Town of Castle Rock, Colorado v. Gonzales
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Town of Castle Rock, Colorado v. Gonzales
___ U.S. ___ (June 27, 2005)
Justice SCALIA delivered the opinion of the Court.
We decide in this case whether an individual who has obtained a state-law restraining order has a constitutionally protected property interest in having the police enforce the restraining order
when they have probable cause to believe it has been violated.
I.
The horrible facts of this case are contained in the complaint that respondent Jessica Gonzales filed in Federal District Court. Respondent alleges that petitioner, the town of Castle Rock, Colorado, violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution when its police officers, acting pursuant to official policy or custom, failed to respond properly to her repeated reports that her estranged husband was violating the terms of a restraining order.
The restraining order had been issued by a state trial court several weeks earlier in conjunction with respondent’s divorce proceedings. The original form order . . . commanded [respondent’s husband] not to “molest or disturb the peace of [respondent] or of any child,” and to remain at least 100 yards from the family home at all times. . . .
According to the complaint, at about 5 or 5:30 p.m. on Tuesday, June 22, 1999, respondent's husband took the three daughters while they were playing outside the family home. . . . When respondent noticed the children were missing, she suspected her husband had taken them. At about 7:30 p.m., she called the Castle Rock Police Department, which dispatched two officers. “When [the officers] arrived . . . , she showed them a copy of the TRO and requested that it be enforced and the three children be returned to her immediately. [The officers] stated that there was nothing they could do about the TRO and suggested that [respondent] call the Police Department again if the three children did not return home by 10:00 p.m."
At approximately 8:30 p.m., respondent talked to her husband on his cellular telephone. He told her "he had the three children [at an] amusement park in Denver." She called the police again and
asked them to "have someone check for" her husband or his vehicle at the amusement park and "put out an [all points 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.
At approximately 10:10 p.m., respondent called the police and said her children were still missing, but she was now 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 12:50 a.m. and submitted an incident report. The officer who took the report "made no reasonable effort to enforce the TRO or locate the three children. Instead, he went to
dinner."
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, killing him.
Inside the cab of his pickup truck, they found the bodies of all three daughters, whom he had already murdered.
On the basis of the foregoing factual allegations, respondent brought an action under 42 U.S.C. § 1983, claiming that the town violated the Due Process Clause because its police department had "an
official policy or custom of failing to respond properly to complaints of restraining order violations" and "tolerate[d] the non-enforcement of restraining orders by its police officers." . .
.
Before answering the complaint, the defendants filed a motion to dismiss . . . . The District Court granted the motion . . . .
A panel of the Court of Appeals affirmed the rejection of a substantive due process claim, but found that respondent had alleged a cognizable procedural due process claim. . . . .
II.
The Fourteenth Amendment to the United States Constitution provides that a State shall not "deprive any person of life, liberty, or property, without due process of law." In 42 U.S.C. § 1983, Congress has created a federal cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." Respondent claims the benefit of this 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 due process by having a policy that tolerated nonenforcement of restraining orders.
As the Court of Appeals recognized, we left a similar question unanswered in DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189 (1989), another case with “undeniably tragic” facts: Local child-protection officials had failed to protect a young boy from beatings by his father that left him severely brain damaged. 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.” We noted, however, that the petitioner had not properly preserved the argument that–and we thus “decline[d] to consider” whether–state “child protection statutes gave [him] an ‘entitlement’ to receive protective services in accordance with the terms of the statute, an entitlement which would enjoy due process protection.”
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 clearly 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 understandings that stem from an independent source such as state law.”
A.
Our cases recognize that a benefit is not a protected entitlement if government officials may grant or deny it in their discretion. The Court of Appeals in this case determined that Colorado law
created an entitlement to enforcement of the restraining order because the "court-issued restraining order . . . specifically dictated that its terms must be enforced" and a "state statute
command[ed]" enforcement of the order when certain objective conditions were met (probable cause to believe that the order had been violated and that the object of the order had received notice of
its existence). . . .
. . . . In the context of the present case, the central state-law question is whether Colorado law gave respondent a right to police enforcement of the restraining order. . . .
. . . . The Tenth Circuit's opinion . . . did not draw upon a deep well of state-specific expertise, but consisted primarily of quoting language from the restraining order, the statutory text, and a state-legislative-hearing transcript. These texts, moreover, say nothing distinctive to Colorado, but use mandatory language that . . . appears in many state and federal statutes. 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 in New Jersey, Oregon, and Tennessee. . . . We proceed, then, to our own analysis of whether Colorado law gave respondent a right to enforcement of the restraining order.
B.
The critical language in the restraining order came not from any part of the order itself . . . but from the preprinted notice to law-enforcement personnel that appeared on the back of the order. That notice effectively restated the statutory provision describing "peace officers' duties" related to the crime of violation 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 protected person shall be provided with a copy of such order. A peace officer shall use every reasonable means to enforce a restraining
order.
(b) A peace officer shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of a restrained person when the peace officer has information
amounting to probable 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 described in paragraph (b) of this subsection (3), a peace officer shall assume that the information received from the registry 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."
The Court of Appeals concluded that this statutory provision . . . established the Colorado Legislature's clear intent “to alter the fact that the police were not enforcing domestic abuse retraining orders,” and thus its intent “that the recipient of a domestic abuse restraining order have an entitlement to its enforcement.” . . .
***
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 coexisted with apparently mandatory arrest statutes.
***
The deep-rooted nature of law-enforcement discretion, even in the presence of seemingly mandatory legislative commands, 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. This Court rejected out of hand the possibility that "the mandatory language of the ordinance . . . afford[ed] the police no discretion." It is, the Court proclaimed, simply "common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances."
Against that backdrop, a true mandate of police action would require some stronger indication from the Colorado Legislature than "shall use every reasonable means to enforce a restraining order" (or even "shall arrest ... or ... seek a warrant"). That language is not perceptibly more mandatory than the Colorado statute which has long told municipal chiefs of police that they “shall pursue and arrest any person fleeing from justice in any part of the state” and that they “shall apprehend any person in the act of committing any offense . . . and, forthwith and without any warrant, bring such person before a . . . competent authority for examination and trial.” 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 competing duties of that officer or his agency counsel decisively against enforcement in a particular instance. The practical necessity for discretion is particularly apparent in a case such as this one, where the suspected violator is not actually present and his whereabouts are unknown.
***
As one of the cases cited by the dissent recognized, "there will be situations when no arrest is possible, such as when the alleged abuser is not in the home." That case held that
Washington's mandatory-arrest statute required an arrest only in "cases where the offender is on the scene," and that it "d[id] not create an on-going mandatory duty to conduct an investigation" to
locate the offender. Colorado's restraining-order statute appears to contemplate a similar distinction, providing that when arrest is "impractical"–which was likely the case when the
whereabouts of respondent's husband were unknown–the officers' statutory duty is to "seek a warrant" rather than "arrest."
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 husband, having them seek a warrant for his arrest, or having them "use every reasonable means, up to and including arrest, to enforce the order's terms." Such indeterminacy is not the hallmark of a duty that is mandatory. Nor can someone be safely deemed "entitled" to something when the identity of the alleged entitlement is vague. The dissent, after suggesting various formulations of the entitlement in question, ultimately contends that the obligations under the statute were quite precise: either make an arrest or (if that is impractical) seek an arrest warrant. 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; much less can it be the basis for a property interest. After the warrant is sought, it remains within the discretion of a judge whether to grant it, and after it is granted, it remains within the discretion of the police whether and when to execute it. Respondent would have been assured nothing but the seeking of a warrant. This is not the sort of “entitlement” out of which a property interest is created.
***
Respondent's alleged interest stems only from a State's statutory scheme–from a restraining order that was authorized by and tracked precisely the statute on which the Court of Appeals relied. . . . If she was given a statutory entitlement, we would expect to see some indication of that in the statute itself. Although Colorado's statute spoke of "protected person[s]" such as respondent, it did so in connection with matters other than a right to enforcement. . . . Perhaps most importantly, the statute spoke directly to the protected person's power to "initiate contempt proceedings against the restrained person if the order [was] issued in a civil action or request the prosecuting attorney to initiate contempt proceedings if the order [was] issued in a criminal action." The protected person's express power to "initiate" civil contempt proceedings contrasts tellingly with the mere ability to "request" initiation of criminal contempt proceedings–and even more dramatically with the complete silence about any power to "request" (much less demand) that an arrest be made.
The creation of a personal entitlement to something as vague and novel as enforcement of restraining orders cannot "simply g[o] without saying." We conclude that Colorado has not created such an
entitlement.
C.
Even if we were to think otherwise concerning the creation 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 traditional 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 order enforced does not “have some ascertainable monetary value,” as even our “Rothtype property-as-entitlement” cases have implicitly required. Perhaps most radically, the alleged property interest here arises incidentally, not out of some new species of government benefit or service, but out of a function that government actors have always performed–to wit, arresting people who they have probable cause to believe have committed a criminal offense.
The indirect nature of a benefit was fatal to the due 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 benefits" (financial payments under Medicaid for certain medical services) triggered due process protections, the same was not true for the "indirect benefit[s]" conferred on
Medicaid patients when the Government enforced "minimum standards of care" for nursing-home facilities. "[A]n indirect and incidental result of the Government's enforcement action . . . does not
amount to a deprivation of any interest in life, liberty, or property." In this case, as in O'Bannon, "[t]he simple distinction between government action that directly affects a citizen's
legal rights . . . and action that is directed against a third party and affects the citizen only indirectly or incidentally, provides a sufficient answer to" respondent's reliance on cases that
found government-provided services to be entitlements. . . .
III.
We conclude, therefore, that respondent did not, for purposes of the Due Process Clause, have a property interest in police enforcement of the restraining order against her husband. . . .
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 reluctance to treat the Fourteenth Amendment as “a font of tort
law,” 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 (the
original source of §1983) did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado
are free to craft such a system understate law.
The judgment of the Court of Appeals is reversed.
The concurring opinion of Justice SOUTER, with whom Justice BREYER joins, and the dissenting opinion of Justice STEVENS, with whom Justice GINSBURG joins, are omitted.
