22 March 2005

Federal Right to Protection from Domestic Abuse?

The Supreme Court heard arguments on the question
Does a protective order create a property interest enforceable under the 14th Amendment?
A lady got a protective order against her husband. He kidnapped their children. The police did not respond to several calls from the lady. The husband killed the children and then committed suicide by cop.

Subsequently, the lady sued the police and town. The 10th Circuit ruled that due process was violated when the police did not respond to her reports of a violation of the protective order. Apparently, from reports of the oral argument, the Court was skeptical of this finding.

Personally, I am of a belief that domestic matters are, and ought to be, State matters. However, as the reader who forwarded this to me pointed out, the Congress has recently stepped into the domestic area with the Schiavo legislation. Now, I've not done any serious reading or analysis on that case (not crimlaw) but it is clearly a huge step into a State area by Congress. Is more of the same to come in the future?

Probably. When a congressman goes home it can be hard to explain his votes on foreign aid or foreign trade matters. However, voting "aye" on the "Police Must Respond to Domestic Violence Act" is going to be something which everyone will understand. And how many are going to care that it's an expansion of federal powers?


Brian said...

Go read one of the amicus briefs. It is chock full of international law and treaties in support of the woman.

Anonymous said...

Congress is charged with ensuring states do not deny due process of law to their citizens... remember the 14th amendment and the incorporation doctrine you liberals are so fond of? When a state judge orders death by torture (dehydration/starvation), I would imagine Congress might view it as a reasonable exercize of their authority to ensure a review of the situation in a federal court.