Petition for Writ of Certiorari — Castle Rock v. Gonzales

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Supreme Court, U.S.

FILED

O4 278 AUG2 7 2004

No. _OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

TOWN OF CASTLE ROCK, COLORADO,

Petitioner,

Vv.

JESSICA GONZALES, individually and as next best friend of

her deceased minor children REBECCA GONZALES,

KATHERYN GONZALES, AND LESLIE GONZALES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

THOMAS S. RICE JOHN C. EASTMAN

ERIC M. ZIPORIN c/o Chapman University

Counsel of Record School of Law

Senter Goldfarb & Rice, L.L.C. One University Drive

P.O. Box 22833 Orange, CA 92866

mane ERIK S. JAFFE

Erik S. Jaffe, P.C.

5101 34th Street, NW

Washington D.C. 20008

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether, in conflict with decisions of the Sixth, Sev-

enth, Eighth, and D.C. Circuits, the Tenth Circuit’s deci-

sion permitting a procedural due process claim against a

local government for its failure to protect the holder of a

partial restraining order from private violence, when the

State itself provides no such remedy, so circumvents as

to effectively repudiate this Court’s holding in DeShaney

rejecting a similar substantive due process claim?

2. If the Fourteenth Amendment’s Due Process Clause

is read to permit, via its procedural aspects, the same

substantive claims already rejected by this Court in De-

Shaney, what kind of process is required for police inac-

tion with respect to a partial restraining order not to vio-

late the constitution?

-_&

PARTIES TO THE PROCEEDING

Petitioner: Town of Castle Rock, Colorado, a Colorado

home rule municipal corporation.

- Jessica Gonzales, individually and as next

friend of her deceased minor children Rebecca Gonzales,

Katheryn Gonzales, and Leslie Gonzales.

w: Aaron Ahlfinger, Robert S.

Brink, and Marc Ruisi, current or former members of the

Town of Castle Rock Police Department.

ici w: Colorado Municipal League;

Colorado Counties, Inc.; and Colorado Association of Chiefs

of Police.

TABLE OF CONTENTS

QUIESTIONS PRESENTED ..0......0.0.0cccccecececsccscceseececeeees i

TABBLE OF AUTHORITIES .........0.....c.cccececeseccscscscecosescesecee. Vv

I 2

STATEMENT OF JURISDICTION 000.0.0.0..ccccccccocccosecsceoeeeees 2

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS .o.0.0....ccccccccseees 2

STATEMENT OF the CASE ..0.........cccccocssescessccssscssoseesecossce 4

REASONS FOR GRANTING THE WRIT oo... oooocccoces. 11

I. By Holding that Castle Rock’s Failure to

a Partial Restraining Order Gave _—

eng Due Process Claim, The Tenth

ircuit Has Decided an Important Federal

— Left Open in DeShaney, and Seriously

ndermined DeShaney’s Principal Holding in the

pepe pe hecnntntens 8 pillbentialaiadiadabebetesbecsenesedetmanecscesces 14

. Shaney not e

declined to oe ae

process claim sanctioned by the Tenth

B. The Tenth Circuit’s decision would convert

hundreds of procedural mandates into

Te 15

II. The Tenth Circuit’s Decision Is in Conflict wi

the Decisions of the Sixth, Seventh, Eighth, “

D.C. Circuits, All of which Have Rejected

Efforts To Use Procedural Due Process Claims

in Order To Circumvent DeShaney’s Bar on

Substantive Due Process Claims for a

Ill. The Tenth Circuit’s Decision Also Raises

Issues About the Kind of Process that

Would Be, or Possibly Could Be, Due Before a

State Actor Fails To Act. ........-.cc.csseseesneensnnnnnnennnnnnes 23

CONCLUSION ........ccecceeseesseseeceesseesssneneennnnnsensnnnnenenenannnnnnns 25

Appendix A: Tenth Circuit En Banc Opinion ..........---+---+- la

Appendix B: Supplemental Order On Rehearing..........-... 95a

Appendix C: Order on Rehearing En Bante ...........--+---+---- 97a

Appendix D: Tenth Circuit Pane] Opinion............----+---++-- 99a

Appendix E: District Court Opinion ............----------sre- 113a

Appendix F: Complaint ............---s--s-ssssesssssseneenrsnnennnsenee 124a

TABLE OF AUTHORITIES

Cases

Archie v. City of Racine

2 $f 8 ES ewer ene 9,11

Balistreri v. Pacifica Police Dep't

of 12

Balistreri v. Pacifica Police Dep't

897 F.2d 368 (CA9 1990)

(replacing 855 F.2d 1421 (CA9 1988)) ..........ccccccccccceeeeeees 12

Balistreri v. Pacifica Police Dep't

In UT I ical arnesslbineees 12

Board of Regents of State Colleges v. Roth

I 7, 8, 10

Carnegie-Mellon University v. Cohill

I 24

Coffman v. Wilson Police Dep't

739 F. Supp. 257 (E.D. Pa. 1990).........ccccccccccseseeseeenees 12, 18

County of Sacramento v. Lewis

TTT Se cea aN Dea ED 10

DeShaney v. Winnebago County Dept. of Soc. Servs.

eR EC TTS ILE ae RD 2, 6, 14

Doe by Fein v. District of Columbia

FR) od 10, 20, 22

Doe by Nelson v. Milwaukee County

ET EE eee 19, 22, 23

Doe v. Hennepin County

BO FA BSES CAB 19GB) annacacceccccsecccctecececeseccessesesecese 9,21

Doe v. Milwaukee County \

GOS F.2b GBD (CAT 198 )..ncrcccrrescecccececccesceccccsscccscsssecs 10-11

Fike v. United Methodist Children’s Home of Va., Inc.

547 F. Supp. 286 (E.D. Va. 1982) ............ccseresensenenennennnnens 24

Grabowski v. Brown

G22 F.28 1GB7 (CAS 1GBD)..02ccccccccccesccscnesccccsescressonsensenseess 12

Harrill v. Blount County, Tenn.

SS P34 112D COAG 1999S) .nccoccreccresccresssccscsrsescssoeses 10, 21, 22

Hynson v. City of Chester Legal Dep't

864 F.2d 1026 (CA3 1988)...........cccccccceecsereseenensernennees 12, 13

Jones v. Union County, Tenn.

296 F.3d 417 (CA6 2002)..........ccccccceeeeeenees 10, 12, 13, 20, 22

Mathews v. Eldridge .

POL GO 0) 10

Matthews v. Pickett County, Tenn.

996 S.W2E 162 CHGER. 1999) .ncccerccessseervceccccsscessssesssecsssees 10

McKee v. City of Rockwell

Uh | JL) a 12

Meador v. Cabinet for Human Res.

bt fe) 18

Morrissey v. Brewer

. (Rf, 15

Olim v. Wakinekona

461 U.S. 238 (1983)......... ME nt AEM RRs BOE 9

Pierce v. Delta County Dep't of Social Servs.

119 F. Supp.2d 1139 (D. Colo. 2000) .........-.-ceceneneees 11,21

Reno v. Flores

GBT U.S. 292 (1993) ..020000-ccccccesccessseseccsoccsocossssssssssessssoness 10

Vii

Ricketts v. City of Columbia, Missouri

ee OP I BO ictecstcttcenssieaninsinatensitstasteeessanecne 13

Semple v. City of Moundsville

963 F. Supp. 1416 (N.D. W.Va. 1997)... ccccccesceee. 11,21

Siddle v. City of Cambridge

761 F. Supp. 503 (S.D. Ohio 1991)... o.cccccccceccsecseceeceeeeeeees 18

Taylor v. Ledbetter

DO ue FOO GARE GIGI P esiciccsescccnsdclvecsevcssiibcsceskeiesnensites 18

Thurman v. City of Torrington

595 F. Supp. 1521 (D. Comm. 1984) o.oo. ecccccccccecceseseseeoees 12

United States v. Munsingwear, Inc.

RAEN EET TS ONTO CTT I Oe OEE 24

Watson v. City of Kansas City

S57 FBG GED GCA ID BGG) sce cncecnscctncsiconenescreceinssnesseseose 12

Statutes

| ES TNS Ce a ee EE 2

BB. § DTD oaececscnccencssnsnisvssoens dnahatasaidatadincdaiideenibbiinnndtetin 2

Te PE iy ee ee 2

rN IED sctcisinitinsadbinsenenvirlicbicsniecthes tnbasachstiidlbtleag Bi a i * 2

I estictcinintnidanitiidalicebbiabeninihs mdb te ita, 24

LENO Ae NT TPO arr 2,5

FSO GL. Comp. Stat. 600806 ........ccececescscecccsscccsesecevscesescsssessvees 15

Ark. Code Ann. § 18- 16-507 .0.0.......ccccccccsescesesescececerseseseeeeeeenes 16

I Oe. 18

I i 3

I a 18

SESE SORE ne Pees 3,5,7

Vili

Cees. 1S BRE coccsssttnincnhinnenicrnicinabiieaittaipeniinsinadititeidiiluniliie 15

SS eilaciity: UP SN IIIUN I erst cintreicenpncenticiacnhesestiniiatetinenimsielaiiainn tla 15

D.C. CODE ANN. § 1301.05(e)

(formerly D.C. CODE ANN. § 6-2103(€)) ........cccccccccceeees 20

D.C. CODE ANN. § 6-2102(D)...........ccccccsseeeeeeseeseeeseeeesees 20, 22

D.C. CODE ANN. § 6-2105(a) ...........cccsccesseesecesserereeeeeneeeees 20

GS, TERR: © BP Gi ccetctnctsvennctenciorsicennsiigiialiainabiains 17

ee as ete Sen to 17

FE TER ER eum sen ase ane 17

Mass. Gen. Laws. ch. 209A, § 7...........:ccccccssscessseescereenseeneenes 15

ERD. Gas hn, A, Ri i cncriettssitiitentcterrnencsenstsbibititentiitnnions 17

Me. Rev. Stat. Ann. tit. 7 § 3906-B(11) ..........cccccccccseeeseeseneoes 15

a ee I cctenintilihindeittitatis sis ainctdataenpimstiiiihtelesl 15

ED, RAR, GUD, BG cccccitesetntnicinsinccnintetnidssviaicnsiatss tends 21

Fe ee iiiitaiticntiretsnddsscivenrintintciccercsicuditatangiiadentinces 17

' § 5 4): S Ene Mie tla 16

N.J. Stat. Ann. § 2C:25-23 (West Supp. 1992) .............cccccceees 16

Fe FE | | er ae eS 16

8S FS Fw a meee Se 15

COUR, BRDU. TRB, BH ED ccscctcnccvcccsseccocsontenioniencsntuninnnane 15

Tenn. Code. Ann. § 36-3-61 1(a)(2)......cccccccccccccsececesseeeeeeeeeneees 16

ETT, Ne Ae a 16

Wis. Stat. Ann. § 48.981(3)(C) ........cccccccccecseceeseceseeeeeenennes 19, 22

Other Authorities

Caitlin E. Borgmann, Battered Women’s Substantive

Due Process Claims: Can Orders of Protection

Deflect DeShaney? 65 N.Y.U. L. Rev. 1280

iit eituncolentelctibeseectesntnbsdepaptadboveddnagenndthsienetantrsabereces

Developments in the Law: Legal Responses to Do-

mestic Violence, Part TV, 106 HARV. L. REV. 1551

SE See iriaincesceinetianiiaguinandiietamigrsieiaeementreneeee

Helen Rubenstein Holden, Comment, Does the Legal

System Batter Women? Vindicating Battered

Women’s Constitutional Rights to Adequate Po-

lice Protection, 21 Ariz. St. L.J. 705 (1989) .........000000

James T. R. Jones, Battered Spouses’ Section 1983

Damage Actions Against the Unresponsive Police

After DeShaney, 93 W. Va. L. Rev. 251 (1991)..........

No.

IN THE

Supreme Court of the United States

TOWN OF CASTLE ROCK, COLORADO,

Petitioner,

JESSICA GONZALES, individually and as next best friend of

her deceased minor children REBECCA GONZALES,

KATHERYN GONZALES, AND LESLIE GONZALES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Town of Castle Rock, Colorado (“Castle

Rock”)' respectfully requests that a writ of certiorari issue to

review the judgment and opinion of the en banc United

States Court of Appeals for the Tenth Circuit entered in this

case. The Tenth Circuit, in conflict with four other Circuits,

' The complaint and decisions below erroneously refer to petitioner as

“City of Castle Rock, Colorado.” “Town of Castle Rock, Colorado” is

the correct name of the municipal corporation.

permitted a procedural due process claim premised on a lo-

cal government’s failure to protect against private violence,

despite the fact that this Court in DeShaney v. Winnebago

County Dep't. of Soc. Servs., 489 U.S. 189 (1989), has al-

ready refused to permit substantive due process claims in

similar factual circumstances.

OPINIONS BELOW

The opinion of the court of appeals is reported at 366

F.3d 1093 (CA10 2004) (en banc) (Petitioners’ Appending

(“Pet. App.”) at la-94a). The panel opinion of the court of

appeals is reported at 307 F.3d 1258 (CA10 2002) (Pet. App.

at 99a-112a). The order of the district court dismissing the

complaint with prejudice is unreported, but is reproduced at

Pet. App. 124a-130a.

STATEMENT OF JURISDICTION

The decision of the United States Court of Appeals for

the Tenth Circuit, sitting en banc, was entered on April 29,

2004 (Pet. App. 1a). A timely request for extension, filed on

July 14, 2004, was granted by Justice Breyer on July 20,

2004, extending the time in which to file this petition until

August 27, 2004. The jurisdiction of this Court is proper un-

der 28 U.S.C. § 1254(1). Jurisdiction in the court of appeals

was proper under 28 U.S.C. § 1291, and jurisdiction in the

district court was proper under 42 U.S.C. § 1983 and 28

U.S.C. §§ 1331 and 1343.

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Due Process Clause of the Fourteenth Amendment

provides:

No State shall . . . deprive any person of life, liberty

or property, without due process of law ....

Section 14-10-108 of the Colorado Revised Statutes pro-

vides, in relevant part:

(1) In a proceeding for dissolution of marriage, .. .

(2) . . . either party may request the court to issue a

temporary injunction: . . . (b) Enjoining a party from

molesting or disturbing the peace of the other party or

of any child; ....

Section 18-6-803.5(3) of the Colorado Revised Statutes pro-

vides, in relevant part:

(a) Whenever a protection order is issued, the pro-

tected person shall be provided with a copy of such

order. A peace officer shall use every reasonable

means to enforce a protection order.

(b) A peace officer shall arrest, or, if an arrest would

be impractical under the circumstances, seek a war-

rant 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 at-

tempted to violate any provision of a protettion or-

der; and

(I) The restrained person *as been properly

served with a copy of the protection order or the re-

strained person has received actual notice of the exis-

tence and substance of such order.

scribed in paragraph (b) of this subsection (3), a

peace officer shall assume that the information re-

ceived from the registry is accurate. A peace officer

shall enforce a valid protection order whether or not

there is a record of the protection order in the regis-

try.

(d) The arrest and detention of a restrained person is

governed by applicable constitutional and applicable

state rules of criminal procedure. The arrested person

shall be removed from the scene of the arrest and

shall be taken to the peace officer’s station for book-

ing, whereupon the arrested person may be held or

released in accordance with the adopted bonding

schedules for the jurisdiction in which the arrest is

made. The law enforcement agency or any other lo-

cally designated agency shall make all reasonable ef-

forts to contact the protected party upon the arrest of

the restrained person. The prosecuting attorney shall

present any available arrest affidavits and the crimi-

nal history of the restrained person to the court at the

time of the first appearance of the restrained person

before the court.

(e) The arresting agency arresting the restrained per-

son shall forward to the issuing court a copy of such

agency’s report, a list of witnesses to the violation,

and, if applicable, a list of any charges filed or re-

quested against the restrained person. The agency

shall give a copy of the agency’s report, witness list,

and charging list to the protected party. The agency

shall delete the address and telephone number of a

witness from the list sent to the court upon. request of

such witness, and such address and telephone number

shall not thereafter be made available to any person,

except law enforcement officials and the prosecuting

agency, without order of the court.

STATEMENT OF THE CASE

In DeShaney, this Court held that the substantive compo-

nent of the Due Process Clause of the Fourteenth Amend-

ment did not provide a cause of action against state and local

governments and government officials for failure to protect

—_

individuals from the violent acts of other private individuals

(other than under special circumstances not at issue here).

Nevertheless, on June 23, 2000. Respondent Jessica Gonza-

les brought such a suit in the United States District Court for

the District of Colorado against Petitioner Town of Castle

Rock and three of its police officers (collectively, “Castle

Rock defendants”), seeking $30 million in compensatory

damages (as well as punitive damages and attorneys fees)

from the Castle Rock defendants after her three children

were tragically murdered by her then-estranged husband,

Simon Gonzales. Pet. App. 129a.

At the conclusion of their state-court divorce proceed-

ings, Mr. Gonzales had been issued a perfunctory, standard-

form partial restraining order directing him to avoid contact

with Ms. Gonzales and her children other than during his au-

thorized “parenting time” every other weekend, for two

weeks during the summer, and during a pre-arranged, ad-

vance notice mid-week dinner visit. Complaint { 9 (Pet. App.

125a). Ms. Gonzales contended in her federal complaint that

the partial restraining order, together with Colorado Revised

Statutes § 18-6-803.5(3), bestowed upon her and her children

a “property right” to police protection, and that the failure of

Castle Rock police officers to protect her children (by arrest-

ing Mr. Gonzales after Ms. Gonzales informed the police

that he had taken the children around dinner-time on a Tues-

day evening) “constituted a denial of the due process rights

of [Ms. Gonzales] and the three children in violation of the

Due Process Clause of the Fourteenth Amendment .. . and

42 U.S.C. § 1983.” Complaint JJ 18, 20 (Pet. App. 128a).”

? Curiously, Ms. Gonzales did not allege in her complaint that she ever

notified the police that Mr. Gonzales was actually in violation of the re-

straining order. She alleged only that Mr. Gonzales had taken the chil-

dren mid-week around dinner time without her permission. Complaint

{ 10 (Pet. App. 126a). She did not allege that she had informed the police

that she had not given her permission for the dinner-time visit, but simply

The Castle Rock defendants moved to dismiss the com-

plaint, contending that it failed to state a claim, that the indi-

vidual police officers were entitled to qualified immunity,

and that Ms. Gonzales had not alleged facts sufficient to es-

tablish municipal liability by the Town of Castle Rock. Pet.

App. 116a. After briefing and a hearing, the district court

(Daniel, J.) dismissed the case with prejudice for failure to

state a claim. Pet. App. 123a.

Although Ms. Gonzales had only generically alleged a

violation of her Due Process rights, Complaint { 20 (Pet.

App. 128a), the district court treated the complaint as having

alleged violations of both the substantive and procedural

components of the Due Process Clause, Pet. App. 117a,

120a. The court dismissed the substantive Due Process

claim, correctly holding that, under DeShaney, a State’s fail-

ure to protect an individual from private violence does not

violate substantive due process absent circumstances not ap-

plicable in this case. Pet. App. 119a.

Recognizing that this Court’s holding in DeShaney was

limited to the substantive component of the Due Process

Clause, Pet. App. 120a n.2 (citing DeShaney, 489 U.S., at

195 n.2), the district court separately considered whether Ms.

Gonzales’s complaint raised a procedural due process claim,

namely, whether Castle Rock, by failing to enforce the par-

tial restraining order as specified by state law, deprived her

of a property interest in police protection without proper pro-

cedure, Pet. App. 120a. Finding that the enforcement obliga-

alleged that she showed to the police the restraining order, which ex-

pressly allowed mid-week dinner visits. Complaint {J 9, 11-12 (Pet. App.

125a, 126a). Based on these allegations, the police might reasonably have

believed that Mr. Gonzales was not in violation of the order, either be-

cause he had not been served with it, or because he had permission for

the Tuesday dinner visit, or because Ms. Gonzales had, contrary to the

terms of the restraining order (see Pet. App. 92a), unreasonably denied

permission for a mid-week dinner visit.

tions contained in the Colorado statute arise only upon a

finding of probable cause by the police, the district court

held that the Ms. Gonzales did not have a protectable prop-

ety interest and that here complaint therefore did not allege

facts sufficient to support a violation of the procedural com-

ponent of the Due Process Clause. Pet. App. 1 22a.

On timely appeal after final judgment was entered, a

panel of the United States Court of Appeals for the Tenth

Circuit (Seymour, J., joined by McWilliams and Gibson,’

JJ.) agreed with the district court that DeShaney barred Ms.

Gionzales’s substantive due process claim, but reversed the

district court’s holding that the procedural due process claim

was likewise barred. Pet. App. 106a. Relying on the fact that

the procedural due process claims had technically been left

unaddressed in DeShaney, and distinguishing the decisions

oif two other circuit courts of appeals that had refused to

permit DeShaney to be circumvented by the simple expedi-

emt of recasting substantive due process claims in procedural

due process garb, the panel held that the use of the manda-

tory “shall” in Colorado Revised Statutes § 18-6-803.5(3)

giave Ms. Gonzales an “entitlement” to police protective ser-

Viices that enjoyed procedural due process protection against

State deprivation under Board of Regents of State Colleges v.

Rioth, 408 U.S. 564 (1972). Pet. App. 106a-11 la.

The Tenth Circuit granted the Castle Rock defendants’

petition for rehearing en banc aud ordered additional briefing

to address “1) whether CRS 18-6-803.5(3) in conjunction

with the restraining order issued by the Colorado court cre-

ated a property interest entitled to due process protection

amd, 2) if so, what process was due.” Pet. App. 98a. After re-

argument, a closely-divided, 6-5 en banc court followed the

* Hon. John R. Gibson, Circuit Judge, United States Court of Appeals for

the Eigh’h Circuit, sitting by designation.

panel’s lead and reversed the district court’s dismissal of Ms.

Gonzales’s procedural due process claim.‘

Judge Seymour, writing for the 6-member en banc ma-

jority, rebuffed Castle Rock’s contention that the panel's de-

cision had in effect “carved out an exception ¢=,: rary to De-

Shaney and the general rule that the state doe’ ..ot have an

affirmative duty to protect individuals from private third par-

ties,” Pet. App. 9a, holding instead that the partial restraining

order, coupled with the statutory enforcement mechanism,

conferred on Ms. Gonzales and her daughters “an interest in

a specific benefit to which [they had] ‘a legitimate claim of

entitlement,” Pet. App. 13a (quoting Roth, 408 U.S., at 577).

Relying on two district court decisions and “[s]omewhat

analogous cases from the Sixth and Eleventh Circuits,” and

rejecting contrary holdings from the Sixth, Seventh, and

D.C. Circuits, Judge Seymour then held that Castle Rock’s

failure to afford Ms. Gonzales “an appropriate level of proc-

ess” before failing to protect Ms. Gonzales’s children from

the private violence of her estranged husband and their father

violated Ms. Gonzales’s procedural due process rights,

thereby conferring upon Ms. Gonzales a federal constitu-

tional remedy against Castle Rock. Pet. App. 10a, 30a, 42a-

43a. Procedural due process required Castle Rock to afford

notice and a hearing to Ms. Gonzales before it failed to en-

force the partial restraining order that had been issued to Mr.

Gonzales, held Judge Seymour. Pet. App. 32a. Judge Sey-

mour also recognized, however, that because no “reasonable

officer would have known that a restraining order, coupled

with a statute mandating its enforcement, would create a

* The en banc court was not asked to address the district court's dismissal

of Ms. Gonzales’s substantive due process claim and the panel's affir-

mance of that aspect of the district court’s holding, so the panel decision

affirming dismissal remains undisturbed. Pet. App. 9a n. 3. Thus, any

challenge to DeShaney’s substantive due process holding has been

waived and is not an issue in this case.

constitutionally protected property interest,” the individual

police officers (though not the Town of Castle Rock itself)

were entitled to qualified immunity. Pet. App. 43a.

Four separate opinions were filed by the five dissenting

judges.

Judge Kelly, joined by Chief Judge Tacha and Judge

O’Brien, thought it “improbable . . . that Ms. Gonzales

sought only a hearing on the decision not to enforce the pro-

tective order”—the procedural due process claim allowed by

the majority—”" rather than enforcement itself’—the substan-

tive due process claim unanimously rejected by the court per

DeShaney. Pet. App. 46a. Nevertheless, he considered and

rejected the procedural due process claim, noting that “[i}t

has always been the law that mere procedure contained in a

statute does not create a property interest—were it otherwise

every statute prescribing procedure would confer procedural

due process rights.” Pet. App. 48a (citing Olim v. Wakine-

kona, 461 U.S. 238, 250-51 (1983)). He found that the Colo-

rado statute, viewed as a whole, did not mandate a particular

result and therefore did not create a protectable property in-

terest or give rise to a procedural due process claim. Pet.

App. 49a. He found the majority’s decision to the contrary to

be in conflict with, among other cases, the Eighth Circuit's

decision in Doe v. Hennepin County, 858 F.2d 1325, 1328

(CA8 1988), and he found the majority’s insistence that Cas-

tle Rock should have afforded notice and a hearing to Ms.

Gonzales before failing to enforce the protective order an

“utter impracticality” at odds with the en banc decision of

the Seventh Circuit in Archie v. City of Racine, 847 F.2d

1211, 1217 (CA7 1988) (en banc). Pet. App. 51a, 58a.

Judge McConnell, joined by Chief Judge Tacha and

Judges Kelly and O’Brien, dissented to note that even if the

restraining order coupled with the Colorado statute created a

property interest, Ms. Gonzales’s complaint raised only a

substantive and not a procedural due process claim. “Only

when a plaintiff asserts that government action is proce-

durally unfair—usually for lack of a hearing—does the bal-

ancing test of Mathews v. Eldridge, 424 U.S. 319, 333-35

(1976), invoked by the majority [rather than the more strin-

gent ‘shocks the conscience’ test of County of Sacramento v.

Lewis, 523 U.S. 833 (1998)] . . . apply,” wrote Judge

McConnell, “yet Ms. Gonzales’s complaint contains no ref-

erence to procedural issues in any form.” Pet. App. 60a. He

believed that the majority’s holding to the contrary was at

odds with Lewis, 523 U.S. at 846, and that the substantive

relief sought by Ms. Gonzales was “in marked contrast” to

the procedural relief sought in “the Supreme Court’s proce-

dural due process cases, on which the majority relie[{d].” Pet.

App. 63a (citing, e.g., Roth, 408 U.S. 564 (1972)). Signifi-

cantly, Judge McConnell noted that “[i)f the majority is cor-

rect, it will always be possible for plaintiffs to recharacterize

their substantive due process claims against arbitrary action

by executive officials as ‘procedural due process’ claims,

thus avoiding the Supreme Court’s exacting ‘shocks the con-

science’ test and getting, instead, the balancing test of

Mathews”—a maneuver rejected by this Court in Reno v.

Flores, 507 U.S. 292, 308 (1993). Pet. App. 65a.

Judge O’Brien, joined by Chief Judge Tacha and Judge

Kelly, stated in his dissenting opinion that the majority’s de-

cision left the Tenth Circuit “both adventurous and alone,

dramatically separated from other circuits.” Pet. App. 67a.

He noted that the majority’s decision ignored the guiding

principles announced in DeShaney and was in conflict with

decisions from the Sixth, Seventh, and D.C. Circuits as well

as the Supreme Court of Tennessee, the District of Colorado,

and the Northern District of West Virginia. Pet. App. 67a.°

* Citing Jones v. Union County, Tenn., 296 F.3d 417, 429 (CA6 2002);

Matthews v. Pickett County, Tenn., 996 S.W.2d 162 (Tenn. 1999); Doe

by Fein v. District of Columbia, 93 F.3d 861 (CADC 1996); Harrill v.

Blount County, Tenn., 55 F.3d 1123, 1125 (CA6 1995); Doe v. Milwau-

Judge Hartz, joined by Chief Judge Tacha and Judge

Kelly, also dissented to caution courts against reading “full

enforcement” statutes such as the Colorado statute at issue

here too literally. Referencing the classic work on the subject

by Professor Kenneth Culp Davis, Police Discretion, he

noted that even “full enforcement” statutes “permit the exer-

cise of police discretion regarding how much, and even

whether, to enforce particular criminal statutes.” Pet. App.

92a. Finally, he noted that even if Colorado’s statute could

be read to confer on Ms. Gonzales procedural due process

rights in connection with a decision whether to enforce the

partial restraining order, she was given all that procedural

due process could require under the circumstances: an oppor-

tunity to present evidence of the violation of the order and to

argue why an arrest was proper. Pet. App. 94a. To hold oth-

erwise, as the majority did, was to convert the procedural

due process claim into a substantive due process claim (con-

trary to DeShaney).

REASONS FOR GRANTING THE WRIT

Ever since this Court’s decision in DeShaney holding

that a State’s failure to protect individuals from private vio-

lence did not infringe substantive due process rights, advo-

cates for domestic violence victims have been trying to find

a way to pigeon-hole substantive claims for government's

failure to protect into one of the exceptions suggested in De-

Shaney.® They have, for example, unsuccessfully tried to es-

kee County, 903 F.2d 499 (CA7 1990); Archie v. Racine, 847 F.2d 1211

(CA7 1988); Pierce v. Delta County Dep't of Social Servs., 119 F.

Supp.2d 1139 (D. Colo. 2000); Semple v. City of Moundsville, 963 F.

Supp. 1416 (N_D. W.Va. 1997).

* See, ¢.g., James T. R. Jones, Battered Spouses’ Section 1983 Damage

Actions Against the Unresponsive Police After DeShaney, 93 W. VA. L.

REV. 251, 261-65 (1991); Caitlin E. Borgmann, Battered Women's Sub-

stantive Due Process Claims: Can Orders of Protection Deflect De-

Shaney?, 65 N.Y.U. L. REV. 1280, 1304-07 (1990).

tablish that every holder of a restraining order was in a “spe-

cial relationship” with the government akin to that of prison

inmates or institutionalized persons, which conferred on

them a substantive due process entitlement to protective ser-

vices.

They have also tried to establish, relying on footnote 3 in

the DeShaney opinion, that a State’s failure adequately to

enforce restraining orders violated Equal Protection guaran-

tees. * Some courts have rejected such claims outright.’ Oth-

ers have required evidence not only that the government had

a policy or custom of treating domestic violence victims less

favorably than victims of other violence, but that discrimina-

” See, e.g., Jones v. Union County, Tenn., 296 F.3d 417, 428 (CA6 2002)

(rejecting effort to “circumvent” DeShaney via “special relationship”

exception); Grabowski v. Brown, 922 F.2d 1097, 1114 (CA3 1990) (re-

jecting the plaintiff's claim that New Jersey’s Domestic Violence Act

created a relationship “akin to custody” between herself and police offi-

cers), see generally Helen Rubenstein Holden, Comment, Does the Legal

System Batter Women? Vindicating Battered Women's Constitutional

Rights to Adequate Police Protection, 21 Ariz. St. LJ. 705, 714-18

(1989); Borgmann, 65 N.Y.U. L. REV., at 1304-07. The Ninth Circuit

recognized a “special relationship” claim in Balistreri v. Pacifica Police

Dep't, 855 F.2d 1421, 1425 (CA9 1988), but withdrew and amended the

Opinion to reject the claim in the wake of DeShaney. Balistreri v.

Pacifica Police Dep't, 901 F.2d 696, 700 (CA9 1990).

* See, ¢.g., Coffman v. Wilson Police Dep't., 739 F. Supp. 257, 262 n.5

(E.D. Pa. 1990) (citing Hynson v. City of Chester, Legal Dep't, 864 F.2d

1026 (3d Cir.1988); Balistreri v. Pacifica Police Dep't, 897 F.2d 368

(CA9 1990) (replacing 855 F.2d 1421 (CA9 1988)); Watson v. City of

Kansas City, 857 F.2d 690 (CA10 1988); Thurman v. City of Torrington,

595 F. Supp. 1521 (D. Conn. 1984);

* See, e.g., McKee v. City of Rockwall, 877 F.2d 409, 413 (CAS 1989)

(holding that, although DeShaney did not directly bar an equal protection

claim for failure to protect, it “is nonetheless relevant” to equal protec-

tion analysis because plainuffs cannot “circumvent ... DeShaney by con-

verting every Due Process claim into an Equal Protection claim via an

allegation that state officers exercised their discretion to act in one inci-

dent but not in another’’).

tion against women was a motivating factor for the policy or

custom, before the court would subject the policy to the

heightened scrutiny applicable to gender classifications.'°

The latest strategy has been to claim that mandatory en-

forcement language in restraining orders and/or the statutes

directing enforcement of such orders creates a property right

in protective services, such that a State’s failure to enforce

the restraining order fully or adequately without notice or a

hearing violates procedural due process rights. Although

most courts to have considered the issue have recognized

such claims for what they are—yet another attempt to cir-

cumvent DeShaney—two district courts and the en banc

Court of Appeals for the Tenth Circuit in the present case

have now given their sanction to such claims, severely un-

dermining DeShaney in the process.

Certiorari is warranted here for several significant rea-

sons. First, as described in Part I below, the Tenth Circuit

has decided an important issue of federal constitutional law

that was expressly left open by this Court’s decision in De-

Shaney, and did so in a way that severely undermines the

guiding principles of DeShaney itself, with potentially devas-

tating consequences for municipal governments throughout

the Tenth Circuit. S.Ct. Rule 10(c). Second, as described in

Part Il_below, the Tenth Circuit’s decision is in conflict with

the decisions of several other circuit courts, as the majority

opinion itself in part recognized. S.Ct. Rule 10(a). Third, as

discussed in Part III, the Tenth Circuit’s decision has opened

up a hornets’ nest of issues with respect to the kind of proc-

ess that will now be required before a state agency fails to

act in any particular case. S.Ct. Rule 10(c).

2002) (citing Hynson v. City of Chester, Legal Dep't, 864 F.2d 1026,

1031 (CA3 1988); Ricketts v. City of Columbia, Missouri, 36 F.3d 775,

779 (CA8 1994) (citing Hynson).

Any one of these grounds is sufficient to warrant this

Court's review; collectively, they provide a compelling case

for certiorari. Indeed, the present circumstances are nearly

identical to those which prevailed when this Court granted

certiorari in DeShaney itself. See 489 U.S. at 194 (“Because

of the inconsistent approaches taken by the lower courts in

determining when, if ever, the failure of a state or local

governmental entity or its agents to provide an individual

with adequate protective services constitutes a violation of

the individual’s due process rights . . . and the importance of

the issue to the administration of state and local govern-

ments, we granted certiorari.”’).

I. By Holding that Castle Rock’s Failure to Enforce a

Partial Restraining Order Gave Rise to a Procedural

Due Process Claim, The Tenth Circuit Has Decided

an Important Federal Question Left Open in De-

Shaney, and Seriously Undermined DeShaney’s Prin-

cipal Holding in the Process.

A. DeShaney did not embrace, but merely declined to

consider, the procedural due proces’ claim sanc-

tioned by the Tenth Circuit.

In footnote 2 of its opinion in DeShaney, this Court de-

clined to consider whether a state statute might provide indi-

viduals with an “entitlement” to receive governmental pro-

tective services that would enjoy procedural due process pro-

tection under Roth. DeShaney, 489 U.S., at 195 n.2. One le-

gal scholar grappling with the import of that footnote has

contended that this Court therefore “[be]grudging[ly]” left

open the possibility that a State statute might create proce-

dural due process rights in protective services provided by

the State, such that a State’s inaction would violate the Due

Process Clause.'’ Although petitioners believe (and will con-

"' Jones, Battered Spouses, supra n. 6, at 308.

tend in their merits brief) that, by citing Vorrissey v. Brewer,

408 U.S. 471, 481 (1972), this Court in DeShaney properly

suggested a reluctance to take that step—at least outside the

context of willful and wanton conduct for which Colorado

law already provides a remedy'*"—the Tenth Circuit has read

footnote 2 in DeShaney as authorizing an exception large

enough to swallow the DeShaney rule itself. Whether or not

the Tenth Circuit is correct, it surely has decided an impor-

tant question of federal constitutional law that warrants this

Court’s attention. ,

EP. The Tenth Circuit’s decision would convert hun-

dreds of procedural mandates into constitutional

claims.

Under the Tenth Circuit’s reasoning, countless other do-

mestic abuse statutes already on the books will give rise to

constitutional claims asserting procedural due process viola-

tions.'* If allowed to stand, therefore, the Tenth Circuit’s de-

* Under the Colorado Governmental Immunity Act, §§ 24-10-101, et

seq., 7B C.R.S. (2003), a party claiming injury can bring a tort claim

against a law enforcement officer by alleging “willful and wanton” con-

duct. See Colo. Rev. Stat. § 24-10-118 (2003).

"8 See, e.g., 750 Il. Comp. Stat. 60/304 (“Whenever a law enforcement

officer has reason to believe that a person has been abused, neglected, or

exploited by a family or household member, the officer shall immediately

use all reasonable means to prevent further abuse, neglect, or exploita-

tion”); Maine Animal Welfare Act, Me. Rev. Stat. Ann. tit. 7 § 3906-

B(11) (“The commissioner, in cooperation with animal control officers,

shall investigate complaints of cruelty to animals and enforce cruelty-to-

animal laws”); Mass. Gen. Laws ch. 209A, § 7 (“Law enforcement offi-

cers shall use every reasonable means to enforce ... abuse prevention

orders”); Minn. Laws § 518B.01(e) (“A peace officer shall arrest without

a warrant and take into custody a person whom the peace officer has

probable cause to believe has violated [a domestic abuse protection] or-

der”); N.J. Stat. Ann. § 9:6-8.18 (“The Bureau oheep cengh ten ses

Shall receipt of [a] report [of suspicious injury to a child}, ac-

tion whens the safety of the child”); Ore. Rev. Stat. § 133.055(2)(a)

(“when a peace officer responds to an incident of domestic disturbance

cision would render DeShaney a dead letter and could bank-

rupt municipal governments in the process, given the inevi-

tability of less-than-perfect enforcement. Alternatively, the

decision could result in a weakening of state statutes for

which victims’ advocates have lobbied. Compare

N.J. Stat. Ann. § 2C:25-7 (1981) (repealed 1982), with id.

§ 2C:25-23 (West Supp. 1992); see also Developments in the

Law: Legal Responses to Domestic Violence, Part IV, 106

HARV. L. REV. 1551, 1564 n. 88 (May 1993) (New Jersey’s

action “may well be an example of how the prospect of the

enforcement of entitlement rights through liability suits may

in fact deter the kind of progressive legislation that battered

women seek”). rederal courts should not lay such a heavy

hand on evolving state efforts to address such quintessen-

tially local issues of crime and violence.

Nor is the Tenth Circuit’s reasoning limited to domestic

violence statutes. A police officer’s failure to eject a tres-

passer would give rise to constitutional liability in the face of

mandatory statutory language coupled with a specific eject-

ment order.'* Police discretion in enforcing noise ordinances

and has probable cause to believe that an assault has occurred between

family or household members, . . . the officer shall arrest and take into

custody the alleged assailant”); Tenn. Code Ann. § 36-3-611(a)(2) (“Any

law enforcement officer shall arrest the respondent without a warrant if

... [thhe officer has reasonable cause to believe the respondent has vio-

lated or is in violation of an order for protection”) (emphasis added

throughout).

* See, e.g., Ark. Code Ann. § 18-16-507 (“Upon receipt of a writ of

ejectment from the clerk of the circuit court, the sheriff or police chief

shall immediately proceed to execute the writ in the specific manner de-

scribed in this section and, if necessary, ultimately by ejecting from the

property described in the writ the defendant”); N.H. Rev. Stat. § 540:13-c

(“a writ of possession shall be issued and the sheriff shall evict the tenant

as soon as possible”); Virgin Islands Code § 407 (“In the event any per-

son is illegally on the property of the hotel, the hotelkeeper may solicit

the aid of any member of the police, and it shall be the obligation of

every member of the Police Force, at the request of the hotelkeeper, to

would be replaced by a regime of constitutional liability for

failure to enforce.'> A State’s failure to enforce patent pro-

tection statutes would give rise to claims of constitutional

violations.'© And countless statutory mandates describing the

rules by which police, fire fighters, and ambulance drivers

undertake their jobs would result in constitutional claims for

any shortcomings.’’

Judge O’Brien aptly described in his dissenting opinion

below the new order that will prevail for municipal liability

if the Tenth Circuit’s decision is allowed to stand. “Qualified

immunity has now been substantially eroded, if not elimi-

nated,” he said, “in all cases based upon mandatory and di-

rective language contained in a statute.” Pet. App. 81a. “Al-

most any such case, cleverly pled, will survive a motion to

dismiss and quite possibly a motion for summary judgment,”

he added, noting the “rippling effects”-that will flow from

evict immediately such person from the property of the hotel and with the

use of force no greater than the circumstances require”).

'S See, e.g., D.C. Stat. § 22-1321 (“Whoever, with intent to provoke a

breach of the peace, . . . acts in such a manner as to annoy, disturb, inter-

fere with, obstruct, or be offensive to others, . . . shall be fined not more

than $250 or imprisoned not more than 90 days, or both”);

'© See ND. Stat. § 4-24-13 (“Within sixty days from the date [samples

from genetically-engineered crops] are taken, an independent laboratory

shall conduct all tests to determine whether patent infringement has oc-

curred”).

"” See, e.g., Kan. Rev. Stat. § 189.940 (“upon approaching any red light

... [the driver of an emergency vehicle) shall slow down as necessary for

safety to traffic”); La. Rev. Stat. § 28:53 (“If necessary, peace officers

shall apprehend and transport . . . a [subs ance abuse] patient on whom an

emergency certificate has been completed to a treatment facility at the

request of either the director of the facility, the certifying physician or

psychologist, the patient's next of kin, the patient's curator, or the agency

legally responsible for his welfare”); Mass. Gen. L. Ann. 111C § 1 (“A[n

emergency medical services) service zone provider shall be staffc~ and

equipped to be available for primary ambulance service or EM 3 first

response 24 hours a day, seven days a week’”’).

the fact that “[w]ith the loss of immunity from liability goes

the loss of immunity from suit.” Jd. Judge O’Brien rhetori-

cally wondered, for example, whether the Superintendent of

the Colorado Mental Health Institute and the district attorney

would be liable if, after having probable cause that a condi-

tionally-released mentally ill patient was no Icnger eligible

for conditional release, the patient caused some injury, or

whether police departments would be liable to a victim of a

drunk or underage driver for failing to ensure that no alco-

holic beverages were ever sold by an unlicensed vendor—the

relevant Colorado statutes contain the-same kind of manda-

tory language found in the statute at issue here. Jd. at 8la

n.12 (citing COLO. REV. STAT. §§ 16-8-115.5; 12-47-

301(4)(a)).

The magnitude of the fallout from the Tenth Circuit’s de-

cision alone warrants this Court’s review.

II. The Tenth Circuit’s Decision Is in Conflict with the

Decisions of the Sixth, Seventh, Eighth, and D.C. Cir-

cuits, All of which Have Rejected Efforts To Use Pro-

cedural Due Process Claims in Order To Circumvent

DeShaney’s Bar on Substantive Due Process Claims

for a Municipality’s Failure To Protect Against Pri-

vate Violence.

The Tenth Circuit relied upon two district court deci-

sions, Coffman v. Wilson Police Dep’t., 739 F. Supp. 257

(E.D. Pa. 1990); and Siddle v. City of Cambridge, 761 F.

Supp. 503 (S.D. Ohio 1991), and “[{s]omewhat analogous

cases from the Sixth and Eleventh Circuits,” Meador v.

Cabinet for Human Res., 902 F.2d 474, 476 (CA6 1990);

Taylor v. Ledbetter, 818 F.2d 791, 799 (CA11 1987) (en

banc), in reaching its holding that a claim against the State

for failure to protect against private violence was a permissi-

ble circumvention of DeShaney if phrased as a procedural

due process claim rather than a substantive due process

claim. The Tenth Circuit’s decision stands in stark contrast

with decisions from the Sixth, Seventh and D.C. Circuits

specifically referenced by the Tenth Circuit majority, as well

as decisions from the Eighth Circuit and the District of West

Virginia in the Fourth Circuit referenced by one or more of

the Tenth Circuit dissenters.

In Doe by Nelson v. Milwaukee County, 903 F.2d 499

(CA7 1990), the Seventh Circuit, in an opinion by Judge

Easterbrook, considered and rejected the identical procedural

due process claim successfully pressed before the Tenth Cir-

cuit here. Wisconsin law mandated that the county “shall . . .

initiate a diligent investigation” within 24 hours of receiving

a report of child sexual abuse, “shall” conduct the investiga-

tion in accord with established standards, and “shall include

observation of or an interview with the child, or both... .”

Id. at 501 n.3 (quoting Wisc. Stat. § 48.981(3)(c) (emphasis

added)). Where such investigation leads :o a determination

that the child required immediate protection, Wisconsin law

provided that the investigator “shall take the child into cus-

tody .. . .” Wisc. Stat. Ann. § 48.981(3)(c)(2)(a). After the

Milwaukee County department of child protective services

failed to conduct the required investigation and further child

abuse occurred by the custodial mother’s live-in boyfriend,

the child’s natural father brought suit against the county al-

leging, inter alia, violations of the Due Process Clause. Spe-

cifically, as the Seventh Circuit noted, “[f]aced with the ob-

stacle posed by DeShaney to their substantive due process

challenge, the Does have attempted to assert a violation of

their procedural due process rights.” 903 F.2d, at 502. The

Seventh Circuit rejected the Does’ attempt to circumvent

DeShaney, both because of the “elusiveness of the Does’

claimed entitlement”—essentially a claim for procedure be-

fore being deprived of procedure—and because it could not

conceive of any process that “could possibly suffice to pre-

vent the wrongful ‘deprivation’ of an investigation that [was]

supposed to be accomplished within 24 hours of the filing of

the report.” Jd. at 504. The Court realized that if such claims

were allowed, fire departments would “be required to hold a

hearing before failing to appear at a reported blaze, lest it run

afoul of the Fourteenth Amendment,” and that “[{sJuch a rule

would trivialize the Constitution . . . .” Jd. at 504-05.

The D.C. Circuit reached the same conclusion six years

later in Doe by Fein v. District of Columbia, 93 F.3d 861

(CADC 1996). The District of Columbia Prevention of Child

Abuse and Neglect Act of 1977, D.C. CopE ANN. §§ 6-

2102(b) & 6-2105(a), provided that the Child Family Ser-

vices Division (“CFSD”) “shall commence an investigation

of all reports alleging neglect other than abuse within 24

hours of the receipt of the report” and required the CFSD to

request that the police remove a child where the investigation

revealed that such was required and there was insufficient

time to petition for removal. 93 F.3d, at 866, 867 n.8 (em-

phasis added). For their part, the police “shall take such steps

as are necessary to safeguard the child .. . .” D.C. CopE

ANN. § 1301.05(e) (formerly D.C. CODE ANN. § 6-2103(e)).

Nevertheless, the Court rejected the procedural due process

claim as “severely flawed.” Jd. at 868. “[S]tate-created pro-

cedures do not create” an entitlement protected by the Due

Process Clause, held the Court, unless the plaintiff could

“show that the procedures that the [CFSD] allegedly failed to

follow were enacted pursuant to a substantive constitutional

obligation to protect [the plaintiff] from abuse or neglect” —a

showing foreclosed by DeShaney. Id. Indeed, the D.C. Cir-

cuit, unlike the Tenth Circuit here, found the procedural due

process claim “to be little more than a recasting of the sub-

stantive due process claim rejected by the Supreme Court in

DeShaney.” Id.

Similarly, in Jones v. Union County, Tennessee, 296 F.3d

417 (CA6 2002), the Sixth Circuit rejected a claim that a po-

lice department’s failure to serve a protective order, as re-

quired by state statute, and to afford protection required by

the order, infringed procedural due process rights. The Sixth

Circuit found the Roth-type claim “simply misplaced.” Jd. at

429; see also Harrill v. Blount County, Tenn., 55 F.3d 1123,

1125 (CA6 1995) (rejecting claim that a police officer’s fail-

ure to comply with a statutory mandate that an arrestee be

allowed a phone call prior to booking gave rise to a proce-

dural due process claim).

The Eighth Circuit has likewise rejected the type of pro-

cedural due process claim accepted by the Tenth Circuit here

(albeit in a pre-DeShaney case). In Doe v. Hennepin County,

858 F.2d 1325 (CA8 1988), the court rejected the contention

that Minnesota law created protectable property and liberty

interests in the provision of social services to families against

whom a complaint of child abuse had been lodged. The ap-

plicable statute provided that “[t]he local welfare agency

shall immediately investigate and offer protective services

for purposes of preventing further abuses, safeguarding and

enhancing the welfare of the abused or neglected minor, and

preserving family life wherever possible.” Jd. at 1327 n.2

(quoting Minn. Stat. Ann. § 626.556) (emphasis added). De-

spite the mandatory language of the statute, the court re-

jected the Roth-type claims by plaintiffs, whose children had

been wrongfully removed from their home by child protec-

tive services for 16 days during Christmas time.

Other courts have also rejected the procedural due proc-

ess claim accepted by the Tenth Circuit here. In Semple v.

City of Moundsville, for example, the District Court for the

Northern District of West Virginia found such a claim to be

“merely a DeShaney claim couched in the language of pro-

cedural due process.” 963 F. Supp. 1416, 1431 (N.D. W.Va.

1997). And the District of Colorado had, prior to the Tenth

Circuit’s contrary decision here, previously held that Colo-

rado law did not create a protectable entitlement to protective

services. Pierce v. Delta County Dep't of Social Svcs., 119 F.

Supp.2d 1139 (D. Colo. 2000).

To be sure, Judge Seymour attempted to distinguish

some of these conflicting decisions. Doe by Nelson and Doe

by Fein were both distinguishable, she asserted, because they

involved “claims that property interests in child protective

services were created solely by state statutes which outlined

procedures,” whereas the Tenth Circuit was “examining

whether the restraining order and a statute mandating its en-

forcement creates a property interest.” Pet. App. 10a n.4.

Judge Kelly correctly noted in his dissenting opinion that

that was a distinction without a difference. Pet. App. 45a. If

Judge Seymour meant to suggest that the general statutory

mandate only had application to a specific individual once a

restraining order was issued, the same can be said of the

general statutory mandates at issue in Doe by Nelson and

Doe by Fein—they, too, only became operative upon the

government's receipt of a report of abuse of a specific child.

Wisc. Stat. § 48.981(3)(c) (cited in Doe by Nelson, 903 F.2d,

at 501 n.3); D.C. CODE ANN. §§ 6-2102(b) (cited in Doe by

Fein, 93 F.3d at 866).

Judge Seymour’s attempt to distinguish Jones fares no

better. She contended that Jones merely held that violation of

a State statute could not give rise to a substantive due process

claim and “did not provide any further discussion on whether

the state statute had in fact created a protected property inter-

est subject to procedural due process protections.” Pet. App.

10a n.4. But the Sixth Circuit specifically held that “a viola-

tion of a state statute does not create a liberty interest or a

property right under the Due Process Clause of the Four-

teenth Amendment,” and it cited Harrill v. Blount County,

Tenn., 55 F.3d 1123, 1125 (6th Cir. 1995), for the proposi-

tion that “[t}he violation of a right created and recognized

only under state law is not actionable under § 1983.” Jones,

296 F.3d at 429. In other words, the Sixth Circuit specifi-

cally rejected a Due Process claim for the violation of a state

Statutory mandate—the very claim accepted by the Tenth

Circuit here. Jones, too, is therefore directly in conflict with

the Tenth Circuit’s decision below.

In short, the Tenth Circuit has squarely considered the

conflicting decisions of several of its sister Circuits and has,

by artificial distinction, rejected their holdings. The artificial

distinctions drawn by the Tenth Circuit should not insulate

its decision from this Court’s review of the resulting Circuit

split.

Ill. The Tenth Circuit’s Decision Also Raises Important

Issues About the Kind of Process that Would Be, or

Possibly Could Be, Due Before a State Actor Fails To

Act.

In addition to contributing to the lopsided split between

decisions of several Courts of Appeal, on the one hand, and

that of the Tenth Circuit below, on the other, Judge Easter-

brook’s decision for the Seventh Circuit in Doe by Nelson

also highlights another important basis for granting certiorari

in this case. He could not conceive of any process that

“could possibly suffice to prevent the wrongful ‘deprivation’

of an investigation that [was] supposed to be accomplished

within 24 hours of the filing of the report.” 903 F.2d at 504.

Yet conceiving of appropriate procedures before a police de-

partment fails to enforce a protective order is just what the

Tenth Circuit has now required of the district courts under its

Just framing the question demonstrates the difficulty with

the Tenth Circuit’s position. This is not a case where the po-

lice department affirmatively sought to have Ms. Gonzales’s

protective order revoked, where requirements of notice and a

hearing before a neutral arbiter would make some sense.

Rather, the Tenth Circuit majority has now required some

kind of process every time the police fail or decline to act at

the behest of one who holds a protective order, apparently

without regard to whether the requested action was war-

ranted, whether the necessary manpower was available, or

even whether a city-wide emergency prevented an immediate

response.

Just what level of process is required was largely left un-

answered by the Tenth Circuit majority, which mentioned

only a “right to be heard” “at a meaningful time and in a

meaningful manner.” Pet. App. 30a. Whatever is required at

this “meaningful hearing,” it is apparently more than that

suggested by Judge Hartz in dissent: the right to “(1) to pre-

sent evidence of a violation of the order and (2) to argue why

an arrest is the proper response to the violation.” Pet. App.

94a. Ms. Gonzales was afforded that opportunity. That the

police allegedly did not act on the information she provided,

or allegedly did not, in hindsight, reach the correct judgment,

is not a function of the process that was afforded, but of the

substantive conclusion reached (assuming it was even a con-

clusion, rather than merely inadvertent inaction), as Judge

McConnell correctly pointed out in his dissent. Pet. App.

58a.

Nevertheless, the Tenth Circuit’s decision now requires

the lower courts in that Circuit to undertake the tall task of

designing the procedures that will be required before a police

officer fails to act, and to hold municipal governments to the

predictably disastrous consequences of liability for violating

whatever procedures are conceived. This Court should use its

“broad” supervisory powers over the lower federal courts to

terminate that fool’s errand before it is begun. See United

States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950) (citing

28 U.S.C. § 2106); Fike v. United Methodist Children’s

Home of Va., Inc., 547 F. Supp. 286, 287 n.1 (E.D. Va. 1982)

(asserting that it had been sent on a “fool’s errand” by a

Fourth Circuit opinion that “provided no guidance”); see

also Carnegie-Mellon University v. Cohill, 484 U.S. 343,

349 (1988) (noting that this Court created the modern doc-

trine of pendent jurisdiction in order to put an end to “confu-

sion” in the lower courts as they tried to apply a “murky”

test).

Certiorari is therefore also warranted to prevent the disar-

ray that most certainly will prevail as the lower courts in the

Tenth Circuit (and beyond, if the Tenth Circuit’s holding is

accepted elsewhere) try to do the impossible and fashion

procedures that must be implemented before a state or its

employees fail to act.

CONCLUSION

For-the foregoing reasons, this Court should grant the pe-

tition for a writ of certiorari.

Respectfully submitted,

boner eg S. RICE JOHN C. EASTMAN

ERIC M. ZIPORIN c/o Chapman University

Counsel of Record School of Law

Senter Goldfarb & Rice, L.L.C. One University Drive

P.O. Box 22833 Orange, CA 92866

Denver, CO 80222 ERIK S. JAFFE

GS) Sa0-Saes Erik S. Jaffe, P.C.

5101 34th Street, NW

Washington D.C. 20008

Counsel for Petitioners

Dated: August 27, 2004.

APPENDIX A

TENTH CIRCUIT EN BANC OPINION

366 F.3d 1093 (CA10 2004)

ee : Anited States Court of Appeals

eo 3 7 ; FOR THE TENTH CIRCUIT

Cae mo: | 5. a Jessica GONZALES, individually and as next best friend

of her deceased minor ch ‘dren Rebecca Gonzales, Katheryn

Gonzales and Leslie Gonzales,

Plaintiff-Appellant,

‘ s a : a His 3 CITY OF CASTLE ROCK;

‘ Aaron Ahlfinger; R.S. Brink; Marc Ruisi,

Officers of the Castle Rock Police Department,

Defendants-Appellees.

Colorado Municipal League; Colorado Counties, Inc.;

and Colorado Association of Chiefs of Police,

Amici Curiae.

No. 01-1053

April 29, 2004

ON REHEARING EN BANC

FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

ri : Po |

| . : (D.C. NO. 00-D-1285)

Brian J. Reichel, Attorney, Thornton, Colorado, for Plaintiff-

Appellant.

Thomas S. Rice, Senter Goldfarb & Rice, L.L.C. (Eric M.

Ziporin, Senter, Goldfarb & Rice, L.L.C. and Christina M.

Habas, Bruno, Bruno & Colin, P.C., with him on the brief),

Denver, Colorado, for Defendants-Appellees.

Carolynne White, Staff Attorney, Colorado Municipal

League; Thomas J. Lyons, Hall & Evans, LLC, Denver,

Colorado; and Julie C. Tolleson, Kennedy & Christopher,

PC, Denver, Colorado, on the brief for Amici Curiae.

Before TACHA, Chief Judge, SEYMOUR, EBEL,

KELLY, HENRY, BRISCOE, LUCERO, MURPHY,

HARTZ, O’BRIEN, and McCONNELL, Circuit Judges.

SEYMOUR, Circuit Judge.

This civil rights case asks us to decide whether a court-

issued domestic restraining order, whose enforcement is

mandated by a state statute, creates a property interest pro-

tected by the due process clause of the Fourteenth Amend-

ment. The district court held it does not and dismissed the

action under FED.R.Crv.P. 12(b)(6) for failure to state a

claim upon which relief could be granted. A panel of this

court reversed. Gonzales v. City of Castle Rock, 307 F.3d

1258 (10th Cir. 2002). On rehearing en banc, we reverse the

district court’s dismissal o* Jessica Gonzales’ procedural due

process claim as to the City of Castle Rock, but hold that the

individual police officers are entitled to qualified immunity.

“We review de novo the district court’s dismissal under

Fed.R.Civ.P. 12(b)(6) fcr failure to state a claim upon which

relief can be granted.” Ruiz v. McDonnell, 299 F.3d 1173,

1181 (10th Cir. 2002), cert. denied, 538 U.S. 999, 123 S. Ct.

1908, 155 L. Ed. 2d 826 (2003). We accept as true all well-

pleaded facts, liberally construe the pleadings, and make all

reasonable inferences in favor of the plaintiff. Jd. “The issue

in reviewing the sufficiency of a complaint is not whether

the plaintiff will prevail, but whether the plaintiff is entitled

to offer evidence to support her claims.” Id. (citing Scheuer

v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct.

1683 (1974), overruled on other grounds by Harlow v. Fitz-

gerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727

(1982)). Only where it appears beyond a doubt that a plain-

tiff cannot prove any set of facts entitling her to relief, can a

motion to dismiss be granted. Jd. With these precepts guiding

our review, the complaint sets forth the following tragic

facts.

On May 21, 1999, Ms. Gonzales obtained a temporary

restraining order limiting her husband’s ability to have con-

tact with her and their daughters, aged ten, nine and seven.

The restraining order was issued by a state court in accor-

dance with COLO. REV. STAT. § 14-10-108, and commanded

in part that Mr. Gonzales “not molest or disturb the peace of

[Ms. Gonzales] or . . . any child.” Aplt. Appx. at 29. The re-

straining order further stated “the court . . . finds that physi-

cal or emotional harm would result if you are not excluded

from the family home,” and directed Mr. Gonzales to stay at

least 100 yards away from the property at all times. Jd. See

also COLO. REV. STAT. § 14-10-108(2)(c) (party can be ex-

cluded from family home upon a showing that physical or

emotional harm would othe. wise result).

Neither parent nor the daughters could unilaterally

change the terms of the order because it explicitly states:

If you violate this order thinking that the other party

or a child named in this order has given you permis-

sion, you are wrong, and can be arrested and prose-

cuted. The terms of this order cannot be changed by

agreement of the other party or the children. Only the

court can change this order.

SUSAN WENDALL WHICHER & CHERYL LOETSCHER,

HANDBOOK OF COLORADO FAMILY LAW, ch. IV, F-12 at 2

(3d ed. 1996) (emphasis in original) (hereinafter “Restrain-

ing Order”).' The order also contained explicit terms direct-

ing law enforcement officials that they “shall use every rea-

sonable means to enforce” the restraining order, they “shall

arrest” or where impractical, seek an arrest warrant for those

who violate the restraining order, and they “shall take the

restrained person to the nearest jail or detention facility... .”

Id.

Upon the trial court’s issuance of the temporary restrain-

ing order, and pursuant to COLO. REV. STAT. § 18-6-

803.7(2)(b), the order was entered into the state’s central reg-

istry for such protective orders, which is accessible tg all

state and local law enforcement agencies. On June 4, 1999,

the order was served on Mr. Gonzales. On that same date,

upon “having heard the stipulation of the parties, and after

placing the parties under oath and examining the parties as to

the accuracy of the Stipulation . . . and finding that [the]

Stipulation [was] in the best interests of the minor children,”

Aplt. Appx. at 30, the state court made the restraining order

' In connection with their motion to dismiss, defendants provided the

district court a copy of the front side of Ms. Gonzales’ temporary re-

straining order, as well as a subsequent court order. Aplt. Appx. at 29.

However, the back of the temporary restraining order was not included.

Pursuant to FED.R.EVID. 201(b), (c), we may take judicial notice of the

back of the restraining order form which is accessible in SUSAN

WENDALL WHICHER & CHERYL LOETSCHER, HANDBOOK OF COLORADO

FAMILY LAW, ch. IV, F-12 at 2 (3d ed. 1996). See, e.g., Pueblo of Sandia

v. United States, 50 F.3d 856, 861 n.6 (10th Cir. 1995) (court took judi-

cial notice of government reports and documents not contained in record

below). In order to make the record on appeal complete, however, we

asked Ms. Gonzales to provide the court with the back side of the order,

which she has done. See Aplit. Supp. Appx. at 3 (filed April-19, 2004).

permanent. The temporary order’s terms were slightly modi-

fied to detail Mr. Gonzales’ rights to parenting time with his

daughters on alternative weekends, and for two weeks during

the summer. The order also allowed Mr. Gonzales “upon

reasonable notice . . . a mid-week dinner visit with the minor

children. Said visit shall be arranged by the parties.” Jd. (em-

phasis added). Finally, the order allowed Mr. Gonzales to

collect the girls from Ms. Gonzales’ home for the purposes

of parental time. However, all other portions of the tempo-

rary restraining order remained in force, including its com-

mand that Mr. Gonzales was excluded from the family home

and the he could not “molest or disturb the peace” of Ms.

Gonza® or the girls. Jd. at 29.

Despite the order’s terms, on Tuesday, June 22, 1999,

sometime between 5:00 and 5:30 p.m., Mr. Gonzales ab-

ducted the girls while they were playing outside their home.

Mr. Gonzales had not given Ms. Gonzales advanced notice

of his interest in spending time with his daughters on that

Tuesday night, nor had the two previously agreed upon a

mid-week visit. When Ms. Gonzales realized her daughters

were missing, she suspected that Mr. Gonzales, who had a

history of erratic behavior and suicidal threats, had taken

them. At approximately 7:30 p.m., she made her first phone

call to the Castle Rock police department requesting assis-

tance in enforcing the restraining order against her husband.

Officers Brink and Ruisi were sent to her home. Upon their

arrival, she showed them a copy of the restraining order, and

asked that it be enforced and her children returned to her

immediately. In contradiction to the order’s terms, the Offi-

cers “stated that there was nothing they could do about the

TRO and suggested that Plaintiff call the Police Department

again if the children did not return home by 10:00 p.m.” Jd.

at 9.

About an hour later, Ms. Gonzales spoke to Mr. Gonza-

les on his cellular telephone and he told her he was with the

girls at Elitch Gardens, an amusement park in Denver. She

immediately made a second call to the Castle Rock police

department, and spoke with Officer Brink, requesting that

the police find and arrest Mr. Gonzales. Officer Brink re-

fused to do so, and suggested Ms. Gonzales wait until 10:00

p.m. to see if the girls returned home. Shortly after 10:00

p.m., Ms. Gonzales called the police department and re-

ported to the dispatcher that her daughters had yet to be re-

turned home by their father. She was told to wait for another

two hours. At midnight, she called the police department

again and informed the dispatcher her daughters were still

missing. She then proceeded to Mr. Gonzales’ apartment

complex and found no one at home. From there, she placed a

fifth call to the police department and was advised by the

dispatcher to wait at the apartment complex until the police

arrived. No officers ever came to the complex, and at 12:50

a.m., Ms. Gonzales went to the Castle Rock police station,

where she met with Officer Ahlfinger. Officer Ahlfinger

took an incident report from Ms. Gonzales, but he made no

further effort to enforce the restraining order against her hus-

band or to find her children. Instead, he went to dinner.

At approximately 3:20 a.m., nearly eight hours after Ms.

Gonzales first contacted the police department, Mr. Gonzales

arrived at the Castle Rock police station in his truck. He got

out and opened fire on the station with a semi-automatic

handgun he had purchased soon after abducting his daugh-

ters. He was shot dead at the scene. The police found the

bodies of the three girls, who had been murdered by their

father earlier that evening, in the cab of the truck.

Ms. Gonzales subsequently brought this action on behalf

of herself and her deceased daughters against the City of

Castle Rock, Colorado, and Castle Rock police officers

Aaron Ahlfinger, R.S. Brink, and Marc Ruisi. Pursuant to 42

U.S.C. § 1983, she claimed her due process rights were vio-

lated by the officers’ failure to enforce the restraining order

against her husband. She also alleged the city maintained a

custom and policy of failing to respond properly to com-

plaints of domestic restraining order violations and tolerated

the non-enforcement of such protective orders by police offi-

cers, resulting in the reckless disregard of a person’s right to

police protection granted by such orders.

The district court granted the defendants’ motion to dis-

miss, finding Ms. Gonzales failed to state a claim under the

Fourteenth Amendment for the deprivation of either substan-

tive or procedural due process.” On appeal, the pane! af-

firmed the district court’s dismissal of Ms. Gonzales’ sub-

stantive due process claim, but reversed as to the district

court’s procedural due process determination. The panel held

the restraining order, coupled with the Colorado statute man-

dating the enforcement of such orders, see COLO. REV. STAT.

§ 18-6-803.5(3), established a protected property interest in

the enforcement of the restraining order which could not be

taken away by the government without procedural due proc-

ess. Gonzales, 307 F.3d at 1266. The panel concluded, there-

fore, that Ms. Gonzales’ procedural due process claim could

proceed.

The city and police officers timely filed a petition for re-

hearing en banc, seeking review of the panel’s conclusion

that Ms. Gonzales stated a procedural due process claim.

This court granted the petition, and asked the parties to ad-

dress the following questions: (1) whether COLO. REV. STAT.

§ 18-6-803.5(3) in combination with the restraining order

issued by the Colorado court created a property interest enti-

ee ee oom OO 00 what process

was due.

? Because the district court found Ms. Gonzales failed to state a claim

upon which relief could be granted, the court did not address the individ-

ual officers’ request for dismissal on the basis of qualified immunity, or

the city’s request for dismissal on the grounds Ms. Gonzales could not

blist ‘cipal liability.

To succeed in her § 1983 claim, Ms. Gonzales must

show that she was deprived of a constitutional right by a per-

son acting under color of state law. Jacobs, Visconsi & Ja-

cobs, Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th

Cir. 1991). At issue here is whether Ms. Gonzales’ due proc-

ess rights, pursuant to the Fourteenth Amendment of the U.S.

Constitution, were violated when the officers failed to en-

force her restraining order against her husband.

The Fourteenth Amendment specifies that no State shall

“deprive any person of life, liberty, or property, without due

process of law ... .” U.S. CONST. amend. XIV, § 1. The Su-

preme Court has noted that the contours of this constitutional

provision “guarantee more than fair process and . . . cover a

substantive sphere as well, barring certain government ac-

tions regardless of the fairness of the procedures used to im-

plement them.” County of Sacramento v. Lewis, 523 U.S.

833, 840, 140 L. Ed. 2d 1043, 118 S. Ct. 1708 (1998) (inter-

nal citation and quotations omitted). In Lewis, the Supreme

Court explained that

since the time of our early explanations of due proc-

ess, we have understood the core of the concept to be

protection against arbitrary action .. . . We have em-

phasized time and again that the touchstone of due

process is protection of the individual against arbi-

trary action of government, whether the fault lies in a

denial of fundamental procedural fairness, or in the

exercise of power without any reasonable justification

in the service of a legitimate governmental objective.

Id. at 845-46 (internal quotations and citations omitted). Ms.

Gonzales’ complaint encompassed both substantive and pro-

cedural due process challenges, both of which the district

court dismissed. In the substantive due process context, the

argument was that Ms. Gonzales and her daughters had an

inherent Constitutional right to police protection against

harm from her husband. However, as noted in our panel

opinion, the Supreme Court made clear in DeShaney v. Win-

nebago County Dep't of Soc. Servs., 489 U.S. 189, 103 L.

Ed. 2d 249, 109 S. Ct. 998 (1989), that the Constitution itself

does not require a state to protect its citizens from third party

harm, and Ms. Gonzales’ case does not fall within the nar-

row “danger-creation” exception arising out of DeShaney.”

See Gonzales, 307 F.3d at 1262-63.

Contrary to the assertions of the city and officers, as well

as those of our dissenting colleagues, the issue before this en

banc court is distinct from the substantive due process claim

dismissed below. Defendants and the dissenters assert that if

this court concludes Ms. Gonzales has a protected property

right in the enforcement of the restraining order, we will

have “carved out an exception contrary to DeShaney and the

general rule that the state does not have an affirmative duty

to protect individuals from private third parties.” Aple. Br. at

6. However, DeShaney limited its constitutional review to

whether a substantive due process right to government pro-

tection exists in the abstract, and specifically did not decide

whether a state might afford its citizens “an ‘entitlement’ to

receive protective services in accordance with the terms of

the statute, an entitlement which would enjoy due process

protection against state deprivation” under Board of Regents

of State Colleges v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92

S. Ct. 2701 (1972). DeShaney, 489 U.S. 189, 195 n.2, 103 L.

Ed. 2d 249, 109 S. Ct. 998 (1989). As we discuss infra, Roth

clarified that “property interests . . . are 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 - rules or un-

> The en banc court was not asked to address the district court's dismissal

of Ms. Gonzales’ substantive due process claim and the panel's affir-

mance thereof. Hence, that portion of the panel opinion remains undis-

turbed.

10a

derstandings that secure certain benefits and that support

claims of entitlement to those benefits.” Roth, 408 U.S. at

577.

We are not being asked here to address whether Ms.

Gonzales had a substantive right under the Constitution to

receive government protection that could not be denied

without a “reasonable justification in the service of a legiti-

mate government objective.” Lewis, 523 U.S. at 846. Rather,

we must determine whether the state of Colorado created in

Ms. Gonzales an entitlement that cannot be taken away from

her without procedural due process, and if so, whether the

officers’ arbitrary denial of that entitlement was procedurally

unfair. None of our dissenting colleagues who claim that we

are improperly mixing substantive and procedural due proc-

ess concepts suggest that the state of Colorado could not cre-

ate such an entitlement if it chose to do so despite De-

Shaney's holding that there is no such entitlement protected

by the substantive due process clause.‘

* The cases Judge O’Brien cites in his dissent for the argument that our

opinion ignores DeShaney’s guiding principles, are only of limited sup-

port. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 117 L.

Ed. 2d 261, 112 S. Ct. 1061 (1992); Jones v. Union County, 296 F.3d

417 (6th Cir. 2002); Henderson v. Gunther, 931 P.2d 1150 (Colo. 1997).

Collins, Jones, and Henderson all specifically address questions regard-

ing substantive rather than procedural due process. While the court in

Jones rightly rejecteJ the plaintiff's reliance on Roth for the proposition

that violation of a state statute could give rise to a substantive due proc-

ess claim, it did not provide any further discussion on whether the state

ane Orne Eee pa: Ap etn

procedural due process protections. Jones, 296 F.3d at 429. courts in

Doe by Fein v. District of Columbia, 320 U.S. App. D.C. 198, 93 F.3d

861 (D.C. Cir. 1996), and Doe by Nelson v. Milwaukee Co., 903 F.2d

499 (7th Cir. 1990), rejected claims that property interests in child pro-

tective services were created solely by state statutes which outlined pro-

cedures. Doe by Fein, 93 F.3d at 868-69; Doe by Nelson, 903 F.2d at

ute mandating its enforcement creates a property interest.

lla

When the due process clause is “invoked in a novel con-

text, it is Our practice to begin the inquiry with a determina-

tion of the precise nature of the private interest that is threat-

ened by the State. Only after that interest has been identified,

can we properly evaluate the adequacy of the State’s proc-

ess.” Lehr v. Robertson, 463 U.S. 248, 256, 77 L. Ed. 2d

614, 103 S. Ct. 2985 (1983) (citations omitted). See also

Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir.

1994). We acknowledge this case raises compelling and

novel questions about state created property interests and the

manner by which such interests are protected by the Four-

teenth Amendment. However, we are persuaded Ms. Gonza-

les’ complaint states a claim that she possessed a protected

We certainly concur with the common refrain in these cases that the

mere violation of state law does not automatically give rise to a constitu-

be so stretched that it becomes “a font of tort law to be superimposed

upon whatever systems may already be administered by the States.”

Daniels v. Williams, 474 U.S. 327, 332, 88 L. Ed. 2d 662, 106 S. Ct. 662

(1986) (quoting Paul v. Davis, 424 U.S. 693, 701, 47 L. Ed. 2d 405, 96

S. Ct. 1155 (1976)). See also Collins, 503 U.S. at 127; Harrill v. Blount

County, 55 F.3d 1123, 1125-26 (6th Cir. 1995); Archie v. City of Racine,

847 F.2d 1211, 1216-17 (7th Cir. 1988); Henderson, 931 P.2d at 1154-

55. We are not ruling that defendants’ disregard of the restraining order's

terms and refusal to enforce COLO. REV. STAT. § 18-6-803.5(3) trans-

formed what otherwise might be a state law tort claim into a federal due

process action merely because defendants were state actors. Rather, the

specific issue we grapple with here is whether the state of Colorado has

created an entitlement for Ms. Gonzales as described in Roth. Only upon

our determination that Ms. Gonzales has a property interest in enforce-

ment of the court order can the claim be made that defendants’ depriva-

tion of that interest resulted in a procedural due process violation. Such a

claim is entirely distinct from the substantive due process claim ad-

dressed in DeShaney. Of course, DeShaney makes clear that all individu-

als do not possess a substantive right to protection by the state from the

harm of third parties. DeShaney, 489 U.S. at 197. But such a ruling does

not foreclose a state from creating through its own laws an entitlement

for particular citizens in having their court-issued restraining orders en-

forced. Our opinion is therefore not contrary to DeShaney.

12a

property interest in the enforcement of the terms of her re-

straining order and that the officers’ arbitrary denial of that

entitlement violated her procedural due process rights. In

reaching this conclusion, we begin by examining the re-

straining order issued to Ms. Gonzales and the Colorado

statute mandating its enforcement.°

Our analysis must start with the familiar rubric of Roth.

In Roth, the Supreme Court noted that “property” is a “broad

and majestic term.” Roth, 408 U.S. at 571. The Court “made

clear that the property interests protected by procedural due

process extend well beyond actual ownership of real estate,

chattels, or money,” id. at 571-72, and “may take many

forms,” id. at 576. “Property interests . . . are not created by

the Constitution. Rather, they are created and their dimen-

sions are defined by existing rules or understandings that

stem from an independent source such as state law—tules or

understandings that secure certain benefits and that support

* In this context, many of the cases Judge O’Brien cites in his dissent are

inapposite to the specific facts and legal arguments raised in the present

case because the courts in those cases rejected the argument that statutes

detailing procedures regarding general child abuse investigations and

reporting could alone create a protected interest in such services. See,

e.g., Doe by Fein, 93 F.3d at 869; Doe by Nelson, 903 F.2d at 502-03;

Pierce v. Delta County Dep't of Soc. Servs., 119 F. Supp. 2d 1139, 1152-

53 (D. Colo. 2000). In this case, the Colorado statute alone does not cre-

ate the property interest. Rather, the court-issued restraining order, which

specifically dictated that its terms must be enforced, and the state statute

commanding the same, establish the basis for Ms. Gonzales’ procedural

due process claim.

Likewise, we disagree with Judge O'Brien's assertion that the Colo-

rado Supreme Court made clear in Henderson that a case like Ms. Gonza-

les’ could not be brought under § 1983. Henderson was framed entirely

as a substan. * due process case and did not address in any manner how

and whether a state might grant to a particular person a constitutionally

protected property interest in protective services. Henderson, 931 P.2d at

1154-56.

13a

claims of entitlement to those benefits.” Jd. at 577. A prop-

erty interest is created when a person has secured an interest

in a specific benefit to which the individual has “a legitimate

claimn of entitlement.” /d. The interest must be more than an

“abstract need or desire” or a “unilateral expectation of” the

benefit. Jd. The Court has accordingly identified property

rights protected under the procedural due process clause to

include continued public employment, Perry v. Sindermann,

408 U.S. 593, 602-03, 33 L. Ed. 2d 570, 92 S. Ct. 2694

(1972), a free education, Goss v. Lopez, 419 U.S. 565, 574,

42 L. Ed. 2d 725, 95 S. Ct. 729 (1975), garnished wages,

Sniadach v. Family Finance Corp., 395 U.S. 337, 339, 23 L.

Ed. 2d 349, 89 S. Ct. 1820 (1969), professional licenses,

Barry v. Barchi, 443 U.S. 55, 64, 61 L. Ed. 2d 365, 99 S. Ct.

2642 (1979), drivér’s licenses, Bell v. Burson, 402 U.S. 535,

539, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971), causes of action,

Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 71 L.

Ed. 2d 265, 102 S. Ct. 1148 (1982), and the receipt of gov-

ernment services, Memphis Light, Gas & Water Div. v.

Craft, 436 U.S. 1, 11-12, 56 L. Ed. 2d 30, 98 S. Ct. 1554

(1978) (utility services); Mathews v. Eldridge, 424 U.S. 319,

332, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976) (disability bene-

fits); Goldberg v. Kelly, 397 U.S. 254, 262, 25 L. Ed. 2d 287,

90 S. Ct. 1011 (1970) (welfare benefits).

At least two other courts have addressed whether a court

order creates a Roth-type entitlement subject to procedural

due process protections. Directly applicable here is Coffman

v. Wilson Police Dep’t, 739 F. Supp. 257 (E.D. Pa. 1990), in

which the court found the mandatory language in a restrain-

ing order created a “property interest in police enforcement

that is cognizable under Roth.” Id. at 264. In Flynn v. Korn-

wolf, 83 F.3d 924 (7th Cir. 1996), the plaintiffs contended

the specific terms of a court order created in them an enti-

tlement to employment. After examining the order’s terms,

the Seventh Circuit disagreed, concluding that the order’s

language was not of a mandatory nature limiting the em-

l4a

ployer’s discretion regarding the termination of certain posi-

tions. Id. at 927 (citing Fittshur v. Village of Menomonee

Falls, 31 F.3d 1401, 1406 (7th Cir. 1994)). In doing so, the

Seventh Circuit analyzed the court order pursuant to the

analysis employed in cases determining whether a state stat-

ute creates a property interest.

In order for an entitlement to exist, the underlying

state law or order must contain particularized stan-

dards or criteria [guiding] the State’s decision makers.

If the decision maker is not required to base its deci-

sions on objective and defined criteria, but instead

can deny the requested relief for any constitutionally

permissible reason or for no reason at all, the State

has not created a constitutionally protected interest.

Olim v. Wakinekona, 461 U.S. 238, 249, 75 L. Ed. 2d 813,

103 S. Ct. 1741 (1983) (emphasis added) (citation and inter-

nal quotations omitted). Conversely, “the use of explicitly

mandatory language, in connection with the establishment of

specified substantive predicates to limit discretion, forces a

conclusion that the state has created a [protected] interest.”

Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 463, 104 L.

Ed. 2d 506, 109 S. Ct. 1904 (1989) (internal quotations omit-

ted). See also Bd. of Pardons v. Allen, 482 U.S. 369, 379-81,

96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987) (mandatory lan-

guage in regulation, coupled with specific criteria which

must be met in order to deny benefit, creates presumption of

entitlement); Hewitt v. Helms, 459 U.S. 460, 471, 74 L. Ed.

2d 675, 103 S. Ct. 864 (1983) (“the repeated use of explicitly

mandatory language in connection with requiring specific

substantive predicates demands a conclusion that the State

has created a protected liberty interest”); Greenholtz v. In-

mates of Neb. Penal & Corr. Complex, 442 U.S. 1, 11-12, 60

L. Ed. 2d 668, 99 S. Ct. 2100 (1979) (structure of regulatory

provision together with word “shall” requires decision maker

to take specific action unless particular criteria is met).

15a

Hence, where a court order commands the grant of a gov-

ernment benefit or service through the use of mandatory lan-

guage and objective predicates limiting the discretion of of-

ficial decision makers, a protected property interest exists.°

We therefore examine the restraining order to determine

whether its “language is so mandatory that it creates a right

to rely on that language thereby creating an entitlement that

could not be withdrawn without due process.” Cosco v.

Uphoff, 195 F.3d 1221, 1223 (10th Cir. 1999) (per curiam).’

* We note Olim, Thompson, Allen, Hewitt, and Greenholtz addressed the

extent to which liberty interests exist in the prison setting. But the meth-

odology user’ in those cases has also been “employed in claims of prop-

erty interests protected by the Due Process Clause of the Fourteenth

Amendment.” Cosco v. Uphoff, 195 F.3d 1221, 1223 (10th Cir. 1999)

(per curiam). We also acknowledge the Supreme Court, in Sandin v.

Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), aban-

doned the use of this methodology when examining whether a prisoner

properly claims a liberty interest violation. Jd. at 483-84 & n.5. But, the

Court did not foreclose use of this analysis in non-prison settings, stating

such an approach “may be entirely sensible in the ordinary task of con-

Struing a statute defining rights and remedies available to the general

public.” Id. at 481. Accordingly, in determining whether property inter-

ests exist pursuant to statute, courts have continued to examine the extent

to which the statute’s mandatory language and substantive criteria limit

decision maker discretion. See, e.g., Crown Point I, LLC v. Intermoun-

tian Rural Elec. Ass'n., 319 F.3d 1211, 1216-17 (10th Cir. 2003) (land

development code did not create property interest in special use hearing);

Wash. Legal Clinic for the Homeless v. Barry, 323 U.S. App. D.C. 219,

107 F.3d 32, 37 (D.C. Cir. 1997) (no property interest in right to home-

less shelter); Mallette v. Arlington County Employees’ Supplemental Ret.

Sys. "1, 91 F.3d 630, 637 (4th Cir. 1996) (disability retirement benefits

constituted property right). Likewise, as previously noted, this analysis

has also been employed to determine whether a court order created a

Ed interest. See Flynn v. Kornwolf, 83 F.3d 924, 927 (7th Cir.

” Although it may ultimately be found that an individual does not satisfy

the relevant criteria necessary to receive the benefit, the underlying prop-

erty entitlement remains and cannot be denied without due process of

law. For example, in Memphis Light, Gas & Water Div. v. Craft, 436

16a

At the outset, we emphasize that Ms. Gonzales’ entitle-

ment to police enforcement of the restraining order against

Mr. Gonzales arose when the state court judge issued the or-

der, which defined Ms. Gonzales’ rights. The restraining or-

der was granted to Ms. Gonzales based on the court’s finding

that “irreparable injury would result to the moving party if

no order were issued,” Aplt. Appx. at 29, and that “physical

or emotional harm would result if [Mr. Gonzales was] not

excluded from the family home.” Jd. By its specific terms,

the order made clear that Mr. Gonzales could not “molest or

disturb the peace” of Ms. Gonzales or her children. Jd. Like-

wise, the order gave notice to Mr. Gonzales that he could “be

arrested without notice if a law enforcement officer [had]

probable cause to believe that {he} knowingly violated the

order.” Restraining Order at _

U.S. 1, 11-12, 56 L. Ed. 2d 30, 98 S. Ct. 1554 (1978), the Supreme Court

held that customers of a public utility had a protected property interest in

continued receipt of electricity while disputing their bills. The Court

reached this conclusion even though the utility had the power under state

law to terminate service “for good and sufficient cause.” /d. Likewise, in

Goldberg v. Kelly, 397 U.S. 254, 262, 25 L. Ed. 2d 287, 90 S. Ct. 1011

(1970). individuals challenging the termination of welfare benefits could

not be denied the benefit without due process, even if the individuals

were eventually deemed ineligible for relief. See also Mallette, 91 F.3d at

637 (party had property interest in potential eligibility for disability re-

tirement benefits, regardless of whether party would prevail on merits).

In the instant case, the restraining order’s terms specifically mandate an

outcome “to be reached upon a finding that the relevant criteria have

been met,” Doyle v. Okla. Bar Assoc., 998 F.2d 1559, 1570 (10th Cir.

1993) (citing Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 462, 104 L.

Ed. 2d 506, 109 S. Ct. 1904 (1989)) (emphasis deleted), that outcome

being its enforcement.

® As we noted earlier, the terms of Ms. Gonzales’ May 12, 1999 restrain-

ing coder aguinst ber beubend became pesmeness on June <.ISE, fae

the trial court held a hearing, “heard the stipulation of the parties .

placed] the parties under oath and (examined the partes a othe accu

racy of the Stipulation . . . and [found] that (the) Stipulation [was] in the

best interests of the children.” Aplt. Appx. at 30.

17a

The restraining order’s language also clearly evinced the

State’s intent that its terms be enforced by the police. In-

cluded within the order was a notice to law enforcement of-

ficials stating “you shall use every reasonable means to en-

force this restraining order.” Jd. It further dictated that an

officer

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 amount-

ing 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 this order.

Id. (emphasis added). Additionally, officers were required to

enforce the order “even if there is no record of it in the re-

straining order central registry.” Jd. Finally, the order com-

manded that the officers “shall take the restrained person to

the nearest jail or detention facility utilized by your agency.”

Id.

Not only does the order itself mandate that it be enforced,

but the Colorado legislature passed a series of statutes to en-

sure its enforcement. The front of Ms. Gonzales’ restraining

order states that it was issued pursuant to COLO. REV. STAT.

§ 14-10-108. That statute details that a party may request the

court to issue an order “enjoining a party from molesting or

disturbing the peace of the other party or of any child [or]

excluding a party from the family home . . . upon a showing

that physical or emotional harm would otherwise result.”

COLO. REV. STAT. § 14-10-108(2)(b)-(c). In addition, CoLo.

REV. STAT. § 14-10-109 dictates that “the duties of police

officers enforcing orders issued pursuant to . . . 14-10-108

shall be in accordance with section 18-6-803.5, C.R.S.....“

COLO. REV. STAT. § 14-10-109. Section 18-6-803.5 pro-

vides:

18a

(3)(a) Whenever a restraining order is issued, the pro-

tected person shall be provided 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 war-

rant 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 the restraining order; and

(I) 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.

scribed 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 en-

force 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) (2002). This language is

similar to that which appears in the restraining order.

* While we asked the parties to brief whether a protected property interest

was created by the mandatory terms and objective predicates laid out in

COLO. REV. STAT. § 18-6-803.5(3), we do not so hold. Rather, we con-

clude that the statute’s force derives from the existence of a restraining

order issued by a court on behalf of a particular person and directed at

specific individuals and the police.

In this context, we disagree with the dissenters’ assertions that be-

cause the police are not named parties in the restraining order, they are

therefore not bound to enforce its terms. See Kelly, J., dissent at 12;

O’Brien, J., disseat at 8-9, 15-16. Surely the dissenters do not mean that

police officers in Colorado are at liberty to ignore the terms of court or-

ders, especially where such orders clearly direct police enforcement and

19a

The district court concluded that any duty imposed upon

police officers to enforce restraining orders is triggered only

upon an officer’s probable cause determination that the re-

straining order was being violated. According to the district

court, because an officer’s probable cause determination im-

plicitly requires the use of judgment and discretion, no abso-

lute duty is derived from the language mandating arrest and

hence no protected property right existed. The district court

is incorrect.

There can be no question that the restraining order here

mandated the arrest of Mr. Gonzales under specified circum-

stances, Or at a minimum required the use of reasonable

means to enforce the order. Those circumstances were de-

fined by the restraining order which told the police what its

objective terms were and commanded_that an arrest occur

upon an officer’s probable cause determination that the order

was being violated and that Mr. Gonzales had notice of the

order. The restraining order here specifically directed, with

only the narrowest of exceptions, that Mr. Gonzales stay

are issued pursuant to legislation anticipating the same. See COLO. REV.

STAT. § 18-6-803.5(3)(a)&(b). Other states, in clarifying the duties of

police officers in these situations, have by no means sanctioned an offi-

cer’s failure to enforce terms appearing in a restraining order and man-

dated by statute. See, e.g., Matthews v. Pickett County, 996 S.W.2d 162,

164 (Tenn. 1999) (in state tort action, officers were required to arrest

offending party upon reasonable cause that party was violating reztrain-

ing order where order as well as statute mandated arrest in such situa-

tions); Campbell v. Campbell, 294 N.J. Super. 18, 682 A.2d 272, 275

(N.J. Super. Ct. Law Div. 1996) (officer not immune from liability in

negligence action where legislature “made it clear that a police officer

must enforce a domestic violence order and all other laws which protect

domestic violence victims”), rejected in part on other grounds by

Macaluso v. Knowles, 341 N.J. Super. 112, 775 A.2d 108, 111 (NJ. Su-

per. Ct. App. Div. 2001); Nearing v. Weaver, 295 Ore. 702, 670 P.2d

137, 142 (Or. 1983) (while restraining order was not addressed to police,

they nonetheless had duty pursuant to statute to enforce terms of order

when they had probable cause to believe order had been served and filed

and named party had violated order).

20a

away from Ms. Gonzales and her daughters. Thus, the re-

straining order provided objective predicates which, when

present, mandated enforcement of its terms. See Olim, 461

U.S. at 249; Crown Point I, LLC v. Intermountian Rural

Elec. Ass’n, 319 F.3d 1211, 1216-17 (10th Cir. 2003);

Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 2000);

Wash. Legal Clinic for the Homeless v. Barry, 323 U.S. App.

D.C. 219, 107 F.3d 32, 36 (D.C. Cir. 1998); Mallette v.

County Employee's Supplemental Ret. Sys. II, 91 F.3d 630,

635-36 (4th Cir. 1996).

In this context, and contrary to the district court’s con-

clusion, a police officer’s finding of probable cause is not a

wholly discretionary determination which undermines the

mandatory edict of the restraining order or statute. While an

officer must obviously exercise some judgment in determin-

ing the existence of probable cause, the validity and accuracy

of that decision is reviewed under objectively ascertainable

standards and judged by what a reasonably well-trained offi-

cer would know. See Malley v. Briggs, 475 U.S. 335, 345, 89

L. Ed. 2d 271, 106 S. Ct. 1092 (1986). See also Beck v.

Ohio, 379 U.S. 89, 96, 13 L. Ed. 2d 142, 85 S. Ct. 223

(1964) (“When the constitutional validity of an arrest is chal-

lenged, it is the function of a court to determine whether the

facts available to the officers at the moment of the arrest

would warrant a man of reasonable caution in the belief that

an offense has been committed.”) (quotation and citation

omitted); United States v. Davis, 197 F.3d 1048, 1051 (10th

Cir. 1999) (probable cause is measured against objective

standard and evaluated against what a prudent, cautious and

well trained officer would believe).

In Alten, the Supreme Court noted one could use the term

“discretion” in two distinct ways.'° “In one sense of the

'° As we previously pointed out, while the Supreme Court has precluded

use of the statutory analysis employed in Allen to determine the existence

2la

word, an official has discretion when he or she ‘is simply not

bound by standards set by the authority in question.’” Allen,

482 U.S. at 375 (citing R. DworKIN, TAKING RIGHTS

SERIOUSLY 32 (1977)). In the alternative, “the term discre-

tion may instead signify that ‘an official must use judgment

in applying the standards set him [or her] by authority.’” Jd.

(citing DWORKIN, supra at 31, 32). See also Watson v. City

of Kansas City, 857 F.2d 690, 695 (10th Cir. 1988) (the de-

termination of probable cause “represents a judgment call on

the part of the officer or officers at the scene taking into ac-

count the particular circumstances. Although there are

Clearly guidelines, much depends upon the individual offi-

cers’ assessment.”). In Allen, the Supreme Court concluded

parole guidelines created a liberty interest in parole where

the guidelines mandated release upon the parole board’s

finding of certain factors. Allen, 482 U.S. at 381. While the

parole board did have discretion within the Court's latter

definition of the term to determine whether a prisoner satis-

fied the release criteria, such discretion did not extinguish

the protected interest. So too in the instant case, where a

court has specified the objective circumstances in which the

police officer is required to act.

An officer must certainly exercise a measure of judgment

and discretion in determining whether probable cause exists.

However, in making that decision, the officer is bound to

“facts and circumstances within the arresting officer's

knowledge and of which he or she has reasonably trustwor-

thy information [which] are sufficient to lead a prudent per-

son to believe the arrestee has committed or is committing an

offense.” Guffey v. Wyatt, 18 F.3d 869, 873 (10th Cir. 1994)

(internal quotation omitted). See also Nearing v. Weaver,

295 Ore. 702, 670 P.2d 137, 142 & n.7 (Or. 1983) (duty to

arrest domestic order violator not discretionary despite re-

of liberty interests in a prison setting, see Sandin, 515 US. at 482-83,

application of its reasoning to other settings remains valid, id. at 481.

22a

quirement that arrest be supported by probable cause);

Campbell v. Campbell, 294 N.J. Super. 18, 682 A.2d 272,

274-75 (N.J. Super. Ct. Law Div. 1996) (same), rejected in

part on other grounds by Macaluso v. Knowles, 341 NJ. Su-

per. 112, 775 A.2d 108, 111 (NJ. Super. Ct. App. Div.

2001). Thus, an officer’s determination of probable cause is

not so discretionary as to eliminate the protected interest as-

serted here in having the restraining order enforced accord-

ing to its terms. The officer must make a decision which,

upon review, will be deemed right or wrong. Moreover, once

probable cause exists, any discretion the officer may have

possessed in determining whether or how to enforce the re-

straining order is wholly extinguished. If the officer has

probable cause to believe the terms of the court order are be-

ing violated, the officer is required to arrest or to seek a war-

rant to arrest the offending party.

We also acknowledge there are some settings in which an

officer’s need to make split-second decisions in exigent cir-

cumstances might undermine a claim for protection under

the Fourteenth Amendment. Cf. Lewis, 523 U.S. at 854-55

(substantive due process context). The officers here, how-

ever, were not faced with the necessity of making an instant

judgment in a rapidly evolving situation. More importantly,

they were not given carte blanche discretion to take no action

whatsoever. The restraining order and its enforcement statute

took away the officers’ discretion to do nothing and instead

mandated that they use every reasonable means, up to and

including arrest, to enforce the order’s terms.

Nor do we believe the language commanding that the of-

ficers use “every reasonable means to enforce this restraining

order,” Restraining Order at 2, undermines the order’s man-

datory nature. First, the order’s more general command of

enforcement by “every reasonable means” does not negate

its more specific command that officers shall make arrests or

23a

obtain arrest warrants when certain requirements are met.'

ey agence tiaeneagee vine —eerangs mwa

every reasonable means to enforce the order simply indicates

there may be instances where the mandatory duty of enforc-

ing a restraining order could be accomplished through means

other than arrest. Such a position is not unprecedented.

Courts finding an entitlement in the enforcement of protec-

tive orders have defined the property interest in terms of a

reasoned police response or reasonable protection. See Siddle

v. City of Cambridge, 761 F. Supp. 503, 510 (S.D. Ohio

1991) (“when a protective order exists . . . there is a govern-

mental duty to protect the individual, the scope of which is a

reasonable protection given the resources of the governmen-

tal agency responsible”); Coffman, 739 F. Supp. at 266 (na-

ture of property right in restraining order is a “reasoned po-

lice response”). Hence, while the police officers may have

some discretion in how they enforce a restraining order, this

by no means eviscerates the underlying entitlement to have

the order enforced if there is probable cause to believe the

objective predicates are met. After all, states are afforaed

vast discretion in how to educate their children, but the exis-

tence of such discretion did not prevent the Supreme Court

from concluding that the ultimate receipt of the benefit - a

'' Accepting as true the well-pleaded facts in Ms. Gonzales’ complaint,

and making all reasonable inferences in her favor, Ruiz v. McDonnell,

299 F.3d 1173, 1181 (10th Cir. 2002), cert. denied 538 U.S. 999, 123 S.

Ct. 1908, 155 L. Ed. 2d 826 (2003), it is clear the police had probable

cause to believe that Mr. Gonzales was violating the order. Even if the

police may have initially questioned Ms. Gonzales’ credibility when she

told them Mr. Gonzales was violating the order, they had information

arguably amounting to probable cause by at least 8:30 p.m. when Ms.

Gonzales informed them her husband had

amusement park. At the very minimum, the police had probable cause

when Ms. Gonzales called the station for the third time at 10:00 p.m.,

well past a mid-week “dinner visit” with young children. They were not

at liberty to second guess the objective terms of the court order, just as

Mr. Gonzales was not at liberty to change its terms.

Fri

fei

24a

free education - was a protected entitlement. See Goss, 419

U.S. at 573-74.

The state’s intent in creating a protected interest in the

enforcement of restraining orders is highlighted by the legis-

lative history for the statute, which emphasizes the impor-

tance of the police’s mandatory enforcement of domestic re-

straining orders. See COLO. REV. STAT. § 18-6-803.5. Rec-

ognizing domestic abuse as an exceedingly important social

ill, lawmakers

wanted to put together a bill that would really attack

the domestic violence problems . . . and that is that

the perpetrator has to be held accountable for his ac-

tions, and that the victim needs to be made to feel

safe.

First of all, . . . the 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 must

apply appropriate sentences, and probation officers

must monitor their probationers closely. And the of-

fender needs tw be somenced to offnderepectiic

therapy.

So this means the entire system must send the same

message and enforce the same moral values, and that

is abuse is wrong and violence is criminal. And so we

hope that House Bill 1253 starts us down this road.

Aplt. Appx. at 121-122, Transcript of Colorado House Judi-

ciary Hearings on House Bill 1253, February 15, 1994 (em-

phasis added). See also Michael Booth, Colo. Socks Domes-

tic Violence, DENVER POST, June 24, 1994, at Al (law

mandates arrest when restraining order is violated or police

suspect domestic violence); John Sanko, Stopping Domestic

Violence: Lawmakers Take Approach of Zero Tolerance as

25a

They Support Bill, Revamp Laws, ROCKY MOUNTAIN

NEWS, May 15, 1994, at SA (police must arrest and remove

accused when answering domestic violence calls). The Colo-

rado legislature clearly wanted to alter the fact that the police

were not enforcing domest.c abuse restraining orders.

Most significantly, the legislature included in the statute

a provision which states that

[a] peace officer arresting a person for violating a re-

straining order or otherwise enforcing a restraining

order shall not be held criminally or civilly liable for

such arrest or enforcement unless the peace officer

acts in bad faith and with malice or does not act in

compliance with rules adopted by the Colorado su-

preme court.

COLO. REV. STAT. § 18-6-803.5(5)(2002). Hence, even if an

officer is mistaken in his or her determination that there is

probable cause a domestic abuse restraining order is being

violated, the officer will only be held liable in very limited

situations. The passage of subsection (5) supports the legisla-

ture’s goal that officers be vigilant and consistent in enforc-

ing restraining orders by relieving them of any fear that an

erroneous enforcement of restraining orders might result in

liability. It also supports our conclusion that the state of

Colorado fully intended that the recipient of a domestic

abuse restraining order have an entitlement to its enforce-

ment.

"? We reject Judge O’Brien’s argument that Colorado’s Government Im-

munity Act (GIA), COLO. REV. STAT. §§ 24-10-101, et seqg., somehow

casts a shadow over Ms. Gonzales’ ability to seek a constitutional rem-

edy for the officers’ failure to enforce the restraining order. By its terms,

the GIA applies only to state torts and has been strictly construed against

the government “in the interest of compensating victims of government

negligence.” Springer v. City & County of Denver, 13 P.3d 794, 798

(Colo. 2000). We have found no case in which the GIA has been invoked

to preclude or limit recovery in a § 1983 procedural due process action.

26a

See, e.g., Hulen v. Yates, 322 F.3d 1229 (10th Cir. 2003) (analyzing

property interest created by contract with state without considering

whether GIA limits remedies); Langley v. Adams County, 987 F.2d 1473

(10th Cir. 1993) (same regarding property interest in employment);

Clouser v. City of Thornton, 676 F. Supp. 228 (D. Cole 1987) (same);

Montoya v. City of Colorado Springs, 770 P.2d 1358 (Colo. Ct. App.

1989) (same); Dickey v. Adams County Sch. Dist. No. 50, 773 P.2d 585

(Colo. Ct. App. 1989) (same). Rather, case law indicates the GIA has

consistently been applied only to Colorado state tort law claims against

government officials even when the case also includes a § 1983 claim.

See, e.g., Robinson v. City & County of Denver, 39 F. Supp. 2d 1257 (D.

Colo. 1999) (state tort claims against public entity barred by GIA but §

1983 claims proceeded); Erickson v. Board of County Comm'rs, 801 F.

Supp. 414 (D. Colo. 1992) ( § 1983 claims analyzed separately from GIA

impact on state tort claims); Stump v. Gates, 777 F. Supp. 808 (D. Colo.

1991) (same). The court in Ruegsegger v. Jefferson County, 197 F. Supp.

2d 1247, 1265-66 (D. Colo. 2001), explained why this is so:

Constitutional claims are derived from rights created by a writ-

ten constitution. In contrast, tort claims generally are based on

common law principles developed through case authority.

Thus, like a federal constitutional claim, a claim based on the

Colorado Constitution does not lie in tort. Therefore, CGIA

immunity does not attach to [a claim for violation of the state

constitution].

Id.

Nor was the GIA invoked or cited by defendants in this case to un-

dermine the validity of Ms. Gonzales’ claim. Rather, defendants cite to

the GIA as providing Ms. Gonzales with a civil remedy for the officer's

failure to enforce the restraining order. See Aplt. Br. at 28 n.7 (“Under

the Colorado Governmefital Immunity Act, §§ 24-10-101, ef seq., 7B

C.R.S. (2002), a party claiming injury could bring a tort claim against a

law enforcement officer by alleging ‘willful and wanton’ conduct, essen-

tially synonymous with the requirement of ‘bad faith or malice’ set forth

within § 18-6-803.5(5), 6 C.R.S. (2002). See COLO. REV. STAT. § 24-10-

118 (2002).”).

The GIA tells us nothing about whether Colorado intended by the

statute before us to support the constitutionally protected entitlement of

enforcement possessed by recipients of a domestic abuse restraining or-

der.

27a

Our conclusion that the domestic abuse restraining order,

whose enforcement is mandated by statute, creates a consti-

tutionally protected entitlement, is supported by case law

from other jurisdictions. As the panel opinion for this case

noted:

In Siddle v. City of Cambridge, 761 F. Supp. 503

(S.D.Ohio 1991), the court concluded that a protec-

tive order obtained pursuant to state law “creates a

property right which incurs a duty on the part of the

government.” Jd. at 509. The state statute there pro-

vided that “any officer of a law enforcement agency

shall enforce a protection order issued . . . by any

court in this state in accordance with the provisions of

the order.” OHIO REV. CODE ANN. § 3113.31(F)(3)

(West 2002) (emphasis added). The court observed

that holders of protective orders are entitled to greater

rights than other citizens and that such an order

“would have no valid purpose unless a means ‘o en-

force it exists.” Siddle, 761 F. Supp. at 509.

Gonzales, 307 F.3d at 1264. Likewise, as we noted earlier, in

Coffman the court concluded that the mandatory language in

the restraining order itself, rather than the state statute which

contained permissive language, created a “property interest

in police enforcement that is cognizable under Roth.”

Coffman, 739 F. Supp. at 264. “An order of court, served

upon the [police] Department, that states that the Department

shall enforce the order is unambiguous. The word ‘shall’ is

mandatory, not precatory, and its use in a simple declarative

sentence brooks no contrary interpretation.” Jd. See also

Campbell, 682 A.2d at 274 (individual officers had duty in

State negligence action to enforce restraining order where

Statute mandated officers arrest violator of order); Nearing,

670 P.2d at 140-42 (same).

Thus, the specific government benefit Ms. Gonzales

-Claims, the government service of enforcing the objective

28a

terms of the court order protecting her and her children

against her abusive husband, fits within the other types of

Roth entitlements acknowledged by the Supreme Court and

is properly deemed a property interest. Police enforcement of

the restraining order, like a free education, Goss, 419 U.S. at

574, continued utility service, Memphis Light, 436 U.S. at

11-12, and welfare or disability benefits, Goldberg, 397 U.S.

at 261-62; Mathews, 424 U.S. at 332, is a government bene-

fit to which Ms. Gonzales and her daughters had a legitimate

claim of entitlement. The state court’s issuance of the re-

straining order to Ms. Gonzales, containing mandatory lan-

guage and specific objective criteria curtailing the decision-

making discretion of police officers, clearly commanded that

the domestic abuse restraining order be enforced. The man-

datory statute, its legislative history, and the grant of immu-

nity tc officers for the erroneous enforcement of restraining

orders provides added weight to our conclusion. For us to

hold otherwise would render domestic abuse restraining or-

ders utterly valueless."°

' We disagree with Judge McConnell’s assertions that our holding

would allow unsuccessful substantive due process !itigants to transform

their claims into procedural due process challenges. Judge McConnell is

correct to note that a procedural due process claim “is based on ‘a denial

of fundamental procedural fairness,’ while a substantive claim is based

on the ‘exercise of power without any reasonable justification in the ser-

vice of a legitimate governmental objective.’” Dissent, McConzell, J., at

3 (citing County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 140 L.

Ed. 2d 1043, 118 S. Ct. 1708 (1998)). However, contrary to Judge

McConnell’s contentions, Ms. Gonzales is not alleging that the officers’

denial of her enforcement rights arose out of unjustified governmental

action. Rather, her claim ‘s that it was procedurally unfair for the police

arbitrarily to decline to perform duties required of them pursuant to a

mandatory court order which provided her a substantive property right

under state law, and pursuant to a state <.atute commanding the same.

Moreover, Ms. Gonzales is not asserting she has a right in the rare air to

specific police action. Cf DeShaney, 48% U.S. at 195 (due process clause,

on its own, does not require “the State to protec’ the life, liberty, and

property of its citizens against invasion by private actors”); Doe by Fein,

29a

“It 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.” Roth,

408 U.S. at 577. There can be no doubt Ms. Gonzales and

her daughters relied on the enforcement of the restraining

order to go about their daily lives. Nor can there be any

doubt, if the alleged facts are proven, that their reliance was

arbitrarily undermined by the officers’ failure to enforce the

restraining order, resulting in an unspeakably tragic outcome.

Having established that Ms. Gonzales has a protected in-

terest in the enforcement of the restraining order, we must

now turn our focus to whether Ms. Gonzales has stated a

93 F.3d at 868-69 (statute outlining procedures cannot alone create pro-

tected interest); Doe by Nelson, 903 F.2d at 502-03 (same). Rather, pur-

suant to her restraining order and COLO. REV. STAT. § 18-6-803.5(3), the

state of Colorado gave Ms. Gonzales a protected interest in police en-

forcement action. Hence, her case clearly falls within the rubric of proce-

dural due process and should be analyzed as such. Contrary to Judge

McConnell’s suggestion, it would be entirely inappropriate to employ

Lewis’ “shocks the conscience” test in this case, as that test applies to

substantive due process violations. See Lewis, 523 U.S. at 854.

Likewise, we find inapposite Judge McConnell’s citation to Reno v.

Flores, 507 U.S. 292, 123 L. Ed. 2d 1, 113 S. Ct. 1439 (1993), to illus-

trate his proposition that Ms. Gonzales is merely trying to recharacterize

a substantive due process claim into a procedural due process one. In

Flores, the Court first determined that illegal immigrant juveniles did not

have a substantive due process liberty interest, pending a deportation

hearing, to be released to someone other than a family member or legal

guardian. /d. at 302-03. Because the juveniles had no liberty interest,

their facial challenge to allegedly flawed INS procedures could not sup-

port their asserted procedural due process claims. /d. at 308-09. In con-

trast to the plaintiffs in Flores, Ms Gonzales possesses a protected inter-

est in the enforcement of the restraining order as granted by the state. Nor

is she challenging the substance of COLO. REV. STAT. § 18-6-803.5(3),

which provides guidance to officers as to the process they should employ

when determining whether to enforce a restraining order. See infra, sec-

tion B. Therefore, Flores is inapplicable here.

30a

claim that she was denied “an appropriate level of process.”

Farthing, 39 F.3d at 1135."

The due process clause of the Fourteenth Amendment

raises no impenetrable barrier to the taking of a per-

son’s possessions. But the fair process of decision

making that it guarantees works, by itself, to protect

against arbitrary deprivation of property. For when a

person has an opportunity to speak up in his own de-

fense, and when the State must listen to what he has

to say, substantively unfair and simply mistaken dep-

rivations of property interests can be prevented.

Fuentes v. Shevin, 407 U.S. 67, 81, 32 L. Ed. 2d 556, 92 S.

Ct. 1983 (1972). “The ‘right to be heard before being con-

demned to suffer grievous loss of any kind . . . is a principle

basic to our society.’ The fundamental requirement of due

process is the opportunity to be heard ‘at a meaningful time

and in a meaningful manner.’” Mathews, 424 U.S. at 333

(quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S.

123, 168, 95 L. Ed. 817, 71 S. Ct. 624 (1951) (Frankfurter,

J., concurring) and Armstrong v. Manzo, 380 U.S. 545, 552,

ing protects an individual’s

use and possession of property from arbitrary en-

croachment [and] minimizes substantively unfair or

mistaken deprivations of property . . . . So viewed, the

prohibition against the deprivation of property with-

out due process of law reflects the high value, em-

bedded in ovr constitutional and political history, that

we place on a person’s right to enjoy what is his, free

of governmental interference.

'* Because the district court dismissed Ms. Gonzales’ procedural due

process claim based on its conclusion that she did not possess a protected

property right, it did not reach the second prong of the procedural due

process analysis, that is, what process is due.

3la

Fuentes, 407 U.S. at 81. Based on the allegations in Ms.

Gonzales’ complaint, she did not receive any process what-

soever prior to the deprivation of her interest in enforcement

of the restraining order. Instead, the officers re y ig-

nored and refused her requests for enforcement.'

The city and officers challenge the contention that Ms.

Gonzales should have been afforded some form of process

prior to their non-enforcement of the restraining order. They

'S Judge McConnell contends that even if Ms. Gonzales has a protected

interest in enforcement of the restraining order, her due process claim

must nonetheless be classified as substantive rather than procedural. In

seeking to distinguish this case from other procedural due process cases,

Judge McConnell states that those cases “did not hinge, as here, on

whether the results were justified, but on whether the plaintiffs had the

Opportunity to be heard by the appropriate officials.” Dissent, McCon-

nell, J., at 7 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 71 L.

Ed. 2d 265, 102 S. Ct. 1148 (1982); Memphis Light, 436 U.S. at 5;

Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893

(1976); Barry v. Barchi, 443 U.S. 55, 61 L. Ed. 2d 365, 99 S. Ct. 2642

(1975); Goss v. Lopez, 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729

(1975); Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct.

2694 (1972); Bd. of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92

S. Ct. 2701 (1972); Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S.

Ct. 1586 (1971); Goldberg, 397 U.S. at 255; Sniadach v. Family Fin.

Corp., 395 U.S. 337, 23 L. Ed. 2d 349, 89 S. Ct. 1820 (1969)). We dis-

agree.

Beyond question, the results in this case were devastating. However,

the issue which we address here is whether the process by which the offi-

cers reached their decision not to enforce the restraining order was arbi-

trary and fundamentally unfair. Cf Lewis, 523 U.S. at 845-46. Hence, as

in the cases where the plaintiffs felt they were arbitrarily denied the right

to bring a legal action, Logan, 455 U.S. at 426-27, to attend public

school, Goss, 419 U.S. at 568-69, to enjoy tenured employment, Perry,

408 U.S. at 595, to possess a business or driver's license, Barry, 443 U.S.

at 63-64; Bell, 402 U.S. at 536, or to receive utility services, disability

benefits, or welfare benefits, Memphis Light, 436 U.S. at 5; Mathews,

424 U.S. at 322; Goldberg, 397 U.S. at 255, this case challenges the

manner by which the police allegedly deprived Ms. Gonzales of her in-

terest in enforcement of the restraining order.

32a

claim Ms. Gonzales’ action against them is precluded by

Parratt v. Taylor, 451 U.S. 527, 537, 68 L. Ed. 2d 420, 101

S. Ct. 1908 (1981), overruled on other grounds by Daniels v.

Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662

(1986), which they cite for the proposition that even if a pro-

tected property right existed, the

necessity of quick action by the State or the impracti-

cality of providing any meaningful predeprivation

process, when coupled with the availability of some

meaningful means by which to assess the propriety of

the State’s action at some time after the initial taking

satisfies the requirements of procedural due process.

Aple. Br. at 27 (citing Parratt, 451 U.S. at 539). They spe-

cifically assert -

there is no practical pre-deprivation process under §

18-6-803.5(3) . . . which can be afforded to the holder

of a restraining order. The only conceivable scenario

would be to require law enforcement to provide no-

tice of a hearing to the recipient and later entertain a

hearing to determine if probable cause exists to be-

lieve that the restraining order has been violated.

Id. at 28. They also contend an adequate post-deprivation

remedy exists. Consequently, they aver that Ms. Gonzales’

claims cannot proceed.

We completely disagree. First,

if the right to notice and a hearing is to serve its full

purpose, then, it is clear that it must be granted at a

time when the deprivation can still be prevented. . . .

No later hearing and no damage award can undo the

fact that the arbitrary taking that was subject to the

right of procedural due process has already occurred.

“This Court has not . . . embraced the general proposi-

tion that a wrong may be done if it can be undone.”

33a

Fuentes, 407 U.S. at 81-82 (citing Stanley v. Illinois, 405

U.S. 645, 647, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972)).

Second, the city and officers’ reliance on Parratt is mis-

placed.

Under Parratt, a plaintiff cannot raise a § 1983 proce-

dural due process claim where the loss of property resulted

from the random and unauthorized actions of a state actor

which made the provision of pre-deprivation process impos-

sible or impracticable, and an adequate state post-deprivation

remedy exists. Parratt, 451 U.S. at 540-41, 543. See also

Hudson v. Palmer, 468 U.S. 517, 533, 82 L. Ed. 2d 393, 104

S. Ct. 3194 (1984) (“an unauthorized intentional deprivation

of property by a state employee does not constitute a viola-

tion of the procedural requirements of the Due Process

Clause of the Fourteenth Amendment if a meaningful post

deprivation remedy for the loss is available”). Conversely,

when the deprivation is caused by established state proce-

dures, the existence of an adequate remedy at state law does

not extinguish a procedural due process claim. See Logan,

455 U.S. at 435-37. See also Zinermon v. Burch, 494 U.S.

113, 136-39, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990).

In Logan, the Court held that the plaintiff suffered a pro-

cedural due process violation because established state pro-

cedures erroneously deprived him of his property interest in

bringing a cause of action. Logan, 455 U.S. at 437. The

Court distinguished the case from Parratt, noting that the

plaintiff's deprivation was not random and unauthorized, but

instead the result of an “‘established state procedure’ that

destroyed his entitlement without according him proper pro-

cedural safeguards.” Jd. at 436.

Of primary importance here, Ms. Gonzales alleges that

her deprivation was not the result of random and unauthor-

ized behavior by the individual officers. Rather, she asserts

the deprivation was the result of a custom and policy of the

City of Castle Rock not to enforce domestic abuse protective

34a

orders. In accordance with Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978),

local governing bodies . . . can be sued directly under

§ 1983 for monetary, declaratory, or injunctive relief

where, as here, the action that is alleged to be uncon-

stitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted

and promulgated by that body’s officers. Moreover,

_. . local governments, like every other § 1983 “per-

son,” by the very terms of the statute, may be sued for

constitutional deprivations visited pursuant to gov-

ernmental “custom” even though such a custom has

not received formal approval through the body’s offi-

cial decisionmaking channels. . . . “Although not au-

thorized by written law, such practices of state offi-

cials could well be so permanent and well settled as to

constitute ‘custom or usage’ with the force of law.”

Monell, 436 U.S. at 690-91 (quoting Adickes-v. S. H. Kress

& Co., 398 U.S. 144, 167-68, 26 L. Ed. 2d 142, 90 S. Ct.

1598 (1970)). See also Murrell v. Sch. Dist. No. 1, 186 F.3d

1238, 1249 (10th Cir. 1999) (“Absent . . . an official policy,

a municipality may also be held liable if the discriminatory

practice is so permanent and well settled as to constitute a

custom or usage with the force of law.”) (quotations omit-

ted). A municipality may also be liable for the “actions of an

employee who is not a final policymaking authority if a

widespread practice exists to the end that there is a custom or

usage with the force of law.” Sauers v. Salt Lake County, |

F.3d 1122, 1129 (10th Cir. 1993) (quotation omitted); see

also Bd. of County Comm'rs of Bryan County v. Brown, 520

U.S. 397, 404, 137 L. Ed. 2d 626, 117 S. Ct. 1382 (1997).

Accepting as true the well-pleaded facts in Ms. Gonza-

les’ complaint, and making all reasonable inferences in her

favor, Ruiz, 299 F.3d at 1181, Ms. Gonzales has stated a

claim of municipal liability against the City of Castle Rock

35a

for the deprivation of her property interest without proce-

dural due process. She alleges that “the City of Castle Rock,

through its police department, has created an official policy

or custom of failing to respond properly to complaints of re-

straining order violations” and “the City’s police department

maintains an official policy or custom that recklessly disre-

gards 4 person’s rights to police protection with respect to

protective orders, and provides for or tolerates the non-

enforcement of protective orders by its police officers... .”

Aplt. Appx. at 12.'° Based on these allegations, Ms. Gonza-

les has asserted that the deprivation of her property right was

not the result of random and unauthorized acts, but instead

was pursuant to an official policy or custom of the city. Just

as the plaintiff in Logan could not be deprived of his prop-

erty right by a defective state procedure that afforded him no

process, neither may Ms. Gonzales’ property right be denied

by the city’s alleged custom of refusing to enforce restrain-

ing orders. In concert with Logan, and based on Ms. Gonza-

les’ complaint against the City of Castle Rock and the indi-

vidual officers, her procedural due process claims are there-

fore not precluded by Parratt.

Courts dealing with the convergence of Monell claims

and Parratt defenses have held accordingly. For example, in

Brooks v. George County, 84 F.3d 157 (Sth Cir. 1996), the

court held that

where a municipal officer operates pursuant to a local

custom or procedure, the Parratt/Hudson doctrine is

inapposite: actions in accordance with an “official

policy” under Monell can hardly be labeled “random

and unauthorized,” . . . . Where employees are acting

in accord with customary procedures, the “random

ge eeumenen aeee Gaes Oo cy te Witte Or te Ailes w tn

officers as to y should respond to complaints of restraining or-

der violations. . . .” Aplt. Appx. at 12.

36a

and unauthorized” element required for the applica-

tion of the Parratt/Hudson doctrine is simply not met.

Id. at 165 (citations omitted). Likewise, in Wilson v. Civil

Town of Clayton, 839 F.2d 375 (7th Cir. 1988), the court

stated:

when it is the Town itself that is being sued, and the

suit is allowed under Monell because the action was

executed in accordance with “official policy,” the tor-

tious loss of property can never be the result of a ran-

dom and unauthorized act. Therefore, a complaint as-

serting municipal liability under Monell by definition

States a claim to which Parratt is inapposite.

Wilson, 839 F.2d at 380. See also Macene v. MJW, Inc., 951

F.2d 700, 706 (6th Cir. 1991) (when plaintiff brings munici-

pal liability action claiming established state procedures de-

prived him of property interest, Parratt not applicable); Mat-

thias v. Bingley, 906 F.2d 1047, 1058 (Sth Cir. 1990) (“ra-

tionale of Parratt . . . does not apply when the challenged

actions comply with City policy”); Sullivan v. Town of Sa-

lem, 805 F.2d 81, 86 (2d Cir. 1986) (if conduct of official

was pursuant to town policy, Parratt not applicable); Sand-

ers Vv. Kennedy, 794 F.2d 478, 482 (9th Cir. 1986) (Parratt

does not apply in § 1983 action against individual officers

and chief of police where plaintiff alleged property damage

incurred during course of arrest was result of official policy,

practice or custom); McKee v. Heggy, 703 F.2d 479, 482-83

(10th Cir. 1983) (where record suggested plaintiff's seized

car was sold by police department pursuant to customary

procedures treating seized vehicles as abandoned, city could

be held liable for violation of procedural due process

claims).

Thus, when the issue is a deprivation resulting from a

municipal policy, not the random acts of rogue officers, nei-

ther the city nor individual officers can seek refuge under

Parratt. See Matthias, 906 F.2d at 1058 (city not shielded by

37a

Parratt from § 1983 liability for acts in compliance with city

policy); McKee, 703 F.2d at 482-83 (same); Amons v. Dist.

of Columbia, 231 F. Supp. 2d 109, 114 (D.D.C. 2002)

(same); Brooks, 84 F.3d at 165-66 (individual officers sued

in individual and official capacities may not rely on Parratt

where deprivation is result of local custom or procedure);

Alexander v. leyoub, 62 F.3d 709, 712-13 (Sth Cir. 1995)

(same); Sullivan, 805 F.2d at 86 (same). Therefore, the asser-

tions of the city and officers that pre-deprivation process was

impossible and post-deprivation proceedings adequate are

inapposite here.

deficient under FED. R. CIV. P. 12(b)(6). We thus have no

record of what the police actually did or considered, or of

what the City’s policy actually is. In general, however, we

note that “due process is flexible and calls for such proce-

dural protections as the particular situation demands.” Mor-

rissey Vv. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S.

Ct. 2593 (1972). In Mathews, the Supreme Court highlighted

the “truism that “due process, unlike some legal rules, is not

a technical conception with a fixed content unrelated to time,

place and circumstances.” Mathews, 424 U.S. at 334 (quot-

ing Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 6 L.

Ed. 2d 1230, 81 S. Ct. 1743 (1961)). “The hearing ‘need not

be elaborate;’ indeed, “something less than a full evidentiary

hearing is sufficient."” Benavidez v. City of Albuquerque,

101 F.3d 620, 627 (10th Cir. 1996) (quoting Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 545, 84 L. Ed. 2d 494,

105 S. Ct. 1487 (1985)). For example, in Memphis Light, 436

U.S. at 16 & n.17, the Supreme Court held due process satis-

fied when prior to the termination of utility services, the cus-

tomer had an opportunity to informally consult with and pre-

sent her case to a designated employee of the company who

had authority to correct any billing mistakes. Likewise, in

Goss the Court held that before a student could be suspended

from school, he had to

38a

be given oral or written notice of the charges against

him and, if he denies them, an explanation of the evi-

dence the authorities have and an opportunity to pre-

sent his side of the story. The Clause requires at least

these rudimentary precautions against unfair or mis-

taken findings of misconduct and arbitrary exclusion

from school.

Goss, 419 U.S. at 581 (emphasis added).

Judge McConnell implies that Ms. Gonzales did receive

some form of a hearing from the officers and hence her com-

plaint cannot be construed as challenging the lack of process

she received, but, instead, is a challenge to the results of that

hearing. Dissent, McConnell, J., at 6. We wholly disagree

that Ms. Gonzales’ repeated phone calls to the police de-

partment and the officers’ seemingly outright dismissal of

her claims constitutes “the opportunity to be heard at a

meaningful time and in a meaningful manner.” Mathews,

424 U.S. at 333. According to Ms. Gonzales’ complaint, in

effect no one was listening.

In specifically determining what process is due a plain-

tiff, a court must balance

three distinct factors: First, the private interest that

will be affected by the official action; second, the risk

of an erroneous deprivation of such interest through

the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and fi-

nally, the Government’s interest, including the func-

tion involved and the fiscal and administrative bur-

dens that the additional or substitute procedural re-

Id. at 335. See also Watson v. Beckel, 242 F.3d 1237, 1240

(10th Cir. 2001); Clark v. City of Draper, 168 F.3d 1185,

1189 (10th Cir. 1999). Although the balancing test required

by Mathews cannot be undertaken without a developed re-

cord, we note that the likelihood here of serious loss is pat-

39a

ently evident by the very facts of this case, the murder of

children the order was obtained to protect. See Mathews, 424

U.S. at 335. If the “discontinuance of water or heating even

for short periods of time may threaten health and safety,”

thereby requiring pre-deprivation process, Memphis Light,

436 U.S. at 18, certainly one’s interest in the enforcement of

a domestic abuse protective order must be deemed equally

vital. See also Bell, 402 U.S. at 539 (possession of driver’s

license “essential in the pursuit of a livelihood” and cannot

be denied without pre-deprivation process); Goldberg, 397

U.S. at 263 (discontinuation of welfare benefits constitutes

“grievous loss” meriting pre-deprivation process). Moreover,

if it should turn out the officers repeatedly ignored and de-

nied Ms. Gonzales’ requests for enforcement, it follows that

no procedures of any form were employed to minimize the

risk of erroneous deprivation, see Mathews, 424 U.S. at 335

(court must examine “risk of an erroneous deprivation of

such interest through the procedures used, and the probative

value, if any, of additional or substitute procedural safe-

guards”), resulting in what can only be described as the arbi-

trary denial of a protected interest. See Lewis, 523 U.S. at

845-46. Clearly then, additional procedural safeguards could

have prevented the risk of erroneous deprivation of Ms. Gon-

Zales’ protected interest.

Applying the Mathews analysis to the allegations here, it

is apparent that the restraining order enforcement statute

provides direction in answering the question of what addi-

tional procedural safeguards could have been employed by

the police officers. See COLO. REV. STAT. § 18-6-803.5. In

our earlier discussion, we held the restraining order’s spe-

cific terms, mandatory language, and objective predicates

erty interest in the enforcement of the domestic abuse protec-

tive order granted to Ms. Gonzales. The statute, while absent

the specificity of the restraining order, nonetheless guides

officers as to the process they should provide a holder of a

40a

restraining order before depriving that individual of his or

her enforcement rights.

The statute directs police officers to determine whether a

valid order exists,'’ whether probable cause exists that the

restrained party is violating the order, see COLO. REV. STAT.

§ 18-6-803.5(3)(b)(I), and whether probable cause exists that

the restrained party has notice of the order. See COLO. REV.

STAT. § 18-6-803.5(3)(b)(II)."* If, after completing these

three basic steps, an officer finds the restraining order does

not qualify for mandatory enforcement, the person claiming

the right should be notified of the officer’s decision and the

reason for it.

These steps, while admittedly abbreviated, appropriately

acknowledge the exigent circumstances which accompany a

request to enforce a domestic abuse protection order and are

sufficiently flexible to meet the demands of that particular

situation. See Morrissey, 408 U.S. at 481. While this proce-

dure obviously does not provide Ms. Gonzales with the op-

portunity for a full court hearing, it is not essential that it

does so. See Benavidez, 101 F.3d at 627 (something less than

full evic«ntiary hearing can be sufficient to satisfy proce-

dural due process). Regardless of its brevity, the procedure

provides the opportunity to present a request for enforcement

to the police and to have it adequately and sufficiently exam-

ined prior to any official decision to deny enforcement. Of

equal imyortance, if followed, the process would minimize

'’ This task can be accomplished by either examining the order in person,

or by checking to see if the order has been entered in the statewide regis-

try of protective orders. See COLO. REV. STAT. § 18-6-803.7 (creating

central registry of protective orders issued in Colorado).

'® In making these determinations, the statute states “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.” COLO. REV. STAT. §

18-6-803.5(3)(c).

4la

the risk of the arbitrary, erroneous or mistaken deprivation of

an individual’s right to have a protection order enforced.

Mathews, 424 U.S. at 335. By completing the three steps laid

out in the statute, the wrongful denial of Ms. Gonzales’ right

could have been prevented, and three lives potentially

spared.

Nor does the identified procedure amount to a substantial

burden upon the interests of police departments and munici-

palities. Indeed, the process would only take minutes to per-

form, and includes tasks offivers regularly perform in the

course of their daily duties. |: der the balancing test required

by Mathews, and reading the allegations of Ms. Gonzales’

complaint in the light most favorable to her, we therefore

determine the scales tip in her favor. Ms. Gonzales’ interest

in having the restraining order enforced was substantial, and

without question the officers’ alleged failure to provide her

with any meaningful process prior to refusing to enforce the

court order erroneously deprived her of her protected enti-

tlement. Moreover, the use of additional safeguards would

have certainly aided in preventing the risk of wrongful dep-

rivation. Finally, requiring the officers to engage in this three

step process prior to depriving an individual of her enforce-

ment rights is hardly an unreasonable burden to place on the

police.

In sum, we conclude that the process set up in the statute

was that the police must, in timely fashion, consider the mer-

its of any request to enforce a restraining order and, if such a

should be arrested. Here, Ms. Gonzales alleges that due to

the city’s policy and custom of failing to properly respond to

complaints of restraining order violations, she was denied the

process laid out in the statute. The police did not consider

her request in a timely fashion, but instead repeatedly re-

quired her to call the station over several hours. The statute

promised a process by which her restraining order would be

42a

given vitality through careful and prompt consideration of an

enforcement request, and the constitution requires no less.

Denial of that process drained all of the value from her prop-

erty interest in the restraining order.

If one considers that constitutional process includes a

right to be heard, Ms. Gonzales was deprived of that process

because, according to her allegations, the police never

“heard” nor seriously entertained her request to enforce and

protect her interests in the restraining order. Alternatively, if

one considers that the process to which she was entitled was

a bona fide consideration by the police of a request to en-

force a restraining order, she was denied that process as well.

According to Ms. Gonzales’ allegations, the police never en-

gaged in a bona fide consideration of whether there was

probable cause to enforce the restraining order. Their re-

sponse, in other words, was a sham which rendered her

property interest in the restraining order not only a nullity,

but a cruel deception.

Based on the well-pleaded facts of Ms. Gonzales’ com-

plaint, we hold that she has adequately stated a procedural

due process claim upon which relief can be granted. She had

a property interest in the enforcement of the restraining order

which was allegedly taken from her without due process of

law. Her § 1983 action can therefore proceed.

We must next address whether the individual officers,

acting pursuant to the official policy or custom of the City of

Castle Rock, were entitled to the defense of qualified immu-

nity. Sullivan, 805 F.2d at 87. Under the doctrine of qualified

immunity, a government actor is not subject to liability -

unless it is “sufficiently clear that a reasonable official would

have understood that his conduct violated the right.” Currier

v. Doran, 242 F.3d 905, 923 (10th Cir.), cert. denied, 534

U.S. 1019, 151 L. Ed. 2d 421, 122 S. Ct. 543 (2001). See

also Lybrook v. Members of the Farmington Mun. Sch. Bd.

43a

of Educ., 232 F.3d 1334, 1337 (10th Cir. 2000); Liebson v.

N. M. Corr. Dep't, 73 F.3d 274, 276(10th Cir. 1996).

“Ordinarily, in order for the law to be clearly established,

there must be a Supreme Court or Tenth Circuit decision on

point, or the clearly established weight of authority from

other courts must have found the law to be as the plaintiff

maintains.” Currier, 242 F.3d at 923 (citing Medina v. City

and County of Denver, 960 F.2d 1493, 1498 (10th Cir.

1992)). In the instant case, we cannot hold that a reasonable

officer would have known that a restraining order, coupled

with a statute mandating its enforcement, would create a

constitutionally protected property interest. No Supreme

Court or Tenth Circuit case has so held: Nor have we found

any other circuit court cases addressing this specific ques-

tion. Somewhat analogous cases from the Sixth and Eleventh

Circuits have held that comprehensive state child welfare

Statutes created liberty interests in personal safety and the

freedom from harm which gave rise to procedural due proc-

ess protections. See Meador v. Cabinet for Human Res., 902

F.2d 474, 476 (6th Cir. 1990); Taylor v. Ledbetter, 818 F.2d

791, 799 (11th Cir. 1987) (en banc). Likewise, two district

courts, addressing facts similar to those in the present case,

held that protective orders or their supporting statutes created

a property interest in enforcement. See Siddle, 761 F. Supp.

at 509; Coffman, 739 F. Supp. at 264. Nevertheless, this

precedent is insufficient to clearly establish the law for this

circuit. Officers Ahlfinger, Brink and Ruisi are thus entitled

to the affirmative defense of qualified immunity.

The same cannot be said for the City of Castle Rock. It is

well established that municipalities cannot avail themselves

of the qualified immunity doctrine. See Leatherman v. Tar-

rant Co. Narcotics Intelligence & Coordination Unit, 507

U.S. 163, 166, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993);

Dill v. City of Edmond, 155 F.3d 1193, 1212 (10th Cir.

sta

1998). Ms. Gonzales can proceed with her § 1983 action

against the city.

Accordingly, we REVERSE the district court’s dis-

missal of Ms. Gonzales’ procedural due process claim, and

REMAND for further proceedings in accordance with this

opinion.

KELLY, Circuit Judge, joined by TACHA, Chief Circuit

Judge, and O’BRIEN, Circuit Judge, concurring in part and

dissenting in part.

The facts of this case give new meaning to the old adage

that hard cases make bad law. I understand this court’s desire

to fashion a cause of action to remedy what charitably could

be described as gross negligence. However, I do not agree

that the Fourteenth Amendment elevates what is essentially a

case of negligence by a state actor into a constitutional viola-

tion. Accordingly, I respectfully dissent from the court’s

constitutionalization of state law.

I agree that the individual officers are entitled to quali-

fied immunity, but disagree that a protected property interest

exists “in the enforcement of the terms of [a] restraining or-

der.” Ct. Op. at 14. The court reaches its conclusion based

upon the restraining order and the Colorado statutes upon

which it is based, particularly COLO. REV. STAT. § 18-6-

803.5(3) (2002). Colorado has enacted a statute making it a

misdemeanor to knowingly violate a protective order, and

then specified peace officers’ and prosecutors’ non-exclusive

duties in enforcing the statute as well as the protective order

itself. COLO. REV. STAT. § 18-6-803.5(1)-(3); People v.

Coleby, 34 P.3d 422, 424 (Colo. 2001). A protected person

may also initiate contempt proceedings against one who vio-

lates a restraining order. COLO. REV. STAT. § 18-6-803.5(7).

45a

This court retreats from the holding of the panel opinion

that the statute, by its use of objective predicates and seem-

ingly mandatory outcomes, creates a property interest in the

enforcement of a protective order by every reasonable

means, including arrest whenever probable cause exists to

believe the restrained person has violated the order. Gonzales

v. City of Castle Rock, 307 F.3d 1258, 1265-66 (10th Cir.

2002). Instead, the court holds that the property interest de-

rives from the protective order that is issued by a court pur-

suant to the statute. Ct. Op. at 21 n.9. This is largely a dis-

tinction without a difference, for the same statutory provi-

sions the panel opinion relied upon are repeated in the pro-

tective order.’ Moreover, the protective order binds the par-

ties to it; it cannot bind the peace officers who are non-

parties.

A. Judicial Notice

The court issues its pronouncement by taking judicial no-

tice on appeal (and then supplementing the record with) of

the back of a restraining order form. Obviously, when revers-

ing a district court, we should hesitate to take judicial notice

of (or supplement the record with), ostensibly dispositive

materials not before the district court.

B. Due Process

The panel decision correctly rejected the substantive due

process claims on the authority of DeShaney v. Winnebago

County Dep't of Soc. Servs., 489 U.S. 189, 103 L. Ed. 2d

249, 109 S. Ct. 998 (1989), which held “that a State’s failure

to protect an individual against private violence simply does

not constitute a violation of the Due Process Clause,” id. at

197, absent a special relationship between the State and the

victim or some role of the State in creating the danger. Gon-

zales, 307 F.3d at 1262-63; see also Duong v. County of

' At best, they are repeated as notice provisions, they are not included in

the decretal paragraphs of the order.

46a

Arapahoe, 837 P.2d 226, 229 (Colo. Ct. App. 1992) (reject-

ing claim that county defendants breached a constitutional

duty by failing to protect wife from husband where a perma-

nent restraining order had been issued and the judge specifi-

cally requested security) (citing | Estate of Gilmore v. Buck-

ley, 787 F.2d 714 (1st Cir. 1986)*). Neither exception applies

in this case, and although the facts alleged plainly state a

claim for gross negligence, not every common law duty sup-

ports a federal due process violation.

The Plaintiff, however, invokes a different source of due

process protection by claiming a property interest in the en-

forcement of her protective order, which she argues could

not be deprived without an opportunity to be heard. However

improbable it may be that Ms. Gonzales sought only a hear-

ing on the decision not to enforce the protective order-rather

than enforcement itself-I take her argument at face value and

analyze her case under our procedural due process prece-

dents.’ Defendants argue that the panel’s decision on the

? In rejecting a substantive due process claim on grounds anticipating

DeShaney, the First Circuit cautioned against “an expansive guarantee of

state protective services.” Estate of Gilmore, 787 F.2d at 720.

Enormous economic consequences could follow from the read-

ing of the fourteenth amendment that plaintiff here urges. Fire-

men who have been alerted to a victim’s peril but fail to take

effective action; municipal ambulances which, when called, ar-

rive late; and myriad other errors by state officials in providing

protective services, could all be found to violate the Constitu-

tion. It would seem appropriate that the citizenry, acting though

state legislatures and state courts, should determine how far it

wishes to go in reimbursing claims of this type. We can see no

justification for rewriting the due process clause of the federal

Constitution so as to construct a basis for relief that can more

flexibly be provided elsewhere, if that is deemed advisable.

Id. at 722-23. The same can be said about employing procedural due

process to create an expansive guarantee of state protective services.

* | join the dissents of Judges O’Brien, McConnell and Hartz which rec-

ognize this problem.

47a

procedural due process claim is discordant with DeShaney

because “a private individual need not have a special rela-

tionship with the state, nor must he show the state created or

enhanced the danger to establish a Fourteenth Amendment

violation . . . . Instead, the individual only need cite a state

law containing mandatory language and then assert that a

property interest has been denied without the benefit of pro-

cedural due process.” Aplees. Reh’g Br. at 6. Given that this

Statute primarily sets out a criminal offense and then contains

procedure on how the offense is to be prosecuted, I agree.

In Board of Regents v. Roth, 408 U.S. 564, 569-71, 33 L.

Ed. 2d 548, 92 S. Ct. 2701 (1972), the Supreme Court held

that the procedural due process requirements of the Four-

teenth Amendment apply only where the particular interest at

stake falls within the Amendment’s protection of liberty or

property. Acknowledging that the property interests pro-

tected by procedural due process “extend well beyond actual

ownership of real estate, chattels, or money,” the Court

Stated that it has “at the same time observed certain bounda-

ries. For the words ‘liberty’ and ‘property’ in the Due Proc-

ess Clause . . . must be given some meaning.” Jd. at 572. The

Court went on to define a property interest as an interest

“that a person has already acquired in specific benefits.” Jd.

at 576 (emphasis added). Moreover, the Court added that to

have a property interest in a benefit, the individual claiming

the interest “must have more than a unilateral expectation of

it. He must, instead, have a legitimate claim of entitlement to

it.” Id. at 577.

From Roth, it is apparent that the test for determining

whether an interest in a benefit constitutes “property” for due

process purposes consists of two distinct elements. First, that

benefit must be specific, and second, the individual claiming

the interest must have a legitimate claim of entitlement to the

benefit. It has always been the law that mere procedure con-

tained in a statute does not create a property interest-were it

48a

otherwise every statute prescribing procedure would confer

procedural] due process rights. See Olim v. Wakinekona, 461

U.S. 238, 250-51, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983).

The panel opinion determined that a portion of the stat-

ute, COLO. REV. STAT. § 18-6-803.5(3), goes beyond

establishing mere procedural guidelines, and instead contains

mandatory directives to enforce protective orders if certain

substantive conditions are fulfilled. Gonzales, 307 F.3d at

1264-66. The court now focuses on those same mandatory

directives as contained in the protective order. It concludes

by negative inference that the failure to enforce the protec-

tive order results in a denial of a property interest for which

due process protections are required. See Sandin v. Conner,

515 U.S. 472, 480-81, 132 L. Ed. 2d 418, 115 S. Ct. 2293

(1995); Hewitt v. Helms, 459 U.S. 460, 472, 74 L. Ed. 2d

675, 103 S. Ct. 864 (1983); Cosco v. Uphoff, 195 F.3d 1221,

1223 (10th Cir. 1999). Even though the court has shifted its

primary focus from the statute to the protective order, the

statute very much matters because the form protective order

contains a notice provision (on the back) that essentially re-

peats the statute.

Where an individual claims a property or liberty interest

based upon a state statute or regulation containing mandatory

language, that language must “require that a particular result

is to be reached upon a finding that the substantive predi-

cates are met.” Ky. Dep't of Corr. v. Thompson, 490 U.S.

454, 464, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989); see

also Sandin, 515 U.S. at 481 (describing liberty interest un-

der this approach as an enforceable expectation that manda-

tory language and substantive predicates “would produce a

particular outcome”). Where discretion is not limited, the

language is not mandatory for purposes of this analysis, and

a property or liberty interest is not created. See Olim, 461

U.S. at 249-50 (no liberty interest in limiting prison transfers

where regulations described procedure but did not place sub-

49a

Stantive limit; on discretion). Stated another way, if a par-

ucular result is not required, no liberty or property interest is

created. See hompson, 490 US. at 464.

When the statute is viewed as a whole, it is apparent that

it does not require a particular result in every case and neces-

sarily involves discretion. This is a criminal statute that not

only defines the crime of violation of a protective order, but

also specifies how enforcement, including arrest and prose-

cution, may occur. A general directive in subsection 3(a) re-

quires that “[a] peace officer shall use every reasonable

means to enforce a restraining order.” COLO. REV. STAT. §

18-6-803.5(3)(a). Enforcement of a emg te ~—

level is necessarily procedural-peace not

guilt or innocence, nor do they confer substantive benefits.

including the right to be free of the activities proscribed by

the statute. See id. Subsection 3(b) then elaborates on but

one means of enforcement-arrest-and then contains a totally

unremarkable probable cause requirement. Jd § 18-6-

803.5(3 Xb). It requires a peace officer to arrest a restrained

person on pr

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