CASTLE ROCK v. GONZALES ( No. 04-278 )
366 F. 3d 1093, reversed.

TOWN OF CASTLE ROCK, COLORADO v . GONZALES, individually and a next best friend of her deceased minor children, GONZALES et al.

certiorari to the united states court of appeals for the tenth circuit

No. 04–278.Argued March 21, 2005—Decided June 27, 2005

Respondent filed this suit under 42 U. S. C. §1983 alleging that petitioner violated the Fourteenth Amendment’s Due Process Clause when its police officers, acting pursuant to official policy or custom, failed to respond to her repeated reports over several hours that her estranged husband had taken their three children in violation of her restraining order against him. Ultimately, the husband murdered the children. The District Court granted the town’s motion to dismiss, but an en banc majority of the Tenth Circuit reversed, finding that respondent had alleged a cognizable procedural due process claim because a Colorado statute established the state legislature’s clear intent to require police to enforce retraining orders, and thus its intent that the order’s recipient have an entitlement to its enforcement. The court therefore ruled, among other things, that respondent had a protected property interest in the enforcement of her restraining order.

Held: Respondent did not, for Due Process Clause purposes, have a property interest in police enforcement of the restraining order against her husband. Pp. 6–19.

(a) The Due Process Clause’s procedural component does not protect everything that might be described as a government “benefit”: “To have a property interest in a benefit, a person … must … have a legitimate claim of entitlement to it.” Board of Regents of State Colleges v. Roth, 408 U. S. 564. Such entitlements are created by existing rules or understandings stemming from an independent source such as state law. E.g., ibid . Pp. 6–7.

(b) A benefit is not a protected entitlement if officials have discretion to grant or deny it. See, e.g., Kentucky Dept. of Corrections v. Thompson, 490 U. S. 454. It is inappropriate here to defer to the Tenth Circuit’s determination that Colorado law gave respondent a right to police enforcement of the restraining order. This Court therefore proceeds to its own analysis. Pp. 7–9.

(c) Colorado law has not created a personal entitlement to enforcement of restraining orders. It does not appear that state law truly made such enforcement mandatory . A well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes. Cf. Chicago v. Morales, 527 U. S. 41, n. 2, 62, n. 32. Against that backdrop, a true mandate of police action would require some stronger indication than the Colorado statute’s direction to “use every reasonable means to enforce a restraining order” or even to “arrest … or … seek a warrant.” A Colorado officer would likely have some discretion to determine that—despite probable cause to believe a restraining order has been violated—the violation’s circumstances or competing duties counsel decisively against enforcement in a particular instance. The practical necessity for discretion is particularly apparent in a case such as this, where the suspected violator is not actually present and his whereabouts are unknown. In such circumstances, the statute does not appear to require officers to arrest but only to seek a warrant. That, however, would be an entitlement to nothing but procedure, which cannot be the basis for a property interest. Pp. 9–15.

(d) Even if the statute could be said to make enforcement “mandatory,” that would not necessarily mean that respondent has an entitlement to enforcement. Her alleged interest stems not from common law or contract, but only from a State’s statutory scheme. If she was given a statutory entitlement, the Court would expect to see some indication of that in the statute itself. Although the statute spoke of “protected person[s]” such as respondent, it did so in connection with matters other than a right to enforcement. Most importantly, it spoke directly to the protected person’s power to “initiate” contempt proceedings if the order was issued in a civil action, which contrasts tellingly with its conferral of a power merely to “request” initiation of criminal contempt proceedings—and even more dramatically with its complete silence about any power to “request” (much less demand) that an arrest be made. Pp. 15–17.

(e) Even were the Court to think otherwise about Colorado’s creation of an entitlement, it is not clear that an individual entitlement to enforcement of a restraining order could constitute a “property” interest for due process purposes. Such a right would have no ascertainable monetary value and would arise incidentally , not out of some new species of government benefit or service, but out of a function that government actors have always performed—arresting people when they have probable cause. A benefit’s indirect nature was fatal to a due process claim in O’Bannon v. Town Court Nursing Center, 447 U. S. 773. Here, as there, “[t]he simple distinction between government action that directly affects a citizen’s legal rights … and action that is directed against a third party and affects the citizen only … incidentally, provides a sufficient answer to” cases finding government-provided services to be entitlements. Id., at 788. Pp. 17–19.

366 F. 3d 1093, reversed.

Scalia , J., delivered the opinion of the Court, in which Rehnquist , C. J., and O’Connor , Kennedy , Souter , Thomas , and Breyer, JJ., joined. Souter , J., filed a concurring opinion, in which Breyer , J., joined. Stevens , J., filed a dissenting opinion, in which Ginsburg , J., joined.