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This is infuriating (domestic violence)

bluesteel
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5/10/2015 2:52:13 PM
Posted: 1 year ago
Town of Castle Rock v. Gonzales is a Supreme Court case where the Court held that police are not under an obligation to enforce restraining orders.

Here are the facts of the case. Jessica Lenahan was divorced from her husband, and had reported him three times for domestic violence. She also had a retraining order against them due to (a) the domestic violence incidents, (b) him stalking here after the divorce, (c) him breaking into her house to steal her wedding ring, (d) him breaking into her house again to change all the locks, and (e) him tampering with her sprinklers so it flooded her entire yard.

One day, her husband showed up at her house and kidnapped their three young daughters, who were playing out in the front yard. When she realized that here children were missing, Jessica called the police and said she suspected her husband had taken them. She told the police she had a restraining order and they needed to enforce it. The police were worried at first because they thought this was a missing person's case. They told Jessica to call her husband to see if he had the children, even though (1) it was the police's obligation to enforce the restraining order and investigate violations, not hers, and (2) it's pretty ridiculous to ask a domestic violence victim with a restraining order to contact her former abuser to ascertain whether the restraining order has been violated. But Jessica complied and called her husband. He said he had taken the girls, and they were at an amusement park.

Jessica called the police back, told them the father had kidnapped the girls (he had no right to see them at that time), and *demanded* the police enforce the restraining order. She wanted the police to go to the amusement park and collect the children. The police did not take her seriously. They told her to call back on a non-emergency line and said "that's a little ridiculous making us freak out and thinking the kids are gone," when they are actually with their father. The police told Jessica to call back at 10 pm if the children were not home. She did. They told her to call back at midnight if they were not home. She did. She went down to the station at 1 am to demand the police find her children. The police officer took down a formal report, then went out to dinner and did not issue an APB until 3 am.

At 3:20 am, the husband walked into the police station and started firing a gun. He was shot by officers. The officers then went outside to his truck, and find the dead bodies of his three young daughters. He had shot all of them.

Despite these facts, the Court held that there is no obligation on police to enforce restraining orders. Just... shocking.
You can't reason someone out of a position they didn't reason themselves into - Jonathan Swift (paraphrase)
Khaos_Mage
Posts: 23,214
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5/10/2015 3:58:42 PM
Posted: 1 year ago
At 5/10/2015 2:52:13 PM, bluesteel wrote:
Was the restraining order against the children?
How old were the children?
My work here is, finally, done.
bluesteel
Posts: 12,301
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5/10/2015 8:29:42 PM
Posted: 1 year ago
At 5/10/2015 3:58:42 PM, Khaos_Mage wrote:
At 5/10/2015 2:52:13 PM, bluesteel wrote:
Was the restraining order against the children?
How old were the children?

Yes he wasn't supposed to be at the home unless it was his rare day to visit.
You can't reason someone out of a position they didn't reason themselves into - Jonathan Swift (paraphrase)
Khaos_Mage
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5/10/2015 10:23:35 PM
Posted: 1 year ago
At 5/10/2015 8:29:42 PM, bluesteel wrote:
At 5/10/2015 3:58:42 PM, Khaos_Mage wrote:
At 5/10/2015 2:52:13 PM, bluesteel wrote:
Was the restraining order against the children?
How old were the children?

Yes he wasn't supposed to be at the home unless it was his rare day to visit.

1. This contradicts an earlier statement you made.
2. This does not answer my question. Was the restraining order against the children or just the mother?
My work here is, finally, done.
bluesteel
Posts: 12,301
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5/11/2015 12:14:31 AM
Posted: 1 year ago
At 5/10/2015 10:23:35 PM, Khaos_Mage wrote:
At 5/10/2015 8:29:42 PM, bluesteel wrote:
At 5/10/2015 3:58:42 PM, Khaos_Mage wrote:
At 5/10/2015 2:52:13 PM, bluesteel wrote:
Was the restraining order against the children?
How old were the children?

Yes he wasn't supposed to be at the home unless it was his rare day to visit.

1. This contradicts an earlier statement you made.

Visitation =/= custody. It's kidnapping to take a child when you don't have legal custody of them.

I can't believe someone would even argue that he should be able to take them because he's their father, given what happened.

2. This does not answer my question. Was the restraining order against the children or just the mother?

Yes, the restraining order forbade him from being near the children, except for supervised visitation.
You can't reason someone out of a position they didn't reason themselves into - Jonathan Swift (paraphrase)
Skepsikyma
Posts: 8,280
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5/11/2015 12:29:21 AM
Posted: 1 year ago
...

What the hell is the point of a restraining order if not for it to be enforced by police? Isn't that the entire point of having a police force? To execute judicial decisions? Without enforcement it's just a piece of paper.

Three children are dead because cops were too lazy to actually do their job, and now their dereliction has been sanctioned by a court. They were probably too busy issuing pricy tickets for nonviolent crimes instead of, you know, doing what used to be called their duty.
"The Collectivist experiment is thoroughly suited (in appearance at least) to the Capitalist society which it proposes to replace. It works with the existing machinery of Capitalism, talks and thinks in the existing terms of Capitalism, appeals to just those appetites which Capitalism has aroused, and ridicules as fantastic and unheard-of just those things in society the memory of which Capitalism has killed among men wherever the blight of it has spread."
- Hilaire Belloc -
Wylted
Posts: 21,167
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5/11/2015 12:59:13 AM
Posted: 1 year ago
It's pretty easy to get a restraining order and in child custody cases, if the court hasn't determined anything yet, the kids can be kidnapped back and forth indefinitely. This post isn't gaining us enough details.

Also, yes the suprem court has determined several times that the police aren't under these types of obligations. Taking this case to the Supreme Court was kind of silly when they've repeatedly held up the same decision.
Wylted
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5/11/2015 1:01:00 AM
Posted: 1 year ago
At 5/11/2015 12:14:31 AM, bluesteel wrote:
At 5/10/2015 10:23:35 PM, Khaos_Mage wrote:
At 5/10/2015 8:29:42 PM, bluesteel wrote:
At 5/10/2015 3:58:42 PM, Khaos_Mage wrote:
At 5/10/2015 2:52:13 PM, bluesteel wrote:
Was the restraining order against the children?
How old were the children?

Yes he wasn't supposed to be at the home unless it was his rare day to visit.

1. This contradicts an earlier statement you made.

Visitation =/= custody. It's kidnapping to take a child when you don't have legal custody of them.

I can't believe someone would even argue that he should be able to take them because he's their father, given what happened.

2. This does not answer my question. Was the restraining order against the children or just the mother?

Yes, the restraining order forbade him from being near the children, except for supervised visitation.

Sometimes neither side has custody. My parents used to kidnap me and my siblings back and forth all the time, and usually each had the police with them, when they did it. It wasn't until my dad won custody in court, that sort of thing stopped.
ESocialBookworm
Posts: 14,355
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5/11/2015 9:06:09 AM
Posted: 1 year ago
At 5/10/2015 2:52:13 PM, bluesteel wrote:

I was gonna pretend this was a book, or television show or something... but then I found other links on it...

People suck.

They should have kept him alive, hung him outside down and stuck an IV line in his foot, to drain out all his blood.
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Khaos_Mage
Posts: 23,214
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5/11/2015 9:24:53 AM
Posted: 1 year ago
At 5/11/2015 12:14:31 AM, bluesteel wrote:
At 5/10/2015 10:23:35 PM, Khaos_Mage wrote:
At 5/10/2015 8:29:42 PM, bluesteel wrote:
At 5/10/2015 3:58:42 PM, Khaos_Mage wrote:
At 5/10/2015 2:52:13 PM, bluesteel wrote:
Was the restraining order against the children?
How old were the children?

Yes he wasn't supposed to be at the home unless it was his rare day to visit.

1. This contradicts an earlier statement you made.

Visitation =/= custody. It's kidnapping to take a child when you don't have legal custody of them.
You said the father had no visitation rights in the OP, then he has a "rare day to visit", and now it is visitation under supervision. This is the contradiction, and frankly, very important.

And, yes, I am aware of the difference, but the way you word this makes it sound like my father kidnapped me and my brothers two Wednesday's for four hours per month when we were little. My father had no custody, but had visitation rights, even if it was supervised. So, did he kidnap us to take us to dinner? No, but, by your definition, he did.

I can't believe someone would even argue that he should be able to take them because he's their father, given what happened.
You don't even know what my argument is, as I am trying to get some basic information.

2. This does not answer my question. Was the restraining order against the children or just the mother?

Yes, the restraining order forbade him from being near the children, except for supervised visitation.
Under whose supervision?
My work here is, finally, done.
YYW
Posts: 36,263
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5/11/2015 9:57:24 AM
Posted: 1 year ago
At 5/11/2015 12:29:21 AM, Skepsikyma wrote:
...

What the hell is the point of a restraining order if not for it to be enforced by police? Isn't that the entire point of having a police force? To execute judicial decisions? Without enforcement it's just a piece of paper.

The idea of a restraining order is to impose a judicial penalty for violation of it. The problem is that enforcement of a restraining order comes "after the fact," and it is not a preemptive thing. The purpose is to create a legal incentive for people not to go around others. If you break a restraining order, depending on the terms of it and the jurisdiction you're in, you can face penalties ranging from fines to jail time. (Judge and former congressman Ted Poe, were he a judge, additionally might compel a violator to wear a sandwich board and stand on a sidewalk.)

Three children are dead because cops were too lazy to actually do their job, and now their dereliction has been sanctioned by a court. They were probably too busy issuing pricy tickets for nonviolent crimes instead of, you know, doing what used to be called their duty.

It's a disturbing outcome, that's morally outrageous, really. But, private citizens cannot compel cops to act. The remedy (really, the only remedy) that people have for inefficacious police is the political process; vote the old chief out, get a new one in, and hope that he does a better job.

The reason that courts generally hold that police don't have an affirmative duty to act to protect private citizens is because it goes to the issue of allocation of police resources -the choice of which is exclusively held by police administration. If a private citizen, by telling police that they face a threat, could then legally recover against police officers, then every time the police "fell short" of what a reasonable affirmative prevention would be, people could sue them. Courts are very wary of that.

The police should have, in this case, just 'protected' and 'served', but clearly they fall short there as they consistently do in so many other places. Not all cops are bad people, but cases like this (and the several others like it that I've read) really undermine the integrity and legitimacy of police forces writ large. But I would have at the same time been shocked if the Supreme Court found that police had an affirmative duty to take steps necessary to prevent this from happening. This is one of those *many* cases where the moral and legal diametrically part ways.
Tsar of DDO
YYW
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5/11/2015 10:03:28 AM
Posted: 1 year ago
At 5/11/2015 9:24:53 AM, Khaos_Mage wrote:
At 5/11/2015 12:14:31 AM, bluesteel wrote:
At 5/10/2015 10:23:35 PM, Khaos_Mage wrote:
At 5/10/2015 8:29:42 PM, bluesteel wrote:
At 5/10/2015 3:58:42 PM, Khaos_Mage wrote:
At 5/10/2015 2:52:13 PM, bluesteel wrote:
Was the restraining order against the children?
How old were the children?

Yes he wasn't supposed to be at the home unless it was his rare day to visit.

1. This contradicts an earlier statement you made.

Visitation =/= custody. It's kidnapping to take a child when you don't have legal custody of them.
You said the father had no visitation rights in the OP,

I don't think so.

And, yes, I am aware of the difference, but the way you word this makes it sound like my father kidnapped me and my brothers two Wednesday's for four hours per month when we were little. My father had no custody, but had visitation rights, even if it was supervised. So, did he kidnap us to take us to dinner? No, but, by your definition, he did.

In criminal law, kidnapping is the unlawful taking away or transportation of a person against that person's will, usually to hold the person unlawfully. This may be done for ransom or in furtherance of another crime, or in connection with a child custody dispute.

The thing is that custodial interference is the more reasonable charge, given the situation -assuming that that's a crime in the jurisdiction he was charged in.
Tsar of DDO
Khaos_Mage
Posts: 23,214
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5/11/2015 10:23:48 AM
Posted: 1 year ago
At 5/11/2015 10:03:28 AM, YYW wrote:
At 5/11/2015 9:24:53 AM, Khaos_Mage wrote:
At 5/11/2015 12:14:31 AM, bluesteel wrote:
At 5/10/2015 10:23:35 PM, Khaos_Mage wrote:
At 5/10/2015 8:29:42 PM, bluesteel wrote:
At 5/10/2015 3:58:42 PM, Khaos_Mage wrote:
At 5/10/2015 2:52:13 PM, bluesteel wrote:
Was the restraining order against the children?
How old were the children?

Yes he wasn't supposed to be at the home unless it was his rare day to visit.

1. This contradicts an earlier statement you made.

Visitation =/= custody. It's kidnapping to take a child when you don't have legal custody of them.
You said the father had no visitation rights in the OP,

I don't think so.
He said there was a restraining order, which implies no visitation rights. However, I thought he said it explicitly.

And, yes, I am aware of the difference, but the way you word this makes it sound like my father kidnapped me and my brothers two Wednesday's for four hours per month when we were little. My father had no custody, but had visitation rights, even if it was supervised. So, did he kidnap us to take us to dinner? No, but, by your definition, he did.

In criminal law, kidnapping is the unlawful taking away or transportation of a person against that person's will, usually to hold the person unlawfully. This may be done for ransom or in furtherance of another crime, or in connection with a child custody dispute.

I'm aware, hence my questions.
What Bluesteel does not say is that the mother had allowed the father to take the children not at their scheduled times in the past. This creates an issue.

Further, the issue is not with the Supreme Court, but Colorado law.
"The Supreme Court reversed the Tenth Circuit's decision, reinstating the District Court's order of dismissal. The Court's majority opinion by Justice Antonin Scalia held that enforcement of the restraining order was not mandatory under Colorado law; were a mandate for enforcement to exist, it would not create an individual right to enforcement that could be considered a protected entitlement under the precedent of Board of Regents of State Colleges v. Roth; and even if there were a protected individual entitlement to enforcement of a restraining order, such entitlement would have no monetary value and hence would not count as property for the Due Process Clause."

Further, this case was also about the ability to sue, hence the monetary value.
http://en.wikipedia.org...

The thing is that custodial interference is the more reasonable charge, given the situation -assuming that that's a crime in the jurisdiction he was charged in.

It could be, if it wasn't known that the mother, in the past, broke the restraining order willingly. So, the question becomes: should police arrest a man on the pure say-so of a woman?
It is possible she allowed him, she changed her mind, she was drunk, she forgot, or that he kidnapped them. Do the police need to get involved with this, when the children are likely safe and accounted for (not in this case, but in the vast vast majority of cases)? Should a father who is running one minute late be arrested?
A sad outcome, obviously, and one that everyone would like to have seen averted.
My work here is, finally, done.
YYW
Posts: 36,263
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5/11/2015 10:27:01 AM
Posted: 1 year ago
At 5/11/2015 10:23:48 AM, Khaos_Mage wrote:
At 5/11/2015 10:03:28 AM, YYW wrote:
At 5/11/2015 9:24:53 AM, Khaos_Mage wrote:
At 5/11/2015 12:14:31 AM, bluesteel wrote:
At 5/10/2015 10:23:35 PM, Khaos_Mage wrote:
At 5/10/2015 8:29:42 PM, bluesteel wrote:
At 5/10/2015 3:58:42 PM, Khaos_Mage wrote:
At 5/10/2015 2:52:13 PM, bluesteel wrote:
Was the restraining order against the children?
How old were the children?

Yes he wasn't supposed to be at the home unless it was his rare day to visit.

1. This contradicts an earlier statement you made.

Visitation =/= custody. It's kidnapping to take a child when you don't have legal custody of them.
You said the father had no visitation rights in the OP,

I don't think so.
He said there was a restraining order, which implies no visitation rights. However, I thought he said it explicitly.

A restraining order does not imply no visitation rights.

And, yes, I am aware of the difference, but the way you word this makes it sound like my father kidnapped me and my brothers two Wednesday's for four hours per month when we were little. My father had no custody, but had visitation rights, even if it was supervised. So, did he kidnap us to take us to dinner? No, but, by your definition, he did.

In criminal law, kidnapping is the unlawful taking away or transportation of a person against that person's will, usually to hold the person unlawfully. This may be done for ransom or in furtherance of another crime, or in connection with a child custody dispute.

I'm aware, hence my questions.
What Bluesteel does not say is that the mother had allowed the father to take the children not at their scheduled times in the past. This creates an issue.

It might.

Further, the issue is not with the Supreme Court, but Colorado law.

Well, the issue is with the law, generally.

It could be, if it wasn't known that the mother, in the past, broke the restraining order willingly. So, the question becomes: should police arrest a man on the pure say-so of a woman?

That's not the issue. The issue is whether the police have an affirmative duty to do stuff to protect people. They almost never do.
Tsar of DDO
Khaos_Mage
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5/11/2015 10:39:27 AM
Posted: 1 year ago
At 5/11/2015 10:27:01 AM, YYW wrote:
At 5/11/2015 10:23:48 AM, Khaos_Mage wrote:


A restraining order does not imply no visitation rights.
To me it does, and I think the general public would agree.
The layman thinks of a restraining order as a do not contact order, generally for protection, which is mutually exclusive to visiting. Further, when this order is waived, it has even less meaning.

What Bluesteel does not say is that the mother had allowed the father to take the children not at their scheduled times in the past. This creates an issue.

It might.
It does. Why should the police assume it is any different or unsafe?

Further, the issue is not with the Supreme Court, but Colorado law.

Well, the issue is with the law, generally.
But specifically Colorado. Another state may not have this issue.

It could be, if it wasn't known that the mother, in the past, broke the restraining order willingly. So, the question becomes: should police arrest a man on the pure say-so of a woman?

That's not the issue. The issue is whether the police have an affirmative duty to do stuff to protect people. They almost never do.

Why is the issue in protecting people at all? Isn't their role law enforcement, and by enforcing the law, they protect and serve the community? So, they should enforce a restraining order, since it is a break in the law, if it can be justified. Unfortunately, from what I know about this case, it was not justified for police to use its resources to find kids that may have been kidnapped but knew where they were, with grave consequences.
My work here is, finally, done.
YYW
Posts: 36,263
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5/11/2015 10:51:17 AM
Posted: 1 year ago
At 5/11/2015 10:39:27 AM, Khaos_Mage wrote:
At 5/11/2015 10:27:01 AM, YYW wrote:
At 5/11/2015 10:23:48 AM, Khaos_Mage wrote:


A restraining order does not imply no visitation rights.
To me it does, and I think the general public would agree.
The layman thinks of a restraining order as a do not contact order, generally for protection, which is mutually exclusive to visiting. Further, when this order is waived, it has even less meaning.

I mean I know it does to you, but legally, a restraining order doesn't imply no visitation rights. And yes, there is often a disjunction between what people think and what the law says...

What Bluesteel does not say is that the mother had allowed the father to take the children not at their scheduled times in the past. This creates an issue.

It might.
It does. Why should the police assume it is any different or unsafe?

Again, that's not the issue in this case.

Further, the issue is not with the Supreme Court, but Colorado law.

Well, the issue is with the law, generally.
But specifically Colorado. Another state may not have this issue.

It could be, if it wasn't known that the mother, in the past, broke the restraining order willingly. So, the question becomes: should police arrest a man on the pure say-so of a woman?

That's not the issue. The issue is whether the police have an affirmative duty to do stuff to protect people. They almost never do.

Why is the issue in protecting people at all? Isn't their role law enforcement, and by enforcing the law, they protect and serve the community? So, they should enforce a restraining order, since it is a break in the law, if it can be justified. Unfortunately, from what I know about this case, it was not justified for police to use its resources to find kids that may have been kidnapped but knew where they were, with grave consequences.

The motto is "protect and serve," but legally, police almost never have an affirmative act to do things to protect people. I am aware that this doesn't comport with what we think the police should do/be, and I agree. But the 10th circuit was wrong; and the law says what it says; this is not unique to Colorado. It's a basic common law principal. Police do not have a legal duty to do things to protect people. They should; but they don't.
Tsar of DDO
YYW
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5/11/2015 10:57:16 AM
Posted: 1 year ago
There are a number of cases that I've read with very similar fact patterns; one where a dude was stalking his girlfriend, literally said that he was going to kill her to his therapist, and then did that. The court held that the police had no duty to protect her, but the therapist might have had a duty to warn.

If the police, for example, began a rescue effort... or took care, custody or exercised some kind of control over the woman in the case Bluesteel referenced, the case would have turned out differently -but absent some special relationship between the police and a private citizen, the police almost never have a legal duty to do anything.

Now, suppose the girl was a police informant; that's a "special relationship" which is enough to give rise to a legal duty... but that's not what happened here. Suppose that the girl was in protective custody; the case would have turned out differently. Suppose she was in witness protection; the case 'might' have turned out differently.

But, as between the police and merely "a private citizen," in no other capacity than a private citizen... no liability. I think it's outrageous too; especially when you've got a situation like this. The law nevertheless is clear.
Tsar of DDO
Khaos_Mage
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5/11/2015 11:13:44 AM
Posted: 1 year ago
At 5/11/2015 10:51:17 AM, YYW wrote:

The motto is "protect and serve," but legally, police almost never have an affirmative act to do things to protect people. I am aware that this doesn't comport with what we think the police should do/be, and I agree. But the 10th circuit was wrong; and the law says what it says; this is not unique to Colorado. It's a basic common law principal. Police do not have a legal duty to do things to protect people. They should; but they don't.

So, to be clear, the cops do not have to enforce a restraining order? What good is one, then? Is violating one not a crime?
By enforcing it, they protect, which is not the same as protecting. I agree.
My work here is, finally, done.
YYW
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5/11/2015 11:29:53 AM
Posted: 1 year ago
At 5/11/2015 11:13:44 AM, Khaos_Mage wrote:
At 5/11/2015 10:51:17 AM, YYW wrote:

The motto is "protect and serve," but legally, police almost never have an affirmative act to do things to protect people. I am aware that this doesn't comport with what we think the police should do/be, and I agree. But the 10th circuit was wrong; and the law says what it says; this is not unique to Colorado. It's a basic common law principal. Police do not have a legal duty to do things to protect people. They should; but they don't.

So, to be clear, the cops do not have to enforce a restraining order? What good is one, then? Is violating one not a crime?
By enforcing it, they protect, which is not the same as protecting. I agree.

No. Even if there was a restraining order, which was fully valid and enforceable, the cops do not have a duty to enforce it. The violation of a restraining order gives the police grounds to arrest the violator; such a violation does not impute a duty on police officers to do so. Why? Because can =/= must.

(The case was more complicated than this; it involved the plaintiff claiming that her procedural due process rights were violated and her asserting a property interest in the restraining order -a very strange argument- but that stuff doesn't matter. What matters is that the cops don't have a duty to enforce a restraining order.)
Tsar of DDO
Khaos_Mage
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5/11/2015 11:37:09 AM
Posted: 1 year ago
At 5/11/2015 11:29:53 AM, YYW wrote:
At 5/11/2015 11:13:44 AM, Khaos_Mage wrote:
At 5/11/2015 10:51:17 AM, YYW wrote:

The motto is "protect and serve," but legally, police almost never have an affirmative act to do things to protect people. I am aware that this doesn't comport with what we think the police should do/be, and I agree. But the 10th circuit was wrong; and the law says what it says; this is not unique to Colorado. It's a basic common law principal. Police do not have a legal duty to do things to protect people. They should; but they don't.

So, to be clear, the cops do not have to enforce a restraining order? What good is one, then? Is violating one not a crime?
By enforcing it, they protect, which is not the same as protecting. I agree.

No. Even if there was a restraining order, which was fully valid and enforceable, the cops do not have a duty to enforce it. The violation of a restraining order gives the police grounds to arrest the violator; such a violation does not impute a duty on police officers to do so. Why? Because can =/= must.

So, what do cops have a duty to do, then, if not enforce the law?
I get they have discretion, but are you saying they can just say "meh, let 911 go to voicemail" or "let's not break up this fight we see"?
My work here is, finally, done.
YYW
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5/11/2015 11:40:00 AM
Posted: 1 year ago
At 5/11/2015 11:37:09 AM, Khaos_Mage wrote:
At 5/11/2015 11:29:53 AM, YYW wrote:
At 5/11/2015 11:13:44 AM, Khaos_Mage wrote:
At 5/11/2015 10:51:17 AM, YYW wrote:

The motto is "protect and serve," but legally, police almost never have an affirmative act to do things to protect people. I am aware that this doesn't comport with what we think the police should do/be, and I agree. But the 10th circuit was wrong; and the law says what it says; this is not unique to Colorado. It's a basic common law principal. Police do not have a legal duty to do things to protect people. They should; but they don't.

So, to be clear, the cops do not have to enforce a restraining order? What good is one, then? Is violating one not a crime?
By enforcing it, they protect, which is not the same as protecting. I agree.

No. Even if there was a restraining order, which was fully valid and enforceable, the cops do not have a duty to enforce it. The violation of a restraining order gives the police grounds to arrest the violator; such a violation does not impute a duty on police officers to do so. Why? Because can =/= must.

So, what do cops have a duty to do, then, if not enforce the law?

That's a really big question... but I've got to give you the typical answer.... 'it depends'.

I get they have discretion, but are you saying they can just say "meh, let 911 go to voicemail" or "let's not break up this fight we see"?

That's a really, really complicated question.

The general rule is that where and to the extent that cops take some kind of affirmative action, they have a duty that pertains to that action; absent some affirmative "doing" there really is not a lot that they have to do.
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Cody_Franklin
Posts: 9,483
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5/11/2015 11:45:52 AM
Posted: 1 year ago
At 5/11/2015 11:37:09 AM, Khaos_Mage wrote:
At 5/11/2015 11:29:53 AM, YYW wrote:
At 5/11/2015 11:13:44 AM, Khaos_Mage wrote:
At 5/11/2015 10:51:17 AM, YYW wrote:

The motto is "protect and serve," but legally, police almost never have an affirmative act to do things to protect people. I am aware that this doesn't comport with what we think the police should do/be, and I agree. But the 10th circuit was wrong; and the law says what it says; this is not unique to Colorado. It's a basic common law principal. Police do not have a legal duty to do things to protect people. They should; but they don't.

So, to be clear, the cops do not have to enforce a restraining order? What good is one, then? Is violating one not a crime?
By enforcing it, they protect, which is not the same as protecting. I agree.

No. Even if there was a restraining order, which was fully valid and enforceable, the cops do not have a duty to enforce it. The violation of a restraining order gives the police grounds to arrest the violator; such a violation does not impute a duty on police officers to do so. Why? Because can =/= must.

So, what do cops have a duty to do, then, if not enforce the law?
I get they have discretion, but are you saying they can just say "meh, let 911 go to voicemail" or "let's not break up this fight we see"?

Well, speaking in a strictly legal sense, that's not exactly what was going on. YYW is right on this one--the argument she actually used to sue was that the procedural efficacy of the restraining order was a substantive property interest, and that refusal to enforce was therefore tantamount to deprivation of property without due process.

Upon violation of the order, it is, quite sadly, up to police discretion as to whether to enforce it by making an arrest, if not in strict language, then certainly just as a factual matter. I can scarcely imagine why the police would refuse to at least go out to look for the guy--there are castles of speculation building in my head already--but, in a fine display of governmental negligence, that's just the world we live in.
1harderthanyouthink
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5/11/2015 2:31:59 PM
Posted: 1 year ago
God save us if the next President to appoint a justice is a Republican.
"It's awfully considerate of you to think of me here,
And I'm much obliged to you for making it clear - that I'm not here."

-Syd Barrett

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1harderthanyouthink
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5/11/2015 2:35:30 PM
Posted: 1 year ago
At 5/11/2015 11:40:52 AM, FourTrouble wrote:
No way that case is decided correctly. Scalia's a dick.

When will he die?
"It's awfully considerate of you to think of me here,
And I'm much obliged to you for making it clear - that I'm not here."

-Syd Barrett

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Khaos_Mage
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5/11/2015 2:43:13 PM
Posted: 1 year ago
At 5/11/2015 2:31:59 PM, 1harderthanyouthink wrote:
God save us if the next President to appoint a justice is a Republican.

For the record, this opinion seems to be from 2005, and was 7-2, with the dissent being about how the Supreme Court shouldn't have heard it at all.

Not sure what Republicans have to do with it.
My work here is, finally, done.
bluesteel
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5/12/2015 4:37:26 AM
Posted: 1 year ago
At 5/11/2015 9:24:53 AM, Khaos_Mage wrote:
At 5/11/2015 12:14:31 AM, bluesteel wrote:
At 5/10/2015 10:23:35 PM, Khaos_Mage wrote:
At 5/10/2015 8:29:42 PM, bluesteel wrote:
At 5/10/2015 3:58:42 PM, Khaos_Mage wrote:
At 5/10/2015 2:52:13 PM, bluesteel wrote:
Was the restraining order against the children?
How old were the children?

Yes he wasn't supposed to be at the home unless it was his rare day to visit.

1. This contradicts an earlier statement you made.

Visitation =/= custody. It's kidnapping to take a child when you don't have legal custody of them.
You said the father had no visitation rights in the OP, then he has a "rare day to visit", and now it is visitation under supervision. This is the contradiction, and frankly, very important.

And, yes, I am aware of the difference, but the way you word this makes it sound like my father kidnapped me and my brothers two Wednesday's for four hours per month when we were little. My father had no custody, but had visitation rights, even if it was supervised. So, did he kidnap us to take us to dinner? No, but, by your definition, he did.

Apparently you don't understand how visitation works, since you were a child when this happened. The court order specifies what days the parent has visitation rights. Taking the child on any non-scheduled day is kidnapping and is illegal.


I can't believe someone would even argue that he should be able to take them because he's their father, given what happened.
You don't even know what my argument is, as I am trying to get some basic information.

2. This does not answer my question. Was the restraining order against the children or just the mother?

Yes, the restraining order forbade him from being near the children, except for supervised visitation.
Under whose supervision?

A court-ordered professional.
You can't reason someone out of a position they didn't reason themselves into - Jonathan Swift (paraphrase)
bluesteel
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5/12/2015 4:43:03 AM
Posted: 1 year ago
At 5/11/2015 2:43:13 PM, Khaos_Mage wrote:
At 5/11/2015 2:31:59 PM, 1harderthanyouthink wrote:
God save us if the next President to appoint a justice is a Republican.

For the record, this opinion seems to be from 2005, and was 7-2, with the dissent being about how the Supreme Court shouldn't have heard it at all.

Apparently you didn't read the whole dissent. It argued that the feminist movement has resulted in many states, including Colorado, passing "mandatory enforcement" statutes for domestic violence and restraining orders because there has been a persistent problem of non-enforcement in the past. Unlike for other laws, that say police "must" enforce but still grant discretion not to, these laws were specifically intended to force police to enforce the law and remove police discretion, precisely to avoid the facts that happened in this case -- where officers say sh*t like "oh, well he's the father and this is a domestic dispute, we don't want to get involved."


Not sure what Republicans have to do with it.
You can't reason someone out of a position they didn't reason themselves into - Jonathan Swift (paraphrase)
Kaynes
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5/12/2015 8:45:53 AM
Posted: 1 year ago
Always funny to see people with no understanding of the law blaming the court, people will never change...
Khaos_Mage
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5/12/2015 9:22:36 AM
Posted: 1 year ago
At 5/12/2015 4:37:26 AM, bluesteel wrote:
At 5/11/2015 9:24:53 AM, Khaos_Mage wrote:
At 5/11/2015 12:14:31 AM, bluesteel wrote:
At 5/10/2015 10:23:35 PM, Khaos_Mage wrote:
At 5/10/2015 8:29:42 PM, bluesteel wrote:
At 5/10/2015 3:58:42 PM, Khaos_Mage wrote:
At 5/10/2015 2:52:13 PM, bluesteel wrote:
Was the restraining order against the children?
How old were the children?

Yes he wasn't supposed to be at the home unless it was his rare day to visit.

1. This contradicts an earlier statement you made.

Visitation =/= custody. It's kidnapping to take a child when you don't have legal custody of them.
You said the father had no visitation rights in the OP, then he has a "rare day to visit", and now it is visitation under supervision. This is the contradiction, and frankly, very important.

And, yes, I am aware of the difference, but the way you word this makes it sound like my father kidnapped me and my brothers two Wednesday's for four hours per month when we were little. My father had no custody, but had visitation rights, even if it was supervised. So, did he kidnap us to take us to dinner? No, but, by your definition, he did.

Apparently you don't understand how visitation works, since you were a child when this happened. The court order specifies what days the parent has visitation rights. Taking the child on any non-scheduled day is kidnapping and is illegal.

Oh, I know full well that my dad had supervised visits for four hours every other Wednesday night, and one Saturday for eight hours, for over a year. I am also aware that my mother could have let him seen us longer or other days, but refused.
However, my father did not have a restraining order to my knowledge, hence my confusion. He was able to visit us at school functions and things.

But, according to the Wiki, the father did visit outside of these restrictions before this incident.
So, is your contention, that those visits would be kidnapping and illegal? Or is it just if the custodial parent disagrees?


I can't believe someone would even argue that he should be able to take them because he's their father, given what happened.
You don't even know what my argument is, as I am trying to get some basic information.

2. This does not answer my question. Was the restraining order against the children or just the mother?

Yes, the restraining order forbade him from being near the children, except for supervised visitation.
Under whose supervision?

A court-ordered professional.
Do you think the times the order was disregarded there was a professional present? If so, is it illegal? Should the mother also be prosecuted for this violation, perhaps child endangerment, since she is willingly violating an order of protection of her children?

I see now this case was not what I thought it was, as I thought it was about discretion, not about affirmative requirements.
My work here is, finally, done.