Amicus Curiae Brief — Castle Rock v. Gonzales

No. 04-278

IN THI

Supreme Court of the United States

Ee

FOWN OF CASTLE ROCK, COLORADO,

Petitioner.

V.

JESSICA GONZALES, individually and as next best friend

of her deceased minor children REBECCA GONZALES,

KATHERYN GONZALES, and LESLIE GONZALES,

Respondent

On Writ or CERTIORARI TO THE

Unitrep Stares Court or Aprpeats FoR THE Tentu Circuit

BRIEF OF PEGGY KERNS, FORMER MEMBER OF THE

HOUSE OF REPRESENTATIVES OF THE STATE OF

COLORADO, AND TEXAS DOMESTIC VIOLENCE

DIRECT SERVICE PROVIDERS, AS AMICI CURTAE

IN SUPPORT OF RESPONDENT

James C. HARRINGTON Davip G. HaALt*

SHeri Joy Nasya TOLLIVER

Texas Civit Ricuts Prosect

1405 Montopolis Drive

Austin, TX 7874]

(512) 474-5073

Counsel for Peggy Kerns

ANDREA BELENO

Junie M. BaLovicu

CHRISTINA TREJO

Texas RioGRAND!

LeGaAt Alp, INC

300 S. Texas Boulevard

Weslaco, TX 78596

(956) 968-6574

Counsel for Texas

Direct Service Providers

° ( ‘ounsel of Ree ord

TABLE OF CONTENTS Page

TABLE OF CITED AUTHORITIES ................. mi

INTERESTS OF THE AMICI CURIAE............... l

SUMMARY OF ARGUMENT ..................00000 2

FUPUIRIES i cvtinisacéncecktaysncespetebediancioiethentins 5

I. THE COURT OF APPEALS PROPERLY

RECOGNIZED THAT COLORADO LAW

CREATES A PROTECTED PROPERTY

INTEREST IN MANDATORY POLICE

ENFORCEMENT OF PROTECTION

A. The Colorado Legislature Made a

Conscious Choice of Policy to Require

Mandatory Enforcement When

1. The plain language of the statute

requires mandatory enforcement. 7

2. The context of the statute reveals

an overall purpose of toughening

enforcement measureS............. 9

3. Mandatory enforcement reflects

the legislature's policy choice

that the costs of domestic

violence outweigh the burden of

mandatory enforcement............ 12

Il.

III.

IV.

Contents

B. The Colorado Legislature Gave the

Judiciary Exclusive _ Discretion ‘to

Determine Whether a Person is Entitled

to a Protection Order.................000000s

ELEVATING THE AUTHORITY OF THE

EXECUTIVE BRANCH TO OVERRULE

DECISIONS MADE BY THE

LEGISLATURE AND THE JUDICIARY

WOULD WREAK HAVOC ON

COLORADO’S SEPARATION OF

POWERS DOCTRINE. ............:2seeeseeeees

THE CONSEQUENCES OF _ THE

BREAKDOWN OF THE SEPARATION

OF POWERS IN COLORADO ARE THE

DANGERS THAT INSPIRED THE

MANDATORY ENFORCEMENT

STATUTE. ...cccccccvcccessccsecsseds sousessanagm

CONCLUSION. ......sccccccscccccccescsccovconse

Page

15

18

20

22

ODEO IL

TABLE OF CITED AUTHORITIES

Page

CASES

_ Adams v. Richardson,

156 U.S. App. D.C. 267 (1973) (en banc) ................ ll

Baltimore Gas and Electric Co. v.

Federal Energy Regulatory Comm'n,

252 F.3d 456 (Ct. App. D.C. 2001) ................ceceeees 11

Board of Regents v. Roth,

III ‘dni cvaccdedesecccnsosurenéesceoce 2, 3, 5, 17

Colo. Office of Consumer Counsel v. PUC,

do do ca dunsaenmnnnnees 6

Colorado v. Pena,

III, HITED ccincietsccccocddaccessosesboteonees 18

Daniels v. Williams,

TEES ee Ne ae 20

Dreyer v. Illinois,

I i a rmeenen 6

Gonzalez v. City of Castle Rock,

366 F.3d 1093 (10™ Ct. App. 2004)

IIE alidinitinterdcnsthbabhininesddesscnccmnecs 3, 5, 15, 17

Heckler v. Chaney,

EE UIT IIIT cvutdacocbedsecdudeetchseesbebeoseceseon 11

IV

Cited Authorities

In re 2000-2001 Dist. Grand Jury in & for

the First Judicial Dist.,

FB OSG Fae GR GOED. cxeccccactnsscsusneitccsivcniansenens

In re Interrogatories Propounded by Senate

Concerning House Bill 1078,

SOD Fe SE AE ED haccacccccecatcsctdinetmectinciacian

Miller v. French,

Fe ls BET GED vctcacccevenceséensbbesnsiantansasbaionsaan

National Advertising Co. v. Dep't

of Highways,

poe fof es | ee sere ee

Paul v. Davis,

GRE, Ge GSD cco ccecioctcsdesdactiscensmsenstudsenal

People v. Bagby,

FO de Fee GEAR, DOF. covicccccesutssesdutscisvesiatncnten

People v. Barth,

981 P.2d 1102 (Colo. App. 1999) ..............cccceeeeeeeees

People v. Fuller,

poi & fs | ee ae

People v. Gallegos,

GEO PBS FO GEER. BGT ccccecscoccccscinncoupcccbesenenetinn

People v. Gaskins, si

BaD Pe FO GED. FEED cntercccctcosccncsinntcnsacbiasenten

Vv

Cited Authorities

People v. Newman,

Fe ee EEE, PED cdenecccescscessersoctesnendetuntens 6

United States v. Watson,

a Bk ae ED ccntcdevinsccadenusibitnnnupsiinpintention 16

Youngstown Sheet & Tube Co. v. Sawyer,

eres 18, 21

STATE CONSTITUTION

Colo. Const.

GR. TE. cccocsnccsscncencsccnntesisnciniatansindiiinedibineate 3,5

GR, Bie WE wcaccicsvestinecseaocsiodicetnibiannianiimmstaidis 18

STATE STATUTES

Colo. Rev. Stat. (2004)

OB FRED checicepescecantsevinascnnscetaiunanien 3, 7, 10, 11

BF BREED. ocpecccseccsconsrssntencsctscniepenisantsbekents 16

DED cncoccnstncrsnasecstinesssnbitanepenieaialiia 16

BS REED chacoceceshacsidoreccoveseasetededieindinenias 7,10

PRIMED ccccscnccccsesecsinnicccnonininenedesniangein 7, 10

OD SED detsandsccdenceccsmesssescetncsspeninsidaetnanion 3,7

DB TR | cccscsseccrcevtcnceceuvaiotnimnnsdade 2

DD TID dcccccedtocssvascncscesonbecosbinstantntel 7,10

SD TEED dcicdciccscectociesncdsecctinieginnads 7,10

IE cenesecocasicievscscccsscunsietencsasdaionnnlll 17

GID wiccivecussccessessnssantinsanbicinennniitn 8,9

SD TPG ccccsccacescsercovessnesvisinieeiiinenes 3,7,8

vl

Cited Authorities

FED. succekcccdeietedsdvensuctennsbusetineiaaiai s

i EEE etikedcvccnssacsctctennassadiinnebosntedsiaaaaes Z)

DFID ccncccdeoscescicaéeiséuinenintesasunbetile s

8 DR Ener er eee ny ea 16

Other Authorities

Kathryn Anderson Clark et al., A Cost-Benefit Analysis

of the Violence Against Women Act, 8 VIOLENCE

AGAINST WOMEN 417 (2002) ............ccceeeescccceceeeeees .12

COLORADO COALITION AGAINST DOMESTIC

VIOLENCE, Press Release: Program Shelters

Con.inue to Reach Maximum Capacity Despite

Community Support (Apr. 12, 2004) .................06 13, 14

Costs of Intimate Partner Violence Against Women

in the United States, DEP’T OF HEALTH AND HUMAN SERVS.,

CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC) -

NAT’LCTR. FOR INJURY PREVENTION & CONTROL, 19

SE SUED ccsvciacecdcaccssiieaiecteniiides tntanateuiantintal 13

Melody Fuller & Janet Stansberry, “1984 Legislature

Strengthens Domestic Violence Protective Orders,”

ye OT foe 7

Hearing on H.B. 1253 Before the House Judiciary

Coma, SES LR, GE: GOD cccencsscccccesepcsnepsscveinn 10

Vi

Cited Authorities

Wendy Max et al., The Economic Toll of Intimate

Partner Violence Against Women in the United States,

19 VIOLENCE & VICTIMS 265 (June 2004) .............. 13,14

Ted R. Miller et al., Victim Costs and Consequences:

A New Look, U.S. Dep’T OF JUSTICE, NAT'L INST. OF

SETTER FER. TE CUSSED covecoctsctesémbitiatisnikcteted 14

Connie Platt, Domestic Violence: Impact on the

Workplace, NCADV VOICE (Summer 1993) ............0 13

Elizabeth Topliffe, Note: Why Civil Protection

Orders are Effective Remedies for Domestic Violence

but Mutual Protective Orders Are Not, 67 IND. L.J.

REDON clindiscacaitunccccuimnasanitibtenicaadicauniiags 19, 21

Deborah M. Weissman, Gender-Based Violence as

Judicial Anomoly: Between “The Truly National

and the Truly Local,” 42 B.C. L. REv. 1081

GRINGO cvecistitatimevizbdtindainnniunevegndiiaal 21

Joan Zorza, Women Battering: A Major Cause of

Homelessness, 25 CLEARINGHOUSE REV. 421 (1991) ..... 13

Joan Zorza, Women Battering: High Costs and the

State of the Law, 28 CLEARINGHOUSE REV. 383 (1994) .. 13

INTERESTS OF THE AMICI CURIAE'

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Pursuant to Rule 37.6, amici curiae disclose that no counsel for any

party in this case authorized this brief in whole or in part. No person or

entity other than amici, their members, and their counsel, made a

monetary contribution to the preparation or submission of this brief.

Letters of consent for filing this brief are on file with the clerk.

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are private, non-profit organizations that serve victims of

domestic violence and sexual assault with safe shelter,

counseling, and financial and legal advocacy.

TRLA and the Texas family violence shelters assist

clients with obtaining criminally enforceable civil protective

orders akin to the Colorado protection orders at issue in this

case.” The Texas enforcement statute parallels Colorado’s in

that it mandates peace officers to make arrests for protection

order violations under certain circumstances. As direct

service providers, amici are keenly aware of the dangers of

inconsistent law enforcement response to protection orders:

clients become discouraged from reporting violations and the

violations recur and escalate, sometimes with tragic

consequences. A decision to reverse the Court of Appeals

would adversely impact victims of domestic violence by

rendering illusory the protection promised to them by the

legislature and the courts.

SUMMARY OF ARGUMENT

This is a case about a state legislature’s policy choice

to create an entitlement to mandatory police enisrcement of

protection orders for victims of domestic violence, and a

woman's night to due process for the deprivation of her

entitlement. The first inquiry of this Court is whether Jessica

Gonzales had a protected property interest. In Board of

Regents v. Roth, 408 U.S. 564 (1972), this Court identified

In 2003, the Colorado legislature nonsubstantively amended its

domestic restraining order statute to use the term “protection order,”

clarifying that “protection orders” include any restraining order issued

prior to 2003. See Colo. Rev. Stat. § 18-6-803.5'° SXa5\I) (2004). This

brief will use the term ‘protection order” when referring to the order

obtained by Jessica Gonzales.

the defining characteristics of constitutionally protected

property interests: a benefit, defined by state rules or law,

given to a person and on which the person may reasonably

rely. Jd. at 577. The Tenth Circuit decision correctly applied

Roth in determining that under the Colorado statutory

scheme, Jessica Gonzales became entitled to police

enforcement of her protection order when the state court

judge issued its order for her protection. 366 F.3d 1093,

1103 (10"-Ct. App. 2004) (en banc). In doing so, the Court

of Appeals gave proper deference to Colorado’s separation of

powers doctrine. Colo. Const. art. II]. More than a rhetorical

nicety, the state’s separation of powers doctrine is intended to

prevent exactly what occurred in this case: the arbitrary and

dangerous exercise of power by one branch of government,

usurping the power of another branch.

Pursuant to its constitutional authority, the Colorado

legislature enacted a _ statute that provided substantive

limitations on the discretion of police to enforce protection

orders. Colo. Rev. Stat. § 18-6-803.5. Specifically tailored

to resolve the problem of inconsistent police response to

protection order calls, the statute reflects a policy choice that

the reduction of family violence through consistent

enforcement of protection orders is a high priority to the

people of Colorado. See id. § 13-4-102(1). The language of

the statute plainly states that police shall arrest or seek an

arrest warrant when they find probable cause of a violation of

a protection order. /d. § 18-6-803.5(3)(b). The structure and

history of the statute evince the intent of the legislature to

ensure that police consistently enforce protection orders

issued by Colorado courts.

Once a trial court heard evidence and made a specific

finding that Jessica Gonzales’s husband was likely to harm

4

his wife and children, the court issued a protection order. At

that point, Ms. Gonzales became entitled to mandatory police

enforcement of her order. By refusing to enforce the order

obtained by Jessica Gonzales, the Castle Rock police

exceeded their statutory authority.

Reversing the court of appeals would upset

Colorado’s separation of powers n three ways: by endorsing

police abdication of their duty to faithfully execute the laws;

by ignoring the studied policy choices of the legislature; and

by rejecting the particularized findings of a tnal court. The

policy choice to limit police discretion reflects the General

Assembly’s understanding of the unique dynamics of power

and control in domestic disputes and the danger posed to

victims by the escalating incidents of violence perpetrated by

their batterers. As the facts of this case demonstrate, the

determination that mandatory enforcement is necessary is

one that is dangerous to permit police to second-guess.

Unless peace officers are held accountable for refusing to

follow the mandate of the legislature and the express order of

will be free to violate them in ways that seem harmless to a

peace officer unfamiliar with the facts that led to the issuance

of the order, and the danger to the victims of family violence

will exponentially imcrease. While there may be exposure to

liability in some cases for municipalities and agencies, such

costs can be avoided by adopting policies of consistent

enforcement in conformity with the General Assembly’s

mandate. Moreover, the costs of violating the Constitution

should not be shifted to victims of domestic violence and to

the taxpayers who shoulder the societal costs of domestic

violence.

5

ARGUMENT

I. THE COURT OF APPEALS PROPERLY

RECOGNIZED THAT COLORADO LAW

CREATES A PROTECTED PROPERTY

INTEREST IN MANDATORY POLICE

ENFORCEMENT OF PROTECTION ORDERS.

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

recognizes that due process protections apply to property

interests that are “legitimate claims] of entitlement,” the

rely in their daily lives.” Jd. at 577. The Court observed that

property interests are created and their dimensions “defined

by existing rules or understandings that stem from an

independent source such as state law.” Id. (emphasis added).

i eee 1

Gonzales had a legitimate claim of entitlement. 366 F.3d

1093, 1100-01 (10"" Ct. App. 2004) (en banc).

The Tenth Circuit’s opinion underscores the authority

of the Colorado legislative body - the General Assembly

> “The powers of the government of this state are divided into three distinct

departments — the legislative, executive, and judicial, and no person or collection

6

doctrine prevents the encroachment of any one branch of

government upon the power of another. See Miller v.

French, 530 U.S. 327, 341 (2000); People v. Barth, 981 P.2d

1102, 1105 (Colo. App. 1999). Because the doctrine is not

binding on the states by the federal government, it is

necessary to look to Colorado law to determine whether the

State applies its doctrine ngidly, or permits overlap of powers

with respect to some matters. See Dreyer v. Illinois, 187

U.S. 71, 84 (1902); Jn re Interrogatories Propounded by

Senate Concerning House Bill 1078, 536 P.2d 308, 316-17

(Colo. 1975).

Recognizing the General Assembly’s critical role as

the policy-making branch of government for the state, the

Colorado Supreme Court has frequently acknowledged the

General Assembly’s power to curtail judicial and executive

discretion to further public policy of the state. See, eg.,

People v. Newman, 91 P.3d 369, 372 (Colo. 2004) (power to

limit court’s sentencing discretion); Colo. Office of

Consumer Counsel v. PUC, 42 P.3d 23, 26 (Colo. 2002)

(power to limit public utilities rate-making authority); /n re

2000-2001 Dist. Grand Jury in & for the First Judicial Dist.,

22 P.3d 922, 926 (Colo. 2001) (power to limit court's

authority to release a grand jury report); People v. Bagby,

734 P.2d 1059, 1061-62 (Colo. 1987) (power to limit

prosecutorial discretion on what charges may be filed for

violation of a specific statute). Accordingly, although the

Oey, Sorte Sitionall ange hiccret on

enforcement decisions, see People v. Gallegos, 644 P.2d 920,

930-31 (Colo. 1982), the General Assembly is fully

empowered to limit that discretion when public policy

concerns dictate.

A. THE COLORADO LEGISLATURE MADE A

CONSCIOUS CHOICE OF POLICY TO

REQUIRE MANDATORY ENFORCEMENT

WHEN PROTECTION ORDERS ARE ISSUED.

In 1994, the Colorado General Assembly tackled the

problem of domestic violence through legislative reform.

See generally, Melody Fuller & Janet Stansberry, “1994

Legislature Strengthens Domestic Violence Protective

Orders,” 23 COLO. LAW. 2327- (1994). The Assembly

considered and passed HB 1253, the legislation that became

Colo. Rev. Stat. § 18-6-803.5, by instituting a mandatory

arrest policy for the violators of domestic violence protection

orders. Colo. Rev. Stat. § 18-6-803.5(3)(b). Mandatory

arrest was just one provision in an omnibus bill intended to

strengthen the protections and remedies available to domestic

violence victims. The bill included a finding of the necessity

of a consistent statewide law enforcement response to

domestic violence, id. § 13-14-102(1), and toughened civil

and criminal penalties to hold the perpetrators of family

violence accountable for their actions and deter them from

committing future acts of violence. Jd. §§ 16-4-103(2); 18-6-

803.5(2)(a); 18-6-803.5(2)(a.5); 18-1-1001(5).

1. ihe plete language of the sintete saguties

mandatory enforcement.

Petitioner and its amici argue that Colorado did not

create an entitlement to mandatory enforcement, because the

mandate to law enforcement in the statute is “conditional” or

“discretionary.” Petitioner’s Brief, at 26; Brief of the United

States of America, at 15. This distorted reading of the statute

ignores the plain language of section 18-6-803.5, which

expressly states in mandatory terms the obligations of police

8

officers when responding to protection order violation calls.

The statute begins with the broad mandate to law

enforcement that “[a] peace officer shall use every

reasonable means to enforce a protection order.” Colo. Rev.

Stat. § 18-6-803.5(3)(a) (emphasis added). The statute goes

on to specify exactly what minimum enforcement is required,

and how it must proceed. Initially, a peace officer must

determine whether probable cause exists to believe that (1) a

valid protection order has been violated, and (2) the

restrained person had notice of the order. /d § 18-6-

803.5(3\b). The statute limits the peace officer’s discretion

in making a probable cause determination, by requiring her to

assume that all information provided by the crime

information registry is accurate, and by requiring her to

accept a protection order as valid even if it does not appear in

the registry. /d. § 18-6-803.5(3)\(c).

Upon finding probable cause to believe that a valid

protection order has been violated and that the restrained

person had notice of the order, the statute mandates that “[a]

peace officer shall arrest,” or, if an arrest would be

impractical, “seek a warrant for the arrest” of the offender.

Id. § 18-6-803.5(3)(b). Despite the efforts of the Petitioner

to torture any recognizable, plain, common-sense meaning

out of the word “shall,” the statute is plainly worded and both

the English language and the context indicate that “shall” is

intended to be a mandate. The statute uses “shall” when

referring to actions that must take place (arrest, or seeking an

arrest warrant), and uses “may” when referring to actions that

are within the discretion of the peace officer (arrest without

notice, transportation of the victim to a shelter). Jd. § 18-6-

803.5(6)(a).

SF

intent to require vigorous enforcement of the protection

orders. In the same section that dictates that peace officers

“shall” enforce protection orders, the General Assernbly

shields peace officers from _ liability stemming from

erroneous arrests made in the course of enforcing protection

orders. Colo. Rev. Stat. § 18-6-803.5(5). The exemption of

liability for peace officers under those circumstances reveals

that the General Assembly, as a policy choice, preferred the

risk of erroneous arrest to the risk presented by permitting the

police discretion not to arrest. These policy choices by the

General Assembly clearly reflect the stated intent that the

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10

Moreover, the statute creates enhanced criminal

penalties for domestic violence offenders. Colo. Rev. Stat.

$§ 16-4-103(2); 18-1-1001(5). In fact, the General Assembly

enhanced the penalties for subsequent violations of

protection orders. /d § 18-6-803.5(2\(a). In recognition of

the unique danger that domestic violence offenders pose to

their victims, the General Assembly designated a second

violation of a protection order a cnme of “extraordinary

risk,” subject to a higher sentencing range. /d. § 18-6-

803.5(2\a.5). The toughening of cnminal penalties mirrors

the toughening of enforcement mechanisms.

Significantly, the General Assembly codified its

finding that uniform procedures were a necessary response to

the dangers posed by unchecked domestic violence: “The

general assembly hereby finds that the issuance and

enforcement of protection orders are of paramount

importance in the state of Colorado because protection orders

and death.” Colo. Rev. Stat. § 13-14-i02(1) (emphasis

added). Further, the sponsor of the bill in the House of

Representatives spoke of the need for consistent action by the

criminal justice system to fight domestic violence: “{TJhe

entire criminal justice system must act im a consistent

manner, which does not now occur. The police must make

probable cause arrests.” Hearing on H.B. 1253 Before the

House Judiciary Comm., 1994 Leg. (Colo. 1994) (statement

of Rep. Kerns, sponsor) (emphasis added).

Petitioner through its amicus argues that Colorado

law did not create a property interest based on the traditional

involving third parties are not subject to review. Bnef for the

United States of America, at 17-18. But the taditional

not a categorical rule.” Baltimore Gas and Electric Co. v.

(Ct. App. D.C. 2001). In Heckler v. Chaney, the Court

for the agency to follow in its enforcement

powers. 470 U.S. 821, 832-33 & n. 4(1985).*

Petitioner argues that the statute must be read in the

context of the normal discretion afforded law enforcement

12

concen. See National Advertising Co. v. Dep't of Highways,

751 P.2d 632, 635 (Colo. 1988).°

3. Mandatory enforcement reflects the legislature’s

policy choice that the costs of domestic violence

outweigh the burden of mandatory enforcement.

While limiting police discretion may appear to be a

drastic remedy, in fact, for states, the @sts of not confronting

domestic violence in a forceful manner far outweigh the costs

of potential liability for failure to enforce protection orders.

The data show that strong enforcement of measures meant to

prevent family violence saves society substantial costs. See

Kathryn Anderson Clark et al., A Cost-Benefit Analysis of the

Violence Against Women Act, 8 VIOLENCE AGAINST WOMEN

417, 418 (2002) (finding that the prevention and enforcement

measures of the Violence Against Women Act of 1994 have

victimization of women).

The economic toll of domestic violence is devastating

to society because its impact hits on a number of levels,

workplace, and the criminal justice system. In the

employment sector, victims of domestic violence lose a total

of nearly eight million days of paid work annually, the

’ Amicus United States of America argues that the existence of other statutes

which provide for mandatory suppression of riots and mandatory arrest of

fugitives prove that Colorado did not intend an inflexible duty to arrest. Brief of

the United States of America, at '6. But those statutes differ in this important

respect: their enforcement provisions are not triggered by specific orders issued

on behalf of a specific person and to a specific person. Thus, even if the statutgs

use language, it does not follow that they create a protected property

interest.

13

equivalent of 32,114 full-time jobs each year. Costs of

Intimate Partner Violence Against Women in the United

States, DEP’T OF HEALTH AND HUMAN SERVS., CENTERS FOR

DISEASE CONTROL AND PREVENTION (CDC) -- NAT'L CTR

FOR INJURY PREVENTION & CONTROL, 19 (March 2003).

Employers in this country spend at least $3 billion each year

in lost work time, increased health care costs, higher

turnover, and lower productivity due to domestic violence.

Connie Platt, Domestic Violence: Impact on the Workplace,

NCADV Voice, Summer 1993, at 16. In the healthcare

than 1,400,000 visits to American emergency rooms per year

result from domestic violence. “Joan Zorza, Women

Battering: High Costs and the State of the Law, 28

CLEARINGHOUSE REV. 383, 383 (1994). These costs are

more than 10,000 women and children

14

Program Shelters Continue to Reach Maximum Capacity

Despite Community Support (Apr. 12, 2004).

All told, the estimated cost of medical care, mental

health services, and lost productivity from injury and

premature death due to domestic violence against adult

women totaled more than $8.3 billion in the United States in

2003. Max, et al., supra at 259. This figure does not include

lost quality of life valuations or the costs states must pay to

for children in homes where domestic violence takes place

(including foster care and counseling programs). A study

that included expenses resulting from lost quality of life

estimated the total costs of domestic violence in the United

States to be $67 billion in 1993. ~Ted R. Miller, et al., Victim

Costs and Consequences: A New Look (U.S. Dep't of Justice,

Nat’! Inst. of Justice No. 155282, 1996).

The stazzering economic, societal, and human cost of

domestic violence was part of the impetus that led the

Colorado General Assembly to find that effectively

combating domestic violence is of paramount importance.

These policy dccisions are the appropriate province for the

legislative branch, which has the resources and the

constitutional authority to hold hearings and conduct

investigations for the purpose of determining the best

legislative policy for the State of Colorado. The General

Assembly concluded that mandatory enforcement of

protection orders was necessary to reduce domestic violence;

the Assembly therefore made the mandatory enforcement of

protection orders a public policy priority. I. doing so, the

Colorado legislature created a benefit to which domestic

~ Violence victims who receive protection orders have a

legitimate claim of entitlement.

15

B. THE COLORADO LEGISLATURE GAVE THE

JUDICIARY EXCLUSIVE DISCRETION TO

DETERMINE WHETHER A_ PERSON IS

ENTITLED TO A PROTECTION ORDER.

The Tenth Circuit concluded that the property interest

in this case “derives from the existence of a restraining order

issued by a court on behalf of a part. ular person and directed

at specific individuals and police.” 366 F.3d at 1104, n. 9.

In other words, there is no entitlement to mandatory police

enforcement until a court issues a protection order pursuant

to this statute. Thus, a protected property interest arises here,

where it does not in the context of other statutes that provide

for mandatory enforcement, because there is a specific order

issued on behalf of a specific person.

16

parties. See Colo. Rev. Stat. § 13-14-102(9) (providing that

the judge’s determination of case shall occur after the citation

to defendant is retumed and a hearing has been had).

Furthermore, courts have the benefit of a system of rules of

evidence and civil procedure designed to ensure that only

reliable evidence is evaluated when making findings. See

Colo. R. Evid. 102 (stating that the rules of evidence should

be construed to ensure that “the truth may be ascertained and

proceedings justly determined”); People v. Fuller, 788 P.2d

741, 746 (Colo. 1990) (assessing the admission of evidence

as meeting the purpose of the rules of evidence because ‘it

was reliable and would lead to a finding of the truth).

Additionally, courts are deemed to be neutral arbiters of

evidence, safeguarding the nghts of both the applicant and

respondent and insuring that the determination of whether a

protection order. is needed will not be made in a partisan or

arbitrary matter. Cf United States v. Watson, 423 U.S. 411,

447-48 & n.12 (1976) (explaining the purpose of the warrant

requirement in the Fourth Amendment to the United States

Constitution).

Under the Colorado legislative scheme, the benefit of

mandatory police enforcement only becomes a protected

property interest when a court makes two essential findings:

(1) that the defendant committed acts giving grounds for

issuing the order; and (2) that there is a likelihood that the

defendant ‘vill commit such acts in the future unless

restrained. Col. Rev. Stat. § 13-14-102(9)(a). Once a court

makes those two critical findings, the legislature requires the

court to order a permanent protection order benefiting the

victim. Thus, when a court has made these findings, the

court’s discretion ends. The court is obligated to issue the

order upon making the above findings. /d A protection

order properly issued pursuant to section 13-14-102(9)

17

carries with it the promise and benefit of mandatory

enforcement. /d. § 18-6-803.5(3).

A beneficiary of a protection order is entitled to rely

on the promise of mandatory enforcement not simply because

there is a statute, but because of the court's individualized

paren pra sayyantiy apap ihe tag Lage tena de

18

il. ELEVATING THE AUTHORITY OF THE

EXECUTIVE BRANCH TO OVERRULE

DECISIONS MADE BY THE LEGISLATURE

AND THE JUDICIARY WOULD WREAK

HAVOC ON COLORADO'S SEPARATION OF

POWERS DOCTRINE.

A decision to reverse the Tenth Circuit by refusing to

recognize Jessica Gonzales’s property mght would upset the

separation of powers in Colorado in three ways: (1) by

sanctioning the executive branch’s abdication of duty; (2) by

ignoring the policy choices made by the Colorado legislature;

and; (3) by rejecting the fact-findings made by the Colorado

tral court.

Police refusal to enforce mandatory arrest laws

violates the constitutional duty of the executive branch to

faithfully execute the laws. See Colorado v. Pena, 911 P.2d

48, 55 (Colo. 1996); see also Colo. Const. art [1V § 2. When

the executive acts contrary to the legislature’s express

wishes, it is not a minor matter. As this Court stated in a

seminal case involving the power of the executive branch:

“It is to disrespect the whole legisiative process and the

consttutional division of authority between the [executive]

and [legislature].” Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 609 (1952) (Frankfurter, Jr., concurring); see

also id. at 637 (Jackson, J. concurring) (“When the President

takes measures incompatible with the expressed or implied

will of Congress, his power is at its lowest ebb . . . ””)

Furthermore, when the police choose not to enforce

mandatory arrest laws, they encroach upon the exclusive

province of the legislative branch to make public policy for

the state. Petitioner’s amicus argues that police should have

19

the discretion to not arrest in the cases of non-violent

of America, at 25. But this assertion endorses the

judgments for those of the legislature, dismissing the fact that

the General Assembly enacted the statute based on a studied

understanding of the dynamics of domestic violence. When

family violence has occurred, it is likely to recur and to

escalate. The value of a protection order is that it potentially

prevents violence before it can occur. If a peace officer

refuses to arrest or to seek a warrant because he does not

believe that the batterer is causing harm, a harm has

occurred: the batterer has violated the protection order

without consequence and may be emboldened to do so again.

See Elizabeth Topliffe, Note: Why Civil Protection Orders

are Effective Remedies for Domestic Violence but Mutual

Protective Orders Are Not, 67 IND. LJ. 1039, 1046-47

(1992).

Moreover, peace officers are likely to misperceive the

severity of a domestic abuse situation, as is tragically

illustrated by this case. The amicus for Petitioner argue that

adjudicated and resulted in the issuance of the protection

order; the fact that the protection order is being violated is an

indication of the batterer’s dangerousness and disregard for

the law. Thus, when a court has found a likelihood of future

harm and issued a protection order pursuant to the statute,

20

peace officers should not be permitted to substitute their own

assessments.

Federal respect for Colorado's choice as to how to

regulate the complicated area of family violence means

respecting the decigjon of the General Assembly to delimit

police discretion and require mandatory enforcement.

Petinoner suggests that federal deference to the enforcement

regime myans further respecting the fact that Colorado

provides only a very limited tort remedy against police

officers who fail to comply with mandatory enforcement.

Petinoner’ Bnef, at 33. But this Court has long stated that

due process remedies are not a “font of tort law.” Paul v.

Davis, 424 U.S. 693, 701 (1976); see also Daniels v.

Williams, 474 U.S. 327, 333 (1986) (“It is no reflection on

either the breadth of the United States Constitution or the

importance of traditional tort law to say that they do not

address the same concerns.”) Thus, recognizing a due

process remedy in no way insults a state’s authority in its

decision whether to provide a tort law remedy. The two

concepts are distinct. A due process mght does not arise

because a state creates a tort remedy; rather, a remedy for a

violation of due process is necessary when 4 goverment

creates an entitlement that requires due process protection

lil. THE CONSEQUENCES OF THE BREAKDOWN

OF THE SEPARATION OF POWERS _IN

COLORADO ARE THE DANGERS THAT

INSPIRED THE MANDATORY

ENFORCEMENT STATUTE.

“The accretion of dangerous power does not come in

a day. It does come, however slowly, from the generative

force of unchecked disregard of the restrictions that fence in

21

even the most disinterested assertion of authority.”

Youngstown, 343 U.S. at 594 (Frankfurter, J., concurring).

The executive branch’s choice to second-guess the policy

choice of the legislature and the adjudication of the judiciary

is a dangerous one. Left unchecked by the imposition of

liability for its actions, the Castle Rock police may continue

to exercise unauthorized discretion in determining whether to

make arrests for violations of protection orders. This case

illustrates the most tragic result of what can happen where

peace officers make their own decision whether arrest is

warranted and whether the protected persons face any “real”

danger from the domestic violence perpetrator. But the

impact is farther-reaching than the murder of the Gonzales

children.

As the General Assembly found, protection orders

can be an effective means of minimizing future family

violence. In that they can stop violence from recurring in the

future, protection orders are invaluable in encouraging

victims to break out of the cycle of violence. Victims may be

more willing to get a protection order than to press criminal

charges, so as not to lose the source of financial support for

their family. See Topliffe supra, at 1048. Because they are

civil proceedings, there is a lower burden of proof to obtain a

protection order than a criminal conviction, which is critical

in these cases where often the sole witnesses to the crime are

the victim and batterer. /d. Perhaps more importantly,

obtaining a protection order empowers a victim to take a

stand against her batterer, disrupting the dynamics of power

and control the batterer has over the victim that is typical of

abusive relationships. See Deborah M. Weissman, Gender-

Based Violence as Judicial Anomoly: Between “The Truly

National and the Truly Local,” 42 B.C. L. REv. 1081, 1138

& n.317 (September 2001).

22

In arguing that the Court of Appeals opinion should

be reversed, the Petitioner's amici present a parade of

hornibles that they claim would result from recognition of

Ms. Gonzales’s constitutional claim: liability imposed for

minor viokttions of state law, local government bodies falling

into economic collapse from lawsuits. In reality, timely

enforcement prevents many of the costs local governments

face when domestic violence victims _are not protected,

especially the investigation and prosecution of homicides and

sexual assaults. Further, the concern about liability creates an

appropnate incentive for law enforcement agencies and

municipalities to adopt policies of consistent and mandatory

enforcement in accordance with the law. These mmmum

enforcement requirements do not pose an unreasonable

burden on municipalities. The enforcement mechanisms that

are mandated do not call for mandatory general police

protection for all victims. They simply call for the arrest of

the violator of a protection order, or that the police seek an

arrest warrant for the offender. Because mandatory arrest is a

policy choice of the legislature, it is the responsibility of the

General Assembly -- the branci: of govemment in the best

position to assess public policy in the context of state’s

priorities, needs, and resources -- to change the law if it is not

feasible or desirable.

IV. CONCLUSION

In Colorado, the separation of powers doctrine

enables the General Assembly to limit executive discretion to

further public policy. The plain language, history, and

structure of the statute establish that the General Assembly

intended for police to prioritize domestic violence cases on

the highest level. When the judiciary made its particularized

courts. Nor is the solution to pass the costs of violating

Constitution upon the individual whose nghts were violated.

The Cowrt of Appeals en banc decision should be affirmed.

Respectifully submitted,

JAMES C. HARRINGTON DAVID G. HALL

SHERI JOY NASYA TOLLIVER Counsel of record

TEXAS CIVIL RIGHTS PROJECT ANDREA BELENO

1405 Montopolis Drive JULIE M. BALOVICH

Austin, TX 78741 CHRISTINA TREJO

(512) 474-5073 TEXAS RIOGRANDE

Counsel for Peggy LEGAL AID, INC.

Kerns 300 S. Texas Blvd.

Weslaco, TX 78596

(956) 968-6574

Counsel for Texas

Direct Service

Providers®

® Meliah A. Thomas, a law student at the University of California,

Berkeley, provided research assistance on the brief.