Gonzales v. City of Castle Rock

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 2, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
JESSICA GONZALES, individually and as next best
friend of her deceased minor children Rebecca
Gonzales, Katheryn Gonzales and Leslie Gonzales,

Plaintiff-Appellant,

v.

CITY OF CASTLE ROCK; AARON AHLFINGER;
R. S. BRINK; MARC RUISI, Officers of the Castle
No. 01-1053
Rock Police Department,

Defendants-Appellees.
________________________

COLORADO MUNICIPAL LEAGUE, COLORADO
COUNTIES, INC., and COLORADO
ASSOCIATION OF CHIEFS OF POLICE,

Amici Curiae.

ORDER

Before TACHA, Chief Judge, SEYMOUR, EBEL, KELLY, HENRY,
BRISCOE, LUCERO, MURPHY, HARTZ, O’BRIEN, and McCONNELL,
Circuit Judges.

The Supreme Court’s decision in Town of Castle Rock v. Gonzales, 125 S.

Ct. 2796 (2005), reversed our decision in the same matter, see Gonzales v. City of
Castle Rock, 366 F.3d 1093 (10th Cir. 2004) (en banc). Accordingly, we

AFFIRM the district court’s dismissal of the case. The mandate is issued

forthwith.

ENTERED FOR THE COURT

Stephanie K. Seymour
Circuit Judge

-2-
 F I L E D
United States Court of Appeals
Tenth Circuit

OCT 15 2002
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

JESSICA GONZALES, individually
and as next best friend of her deceased
minor children Rebecca Gonzales,
Katheryn Gonzales and Leslie
Gonzales,

Plaintiff - Appellant,
No. 01-1053
v.

CITY OF CASTLE ROCK; AARON
AHLFINGER; R. S. BRINK; MARC
RUISI, Officers of the Castle Rock
Police Department,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 00-D-1285)

Brian J. Reichel, Attorney, Thornton, Colorado, for Plaintiff-Appellant.

Thomas S. Rice, Senter Goldfarb & Rice, L.L.C. (Eric M. Ziporin, Senter,
Goldfarb & Rice, L.L.C. and Christina M. Habas, Bruno, Bruno & Colin, P.C.,
with him on the briefs), Denver, Colorado, for Defendants-Appellees.
Before SEYMOUR, McWILLIAMS and GIBSON, * Circuit Judges.

SEYMOUR, Circuit Judge.

Jessica Gonzales brought this action under 42 U.S.C. § 1983 individually

and on behalf of her deceased minor children against the City of Castle Rock,

Colorado, and Castle Rock police officers Aaron Ahlfinger, R.S. Brink, and Marc

Ruisi. Ms. Gonzales alleged that plaintiffs’ substantive and procedural due

process rights were violated when defendant police officers failed to enforce a

restraining order against her estranged husband, Simon Gonzales, after he

abducted the children. While Ms. Gonzales was seeking enforcement of the

order, Mr. Gonzales murdered the children. Ms. Gonzales also alleged that the

City failed to properly train its police officers with respect to the enforcement of

restraining orders and had a custom or policy of recklessly disregarding the right

to police protection created by such orders. The district court granted defendants’

motion to dismiss, concluding that Ms. Gonzales failed to state a claim under the

Fourteenth Amendment for the deprivation of either substantive or procedural due

process. Ms. Gonzales appeals. We affirm in part, reverse in part, and remand

for further proceedings.

The Honorable John R. Gibson, Circuit Judge, United States Court of
*

Appeals for the Eighth Circuit, sitting by designation.

-2-
 I

“In reviewing the grant of a 12(b)(6) motion, we apply the same standards

as the district court.” David v. City & County of Denver, 101 F.3d 1344, 1352

(10th Cir. 1996). We accept the well-pleaded allegations in the complaint as true

and construe them most favorably to the plaintiff. Id. “A complaint may be

dismissed pursuant to Fed. R. Civ. P. 12(b)(6) only ‘if the plaintiff can prove no

set of facts to support a claim for relief.’” Id. (quoting Jojola v. Chavez, 55 F.3d

488, 490 (10th Cir. 1995)). Viewed in this light, the complaint sets out the

following tragic facts.

On May 21, 1999, Ms. Gonzales obtained a temporary restraining order

against her estranged husband, Simon, in connection with her divorce

proceedings. Upon issuance, the order was entered into the central registry of

restraining orders, a computerized database accessible to all state and local law

enforcement agencies. The order was served on Mr. Gonzales on June 4, 1999,

and made permanent on that date. Under the order, Mr. Gonzales was excluded

from the family home and was prohibited from molesting or disturbing the peace

of Ms. Gonzales and their three daughters, ages ten, nine, and seven. The order

allowed Mr. Gonzales parenting time with the girls on alternating weekends and

for two weeks during the summer. The order also provided that Mr. Gonzales,

-3-
“upon reasonable notice, shall be entitled to a mid-week dinner visit with the

minor children. Said visit shall be arranged by the parties.” Aplt. App. at A-30.

On Tuesday, June 22, 1999, sometime between 5:00 and 5:30 p.m., Simon

Gonzales abducted the three girls while they were playing outside their house.

Mr. Gonzales had not given advance notice to Ms. Gonzales or arranged with her

for a mid-week dinner visit with the children. When Ms. Gonzales discovered the

children were gone, she suspected that Simon, who had a history of suicidal

threats and erratic behavior, had taken them. She called the Castle Rock Police

Department for assistance at approximately 7:30 p.m. Officers Brink and Ruisi

were sent to the Gonzales home, where Ms. Gonzales showed them a copy of the

order, requesting that it be enforced and that the children be returned to her

immediately. The Officers “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.” Aplt. App. at A-9.

At about 8:30 p.m., Ms. Gonzales reached Simon on his cell phone and

learned that he and the children were at Elich Gardens, an amusement park in

Denver. Ms. Gonzales immediately called the Castle Rock police, spoke with

Officer Brink, and requested that the police attempt to find and arrest Mr.

Gonzales at Elich Gardens. Officer Brink refused to do so and told Ms. Gonzales

to wait until 10:00 p.m. to see if Mr. Gonzales returned the children. At shortly

-4-
after 10:00, Ms. Gonzales called the police to report that the children were still

missing and was told by the dispatcher to wait until midnight. At midnight she

again called the police and told the dispatcher the children were still gone. At

that point, she went to Simon Gonzales’ apartment and found that he had not

returned. She called the police from the apartment complex and was told by the

dispatcher to wait there until the police arrived. No officer ever came and at

about 12:50 a.m. she went to the police station and met with Officer Ahlfinger.

He took an incident report, but did not attempt to enforce the TRO or to locate the

three children.

At approximately 3:20 a.m., Simon Gonzales drove to the Castle Rock

Police Station, got out of his truck, and opened fire with a semi-automatic

handgun he had purchased shortly after abducting his daughters. He was shot

dead at the scene. The police discovered the three girls, who had been murdered

by Simon earlier that evening, in the cab of his truck.

II

We turn first to Ms. Gonzales’ claim that defendants violated plaintiffs’

rights to substantive due process by failing to enforce the restraining order. The

starting point for assessing this claim is the Supreme Court’s discussion of the

matter in DeShaney v. Winnebago County Dep’t of Soc. Serv., 489 U.S. 189

-5-
(1989). There the plaintiff, a child abused by his father, sued social workers and

their social services department alleging a substantive deprivation of his liberty

interest occasioned by their failure to remove him from his father’s custody

despite knowledge of the abuse.

In support of her substantive due process claim, Ms. Gonzales points to the

Colorado statute describing peace officers’ duties with respect to the enforcement

of such orders. As the Court indicated in DeShaney, however, while this statute

is relevant to Ms. Gonzales’ procedural due process claim, see infra, the language

of the Due Process Clause itself must be the source of her substantive claim. See

DeShaney, 489 U.S. at 195. In rejecting the substantive due process argument,

the Court pointed out that “nothing in the language of the Due Process Clause

itself requires the State to protect the life, liberty, and property of its citizens

against invasion by private actors.” Id. at 195.

If the Due Process Clause does not require the State to provide its
citizens with particular protective services, it follows that the State
cannot be held liable under the Clause for injuries that could have
been averted had it chosen to provide them. As a general matter,
then, we conclude 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 196-97 (footnote omitted).

The Court did recognize “that in certain limited circumstances the

Constitution imposes upon the State affirmative duties of care and protection with

-6-
respect to particular individuals,” id. at 198, but held that those circumstances

arise only “when the State by the affirmative exercise of its power so restrains an

individual’s liberty that it renders him unable to care for himself.” Id. at 200.

“The affirmative duty to protect arises not from the State’s knowledge of the

individual’s predicament or from its expressions of intent to help him, but from

the limitation which it has imposed on his freedom to act on his own behalf.” Id.

The Court also pointed out that although the state may have been aware of the

dangers faced by the plaintiff in DeShaney, “it played no part in their creation,

nor did it do anything to render him any more vulnerable to them.” Id. at 201.

In keeping with the discussion in DeShaney, this court and others have

recognized two exceptions to the rule that state actors are generally not liable for

acts of private violence: “(1) the special relationship doctrine; and (2) the ‘danger

creation’ theory.” Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995). Ms.

Gonzales does not contend a special relationship was created here by the state’s

assumption of control over an individual. We therefore turn our attention to the

“danger creation” theory, under which a state may be liable for private conduct

when it takes affirmative action which creates or increases the danger to the

plaintiff. See Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991, 995 (10th Cir.

1994).

To make out a proper danger creation claim, a plaintiff must
demonstrate that (1) the charged state entity and the charged

-7-
 individual actors created the danger or increased plaintiff’s
vulnerability to the danger in some way; (2) plaintiff was a member
of a limited and specifically definable group; (3) defendants’ conduct
put plaintiff at substantial risk of serious, immediate, and proximate
harm; (4) the risk was obvious or known; (5) defendants acted
recklessly in conscious disregard of that risk; and (6) such conduct,
when viewed in total, is conscience shocking.

Currier v. Doran, 242 F.3d 905, 918 (10th Cir. 2001) (citing Armijo v. Wagon

Mound Pub. Sch., 159 F.3d 1253, 1262-63 (10th Cir. 1998)).

In order to satisfy the first requirement and show that the defendant created

the danger or increased the plaintiff’s vulnerability to it, a plaintiff must show

affirmative conduct on the part of the defendant, Graham, 22 F.3d at 995, “that

creates, or substantially contributes to the creation of, a danger or renders citizens

more vulnerable to a danger than they otherwise would have been,” Armijo, 159

F.3d at 1263 (quoting Reed v. Gardner, 986 F.2d 1122,1126 (7th Cir. 1993)). If

this element is not shown, the substantive due process claim must fail. In

assessing this factor, it is important to distinguish between affirmative conduct

that creates or enhances a danger and a failure to act that merely does not

decrease or eliminate a pre-existing danger. This distinction, while subtle, is

critical under DeShaney and its progeny.

Ms. Gonzales contends the circumstances here are analogous to those in

Currier v. Doran, 242 F.3d 905 (10th Cir. 2001), in which we held that the

plaintiff had set out the requisite affirmative conduct in support of his substantive

-8-
due process claim. In Currier, however, we took great care to point out that

“[t]he danger creation theory . . . focuses on the affirmative actions of the state in

placing the plaintiff in harm’s way.” Id. at 919. We concluded there that a

defendant social worker had acted affirmatively by recommending that a parent be

given legal custody of a child despite the defendant’s knowledge of evidence and

allegations that the parent had previously abused the child. While we observed

that the defendant had also failed to investigate or act on the allegations of abuse,

we noted that this failure to act “should be viewed in the general context of the

state’s affirmative conduct in removing the children from their mother and

placing the children with their father.” Id. at 920 n.7.

Although in the present case Ms. Gonzales attempts to characterize

defendants’ conduct as affirmative interference with the protection provided by

the restraining order, in the end the individual defendants simply failed to act by

refusing to enforce the order. Their failure, while it did not reduce the danger

posed by Simon Gonzales’ abduction of the girls, did not create or enhance that

danger. This lack of affirmative conduct is fatal to Ms. Gonzales’ substantive due

process claim. See Graham, 22 F.3d at 995 (substantive due process argument

must fail when plaintiffs unable to “point to any affirmative actions by the

defendants that created or increased the danger to the victims.”).

-9-
 III

We reach a different result with respect to Ms. Gonzales’ procedural due

process argument. This claim requires that we address an issue the Supreme

Court did not reach in DeShaney because it was not timely raised – whether the

state statute at issue gives “an ‘entitlement’ to receive protective services in

accordance with the terms of the statute, an entitlement which would enjoy due

process protection against state deprivation under our decision in Board of

Regents of State Colleges v. Roth, 408 U.S. 564 (1972).” DeShaney, 489 U.S. at

195 n.2.

In Roth, the Court pointed out that “[t]he Fourteenth Amendment’s

procedural protection of property is a safeguard of the security of interests that a

person has already acquired in specific benefits. These interests – property

interests – may take many forms.” Roth, 408 U.S. at 576. Property interests “are

created and their dimensions are defined by existing rules or understandings that

stem from an independent source such as state law – rules or understandings that

secure certain benefits and that support claims of entitlement to those benefits.”

Id. at 577. “To have a property interest in a benefit, a person clearly must have

more than an abstract need or desire for it. He must have more than a unilateral

expectation of it. He must, instead, have a legitimate claim of entitlement to it.”

Id. When, as here, a plaintiff contends that a constitutionally protected property

-10-
interest is created by a state statute, we have held that such an interest arises

when “the regulatory language is so mandatory that it creates a right to rely on

that language thereby creating an entitlement that could not be withdrawn without

due process.” Cosco v. Uphoff, 195 F.3d 1221, 1223 (10th Cir. 1999) (per

curiam).

Ms. Gonzales relies on the language in the Colorado statute defining the

crime of violating a restraining order and the duties of peace officers in that

regard. Under that provision, officers “shall use every reasonable means to

enforce a restraining order,” C OLO . R EV . S TAT . § 18-6-803.5(3)(a) (2002)

(emphasis added), and “shall arrest, or, if an arrest would be impractical under the

circumstances, seek a warrant for the arrest of a restrained person when the peace

officer has information amounting to probable cause that . . . [t]he restrained

person has violated or attempted to violate any provision of a restraining order,”

id. § 18-6-803.5(3)(b)(I) (emphasis added). Ms. Gonzales contends the

mandatory nature of the italicized language imposes a mandatory obligation on

police officers to enforce the order and to arrest violators, and therefore gives

persons with a restraining order a legitimate claim of entitlement to the protection

the order is intended to provide.

In making this argument, Ms. Gonzales relies on cases from other

jurisdictions holding that a property interest is created in a domestic violence

-11-
restraining order. For example, in Siddle v. City of Cambridge, 761 F. Supp. 503

(S.D. Ohio 1991), the court concluded that a protective order obtained pursuant to

state law “creates a property right which incurs a duty on the part of the

government.” Id. at 509. The state statute there provided that “any officer of a

law enforcement agency shall enforce a protection order issued . . . by any court

in this state in accordance with the provisions of the order.” O HIO R EV . C ODE

A NN . § 3113.31(F)(3) (West 2002) (emphasis added). The court observed that

holders of protective orders are entitled to greater rights than other citizens and

that such an order “would have no valid purpose unless a means to enforce it

exists.” Siddle, 761 F. Supp. at 509.

In Coffman v. Wilson Police Dep’t, 739 F. Supp. 257 (E.D. Pa. 1990), the

court held that the state statute governing enforcement of protective orders did

not create a property interest in police protection because the statute provided

only that an arrest may be without a warrant upon violation of the order. But the

court did hold that the order itself created an enforceable interest based on its

requirement that the appropriate police department shall enforce it. Siddle and

Coffman thus both hold that use of the word “shall” to impose a mandatory duty

on police to enforce a protective order creates a legitimate claim of entitlement to,

and thus a protected property interest in, the protection provided by the order.

-12-
“The word ‘shall’ is mandatory, not precatory, and its use in a simple declarative

sentence brooks no contrary interpretation.” Id. at 264.

In our case, the governing statute provides that an officer shall use every

reasonable means to enforce an order and shall arrest a restrained person when

the officer has information amounting to probable cause that the person has

violated the order. The district court concluded that, notwithstanding the

mandatory language used in the statute, no legitimate claim of entitlement to the

enforcement duties set out therein could arise because those duties are only

triggered when probable cause exists to believe that the restraining order has been

violated. In the district court’s view, determination of the existence of probable

cause is discretionary and therefore cannot be the predicate for a mandatory duty.

We disagree.

The Colorado courts have stated unambiguously that in Colorado statutes,

“shall” does in fact mean “shall.” “The word ‘shall,’ when used in a statute,

involves a ‘mandatory connotation’ and hence is the antithesis of discretion or

choice.” Colorado v. Guenther, 740 P.2d 971, 975 (Colo. 1987); see also Allison

v. Indus. Claim Appeals Office, 884 P.2d 1113, 1119-20 (Colo. 1994); Hernendez

v. District Court, 814 P.2d 379, 381 (Colo. 1991). Moreover, the legislative

history of the statute at issue clearly indicates that the legislature intended to

-13-
impose a mandatory obligation on the police as well as on others involved in the

criminal justice system who deal with domestic abuse.

First of all, . . . the 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.

So this means the entire system must send the same message
and enforce the same moral values, and that is abuse is wrong and
violence is criminal. And so we hope that House Bill 1253 starts us
down this road.

Brief of Aplt, attach., transcript of Colorado House Judiciary Committee Hearings

on House Bill 1253, Feb. 15, 1994, at 3 (emphasis added).

Under the statute here, “[a] peace officer shall use every reasonable means

to enforce a restraining order.” C OLO . R EV . S TAT . § 18-6-803.5(3)(a)(2002)

(emphasis added). This mandatory duty is not premised upon the existence of

probable cause, presumably because an arrest is not always necessary to enforce a

restraining order. Moreover, the fact that the officer’s mandatory duty extends

only to the use of every reasonable means of enforcement does not negate a

legitimate claim of entitlement to the use of those means. See Siddle, 761 F.

-14-
Supp. at 509 (holding that property interest in enforcement extends to reasonable

efforts under the circumstances). 1

The complaint in this case, viewed favorably to Ms. Gonzales, indicates

that defendant police officers used no means, reasonable or otherwise, to enforce

the restraining order. Under these circumstances, we conclude that Ms. Gonzales

has effectively alleged a procedural due process claim with respect to her

entitlement to enforcement of the order by every reasonable means.

The statute also imposes a duty on peace officers to arrest “when the peace

officer has information amounting to probable cause” that the restrained person

has violated or attempted to violate the restraining order. C OLO . R EV . S TAT . § 18-

6-803.5(3)(b)(2002). We do not agree with the district court that because the

officer’s mandatory duty to arrest only arises upon the existence of facts giving

rise to probable cause, no legitimate claim of entitlement can ever exist. In our

view, the statute clearly creates a mandatory duty to arrest when probable cause is

present. It follows that the holder of an order has a legitimate claim of

1
We do not imply that every use of the word "shall" in a statute will support
a procedural due process claim. For example, a property right enforceable by the
procedural due process clause requires that the "shall" language in a statute
mandate a specific substantive outcome rather than merely referring to
procedures. See, e.g., Doe v. Milwaukee County, 903 F.3d 499, 502-04 (7th Cir.
1990); cf. Doyle v. Okla. Bar Ass'n, 998 F.2d 1559, 1570 (10th Cir. 1993) (same
re liberty interest). Here, however, the statute mandates not merely a procedure,
but a specific outcome, enforcement of a restraining order.

-15-
entitlement to the protection provided by arrest when the officer has information

amounting to probable cause that the order has been violated. The existence of

probable cause is an objectively ascertainable matter evaluated on the basis of

what a reasonably well-trained officer would know. See Malley v. Briggs, 475

U.S. 335, 345 (1986); United States v. Davis, 197 F.3d 1048, 1051 (10th Cir.

1999). It therefore is not a matter committed to the officer’s subjective

discretion. See Nearing v. Weaver, 670 P.2d 137, 142 & n.7 (Ore. 1983) (duty to

arrest domestic order violator not discretionary despite requirement that arrest be

supported by probable cause); Campbell v. Campbell, 682 A.2d 272, 274-75 (N.J.

Super. Ct. Law Div. 1996) (same).

Our review of the complaint in the light most favorable to Ms. Gonzales

reveals that she has stated a procedural due process claim with respect to her

entitlement to have Simon Gonzales arrested. She alleged that under the

restraining order, Simon Gonzales was entitled to a mid-week dinner visit only

upon reasonable notice and arrangement between the parties, and that no notice or

arrangement had preceded his abduction of the children. She alleged that she

showed defendant officers the order and told them that Simon had taken the

children in violation of its provisions. These allegations, along with the

invocation of the state statute defining the duties of peace officers with respect to

-16-
the violation of protective orders, set out a constitutional deprivation sufficient to

withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(6).

Accordingly, we reverse the district court’s decision that Ms Gonzales has

failed to state a claim and remand for further proceedings in light of this opinion. 2

The City’s argument that Ms. Gonzales could not establish municipal liability and

the individual defendants’ contention that they are entitled to qualified immunity

are matters to be considered in the first instance by the district court on remand.

REVERSED and REMANDED for further proceedings.

2
Defendants have filed a motion to strike documents attached by Ms.
Gonzales to her brief on appeal. These materials, which consist of three state
statutes and their legislative history, are required under the rules. See Fed. R.
App. P. 28(f). Moreover, they are properly subject to judicial notice under Fed.
R. Evid. 201, which may be taken at any stage in the proceedings. See United
States v. One (1) 1975 Thunderbird 2-Door Hardtop, 576 F.2d 834, 836 (10th Cir.
1978) (judicial notice of state statutes); Adarand Constr., Inc. v. Slater, 228 F.3d
1147, 1168 n.12 (10th Cir. 2000) (judicial notice of content of hearings before
legislative committees). Accordingly, defendants’ motion is denied.

-17-
 F I L E D
United States Court of Appeals
Tenth Circuit

APR 29 2004
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk

TENTH CIRCUIT

JESSICA GONZALES, individually
and as next best friend of her deceased
minor children Rebecca Gonzales,
Katheryn Gonzales and Leslie
Gonzales,

Plaintiff-Appellant,

v.

CITY OF CASTLE ROCK; AARON
AHLFINGER; R. S. BRINK; MARC
No. 01-1053
RUISI, Officers of the Castle Rock
Police Department,

Defendants-Appellees.
________________________

COLORADO MUNICIPAL LEAGUE;
COLORADO COUNTIES, INC.; and
COLORADO ASSOCIATION OF
CHIEFS OF POLICE,

Amici Curiae.

ON REHEARING EN BANC
FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 00-D-1285)
Brian J. Reichel, Attorney, Thornton, Colorado, for Plaintiff-Appellant.

Thomas S. Rice, Senter Goldfarb & Rice, L.L.C. (Eric M. Ziporin, Senter,
Goldfarb & Rice, L.L.C. and Christina M. Habas, Bruno, Bruno & Colin, P.C.,
with him on the brief), Denver, Colorado, for Defendants-Appellees.

Carolynne White, Staff Attorney, Colorado Municipal League; Thomas J. Lyons,
Hall & Evans, LLC, Denver, Colorado; and Julie C. Tolleson, Kennedy &
Christopher, PC, Denver, Colorado, on the brief for Amici Curiae.

Before TACHA, Chief Judge, SEYMOUR, EBEL, KELLY, HENRY,
BRISCOE, LUCERO, MURPHY, HARTZ, O’BRIEN, and McCONNELL,
Circuit Judges.

SEYMOUR, Circuit Judge.

This civil rights case asks us to decide whether a court-issued domestic

restraining order, whose enforcement is mandated by a state statute, creates a

property interest protected by the due process clause of the Fourteenth

Amendment. The district court held it does not and dismissed the action under

F ED . R. C IV . P. 12(b)(6) for failure to state a claim upon which relief could be

granted. A panel of this court reversed. Gonzales v. City of Castle Rock, 307

F.3d 1258 (10th Cir. 2002). On rehearing en banc, we reverse the district court’s

dismissal of Jessica Gonzales’ procedural due process claim as to the City of

Castle Rock, but hold that the individual police officers are entitled to qualified

immunity.

-2-
 I

“We review de novo the district court’s dismissal under Fed.R.Civ.P.

12(b)(6) for failure to state a claim upon which relief can be granted.” Ruiz v.

McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002), cert. denied, 123 S.Ct. 1908

(2003). We accept as true all well-pleaded facts, liberally construe the pleadings,

and make all reasonable inferences in favor of the plaintiff. Id. “The issue in

reviewing the sufficiency of a complaint is not whether the plaintiff will prevail,

but whether the plaintiff is entitled to offer evidence to support her claims.” Id.

(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds

by Harlow v. Fitzgerald, 457 U.S. 800 (1982)). Only where it appears beyond a

doubt that a plaintiff cannot prove any set of facts entitling her to relief, can a

motion to dismiss be granted. Id. With these precepts guiding our review, the

complaint sets forth the following tragic facts.

On May 21, 1999, Ms. Gonzales obtained a temporary restraining order

limiting her husband’s ability to have contact with her and their daughters, aged

ten, nine and seven. The restraining order was issued by a state court in

accordance with C OLO . R EV . S TAT . § 14-10-108, and commanded in part that Mr.

Gonzales “not molest or disturb the peace of [Ms. Gonzales] or . . . any child.”

Aplt. Appx. at 29. The restraining order further stated “the court . . . finds that

physical or emotional harm would result if you are not excluded from the family

-3-
home,” and directed Mr. Gonzales to stay at least 100 yards away from the

property at all times. Id. See also C OLO . R EV . S TAT . § 14-10-108(2)(c) (party can

be excluded from family home upon a showing that physical or emotional harm

would otherwise result).

Neither parent nor the daughters could unilaterally change the terms of the

order because it explicitly states:

If you violate this order thinking that the other party or a 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 child(ren). Only the court can
change this order.

S USAN W ENDALL W HICHER & C HERYL L OETSCHER , H ANDBOOK OF C OLORADO

F AMILY L AW , ch. IV, F-12 at 2 (3d ed. 1996) (emphasis in original) (hereinafter

“Restraining Order”). 1 The order also contained explicit terms directing law

enforcement officials that they “shall use every reasonable means to enforce” the

1
In connection with their motion to dismiss, defendants provided the district
court a copy of the front side of Ms. Gonzales’ temporary restraining order, as
well as a subsequent court order. Aplt. Appx. at 29. However, the back of the
temporary restraining order was not included. Pursuant to F ED . R. E VID . 201(b),
(c), we may take judicial notice of the back of the restraining order form which is
accessible in S USAN W ENDALL W HICHER & C HERYL L OETSCHER , H ANDBOOK OF
C OLORADO F AMILY L AW , ch. IV, F-12 at 2 (3d ed. 1996). See, e.g., Pueblo of
Sandia v. United States, 50 F.3d 856, 861 n.6 (10th Cir. 1995) (court took judicial
notice of government reports and documents not contained in record below). In
order to make the record on appeal complete, however, we asked Ms. Gonzales to
provide the court with the back side of the order, which she has done. See Aplt.
Supp. Appx. at 3 (filed April 19, 2004).

-4-
restraining order, they “shall arrest” or where impractical, seek an arrest warrant

for those who violate the restraining order, and they “shall take the restrained

person to the nearest jail or detention facility . . . .” Id.

Upon the trial court’s issuance of the temporary restraining order, and

pursuant to C OLO . R EV . S TAT . § 18-6-803.7(2)(b), the order was entered into the

state’s central registry for such protective orders, which is accessible to all state

and local law enforcement agencies. On June 4, 1999, the order was served on

Mr. Gonzales. On that same date, upon “having heard the stipulation of the

parties, and after placing the parties under oath and examining the parties as to

the accuracy of the Stipulation . . . and finding that [the] Stipulation [was] in the

best interests of the minor children,” Aplt. Appx. at 30, the state court made the

restraining order permanent. The temporary order’s terms were slightly modified

to detail Mr. Gonzales’ rights to parenting time with his daughters on alternative

weekends, and for two weeks during the summer. The order also allowed Mr.

Gonzales “upon reasonable notice . . . a mid-week dinner visit with the minor

children. Said visit shall be arranged by the parties.” Id. (emphasis added).

Finally, the order allowed Mr. Gonzales to collect the girls from Ms. Gonzales’

home for the purposes of parental time. However, all other portions of the

temporary restraining order remained in force, including its command that Mr.

Gonzales was excluded from the family home and that he could not “molest or

-5-
disturb the peace” of Ms. Gonzales or the girls. Id. at 29.

Despite the order’s terms, on Tuesday, June 22, 1999, sometime between

5:00 and 5:30 p.m., Mr. Gonzales abducted the girls while they were playing

outside their home. Mr. Gonzales had not given Ms. Gonzales advanced notice of

his interest in spending time with his daughters on that Tuesday night, nor had the

two previously agreed upon a mid-week visit. When Ms. Gonzales realized her

daughters were missing, she suspected that Mr. Gonzales, who had a history of

erratic behavior and suicidal threats, had taken them. At approximately 7:30 p.m.,

she made her first phone call to the Castle Rock police department requesting

assistance in enforcing the restraining order against her husband. Officers Brink

and Ruisi were sent to her home. Upon their arrival, she showed them a copy of

the restraining order, and asked that it be enforced and her children returned to

her immediately. In contradiction to the order’s terms, the Officers “stated that

there was nothing they could do about the TRO and suggested that Plaintiff call

the Police Department again if the children did not return home by 10:00 p.m.”

Id. at 9.

About an hour later, Ms. Gonzales spoke to Mr. Gonzales on his cellular

telephone and he told her he was with the girls at Elitch Gardens, an amusement

park in Denver. She immediately made a second call to the Castle Rock police

department, and spoke with Officer Brink, requesting that the police find and

-6-
arrest Mr. Gonzales. Officer Brink refused to do so, and suggested Ms. Gonzales

wait until 10:00 p.m. to see if the girls returned home. Shortly after 10:00 p.m.,

Ms. Gonzales called the police department and reported to the dispatcher that her

daughters had yet to be returned home by their father. She was told to wait for

another two hours. At midnight, she called the police department again and

informed the dispatcher her daughters were still missing. She then proceeded to

Mr. Gonzales’ apartment complex and found no one at home. From there, she

placed a fifth call to the police department and was advised by the dispatcher to

wait at the apartment complex until the police arrived. No officers ever came to

the complex, and at 12:50 a.m., Ms. Gonzales went to the Castle Rock police

station, where she met with Officer Ahlfinger. Officer Ahlfinger took an incident

report from Ms. Gonzales, but he made no further effort to enforce the restraining

order against her husband or to find her children. Instead, he went to dinner.

At approximately 3:20 a.m., nearly eight hours after Ms. Gonzales first

contacted the police department, Mr. Gonzales arrived at the Castle Rock police

station in his truck. He got out and opened fire on the station with a semi-

automatic handgun he had purchased soon after abducting his daughters. He was

shot dead at the scene. The police found the bodies of the three girls, who had

been murdered by their father earlier that evening, in the cab of the truck.

Ms. Gonzales subsequently brought this action on behalf of herself and her

-7-
deceased daughters against the City of Castle Rock, Colorado, and Castle Rock

police officers Aaron Ahlfinger, R.S. Brink, and Marc Ruisi. Pursuant to 42

U.S.C. § 1983, she claimed her due process rights were violated by the officers’

failure to enforce the restraining order against her husband. She also alleged the

city maintained a custom and policy of failing to respond properly to complaints

of domestic restraining order violations and tolerated the non-enforcement of such

protective orders by police officers, resulting in the reckless disregard of a

person’s right to police protection granted by such orders.

The district court granted the defendants’ motion to dismiss, finding Ms.

Gonzales failed to state a claim under the Fourteenth Amendment for the

deprivation of either substantive or procedural due process. 2 On appeal, the panel

affirmed the district court’s dismissal of Ms. Gonzales’ substantive due process

claim, but reversed as to the district court’s procedural due process determination.

The panel held the restraining order, coupled with the Colorado statute mandating

the enforcement of such orders, see C OLO . R EV . S TAT . § 18-6-803.5(3),

established a protected property interest in the enforcement of the restraining

order which could not be taken away by the government without procedural due

2
Because the district court found Ms. Gonzales failed to state a claim upon
which relief could be granted, the court did not address the individual officers’
request for dismissal on the basis of qualified immunity, or the city’s request for
dismissal on the grounds Ms. Gonzales could not establish municipal liability.

-8-
process. Gonzales, 307 F.3d at 1266. The panel concluded, therefore, that Ms.

Gonzales’ procedural due process claim could proceed.

The city and police officers timely filed a petition for rehearing en banc,

seeking review of the panel’s conclusion that Ms. Gonzales stated a procedural

due process claim. This court granted the petition, and asked the parties to

address the following questions: (1) whether C OLO . R EV . S TAT . § 18-6-803.5(3) in

combination with the restraining order issued by the Colorado court created a

property interest entitled to due process protection and, (2) if so, what process

was due.

II

To succeed in her § 1983 claim, Ms. Gonzales must show that she was

deprived of a constitutional right by a person acting under color of state law.

Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th

Cir. 1991). At issue here is whether Ms. Gonzales’ due process rights, pursuant

to the Fourteenth Amendment of the U.S. Constitution, were violated when the

officers failed to enforce her restraining order against her husband.

The Fourteenth Amendment specifies that no State shall “deprive any

person of life, liberty, or property, without due process of law . . . .” U.S. C ONST .

amend. XIV, § 1. The Supreme Court has noted that the contours of this

-9-
constitutional provision “guarantee more than fair process and . . . cover a

substantive sphere as well, barring certain government actions regardless of the

fairness of the procedures used to implement them.” County of Sacramento v.

Lewis, 523 U.S. 833, 840 (1998) (internal citation and quotations omitted). In

Lewis, the Supreme Court explained that

[s]ince the time of our early explanations of due process, we have
understood the core of the concept to be protection against arbitrary
action . . . . We have emphasized time and again that the touchstone
of due process is protection of the individual against arbitrary action
of government, whether the fault lies in a denial of fundamental
procedural fairness, or in the exercise of power without any
reasonable justification in the service of a legitimate governmental
objective.

Id. at 845-46 (internal quotations and citations omitted). Ms. Gonzales’

complaint encompassed both substantive and procedural due process challenges,

both of which the district court dismissed. In the substantive due process context,

the argument was that Ms. Gonzales and her daughters had an inherent

Constitutional right to police protection against harm from her husband.

However, as noted in our panel opinion, the Supreme Court made clear in

DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189 (1989), that

the Constitution itself does not require a state to protect its citizens from third

party harm, and Ms. Gonzales’ case does not fall within the narrow “danger

-10-
creation” exception arising out of DeShaney. 3 See Gonzales, 307 F.3d at 1262-63.

Contrary to the assertions of the city and officers, as well as those of our

dissenting colleagues, the issue before this en banc court is distinct from the

substantive due process claim dismissed below. Defendants and the dissenters

assert that if this court concludes Ms. Gonzales has a protected property right in

the enforcement of the restraining order, we will have “carved out an exception

contrary to DeShaney and the general rule that the state does not have an

affirmative duty to protect individuals from private third parties.” Aple. Br. at 6.

However, DeShaney limited its constitutional review to whether a substantive due

process right to government protection exists in the abstract, and specifically did

not decide whether a state might afford its citizens “an ‘entitlement’ to receive

protective services in accordance with the terms of the statute, an entitlement

which would enjoy due process protection against state deprivation” under Board

of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). DeShaney, 489 U.S.

189, 195 n.2 (1989). As we discuss infra, Roth clarified that “[p]roperty interests

. . . are not created by the Constitution. Rather, they are created and their

dimensions are defined by existing rules or understandings that stem from an

independent source such as state law – rules or understandings that secure certain

The en banc court was not asked to address the district court’s dismissal of
3

Ms. Gonzales’ substantive due process claim and the panel’s affirmance thereof.
Hence, that portion of the panel opinion remains undisturbed.

-11-
benefits and that support claims of entitlement to those benefits.” Roth, 408 U.S.

at 577.

We are not being asked here to address whether Ms. Gonzales had a

substantive right under the Constitution to receive government protection that

could not be denied without a “reasonable justification in the service of a

legitimate government objective.” Lewis, 523 U.S. at 846. Rather, we must

determine whether the state of Colorado created in Ms. Gonzales an entitlement

that cannot be taken away from her without procedural due process, and if so,

whether the officers’ arbitrary denial of that entitlement was procedurally unfair.

None of our dissenting colleagues who claim that we are improperly mixing

substantive and procedural due process concepts suggest that the state of

Colorado could not create such an entitlement if it chose to do so despite

DeShaney’s holding that there is no such entitlement protected by the substantive

due process clause. 4

4
The cases Judge O’Brien cites in his dissent for the argument that our
opinion ignores DeShaney’s guiding principles, are only of limited support. See,
e.g., Collins v. City of Harker Heights, 503 U.S. 115 (1992); Jones v. Union
County, 296 F.3d 417 (6th Cir. 2002); Henderson v. Gunther, 931 P.2d 1150
(Colo. 1997). Collins, Jones, and Henderson all specifically address questions
regarding substantive rather than procedural due process. While the court in
Jones rightly rejected the plaintiff’s reliance on Roth for the proposition that
violation of a state statute could give rise to a substantive due process claim, it
did not provide any further discussion on whether the state statute at issue had in
fact created a protected property interest subject to procedural due process
protections. Jones, 296 F.3d at 429. The courts in Doe by Fein v. District of
Columbia, 93 F.3d 861 (D.C. Cir. 1996), and Doe by Nelson v. Milwaukee Co.,
(continued...)

-12-
 When the due process clause is “invoked in a novel context, it is our

practice to begin the inquiry with a determination of the precise nature of the

private interest that is threatened by the State. Only after that interest has been

identified, can we properly evaluate the adequacy of the State’s process.” Lehr v.

4
(...continued)
903 F.2d 499 (7th Cir. 1990), rejected claims that property interests in child
protective services were created solely by state statutes which outlined
procedures. Doe by Fein, 93 F.3d at 868-69; Doe by Nelson, 903 F.2d at 502-03.
Here, we are examining whether the restraining order and a statute mandating its
enforcement creates a property interest.
We certainly concur with the common refrain in these cases that the mere
violation of state law does not automatically give rise to a constitutional due
process violation, and that the due process clause should not be so stretched that
it becomes “a font of tort law to be superimposed upon whatever systems may
already be administered by the States.” Daniels v. Williams, 474 U.S. 327, 332
(1986) (quoting Paul v. Davis, 424 U.S. 693, 701 (1976)). See also Collins, 503
U.S. at 127; Harrill v. Blount County, 55 F.3d 1123, 1125-26 (6th Cir. 1995);
Archie v. City of Racine, 847 F.2d 1211, 1216-17 (7th Cir. 1988); Henderson, 931
P.2d at 1154-55. We are not ruling that defendants’ disregard of the restraining
order’s terms and refusal to enforce C OLO . R EV . S TAT . § 18-6-803.5(3)
transformed what otherwise might be a state law tort claim into a federal due
process action merely because defendants were state actors. Rather, the specific
issue we grapple with here is whether the state of Colorado has created an
entitlement for Ms. Gonzales as described in Roth. Only upon our determination
that Ms. Gonzales has a property interest in enforcement of the court order can
the claim be made that defendants’ deprivation of that interest resulted in a
procedural due process violation. Such a claim is entirely distinct from the
substantive due process claim addressed in DeShaney. Of course, DeShaney
makes clear that all individuals do not possess a substantive right to protection by
the state from the harm of third parties. DeShaney, 489 U.S. at 197. But such a
ruling does not foreclose a state from creating through its own laws an entitlement
for particular citizens in having their court-issued restraining orders enforced.
Our opinion is therefore not contrary to DeShaney.

-13-
Robertson, 463 U.S. 248, 256 (1983) (citations omitted). See also Farthing v.

City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). We acknowledge this case

raises compelling and novel questions about state created property interests and

the manner by which such interests are protected by the Fourteenth Amendment.

However, we are persuaded Ms. Gonzales’ complaint states a claim that she

possessed a protected property interest in the enforcement of the terms of her

restraining order and that the officers’ arbitrary denial of that entitlement violated

her procedural due process rights. In reaching this conclusion, we begin by

examining the restraining order issued to Ms. Gonzales and the Colorado statute

mandating its enforcement. 5

5
In this context, many of the cases Judge O’Brien cites in his dissent are
inapposite to the specific facts and legal arguments raised in the present case
because the courts in those cases rejected the argument that statutes detailing
procedures regarding general child abuse investigations and reporting could alone
create a protected interest in such services. See, e.g., Doe by Fein, 93 F.3d at
869; Doe by Nelson, 903 F.2d at 502-03; Pierce v. Delta County Dep’t of Soc.
Servs., 119 F. Supp. 2d 1139, 1152-53 (D. Colo. 2000). In this case, the Colorado
statute alone does not create the property interest. Rather, the court-issued
restraining order, which specifically dictated that its terms must be enforced, and
the state statute commanding the same, establish the basis for Ms. Gonzales’
procedural due process claim.
Likewise, we disagree with Judge O’Brien’s assertion that the Colorado
Supreme Court made clear in Henderson that a case like Ms. Gonzales’ could not
be brought under § 1983. Henderson was framed entirely as a substantive due
process case and did not address in any manner how and whether a state might
grant to a particular person a constitutionally protected property interest in
protective services. Henderson, 931 P.2d at 1154-56.

-14-
 A

Our analysis must start with the familiar rubric of Roth. In Roth, the

Supreme Court noted that “property” is a “broad and majestic term.” Roth, 408

U.S. at 571. The Court “made clear that the property interests protected by

procedural due process extend well beyond actual ownership of real estate,

chattels, or money,” id. at 571-72, and “may take many forms,” id. at 576.

“Property interests . . . are not created by the Constitution. Rather, they are

created and their dimensions are defined by existing rules or understandings that

stem from an independent source such as state law – rules or understandings that

secure certain benefits and that support claims of entitlement to those benefits.”

Id. at 577. A property interest is created when a person has secured an interest in

a specific benefit to which the individual has “a legitimate claim of entitlement.”

Id. The interest must be more than an “abstract need or desire” or a “unilateral

expectation of” the benefit. Id. The Court has accordingly identified property

rights protected under the procedural due process clause to include continued

public employment, Perry v. Sindermann, 408 U.S. 593, 602-03 (1972), a free

education, Goss v. Lopez, 419 U.S. 565, 574 (1975), garnished wages, Sniadach v.

Family Finance Corp., 395 U.S. 337, 339 (1969), professional licenses, Barry v.

Barchie, 443 U.S. 55, 64 (1979), driver’s licenses, Bell v. Burson, 402 U.S. 535,

539 (1971), causes of action, Logan v. Zimmerman Brush Co., 455 U.S. 422, 428

-15-
(1982), and the receipt of government services, Memphis Light, Gas & Water Div.

v. Craft, 436 U.S. 1, 11-12 (1978) (utility services); Mathews v. Eldridge, 424

U.S. 319, 332 (1976) (disability benefits); Goldberg v. Kelly, 397 U.S. 254, 262

(1970) (welfare benefits).

At least two other courts have addressed whether a court order creates a

Roth-type entitlement subject to procedural due process protections. Directly

applicable here is Coffman v. Wilson Police Dep’t, 739 F. Supp. 257 (E.D. Pa.

1990), in which the court found the mandatory language in a restraining order

created a “property interest in police enforcement that is cognizable under Roth.”

Id. at 264. In Flynn v. Kornwolf, 83 F.3d 924 (7th Cir. 1996), the plaintiffs

contended the specific terms of a court order created in them an entitlement to

employment. After examining the order’s terms, the Seventh Circuit disagreed,

concluding that the order’s language was not of a mandatory nature limiting the

employer’s discretion regarding the termination of certain positions. Id. at 927

(citing Fittshur v. Village of Menomonee Falls, 31 F.3d 1401, 1406 (7th Cir.

1994)). In doing so, the Seventh Circuit analyzed the court order pursuant to the

analysis employed in cases determining whether a state statute creates a property

interest.

In order for an entitlement to exist, the underlying state law or order must

contain

-16-
 particularized standards or criteria [guiding] the State’s decision
makers. If the decision maker is not required to base its decisions on
objective and defined criteria, but instead can deny the requested
relief for any constitutionally permissible reason or for no reason at
all, the State has not created a constitutionally protected interest.

Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (emphasis added) (citation and

internal quotations omitted). Conversely, “the use of explicitly mandatory

language, in connection with the establishment of specified substantive predicates

to limit discretion, forces a conclusion that the state has created a [protected]

interest.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 463 (1989) (internal

quotations omitted). See also Bd. of Pardons v. Allen, 482 U.S. 369, 379-81

(1987) (mandatory language in regulation, coupled with specific criteria which

must be met in order to deny benefit, creates presumption of entitlement); Hewitt

v. Helms, 459 U.S. 460, 471 (1983) (“the repeated use of explicitly mandatory

language in connection with requiring specific substantive predicates demands a

conclusion that the State has created a protected liberty interest”); Greenholtz v.

Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 11-12 (1979) (structure of

regulatory provision together with word “shall” requires decision maker to take

specific action unless particular criteria is met). Hence, where a court order

commands the grant of a government benefit or service through the use of

mandatory language and objective predicates limiting the discretion of official

-17-
decision makers, a protected property interest exists. 6 We therefore examine the

restraining order to determine whether its “language is so mandatory that it

creates a right to rely on that language thereby creating an entitlement that could

not be withdrawn without due process.” Cosco v. Uphoff, 195 F.3d 1221, 1223

(10th Cir. 1999) (per curiam). 7

6
We note Olim, Thompson, Allen, Hewitt, and Greenholtz addressed the
extent to which liberty interests exist in the prison setting. But the methodology
used in those cases has also been “employed in claims of property interests
protected by the Due Process Clause of the Fourteenth Amendment.” Cosco v.
Uphoff, 195 F.3d 1221, 1223 (10th Cir. 1999) (per curiam). We also acknowledge
the Supreme Court, in Sandin v. Conner, 515 U.S. 472 (1995), abandoned the use
of this methodology when examining whether a prisoner properly claims a liberty
interest violation. Id. at 483-84 & n.5. But, the Court did not foreclose use of
this analysis in non-prison settings, stating such an approach “may be entirely
sensible in the ordinary task of construing a statute defining rights and remedies
available to the general public.” Id. at 481. Accordingly, in determining whether
property interests exist pursuant to statute, courts have continued to examine the
extent to which the statute’s mandatory language and substantive criteria limit
decision maker discretion. See, e.g., Crown Point I, LLC v. Intermountain Rural
Elec. Ass’n., 319 F.3d 1211, 1216-17 (10th Cir. 2003) (land development code did
not create property interest in special use hearing); Wash. Legal Clinic for the
Homeless v. Barry, 107 F.3d 32, 37 (D.C. Cir. 1997) (no property interest in right
to homeless shelter); Mallette v. Arlington County Employees’ Supplemental Ret.
Sys. II, 91 F.3d 630, 637 (4th Cir. 1996) (disability retirement benefits constituted
property right). Likewise, as previously noted, this analysis has also been
employed to determine whether a court order created a property interest. See
Flynn v. Kornwolf, 83 F.3d 924, 927 (7th Cir. 1996).
7
Although it may ultimately be found that an individual does not satisfy the
relevant criteria necessary to receive the benefit, the underlying property
entitlement remains and cannot be denied without due process of law. For
example, in Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12 (1978),
the Supreme Court held that customers of a public utility had a protected property
interest in continued receipt of electricity while disputing their bills. The Court
(continued...)

-18-
 At the outset, we emphasize that Ms. Gonzales’ entitlement to police

enforcement of the restraining order against Mr. Gonzales arose when the state

court judge issued the order, which defined Ms. Gonzales’ rights. The restraining

order was granted to Ms. Gonzales based on the court’s finding that “irreparable

injury would result to the moving party if no order were issued,” Aplt. Appx. at

29, and that “physical or emotional harm would result if [Mr. Gonzales was] not

excluded from the family home.” Id. By its specific terms, the order made clear

that Mr. Gonzales could not “molest or disturb the peace” of Ms. Gonzales or her

children. Id. Likewise, the order gave notice to Mr. Gonzales that he could “be

arrested without notice if a law enforcement officer [had] probable cause to

believe that [he] knowingly violated the order.” Restraining Order at 2. 8

7
(...continued)
reached this conclusion even though the utility had the power under state law to
terminate service “for good and sufficient cause.” Id. Likewise, in Goldberg v.
Kelly, 397 U.S. 254, 262 (1970), individuals challenging the termination of
welfare benefits could not be denied the benefit without due process, even if the
individuals were eventually deemed ineligible for relief. See also Mallette, 91
F.3d at 637 (party had property interest in potential eligibility for disability
retirement benefits, regardless of whether party would prevail on merits). In the
instant case, the restraining order’s terms specifically mandate an outcome “to be
reached upon a finding that the relevant criteria have been met,” Doyle v. Okla.
Bar Assoc., 998 F.2d 1559, 1570 (10th Cir. 1993) (citing Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 462 (1989)) (emphasis deleted), that outcome being its
enforcement.
8
As we noted earlier, the terms of Ms. Gonzales’ May 12, 1999 restraining
order against her husband became permanent on June 4,1999, after the trial court
held a hearing, “heard the stipulation of the parties . . . [placed] the parties under
(continued...)

-19-
 The restraining order’s language also clearly evinced the state’s intent that

its terms be enforced by the police. Included within the order was a notice to law

enforcement officials stating “[y]ou shall use every reasonable means to enforce

this restraining order.” Id. It further dictated that an officer

shall arrest, or, if an arrest would be impractical under the
circumstances, seek a warrant for the arrest of the restrained person
when you have information amounting to probable cause that the
restrained person has violated or attempted to violate any provision
of this order and the restrained person has been properly served with
a copy of this order or has received actual notice of the existence of
this order.

Id. (emphasis added). Additionally, officers were required to enforce the order

“even if there is no record of it in the restraining order central registry.” Id.

Finally, the order commanded that the officers “shall take the restrained person to

the nearest jail or detention facility utilized by your agency.” Id.

Not only does the order itself mandate that it be enforced, but the Colorado

legislature passed a series of statutes to ensure its enforcement. The front of Ms.

Gonzales’ restraining order states that it was issued pursuant to C OLO . R EV . S TAT .

§ 14-10-108. That statute details that a party may request the court to issue an

order “[e]njoining a party from molesting or disturbing the peace of the other

8
(...continued)
oath and [examined] the parties as to the accuracy of the Stipulation . . . and
[found] that [the] Stipulation [was] in the best interests of the children.” Aplt.
Appx. at 30.

-20-
party or of any child [or] [e]xcluding a party from the family home . . . upon a

showing that physical or emotional harm would otherwise result.” C OLO . R EV .

S TAT . § 14-10-108(2)(b)-(c). In addition, C OLO . R EV . S TAT . § 14-10-109 dictates

that “[t]he duties of police officers enforcing orders issued pursuant to . . . 14-10-

108 shall be in accordance with section 18-6-803.5, C.R.S. . . . . ” C OLO . R EV .

S TAT . § 14-10-109. Section 18-6-803.5 provides:

(3)(a) Whenever a restraining order is issued, the protected person
shall be provided a copy of such order. A peace officer shall use
every reasonable means to enforce a restraining order.
(b) A peace officer shall arrest, or, if an arrest would be impractical
under the circumstances, seek a warrant for the arrest of a restrained
person when the peace officer has information amounting to probable
cause that:
(I) The restrained person has violated or attempted to violate any
provision of the restraining order; and
(II) The restrained person has been properly served with a copy of
the restraining order or the restrained person has received actual
notice of the existence and substance of such order.
(c) In making the probable cause determination described in
paragraph (b) of this subsection (3), a peace officer shall assume that
the information received from the registry is accurate. A peace
officer shall enforce a valid restraining order whether or not there is
a record of the restraining order in the registry.

C OLO . R EV . S TAT . § 18-6-803.5(3) (2002). This language is similar to that which

appears in the restraining order. 9

9
While we asked the parties to brief whether a protected property interest
was created by the mandatory terms and objective predicates laid out in C OLO .
R EV . S TAT . § 18-6-803.5(3), we do not so hold. Rather, we conclude that the
statute’s force derives from the existence of a restraining order issued by a court
(continued...)

-21-
 The district court concluded that any duty imposed upon police officers to

enforce restraining orders is triggered only upon an officer’s probable cause

determination that the restraining order was being violated. According to the

district court, because an officer’s probable cause determination implicitly

requires the use of judgment and discretion, no absolute duty is derived from the

language mandating arrest and hence no protected property right existed. The

district court is incorrect.

9
(...continued)
on behalf of a particular person and directed at specific individuals and the
police.
In this context, we disagree with the dissenters’ assertions that because the
police are not named parties in the restraining order, they are therefore not bound
to enforce its terms. See Kelly, J., dissent at 12; O’Brien, J., dissent at 8-9,
15-16. Surely the dissenters do not mean 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. See C OLO . R EV . S TAT . § 18-6-803.5(a)&(b). Other states, in clarifying the
duties of police officers in these situations, have by no means sanctioned an
officer’s failure to enforce terms appearing in a restraining order and mandated by
statute. See, e.g., Matthews v. Pickett County, 996 S.W.2d 162, 164 (Tenn. 1999)
(in state tort action, officers were required to arrest offending party upon
reasonable cause that party was violating restraining order where order as well as
statute mandated arrest in such situations); Campbell v. Campbell, 682 A.2d 272,
275 (N.J. Super. Ct. Law Div. 1996) (officer not immune from liability in
negligence action where legislature “made it clear that a police officer must
enforce a domestic violence order and all other laws which protect domestic
violence victims”), rejected in part on other grounds by Macaluso v. Knowles,
775 A.2d 108, 111 (N.J. Super. Ct. App. Div. 2001); Nearing v. Weaver, 670 P.2d
137, 142 (Or. 1983) (while restraining order was not addressed to police, they
nonetheless had duty pursuant to statute to enforce terms of order when they had
probable cause to believe order had been served and filed and named party had
violated order).

-22-
 There can be no question that the 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. Those circumstances were defined by

the restraining order which told the police what its objective terms were and

commanded that an arrest occur upon an officer’s probable cause determination

that the order was being violated and that Mr. Gonzales had notice of the order.

The restraining order here specifically directed, with only the narrowest of

exceptions, that Mr. Gonzales stay away from Ms. Gonzales and her daughters.

Thus, the restraining order provided objective predicates which, when present,

mandated enforcement of its terms. See Olim, 461 U.S. at 249; Crown Point I,

LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1216-17 (10th Cir.

2003); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 2000); Wash. Legal

Clinic for the Homeless v. Barry, 107 F.3d 32, 36 (D.C. Cir. 1998); Mallette v.

County Employee’s Supplemental Ret. Sys. II, 91 F.3d 630, 635-36 (4th Cir.

1996).

In this context, and contrary to the district court’s conclusion, a police

officer’s finding of probable cause is not a wholly discretionary determination

which undermines the mandatory edict of the restraining order or statute. While

an officer must obviously exercise some judgment in determining the existence of

probable cause, the validity and accuracy of that decision is reviewed under

-23-
objectively ascertainable standards and judged by what a reasonably well-trained

officer would know. See Malley v. Briggs, 475 U.S. 335, 345 (1986). See also

Beck v. Ohio, 379 U.S. 89, 96 (1964) (“When the constitutional validity of an

arrest is challenged, it is the function of a court to determine whether the facts

available to the officers at the moment of the arrest would warrant a man of

reasonable caution in the belief that an offense has been committed.”) (quotation

and citation omitted); United States v. Davis, 197 F.3d 1048, 1051 (10th Cir.

1999) (probable cause is measured against objective standard and evaluated

against what a prudent, cautious and well trained officer would believe).

In Allen, the Supreme Court noted one could use the term “discretion” in

two distinct ways. 10 “In one sense of the word, an official has discretion when he

or she ‘is simply not bound by standards set by the authority in question.’” Allen,

482 U.S. at 375 (citing R. D WORKIN , T AKING R IGHTS S ERIOUSLY 32 (1977)). In

the alternative, “the term discretion may instead signify that ‘an official must use

judgment in applying the standards set him [or her] by authority.’” Id. (citing

D WORKIN , supra at 31, 32). See also Watson v. City of Kansas City, 857 F.2d

690, 695 (10th Cir. 1988) (the determination of probable cause “represents a

10
As we previously pointed out, while the Supreme Court has precluded use
of the statutory analysis employed in Allen to determine the existence of liberty
interests in a prison setting, see Sandin, 515 U.S. at 482-83, application of its
reasoning to other settings remains valid, id. at 481.

-24-
judgment call on the part of the officer or officers at the scene taking into account

the particular circumstances. Although there are clearly guidelines, much

depends upon the individual officers’ assessment.”). In Allen, the Supreme Court

concluded parole guidelines created a liberty interest in parole where the

guidelines mandated release upon the parole board’s finding of certain factors.

Allen, 482 U.S. at 381. While the parole board did have discretion within the

Court’s latter definition of the term to determine whether a prisoner satisfied the

release criteria, such discretion did not extinguish the protected interest. So too

in the instant case, where a court has specified the objective circumstances in

which the police officer is required to act.

An officer must certainly exercise a measure of judgment and discretion in

determining whether probable cause exists. However, in making that decision,

the officer is bound to “facts and circumstances within the arresting officer’s

knowledge and of which he or she has reasonably trustworthy information [which]

are sufficient to lead a prudent person to believe the arrestee has committed or is

committing an offense.” Guffey v. Wyatt, 18 F.3d 869, 873 (10th Cir. 1994)

(internal quotation omitted). See also Nearing v. Weaver, 670 P.2d 137, 142 &

n.7 (Or. 1983) (duty to arrest domestic order violator not discretionary despite

requirement that arrest be supported by probable cause); Campbell v. Campbell,

682 A.2d 272, 274-75 (N.J. Super. Ct. Law Div. 1996) (same), rejected in part on

-25-
other grounds by Macaluso v. Knowles, 775 A.2d 108, 111 (N.J. Super. Ct. App.

Div. 2001). Thus, an officer’s determination of probable cause is not so

discretionary as to eliminate the protected interest asserted here in having the

restraining order enforced according to its terms. The officer must make a

decision which, upon review, will be deemed right or wrong. Moreover, once

probable cause exists, any discretion the officer may have possessed in

determining whether or how to enforce the restraining order is wholly

extinguished. If the officer has probable cause to believe the terms of the court

order are being violated, the officer is required to arrest or to seek a warrant to

arrest the offending party.

We also acknowledge there are some settings in which an officer’s need to

make split-second decisions in exigent circumstances might undermine a claim for

protection under the Fourteenth Amendment. Cf. Lewis, 523 U.S. at 854-55

(substantive due process context). The officers here, however, were not faced

with the necessity of making an instant judgment in a rapidly evolving situation.

More importantly, they were not given carte blanche discretion to take no action

whatsoever. The restraining order and its enforcement statute took away the

officers’ discretion to do nothing and instead mandated that they use every

reasonable means, up to and including arrest, to enforce the order’s terms.

-26-
 Nor do we believe the language commanding that the officers use “every

reasonable means to enforce this restraining order,” Restraining Order at 2,

undermines the order’s mandatory nature. First, the order’s more general

command of enforcement by “every reasonable means” does not negate its more

specific command that officers shall make arrests or obtain arrest warrants when

certain requirements are met. 11 Second, the order’s language commanding that

officers use every reasonable means to enforce the order simply indicates there

may be instances where the mandatory duty of enforcing a restraining order could

be accomplished through means other than arrest. Such a position is not

unprecedented. Courts finding an entitlement in the enforcement of protective

orders have defined the property interest in terms of a reasoned police response or

reasonable protection. See Siddle v. City of Cambridge, 761 F.Supp. 503, 510

(S.D. Ohio 1991) (“when a protective order exists . . . there is a governmental

11
Accepting as true the well-pleaded facts in Ms. Gonzales’ complaint, and
making all reasonable inferences in her favor, Ruiz v. McDonnell, 299 F.3d 1173,
1181 (10th Cir. 2002), cert. denied 123 S.Ct. 1908 (2003), it is clear the police
had probable cause to believe that Mr. Gonzales was violating the order. Even if
the police may have initially questioned Ms. Gonzales’ credibility when she told
them Mr. Gonzales was violating the order, they had information arguably
amounting to probable cause by at least 8:30 p.m. when Ms. Gonzales informed
them her husband had taken their daughters to the amusement park. At the very
minimum, the police had probable cause when Ms. Gonzales called the station for
the third time at 10:00 p.m., well past a mid-week “dinner visit” with young
children. They were not at liberty to second guess the objective terms of the court
order, just as Mr. Gonzales was not at liberty to change its terms.

-27-
duty to protect the individual, the scope of which is a reasonable protection given

the resources of the governmental agency responsible”); Coffman, 739 F.Supp. at

266 (nature of property right in restraining order is a “reasoned police response”).

Hence, while the police officers may have some discretion in how they enforce a

restraining order, this by no means eviscerates the underlying entitlement to have

the order enforced if there is probable cause to believe the objective predicates

are met. After all, states are afforded vast discretion in how to educate their

children, but the existence of such discretion did not prevent the Supreme Court

from concluding that the ultimate receipt of the benefit – a free education – was a

protected entitlement. See Goss, 419 U.S. at 573-74.

The state’s intent in creating a protected interest in the enforcement of

restraining orders is highlighted by the legislative history for the statute, which

emphasizes the importance of the police’s mandatory enforcement of domestic

restraining orders. See C OLO . R EV . S TAT . § 18-6-803.5. Recognizing domestic

abuse as an exceedingly important social ill, lawmakers

wanted to put together a bill that would really attack the domestic
violence problems . . . and that is that the perpetrator has to be held
accountable for his actions, and that the victim needs to be made to
feel safe.
....
First of all, . . . the 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

-28-
 monitor their probationers closely. And the offender needs to be
sentenced to offender-specific therapy.
So this means the entire system must send the same message
and enforce the same moral values, and that is abuse is wrong and
violence is criminal. And so we hope that House Bill 1253 starts us
down this road.

Aplt. Appx. at 121-122, Transcript of Colorado House Judiciary Hearings on

House Bill 1253, February 15, 1994 (emphasis added). See also Michael Booth,

Colo. Socks Domestic Violence, D ENVER P OST , June 24, 1994, at A1 (law

mandates arrest when restraining order is violated or police suspect domestic

violence); John Sanko, Stopping Domestic Violence: Lawmakers Take Approach

of Zero Tolerance as They Support Bill, Revamp Laws, R OCKY M OUNTAIN N EWS ,

May 15, 1994, at 5A (police must arrest and remove accused when answering

domestic violence calls). The Colorado legislature clearly wanted to alter the fact

that the police were not enforcing domestic abuse restraining orders.

Most significantly, the legislature included in the statute a provision which

states that

[a] peace officer arresting a person for violating a restraining order
or otherwise enforcing a restraining order shall not be held criminally
or civilly liable for such arrest or enforcement unless the peace
officer acts in bad faith and with malice or does not act in
compliance with rules adopted by the Colorado supreme court.

C OLO . R EV . S TAT . § 18-6-803.5(5) (2002). Hence, even if an officer is mistaken

in his or her determination that there is probable cause a domestic abuse

restraining order is being violated, the officer will only be held liable in very

-29-
limited situations. The passage of subsection (5) supports the legislature’s goal

that officers be vigilant and consistent in enforcing restraining orders by relieving

them of any fear that an erroneous enforcement of restraining orders might result

in liability. It also supports our conclusion that the state of Colorado fully

intended that the recipient of a domestic abuse restraining order have an

entitlement to its enforcement. 12

12
We reject Judge O’Brien’s argument that Colorado’s Government
Immunity Act (GIA), C OLO . R EV . S TAT . §§ 24-10-101, et seq., somehow casts a
shadow over Ms. Gonzales’ ability to seek a constitutional remedy for the
officers’ failure to enforce the restraining order. By its terms, the GIA applies
only to state torts and has been strictly construed against the government “in the
interest of compensating victims of government negligence.” Springer v. City &
County of Denver, 13 P.3d 794, 798 (Colo. 2000). We have found no case in
which the GIA has been invoked to preclude or limit recovery in a § 1983
procedural due process action. See, e.g., Hulen v. Yates, 322 F.3d 1229 (10th Cir.
2003) (analyzing property interest created by contract with state without
considering whether GIA limits remedies); Langley v. Adams County, 987 F.2d
1473 (10th Cir. 1993) (same regarding property interest in employment); Clouser
v. City of Thornton, 676 F. Supp. 228 (D. Colo. 1987) (same); Montoya v. City of
Colorado Springs, 770 P.2d 1358 (Colo. Ct. App. 1989) (same); Dickey v. Adams
County Sch. Dist. No. 50, 773 P.2d 585 (Colo. Ct. App. 1989) (same). Rather,
case law indicates the GIA has consistently been applied only to Colorado state
tort law claims against government officials even when the case also includes a §
1983 claim. See, e.g., Robinson v. City & County of Denver, 39 F. Supp. 2d 1257
(D. Colo. 1999) (state tort claims against public entity barred by GIA but § 1983
claims proceeded); Erickson v. Board of County Comm’rs, 801 F. Supp. 414 (D.
Colo. 1992) (§ 1983 claims analyzed separately from GIA impact on state tort
claims); Stump v. Gates, 777 F. Supp. 808 (D. Colo. 1991) (same). The court in
Ruegsegger v. Jefferson County, 197 F. Supp. 2d 1247, 1265-66 (D. Colo. 2001),
explained why this is so:
Constitutional claims are derived from rights created by a written
constitution. In contrast, tort claims generally are based on common
(continued...)

-30-
 Our conclusion that the domestic abuse restraining order, whose

enforcement is mandated by statute, creates a constitutionally protected

entitlement, is supported by case law from other jurisdictions. As the panel

opinion for this case noted:

[I]n Siddle v. City of Cambridge, 761 F.Supp. 503 (S.D.Ohio 1991),
the court concluded that a protective order obtained pursuant to state
law “creates a property right which incurs a duty on the part of the
government.” Id. at 509. The state statute there provided that “any
officer of a law enforcement agency shall enforce a protection order
issued . . . by any court in this state in accordance with the provisions
of the order.” O HIO R EV . C ODE A NN . § 3113.31(F)(3) (West 2002)
(emphasis added). The court observed that holders of protective
orders are entitled to greater rights than other citizens and that such
an order “would have no valid purpose unless a means to enforce it
exists.” Siddle, 761 F.Supp. at 509.

12
(...continued)
law principles developed through case authority. Thus, like a federal
constitutional claim, a claim based on the Colorado Constitution does
not lie in tort. Therefore, CGIA immunity does not attach to [a claim
for violation of the state constitution].
Id.
Nor was the GIA invoked or cited by defendants in this case to undermine
the validity of Ms. Gonzales’ claim. Rather, defendants cite to the GIA as
providing Ms. Gonzales with a civil remedy for the officer’s failure to enforce the
restraining order. See Aplt. Br. at 28 n.7 (“Under the Colorado Governmental
Immunity Act, §§ 24-10-101, et seq., 7B C.R.S. (2002), a party claiming injury
could bring a tort claim against a law enforcement officer by alleging ‘willful and
wanton’ conduct, essentially synonymous with the requirement of ‘bad faith or
malice’ set forth within § 18-6-803.5(5), 6 C.R.S. (2002). See Colo. Rev. Stat. §
24-10-118 (2002).”).
The GIA tells us nothing about whether Colorado intended by the statute
before us to support the constitutionally protected entitlement of enforcement
possessed by recipients of a domestic abuse restraining order.

-31-
Gonzales, 307 F.3d at 1264. Likewise, as we noted earlier, in Coffman the court

concluded that the mandatory language in the restraining order itself, rather than

the state statute which contained permissive language, created a “property interest

in police enforcement that is cognizable under Roth.” Coffman, 739 F. Supp. at

264. “An order of court, served upon the [police] Department, that states that the

Department shall enforce the order is unambiguous. The word ‘shall’ is

mandatory, not precatory, and its use in a simple declarative sentence brooks no

contrary interpretation.” Id. See also Campbell, 682 A.2d at 274 (individual

officers had duty in state negligence action to enforce restraining order where

statute mandated officers arrest violator of order); Nearing, 670 P.2d at 140-42

(same).

Thus, the specific government benefit Ms. Gonzales claims, the government

service of enforcing the objective terms of the court order protecting her and her

children against her abusive husband, fits within the other types of Roth

entitlements acknowledged by the Supreme Court and is properly deemed a

property interest. Police enforcement of the restraining order, like a free

education, Goss, 419 U.S. at 574, continued utility service, Memphis Light, 436

U.S. at 11-12, and welfare or disability benefits, Goldberg, 397 U.S. at 261-62;

Mathews, 424 U.S. at 332, is a government benefit to which Ms. Gonzales and her

daughters had a legitimate claim of entitlement. The state court’s issuance of the

restraining order to Ms. Gonzales, containing mandatory language and specific

-32-
objective criteria curtailing the decisionmaking discretion of police officers,

clearly commanded that the domestic abuse restraining order be enforced. The

mandatory statute, its legislative history, and the grant of immunity to officers for

the erroneous enforcement of restraining orders provides added weight to our

conclusion. For us to hold otherwise would render domestic abuse restraining

orders utterly valueless. 13

13
We disagree with Judge McConnell’s assertions that our holding would
allow unsuccessful substantive due process litigants to transform their claims into
procedural due process challenges. Judge McConnell is correct to note that a
procedural due process claim “is based on ‘a denial of fundamental procedural
fairness,’ while a substantive claim is based on the ‘exercise of power without
any reasonable justification in the service of a legitimate governmental
objective.’” Dissent, McConnell, J., at 3 (citing County of Sacramento v. Lewis,
523 U.S. 833, 845-46 (1998)). However, contrary to Judge McConnell’s
contentions, Ms. Gonzales is not alleging that the officers’ denial of her
enforcement rights arose out of unjustified governmental action. Rather, her
claim is that it was procedurally unfair for the police arbitrarily to decline to
perform duties required of them pursuant to a mandatory court order which
provided her a substantive property right under state law, and pursuant to a state
statute commanding the same. Moreover, Ms. Gonzales is not asserting she has a
right in the rare air to specific police action. Cf. DeShaney, 489 U.S. at 195 (due
process clause, on its own, does not require “the State to protect the life, liberty,
and property of its citizens against invasion by private actors”); Doe by Fein, 93
F.3d at 868-69 (statute outlining procedures cannot alone create protected
interest); Doe by Nelson, 903 F.2d at 502-03 (same). Rather, pursuant to her
restraining order and C OLO . R EV . S TAT . § 18-6-803.5(3), the state of Colorado
gave Ms. Gonzales a protected interest in police enforcement action. Hence, her
case clearly falls within the rubric of procedural due process and should be
analyzed as such. Contrary to Judge McConnell’s suggestion, it would be entirely
inappropriate to employ Lewis’ “shocks the conscience” test in this case, as that
test applies to substantive due process violations. See Lewis, 523 U.S. at 854.
Likewise, we find inapposite Judge McConnell’s citation to Reno v. Flores,
(continued...)

-33-
 “It is a purpose of the ancient institution of property to protect those claims

upon which people rely in their daily lives, reliance that must not be arbitrarily

undermined.” Roth, 408 U.S. at 577. There can be no doubt Ms. Gonzales and

her daughters relied on the enforcement of the restraining order to go about their

daily lives. Nor can there be any doubt, if the alleged facts are proven, that their

reliance was arbitrarily undermined by the officers’ failure to enforce the

restraining order, resulting in an unspeakably tragic outcome.

B

Having established that Ms. Gonzales has a protected interest in the

enforcement of the restraining order, we must now turn our focus to whether Ms.

13
(...continued)
507 U.S. 292 (1993), to illustrate his proposition that Ms. Gonzales is merely
trying to recharacterize a substantive due process claim into a procedural due
process one. In Flores, the Court first determined that illegal immigrant juveniles
did not have a substantive due process liberty interest, pending a deportation
hearing, to be released to someone other than a family member or legal guardian.
Id. at 302-03. Because the juveniles had no liberty interest, their facial challenge
to allegedly flawed INS procedures could not support their asserted procedural
due process claims. Id. at 308-09. In contrast to the plaintiffs in Flores, Ms.
Gonzales possesses a protected interest in the enforcement of the restraining order
as granted by the state. Nor is she challenging the substance of C OLO . R EV . S TAT .
§ 18-6-803.5(3), which provides guidance to officers as to the process they should
employ when determining whether to enforce a restraining order. See infra,
section B. Therefore, Flores is inapplicable here.

-34-
Gonzales has stated a claim that she was denied “an appropriate level of process.”

Farthing, 39 F.3d at 1135. 14

The due process clause of the Fourteenth Amendment

raises no impenetrable barrier to the taking of a person’s possessions.
But the fair process of decision making that it guarantees works, by
itself, to protect against arbitrary deprivation of property. For when
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.

Fuentes v. Shevin, 407 U.S. 67, 81 (1972). “The ‘right to be heard before being

condemned to suffer grievous loss of any kind . . . is a principle basic to our

society.’ The fundamental requirement of due process is the opportunity to be

heard ‘at a meaningful time and in a meaningful manner.’” Mathews, 424 U.S. at

333 (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168 (1951)

(Frankfurter, J., concurring) and Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

A meaningful hearing protects an individual’s

use and possession of property from arbitrary encroachment [and]
minimize[s] substantively unfair or mistaken deprivations of property
. . . . So viewed, the prohibition against the deprivation of property
without due process of law reflects the high value, embedded in our
constitutional and political history, that we place on a person’s right
to enjoy what is his, free of governmental interference.

14
Because the district court dismissed Ms. Gonzales’ procedural due process
claim based on its conclusion that she did not possess a protected property right,
it did not reach the second prong of the procedural due process analysis, that is,
what process is due.

-35-
Fuentes, 407 U.S. at 81. Based on the allegations in Ms. Gonzales’ complaint,

she did not receive any process whatsoever prior to the deprivation of her interest

in enforcement of the restraining order. Instead, the officers repeatedly ignored

and refused her requests for enforcement. 15

The city and officers challenge the contention that Ms. Gonzales should

have been afforded some form of process prior to their non-enforcement of the

restraining order. They claim Ms. Gonzales’ action against them is precluded by

15
Judge McConnell contends that even if Ms. Gonzales has a protected
interest in enforcement of the restraining order, her due process claim must
nonetheless be classified as substantive rather than procedural. In seeking to
distinguish this case from other procedural due process cases, Judge McConnell
states that those cases “did not hinge, as here, on whether the results were
justified, but on whether the plaintiffs had the opportunity to be heard by the
appropriate officials.” Dissent, McConnell, J., at 7 (citing Logan v. Zimmerman
Brush Co., 455 U.S. 422 (1982); Memphis Light, 436 U.S. at 5; Mathews v.
Eldridge, 424 U.S. 319 (1976); Barry v. Barchie, 443 U.S. 55 (1975); Goss v.
Lopez, 419 U.S. 565 (1975); Perry v. Sinderman, 408 U.S. 593 (1972); Bd. of
Regents v. Roth, 408 U.S. 564 (1972); Bell v. Burson, 402 U.S. 535 (1971);
Goldberg, 397 U.S. at 255; Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969)).
We disagree.
Beyond question, the results in this case were devastating. However, the
issue which we address here is whether the process by which the officers reached
their decision not to enforce the restraining order was arbitrary and fundamentally
unfair. Cf. Lewis, 523 U.S. at 845-46. Hence, as in the cases where the plaintiffs
felt they were arbitrarily denied the right to bring a legal action, Logan, 455 U.S.
at 426-27, to attend public school, Goss, 419 U.S. at 568-69, to enjoy tenured
employment, Perry, 408 U.S. at 595, to possess a business or driver’s license,
Barry, 443 U.S. at 63-64; Bell, 402 U.S. at 536, or to receive utility services,
disability benefits, or welfare benefits, Memphis Light, 436 U.S. at 5; Mathews,
424 U.S. at 322; Goldberg, 397 U.S. at 255, this case challenges the manner by
which the police allegedly deprived Ms. Gonzales of her interest in enforcement
of the restraining order.

-36-
Parratt v. Taylor, 451 U.S. 527, 537 (1981), overruled on other grounds by

Daniels v. Williams, 474 U.S. 327 (1986), which they cite for the proposition that

even if a protected property right existed, the

necessity of quick action by the State or the impracticality of
providing any meaningful predeprivation process, when coupled with
the availability of some meaningful means by which to assess the
propriety of the State’s action at some time after the initial taking
satisf[ies] the requirements of procedural due process.

Aple. Br. at 27 (citing Parratt, 451 U.S. at 539). They specifically assert

there is no practical pre-deprivation process under § 18-6-803.5(3)
. . . which can be afforded to the holder of a restraining order. The
only conceivable scenario would be to require law enforcement to
provide notice of a hearing to the recipient and later entertain a
hearing to determine if probable cause exists to believe that the
restraining order has been violated.

Id. at 28. They also contend an adequate post-deprivation remedy exists.

Consequently, they aver that Ms. Gonzales’ claims cannot proceed.

We completely disagree. First,

[i]f the right to notice and a hearing is to serve its full purpose, then,
it is clear that it must be granted at a time when the deprivation can
still be prevented. . . . [N]o later hearing and no damage award can
undo the fact that the arbitrary taking that was subject to the right of
procedural due process has already occurred. “This Court has not . . .
embraced the general proposition that a wrong may be done if it can
be undone.”

Fuentes, 407 U.S. at 81-82 (citing Stanley v. Illinois, 405 U.S. 645, 647 (1972)).

Second, the city and officers’ reliance on Parratt is misplaced.

Under Parratt, a plaintiff cannot raise a § 1983 procedural due process

claim where the loss of property resulted from the random and unauthorized

-37-
actions of a state actor which made the provision of pre-deprivation process

impossible or impracticable, and an adequate state post-deprivation remedy exists.

Parratt, 451 U.S. at 540-41, 543. See also Hudson v. Palmer, 468 U.S. 517, 533

(1984) (“an unauthorized intentional deprivation of property by a state employee

does not constitute a violation of the procedural requirements of the Due Process

Clause of the Fourteenth Amendment if a meaningful post deprivation remedy for

the loss is available”). Conversely, when the deprivation is caused by established

state procedures, the existence of an adequate remedy at state law does not

extinguish a procedural due process claim. See Logan, 455 U.S. at 435-37. See

also Zinermon v. Burch, 494 U.S. 113, 136-39 (1990).

In Logan, the Court held that the plaintiff suffered a procedural due process

violation because established state procedures erroneously deprived him of his

property interest in bringing a cause of action. Logan, 455 U.S. at 437. The

Court distinguished the case from Parratt, noting that the plaintiff’s deprivation

was not random and unauthorized, but instead the result of an “‘established state

procedure’ that destroy[ed] his entitlement without according him proper

procedural safeguards.” Id. at 436.

Of primary importance here, Ms. Gonzales alleges that her deprivation was

not the result of random and unauthorized behavior by the individual officers.

Rather, she asserts the deprivation was the result of a custom and policy of the

-38-
City of Castle Rock not to enforce domestic abuse protective orders. In

accordance with Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978),

[l]ocal governing bodies . . . can be sued directly under § 1983 for
monetary, declaratory, or injunctive relief where, as here, the action
that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers. Moreover, . . . local
governments, like every other § 1983 “person,” by the very terms of
the statute, may be sued for constitutional deprivations visited
pursuant to governmental “custom” even though such a custom has
not received formal approval through the body’s official
decisionmaking channels. . . . “Although not authorized by written
law, such practices of state officials could well be so permanent and
well settled as to constitute ‘custom or usage’ with the force of law.”

Monell, 436 U.S. at 690-91 (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144,

167-68 (1970)). See also Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1249 (10th

Cir. 1999) (“Absent . . . an official policy, a municipality may also be held liable

if the discriminatory practice is so permanent and well settled as to constitute a

custom or usage with the force of law.”) (quotations omitted). A municipality

may also be liable for the “actions of an employee who is not a final

policymaking authority if a widespread practice exists to the end that there is a

custom or usage with the force of law.” Sauers v. Salt Lake County, 1 F.3d 1122,

1129 (10th Cir. 1993) (quotation omitted); see also Bd. of County Comm’rs of

Bryan County v. Brown, 520 U.S. 397, 404 (1997).

Accepting as true the well-pleaded facts in Ms. Gonzales’ complaint, and

making all reasonable inferences in her favor, Ruiz, 299 F.3d at 1181, Ms.

-39-
Gonzales has stated a claim of municipal liability against the City of Castle Rock

for the deprivation of her property interest without procedural due process. She

alleges that “the City of Castle Rock, through its police department, has created

an official policy or custom of failing to respond properly to complaints of

restraining order violations” and “the City’s police department maintains an

official policy or custom that recklessly disregards a person’s rights to police

protection with respect to protective orders, and provides for or tolerates the non-

enforcement of protective orders by its police officers . . . .” Aplt. Appx. at 12. 16

Based on these allegations, Ms. Gonzales has asserted that the deprivation of her

property right was not the result of random and unauthorized acts, but instead was

pursuant to an official policy or custom of the city. Just as the plaintiff in Logan

could not be deprived of his property right by a defective state procedure that

afforded him no process, neither may Ms. Gonzales’ property right be denied by

the city’s alleged custom of refusing to enforce restraining orders. In concert

with Logan, and based on Ms. Gonzales’ complaint against the City of Castle

Rock and the individual officers, her procedural due process claims are therefore

not precluded by Parratt.

16
Ms. Gonzales also alleges the city is liable for its failure to train officers
“as to how they should respond to complaints of restraining order violations
. . . .” Aplt. Appx. at 12.

-40-
 Courts dealing with the convergence of Monell claims and Parratt defenses

have held accordingly. For example, in Brooks v. George County, 84 F.3d 157

(5th Cir. 1996), the court held that

[w]here a municipal officer operates pursuant to a local custom or
procedure, the Parratt/Hudson doctrine is inapposite: actions in
accordance with an “official policy” under Monell can hardly be
labeled “random and unauthorized,” . . . . [W]here employees are
acting in accord with customary procedures, the “random and
unauthorized” element required for the application of the
Parratt/Hudson doctrine is simply not met.

Id. at 165 (citations omitted). Likewise, in Wilson v. Civil Town of Clayton, 839

F.2d 375 (7th Cir. 1988), the court stated:

[w]hen it is the Town itself that is being sued, and the suit is allowed
under Monell because the action was executed in accordance with
“official policy,” the tortious loss of property can never be the result
of a random and unauthorized act. Therefore, a complaint asserting
municipal liability under Monell by definition states a claim to which
Parratt is inapposite.

Wilson, 839 F.2d at 380. See also Macene v. MJW, Inc., 951 F.2d 700, 706 (6th

Cir. 1991) (when plaintiff brings municipal liability action claiming established

state procedures deprived him of property interest, Parratt not applicable);

Matthias v. Bingley, 906 F.2d 1047, 1058 (5th Cir. 1990) (“rationale of Parratt

. . . does not apply when the challenged actions comply with City policy”);

Sullivan v. Town of Salem, 805 F.2d 81, 86 (2d Cir. 1986) (if conduct of official

was pursuant to town policy, Parratt not applicable); Sanders v. Kennedy, 794

F.2d 478, 482 (9th Cir. 1986) (Parratt does not apply in § 1983 action against

individual officers and chief of police where plaintiff alleged property damage

-41-
incurred during course of arrest was result of official policy, practice or custom);

McKee v. Heggy, 703 F.2d 479, 482-83 (10th Cir. 1983) (where record suggested

plaintiff’s seized car was sold by police department pursuant to customary

procedures treating seized vehicles as abandoned, city could be held liable for

violation of procedural due process claims).

Thus, when the issue is a deprivation resulting from a municipal policy, not

the random acts of rogue officers, neither the city nor individual officers can seek

refuge under Parratt. See Matthias, 906 F.2d at 1058 (city not shielded by

Parratt from § 1983 liability for acts in compliance with city policy); McKee, 703

F.2d at 482-83 (same); Amons v. Dist. of Columbia, 231 F. Supp. 2d 109, 114

(D.D.C. 2002) (same); Brooks, 84 F.3d at 165-66 (individual officers sued in

individual and official capacities may not rely on Parratt where deprivation is

result of local custom or procedure); Alexander v. Ieyoub, 62 F.3d 709, 712-13

(5th Cir. 1995) (same); Sullivan, 805 F.2d at 86 (same). Therefore, the assertions

of the city and officers that pre-deprivation process was impossible and post-

deprivation proceedings adequate are inapposite here.

The district court dismissed Ms. Gonzales’ complaint as deficient under

F ED . R. C IV . P. 12(b)(6). We thus have no record of what the police actually did

or considered, or of what the City’s policy actually is. In general, however, we

note that “due process is flexible and calls for such procedural protections as the

-42-
particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

In Mathews, the Supreme Court highlighted the “truism that ‘[d]ue process, unlike

some legal rules, is not a technical conception with a fixed content unrelated to

time, place and circumstances.” Mathews, 424 U.S. at 334 (quoting Cafeteria

Workers v. McElroy, 367 U.S. 886, 895 (1961)). “The hearing ‘need not be

elaborate;’ indeed, ‘something less than a full evidentiary hearing is sufficient.’”

Benavidez v. City of Albuquerque, 101 F.3d 620, 627 (10th Cir. 1996) (quoting

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985)). For example, in

Memphis Light, 436 U.S. at 16 & n.17, the Supreme Court held due process

satisfied when prior to the termination of utility services, the customer had an

opportunity to informally consult with and present her case to a designated

employee of the company who had authority to correct any billing mistakes.

Likewise, in Goss the Court held that before a student could be suspended from

school, he had to

be given oral or written notice of the charges against him and, if he
denies them, an explanation of the evidence the authorities have and
an opportunity to present his side of the story. The Clause requires
at least these rudimentary precautions against unfair or mistaken
findings of misconduct and arbitrary exclusion from school.

Goss, 419 U.S. at 581 (emphasis added).

Judge McConnell implies that Ms. Gonzales did receive some form of a

hearing from the officers and hence her complaint cannot be construed as

-43-
challenging the lack of process she received, but, instead, is a challenge to the

results of that hearing. Dissent, McConnell, J., at 6. We wholly disagree that Ms.

Gonzales’ repeated phone calls to the police department and the officers’

seemingly outright dismissal of her claims constitutes “the opportunity to be

heard at a meaningful time and in a meaningful manner.” Mathews, 424 U.S. at

333. According to Ms. Gonzales’ complaint, in effect no one was listening.

In specifically determining what process is due a plaintiff, a court must

balance

three distinct factors: First, the private interest that will be affected
by the official action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and finally, the
Government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute
procedural requirement would entail.

Id. at 335. See also Watson v. Beckel, 242 F.3d 1237, 1240 (10th Cir. 2001);

Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir. 1999). Although the

balancing test required by Mathews cannot be undertaken without a developed

record, we note that the likelihood here of serious loss is patently evident by the

very facts of this case, the murder of children the order was obtained to protect.

See Mathews, 424 U.S. at 335. If the “discontinuance of water or heating even

for short periods of time may threaten health and safety,” thereby requiring pre-

deprivation process, Memphis Light, 436 U.S. at 18, certainly one’s interest in the

-44-
enforcement of a domestic abuse protective order must be deemed equally vital.

See also Bell, 402 U.S. at 539 (possession of driver’s license “essential in the

pursuit of a livelihood” and cannot be denied without pre-deprivation process);

Goldberg, 397 U.S. at 263 (discontinuation of welfare benefits constitutes

“grievous loss” meriting pre-deprivation process). Moreover, if it should turn out

the officers repeatedly ignored and denied Ms. Gonzales’ requests for

enforcement, it follows that no procedures of any form were employed to

minimize the risk of erroneous deprivation, see Mathews, 424 U.S. at 335 (court

must examine “risk of an erroneous deprivation of such interest through the

procedures used, and the probative value, if any, of additional or substitute

procedural safeguards”), resulting in what can only be described as the arbitrary

denial of a protected interest. See Lewis, 523 U.S. at 845-46. Clearly then,

additional procedural safeguards could have prevented the risk of erroneous

deprivation of Ms. Gonzales’ protected interest.

Applying the Mathews analysis to the allegations here, it is apparent that

the restraining order enforcement statute provides direction in answering the

question of what additional procedural safeguards could have been employed by

the police officers. See C OLO . R EV . S TAT . § 18-6-803.5. In our earlier

discussion, we held the restraining order’s specific terms, mandatory language,

and objective predicates limiting decision maker discretion, created a protected

-45-
property interest in the enforcement of the domestic abuse protective order

granted to Ms. Gonzales. The statute, while absent the specificity of the

restraining order, nonetheless guides officers as to the process they should

provide a holder of a restraining order before depriving that individual of his or

her enforcement rights.

The statute directs police officers to determine whether a valid order

exists, 17 whether probable cause exists that the restrained party is violating the

order, see C OLO . R EV . S TAT . § 18-6-803.5(3)(b)(I), and whether probable cause

exists that the restrained party has notice of the order. See C OLO . R EV . S TAT . §

18-6-803.5(3)(b)(II). 18 If, after completing these three basic steps, an officer

finds the restraining order does not qualify for mandatory enforcement, the person

claiming the right should be notified of the officer’s decision and the reason for

it.

These steps, while admittedly abbreviated, appropriately acknowledge the

exigent circumstances which accompany a request to enforce a domestic abuse

17
This task can be accomplished by either examining the order in person, or
by checking to see if the order has been entered in the statewide registry of
protective orders. See C OLO . R EV . S TAT . § 18-6-803.7 (creating central registry of
protective orders issued in Colorado).
18
In making these determinations, the statute states “a peace officer shall
assume that the information received from the registry is accurate. A peace
officer shall enforce a valid restraining order whether or not there is a record of
the restraining order in the registry.” C OLO . R EV . S TAT . § 18-6-803.5(3)(c).

-46-
protection order and are sufficiently flexible to meet the demands of that

particular situation. See Morrissey, 408 U.S. at 481. While this procedure

obviously does not provide Ms. Gonzales with the opportunity for a full court

hearing, it is not essential that it does so. See Benavidez, 101 F.3d at 627

(something less than full evidentiary hearing can be sufficient to satisfy

procedural due process). Regardless of its brevity, the procedure provides the

opportunity to present a request for enforcement to the police and to have it

adequately and sufficiently examined prior to any official decision to deny

enforcement. Of equal importance, if followed, the process would minimize the

risk of the arbitrary, erroneous or mistaken deprivation of an individual’s right to

have a protection order enforced. Mathews, 424 U.S. at 335. By completing the

three steps laid out in the statute, the wrongful denial of Ms. Gonzales’ right

could have been prevented, and three lives potentially spared.

Nor does the identified procedure amount to a substantial burden upon the

interests of police departments and municipalities. Indeed, the process would

only take minutes to perform, and includes tasks officers regularly perform in the

course of their daily duties. Under the balancing test required by Mathews, and

reading the allegations of Ms. Gonzales’ complaint in the light most favorable to

her, we therefore determine the scales tip in her favor. Ms. Gonzales’ interest in

having the restraining order enforced was substantial, and without question the

-47-
officers’ alleged failure to provide her with any meaningful process prior to

refusing to enforce the court order erroneously deprived her of her protected

entitlement. Moreover, the use of additional safeguards would have certainly

aided in preventing the risk of wrongful deprivation. Finally, requiring the

officers to engage in this three step process prior to depriving an individual of her

enforcement rights is hardly an unreasonable burden to place on the police.

In sum, we conclude that the process set up in the statute was that the

police must, in timely fashion, consider the merits of any request to enforce a

restraining order and, if such a consideration reveals probable cause, the

restrained person should be arrested. Here, Ms. Gonzales alleges that due to the

city’s policy and custom of failing to properly respond to complaints of

restraining order violations, she was denied the process laid out in the statute.

The police did not consider her request in a timely fashion, but instead repeatedly

required her to call the station over several hours. The statute promised a process

by which her restraining order would be given vitality through careful and prompt

consideration of an enforcement request, and the constitution requires no less.

Denial of that process drained all of the value from her property interest in the

restraining order.

If one considers that constitutional process includes a right to be heard, Ms.

Gonzales was deprived of that process because, according to her allegations, the

-48-
police never “heard” nor seriously entertained her request to enforce and protect

her interests in the restraining order. Alternatively, if one considers that the

process to which she was entitled was a bona fide consideration by the police of a

request to enforce a restraining order, she was denied that process as well.

According to Ms. Gonzales’ allegations, the police never engaged in a bona fide

consideration of whether there was probable cause to enforce the restraining

order. Their response, in other words, was a sham which rendered her property

interest in the restraining order not only a nullity, but a cruel deception.

Based on the well-pleaded facts of Ms. Gonzales’ complaint, we hold that

she has adequately stated a procedural due process claim upon which relief can be

granted. She had a property interest in the enforcement of the restraining order

which was allegedly taken from her without due process of law. Her § 1983

action can therefore proceed.

III

We must next address whether the individual officers, acting pursuant to

the official policy or custom of the City of Castle Rock, were entitled to the

defense of qualified immunity. Sullivan, 805 F.2d at 87. Under the doctrine of

qualified immunity, a government actor is not subject to liability unless it is

“sufficiently clear that a reasonable official would have understood that his

-49-
conduct violated the right.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir.),

cert. denied, 534 U.S. 1019 (2001). See also Lybrook v. Members of the

Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1337 (10th Cir. 2000);

Liebson v. N. M. Corr. Dep’t, 73 F.3d 274, 276 (10th Cir. 1996).

“Ordinarily, in order for the law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts must have found the law to be as the

plaintiff maintains.” Currier, 242 F.3d at 923 (citing Medina v. City and County

of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)). In the instant case, we cannot

hold that a reasonable officer would have known that a restraining order, coupled

with a statute mandating its enforcement, would create a constitutionally

protected property interest. No Supreme Court or Tenth Circuit case has so held.

Nor have we found any other circuit court cases addressing this specific question.

Somewhat analogous cases from the Sixth and Eleventh Circuits have held that

comprehensive state child welfare statutes created liberty interests in personal

safety and the freedom from harm which gave rise to procedural due process

protections. See Meador v. Cabinet for Human Res., 902 F.2d 474, 476 (6th Cir.

1990); Taylor v. Ledbetter, 818 F.2d 791, 799 (11th Cir. 1987) (en banc).

Likewise, two district courts, addressing facts similar to those in the present case,

held that protective orders or their supporting statutes created a property interest

-50-
in enforcement. See Siddle, 761 F. Supp. at 509; Coffman, 739 F. Supp. at 264.

Nevertheless, this precedent is insufficient to clearly establish the law for this

circuit. Officers Ahlfinger, Brink and Ruisi are thus entitled to the affirmative

defense of qualified immunity.

The same cannot be said for the City of Castle Rock. It is well established

that municipalities cannot avail themselves of the qualified immunity doctrine.

See Leatherman v. Tarrant Co. Narcotics Intelligence & Coordination Unit, 507

U.S. 163, 166 (1993); Dill v. City of Edmond, 155 F.3d 1193, 1212 (10th Cir.

1998). Ms. Gonzales can proceed with her § 1983 action against the city.

IV

Accordingly, we REVERSE the district court’s dismissal of Ms. Gonzales’

procedural due process claim, and REMAND for further proceedings in

accordance with this opinion.

-51-
No. 01-1053, Gonzales v. City of Castle Rock

KELLY, Circuit Judge, 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 14. 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 property interest

derives from the protective order that is issued by a court pursuant to the statute.

Ct. Op. at 21 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 (and

then supplementing the record with) of 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 (1989), which held “that a State’s failure to protect an individual against

1
At best, they are repeated as notice provisions, they are not included in
the decretal paragraphs of the order.

-2-
private violence simply does not constitute a violation of the Due Process

Clause,” id. at 197, 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.

2
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.

-3-
 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 “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 (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

3
I join the dissents of Judges O’Brien, McConnell and Hartz which
recognize this problem.

-4-
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. The Court

went on to define a property interest as an interest “that a person has already

acquired in specific benefits.” Id. at 576 (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.

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 (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

-5-
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. Connor, 515 U.S. 472, 480-81 (1995); Hewitt v. Helms,

459 U.S. 460, 472 (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 (1989); see also Sandin, 515 U.S. at 481 (describing liberty interest under this

approach as an enforceable expectation that mandatory language and substantive

predicates “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 (no

liberty interest in limiting prison transfers where regulations described procedure

but did not place substantive limits on discretion). Stated another way, if a

-6-
particular result is not required, no liberty or property interest is created. See

Thompson, 490 U.S. at 464.

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

-7-
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 27, 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

-8-
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 14, or a property interest in “the government service of enforcing the

objective terms” of a protective order, id. at 32, 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 (1990) (liberty interest in freedom from arbitrary

administration of anti-psychotic medication); Hewitt, 459 U.S. at 471-72 (liberty

interest in freedom from administrative segregation); Vitek v. Jones, 445 U.S.

480, 487-91 (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 (1979) (liberty interest in parole); Wolff v.

-9-
McDonnell, 418 U.S. 539, 557-58 (1974) (liberty interest in avoiding loss of good

time credits); Roth, 408 U.S. at 578 (potential property interest in re-employment

for the next year); Goldberg v. Kelly, 397 U.S. 254, 260-61 (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 21. 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.

-10-
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 23, 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 the

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 . . . [e]xcluding a party . . . .”) (emphasis added).

-11-
 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,

-12-
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 9. 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 21 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 involve 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

-13-
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, 670 P.2d 137, 140-41 (Ore.

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. 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. This court concludes that the approach has not been foreclosed “in non-prison

settings,” Ct. Op. at 18 n.6, and applies it here, but a more nuanced approach

-14-
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. 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 20-21; 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

-15-
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 focus 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.

4
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 shall
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)).

-16-
 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 (2nd Cir. 2003) (finding statute that

contained mandatory language authorizing removal of child ambiguous insofar as

-17-
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 46. If the officer will not enforce the order, “the person claiming the right

should be notified 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.”).

-18-
No. 01-1053, Gonzales v. City of Castle Rock

McCONNELL, J., joined by TACHA, C.J., and KELLY and O’BRIEN, JJ.,
concurring in part and dissenting in part.

Jessica Gonzales’s complaint sets forth claims under the Due Process

Clause of the Fourteenth Amendment without distinguishing between the

procedural and substantive components of that provision. The district court

analyzed the complaint separately under both procedural and substantive due

process standards, and dismissed the complaint in both respects. The majority

affirms dismissal of the substantive due process claim, but reverses as to the

procedural claim. The majority devotes the bulk of its opinion to determining

“whether a court-issued domestic restraining order, whose enforcement is

mandated by a state statute, creates a property interest protected by the due

process clause of the Fourteenth Amendment.” Maj. Op. 2. I dissent on the

ground that, even assuming the restraining order coupled with the statute creates a

property interest protected by the Due Process Clause, Ms. Gonzales’s complaint

raises only a substantive and not a procedural claim. 1

The facts, as alleged in the complaint, are that Ms. Gonzales repeatedly

contacted the police regarding an apparent violation of a domestic relations

restraining order, but the officers did nothing, as a result of which her children

were murdered by their father. The Supreme Court has held that the Due Process

1
I dissent only with respect to the majority’s reversal of the district court’s
dismissal of Ms. Gonzales’s procedural due process claim. In all other respects, I
concur.
Clause, of its own force, does not create a liberty or property interest in protection

by the police. DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189,

196 (1989). The majority correctly points out, however, that DeShaney is

arguably distinguishable in this case, because the plaintiff does not rely on the

Due Process Clause itself as the foundation for her claim of constitutional

entitlement, but on a source in state law. Maj. Op. 11-12. The majority never

convincingly explains, however, why her claim is procedural rather than

substantive.

When a plaintiff asserts that a protected liberty or property interest has

been infringed by action of the executive branch (such as police officers), the

Supreme Court holds that the primary test for whether the action violates

substantive due process is whether it “shocks the conscience.” County of

Sacramento v. Lewis, 523 U.S. 833, 846 (1998). 2 Only when a plaintiff asserts

that government action is procedurally unfair – usually for lack of a hearing –

does the balancing test of Mathews v. Eldridge, 424 U.S. 319, 333-35 (1976),

invoked by the majority (Maj. Op. 43-44), apply. Mathews is a far different, and

less restrictive, test for a plaintiff to satisfy than the “shocks the conscience” test.

2
There is no need to reflect here on whether the egregious dereliction of the
Castle Rock police department (assuming the allegations of the complaint to be
true) meets this high standard, because Ms. Gonzales’s substantive due process
claim was dismissed, that dismissal was affirmed by the panel, and en banc
review of that portion of the panel’s decision was not sought. See Maj. Op. 11
n.3.

-2-
 The question is whether the facts, as alleged, constitute a procedural due

process claim. I think they do not. The “touchstone of due process” – both

substantive and procedural – “is protection of the individual against arbitrary

action of government.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974), quoted in

Lewis, 523 U.S. at 845. But a procedural due process claim is based on “a denial

of fundamental procedural fairness,” while a substantive claim is based on the

“exercise of power without any reasonable justification in the service of a

legitimate governmental objective.” Id. at 845-46.

Although the majority employs the language of procedural due process, Ms.

Gonzales’s complaint contains no reference to procedural issues in any form. She

does not complain that she was denied a “right to be heard,” Mathews, 424 U.S. at

333, or that the police conduct was “procedurally unfair,” Maj. Op. 33 n.13. She

makes no allegations regarding “the manner by which the police allegedly

deprived [her] of her interest in enforcement of the restraining order.” Maj. Op.

36 n.15 (emphasis in original). She does not allege that if she had been given the

opportunity of presenting her views to the decisionmakers, it would have affected

the outcome. The language of procedural unfairness comes from the majority

opinion, not from the complaint. Ms. Gonzales’s complaint is that the police

officers arbitrarily and for no legitimate reason failed to enforce the protective

order. See Complaint, ¶¶ 21, 28 (The Defendants’ “actions were taken either

-3-
willfully, recklessly or with such gross negligence as to indicate wanton disregard

and deliberate indifference to the civil rights of Plaintiff and the three children.”).

That is a quintessentially substantive claim; it goes to the lack of justification for

the police officers’ failure to act and not to the process by which they reached

their decision.

As a matter of constitutional categorization, Ms. Gonzales’s claim is not

distinguishable from that in Lewis. There, the plaintiffs sued police officers for

depriving their son of his life (undoubtedly a protected interest under the Due

Process Clause) as a result of a high-speed police chase alleged to be deliberately

indifferent to, or in reckless disregard for, his safety. See 523 U.S. at 854

(plaintiffs alleged that the police action manifested “recklessness, gross

negligence and conscious disregard for [plaintiff’s] safety”; “deliberate

indifference”). Here, using the same vocabulary of recklessness, gross

negligence, and deliberate indifference (Complaint, ¶¶ 21, 28), Ms. Gonzales sues

for an allegedly arbitrary and unjustified failure to enforce a protective order.

The only difference is that Lewis involved action, while this case involves a

failure to act. In both cases, however, the crux of the matter is that allegedly

arbitrary and unjustifiable police conduct resulted in a deprivation. Nor could the

problem be solved by the addition of procedural language to Ms. Gonzales’s

complaint. The plaintiffs in Lewis could not have prevailed simply by

-4-
recharacterizing their complaint as one of procedural due process, by saying, for

example, that the police should have engaged in some form of pre-deprivation

procedure to decide whether they should engage in the high-speed chase. 3 The

distinction between procedural and substantive due process is not one of pleading,

but of the nature of the claim.

The majority’s argument to the contrary is long on assertion and short on

explanation. See Maj. Op. 33 n.13, 36 n.15. The majority claims:

However, contrary to Judge McConnell’s contentions, Ms. Gonzales is not
alleging that the officers’ denial of her enforcement rights arose out of
unjustified governmental action. Rather, her claim is that it was
procedurally unfair for the police arbitrarily to decline to perform duties
required of them pursuant to a mandatory court order which provided her a
substantive property right under state law, and pursuant to a state statute
commanding the same.

Maj. Op. 33 n.13. But quite the opposite is true. The problem, as alleged by Ms.

Gonzales, is that the police officers for no sufficient reason (“recklessly” or with

“gross negligence”) failed to enforce the restraining order. Her claim is precisely

that the officers’ conduct was unjustified. Cf. Lewis, 523 U.S. at 845 (a claim

that government action is “without any reasonable justification” is a substantive

due process claim). If, on remand, it turns out that the police officers did not

3
Although the Court left open the possibility of a procedural due process
claim in cases like Lewis, it suggested that the only available procedural claim in
such cases is a post-deprivation compensation scheme. 523 U.S. at 840 n.4. The
majority’s view, by contrast, is that Ms. Gonzales was entitled to some kind of
pre-deprivation procedure.

-5-
behave “arbitrarily” but had a good reason for their actions (for example, every

available officer was away tending to a dreadful emergency), Ms. Gonzales would

lose on the merits. By contrast, in all the procedural due process cases on which

the majority relies, the focus of the litigation was on the process by which the

state actor reached the decision – not on whether the ultimate result was justified.

See Carey v. Piphus, 435 U.S. 247, 266 (1978) (“the right to procedural due

process . . . does not depend upon the merits of a claimant’s substantive

assertions”). In a procedural due process case, a claimant who is denied a hearing

to which he is entitled will prevail, even if the state action was substantively

justified. Id. In the present case, by contrast, unless Ms. Gonzales can

substantiate her allegations that the police officers acted “arbitrarily” – that is,

without adequate justification under the law – she will lose.

The substantive character of Ms. Gonzales’s claim is further evident in the

fact that she does not propose any procedures that should be instituted when

persons protected by restraining orders request police action. She cannot say she

was not given a chance to be heard. She called several times and explained the

situation to the police, and she met with the police in person both at her home and

at the police station. The problem is not that she was denied a hearing, but that

the officers failed to do their duty. The problem was with the result. 4 This is in

4
My point is not – as the majority suggests (Maj. Op. 44) – that Ms.
(continued...)

-6-
marked contrast to the Supreme Court’s procedural due process cases, on which

the majority relies (Maj. Op. 15-16): Board of Regents v. Roth, 408 U.S. 564

(1972); Perry v. Sindermann, 408 U.S. 593 (1972); Goss v. Lopez, 419 U.S. 565

(1975); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969); Barry v.

Barchie, 443 U.S. 55 (1979); Bell v. Burson, 402 U.S. 535 (1971); Logan v.

Zimmerman Brush Co., 455 U.S. 422 (1982); Memphis Light, Gas & Water Div. v.

Craft, 436 U.S. 1 (1978); Goldberg v. Kelly, 397 U.S. 254 (1970); and Mathews v.

Eldridge, 424 U.S. 319 (1976). In each of these cases, the consequence of finding

a procedural due process violation would be to require the government to provide

some type of hearing, either in advance of the deprivation or within a reasonable

time thereafter. See Henry J. Friendly, “Some Kind of Hearing”, 123 U. Pa. L.

Rev. 1267 (1975). The litigation did not hinge, as here, on whether the results

were justified, but on whether the plaintiffs had the opportunity to be heard by the

appropriate officials.

The majority is remarkably vague about what kind of “hearing” Ms.

Gonzales should have received. See Maj. Op. 42-43 (“we note that ‘due process

is flexible and calls for such procedural protections as the particular situation

demands’”) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The

4
(...continued)
Gonzales’s claim fails because she received the hearing to which she was
supposedly entitled. It is that the presence, or lack, of a hearing is not the real
issue.

-7-
majority suggests that “the restraining order enforcement statute provides

direction in answering the question of what additional procedural safeguards

could have been employed by the police officers.” Maj. Op. 45. According to the

majority, these “safeguards” consist of (1) determining whether a valid order

exists, (2) determining whether probable cause exists that the restrained party has

notice of the order and is violating it, and (3) notification of the officer’s decision

and the reason for it. Id. at 46. The first two are plainly irrelevant: neither the

existence of the order nor the existence of probable cause has ever been disputed.

That leaves the third: informing Ms. Gonzales of the officers’ “decision.” It

seems to me that, if the police had told Ms. Gonzales they were not going to take

action, Ms. Gonzales would have precisely the same constitutional claim she does

now– only somewhat easier to prove. Surely the majority does not mean to

suggest that the “procedural safeguard” Ms. Gonzales was entitled to was being

informed that she would get no help. 5

These suggestions thus confirm the non-procedural character of Ms.

Gonzales’s claim. Unlike the plaintiffs in Perry, Goss, Sniadach, Barry, Bell,

Logan, Memphis Light, Goldberg, and Mathews, Ms. Gonzales’s deprivation was

not the result of an erroneous determination on a question of fact. It was, as

5
If that were an adequate procedural safeguard, Memphis Light satisfied its
procedural due process obligation when it informed the Crafts their utilities would
be cut off, Memphis Light, 436 U.S. at 13-14, and Mr. Kelly got what was “due”
when he was told his welfare was terminated, Goldberg, 397 U.S. at 267-68.

-8-
alleged, “arbitrary” in the sense of having no justification at all. It was an act of

“deliberate indifference,” like that in Lewis, 523 U.S. at 850-51, a substantive due

process case.

At oral argument, Ms. Gonzales’s counsel suggested that the procedures to

which she was entitled were those set forth in the applicable Colorado statute: to

use every reasonable means to enforce the order, including arresting the offender

or, if actual arrest is not feasible, seeking an arrest warrant. But these procedures

constitute Ms. Gonzales’s substantive entitlement; they are what she claims she

was deprived of without due process. These are not procedures to determine

whether she was entitled to enforcement of the order, which is what procedural

due process is about.

If the majority is correct, it will always be possible for plaintiffs to

recharacterize their substantive due process claims against arbitrary action by

executive officials as “procedural due process” claims, thus avoiding the Supreme

Court’s exacting “shocks the conscience” test and getting, instead, the balancing

test of Mathews. It will always be possible to say that, before they took the

complained-of action, the executive officials should have engaged in some

additional deliberative process, which might have averted the problem. For

example, in Abeyta by and through Martinez v. Chama Valley Indep. Sch. Dist.

No. 19, 77 F.3d 1253, 1257-58 (10th Cir. 1996), we held that a school teacher

-9-
who repeatedly called a 12-year-old student a “prostitute” did not violate her

substantive due process rights because his conduct, while reprehensible, was not

sufficiently egregious to “shock the conscience.” Under the majority’s reasoning,

the plaintiff should have styled the claim as a procedural deprivation (of her

liberty interest in personal security and emotional well-being) and alleged that the

real harm was that the teacher determined that she was a prostitute without first

holding a hearing on the question. Similarly, in Uhlrig v. Harder, 64 F.3d 567

(10th Cir. 1995), this Court rejected a substantive due process claim by a therapist

at a mental hospital who was killed by an inmate as the result of a decision by

hospital administrators to close a special unit for the criminally insane, because

the decision “was not the result of reckless and ‘conscience shocking’ conduct.”

Id. at 576. Again, however, today’s opinion would allow the plaintiff to get

around Lewis by alleging a procedural defect, for example, that the hospital

administrators ought to have engaged in a more thorough consideration of the

dangers of closing the special unit.

In Reno v. Flores, 507 U.S. 292 (1993), the Supreme Court gave short

shrift to a plaintiff’s attempt to reformulate an essentially substantive due process

claim in procedural terms. In that case, the Supreme Court rejected the plaintiff’s

substantive due process claim that a child had a fundamental right to be free from

custody when freedom from custody might be in the child’s best interest. Id. at

-10-
305-06. The plaintiff also characterized the argument as a procedural due process

claim by arguing that the government’s procedures failed to make a case-by-case

determination of the best interest of the child when it decided whether to keep a

child in custody. The Supreme Court rejected the attempt to disguise a

substantive claim as a procedural one: “Respondents contend that this procedural

system is unconstitutional because it does not require the [INS] to determine in

the case of each individual alien juvenile that detention in INS custody would

better serve his interests than release to some other ‘responsible adult.’ This is

just the ‘substantive due process’ argument recast in ‘procedural due process’

terms, and we reject it for the same reasons.” Id. at 308.

The effect of allowing claims that are essentially substantive to masquerade

as procedural is to collapse the distinction between the two components of due

process and to expand greatly the liability of state and local governments.

Sympathetic though we are, and should be, to persons in Ms. Gonzales’s unhappy

situation, we are not authorized under the Fourteenth Amendment to do what she

asks.

-11-
Gonzales v. City of Castle Rock et. al., No. 01-1053

O’BRIEN, Circuit Judge, dissenting, with whom TACHA, Chief Circuit Judge,
and KELLY, Circuit Judge, join:

The majority opinion ignores guiding principles announced in DeShaney, 1

leaving us both adventurous and alone, 2 dramatically separated from other

circuits. 3 This decision rests on tenuous grounds and invites litigation in even

1
DeShaney v. Winnebago, 489 U.S. 189 (1989).
2
In nearly fifteen years since DeShaney no other circuit has ventured this
far. However, in a similar case the Second Circuit, citing the panel decision,
certified a question about the reach of a child welfare statute to the Connecticut
Supreme Court. Sealed v. Sealed, 332 F.3d 51 (2d Cir. 2003).
3
All circuits reaching the merits have gone the other way. Jones v. Union
County, Tenn., 296 F.3d 417, 429 (6th Cir. 2002) (holding, among other things,
that a state actor’s violation of a Tennessee statute providing, “[t]he court shall
cause a copy of the [family violence] petition . . . to be served upon the
respondent at least five (5) days prior to such hearing” did not qualify as a state
created liberty or property interest under Board of Regents of State Colleges v.
Roth, 408 U.S. 564 (1972) (emphasis added)); cf., Matthews v. Pickett County,
Tenn., 996 S.W. 2d 162 (Tenn. 1999) (allowing a state tort action against police
officers who negligently failed to arrest a restrained person when requested by the
victim); Doe by Fein v. District of Columbia, 93 F.3d 861 (D.C. Cir. 1996)
(rejecting a procedural due process claim for failing to effectuate child abuse
protective services, finding there is no entitlement to such protective services
under mandatory child abuse statute); Harrill v. Blount County, Tenn., 55 F.3d
1123, 1125 (6th Cir. 1995) (a Tennessee statute requiring an arrestee to be given
an opportunity to make a phone call before “booking” did not create a protected
property or liberty interest); Doe v. Milwaukee County, 903 F.2d 499 (7th Cir.
1990) (rejecting a procedural due process claim for failing to investigate child
abuse, finding no “entitlement” in such procedures—no entitlement triggering due
process protection in statutorily required child abuse investigation). See also
Archie v. Racine, 847 F.2d 1211 (7th Cir. 1988) (no property interest in required
fire protection—prior to DeShaney), cert. denied, 489 U.S. 1065 (1989); Pierce v.
Delta County Dep’t of Social Svcs., 119 F.Supp.2d 1139 (D. Colo. 2000)
(rejecting a procedural due process claim for failing to comply with statutory
more dubious cases. For those reasons, I dissent and join the dissents of Judge

Kelly and Judge McConnell.

Superficially bowing to Supreme Court precedent, the majority

acknowledges the futility of the substantive due process arguments. But the

veneer of procedural due process applied in its stead hardly obscures the

obvious–the method is an artifact of substantive due process; perverse, because,

surreptitiously, it achieves the very result DeShaney decried. No matter how

fervently we desire mankind to be honest, life to be fair, and the laws to be

obeyed, our hopes are not entitlements for which individuals may exact a

monetary remedy from state entities and actors when reality does not meet

expectations.

And in reality’s penetrating light there can be no doubt; Ms. Gonzales is

not seeking a remedy for a pretermitted hearing. Irrespective of Colorado tort

law, she wants the equivalent of a tort remedy against the City of Castle Rock for

the deaths of her three daughters, deaths delivered at their father’s hand. Her

child protection reporting and investigatory procedures, finding there is no
entitlement to protective services under these procedures); Semple v. City of
Moundsville, 963 F. Supp 1416 (N.D. W. Va. 1997) (rejecting a procedural due
process claim for failing to advise domestic abuse victims of their rights and
failing to serve domestic violence temporary protective order as required by
statute, finding no entitlement to such procedures), cert. denied, 528 U.S. 1189
(2000).

-2-
claimed entitlement (enforcement of a restraining order) is not a property interest

and, accordingly, does not warrant due process protection.

Principle —

In DeShaney social workers removed a child from his father’s care,

suspecting abuse, but later returned the child to him. After the child was

returned, the father repeated his abuse, rendering the child permanently brain

damaged. The issue was whether state actors were liable for damages on

substantive due process grounds. That decision should provide the analytical

touchstone for this case:

[N]othing in the language of the Due Process Clause itself requires
the State to protect the life, liberty, and property of its citizens
against invasion by private actors. The Clause is phrased as a
limitation on the State’s power to act, not as a guarantee of certain
minimal levels of safety and security. It forbids the State itself to
deprive individuals of life, liberty, or property without “due process
of law,” but its language cannot fairly be extended to impose an
affirmative obligation on the State to ensure that those interests do
not come to harm through other means . . . . Its purpose was to
protect the people from the State, not to ensure that the State
protected them from each other.

489 U.S. at 195-96. The Court emphasized the need for rational analysis in

emotionally laden cases:

Judges and lawyers, like other humans, are moved by natural
sympathy in a case like this to find a way for Joshua and his mother
to receive adequate compensation for the grievous harm inflicted
upon them. But before yielding to that impulse, it is well to
remember once again that the harm was inflicted not by the State of
Wisconsin, but by Joshua’s father. The most that can be said of the

-3-
 state functionaries in this case is that they stood by and did nothing
when suspicious circumstances dictated a more active role for them.
In defense of them it must also be said that had they moved too soon
to take custody of the son away from the father, they would likely
have been met with charges of improperly intruding into the
parent-child relationship, charges based on the same Due Process
Clause that forms the basis for the present charge of failure to
provide adequate protection.

Id. at 202-03.

With unmistakable clarity, the Court said “the State had no constitutional

duty to protect Joshua against his father’s violence, its failure to do so–though

calamitous in hindsight–simply does not constitute a violation of the Due Process

Clause.” Id. at 202. Seemingly, but apparently not, DeShaney put to rest the

notion that simply because a state takes steps to protect citizens from harm it

thereby insures them against all ravages of modern life.

The majority of this Court observes that DeShaney resolved a “substantive

due process” issue and did not reach the companion “procedural due process”

arguments. Id. at n.2. That observation, while correct, provides cold comfort.

The Supreme Court acknowledged the right of a state to expand its tort law to

include “special relationship” tort liability, but the decision can hardly be

considered to contain an invitation to expand the entitlement rationale of

procedural due process. Id. at 203. Particularly so in light of the caveat,

frequently repeated, that the Due Process Clause does not “transform every tort

committed by a state actor into a constitutional violation.” Id. at 202. The

-4-
majority ignores that admonition and its companion; states should not have

liability “thrust upon them by this Court’s expansion of the Due Process Clause of

the Fourteenth Amendment.” 4 Id. at 203. I see no reason to ignore the principles

clearly and forcefully stated in DeShaney and Collins.

For me, this case reduces to utter simplicity. Should directive language

from a Colorado statute be expansively construed for the sole purpose of

subjecting state entities and actors to thinly disguised federal tort liability? I

think not. We should defer to the State of Colorado, allowing it to determine the

4
Apparently it bears repeating. Shortly after DeShaney, in Collins v. City
of Harker Heights, Tex., 503 U.S. 115, 128 (1992), the Supreme Court reiterated
the principle, but in a slightly different context, saying:
Petitioner’s claim is analogous to a fairly typical state-law tort claim:
The city breached its duty of care to her husband by failing to
provide a safe work environment. Because the Due Process Clause
"does not purport to supplant traditional tort law in laying down rules
of conduct to regulate liability for injuries that attend living together
in society," Daniels v. Williams, 474 U.S., at 332, 106 S.Ct., at 665,
we have previously rejected claims that the Due Process Clause
should be interpreted to impose federal duties that are analogous to
those traditionally imposed by state tort law, see, e.g., id., at
332-333, 106 S.Ct., at 665-666; Baker v. McCollan, 443 U.S. 137,
146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979); Paul v. Davis, 424
U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976). The
reasoning in those cases applies with special force to claims asserted
against public employers because state law, rather than the Federal
Constitution, generally governs the substance of the employment
relationship. See, e.g., Bishop v. Wood, 426 U.S. 341, 350, 96 S.Ct.
2074, 2080, 48 L.Ed.2d 684 (1976); Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 577-578, 92 S.Ct. 2701, 2709-2710,
33 L.Ed.2d 548 (1972).

-5-
reach of its laws consistent with its constitution, statutes, cases and traditions. If

DeShaney and Collins did not pave the way, they certainly lit the path. In any

event, principle aside, “entitlement” analysis cannot justify the majority’s result.

Property —

The majority is “persuaded Ms. Gonzales’ complaint states a claim that she

possessed a protected property interest in the enforcement of the terms of her

restraining order and that the officers’ arbitrary denial of that entitlement violated

her procedural due process rights.” Majority Op., p. 14. It says that is so because

“where a court order commands the grant of a government benefit or service

through the use of mandatory language and objective predicates limiting the

discretion of official decision makers, a protected property interest exists.” Id.,

pp. 17-18. 5 It emphasizes “that Ms. Gonzales’ entitlement to police

5
The majority tells us, “[o]ur conclusion that the domestic abuse
restraining order, whose enforcement is mandated by statute, creates a
constitutionally protected entitlement, is supported by case law from other
jurisdictions.” Majority Op., p. 30. Indeed, two district court opinions did so
hold. Siddle v. City of Cambridge, Ohio, 761 F.Supp. 503 (S.D. Ohio 1991);
Coffman v. Wilson Police Dep’t, 739 F. Supp. 257 (E.D. Pa. 1990). But Flynn v.
Kornwolf, 83 F.3d 924 (7th Cir. 1996), is quite another matter. In that case,
plaintiffs claimed the court order appointing them to the position of court
attendants bestowed a property right in spite of contrary Wisconsin law. The
district court and the Seventh Circuit concluded otherwise. The court’s use of the
“explicitly mandatory language” in evaluating an administrative order dealing
with court personnel is hardly analogous to this situation, but the result is
enlightening because the court refused to use the court order to extend liability. It
said:
Next, the plaintiffs contend that the March 1993 court order
appointing them court attendants gave them a property interest in

-6-
enforcement of the restraining order against Mr. Gonzales arose when the state

their employment. The order lists the plaintiffs’ names, defines their
authority, and states that the order expires on December 31, 1993.
The plaintiffs argue that the order appointed them for a definite term,
and therefore they had a "legally enforceable expectancy" in their
employment and could be terminated only for cause.
The Wisconsin Supreme Court has held that "[a]bsent civil
service regulations or laws, or a contract or collective bargaining
agreement, a [public] employee is an employee at will and has no
property interest in employment." Vorwald v. School Dist. of River
Falls, 167 Wis. 2d 549, 557, 482 N.W.2d 93, 96, cert. denied, 506
U.S. 941, 113 S.Ct. 378, 121 L.Ed.2d 289 (1992). The plaintiffs
contend that, like civil service regulations or laws, or contracts or
collective bargaining agreements, the court order appointing them
abrogated Wisconsin’s general rule of at-will employment and made
their employment terminable only for cause. They assert that the
order gave them a "legitimate claim of entitlement" to their
employment during its effective dates, and that they therefore had a
property interest in their jobs.
The plaintiffs’ argument fails. Although the court order
appointing them to their positions did contain an expiration date, it
"place[d] no substantive restriction on the county’s [or the appointing
judges’] authority to terminate" the plaintiffs before it expired. See
Warzon, 60 F.3d at 1240. Nowhere does the order state in "explicitly
mandatory language" that the appointing judges have limited
discretion to terminate the plaintiffs’ employment at the judges’ will.
See Fittshur, 31 F.3d at 1406. Absent such language, the mere fact
that the plaintiffs allegedly relied on the order as guaranteeing their
employment until the order expired was not sufficient to create a
property interest that would trigger due process protections.
Because neither Racine County Ordinance § 17-1 et seq. nor
the court order gave the plaintiffs a property interest in their
employment, the defendants were free to terminate them "whenever
and for whatever reasons [they] so desire [d]." Wilcox v. Niagara of
Wisconsin Paper Corp., 965 F.2d 355, 358 (7th Cir. 1992). The
district court properly dismissed the plaintiffs’ complaint for failure
to state a claim.
Id. at 926-27.

-7-
court judge issued the order, which defined Ms. Gonzales’ rights.” Id., p. 14. If

the court order is of such significance, that significance must be measured by its

terms, recognizing that in an adversarial system courts do not create rights but

adjudicate and declare the rights of the litigants under existing law.

The "TEMPORARY RESTRAINING ORDER PURSUANT TO SECTION

14-10-108, C.R.S." (TRO) is directed only to the Respondent, Simon James

Gonzales. Nothing in the decretal portion of the TRO (or any other portion of the

TRO itself) is directed to any individual or entity of the law enforcement

community. A copy of the TRO is attached. Below the date and judge’s

signature appears a caveat: "PLEASE NOTE: IMPORTANT NOTICES FOR

RESTRAINED PARTIES AND LAW ENFORCEMENT OFFICIALS ON

REVERSE." The “Notice To Law Enforcement Officials” contained on the

reverse paraphrases the Colorado Statutes. The permanent order, entered in the

divorce (a separate case) and stipulated to by the parties, extended and slightly

modified the family violence TRO. It allowed Mr. Gonzales parenting time, but

contained no more explicit terms about enforcement. No law enforcement entities

or individuals were parties to the family violence case or the companion divorce

case. The order did, indeed, “define Ms. Gonzales’ rights,” but whatever

substantive rights were declared or established by the court could only be in

relation to her husband, the only other party to the litigation. Those are the

-8-
substantive rights due process must serve. The attendant process for enforcement

of such rights is well known to courts and litigants alike—resort to the court for

orders in aid of execution or to exercise its contempt powers; remedies that have

their own procedural due process requirements. 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.

If Ms. Gonzales has additional rights, which amount to property entitled to

due process protection, they must derive from a legitimate source, such as the

common law or, as she claims, the Colorado statutes. Ms. Gonzales must

demonstrate that her claimed statutory rights are specific, certain and

enforceable. 6 “The requirements of procedural due process apply only to the

deprivation of interests encompassed by the Fourteenth Amendment’s protection

of liberty and property. When protected interests are implicated, the right to some

kind of prior hearing is paramount. But the range of interests protected by

procedural due process is not infinite.” Roth, 408 U.S. at 569-70 (footnote

omitted).

Even if “property interests protected by procedural due process extend well

6
Doyle v. Oklahoma Bar Ass’n, 998 F.2d 1559, 1569 (10th Cir. 1993). See
discussion infra, n.7.
-9-
beyond actual ownership of real estate, chattels, or money” and may take many

forms, the most generous definition is constitutionally confined. Id. at 571-72

(footnote omitted). “[W]hile the Court has eschewed rigid or formalistic

limitations on the protection of procedural due process, it has at the same time

observed certain boundaries. For the words ‘liberty’ and ‘property’ in the Due

Process Clause of the Fourteenth Amendment must be given some meaning.” Id.

at 572. Thus the Court expressly acknowledged the constitutional mooring of,

and limits upon, procedural due process jurisprudence. 7 In doing so, it

emphasized that procedural due process applies to property interests “that a

person has already acquired in specific benefits.” Id. at 576. To obtain a

property interest in a “benefit,” a person clearly must have more than an abstract

need, desire or unilateral expectation of it. Id. at 577. Rather, they must have a

legitimate claim of entitlement to it. Id.

As important as Roth’s recognition that the procedural protection language

of the Constitution is limiting as well as defining, is its holding that such property

interests are not derived from the United States Constitution. “Rather they are

7
Roth’s holding that the Fourteenth Amendment’s procedural protection
applies only to life, liberty and property interests may have been a retreat from a
prior and more expansive reading, which extended procedural protection to
“important interests,” Bell v. Burson, 402 U.S. 539 (1971) and “grievous loss,”
Goldberg v. Kelly, 397 U.S. 254, 263 (1970) (Burger, J. and Black, J., dissenting)
(quoting Joint AntiFascist Refugeee Comm. v. McGrath, 341 U.S. 123, 168
(1951)). Clearly the line defining property lies somewhere south of interests
simply determined, by judicial fiat, to be worthy.
-10-
created and their dimensions are defined by existing rules or understanding that

stem from an independent source such as state law–rules or understandings that

secure certain benefits and that support claims of entitlement to those benefits.”

Id. Lest that tenet be perceived as no more than federal condescension, hollow

and brittle, serious consideration of state law must inform any decision that

concludes a “property interest” has been “created or defined” by state statute. 8

And the “property interest must be specific and presently enforceable.” Doyle,

998 F.2d at 1569.

Colo. Rev. Stat. § 18-6-803.5(3) (2002), upon which Ms. Gonzales relies,

provides (in part):

(3)(a) Whenever a protection order is issued, the protected person

8
In Nichols v. City of Kirksville, 68 F.3d 245 (8th Cir. 1995), Nichols
claimed that a collective bargaining agreement with the city, which permitted
discharge only for cause and established a hearing process, created a protected
property right under Roth. The Court, looking to Missouri’s statutory and case
law, decided that Nichols was an at-will employee in spite of the contrary terms
of the collective bargaining agreement. The rights secured by the collective
bargaining agreement were not enforceable under state law and could not,
therefore, be property. Id. at 248-49; see also Flynn, 83 F.3d 924 (court’s
administrative order did not give employers property rights in their employment in
the face of the state’s “at will” statute). In short, without an enforceable remedy
there is no property right and it is the obligation of the person claiming the right
to establish that it qualifies as property. “No procedural due process claim can
exist until a sufficiently certain property right under state law is first shown.”
Greenbriar Village, L.L.C. v. City of Mountain Brook, 345 F.3d 1258 (11th Cir.),
reh’g denied, 83 Fed. Appx. 393 (2003). “There is no reason, however, to restrict
the ‘uncertainty’ that will preclude existence of a federally protectable property
interest to the uncertainty that inheres in an exercise of discretion. Uncertainty as
to the meaning of applicable law also suffices.” Natale v. Town of Ridgefield,
170 F.3d 258, 263 (2d Cir. 1999) (footnote omitted).
-11-
 shall be provided a copy of such order. A peace officer shall use every
reasonable means to enforce a protection order.
(b) A peace officer shall arrest, or, if an arrest would be impractical
under the circumstances, seek a warrant for the arrest of a restrained
person when the peace officer has information amounting to probable
cause that:
(I) The restrained person has violated or attempted to violate any
provision of the protection order; and
(II) The restrained person has been properly served with a copy of the
protection order or the restrained person has received actual notice of
the existence and substance of such order.
(c) In making the probable cause determination described in paragraph
(b) of this subsection (3), a peace officer shall assume that the
information received from the registry is accurate. A peace officer
shall enforce a valid protection order whether or not there is a record
of the protection order in the registry. 9

It is a shallow exercise to look at a statute in isolation, apply a simplistic

syllogism, conclude the statute confers an entitlement, denominate it property and

9
The statute merely establishes a process–enforcement by every reasonable
means, and to arrest upon information amounting to probable cause that the
restraining order has been violated. Both “reasonable means” and “probable
cause” are phrases distinctly familiar for their evaluative component, the
discretionary element they imply and the deference given to decision makers in
the field. If the restraining order had restricted the husband from calling the
home and he called one time and immediately hung up, would the police be
required to arrest and book him even if they determined he had mistakenly pushed
the wrong automatic dialing button and promptly hung up upon discovering his
error? If the restraining order established a 100-yard separation distance and
investigating officers determined that he inadvertently came within 299 feet and
there were no aggravating facts, would an arrest be nevertheless required? If the
answer can reasonably be “no” the discretionary element is manifest and the
debate becomes one of degree, not of kind. The fact that these officers did
nothing is no more significant than if they had acted, but too slowly or
ineptly–both courses might be negligence; neither is actionable as a “procedural
due process” violation.
-12-
thereby trigger the panoply of due process protections. 10 That method not only fails

to meet Roth’s promise that federal courts will look to state law as the fountainhead

of constitutionally protected property interests, but invites unintended

consequences. 11 For instance, the syllogistic approach would logically and equally

be applicable to Colo. Rev. Stat. § 31-4-112, which provides:

The marshal or chief of police, or any member of the police force shall
suppress all riots, disturbances, and breaches of the peace, shall
apprehend all disorderly persons in the city, and shall pursue and
arrest any person fleeing from justice in any part of the state. He
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

10
This is the lesson of Sandin v. Conner, 515 U.S. 472, 482-84 (1995)
(Ginsberg, J., dissenting).
11
This case imposes liability in a manner the state legislature could not
have intended (discussed infra). And the mischief is now ready for export. The
Colorado statutes contain remarkable language: “[a] protection order issued in
the state of Colorado shall contain a statement that: (a) The order or injunction
shall be accorded full faith and credit and be enforced in every civil or criminal
court of the United States, another state, an Indian tribe, or a United States
territory pursuant to 18 U.S.C. sec. 2265.” Colo. Rev. Stat. § 18-6-803.5(8)
(emphasis added). The language echos that of the Model Code on Domestic and
Family Violence, drafted by the Advisory Committee and approved by the
National Council of Juvenile and Family Court Judges Board of Trustees in 1994.
If the TRO (with its reference to the Colorado statutes–a fact the majority
considers significant) is entitled to full faith and credit along with the judicial
baggage it now carries, the extraterritorial effect may not be universally extolled.
For example, if the beneficiary of a restraining order traveled to Las Vegas,
Nevada, pursued there by the restrained spouse in violation of the order, the Las
Vegas police, with little, if any, knowledge of Colorado law might not proceed
with the vigor the majority demands. In consequence of such ignorance and
indolence they might be sued and the City of Las Vegas as well, on a claim of
indifference (just as the City of Castle Rock finds itself in this case).
-13-
 trial pursuant to law.

(Emphasis added.)

I see no language imposing a duty, or establishing rights amounting to an

entitlement, in Colo. Rev. Stat. § 18-6-803.5 that is not also found in Colo. Rev.

Stat. § 31-4-112. In fact, Colo. Rev. Stat. § 31-4-112 admits to less police

discretion. So the syllogism should yield uniform results across the regulated

spectrum, perhaps uncomfortably. When police officers break up a barroom fray

and all participants promise to behave, if no one was injured the officers might

simply dispatch them to their respective homes to sleep it off. Most would agree

that prudent husbandry of police resources, good community relations, and a dollop

of common sense would not always require the considerable inconvenience and

expense occasioned by arrest, transportation, and booking when a citation or a

warning would suffice–in spite of clear statutory direction to the contrary.

Apparently, the police can now be hauled into federal court if, with the benefit of

hindsight, it appears their judgment was flawed and one of the miscreants sent

home to ruminate decided instead to resume hostilities. Under the majority

decision, the victim would have an “entitlement to enforcement” of the statute

(apprehension of the disorderly) because the statute contains “objective predicates”

which “mandate the outcome” and “limit discretion.” Majority Op., pp. 17-18.

In like vein, Colo. Rev. Stat. § 8-4-123 provides:

(1) The general assembly hereby finds, determines, and declares that
-14-
 many businesses, such as nursing homes or building management
companies, either desire or are required by law to have staff on
premises at all times. As part of the compensation for such employees,
many employers offer housing to employees. However, once that
employment relationship ceases, it may become undesirable for such
employees to occupy the premises for many reasons, including the
safety of the employer’s patients, clients, customers, or tenants.

****

(2)(a) . . . A termination of a license to occupy the premises shall be
effective three days after the service of written notice of termination of
a license to occupy the premises.

****

(3) If an employee fails to vacate the premises within three days after
the receipt of the notice of termination of the license to occupy the
premises, the employer may contact the county sheriff to have the
employee removed from the premises. The county sheriff shall
remove the employee and any personal property of the employee from
the premises upon the showing to the county sheriff of the notice of
termination of the license to occupy the premises and agreement
pursuant to which the license to occupy the premises was granted.

(Emphasis added.) The statute clearly states a purpose, at least in part, to protect

patients. The only predicate for the sheriff’s required act (removal) is seeing the

notice of termination and the underlying agreement. Does the mandatory statutory

language coupled with a limitation on discretion create an entitlement to

enforcement, and ipso facto a property right, for a resident injured by a holdover

staffer whenever the sheriff doesn’t act, acts ineptly or too slowly? When, as the

statute says, the sheriff is shown the notice and the agreement, does that end the

debate, or would the sheriff be permitted additional inquiry? What kind of hearing

-15-
might be required and who could participate? And what are the collateral effects?

The majority emphasizes that the TRO triggered the requirements of

Colo. Rev. Stat. § 18-6-803.5(3). But the fact that a judge made a threshold

determination triggering the statutory provisions does not alter the analysis. The

state court did not order anyone in the law enforcement community to do anything;

it simply paraphrased the statutes in a form notice on the back of the order. Even if

it had, independently and specifically, ordered enforcement the only remedy for a

breach would be contempt of court. It could not create a private cause of action.

The issue is not determined by the court order, but by statute and its resolution

bottoms in legislative intent. Even if we presume the Colorado Legislature intended

for the law enforcement community to heed its command, that does not imply a

purpose to create a private cause of action or other entitlement amounting to a

property right. See infra, n.15.

Qualified immunity has now been substantially eroded, if not eliminated, in

all cases based upon mandatory and directive language contained in a statute. The

law enforcement community is now on notice–“shall” means “shall”–and we shall

brook no nonsense. Almost any such case, cleverly pled, will survive a motion to

dismiss and quite possibly a motion for summary judgment. With the loss of

immunity from liability goes the loss of immunity from suit. The rippling effects of

what we have done here are obscured by narrow focus–the need for a global

-16-
approach to the issue of legislative purpose is evident. 12

12
One might wonder if rights and entitlements could be implied from other
Colorado Statutes. For instance, Colo. Rev. Stat. § 16-8-115.5 deals with the
revocation of a conditional release of mentally ill criminal defendants, and
provides in relevant part:
(3) Whenever the superintendent of the Colorado mental health
institute at Pueblo has probable cause to believe that such defendant
has become ineligible to remain on conditional release as defined in
section 16-8-102(4.5), said superintendent shall notify the district
attorney for the judicial district where the defendant was committed.
The superintendent or the district attorney shall apply for a
warrant to be directed to the sheriff or a peace officer in the
jurisdiction in which the defendant resides or may be found
commanding such sheriff or peace officer to take custody of the
defendant.

****

(4) The sheriff or peace officer to whom the warrant is directed
pursuant to subsection (3) of this section shall take all necessary
legal action to take custody of the defendant. A sheriff shall deliver
the defendant immediately to the Colorado mental health
institute at Pueblo which shall provide care and security for the
defendant.

(Emphasis added.) Would the superintendent and the district attorney be liable,
under § 1983, to someone injured by a mentally ill defendant if, having probable
cause, they did not apply for a warrant, or did it too slowly? And would the
sheriff be liable under § 1983 if deputies failed or hesitated in taking all legal
action necessary to take the defendant into custody or if they mistakenly took the
defendant to a facility other than the Colorado mental health institute in Pueblo?

How far might this reasoning take us? Colo. Rev. Stat. § 12-47-301(4)(a)
requires that “[a]ll sheriffs and police officers shall see to it that every person
selling alcohol beverages within their jurisdiction has procured a license to do
so.” (Emphasis added.) Would that provision make state actors liable to the
victim of a drunk (or underage) driver who obtained alcohol from an unlicensed
vendor?
-17-
 We must look to the entire fabric of Colorado law to determine if specific

enforceable rights, qualifying as property, were created by enactment of the

statute. 13 If we are to determine whether the Colorado Legislature intended to

confer a property right to the holder of a restraining order, a logical starting point is

to examine its pronouncements with regard to public liability under state tort law.

The Colorado Governmental Immunity Act (the Act), enacted in 1972 in response to

the Colorado Supreme Court’s abrogation of sovereign immunity in Evans v. Board

of County Comm’rs of El Paso County, 482 P.2d 968 (Colo. 1971), is distinct and

significant, not only because it comprehensively defines and details the

circumstances of governmental immunity, but because it explicitly limits those

public duties which may be a basis of governmental liability.

The purpose of the Act is to include,

within one article all the circumstances under which the state, any of its
political subdivisions, or the public employees of such public entities
may be liable in actions which lie in tort or could lie in tort regardless
of whether that may be the type of action or the form of relief chosen.”

Colo. Rev. Stat. § 24-10-102 (emphasis added). Thus, in 1972 the Colorado General

Assembly created, of whole cloth, “a statutory scheme whereby claimants with

rights to particular causes of action can seek recovery.” Colorado State Claims Bd.

of Div. of Risk Mgmt. v. DeFoor, 824 P.2d 783, 792 (Colo.), cert. denied, 506 U.S.

13
See Doyle, 998 F.2d at 1569; Nichols, infra, n.6.
-18-
981 (1992). 14 In his concurring opinion, Justice Rovira quoted the Act’s language,

cited above, and concluded a “claimants’ right to pursue an action against the state

is derived solely from the statutory exceptions listed in the Indemnity Act.” Id. at

795. Two years later, the Colorado Court of Appeals said the Act “precludes the

creation of new duties for public entities or employees, [but] it does not seek to

limit prior existing common law duties.” Gallegos v. City & County of Denver, 894

P.2d 14, 19 (Colo. App. 1994). The Act contains not even a hint that a “duty to

arrest” could be the basis of an actionable wrong against the instrumentalities of

government. 15

I recognize that constitutional claims find their source separate from the

common law principles underpinning tort law and do not suggest the Colorado

Governmental Immunity Act controls Ms. Gonzales’ claim. See Ruegsegger v.

Jefferson County Bd. of County Comm’rs, 197 F. Supp. 2d 1247, 1265-66 (D. Colo.

14
In DeFoor, the Colorado Supreme Court, en banc, upheld the
constitutionality of the Act regarding its cap on damages. In so doing, it
reiterated the history behind the Act. 824 P.2d 783. As an adjunct, the court held
that summary judgment was improvidently granted on claimants’ § 1983 due
process claim. However, in that case there was no question that the claimed
property right was recognized both before and after the passage of the Act. Id. at
789.
15
In fact, Colo. Rev. Stat. § 24-10-106(2) & (3) precludes an interpretation
of the Act that results in “a waiver of sovereign immunity where the injury arises
from the act, or failure to act, of a public employee [or public entity] where the
act is the type of act for which the public employee would be or heretofore has
been personally immune from liability.” However, the Act does allow a cause of
action in those instances where the plaintiff alleges willful and wanton conduct on
the part of the state actor.
-19-
1992). However, the fact of governmental immunity from state law suits such as

this, the canvas upon which Colo. Rev. Stat. § 18-6-8803.5(3)(c) was painted, is a

powerful instruction as to legislative intent when enacting the statute.

If we presume the legislature is aware of the state of the law when it acts or

refrains from action, including interpretive decisions, then an exploration of the

state of the law from 1994 through the date of this incident in 1999 should be

revealing. Indeed it is. First, the statutory language “shall arrest . . . or seek a

warrant,” “shall use every reasonable means to enforce,” “arrested person shall be

removed . . . and shall be taken . . . for booking” could be highly directive without

being an actionable wrong against government entities and actors who failed to heed

its directives. 16 That is implicit in the legislature’s decision not to include such

liability in the Act. Second, the Act is constitutional. DeFoor, 824 P.2d 783.

Third, in 1989, at least two United States Supreme Court cases, DeShaney and

Collins, strongly implied that § 1983 liability would not be the handmaiden of

statutes directing government actors as part of a remedy for social ills, be it the

16
The pertinent inquiry is not whether the legislature expected the police to
follow statutory directives, but if it intended to create a cause of action for abuse
victims against communities and law enforcement officers. And if a remedy must
necessarily be implied as part of a directive statute, the remedy would have to be
administrative (discipline) or political because of the Governmental Immunity
Act. Gallegos, 894 P.2d at 14. In that regard, I fail to see how the “legislative
history” relied upon by the majority informs the debate. The testimony of
interested parties at a hearing in one house of a bicameral assembly hardly
telegraphs legislative intent. And second- or third-hand newspaper accounts are
even less revealing.
-20-
abuse of children or of spouses. Fourth, well before this incident, the Colorado

Supreme Court uttered a thoughtful and comprehensive opinion closely tracking

DeShaney and precluding § 1983 liability in cases claiming substantive due process

rights. Henderson v. Gunther, 931 P.2d 1150 (Colo. 1997).

The Colorado legislature’s inclusion of the word “shall” simply cannot

overcome the pervasive understanding at the time the statute was enacted that law

enforcement is not liable for failing to protect citizens from the deliberate actions of

third parties, except in very distinct circumstances. Id. And, regardless of its

intent, the legislature could not create an actionable right against the police by the

enactment of this statute without also amending the Act. 17 The claimed entitlement

is not property; it comes so packaged in spite of legislative intent, not because of it.

This result is the product of judicial choice.

Against this backdrop, Sandin is instructive. 515 U.S. at 482-84. Sandin held

a prison regulation primarily designed to guide correctional officials in the

administration of a prison did not confer a liberty interest on inmates, but attached

procedural protections “of quite a different nature.” Id. at 482. The Court

eschewed the methodology employed by the majority here, finding it “shift[s] the

focus of the liberty interest inquiry to one based on the language of a particular

regulation, and not the nature of the deprivation.” Id. The Court identified at least

two “undesirable effects” resulting from sole reliance on the language of a

17
See infra, n.12.
-21-
particular regulation or statute. First, it creates disincentives for the codification of

“procedures in the interest of uniform treatment,” even though the regulations may

enhance front-line performance in light of competing interests that must be

balanced, i.e., the safety of the staff and inmate population. Id. Second, to avoid

the creation of a protected interest, “[s]tates may . . . [have] scarcely any

regulations, or . . . [confer] standardless discretion on correctional personnel.” Id.

In addition, the Court noted “the Hewitt approach has led to the involvement of

federal courts in the day-to-day management of prisons, often squandering judicial

resources with little offsetting benefit to anyone.” Id.; Hewitt v. Helms, 459 U.S.

460 (1983). The Court recognized the dissonance of such outcome “to the view . . .

that federal courts ought to afford appropriate deference and flexibility to state

officials trying to manage a volatile environment.” Sandin, 515 U.S. at 482

(citations omitted).

The Sandin rationale aptly applies to this case. 18 Undoubtedly, the Colorado

legislature wished to address the malevolent effects of domestic violence and

encourage uniform enforcement when it passed and amended Colo. Rev. Stat. § 18-

6-803.5. This decision frustrates those purposes and yields a practical anomaly;

states which actively promote police involvement in combating domestic violence by

18
Sandin expressly abandoned the syllogistic approach only for prisoner
liberty interest claims, leaving the issue open in other cases, much like DeShaney
left open procedural due process issues. But if principle is to account for
anything, Sandin demands our attention.
-22-
employing highly directive language, are subject to § 1983 litigation for their

efforts, but states choosing a tepid approach are immune. Id. at 489; cf. Olim v.

Wakinekona, 461 U.S. 238, 250 (1983) (when an administrator has unfettered

discretion in making prison transfer there is no liberty interest for the due process

clause to protect). Should the majority’s approach go national, states may adjust

their statutes (not only family violence, but others as well) to avoid federal litigation

and potential § 1983 liability, thereby leaving the statutes void of meaningful

guidance and subject to uneven application. Additionally, this holding invites

lawyers and federal judges to interfere with state efforts at remediation. Sandin,

515 U.S. at 482. Finally, it fails to recognize and internalize systemic costs. This

decision will encourage others to scour state statutes and regulations in search of

mandatory language on which to base their entitlement claims. Id. at 481. My

efforts in identifying a few statutory candidates merely scratch the surface and we

are naive in ignoring the potential problem.

The inability of Ms. Gonzales to state a substantive due process claim does

not deprive her of state tort remedies, whatever they may be. 19 DeShaney, 489 U.S.

19
See Macaluso v. Knowles, 775 A.2d 108, 116 (N.J. Super. App. Div.2001)
(no special relationship exception to Tort Claims Act in New Jersey), overruling
Campbell v. Campbell, 682 A.2d 272 (N.J. Super. L. Div. 1996) (cited by the
majority for the proposition that state law analysis admits police officer liability
for failure to enforce domestic violence restraining order); Nearing v. Weaver,
670 P.2d 137, 143 n.8 (Or. 1983) (duty to arrest domestic order violator not
discretionary despite requirement that arrest be supported by probable cause. The
court noted, "[i]t would, of course, be desirable if legislatures were to indicate
their intention to allow or to withhold the right of those injured by violations of
-23-
189; Henderson, 931.P.2d 1150. The artifice of federalizing state tort law under the

rubric of procedural due process is unsettling.

statutes passed for their benefit to recover damages from the violator, if not in
each individual statute, than by enacting some general formula . . . .” (internal
citations omitted)). The Colorado legislature did so, to no avail.

In Campbell, the Superior Court of New Jersey, Law Division, Civil Part,
Union County, said:
A second reason why this immunity for failure to make an arrest is
inapplicable is that the restraining order established a "special
relationship" between the Plainfield Police and plaintiff, which
creates an exception to the immunity statute. The court explained the
special relationship exception in Lee v. Doe, 232 N.J.Super. 569, 557
A.2d 1045 (App.Div.1989).
682 A.2d at 275.

In Macaluso, the Superior Court of New Jersey, Appellate Division, said,
“[i]t is noteworthy that in Lee we upheld the public entity’s immunity. Lee, supra,
232 N.J.Super. at 581, 557 A.2d 1045. The assertion to the contrary in Campbell
v. Campbell, 294 N.J.Super. 18, 25, 682 A.2d 272 (Law Div.1996), is clearly
erroneous and should be disregarded.” 775 A.2d at 110-11.

The state cases cited by the majority, Macaluso and Nearing (and, for what
it is worth, Campbell), address important question of tort liability and immunity
therefrom. Those issues are properly left to the states.
-24-
No. 01-1053 - Gonzales v. City of Castle Rock

HARTZ, Circuit Judge, dissenting, with whom TACHA, Chief Circuit Judge, and
KELLY, Circuit Judge, join:

The other dissents (with which I agree) have covered the issues well, so I can

be brief.

First, Judge O’Brien has demonstrated that to construe the Colorado statute as

mandatory produces results that could not have been intended by the legislature.

The better reading of the statute is that it is directory, a hortatory expression by the

legislature. Professor Kenneth Culp Davis examined “full enforcement”

statutes—statutes commanding that law enforcement officers “shall” enforce the

criminal law—in his classic book Police Discretion. He concluded that such laws

permit the exercise of police discretion regarding how much, and even whether, to

enforce particular criminal statutes. He wrote:

[A]lthough the case for literal interpretation of the full enforcement
legislation is both obvious and strong, I believe the case for non-literal
interpretation, though far from obvious, is unanswerable, even though it
is based on a somewhat sophisticated analysis that may have little
appeal to those lawyers and judges who make quick decisions without
digging below the surface.

Kenneth C. Davis, Police Discretion 82 (1975). We should be hesitant to read

“literally” those similar laws that appear to compel police officers to arrest all

violators of particular statutes.

Second, even assuming that the statute created a property interest “owned” by

Ms. Gonzales or her children (I agree with Judge Kelly that the order itself could
not create a property interest in enforcement of the order by law enforcement

officers because public officials were not parties to the proceeding for issuance of

the order), I see no violation of procedural due process in this case. The purpose of

“procedures” required by procedural due process is to improve how neutral

decisionmakers are informed before making a decision. The procedures are to

ensure, to the extent appropriate in the circumstances, that the decisionmaker has

relevant information for the tasks of finding facts and determining what action is

proper in light of those facts. Here, the decisionmaker, a law enforcement officer,

needs information to decide (1) whether there is probable cause to believe that the

subject of a protective order has violated the order and (2) if so, what is the best

response to the violation (an arrest, a warning, or whatever). Given the limited time

in which the officer must act, an adversary evidentiary hearing—the gold standard

of procedural due process—is not feasible.

In my view, all that procedural due process could require in this context is an

opportunity (1) to present evidence of a violation of the order and (2) to argue why

an arrest is the proper response to the violation. Ms. Gonzales was given that

opportunity. The tragedy is that the decisionmakers did not heed her pleas. But no

amount of procedural due process can guarantee that a decisionmaker will make the

right decision. Contrary to the analysis of the majority opinion, which sets forth a

three-step process for how officers must decide whether to arrest someone,

procedural due process is not concerned with how neutral decisionmakers “process”
-2-
information within their own minds. As Judge McConnell explains, errors by

decisionmakers raise questions only of substantive due process.

-3-
-4-