TOWN OF CASTLE ROCK v. GONZALES: THE ... - Stetson University

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File: Hasanbasic.362.GALLEY(d).doc Created on: 9/25/2007 2:29:00 PM Last Printed: 9/26/2007 10:35:00 AM900 <strong>Stetson</strong> Law Review [Vol. 36slightly from the Colorado statute, which may be enforced eitherby arresting or seeking a warrant for arrest, both statutes seem tomandate some form of enforcement, upon a finding of probablecause, by using the word “shall.” Legislative intent also played alarge role in Nearing’s analysis. 135 Unlike the majority in CastleRock, the Oregon Supreme Court recognized that the legislativepurpose of such statutes was “clearly [ ] to protect the named personsfor whose protection the order is issued,” and consequently,“the legislature chose mandatory arrest as the best means to reducerecurring domestic violence.” 136State courts have also found that certain statutes create amandatory enforcement duty on police officers in the generalrealm of domestic violence. In Robinson v. United States, the Districtof Columbia Court of Appeals specifically recognized that aDistrict of Columbia statute mandated arrest upon the finding ofprobable cause in domestic violence situations. 137 The relevantstatutory language providing a basis for this finding was, “A lawenforcement officer shall arrest a person if the law enforcementofficer has probable cause. . . .” 138 In Nevada, the Attorney Generalissued an opinion addressing the constitutionality of a Statestatute requiring a domestic violence arrestee to be detained fortwelve hours after the arrest was made. 139 In the opinion, the AttorneyGeneral specifically addressed the obligatory nature of aseparate domestic violence arrest statute. 140 This statute, whichcontained the provision “a peace officer shall, unless mitigatingcircumstances exist, arrest a person when he has probable causeto believe that the person . . . committed a battery upon hisspouse, former spouse . . . ,” 141 was found to make arrest mandatorywhen the officer reasonably believed domestic violence hadoccurred and there were no factors “sufficient to mitigate the ofcasealmost identical to Castle Rock more than 20 years ago!135. Id. at 143.136. Id.137. Robinson, 769 A.2d at 757 (decided on other grounds).138. D.C. Code § 16-1031 (2002) (emphasis added).139. Nev. Atty. Gen. Op. 86-1, 1986 WL 224484 (Jan. 15, 1986). The statute central tothe analysis in the opinion (but ancillary to the analysis of this Article) was Nevada RevisedStatutes Section 178.484(3) (2002). Id.140. Id. at 9–10. The mandatory arrest statute referenced can be found in Nevada RevisedStatutes Section 171.137 (2006).141. Nev. Rev. Stat. § 171.137(1) (emphasis added).
File: Hasanbasic.362.GALLEY(d).doc Created on: 9/25/2007 2:29:00 PM Last Printed: 9/26/2007 10:35:00 AM2007] Town of Castle Rock v. Gonzales 901fense and prevent arrest.” 142 In order for an officer to ensure thathis refusal to arrest was valid, the statute required that he documenthis reasons for refusing to arrest in a written report. 143Thus, the Nevada statute, containing the discretionary “mitigatingcircumstances” provision that the Colorado statute lacked,was found to be more obligatory than the Colorado statute in CastleRock. 144Certainly, no one would argue that the Court was incorrect topoint out that police discretion is an important and necessary socialpolicy. This social policy clearly played a large role in theCourt’s decision that the Colorado statute did not create a mandatoryenforcement duty on police officers. 145 However, in light ofthe statutory language, legislative history, and past decisions inthe area of domestic violence, it is very difficult to see how theSupreme Court was able to hold the restraining order to be discretionaryin this case. The Court seemed to lose sight of the factthat the policy of police discretion is not unqualified, and can beovercome by statutory mandates or upon the finding that a specialrelationship existed between the police officer and the victim.146 Unfortunately, the Court’s strong desire to preserve policediscretion may lead to judicial tolerance of police inaction, even inthe most egregious situations.142. Nev. Atty. Gen. Op. 86-1, 1986 WL 224484 at *3.143. Id.144. The Court did not imply in the Castle Rock decision a requirement that a policeofficer compile a written report documenting his reasons not to arrest.145. See Castle Rock, 545 U.S. at 760 (explaining that competing duties of the officer orhis agency necessitate that they have discretion to enforce the restraining order, despitethe existence of probable cause). The majority further stated that there is a “deep-rootednature of law-enforcement discretion, even in the presence of seemingly mandatory legislativecommands.” Id. at 761.146. See Mackey v. Montrym, 443 U.S. 1, 4–5 (1979) (discussing a Massachusetts statutethat disallowed police officers any discretion in administering a breath test to a suspecteddrunk driver, after the suspect had initially refused the test but later changed hismind); Burdette v. Marks, 244 Va. 309, 312–313 (1992) (finding that a police officer had amandatory duty to render assistance to a man being assaulted by another man, because aspecial relationship existed when the officer arrived on the scene, observed the assault,and was requested to help by the victim); Davis v. Rennie, 264 F.3d 86, 113–114 (1st Cir.2001) (discussing a state mandate requiring police officers to act when they observe anotherofficer using excessive force).
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TOWN OF CASTLE ROCK v. GONZALES: THE ... - Stetson University

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