Town of Castle Rock v. Gonzales

dissenting.

The issue presented to us is much narrower than is suggested by the far-ranging arguments of the parties and their amici. Neither the tragic facts of the case, nor the importance of according proper deference to law enforcement professionals, should divert our attention from that issue. That issue is whether the restraining order entered by the Colorado trial court on June 4,1999, created a “property” interest that is protected from arbitrary deprivation by the Due Process Clause of the Fourteenth Amendment.

It is perfectly clear, on the one hand, that neither the Federal Constitution itself, nor any federal statute, granted respondent or her children any individual entitlement to police protection. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189 (1989). Nor, I assume, does any Colorado statute create any such entitlement for the ordinary citizen. On the other hand, it is equally clear that federal law imposes no impediment to the creation of such an entitlement by Colorado law. Respondent certainly could have entered into a contract with a private security firm, obligating the firm to provide protection to respondent’s family; respondent’s interest in such a contract would unquestionably constitute “property” within the meaning of the Due Process Clause. If a Colorado statute enacted for her benefit, or a valid order entered by a Colorado judge, created the functional equivalent of such a private contract by granting respondent an entitlement to mandatory individual protection by the local police force, that state-created right would also qualify as “property” entitled to constitutional protection.

I do not understand the majority to rule out the foregoing propositions, although it does express doubts. See ante, at ‘ 766 (“[I]t is by no means clear that an individual entitlement to enforcement of a restraining order could constitute a *774‘property5 interest”). Moreover, the majority does not contest, see ante, at 768, that if respondent did have a cognizable property interest in this ease, the deprivation of that interest violated due process. As the Court notes, respondent has alleged that she presented the police with a copy of the restraining order issued by the Colorado court and requested that it be enforced. Ante, at 751, n. 1. In response, she contends, the officers effectively ignored her. If these allegations are true, a federal statute, Rev. Stat. §1979, 42 U. S. C. § 1983, provides her with a remedy against the petitioner, even if Colorado law does not. See Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532 (1985).

The central question in this case is therefore whether, as a matter of Colorado law, respondent had a right to police assistance comparable to the right she would have possessed to any other service the government or a private firm might have undertaken to provide. See Board of Regents of State Colleges v. Roth, 408 U. S. 564, 577 (1972) (“Property interests, of course, 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 souree such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits”).

There was a time when our tradition of judicial restraint would have led this Court to defer to the judgment of more qualified tribunals in seeking the correct answer to that difficult question of Colorado law. Unfortunately, although the majority properly identifies the “central state-law question” in this case as “whether Colorado law gave respondent a right to police enforcement of the restraining order,” ante, at 758, it has chosen to ignore our settled practice by providing its own answer to that question. Before identifying the flaws in the Court’s ruling on the merits, I shall briefly comment on our past practice.

*775I

The majority’s decision to plunge ahead with its own analysis of Colorado law imprudently departs from this Court’s longstanding policy of paying “deference [to] the views of a federal court as to the law of a State within its jurisdiction.” Phillips v. Washington Legal Foundation, 524 U. S. 156, 167 (1998); see also Bishop v. Wood, 426 U. S. 341, 346, and n. 10 (1976) (collecting cases). This policy is not only efficient, but it reflects “our belief that district courts and courts of appeals are better schooled in and more able to interpret the laws of their respective States.” Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 500-501 (1985); Hillsborough v. Cromwell, 326 U. S. 620, 629-630 (1946) (endorsing “great deference to the views of the judges of those courts ‘who are familiar with the intricacies and trends of local law and practice’”). Accordingly, we have declined to show deference only in rare eases in which the court of appeals’ resolution of state law was “clearly wrong” or otherwise seriously deficient. See Brockett, 472 U. S., at 500, n. 9; accord, Leavitt v. Jane L., 518 U. S. 137, 145 (1996) (per curiam).

Unfortunately, the Court does not even attempt to demonstrate that the six-judge en banc majority was “clearly wrong” in its interpretation of Colorado’s domestic restraining order statute; nor could such a showing be made. For it is certainly plausible to construe “shall use every reasonable means to enforce a restraining order” and “shall arrest,” Colo. Rev. Stat. §§ 18-6-803.5(3)(a)-(b) (Lexis 1999) (emphasis added), as conveying mandatory directives to the police, particularly when the same statute, at other times, tellingly employs different language that suggests police discretion, see § 18-6-803.5(6)(a) (“A peace officer is authorized to use every reasonable means to protect... ”; “Such peace officer may transport ...” (emphasis added)).1 Moreover, unlike *776today’s decision, the Court of Appeals was attentive to the legislative history of the statute, focusing on a statement by the statute’s sponsor in the Colorado House, ante, at 759, n. 6 (quoting statement), which it took to “emphasiz[e] the importance of the police’s mandatory enforcement of domestic restraining orders.” 366 F. 3d 1093, 1107 (CA10 2004) (en banc). Far from overlooking the traditional presumption of police discretion, then, the Court of Appeals’ diligent analysis of the statute’s text, purpose, and history led it to conclude that the Colorado Legislature intended precisely to abrogate that presumption in the specific context of domestic restraining orders. That conclusion is eminently reasonable and, I believe, worthy of our deference.2

r — i

Even if the Court had good reason to doubt the Court of Appeals’ determination of state law, it would, in my judgment, be a far wiser course to certify the question to the *777Colorado Supreme Court.3 Powerful considerations support certification in this case. First, principles of federalism and comity favor giving a State’s high court the opportunity to answer important questions of state law, particularly when those questions implicate uniquely local matters such as law enforcement and might well require the weighing of policy considerations for their correct resolution.4 See Elkins v. Moreno, 435 U. S. 647, 662, n. 16 (1978) (sua sponte certifying a question of state law because it is “one in which state governments have the highest interest”); cf. Arizonans for Official English v. Arizona, 520 U. S. 43, 77 (1997) (“Through certification of novel or unsettled questions of state law for authoritative answers by a State’s highest court, a federal court may save ‘time, energy, and resources, and hel[p] build a cooperative judicial federalism’” (brackets in original)).6 *778Second, by certifying a potentially dispositive state-law issue, the Court would adhere to its wise policy of avoiding the unnecessary adjudication of difficult questions of constitutional law. See Elkins, 435 U. S., at 661-662 (citing constitutional avoidance as a factor supporting certification). Third, certification would promote both judicial economy and fairness to the parties. After all, the Colorado Supreme Court is the ultimate authority on the meaning of Colorado law, and if in later litigation it should disagree with this Court’s provisional state-law holding, our efforts will have been wasted and respondent will have been deprived of the opportunity to have her claims heard under the authoritative view of Colorado law. The unique facts of this case only serve to emphasize the importance of employing a procedure that will provide the correct answer to the central question of state law. See Brockett, 472 U. S., at 510 (O’Connor, J., concurring) (“Speculation by a federal court about the meaning of a state statute in the absence of a prior state court adjudication is particularly gratuitous when, as is the case here, the state courts stand willing to address questions of state law on certification from a federal court”).6

*779I — I HH 1 — I

Three flaws in the Court’s rather superficial analysis of the merits highlight the unwisdom of its decision to answer the state-law question de novo. First, the Court places undue weight on the various statutes throughout the country that seemingly mandate police enforcement but are generally understood to preserve police discretion. As a result, the Court gives short shrift to the unique case of “mandatory arrest” statutes in the domestic violence context; States passed a wave of these statutes in the 1980’s and 1990’s with the unmistakable goal of eliminating police discretion in this area. Second, the Court’s formalistic analysis fails to take seriously the fact that the Colorado statute at issue in this case was enacted for the benefit of the narrow class of persons who are beneficiaries of domestic restraining orders, and that the order at issue in this case was specifically intended to provide protection to respondent and her children. Finally, the Court is simply wrong to assert that a citizen’s interest in the government’s commitment to provide police enforcement in certain defined circumstances does not resemble any “traditional conception of property,” ante, at 766; in fact, a citizen’s property interest in such a commitment is just as concrete and worthy of protection as her interest in any other important service the government or a private firm has undertaken to provide.

In 1994, the Colorado General Assembly passed omnibus legislation targeting domestic violence. The part of the legislation at issue in this case mandates enforcement of a domestic restraining order upon probable cause of a violation, § 18-6-803.5(3), while another part directs that police officers “shall, without undue delay, arrest” a suspect upon “probable cause to believe that a crime or offense of domestic violence *780has been committed,” § 18-6-803.6(l).7 In adopting this legislation, the Colorado General Assembly joined a nationwide movement of States that took aim at the crisis of police un-derenforcement in the domestic violence sphere by implementing “mandatory arrest” statutes. The crisis of under-enforcement had various causes, not least of which was the perception by police departments and police officers that domestic violence was a private, “family” matter and that arrest was to be used as a last resort. Sack, Battered Women and the State: The Struggle for the Future of Domestic Violence Policy, 2004 Wis. L. Rev. 1657, 1662-1663 (hereinafter Sack); id., at 1663 (“Because these cases were considered noncriminal, police assigned domestic violence calls low priority and often did not respond to them for several hours or ignored them altogether”). In response to these realities, and emboldened by a well-known 1984 experiment by the Minneapolis police department,8 “many states enacted man*781datory arrest statutes under which a police officer must arrest an abuser when the officer has probable cause to believe that a domestic assault has occurred or that a protection order has been violated.” Developments in the Law: Legal Responses to Domestic Violence, 106 Harv. L. Rev. 1498,1537 (1993). The purpose of these statutes was precisely to “counter police resistance to arrests in domestic violence cases by removing or restricting police officer discretion; mandatory arrest policies would increase police response and reduce batterer recidivism.” Sack 1670.

Thus, when Colorado passed its statute in 1994, it joined the ranks of 15 States that mandated arrest for domestic violence offenses and 19 States that mandated arrest for domestic restraining order violations. See Developments in the Law, 106 Harv. L. Rev., at 1537, n. 68 (noting statutes in 1993); N. Miller, Institute for Law and Justice, A Law Enforcement and Prosecution Perspective 7, and n. 74,8, and n. 90 (2003), http://www.ilj.org/dv/dvvawa2000.htm (as visited June 24,2005, and available in Clerk of Court’s case file) (listing Colorado among the many States that currently have mandatory arrest statutes).9

Given the specific purpose of these statutes, there can be no doubt that the Colorado Legislature used the term “shall” advisedly in its domestic restraining order statute. While *782“shall” is probably best read to mean “may” in other Colorado statutes that seemingly mandate enforcement, cf. Colo. Rev. Stat. § 31-4-112 (Lexis 2004) (police “shall suppress all riots, disturbances, and breaches of the peace, shall apprehend all disorderly persons in the city ...” (emphasis added)), it is clear that the elimination of police discretion was integral to Colorado and its fellow States’ solution to the problem of underenforcement in domestic violence cases.10 Since the text of Colorado’s statute perfectly captures this legislative purpose, it is hard to imagine what the Court has in mind when it insists on “some stronger indication from the Colorado Legislature.” Ante, at 761.

While Colorado case law does not speak to the question, it is instructive that other state courts interpreting their analogous statutes have not only held that they eliminate the police’s traditional discretion to refuse enforcement, but have *783also recognized that they create rights enforceable against the police under state law. For example, in Nearing v. Weaver, 295 Ore. 702, 670 P. 2d 137 (1983) (en banc), the court held that although the common law of negligence did not support a suit against the police for failing to enforce a domestic restraining order, the statute’s mandatory directive formed the basis for the suit because it was “a specific duty imposed by statute for the benefit of individuals previously identified by judicial order.” Id., at 707, 670 P. 2d, at 140.11 In Matthews v. Pickett County, 996 S. W. 2d 162 (Tenn. 1999) (on certification to the Sixth Circuit), the court confirmed that the statute mandated arrest for violations of domestic restraining orders, and it held that the “public duty” defense to a negligence action was unavailable to the defendant police officers because the restraining order had created a “special duty” to protect the plaintiff. Id., at 165. See also Campbell v. Campbell, 294 N. J. Super. 18, 24, 682 A. 2d 272, 274 (1996) (domestic restraining order statute “allows no discretion” with regard to arrest; “[t]he duty imposed on the police officer is ministerial”); Donaldson v. Seattle, 65 Wash. App. 661, 670, 831 P. 2d 1098, 1103 (1992) (“Generally, where an officer has legal grounds to make an arrest he has considerable discretion to do so. In regard to domestic violence, the rule is the reverse. If the officer has the legal grounds to arrest pursuant to the statute, he has a mandatory duty to make the arrest”). To what extent the Colorado Supreme Court would agree with the views of these courts is, of course, an open question, but it does seem rather brazen for the majority to assume that the Colorado Supreme Court *784would repudiate this consistent line of persuasive authority from other States.

Indeed, the Court fails to come to terms with the wave of domestic violence statutes that provides the crucial context for understanding Colorado’s law. The Court concedes that, “in the specific context of domestic violence, mandatory-arrest Statutes have been found in some States to be more mandatory than traditional mandatory-arrest statutes,” ante, at 762, but that is a serious understatement. The difference is not a matter of degree, but of kind. Before this wave of statutes, the legal rule was one of discretion; as the Court shows, the “traditional,” general mandatory arrest statutes have always been understood to be “mandatory” in name only, see ante, at 760. The innovation of the domestic violence statutes was to make police enforcement, not “more mandatory,” but simply mandatory. If, as the Court says, the existence of a protected “entitlement” turns on whether “government officials may grant or deny it in their discretion,” ante, at 756, the new mandatory statutes undeniably create an entitlement to police enforcement of restraining orders.

Perhaps recognizing this point, the Court glosses over the dispositive question — whether the police enjoyed discretion to deny enforcement — and focuses on a different question— which “precise means of enforcement,” ante, at 763, were called for in this case. But that question is a red herring. The statute directs that, upon probable cause of a violation, “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.” Colo. Rev. Stat. § 18-6-803.5(3)(b) (Lexis 1999). Regardless of whether the enforcement called for in this case was arrest or the seeking of an arrest warrant (the answer to that question probably changed over the course of the night as the respondent gave the police more information about the husband’s whereabouts), the crucial point is that, under the statute, the police were required to provide enforcement; they lacked the discretion to do noth*785ing.12 The Court suggests that the fact that “enforcement” may encompass different acts infects any entitlement to enforcement with “indeterminacy.” Ante, at 763. But this objection is also unfounded. Our cases have never required the object of an entitlement to be some mechanistic, unitary thing. Suppose a State entitled every citizen whose income was under a certain level to receive health care at a state clinic. The provision of health care is not a unitary thing— doctors and administrators must decide what tests are called for and what procedures are required, and these decisions often involve difficult applications of judgment. But it could not credibly be said that a citizen lacks an entitlement to health care simply because the content of that entitlement is not the same in every given situation. Similarly, the enforcement of a restraining order is not some amorphous, indeterminate thing. Under the statute, if the police have probable cause that a violation has occurred, enforcement consists of either making an immediate arrest or seeking a warrant and then executing an arrest — traditional, well-defined tasks that law enforcement officers perform every day.13

*786The Court similarly errs in speculating that the Colorado Legislature may have mandated police enforcement of restraining orders for “various legitimate ends other than the conferral of a benefit on a specific class of people,” ante, at 765; see also ibid, (noting that the “serving of public rather than private ends is the normal course of the criminal law”). While the Court’s concern would have some bite were we *787faced with a broadly drawn statute directing, for example, that the police “shall suppress all riots,” there is little doubt that the statute at issue in this case conferred a benefit “on a specific class of people” — namely, recipients of domestic restraining orders. Here, respondent applied for and was granted a restraining order from a Colorado trial judge, who found a risk of “irreparable injury” and found that “physical or emotional harm” would result if the husband were not excluded from the family home. 366 F. 3d, at 1143 (appendix to dissent of O’Brien, J.). As noted earlier, the restraining order required that the husband not “molest or disturb” the peace of respondent and the daughters, and it ordered (with limited exceptions) that the husband stay at least 100 yards away from the family home. Ibid,.14 It also directed the police to “use every reasonable means to enforce this . . . order,” and to arrest or seek a warrant upon probable cause of a violation. Id., at 1144. Under the terms of the statute, when the order issued, respondent and her daughters became “ ‘protected person[s].’ ” § 18-6-803.5(1.5)(a) (“ ‘Protected person’ means the person or persons identified in the restraining order as the person or persons for whose benefit the restraining order was issued”).15 The statute criminalized the knowing violation of the restraining order, §18-6-803.5(1), and, as already discussed, the statute (as *788well as the order itself) mandated police enforcement, §§ 18-6-803.5(3)(aMb).16

Because the statute's guarantee of police enforcement is triggered by, and operates only in reference to, a judge’s granting of a restraining order in favor of an identified “ ‘protected person,’ ” there is simply no room to suggest that such a person has received merely an “ ‘incidental’ ” or “ ‘indirect’ ” benefit, see ante, at 766-767. As one state court put it, domestic restraining order statutes “identify with precision when, to whom, and under what circumstances police protection must be afforded. The legislative purpose in requiring the police to enforce individual restraining orders clearly is to protect the named persons for whose protection the order is issued, not to protect the community at large by general law enforcement activity.” Nearing, 295 Ore., at 712, 670 P. 2d, at 143.17 Not only does the Court’s doubt about *789whether Colorado’s statute created an entitlement in a protected person fail to take seriously the purpose and nature of restraining orders, but it fails to account for the decisions by other state courts, see supra, at 782-783, that recognize that such statutes and restraining orders create individual rights to police action.

IV

Given that Colorado law has quite clearly eliminated the police’s discretion to deny enforcement, respondent is correct that she had much more than a “unilateral expectation” that the restraining order would be enforced; rather, she had a “legitimate claim of entitlement” to enforcement. Roth, 408 U. S., at 577. Recognizing respondent’s property interest in the enforcement of her restraining order is fully consistent with our precedent. This Court has “made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money.” Id., at 571-572. The “types of interests protected as ‘property’ are varied and, as often as not, intangible, relating ‘to the whole domain of social and economic fact.’” Logan v. Zimmerman Brush Co., 455 U. S. 422, 430 (1982); see also Perry v. Sindermann, 408 U. S. 593, 601 (1972) (“ ‘[Property’ interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, ‘property’ denotes a broad range of interests that are secured by ‘existing rules or understandings’ ”). Thus, our cases have found “property” interests in a number of state-conferred benefits and services, including welfare benefits, Goldberg v. Kelly, 397 U. S. 254 (1970); disability benefits, Mathews v. Eldridge, 424 U. S. 319 (1976); public education, Goss v. Lopez, 419 U. S. 565 (1975); utility services, Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1 (1978); government employment, Cleveland Bd. of Ed. v. *790Loudermill, 470 U. S. 532 (1985), as well as in other entitlements that defy easy categorization, see, e. g., Bell v. Burson, 402 U. S. 535 (1971) (due process requires fair procedures before a driver’s license may be revoked pending the adjudication of an accident claim); Logan, 455 U. S., at 431 (due process prohibits the arbitrary denial of a person’s interest in adjudicating a claim before a state commission).

Police enforcement of a restraining order is a government service that is no less concrete and no less valuable than other government services, such as education.18 The relative novelty of recognizing this type of property interest is explained by the relative novelty of the domestic violence statutes creating a mandatory arrest duty; before this innovation, the unfettered discretion that characterized police enforcement defeated any citizen’s “legitimate claim of entitlement” to this service. Novel or not, respondent’s claim finds strong support in the principles that underlie our due process jurisprudence. In this case, Colorado law guaranteed the provision of a certain service, in certain defined circumstances, to a certain class of beneficiaries, and respondent reasonably relied on that guarantee. As we observed in Roth, “[i]t 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.” *791408 U. S., at 577. Surely, if respondent had contracted with a private security firm to provide her and her daughters with protection from her husband, it would be apparent that she possessed a property interest in such a contract. Here, Colorado undertook a comparable obligation, and respondent — with restraining order in hand — justifiably relied on that undertaking. Respondent’s claim of entitlement to this promised service is no less legitimate than the other claims our cases have upheld, and no less concrete than a hypothetical agreement with a private firm.19 The fact that it is based on a statutory enactment and a judicial order entered for her special protection, rather than on a formal contract, does not provide a principled basis for refusing to consider it “property” worthy of constitutional protection.20

*792V

Because respondent had a property interest in the enforcement of the restraining order, state officials could not deprive her of that interest without observing fair procedures.21 Her description of the police behavior in this case and the department’s callous policy of failing to respond properly to reports of restraining order violations clearly al*793leges a due process violation. At the very least, due process requires that the relevant state decisionmaker listen to the claimant and then apply the relevant criteria in reaching his decision.22 The failure to observe these minimal procedural safeguards creates an unacceptable risk of arbitrary and “erroneous deprivation^],” Mathews, 424 U. S., at 335. According to respondent’s complaint — which we must construe liberally at this early stage in the litigation, see Swierkiewicz v. Sorema N. A., 534 U. S. 506, 514 (2002) — the process she was afforded by the police constituted nothing more than a “ ‘sham or a pretense.’ ” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 164 (1951) (Frankfurter, J., concurring).

Accordingly, I respectfully dissent.