An Oregon teacher suing school officials who have barred her from carrying a concealed handgun on campus is portraying her case as a product of court decisions that have made it harder to sue police agencies for failing to protect domestic abuse victims.

“Defendant has no duty to defend plaintiff,” the high-school teacher, a mother of two identified only as Jane Doe, says in a motion for a preliminary injunction against the Medford School District's policy of forbidding employees from being armed on campus.

The brief includes a copy of a Sept. 13 decision in which the 3rd U.S. Circuit Court of Appeals upheld the summary dismissal of the case of a woman whose husband, himself a police officer, shot her after she had obtained restraining orders against him.

Under Pennsylvania law, police “shall arrest a defendant for violating an order.” But the 3rd Circuit said the U.S. Supreme Court had made clear in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), that “a statute’s mandatory arrest language should not be read to strip law enforcement of the discretion they have traditionally had in deciding whether to make an arrest.”

Burella v. City of Philadelphia is “the latest example of [a] domestic violence victim who has been barred from obtaining relief from the police officers who failed to protect her from her husband,” the teacher's motion says.

The teacher has a concealed weapons permit and claims she needs a handgun on campus to defend herself from her violent ex-husband. A restraining order that prohibited him from contacting her has expired and she says she “remains in fear” of him.

“Plaintiff prays for a permanent injunction prohibiting defendant from regulating, restricting, or prohibiting her possession, transportation, or use of a firearm for as long as defendant has a valid concealed handgun license,” her complaint says.

Cases like Castle Rock, Burella and other progeny of DeShaney v. Winnebago County, 489 U.S. 189 (1989), certainly demonstrate the formidable hurdles in the way of domestic abuse victims pursuing federal due process claims against police officers. But the pistol-packing teacher fails to mention her potential remedies under state law.

In Nearing v. Weaver, 670 P.2d 137 (1983), the Oregon Supreme Court said a woman could sue police for not enforcing a restraining order against her husband because her case was based on “a specific duty imposed by [Oregon's mandatory arrest law] for the benefit of individuals previously identified by a judicial order.”

“Despite the Supreme Court's Castle Rock ruling, protective orders are still an important tool for keeping victims safe,” the director of the National Crime Victim Bar Association has said.

The teacher's motion for an injunction will be heard Oct. 11 in Jackson County Circuit Court. The Oregon Firearms Educational Foundation is paying for her lawyer and gun rights advocates have been denouncing the school district for interfering with her right to self-protection.

But unless she can find a satisfactory response to Nearing, the courts are unlikely to buy her argument that the law has left her otherwise defenseless.

By Matthew Heller
9/25/07

 

Judge Cheuvront

A Nebraska federal judge refused today to "jump right into the middle" of a pending rape case and protect the alleged victim from a state judge who will not let her say "rape" in the trial of the suspect.

"[I]nvoking federal jurisdiction seeking a declaratory judgment against a state court judge who is presiding over a state criminal case is serious business requiring far more legal support than Ms. [Tory] Bowen and her counsel have provided," U.S. District Judge Richard G. Kopf said in dismissing the case before the defendant had even responded to it.

Lancaster County District Judge Jeffre Cheuvront, who is presiding over the case of the man who allegedly raped Bowen, has issued a pretrial order barring her and all other witnesses from using certain words and phrases including “rape,” “victim,” “assailant,” and “sexual assault kit.”

Bowen alleged in her unusual declaratory relief action that the order violated her rights of freedom of speech, assembly and due process. And Kopf suggested Cheuvront had gone too far.

"For the life of me, I do not understand why a judge would tell an alleged rape victim that she cannot say she was 'raped' when she testifies in a trial about rape," he said in his ruling. "... In my opinion, no properly instructed jury is going to be improperly swayed because a woman uses the word 'rape' rather than some tortured equivalent for the word."

But he went on to note that he has never presided over a rape trial and

If the plaintiff’s lawyers are really serious about me “guiding” Judge Cheuvront, they might want to think again. Trust me, federal judges are no smarter (or dumber) than their state counterparts.

 

UPDATE Bowen filed a notice of appeal Oct. 23 with the 8th U.S. Circuit Court of Appeals.

 

Other Bowen Case Sources On Point (9/16/07)

By Matthew Heller
9/25/07