Amicus Curiae Brief — Castle Rock v. Gonzales

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No. 04-278

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

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

JOHN P. ELWOOD

Assistant to the Solicitor

General

MICHAELJAY SINGER

HOWARDS. SCHER

Attorne 18

Department of Justice

Washington, DC. 20580-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Tenth Circuit erred in holding that the Town

of Castle Rock is liable under 42 U.S.C. 1983 for violating the

procedural due process rights of respondent, who was issued

a restraining order under state law during divorce proceed-

ings, because police failed to provide adequate procedures

before they declined to arrest her estranged husband for vio-

lating the terms of the order.

(I)

TABLE OF CONTENTS

Interest of the United States

Statutory provisions involved

Statement

Summary of argument

Argument:

Petitioner did not deprive respondent of a protected

“property interest” without due process of law .............

A. Respondent lacked a protected property interest

in police enforcement of the restraining order

1. The language of the restraining order did

not create a property interest in police

enforcement

2. Colorado law does not create a property

interest in police enforcement of a restrain-

ing order

a. Colorado law does not create a manda-

tory duty

b. Colorado law does not support a legiti-

mate claim of entitlement to police enforce-

ment of the restraining order

c. Recognizing a property interest in the

enforcement of restraining orders would

disrupt law enforcement and impose

unwarranted liability

B. Even assuming that respondent had a protected

interest in police enforcement of the restraining

order, the procedures employed were constitu-

tionally adequate

Conclusion

Appendix

(I)

F 8

TABLE OF AUTHORITIES

Cases: Page

Alexander v. Sandoval, 532 U.S. 275 (2001) 20

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40 (1999) .. 13

Archie v. City of Racine, 847 F 2d 1211 (7th Cir.

1988), cert. denied, 489 U.S. 1065 (1989) 23, 26

Atwater v. City of Lago Vista, 532 U.S. 318 (2001) ......... 28

Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003) 16

Barry v. Barchi, 443 US. 55 (1979) 22

Bell v. Burson, 402 U.S. 535 (1971) 21,22

Board of Pardons v. Allen, 482 U.S. 369 (1987) ............... 21

Board of Regents v. Roth, 408 U.S. 564 (1972) ............. 12, 13

Boddie v. Connecticut, 501 U.S. 371 (1971) 27

Brock v. Pierce County, 476 U.S. 258 (1986) 16

California v. Sierra Club, 451 U.S. 287 (198) 20

Cannon v. University of Chicago, 441 U.S. 677

(1979) 20

City of Riverside v. Rivera, 473 U.S. 1315 (1985) ............ 15

Cleveland Bd. of Educ. v. Loudermill, 470 US.

532 (1985) 27

Connecticut Bd. of Pardons v. Dumschat, 452

U.S. 458 (1981) 13, 18

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

cert. denied, 531 U.S. 1081 (2001) 13

DeShaney v. Winnebago County Dep't of Soc.

Servs., 489 U.S. 189 (1989) 5, 11, 25, 30

Dizon v. Love, 431 US. 105 (1977) 28

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

(D.C. Cir. 1996) 22,23

Doe v. Hennepin County, 858 F.2d 1325 (8th Cir.

1988), cert. denied, 490 U.S. 1108 (1989) 23

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

(7th Cir. 1990) 21,23

Estate of Gilmore v. Buckley, 787 F 2d 714 (Ist Cir.),

cert. denied, 479 U.S. 882 (1986) 26, 30

Cases—Continued: Page

Farmer v. City of Nashville, 156 S. W. 189 (Tenn.

1913) 21

French v. Edwards, 80 US. (13 Wall.) 506 (1872) 16

Gilbert v. Homar, 520 U.S. 924 (1997) 27

Goebel v. Colorado Dep't of Insts., 764 Pd 785

(Colo. 1988) 17, 20

Goldberg v. Kelly, 397 U.S. 254 (1970) 22

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) . 19, 20

Goss v. Lopez, 419 U.S. 565 (1975) 21,22

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1

(1979) 21

Heckler v. Chaney, 470 U.S. 821 (1985) 9, 18

Hewitt v. Helms, 459 U.S. 460 (1983) 13, 21, 22

Ingraham v. Wright, 430 U.S. 651 (1977) 27, 30

Jones v. Union County, 296 F. ad 417 (6th Cir. 2002) ..... 22

Kentucky Dep't of Corr. v. Thompson, 490 U.S.

454 (1989) 8, 13, 17, 20

Leake v. Cain, 720 P.2d 152 (Colo. 1986) 19, 20

Linda R. S. v. Richard D., 410 U.S. 614 (1973) 9,18

Mackey v. Montrym, 443 U.S. 1 (1979) 28, 29

Mathews v. Eldridge, 424 U.S. 319 (1976) ............. 6, 26, 27, 28

Meachum v. Fano, 427 U.S. 215 (1976) 18

Memphis Light, Gas & Water Div. v. Craft,

436 U.S. 1 (1978) 21, 22, 29

Moog Indus. v. FTC, 355 U.S. 411 (1958) 18

Morrissey v. Brewer, 408 U.S. 471 (1972) 26

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306 (1950) 29

New York v. Quarles, 467 U.S. 649 (1984)

Olim v. Wakinekona, 461 U.S. 238 (1983)

Paul v. Davis, 424 U.S. 693 (1976) 1. 19

People ex rel. Dunbar v. Gym of Am., Inc.,

493 P. 2d 660 (Colo. 1972) 17

Snowden v. Hughes, 321 US. 1 (1994) 11

South v. Maryland, 59 U.S. (18 How.) 396 (1856) 18

Cases—Continued: Page

Staley v. Vaughn, 17 P.2d 299 (Colo. 1932) 17

Turner v. United States, 248 U.S. 354 (1919 18

United States v. Barnett, 376 U.S. 681 (1964 27

United States v. James Daniel Good Real Prop.,

510 U.S. 43 (1998) 16

United States v. Montalvo-Murillo, 495 U.S. 711

(1990) .... 17

United States v. Watson, 423 U.S. 411649706 29

Vitek v. Jones, 445 US. 480 (1980) 21

Wayte v. United States, 470 U.S. 598 (1885 12, 18

Western Food Plan, Inc. v. District Court,

598 P.2d 1038 (Colo. 1979) .. 17

Youngberg v. Romeo, 457 U.S. 307 (1982) 11

Constitution. statutes and rules:

U.S. Const.

Amend. V 1

Amend. XIV (Due Process Clause) passim

12 U.S.C. 1731b(f) 24

22 US.C. 411100 24

29 U.S.C. 482(b) 24

31 U.S.C. 3730(a) 24

38 U.S.C. Hö 24

42 U.S.C. 1988 4, 19, 20, 26

Cal. Gov't Code § 26601 (West 1988) 24

Colo. Rev. Stat. (2004):

§ 14-4-105 (2003) N 25, 27, 2a

§ 14-10-107(4)(b\(1) (2003) 23

§ 14-10-108 2, la

§ 14-10-108(2) 14, la

§ 18-1-1001(1) (2003) 23

§ 18-1-1001(7) (2003) 23

§ 18-6-803.5 8. 9, 10, 14, 15, 16, 17, 19

§ 18-6-803.5(1) 14

VII

Statutes and rules: Page

§ 18-6-803.5(1.5)(a.5) 23, la

§ 18-6-803.5(2 (a) 24, la

§ 18-6-803.5(3) 5, 6, 7,8, 14, la

§ 18-6-803.5(3 a) 15, 19, la

§ 18-6-803.5(3)(b) 28, la

§ 18-6-803.5(3)(d) 19, la

§ 18-6-803.5(3 Ve) 20, la

§ 18-6-803.5(6)(a) 20, la

§ 18-6-803.5(7) 25, 27, la

§ 19-2-707(1) (2003) 23

§ 19-2-707(4) (2003) 23

§ 31-4-112 (2003) 16

§ 139-3-15 (1953) 16

Conn. Gen. Stat. Ann. § 10-200 (West 2002) 24

Mass. Ann. Laws ch. 56, § 57 (Law Co-op. 2001) 24

Fed. R. Civ. P. IAN) 4

Colo. R. Civ. P.:

Rule 56(d) 14

Rule 107(c) 25

Miscellaneous:

1 ABA Standards for Criminal Justice (2d ed.

1980 & Supp. 1986) 15, 22

Caitlin E. Borgmann, Note, Battered Women’s

Substantive Due Process Claims: Can Orders of

Protection Deflect DeShaney?, 65 N. V. U. L.

Rev. 1280 (1990) 19

Development in the Responses to Domestic

Violence, 106 Harv. L. Rev. 1498 (1993) 12, 25, 29

W. Page Keetor et al., Prosser and Keeton on the

Law of Torts (5th ed. 1984) 19

Wayne R. LaFave & Jerold H. Israel, Criminal Pro-

cedure (2d ed. 1992) 15, 16

In the Supreme Court of the United States

No. 04-278

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

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case concerns the liability of officials under the Due

Process Clause of the Fourteenth Amendment for failing to

_ protect individuals from private violence. Because of its role

in the investigation and prosecution of federal crimes and in

enforcing other statutory provisions, the United States has a

substantial interest in the development of due process law,

principles of public liability for private wrongs, and qualified

immunity. The same due process principles that apply to

state and local officials under the Fourteenth Amendment

also apply to the federal government under the Due Process

Clause of the Fifth Amendment. Paul v. Davis, 424 U.S.

693, 702 n.3 (1976).

STATUTORY PROVISIONS INVOLVED

The Due Process Clause of the Fourteenth Amendment

provides, in relevant part, “nor shall any state deprive any

person of life, liberty, or property, without due process of

law.” U.S. Const. Amend. XIV, § 1. Relevant statutory pro-

(1)

visions are set forth in an appendix to this brief. See App.,

infra, la-8a.

STATEMENT

1. On May 21, 1999, during divorce proceedings, respon-

dent obtained a temporary restraining order (TRO) against

her estranged husband, Simon Gonzales, from the state dis-

trict court in Douglas County, Colorado. Pet. App. 125a.

See generally Colo. Rev. Stat. § 14-10-108 (2004) (App.,

infra, la). The TRO, which was completed using a standard

printed form, was directed to Mr. Gonzales and stated that

lou may not molest or disturb the peace of the party or of

any child,” Pet. App. 89a, y jou may not transfer, encumber,

conceal, or in any way dispose of any property” except under

specified circumstances, ibid., and “[yJou shall not enter

the home of the other party * and shall remain

at least 100 yards away from [it].” Id. at 90a. Below the sig-

nature and seal of the issuing judge, the TRO form noted

that there were “IMPORTANT NOTICES FOR RE-

STRAINED PARTIES AND LAW ENFORCEMENT OF-

FICIALS ON REVERSE.” Ibid. The printed notices on

the back of the form included a warning to the restrained

party that “YOU MAY BE ARRESTED WITHOUT NO-

TICE IF A LAW ENFORCEMENT OFFICER HAS

PROBABLE CAUSE TO BELIEVE THAT YOU HAVE

KNOWINGLY VIOLATED THIS ORDER.” Id. at 91a.

The “NOTICE TO LAW ENFORCEMENT OFFICIALS”

stated, in relevant part, “YOU SHALL USE EVERY REA-

SONABLE MEANS TO ENFORCE THIS RESTRAIN-

ING ORDER. YOU SHALL ARREST, OR, IF AN

ARREST WOULD BE IMPRACTICAL UNDER THE

CIRCUMSTANCES, SEEK A WARRANT FOR THE

ARREST OF THE RESTRAINED PERSON WHEN YOU

HAVE INFORMATION AMOUNTING TO PROBABLE

CAUSE THAT THE RESTRAINED PERSON HAS VIO-

LATED OR ATTEMPTED TO VIOLATE ANY PRO-

— —

VISION OF THIS ORDER“ and had notice of the order. Id.

at 9la-92a.

Mr. Gonzales was served with the TRO on June 4, 1999.

Pet. App. 125a. The same day, by stipulation of the parties,

the state court “made the TRO permanent,” but modified the

terms. Ibid. The permanent order granted Mr. Gonzales

“parenting time” with the children on alternate weekends,

during two weeks in the summer, and permitted “a mid-

week dinner visit with the minor children” to be arranged

upon “reasonable notice.” C.A. Reh’g App. 30; Pet. App.

125a-126a. The order permitted him “to pick up the minor

children from the home of [respondent] for parenting time

purposes.” C.A. Reh’g App. 30; Pet. App. 5a.

2. Shortly after 5 p.m. on Tuesday, June 22, 1999, without

giving notice to respondent, Mr. Gonzales picked up the

three girls while they were playing outside the home they

shared with respondent. Pet. App. 126a. When respondent

learned they were missing, she suspected that they had been

taken by her husband, who, the complaint alleges, “had a

history of suicidal threats and erratic behavior.” Jbid. At

approximately 7:30 p.m., respondent telephoned the Castle

Rock Police Department for assistance, and two officers

came to her home. Jbid. Respondent showed them a copy of

the TRO and asked that it be enforced and that the three

children be returned to her immediately. The officers stated

that there “was nothing they could do about the TRO” and

suggested that respondent contact the police again if the

children had not returned by 10 p.m. Ibid.

At approximately 8:30 p.m., respondent spoke to Mr. Gon-

zales by telephone, and he told her that he had taken the

children to an amusement park in Denver. Pet. App. 126a.

Respondent contacted one of the officers who had responded

to her earlier call and requested that someone check the

amusement park for Mr. Gonzales and that an all-points

bulletin be issued for him. The officer allegedly refused to do

so, and told respondent to wait until 10 p.m. to see if the

children returned. Id. at 126a-127a. At approximately 10

p.m., respondent called the police and told the dispatcher

that the children had not returned. She was told to call back

at midnight. Id. at 127a.

At midnight, respondent called the police department and

told the dispatcher that the children had not returned.

Respondent then went to Mr. Gonzales’ apartment and

determined that he was not there. Respondent called the

police from the apartment complex and was told to wait

there for an officer to arrive. When no officer had arrived by

12:50 a.m., respondent went to the police station, where an

officer took an incident report but, according to the com-

plaint, did nothing further. Pet. App. 127a.

At approximately 3:20 a.m., Mr. Gonzales arrived at the

police station and began shooting at the station with a hand-

gun. Pet. App. 127a. The police returned fire and killed him.

The police found the bodies of the three girls in his truck;

Mr. Gonzales apparently killed them earlier that evening.

Ibid.

3. Respondent filed suit in federal district court against

the Town of Castle Rock (Town) and several police officers

under 42 U.S.C. 1983. See Pet. App. 124a-130a. Respondent

claimed that the Town and the officers “knowingly failed to

perform their duties to [respondent] and the three children

to protect them from, arrest or restrain Simon Gonzales, and

such failure eonstituted a denial of the due process rights of

[respondent] and the three children.” Id. at 128a. Respon-

dent alleged that the police department “maintains an official

policy or custom that recklessly disregards a person’s rights

to police protection with respect to restraining orders, and

provides for or tolerates the non-enforcement of restraining

orders.” Id. at 129a.

The district court dismissed the complaint for failure to

state a claim. See Fed. R. Civ. P. 12(b)(6). Although the

complaint did not separately allege substantive and proce-

dural due process claims, the court analyzed both theories in

turn. The district court noted that DeShaney v. Winnebago

County Department of Social Services, 489 U.S. 189, 196

(1989), held that the Due Process Clause does not generally

impose on governments a duty to protect individuals from

private violence, and that such a duty arises only when the

government has a “special relationship” with individuals, or

when the government itself creates the danger that causes

the injury. Pet. App. 118a. The court found that neither of

those circumstances was present here. Id. at 119a-120a. The

court rejected respondent’s claim that Colorado Revised

Statutes Section 18-6-803.5(3), which provides in part that an

officer “shall arrest” a restrained person when probable

cause exists that he has violated a restraining order, see

App., infra, 3a, gave respondent a property interest in en-

forcement of the restraining order and that the Town had

deprived her of that interest without due process. The court

concluded that the provision did not create a property inter-

est because its language was not “mandatory” as police had

discretion in determining whether probable cause existed.

Pet. App. 121a-122a.

4. A panel of the court of appeals affirmed the dismissal

of the substantive due process claim, but reversed the dis-

missal of the procedural due process claim. Pet. App. 99a-

112a. The panel held that the language of Section 18-6-

803.5(3) “creates a mandatory duty to arrest when probable

cause is present,” giving the holder of a restraining order “a

legitimate claim of entitlement to the protection provided by

arrest” (Pet. App. 110a) that was subject to due process

protection. Id. at llla.

5. The court of appeals granted rehearing en banc on the

procedural due process issue. Pet. App. 97a-98a. By a 6-5

vote, the en banc court again reversed the dismissal of

respondent’s procedural due process claim, see id. at la-94a,

although the full court adopted a different rationale than the

panel decision.

a. The majority held that the language on the back of the

restraining order, coupled with the “similar” (Pet. App. 18a)

language contained in Section 18-6-803.5, gave respondent a

“property interest in the enforcement of the terms of her

restraining order” (Pet. App. 12a) that entitled her to pro-

cedural due process before police could decline to arrest Mr.

Gonzales. Id. at 12a-29a. The majority emphasized that the

notices on the back of the form stated in “mandatory” (id. at

20a) terms that officers “shall use every reasonable means to

enforce” the order and “shall arrest * * * the restrained

person” when there was probable cause to believe he had

violated the order. Jd. at 17a. Although acknowledging that

“police officers may have some discretion in how they en-

force a restraining order,” id. at 23a, the court concluded

that the order limited police discretion by “mandat[ing] the

arrest of Mr. Gonzales under specified circumstances” (i.e.,

when there was probable cause he had violated the order).

Id. at 19a. j

After considering the factors set forth in Mathews v.

Eldridge, 424 U.S. 319, 335 (1976), see Pet. App. 38a, the ma-

jority concluded that the Due Process Clause requires police

to follow a four-step process before declining to enforce a

restraining order. Under that procedure, an officer must:

determine whether a valid order exists, whether prob-

able cause exists that the restrained party is violating

the order, and whether probable cause exists that the

restrained party has notice of the order. If, after com-

pleting these three basic steps, an officer finds the re-

straining order does not qualify for mandatory enforce-

ment, the person claiming the right should be notified of

the officer’s decision and the reason for it.

Id. at 40a (citations omitted). The majority held that respon-

dent’s claim against the Town could proceed on the theory

that it had an established policy of not enforcing restraining

orders because the police “did not consider [respondent’s] re-

quest [for enforcement] in a timely fashion.” Id. at 4la.

Because the majority could not say that “a reasonable officer

would have known that a restraining order, coupled with a

statute mandating its enforcement, would create a constitu-

tionally protected property interest,” it held that the officers

were entitled to qualified immunity. Id. at 42a-43a.

b. There were four dissenting opinions. Judge Kelly

(joined by Chief Judge Tacha and Judge O’Brien) concluded

that for respondent to have a valid due process claim, the

property interest would have to arise from the language of

Section 18-6-803.5 itself, because the supposedly mandatory

language on which the majority relied was not contained in

“the decretal paragraphs of the order,” but in form notices

that simply paraphrased the language of the statute (Pet.

App. 45a & n.1), and the order did not bind police, who were

“non-parties” to the divorce action. Id. at 45a. The statute,

however, was not distinguishable from other state statutes

providing that police “shall apprehend” offenders that had

never been thought to create a property interest, see id. at

55a. Judge O’Brien (joined by Chief Judge Tacha and Judge

Kelly) dissented on similar grounds, id. at 67a-88a, con-

cluding that the “shall arrest” language of Section 18-6-803.5

“cannot overcome the pervasive understanding that

law enforcement is not liable for failing to protect citizens

from the deliberate actions of third parties.” Id. at 85a.

Judge McConnell (joined by Chief Judge Tacha and

Judges Kelly and O’Brien) concluded that respondent’s argu-

ment that the officers had “arbitrarily and for no legitimate

reason failed to enforce the protective order” was “a quintes-

sentially substantive claim” that was barred by DeShaney,

Pet. App. 60a, and that the majority had improperly recast

the claim as procedural. Id. at 58a-67a. Judge Hartz (joined

by Chief Judge Tacha and Judge Kelly) wrote that the

purportedly mandatory language of Section 18-6-803.5 was

best read as “a hortatory expression by the legislature” that

preserved traditional police enforcement discretion, Pet.

App. 92a-93a, and concluded that respondent had been

afforded due process because she was given the opportunity

to present to police evidence that the restraining order had

been violated and to argue that arrest was the appropriate

response. Id. at 94a.

SUMMARY OF ARGUMENT

The court of appeals majority erred by holding that the

notice on the back of the TRO form, together with Colorado

Revised Statutes Section 18-6-803.5, so restricted the police

officers’ discretion that it “mandated the arrest of Mr.

Gonzales” (Pet. App. 19a) and gave respondent “a protected

property interest in the enforcement of the terms of her

restraining order.” Id. at 1la-12a. The language on which

the majority relied was not in the restraining order itself,

but in a printed notice on the back of the TRO form, below

the judge’s signature. That notice imposed no duty on police,

who were not a party to the litigation, but simply para-

phrased the relevant statute solely for informational pur-

poses. Nor does Section 18-6-803.5 create any mandatory

duty. Although the statute provides that police “shall

arrest” suspected violato.s of restraining orders, that must

be read in light of the discretion implicit in the more general

requirement that. police use only “reasonable” means to

enforce the statute, and in light of the historical understand-

ing that arrest statutes, which commonly are drafted in man-

datory terms, preserve police discretion to make enforce- _

ment decisions based on current resources and needs.

Even if Section 18-6-803.5 imposed a duty of enforcement

on police, it does not follow that respondent had “a legitimate

claim of entitlement” such that she “could reasonably expect

to enforce the[] [statute] against the [police] officials.” Ken-

tucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 465

(1989). The enforcement provisions of the statute concern

a subject—government enforcement decisions—that this

Court has held to be presumptively beyond the scope of judi-

cial review, see generally Heckler v. Chaney, 470 U.S. 821

(1985). In addition, this Court has recognized that private

citizens lack a judicially cognizable interest in the prosecu-

tion of another person, see Linda R.S. v. Richard D., 410

U.S. 614, 619 (1973). Accordingly, courts should recognize an

entitlement to enforcement only when the legislature has

clearly indicated that to be its intent. The language of Sec-

tion 18-6-803.5 points to the opposite conclusion. Because

the enforcement provisions of Section 18-6-803.5 do not even

directly mention the protected party, and regulate the con-

duct of police with respect to the restrained party, they are

best construed to provide procedural guides for police rather

than to create rights in the holders of restraining orders. In

addition, Section 18-6-803.5 does not afford the holders of

restraining orders any right to a hearing or other remedial

action that this Court has taken as evidence of recognition of

a protected interest. Recognizing a property interest in the

enforcement of restraining orders will disrupt law enforce-

ment efforts because the risk of personal liability will force

officials to give detailed consideration to even minor alleged

violations in cases involving no risk of violence, even when it

diverts resources from addressing more serious crimes or

public emergencies.

Even if this Court were to recognize for the first time a

property interest in police enforcement of criminal laws,

police satisfy the requirements of due process when, as here,

they permit the holder of the restraining order to present

evidence of a violation of the order and argue that arrest is

the proper response. The need for formal procedural protec-

tions before police decline immediate enforcement is under-

cut by the fact that the holder of a restraining order also can

enforce its provisions through contempt proceedings, and

police can be asked to reconsider their decision when the

need for immediate enforcement becomes more critical. The

state has a significant countervailing interest in administra-

tive simplicity. The procedures adopted by the court of ap-

peals would not improve decisionmaking because the facts to

be proved by the holder of a restraining order are rarely in

dispute, and enforcement decisions often turn on the avail-

ability of police resources and police assessment of risk,

neither of which would be affected by more elaborate proce-

dural protections. Finally, the lack of historical precedent

for affording citizens formal procedures before police decline

to take enforcement action against third parties counsels

against finding such a right here.

ARGUMENT

PETITIONER DID NOT DEPRIVE RESPONDENT OF A

PROTECTED “PROPERTY INTEREST” WITHOUT DUE

PROCESS OF LAW

By a narrow majority, the court of appeals concluded that

respondent’s restraining order, together with the language

of Colorado Revised Statutes Section 18-6-803.5, so re-

stricted the police officers’ discretion upon a showing that

“specific objective criteria” had been met (Pet. App. 28a)

(de., there was probable cause that the restrained party had

violated the order), that it “mandated the arrest of Mr. Gon-

zales” (id. at 19a), and respondent thus “possessed a pro-

tected property interest in the enforcement of the terms of

her restraining order.” Id. at lla-12a. That conclusion mis-

apprehends the nature of the notices on the back of the TRO

form; fails to consider the statutory language in textual and

historical context; ignores a long tradition of judicial nonin-

terference in executive enforcement decisions; and would

disrupt legitimate police enforcement efforts and saddle mu-

nicipalities with unprecedented and unwarranted liability.

Even accepting the allegations of the complaint as true,

respondent has not stated a procedural due process claim

under the Fourteenth Amendment.

At bottom, respondent advances the same complaint as

the plaintiffs in DeShaney v. Winnebago County Depart-

ment of Social Services, 489 U.S. 189 (1989)—that the State

should have done more to prevent one citizen from inflicting

grievous harm on another. But as this Court emphasized in

DeShaney, the purpose of the Due Process Claus: was “to

protect the people from the State, not to ensure that the

State protected them from each other.” 489 U.S. at 196.

Respondent and the court below identify two differences be-

tween this case and DeShaney: 1) respondent’s claims, un-

like those in DeShaney, are based on obligations imposed by

court order and statute rather than arising from the Due

Process Clause itself; and 2) her claims sound in procedural,

rather than substantive, due process. Neither of those dif-

ferences supports the finding of a constitutional violation

here where none existed in DeShaney.

First, even a much clearer duty on the part of police to

enforce a restraining order than is provided by Colorado law

would not give rise to a due process violation. Even a

statute that imposed on police an absolute duty to arrest in

response to any claimed violation of a restraining order (put-

ting to one side the restrained party’s constitutional objec-

tions to such a statute) would not give rise to a due process

violation in a case where police did not respond. Nothing in

the Due Process Clause converts every failure of a State to

perform a duty mandatory under a state statute into a

federal constitutional violation. E.g., Snowden v. Hughes,

321 U.S. 1, 11 (1944); Youngberg v. Romeo, 457 U.S. 307, 330

n.* (1982) (Burger, C.J., concurring in the judgment).

Second, respondent’s effort to hold the Town accountable

for the harm Simon Gonzales inflicted on respondent’s

daughters does not become viab! hy reconceptualizing it as

a procedural due process claim. Respondent’s effort to have

the courts impose on police a set of procedures for handling

claims of restraining-order violations runs into two obsta-

cles. First, it is difficult to square with the traditional rule

that courts do not review executive enforcement decisions,

e.g., Wayte v. United States, 470 U.S. 598, 608 (1985), as well

as the historical absence of constitutionally imposed proce-

dural requirements for responding to citizen complaints.

More fundamentally, respondent’s real complaint is not with

the procedures applied, but with the Town's failure to

respond promptly to her complaints and prevent a tragedy.

See Pet. App. 63a (McConnell, J., dissenting); see generally

Developments in the Law—Legal Responses to Domestic

Violence, 106 Harv. L. Rev. 1498, 1564 & n.92 (1993) (“to

require procedural protections [for the enforcement of re-

straining orders} * would be pointless” because en-

forcement “does not depend on controvertible facts”; “(tJhis

is one way in which some claims now framed as procedural

due process violations are really about substantive wrongs”).

In the end, as in DeShaney, the real complaint is not a

classic substantive due process claim that a certain law is

beyond the legislature’s power to enact, nor a classic pro-

cedural due process challenge to the sufficiency of the proce-

dures provided by law, but a complaint that the government

should have intervened to prevent a tragedy. As DeShaney

makes clear, the courts have never recognized a constitu-

tional claim of that type.

_A. Respondent Lacked A Protected Property Interest In

Police Enforcement Of The Restraining Order

Because the “requirements of procedural due process

apply only to the deprivation of interests encompassed by

the Fourteenth Amendment’s protection of liberty and prop-

erty,” Board of Regents v. Roth, 408 U.S. 564, 569 (1972), the

“first inquiry in every due process challenge is whether” the

interest asserted by the plaintiff constitutes “a protected

interest in ‘property’ or ‘liberty’” within the meaning of the

Due Process Clause. American Mfrs. Mut. Ins. Co. v. Sulli-

van, 526 U.S. 40, 59 (1999). It is well-settled that only a

limited range of interests fall within this provision.” Hewitt

v. Helms, 459 U.S. 460, 466 (1983). To qualify as a protected

property interest, “the interest must rise to more than ‘an

abstract need or desire,’ and must be based on more than ‘a

unilateral hope.’ Rather, an individual claiming a protected

interest must have a legitimate claim of entitlement to it.”

Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460

(1989) (quoting Roth, 408 U.S. at 577, and Connecticut Bd. of

Pardons v. Dumschat, 452 U.S. 458, 465 (1981)).

I. The Language Of The Restraining Order Did Not ~

Create A Property Interest In Police Enforcement

The court of appeals held that the language of the

restraining order was “so mandatory that it creates a right

to rely on that language thereby creating an entitlement

that could not be withdrawn without due process.” Pet. App.

15a (quoting Cosco v. Uphoff, 195 F.3d 1221, 1223 (10th Cir.

1999) (per curiam), cert. denied, 531 U.S. 1081 (2001)). That

conclusion was mistaken.

First, the language on which the court of appeals relied

was not in the restraining order itself, but in a printed notice

on the back of the form. The operative portion of the order

—the section specifying what the court order commands—is

directed at Mr. Gonzales alone, and begins “IT IS OR-

DERED THAT” and ends with the judge’s signature and

seal. See Pet. App. 89a-90a. While the face of the order,

below the judge’s signature, states “PLEASE NOTE: IM-

PORTANT NOTICES * * * ON REVERSE,” Pet. App.

90a, nothing in the order incorporates those notices by refer-

ence or suggests they are included in the court’s commands.

Second, context indicates that that language was intended to

serve a purely informational function. The language was

explicitly denominated as a “NOTICE” and placed on the

back of the form beneath the judge’s signature, was ad-

dressed only to a nonparty to the litigation, ef. Colo. R. Civ.

P. 65(d) (restraining order “is binding only upon the parties

to the action”), and simply paraphrased relevant Colorado

law. A directive to law enforcement officials is not included

among the provisions that Colorado law explicitly authorizes

a party requesting a restraining order to seek, see Colo. Rev.

Stat. § 14-10-108(2) (2004), and Colorado law does not indi-

cate that an officer’s failure to enforce such an order is a

“violation of a protection order.” Id. § 18-6-803.5(1).

While the restraining order may have, as the majority

concluded, defineſd] [respondent’s] rights,” Pet. App. 16a,

“whatever substantive rights were declared or established

by the court [were] only * * * in relation to her husband,

the only other party to the litigation.” Jd. at 74a (O’Brien, J.,

dissenting). Whatever obligation police had to enforce the

terms of the restraining order stemmed—as respondent

claimed, see, e. g., Resp. C. A. Reh’g Br. 9; Resp. C.A. Br. 9;

Resp. to Mot. to Dismiss 5—not from the notice provisions,

but from the language of Section 18-6-803.5 itself.

2. Colorado Law Does Not Create A Property Interest

In Police Enforcement Of A Restraining Order

The court of appeals’ conclusion also relied on the use of

“mandatory” (Pet. App. 27a) language in Section 18-6-803.5.

“he court noted that that provision states that police “shall

use every reasonable means to enforce a restraining order”

and “shall arrest” when an officer has probable cause that

the restrained person “has violated or attempted to violate”

the order. Pet. App. 18a (emphasis added) (quoting Colo.

Rev. Stat. § 18-6-803.5(3)). The court reasoned that “(t]he

word ‘shall’ is mandatory, not precatory,” id. at 27a, so that

“once probable cause exists, any discretion the officer may

have possessed in determining whether or how to enforce

the restraining order is wholly extinguished.” Id. at 22a.

a. Colorado Law Does Not Create A Mandatory

Duty

While the use of the word “shall” in a statute ordinarily

suggests that action is mandatory, the context of Section 18-

6-803.5 indicates that the police retain discretion in its en-

forcement. To begin with, the provision stating that police

“shall arrest” a suspected violator must be read in the con-

text of the more general command that immediately pre-

cedes it, which provides that police “shall use every reason-

able means to enforce. a protection order,” Colc. Rev. Stat.

§ 18-6-803.1(3)(a) (2004) (emphasis added). That provision

suggests that police may take only those actions that are

reasonable under the circumstances, which necessarily re-

quires the exercise of discretion. Cf. City of Riverside v.

Rivera, 473 U.S. 1315, 1319 (1985) (Rehnquist, J., in cham-

bers) (indicating that what is reasonable“! involves

substantial elements of judgment and discretion”). Indeed,

the notice provided to the restrained party on the back of

the TRO form is consistent with the police officers’ retention

of discretion. See Pet. App. 91a (“YOU MAY BE AR-

RESTED?” if police have probable cause that the order was

violated). Consistent with this language and the statutory

and historical context, no Colorado court has interpreted the

arrest provision of Section 18-6-803.5 to be mandatory.

More fundamentally, the court of appeals’ conclusion over-

looks the unique context of the enforcement of criminal

statutes. Although “{aJrrest statutes are commonly drafted

in mandatory terms,” Wayne R. LaFave & Jerold H. Israel,

Criminal Procedure § 13.2(b), at 625 (2d ed. 1992), and “each

and every state [has] long-standing statutes that, by their

terms, seem to preclude nonenforcement by the police,” 1

ABA Standards for Criminal Justice 1-4.5, commentary, at

1-124 (2d ed. 1980 & Supp. 1986), “it has been recognized that

* * * [those statutes] clearly do not mean that a police

officer may not lawfully decline to arrest.“ Id. at 1-125;

accord Criminal Procedure, supra, § 13.2(b), at 625. For a

number of reasons, including the intentionally broad wording

of criminal statutes and the provision of insufficient re-

sources for their full enforcement, such statutes have long

been construed to permit police to decline enforeement even

when they have probable cause to believe there has been a

violation. As this Court has long recognized, “many statu-

tory requisitions intended for the guide of officers in the

conduct of business devolved upon them . . . do not limit

their power.” United States v. James Daniel Good Real

Property, 510 U.S. 43, 65 (1993) (quoting French v. Edwards,

80 U.S. (13 Wall.) 506, 511 (1872)); ef. Brock v. Pierce

County, 476 U.S. 258, 256, 265 (1986) (holding that statutory

provision stating that the Secretary of Labor “‘shall’ deter-

mine ‘the truth of [an] allegation’” within 120 days was

meant “to spur the Secretary to action, not to limit his

authority”); Barnhart v. Peabody Coal Co., 537 U.S. 149,

158-159 (2003). Courts should be reluctant to construe such

language to constrain executive officers’ traditional discre-

tion to tailor enforcement decisions to current resources and

community needs. See p. 18, infra.

Other provisions of Colorado law confirm that the lan-

guage of Sectior 18-6-803.5 was not meant to impose an in-

flexible duty to arrest. Colorado law has long provided that

the “chief of police, or any member of the police force shall

suppress all riots, disturbances, and breaches of the peace,

shall apprehend all disorderly persons in the city, * * *

shall pursue and arrest any person fleeing from justice,” and

“shall apprehend any person in the act of committing any

offense” and bring that person before a “judge * * * for

examination and trial.” Colo. Rev. Stat. § 31-4-112 (2003)

(emphasis added); see id. § 139-3-15 (1953). We are unaware

of any published decision of a Colorado court indicating that

those provisions create a mandatory duty of enforcement.

The case law suggests the contrary. The Colorado Supreme

Court has interpreted statutes providing that certain action

“shall” be taken as necessarily precatory“ when context

indicated the language was not meant to be binding. Goebel

v. Colorado Dep't of Insts., 764 P.2d 785, 802 (1988). In addi-

tion, that court repeatedly has emphasized that executive-

branch officials have broad discretion over enforcement deci-

sions.’ Thus, Section 18-6-803.5 cannot be said to “mandate[]

the outcome to be reached upon a finding that the relevant

criteria have been met.” Thompson, 490 U.S. at 462.

b. Colorado Law Does Not Support A Legitimate

Claim Of Entitlement To Police Enforcement Of

The Restraining Order

Even if Section 18-6-803.5 were to impose on police a duty

to arrest violators of restraining orders, it would not follow

that respondent had “a legitimate claim of entitlement” to

enforcement such that she “could reasonably expect to en-

force the[] [statute] against the [police] officials.“ Thomp-

son, 490 U.S. at 460, 465; cf. United States v. Montalvo-

Murillo, 495 U.S. 711, 717 (1990) (“There is no presumption

or general rule that for every duty imposed upon * * * the

Government and its prosecutors there must exist some cor-

ollary punitive sanction for departures or omissions.”). The

language of Section 18-6-803.5 cannot be read to create a

legitimate claim of entitlement to enforcement of the re-

straining order and the arrest of her husband.

To begin with, the arrest provisions of the statute concern

a subject—executive enforcement decisions involving third

parties—that traditionally has not been subject to judicial

See, e.g., People ex rel. Dunbar v. Gym of Am., Inc, 493 P.2d 660,

669 (Colo. 1972) (holding that attorney general has authority to “choose,

depending upon the circumstances of the case” from various enforcement

options); Western Food Plan, Inc. v. District Court, 598 P.2d 1038, 1041

(Colo. 1979); ef. Staley v. Vaughn, 17 P.2d 299, 301 (Colo. 1932) (“reason-

able discretion should and must be used to effectively exercise the police

power”).

review. In determining whether a law creates a liberty or

property interest, this Court has observed that decisions

that “have not traditionally been the business of courts

* * * are rarely, if ever, appropriate subjects for judicial

review.” Dumschat, 452 U.S. at 464; accord Meachum v.

Fano, 427 U.S. 215, 225 (1976). A “decision not to prosecute

or enforce, whether through civil or criminal process, is

* * * generally committed to an agency's absolute discre-

tion” and “the presumption is that judicial review is not

available.” Heckler v. Chaney, 470 U.S. 821, 831 (1985).

Courts are “properly hesitant to examine” enforcement deci-

sions because of the traditional executive discretion to de-

cide how best to enforce the law given current resources and

community needs. Wayte, 470 U.S. at 608; Moog Indus. v.

FTC, 355 U.S. 411, 413 (1958) (per curiam). As the Court has

noted in the context of prosecutorial discretion, At his broad

discretion rests largely on the recognition that the decision

to prosecute is particularly ill-suited to judicial review. Such

factors as the strength of the case, the prosecution's general

deterrence value, the Government's enforcement priorities,

and the case’s relationship to the Government’s overall en-

forcement plan are not readily susceptible to the kind of

analysis the courts are competent to undertake.” Wayte, 470

U.S. at 607; accord Chaney, 470 U.S. at 831. Moreover,

because of “the special status of criminal prosecutions in our -

system,” “a private citizen lacks a judicially cognizable inter-

est in the prosecution or nonprosecution of another.” Linda

R. S. v. Richard D., 410 U.S. 614, 619 (1973).

Claims challenging police arrest decisions arise most com-

monly in the context of tort actions arising from the failure

to prevent crimes that caused injury. This Court has long

noted the “lack of a substantive right to recover the damages

resulting from failure of a government or its officers to keep

the peace.” Turner v. United States, 248 U.S. 354, 358 (1919)

(Brandeis, J.); accord South v. Maryland, 59 U.S. (18 How.)

396, 403 (1856) (holding that sheriff was not liable for failure

to prevent kidnapping). The “overwhelming current of deci-

sions * * rejeetls] liability” for failure to provide police

protection. W. Page Keeton et al., Prosser and Keeton on

the Law of Torts 1050 (Sth ed. 1984). Colorado appears to ad-

here to that general rule. E. g., Leake v. Cain, 720 P.2d 152,

160-163 (Colo. 1986).

Because of this background principle that private parties

lack a legally cognizable interest in police enforcement,

courts ordinarily recognize an entitlement to enforcement

only when the legislature has clearly indicated that to be its

intent. But far from clearly creating such an entitlement,

two features of Section 18-6-803.5 suggest the opposite con-

clusion.

First, “the provision[] entirely lack[s}] * * * ‘rights-

creating’ language.” Gonzaga Univ. v. Doe, 536 U.S. 273, 287

(2002). The enforcement provisions of Section 18-6-803.5

narrowly focus on the conduct of police with respect to the

restrained party and do not even mention the protected

party. Thus, the “focus [of those provisions] is two steps

removed” (Gonzaga Univ. v. Doe, 536 U.S. at 287) from the

protected party. The only provisions of the statute that

direct police to take steps with respect to the protected

party are limited to keeping that party informed of events.“

2 A handful of state courts have held that the holder of a protective

order can recover in tort against police officers who negligently fail to

prevent violence by the restrained party. See Caitlin E. Borgmann, Note,

Battered Women’s Substantive Due Process Claims: Can Orders of Pro-

tection Deflect DeShaney’, 65 N. V. U. L. Rev. 1280, 1287 n.4 (1990) (col-

lecting cases). Those cases are of little utility in determining liability

under the much more stringent standards of the Due Process Clause and

Section 1983. This Court Vas cautioned against making “the Fourteenth

Amendment a font of tort law to be superimposed upon whatever systems

may already be administered by the States.” Paul v. Davis, 424 U.S. at

701; accord DeShaney, 489 U.S. at 202.

Colo. Rev. Stat. § 18-6-803.5(3)(a) (2004) (“the protected person shall

be provided with a copy” of the restraining order); id. § 18-6-803.5(3)(d)

The sole provision that discusses the holder of the restrain-

ing order in the context of protective services states merely

that police are “authorized” to provide protection, not that

they “shall” do so, see Section 18-6-803.5(6)(a), suggesting

the legislature did not create any absolute entitlement to

enforcement. See Leake, 720 P.2d at 162-163 (holding that

statute providing that intoxicated persons “shall be taken

into protective custody” did not “create a claim for relief

against police officers who * * * release an intoxicated per-

son” who later causes an accident); Goebel, 764 P.2d at 802

(holding that statutory language stating that legislature

“shall appropriate” funds for services doles] not * * *

create any rights in persons receiving services”).

This Court has consistently held, in discussing whether a

statute creates implied private rights of action or permits

private enforcement under Section 1983, that statutory lan-

guage “that focusles] on the person regulated rather than

the individuals protected create[s] ‘no implication of an in-

tent to confer rights on a particular class of persons.“ Alex-

ander v. Sandoval, 532 U.S. 275, 289 (2001) (quoting Califor-

nia v. Sierra Club, 451 U.S. 287, 294 (1981)); accord Gonzaga

Univ. v. Doe, 536 U.S. at 287; Cannon v. University of Chi-

cago, 441 U.S. 677, 690-693 (1979). Similarly, the statutes

and regulations that this Court has held created a claim of

entitlement under the Due Process Clause consistently have

(At he law enforcement agency * * * shall make all reasonable efforts to

contact the protected party upon the arrest of the restrained person”); id.

§ 18-6-803.5(3)(e) (“The agency shall give a copy of the agency’s report

* * * to the protected party.“). See Thompson, 490 U.S. at 464 n.4

(ATme mandatory language requirement is not an invitation to courts to

search regulations for any imperative that might be found. The search is

for relevant mandatory language that expressly requires the decision-

maker to apply certain substantive predicates in determining whether (a

claimant] may be deprived of the particular interest in question.“).

directly addressed the protected party, rather than simply

regulating a party whose actions affected them.

This Court has interpreted mandatory statutory language

to create a protected interest when it establishes predicates

that appear designed “to protect a substantive interest to

which the individual has a legitimate claim of entitlement.”

Olim v. Wakinekona, 461 U.S. 238, 250 (1983). But the

Court has also noted that t he State may choose to require

procedures for reasons other than protection against sub-

stantive rights, * * * [and] in making that choice the State

does not create an independent substantive right.“ Id. at

250-251. Because the arrest and enforcement provisions of

the statute do not mention the holder of the restraining or-

der, the statutory language directing the police to take cer-

tain actions in investigating an alleged violation of a re-

straining order is best construed as “a set of procedures that

guides [police] in their efforts to prevent [domestic vio-

lence].“ Doe by Nelson v. Milwaukee County, 903 F.2d 499,

* See, e., Board of Pardons v. Allen, 482 U.S. 369, 376 (1987) (statute

provided that “the [parole] board shall release on parole any per-

son confined in the Montana state prison” when criteria were met); Hewitt,

459 U.S. at 471 n.6 (Hi no behavior violation has occurred, the inmate

must be released”); Vitek v. Jones, 445 U.S. 480, 483 n.1, 489-490 (1980)

(statute provided that when a psychologist “finds that a person committed

to the department [of corrections} suffers from a mental disease or defect”

the prison may “arrange for his transfer” to another facility); Greenholtz v.

Nebraska Penal Inmates, 442 U.S. 1, 11 (1979) (statute provided that

when parole board “considers the release of a committed offender * * *

it shall order his release unless” certain conditions are present); Goss v.

Lopez, 419 U.S. 565, 567, 573 (1975) (state law “provides for free education

to all children” and that students cannot be suspended without notification

and a hearing); Bell v. Burson, 402 U.S. 535, 536 n.1 (1971) (statute

provided that State “shall suspend the driver's] license * * * of the

operator and owner of any motor vehicle” involved in an accident unless

specified conditions were met); cf. Memphis Light, Gas & Water Dir. v.

Craft, 436 U.S. 1, 11 (1978) (case law provided that public utility was

“obligated to provide service ‘to all of the inhabitants of the city * * *

without denial, except for good and sufficient cause’”) (quoting Farmer v.

City of Nashville, 156 S.W.189, 190 (Tenn. 1913)).

503 (7th Cir. 1990); accord Doe by Fein v. District of Colum-

bia, 93 F.3d 861, 870 (D.C. Cir. 1996); ef. 1 ABA Standards,

supra, § 1-4.5, commentary, at 1-125 (“As to third parties

* * * the full-enforcement statutes simply have no effect.”).

Second, Section 18-6-803.5 does not attach any procedural

riguts to police enforcement of a restraining order or provide

the holders of such orders any remedies against police. “The

availability of such local-law remedies is evidence of the

State’s recognition of a protected interest.” Memphis Light,

Gas & Water Div. v. Craft, 436 U.S. 1, 11 (1978); Goldberg v.

Kelly, 397 U.S. 254, 266 (1970).° Conversely, the absence of

such protections from the Colorado statutory scheme is a

telling indication that the State has not created an interest of

sufficient stature to be denominated an “entitlement,” and

suggests that the statutes were meant to allow police offi-

cers to retain their traditional discretion (which, of course,

does not require any specific procedures or third-party en-

forcement schemes). The procedures the court below sought

to impose on police officers are novel and would almost

convert police officers into limited-purpose magistrates.

Every ovher federal court of appeals to have addressed

the question has held that comparable domestic-violence pro-

tection schemes do not create a protected liberty or property

interest, even when a protective order has been issued or

officials have made a preliminary determination of a need for

protective services that triggers statutory obligations with

respect to a specific individual.’ The same conclusion is

warranted here.

See Hewitt, 459 U.S. at 470 n.6 (hearing); Goldberg, 397 U.S. at 260

(hearing and judicial review); Barry v. Barchi, 443 U.S. 55, 62 n.9, 64 n.11

(1979) (hearing); Memphis Light, 436 U.S. at 9-10 (state law provided civil

suit for damages); Goss, 419 U.S. at 567, 573 (hearing); Bell, 402 U.S. at

537-538 K n.3 (hearing and judicial review).

5 See, e.g., Jones v. Union County, Tenn., 296 F.3d 417, 429 (6th Cir.

2002) (although state law requirſed] a sheriff to serve” order on re-

strained party, no liberty or property interest implicated where sheriff

7 —

ce. Recognizing A Property Interest In The En-

Sorcement of Restraining Orders Would Disrupt

Law Enforcement And Impose Unwarranted

Liability

The court of appeals’ novel holding that the holders of re-

straining orders have a property interest in their enforce-

ment will, if upheld, adversely affect the operations of law

enforcement operations nationwide. Restraining orders are

extremely common, and are not limited to domestic-relations

cases. Colorado law provides for automatic imposition of a

temporary restraining order in every divorce case, see Colo.

Rev. Stat. § 14-10-107(4)(b)\(1) (2003), and presumptively

provides for a “mandatory restraining order” in every crimi-

nal case and juvenile delinquency case (which also restrains

the juvenile’s parents). Id. §§ 18-1-1001(1), 19-2-707(1). Offi-

cers’ enforcement duties for those restraining orders are

identical to those at issue here. See id. § 18-6-803.5(1.5)\(a.5);

§ 18-1-1001(7); § 19-2-707(4). As noted by amici, 19 States

have adopted statutes directing arrest when police have

probable cause that restraining orders have been violated.

See Br. of Int'l Mun. Lawyers Ass'n & Nat’! League of Cities

in Supp. of Pet’r 5 (petition stage). In addition, many States

and the federal government are subject to statutes that

direct that officials “shall” perform specified tasks under cer-

failed to do so); Doe by Fein, 93 F.3d at 868 & n. (holding that procedural

due process claim based on statute requiring officials to commence an

investigation of reports of neglect was “severely flawed”); Doe by Nelson

v. Milwaukee County, 903 F.2d at 508 (holding that state law requiring

officials to initiate an investigation within 24 hours of receiving report of

abuse did not create a property interest); cf. Doe v. Hennepin County, S58

F.2d 1325, 1328 (8th Cir. 1988) (rejecting claim that use of “the word ‘shall

in the statute’ which requires certain reporting and investigative proce-

dures” “creates a constitutionally protected entitlement”), cert. denied,

490 U.S. 1108 (1989); Archie v. City of Racine, 847 F.2d 1211, 1217-1218

(7th Cir. 1988) (en banc), cert. denied, 489 U.S. 1065 (1989).

tain circumstances.’ Although the court of appeals limited

its holding to cases in which both the restraining order and

the statute purportedly imposed a duty to arrest, see Pet.

App. 18a n.9, such cases will not be uncommon, and it is

foreseeable that “courts could subject governments to

comparable duties when officers have cause to believe a

violation of law has occurred, triggering statutory directives

to investigate or take other action.

Upholding the Tenth Circuit's decision could disrupt law

enforcement efforts by forcing officials to modify enforce-

ment priorities to avoid persona! liability for money dam-

ages. Although the Colorado legislature has classified viola-

tion of a restraining order as a fairly minor offense (it is ordi-

narily a class 2 misdemeanor, see Colo. Rev. Stat. § 18-6-

803.5(2a) (2004)), the prospect of liability would require

police to devote disproportionate resources to every alleged

violation or attempted violation of a restraining order, how-

ever minor and nonviolent (including violations of restric-

tions on encumbering assets, see Pet. App. 89a), in every

* See, ¢.g., 12 U.S.C. 1731b(f) (Secretary promptly “shall investigate”

allegations and “shall order such violation, if found to exist, to cease

forthwith”), 22 U.S.C. 4111(b) (“If a petition is filed with the Board * * *

the Board shall investigate the petition, and if it has reasonable cause to

believe that a question of representation exists, it shall provide an oppor-

tunity for a hearing. 29 U.S.C. 482(b) (“The Secretary shall investigate

such complaint and, if he finds probable cause to believe that a violation of

this subchapter has occurred and has not been remedied, he shall, within

sixty days * bring a civil action.”); 31 U.S.C. 3730(a) (“The Attorney

General diligently shall investigate a violation under section 3729.”); 38

U.S.C. 4325(b) (“The inspector general shall investigate and resolve the

allegation.”); see also Cal. Gov't Code § 26601 (West 1988) (“The sheriff

shall arrest and take before the nearest magistrate for examination all

persons who attempt to commit or who have committed a public offense.”);

Conn. Gen. Stat. Ann. § 10-200 (West 2002) (At he police in any town, city

or borough * * * shall arrest all such children found anywhere beyond

the proper control of their parents or guardians”); Mass. Ann. Laws ch. 56,

§ 57 (Law. Co-op. 2001) (“[pjolice officers * * * shall arrest without a

warrant any person detected in the act of violating any provision of

chapters fifty to fifty-six.”). 82

—

case (including those entered as a matter of course in cases

involving no history or risk of violence). Officers would be

placed in the position of delaying response to more serious

crimes or to public emergencies (such as riots or natural

disasters) to apply the court of appeals’ detailed four-part

procedure to even nonviolent restraining-order violations

because failure to do so would expose them to personal

liability. This Court should “decline to place officers * * *

in the untenable position of having to consider, often in a

matter of seconds,” New York v. Quarles, 467 U.S. 649, 657-

658 (1984), whether to risk personal liability to pursue what

they view to be a more pressing enforcement priority. That

position is not made any easier by the prospect of Section

1983 liability if the officer errs in the other direction by

arresting an individual without probable cause. Cf.

DeShaney, 489 U.S. at 203 (noting that if the State had inter-

vened too soon, it could have faced “charges based on the

same Due Process Clause”). 5

Rejecting respondent's claim would not, as the court of

appeals concluded, render restraining orders “utterly value-

less.” Pet. App. 28a. When the restrained party's “behavior

is not sufficiently serious to support criminal charges, an

order ushers the victim into the legal system” and places

clear and enforceable restrictions on the restrained party's

conduct. See 106 Harv. L. Rev. at 1514. Even if police de-

cline to pursue a violation of a restraining order, the pro-

tected party can initiate contempt proceedings against the

restrained party or (under some circumstances) ask prose-

eutors to bring a contempt action. See Colo. Rev. Stat.

§ 18-6-803.5(7) (2004); id. § 14-4-105 (2003); Colo. R. Civ. P.

107(c). Moreover, in some States, a protected party can

maintain a tort action against officers who fail to enforce a

TRO, subject to whatever limitations state law imposes on

suits against officials. Pursuing any of those courses permits

the holder of a restraining order to enforce the order without

exposing municipal governments and officers to liability

greater than that anticipated by the State legislature. By

contrast, permitting recovery under the Due Process Clause

through Section 1983 creates the possibility of liability far in

excess of that available under state law, which, in the long

term, may cause the jurisdiction to cut back on services (in-

cluding emergency services) to make up budgetary short-

falls. Cf. Archie v. City of Racine, 847 F.2d 1211, 1218, 1223-

1224 (7th Cir. 1988) (en banc) (Easterbrook, J.), cert. denied,

489 U.S. 1965 (1989). Thus, “absent a elear federal statutory

or constitutional mandate, the development of state and

municipal tort liability in this area is best left to state courts

and legislatures.” Estate of Gilmore v. Buckley, 787 F.2d

714, 722 (Ist Cir.), cert. denied, 479 U.S. 882 (1986).

B. Even Assuming That Respondent Had A Protected

Interest In Police Enforcement Of The Restraining

Order, The Procedures Employed Were Constitu-

tionally Adequate

Even if this Court were to recognize for the first time a

property interest in police enforcement of criminal laws, the

four- step procedure adopted by the court of appeals would

far exceed the requirements of due process. Police would

satisfy the requirements of due process when, as here, they

permit the holder of the restraining order “to present

evidence of a violation of the order and * * * to argue why

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

94a (Hartz, J., dissenting).

Due process is flexible and calls for such procedural

protections as the particular situation demands.” Morrissey

v. Brewer, 408 U.S. 471, 481 (1972). To determine what

procedures are warranted in a given situation, this Court

generally considers the three factors outlined in Mathews v.

Eldridge, 424 U.S. 319, 335 (1976): 1) the private interest

affected by the official action; 2) the risk of an erroneous

deprivation of that interest through the procedures used, as

well as the likely value of additional safeguards; and 3) the

government's interest, including the administrative burden

thet additional procedures would impose. Although “‘the

root requirement’ of the Due Process Clause [is] ‘that an

individual be given an opportunity for a hearing before he is

deprived of any significant property interest,” Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting

Boddie v. Connecticut, 501 U.S. 371, 379 (1971)), the Court

has emphasized that the hearing need not be

elaborate.” Id. at 545. The Court has also emphasized the

important role history and tradition play in determining

what procedures are required, noting that when officials

have followed “what ‘has always been the law of the land, the

case for administrative safeguards is significantly less com-

pelling.” Ingraham v. Wright, 430 U.S. 651, 679 (1977)

(quoting United States v. Barnett, 376 U.S. 681, 692 (1964)).

As to the first Mathews factor, the weight to be given

respondent’s interest in police enforcement must be offset by

two considerations. First, police enforcement is not the ex-

clusive method of enforcing a restraining order; in non-

emergencies, a protected party may commence contempt

proceedings against the restrained party and in some cir-

cumtances may ask a prosecutor to do so. Colo. Rev. Stat.

§ 18-6-803.5(7) (2004); id. § 14-4-105 (2003); Pet. App. 91a; ef.

Mathews, 424 U.S. at 343 (weighing availability of alterna-

tive income sources). Second, “in determining what process

is due, account must be taken of ‘the length’ and ‘finality of

the deprivation.“ Gilbert v. Homar, 520 U.S. 924, 932

(1997). An officer’s denial of immediate enforcement gener-

ally is not conclusive of a protected party’s rights. Police

often make decisions about the timing of enforcement based

on then-available resources and their assessment of the need

for immediate action, and may monitor evolving situations so

they can intervene promptly if circumstances become criti-

cal. As in this case, a party can return to police with more

information indicating that immediate enforcement is war-

ranted in light of current circumstances. There is no indica-

tion that the interest asserted by respondent entails a right

to enforcement on a specific timetable; indeed, the statute

purportedly creating the property interest provides that

police may forego immediate arrest and seek a warrant

where immediate action “would be impractical.” Colo. Rev.

Stat. § 18-6-803.5(3)(b) (2004).

On the other side of the balance, the State has a signifi-

cant interest in preserving flexibility and administrative

simplicity by avoiding the imposition of rigid decisionmaking

procedures. See Mathews, 424 U.S. at 348 (noting public in-

terest “in conserving scarce fiscal and administrative re-

sources”); Dixon v Love, 431 U.S. 105, 114 (1977). The court

of appeals’-conclusion that its procedural requirements

would only take “minutes to perform” (Pet. App. 41a) is both

unduly optimistic and overlooks the costs in terms of the

rigidity of the procedure and its administrability by lay-

persons frequently acting under significant time pressure.

Cf. Atwater v. City of Lago Vista, 532 U.S. 318, 347 (2001) (in

Fourth Amendment context, noting “essential interest” in

adopting “readily administrable rules” that are “clear and

simple to be applied”).

The final Mathews factor is the risk of erroneous depriva-

tion and the likely value of any additional procedures.

Althcugh the officers clearly were mistaken about the risk of

violence and need for immediate enforcement in this case,

the “dictates of due process must be shaped by ‘the risk of

error inherent in the truthfinding process as applied to the

generality of cases’ rather than the ‘rare exceptions.’”

Mackey v. Montrym, 443 U.S. 1, 14 (1979). There has been

no showing here that the usual process of informally receiv-

ing information from the holder of the restraining order was

inherently faulty, or that the procedures adopted by the

court of appeals would have brought new facts to the offi-

cers’ attention. Although the procedures adopted by the

court of appeals require police to undertake formal fact-

finding about the existence of a restraining order and of pro-

bable cause that there has been a violation, “neither [of those

facts] has ever been disputed” in this case, Pet. App. 64a

(McConnell, J., dissenting). Nor does it appear that those

facts would often be in dispute, because the order hoider is

likely to be the principal or only witness available to police at

the time an initial enforcement decision is made. A police

decision whether to seek immediate arrest or to wait upon

further developments generally will not turn on facts that a

protected party could prove in more formal proceedings, but

instead likely will depend on matters within the exclusive

knowledge of police .., competing demands on resources),

or upon police assessment of the seriousness of the violation

and the risk of violence. Under such circumstances, there is

little to be gained from more formal procedures. 106 Harv.

L. Rev. at 1564 & n.92; see generally Mackey, 443 U.S. at 14

(holding that predeprivation hearing was unnecessary where

“there will rarely be any genuine dispute as to the historical

facts providing cause for a suspension”).

Under the circumstances, informal oral consultation be-

tween the holder of a restraining order and police wou!d be

sufficient and would provide At he fundamental requisite of

due process of law’: “the opportunity to be heard.” Mullane

v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314

(1950). See, e.g., Memphis Light, 436 U.S. at 16 (due process

satisfied by “the provision of an opportunity for the presen-

tation to a designated employee of a customer’s complaint”

before termination of utility service). There is simply no his-

torical precedent for affording citizens formal procedures

before police decline to take enforcement action against a

third party. In United States v. Watson, 423 U.S. 411 (1976),

this Court rejected the argument that agents should be pro-

hibited from making warrantless arrests based on probable

cause when there was time to obtain a warrant. Although

the Court observed that “an advance determination of pro-

bable cause by a magistrate would be desirable,” because of-

ficers might “improperly assess the facts and thus unconsti-

tutionally deprive an individual of liberty,” the Court “de-

clined to depart from the traditional rule by which the offi-

cer’s perception is subjected to judicial scrutiny only after

the fact.” Ingraham, 430 U.S, at 679-680. “There is no more

reason to depart from tradition and require advance proce-

dural safeguards for intrusions on personal security to which

the Fourth Amendment does not apply.“ Id. at 680.

XR XR X X *

Although the officers’ failure to act promptly in this case

may have caused respondent to suffer a grievous and tragic

loss, it did not deprive her of any interest protected by the

Due Process Clause. The decision of what remedy is to be

afforded her “is best left to state courts and legislatures,”

Estate of Gilmore, 787 F.2d at 722, rather than to have a

remedy “thrust upon the[] [State] by this Court’s expansion

of the Due Process Clause of the Fourteenth Amendment.”

DeShaney, 489 U.S. at 203.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

PAUL D. CLEMENT

Acting Solicitor General

PETER D. KEISLER

Assistant Attorney General

JOHN P. ELWOOD

Assistant to the Solicitor

General

MICHAEL JAY SINGER

HOWARD S. SCHER

Attorneys

DECEMBER 2004

APPENDIX

1. Colorado Revised Statutes § 14-10-108 (2004) provides,

in relevant part:

Temporary order in a dissolution case

(1) Ina proceeding for dissolution of marriage, legal

separation, the allocation of parental responsibilities, or

declaration of invalidity of marriage or a proceeding for

disposition of property, maintenance, or support following

dissolution of the marriage, either party may move for

temporary payment of debts, use of property, maintenance,

parental responsibilities, support of a child of the marriage

entitled to support, or payment of attorney fees. The motion

may be supported by an affidavit setting forth the factual

basis for the motion and the amounts requested.

(1.5) The court may consider the allocation of parental

responsibilities in accordance with the best interests of the

child, with particular reference to the factors specified in

section 14-10-124 (1.5).

(2) Asa part of a motion for such temporary orders or

by an independent motion accompanied by an affidavit,

either party may request the court to issue a temporary

injunction:

(a) Restraining any party from transferring, encum-

bering, concealing, or in any way disposing of any property,

except in the usual course of business or for the necessities

of life, and, if so restrained, requiring him to notify the

moving party of any proposed extraordinary expenditures

and to account to the court for all extraordinary expendi-

tures made after the order is issued;

(b) Enjoining a party from molesting or disturbing the

peace of the other party or of any child;

(la)

the home of the other party upon a showing that physical or

emotional harm would otherwise res It.

(5) A temporary order or temporary injunction:

(a) Does not prejudice the rights of the parties or the

child which are to be adjudicated at subsequent hearings in

the proceeding;

(b) May be revoked or modified prior to final decree

on a showing by affidavit of the facts necessary to revocation

or modification of a final decree under section 14-10-122; and

(e) Terminates when the final decree is entered,

unless continued by the court for good cause to a date cer-

tain, or when the petition for dissolution or legal separation

is voluntarily dismissed.

XR * X X *

2. Colorado Revised Statutes § 14-4-105 (2003) provides:

Violations of orders

A person failing to comply with any order of the court

issued pursuant to this article shall be found in contempt of

court and, in addition, may be punished as provided in sec-

tion 18-6-803.5,C.R.S.

3. Colorado Revised Statutes § 18-6-803.5 (2004)

provides:

Crime of violation of a protection order—penalty

—peace officers’ duties

(1) A person commits the crime of violation of a

protection order if such person contacts, harasses, injures,

intimidates, molests, threatens, or touches any protected

person or enters or remains on premises or comes within a

specified distance of a protected person or premises or

violates any other provision of a protection order to protect

the protected person from imminent danger to life or health,

and such conduct is prohibited by a protection order, after

such person has been personally served with any such order

or otherwise has acquired from the court actual knowledge

of the contents of any such order.

(1.5) As used in this section:

(a) “Protected person” means the person or persons

identified in the protection order as the person or persons

for whose benefit the protection order was issued.

(a.5)(1) “Protection order” means any order that prohibits

the restrained person from contacting, harassing, injuring,

intimidating, molesting, threatening, or touching any

protected person, or from entering or remaining on pre-

mises, or from coming within a specified distance of a pro-

tected person or premises or any other provision to protect

the protected person from imminent danger to life or health,

that is issued by a court of this state or a municipal court,

and that is issued pursuant to:

(A) Article 14 of title 13, C.R.S., sections 18-1-1001, sec-

tion 19-2-707, C.R.S., section 19-4-11, C.R.S., or rule 365 of

the Colorado rules of county court civil procedure;

(B) Sections 144-101 to 144-105, C. R. S., section

1410-107, C. R. S., section 1410-108, C. R. S., or section

19-3-316, C. R. S. as those sections existed prior to July 1,

2004;

cerning a criminal municipal ordinance violation; or

(D) Any other order of a court that prohibits a person

from contacting, harassing, injuring, intimidating, molesting,

threatening, or touching any person, or from entering or

remaining on premises, or from coming within a specified

distance of a protected person or premises.

(II) For purposes of this section only, “protection order”

includes any order that amends, modifies, supplements, or

supersedes the initial protection order. “Protection order”

also includes any restraining order entered prior to July 1,

2003, and any foreign protection order as defined in section

13-14-104, C.R.S.

(b) “Registry” means the computerized information

system created in section 18-6-803.7 or the national crime

information center created pursuant to 28 U.S.C. sec. 534

the order as the person prohibited from doing the specified

act or acts.

XR * X X *

(2)(a) Violation of a protection order is a class 2 misde

meanor; except that, if the restrained person has previously

been convicted of violating this section or a former version of

this section or an analogous municipal ordinance, or if the

protection order is issued pursuant to section 18-1-1001, the

violation is a class 1 misdemeanor.

R * X kK *

(3a) 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-warrant for the

arrest of a restrained person when the peace officer has

information amounting to probable cause that:

(I) The restrained person has violated or attempted to

violate any provision of a protection order; and

(Il) The restrained person has been properly served

with a copy of the protection order or the restrained person

has received actual notice of the existence and substance of

such order.

described in paragraph (b) of this subsection (3), a peace

officer shall assume that the information received from the

registry is accurate. A peace officer shall enforce a valid

protection order whether or not there is a record of the

protection order in the registry.

(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 booking, 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 locally designated agency shall make all reasonable

efforts to contact the protected party upon the arrest of the

restrained person. The prosecuting attorney shall present

any available arrest affidavits and the criminal history of the

6a \

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

person 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 requested against the

restrained person. The agency shall give a copy of the

agency’s report, witness list, and charging list to the pro-

tected 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 telep-

hone number shall not thereafter be made available to any

person, except law enforcement officials and the prosecuting

agency, without order of the court.

(4) If a restrained person is on bond in connection with

a violation or attempted violation of a protection order in

this or any other state and is subsequently arrested for

violating or attempting to violate a protection order, the

arresting agency shall notify the prosecuting attorney who

shall file a motion with the court which issued the prior bond

for the revocation of the bond and for the issuance of a

warrant for the arrest of the restrained person if such court

is satisfied that probable cause exists to believe that a

violation of the protection order issued by the court has

occurred.

(5) A peace officer arresting a person for violating a

protection order or otherwise enforcing a protection 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 supreme court.

(6)(a) A peace officer is authorized to use every

reasonable means to protect the alleged victim or the alleged

victim’s children to prevent further violence. Such peace

officer may transport, or obtain transportation for, the

alleged victim to shelter. Upon the request of the protected

person, the peace officer may also transport the minor child

of the protected person, who is not an emancipated minor, to

the same shelter if such shelter is willing to accept the child,

whether or not there is a custody order or an order

allocating parental responsibilities with respect to such child

or an order for the care and control of the child and whether

or not the other parent objects. A peace officer who trans-

ports a minor child over the objection of the other parent

shall not be held liable for any damages that may result from

interference with the custody, parental responsibilities, care,

and control of or access to a minor child in complying with

this subsection (6).

R K * „ *

(7) The protection order shall contain in capital letters

and bold print a notice informing the protected person that

such protected person may either initiate contempt pro-

ceedings against the restrained person if the order is issued

in a civil action or request the prosecuting attorney to

initiate contempt proceedings if the order is issued in a

criminal action.

(8) A protection order issued in the state of Colorado

shall contain a statement that:

(a) The order or injunction shall be accorded full faith

and credit and be enforced in every civil or criminal court of

the United States, another state, an Indian tribe, or a United

States territory pursuant to 18 U.S.C. sec. 2265;

(b) The issuing court had jurisdiction over the parties

and subject matter; and

(e) The defendant was given reasonable notice and

opportunity to be heard.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.