order and fatherhood and child support and welfare industries work — and work together, without giving the clients enough information to make intelligent decisions on when to dis-engage.  Once you are in, it is HARD to get out.

 

OK, enough of my dialogue, and more of some others, on the topic:

 

Police Have No Duty To Protect Individuals.    Self-Reliance for Self Defense – Police Protection Isn’t Enough!

by Peter Kasler

All our lives, especially during our younger years, we hear that the police are there to protect us. From the very first kindergarten- class visit of “Officer Friendly” to the very last time we saw a police car – most of which have “To Protect and Serve” emblazoned on their doors – we’re encouraged to give ourselves over to police protection. But it hasn’t always been that way.

Before the mid-1800s, American and British citizens – even in large cities – were expected to protect themselves and each other. Indeed, they were legally required to pursue and attempt to apprehend criminals. The notion of a police force in those days was abhorrent in England and America, where liberals viewed it as a form of the dreaded “standing army.”

England’s first police force, in London, was not instituted until 1827. The first such forces in America followed in New York, Boston, and Philadelphia during the period between 1835 and 1845. They were established only to augment citizen self-protection. It was never intended that they act affirmatively, prior to or during criminal activity or violence against individual citizens. Their duty was to protect society as a whole by deterrence; i.e., by systematically patrolling, detecting and apprehending criminals after the occurrence of crimes. There was no thought of police displacing the citizens’ right of self-protection. Nor could they, even if it were intended.

Professor Don B. Kates, Jr., eminent civil rights lawyer and criminologist, states:

    Even if all 500,000 American police officers were assigned to patrol, they could not protect 240 million citizens from upwards of 10 million criminals who enjoy the luxury of deciding when and where to strike. But we have nothing like 500,000 patrol officers; to determine how many police are actually available for any one shift, we must divide the 500,000 by four (three shifts per day, plus officers who have days off, are on sick leave, etc.). The resulting number must be cut in half to account for officers assigned to investigations, juvenile, records, laboratory, traffic, etc., rather than patrol.

[1]

Such facts are underscored by the practical reality of today’s society. Police and Sheriff’s departments are feeling the financial exigencies of our times, and that translates directly to a reduction of services, e.g., even less protection. For example, one moderate day recently (September 23, 1991) the San Francisco Police Department “dropped” [2] 157 calls to its 911 facility, and about 1,000 calls to its general telephone number (415-553-0123). An SFPD dispatcher said that 150 dropped 911 calls, and 1,000 dropped general number calls, are about average on any given day. [3]

It is, therefore, a fact of law and of practical necessity that individuals are responsible for their own personal safety, and that of their loved ones. Police protection must be recognized for what it is: only an auxiliary general deterrent.

Because the police have no general duty to protect individuals, judicial remedies are not available for their failure to protect. In other words, if someone is injured because they expected but did not receive police protection, they cannot recover damages by suing (except in very special cases, explained below). Despite a long history of such failed attempts, however, many, people persist in believing the police are obligated to protect them, attempt to recover when no protection was forthcoming, and are emotionally demoralized when the recovery fails. Legal annals abound with such cases.

THE POLICE KNOW THIS.  IF YOU DO NOT, THEN YOU MAY NOT UNDERSTAND WHY THEY REFUSE TO ENFORCE.

Warren v. District of Columbia is one of the leading cases of this type. Two women were upstairs in a townhouse when they heard their roommate, a third woman, being attacked downstairs by intruders. They phoned the police several times and were assured that officers were on the way. After about 30 minutes, when their roommate’s screams had stopped, they assumed the police had finally arrived. When the two women went downstairs they saw that in fact the police never came, but the intruders were still there. As the Warren court graphically states in the opinion: “For the next fourteen hours the women were held captive, raped, robbed, beaten, forced to commit sexual acts upon each other, and made to submit to the sexual demands of their attackers.”

The three women sued the District of Columbia for failing to protect them, but D.C.’s highest court exonerated the District and its police, saying that it is a “fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen.” [4] There are many similar cases with results to the same effect. [5]

The seminal case establishing the general rule that police have no duty under federal law to protect citizens is DeShaney v. Winnebago County Department of Social Services. [6] Frequently these cases are based on an alleged “special relationship” between the injured party and the police. In DeShaney the injured party was a boy who was beaten and permanently injured by his father. He claimed a special relationship existed because local officials knew he was being abused, indeed they had “specifically proclaimed by word and deed [their] intention to protect him against that danger,” [7] but failed to remove him from his father’s custody.

The Court in DeShaney held that no duty arose because of a “special relationship,” concluding that Constitutional duties of care and protection only exist as to certain individuals, such as incarcerated prisoners, involuntarily committed mental patients and others restrained against their will and therefore unable to protect themselves. “The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.” [8]

About a year later, the United States Court of Appeals interpreted DeShaney in the California case of Balistreri v. Pacifica Police Department. [9] Ms. Balistreri, beaten and harassed by her estranged husband, alleged a “special relationship” existed between her and the Pacifica Police Department, to wit, they were duty-bound to protect her because there was a restraining order against her husband. The Court of Appeals, however, concluded that DeShaney limited the circumstances that would give rise to a “special relationship” to instances of custody. Because no such custody existed in Balistreri, the Pacifica Police had no duty to protect her, so when they failed to do so and she was injured they were not liable. A citizen injured because the police failed to protect her can only sue the State or local government in federal court if one of their officials violated a federal statutory or Constitutional right, and can only win such a suit if a “special relationship” can be shown to have existed, which DeShaney and its progeny make it very difficult to do. Moreover, Zinermon v. Burch [10] very likely precludes Section 1983 liability for police agencies in these types of cases if there is a potential remedy via a State tort action.

Many states, however, have specifically precluded such claims, barring lawsuits against State or local officials for failure to protect, by enacting statutes such as California’s Government Code, Sections 821, 845, and 846 which state, in part: “Neither a public entity or a public employee [may be sued] for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals.”

…..

 

HAVE I GOT YOUR ATTENTION NOW?  THINK ABOUT IT . . . . . WHY should everyone be getting restraining orders, and why should Duluth groups be training the nations’ police, judges, etc. — what’s right, when they know — but many of us do not — that no duty to protect exists, and not “special relationship” exists either?  California has THE largest court system in the country (we’re a big state) and we ought to know about SEctions 821, 845 & 846 (which I never heard of, til now), and then question what a District Attorney from Alameda County is going to Washington (with the team) for, to promote “Family Justice Centers”?  Why not just have self-defense absolutely required for high school graduation, and require also that all kids understand their 2nd amendment rights and all laws regarding guns? ( That sounds facetious, right? )

Instances of police refusing to protect someone in grave danger, who is urgently requesting help, are becoming disturbingly more common. In 1988, Lisa Bianco’s violently abusive husband was finally in jail for beating and kidnapping her, after having victimized her for years. Ms. Bianco was somewhat comforted by the facts that he was supposedly serving a seven-year sentence, and she had been promised by the authorities that she’d be notified well in advance of his release. Nevertheless, after being in only a short time, he was temporarily released on an eight-hour pass, and she wasn’t notified. He went directly to her house and, in front of their 6- and 10- year old daughters, beat Lisa Bianco to death.

In 1989, in a suburb of Los Angeles, Maria Navarro called the L. A. County Sheriff’s 911 emergency line asking for help. It was her birthday and there was a party at her house, but her estranged husband, against whom she had had a restraining order, said he was coming over to kill her. She believed him, but got no sympathy from the 911 dispatcher, who said: “What do you want us to do lady, send a car to sit outside your house?” Less than half an hour after Maria hung up in frustration, one of her guests called the same 911 line and informed the dispatcher that the husband was there and had already killed Maria and one other guest. Before the cops arrived, he had killed another.

But certainly no cop would stand by and do nothing while someone was being violently victimized. Or would they? In Freeman v. Ferguson [13] a police chief directed his officers not to enforce a restraining order against a woman’s estranged husband because the man was a friend of the chief’s. The man subsequently killed the woman and her daughter. Perhaps such a specific case is an anomaly, but more instances of general abuses aren’t at all rare.

In one such typical case [14] , a woman and her son were harassed, threatened and assaulted by her estranged husband, all in violation of his probation and a restraining order. Despite numerous requests for police protection, the police did nothing because “the police department used an administrative classification that resulted in police protection being fully provided to persons abused by someone with whom the victim has no domestic relationship, but less protection when the victim is either: 1) a woman abused or assaulted by a spouse or boyfriend, or 2) a child abused by a father or stepfather.” [15]

 

From Police Chief Magazine.  I am providing the reference and I suggest we READ — understand — and then move on with life.  It’s a good awareness to have.  It seems (from this article) that the exceptions to the duty to protect exemption are either when a special relationship exists (i.e., a person is in custody and thus unable to protect themselves) OR there is a state-created situation (a very direct one) which makes the situation worse than it was before.  Example given– when a drunk patron was thrown out of a bar in sub-freezing temperatures, with only jeans & T-shirt; forbidden to re-enter the bar and (naturally) forbidden to get in his truck.

The Police Chief, the Professional Voice of Law Enforcement

(ironically, this article comes from Colorado; its date is unclear):

Chief Counsel

No Duty to Protect: Two Exceptions

By L. Cary Unkelbach, Assistant County Attorney Representing the Arapahoe County Sheriff’s Office, Centennial, Colorado

Law enforcement generally does not have a federal constitutional duty to protect one private person from another. For example, if a drunk driver injures a pedestrian or a drug dealer beats up an informant, agencies and their officers usually would not be liable for those injuries because there was no duty to protect.

Nonetheless, agencies need to be aware of two exceptions, referred to as the special-relationship and the state-created danger theories, which, if pled and proven, may establish a constitutional duty to protect by police. While plaintiffs who are harmed by third parties often raise both theories when they sue police, the state-created danger exception appears to be litigated more frequently than the special relationship exception, which often is more easily analyzed and defined.

Since its 1989 holding that a duty to protect generally does not exist, the U.S. Supreme Court has not directly spoken on the two exception theories that have since evolved.1 Instead, many federal courts have analyzed, defined and applied these exceptions to a variety of fact patterns. Not all of these lower court decisions are consistent with one another. Agencies, in reviewing their policies, should be aware of the approaches taken by the federal courts in their circuit. This article gives a brief overview of the different judicial approaches to a federal due process claim but does not address whether a failure to protect action could be brought under state law.

Special Relationship
The Due Process Clause of the Fourteenth Amendment forbids the government to deprive individuals of life, liberty, or property without “due process of law.”2 In 1989 the U.S. Supreme Court stated, “Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.”3 Generally, the Due Process Clause does not provide an affirmative right to government aid, “even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.”4

Those pronouncements came in a case where the Court held that there was no substantive due process violation by caseworkers when a child, formerly in department of social services custody, was returned to and later beaten by his father. Caseworkers had received complaints about the father and may have known that the child was in danger. In analyzing the facts, the Court noted that there was no special relationship between Social Services and the child, as the latter was not in its custody. The Court further noted that the state had not created the danger or done anything to place the child in more danger.5 The harm to the child was inflicted not by the state but by the child’s father. “The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them.”6

When considering whether law enforcement has a duty to protect, first ask if a special relationship exists.

 

The next logical question is, the purpose of the restraining orders.  They give the OPTION to arrest for violation, but not the DUTY to arrest — if no legal remedies (consequences) are possible for failure to arrest, then in reality, no duty to arrest exists.  Again, the FAMILY law venue is not a “torts” or “breach of contract” venue — it seems to be a very, very strange hybrid with wide berths for judges’ discretion and a lot of tension, because of this, for anyone foolish or unlucky enough to engage.

 

ALL citizens should know this, including nonviolent, healthily married families with responsible fathers (and mothers) in the home — because it affects the community, and it affects your bottom line.  By requiring a nonviolent parent time after time to “mediate” with a violent one, and then letting that mediation industry run the courts because they are “clogged” makes no sense.

At another level, the Castle Rock Case was determined in part by who is on the Supreme Court:

http://www.supremecourt.gov/default.aspx

 

 

Among recent opinions the most recent on the site involved a juvenile male who had sexually molested a younger male (3 yr age difference) for over 2 years on an Indian reservation.  I am not reading the entire thing; this deals with his release:

Another one, Los Angeles County v. Humphries deals with a couple who was charged as child abusers, exonerated, but they couldn’t get their name removed from the list.  There is a disclaimer for these electronically posted “Slip Opinions.”

 

OCTOBER TERM, 2010 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

LOS ANGELES COUNTY, CALIFORNIA v. HUMPHRIES ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 09–350. Argued October 5, 2010—Decided November 30, 2010

The Humphries (hereinafter respondents) were accused of child abuse in California, but were later exonerated. However, under California law, their names were added to a Child Abuse Central Index (Index), where they would remain available to various state agencies for at least 10 years. The statute has no procedures for allowing individu- als to challenge their inclusion in the Index, and neither California nor Los Angeles County has created such procedures. Respondents filed suit under §1983, seeking damages, an injunction, and a declaration that public officials and petitioner Los Angeles County had deprived them of their constitutional rights by failing to create a mechanism through which they could contest inclusion in the Index. The District Court granted the defendants summary judgment, but the Ninth Circuit disagreed, holding that the Fourteenth Amendment required the State to provide those on the list with notice and a hearing, and thus respondents were entitled to declaratory relief. The court also held that respondents were prevailing parties entitled to attorney’s fees, including $60,000 from the county. The county objected, claiming that as a municipal entity, it was liable only if its “policy or custom” caused the deprivation of a plaintiff’s federal right, Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694; but a state policy caused any deprivation here. The Ninth Circuit, inter alia, found that respondents did prevail against the county on their claim for declaratory relief because Monell did not apply to prospective relief claims.

 

SUPREME COURT MEMBERSHIP AND BIOGRAPHIES:  (mostly from its site, some supplemental is linked).

Pretty much:  Harvard, Princeton, Yale, some Stanford….

(note:  Princeton only went co-ed in 1969? ??)

The Supreme Court of the United States

Members:

Chief Justice of the United States

JOHN G. ROBERTS, JR. (from Indiana; Harvard, 2 kids, Bush appointee @ 2005)

  • From Oyez Project (“Supreme Court media“) His swearing-in marked the first addition to the Court in more than 11 years – the longest stretch without a new member since 1823. And at 50 years old, Roberts became the youngest Chief Justice since John Marshall took the bench in 1801 at the age of 45. This combination of factors – the age of the other Justices and Roberts’ relative youth – suggests the potential for substantial influence on the Court for many years to come.

    Roberts grew up in Long Beach, Indiana, where his father worked as an executive for Bethlehem Steel. In high school, he was captain of the varsity football team and also wrestled, sang in the choir, co-edited the student newspaper, took part in drama productions, and served on the student council Executive Committee. These activities, combined with a strong academic record, earned him a spot at Harvard University, where he majored in history and distinguished himself academically, graduating a year early with highest honors. During the summers he worked at a steel mill back in Indiana to help pay his tuition.

Associate Justices

ANTONIN SCALIA  (Harvard, Georgetown & a Univ. in Switzerland, 9 kids, Reagan appointee @ 1986)
ANTHONY M. KENNEDY (Stanford, London School of Economics, Harvard, 3 kids, he’s from California; Reagan appointee @ 1988)
CLARENCE THOMAS (Conception Seminary- A.B., cum laude, from Holy Cross College, J.D. from Yale, divorced with one child, Bush appointee @ 1991)

RUTH BADER GINSBURG (from Brooklyn; Cornell, Harvard, Columbia Law, 2 kids, Clinton appointee@ 1991)

  • Note:   a fellow at the Center for Advanced Study in the Behavioral Sciences in Stanford, California from 1977–1978. In 1971, she was instrumental in launching the Women’s Rights Project of the American Civil Liberties Union, and served as the ACLU’s General Counsel from 1973–1980

STEPHEN G. BREYER (from SF; Stanford, Magdalen College, Oxford, Harvard Law; 3 kids; Clinton appointee@1993)

  • as an Assistant Special Prosecutor of the Watergate Special Prosecution Force; visiting law professor for overseas, Australia and Rome, active teaching a Harvard as well before Supreme Court appointment.

SAMUEL A. ALITO, JR. (from Trenton, NJ; — No School Pedigree is on the blurb, but it’s Princeton/Yale — career track mostly federal level, Bush appointee@ 2006)

  • From USPolitics (I looked his undergrad) Alioto, the 100th US Justice, was confirmed on a 58-42 Senate vote and sworn in on 31 January 2006. He is the second conservative Bush nominee to be confirmed (to) the US Supreme Court….As a Judge, Third Circuit Court of Appeals, Alito was considered staunchly conservative, based on his court opinions, and is sometimes compared with Justice Antonin Scalia (his nickname is Scalito
  • His was the sole dissent in a 1991 decision overruling a Pennsylvania law which restricted abortion. The Supreme Court upheld the lower court decisioin (6-3) with O’Connor co-writing the majority opinion with Anthony Kennedy and David Souter
    (Oppponents:)
    It is sad that the president felt he had to pick a nominee likely to divide America, instead of choosing a nominee in the mold of Sandra Day O’Connor.” – Sen. Charles Schumer (D-NY).

    “President Bush would leave the Supreme Court looking less like America and more like an old boys’ club.” – Sen. Harry Reid (D-NV)

    .

SONIA SOTOMAYOR (from the Bronx, attended Princeton, Yale; Bush nominated her to US District Court (S. NY); Obama appointee@ 2009)
ELENA KAGAN (from NYC; Princeton (summa cum laude), Oxford (M.Philosophy), Harvard Law School (magna cum laude),

From 1995-1999, she was associate counsel to President Clinton; Obama nominates to Solicitor General, Obama appointee@ 2010)

Retired Justices

SANDRA DAY O’CONNOR

DAVID H. SOUTER
JOHN PAUL STEVENS

The Supreme Court consists of the Chief Justice of the United States and such number of Associate Justices as may be fixed by Congress. The number of Associate Justices is currently fixed at eight (28 U.S.C. §1). Power to nominate the Justices is vested in the President of the United States and appointments are made with the advice and consent of the Senate. Article III, §1, of the Constitution further provides that “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

•  Biographies of Current Justices of the Supreme Court

 

Mission

The Supreme Court is the highest tribunal in the nation for all cases and controversies arising under the Constitution or the laws of the United States. The Court stands as the final arbiter of the law and guardian of constitutional liberties.

(The Chief Justice administers the oath of office to the President of the United States to uphold and defend this constitution…)

 

LIFE

LIBERTY

PURSUIT OF HAPPINESS

Self-defense, self-supporting (at least not being supported from Washington, D.C.)

and self determination.

 

This cannot happen when we all continue to believe common myths (such as the duty to enforce) and refuse to rein in the uses and abuses of the tax system.

The basics of our Constitution includes deterrents to abuses of power.   Submission only goes so far — for people, or within marriages — as a justification for giving up freedoms.  Worse is when next generations forget what they never had, including children who were punished by removal from a parent who stood up against violence in the home by being transferred to the home of the local bully.  This also includes BOTH fathers and mothers (all of us) allowing a $4 billion/year industry (enforcing child and family support) to go unchecked even after it’s incidents of fraud – and settlement of the — are running into $30 million a pop (Maximus).  Or — another failure to protect — Jaycee Dugard case, part of its settlement was $20 million, I heard (state of California kidnapping victim.  She got out by fortunate coincidence after 18 years of captivity!).

 

We deserve better than fatherhood rhetoric, or preventing future violence rhetoric.  We deserve better than lives so stressed and such tight time schedules that we cannot inquire after where our local government is spending its monies — by actually looking at it (writing FOIAs or tracking vendor payments by cities, counties) and so forth.

 

If you read only two things, read the Peter Keslar article and the “Police Chief Magazine” article — they are priceless.

 


 

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Written by Let's Get Honest

July 7, 2011 at 2:18 pm

2 Responses

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  1. (post-reading comments: There are some grammar, or word-switch errors in the post, obviously. This one was less obvious:

    “Religion plus greed is not bad combination, …

    It IS a bad combination– but on second thought, the two are inseparable, when we consider history.

    “and while some hierarchy & delegation is needed to get things done in life, too much in government means too much government. And of course, we are there and beyond there already.”

    familycourtmatters

    July 7, 2011 at 2:32 pm

  2. [...] began almost a decade ago, at the first National Summit held here in Jackson Hole, Wyoming  If Philip Stahl (one of the largest PAS promoters around, and trains judges) is on the the faculty of N…, I doubt he is going to be too interested in the “problem” custody of children going to [...]


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