TOWN OF CASTLE ROCK, COLORADO, PETITIONER v. JESSICA GONZALES
[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.
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, issued on May 21, 1999, and served on respondent’s husband on June 4, 1999, commanded him 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. The bottom of the pre-printed form noted that the reverse side contained “IMPORTANT NOTICES FOR RESTRAINED PARTIES AND LAW ENFORCEMENT OFFICIALS.” The preprinted text on the back of the form included the following “WARNING”:
“A KNOWING VIOLATION OF A RESTRAINING ORDER IS A
CRIME … . A VIOLATION WILL ALSO CONSTITUTE
CONTEMPT OF COURT. YOU MAY BE ARRESTED WITHOUT NOTICE IF A LAW
ENFORCEMENT OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT YOU HAVE
KNOWINGLY VIOLATED THIS ORDER.”
The preprinted text on the back of the form also included a “NOTICE TO LAW ENFORCEMENT OFFICIALS,” which read in part:
“YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS
RESTRAINING ORDER. YOU SHALL ARREST, OR, IF AN ARREST WOULD BE
IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK A WARRANT FOR THE
ARREST OF THE RESTRAINED PERSON WHEN YOU HAVE INFORMATION
AMOUNTING TO PROBABLE CAUSE THAT THE RESTRAINED PERSON HAS
VIOLATED OR ATTEMPTED TO VIOLATE ANY PROVISION OF THIS ORDER
AND THE RESTRAINED PERSON HAS BEEN PROPERLY SERVED WITH A COPY
OF THIS ORDER OR HAS RECEIVED ACTUAL NOTICE OF THE EXISTENCE OF
On June 4, 1999, the
state trial court
modified the terms of the restraining order and made it
permanent. The modified order gave respondent’s husband
the right to spend time with his three daughters (ages 10, 9,
and 7) on alternate weekends, for two weeks during the summer,
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. No advance arrangements had been made for him to see the daughters that evening. 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. The complaint continues: “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.”
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
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.”
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
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.” The complaint also alleged
that the town’s actions “were taken either willfully,
recklessly or with such gross negligence as to indicate wanton
disregard and deliberate indifference to”
respondent’s civil rights....
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.” 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 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. (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.”
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.” Such entitlements are “
Our cases recognize that a benefit is not a protected entitlement if government officials may grant or deny it in their discretion...
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 Fourteenth
Amendment. That determination, despite its state-law
underpinnings, is ultimately one of federal constitutional 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.” 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 Colorado law gave respondent a right to police
enforcement of the restraining order....
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. That notice effectively restated the statutory provision describing “peace officers’ duties” related to the crime of violation of a restraining order....
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.
“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, including 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 lawfully decline to make an arrest....
Respondent does not
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.... This is not the sort of “entitlement” out of which a
property interest is created....
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.
Even if we were to
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, the
right to have a restraining order enforced does not “have
some ascertainable monetary value,” as even our
“Roth-type property-as-entitlement” cases have
implicitly required. Perhaps most
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....
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 “
Justice Stevens, with whom Justice Ginsburg joins, dissenting.
The issue presented to us is much narrower than is suggested by the far-ranging arguments of the parties and their amici. Neither the tragic facts of the case, nor the importance of according proper deference to law enforcement professionals, should divert our attention from that issue. That issue is whether the restraining order entered by the Colorado trial court on June 4, 1999, created a “property” interest that is protected from arbitrary deprivation by the Due Process Clause of the Fourteenth Amendment.
It is perfectly clear, on the one hand, that neither the 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. (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 private security firm, obligating the firm to provide protection to respondent’s family; respondent’s interest in such a contract would unquestionably 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 respondent an entitlement to mandatory individual protection by the local police force, that state-created right would also qualify as “property” entitled to constitutional protection....
question in this case is
therefore whether, as a matter of Colorado law, respondent had
a right to police assistance comparable to the right she would
have possessed to any other service the government or a private
firm might have undertaken to provide.
There was a time
when our tradition
of judicial restraint 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 police
enforcement of the restraining order,”
it has chosen to ignore our settled practice by providing its
own answer to that question....
Given that Colorado
law has quite
clearly eliminated the police’s discretion to deny
enforcement, respondent is correct that she had much more than
a “unilateral expectation” that the restraining order
would be enforced; rather, she had a “legitimate claim of
entitlement” to enforcement....
Police enforcement of a restraining order is a government service that is no less concrete and no less valuable than other government services, such as education. 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 principles that underlie our due process jurisprudence. In this case, Colorado law guaranteed the provision of a certain service, in certain defined circumstances, to a certain class of beneficiaries, and respondent reasonably relied on that guarantee. As we observed in Roth, “[i]t is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined.” 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 basis for refusing to consider it “property” worthy of constitutional protection.
had a property
interest in the enforcement of the restraining order, state
officials could not deprive her of that interest without
observing fair procedures. Her description
of the police behavior in
this case and the department’s callous policy of failing
to respond properly to reports of restraining order violations
clearly alleges a due process violation....
Accordingly, I respectfully dissent.