joined by TACHA, Chief Circuit Judge, and O’BRIEN, Circuit Judge, concurring in part and dissenting in part.
The facts of this case give new meaning to the old adage that hard cases make bad law. I understand this court’s desire to fashion a cause of action to remedy what charitably could be described as gross negligence. However, I do not agree that the Fourteenth Amendment elevates what is essentially a case of negligence by a state actor into a constitutional violation. Accordingly, I respectfully dissent from the court’s constitutionalization of state law.
I agree that the individual officers are entitled to qualified immunity, but disagree that a protected property interest exists “in the enforcement of the terms of [a] restraining order.” Ct. Op. at 1099. The court reaches its conclusion based upon the restraining order and the Colorado statutes upon which it is based, particularly Colo.Rev.Stat. § 18-6-803.5(3) (2002). Colorado has enacted a statute making it a misdemeanor to knowingly violate a protective order, and then specified peace officers’ and prosecutors’ non-exclusive duties in enforcing the statute as well as the protective order itself. Colo.Rev.Stat. § 18 — 6—803.5(1)—(3); People v. Coleby, 34 P.3d 422, 424 (Colo.2001). A protected person may also initiate contempt proceedings against one who violates a restraining order. Colo.Rev.Stat. § 18-6-803.5(7).
This court retreats from the holding of the panel opinion that the statute, by its use of objective predicates and seemingly mandatory outcomes, creates a property interest in the enforcement of a protective order by every reasonable means, including arrest whenever probable cause exists to believe the restrained person has violated the order. Gonzales v. City of Castle Rock, 307 F.3d 1258, 1265-66 (10th Cir.2002). Instead, the court holds that the *1119property interest derives from the protective order that is issued by a court pursuant to the statute. Ct. Op. at 1104 n. 9. This is largely a distinction without a difference, for the same statutory provisions the panel opinion relied upon are repeated in the protective order.1 Moreover, the protective order binds the parties to it; it cannot bind the peace officers who are non-parties.
A. Judicial Notice
The court issues its pronouncement by taking judicial notice on appeal of (and then supplementing the record with) the back of a restraining order form. Obviously, when reversing a district court, we should hesitate to take judicial notice of (or supplement the record with), ostensibly dispositive materials not before the district court.
B. Due Process
The panel decision correctly rejected the substantive due process claims on the authority of DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), which held “that a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause,” id. at 197, 109 S.Ct. 998, absent a special relationship between the State and the victim or some role of the State in creating the danger. Gonzales, 307 F.3d at 1262-63; see also Duong v. County of Arapahoe, 837 P.2d 226, 229 (Colo.Ct.App.1992) (rejecting claim that county defendants breached a constitutional duty by failing to protect wife from husband where a permanent restraining order had been issued and the judge specifically requested security) (citing Estate of Gilmore v. Buckley, 787 F.2d 714 (1st Cir.1986)2). Neither exception applies in this case, and although the facts alleged plainly state a claim for gross negligence, not every common law duty supports a federal due process violation.
The Plaintiff, however, invokes a different source of due process protection by claiming a property interest in the enforcement of her protective order, which she argues could not be deprived without an opportunity to be heard. However improbable it may be that Ms. Gonzales sought only a hearing on the decision not to enforce the protective order — rather than enforcement itself — I take her argument at face value and analyze her case under our procedural due process precedents.3 Defendants argue that the panel’s decision on the procedural due process claim is discordant with DeShaney because *1120“a private individual need not have a special relationship with the state, nor must he show the state created or enhanced the danger to establish a Fourteenth Amendment violation.... Instead, the individual only need cite a state law containing mandatory language and then assert that a property interest has been denied without the benefit of procedural due process.” Aplees. Reh’g Br. at 6. Given that this statute primarily sets out a criminal offense and then contains procedure on how the offense is to be prosecuted, I agree.
In Board of Regents v. Roth, 408 U.S. 564, 569-71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Supreme Court held that the procedural due process requirements of the Fourteenth Amendment apply only where the particular interest at stake falls within the Amendment’s protection of liberty or property. Acknowledging that the property interests protected by procedural due process “extend well beyond actual ownership of real estate, chattels, or money,” the Court stated that it has “at the same time observed certain boundaries. For the words ‘liberty’ and ‘property’ in the Due Process Clause ... must be given some meaning.” Id. at 572, 92 S.Ct. 2701. The Court went on to define a property interest as an interest “that a person has already acquired in specific benefits.” Id. at 576, 92 S.Ct. 2701 (emphasis added). Moreover, the Court added that to have a property interest in a benefit, the individual claiming the interest “must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id. at 577, 92 S.Ct. 2701.
From Roth, it is apparent that the test for determining whether an interest in a benefit constitutes “property” for due process purposes consists of two distinct elements. First, that benefit must be specific, and second, the individual claiming the interest must have a legitimate claim of entitlement to the benefit. It has always been the law that mere procedure contained in a statute does not create a property interest — were it otherwise every statute prescribing procedure would confer procedural due process rights. See Olim v. Wakinekona, 461 U.S. 238, 250-51, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983).
The panel opinion determined that a portion of the statute, Colo.Rev.Stat. § 18-6-803.5(3), goes beyond establishing mere procedural guidelines, and instead contains mandatory directives to enforce protective orders if certain substantive conditions are fulfilled. Gonzales, 307 F.3d at 1264-66. The court now focuses on those same mandatory directives as contained in the protective order. It concludes by negative inference that the failure to enforce the protective order results in a denial of a property interest for which due process protections are required. See Sandin v. Conner, 515 U.S. 472, 480-81, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983); Cosco v. Uphoff, 195 F.3d 1221, 1223 (10th Cir.1999). Even though the court has shifted its primary focus from the statute to the protective order, the statute very much matters because the form protective order contains a notice provision (on the back) that essentially repeats the statute.
Where an individual claims a property or liberty interest based upon a state statute or regulation containing mandatory language, that language must “requir[e] that a particular result is to be reached upon a finding that the substantive predicates are met.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 464, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); see also Sandin, 515 U.S. at 481, 115 S.Ct. 2293 (describing liberty interest under this approach as an enforceable expectation that mandatory language and substantive pred*1121icates “would produce a particular outcome”). Where discretion is not limited, the language is not mandatory for purposes of this analysis, and a property or liberty interest is not created. See Olim, 461 U.S. at 249-50, 108 S.Ct. 1741 (no liberty interest in limiting prison transfers where regulations described procedure but did not place substantive limits on discretion). Stated another way, if a particular result is not required, no liberty or property interest is created. See Thompson, 490 U.S. at 464, 109 S.Ct. 1904.
When the statute is viewed as a whole, it is apparent that it does not require a particular result in every case and necessarily involves discretion. This is a criminal statute that not only defines the crime of violation of a protective order, but also specifies how enforcement, including arrest and prosecution, may occur. A general directive in subsection 3(a) requires that “[a] peace officer shall use every reasonable means to enforce a restraining order.” Colo.Rev.Stat. § 18-6-803.5(3)(a). Enforcement of a protective order at this level is necessarily procedural — peace officers do not decide guilt or innocence, nor do they confer substantive benefits, including the right to be free of the activities proscribed by the statute. See id. Subsection 3(b) then elaborates on but one means of enforcement — arrest—and then contains a totally unremarkable probable cause requirement. Id. § 18-6-803.5(3)(b). It requires a peace officer to arrest a restrained person on probable cause that a protective order is being violated and the restrained person has notice of the order. Id. Even then it gives discretion to an officer to merely seek a warrant “if an arrest would be impractical under the circumstances.” Id. The statute acknowledges means of enforcement other than arrest. See id. § 18-6-803.5(5) (containing an exculpatory provision for a peace officer “arresting a person for violating a protection order or otherwise enforcing a protection order ”) (emphasis added). At best, these provisions are specifications of procedure, not the creation of substantive rights inuring to the benefit of protected persons.
While the statute may channel the discretion of law enforcement, it in no way eliminates that considerable discretion for obvious reasons. As the panel noted, “an arrest is not always necessary to enforce a restraining order.” Gonzales, 307 F.3d at 1265. It all depends upon the circumstances. Intervention short of an immediate arrest may be more effective, safer and more efficient for the protected person and law enforcement. Moreover, an arrest or an arrest warrant is influenced by other discretionary factors apart from probable cause, including the well-being of the protected person, the peace officer, the restrained person and the community. Whether we define the interest as “reasonable means to enforce a protection order,” Colo.Rev.Stat. § 18-6-803.5(3)(a), or “in terms of a reasoned police response or reasonable protection,” Ct. Op. at 1107, the conclusion is the same — these formulations deal with procedure and simply lack the concrete specificity necessary for a property interest.
Because of the varied circumstances that law enforcement officers confront, the Colorado legislature obviously did not prescribe arrest in all cases. Bear in mind this restraining order was issued ex parte, allowing the restrained party to move for its dissolution or modification on two days notice to the person obtaining the order. App. 29; Colo.Rev.Stat. § 14-10-108(6). The restraining order was modified and made “permanent” in another temporary order not part of a final decree. App. 30. Colo.Rev.Stat. § 14 — 10—108(5)(b) (c). Whether we call it “a property interest in the enforcement of the terms of [a] restraining order,” Ct. Op. at 1101, or a *1122property interest in “the government service of enforcing the objective terms” of a protective order, id. at 1109, the interest identified is too general. It cannot be reduced to definite outcomes, regardless of whether the court relies upon the statute or part of an order that provides notice of the statute’s terms. It matters not that the restraining order was issued on a showing of irreparable injury and that it forbade Mr. Gonzales from molesting or disturbing the peace of any party or of any child as envisioned by the statute. App. at 29; Colo.Rev.Stat. 14-10-108(2)(b)(c), (3). The cases recognizing property and liberty interests have dealt with particular and discrete outcomes where due process is required based upon state law. See Washington v. Harper, 494 U.S. 210, 221, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (liberty interest in freedom from arbitrary administration of anti-psychotic medication); Hewitt, 459 U.S. at 471-72, 103 S.Ct. 864 (liberty interest in freedom from administrative segregation); Vitek v. Jones, 445 U.S. 480, 487-91, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (liberty interest in freedom from an arbitrary, involuntary transfer to a mental hospital); Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 11-12, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (liberty interest in parole); Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (liberty interest in avoiding loss of good time credits); Roth, 408 U.S. at 578, 92 S.Ct. 2701 (potential property interest in re-employment for the next year); Goldberg v. Kelly, 397 U.S. 254, 260-61, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (property interest in welfare benefits requiring pre-termination hearing). Enforcement of a protective order is different — -it is necessarily case by case, influenced by a variety of decisionmakers and no single remedy would suffice. There just is not a certain outcome in which to have a legitimate expectation of entitlement. See Doe v. Hennepin County, 858 F.2d 1325, 1328 (8th Cir.1988) (“To have an entitlement the benefit must be clearly definable; public assistance, social security or unemployment benefits are examples of such.”).
As noted, although the court emphasizes the language contained in the protective order (against a backdrop of the statute), its analysis differs little from the panel opinion because both rely upon the statute’s seemingly mandatory terms. See Ct. Op. at 1104. If anything, the language in the protective order in effect complicates the analysis. First, the fact that the form of order contained a “Notice to Law Enforcement Officials” repeating the language of the statute does not eliminate the discretion of law enforcement. That section is preceded by a “Notice to Restrained Party” indicating “You may be arrested without notice if a law enforcement officer has probable cause to believe that you have knowingly violated this order.” (emphasis added). This suggests law enforcement discretion. Second, although a later temporary order makes the restraining order permanent, the later order modified the restraining order and specifically allowed parenting time for the father. Some of that time was with notice and consent, and some was without. Regardless, the order in effect plainly contemplated that the father was to have contact with the children on alternating weekends, at mid-week dinner visits arranged by the parties, and during two weeks of the summer. App. at 30-31. The statement that: “The restraining order here specifically directed, with only the narrowest of exceptions, that Mr. Gonzales stay away from Ms. Gonzales and her daughters,” Ct. Op. at 1105, is somewhat beside the point, as well as inaccurate, because the restraining order had been significantly modified when the incident occurred. Determining whether the father was in compliance with *1123the order then in effect is not quite as obvious as the court portrays it to be.
Unlike a money judgment, a protective order is not collectable, transferable, or bankable. The temporary protective order here was not an adjudication of Ms. Gonzales’s rights against the law enforcement officials or an enforceable agreement between them. Instead, as its caption indicates, the protective order was issued in favor of Ms. Gonzales to protect her and her children from her husband. See Colo.Rev.Stat. § 14-10-108(2) (“either party [spouse] may request the court to issue a temporary injunction ... [e]njoining a party ... [excluding a party ....”) (emphasis added).
The conclusion that Ms. Gonzales had a property interest in the enforcement of the terms of the protective order strongly implies that law enforcement was bound by the order also. This is untenable. For obvious reasons, the law is very specific when it comes to the legal effect of an injunction or temporary restraining order:
Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
Colo. R. Civ. P. 65(d) (emphasis added); accord Fed.R.Civ.P. 65(d). By operation of law, the defendants as non-parties were not bound by this temporary restraining order, nor could they be said to be acting in active concert or participation with either party in this case. The restraining order in this case cannot do service for a mandatory affirmative injunction that names the Defendants and the tasks they must accomplish. That Ms. Gonzales did not have an entitlement to action by law enforcement under the terms of the order is buttressed by Colorado’s statutory recognition that the “violation of a protective order” is committed not by a failure of law enforcement to take specific action, but when a person subject to an order’s provisions “contacts, harasses, injures, intimidates, molests, threatens, or touches any protected person or enters or remains on premises or comes within a specified distance of a protected person or premises.” Colo.Rev.Stat. § 18-6-803.5(1). Indeed, the back of the form also informs a restrained party that violation of such an order “will ... constitute contempt of court,” consistent with a remedy envisioned by the statute. See Colo.Rev.Stat. 18-6-803.5(7).
Thus I fully agree with Judge O’Brien: Any process to which Ms. Gonzales was due based upon the decretal, and therefore enforceable, language of the TRO (and centuries of jurisprudence) has nothing to do with law enforcement officers. It is the right to an appropriate remedy against a contumacious party, judicially imposed after a hearing. That process was never denied Ms. Gonzales.
O’Brien, J., dissent at 1134. The court rejects our observations about the limits of a restraining order as a source of constitutional tort liability as tantamount to suggesting “that police officers in Colorado are at liberty to ignore the terms of court orders, especially where such orders clearly direct police enforcement and are issued pursuant to legislation anticipating the same.” Ct. Op. at 1104 n. 9. The court follows this with citations to cases illustrating that other states “have by no means sanctioned an officer’s failure to enforce terms appearing in a restraining order and mandated by statute.” Id. The cases all *1124involve applications of state law (negligence or statutory negligence) and immunity defenses. Of course, police officers in Colorado are not at liberty to ignore the terms of statutes or court orders, but whether state tort law would recognize a legal duty of care for which damages may be awarded is a wholly separate question from (1) whether the officers were bound by the order and could be held to answer in contempt for any violation, and (2) whether the terms of the order create a non-discretionary entitlement. That one state court has recognized a private right of action based upon similar statutory terms, Nearing v. Weaver, 295 Or. 702, 670 P.2d 137, 140-41 (1983), does not persuade me that Colorado would do so, particularly given the seemingly mandatory language contained in so many Colorado enactments and the expansion of liability that such a change portends.
DeShaney foreshadowed an argument that state statutes (and perhaps orders incorporating those statutes) might create an entitlement to receive protective services. DeShaney, 489 U.S. at 195 n. 2, 109 S.Ct. 998. Sandin suggests limits on recognizing a liberty interest based upon mandatory language and substantive conditions contained in a state statute or regulation. The Court indicated that such an approach “may be entirely sensible in the ordinary task of construing a statute defining rights and remedies available to the general public,” but concluded that it is “less sensible in the case of a prison regulation primarily designed to guide correctional officials in the administration of a prison.” Sandin, 515 U.S. at 481-82, 115 S.Ct. 2293. This court concludes that the approach has not been foreclosed “in non-prison settings,” Ct. Op. at 1102 n. 6, and applies it here, but a more nuanced approach ought to be considered. After all, the Court abandoned this approach because it focused more on the statutory language rather than the nature of the alleged deprivation and “in practice [was] difficult to administer and ... produce[d] anomalous results.” Sandin, 515 U.S. at 481, 483 n. 5, 115 S.Ct. 2293. This is apparent when one considers the apparently mandatory duties of the police chief who “shall apprehend any person in the act of committing any offense against the laws of the state or ordinances of the city and, forthwith and without any warrant, bring such person before a municipal judge, county judge, or other competent authority for examination and trial pursuant to law.” Colo.Rev.Stat. § 31-4-112 (2003). Although couched in mandatory terms, it does not create a property interest in enforcement of the criminal law any more than the specific criminal statute in this case or the order which incorporates the terms of the statute.
In concluding that the order creates mandatory duties, the court relies upon language (contained in the statute and the notice provisions of the order) that law enforcement “shall use every reasonable means” and “shall arrest” on probable cause. Ct. Op. at 1103-04; Colo.Rev.Stat. § 18—6—803.5(3)(a)(b); see also Gonzales, 307 F.3d at 1265 (“shall” means “shall” and creates a mandatory obligation). Amici Colorado Municipal League, Colorado Counties, Inc., and the Colorado Association of the Chiefs of Police note that the term “shall” is used throughout the statute to describe the procedural requirements attendant to arrest and prosecution, and that each of these acts of criminal procedure could subject local governments and individual peace officers to liability for civil damages and attorney’s fees under 42 U.S.C. §§ 1983 and 1988.4 Amici correctly *1125focus this court’s attention on the numerous 'procedural requirements in this statute, prompting the question of whether the procedural requirements in the peace officer provision should be construed differently than the provisions attendant to subsequent prosecution.
Notwithstanding the legislative history relied upon by this court, the language of Colo.Rev.Stat. § 18-6-803.5(3) simply does not require peace officer arrests in every case any more than it requires prosecutors to prosecute every case. App. 122; see also Colo.Rev.Stat. 18—6—803.5(3)(d) (“The arrest and detention of a restrained person is governed by applicable constitutional and applicable state rules of criminal procedure.”). By the same reasoning, the recitation of the statute in the protective order’s notice provisions does not automatically require a peace officer arrest in this specific case. While the statute channels a peace officer’s discretion by establishing factors that inform the probable cause determination for an arrest, peace officer discretion is not eliminated. Any other conclusion necessarily means that enforcement of this misdemeanor offense or this particular protective order prevails over any other law enforcement priorities and regardless of the circumstances. Those circumstances (not addressed by the statute or the protective order) might include the apparent seriousness of the alleged violation, the likely response of the restrained person, i.e. flight, violence or acquiescence, and the existence of any cooperating witnesses or protected persons. Such could not have been the intent of the Colorado legislature, let alone the judge that issued this protective order. See Sealed v. Sealed, 332 F.3d 51, 57-59 (2d Cir.2003) (finding statute that contained mandatory language authorizing removal of child ambiguous insofar as creating a substantive entitlement and certifying the interpretive issue to state supreme court). Just as in Sandin, the purpose of the section of the statute relied upon by this court is to guide law enforcement in the administration of a criminal offense. To be sure, the statute evinces serious concerns about protected persons, but not to the exclusion of protecting the public, other law enforcement priorities, and peace officers themselves.
Finally, the court decides what process is due here. An officer must determine whether a valid order exists, and whether there is probable cause to believe that the restrained person has notice of the order and is violating it. Ct. Op. at 1116. If the officer will not enforce the order, “the person claiming the right should be noti*1126fied of the officer’s decision and the reason for it.” Id. Because I would not find a property interest, it is unnecessary to comment on the utter impracticality of requiring law enforcement officers to conduct pre-deprivation hearings in the course of their other duties. See Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir.1988) (en banc) (“It is hardly possible to hold hearings in advance to decide whether fire dispatchers will turn deaf ears to cries of distress.”).
. At best, they are repeated as notice provisions, they are not included in the decretal paragraphs of the order.
. In rejecting a substantive due process claim on grounds anticipating DeShaney, the First Circuit cautioned against "an expansive guarantee of state protective services.” Estate of Gilmore, 787 F.2d at 720.
Enormous economic consequences could follow from the reading of the fourteenth amendment that plaintiff here urges. Firemen who have been alerted to a victim’s peril but fail to take effective action; municipal ambulances which, when called, arrive late; and myriad other errors by state officials in providing protective services, could all be found to violate the Constitution. It would seem appropriate that the citizenry, acting though state legislatures and state courts, should determine how far it wishes to go in reimbursing claims of this type. We can see no justification for rewriting the due process clause of the federal Constitution so as to construct a basis for relief that can more flexibly be provided elsewhere, if that is deemed advisable.
Id. at 722-23. The same can be said about employing procedural due process to create an expansive guarantee of state protective services.
.I join the dissents of Judges O’Brien, McConnell and Hartz which recognize this problem.
. Amici Br. at 10-11 (see Colo.Rev.Stat. § 18-6-803.5(3)(d) (2003) (“The arrested person shall be removed from the scene of the arrest and shall be taken to the peace officer's station for booking.... The prosecuting attorney *1125shall present any available arrest affidavits and the criminal history of the restrained person to the court at the time of the first appearance of the restrained person before the court.”) (emphasis added); id. § 18 — 6— 803.5(3)(e) ("The arresting agency arresting the restrained person shall forward to the issuing court a copy of such agency’s report, a list of witnesses to the violation, and, if applicable, a list of any charges filed or requested against the restrained person. The agency shall give a copy of the agency’s report, witness list, and charging list to the protected party. The agency shall delete the address and telephone number of a witness from the list sent to the court upon request of such witness, and such address and telephone number shall not thereafter be made available to any person, except law enforcement officials and the prosecuting agency, without order of the court.”) (emphasis added); id. § 18-6-803.5(4) ("If a restrained person is on bond in connection with a violation or attempted violation of a protection order in this or any other state and is subsequently arrested for violating or attempting to violate a protection order, the arresting agency shall notify the prosecuting attorney who shall file a motion with the court which issued the prior bond for the revocation of the bond and for the issuance of a warrant for the arrest of the restrained person if such court is satisfied that probable cause exists to believe that a violation of the protection order issued by the court has occurred.”) (emphasis added)).