V. Negative Rights and Limited Remedies

A. Negative Rights

      Castle Rock is but the latest in a series of cases in which the Supreme Court has enumerated the limits of procedural due process rights or affirmed negative rights. The Fourteenth Amendment only restricts the freedom of states to make certain types of laws or take certain actions. The Supreme Court will review either procedural or substantive due process claims. Procedural review requires the court to review if the government entity has taken an individual's life, liberty, or property without fair procedure or due process. A substantive review requires a judicial determination of whether the substance of the legislation is constitutional. The Due Process Clause is one of the most litigated clauses in the Constitution. It is incumbent upon the courts to balance individual rights against laws created by state government. Congress drafted the Fourteenth Amendment without listing specific rights to grant leeway to future congresses and future courts to deal with circumstances not anticipated in 1866. Constitutional rights are either negative or positive. Negative constitutional rights limit government intervention and positive rights define what the government must do or provide for its citizens. The Framers used negative rights to limit the power of national government. Prior to the ratification of the Fourteenth Amendment, the Framers phrased the Bill of Rights in negative terms. The Framers sought to protect citizens from a self-interested state or federal government. Professor Michael Gerhardt noted that the passage of the Fourteenth Amendment radically altered the federalism concept underlying the Bill of Rights. A tension and legal conundrum began with the expansion of federalism:

       For every negative right the Fourteenth Amendment protects, the power of the federal courts is increased with a corresponding decrease in the power of state government. For every positive right that [the Fourteenth] [A]mendment imposes, the federal courts' power increases with a corresponding decrease in both state autonomy and resources.
      The Fourteenth Amendment is a complex doctrine that seeks to balance protection of individual rights against guarantees of the appropriate procedures if rights are infringed, or as constitutional scholar Erwin Chemerinsky states:

       The simplest, and perhaps most elegant, way of understanding the Fourteenth Amendment is to view the Privileges or Immunities Clause as protecting rights from interference, the Equal Protection Clause as assuring equal treatment, and the Due Process Clause as prescribing the procedures that government must follow when it takes away life, liberty or property. At a minimum, the Due Process Clause seems to define how government must act when it deprives people of their rights.
      The negative rights interpretation means that citizens have no constitutional right to government services, and thus, because government has no duty to provide services, it need not do so competently. In declining to hold the Winnebago County Department of Social Services negligent in its failure to protect a child from a severe abuse, Justice Rehnquist's opinion expounded on the negative rights:

       The [Due Process] Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text . . . . The purpose of [the Clause] was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political process[.]
       Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid . . . . If the Due Process Clause does not require the State to provide its citizen with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.
      Justice Rehnquist's rationale for rejecting positive rights was not new. The Supreme Court has long rejected attempts at creating positive rights claims for welfare benefits, education, housing, and medical services. The accumulated denial of positive rights by the Supreme Court became the underpinning for decisions that many in the legal community view as morally reprehensible.

      1. Harris v. McRae

      Title XIX of the Social Security Act of 1965 established the Medicaid program to provide federal reimbursement for states that provided medical assistance to the needy. However, in 1976, Congress passed the Hyde Amendment, which severely curtailed reimbursement of federal funds for the costs of abortions under the Medicaid programs. A group of indigent pregnant women from New York, along with other parties, sued in federal court. They sought to enjoin enforcement of the Hyde Amendment citing violations of the Due Process Clause of the Fifth Amendment and the Religion Clause of the First Amendment. The plaintiffs also sought to have states continue to provide funding for medically necessary abortions. The District Court granted injunctive relief. In Harris v. McRae, the Supreme Court denied that Title XIX of the Social Security Act entitled states to pay for medically necessary abortions of impoverished women where the Hyde Amendment would have left the abortions unreimbursed. The Court found that Congress did not intend to shift the entire costs of medically necessary abortions to participating states. The Hyde Amendment restriction did not, in the Court's view, impinge upon any liberty protected under the Due Process Clause of the Fifth Amendment. It did not restrict women from obtaining medically necessary abortions; rather, it only encouraged alternate activities in the public interest. The Court further elucidated that a woman's choice to terminate her pregnancy did not create a constitutional entitlement to financial resources that would give her a full range of protected choices.

      The restriction on the federal funding placed a greater burden on indigent women's abilities to obtain abortions. Lawrence Tribe determined that even under a negative and individualistic constitutional scheme there are exceptional affirmative rights. The Harris Court, however, determined that the state can restrict access to abortions by cutting off funding because the Equal Protection Clause is not a source of substantive rights and poverty is not a suspect class under the Fourteenth Amendment. Therefore, the women have no property interest in obtaining funding for an abortion. Lawrence Tribe espoused that the Constitution--and the scheme of negative and individual rights--was “written largely with a view to the rights of self-sufficient adult white propertied males.” Tribe notes that only with the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments does the Constitution make a plausible effort to give rights through affirmative government action “to those whom biology or history condemns . . . to conditions of dependence and relative helplessness.” Harris became the foundation for future decisions that would leave vulnerable populations without the protection and duty of affirmative rights that government should or would enforce.

      2. DeShaney v. Winnebago County Department of Social Services

      Joshua DeShaney was brutally abused by his father, which left him severely brain damaged. Doctors predicted that Joshua would spend the rest of his life in an institution as a result of the abuse. The defendants, including the State of Wisconsin Department of Social Services (“DSS”) social workers and other local officials, had reason to believe that the father was abusing the petitioner because Joshua had been admitted to the hospital for bruises on several occasions. The local emergency room notified DSS of the boy's treatment for injuries and Joshua's DSS caseworker also had observed evidence of injuries on his head during home visits. The DSS caseworker noted that she suspected child abuse and recorded these suspicions in her files; however, she took no action, and none of the officials acted to remove the petitioner from his father's custody. Joshua DeShaney asserted that he had a substantive due process fundamental right under the liberty component of the Due Process Clause to be protected by the Winnebago County Social Services once they became aware of the abuse by the father. As noted earlier, the Supreme Court held differently. The state's failure to protect an individual from private violence did not violate the Due Process Clause, and the state's knowledge of the danger that existed for Joshua DeShaney and its attempts to protect him did not create a special relationship that would give rise to an affirmative constitutional duty to protect.

      Michael Gerhardt noted three important findings in Justice Rehnquist's opinion: (1) the Due Process Clause was clearly stated to be a negative rights doctrine; (2) a substantive due process violation would not be recognized unless the victim was in the state's physical custody, thus limiting the potential flood of cases into federal courts; and (3) the Court preserved state autonomy by limiting federal court oversight. Two troubling aspects exist about the DeShaney decision. First, Professor Gerhardt notes that even if Justice Rehnquist chose to make the claim that the Due Process Clause grants negative rights, states still have an affirmative duty not to deprive a person of the “‘life, liberty and property.”’ Second, Justice Rehnquist distorts the history of the Due Process Clause of the Fourteenth Amendment and compares it with the Framers' goal of limiting the power of the federal government, an interest grounded in the Due Process Clause of the Fifth Amendment. The purpose of the Due Process Clause of the Fourteenth Amendment was to expand--not limit--federal power by investing the federal government with the oversight to guarantee that states did not deprive their citizens of their rights to “life, liberty or property” without fair procedures. Legal scholars have argued that the Fourteenth Amendment should be used not only to assert affirmative rights but also to assert the rights of the poor. Justice Rehnquist sought to ignore or rewrite the intent of the Fourteenth Amendment and Joshua DeShaney was granted no recourse from the failure of the state to protect his life.

      3. Town of Castle Rock v. Gonzales

      Jessica Gonzales obtained a restraining order against her husband, Simon Gonzales, during divorce proceedings. She had three daughters with her husband and the divorce court ordered Simon Gonzales not to disturb the peace of the petitioner or her children. Three weeks after the issuance of the order, Simon Gonzales took the children without the permission of Jessica Gonzales. After two hours, Jessica Gonzales informed the police of her suspicion that Simon Gonzales had taken her daughters. Ms. Gonzales sought to have the restraining order enforced; however, the Castle Rock police told Ms. Gonzales they would not look for her husband or children and told her to wait for their return. After seven hours, Ms. Gonzales again sought to have her restraining order enforced and have the police locate her children, only to be told again by the Castle Rock police to be patient. At three o'clock in the morning, Simon Gonzales appeared at the Castle Rock police station and opened fire with a semi-automatic handgun. Castle Rock police shot and killed him. The police later located the bodies of the three daughters inside Simon Gonzales's truck.

      Jessica Gonzales filed a Section 1983 suit against the Castle Rock Police department. The Tenth Circuit ruled for Ms. Gonzales, finding that Colorado's statute established clear intent to abrogate the traditional presumption of police discretion and thereby required the police to enforce restraining orders. The Town of Castle Rock appealed to the Supreme Court, which overruled the Tenth Circuit. The Court held that the procedural component of the Due Process Clause does not protect everything that is described as a “benefit”; rather, there must be a legitimate claim to an entitlement to create a property interest. The Court further held that a benefit is not protected if officials have the discretion to grant or deny the benefit. Therefore, the Colorado law did not create a personal entitlement to enforcement of restraining orders, even if the enforcement was mandatory by law.

      The Castle Rock decision was one of the last decisions for the term of Chief Justice Rehnquist. Douglas Kmiec notes, “[i]n drawing the line as crisply as he does between negative and positive liberty, Rehnquist arguably understates and perhaps even disserves the most basic moral right that he had framed in relation to the very purpose of government.” The negative rights doctrine grew more perverse as the Court allowed government's obligation to protect its citizens to be so narrow in interpretation that a mandatory-enforced restraining order was not seen as a protected interest. Roger Pilon theorized that Mrs. Gonzales had a right of protection for her and her children under a social contract and delegated its enforcement to the government. The Town of Castle Rock broke that contract and the Supreme Court upheld its decision.

B. Underenforcement and State Power

      Many critical race theorists and criminologists have criticized the criminal justice system for overenforcement. The disproportionate presence of law enforcement in communities of color and its disparate effect on convictions and sentencing leaves communities wary of police presence. A corresponding problem is underenforcement. Professor Lawrence Sager developed the theory of underenforcement of constitutional rights. His thesis is that a gap exists as to whether federal courts will fully enforce constitutional rights; federal courts use theories or concepts of rights to limit the actual application or conception of rights. Therefore, a federal court may agree with a constitutional right in concept yet limit enforcement of that right. Underenforcement also influences government response. Underenforcement is a weak state response to law breaking and victimization. It can be linked to official discrimination and deprivation. The state routinely failing to enforce the law and protect citizens in impoverished and high-crime areas leaves an already vulnerable population further victimized. Police failure to respond leads to increased violence, legal failure, and undemocratic treatment of the poor-- hallmarks of discrimination. Deprivation can be measured by race, class, gender, and political powerlessness. Communities of color suffer higher crime and victimization rates than affluent white communities, and African American communities are disproportionately victimized.

      Serious crimes go unsolved because of underenforcement in poor communities and fewer services are offered to victims. In Los Angeles, homicides are concentrated in the racially segregated neighborhoods of Compton and South L.A. While African Americans are 12% of the U.S. population, they are 47% of U.S. homicide victims. These homicide statistics include African American women who are victims of intimate-partner violence. African American homicide rates are six times higher than for whites. While the national clearance rate for homicides is 64%, more than half of homicides from Los Angeles remain unsolved. Where underenforcement exists, criminals grow bold and residents become uncooperative with law enforcement. Underenforcement is danger to communities and manifests itself in the court system as well.

      Underenforcement can be determined by five triggering factors: (1) official discriminatory intent; (2) group disadvantage; (3) interference with basic life functions; (4) undermining civilian relations with law enforcement; and (5) lack of countervailing values. Underenforcement of protection orders after Castle Rock is now sanctioned by the courts. State and federal courts have denied relief where police refused to arrest a violent boyfriend after a 911 call and he later killed his girlfriend. They also denied relief where a domestic violence victim, shot by her husband, sought relief because the police refused to arrest after initial order of protection violations. Courts have followed the DeShaney/Castle Rock precedent to the detriment of domestic violence victims.

      The five triggering factors for underenforcement are met. First, no court will ever admit to official discriminatory intent; however, when vulnerable populations are denied due process constitutional protections, a form of discriminatory intent manifests itself. When the state knowingly fails to protect abused children or when law enforcement refuses to enforce a mandatory restraining order, a second-class citizenry exists that is not equally protected by the state, and the court gives full endorsement. Second, domestic violence victims now have a group disadvantage. Professor Alexandra Natapoff notes that underenforcement is a problem when it reinforces group disadvantage. Law enforcement can now choose as a policy to limit enforcement of orders of protection while allocating resources to more “worthy” crime victims. Public resources are redistributed away from vulnerable, politically weak populations, such as domestic violence victims. Third, underenforcement of orders of protection does interfere with the basic life functions of domestic violence victims. Domestic violence victims must operate with hyper-vigilance, which interferes with employment and education, and makes them economically vulnerable. A domestic violence victim can neither work nor educate herself without fear of looming violence. Basic life functions become maladjusted. Natapoff finds that underenforcement hinders engagement in fundamental functions, such as employment or forming institutional relations, which in turn stunts full societal participation. Fourth, the lack of enforcement of orders of protection undermines civilian relations with law enforcement. If law enforcement fails in its basic function of serving and protecting vulnerable populations, such as domestic violence victims, the enforcement of law-abiding norms is meaningless. Social disorganization exists when laws are not enforced and crimes are overlooked. Impoverished communities have high levels of social disorganization and high crime rates, and they fail to cooperate with law enforcement. When law enforcement fails to properly enforce orders of protection, a social norm is thus created that gives permission for batterers to continue the abuse of their victims undaunted by any potential sanctions. Finally, a countervailing value does not exist for lack of enforcement of orders of protection. In the distribution of law enforcement resources, reviewing the necessity to protect vulnerable citizens from violence versus allocating resources elsewhere does not justify an equal or distinct value that would leave domestic violence victims potential homicide victims. As Natapoff summarizes, although “normal political competition will often lead to unequal distributions, when those distributions result in unjustified group handicaps or pervasive disadvantages, the political process alone cannot validate such results.” The lives of domestic violence victims are at risk because of systemic underenforcement.

      How effective can an order of protection be when the Supreme Court limits the remedies vulnerable populations have if law enforcement or state employees fail in their duties? Ensuing cases prove that seeking remedies becomes a fruitless effort. Jessica Gonzales--now Jessica Lenahan--sought an international venue to seek redress. In 2005, the American Civil Liberties Union and Columbia Law School filed a petition on behalf of Lenahan with the Inter-American Commission of Human Rights (“IACHR”) asserting human rights violations based the Castle Rock Police Department inaction on the order of protection and the subsequent Supreme Court decision. The IACHR is an autonomous organ of the Organization of American States (“OAS”), the purpose of which is to promote the observance and defense of human rights. The OAS considers claims of human rights violations and issues written decisions on state responsibility. The OAS is not a court of last resort and has no enforcement power; nevertheless, its decisions have significant moral and political impact. The United States has not ratified any Inter-American human rights treaties; therefore, human rights complaints are brought before the IACHR under the American Declaration and the OAS charter. The IACHR issued a report in 2011 finding that the United States failed to act with due diligence to protect the lives of Jessica Lenahan and her daughters, Leslie, Katheryn, and Rebecca. The impact of the decision should bolster advocates to use international bodies to attempt to influence U.S. policy. As counsel for Jessica Lenahan, Lenora Lapidus gave the following recommendations:

       [A]dvocates must first publicize those proceedings, observations, and recommendations to make the public aware of the mechanisms and their operation as well as the substantive abuses that are at issue in the proceedings before these bodies. Furthermore, advocates must cite as persuasive (though not controlling) authority the concluding observations in other legal proceedings? both in domestic courts and before international bodies?and must use the recommendations as support for policy changes at the state and federal legislative and executive levels.