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Challenge may alter domestic violence strategies

Sunday, March 27, 2005


Court could issue new restraining order rules

A tragic case heard by the U.S. Supreme Court last week could change the way law enforcement agencies nationwide handle restraining orders in domestic violence situations.

Town of Castle Rock v. Gonzales, a Colorado case in which three children were murdered by their father, centers on whether police failure to enforce a domestic violence restraining order is a federal civil rights violation. If the justices say yes, the door will be open to thousands of lawsuits against police agencies and local governments, according to an analysis by the American Bar Association.

Beneath the legal issues, however, is a question that burst onto the national consciousness with the O.J. Simpson case: Do police take domestic violence cases -- and restraining orders in particular -- seriously enough?

In California, where the Simpson case spawned a litany of tough new domestic violence laws, the answer is a qualified yes, say law enforcement officials and advocates for women.

"We've come a long way since the 1980s, when police would take the guy around the block for a walk, tell him to sober up, let him go and ignore the restraining order. Thankfully, we're no longer at that point as a culture," said Patti Giggins, executive director of the Los Angeles Commission on Assaults Against Women.

'A long way to go'

"But domestic violence is a deep issue. It's about power and balance, psychology, and the way some police departments here and there may still view these types of cases. We've still got a long way to go."

Law enforcement officials point to new protocols they follow, the additional training officers now receive, and state law that requires that violators of restraining orders be arrested when there is probable cause. All police agencies now have an on-site database of restraining orders filed within their jurisdictions.

In Ventura County, enforcement of restraining order violations is generally tough, said prosecutor Gilbert Romero.

"My experience is law enforcement here errs on the side of caution; they make an arrest and send the case to me for review," said Romero, who oversees a domestic violence unit at the Ventura County District Attorney's Office with a special state grant.

"But domestic violence cases can be complicated. Police have and use discretion. There's no one right way to do this."

On a June night in 1999, Jessica Gonzales' estranged husband drove away with their three daughters, violating a restraining order that allowed him only supervised dinner visits with the girls. The couple had separated after Simon Gonzales' behavior became increasingly threatening and erratic.

Four officers on duty

When Jessica Gonzales realized the girls were missing, she called Castle Rock's police department, which had four officers on duty.

Gonzales told them about her husband's restraining order and asked them to find the girls. Officers went to his home twice but didn't find him, and then went back to the police station, according to court records.

For hours, Gonzales kept calling the police, only to be told to wait or call back later.

She called police again after finally reaching her husband on his cell phone. He told her he had the girls at an amusement park outside the city. Gonzales told police but was told they did not have the manpower to go outside their jurisdiction.

At 3:20 the next morning, Simon Gonzales pulled up to the Castle Rock Police Department in his truck, got out and began firing a semi-automatic at the building. In the resulting shoot-out, police shot and killed him.

In his truck, officers found the three girls, ages 7, 8 and 10. Each had been shot at close range.

Gonzales sued the department for $30 million for failing to enforce the restraining order, but a trial court ruled the police and government were immune from such lawsuits.

A federal judge, however, found that Gonzales' right to due process under the 14th Amendment was violated. The due process clause of the Constitution says the government shall not deprive a person of life, liberty or property without due process of law. The right is designed to protect all citizens from arbitrary government actions or, in this case, inactions.

Restraining order as 'property'

In essence, Gonzales' argument is that a restraining order is "property," and that when a court granted her the order it created a property right.

The Supreme Court is reviewing that issue. A ruling is expected this summer.

If the justices rule in favor of Gonzales, the way is paved for hundreds, if not thousands, of other lawsuits against police and local cities. That result would be crippling, city and county officials say.

"It would be a horrendous outcome for taxpayers and absurd position for the government to be in," said Ventura County Counsel Noel Klebaum.

"The government can't guarantee everyone's safety. Governments do the best they can with the resources they have."

For cash-strapped law enforcement agencies, it could mean straining resources by putting more officers on the streets and placing such calls above others or risk lawsuits from citizens.

However, those who work with domestic violence victims say the threat of lawsuits might be a way to ensure victims' rights.

"If that's what it takes for law enforcement to be accountable, to uphold their end of the bargain. ... I hope not, but we can't just kick back and say, 'Oh well,' " said Sandra Saucedo with the Coalition to End Family Violence in Oxnard.

Giggins was more blunt.

"Our country is all about money. If civil lawsuits are a wake-up call, then so be it," she said.

Awareness to the public

The issue is not simply to crack down on law enforcement, but to bring domestic violence awareness to the greater public, said Greg Baker, a victim's advocate for the Ventura County District Attorney's Office in Thousand Oaks.

Around the time domestic violence was getting greater attention in the state, James Linkenauger was convicted of strangling his wife at his Moorpark home.

The case details are fuzzy but vaguely familiar to some of the longer-serving sheriff's deputies and sergeants. What they do remember is that night was not the first time they'd been called to the home because of violence.

"It wasn't just one time we went out there," said Sgt. David Lea with the Ventura County Sheriff's Department.

The abuse started soon after JoAnn and James Linkenauger were married in April 1990. Two months into the marriage, JoAnn Linkenauger sought her first restraining order while her husband sat in jail for beating her. She dropped those charges, but filed for another restraining order three months before she was murdered.

Although the order demanding that James Linkenauger stay 150 yards from his wife was granted, JoAnn Linkenauger had been living with her husband when he strangled her.

For officers who knew the case, it was a wake-up call to the sudden and devastating consequences of a volatile relationship in which a woman had repeatedly sought help.

Countywide protocol

The case led to a countywide law enforcement protocol on domestic violence cases and restraining orders. That protocol is issued to every police agency in the county.

Ventura County police agencies responded to nearly 8,000 domestic violence calls last year. Thousand Oaks officers responded to more than 900. There are 1,965 restraining orders on file countywide. The Oxnard Police Department handles the most; 459 are in the agency's database at present.

Ventura Police spokesman Quinn Fenwick said police officers must be allowed to use discretion when enforcing restraining orders.

"Discretion for police is built into the heart of the law in California," Fenwick said. "Police make decisions all the time; they have to prioritize calls. Sometimes an officer has a lot of time to make a decision. Sometimes it's only a matter of seconds."

However, victims rights activists say police should expect the unexpected in every domestic violence case.

"Some restraining orders work with people who are afraid of the police, who generally are law-abiding citizens," said Giggins, with the Los Angeles Commission on Assaults Against Women, "but for others, those with personality disorders, drug addictions, major problems, for some of these guys, nothing is going to stop them.

"The challenge for the police is how are they going to determine that? There needs to be a better assessment in place."

A Newbury Park case

Prosecutor Romero recalls a case in Newbury Park from five years ago. A couple had been married 15 years with no history of violence. One night, she called the police after they had an argument. The police arrived but left after she said everything was OK.

The next day, the husband handcuffed her to the bed and lighted them both on fire.

California's laws regarding domestic violence and restraining order violations were established in the early '90s. They are similar to Colorado laws and clear-cut: Violating a restraining order is a misdemeanor punishable with jail time and fines. For anyone with a previous record within the last seven years, it's a felony.

However, the factors behind a domestic violence call or a restraining order violation are not always crystal clear.

When emotions are fueled by factors like infidelity, a lost job, or alcohol and drugs, the outcomes are volatile and dangerously unpredictable.

"There's no rhyme or reason for when people get in arguments," said Allen Devers, a senior deputy for the Sheriff's Department in Thousand Oaks. Unemployment and other high-stress events often contribute to a spike in domestic violence calls.

When threats or harassment go over the top, restraining orders are issued. Orders are commonly issued against a man by his girlfriend or wife. The document restricts a person from approaching another, from making threats or harassing him or her.

'Not going to stop them'

It is not a magic wall that shields a person from harm, police say.

"If he or she is going to violate a person, a piece of paper is not going to stop them," said Deputy Michael Schultz with the Ventura County Sheriff's Department in Thousand Oaks.

To enforce the orders, police will ask victims to tape-record conversations or keep journals of unexpected visits to prove when an order has been violated.

"Victims have to play a big role in being their own advocate," Schultz said.

Schultz can recall a case involving a boyfriend and girlfriend with a seven-year, tumultuous history. The boyfriend went to jail three times for violating the order by doing things like pouring grass killer on the woman's yard.

The man violated his restraining order nine times, including calling his girlfriend from jail in February. He was found guilty of felony vandalism, violating the order and stalking. He will be sentenced April 19 to about a year in jail.

Restraining orders can help empower women in difficult situations, and can send clear messages to the perpetrators, which is why victim's advocates want to continue pressing for more victim resources, and for police to continue pursuing calls of restraining order violations with the idea that anything could happen.

"We need to make sure we don't get complacent about the whole thing," Saucedo said. "If there is a restraining order, do what by law has to be done. Sometimes that's the only recourse a victim has."

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