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Back to Archives | Back to May 2006 Contents 

Chief's Counsel

Supreme Court Refuses to Expand Section 1983 Liability: No Federal Constitutional Duty to Enforce a Restraining Order

By L. Cary Unkelbach, Assistant County Attorney Representing the Arapahoe County Sheriff's Office, Arapahoe County, Colorado

or the second time in 16 years, the U.S. Supreme Court has found that government generally does not have a federal constitutional duty to protect citizens from third parties. The June 2005 decision came in a lawsuit brought by a mother against Castle Rock, Colorado, and three of its police officers.1 The suit, which sought $30 million in compensatory damages as well as attorney fees and punitive damages, alleged that her constitutional rights were violated when police failed to enforce a restraining order against her estranged husband, allowing him to kill their three children.2

In 1989 the Court found that there was no substantive due process violation by caseworkers when a child, formerly in social services custody, was returned to and later beaten by his father.3 Finding that the state had not created or increased the danger to the child, the Court found the father, not the state, inflicted the harm to the child. In Deshaney v. Winnebago County Dept. of Social Services, the Court declined to consider whether a state statute would confer an entitlement to individuals to receive governmental protective services that would require due process procedures. That issue was addressed in the 2005 case.

Both cases were brought under the 14th Amendment's Due Process Clause, which forbids the government to "deprive individuals of life, liberty, or property without due process of law."

In the Castle Rock case, the Court considered whether procedural due process under the 14thAmendment required law enforcement to enforce a restraining order where there is probable cause to believe it has been violated. The mother claimed she had a property interest in the restraining order. Procedural due process requires that before the government deprives a person of a life, liberty, or property interest, that person must have notice and a fair opportunity to be heard.4

Factual Allegations
On May 21, 1999, Jessica Gonzales obtained a restraining order against her estranged husband, Simon Gonzales, in a state district court divorce proceeding. The order, as modified, and in part, excluded Mr. Gonzales from her home and allowed him a prearranged advance-notice midweek dinner visit with his children. The order was served on Mr. Gonzales on June 4, 1999.5

In the late afternoon of Tuesday, June 22, 1999, Mr. Gonzales took the three girls while they were playing outside their mother's home, without Ms. Gonzales's knowledge, consent, or prior arrangements. At 7:30 p.m., Ms. Gonzales telephoned the Castle Rock Police Department for assistance after discovering the girls were gone. She showed a copy of the order to the two responding officers, asking that it be enforced and the three children be returned to her immediately. They advised they could do nothing and suggested she call the police again if the children did not return home by 10:00 p.m.

After her husband called her at 8:30 p.m., she called police, saying that he and the girls were at Elitch Gardens, an amusement park in Denver. When she asked that an APB be issued for him, an officer "refused," telling her to wait until 10:00 p.m. to see if the girls returned home.

She called police at 10:10 p.m. and reported that her children were still missing. She was told to wait until midnight, which she did, reporting her children were still missing. She then went to Mr. Gonzales's apartment and finding him not home, called police. When an officer failed to respond, she went to the police department, where another officer took an incident report from her, about 12:50 a.m.

At 3:20 a.m., Mr. Gonzales arrived at the police department, got out of his truck, and, with a semiautomatic handgun, shot at the department. He was shot dead by police. His three children's bodies were in the truck's cab.

After Ms. Gonzales filed her federal complaint, the town and officers moved to dismiss. That procedurally meant that her facts, as stated above, were taken as true, and the defendants did not have an opportunity to present their version.

Ms. Gonzales alleged the officers and the town violated her and her children's due process rights because the restraining order "created a property right that incurred a duty" by the town and officers to protect her and her children. She claimed that Colorado law required police to protect her and her children by "using every reasonable means" to enforce the order and to arrest or seek an arrest warrant for Mr. Gonzales for violating the order. She also alleged the town, through its police department, had a policy or custom of failing to properly enforce restraining orders and to properly train its officers.

Lower Court Decisions
Although Ms. Gonzales did not identify the nature of her due process claim, the federal district court dismissed the case, finding substantive and procedural due process claims were not stated. On appeal, a 10th Circuit Court of Appeals panel affirmed the substantive due process claim dismissal, citing the DeShaney case, but found a procedural due process claim was stated "with respect to her entitlement to enforcement of the order by every reasonable means."6

The defendants then asked the Court, en banc, for a rehearing of the panel's finding of a procedural due process claim. A divided Court found that Ms. Gonzales stated such a claim because she had a protected property interest in the enforcement of her restraining order and the town had deprived her of due process because "the police never 'heard' nor seriously entertained her request to enforce and protect her interests in the restraining order."7 The Court held that procedural due process required officers to determine if a valid restraining order existed, and if there was probable cause to believe the restrained party was served with the order and violated it. Then, if the officer found the restraining order did not "qualify for mandatory enforcement, the person claiming the right should be notified of the officer's decision and reason for it." The officers were afforded qualified immunity (and effectively dismissed) because the law was not clearly established in the 10th Circuit that they were required by federal constitutional law to enforce the restraining order.

Supreme Court
Castle Rock appealed, arguing that finding a procedural due process claim would effectively overrule the DeShaney case, which had found government generally had no duty to protect third parties. It argued, in part, that Ms. Gonzales's complaint was not really about any lack of process, as she had repeatedly spoken to police, but was about the outcome.

In its 7-2 decision, the U.S. Supreme Court addressed "whether an individual who has obtained a state-law restraining order has a constitutionally protected property interest in having the police enforce the restraining order when they have probable cause to believe it has been violated."8

The Court explained that procedural due process does not protect everything that might be described as a "benefit." To have a property interest in a benefit, the individual must have a "legitimate claim of entitlement to it," not just a unilateral expectation or abstract need or desire for it. The U.S. Constitution does not create these entitlements, which stem from an "independent source such as state law." A benefit is not a protected entitlement if government officials may grant or deny it in their discretion.   

According to the Court, the restraining order's critical language was the preprinted notice to law enforcement. That notice stated that a "peace officer shall use every reasonable means to enforce a restraining order" and "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 officer has probable cause to believe the restrained person violated or attempted to violate the restraining order and the restrained person was served or had received actual notice of the order.

Stating that a "well established tradition of police discretion has long coexisted with apparently mandatory arrest statutes," the Court noted such statutes cannot be interpreted literally for a number of reasons, including legislative history, insufficient resources, and sheer physical impossibility. Recognizing the "deep-rooted nature of law enforcement discretion" even in the presence of "seemingly mandatory legislative commands," the Court found that the Colorado statute did not eliminate police discretion in deciding whether to enforce a restraining order, especially in this case, where the suspected violator's whereabouts were unknown."

The Court found Ms. Gonzales's failure to specify the precise means of enforcing the restraining order that the Colorado statute required illustrated that there was not a mandatory duty to enforce. Nothing in the Colorado statute authorized an individual to request or demand an arrest. Colorado law did not create any entitlement to enforce a restraining order, and further, even if Colorado had created an entitlement, a property interest was not created.

The Gonzales case reaffirms that police have discretion in performing their duties even when faced by a seemingly mandatory state statute requirement. This may recognize the necessity of allocating personnel and resources. Agencies should be aware that there may be state causes of action, such as negligence, for failure to enforce a restraining order, even though there is no federal constitutional duty to enforce. Therefore, local counsel should be consulted about the possibility of law enforcements' exposure to state law liability. ■

1 Town of Castle Rock, Colorado v. Gonzales, et al., 125 S. Ct. 2796, 2810 (2005).
2 Complaint of Jessica Gonzales, et al., U.S. District Court for the District of Colorado, Civil Action No. 00-D-1285.
3 DeShaney v. Winnebago County Dept. of Social Services, 109 S. Ct. 998 (1989).
4 Board of Regents of State Colleges v. Roth, 92 S. Ct. 2701, 2705, fn. 7 (1972).
5 Castle Rock, 125 S. Ct. at 2800-01
6 Gonzales v. City of Castle Rock, 307 F.3d 1258, 1266 (10th Cir. 2002).
7 Gonzales v. City of Castle Rock, 366 F.3d 1093, 1117 (10th Cir. 2004).
8 Castle Rock, 125 S. Ct. at 2800.



From The Police Chief, vol. 73, no. 5, May 2006. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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