Town of Castle Rock v. Gonzales

1 Petitioner claims that respondent’s complaint “did not allege . . . that she ever notified the police of her contention that [her husband] was actually in violation of the restraining order.” Brief for Petitioner 7, n. 2. The complaint does allege, however, that respondent “showed [the police] a copy of the [temporary restraining order (TRO)] and requested that it be enforced.” App. to Pet. for Cert. 126a. At this stage in the litigation, we may assume that this reasonably implied the order was being violated. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83 , 104 (1998).

2 It is unclear from the complaint, but immaterial to our decision, whether respondent showed the police only the original “TRO” or also the permanent, modified restraining order that had superseded it on June 4.

3 Three police officers were also named as defendants in the complaint, but the Court of Appeals concluded that they were entitled to qualified immunity, 366 F. 3d 1093 , 1118 (CA10 2004) (en banc). Respondent did not file a cross-petition challenging that aspect of the judgment.

4 Most of the Colorado-law eases cited by the Court of Appeals appeared in footnotes declaring them to be irrelevant because they involved only substantive due process ( 366 F. 3d, at 1100-1101, nn. 4-5 ), only statutes *758 without restraining orders (id., at 1101, n. 5), or Colorado’s Government Immunity Act, which the Court of Appeals concluded applies “only to ... state tort law claims” (id., at 1108-1109, n. 12). Our analysis is likewise unaffected by the Immunity Act or by the way that Colorado has dealt with substantive due process or cases that do not involve restraining orders.

5 In something of an anyone-but-us approach, the dissent simultaneously (and thus unpersuasively) contends not only that this Court should certify a question to the Colorado Supreme Court, post, at 776-778 (opinion of Stevens, J.), but also that it should defer to the Tenth Circuit (which itself did not certify any such question), post, at 775-776. No party in this case has requested certification, even as an alternative disposition. See Tr. of Oral Arg. 56 (petitioner’s counsel “disfavor[ing]” certification); id., at 25-26 (counsel for the United States arguing against certification). At oral argument, in fact, respondent’s counsel declined Justice Stevens’ invitation to request it. Id., at 53.

6 The Court of Appeals quoted one lawmaker’s description of how the bill “ ‘would really attack the domestic violence problems’ ”: “ ‘[T]he entire criminal justice system must act in a consistent manner, which does not now occur. The police must make probable cause arrests. The prosecutors must prosecute every case. Judges must apply appropriate sentences, and probation officers must monitor their probationers closely. And the offender needs to be sentenced to offender-specific therapy. “ ‘[T]he entire system must send the same message . . . [that] violence is criminal. And so we hope that House Bill 1258 starts us down this road.’ ” 366 F. 3d, at 1107 (quoting Tr. of Colorado House Judiciary Hearings on House Bill 1253, Feb. 15, 1994; emphasis deleted).

7 Under Colo. Rev. Stat. § 18-6-803.5 (5) (Lexis 1999), “[a] peace officer arresting a person for violating a restraining order or otherwise enforcing a restraining order” was not to be held civilly or criminally liable unless he acted “in bad faith and with malice” or violated “rules adopted by the Colorado supreme court.”

8 Respondent in fact concedes that an officer may “properly” decide not to enforce a restraining order when the officer deems “a technical violation” too “immaterial” to justify arrest. Respondent explains this as a determination that there is no probable cause. Brief for Respond *762 ent 28. We think, however, that a determination of no probable cause to believe a violation has occurred is quite different from a determination that the violation is too insignificant to pursue.

9 Respondent characterizes her entitlement in various ways. See Brief for Respondent 12 (“ ‘entitlement’ to receive protective services”); id., at 13 (“interest in police enforcement action”); id., at 14 (“specific government benefit” consisting of “the government service of enforcing the objective terms of the court order protecting her and her children against her abusive husband”); id., at 32 (“[T]he restraining order here mandated the arrest of Mr. Gonzales under specified circumstances, or at a minimum required the use of reasonable means to enforce the order”).

10 See post, at 773 (“entitlement to police protection”); ibid, (“entitlement to mandatory individual protection by the local police force”); post, at 774 (“a right to police assistance”); post, at 779 (“a citizen’s interest in the government’s commitment to provide police enforcement in certain defined circumstances”); post, at 789 (“respondent’s property interest in the enforcement of her restraining order”); post, at 790, 791 (the “service” of “protection from her husband”); post, at 792 (“interest in the enforcement of the restraining order”).

11 The dissent asserts that the police would lack discretion in the execution of this warrant, post, at 785, n. 12, but cites no statute mandating immediate execution. The general Colorado statute governing arrest provides that police “may arrest” when they possess a warrant “commanding” arrest. Colo. Rev. Stat. § 16-3-102 (1) (Lexis 1999).

12 The dissent suggests that the interest in having a restraining order enforced does have an ascertainable monetary value, because one may “contract with a private security firm ... to provide protection” for one’s family. Post, at 773, 790, 791, and n. 19. That is, of course, not as precise *767 as the analogy between public and private schooling that the dissent invokes. Post, at 791, n. 19. Respondent probably could have hired a private firm to guard her house, to prevent her husband from coming onto the property, and perhaps even to search for her husband after she discovered that her children were missing. Her alleged entitlement here, however, does not consist in an abstract right to “protection,” but (according to the dissent) in enforcement of her restraining order through the arrest of her husband, or the seeking of a warrant for his arrest, after she gave the police probable cause to believe the restraining order had been violated. A private person would not have the power to arrest under those circumstances because the crime would not have occurred in his presence. Colo. Rev. Stat. § 16-3-201 (Lexis 1999). And, needless to say, a private person would not have the power to obtain an arrest warrant.

13 In other contexts, we have explained that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R. S. v. Richard D., 410 U. S. 614 , 619 (1973).

14 Because we simply do not address whether the process would have been adequate if respondent had had a property interest, the dissent is correct to note that we do not “contest” the point, post, at 774. Of course we do not accept it either.

15 In Colorado, the general statutory immunity for government employees does not apply when “the act or omission causing... injury was willfirl and wanton.” Colo. Rev. Stat. § 24-10-118 (2)(a) (Lexis 1999). Respondent’s complaint does allege that the police officers’ actions “were taken either willfully, recklessly or with such gross negligence as to indicate wanton disregard and deliberate indifference to” her civil rights. App. to Pet. for Cert. 128a. The state cases cited by the dissent that afford a cause of action for police failure to enforce restraining orders, post, at 782-784, 786, n. 13, vindicate state common-law or statutory tort claims — not procedural due process claims under the Federal Constitution. See Donaldson v. Seattle, 65 Wash. App. 661 , 831 P. 2d 1098 (1992) (city could be liable under some circumstances for per se negligence in failing to meet statutory duty to arrest); Matthews v. Pickett County, 996 S. W. 2d 162 (Tenn. 1999) (county could be liable under Tennessee’s Governmental Tort Liability Act where restraining order created a special duty); Campbell v. Campbell, 294 N. J. Super. 18 , 682 A. 2d 272 (1996) (rejecting four specific defenses under the New Jersey Tort Claims Act in negligence action against individual officers); Sorichetti v. New York, 65 N. Y. 2d 461 , 482 N. E. 2d 70 (1985) (city breached duty of care arising from special relationship between police and victim); Nearing v. Weaver, 295 Ore. 702 , 670 P. 2d 137 (1983) (en banc) (statutory duty to individual plaintiffs arising independently of tort-law duty of care).

* Gonzales does not claim to have a protected liberty interest.

1 The Court of Appeals also looked to other provisions of the statute to inform its analysis. In particular, it reasoned that a provision that gave police officers qualified immunity in connection with their enforcement of *776 restraining orders, see Colo. Rev. Stat. §18-6-803.5 (5) (Lexis 1999), supported the inference that the Colorado Legislature intended mandatory enforcement. See 366 F. 3d 1093 , 1108 (CA10 2004) (en banc).

2 The Court declines to show deference for the odd reason that, in its view, the Court of Appeals did not “draw upon a deep well of state-specific expertise,” ante, at 757, but rather examined the statute’s text and legislative history and distinguished arguably relevant Colorado case law. See ante, at 757, and n. 4. This rationale makes a mockery of our traditional practice, for it is precisely when there is no state law on point that the presumption that circuits have local expertise plays any useful role. When a circuit’s resolution of a novel question of state law is grounded on a concededly complete review of all the pertinent state-law materials, that decision is entitled to deference. Additionally, it should be noted that this is not a case in which the Court of Appeals and the District Court disagreed on the relevant issue of state law; rather, those courts disagreed only over the extent to which a probable-cause determination requires the exercise of discretion. Compare 366 F. 3d, at 1105-1110 , with App. to Pet. for Cert. 122a (District Court opinion).

3 See Colo. Rule App. Proc. 21.1(a) (Colorado Supreme Court may answer questions of law certified to it by the Supreme Court of the United States or another federal court if those questions “may be determinative of the cause” and “as to which it appears to the certifying court there is no controlling precedent in the decisions of the [Colorado] Supreme Court”).

4 See Westminster v. Dogan Constr. Co., 930 P. 2d 585 , 590 (Colo. 1997) (en banc) (in interpreting an ambiguous statute, the Colorado Supreme Court will consider legislative history and the “consequences of a particular construction”); ibid. (“ ‘Because we also presume that legislation is intended to have just and reasonable effects, we must construe statutes accordingly and apply them so as to ensure such results’ ”). Additionally, it is possible that the Colorado Supreme Court would have better access to (and greater facility with) relevant pieces of legislative history beyond those that we have before us. That court may also choose to give certain evidence of legislative intent greater weight than would be customary for this Court. See, e. g., Brief for Peggy Kerns et al. as Amici Curiae (bill sponsor explaining the Colorado General Assembly’s intent in passing the domestic restraining order statute).

6 The Court is correct that I would take an “anyone-but-us approach,” ante, at 758, n. 5, to the question of who decides the issue of Colorado. law in this case. Both options that I favor — deferring to the Circuit’s interpretation or, barring that, certifying to the Colorado Supreme Court — recognize the comparative expertise of another tribunal on questions of state law. And both options offer their own efficiencies. By contrast, the Court’s somewhat overconfident “only us” approach lacks any cogent justification. The fact that neither party requested certification certainly cannot be a sufficient reason for dismissing that option. As with abstention, the considerations that weigh in favor of certification— federal-state comity, constitutional avoidance, judicial efficiency, the desire to settle correctly a recurring issue of state law — transcend the interests of individual litigants, rendering it imprudent to cast them as gatekeepers to the procedure. See, e. g., Elkins v. Moreno, 435 U. S. 647 , 662 (1978) (certifying state-law issue absent a request from the parties); Aldrich *779 v. Aldrich, 375 U. S. 249 (1963) (per curiam) (same); see also 17A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4248, p. 176 (2d ed. 1988) (“Ordinarily a court will order certification on its own motion”).

7 See Fuller & Stansberry, 1994 Legislature Strengthens Domestic Violence Protective Orders, 23 Colo. Lawyer 2327 (1994) (“The 1994 Colorado legislative session produced several significant domestic abuse bills that strengthened both civil and criminal restraining order laws and procedures for victims of domestic violence”); id., at 2329 (“Although many law enforcement jurisdictions already take a proactive approach to domestic violence, arrest and procedural policies vary greatly from one jurisdiction to another. H. B. 94-1253 mandates the arrest of domestic violence perpetrators and restraining order violaters. H. B. 94-1090 repeals the requirement that protected parties show a copy of their restraining order to enforcing officers. In the past, failure to provide a copy of the restraining order has led to hesitation from police to enforce the order for fear of an illegal arrest. The new statute also shields arresting officers from liability; this is expected to reduce concerns about enforcing the mandatory arrest requirements” (footnotes omitted)).

8 See Sack 1669 (“The movement to strengthen arrest policies was bolstered in 1984 by the publication of the results of a study on mandatory arrest in domestic violence cases that had been conducted in Minneapolis. In this study, police handled randomly assigned domestic violence offenders by using one of three different responses: arresting the offender, mediating the dispute or requiring the offender to leave the house for eight hours. The study concluded that in comparison with the other two re *781 sponses, arrest had a significantly greater impact on reducing domestic violence recidivism. The findings from the Minneapolis study were used by the U. S. Attorney General in a report issued in 1984 that recommended, among other things, arrest in domestic violence cases as the standard law enforcement response” (footnotes omitted)); see also Zorza, The Criminal Law of Misdemeanor Domestic Violence, 1970-1990, 83 J. Crim. L. & C. 46, 63-65 (1992) (tracing history of mandatory arrest laws and noting that the first such law was implemented by Oregon in 1977).

9 See also Brief for International Municipal Lawyers Association et al. as Amici Curiae 6 (“Colorado is not alone in mandating the arrest of persons who violate protective orders. Some 19 states require an arrest when a police officer has probable cause to believe that such orders have been violated” (collecting statutes)).

10 See Note, Mandatory Arrest: A Step Toward Eradicating Domestic Violence, But is It Enough? 1996 U. Ill. L. Rev. 533 , 541-542, 544-546 (describing the problems that attend a discretionary arrest regime: “Even when probable cause is present, police officers still frequently try to calm the parties and act as mediators.. .. Three studies found the arrest rate to range between 3% and 10% when the decision to arrest is left to police discretion. Another study found that the police made arrests in only 13% of the cases where the victim had visible injuries.... Police officers often employ irrelevant criteria such as the ‘reason’ for the abuse or the severity of the victim’s injuries in making their decision to arrest.. . . Some [officers] may feel strongly that police should not interfere in family arguments or lovers’ quarrels. Such attitudes make police much more likely to investigate intent and provocation, and consider them as mitigating factors, in responding to domestic violence calls than in other types of cases” (footnotes omitted)); see also Walsh, The Mandatory Arrest Law: Police Reaction, 16 Pace L. Rev. 97 , 98 (1995). C£ Sack 1671-1672 (“Mandatory arrest policies have significantly increased the number of arrests of batterers for domestic violence crimes. ... In New York City, from 1993, the time the mandatory arrest policy was-instituted, to 1999, felony domestic violence arrests increased 33%, misdemeanor domestic violence arrests rose 114%, and arrests for violation of orders of protection were up 76%”).

11 The Oregon Supreme Court noted that the “widespread refusal or failure of police officers to remove persons involved in episodes of domestic violence was presented to the legislature as the main reason for tightening the law so as to require enforcement of restraining orders by mandatory arrest and custody.” Nearing, 295 Ore., at 709 , 670 P. 2d, at 142 .

12 Under the Court’s reading of the statute, a police officer with probable cause is mandated to seek an arrest warrant if arrest is “impractical under the circumstances,” but then enjoys unfettered discretion in deciding whether to execute that warrant. Ante, at 764. This is an unlikely reading given that the statute was motivated by a profound distrust of police discretion in the domestic violence context and motivated by a desire to improve the protection given to holders of domestic restraining orders. We do not have the benefit of an authoritative construction of Colorado law, but I would think that if an estranged husband harassed his wife in violation of a restraining order, and then absconded after she called the police, the statute would not only obligate the police to seek an arrest warrant, but also obligate them to execute it by making an arrest. In any event,' under respondent’s allegations, by the time the police were informed of the husband’s whereabouts, an arrest was practical and, under the statute’s terms, mandatory.

13 The Court wonders “how the mandatory-arrest paradigm applies to cases in which the offender is not present to be arrested.” Ante, at 762. Again, questions as to the scope of the obligation to provide enforcement *786 are far afield from the key issue — whether there exists an entitlement to enforcement. In any event, the Court’s speculations are off base. First, this is not a case like Donaldson v. Seattle, 65 Wash. App. 661 , 831 P. 2d 1098 (1992), in which the restrained person violated the order and then left the scene. Here, not only did the husband violate the restraining order by coming within 100 yards of the family home, but he continued to violate the order while his abduction of the daughters persisted. This is because the restraining order prohibited him from “molest[ing) or disturb[ing] the peace” of the daughters. See 366 F. 3d, at 1143 (appendix to dissent of O’Brien, J.). Because the “scene” of the violation was wherever the husband was currently holding the daughters, this case does not implicate the question of an officer’s duties to arrest a person who has left the scene and is no longer in violation of the restraining order. Second, to the extent that arresting the husband was initially “impractical under the circumstances” because his whereabouts were unknown, the Colorado statute (unlike some other States’ statutes) expressly addressed that situation — it required the police to seek an arrest warrant. Third, the Court is wrong to suggest that this case falls outside the core situation that these types of statutes were meant to address. One of the well-known cases that contributed to the passage of these statutes involved facts similar to this case. See Sorichetti v. New York City, 65 N. Y. 2d 461 , 467, 482 N. E. 2d 70 , 74 (1985) (police officers at police station essentially ignored a mother’s pleas for enforcement of a restraining order against an estranged husband who made threats about their 6-year-old daughter; hours later, as the mother persisted in her pleas, the daughter was found mutilated, her father having attacked her with a fork and a knife and attempted to saw off her leg); Note, 1996 U. Ill. L. Rev., at 539 (noting Sorichetti in the development of mandatory arrest statutes); see also Sack 1663 (citing the police’s failure to respond to domestic violence calls as an impetus behind mandatory arrest statutes). It would be singularly odd to suppose that in passing its sweeping omnibus domestic violence legislation, the Colorado Legislature did not mean to require enforcement in the case of an abduction of children in violation of a restraining order.

14 The order also stated: “If you violate this order thinking that the other party or child named in this order has given you permission, you are wrong, and can be arrested and prosecuted. The terms of this order cannot be changed by agreement of the other party or the children). Only the court can change this order.” 366 F. 3d, at 1144 (appendix to dissent of O’Brien, J.).

15 A concern for the “ ‘protected person’ ” pervades the statute. For example, the statute provides that a “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 ....” § 18-6-803.5(6)(a).

16 I find it neither surprising nor telling, cf. ante, at 766, that the statute requires the restraining order to contain, “in capital letters and bold print,” a “notice” informing protected persons that they can demand or request, respectively, civil and criminal contempt proceedings. § 18-6-803.5(7). While the legislature may have thought that these legal remedies were not popularly understood, a person’s right to “demand” or “request” police enforcement of a restraining order simply goes without saying given the nature of the order and its language. Indeed, for a holder of a restraining order who has read the order’s emphatic language, it would likely come as quite a shock to learn that she has no right to demand enforcement in the event of a violation. To suggest that a protected person has no such right would posit a lacuna between a protected person’s rights and an officer’s duties — a result that would be hard to reconcile with the Colorado Legislature’s dual goals of putting an end to police indifference and empowering potential victims of domestic abuse.

17 See also Matthews v. Pickett County, 996 S. W. 2d 162 , 165 (Tenn. 1999) (“The order of protection in this case was not issued for the public’s protection in general. The order of protection specifically identified Ms. Matthews and was issued solely for the purpose of protecting her. Cf. Ezell [v. Cockrell, 902 S. W. 2d 394 , 403 (Tenn. 1995)] (statute prohibiting drunk driving does not specify an individual but undertakes to protect' the public in general from intoxicated drivers)”); Sorichetti, 65 N. Y. 2d, at 469 , 482 N. E. 2d, at 75 (“The [protective] order evinces a preincident *789 legislative and judicial determination that its holder should be accorded a reasonable degree of protection from a particular individual”).

18 The Court mistakenly relies on O’Bannon v. Town Court Nursing Center, 447 U. S. 773 (1980), in explaining why it is “by no means clear that an individual entitlement to enforcement of a restraining order could constitute a ‘property’ interest for purposes of the Due Process Clause.” Ante, at 766. In O’Bannon, the question was essentially whether certain regulations provided nursing-home residents with an entitlement to continued residence in the home of their choice. 447 U. S., at 785 . The Court concluded that the regulations created no such entitlement, but there was no suggestion that Congress could not create one if it wanted to. In other words, O’Bannon did .not address a situation in which the underlying law created an entitlement, but the Court nevertheless refused to treat that entitlement as a property interest within the meaning of the Due Process Clause.

19 As the analogy to a private security contract demonstrates, a person’s interest in police enforcement has “‘some ascertainable monetary value,”’ ante, at 766. Cf. Merrill, The Landscape of Constitutional Property, 86 Va. L. Rev. 885 , 964, n. 289 (2000) (remarking, with regard to the property interest recognized in Goss v. Lopez, 419 U. S. 565 (1975), that “any parent who has contemplated sending their children to private schools knows that public schooling has a monetary value”). And while the analogy to a private security contract need not be precise to be useful, I would point out that the Court is likely incorrect in stating that private security guards could not have arrested the husband under the circumstances, see ante, at 766-767, n. 12. Because the husband’s ongoing abduction of the daughters would constitute a knowing violation of the restraining order, see n. 13, supra, and therefore a crime under the statute, see § 18-6-803.5(1), a private person who was at the scene and aware of the circumstances of the abduction would have authority to arrest. See § 16-3-201 (“A person who is not a peace officer may arrest another person when any crime has been or is being committed by the arrested person in the presence of the person making the arrest”). Our cases, of course, have never recognized any requirement that a property interest possess “‘some ascertainable monetary value.’” Regardless, I would assume that respondent would have paid the police to arrest her husband if that had been possible; at the very least, the entitlement has a monetary value in that sense.

20 According to Justice Souter, respondent has asserted a property interest in merely a “state-mandated process,” ante, at 771 (concurring opinion), rather than in a state-mandated “substantive guarantee,” *792 ibid. This misunderstands respondent’s claim. Putting aside the inartful passage of respondent’s brief that Justice Souter relies upon, ante, at 770, it is clear that respondent is in fact asserting a substantive interest in the “enforcement of the restraining order,” Brief for Respondent 10. Enforcement of a restraining order is a tangible, substantive act. If an estranged husband violates a restraining order by abducting children, and the police succeed in enforcing the order, the person holding the restraining order has undeniably just received a substantive benefit. As in other procedural due process cases, respondent is arguing that the police officers failed to follow fair procedures in ascertaining whether the statutory criteria that trigger their obligation to provide enforcement — i. e., an outstanding order plus probable cause that it is being violated — were satisfied in her ease. Cf. Carey v. Piphus, 435 U. S. 247 , 266-267 (1978) (discussing analytic difference between the denial of fair process and the denial of the substantive benefit itself). It is Justice Souter, not respondent, who makes the mistake of “collapsing the distinction between property protected and the process that protects it,” ante, at 772. Justice Souter also errs in suggesting that respondent cannot have a property interest in enforcement because she would not be authorized to instruct the police to refrain from enforcement in the event of a violation. Ante, at 770. The right to insist on the provision of a service is separate from the right to refuse the service. For example, compulsory attendance laws deny minors the right to refuse to attend school. Nevertheless, we have recognized that minors have a property interest in public education and that school officials must therefore follow fair procedures when they seek to deprive minors of this valuable benefit through suspension. See Goss, 419 U. S. 565 . In the end, Justice Souter overlooks the core purpose of procedural due process — ensuring that a citizen’s reasonable reliance is not frustrated by arbitrary government action.

21 See Logan v. Zimmerman Brush Co., 455 U. S. 422 , 432 (1982) (“ ‘ “While the legislature may elect not to confer a property interest,. .. it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards” ’ ”).

22 See Fuentes v. Shevin, 407 U. S. 67 , 81 (1972) (“[W]hen a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented” (emphasis added)); Bell v. Burson, 402 U. S. 535 , 542 (1971) (“It is a proposition which hardly seems to need explication that a hearing which excludes consideration of an element essential to the decision whether licenses of the nature here involved shall be suspended does not meet [the] standard [of due process]”); Goldberg v. Kelly, 397 U. S. 254 , 271 (1970) (“[T]he decisionmaker’s conclusion as to a recipient’s eligibility must rest solely on the legal rules and evidence adduced at the hearing”); cf. ibid. (“[0]f course, an impartial decision maker is essential”).