Castle Rock v. Gonzales, 545 US 748
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545 U.S. 748 ( 2005)
TOWN OF
CASTLE ROCK, COLORADO
v.
GONZALES, INDIVIDUALLY AND AS NEXT BEST FRIEND OF H ER DECEASED MINOR CHILDREN,
GONZALES ET AL.
No. 04-278.
Argued March 21, 2005.
Decided June 27,
2005 .
Supreme Court of United States.
*750
John C. Eastman argued the cause for petitioner. With him on the bri efs were Thomas S. Rice, Eric M. Ziporin, and Erik S.
Jaffe. 750
John P. Elwood argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting
Solicitor General Clement, Assistant Attorney General Ke isler, Michael Jay Singer, and Howard S. Scher.
Brian J. Reichel argued the cause and filed a brief for respondent. [*]
JUSTICE SCALIA delivered the opinion of the Court.
We decide in this case whether an individual who has obt
ained a state-law restraining order has a constitutionally
*751 protected
property interest in having the police enforce the restra ining order when they have probable cause to believe it has been
violated. 751
I
The horrible facts of this case are contained in the comp laint that respondent Jessica Gonzales filed in Federal District Court.
(Because the case comes to
us on appeal from a dismissal of the complaint, we assume i ts allegations are true. See
Swierkiewicz
v. Sorema N. A., 534 U. S. 506, 508, n. 1 (2002) .) Respondent alleges that petitioner, the town of Castle Rock ,
Colorado, violated the Due Process Clause of the Fourte enth Amendment to the United States Constitution when its police
officers, acting pursuant to official policy or custom, fai led to respond properly to her repeated reports that her estranged husband
was violating the terms of a restraining order. [1]
The restraining order had been issued by a state trial co
urt several weeks earlier in conjunction with respondent' s divorce
proceedings. The original form order, issued on May 21 , 1999, and served on respondent's husband on June 4, 199 9,
commanded him not to "molest or disturb the peace of [r espondent] or of any child," and to remain at least 100 yards from the
family home at all times. 366 F. 3d 1093, 1143 (CA10 2004) (en banc) (appendix to dissenting opinion of O'B rien, J.). The bottom
of the preprinted form noted that the reverse side cont ained "IMPORTANT NOTICES FOR RESTRAINED PARTIES AND LAW
ENFORCEMENT OFFICIALS." Ibid. (emphasis deleted). The preprinted
*752 text on the back of the form included the following
"WARNING": 752
"A KNOWING VIOLATION OF A RESTRAINING ORDER IS A CR IME . . . . A VIOLATION WILL ALSO CONSTITUTE
CONTEMPT OF COURT. YOU MAY BE ARRESTED WITHOUT NOTI CE IF A LAW ENFORCEMENT OFFICER HAS
PROBABLE CAUSE TO BELIEVE THAT YOU HAVE KNOWINGLY V IOLATED THIS ORDER." Id., at 1144
(emphasis in original).
The preprinted text on the back of the form also include d a "NOTICE TO LAW ENFORCEMENT OFFICIALS," which rea d in part:
"YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE TH IS RESTRAINING ORDER. YOU SHALL
ARREST, OR, IF AN ARREST WOULD BE IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK A WARRANT
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PROBABLE CAUSE THAT THE RESTRAINED PERSON HAS VIOLA TED OR ATTEMPTED TO VIOLATE ANY
PROVISION OF THIS ORDER AND THE RESTRAINED PERSON H AS BEEN PROPERLY SERVED WITH A
COPY OF THIS ORDER OR HAS RECEIVED ACTUAL NOTICE OF THE EXISTENCE OF THIS ORDER." Ibid.
(same).
On June 4, 1999, the state trial court modified the te rms of the restraining order and made it permanent. T he modified order gave
respondent's husband the right to spend time with his th ree daughters (ages 10, 9, and 7) on alternate weekend s, for two weeks
during the summer, and, "`upon reasonable notice,'" f or a midweek dinner visit "`arranged by the parties'"; the modified order also
allowed him to visit
*753 the home to collect the children for such "parenting time." Id., at 1097 (majority opinion). 753
According to the complaint, at about 5 or 5:30 p.m. on Tuesday, June 22, 1999, respondent's husband took the t hree daughters
while they were playing outside the family home. No adva nce arrangements had been made for him to see the daug hters that
evening. When respondent noticed the children were missin g, she suspected her husband had taken them. At about 7:30 p.m.,
she called the
Castle Rock Police Department, which dispatched two officers. The c omplaint continues: "When [the officers]
arrived . . ., she showed them a copy of the TRO and re quested that it be enforced and the three children be returned to her
immediately. [The officers] stated that there was nothi ng they could do about the TRO and suggested that [respo ndent] call the
Police Department again if the three children did not return home by 10:00 p.m." App. to Pet. for Cert. 126a.
[2]
At approximately 8:30 p.m., respondent talked to her hu sband on his cellular telephone. He told her "he had the three children [at
an] amusement park in Denver." Ibid. She called the police again and asked them to "have som eone check for" her husband or
his vehicle at the amusement park and "put out an [all p oints bulletin]" for her husband, but the officer with whom she spoke
"refused to do so," again telling her to "wait until 10:00 p.m. and see if" her husband returned the girls. Id., at 126a-127a.
At approximately 10:10 p.m., respondent called the poli ce and said her children were still missing, but she was n ow told to wait
until midnight. She called at midnight and told the dispatcher her children were still missing. She went to her husband's
apartment and, finding nobody there, called the police at 12:10 a.m.; she was told to wait for an officer to arrive. When none
came, she went to the police station at
*754 12:50 a.m. and submitted an incident report. The off icer who took the report "made
no reasonable effort to enforce the TRO or locate the three children. Instead, he went to dinner." Id., at 127a. 754
At approximately 3:20 a.m., respondent's husband arrived at the police station and opened fire with a semiautomatic handgun he
had purchased earlier that evening. Police shot back, killi ng him. Inside the cab of his pickup truck, they found the bodies of all
three daughters, whom he had already murdered. Ibid.
On the basis of the foregoing factual allegations, resp ondent brought an action under Rev. Stat. § 1979, 42 U. S. C. § 1983,
claiming that the town violated the Due Process Clause be cause its police department had "an official policy or custom of failing
to respond properly to complaints of restraining order violations" and "tolerate[d] the nonenforcement of restraining orders by its
police officers." App. to Pet. for Cert. 129a.
[3] The complaint also alleged that the town's actions "we re taken either willfully,
recklessly or with such gross negligence as to indicate wanton disregard and deliberate indifference to" respondent's civil rights.
Ibid.
Before answering the complaint, the defendants filed a motion to dismiss under Federal Rule of Civil Procedu re 12(b)(6). The
District Court granted the motion, concluding that, whe ther construed as making a substantive due process or procedur al due
process claim, respondent's complaint failed to state a cla im upon which relief could be granted.
A panel of the Court of Appeals affirmed the rejectio n of a substantive due process claim, but found that respo ndent had alleged
a cognizable procedural due process claim. 307 F. 3d 1258 (CA10 2002). On rehearing en banc, a divided
*755 court reached
the same disposition, concluding that respondent had a "p rotected property interest in the enforcement of the terms of her
restraining order" and that the town had deprived her of due process because "the police never `heard' nor serio usly entertained
her request to enforce and protect her interests in the restraining order." 366 F. 3d, at 1101, 1117. We granted certiorari. 543
U. S.
955 (2004).
755
II
The Fourteenth Amendment to the United States Constit ution provides that a State shall not "deprive any person of life, liberty, or
property, without due process of law." Amdt. 14, § 1. In 42 U. S. C. § 1983, Congress has created a federal cause of action for "the
deprivation of any rights, privileges, or immunities secur ed by the Constitution and laws." Respondent claims the benefit of this 3/6/2017Castle Rock v. Gonzales, 545 US 748 - Supreme Court 2005 - Google Scholar
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provision on the ground that she had a property interest in police enforcement of the restraining order against her husband; and
that the town deprived her of this property without du e process by having a policy that tolerated nonenforcement of restraining
orders.
As the Court of Appeals recognized, we left a similar q uestion unanswered in DeShaney
v. Winnebago County Dept. of Social
Servs., 489 U. S. 189 (1989), another case with "undeniably tragic" facts: Local child-p rotection officials had failed to protect a
young boy from beatings by his father that left him severe ly brain damaged. Id., at 191-193. We held that the so-called
"substantive" component of the Due Process Clause does not "requir[e] the State to protect the life, liberty, and property of its
citizens against invasion by private actors." Id., at 195. We noted, however, that the petitioner had not properly preserved the
argument that—and we thus "decline[d] to consider" wheth er—state "child protection statutes gave [him] an `entitlement' to
receive protective services in accordance with the terms of th e statute, an entitlement which would enjoy due process protection."
Id., at 195, n. 2.
*756 The procedural component of the Due Process Clause does not protect everything that might be described as a "benefit":
"To have a property interest in a benefit, a person clea rly must have more than an abstract need or desire" and " more than a
unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents of State Colleges
v.
Roth, 408 U. S. 564, 577 (1972) . Such entitlements are, "`of course, . . . not created by the Constitution. Rather, they are created
and their dimensions are defined by existing rules or un derstandings that stem from an independent source such as state law.'"
Paul
v. Davis, 424 U. S. 693, 709 (1976) (quoting Roth, supra, at 577 ); see also Phillips v. Washington Legal Foundation, 524 U.
S. 156, 164 (1998) .
756
A
Our cases recognize that a benefit is not a protected en titlement if government officials may grant or deny it in their discretion.
See, e. g., Kentucky Dept. of Corrections
v. Thompson, 490 U. S. 454, 462-463 (1989) . The Court of Appeals in this case
determined that Colorado law created an entitlement to enforcement of the restraining order because the "cou rt-issued
restraining order . . . specifically dictated that its ter ms must be enforced" and a "state statute command[ed]" e nforcement of the
order when certain objective conditions were met (probab le cause to believe that the order had been violated and that the object
of the order had received notice of its existence). 366 F. 3d, at 1101, n. 5; see also id., at 1100, n. 4; id., at 1104-1105, and n. 9.
Respondent contends that we are obliged "to give defer ence to the Tenth Circuit's analysis of Colorado law on" whether she had
an entitlement to enforcement of the restraining orde r. Tr. of Oral Arg. 52.
We will not, of course, defer to the Tenth Circuit on the ultimate issue: whether what Colorado law has given respondent
constitutes a property interest for purposes of the Fourte enth Amendment. That determination, despite its
*757 state-law
underpinnings, is ultimately one of federal constitution al law. "Although the underlying substantive interest is created by `an
independent source such as state law,' federal constitutional law determines whether that interest rises to the level of a
`legitimate claim of entitlement' protected by the Due Process Clause." Memphis Light, Gas & Water Div.
v. Craft, 436 U. S. 1, 9
(1978) (quoting Roth, supra, at 577 ; emphasis added); cf. United States ex rel. TVA v. Powelson, 319 U. S. 266, 279 (1943) .
Resolution of the federal issue begins, however, with a determination of what it is that state law provides. In the context of the
present case, the central state-law question is whether C olorado law gave respondent a right to police enforceme nt of the
restraining order. It is on this point that respondent' s call for deference to the Tenth Circuit is relevant.
757
We have said that a "presumption of deference [is] given the views of a federal court as to the law of a State within its jurisdiction."
Phillips, supra,
at 167 . That presumption can be overcome, however, see Leavitt v. Jane L., 518 U. S. 137, 145 (1996) (per
curiam) , and we think deference inappropriate here. The Tenth Circuit's opinion, which reversed the Colorado District Judge, did
not draw upon a deep well of state-specific expertise, b ut consisted primarily of quoting language from the restraining order, the
statutory text, and a state-legislative-hearing transcript. See 366 F. 3d, at 1103-1109. These texts, moreover, say nothing
distinctive to Colorado, but use mandatory language that (as we shall discuss) appears in many state and federal sta tutes. As for
case law: The only state-law cases about restraining orders that the Court of Appeals relied upon were decisions of Federal
District Courts in Ohio and Pennsylvania and state courts i n New Jersey, Oregon, and Tennessee. Id., at 1104-1105, n. 9, 1109.
[4]
Moreover, if we were simply to accept *758 the Court of Appeals' conclusion, we would necessarily ha ve to decide conclusively a
federal constitutional question ( i. e., whether such an entitlement constituted property under the Due Process Clause and, if so,
whether petitioner's customs or policies provided too li ttle process to protect it). We proceed, then, to our own analysis of whether
Colorado law gave respondent a right to enforcement of the restraining order.
[5]
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B
The critical language in the restraining order came not from any part of the order itself (which was signed by the state-court trial
judge and directed to the restrained party, respondent 's husband), but from the preprinted notice to law-enforcement personnel
that appeared on the back of the order. See supra, at 751-752. That notice effectively restated the statuto ry provision describing
"peace officers' duties" related to the crime of violati on of a restraining order. At the time of the conduct at issue in this case, that
provision read as follows:
"(a) Whenever a restraining order is issued, the protect ed person shall be provided with a copy of such
*759 order.
A peace officer shall use every reasonable means to enforce a restraining order. 759
"(b) A peace officer shall arrest, or, if an arrest would b e impractical under the circumstances, seek a warrant for
the arrest of a restrained person when the peace officer has information amounting to p robable cause that:
"(I) The restrained person has violated or attempted to violate any provision of a restraining order; and
"(II) The restrained person has been properly served with a copy of the restraining order or the restrained person
has received actual notice of the existence and substance of such order.
"(c) In making the probable cause determination describe d in paragraph (b) of this subsection (3), a peace officer
shall assume that the information received from the regi stry is accurate. A peace officer shall enforce a valid
restraining order whether or not there is a record of the restraining order in the registry." Colo. Rev. Stat. § 18-6-
803.5(3) (Lexis 1999) (emphases added).
The Court of Appeals concluded that this statutory provisio n—especially taken in conjunction with a statement from its legislative
history,
[6] and with another statute restricting *760 criminal and civil liability for officers making arrests [7]—established the
Colorado Legislature's clear intent "to alter the fact that the police were not enforcing domestic abuse restra ining orders," and
thus its intent "that the recipient of a domestic abuse r estraining order have an entitlement to its enforcemen t." 366 F. 3d, at 1108.
Any other result, it said, "would render domestic abuse r estraining orders utterly valueless." Id., at 1109. 760
This last statement is sheer hyperbole. Whether or not re spondent had a right to enforce the restraining order, it rendered certain
otherwise lawful conduct by her husband both criminal an d in contempt of court. See §§ 18-6-803.5(2)(a), (7). The creation of
grounds on which he could be arrested, criminally prosecut ed, and held in contempt was hardly "valueless"—even if the prospect
of those sanctions ultimately failed to prevent him from committing three murders and a suicide.
We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory. A well
established tradition of police discretion has long coexiste d with apparently mandatory arrest statutes.
"In each and every state there are long-standing statutes that, by their terms, seem to preclude nonenforcement by
the police. . . . However, for a number of reasons, in cluding their legislative history, insufficient resources, and
sheer physical impossibility, it has been recognized that such statutes cannot be interpreted literally. . . . [T]hey
clearly do not mean that a police officer may not lawful ly decline to . . . make an arrest. As to third parties in these
states, the full-enforcement statutes simply have no effect , and their significance is
*761 further diminished." 1 ABA
Standards for Criminal Justice 1-4.5, commentary, pp. 1 -124 to 1-125 (2d ed. 1980) (footnotes omitted). 761
The deep-rooted nature of law-enforcement discretion, even in the presence of seemingly mandatory legislative comm ands, is
illustrated by Chicago
v. Morales, 527 U. S. 41 (1999), which involved an ordinance that said a police officer " `shall order'"
persons to disperse in certain circumstances, id., at 47, n. 2. This Court rejected out of hand the pos sibility that "the mandatory
language of the ordinance . . . afford[ed] the police no discretion." Id., at 62, n. 32. It is, the Court proclaimed, simply "comm on
sense that all police officers must use some discretion in deciding when and where to enforce city ordinances." Ibid. (emphasis
added).
Against that backdrop, a true mandate of police action w ould require some stronger indication from the Colorado Legislature
than "shall use every reasonable means to enforce a restrai ning order" (or even "shall arrest . . . or . . . seek a warrant"), §§ 18-6-
803.5(3)(a), (b). That language is not perceptibly mo re mandatory than the Colorado statute which has long told municipal chiefs
of police that they "shall pursue and arrest any person fl eeing from justice in any part of the state" and that they "shall apprehend
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competent authority for examination and trial." Colo. Rev. Stat. § 31-4-112 (Lexis 2004). It is hard to imagine that a Colorado
peace officer would not have some discretion to determine that—despite probable cause to believe a restraining order has been
violated—the circumstances of the violation or the competin g duties of that officer or his agency counsel decisively against
enforcement in a particular instance.
[8] *762 The practical necessity for discretion is particularly appa rent in a case such as this
one, where the suspected violator is not actually present and his whereabouts are unknown. Cf. Donaldson
v. Seattle, 65 Wash.
App. 661, 671-672, 831 P. 2d 1098, 1104 (1992) ("There is a vast difference between a mandatory duty to arrest [a violator who is
on the scene] and a mandatory duty to conduct a follow up investigation [to locate an absent violator]. . . . A mandatory duty to
investigate. . . would be completely open-ended as to pr iority, duration and intensity").
762
The dissent correctly points out that, in the specific context of domestic violence, mandatory-arrest statutes have been found in
some States to be more mandatory than traditional mand atory-arrest statutes. Post, at 779-784 (opinion of Stevens, J.). The
Colorado statute mandating arrest for a domestic-violen ce offense is different from but related to the one at issue here, and it
includes similar though not identical phrasing. See Colo . Rev. Stat. § 18-6-803.6(1) (Lexis 1999) ("When a peace officer
determines that there is probable cause to believe tha t a crime or offense involving domestic violence . . . has been committed,
the officer shall, without undue delay, arrest the per son suspected of its commission . . ."). Even in the domestic- violence context,
however, it is unclear how the mandatory-arrest paradigm applies to cases in which the offender is not present to be arrested. As
the dissent explains, post, at 780-781, and n. 8, much of the impetus for mandat ory-arrest statutes and policies derived from the
idea that it is better for police officers to arrest the aggressor in a domestic-violence incident than to attempt to mediate the
dispute or merely to ask the offender to leave the scene. Those other options are only available, of course, when the offender is
present at the
*763 scene. See Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions,
109 Harv. L. Rev. 1849, 1860 (1996) ("[T]he clear t rend in police practice is to arrest the batterer at the scene . . ." (emphasis
added)). 763
As one of the cases cited by the dissent, post, at 783, recognized, "there will be situations when no arrest is possible, such as
when the alleged abuser is not in the home. " Donaldson,
65 Wash. App., at 674, 831 P. 2d, at 1105 (emphasis added). That case
held that Washington's mandatory-arrest statute required an arrest only in "cases where the offender is on the scen e," and that it
"d[id] not create an on-going mandatory duty to conduct an investigation" to locate the offender. Id., at 675, 831 P. 2d, at 1105.
Colorado's restraining-order statute appears to contem plate a similar distinction, providing that when arrest is "impractical"—
which was likely the case when the whereabouts of respond ent's husband were unknown—the officers' statutory duty is to "seek
a warrant" rather than "arrest." § 18-6-803.5(3)(b).
Respondent does not specify the precise means of enforcement that the Colorado restraining-order statute assertedly mandated
—whether her interest lay in having police arrest her husb and, having them seek a warrant for his arrest, or having them "use
every reasonable means, up to and including arrest, to en force the order's terms," Brief for Respondent 29-30.
[9] Such
indeterminacy is not the hallmark of a duty that is mand atory. Nor can someone be safely deemed "entitled" to so mething when
the identity of the alleged entitlement is vague. See Roth,
408 U. S. , at 577 (considering *764 whether "certain benefits" were
"secure[d]" by rule or understandings); cf. Natale
v. Ridgefield, 170 F. 3d 258, 263 (CA2 1999) ("There is no reason . . . to restrict
the `uncertainty' that will preclude existence of a fede rally protectable property interest to the uncertainty th at inheres in [the]
exercise of discretion"). The dissent, after suggesting vari ous formulations of the entitlement in question,
[10] ultimately contends
that the obligations under the statute were quite pre cise: either make an arrest or (if that is impractical) se ek an arrest warrant,
post, at 785. The problem with this is that the seeking of an arrest warrant would be an entitlement to nothing but procedure—
which we have held inadequate even to support standing, see Lujan
v. Defenders of Wildlife, 504 U. S. 555 (1992) ; much less
can it be the basis for a property interest. See post, at 771-772 (SOUTER, J., concurring). After the warran t is sought, it remains
within the discretion of a judge whether to grant it, and after it is granted, it remains within the discret ion of the police whether and
when to execute it.
[11] Respondent would have been assured nothing but the see king of a warrant. This is not the sort of
"entitlement" out of which a property interest is creat ed.
764
Even if the statute could be said to have made enforcemen t of restraining orders "mandatory" because of the domestic-violence
context of the underlying statute, that would not
*765 necessarily mean that state law gave respondent an entitlement to
enforcement of the mandate. Making the actions of government emplo yees obligatory can serve various legitimate ends other
than the conferral of a benefit on a specific class of peo ple. See, e. g., Sandin
v. Conner, 515 U. S. 472, 482 (1995) (finding no
constitutionally protected liberty interest in prison regu lations phrased in mandatory terms, in part because "[s]uch guidelines are
not set forth solely to benefit the prisoner"). The ser ving of public rather than private ends is the normal cou rse of the criminal law
because criminal acts, "besides the injury [they do] to indi viduals, . . . strike at the very being of society; which cannot possibly
subsist, where actions of this sort are suffered to escape wi th impunity." 4 W. Blackstone, Commentaries on the Laws of England
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5 (1769); see also Huntington v. Attrill, 146 U. S. 657, 668 (1892) . This principle underlies, for example, a Colorado dist rict
attorney's discretion to prosecute a domestic assault, even t hough the victim withdraws her charge. See People
v. Cunefare, 102
P. 3d 302, 311-312 (Colo. 2004) (en banc) (Bender, J., concurring in part, dissenting in part, an d dissenting in part to the
judgment).
Respondent's alleged interest stems only from a State's statutory scheme—from a restraining order that was authorized by a nd
tracked precisely the statute on which the Court of Appea ls relied. She does not assert that she has any common-law or
contractual entitlement to enforcement. If she was given a statutory entitlement, we would expect to see some ind ication of that in
the statute itself. Although Colorado's statute spoke of "protected person[s]" such as respondent, it did so in con nection with
matters other than a right to enforcement. It said tha t a "protected person shall be provided with a copy of [a restraining] order"
when it is issued, § 18-6-803.5(3)(a); that a law enf orcement agency "shall make all reasonable efforts to conta ct the protected
party upon the arrest of the restrained person," § 18-6 -803.5(3)(d); and that the agency "shall give [to the protected
*766 person]
a copy" of the report it submits to the court that issued the order, § 18-6-803.5(3)(e). Perhaps most importan tly, the statute spoke
directly to the protected person's power to "initiate con tempt proceedings against the restrained person if the o rder [was] issued
in a civil action or request the prosecuting attorney to initiate contempt proceedings if the order [was] issued in a criminal action."
§ 18-6-803.5(7). The protected person's express power to "initiate" civil contempt proceedings contrasts tellingly with the mere
ability to "request" initiation of criminal contempt pr oceedings—and even more dramatically with the complete sil ence about any
power to "request" (much less demand) that an arrest be made. 766
The creation of a personal entitlement to something as vague and novel as enforcement of restraining orders canno t "simply g[o]
without saying." Post, at 788, n. 16 (Stevens, J., dissenting). We conclude that Colorado has not created such an entitlement.
C
Even if we were to think otherwise concerning the creati on of an entitlement by Colorado, it is by no means clear that an
individual entitlement to enforcement of a restraining order could constitute a "property" interest for purposes of the Due Process
Clause. Such a right would not, of course, resemble any t raditional conception of property. Although that alone does not
disqualify it from due process protection, as Roth and its progeny show, the right to have a restraining o rder enforced does not
"have some ascertainable monetary value," as even our "Roth-type property-as-entitlement" cases have implicitly requir ed.
Merrill, The Landscape of Constitutional Property, 86 Va. L. Rev. 885, 964 (2000).
[12] Perhaps most radically, the alleged property
*767 interest here arises incidentally, not out of some new species of government benefit or ser vice, but out of a function that
government actors have always performed—to wit, arresting p eople who they have probable cause to believe have committed a
criminal offense.
[13]
767
The indirect nature of a benefit was fatal to the du e process claim of the nursing-home residents in O'Bannon v. Town Court
Nursing Center, 447 U. S. 773 (1980) . We held that, while the withdrawal of "direct bene fits" (financial payments under Medicaid
for certain medical services) triggered due process protectio ns, id., at 786-787, the same was not true for the "indirect b enefit[s]"
conferred on Medicaid patients when the Government enfo rced "minimum standards of care" for nursing-home facilities, id., at
787. "[A]n indirect and incidental result of the Gove rnment's enforcement action . . . does not amount to a deprivation of any
interest in life, liberty, or property." Ibid. In this case, as in O'Bannon, "[t]he simple distinction between government action tha t
directly affects a citizen's legal rights . . . and action that is directed against a third party and affects the cit izen only indirectly or
incidentally, provides a sufficient answer to" respondent' s reliance on cases that found government-provided
*768 services to be
entitlements. Id., at 788. The O'Bannon Court expressly noted, ibid., that the distinction between direct and indirect benef its
distinguished Memphis Light, Gas & Water Div.
v. Craft, 436 U. S. 1 (1978), one of the government-services cases on which the
dissent relies, post, at 789.
768
III
We conclude, therefore, that respondent did not, for p urposes of the Due Process Clause, have a property interest in police
enforcement of the restraining order against her husban d. It is accordingly unnecessary to address the Court of A ppeals'
determination (366 F. 3d, at 1110-1117) that the to wn's custom or policy prevented the police from giving her due process when
they deprived her of that alleged interest. See American Mfrs. Mut. Ins. Co.
v. Sullivan, 526 U. S. 40, 61 (1999) .[14] 3/6/2017Castle Rock v. Gonzales, 545 US 748 - Supreme Court 2005 - Google Scholar
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In light of today's decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for
a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its "substantive"
manifestations. This result reflects our continuing reluct ance to treat the Fourteenth Amendment as "`a font of tort law,'" Parratt
v.
Taylor, 451 U. S. 527, 544 (1981) (quoting Paul v. Davis, 424 U. S. , at 701 ), but it does not mean States are powerless to provide
victims with personally enforceable remedies. Although the framers of the Fourteenth Amendment and the Civil Rights Act of
1871, 17 Stat. 13 (the original source of § 1983), di d not create a system by which police departments are gener ally held
financially accountable for crimes that better policing m ight have
*769 prevented, the people of Colorado are free to craft such a
system under state law. Cf. DeShaney,
489 U. S. , at 203 .[15]
769
The judgment of the Court of Appeals is
Reversed.
JUSTICE SOUTER, with whom JUSTICE BREYER joins, concurr ing.
I agree with the Court that Jessica
Gonzales has shown no violation of an interest protected by the Fourteenth Amendment's Due
Process Clause, and I join the Court's opinion. The Cour t emphasizes the traditional public focus of law enforceme nt as reason to
doubt that these particular legal requirements to provi de police services, however unconditional their form, pr esuppose
enforceable individual rights to a certain level of poli ce protection. Ante, at 764-765. The
*770 Court also notes that the terms of
the Colorado statute involved here recognize and preserve the traditional discretion afforded law enforcement officers. Ante, at
760-764, and n. 8.
Gonzales's claim of a property right thus runs up against police di scretion in the face of an individual demand
to enforce, and discretion to ignore an individual instr uction not to enforce (because, say, of a domestic reconci liation); no one
would argue that the beneficiary of a Colorado order like the one here would be authorized to control a cour t's contempt power or
order the police to refrain from arresting. These consi derations argue against inferring any guarantee of a l evel of protection or
safety that could be understood as the object of a "legi timate claim of entitlement," Board of Regents of State Colleges
v. Roth,
408 U. S. 564, 577 (1972), in the nature of property arising under Colorado law . [*] Consequently, the classic predicate for federal
due process protection of interests under state law is missi ng.
770
Gonzales implicitly recognizes this, when she makes the following ar gument:
"Ms.
Gonzales alleges that . . . she was denied the process laid out i n the statute. The police did not consider her
request in a timely fashion, but instead repeatedly requ ired her to call the station over several hours. The statute
promised a process by which her restraining order would b e given vitality through careful and prompt
consideration of an enforcement request . . . . Denial of that process drained all of the value from her property
interest in the restraining order." Brief for Respond ent 10.
The argument is unconventional because the state-law be nefit for which it claims federal procedural protection is itself a variety
of procedural regulation, a set of rules to be followe d by officers exercising the State's executive power: use
*771 all reasonable
means to enforce, arrest upon demonstrable probable cau se, get a warrant, and so on, see ante, at 751-752. 771
When her argument is understood as unconventional in thi s sense, a further reason appears for rejecting its call to apply Roth, a
reason that would apply even if the statutory mandates to the police were absolute, leaving the police with no discretion when the
beneficiary of a protective order insists upon its enforce ment. The Due Process Clause extends procedural protection to guard
against unfair deprivation by state officials of substanti ve state-law property rights or entitlements; the federal process protects the
property created by state law. But
Gonzales claims a property interest in a state-mandated process in and of itself. This argument
is at odds with the rule that "[p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which
the individual has a legitimate claim of entitlement." Olim
v. Wakinekona, 461 U. S. 238, 250 (1983) ; see also Doe v. District of
Columbia, 93 F. 3d 861, 868 (CADC 1996) (per curiam) ; Doe v. Milwaukee County, 903 F. 2d 499, 502-503 (CA7 1990) . In putting
to rest the notion that the scope of an otherwise discern ible property interest could be limited by related state-law procedures, this
Court observed that "[t]he categories of substance and p rocedure are distinct. . . . `Property' cannot be defined by the procedures
provided for its deprivation." Cleveland Bd. of Ed.
v. Loudermill, 470 U. S. 532, 541 (1985) . Just as a State cannot diminish a
property right, once conferred, by attaching less than gen erous procedure to its deprivation, ibid., neither does a State create a
property right merely by ordaining beneficial procedur e unconnected to some articulable substantive guarantee. T his is not to
say that state rules of executive procedure may not provide significant reasons to infer an articulable property right meant to be
protected; but it is to say that we have not identifie d property
*772 with procedure as such. State rules of executive procedure,
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Thus, in every instance of property recognized by this Cour t as calling for federal procedural protection, the property has been
distinguishable from the procedural obligations imposed on state officials to protect it. Whether welfare benefits, Goldberg
v.
Kelly, 397 U. S. 254 (1970), attendance at public schools, Goss v. Lopez, 419 U. S. 565 (1975), utility services, Memphis Light,
Gas & Water Div. v. Craft, 436 U. S. 1 (1978), public employment, Perry v. Sindermann, 408 U. S. 593 (1972), professional
licenses, Barry
v. Barchi, 443 U. S. 55 (1979), and so on, the property interest recognized in our cases has always existed apart
from state procedural protection before the Court has r ecognized a constitutional claim to protection by federal process. To
accede to
Gonzales's argument would therefore work a sea change in the scop e of federal due process, for she seeks federal
process as a substitute simply for state process. (And she seeks d amages under Rev. Stat. § 1979, 42 U. S. C. § 1983, for denial
of process to which she claimed a federal right.) There i s no articulable distinction between the object of
Gonzales's asserted
entitlement and the process she desires in order to pro tect her entitlement; both amount to certain steps to be taken by the police
to protect her family and herself.
Gonzales's claim would thus take us beyond Roth or any other recognized theory of Fourteenth
Amendment due process, by collapsing the distinction betw een property protected and the process that protects it, and would
federalize every mandatory state-law direction to executive officers whose performance on the job can be vitally significant to
individuals affected.
The procedural directions involved here are just that. Th ey presuppose no enforceable substantive entitlement, and Roth does
not raise them to federally enforceable status in the na me of due process.
*773 JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, di ssenting. 773
The issue presented to us is much narrower than is suggested by the far-ranging ar guments of the parties and their amici.
Neither the tragic facts of the case, nor the importance of according proper deference to law enforcement profe ssionals, should
divert our attention from that issue. That issue is wheth er the restraining order entered by the Colorado trial court on June 4,
1999, created a "property" interest that is protected fr om arbitrary deprivation by the Due Process Clause of the Fourteenth
Amendment.
It is perfectly clear, on the one hand, that neither th e Federal Constitution itself, nor any federal statute, granted respondent or her
children any individual entitlement to police protection . See DeShaney
v. Winnebago County Dept. of Social Servs., 489 U. S.
189 (1989) . Nor, I assume, does any Colorado statute create any such entitlement for the ordinary citizen. On the other hand, it is
equally clear that federal law imposes no impediment to the creation of such an entitlement by Colorado law. Respondent
certainly could have entered into a contract with a priva te security firm, obligating the firm to provide protection to respondent's
family; respondent's interest in such a contract would unqu estionably constitute "property" within the meaning of the Due Process
Clause. If a Colorado statute enacted for her benefit, or a valid order entered by a Colorado judge, created the functional
equivalent of such a private contract by granting responde nt an entitlement to mandatory individual protection by the local police
force, that state-created right would also qualify as "p roperty" entitled to constitutional protection.
I do not understand the majority to rule out the fore going propositions, although it does express doubts. See ante, at 766 ("[I]t is
by no means clear that an individual entitlement to enf orcement of a restraining order could constitute a
*774 `property' interest").
Moreover, the majority does not contest, see ante, at 768, that if respondent did have a cognizable prop erty interest in this case,
the deprivation of that interest violated due process. As the Court notes, respondent has alleged that she present ed the police
with a copy of the restraining order issued by the Colo rado court and requested that it be enforced. Ante, at 751, n. 1. In
response, she contends, the officers effectively ignored he r. If these allegations are true, a federal statute, Rev. Stat. § 1979, 42 U.
S. C. § 1983, provides her with a remedy against the pe titioner, even if Colorado law does not. See Cleveland Bd. of Ed.
v.
Loudermill, 470 U. S. 532 (1985) .
774
The central question in this case is therefore whether, a s a matter of Colorado law, respondent had a right to police assistance
comparable to the right she would have possessed to any ot her service the government or a private firm might have undertaken
to provide. See Board of Regents of State Colleges
v. Roth, 408 U. S. 564, 577 (1972) ("Property interests, of course, are not
created by the Constitution. Rather, they are created an d their dimensions are defined by existing rules or unde rstandings that
stem from an independent source such as state law—rules or u nderstandings that secure certain benefits and that support claims
of entitlement to those benefits").
There was a time when our tradition of judicial restra int would have led this Court to defer to the judgment of more qualified
tribunals in seeking the correct answer to that difficult question of Colorado law. Unfortunately, although the majority properly
identifies the "central state-law question" in this case as "whether Colorado law gave respondent a right to p olice enforcement of 3/6/2017Castle Rock v. Gonzales, 545 US 748 - Supreme Court 2005 - Google Scholar
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the restraining order," ante, at 758, it has chosen to ignore our settled practice by p roviding its own answer to that question.
Before identifying the flaws in the Court's ruling on the merits, I shall briefly comment on our past practice.
*775 I 775
The majority's decision to plunge ahead with its own ana lysis of Colorado law imprudently departs from this Court's longstanding
policy of paying "deference [to] the views of a federal court as to the law of a State within its jurisdiction." Phillips
v. Washington
Legal Foundation, 524 U. S. 156, 167 (1998) ; see also Bishop v. Wood, 426 U. S. 341, 346, and n. 10 (1976) (collecting cases).
This policy is not only efficient, but it reflects "our bel ief that district courts and courts of appeals are better schooled in and more
able to interpret the laws of their respective States." Brockett
v. Spokane Arcades, Inc., 472 U. S. 491, 500-501 (1985) ;
Hillsborough
v. Cromwell, 326 U. S. 620, 629-630 (1946) (endorsing "great deference to the views of the judge s of those courts
`who are familiar with the intricacies and trends of lo cal law and practice'"). Accordingly, we have declined to show deference
only in rare cases in which the court of appeals' resolutio n of state law was "clearly wrong" or otherwise seriously deficient. See
Brockett,
472 U. S. , at 500, n. 9 ; accord, Leavitt v. Jane L., 518 U. S. 137, 145 (1996) (per curiam) .
Unfortunately, the Court does not even attempt to dem onstrate that the six-judge en banc majority was "clearl y wrong" in its
interpretation of Colorado's domestic restraining orde r statute; nor could such a showing be made. For it is ce rtainly plausible to
construe " shall use every reasonable means to enforce a restraining order " and "shall arrest," Colo. Rev. Stat. §§ 18-6-803.5(3)
(a)-(b) (Lexis 1999) (emphasis added), as conveying mandat ory directives to the police, particularly when the same statute, at
other times, tellingly employs different language that suggests police discretion, see § 18-6-803.5(6)(a) ("A pe ace officer is
authorized to use every reasonable means to protect . . ."; "Such peace officer may transport . . ." (emphasis added)).
[1] Moreover,
unlike
*776 today's decision, the Court of Appeals was attentive to t he legislative history of the statute, focusing on a statem ent by
the statute's sponsor in the Colorado House, ante, at 759, n. 6 (quoting statement), which it took to "e mphasiz[e] the importance of
the police's mandatory enforcement of domestic restrainin g orders." 366 F. 3d 1093, 1107 (CA10 2004) (en banc). Far from
overlooking the traditional presumption of police discret ion, then, the Court of Appeals' diligent analysis of the statute's text,
purpose, and history led it to conclude that the Colorad o Legislature intended precisely to abrogate that presum ption in the
specific context of domestic restraining orders. That conclusio n is eminently reasonable and, I believe, worthy of our deference.
[2]
776
II
Even if the Court had good reason to doubt the Court of Appeals' determination of state law, it would, in my judgment, be a far
wiser course to certify the question to the
*777 Colorado Supreme Court. [3] Powerful considerations support certification in this
case. First, principles of federalism and comity favor giving a State's high court the opportunity to answer important questions of
state law, particularly when those questions implicate uni quely local matters such as law enforcement and might well require the
weighing of policy considerations for their correct resolu tion.
[4] See Elkins v. Moreno, 435 U. S. 647, 662, n. 16 (1978) (sua
sponte certifying a question of state law because it is "one in which state governments have the highest interest"); cf. Arizonans
for Official English v. Arizona, 520 U. S. 43, 77 (1997) ("Through certification of novel or unsettled questions of state law for
authoritative answers by a State's highest court, a feder al court may save `time, energy, and resources, and hel[p] build a
cooperative judicial federalism'" (brackets in original)).
[5] *778 Second, by certifying a potentially dispositive state-law issue, the
Court would adhere to its wise policy of avoiding the u nnecessary adjudication of difficult questions of constitut ional law. See
Elkins,
435 U. S. , at 661-662 (citing constitutional avoidance as a factor supporting ce rtification). Third, certification would
promote both judicial economy and fairness to the parti es. After all, the Colorado Supreme Court is the ultimate authority on the
meaning of Colorado law, and if in later litigation it should disagree with this Court's provisional state-l aw holding, our efforts will
have been wasted and respondent will have been deprived of the opportunity to have her claims heard under the authoritative
view of Colorado law. The unique facts of this case only se rve to emphasize the importance of employing a procedure that will
provide the correct answer to the central question of stat e law. See Brockett,
472 U. S. , at 510 (O'CONNOR, J., concurring)
("Speculation by a federal court about the meaning of a state statute in the absence of a prior state court adjudication is
particularly gratuitous when, as is the case here, the stat e courts stand willing to address questions of state law o n certification
from a federal court").
[6]
777
778
*779
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Three flaws in the Court's rather superficial analysis of the merits highlight the unwisdom of its decision to answer the state-law
question de novo. First, the Court places undue weight on the various stat utes throughout the country that seemingly mandate
police enforcement but are generally understood to pre serve police discretion. As a result, the Court gives short sh rift to the
unique case of "mandatory arrest" statutes in the domestic violence context; States passed a wave of these statutes in the 1980's
and 1990's with the unmistakable goal of eliminating p olice discretion in this area. Second, the Court's formalistic analysis fails to
take seriously the fact that the Colorado statute at issue in this case was enacted for the benefit of the narrow class of persons
who are beneficiaries of domestic restraining orders, and that the order at issue in this case was specifically intended to provide
protection to respondent and her children. Finally, th e Court is simply wrong to assert that a citizen's interest in the government's
commitment to provide police enforcement in certain def ined circumstances does not resemble any "traditional concep tion of
property," ante, at 766; in fact, a citizen's property interest in such a co mmitment is just as concrete and worthy of protection as
her interest in any other important service the governme nt or a private firm has undertaken to provide.
In 1994, the Colorado General Assembly passed omnibus leg islation targeting domestic violence. The part of the legislation at
issue in this case mandates enforcement of a domestic restra ining order upon probable cause of a violation, § 18-6-803.5(3),
while another part directs that police officers "shall, without undue delay, arrest" a suspect upon "probable cause to believe that a
crime or offense of domestic violence
*780 has been committed," § 18-6-803.6(1). [7] In adopting this legislation, the Colorado
General Assembly joined a nationwide movement of State s that took aim at the crisis of police underenforcement in the domestic
violence sphere by implementing "mandatory arrest" statute s. The crisis of underenforcement had various causes, not least of
which was the perception by police departments and police officers that domestic violence was a private, "family" matter and that
arrest was to be used as a last resort. Sack, Battered Wom en and the State: The Struggle for the Future of Domestic Violence
Policy, 2004 Wis. L. Rev. 1657, 1662-1663 (hereinafte r Sack); id., at 1663 ("Because these cases were considered noncriminal,
police assigned domestic violence calls low priority and oft en did not respond to them for several hours or ignored them
altogether"). In response to these realities, and embol dened by a well-known 1984 experiment by the Minneapoli s police
department,
[8] "many states enacted mandatory *781 arrest statutes under which a police officer must arrest a n abuser when the
officer has probable cause to believe that a domestic assau lt has occurred or that a protection order has been violated."
Developments in the Law: Legal Responses to Domestic Viole nce, 106 Harv. L. Rev. 1498, 1537 (1993). The purpose of these
statutes was precisely to "counter police resistance to arrests in domestic violence cases by removing or restricting police officer
discretion; mandatory arrest policies would increase police response and reduce batterer recidivism." Sack 1670.
780
781
Thus, when Colorado passed its statute in 1994, it joined the ranks of 15 States that mandated arrest for domestic violence
offenses and 19 States that mandated arrest for domestic restraining order violations. See Developments in the Law, 106 Harv. L.
Rev., at 1537, n. 68 (noting statutes in 1993); N. M iller, Institute for Law and Justice, A Law Enforcement and Prosecution
Perspective 7, and n. 74, 8, and n. 90 (2003), http:// www.ilj.org/dv/dvvawa2000.htm (as visited June 24,
2005, and available in
Clerk of Court's case file) (listing Colorado among the many States that currently have mandatory arrest statutes).
[9]
Given the specific purpose of these statutes, there can be no doubt that the Colorado Legislature used the term "shall" advisedly
in its domestic restraining order statute. While
*782 "shall" is probably best read to mean "may" in other C olorado statutes that
seemingly mandate enforcement, cf. Colo. Rev. Stat. § 3 1-4-112 (Lexis 2004) (police "shall suppress all riots, disturbances, and
breaches of the peace, shall apprehend all disorderly persons in the city . . ." (emphasis added )), it is clear that the elimination of
police discretion was integral to Colorado and its fell ow States' solution to the problem of underenforcement in domestic violence
cases.
[10] Since the text of Colorado's statute perfectly captures th is legislative purpose, it is hard to imagine what the Court has
in mind when it insists on "some stronger indication from the Colorado Legislature." Ante, at 761.
782
While Colorado case law does not speak to the question, it is instructive that other state courts interpreting their analogous
statutes have not only held that they eliminate the poli ce's traditional discretion to refuse enforcement, but have
*783 also
recognized that they create rights enforceable against the police under state law. For example, in Nearing
v. Weaver, 295 Ore.
702, 670 P. 2d 137 (1983) (en banc) , the court held that although the common law of neg ligence did not support a suit against
the police for failing to enforce a domestic restraining order, the statute's mandatory directive formed the ba sis for the suit
because it was "a specific duty imposed by statute for the be nefit of individuals previously identified by judicial order." Id., at 707,
670 P. 2d, at 140.
[11] In Matthews v. Pickett County, 996 S. W. 2d 162 (Tenn. 1999) (on certification to the Sixth Circuit), the court
confirmed that the statute mandated arrest for violatio ns of domestic restraining orders, and it held that the "public duty" defense
to a negligence action was unavailable to the defendant police officers because the restraining order had created a "special
duty" to protect the plaintiff. Id., at 165. See also Campbell
v. Campbell, 294 N. J. Super. 18, 24, 682 A. 2d 272, 274 (1996)
(domestic restraining order statute "allows no discretion " with regard to arrest; "[t]he duty imposed on the police officer is
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ministerial"); Donaldson v. Seattle, 65 Wash. App. 661, 670, 831 P. 2d 1098, 1103 (1992) ("Generally, where an officer has legal
grounds to make an arrest he has considerable discretion to do so. In regard to domestic violence, the rule is the reverse. If the
officer has the legal grounds to arrest pursuant to the statute, he has a mandatory duty to make the arrest"). To what extent the
Colorado Supreme Court would agree with the views of these courts is, of course, an open question, but it does seem rather
brazen for the majority to assume that the Colorado Sup reme Court
*784 would repudiate this consistent line of persuasive
authority from other States. 784
Indeed, the Court fails to come to terms with the wave of domestic violence statutes that provides the crucial context for
understanding Colorado's law. The Court concedes that, "in the specific context of domestic violence, mandatory-ar rest statutes
have been found in some States to be more mandatory tha n traditional mandatory-arrest statutes," ante, at 762, but that is a
serious understatement. The difference is not a matter o f degree, but of kind. Before this wave of statutes, the legal rule was one
of discretion; as the Court shows, the "traditional," ge neral mandatory arrest statutes have always been understood to be
"mandatory" in name only, see ante, at 760. The innovation of the domestic violence statute s was to make police enforcement,
not "more mandatory," but simply mandatory. If, as the Court says, the existence of a protected "entit lement" turns on whether
"government officials may grant or deny it in their discre tion," ante, at 756, the new mandatory statutes undeniably create a n
entitlement to police enforcement of restraining order s.
Perhaps recognizing this point, the Court glosses over the dispositive question—whether the police enjoyed discretio n to deny
enforcement—and focuses on a different question— which "pr ecise means of enforcement," ante, at 763, were called for in this
case. But that question is a red herring. The statute di rects that, upon probable cause of a violation, "a peace officer shall arrest,
or, if an arrest would be impractical under the circumsta nces, seek a warrant for the arrest of a restrained person ." Colo. Rev. Stat.
§ 18-6-803.5(3)(b) (Lexis 1999). Regardless of whether the enforcement called for in this case was arrest or the seeking of an
arrest warrant (the answer to that question probably cha nged over the course of the night as the respondent gave the police
more information about the husband's whereabouts), the crucial point is that, under the statute, the police were required to
provide enforcement; they lacked the discretion to do nothing.
[12] *785 The Court suggests that the fact that "enforcement" may
encompass different acts infects any entitlement to enforce ment with "indeterminacy." Ante, at 763. But this objection is also
unfounded. Our cases have never required the object of an entitlement to be some mechanistic, unitary thing. Suppose a State
entitled every citizen whose income was under a certain leve l to receive health care at a state clinic. The provision of health care
is not a unitary thing— doctors and administrators must deci de what tests are called for and what procedures are required, and
these decisions often involve difficult applications of ju dgment. But it could not credibly be said that a citizen lacks an entitlement
to health care simply because the content of that entitle ment is not the same in every given situation. Similarly, the enforcement of
a restraining order is not some amorphous, indeterminat e thing. Under the statute, if the police have probable cause that a
violation has occurred, enforcement consists of either making an immediate arrest or seeking a warrant and then executing an
arrest—traditional, well-defined tasks that law enforcem ent officers perform every day.
[13]
785
*786
The Court similarly errs in speculating that the Colo rado Legislature may have mandated police enforcement of restraining
orders for "various legitimate ends other than the confe rral of a benefit on a specific class of people," ante, at 765; see also ibid.
(noting that the "serving of public rather than privat e ends is the normal course of the criminal law"). Whil e the Court's concern
would have some bite were we
*787 faced with a broadly drawn statute directing, for examp le, that the police "shall suppress all
riots," there is little doubt that the statute at issue in this case conferred a benefit "on a specific class of p eople"—namely,
recipients of domestic restraining orders. Here, responden t applied for and was granted a restraining order from a Colorado trial
judge, who found a risk of "irreparable injury" and fo und that "physical or emotional harm" would result if t he husband were not
excluded from the family home. 366 F. 3d, at 1143 (ap pendix to dissent of O'Brien, J.). As noted earlier, the restraining order
required that the husband not "molest or disturb" the peace of respondent and the daughters, and it ordered (with limited
exceptions) that the husband stay at least 100 yards away f rom the family home. Ibid.
[14] It also directed the police to "use every
reasonable means to enforce this . . . order," and to a rrest or seek a warrant upon probable cause of a violatio n. Id., at 1144.
Under the terms of the statute, when the order issued , respondent and her daughters became "`protected person [s].'" § 18-6-
803.5(1.5)(a) ("`Protected person' means the person or persons identified in the restraining order as the person or persons for
whose benefit the restraining order was issued").
[15] The statute criminalized the knowing violation of the restraining order, § 18-
6-803.5(1), and, as already discussed, the statute (as
*788 well as the order itself) mandated police enforcement, §§ 18-6-
803.5(3)(a)-(b).
[16]
786
787
788
Because the statute's guarantee of police enforcement is t riggered by, and operates only in reference to, a judge's granting of a
restraining order in favor of an identified "`protecte d person,'" there is simply no room to suggest that such a person has received 3/6/2017Castle Rock v. Gonzales, 545 US 748 - Supreme Court 2005 - Google Scholar
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merely an "`incidental'" or "`indirect'" benefit, see ante, at 766-767. As one state court put it, domestic restrain ing order statutes
"identify with precision when, to whom, and under what circumstances police protection must be afforded. The legi slative
purpose in requiring the police to enforce individual r estraining orders clearly is to protect the named persons f or whose
protection the order is issued, not to protect the comm unity at large by general law enforcement activity." Nearing,
295 Ore., at
712, 670 P. 2d, at 143 .[17] Not only does the Court's doubt about *789 whether Colorado's statute created an entitlement in a
protected person fail to take seriously the purpose and n ature of restraining orders, but it fails to account for the decisions by
other state courts, see supra, at 782-783, that recognize that such statutes and rest raining orders create individual rights to police
action. 789
IV
Given that Colorado law has quite clearly eliminated th e police's discretion to deny enforcement, respondent is co rrect that she
had much more than a "unilateral expectation" that th e restraining order would be enforced; rather, she had a "legitimate claim of
entitlement" to enforcement. Roth,
408 U. S. , at 577 . Recognizing respondent's property interest in the enfo rcement of her
restraining order is fully consistent with our precedent. This Court has "made clear that the property interests p rotected by
procedural due process extend well beyond actual ownership of real estate, chattels, or money." Id., at 571-572. The "types of
interests protected as `property' are varied and, as often as not, intangible, relating `to the whole domain of social and economic
fact.'" Logan
v. Zimmerman Brush Co., 455 U. S. 422, 430 (1982) ; see also Perry v. Sindermann, 408 U. S. 593, 601 (1972)
("`[P]roperty' interests subject to procedural due proce ss protection are not limited by a few rigid, technical forms. Rather,
`property' denotes a broad range of interests that are secured by `existing rules or understandings'"). Thus, our ca ses have found
"property" interests in a number of state-conferred bene fits and services, including welfare benefits, Goldberg
v. Kelly, 397 U. S.
254 (1970) ; disability benefits, Mathews v. Eldridge, 424 U. S. 319 (1976) ; public education, Goss v. Lopez, 419 U. S. 565 (1975) ;
utility services, Memphis Light, Gas & Water Div.
v. Craft, 436 U. S. 1 (1978) ; government employment, Cleveland Bd. of Ed. v.
*790 Loudermill, 470 U. S. 532 (1985), as well as in other entitlements that defy easy categor ization, see, e. g., Bell v. Burson,
402 U. S. 535 (1971) (due process requires fair procedures before a driver's li cense may be revoked pending the adjudication of
an accident claim); Logan,
455 U. S. , at 431 (due process prohibits the arbitrary denial of a person' s interest in adjudicating a
claim before a state commission).
790
Police enforcement of a restraining order is a governme nt service that is no less concrete and no less valuable than other
government services, such as education.
[18] The relative novelty of recognizing this type of property interest is explained by the
relative novelty of the domestic violence statutes creating a mandatory arrest duty; before this innovation, the unfettered
discretion that characterized police enforcement defeated any citizen's "legitimate claim of entitlement" to this service. Novel or
not, respondent's claim finds strong support in the princi ples that underlie our due process jurisprudence. In this case, Colorado
law guaranteed the provision of a certain service, in certain defined ci rcumstances, to a certain class of beneficiaries, and
respondent reasonably relied on that guarantee. As we o bserved in Roth, "[i]t is a purpose of the ancient institution of prope rty to
protect those claims upon which people rely in their dai ly lives, reliance that must not be arbitrarily undermined."
*791 408 U. S. ,
at 577 . Surely, if respondent had contracted with a private security firm to provide her and her daughters with prot ection from her
husband, it would be apparent that she possessed a prope rty interest in such a contract. Here, Colorado undertook a
comparable obligation, and respondent—with restraining order in hand—justifiably relied on that undertaking. Respondent's
claim of entitlement to this promised service is no less leg itimate than the other claims our cases have upheld, and no less
concrete than a hypothetical agreement with a private fi rm.
[19] The fact that it is based on a statutory enactment and a judicial
order entered for her special protection, rather than on a formal contract, does not provide a principled basi s for refusing to
consider it "property" worthy of constitutional protection .
[20]
791
*792
V 792
Because respondent had a property interest in the enfor cement of the restraining order, state officials could not deprive her of
that interest without observing fair procedures.
[21] Her description of the police behavior in this case and the department's callous
policy of failing to respond properly to reports of restr aining order violations clearly alleges
*793 a due process violation. At the
very least, due process requires that the relevant state deci sionmaker listen to the claimant and then apply the relevant criteria in
reaching his decision.
[22] The failure to observe these minimal procedural safegua rds creates an unacceptable risk of arbitrary
and "erroneous deprivation[s]," Mathews,
424 U. S. , at 335 . According to respondent's complaint—which we must construe
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liberally at this early stage in the litigation, see Swierkiewicz v. Sorema N. A., 534 U. S. 506, 514 (2002) —the process she was
afforded by the police constituted nothing more than a "`sham or a pretense.'" Joint Anti-Fascist Refugee Comm.
v. McGrath, 341
U. S. 123, 164 (1951) (Frankfurter, J., concurring) .
Accordingly, I respectfully dissent.
[*]
Briefs of amici curiae urging reversal were filed for the Denver Police P rotective Association et al. by David J. Bruno and Michael T. Lowe; and for
the International Municipal Lawyers Association et al. by Brad D. Bailey and Kathryn L. Schroeder.
Briefs of amici curiae urging affirmance were filed for AARP by Stuart R. Cohen, Susan Ann Silverstein, and Michael Schuster; for the American
Civil Liberties Union et al. by Caroline M. Brown, Steven R. Shapiro, and Lenora M. Lapidus; for International Law Scholars et al. by Jennifer K.
Brown and Rhonda Copelon; for the National Association of Women Lawyers et a l. by Lorelie S. Masters; for the National Black Police Association
et al. by Richard W. Smith and Joan S. Meier; for the National Coalition Against Domestic Violen ce et al. by Naomi G. Beer, Libby Y. Mote, and
Michele E. Stone; for the National Network to End Domestic Violence et al. by Fernando R. Laguarda; and for Peggy Kerns et al. by David G. Hall
and James C. Harrington.
Deanne M. Ottaviano and Janine A. Carlan filed a brief for the Family Violence Prevention F und et al. as amici curiae.
[1]
Petitioner claims that respondent's complaint "did not allege . . . that she ever notified the police of her contention that [her husband] was actually
in violation of the restraining order." Brief for P etitioner 7, n. 2. The complaint does allege, howev er, that respondent "showed [the police] a copy of
the [temporary restraining order (TRO)] and request ed that it be enforced." App. to Pet. for Cert. 126a. At this stage in the litigation, we may
assume that this reasonably implied the order was b eing violated. See Steel Co.
v. Citizens for Better Environment, 523 U. S. 83, 104 (1998) .
[2]
It is unclear from the complaint, but immaterial t o our decision, whether respondent showed the polic e only the original "TRO" or also the
permanent, modified restraining order that had supe rseded it on June 4.
[3]
Three police officers were also named as defendant s in the complaint, but the Court of Appeals concluded that they were entitled to qualified
immunity, 366 F. 3d 1093, 1118 (CA10 2004) (en banc ). Respondent did not file a cross-petition challenging that aspect of the judgment.
[4]
Most of the Colorado-law cases cited by the Court of Appeals appeared in footnotes declaring them to be irrelevant because they involved only
substantive due process (366 F. 3d, at 1100-1101, n n. 4-5), only statutes without restraining orders (id., at 1101, n. 5), or Colorado's Government
Immunity Act, which the Court of Appeals concluded applies "only to . . . state tort law claims" (id., at 1108-1109, n. 12). Our analysis is likewise
unaffected by the Immunity Act or by the way that C olorado has dealt with substantive due process or cases that do not involve restraining orders.
[5]
In something of an anyone-but- us approach, the dissent simultaneously (and thus unp ersuasively) contends not only that this Court should
certify a question to the Colorado Supreme Court, post, at 776-778 (opinion of Stevens, J.), but also that it should defer to the Tenth Circuit (which
itself did not certify any such question), post, at 775-776. No party in this case has requested ce rtification, even as an alternative disposition. See Tr.
of Oral Arg. 56 (petitioner's counsel "disfavor[ing ]" certification); id., at 25-26 (counsel for the United States arguing ag ainst certification). At oral
argument, in fact, respondent's counsel declined JU STICE STEVENS' invitation to request it. Id., at 53.
[6]
The Court of Appeals quoted one lawmaker's descrip tion of how the bill "`would really attack the domestic violence problems'":
"`[T]he entire criminal justice system must act in a consistent manner, which does not now occur. The police must make probable cause arrests.
The prosecutors must prosecute every case. Judges m ust apply appropriate sentences, and probation officers must monitor their probationers
closely. And the offender needs to be sentenced to offender-specific therapy.
"`[T]he entire system must send the same message . . . [that] violence is criminal. And so we hope that House Bill 1253 starts
us down this road.'"
366 F. 3d, at 1107 (quoting Tr. of Colorado House J udiciary Hearings on House Bill 1253, Feb. 15, 1994 ; emphasis deleted).
[7]
Under Colo. Rev. Stat. § 18-6-803.5(5) (Lexis 1999 ), "[a] peace officer arresting a person for violating a restraining order or otherwise enforcing
a restraining order" was not to be held civilly or criminally liable unless he acted "in bad faith and with malice" or violated "rules adopted by the
Colorado supreme court."
[8]
Respondent in fact concedes that an officer may "p roperly" decide not to enforce a restraining order when the officer deems "a technical
violation" too "immaterial" to justify arrest. Resp ondent explains this as a determination that there is no probable cause. Brief for Respondent 28.
We think, however, that a determination of no proba ble cause to believe a violation has occurred is quite different from a determination that the
violation is too insignificant to pursue.
[9]
Respondent characterizes her entitlement in variou s ways. See Brief for Respondent 12 ("`entitlement' to receive protective services"); id., at 13
("interest in police enforcement action"); id., at 14 ("specific government benefit" consisting of "the government service of enforcing the objective
terms of the court order protecting her and her chi ldren against her abusive husband"); id., at 32 ("[T]he restraining order here mandated the
arrest of Mr.
Gonzales under specified circumstances, or at a minimum req uired the use of reasonable means to enforce the order").
[10]
See post, at 773 ("entitlement to police protection"); ibid. ("entitlement to mandatory individual protection b y the local police force"); post, at 774
("a right to police assistance"); post, at 779 ("a citizen's interest in the government's commitment to provide police enforcement in certain defined
circumstances"); post, at 789 ("respondent's property interest in the enf orcement of her restraining order"); post, at 790, 791 (the "service" of
"protection from her husband"); post, at 792 ("interest in the enforcement of the restra ining order"). 3/6/2017Castle Rock v. Gonzales, 545 US 748 - Supreme Court 2005 - Google Scholar
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[11] The dissent asserts that the police would lack discretion in the execution of this warrant, post, at 785, n. 12, but cites no statute mandating
immediate execution. The general Colorado statute g overning arrest provides that police "may arrest" when they possess a warrant "commanding"
arrest. Colo. Rev. Stat. § 16-3-102(1) (Lexis 1999) .
[12]
The dissent suggests that the interest in having a restraining order enforced does have an ascertaina ble monetary value, because one may
"contract with a private security firm . . . to pro vide protection" for one's family. Post, at 773, 790, 791, and n. 19. That is, of course, n ot as precise
as the analogy between public and private schooling that the dissent invokes. Post, at 791, n. 19. Respondent probably could have hire d a private
firm to guard her house, to prevent her husband fro m coming onto the property, and perhaps even to sea rch for her husband after she discovered
that her children were missing. Her alleged entitle ment here, however, does not consist in an abstract right to "protection," but (according to the
dissent) in enforcement of her restraining order th rough the arrest of her husband, or the seeking of a warrant for his arrest, after she gave the
police probable cause to believe the restraining or der had been violated. A private person would not h ave the power to arrest under those
circumstances because the crime would not have occu rred in his presence. Colo. Rev. Stat. § 16-3-201 (Lexis 1999). And, needless to say, a
private person would not have the power to obtain a n arrest warrant.
[13]
In other contexts, we have explained that "a priva te citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another."
Linda R. S.
v. Richard D., 410 U. S. 614, 619 (1973) .
[14]
Because we simply do not address whether the proce ss would have been adequate if respondent had had a property interest, the dissent is
correct to note that we do not "contest" the point, post, at 774. Of course we do not accept it either.
[15]
In Colorado, the general statutory immunity for go vernment employees does not apply when "the act or omission causing . . . injury was willful
and wanton." Colo. Rev. Stat. § 24-10-118(2)(a) (Le xis 1999). Respondent's complaint does allege that the police officers' actions "were taken
either willfully, recklessly or with such gross neg ligence as to indicate wanton disregard and deliber ate indifference to" her civil rights. App. to Pet. for
Cert. 128a.
The state cases cited by the dissent that afford a cause of action for police failure to enforce restraining orders, post, at 782-784, 786, n. 13,
vindicate state common-law or statutory tort claims —not procedural due process claims under the Federa l Constitution. See Donaldson
v. Seattle,
65 Wash. App. 661, 831 P. 2d 1098 (1992) (city could be liable under some circumstances for per se negligence in failing to meet statutory duty to
arrest); Matthews
v. Pickett County, 996 S. W. 2d 162 (Tenn. 1999) (county could be liable under Tennessee's Governme ntal Tort Liability Act
where restraining order created a special duty); Campbell
v. Campbell, 294 N. J. Super. 18, 682 A. 2d 272 (1996) (rejecting four specific defenses
under the New Jersey Tort Claims Act in negligence action against individual officers); Sorichetti
v. New York, 65 N. Y. 2d 461, 482 N. E. 2d 70
(1985) (city breached duty of care arising from special r elationship between police and victim); Nearing v. Weaver, 295 Ore. 702, 670 P. 2d 137
(1983) (en banc) (statutory duty to individual plaintiffs arising i ndependently of tort-law duty of care).
[*]
Gonzales does not claim to have a protected liberty interes t.
[1]
The Court of Appeals also looked to other provisio ns of the statute to inform its analysis. In particular, it reasoned that a provision that gave
police officers qualified immunity in connection wi th their enforcement of restraining orders, see Col o. Rev. Stat. § 18-6-803.5(5) (Lexis 1999),
supported the inference that the Colorado Legislatu re intended mandatory enforcement. See 366 F. 3d 10 93, 1108 (CA10 2004) (en banc).
[2]
The Court declines to show deference for the odd r eason that, in its view, the Court of Appeals did not "draw upon a deep well of state-specific
expertise," ante, at 757, but rather examined the statute's text and legislative history and distinguished arguably relevant Colorado case law. See
ante, at 757, and n. 4. This rationale makes a mockery o f our traditional practice, for it is precisely when there is no state law on point that the
presumption that circuits have local expertise play s any useful role. When a circuit's resolution of a novel question of state law is grounded on a
concededly complete review of all the pertinent sta te-law materials, that decision is entitled to deference. Additionally, it should be noted that this is
not a case in which the Court of Appeals and the Di strict Court disagreed on the relevant issue of state law; rather, those courts disagreed only
over the extent to which a probable-cause determina tion requires the exercise of discretion. Compare 366 F. 3d, at 1105-1110, with App. to Pet. for
Cert. 122a (District Court opinion).
[3]
See Colo. Rule App. Proc. 21.1(a) (Colorado Suprem e Court may answer questions of law certified to it by the Supreme Court of the United
States or another federal court if those questions "may be determinative of the cause" and "as to whic h it appears to the certifying court there is no
controlling precedent in the decisions of the [Colo rado] Supreme Court").
[4]
See Westminster v. Dogan Constr. Co., 930 P. 2d 585, 590 (Colo. 1997) (en banc) (in interpreting an ambiguous statute, the Colorad o
Supreme Court will consider legislative history and the "consequences of a particular construction"); ibid. ("`Because we also presume that
legislation is intended to have just and reasonable effects, we must construe statutes accordingly and apply them so as to ensure such results'").
Additionally, it is possible that the Colorado Supr eme Court would have better access to (and greater facility with) relevant pieces of legislative
history beyond those that we have before
us . That court may also choose to give certain eviden ce of legislative intent greater weight than would be
customary for this Court. See, e. g., Brief for Peggy Kerns et al. as Amici Curiae (bill sponsor explaining the Colorado General Asse mbly's intent in
passing the domestic restraining order statute).
[5]
Citing similar considerations, the Second Circuit certified questions of state law to the Connecticut Supreme Court when it was faced with a
procedural due process claim involving a statute th at arguably mandated the removal of children upon p robable cause of child abuse. See Sealed
v.
Sealed, 332 F. 3d 51 (2003) . The Connecticut Supreme Court accepted certificat ion and held that the provision was discretionary, not mandatory.
See Teresa T.
v. Ragaglia, 272 Conn. 734, 865 A. 2d 428 ( 2005 ).
[6]
The Court is correct that I would take an "anyone- but- us approach," ante, at 758, n. 5, to the question of who decides the issue of Colorado law
in this case. Both options that I favor—deferring t o the Circuit's interpretation or, barring that, certifying to the Colorado Supreme Court—recognize 3/6/2017Castle Rock v. Gonzales, 545 US 748 - Supreme Court 2005 - Google Scholar
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the comparative expertise of another tribunal on questions of state law. And both options offer their own efficiencies. By contrast, the Court's
somewhat overconfident "only
us " approach lacks any cogent justification. The fact that neither party requested certification certainly cannot be a
sufficient reason for dismissing that option. As wi th abstention, the considerations that weigh in fav or of certification— federal-state comity,
constitutional avoidance, judicial efficiency, the desire to settle correctly a recurring issue of sta te law—transcend the interests of individual litiga nts,
rendering it imprudent to cast them as gatekeepers to the procedure. See, e. g., Elkins
v. Moreno, 435 U. S. 647, 662 (1978) (certifying state-law
issue absent a request from the parties); Aldrich
v. Aldrich, 375 U. S. 249 (1963) (per curiam) (same); see also 17A C. Wright, A. Miller, & E.
Cooper, Federal Practice and Procedure § 4248, p. 1 76 (2d ed. 1988) ("Ordinarily a court will order certification on its own motion").
[7]
See Fuller & Stansberry, 1994 Legislature Strength ens Domestic Violence Protective Orders, 23 Colo. L awyer 2327 (1994) ("The 1994
Colorado legislative session produced several signi ficant domestic abuse bills that strengthened both civil and criminal restraining order laws and
procedures for victims of domestic violence"); id., at 2329 ("Although many law enforcement jurisdicti ons already take a proactive approach to
domestic violence, arrest and procedural policies v ary greatly from one jurisdiction to another. H. B. 94-1253 mandates the arrest of domestic
violence perpetrators and restraining order violate rs. H. B. 94-1090 repeals the requirement that prot ected parties show a copy of their restraining
order to enforcing officers. In the past, failure t o provide a copy of the restraining order has led t o hesitation from police to enforce the order for fear
of an illegal arrest. The new statute also shields arresting officers from liability; this is expected to reduce concerns about enforcing the mandatory
arrest requirements" (footnotes omitted)).
[8]
See Sack 1669 ("The movement to strengthen arrest policies was bolstered in 1984 by the publication of the results of a study on mandatory
arrest in domestic violence cases that had been con ducted in Minneapolis. In this study, police handled randomly assigned domestic violence
offenders by using one of three different responses : arresting the offender, mediating the dispute or requiring the offender to leave the house for
eight hours. The study concluded that in comparison with the other two responses, arrest had a significantly greater impact on reducing domestic
violence recidivism. The findings from the Minneapo lis study were used by the
U. S. Attorney General in a report issued in 1984 that r ecommended,
among other things, arrest in domestic violence cas es as the standard law enforcement response" (footn otes omitted)); see also Zorza, The
Criminal Law of Misdemeanor Domestic Violence, 1970 -1990, 83 J. Crim. L. & C. 46, 63-65 (1992) (tracing history of mandatory arrest laws and
noting that the first such law was implemented by O regon in 1977).
[9]
See also Brief for International Municipal Lawyers Association et al. as Amici Curiae 6 ("Colorado is not alone in mandating the arrest of persons
who violate protective orders. Some 19 states requi re an arrest when a police officer has probable cause to believe that such orders have been
violated" (collecting statutes)).
[10]
See Note, Mandatory Arrest: A Step Toward Eradicat ing Domestic Violence, But is It Enough? 1996 U. Ill. L. Rev. 533, 541-542, 544-546
(describing the problems that attend a discretionar y arrest regime: "Even when probable cause is prese nt, police officers still frequently try to calm
the parties and act as mediators. . . . Three studi es found the arrest rate to range between 3% and 10 % when the decision to arrest is left to police
discretion. Another study found that the police mad e arrests in only 13% of the cases where the victim had visible injuries. . . . Police officers often
employ irrelevant criteria such as the `reason' for the abuse or the severity of the victim's injuries in making their decision to arrest. . . . Some
[officers] may feel strongly that police should not interfere in family arguments or lovers' quarrels. Such attitudes make police much more likely to
investigate intent and provocation, and consider th em as mitigating factors, in responding to domestic violence calls than in other types of cases"
(footnotes omitted)); see also Walsh, The Mandatory Arrest Law: Police Reaction, 16 Pace L. Rev. 97, 98 (1995). Cf. Sack 1671-1672 ("Mandatory
arrest policies have significantly increased the nu mber of arrests of batterers for domestic violence crimes. . . . In New York City, from 1993, the
time the mandatory arrest policy was instituted, to 1999, felony domestic violence arrests increased 3 3%, misdemeanor domestic violence arrests
rose 114%, and arrests for violation of orders of p rotection were up 76%").
[11]
The Oregon Supreme Court noted that the "widesprea d refusal or failure of police officers to remove persons involved in episodes of domestic
violence was presented to the legislature as the ma in reason for tightening the law so as to require enforcement of restraining orders by mandatory
arrest and custody." Nearing,
295 Ore., at 709, 670 P. 2d, at 142 .
[12]
Under the Court's reading of the statute, a police officer with probable cause is mandated to seek an arrest warrant if arrest is "impractical
under the circumstances," but then enjoys unfettere d discretion in deciding whether to execute that warrant. Ante, at 764. This is an unlikely reading
given that the statute was motivated by a profound distrust of police discretion in the domestic violence context and motivated by a desire to improve
the protection given to holders of domestic restrai ning orders. We do not have the benefit of an autho ritative construction of Colorado law, but I
would think that if an estranged husband harassed h is wife in violation of a restraining order, and then absconded after she called the police, the
statute would not only obligate the police to seek an arrest warrant, but also obligate them to execut e it by making an arrest. In any event, under
respondent's allegations, by the time the police we re informed of the husband's whereabouts, an arrest was practical and, under the statute's
terms, mandatory.
[13]
The Court wonders "how the mandatory-arrest paradi gm applies to cases in which the offender is not present to be arrested." Ante, at 762.
Again, questions as to the scope of the obligation to provide enforcement are far a field from the key issue—whether there exists an en titlement to
enforcement. In any event, the Court's speculations are off base. First, this is not a case like Donaldson
v. Seattle, 65 Wash. App. 661, 831 P. 2d
1098 (1992), in which the restrained person violated the order and then left the scene. Here, not only did the hus band violate the restraining order
by coming within 100 yards of the family home, but he continued to violate the order while his abduction of the daughters persisted. This is because
the restraining order prohibited him from "molest[i ng] or disturb[ing] the peace" of the daughters. Se e 366 F. 3d, at 1143 (appendix to dissent of
O'Brien, J.). Because the "scene" of the violation was wherever the husband was currently holding the daughters, this case does not implicate the
question of an officer's duties to arrest a person who has left the scene and is no longer in violatio n of the restraining order. Second, to the extent
that arresting the husband was initially "impractic al under the circumstances" because his whereabouts were unknown, the Colorado statute (unlike
some other States' statutes) expressly addressed th at situation—it required the police to seek an arrest warrant. Third, the C ourt is wrong to
suggest that this case falls outside the core situa tion that these types of statutes were meant to add ress. One of the well-known cases that
contributed to the passage of these statutes involv ed facts similar to this case. See Sorichetti
v. New York City, 65 N. Y. 2d 461, 467, 482 N. E. 2d 3/6/2017Castle Rock v. Gonzales, 545 US 748 - Supreme Court 2005 - Google Scholar
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70, 74 (1985) (police officers at police station essentially ignored a mother's pleas for enforcement of a restrain ing order against an estranged
husband who made threats about their 6-year-old dau ghter; hours later, as the mother persisted in her pleas, the daughter was found mutilated,
her father having attacked her with a fork and a kn ife and attempted to saw off her leg); Note, 1996 U . Ill. L. Rev., at 539 (noting Sorichetti in the
development of mandatory arrest statutes); see also Sack 1663 (citing the police's failure to respond to domestic violence calls as an impetus behind
mandatory arrest statutes). It would be singularly odd to suppose that in passing its sweeping omnibus domestic violence legislation, the Colorado
Legislature did not mean to require enforcement in the case of an abduction of children in violation of a restraining order.
[14]
The order also stated: "If you violate this order thinking that the other party or child named in thi s order has given you permission, you are
wrong, and can be arrested and prosecuted. The term s of this order cannot be changed by agreement of the other party or the child(ren). Only the
court can change this order." 366 F. 3d, at 1144 (a ppendix to dissent of O'Brien, J.).
[15]
A concern for the "`protected person'" pervades th e statute. For example, the statute provides that a "peace officer may transport, or obtain
transportation for, the alleged victim to shelter. Upon the request of the protected person, the peace officer may also transport the minor child of the
protected person, who is not an emancipated minor, to the same shelter. . . ." § 18-6-803.5(6)(a).
[16]
I find it neither surprising nor telling, cf. ante, at 766, that the statute requires the restraining order to contain, "in capital letters and bold print,"
a "notice" informing protected persons that they ca n demand or request, respectively, civil and criminal contempt proceedings. § 18-6-803.5(7).
While the legislature may have thought that these l egal remedies were not popularly understood, a pers on's right to "demand" or "request" police
enforcement of a restraining order simply goes with out saying given the nature of the order and its language. Indeed, for a holder of a restraining
order who has read the order's emphatic language, i t would likely come as quite a shock to learn that she has no right to demand enforcement in
the event of a violation. To suggest that a protect ed person has no such right would posit a lacuna be tween a protected person's rights and an
officer's duties—a result that would be hard to rec oncile with the Colorado Legislature's dual goals o f putting an end to police indifference and
empowering potential victims of domestic abuse.
[17]
See also Matthews v. Pickett County, 996 S. W. 2d 162, 165 (Tenn. 1999) ("The order of protection in this case was not iss ued for the public's
protection in general. The order of protection spec ifically identified Ms. Matthews and was issued solely for the purpose of protecting her. Cf. Ezell
[v. Cockrell, 902 S. W. 2d 394, 403 (Tenn. 1995)] (statute prohi biting drunk driving does not specify an individual but undertakes to protect the public
in general from intoxicated drivers)"); Sorichetti,
65 N. Y. 2d, at 469, 482 N. E. 2d, at 75 ("The [protective] order evinces a preincident leg islative
and judicial determination that its holder should b e accorded a reasonable degree of protection from a particular individual").
[18]
The Court mistakenly relies on O'Bannon v. Town Court Nursing Center, 447 U. S. 773 (1980), in explaining why it is "by no means clear that
an individual entitlement to enforcement of a restr aining order could constitute a `property' interest for purposes of the Due Process Clause." Ante,
at 766. In O'Bannon, the question was essentially whether certain regul ations provided nursing-home residents with an enti tlement to continued
residence in the home of their choice. 447
U. S. , at 785 . The Court concluded that the regulations created no such entitlement, but there was no
suggestion that Congress could not create one if it wanted to. In other words, O'Bannon did not address a situation in which the underlyin g law
created an entitlement, but the Court nevertheless refused to treat that entitlement as a property interest within the meaning of the Due Process
Clause.
[19]
As the analogy to a private security contract demo nstrates, a person's interest in police enforcement has "`some ascertainable monetary
value,'" ante, at 766. Cf. Merrill, The Landscape of Constitution al Property, 86 Va. L. Rev. 885, 964, n. 289 (2000) (remarking, with regard to the
property interest recognized in Goss
v. Lopez, 419 U. S. 565 (1975), that "any parent who has contemplated sending thei r children to private
schools knows that public schooling has a monetary value"). And while the analogy to a private security contract need not be precise to be useful, I
would point out that the Court is likely incorrect in stating that private security guards could not h ave arrested the husband under the circumstances,
see ante, at 766-767, n. 12. Because the husband's ongoing a bduction of the daughters would constitute a knowing violation of the restraining
order, see n. 13, supra, and therefore a crime under the statute, see § 18- 6-803.5(1), a private person who was at the scene a nd aware of the
circumstances of the abduction would have authority to arrest. See § 16-3-201 ("A person who is not a peace officer may arrest another person
when any crime has been or is being committed by th e arrested person in the presence of the person making the arrest"). Our cases, of course,
have never recognized any requirement that a proper ty interest possess "`some ascertainable monetary value.'" Regardless, I would assume that
respondent would have paid the police to arrest her husband if that had been possible; at the very least, the entitlement has a monetary value in
that sense.
[20]
According to JUSTICE SOUTER, respondent has assert ed a property interest in merely a "state-mandated process," ante, at 771 (concurring
opinion), rather than in a state-mandated "substant ive guarantee," ibid. This misunderstands respondent's claim. Putting as ide the inartful passage
of respondent's brief that JUSTICE SOUTER relies up on, ante, at 770, it is clear that respondent is in fact ass erting a substantive interest in the
"enforcement of the restraining order," Brief for R espondent 10. Enforcement of a restraining order is a tangible, substantive act. If an estranged
husband violates a restraining order by abducting c hildren, and the police succeed in enforcing the order, the person holding the restraining order
has undeniably just received a substantive benefit. As in other procedural due process cases, responde nt is arguing that the police officers failed to
follow fair procedures in ascertaining whether the statutory criteria that trigger their obligation to provide enforcement—i. e., an outstanding order
plus probable cause that it is being violated—were satisfied in her case. Cf. Carey
v. Piphus, 435 U. S. 247, 266-267 (1978) (discussing analytic
difference between the denial of fair process and t he denial of the substantive benefit itself). It is JUSTICE SOUTER, not respondent, who makes
the mistake of "collapsing the distinction between property protected and the process that protects it ," ante, at 772.
JUSTICE SOUTER also errs in suggesting that respond ent cannot have a property interest in enforcement because she would not be authorized to
instruct the police to refrain from enforcement in the event of a violation. Ante, at 770. The right to insist on the provision of a service is separate
from the right to refuse the service. For example, compulsory attendance laws deny minors the right to refuse to attend school. Nevertheless, we
have recognized that minors have a property interes t in public education and that school officials must therefore follow fair procedures when they 3/6/2017Castle Rock v. Gonzales, 545 US 748 - Supreme Court 2005 - Google Scholar
https://scholar.google.com/scholar_case?case=1309657126830786 6226&q=Castle+Rock+v.+Gonzales,+545+US+748+(2005)&hl=en& as_sdt=1006 17/17
seek to deprive minors of this valuable benefit through suspension. See Goss, 419 U. S. 565 . In the end, JUSTICE SOUTER overlooks the core
purpose of procedural due process—ensuring that a c itizen's reasonable reliance is not frustrated by arbitrary government action.
[21]
See Logan v. Zimmerman Brush Co., 455 U. S. 422, 432 (1982) ("`"While the legislature may elect not to confer a property interest, . . . it may
not constitutionally authorize the deprivation of s uch an interest, once conferred, without appropriat e procedural safeguards"'").
[22]
See Fuentes v. Shevin, 407 U. S. 67, 81 (1972) ("[W]hen a person has an opportunity to speak up i n his own defense, and when the State
must listen to what he has to say, substantively unfair and simply mistaken deprivati ons of property interests can be prevented" (emphas is added));
Bell
v. Burson, 402 U. S. 535, 542 (1971) ("It is a proposition which hardly seems to need e xplication that a hearing which excludes considerat ion of
an element essential to the decision whether licens es of the nature here involved shall be suspended d oes not meet [the] standard [of due
process]"); Goldberg
v. Kelly, 397 U. S. 254, 271 (1970) ("[T]he decisionmaker's conclusion as to a recipie nt's eligibility must rest solely on the legal
rules and evidence adduced at the hearing"); cf. ibid. ("[O]f course, an impartial decision maker is esse ntial").
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