Yesterday’s Decision in Castle Rock, CO v. Gonzales

In a 7-2 opinion authored by Justice Scalia, the Court reversed a Tenth Circuit decision that permitted a due process claim against a local government for its police department’s failure to enforce a restraining order.

Castle Rock presented two questions: (1) Whether federal law permits a procedural due process claim against a local government for failing to enforce a partial restraining order, exposing its holder to private violence; (2) If such a claim is allowed, what kind of process is required? Sixteen years earlier, the Court rejected an analogous substantive due process claim in DeShaney v. Winnebago County Dep’t of Social Services, but made it explicit that DeShaney created no precedent regarding a procedural due process claim of the same variety.

Justice Scalia’s majority opinion, joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy, Souter, Thomas, and Breyer, held that Gonzales could claim no property interest in the enforcement of the restraining order and declined to reach the second question. Justice Souter filed a concurrence, which Justice Breyer joined, and Justice Stevens filed a dissent, joined by Justice Ginsburg.

Background

During her divorce proceeding in June 1999, respondent Jessica Gonzales obtained a restraining order against her husband, the terms of which forbade him from disturbing her or their three daughters, or coming within 100 yards of the family home except for prearranged visits. The notice to police on the back of the order read in part, “You shall use every reasonable means to enforce this restraining order. You shall arrest, or . . . seek a warrant . . . when you have information amounting to probable cause that the restrained person has violated . . . this order.”

In the early evening of June 22, 1999, respondent’s husband removed their daughters, unannounced, from the family home. Respondent called the Castle Rock police at 7:30 p.m. Two officers arrived, and told her to call at 10 p.m. if the children had not returned. At 8:30, respondent learned that her husband had taken their daughters to an amusement park in Denver. She relayed this information to police, who reiterated that she should wait until 10. Respondent did, then phoned and was told to wait until midnight. She drove to her husband’s apartment, which was empty, and called the Castle Rock police once more, who told her that an officer would be dispatched. When none arrived after forty minutes, respondent drove to the police station and submitted an incident report. According to the complaint, the officer to whom respondent made the report took no action regarding the restraining order, but promptly left for a dinner break.

At 3:20 a.m., respondent’s husband appeared at the station with a semi-automatic handgun and opened fire; police shot and killed him. Inside his truck, they found the bodies of the Gonzales’s three daughters, whom respondent’s husband had killed earlier that night.

Respondent brought suit against Castle Rock and individual officers under 42 U.S.C. § 1983. The district court dismissed, ruling that Gonzales had failed to state a Fourteenth Amendment claim. The initial Tenth Circuit panel affirmed the dismissal of Gonzales’s substantive due process claim, citing DeShaney, but allowed her procedural due process claim to proceed, ruling that the restraining order’s language imposed a mandatory duty on officers to enforce it. By taking no steps toward enforcement, the Tenth Circuit held, police had deprived Gonzales of a property interest without due process. A divided en banc court affirmed.

Justice Scalia’s Majority Opinion

The majority opinion focused on Ms. Gonzales’s failure to claim an actual property interest under the Fourteenth Amendment’s Due Process Clause. A procedural “benefit,” for procedural due process purposes, Justice Scalia wrote, is not tantamount to a property interest. A legitimate claim of entitlement must stem from state law or another independent source. As long as government officials are given discretion over enforcement, a benefit from the enforcement is not a protected entitlement. Within the language of the statute, Castle Rock police had discretion to enforce or refuse to enforce the restraining order, and to arrest or refuse to arrest an offender. While the statute directed police to “use every reasonable means” of enforcing the order, it still provided guidelines, not a mandate. Justice Scalia also discussed the practical need for discretion in police enforcement, echoing part of the United States’s brief on the town’s side.

The Court’s opinion continued that even if the language of the statute had mandated enforcement, respondent would not necessarily have a personal entitlement to it, absent such language in the statute itself. The only real power given to respondent, Justice Scalia wrote, was an ability to request initiation of criminal contempt proceedings, not to enforce anything—and certainly not to order an arrest.

Finally, Justice Scalia wrote that even if an entitlement to enforcement had been created here, such an entitlement would likely still create no property right for procedural due process purposes; after all, the right to have a restraining order enforced resembles no traditional conception of property, has no ascertainable monetary value, and “arises incidentally, not out of some new species of government benefit or service, but out of a function that government actors have always performed—to wit, arresting people who they have probable cause to believe have committed a criminal offense.”

While Justice Scalia discussed DeShaney v. Winnebago at both ends of the decision, the majority opinion gives little credence to petitioner’s intimation that respondent’s claim was a substantive due process claim masquerading in procedural clothing. Rather, it tied the two cases neatly together; the end of the opinion emphasizes the Court’s “continuing reluctance to treat the Fourteenth Amendment as ‘a font of tort law.’”

Justice Souter’s Concurring Opinion

Justice Souter’s concurrence emphasizes the impossibility of claiming a property interest in a state-mandated process; procedural obligations and protected property must be distinct: “Just as a State cannot diminish a property right, once conferred, by attaching less than generous procedure to its deprivation, neither does a State create a property right merely by ordaining beneficial procedure unconnected to some articulable substantive guarantee.” He writes that because there is no meaningful distinction between that to which Gonzales asserts she is entitled and the process she desires to have protect it, allowing her claim would “work a sea change in the scope of federal due process,” effectively federalizing every state mandate to executive officers whose job performance would affect private citizens.

Justice Stevens’s Dissenting Opinion

Drawing an analogy between the statute in question and an agreement with a private security firm, Justice Stevens points out that an identical contract with a private business would have created a property right in the contract’s enforcement. Enforcement of a restraining order against an individual by the government, he writes, is “concrete,” not amorphous or difficult to measure. He points out that the majority did not try to demonstrate that the Court of Appeals was “clearly wrong” in its interpretation of Colorado’s domestic restraining order statute. “Shall use” and “shall arrest” can, after all, easily be interpreted as creating mandatory orders rather than setting forth a recommended procedure. Certainly, enforcement of a restraining order is as discrete, straightforward, and well-defined as other tasks commonly performed by law enforcement officers.

Criticizing the majority’s “superficial” analysis on the merits, Justice Stevens argues that by overemphasizing the need for police discretion, the majority ignored the statute’s language and purpose. The Colorado General Assembly’s goal was to provide strict directives to police in domestic violence cases—directives whose purpose was to remove police discretion in that subset of law enforcement situations, precisely so that restraining orders would be enforced regularly. He also emphasizes the narrowness of the protected class—beneficiaries of domestic restraining orders, and the unique details the legislative and social history of domestic violence that prompted the Colorado General Assembly to ensure that domestic violence incidents were taken seriously.

Justice Stevens criticizes the majority for “plung[ing] ahead” with its own analysis of Colorado law, rather than focusing narrowly on whether a property interest was created when the trial court entered the restraining order. Even doubting the Court of Appeals’s reading of Colorado law, he writes, the question would have been more appropriate for certification to the Colorado Supreme Court.