Amicus Curiae Brief — Castle Rock v. Gonzales

a

—

No. 04-278

IN THE

Supreme Court of the United States

aE

TOWN OF CASTLE ROCK, COLORADO,

Petitioner,

a

JESSICA GONZALES, individually and as next best friend

of her deceased minor children REBECCA GONZALES,

KATHERYN GONZALES, and LESLIE GONZALES,

Respondent.

On Writ oF CERTIORARI TO THE

Unirep States Court or APPEALS FOR THE TENTH CIRCUIT

Brier OF NATIONAL COALITION AGAINST DOMESTIC

VIOLENCE AND NATIONAL CENTER FOR VICTIMS OF

CRIME AS Awici CuURIAE IN SUPPORT OF RESPONDENT

Naomi G. Breer

Counsel of Record

Lispy Y. Mote

Micuece E. STONE

GREENBERG TRAURIG, LLP

The Tabor Center

1200 Seventeenth Street

Suite 2400

Denver, Colorado 80202

(303) 572-6500

Counsel for National Coalition

Against Domestic Violence and

National Center for Victims of Crime

19268 g

COUNSEL PRESS

(ROO) 274-4421 © (ROO) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES ............ il

INTEREST OF AMICI CURIAE ............... l

SUMMARY OF ARGUMENT ................. 3

PONE 0 cot icviénisuscesendeonkbadanas 6

I. The United States Legal System Sanctioned

Domestic Violence For Many Years. ...... 6

Il. Civil Protective Orders Protect Victims Of

Domestic Violence And Prevent Further

Abuse. ...... bes odd Hheinweteks heuouense 10

Ill. Law Enforcement’s Failure To Take

Protective Orders Seriously Jeopardizes The

Lives Of Battered Women And Their

RL. ck duticcbbetaddelesusstaniaa ie 12

IV. Mandatory Arrest Laws Must Be Enforced To

Effect Their Legislative Purpose And

Promote The Safety Of Battered Women And

Ce W, | Savcc dca cweeddesbaobane 18

CRRAMETD occucnccncdesbavebvacesaudens 26

ii

TABLE OF CITED AUTHORITIES

Page

Cases:

Bradley v. State, | Miss., 156, 1824 WL 631 (Miss.

B24) onc cccceveeesecteaeen eee 7,8

City of Grafton v. Swanson, 497 N.W.2d 421 (N.D.

99S) ..ncccccesunecsees seuss 18

Eagleston v. Guido, 41 F. 3d 865 (2d Cir. 1994) cert.

denied, 516 U.S. 808, 116 S. Ct. 53, 133 L. Ed.

26 18 (1DDS) oo ccenccisucesessenneee 14

Gonzales v. City of Castle Rock, 366 F.3d 1093 (10th

Cir. 2004), cert. granted, 125 S. Ct. 417, 160

L. Bd. 26 336 (2006) . . ccvccctvdewsunee 3, 4, 5, 23

Joyner v. Joyner, 59 N.C. 322, 1862 WL 892 (N.C.

1OGZ) 2. cccccvcussecseees sn cun ene 7

Skinner v. Skinner, 5 Wis. 449, 1856 WL 3888 (Wis.

1856) 2. ccccccccsenee eke eu seen 7

State v. Oliver, 70 N.C. 60, 1874 WL 2346 (N.C.

S74) ..cccccdcsccdedsunvee esse eee 8

State v. Rhodes, 61 N.C. 453, 1868 WL 1278 (N.C.

$OGB) .. nc ccccccccsevecehp ae eee 8

MITT 11

ili

Cited Authorities

Page

State v. Weatherholtz, 2003 WL 21543813 (Ohio App.

EE PRED Sc cedcsovesccccoccececs 11

Thurman v. City of Torrington, 595 F. Supp. 1521

EE nit edebab ede deedececcceses 14

United States v. Harrison, 461 F.2d 1209 (U.S. App.

EEE EEE SG 9

Statutes:

EE SEE SA 19

SED dace dcccocccsscecess Ppa 19

ALASKA Stat. § 18.65.530(a)(1) ................ 20

ALASKA Stat. § 18.65.530(a)(2) .............5.. 20

Ariz. Rev. Stat. ANN § 13-3601(B) ............. 20

Ca. Penat Cope § 836(d) ..............60005- 20

Coro. Rev. Star. § 18-6-803.5 ..............4.. 4, 20

Coro. Rev. Star. § 18-6-803.6 .............45.. 20

Conn. Gen. Stat. ANN. § 46b-38b(a) ............ 20

D.C. Cope Ann. § 16-1001, ef seg. ............. 9

iv

Cited Authorities

Page

DL. Come Aas © OGRESS <ic ce veccidsciveccecs 20

It. Comp. Stat. 60/304(aM1) ............ cee eee 20

town Come Asus. § 206. IDEN oo 5c ctdcvcccsvece 20

Ky. Rev. Stat. Ann. § 403.760(2) ............... 20

La. Rev. Star. Ann. § 14:79(B) .. 0... ccc cece cece 20

La. Rev. Stat. ANN. § 46:2140(1) ...........606. 20-21

Mass. Gen. Laws ANN. cH. 209A, § 6(7) ........05 20

Mb. Cope Ann., Fam. Law § 4-509(b) ........... 20

Me. Rev. Stat. Ann. tit. 19-A, § 4012(5) .......... 20

Minn. Stat. Ann. § 518B.01, subd. 14(e) and subd.

BED 00 ccucucsaeseéaddabeeneessasehsedken 20

Mo. Rev. Stat. § 455.085(2) ...........0eeeeees 20

N.D. Cent. Cope § 14-07.1-11(1) ...........4.. 20

Pa. SR. AOU, BAAD cvbcccducdssecodeses 23

N.J. Star. ANN. § 2C:25-21 (a1) .........000 ee 21

N.J. Star. ANN. § 2C:25-21(a)(3) ........0000eee 20

“oF ~

> ee 04

Vv

Cited Authorities

Page

N.M. Start. Ann. § 40-13-6(C) ...........00005. 20

Nev. Rev. Stat. ANN. § 33.070(1) ............... 20

Nev. Rev. Stat. ANN. § § 171.137(1) ............ 21

Onto Rev. Cope Ann. § 2935.032 .............. 20, 21

Ca. UR, HOR. B RAGES hb cceceucdkscbuccess 20

Cin. Bae. Bear. G EDR DOGGD co cccccosccsccccess 21

23 Pa. Cons. Stat. ANN § 6113(a) .............. 20

R.I. Gen. Laws § 12-29-3(b) ............200005- 20, 21

S.D. Copirtep Laws § 23A-3-2.1(1) ...........4. 20

S.D. Copiriep Laws § 23A-3-2.1(2) ............. 21

Tenn. Cope ANN. § 36-3-611(a)(2) .............. 20

Tex. Crim Proc. Cope Ann. § 14.03(b) .......... 20

Uran Cope Ann. § 30-6-8(1) ..............445. 20

Uran Cope ANN. § 30-6-8(2) .. 2... ee cece 21

Wasu. Rev. Cope Ann. § 10.31.100(2)(a) ... .... 20

Wasu. Rev. Cope Ann. § 10.31.100(2)(c) ........ 21

vi

Cited Authorities

Page

Wis. Stat. Ann. § 813.12(7)(b) .... 2.2... ee eee 20

Wis. Stat. Ann. § 96B.075(2) .................. 21

Pub. L. No. 103-222, 108 Stat. 1796 (1994) ...... 19

Pub. L. No. 106-386, Div. B, 114 Stat. 1464 (2000)

sntevdwdhbuwhddsekeddenetasnseeeaeeeee 19

Treatises:

ELIZABETH SCHNEIDER, BATTERED WOMEN AND FEMINIST ~

FS rey er ere rr rer es 8

James PTacek, BATTERED WOMEN IN THE COURTROOM

SEED ccntaddvecevendbbaneanesebieabeee 14

Nancy K. D. Lemon, Domestic VioLence Law (2001)

Ghédecides ch66den uteecdaetianuasenen 16

1 WILLIAM BLACKSTONE, COMMENTARIES .......... 6

Other Authorities:

Amy Eppler, Note, Battered Women and the Equal

Protection Clause: Will the Constitution Help

them When the Police Won't?, 95 Yave L. J. 788

SUED ncdnccaccesécdbawctdedstatiueuae 15, 17

ae era

vii

Cited Authorities

Barbara J. Hart, Symposium: Mandatory Arrest Laws

and Policies, Arrest: What's the Big Deal, 3 Wm.

& Mary J. Women & L. 207 (1997) ..........

Betsy Tsai, Note, The Trend Toward Specialized

Domestic Violence Courts: Improvements on an

Effective Innovation, 68 Forpuam L. Rev. 1285

CD obicd0c000d66600 bce eneu reaeeeediKel

Catherine F. Klein & Leslye E. Orloff, Symposium

on Domestic Violence, Providing Legal Protection

for Battered Women: An Analysis of State Statutes

and Caselaw, 21 Horstra L. Rev. 801 (1993) ...

CurisTOPHER D. MAXweLt, Joe. H. Garner, &

JerFrey A. F AGAN, NATIONAL Inst. oF Justice, U.S.

Dep’t oF Just., RESEARCH IN Brier, THe EFFects oF

ARREST ON INTIMATE PARTNER VIOLENCE: NEw

EVIDENCE FROM THE Spouse ASSAULT REPLICATION

PROGRAM (July 2001) ...............0 cee eee

Christopher Shu-Bin Woo, Familial Violence and the

_ American Criminal Justice System, 20 U. Haw. L.

, DUEUOEE Vockecovéec svdessbnceubasbone

David M. Zlotnick, Empowering the Battered

Woman: The Use of Criminal Contempt Sanctions

to Enforce Civil Protection Orders, 56 Ono St.

hes So BES GRDOED cc ncacundiucescdabsdenties

Page

13

7, 10

8, 12

18

10

viii

SS

Cited Authorities

Page

Deborah Epstein, Procedural Justice: Tempering the

State's Response to Domestic Violence, 43 Wm. &

Mary L. Rev. 1843 (2002) ......... 8, 18, 19, 20, 24

Donna M. Welch, Mandatory Arrest of Domestic

Abusers: Panacea or Perpetuation of the Problem

of Abuse?, 43 DePaut L. Rev. 1133 (1994) ..... 25

Eva Jefferson Paterson, How the Legal System

Responds to Battered Women, in BATTERED WOMEN

(Donna M. Moore ed., 1979) ............445. 25

James Martin Truss, Comment, The Subjection of

Women ... Still: Unfulfilled Promises of

Protection for Women Victims of Domestic

Violence, 26 St. Mary’s L. J. 1149 (1995) .....

pecvdsvacssswasadesecuudiauens 6, 7, 13, 14, 25, 26

Jeffrey Fagan, Presentation, The Criminalization of

Domestic Violence: Promises and Limits (1996)

Jennifer R. Hagan, Symposium, Can We Lose the

Battle and Still Win the War?: The Fight Against

Domestic Violence After the Death of Title III of

the Violence Against Women Act, 50 DePaut L.

IU, PERG bcvncucecéiacnkwesadsennetet 14, 24

ix

Cited Authorities

Page

Joan Zorza, Symposium on Domestic Violence

Criminal Law, The Criminal Law of Misdemeanor

Domestic Violence, 1970-1990, 83 J. Crim. L. &

CRIMINOLOGY 46 (1992) .......... 0000 cues 12, 15, 17

Kerry Murpuy Heacey & Curistine SMITH, NATIONAL

Inst. Or Justice, U.S. Dep’t oF Just ., RESEARCH IN

ACTION, BATTERER PROGRAMS: WHaT CRIMINAL

Justice AGENCIES NEED TO Know (July 1998)

Lawrence W. Sherman, The Influence of Criminology

on Criminal Law: Evaluating Arrests for

Misdemeanor Domestic Violence, 83 J. Crim. L.

& Criminococy 1-42 (1992) ...........00 0 eee 16

Leigh Goodmark, Symposium, The Legal Response

to Domestic Violence: Problems and Possibilities,

Law is the Answer? Do We Know That For Sure?:

Questioning the Efficacy of Legal Interventions

for Battered Women, 23 St . Louis U. Pus. L. Rev.

PGOee envccutvibvatesncdsuevconmene 9, 10, 20, 24

Machaela M. Hoctor, Comment, Domestic Violence

as a Crime Against the State: The Need for

Mandatory Arrest in California, 85 Cav. L. Rev.

GP Eee. évcicdbinvxdanndeusate 15, 16, 17, 18, 24

x

Cited Authorities

Page

Marion Wanless, Note, Mandatory Arrest: A Step

Toward Eradicating Domestic Violence, But Is It

Enough?, 1996 U. ILv. L. Rev. 533 (1996) .....

cawhts cen vesaas o60s5 Rb eh eKeus 6, 7, 8, 20, 24, 25

MartTHa B. Witwer & Cueryt A. CRAWFORD,

NATIONAL Inst. oF Justice, U.S. Dep’t oF Just., A

COORDINATED APPROACH TO REDUCING FAMILY

VIOLENCE : CONFERENCE HIGHLIGHTS(NCJ 155184)

GU, SU wccbabncesscéenndecseenunats 12, 13, 24

Miriam H. Ruttenberg, A Feminist Critique of

Mandatory Arrest: An Analysis of Race and

Gender in Domestic Violence Policy, 2 Am. U. J.

SG GS En TCO CUE wn bdce aes a bewcinass 21

NATIONAL Lwst. oF Justice, U.S. Dep’t oF Just ., LEGAL

INTERVENTION: IN FAMILY VIOLENCE: RESEARCH

FINDINGS AND Po icy ImpLicatTions (NCJ 171666)

GUY COOUE cnncadustevexanscieeeuiamee 11, 13, 19

NATIONAL Inst. oF Justice, U.S. Dep ’t oF Just ., RESEARCH

Preview, Crvit PROTECTION Orpers: Victims’ VIEWS

ON EFFECTIVENESS (Jan. 1998) ............. 10, 11, 13

OrrFice FoR Victims oF Crime, U.S. Lep’t oF Jusrt.,

LeGAL SERIES BULLETIN 4, ENFORCEMENT OF

Protective Orpers (Jan. 2002) .............. 10, 13

xi

Cited Authorities

Page

PATRICIA TJADEN & NANCY THOENNES, NATIONAL INsT.

oF Justice, U.S. Dep’t of Just., EXTENT, NATURE,

AND CONSEQUENCESOF INTIMATE PARTNER VIOLENCE

(NCJ 181867) Guly 2000) .................. 11

Prentice L. White, Stopping the Chronic Batterer

7 trough Legislation: Will it Work this Time?, 31

FOG Bn Es POE 6 answhs bbehescaduuwe 6

Reva B. Siegel, The Rule of Love: Wife Beating as

Prerogative and Privacy, 105 Ya.e L. J. 2117

SE adét hos UGG a Peds e ud saudaae be nnwue we 6,7,8

Sandra S. Park, Working Towards Freedom from

Abuse: Recognizing a “Public Policy” Exception

to Employment-at-Will for Domestic Violence

Victims, 59 N.Y. U. Ann. Surv. Am. L. 121 (2003)

Sarah Mausolff Buel, Note, Mandatory Arrest for

Domestic Violence, 11 Harv. Women’s L. J. 213

CRE bbe ces bdwed bad eee tae baeaeeeneae 15, 24

Vito Nicholas Ciraco, Note, Fighting Domestic

Violence with Mandatory Arrest, Are We

Winning?: An Analysis in New Jersey, 22

Women’s Rts. L. Rep. 169 (2001) ............ 7

xii

Cited Authorities

Miscellaneous:

David M. Herszenhorn, Man Vowed All Week to Kill

Companion, Neighbors Say, N.Y. Times, Aug. 23,

SD: 6 0bn0b0 5s sauranes tines chine eeentes

L.L. Brasier & John Masson, Estranged Wife Killed

With Ax, Detroit Free Press, Dec. 31, 2002

National Ctr. For Victims of Crime, Stalking

Resource Center, Protective Order Violations —

Stalking in Disguise, Tat Source NEWSLETTER,

Wee, Se Beh Be SE 6 60 6 kn bbc vcapeocaens

Protecting Victims of Domestic Violence: A Law

Enforcement Officer's Guide to Enforcing Orders

of Protection Nationwide .................4.4.

Fs § Be i Per es

Tr. of Colorado House Judicial Committee Hearings

on House Bill 1253, Feb. 15, 1994 ...........

U.S. DEP’T OF JUST., ATTORNEY GENERAL’S

TASK FORCE ON FAMILY VIOLENCE: FINAL

GME CODD) coccccnuctensbuccesSecadie

Yumi Wilson, When Court Order Isn't Enough, S.F.

Caner. Bak, GR, BOSS sé vedic pesancnseetbces

Page

ll

ll

11

l

INTEREST OF AMICI CURIAE'

It is the mission of the National Coalition Against

Domestic Violence (““NCADV”) to address one of the greatest

public health problems in America: domestic violence.

NCADYV is a nonprofit organization dedicated to providing

advocacy, leadership, representation, and support to battered

women and their children throughout the United States.

NCADV’s work includes coalition building at the local, state,

regional, and national levels; support for the provision of

community-based services such as safe houses and shelter

programs; public education and technical assistance; policy

development and innovative legislation; and efforts to

eradicate the social conditions that contribute to domestic

violence. NCADV’s membership is comprised of over one

individuals dealing with the concerns of battered women and

their families.

NCADV was formally organized in January 1978, when

over one hundred advocates from around the nation attended

the U.S. Commission on Civil Rights hearings on battered

women in Washington, D.C. Almost thirty years later,

NCADV remains the only national organization of grassroots

shelter and service programs for battered women. NCADV

continues to be a leading voice on domestic violence issues

in the community, the legislature, and in the courts.

1. No counsel for a party authored this brief in whole or in

part. No person or entity other than counsel for the National Coalition

Against Domestic Violence and the National Center for Victims of

Crime made a monetary contribution to the preparation or submission

of this brief. Petitioner and respondent have consented to the filing

of this brief; their letters of consent have been filed with the Clerk of

this Court.

2

NCADV organized testimony for the Attorney General’s

Task Force Hearings on Family Violence and worked with

federal legislators to prioritize funding from the Victims of

Crime Act for battered women’s programs. In addition,

NCADV supported the development and passage of the

Violence Against Women Act in 1994 and was active in the

passage of the Domestic Violence Offender Gun Ban in 1996.

NCADV has been instrumental in implementing public policy

and legislation that affect the lives of battered women and

their children.

Likewise, the National Center for Victims of Crime

(“NCVC”) is a nonprofit organization whose mission is to

forge a national commitment to helping victims of crime

rebuild their lives. NCVC is the nation’s leading resource

and advocacy organization for all victims of crime. Dedicated

to serving individuals, families, and communities harmed

by crime, NCVC, among other efforts, promotes laws and

public policies that create resources and secure rights and

protections for crime victims.

In particular, NCVC has demonstrated a strong

commitment to victims of domestic violence, stalking, sexual

assault, child abuse, and all those who are granted court

orders of protection. NCVC’s Public Policy Department was

instrumental in the passage of the Violence Against Women

Act in 1994 and its reauthorization in 2000. Additionally,

NCVC’s Stalking Resource Center provides training and

technical assistance to law enforcement agencies across the

country on the importance of protective orders and the need

for their enforcement.

The issues presented in this case affect significant matters

of public policy and are of vital concern to all victims of

domestic violence. A decision by this Court will have

3

implications far beyond the interests of Jessica Gonzales and

the City of Castle Rock. In their role as advocates, it is

incumbent upon the NCADV and NCVC (collectively,

“amici’) to provide any additional facts necessary to inform

and aid the Court in its deliberation on the issues. Therefore,

amici submit the following historical overview of the genesis

of mandatory arrest laws and their import to the enforcement

of protective orders and the safety of battered women and

children.

SUMMARY OF ARGUMENT

Domestic violence is a widespread and longstanding

problem that continues to exact its toll on the lives of battered

women and their children. In this country, victims of domestic

violence have only begun to see changes within the last forty

years. The lack of enforcement of these changes by police,

however, has had devastating consequences. The lethal

aftermath of police indifference is no more apparent than in

the case of Gonzales v. City of Castle Rock, 366 F.3d 1093

(10th Cir. 2004), cert. granted, 125 S. Ct. 417, 160 L. Ed. 2d

316 (2004).

On the night of June 22, 1999, Jessica Gonzales

telephoned the Castle Rock Police Department numerous

times and appeared in person at the police station requesting

enforcement of a restraining order against her estranged

husband, Simon Gonzales, after he abducted their three

daughters. /d. at 1097-98. Each time she sought the protection

of the police and the safe return of her children, Jessica’s

pleas for help were ignored. Jd. The Castle Rock Police

Department refused to enforce the temporary restraining order

in direct violation of Colorado’s mandatory arrest law, a

statute that removed any doubt as to the appropriate response

and required the responding officers to arrest Simon

4

Gonzales. /d. at 1103-04; Coto. Rev. Star. § 18-6-803.5(3).

While Jessica Gonzales was trying in vain to have the

restraining order against her husband enforced, Simon

Gonzales murdered the three girls. Jd. at 1098. The Gonzales

children were ages ten, nine, and seven. /d. at 1096.

Following an era when domestic violence was condoned

by society and sanctioned by law, the civil protective order

emerged at the forefront of the battle against domestic

violence. The civil protective order represented one of the

earliest and most commonly used interventions to help save

the lives of battered women and their children. But, in many

situations, orders of protection were effective only when

police officers enforced them and abusers believed they

would be enforced. For years, law enforcement failed to treat

domestic violence as a crime or arrest the men who committed

abuse and violated protective orders. It was this climate that

gave rise to the mandatory arrest law.

Mandatory arrest laws were enacted to combat one of

the most serious obstacles to curtailing the epidemic of

domestic violence in America — police indifference.

Mandatory arrest legislation was intended to alleviate the

obstacle of under-enforcement by prohibiting police from

dismissing domestic violence victims out of hand. Indeed,

the Colorado legislation under which Jessica Gonzales sought

enforcement of her protective order was passed to counteract

the very attitudes that led to the deaths of three innocent

children. Mandatory arrest laws, now in effect in more than

twenty states and the District of Columbia, remove or restrict

a law enforcement officer’s discretion in determining whether

to make an arrest in domestic violence cases. Mandatory

arrest thus criminalizes domestic violence and sends a clear

message to victims and perpetrators that the law will be

enforced.

RS TE LE a IS

5

_ As Gonzales demonstrates, a protective order, without

the backing of police enforcement, is only part of the solution.

Orders of protection must be taken seriously, and mandatory

arrest laws must be respected to ensure that the advances

made in improving law enforcement’s response to domestic

violence endure. When the police fail to enforce the law, the

severity of domestic violence is dismissed, abusers are

empowered, and the foundation of the criminal justice system

is weakened.

The Tenth Circuit Court of Appeals’ decision in this case

reaffirms to society and to law enforcement that domestic

violence and the violation of protective orders are grievous

crimes that must be treated accordingly. This nation has made

tremendous strides in the protection and support of domestic

Jessica Gonzales sought to have enforced represented the

promise that law enforcement would no longer dismiss claims

of domestic violence. A reversal of the Tenth Circuit's

decision will undo those efforts and represent a step backward

in the struggle against family abuse. It will undermine the

very purpose for which protective orders and mandatory

remedies that the Colorado legislature so meticulously pieced

together in the protection of battered women and their

children. For these reasons, amici support Jessica Gonzales

in urging this Court to affirm the decision of the Tenth Circuit

Court of Appeals.

6

ARGUMENT

I. The United States Legal System Sanctioned Domestic

Violence For Many Years.

The United States’ early legacy of explicit approval of

and, later, utter indifference to, acts of domestic violence

traces its roots back to Roman times. In the year 753 B.C.,

Ancient Rome created the Laws of Chastisement, which

expressly permitted husbands to strike their wives as a

method of preventing the wife from exposing her husband

to criminal and civil liability. See Prentice L. White, Stopping

the Chronic Batterer Through Legislation: Will It Work This

Time?, 31 Perr. L. Rev. 709, 714 (2004).

William Blackstone, the eighteenth century English legal

scholar, subsequently endorsed and codified “domestic

chastisement” as a form of behavior modification that was a

tolerable and crucial part of the male-dominated family

structure. | WILLIAM BLACKSTONE, COMMENTARIES *432-33;

see also White, supra, 31 Perr. L. Rev. at 715. Under English

common law, a man was allowed to beat his wife with a rod

no larger than his thumb or small enough to pass through a

wedding band; hence, the notorious “rule of thumb.” See

Marion Wanless, Note, Mandatory Arrest: A Step Toward

Eradicating Domestic Violence, But Is lt Enough?, 1996 U.

Int. L. Rev. 533, 535-36 (1996); see also James Martin Truss,

Comment, The Subjection of Women ... Still: Unfulfilled

Promises of Protection for Women Victims of Domestic

Violence, 26 St. Mary’s L. J. 1149, 1157 (1995). The law

permitted corporal punishment as long as the husband did

not inflict “permanent injury” upon his wife. See Reva B.

Siegel, The Rule of Love: Wife Beating as Prerogative and

Privacy, 105 Yate L. J. 2117, 2118 (1996). The colonists

;

later brought this common law doctrine to America. See Vito

Nicholas Ciraco, Note, Fighting Domestic Violence with

Mandatory Arrest, Are We Winning?: An Analysis in New

Jersey, 22 Women’s Rts. L. Rep. 169, 172 (2001).

Colonial America’s permissive attitude toward domestic

violence and wife abuse continued well into the mid-

nineteenth century. See id.; see also Wanless, supra, 1996

U. Iii. L. Rev. at 535-36. This tradition was reflected in a

number of cases from the states’ highest courts. See, e.g.,

Bradley v. State, | Miss. 156, 1824 WL 631, *1 (Miss. 1824)

(upholding husband’s entitlement to “exercise the right of

moderate chastisement”); Joyner v. Joyner, 59 N.C. 322, 1862

WL 892, *3 (N.C. 1862) (declaring that “the law gives the

husband power to use such a degree of force as /s necessary

to make the wife behave herself and know her place”). As

one court explained, “when the wife is ill treated on account

of her own misconduct, her remedy is a reform of her own

manners.” Skinner v. Skinner, 5 Wis. 449, 1856 WL 3888,

*3 (Wis. 1856).

By the end of the nineteenth century, wife-beating was

no longer sanctioned by the doctrine of domestic

chastisement, but courts continued to turn a blind eye to

domestic abuse under the theory that doing so preserved the

so-called “sanctity of the home,” protected the “privacy of

the marriage relationship,” and served to “promote domestic

harmony.” See Truss, supra, 26 St. Mary’s L. J. at 1159; see

also Siegel, supra, 105 Yate L. J. at 2120. According to

matter, and the government was loathe to interfere in the

sanctified realm of the family. See Betsy Tsai, Note, The Trend

Toward Specialized Domestic Violence Courts:

onan natn Innovation, 68 ForpuaM L. Rev. 1285, 1288-

89 (2000); see also Deborah Epstein, Procedural Justice:

Tempering the State's Response to Domestic Violence, 43 Wm.

& Mary L. Rev. 1843, 1850-51 (2002). As one court declared:

“We will not inflict-upon society the greater evil of raising

the curtain upon domestic privacy to punish the lesser evil

of trifling violence.” State v. Rhodes, 61 N.C. 453, 1868 WL

1278, *4 (N.C. 1868); see also Bradley, 1824 WL 631 at *1

(noting that “family broils and dissentions” were not the

business of the court); State v. Oliver, 70 N.C. 60, 1874 WL

2346, *2 (N.C. 1874) (stating that “[i}f no permanent injury

has been inflicted,. . . it is better to draw the curtain, shut

out the public gaze, and leave the parties to forget and

forgive”). Consequently, while no longer legally sanctioned,

domestic violence continued virtually unacknowledged by

the public and unabated by the justice system until the 1960s.

Wanless, supra, 1996 U. ILL. L. Rev. at 536.

With the evolution of the battered women’s movement

in the late 1960s and early 1970s, it became readily apparent

that the domestic violence crisis in America was anything

but “trifling” — it was an epidemic. /d.; Epstein, supra, 43

Wm. & Mary L. Rev. at 1849-50; accord Siegel, supra, 105

YaLe L. J. at 2171-73. In reaction to staggering statistics

documenting the incidence of domestic violence,’ the

community responded with social services in the form of

safe houses, women’s shelters, and other programs to assist

victims and educate the public. See ELizaBeTH SCHNEIDER,

BATTERED WOMEN AND Feminist LAwMAKING 13-23 (2000)

2. See, e.g., Catherine F. Klein & Leslye E. Orloff, Symposium

on Domestic Violence, Providing Legal Protection for Battered

Women: An Analysis of State Statutes and Caselaw, 21 Horstra L.

Rev. 801, 807-810 (1993) (compiling statistics from late 1970s to

early 1990s as reported by Bureau of Justice Statistics, Department

of Justice, National Institutes of Mental Health, and congressional

hearings).

Oe Tom

=

9

(tracing history of domestic violence reform); see also Leigh

Goodmark, Symposium, The Legal Response to Domestic

Violence: Problems and Possibilities, Law is the Answer?

Do We Know That For Sure?: Questioning the Efficacy of

Legal Interventions for Battered Women, 23 St. Louts U. Pus.

L. Rev. 7, 9 (2004). Legislative responses in the form of civil

interventions on behalf of battered women followed shortly

thereafter. Goodmark, supra, 23 St. Louis U. Pus. L. Rev.

at 9-10.

One of the earliest innovations that was developed to

ensure domestic violence would be treated seriously was the

civil protective order. See id. at 10; see also David M.

Zlotnick, Empowering the Battered Woman: The Use of

Criminal Contempt Sanctions to Enforce Civil Protection

Orders, 56 Onto St. L. J. 1153, 1170 (1995). In 1970, the

District of Columbia passed the first law providing for

protective orders in cases of domestic violence. See D.C.

Cope § 16-1001, et seq.; see also United States v. Harrison,

461 F.2d 1209 (U.S. App. D.C. 1972). Before that time, the

only civil tools available to battered women were injunctions

pursuant to divorces or legal separation — remedies that

provided limited relief, were difficult to enforce, and useless

to women who were not married to their abusers. Goodmark,

supra, 23 St. Louis U. Pus. L. Rev. at 10 n.14. By 1989, all

fifty states and the District of Columbia had enacted statutes

authorizing civil protective orders as a of protecting

victims of domestic violence and preventing further abuse.

See id. at 10; see also Sandra S. Park, Working Towards

Freedom from Abuse: Recognizing a “Public Policy”

Exception to Employment-at-Will for Domestic Violence

Victims, 59 N.Y.U. Ann. Surv. Am. L. 121, 147 0.123 (2003)

(listing current protective order statutes from all fifty states).

10

Il. Civil Protective Orders Protect Victims Of Domestic

Violence And Prevent Further Abuse.

The civil protective order remains one of the most widely

available and commonly used interventions for victims of

domestic violence today. See Goodmark, supra, 23 St. Louis

U. Pus. L. Rev. at 10-11; see also Tsai, supra, 68 ForDHAM

L. Rev. at 1292. Indeed, orders of protection have been

recognized as “the frontline in the war against the abuse of

women.” Christopher Shu-Bin Woo, Familial Violence and

the American Criminal Justice System, 20 U. Haw. L. Rev.

375, 392 and n.116 (1998). One of their greatest strengths is

that courts have broad discretion in tailoring a protective

order to meet the unique circumstances of the battered woman

and her family. /d. at 394. Among other things, an order of

protection can include provisions restricting contact;

prohibiting abusive behavior; determining child custody and

visitation issues; mandating offender counseling; and even

forbidding firearm possession. OrFrice FoR VICTIMS OF CRIME,

U.S. Dep’t of Just., LeGat Serres BULLETIN 4, ENFORCEMENT

oF Protective Orpers | (Jan. 2002).

Furthermore, protective orders often reduce the incidence

of future violence and play a key role in improving a victim’s

own sense of safety. Studies have shown that in the majority

of cases, victims feel that civil protective orders protect them

against repeated incidents of abuse and are valuable in

helping them regain their emotional well-being, sense of

security, and overall control over their lives. NATIONAL INsT.

or Justice, U.S. Lep’t oF Just., Researcn Preview, Crvir

ProtscTion Orpers: Victims’ Views On EFFECTIVENESS |

(Jan. 1998). Simply filing for a retraining order can be an

act that empowers a battered woman and interrupts the pattern

of domination and control by her abuser. See Goodmark,

supra, 23 St. Louis U. Pus. L. Rev. at 11.

= Te eid -

11

But orders of protection, standing alone, do not contain

sufficient civil or criminal mechanisms to enforce them. See

Zlotnick, 56 Ouio St. L. J. at 1171; see also NATIONAL Inst.

oF JusTICE, supra, Victims’ Views ON EFFECTIVENESS at 1.

Approximately sixty percent of the women who obtain

in the year after they were issued. NATIONAL INsT. oF JusTICE,

U.S. Dep’t or Just., LEGAL INTERVENTIONS IN FAMILY VIOLENCE:

RESEARCH FINDINGS AND Po icy ImpLications (NCJ 171666)

50 (July 1998). Nearly a third of those women, twenty-nine

percent, report that the violations involved severe violence.

Id.; see also Patricia TiADEN & NANCY THOENNES, NATIONAL

Inst. oF Justice, U.S. Dep’t or Just., ExTENT, NATURE, AND

CONSEQUENCES OF INTIMATE PARTNER VIOLENCE (NCJ 181867)

54 (July 2000). This story has played out tragically in

newspapers and courts across the country.’

3. See, e.g., State v. Richardson, 670 N.W.2d 267 (Minn. 2003)

(involving estranged husband who murdered wife’s friend and

kidnapped and terrorized wife and children after wife obtained

restraining order); State v. Weatherholtz, 2003 WL 21543813 (Ohio

App. 3 Dist. July 9, 2003) (concerning estranged husband who entered

wife’s home, forced her to engage in sexual acts, and threatened to

commit suicide and kill members of her family after protective order

was in place); National Ctr. For Victims of Crime, Stalking Resource

Center, Protective Order Violations — Stalking in Disguise, Tue

Source News_etter, Vol. 4, No. 2 at | (Fall 2004) (recounting man

who killed estranged girlfriend and then turned gun on himself; police

found no-contact order next to woman’s body, which man had violated

four times before murdering victim); L.L. Brasier & John Masson,

Estranged Wife Killed With Ax, Detroit Free Press, Dec. 31, 2002

(involving estranged husband who killed wife with ax while she slept

next to two-year-old son five days after wife obtained personal

protection order against him); David M. Herszenhorn, Man Vowed

All Week to Kill Companion, Neighbors Say, N.Y Times, Aug. 23,

1996, at B3 (concerning woman stabbed to death by her estranged

husband while carrying one of two protective orders in her purse).

12

Moreover, orders of protection advance the safety of

children as well as adults. See Joan Zorza, Symposium on

Domestic Violence Criminal Law, The Criminal Law of

Misdemeanor Domestic Violence, 1970-1990, 83 J. Crim. L.

& Crimino.cocy 46, 46-47 (1992). An estimated 3.3 to 10

million American children witness domestic violence

annually. MartHA B. Witwer & Cueryt A. CRawrorp,

NaTIONAL Inst. oF Justice, U.S. Dep’t oF Just., ACoorDINATED

APPROACH TO REDUCING FAMILY VIOLENCE: CONFERENCE

~ HicuiiGuts(NCJ 155184) Appendix B at 35 (Oct. 1995). In

addition to the obvious psychological and emotional impact

on children, there is a strong connection between domestic

violence and child abduction. See Klein & Orloff, supra, 21

Horstra L. Rev. at 972 (noting importance of courts’

awareness of connection so that civil protective orders can

help deter ongoing risk of child snatching in families with

history of domestic violence). Over .ifty percent of

abductions occur in the context of domestic violence, and

seventy-seven percent of the abductors snatched the children

out of a desire to hurt the other parent. /d. (citing studies in

The Women’s Advocate and the Task Force on Child Abuse

and Neglect). The abduction and murder of the Gonzales

children is yet another heartbreaking manifestation of how a

civil protective order can fall short of saving the lives it was

intended to protect.

Ill. Law Enforcement’s Failure To Take Protective

Orders Seriously Jeopardizes The Lives Of Battered

Women And Their Children.

As the foregoing discussion demonstrates, court orders

alone cannot stem the tide of domestic violence and deter

the abusers. One of the most serious limitations of civil

protective orders has been the widespread lack of

ee ee

— ~wearn

er

13

enforcement by police. NATIONAL Inst. oF JusTICE, supra,

LEGAL INTERVENTIONS IN FAMILY VIOLENCE at 43. This lack of

enforcement was founded upon a tradition of police

indifference to the plight of battered women.

It goes without saying that the effectiveness of civil

protective orders to protect victims of domestic violence and

prevent further abuse depends on how well they are enforced.

See NATIONAL Inst. oF Justice, supra, Victims’ VIEWS ON

EFFECTIVENESS at 1; see also Truss, supra, 26 St. Mary’s L.

J. at 1188. In many situations, protective orders are effective

only when the restrained party is convinced that the order

will be enforced by the police. OrFice For Victims OF CRIME,

supra, ENFORCEMENT OF PROTECTIVE Orpersat |. As the Justice

Department has declared: “Unequivocal, standardized

enforcement of court orders is imperative if protective orders

are to be taken seriously by the offenders they attempt to

restrain.” Jd.

The police must play a key role in protecting family

members by enforcing orders of protection and arresting

perpetrators who violate them. NATIONAL Inst. oF JusTICE,

supra, A COORDINATED APPROACH at 7. Victims of domestic

violence can be endangered by any breakdown in

communication, failure of training, or lack of follow-through

in the criminal justice system. Kerry Murpuy HeaLtey &

CHRISTINE SMITH, NATIONAL Inst. oF Justice, U.S. Dep't oF

Just., RESEARCH IN AcTION, BATTERER PROGRAMS: WHAT

CRIMINAL JusTICE AGENCIES NEED TO Know 9 (July 1998).

Law enforcement officers are “the gatekeepers of the criminal

legal system,” and their power to arrest is the “first link in a

vital chain of institutional interventions that save the lives

of battered women and children[{.]” Barbara + Hart,

Symposium: Mandatory Arrest Laws and Policies, Arrest:

What's the Big Deal, 3 Wm. & Mary J. Women & L. 207,

14

211 (1997); see also Truss, supra, 26 St. Mary’s L. J. at 1189

and n.121 (noting that law enforcement officers are domestic

violence victim’s “first line of defense” and only direct link to

criminal justice system). The power to make arrests is, in turn,

the state’s “first line of attack” on domestic violence within its

borders. Jennifer R. Hagan, Symposium, Can We Lose the Battle

and Still Win the War?: The Fight Against Domestic Violence

After the Death of Title III of the Violence Against Women Act,

50 DePaut L. Rev. 919, 935 (2001). When police do not enforce

existing laws, the very foundation of the state’s criminal justice

system, in the context of domestic violence and civil protective

orders, is threatened. /d.

Until recently, law enforcement’s under-enforcement of

laws involving domestic violence was widespread.* Women

regularly encountered police officers who treated domestic

violence as “non-serious, non-criminal, or as a private matter

best settled within the home.” Truss, supra, 26 St. Mary’s

L. J. at 1189. Such archaic misconceptions and stereotypes

contributed to law enforcement’s failure to arrest men who

were abusing their partners or violating protective orders.

See id.; see also James PTaceK, BATTERED WOMEN IN THE

Courtroom 161-63 (1999) (describing police response to

domestic violence calls).

'. See, e.g., Thurman v. City of Torrington, 595 F. Supp. 1521

(D. Conn. 1984) (involving police refusal to respond to woman’s

repeated requests for protection; police watched as estranged husband

stabbed and kicked her in the neck, throat, and chest, paralyzing her

from the neck down and causing permanent disfigurement); Eagleston

v. Guido, 41 F.3d 865, 869 (2d Cir. 1994) (concerning husband who

brutally stabbed wife 30 times despite entreaties to police that he

was violating protective order), cert. denied, 516 U.S. 808, 116

S. Ct. 53, 133 L. Ed. 2d 18 (1995); Yumi Wilson, When Court Order

Isn't Enough, S.F. Curon., Sept. 20, 1996, at Al (recounting woman

murdered by her ex-boyfriend after she reported that he had violated

restraining order against him several times, yet police took no action).

15

All too often, police responded to domestic violence calls

either by taking no action at all, by purposefully delaying

response in the hupe of avoiding confrontation, or,

when officers did respond, by attempting to mediate the

situation and separate the parties so they could “cool off.”

See Machaela M. Hoctor, Comment, Domestic Violence as a

Crime Against the State: The Need for Mandatory Arrest in

California, 85 Cav. L. Rev. 643, 649 (1997). Data collected

by several agencies suggested that police seldom made arrests

in cases of domestic violence to which they actually

responded — as little as three to fourteen percent of the time.

See Sarah Mausolff Buel, Note, Mandatory Arrest for

Domestic Violence, 11 Harv. Women’s L. J. 213, 217 (1988)

(citing various studies on low arrest rates by police). When

an arrest was made, it was usually because the abuser was

belligerent or violent to the officers themselves, not as a result

of the obvious abuse inflicted upon the woman. Hoctor,

supra, 85 Cav. L. Rev. at 649. Other anecdotal evidence

suggested that officers openly blamed the wives for being

victims of domestic violence or made comments implying

that they deserved to be beaten by their husbands. See Amy

Eppler, Note, Battered Women and the Equal Protection

Clause: Will the Constitution Help them When the Police

Won't?, 95 Yate L. J. 788, 798 n.46 (1986); see also Zorza,

supra, 83 J. Crm. L. & Crimio.ocy at 47-52 (discussing

police response to domestic violence calls).

Therefore, not only were battered women threatened by

a tradition of police indifference — even open hostility — that

severely limited the efficacy of the criminal justice system.

Significantly, law enforcement’s dismissive approach to

domestic violence calls and the cries of battered women for

protection was not attributable to a few “rogue officers.”

16-

Hoctor, supra, 85 Car. L. Rev. at 649. To the contrary,

throughout the 1960s, 1970s, and 1980s, law enforcement

policies characterized domestic violence as a private matter

between the parties in which it should not interfere. Jd.

In 1967, the International Association of Chiefs of Police

declared in its training manual that “in dealing with family

disputes,’ the power of arrest should be exercised as a last

resort.” Lawrence W. Sherman, The Influence of Criminology

on Criminal Law: Evaluating Arrests for Misdemeanor

Domestic Violence, 83 J. Crim. L. & CrimmnoLocy 1-42

(1992), reprinted in Nancy K. D. Lemon, Domestic VIOLENCE

Law 499 (2001). This position was later endorsed by the

American Bar Association, whose 1973 Standards for the

Urban Police Function stated that police should “engage in

the resolution of conflict such as that which occurs between

husband and wife ... in the highly populated sections of the

large city, without reliance upon criminal assault or disorderly

conduct statutes.” Jd. The Oakland Police Department’s 1975

training manual described the role of a police officer in a

domestic violence case as “more often that of a mediator

5. Even the characterization of domestic violence as a “family

dispute” attributed to the continuing notion that domestic violence

was not a crime but a private matter less deserving of law

enforcement’s attention. It is interesting to note that the International

Association of Chiefs of Police has since renounced its earlier position

on this issue. Today, the organization pronounces to all of America’s

law enforcement officers: “Protecting victims of domestic violence

is a critical part of our job. The actions you take in these situations

can clearly save lives. Orders of protection are issued to ensure the

safety of victims of domestic violence. We need to enforce these

orders to the best of our abilities.” See Protecting Victims of Domestic

Violence: A Law Enforcement Officer's Guide to Enforcing Orders

of Protection Nationwide at 10, available at Violence Against Women

Online Resources, http://www.vaw.umn.edu.

17

and peacemaker than enforcer of the law. . .. Normally,

officers should adhere to the policy that arrests shall be

avoided[.}” Zorza, supra, 83 J. Crim. L. & Crimmo.ocy at

48. Similarly, Michigan’s policy directed officers to “[a]void

arrest if possible” and to “[a]ppeal to their [complainant’s]

vanity” in discouraging arrest and the initiation of criminal

proceedings. Jd. at 49.

While the law no longer expressly granted men the right

to beat and terrorize their partners, these law enforcement

protocols continued to implicitly condone domestic violence

and the actions of the abusers. See Eppler, supra, 95 YA.e L.

J. at 792-93. The end result was that domestic violence calls

were assigned a low priority by police officers and were not

treated as real crimes with potentially lethal consequences.

Zorza, supra, 83 J. Crim. L. & Crimino.ocy at 47. Moreover,

police officers considered domestic violence calls to

be “unglamorous, nonprestigious, and unrewarding” as

compared to other offenses. /d.

Even after efforts to train and educate police officers

began to emerge, law enforcement still avoided formal legal

proceedings against the abusers. Jeffrey Fagan, Presentation,

The Criminalization of Domestic Violence: Promises

and Limits 8 (1996). Police officers were trained in crisis

intervention, counseling, and mediation techniques —

anything but arresting the violent abuser. /d. By 1984, only

ten percent of large city police departments in the United

States encouraged officers to make arrests for crimes of

domestic violence. See Hoctor, supra, 85 Cal. L. Rev. at 650.

However, the public began to realize that law enforcement’s

endemic failure to enforce the law could be devastating, even

deadly. The tradition of police indifference brought about a

call to action by the federal government and set the stage for

the rise of mandatory arrest laws.

18

IV. Mandatory Arrest Laws Must Be Enforced To Effect

Their Legislative Purpose And Promote The Safety Of

Battered Women And Their Children.

Based upon the empirical and anecdotal evidence

documenting law enforcement’s reluctance to intervene on

behalf of battered women or to treat domestic violence as a

serious crime subject to arrest, major policy changes in the areas

of police response and assistance became imperative. In 1984,

the Attorney General’s Task Force on Family Violence identified

the failure of law enforcement to arrest for crimes of domestic

violence as one of the most formidable obstacles to curtailing

the epidemic of domestic violence in the United States. U.S.

Dep’t oF Just., ATTORNEY GENERAL’S TASK Force ON FAMILY

VIOLENCE: FINAL Report 16-18 (1984); see also Hoctor, supra,

85 Cal. L. Rev. at 650. Following several well-publicized studies

on the effectiveness of mandatory arrest in domestic violence

cases,° the Attorney General called for a “strong, coordinated

6. The most highly publicized study was conducted by

researchers Lawrence Sherman and Richard Berk in 1984. Epstein,

supra, 43 Wm. & Mary L. Rev. at 1854. The study, known as thre

Minneapolis Domestic Violence Experiment, reported that arest

significantly reduced the risk of re-offense over a six month paiod,

as compared with alternative police responses of either orderig one

party out of the residence or advising the couple on howto solve

their problems at the scene. CuristopHeER D. Maxwen, Joe. H

GARNER, & JEFFREY A. FAGAN, NATIONAL INsT. oF Justia, U.S. Der’r

OF JusT., RESEARCH IN Brier, THe ErFects OF ARRBT ON INTIMATE

PARTNER VIOLENCE: New EVIDENCE FROM THE SPOUSE ASSAULT

REPLICATION PROGRAM 4 (July 2001). Findings fron a recent replication

study “provide systematic evidence supportiig the argument that

arresting male batterers may, independent /f other criminal justice

sanctions and individual processes, redice subsequent intimate

partner violence.” /d. at 13; see also Cit of Grafton v. Swanson, 497

N.W.2d 421, 423 (N.D. 1993) (recogniing direct correlation between

ineffective police intervention in Jomestic violence cases and

continued existence of such violenc:).

19

effort by the criminal justice system” and issued a report

recommending arrest as the standard response to all cases of

misdemeanor domestic assault. AtrorNeY GENERAL’s TASK

Force, supra, at 5-6, 17; see also Epstein, supra, 43 Wm. &

Mary L. Rev. at 1854. Subsequent congressional hearings

involved extensive testimony on law enforcement’s

longstanding practice of treating domestic violence less

seriously than other similarly violent crimes. See, e.g., S.

Rep. No. 103-138, at 41 (1993) (citing Washington, D.C.

study that in 85% of cases where woman was found bleeding,

police failed to arrest her attacker).

Finally, on September 13, 1994, President Clinton signed

the Violence Against Women Act (“VAWA”) into law as part

of the Omnibus Crime Bill of 1994. See Pub. L. No. 103-

222, 108 Stat. 1796 (1994) (reauthorized in 2000 by Pub. L.

No. 106-386, Div. B, 114 Stat. 1464 (2000)). The VAWA

represented a significant turning point in the battered

women’s movement in two material respects. First, it

recognized protective orders as one of the most important

methods of combating domestic viclence and protecting

battered women and their children. See 18 U.S.C. § 2265

(requiring states to give full faith and credit to protective

orders issued by other states). Second, the VAWA included a

provision requiring mandatory arrest or pro-arrest policies

as a condition for receipt of funding by state and local

governments. See 42 U.S.C. § 3796hh (endorsing mandatory

arrest and pro-arrest policies); see also NATIONAL INsT. OF

Justice, supra, LEGAL INTERVENTIONS IN FAMILY VIOLENCE at

38 n.4. In the wake of the pronouncements by the Attorney

General and the testimony generated from the congressional

hearings, many states, including Colorado, began passing

mandatory arrest laws. This legislation represented a reversal

in law enforcement’s “long-standing nonintervention

20

protocol” in domestic violence cases. Epstein, supra, 43 Wm.

& Mary L. Rev. at 1855.

Mandatory arrest laws are designed to remove or

otherwise restrict an officer’s discretion in determining

whether to make an arrest when responding to a domestic

violence call. Goodmark, supra, 23 St Louis U. Pus. L. Rev.

at 15. As such, mandatory arrest laws counteract the systemic

problem of police indifference. Wanless, supra, 1996 U. kt,

L. Rev. at 542. Today, Colorado is one of more than twenty

states and the District of Columbia that have implemented

statutes mandating arrest in domestic violence situations.’

7. See Epstein, supra, 43 Wm. & Mary L. Rev. at n.42

(cataloguing mandatory arrest statutes). The following states mandate

arrest when there is probable cause to believe that a violation of a

protective order has occurred: ALaska Star. § 18.65.530(a)(2);

Cat. Penat Cope § 836(c); Coro. Rev. Star. § 18-6-803.5; Ky. Rev.

Stat. Ann. § 403.760(2); La. Rev. Star. ANN. § 14:79(E); Mp. Cove

ANN., Fam. Law § 4-509(b); Mass. Gen. Laws Ann. ch. 209A, § 6(7);

Me. Rev. Star. Ann. tit. 19-A, § 4012(5); Mow. Svar. Ann. § 518B.01,

subd. 14(e) and subd. 22(c); Mo. Rev. Star. § 455.085(2); Nev. Rev.

Stat. Ann. § 33.070(1); NJ. Stat. Ann. § 2C:25-21(a)(3); N_M. Star.

Ann. § 40-13-6(C); N.D. Cent. Cove § 14- 07.1-11(1); Omo Rev.

Cope Ann. § 2935.032; Or. Rev. Star. § 133.310(3); 23 Pa. Cons.

Stat. ANN § 6113(a); R.1. Gen. Laws § 12-29-3(b)(1); S_D. Copiriep

Laws § 23A-3-2.1(1); Tenn. Cope Ann. § 36-3-61 1(a)(2); Tex. Crim

Proc. Cope Ann. § 14.03(b); Uran Cope Ann. § 30-6-8(1);

Was. Rev. Cope Ann. § 10.31.100(2)(a); Wis. Stat. ANN.

§ $13.12(7)(b). The following states mandate arrest when there is a

finding of domestic violence regardless of whether a protection order

has been violated: ALaska Star. § 18.65.530(a)(1); Ariz. Rev. Star.

Ann. § 13-3601(B); Coto. Rev. Star. § 18-6-803.6; Conn. Gen. Star.

Ann. § 46b-38b(a); D.C. Cope Ann. § 16-1031; It. Comp. Srar.

60/304(a)(1); lowa Cope Ann. § 236.12(2)(b); La. Rev. Star. ANN.

(Cont'd)

21

Under these statutes, there are generally five circumstances

that are grounds for mandatory arrest:

(1) when there is probable cause to believe

violence has occurred or is likely to occur;

(2) when there is probable cause to believe a

protection order has been violated; (3) when a

violation of a protection order occurs in the

officer’s presence; (4) when there is probable

cause of aggravated battery; and/or (5) when the

officer observes a physical injury.

Miriam H. Ruttenberg, A Feminist Critique of Mandatory

Arrest: An Analysis of Race and Gender in Domestic Violence

Policy, 2 Am. U. J. G@woer & L. 171, 180 0.44 (1994)

(cataloguing mandatory arrest laws).

While the language, scope, and threshold of mandatory —

arrest laws vary from state to state, the legislative intent has

always been the same: to criminalize domestic violence,

protect battered women and children, and combat police

indifference by removing some level of discretion in the decision

to arrest. Each mandatory arrest law sends an unequivocal

message to abusers, victims, and society alike that domestic

violence and civil protective orders will be taken seriously, that

the law will be enforced, and that battered women and children

will be safeguarded. The corresponding mandate that police

(Cont'd)

§ 46:2140(1); Me. Rev. Star. Ann. tit. 19-A, § 4012(5); Nev. Rev.

Star. Ann. § 171.137(1); NJ. Star. Ann. § 2C:25-21(a)(1); Onto Rev.

Cope Ann. § 2935.032; Or. Rev. Star. § 133.310(6); R.1. Gen. Laws

§ 12-29-3(b); S.D. Copiriep Laws § 23A-3-2.1(2); Uran Cope Ann.

§ 30-6-8(2); Wasn. Rev. Cope Ann. § 10.31.100(2)(c); Wis. Srart.

Ann. § 968.075(2).

22 23

officers take affirmative action in these circumstances is equally the attitude that violent behavior will not be excused

as Clear. or tolerated, and shall make clear the fact that the

existing criminal laws and civil remedies created

The New Jersey legislature eloquently articulated the under this act will be enforced without regard to the

purpose behind its mandatory arrest law as follows:

fact that the violence grows out of a domestic

The Legislature finds and declares that domestic

violence is a serious crime against society; that there

are thousands of persons in this State who are

regularly beaten, tortured and in some cases even

killed by their spouses or cohabitants; ... and that

children, even when they are not themselves

physically assaulted, suffer deep and lasting

emotional effects from exposure to domestic

violence. /t is therefore, the intent of the Legislature

to assure the victims of domestic violence the

The Legislature further finds and declares that even

though many of the existing criminal statutes are

applicable to acts of domestic violence, previous

societal attitudes concerning domestic violence have

affected the response of our law enforcement and

judicial systems, resulting in these acts receiving

different treatment from similar crimes when they

occur in a domestic context. . . .

It is the intent of the Legislature to stress that the

primary duty of a law enforcement officer when

responding to a domestic violence call is to enforce

the laws rr violated and to protect the

victim... . It is further intended that the official

response to domestic violence shall communicate

situation.

N.J. Srat. Ann. § 2C:25-18 (emphases added). Similarly,

Colorado’s legislature indicated a definitive intent to impose

mandatory obligations on the police and others involved in the

First of all, . . . the entire criminal justice system must

act in a consistent manner, which does not now occur.

The police must make probable cause arrests.

The prosecutors must prosecute every case. Judges

must apply appropriate sentences, and probation

the offender needs to be sentenced to offender-

specific therapy.

So this means the entire system must send the same

message and enforce the same moral values, and

that is abuse is wrong and violence is criminal. And

so we hope that House Bill 1253 starts us down this

road.

Gonzales, 366 F.3d at 1107 (quoting Tr. of Colorado House

Judicial Committee Hearings on House Bill 1253, Feb. 15, 1994,

at 3) (emphases added). The passage of mandatory arrest laws,

in Colorado and elsewhere, represents a significant step in the

right direction. <—_. *__

~

The mere act of arrest communicates to the abuser and

declares to society that domestic violence is a crime that will

aS

be punished and no longer tolerated. Hoctor, supra, 85 Cat.

L. Rev. at 659. In this regard, “[mJandatory arrest is a

crucial step to criminalizing domestic violence.” Wanless,

supra, 1996 U. It. L. Rev. at 537. Moreover, mandatory

arrest clarifies the role of police in domestic violence cases

and helps guarantee victims some response from the criminal

justice system. /d. at 547. Mandatory arrest laws force police

officers to take domestic violence and violation of protective

orders seriously and to protect victims, something they failed

to do for centuries. Epstein, supra, 43 Wm. & Mary L.

Rev. at 1865; see also Buel, supra, 11 Harv. Women’s L. J.

at 220-224 (identifying benefits of mandatory arrest).

Since their emergence, mandatory arrest laws have been

credited with improving police responsiveness to domestic

violence around the country. See Goodmark, supra, 23

ST. Louis U. Pus. L. Rev. at 15 (citing statistics). One of the

most significant areas in which mandatory arrest policies have

begun to make a difference is in the enforcement of civil

protective orders. Hagan, supra, 50 DePaut L. Rev. at 977.

lis improvement is particularly compelling given that the

“enforcement of protective orders is arguably the most

important duty of the criminal justice system in combating

domestic violence.” /d. Notably, reports by the American Bar

Association and Department of Justice have concluded that

“[pjolice should assess the danger to children as well as to

adults in the home, and mandatory arrest for violating orders

of protection should include violations of provisions

restricting contact between the perpetrator and his or her

children.” NATIONAL INst. oF Justice, supra, A COORDINATED

ApPproacn, Appendix B at 35. Compliance with this directive

would have served the Gonzales children well.

25

Conversely, the failure to arrest men who are abusing

their partners or violating protective orders leaves victims

fully exposed to the imminent threat of domestic violence

and serves to reinforce abusers’ belief that their conduct is

acceptable. See Truss. supra, 26 St. Mary’s L. J. at 1190.

“Men ... [get] the m ssage from police officers that woman

battering is not a crime and that the sanctions of the criminal

justice system — sanctions which presumably exist to deter

and punish those who have the inclination to behave in

antisocial ways — are routinely not invoked by police officers

and that therefore they have nothing to fear if they beat the

women with whom they are, or were, involved.” Donna M.

Welch, Mandatory Arrest of Domestic Abusers: Panacea or

Perpetuation of the Problem of Abuse?, 43 DePaut L. Rev.

1133, 1148 (1994) (quoting Eva Jefferson Paterson, How the

Legal System Responds to Battered Women, m BATTERED

Women 79, 82-83 (Donna M. Moore ed., 1979)). Without

mandatory arrest, victims of domestic violence will be at the

mercy of a responding officer’s particular views and

prejudices regarding arrest and enforcement of the law.

Wanless, supra, 1996 U. ILL. L. Rev. at 547.

In this case, the Castle Rock Police Department failed

to honor Colorado’s legislative mandate to treat domestic

violence as the crime that it is. The Tenth Circuit Court of

Appeals’ decision reaffirms to society and to law enforcement

that domestic violence and the violation of protective orders

are grievous crimes that must be treated accordingly.

A reversal of the Tenth Circuit’s decision in this case will

mandatory arrest laws were implemented and dismantle the

rights and remedies that the Colorado legislature so

meticulously pieced together in the protection of battered

women and their children. A reversal of the Tenth Circuit’s

26

decision will, in effect, be a reversal of the strides this country

has made in the continuing campaign against domestic

v.Jlence.

CONCLUSION

“The single greatest source of assistance that the judicial

system can offer is enforcement of the laws designed to

protect victims from further abuse and violence.” Truss,

supra, 26 St. Mary’s L. J. at 1201-02. Following years of

nonintervention — even condonation — by society, the courts,

and the police, mandatory arrest laws were passed to ensure

the enforcement of protective orders and the safety of battered

women and children. Indeed, they were enacted to combat

the very indifference that the Castle Rock Police Department

demonstrated here. Mandatory arrest must be preserved as

the foundation for an effective criminal justice system that

affords victims of domestic violence the fundamental nghts

they were denied for centuries and have struggled so hard to

attain. For the foregoing reasons, the decision of the United

States Court of Appeals for the Tenth Circuit should be

affirmed.

27

Respectfully submitted,

Naomi G. Beer

Counsel of Record

Lippy Y. Mote

Micuece E. STONE

GREENBERG TRAURIG, LLP

The Tabor Center

1200 Seventeenth Street

Suite 2400

Denver, Colorado 80202

(303) 572-6500

Counsel for National Coalition

Against Domestic Violence and

National Center for Victims of Crime