STEVENS, J., DISSENTING
CASTLE ROCK V. GONZALES
545 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 04-278
TOWN OF CASTLE ROCK, COLORADO, PETITIONER
v. JESSICA GONZALES, individually and as next best friend
of her deceased minor children, REBECCA GONZALES, KATHERYN
GONZALES, and LESLIE GONZALES
on writ of certiorari to the united states court of
appeals for the tenth circuit
[June 27, 2005]
Justice Stevens, with whom
Justice Ginsburg joins, 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 17 (“[I]t is by no means clear that an individual
entitlement to enforcement of a restraining order could constitute
a ‘property’ interest”). Moreover, the majority does not contest,
see
ante, at 18, that if respondent did have a cognizable
property interest in this case, 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 2, 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 source 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 8,
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.
I
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 appeal 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 cases in which the court of appeal’s
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) (emphases 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 …” (emphases added)).[
Footnote 1] Moreover, unlike today’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 10, 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.[
Footnote 2]
II
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 Colorado Supreme Court.[
Footnote 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.[
Footnote 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)).[
Footnote 5] Second,
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”).[
Footnote 6]
III
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 17; 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 has been committed,” §18–6–803.6(1).[
Footnote 7] In adopting this legislation, the
Colorado General Assembly joined a nationwide movement of States
that took aim at the crisis of police underenforcement in the
domestic violence sphere by implementing “mandatory arrest”
statutes. The crisis of underenforcement 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,[
Footnote 8] “many
states enacted mandatory 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).[
Footnote 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
“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 or breaches of the peace,
shall apprehend all
disorderly persons in the city …” (emphases 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.[
Footnote 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
12.
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
also 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.[
Footnote 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 would 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 13, 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 11. 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 7, 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
14, 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 nothing.[
Footnote 12] The Court suggests that the fact that
“enforcement” may encompass different acts infects any entitlement
to enforcement with “indeterminacy.”
Ante, at 14. 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.[
Footnote 13]
The 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 15; 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 faced 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.[
Footnote 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”).[
Footnote 15] The
statute criminalized the knowing violation of the restraining
order, §18–6–803.5(1), and, as already discussed, the statute (as
well as the order itself) mandated police enforcement,
§§18–6–803.5(3)(a)–(b).[
Footnote
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 18. 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.[
Footnote 17] Not only
does the Court’s doubt about whether 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
11–12, 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) (“ ‘[P]roperty’ 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.
Loudermill,
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.[
Footnote 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.” 408 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.[
Footnote 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.[
Footnote 20]
V
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.[
Footnote
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 alleges 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.[
Footnote 22] The
failure to observe these minimal procedural safeguards creates an
unacceptable risk of arbitrary and “erroneous deprivation[s],”
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&nbhyph;Fascist Refugee
Comm. v.
McGrath, 341 U. S. 123, 164
(1951) (Frankfurter, J., concurring).
Accordingly, I respectfully
dissent.
Footnote 1
The Court of Appeals also looked to other
provisions of the statute to inform its analysis. In particular, it
reasoned that a provision that gave police officers qualified
immunity in connection with their enforcement of restraining
orders, see Colo. Rev. Stat. §18–6–803.5(5) (Lexis 1999), supported
the inference that the Colorado Legislature intended mandatory
enforcement. See 366 F. 3d 1093, 1108 (CA10 2004) (en
banc).
Footnote 2
The Court declines to show deference for the
odd reason that, in its view, the Court of Appeals did not “draw
upon a deep well of state-specific expertise,”
ante, at 8,
but rather examined the statute’s text and legislative history and
distinguished arguably relevant Colorado case law. See
ante, at 8–9, and n. 4. This rationale makes a
mockery of our traditional practice, for it is precisely when there
is no state law on point that the presumption that circuits have
local expertise plays any useful role. When a circuit’s resolution
of a novel question of state law is grounded on a concededly
complete review of all the pertinent state-law materials, that
decision is entitled to deference. Additionally, it should be noted
that this is not a case in which the Court of Appeals and the
District Court disagreed on the relevant issue of state law;
rather, those courts disagreed only over the extent to which a
probable-cause determination requires the exercise of discretion.
Compare 366 F. 3d, at 1105–1110, with App. to Pet. for Cert.
122a (District Court opinion).
Footnote 3
See Colo. Rule App. Proc. 21.1(a) (Colorado
Supreme Court may answer questions of law certified to it by the
Supreme Court of the United States or another federal court if
those questions “may be determinative of the cause” and “as to
which it appears to the certifying court there is no controlling
precedent in the decisions of the [Colorado] Supreme Court”).
Footnote 4
See
City of Westminster v.
Dogan
Constr. Co., 930 P. 2d 585, 590 (Colo. 1997) (en banc)
(in interpreting an ambiguous statute, the Colorado Supreme Court
will consider legislative history and the “consequences of a
particular construction”);
ibid. (“ ‘Because we also
presume that legislation is intended to have just and reasonable
effects, we must construe statutes accordingly and apply them so as
to ensure such results’ ”). Additionally, it is possible that
the Colorado Supreme Court would have better access to (and greater
facility with) relevant pieces of legislative history beyond those
that we have before us. That court may also choose to give certain
evidence of legislative intent greater weight than would be
customary for this Court. See,
e.g., Brief for Peggy Kerns
et al. as
Amici Curiae in Support of Respondent (bill
sponsor explaining the Colorado General Assembly’s intent in
passing the domestic restraining order statute).
Footnote 5
Citing similar considerations, the Second
Circuit certified questions of state law to the Connecticut Supreme
Court when it was faced with a procedural due process claim
involving a statute that arguably mandated the removal of children
upon probable cause of child abuse. See
Sealed v.
Sealed, 332 F. 3d 51 (2003). The Connecticut Supreme
Court accepted certification and held that the provision was
discretionary, not mandatory. See
Teresa T. v.
Ragaglia, 272 Conn. 734, 865 A. 2d 428 (2005).
Footnote 6
The Court is correct that I would take an
“anyone-but-us approach,”
ante, at 9, n. 5, to the
question of
who decides the issue of Colorado law in this
case. Both options that I favor—deferring to the Circuit’s
interpretation or, barring that, certifying to the Colorado Supreme
Court—recognize the comparative expertise of another tribunal on
questions of state law. And both options offer their own
efficiencies. By contrast, the Court’s somewhat overconfident “only
us” approach lacks any cogent justification. The fact that neither
party requested certification certainly cannot be a sufficient
reason for dismissing that option. As with abstention, the
considerations that weigh in favor of certification—federal-state
comity, constitutional avoidance, judicial efficiency, the desire
to settle correctly a recurring issue of state law—transcend the
interests of individual litigants, rendering it imprudent to cast
them as gatekeepers to the procedure. See,
e.g., Elkins v.
Moreno,
435 U. S. 647, 662 (1978) (certifying
state-law issue absent a request from the parties);
Aldrich v.
Aldrich,
375 U. S. 249 (1963)
(per curiam) (same); see also 17A C. Wright, A. Miller,
& E. Cooper, Federal Practice and Procedure §4248, p. 176 (2d
ed. 1988) (“Ordinarily a court will order certification on its own
motion”).
Footnote 7
See Fuller & Stansberry, 1994 Legislature
Strengthens Domestic Violence Protective Orders, 23 Colo. Lawyer
2327 (1994) (“The 1994 Colorado legislative session produced
several significant domestic abuse bills that strengthened both
civil and criminal restraining order laws and procedures for
victims of domestic violence”);
id., at 2329 (“Although
many law enforcement jurisdictions already take a proactive
approach to domestic violence, arrest and procedural policies vary
greatly from one jurisdiction to another. H. B. 94–1253
mandates the arrest of domestic violence perpetrators and
restraining order violaters. H. B. 94–1090 repeals the
requirement that protected parties show a copy of their restraining
order to enforcing officers. In the past, failure to provide a copy
of the restraining order has led to hesitation from police to
enforce the order for fear of an illegal arrest. The new statute
also shields arresting officers from liability; this is expected to
reduce concerns about enforcing the mandatory arrest requirements”
(footnotes omitted)).
Footnote 8
See Sack 1669 (“The movement to strengthen
arrest policies was bolstered in 1984 by the publication of the
results of a study on mandatory arrest in domestic violence cases
that had been conducted in Minneapolis. In this study, police
handled randomly assigned domestic violence offenders by using one
of three different responses: arresting the offender, mediating the
dispute or requiring the offender to leave the house for eight
hours. The study concluded that in comparison with the other two
responses, arrest had a significantly greater impact on reducing
domestic violence recidivism. The findings from the Minneapolis
study were used by the U. S. Attorney General in a report issued in
1984 that recommended, among other things, arrest in domestic
violence cases as the standard law enforcement response” (footnotes
omitted)); see also Zorza, The Criminal Law of Misdemeanor Domestic
Violence, 1970–1990, 83 J. Crim. L. & C. 46, 63–65 (1992)
(tracing history of mandatory arrest laws and noting that the first
such law was implemented by Oregon in 1977).
Footnote 9
See also Brief for International Municipal
Lawyers Association and National League of Cities, National’s
Sheriff’s Association, and County Sheriffs of Colorado as
Amici
Curiae in Support of Petitioner 6 (“Colorado is not alone in
mandating the arrest of persons who violate protective orders. Some
19 states require an arrest when a police officer has probable
cause to believe that such orders have been violated” (collecting
statutes)).
Footnote 10
See Note, Mandatory Arrest: A Step Toward
Eradicating Domestic Violence, But is It Enough? 1996 U. Ill. L.
Rev. 533, 542, 544–546 (describing the problems that attend a
discretionary arrest regime: “Even when probable clause is present,
police officers still frequently try to calm the parties and act as
mediators… . Three studies found the arrest rate to range
between 3% and 10% when the decision to arrest is left to police
discretion. Another study found that the police made arrests in
only 13% of the cases where the victim had visible injuries… .
Police officers often employ irrelevant criteria such as the
‘reason’ for the abuse or the severity of the victim’s injuries in
making their decision to arrest… . Some [officers] may feel
strongly that police should not interfere in family arguments or
lovers’ quarrels. Such attitudes make police much more likely to
investigate intent and provocation, and consider them as mitigating
factors, in responding to domestic violence calls than in other
types of cases”); see also Walsh, The Mandatory Arrest Law: Police
Reaction, 16 Pace L. Rev. 97, 98 (1995). Cf. Sack 1671–1672
(“Mandatory arrest policies have significantly increased the number
of arrests of batterers for domestic violence crimes… . In New
York City, from 1993, the time the mandatory arrest policy was
instituted, to 1999, felony domestic violence arrests increased
33%, misdemeanor domestic violence arrests rose 114%, and arrests
for violation of orders of protection were up 76%” (footnotes
omitted)).
Footnote 11
The Oregon Supreme Court noted that the
“widespread refusal or failure of police officers to remove persons
involved in episodes of domestic violence was presented to the
legislature as the main reason for tightening the law so as to
require enforcement of restraining orders by mandatory arrest and
custody.”
Nearing, 295 Ore., at 709, 670 P. 2d, at
142.
Footnote 12
Under the Court’s reading of the statute, a
police officer with probable cause is mandated to seek an arrest
warrant if arrest is “impractical under the circumstances,” but
then enjoys unfettered discretion in deciding whether to
execute that warrant.
Ante, at 15. This is an
unlikely reading given that the statute was motivated by a profound
distrust of police discretion in the domestic violence context and
motivated by a desire to improve the protection given to holders of
domestic restraining orders. We do not have the benefit of an
authoritative construction of Colorado law, but I would think that
if an estranged husband harassed his wife in violation of a
restraining order, and then absconded after she called the police,
the statute would not only obligate the police to seek an arrest
warrant, but also obligate them to execute it by making an arrest.
In any event, under respondent’s allegations, by the time the
police were informed of the husband’s whereabouts, an arrest was
practical and, under the statute’s terms, mandatory.
Footnote 13
The Court wonders “how the mandatory-arrest
paradigm applies to cases in which the offender is not present to
be arrested.”
Ante, at 13. Again, questions as to the
scope of the obligation to provide enforcement are far
afield from the key issue—whether there exists an entitlement to
enforcement. In any event, the Court’s speculations are off-base.
First, this is not a case like
Donaldson v.
Seattle, 65 Wash. App. 661, 831 P. 2d 1098 (1992), in
which the restrained person violated the order and then left the
scene. Here, not only did the husband violate the restraining order
by coming within 100 yards of the family home, but he continued to
violate the order while his abduction of the daughters persisted.
This is because the restraining order prohibited him from
“molest[ing] or disturb[ing] the peace” of the daughters. See 366
F. 3d, at 1143 (appendix to dissent of O’Brien, J.). Because
the “scene” of the violation was wherever the husband was currently
holding the daughters, this case does not implicate the question of
an officer’s duties to arrest a person who has left the scene and
is no longer in violation of the restraining order. Second, to the
extent that arresting the husband was initially “impractical under
the circumstances” because his whereabouts were unknown, the
Colorado statute (unlike some other States’ statutes) expressly
addressed that situation—it
required the police to seek an
arrest warrant. Third, the Court is wrong to suggest that this case
falls outside the core situation that these types of statutes were
meant to address. One of the well-known cases that contributed to
the passage of these statutes involved facts similar to this case.
See
Sorichetti v.
New York City, 65 N. Y. 2d 461,
467, 482 N. E. 2d 70, 74 (1985) (police officers at police station
essentially ignored a mother’s pleas for enforcement of a
restraining order against an estranged husband who made threats
about their 6-year-old daughter; hours later, as the mother
persisted in her pleas, the daughter was found mutilated, her
father having attacked her with a fork and a knife and attempted to
saw off her leg); Note, 1996 U. Ill. L. Rev., at 539 (noting
Sorichetti in the development of mandatory arrest
statutes); see also Sack 1663 (citing the police’s failure to
respond to domestic violence calls as an impetus behind mandatory
arrest statutes). It would be singularly odd to suppose that in
passing its sweeping omnibus domestic violence legislation, the
Colorado Legislature did not mean to require enforcement in the
case of an abduction of children in violation of a restraining
order.
Footnote 14
The order also stated: “If you violate this
order thinking that the other party or 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.” 366 F. 3d, at 1144 (appendix to dissent of
O’Brien, J.).
Footnote 15
A concern for the “ ‘protected
person’ ” pervades the statute. For example, the statute
provides that a “peace officer may transport, or obtain
transportation for, the alleged victim to shelter. Upon the request
of the protected person, the peace officer may also transport the
minor child of the protected person, who is not an emancipated
minor, to the same shelter … .” §18–6–803.5(6)(a).
Footnote 16
I find it neither surprising nor telling, cf.
ante, at 15, that the statute requires the restraining
order to contain, “in capital letters and bold print,” a “notice”
informing protected persons that they can demand or request,
respectively, civil and criminal contempt proceedings.
§18–6–803.5(7). While the legislature may have thought that these
legal remedies were not popularly understood, a person’s right to
“demand” or “request” police enforcement of a restraining order
simply goes without saying given the nature of the order and its
language. Indeed, for a holder of a restraining order who has read
the order’s emphatic language, it would likely come as quite a
shock to learn that she has no right to demand enforcement in the
event of a violation. To suggest that a protected person has no
such right would posit a lacuna between a protected person’s rights
and an officer’s duties—a result that would be hard to reconcile
with the Colorado Legislature’s dual goals of putting an end to
police indifference and empowering potential victims of domestic
abuse.
Footnote 17
See also
Matthews v.
Pickett
County, 996 S. W. 2d 162, 165 (Tenn. 1999) (“The order of
protection in this case was not issued for the public’s protection
in general. The order of protection specifically identified Ms.
Matthews and was issued solely for the purpose of protecting her.
Cf. Ezell [v.
Cockrell, 902 S. W. 2d 394,
403 (Tenn. 1995)] (statute prohibiting drunk driving does not
specify an individual but undertakes to protect the public in
general from intoxicated drivers)”);
Sorichetti, 65 N. Y.
2d, at 469, 482 N. E. 2d, at 75 (“The [protective] order evinces a
preincident legislative and judicial determination that its holder
should be accorded a reasonable degree of protection from a
particular individual”).
Footnote 18
The Court mistakenly relies on
O’Bannon v.
Town Court Nursing Center,
447 U. S. 773 (1980), in
explaining why it is “by no means clear that an individual
entitlement to enforcement of a restraining order could constitute
a ‘property’ interest for purposes of the Due Process Clause.”
Ante, at 17. In
O’Bannon, the question was
essentially whether certain regulations provided nursing-home
residents with an entitlement to continued residence in the home of
their choice. 447 U. S., at 785. The Court concluded that the
regulations created no such entitlement, but there was no
suggestion that Congress could not create one if it wanted to. In
other words,
O’Bannon did not address a situation in which
the underlying law created an entitlement, but the Court
nevertheless refused to treat that entitlement as a property
interest within the meaning of the Due Process Clause.
Footnote 19
As the analogy to a private security contract
demonstrates, a person’s interest in police enforcement has
“ ‘some ascertainable monetary value,’ ”
ante,
at 17. Cf. Merrill, The Landscape of Constitutional Property, 86
Va. L. Rev. 885, 964, n. 289 (2000) (remarking, with regard to
the property interest recognized in
Goss v.
Lopez,
419
U. S. 565 (1975), that “any parent who has contemplated sending
their children to private schools knows that public schooling has a
monetary value”). And while the analogy to a private security
contract need not be precise to be useful, I would point out that
the Court is likely incorrect in stating that private security
guards could not have arrested the husband under the circumstances,
see
ante, at 17, n. 10. Because the husband’s ongoing
abduction of the daughters would constitute a knowing violation of
the restraining order, see n. 13,
supra, and
therefore a crime under the statute, see §18–6–803.5(1), a private
person who was at the scene and aware of the circumstances of the
abduction would have authority to arrest. See §16–3–201 (“A person
who is not a peace officer may arrest another person when any crime
has been or is being committed by the arrested person in the
presence of the person making the arrest”). Our cases, of course,
have never recognized any requirement that a property interest
possess “ ‘some ascertainable monetary value.’ ”
Regardless, I would assume that respondent would have paid the
police to arrest her husband if that had been possible; at the very
least, the entitlement has a monetary value in that sense.
Footnote 20
According to Justice Souter, respondent has
asserted a property interest in merely a “state-mandated process,”
ante, at 3 (opinion concurring in part and concurring in
judgment), rather than in a state-mandated “substantive guarantee,”
ibid. This misunderstands respondent’s claim. Putting
aside the inartful passage of respondent’s brief that Justice
Souter relies upon,
ante, at 2, it is clear that
respondent is in fact asserting a substantive interest in the
“enforcement of the restraining order.” Brief for Respondent 10.
Enforcement of a restraining order is a tangible, substantive act.
If an estranged husband violates a restraining order by abducting
children, and the police succeed in enforcing the order, the person
holding the restraining order has undeniably just received a
substantive benefit. As in other procedural due process cases,
respondent is arguing that the police officers failed to follow
fair procedures in ascertaining whether the statutory criteria that
trigger their obligation to provide enforcement—
i.e., an
outstanding order plus probable cause that it is being
violated—were satisfied in her case. Cf.
Carey v.
Piphus,
435
U. S. 247, 266–267 (1978) (discussing analytic difference
between the denial of fair process and the denial of the
substantive benefit itself). It is Justice Souter, not respondent,
who makes the mistake of “collapsing the distinction between
property protected and the process that protects it,”
ante, at 4.
Justice Souter also errs in suggesting that
respondent cannot have a property interest in enforcement because
she would not be authorized to instruct the police to refrain from
enforcement in the event of a violation.
Ante, at 1. The
right to insist on the provision of a service is separate from the
right to refuse the service. For example, compulsory attendance
laws deny minors the right to refuse to attend school.
Nevertheless, we have recognized that minors have a property
interest in public education and that school officials must
therefore follow fair procedures when they seek to deprive minors
of this valuable benefit through suspension. See
Goss,
419
U. S. 565. In the end, Justice Souter overlooks the core
purpose of procedural due process—ensuring that a citizen’s
reasonable reliance is not frustrated by arbitrary government
action.
Footnote 21
See
Logan v.
Zimmerman Brush
Co.,
455 U. S. 422, 432 (1982)
(“ ‘ “While the legislature may elect not to confer a
property interest, … it may not constitutionally authorize the
deprivation of such an interest, once conferred, without
appropriate procedural safeguards” ’ ”).
Footnote 22
See
Fuentes v.
Shevin,
407 U. S. 67, 81
(1972) (“[W]hen 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” (emphasis added));
Bell v.
Burson,
402 U. S. 535, 542 (1971) (“It is a
proposition which hardly seems to need explication that a hearing
which excludes consideration of an element essential to the
decision whether licenses of the nature here involved shall be
suspended does not meet [the] standard [of due process]”);
Goldberg v.
Kelly,
397 U. S. 254, 271 (1970) (“[T]he
decisionmaker’s conclusion as to a recipient’s eligibility must
rest solely on the legal rules and evidence adduced at the
hearing”); cf.
ibid. (“[O]f course, an impartial decision
maker is essential”).
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