On Monday, the Supreme Court will hear arguments in Town of Castle Rock, CO v. Gonzales, No. 04-278, a case on appeal from a deeply divided Tenth Circuit en banc decision. The case presents two questions (rephrased here from the more cumbersome questions on the Supreme Court’s site):

1. Whether the Fourteenth Amendment provides a procedural due process claim against a local government for its failure to protect the holder of a partial restraining order from private violence, even though this Court has already rejected a similar substantive due process claim in DeShaney v. Winnebago County Dep’t of Soc. Serv., 489 U.S. 189 (1989).

2. If so, what kind of process is due for police inaction with respect to a partial restraining order?

The Tenth Circuit’s panel decision is available here. The en banc decision is here (you have to scroll down a little bit). John Eastman of Chapman University’s law school will argue for petitioner Castle Rock, while John Elwood, an Assistant to the Solicitor General, will argue on behalf of the United States in support of the petitioner. Brian J. Reichel of Broomfield, CO, will argue for respondent Jessica Gonzales.

A longer description of the case follows.

The facts of this case are brutal and tragic. In the midst of an ongoing divorce proceeding, respondent Jessica Gonzales obtained a temporary restraining order (TRO) against her husband, Simon Gonzales. The order barred Mr. Gonzales from the family home, prohibited him from “molesting or disturbing the peace of” Ms. Gonzales and their three young daughters, and granted him only limited visiting rights with his daughters. The order also specifically directed law enforcement officials to (1) “use every reasonable means to enforce” it; and (2) arrest anyone who violated the order.

On the afternoon of Tuesday, June 22, 1999, Ms. Gonzales discovered that her three daughters were missing. She suspected that Mr. Gonzales had taken them, and called the Castle Rock Police Department around 7:30 p.m. for assistance. Two officers came to her house. She showed them a copy of the TRO and asked them to enforce it, but they “stated that there was nothing they could do about the TRO and suggested that Plaintiff call the Police Department again if the three children did not return home by 10:00 p.m.” An hour later Ms. Gonzales reached Mr. Gonzales on his cell phone and learned that the children were with him at a Denver amusement park. Again she called the Castle Rock Police Department and asked the same police officers to find and arrest Mr. Gonzales. The officers refused and again asked Ms. Gonzales to call back at 10:00 p.m. if her daughters had not yet returned. At 10:00 p.m., her daughters still missing, Ms. Gonzales called the police and was told to call back at midnight. At midnight, still with no sign of her daughters, she called the police again, then drove to Mr. Gonzales’s apartment, which was empty. She made a final call from her ex-husband’s apartment complex, but no police officer ever showed up. Finally, Ms. Gonzales drove to the Castle Rock Police Station herself at 12:50 a.m. and asked for help. The officers took an incident report but otherwise did nothing.

At 3:20 a.m., Simon Gonzales drove to the Castle Rock Police Station and opened fire with a handgun. The police shot him dead at the scene. Moments later, they discovered the bodies of Ms. Gonzales’s three daughters in the cab of Mr. Gonzales’s truck. He had murdered them earlier that evening.

Jessica Gonzales brought suit under 42 U.S.C. § 1983 against the Town of Castle Rock and the individual police officers she had contacted that evening. The district court dismissed the case on the ground that Ms. Gonzales had failed to state a claim under the Fourteenth Amendment. The initial Tenth Circuit panel, per Judge Seymour, affirmed the dismissal with respect to Ms. Gonzales’s substantive due process claim, citing DeShaney. However, it allowed her procedural due process claim to proceed, holding that (a) the mandatory language of a Colorado statute imposed on officers a nondiscretionary duty enforce the TRO and therefore created a property interest in enforcement; and (b) by failing to take any steps to enforce the TRO, the officers deprived Ms. Gonzales of this interest without due process. In a lengthy opinion, the en banc court affirmed. Five judges dissented, filing four opinions.

This case centers around the interpretation of the Court’s decision in DeShaney and a Colorado statute. In DeShaney–in which a young boy who was left in the custody of his violent father despite numerous complaints of abuse was beaten so severely that the boy suffered massive brain damage and was left severely retarded–the Court, per Chief Justice Rehnquist, held that a state’s failure to protect an individual against private violence does not violate substantive due process. In footnote 2, however, DeShaney expressly disclaimed any holding on procedural due process. (A side note: DeShaney is also the case with Justice Blackmun’s famously passionate “Poor Joshua!” dissent, in which he blasted the state’s inaction as “a sad commentary upon American life, and constitutional principles.”) Colorado Revised Statute § 18-6-803.5 (reproduced at the bottom of the Government’s brief), provides, inter alia, that “[a] peace officer shall use every reasonable means to enforce a protection order.”

Petitioner Castle Rock makes two arguments in its brief. First, it argues that Ms. Gonzales’s procedural due process claim is really a dressed-up substantive due process claim that would be barred under DeShaney. The brief points out that although Ms. Gonzales’s complaints are couched in procedural terms (i.e., the police decided to deprive her of enforcement without due process), the gravamen of her complaint is the substantive result of this lack of “process,” and not any defects in the process itself. To put it more heartlessly, the real harm she suffered was the death of her three children, not any denial of an opportunity to be heard. (The police did, after all, listen to her; they just didn’t do anything in response.) The brief further points out how a ruling in favor of Ms. Gonzales would dangerously undermine DeShaney and lead to a flood of litigation: “Under the Tenth Circuit’s reasoning, countless other statutes already on the books will give rise to constitutional claims asserting procedural due process violations whenever the police or other governmental officials are unsuccessful at thwarting private violence.”

Second, Castle Rock’s brief argues that Colorado Revised Statute § 18-6-803.5 does not create any property interest protected by the Due Process Clause. Despite its seemingly mandatory language, the brief points out that the statute only requires police officers to use “reasonable means” to enforce TROs, and only if there is “probable cause” to believe that the TRO has been violated–two standards with “almost infinite gradations, depending on the particular facts and circumstances of each case.” Even if there is probable cause, the brief further points out that officers then can choose among a number of different means of enforcing the TRO. In short, this “level of discretion destroys Ms. Gonzales’s claim of entitlement.”

In its brief, the United States makes three additional arguments. First, the government argues that the Colorado statute’s seemingly mandatory language must be interpreted against legislatures’ traditional respect for police discretion. Second, the government argues that because the statute only mentions police rather than citizens, it should be understood merely as a procedural guide for police rather than a rights-creating statute. Third, the government argues that even if procedural due process is required here, the proper level of process was afforded here when police heard Ms. Gonzales’s complaint, notwithstanding their subsequent failure to act on it.

Ms. Gonzales’s brief in response carefully emphasizes that the entitlement being claimed here derives not from the federal Constitution (which was the claim in DeShaney) but rather from a combination of the mandatory Colorado statute and the state-issued TRO. Perhaps the most interesting part of the brief is its discussion of the legislative history behind the Colorado statute, which has analogues in other states: “The Legislature’s purpose in [enacting this statute] was to counteract the societal and historical tendency not to enforce laws against domestic violence, to emphasize the need for enforcement of existing laws, and to provide guidance to law enforcement agencies in how to go about enforcing them.” The brief argues that denying Ms. Gonzales relief here would undercut the ability of legislatures to effectively require the kind of TRO enforcement that they were clearly trying to achieve here. Finally, Ms. Gonzales argues that whatever the appropriate level of process, the police denied it to her by refusing to seriously entertain her repeated complaints and utterly failing to consider whether there was probable cause to enforce the TRO.