# Amicus Curiae Brief — Castle Rock v. Gonzales

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0035%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 748

## Text

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

IV

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

25

21

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

VI
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)

2

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-

— —

3

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

4

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

2

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,

6

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

7

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

8

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

9

(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

10

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,

11

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

12

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

13

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-

14

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.

15

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;

16

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

17

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”).

18

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.)

19

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)

20

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.“).

21

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)).

22

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).

24

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

—

25

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

26

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

27

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

28

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-

29

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

30

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)

2a

(c) Excluding 2 party from the family home or from
the home of the other party upon a showing that physical or
emotional harm would otherwise res It.

n

(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.

3a

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;

4a

(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;

(C) An order issued as part of the proceedings con-
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

(c) “Restrained person” means the person identified in
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 *

5a

(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.

(c) In making the probable cause determination
described in paragraph (b) of this subsection (3), a peace
officer shall assume that the information received from the
registry is accurate. A peace officer shall enforce a valid
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

7a

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

8a

(e) The defendant was given reasonable notice and
opportunity to be heard.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0035%3A10. Public record. Not legal advice.