GWEN IFILL: Today the high court heard arguments in an unusually dramatic case of a mother whose ex-husband violated a restraining order to abduct, and then murder, their three little girls. The question: Did the police do their job?
Also, back on the bench today, ailing Chief Justice William Rehnquist. At the Court watching all this for us today, as always, was NewsHour regular Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune. So, Jan, tell us the story of Jessica Gonzalez.
JAN CRAWFORD GREENBURG: Well, in 1999 Jessica Gonzalez got a restraining order against her husband that limited his contact with her and their three daughters, aged ten, nine and seven. It set out only certain times that he could see the family and it directed police to arrest him if he violated the terms of that order.
About a month after that, Simon Gonzalez abducted the three girls when they were playing in their front yard. It was about 5:00 to 5:30 in the afternoon. At about 7:30 that night, Mrs. Gonzalez made the first of many phone calls to the Castle Rock Police Department asking the police to enforce the order to arrest Mr. Gonzalez and to return her daughters back to her.
And at every moment, every time out of five calls the police either told her to wait, call back later or there was nothing she could do. Finally, at about 1:00 in the morning, she drove down to the Castle Rock Police Department, filled out, you know, asked an officer to fill out an arrest report.
The officer took the report but still did nothing to enforce the order and instead according to the Appeals Court decision went to dinner. That night a couple hours later, 3:20 in the morning, Simon Gonzalez drove up to the Castle Rock Police Department and opened fire with a semiautomatic handgun. The police fired back, killing him.
And then they discovered the three daughters in the cab of his truck. They had been murdered by Mr. Gonzalez earlier in the evening.
GWEN IFILL: Well, this is clearly an awful situation. How did the police defend their actions or inaction?
JAN CRAWFORD GREENBURG: Well, you know, on the bench today in fact it was Justice Ginsburg who made that point that this was a restraining order that gave Mr. Gonzalez some contact with his daughters. He could see them at a weekly midweek dinner on occasion, on weekends on occasion.
So perhaps the police saw nothing urgent here. They saw this order. It did give him some contact so there was not this sense of urgency but Jessica Gonzalez -- and the Justices today from their questions obviously had tremendous sympathy for her case. It's just horrendous -- the facts. They're devastating. She argues that there's no excuse, that police have no response.
GWEN IFILL: Her case, the complaint that she brought was that there was a violation of her due process rights, that there was a constitutional -- by their failure to enforce this restraining order that property was taken from her and that property were those rights.
JAN CRAWFORD GREENBURG: That's exactly right. This is a very novel constitutional claim. The appeals court agreed with her, making it the first appeals court in the country to find this kind of constitutional right. Now, as you know, the due process clause says that the government may not deprive a person of life, liberty or property without due process of law.
It's designed to prevent arbitrary government action or to ensure fair procedures. So she contends that the restraining order created a property right. She had a right to enforcement of that order, and that the police officers' failure to enforce the order was arbitrary. It was so arbitrary that it was procedurally unfair and violated the Constitution's 14th Amendment.
GWEN IFILL: So today in the court what was the counter-argument to her claim?
JAN CRAWFORD GREENBURG: A lawyer for the town of Castle Rock said, you know, yes, we agree, this case is horrendous. A father murdered his three children, but the police response did not cause or give rise to a constitutional violation. He said that there's not even a property right created here, much less a violation -- that a restraining order does not amount to any kind of property interest under the Constitution.
GWEN IFILL: Now, is the Bush administration... are they involved in this? Are they defending which side?
JAN CRAWFORD GREENBURG: They sided with the town of Castle Rock and argued -- a lawyer for the Bush administration today, John Elwood, argued that there was no property interest in enforcement of this restraining order so therefore the 14th Amendment due process clause doesn't come into play.
And all the lawyers today and even the Justices acknowledged the horrendous facts and the terrible nature of this case, but the Bush administration and the lawyer for the town of Castle Rock and even the Justices suggested that a ruling for Mrs. Gonzalez could have tremendous practical consequences and severe economic implications.
Because if the town of Castle Rock loses in this case-- and there is, let's say a property interest in having police enforce this order-- then what would happen when the ambulance driver showed up late in response to a call or the firefighters failed to put out a blaze? Those were questions that Justice Breyer and Justice Souter, the more liberal Justices seemed very troubled by.
GWEN IFILL: Sitting on the bench today with these Justices you just mentioned is someone we haven't seen in a while and that's Chief Justice Rehnquist. Did he take parts in the arguments actively?
JAN CRAWFORD GREENBURG: He was extremely active from the bench. He asked more than half a dozen questions, lengthy questions. He was very much in command. He kicked things off this morning as he always did: Swore in the lawyers; introduced the case. He was just like the old Chief Justice.
In fact, the only way that you could tell that he's been ill, suffering from thyroid cancer, is his voice. His strong baritone voice the one that the people who know the chief so well will even speak in, it's almost like I want to say Jimmy Stewart voice but many octaves lower, that's different. I mean he had had a tracheotomy. His voice now is much higher. But if you put your hands over your ears it was the same old chief.
GWEN IFILL: The same energy.
JAN CRAWFORD GREENBURG: The same energy; he was very active.
GWEN IFILL: Physically what did he look like?
JAN CRAWFORD GREENBURG: He looked the same.
GWEN IFILL: Because he looked so frail on Inauguration Day.
JAN CRAWFORD GREENBURG: No, he looked much better, and people who have been close to the chief say he's gotten stronger. He's, you know, going through his treatment very well. And certainly today he was just as active in questioning and even in the second argument in a different case he asked the first two questions right away, lengthy questions, showing that while his voice may sound a little different, you know, his questions are still just as precise.
GWEN IFILL: Is this expected as a result around the court; are they saying, well, he's back for good or was this just an experiment to see if he could stand it?
JAN CRAWFORD GREENBURG: He's evaluated that always on a kind of a weekly basis, whether or not he would be back on the bench. As you know, he's been participating in the decisions of these cases with the exception of the ones they heard in November.
So, you know, assuming that he still feels, you know, up to the task, I think that, you know, we can expect him back on the bench, which is something that a lot of people had said when he announced his illness they were afraid that they would not see, that serious thyroid cancer, serious illness. They were fearful he would not be able to return.
GWEN IFILL: Jan Crawford Greenburg, as always, thank you.
JAN CRAWFORD GREENBURG: You're welcome.