# Amicus Curiae Brief — Castle Rock v. Gonzales

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0035%3A17

## Record

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

## Text

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.

2

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0035%3A17. Public record. Not legal advice.