Castle Rock v. Gonzales

We'll hear Argumana number 04278, the town of Castle Rock versus Jessica Gonzalez.

Mr.

Easy.

Hey everyone, this is Leon Napok, host of Fiasco and co-creator of Slowburn.

On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about Castle Rock v.

Gonzalez.

Back in 1999, three little girls aged 10, 8, and 7 were shot to death by their father.

This is a gruesome case brought in 2005 by a Colorado woman named Jessica Gonzalez.

Gonzalez had a restraining order against her ex-husband, but when he kidnapped her three children, the police ignored her requests for help.

All three children were murdered.

The Supreme Court ruled that the police had no obligation to enforce the restraining order.

So, if restraint murders are not enforced,

then they're not worth the paper they're written on.

This is Five to Four, a podcast about about how much the Supreme Court sucks.

Welcome to 5-4,

where we dissect and analyze the Supreme Court cases that have weakened America like rust slowly eating a steel beam.

I am

Peter.

Twitter's the law boy.

And I am here with Michael.

Hey, everybody.

And Rhiannon.

Hi.

And we are all coronavirus quarantine remote from our closets.

Yes.

What a terrible world we all live in.

But we will never let it stop us from podcasting about the law.

That's right.

That's right.

Today's case is Castle Rock v.

Gonzalez, a case that features two of my least favorite things in the world.

procedural technicalities and the brutal murder of innocent children.

In no particular order on those

two things.

This case is, I think, maybe the most tragic and poignant in a long line of cases in the Supreme Court and in other courts that have allowed police officers and police departments to escape any legal responsibility, even in cases where their actions are grossly negligent and lead directly to the loss of human life.

The issue here, simplifying a little bit, is whether the police are liable under the 14th Amendment's Due Process Clause when they don't even attempt to enforce a restraining order involving a rather insane husband, shall we say.

Right.

We'll get into the semantics, but the real question is this: I think.

Do the police owe the public anything at all?

And the court

thinks probably not.

Spoiler alert.

No.

No.

It's the first time we've covered a majority opinion by our boy, Antonin Scalia,

who is, I mean, let's be honest, he's going to be a recurring character on the podcast.

Yeah.

He was nominated by Reagan to a spot on Supreme Court in 1986 and nominated by God to a spot in hell in 2016.

So.

He's most famous for popularizing textualism as a method of statutory interpretation, widely idolized on the right, primarily just because he's like a doctrinaire conservative, but also because he's like very snarky and condescending in his writing in a way that I think is like very viscerally satisfying for the conservatives.

I think this case is important because it highlights a couple of things about him along those very lines.

One is that his commitment to textualism is perhaps a little more flexible than he might lead on.

And two, is that when he steps outside of the subject he's most comfortable with, which is just like blatant homophobia,

he often comes across as like a very mediocre intellect who's not very impressive.

And I think that cuts against not just the conservative perception of him, but the perception of him that we're all like taught in law school.

I don't know if you guys got the Anthony Scalia is borderline illegal god sort of spiel from law school, but it was like prevalent for me.

Yeah.

And it took a little bit to kind of shake it.

When you first realize he's sort of a moron, it's like an important step towards

understanding the court and like the weird reverence of it.

There were a couple moments I remember in law school very clearly.

And one was when I was interning for a judge after 1 L, and I read an opinion, and it was written by Thomas, and it was just so much better written than anything I had read from Scalia.

And like everything you learn in law school is that Thomas is a crank.

And maybe not the most impressive justice.

And Scalia is the fucking, you know, intellectual titan.

And I was like, wait a minute.

Actually, this is the first time I've been impressed by one of these two guys.

And it's not Scalia.

And then the other time was like, as I mentioned in the NFIB episode, which is when all these law professors were sure that Scalia was going to rule in favor of Obamacare.

And they were

very wrong.

And I do wonder how many, if any of them, like reevaluated their prior held beliefs about his integrity and intellect after that.

Well, they will when they hear our podcast.

That's right.

If they have not yet, we are going to browbeat them in the submission.

That's right.

We should get into the facts here, which I have to say, no joke, are a little bit harrowing.

Yeah.

So

to help ease the facts into your brain, the soothing voice of Rhiannon,

I think it will be useful here.

Okay, so up top, I just wanted to note for listeners kind of up front that the facts of this case are really really difficult.

It's a horrific case.

And I want to make sure that we treat this case with the care that it warrants, care that was clearly not afforded to this case and to the plaintiff by the highest and most powerful legal institution that we have in this country.

For me, like when I was prepping this case, I was thinking about how sometimes like dealing with difficult facts like this, it means that I get with my two buds, Peter and Michael, and we laugh and we make fun of this stuff because it's a way to cope.

And I think sometimes like levity is a way of subtly undermining just a little bit the seriousness and the deference that we're supposed to give to the supremes.

If we couldn't joke and laugh about it, I would punch a fucking hole in my wall.

Like there's only two emotional states to be in with this.

And it's like angry, but laughing at like the absurdity of it and like maybe getting your anger out by, you know, being mean to the pieces of shit who signed onto this opinion or just like raging out uncontrollably because it's fucking awful.

So.

Yeah.

It makes me think too of Toni Morrison.

I don't know if you guys have ever heard this, but Toni Morrison said that she started writing because she realized that she needed to be the one to write the books that she wanted to read.

No one else was writing books that she wanted to read.

And so she was like, fuck it, I'll do it myself.

And so I look around and I kind of want to make the podcast that no one else is making.

And today, that is a podcast episode where we rip apart the evilness and the stupidity that our legal system enacted on Jessica Gonzalez in the wake of a tragedy that was absolutely preventable.

Oh, yeah.

So

the facts.

of the case, just a little bit of legal background and kind of the statutory context.

So VAWA, the Violence Against Women Act, is passed in 1994 after

really massive grassroots campaigns and organizing by women's rights groups and a broad network of organizations, including advocates for survivors of sexual assault and intimate partner violence, prosecutors and law enforcement agencies, etc.

Throughout the 80s and early 90s, they're organizing.

And finally, VAWA gets passed.

And VAWA is passed because local governments and these organizations are saying we need guidance from the federal government to effectuate a justice structure, a justice mechanism that's responsive to what we're seeing on the ground, which are massive massive issues with domestic violence.

So if anyone ever asks you when society, American society, started to do anything serious about domestic violence, you can say 1994.

Yes.

Thank God for Joe Biden.

In the years immediately following the passage of VAWA, states and local governments adopt similar or even more protective statutes to try and address domestic violence in their jurisdictions.

And so it's in this legal context that Jessica Jessica Gonzalez's case comes to the Supreme Court.

So

what happened?

It's May 1999, and Jessica Gonzalez obtains a temporary restraining order against her estranged husband, Simon Gonzalez.

This all happens in the town of Castle Rock, which is in Douglas County, Colorado.

She obtains a temporary restraining order because she says that Simon has been acting erratically and violently, even though they're split up.

He has been stalking her continuously, stalking her and her three daughters.

Just violent and scary harassment behavior from Simon.

So the temporary restraining order says, quote, he shall not enter the family home and shall remain at least 100 yards away from this location at all times.

And in fact, the judge makes a special finding that goes into the temporary restraining order.

And that finding says that, quote, physical or emotional harm would result if if Simon was not excluded from the home.

So Jessica Gonzalez has demonstrated a lot that her ex-husband is dangerous to her and her daughters.

About 10 days later, after she gets the temporary restraining order, the restraining order is made permanent by the Colorado state court, and she's also granted sole physical custody of their three daughters.

Simon Gonzalez is permitted a prearranged

like midweek dinner visit with the girls and alternate weekend visits, but otherwise they live with Jessica at their home.

On June 22nd, just over two weeks after the restraining order is made permanent, Simon kidnaps the girls from their front yard where they're playing.

And at that point, when Jessica Gonzalez realizes that her daughters are missing, she makes a first of many phone calls to the police at about 7:30 p.m.

And the police come over to the house.

She shows them the restraining order and she asks that it be enforced.

She says, my daughters are missing.

My ex-husband is dangerous and I want my kids to be returned to me immediately.

In response to that, the police, true to the form that I know police to be operating on all the time,

are like, hmm.

No can do.

Let's just see if your crazy violet ex-husband brings them back by 10 p.m.

Right.

It's weird that the police would side with the abusive husband in that case.

I wonder what's going on there.

So the police leave her house.

She gets a hold of Simon on his cell phone and he says that he and the girls are at an amusement park in Denver.

She calls the police back and tells them.

This is where they are.

They're at the amusement park.

Here's a vehicle description.

Please go look for them there.

Please return my children to me.

The police again say there is nothing we can do, ma'am.

Wait and see if he comes back with them at 10.

Kind of seems like there's something they could do.

I'm just going to throw it out there.

You know, maybe this will be completely relevant.

You're thinking that they could maybe go to the amusement park.

Yes, and look for the car.

I don't know.

Maybe that's like fucking rocket science or something.

Interesting.

Just a thought.

Okay, so 10 p.m.

comes and goes.

At 10.10, she calls the police again.

This is her third call and says, my children are still missing.

At this point, she is told, ma'am, how about we wait till midnight then?

Fuck these people.

Getting absolutely no help from the police.

She goes herself to Simon's apartment and realizes that nobody is there.

At about midnight, she calls the police station again and she's told to wait for an officer to arrive, that an officer will be sent out to Simon's apartment to meet her there.

Nobody ever shows up.

So she drives herself to the police station, arrives there at about 12.50 a.m., and she files an incident report on the spot.

Now, the officer who took the incident report, this officer, you would think, okay, just got like all this information of a series of hours and phone calls.

And

kids have been missing.

Exactly.

Well, that officer who took the report doesn't do anything.

And in fact, this is noted in the opinion.

he just uh he went on break i guess and did his shift and went to dinner

so ma'am uh i realize your kids are missing but it's it's 1 a.m i

got to grab a bite to eat

it's the it's eating time over here at the station exactly the denny's is open

i got my heart set on moons over miami it's five percent off for police officers ma'am that's right i gotta be heading over there real quick on the minute like they're gonna be at the fucking 24-hour 24-hour diner for sure.

Okay, so then

a few hours later, 3.20 a.m., Simon Gonzalez drives to the police station and opens fire on the building at the police with a gun that he purchased earlier that evening.

A police shootout ensues.

The police are shooting back at him.

And the result is that Simon Gonzalez is killed.

When the police go up to the car to look over his body and investigate, they realize that the three girls are in the car and that they were already killed earlier by Simon.

Yeah.

So Jessica Gonzalez sues the state under Title 42, Section 1983 of the United States Code, a statute that allows individuals to sue the states for civil rights violations.

What she alleges is that the police's willful failure to enforce the restraining order was a violation of her 14th Amendment right to due process.

The due process provision protects, quote, life, liberty, and property.

So there's a question of whether the right to have a restraining order enforced counts under the Constitution as a property interest, right?

And what counts as a property interest under the 14th Amendment is pretty broad.

It's not limited to tangible property.

The bottom line is that it's anything that a person would be entitled to.

So the court, throughout this opinion, is constantly referring to whether or not she has a property interest in the restraining order, but you can sort of ignore those semantics.

The question is whether she's entitled under Colorado law to the enforcement of that restraining order.

Right.

And the relevant Colorado law is a 1994 bill designed to target domestic violence in part by ensuring that police are compelled to enforce restraining orders.

In this opinion, Anton and Scalia holds that Gonzalez was not entitled to the enforcement of the restraining order, primarily because enforcement is generally considered to be optional for the police.

And therefore, you can't be relied on as an entitlement by a citizen.

Right.

And

in addressing how incorrect that is, I think it's important that we talk about the text of the Colorado law.

Yes.

And the restraining order itself.

That's important.

There's a really brilliant legal scholar by the name of of Antalyn Scalia who tells us,

first go to the text.

That's where we are.

You got to go to the text.

Yep.

Our answers are going to be right there.

So the law says that police, quote, shall use every reasonable means to enforce this restraining order, end quote.

Now, I don't know how you guys read that, but to me, that seems to suggest some sort of affirmative obligation.

on the police to enforce the order.

He uses the word shall, which is the word that God used in the Ten Commandments.

So I think that sounds pretty clear to me.

There is also, it should be noted, some legislative history that's relevant here.

The sponsor of the bill stated that under the law, quote, police must make probable cause arrests.

For these reasons, the court below had ruled in favor of Jessica Gonzalez, saying, of course, she's entitled to enforcement of the restraining order.

It says so right here in the law.

So how does Antonin Scalia, the guy who thinks that the text of the law is the guiding light to its interpretation, who literally led a movement to centralize the text of the law in statutory interpretation, get around this extremely clear text?

He does it by saying that the text can be ignored because there is, quote, a well-established tradition, end quote, of police being able to choose whether or not they enforce the law.

Right.

People think this guy's smart.

Yeah.

All right.

So I don't want to lose my cool too early in this episode.

Yeah.

He says that the tradition is well established, but he doesn't really cite a lot in support of it.

You expect a string site of like Supreme Court cases and circuit court cases and state Supreme Court cases going back 100 years or some shit.

Right.

He doesn't cite a lot in support of it at all.

In fact, he really just cites, I think, one Supreme Court case.

Again, the language is, quote, that the police shall use every reasonable means to enforce this restraining order.

And Scalia agrees that it's clear.

What he's saying is, yeah, that seems to suggest that they have to do this, but

we think that the history of police discretion in these matters outweighs what the text says.

Literally the opposite of what he suggests doing in almost every other case.

Exactly.

I will say one thing, though, before we move on to tearing his argument apart.

If what he's saying is that there's a well-established tradition of police ignoring the plight of citizens for no other reasons than their own laziness and selfishness.

I completely agree.

He's got it right with that tradition.

Yep, that's right.

So what he does is play a series of what I think are just empty rhetorical games.

He says that the Supreme Court in the past has recognized that police officers have some discretion in these matters.

And I think what he does is conflate the issue of whether police have any discretion with whether they have discretion under this law, in this circumstance, to choose whether or not they feel like enforcing the restraining order.

Right.

You know, it's sort of obvious that police have some discretion, right?

They have limited resources, right?

You can only do so many things at once.

They have to make decisions about their priorities.

But that's not what's happening here.

A situation where police did literally nothing rather than take any steps to locate this woman's husband and her children, who he had kidnapped.

Right, exactly.

It's not a close case.

It's really not.

No.

Although, this might be a good point to note that this is a seven to two decision.

Yep.

And we're going to get into this in a minute.

All these people.

Breyer and Souter, two of these ostensibly liberal justices,

are just outright terrible in criminal law cases.

And this is a fucking great example.

Yeah.

And so Scalia pulls like another empty rhetorical little trick here where he keeps saying that it can't possibly be required for police to arrest someone if they don't know where that person is.

But like, that's not the question.

The question isn't whether they have to arrest somebody.

It's whether they have to take reasonable steps to arrest somebody.

Like the law.

So, right, you can kind of argue about what that means in practice.

And Scalia like kind of takes that argument up in the opinion, but it doesn't mean like.

going to dinner.

It doesn't mean ending your shift and peacing out and not doing anything.

So without like going into every detail, a large part of the majority opinion here, a large part of Scalia's treatment is predicated upon the obviously false premise that the police obligation in question is to arrest the person rather than doing what the law says which is take reasonable steps to arrest them yes like maybe go to the fucking amusement park exactly he said he was at just see if his car is there like that's you know yeah and it's

it this is

underlying all this is the fact that like look Even if you grant that there's a history of police discretion, like the entire fucking purpose of this statute is to eliminate that discretion to help combat violence against women and children, right?

Like the reason this movement is happening in the 80s and 90s is not because domestic violence just appeared in like 1978.

Like it's been going on for a while.

The problem that's trying to be addressed here is that there's been no redress.

for victims of domestic violence up to this point because cops don't take them seriously, those claims.

Exactly.

And there's something something so obscene here because Scalia ignores the text, which he usually focuses on.

And then he also ignores the intent of the law.

So what else, if you want to change the law, are you supposed to do?

You write the law that you have to enforce restraining orders.

You are doing it explicitly for that purpose.

And the court still says, well, no.

That's not how we're going to interpret it because you used to not have to do this.

And that's such an important point because reactionaries on the court use history as a weapon.

And

progressives are

generally speaking, fighting against norms and traditions that they believe are inequitable.

And the conservative position is not just that those norms and traditions are valuable, but that there is wisdom in tradition itself.

And that wisdom is carried down through generations and it manifests itself in modern norms.

And, you know, this comes up in other contexts.

Scalia has often argued, or I shouldn't say has often argued, often argued.

Because he did.

Scalia often argued that gay rights are not constitutionally protectable because there's a long history of people disliking gay people in the United States.

That was the fundamental argument under the 14th Amendment that he made.

And here you have him saying that the long tradition of police doing whatever the fuck they want is so important that it outweighs the clear language and intent of a law.

And as absurd and like detached from history as it sounds, reactionaries in many ways believe that change itself is fundamentally dangerous.

Yeah, that's absolutely right.

They'll weaponize history in a very specific and intentional way.

So just like when they're using like legal rhetoric in a specific way, they're going to use history in a way where like there's a completely opposite argument for how history could be weaponized here to come out with the exact opposite result.

But here, Scalia acts like, oh,

you just look at history and the result is obvious.

But actually, he's making a choice.

He's choosing to see history as the one where police are given broad discretion.

And so

we shouldn't stray from that.

But he's choosing not to think critically about the long history of, you know, women and children getting murdered by men and the Colorado legislature trying to do something about that.

But I guess the women and children murder is too important a tradition to Scalia to let go of.

A long history of letting insane husbands rule over their family with the threat of violence.

I mean, that's what the actual history in play is.

Right, right.

Right.

And I mean, we have, during various episodes of this podcast, talked about the use by the judges of doctrines and like norms of statutory interpretation or constitutional interpretation and why they're not.

real or why we don't believe they should be regarded as being useful.

And this is a great example because Scalia is the textualism guy.

He is a guy who really took statutory interpretation and turned it into a methodical process where you look at the text first rather than the intent of the legislatures first.

And he is completely ignoring it here for an incredibly hollow reason.

And when a case like this drops, it should be the fucking end of the discussion with respect to this man's intellectual integrity or consistency.

And it just gets glossed over.

And it's, it's so fucking frustrating to read this sort of thing.

And when your like law professor is teaching a class, another case, they'll be like, well, Scalia is the textualist guy, right?

And no, he's not.

He just finds it useful in many of his cases and he'll discard it when it's not.

I was in preparation for this case, I busted out my old legislation and regulation textbook because it's got a nice appendix.

where it's got all the rules of interpretation, statutory interpretation.

And I was looking for one, but I found this other that I didn't even know was in here.

But this is a textual rule, a grammar and syntax rule.

So this is like right in Scalia's wheelhouse.

May,

the word may, is usually precatory and connotes decision-making discretion, while shall is usually mandatory and suggests less discretion.

The question at the heart of this case was whether the word shall granted police discretion.

Right.

And the dictionary, which Scalia loves, and the rules of statutory interpretation that Scalia loves, I'll say that actually the word shall suggests no discretion.

And Scalia says, well, that's not really what I think, though.

So I read this case in law school.

twice actually for two classes.

I read it for 14th Amendment and I read it for civil rights litigation.

And the way that it's taught, like, is just like, this is or is not a procedural due process right.

Here's the argument for why.

That's the rule.

Like,

there's no question of, like, wait a second, but isn't this completely anathema to what Scalia is known for, to what he says he's doing when he's interpreting legislation?

You know, there's no critical treatment of it when we're discussing the case to like fucking future lawyers and future judges.

Scalia makes another point, which I just want to bring up quickly.

It's a very technical point, but it's so stupid that I have to address it.

He says that it's unclear whether a restraining order is a, quote, quote, property interest under the 14th Amendment, because most property interests have a readily ascertainable monetary value, and this doesn't.

And he doesn't really explain what he means by this, but this does have a readily ascertainable value.

The value of a restraining order is roughly what it would cost you to hire a private company to enforce it, right?

First of all, it's a real thing you can do.

Second of all, it's like a real value.

Like you can't just look at something like this, which is essentially a contract between this woman and the state and say, well, there's no way to put a price tag on that.

It's such a shallow, needless argument that he obviously gave very little thought to.

It's less important than the point about police discretion, but it just goes to how fucking little he cares about this shit when it comes to reaching the conclusion he wants to reach.

Yeah, and how results-oriented it is, right?

Like he has the conclusion first and is going to fashion, you know, whatever ridiculous legal argument for getting there.

Right.

It's also lovely because like early in the opinion, he quotes the dissent saying, look, the way the majority is coming out with this is going to render domestic abuse restraining orders utterly valueless.

And he says, that's hyperbole.

Calling this valueless is hyperbole.

But then like goes to great lengths to argue that like, well, it has no monetary value and it doesn't actually confer any meaningful rights on you.

And you don't have any enforceable actions you can take against the police, but calling it valueless, that's ridiculous.

That's a really good question.

Nothing.

Nothing or next to nothing from it, but

it's certainly not valueless.

Well, another thing we should talk about is that conservatives love to talk about judicial restraint.

But here was a great opportunity for them to make a very narrow holding stating that, look, cops don't have to drop everything to enforce a restraining order, but this situation that played out right here is unconstitutional.

It's below too much, right?

It's

just a little too much of a failure.

You can't go to dinner when someone is, you know, telling you that their kids were fucking kidnapped by their lunatic husband.

In violation of a restraining order.

Right.

Right.

And you and you could have said, like, you could have said, look, it's limited to these facts.

This isn't going to apply to every restraining order.

Right.

But the court doesn't do that.

The court goes out of its way to say,

look, cops don't owe you shit.

You know, I don't care if you got a contract with with them or whatever.

I don't care if you have a state-ordered fucking piece of paper that says that they have to do this.

They still don't.

The court goes out of its way to say that.

Yeah.

Yeah.

When I'm thinking about questions, I guess, of judicial restraint, I always like to look back at like what it is the plaintiff was actually asking for.

And it's usually something like really fucking reasonable.

And you got to ask, like, what is the harm in finding for her?

Like, here, the complaint alleges, like, look, I believe I have this constitutional right.

I I was entitled to this benefit of enforcement of this restraining order.

I didn't get it.

And so I would like to be able to sue.

And the complaint says that, like, once I'm able to sue, what I'll be able to show is that the city, the police actions were, quote, taken either willfully, recklessly, or with such gross negligence as to indicate wanton disregard and deliberate indifference to her civil rights.

That's it.

It's just that they're indifferent.

Like if you rule in her favor, what is the big slippery slope problem?

Like, she's not saying anybody should go to prison.

She's not saying abolish the police.

She's not saying arrest and kill every man.

Like, she's saying, as to my case, these police officers were indifferent.

And now my fucking kids are dead.

Right.

And maybe y'all should pay me.

Imagine if he made cops do their fucking job, though.

Right.

Right.

I mean, that really sue if they didn't do their job.

Right.

That really, I think any step towards towards accountability and potential legal liability for police is just a step too far.

They will not go down that path even a little bit.

And it doesn't matter how far you are from that slippery slope.

They are constantly eyeing it and they just, they'll never turn down it, period.

That's right.

Yeah, it's like the last few sentences of the opinion is him saying, like, we don't want the 14th Amendment to turn into a font of tort law.

Right.

He doesn't want people suing under the 14th Amendment.

Right.

He's like, yeah, you know, the states can do this if they want.

The states can create this right apparently even when they do it though if they're not like screaming in all caps although the the language shall use every reasonable means to enforce this restraining order is in all caps on the restraining order right

it's literally in all caps

on the sort of same topic of judicial restraint there's also a sort of what i view as a minor point which is that the real question here is, does Colorado law entitle Jessica Gonzalez to enforcement of the restraining order?

And

that, in a lot of ways, should be a question for the Colorado Supreme Court.

State Supreme Courts are supposed to be the

authority on the interpretation of Colorado law.

Scalia brushes that aside and says, well, yeah, but the real question is whether that right

is a 14th Amendment protectable right.

And that sort of also dodges the point, which is that you have to establish the right first.

And they could have certified that narrow question to the Colorado Supreme Court.

Yeah.

This is sort of like technical, you know, bullshit that we don't care about too much, but it's worth noting for a couple of reasons.

One is that, again, they will weaponize these doctrines at their whim and then disregard them at their whim.

The other is that the dissent leads with it.

as if that's like the most important point here like oh we should really defer to colorado

on this issue.

Fucking got you guys.

Like, right, right.

Like, thanks, dude.

You really, you really fucking bodied him with this one, Stevens.

This fucking woman's children are lying dead.

And he's like, well, what does Colorado have to say about it?

Right.

Leah's got an answer to it that, like, it is good enough.

It's, it's persuasive enough.

He's like, Stevens, you fucking asked their counsel this at oral argument.

And they were like, no, we want the Supreme Court to take it.

Right.

Right.

Like, if the party turned you down on it, look, maybe you're right.

Maybe this is like the prudent and proper way to handle it.

But like fucking

where are your priorities?

It's just more of the liberals trying to get them on fucking technicalities

rather than like attacking the heart of the argument.

And the heart of the issue here is that Scalia is fucking ignoring the text of this law.

Right.

And ignoring the intent of the people who passed the law just to fucking manufacture a mechanism for cops to avoid any responsibility.

And you know what, he doesn't call it out as such, even a little bit.

There are a number of different like schools of thought on interpreting statutes, right?

There's not just one or two, but there are two broader types.

And there's like the text first and there's the purpose first, right?

Yeah.

You know, whether you're a formalist or textualist or a new textualist or an intentionalist or purposivist or whatever, it doesn't really matter.

The main point is that Scalia is ignoring the text, but he's also ignoring the purpose.

He's like ignoring both.

Those are like your two lodestars, right?

It's like one or the other.

You don't get to be like, well, whatever's in my fucking heart, whatever I believe.

That's not one of the options for you.

Right.

God damn it.

This one gets to me.

It is really genuinely shocking, even like.

as people who are going through shitty Supreme Court decisions one after another for this fucking podcast, to realize that this was a 7-2 decision.

Yeah.

It's just like, it will break your fucking brain.

It's emblematic of so many simultaneous problems with the court that it's really hard to capture it.

Like pseudo-rights of concurrence.

And like the second sentence in it, I think, is really good because it accurately sort of describes what's going on in the majority opinion, but it's just so perfect.

He says, the court emphasizes the traditional public focus of law enforcement.

as a reason to doubt that these particular legal requirements to provide police services, however unconditional their form, presuppose enforceable individual rights to a certain level of police protection.

And so, what he's saying is, like, cops always do public services, so we shouldn't like read too much to the fact that a law about cops is asking them to do public services.

And maybe in some abstract sense, that sounds right, but what the fuck is an order of protection?

That's literally what these are called, orders of protection, if not something that includes an individual right to a certain level of police protection.

Right.

Like what's the problem?

If it's not that, then what does it do?

Right.

Then what is the point?

The bottom line is they think it's a suggestion, right?

Like there's no other way to read it other than they're like, yeah, a restraining order.

That's a thing that cops get so that they know that if they want to do this, they could.

It's just an optional thing that's presented to them.

And no matter what the circumstance is, that is obscene.

That's so fucking offensive.

The entire opinion is written from the frame that the purpose of this law was to empower police officers.

That's the built-in assumption that they don't state, but that is lurking in like every little piece of logic in this is that cops have discretion and statutes that pertain to them are about empowering them to use their discretion.

But this law was passed precisely because cops were not using their discretion appropriately in the domestic violence context.

So it's backwards.

It's the history is bad in order to read the text bad.

It's everything is bad.

It's just fucking awful in order to leave this woman with nothing whose kids were taken from her.

Right.

Yeah, exactly.

I think it's related in the episode that we did on Terry v.

Ohio, the stop and frisk, like Peter, you talked about how police say like there's a cost to doing their work, that they're always in danger.

And in order to do their work, basically what they're saying is we have to transfer the potential for danger and violence to the community, like onto all of us.

And in Terry, like the court doesn't weigh the cost of doing that.

Like what is the cost of letting police do whatever they want while the rest of us have weaker constitutional protections?

But here, I think like the court almost does do explicitly like that kind of weighing.

Like the court says here that the police should be able to sit on their asses and do nothing if they want to.

And the cost of that is dead children.

And that's worth it to let the police sit on their asses if that's what the police police want to do.

I mean, actually, one wild thing about this is that both the majority and the dissent say, like, look, these facts are terrible, but the real question doesn't need to address the facts.

And it's like, no, actually, I think you do.

I think you need to address the fact that this rule that you've just handed down can result in zero police liability for their unbelievable gross negligence that resulted in the murder of three children.

It's not a separate fucking question.

And like the fact that they have managed to reduce it to to this like incredibly technical sounding concept, which I don't actually think it's that technical at the end of the day.

The real issue is, is this woman entitled to some level of enforcement of this restraining order?

Exactly.

And they keep making it seem technical by being like, well, is it really a property interest?

I don't know.

And it's important to think about what the 14th Amendment actually says, which is that the state cannot deprive a person of life, liberty, or property without due process of law.

It's all it says.

And all this technical discussion about property interests are just the framework the court chooses to use.

It could, if the political will were there, choose another framework.

And, you know, when a restraining order is issued, that means the state has agreed to enforce it, in my view.

I don't think that's a weird thing to think.

It is not absurd at all to think that the 14th Amendment places an obligation on the state to enforce the restraining order to protect the life, liberty, and property of people like Jessica Gonzalez and her children.

know, and like

it's it seems sort of on its face like a colorable argument.

And the court has twisted itself into this bizarre framework.

And it's like, Jesus Christ, like, rest in peace to those kids, burn in hell, Anthon and Scalia.

You fucking

piece of shit.

Yeah.

I mean, like, the type of fucking pretzels he ties himself into at some point is he talks about like how it's ridiculous to imagine that this has like created like some special class of protected citizens again

how could a fucking order of protection do anything but create a class of protected citizens what else could it mean right exactly

like what could it mean and he continues he says okay look although colorado statute does speak of protected persons

such as jessica gonzalez it does in a different context with like different things and so sure maybe it does create a protected class but not in this narrow not in this narrow he's so dumb can you imagine clerking for him like i i just you have to be a real piece of

yeah i mean you would be a piece of shit i would have turned it down for sure and i bet i would have my grades would have totally gotten me there yeah

yeah peter conscientiously objected to applying to be a supreme court justice i i stayed out of the top 10 of my class just to avoid the just having to deal with the clerkship options you know yeah that's very honorable of you, Peter.

All right, so I think one of the broad implications of this is like, what rights do you have to any police action on your behalf?

If a state order saying that the police will keep your husband, you know, 100 feet away from you at all times and arrest him if he's not, if that is not an obligation the cops have to you, then what obligations do they have to you?

Yeah.

And like, I think, you know, if if we're looking within this 14th Amendment framework, I don't think that if this, if there's no obligation here, there's no obligation anywhere under the 14th Amendment at least.

Yeah.

Yeah.

I think that's right.

I think this case put the kibosh on these types of claims.

So, you know, like you might have the question like, okay, well, do I have the right to police action when I call 911?

Do I have the right for police to act, you know, in all these different ways?

But this case makes particularly clear that like under the 14th Amendment that claim those kinds of claims are not going to fly.

Now, I think that one space in where you see maybe some recognition legally of like an affirmative duty for officers or state actors to protect is in prison cases and prison civil rights cases.

But the context of prison is totally different.

That's where like the state has taken literally a person's liberty, kind of like the ultimate mechanism by which discretion is removed.

Like you've taken all discretion away from a person, and therefore the state is sort of obligated to protect to a higher degree than people on the outside.

It's like an indictment of like, I don't know, how impoverished our like 14th Amendment law is that like

a woman losing her children to her abusive ex-husband, despite ample opportunity for the police to do something.

right with notice with a restraining order is not considered any sort of deprivation of life liberty or property on that point right Like how narrow are we thinking of those three concepts to think that like that hasn't really happened here?

Yeah.

It feels like it just has to be like a disregard for the lives of the impoverished, right?

Like justices feel like having an abusive ex-husband is a problem that people like them don't have.

I don't see any other way to look at the approach here other than like they view this as so distant from their lives that it just doesn't resonate with them at all.

Or if they did have

an abusive ex or whatever, or a crazy ex or however the case may be, if they called the cops right in their neighborhood, like once the cops got through like the gated security or whatever, they would take it very seriously, right?

Right.

Right.

Are you okay, Mr.

Scalia?

Please

glass of water.

We've got you a giant bowl of Bolognese.

Please just throw it into your mouth while you wait for us to come and bring this to a resolution.

So there's a weird thing here where I'm sort of surprised Ginsberg didn't write a dissent.

Yeah.

She usually hits in these sort of settings where the rights of women are particularly implicated.

And she doesn't.

I'm not sure why.

I don't have any real insight into it.

It could simply be that she thinks

on the legal merits that

Stevens' point is the point that needs to be made.

It could be that there's there's a class issue at play where she really doesn't relate to this as a gender issue.

And it could be simply that she thinks that writing an opinion like that's not productive and is just going to

have her be dismissed as being shrill or whatever.

Right.

Right.

Right.

There could have been a dissenting opinion here that was like, hey, you know, the vast majority of the victims of domestic violence are women.

The vast majority of the perpetrators of domestic violence are men.

The vast majority of cops are men.

And made this very gendered because it is very gendered.

Right.

Right.

But she didn't, she didn't want to do it for one reason or another.

Right.

And, you know,

it can't be emphasized enough how fucking weak this dissent is.

You shouldn't be able to read through like a single paragraph of this without hearing Stevens call out Scalia's bullshit.

Like Stevens does the textual analysis that Scalia does not.

A standard textual technique is to like look at other parts of the act and see how they use similar language and handle similar situations.

And he says, Look, there are other parts of the statute where they're able to afford police discretion, clearly.

And so the fact that they didn't use that language here, they used more mandatory sounding language is clearly a purposeful choice, right?

Yeah.

That's a normal technique of textualism.

And Stevens could and should be saying, citing to like Scalia opinions at this point, right?

Yes.

Yeah.

Justice Scalia has said, right?

And he should be saying shit like another example of Justice Scalia's, you know, like fair weather appreciation of the primacy.

Democracy.

Right.

You should be calling him a fucking hypocrite.

It should be calling him out for being intellectually shallow.

Like you lost this fight.

It's 7-2.

Your dissent is not going to do anything.

All you can accomplish with this is delegitimize the majority.

And you have a great opportunity.

This is a fucking meatball down the middle of the plate.

You should kill this.

Yeah.

Yeah, I mean,

it's because he's acting like he's arguing against an idea and not a person.

And

you need to be able to understand and present an argument that accepts that what you're arguing against is someone who has biases and ideology and preferences, political and otherwise, and make him confront his hypocrisy here.

I'm not saying it would change Scalia's opinion.

I doubt it would, but make him look at it and make him address it and make readers of the opinion of your dissent aware of it.

And he doesn't do it.

He acts like the ideas just like float out of Scalia's mind, free form, and not like they're being presented by a insanely ideological person.

Right, exactly.

All right.

We obviously make a lot of jokes in this podcast and it's a big part of it, but we want, especially in this case, to sort of center the very human experience of Jessica Gonzalez.

Yeah.

Like I said at the top, I really wanted to be able to treat Jessica Gonzalez and her children in this episode with care.

And when you look up Jessica Gonzalez, actually,

she's dedicated her life since this case to pursuing a lot of reform to protect survivors of domestic violence and police reform and that kind of thing.

And so I think we can wrap this episode up actually by highlighting some of Jessica Gonzalez's words.

So in an interview, she was asked why she bought this case all the way to the Supreme Court.

And she said this, because I want to make sure that no parent ever has to go through the pain that I went through.

I want to make sure that police are ultimately accountable for doing their jobs.

We rely on the courts and the police for protection against violence.

A restraining order is the only legal alternative offered for protection against domestic violence.

Supposedly, police's function is to serve and protect.

If the law's claimed purpose to protect is a fraud, we should know that.

If the police will take no action to enforce an order of protection, then women need to know this before we go through the process and make our stalker or abuser even angrier.

Amen.

Okay, so next episode is Kilo be the city of New London.

A case about eminent domain, the right of the government to seize your property and just give you the fucking middle finger about it.

And a very case because we will be opposing the liberal majority.

Yeah, they suck ass too.

We hate them all.

It's a bad decision.

And the liberals are bad and we're smarter than them too.

Yep.

5-4 is presented by Westwood One and Prologue Projects.

This episode was produced by Kacha Kumkova with editorial oversight by Leon Napok and Andrew Parsons.

Our artwork is by Teddy Blanks at ChipsNY and our theme song is by Spatial Relations.

From the Westwood One Podcast Network.