Appeal from the United States District Court

for the District of Colorado

(D.C. No. 00-D-1285)

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

Jessica Gonzales brought this action under 42 U.S.C. § 1983 individually and on behalf of her deceased minor children against the City of Castle Rock, Colorado, and Castle Rock police officers Aaron Ahlfinger, R.S. Brink, and Marc Ruisi. Ms. Gonzales alleged that plaintiffs' substantive and procedural due process rights were violated when defendant police officers failed to enforce a restraining order against her estranged husband, Simon Gonzales, after he abducted the children. While Ms. Gonzales was seeking enforcement of the order, Mr. Gonzales murdered the children. Ms. Gonzales also alleged that the City failed to properly train its police officers with respect to the enforcement of restraining orders and had a custom or policy of recklessly disregarding the right to police protection created by such orders. The district court granted defendants' motion to dismiss, concluding that Ms. Gonzales failed to state a claim under the Fourteenth Amendment for the deprivation of either substantive or procedural due process. Ms. Gonzales appeals. We affirm in part, reverse in part, and remand for further proceedings.

"In reviewing the grant of a 12(b)(6) motion, we apply the same standards as the district court." David v. City & County of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996). We accept the well-pleaded allegations in the complaint as true and construe them most favorably to the plaintiff. Id. "A complaint may be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) only 'if the plaintiff can prove no set of facts to support a claim for relief.'" Id. (quoting Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir. 1995)). Viewed in this light, the complaint sets out the following tragic facts.

On May 21, 1999, Ms. Gonzales obtained a temporary restraining order against her estranged husband, Simon, in connection with her divorce proceedings. Upon issuance, the order was entered into the central registry of restraining orders, a computerized database accessible to all state and local law enforcement agencies. The order was served on Mr. Gonzales on June 4, 1999, and made permanent on that date. Under the order, Mr. Gonzales was excluded from the family home and was prohibited from molesting or disturbing the peace of Ms. Gonzales and their three daughters, ages ten, nine, and seven. The order allowed Mr. Gonzales parenting time with the girls on alternating weekends and for two weeks during the summer. The order also provided that Mr. Gonzales, "upon reasonable notice, shall be entitled to a mid-week dinner visit with the minor children. Said visit shall be arranged by the parties." Aplt. App. at A-30.

On Tuesday, June 22, 1999, sometime between 5:00 and 5:30 p.m., Simon Gonzales abducted the three girls while they were playing outside their house. Mr. Gonzales had not given advance notice to Ms. Gonzales or arranged with her for a mid-week dinner visit with the children. When Ms. Gonzales discovered the children were gone, she suspected that Simon, who had a history of suicidal threats and erratic behavior, had taken them. She called the Castle Rock Police Department for assistance at approximately 7:30 p.m. Officers Brink and Ruisi were sent to the Gonzales home, where Ms. Gonzales showed them a copy of the order, requesting that it be enforced and that the children be returned to her immediately. The Officers "stated that there was nothing they could do about the TRO and suggested that Plaintiff call the Police Department again if the three children did not return home by 10:00 p.m." Aplt. App. at A-9.

At about 8:30 p.m., Ms. Gonzales reached Simon on his cell phone and learned that he and the children were at Elich Gardens, an amusement park in Denver. Ms. Gonzales immediately called the Castle Rock police, spoke with Officer Brink, and requested that the police attempt to find and arrest Mr. Gonzales at Elich Gardens. Officer Brink refused to do so and told Ms. Gonzales to wait until 10:00 p.m. to see if Mr. Gonzales returned the children. At shortly after 10:00, Ms. Gonzales called the police to report that the children were still missing and was told by the dispatcher to wait until midnight. At midnight she again called the police and told the dispatcher the children were still gone. At that point, she went to Simon Gonzales' apartment and found that he had not returned. She called the police from the apartment complex and was told by the dispatcher to wait there until the police arrived. No officer ever came and at about 12:50 a.m. she went to the police station and met with Officer Ahlfinger. He took an incident report, but did not attempt to enforce the TRO or to locate the three children.

At approximately 3:20 a.m., Simon Gonzales drove to the Castle Rock Police Station, got out of his truck, and opened fire with a semi-automatic handgun he had purchased shortly after abducting his daughters. He was shot dead at the scene. The police discovered the three girls, who had been murdered by Simon earlier that evening, in the cab of his truck.

We turn first to Ms. Gonzales' claim that defendants violated plaintiffs' rights to substantive due process by failing to enforce the restraining order. The starting point for assessing this claim is the Supreme Court's discussion of the matter in DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989). There the plaintiff, a child abused by his father, sued social workers and their social services department alleging a substantive deprivation of his liberty interest occasioned by their failure to remove him from his father's custody despite knowledge of the abuse.

In support of her substantive due process claim, Ms. Gonzales points to the Colorado statute describing peace officers' duties with respect to the enforcement of such orders. As the Court indicated in DeShaney, however, while this statute is relevant to Ms. Gonzales' procedural due process claim, see infra, the language of the Due Process Clause itself must be the source of her substantive claim. See DeShaney, 489 U.S. at 195. In rejecting the substantive due process argument, the Court pointed out that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." Id. at 195.

If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them. As a general matter, then, we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.

Id. at 196-97 (footnote omitted).

The Court did recognize "that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals," id. at 198, but held that those circumstances arise only "when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself." Id. at 200. "The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Id. The Court also pointed out that although the state may have been aware of the dangers faced by the plaintiff in DeShaney, "it played no part in their creation, nor did it do anything to render him any more vulnerable to them." Id. at 201.

In keeping with the discussion in DeShaney, this court and others have recognized two exceptions to the rule that state actors are generally not liable for acts of private violence: "(1) the special relationship doctrine; and (2) the 'danger creation' theory." Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995). Ms. Gonzales does not contend a special relationship was created here by the state's assumption of control over an individual. We therefore turn our attention to the "danger creation" theory, under which a state may be liable for private conduct when it takes affirmative action which creates or increases the danger to the plaintiff. See Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991, 995 (10th Cir. 1994).

To make out a proper danger creation claim, a plaintiff must demonstrate that (1) the charged state entity and the charged individual actors created the danger or increased plaintiff's vulnerability to the danger in some way; (2) plaintiff was a member of a limited and specifically definable group; (3) defendants' conduct put plaintiff at substantial risk of serious, immediate, and proximate harm; (4) the risk was obvious or known; (5) defendants acted recklessly in conscious disregard of that risk; and (6) such conduct, when viewed in total, is conscience shocking.

Currier v. Doran, 242 F.3d 905, 918 (10th Cir. 2001) (citing Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1262-63 (10th Cir. 1998)).

In order to satisfy the first requirement and show that the defendant created the danger or increased the plaintiff's vulnerability to it, a plaintiff must show affirmative conduct on the part of the defendant, Graham, 22 F.3d at 995, "that creates, or substantially contributes to the creation of, a danger or renders citizens more vulnerable to a danger than they otherwise would have been," Armijo, 159 F.3d at 1263 (quoting Reed v. Gardner, 986 F.2d 1122,1126 (7th Cir. 1993)). If this element is not shown, the substantive due process claim must fail. In assessing this factor, it is important to distinguish between affirmative conduct that creates or enhances a danger and a failure to act that merely does not decrease or eliminate a pre-existing danger. This distinction, while subtle, is critical under DeShaney and its progeny.

Ms. Gonzales contends the circumstances here are analogous to those in Currier v. Doran, 242 F.3d 905 (10th Cir. 2001), in which we held that the plaintiff had set out the requisite affirmative conduct in support of his substantive due process claim. In Currier, however, we took great care to point out that "[t]he danger creation theory . . . focuses on the affirmative actions of the state in placing the plaintiff in harm's way." Id. at 919. We concluded there that a defendant social worker had acted affirmatively by recommending that a parent be given legal custody of a child despite the defendant's knowledge of evidence and allegations that the parent had previously abused the child. While we observed that the defendant had also failed to investigate or act on the allegations of abuse, we noted that this failure to act "should be viewed in the general context of the state's affirmative conduct in removing the children from their mother and placing the children with their father." Id. at 920 n.7.

Although in the present case Ms. Gonzales attempts to characterize defendants' conduct as affirmative interference with the protection provided by the restraining order, in the end the individual defendants simply failed to act by refusing to enforce the order. Their failure, while it did not reduce the danger posed by Simon Gonzales' abduction of the girls, did not create or enhance that danger. This lack of affirmative conduct is fatal to Ms. Gonzales' substantive due process claim. See Graham, 22 F.3d at 995 (substantive due process argument must fail when plaintiffs unable to "point to any affirmative actions by the defendants that created or increased the danger to the victims.").

We reach a different result with respect to Ms. Gonzales' procedural due process argument. This claim requires that we address an issue the Supreme Court did not reach in DeShaney because it was not timely raised ­ whether the state statute at issue gives "an 'entitlement' to receive protective services in accordance with the terms of the statute, an entitlement which would enjoy due process protection against state deprivation under our decision in Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972)." DeShaney, 489 U.S. at 195 n.2.

In Roth, the Court pointed out that "[t]he Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests ­ property interests ­ may take many forms." Roth, 408 U.S. at 576. Property interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ­ rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. at 577. "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. When, as here, a plaintiff contends that a constitutionally protected property interest is created by a state statute, we have held that such an interest arises when "the regulatory language is so mandatory that it creates a right to rely on that language thereby creating an entitlement that could not be withdrawn without due process." Cosco v. Uphoff, 195 F.3d 1221, 1223 (10th Cir. 1999) (per curiam).

Ms. Gonzales relies on the language in the Colorado statute defining the crime of violating a restraining order and the duties of peace officers in that regard. Under that provision, officers "shall use every reasonable means to enforce a restraining order," Colo. Rev. Stat. § 18-6-803.5(3)(a) (2002) (emphasis added), and "shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of a restrained person when the peace officer has information amounting to probable cause that . . . [t]he restrained person has violated or attempted to violate any provision of a restraining order," id. § 18-6-803.5(3)(b)(I) (emphasis added). Ms. Gonzales contends the mandatory nature of the italicized language imposes a mandatory obligation on police officers to enforce the order and to arrest violators, and therefore gives persons with a restraining order a legitimate claim of entitlement to the protection the order is intended to provide.

In making this argument, Ms. Gonzales relies on cases from other jurisdictions holding that a property interest is created in a domestic violence restraining order. For example, in Siddle v. City of Cambridge, 761 F. Supp. 503 (S.D. Ohio 1991), the court concluded that a protective order obtained pursuant to state law "creates a property right which incurs a duty on the part of the government." Id. at 509. The state statute there provided that "any officer of a law enforcement agency shall enforce a protection order issued . . . by any court in this state in accordance with the provisions of the order." Ohio Rev. Code Ann. § 3113.31(F)(3) (West 2002) (emphasis added). The court observed that holders of protective orders are entitled to greater rights than other citizens and that such an order "would have no valid purpose unless a means to enforce it exists." Siddle, 761 F. Supp. at 509.

In Coffman v. Wilson Police Dep't, 739 F. Supp. 257 (E.D. Pa. 1990), the court held that the state statute governing enforcement of protective orders did not create a property interest in police protection because the statute provided only that an arrest may be without a warrant upon violation of the order. But the court did hold that the order itself created an enforceable interest based on its requirement that the appropriate police department shall enforce it. Siddle and Coffman thus both hold that use of the word "shall" to impose a mandatory duty on police to enforce a protective order creates a legitimate claim of entitlement to, and thus a protected property interest in, the protection provided by the order. "The word 'shall' is mandatory, not precatory, and its use in a simple declarative sentence brooks no contrary interpretation." Id. at 264.

In our case, the governing statute provides that an officer shall use every reasonable means to enforce an order and shall arrest a restrained person when the officer has information amounting to probable cause that the person has violated the order. The district court concluded that, notwithstanding the mandatory language used in the statute, no legitimate claim of entitlement to the enforcement duties set out therein could arise because those duties are only triggered when probable cause exists to believe that the restraining order has been violated. In the district court's view, determination of the existence of probable cause is discretionary and therefore cannot be the predicate for a mandatory duty. We disagree.

The Colorado courts have stated unambiguously that in Colorado statutes, "shall" does in fact mean "shall." "The word 'shall,' when used in a statute, involves a 'mandatory connotation' and hence is the antithesis of discretion or choice." Colorado v. Guenther, 740 P.2d 971, 975 (Colo. 1987); see also Allison v. Indus. Claim Appeals Office, 884 P.2d 1113, 1119-20 (Colo. 1994); Hernendez v. District Court, 814 P.2d 379, 381 (Colo. 1991). Moreover, the legislative history of the statute at issue clearly indicates that the legislature intended to impose a mandatory obligation on the police as well as on others involved in the criminal justice system who deal with domestic abuse.

First of all, . . . the entire criminal justice system must act in a consistent manner, which does not now occur. The police must make probable cause arrests. The prosecutors must prosecute every case. Judges must apply appropriate sentences, and probation officers must monitor their probationers closely. And the offender needs to be sentenced to offender-specific therapy.

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

Brief of Aplt, attach., transcript of Colorado House Judiciary Committee Hearings on House Bill 1253, Feb. 15, 1994, at 3 (emphasis added).

Under the statute here, "[a] peace officer shall use every reasonable means to enforce a restraining order." Colo. Rev. Stat. § 18-6-803.5(3)(a)(2002) (emphasis added). This mandatory duty is not premised upon the existence of probable cause, presumably because an arrest is not always necessary to enforce a restraining order. Moreover, the fact that the officer's mandatory duty extends only to the use of every reasonable means of enforcement does not negate a legitimate claim of entitlement to the use of those means. See Siddle, 761 F. Supp. at 509 (holding that property interest in enforcement extends to reasonable efforts under the circumstances).⁽¹⁾

The complaint in this case, viewed favorably to Ms. Gonzales, indicates that defendant police officers used no means, reasonable or otherwise, to enforce the restraining order. Under these circumstances, we conclude that Ms. Gonzales has effectively alleged a procedural due process claim with respect to her entitlement to enforcement of the order by every reasonable means.

The statute also imposes a duty on peace officers to arrest "when the peace officer has information amounting to probable cause" that the restrained person has violated or attempted to violate the restraining order. Colo. Rev. Stat. § 18-6-803.5(3)(b)(2002). We do not agree with the district court that because the officer's mandatory duty to arrest only arises upon the existence of facts giving rise to probable cause, no legitimate claim of entitlement can ever exist. In our view, the statute clearly creates a mandatory duty to arrest when probable cause is present. It follows that the holder of an order has a legitimate claim of entitlement to the protection provided by arrest when the officer has information amounting to probable cause that the order has been violated. The existence of probable cause is an objectively ascertainable matter evaluated on the basis of what a reasonably well-trained officer would know. See Malley v. Briggs, 475 U.S. 335, 345 (1986); United States v. Davis, 197 F.3d 1048, 1051 (10th Cir. 1999). It therefore is not a matter committed to the officer's subjective discretion. See Nearing v. Weaver, 670 P.2d 137, 142 & n.7 (Ore. 1983) (duty to arrest domestic order violator not discretionary despite requirement that arrest be supported by probable cause); Campbell v. Campbell, 682 A.2d 272, 274-75 (N.J. Super. Ct. Law Div. 1996) (same).

Our review of the complaint in the light most favorable to Ms. Gonzales reveals that she has stated a procedural due process claim with respect to her entitlement to have Simon Gonzales arrested. She alleged that under the restraining order, Simon Gonzales was entitled to a mid-week dinner visit only upon reasonable notice and arrangement between the parties, and that no notice or arrangement had preceded his abduction of the children. She alleged that she showed defendant officers the order and told them that Simon had taken the children in violation of its provisions. These allegations, along with the invocation of the state statute defining the duties of peace officers with respect to the violation of protective orders, set out a constitutional deprivation sufficient to withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(6).

Accordingly, we reverse the district court's decision that Ms Gonzales has failed to state a claim and remand for further proceedings in light of this opinion.⁽²⁾ The City's argument that Ms. Gonzales could not establish municipal liability and the individual defendants' contention that they are entitled to qualified immunity are matters to be considered in the first instance by the district court on remand.

REVERSED and REMANDED for further proceedings.

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JESSICA GONZALES, individually and as next best friend of her deceased minor children Rebecca Gonzales, Katheryn Gonzales and Leslie Gonzales, Plaintiff-Appellant, v. CITY OF CASTLE ROCK; AARON AHLFINGER; R. S. BRINK; MARC RUISI, Officers of the Castle Rock Police Department, Defendants-Appellees. ________________________ COLORADO MUNICIPAL LEAGUE; COLORADO COUNTIES, INC.; and COLORADO ASSOCIATION OF CHIEFS OF POLICE, Amici Curiae.

No. 01-1053

ON REHEARING EN BANC

FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. NO. 00-D-1285)

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

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

"We review de novo the district court's dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted." Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002), cert. denied, 123 S.Ct. 1908 (2003). We accept as true all well-pleaded facts, liberally construe the pleadings, and make all reasonable inferences in favor of the plaintiff. Id. "The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support her claims." Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)). Only where it appears beyond a doubt that a plaintiff cannot prove any set of facts entitling her to relief, can a motion to dismiss be granted. Id. With these precepts guiding our review, the complaint sets forth the following tragic facts.

On May 21, 1999, Ms. Gonzales obtained a temporary restraining order limiting her husband's ability to have contact with her and their daughters, aged ten, nine and seven. The restraining order was issued by a state court in accordance with Colo. Rev. Stat. § 14-10-108, and commanded in part that Mr. Gonzales "not molest or disturb the peace of [Ms. Gonzales] or . . . any child." Aplt. Appx. at 29. The restraining order further stated "the court . . . finds that physical or emotional harm would result if you are not excluded from the family home," and directed Mr. Gonzales to stay at least 100 yards away from the property at all times. Id. See also Colo. Rev. Stat. § 14-10-108(2)(c) (party can be excluded from family home upon a showing that physical or emotional harm would otherwise result).

Neither parent nor the daughters could unilaterally change the terms of the order because it explicitly states:

If you violate this order thinking that the other party or a child named in this order has given you permission, you are wrong, and can be arrested and prosecuted. The terms of this order cannot be changed by agreement of the other party or the child(ren). Only the court can change this order.

Susan Wendall Whicher & Cheryl Loetscher, Handbook of Colorado Family Law, ch. IV, F-12 at 2 (3d ed. 1996) (emphasis in original) (hereinafter "Restraining Order").⁽¹⁾ The order also contained explicit terms directing law enforcement officials that they "shall use every reasonable means to enforce" the restraining order, they "shall arrest" or where impractical, seek an arrest warrant for those who violate the restraining order, and they "shall take the restrained person to the nearest jail or detention facility . . . ." Id.

Upon the trial court's issuance of the temporary restraining order, and pursuant to Colo. Rev. Stat. § 18-6-803.7(2)(b), the order was entered into the state's central registry for such protective orders, which is accessible to all state and local law enforcement agencies. On June 4, 1999, the order was served on Mr. Gonzales. On that same date, upon "having heard the stipulation of the parties, and after placing the parties under oath and examining the parties as to the accuracy of the Stipulation . . . and finding that [the] Stipulation [was] in the best interests of the minor children," Aplt. Appx. at 30, the state court made the restraining order permanent. The temporary order's terms were slightly modified to detail Mr. Gonzales' rights to parenting time with his daughters on alternative weekends, and for two weeks during the summer. The order also allowed Mr. Gonzales "upon reasonable notice . . . a mid-week dinner visit with the minor children. Said visit shall be arranged by the parties." Id. (emphasis added). Finally, the order allowed Mr. Gonzales to collect the girls from Ms. Gonzales' home for the purposes of parental time. However, all other portions of the temporary restraining order remained in force, including its command that Mr. Gonzales was excluded from the family home and that he could not "molest or

disturb the peace" of Ms. Gonzales or the girls. Id. at 29.

Despite the order's terms, on Tuesday, June 22, 1999, sometime between 5:00 and 5:30 p.m., Mr. Gonzales abducted the girls while they were playing outside their home. Mr. Gonzales had not given Ms. Gonzales advanced notice of his interest in spending time with his daughters on that Tuesday night, nor had the two previously agreed upon a mid-week visit. When Ms. Gonzales realized her daughters were missing, she suspected that Mr. Gonzales, who had a history of erratic behavior and suicidal threats, had taken them. At approximately 7:30 p.m., she made her first phone call to the Castle Rock police department requesting assistance in enforcing the restraining order against her husband. Officers Brink and Ruisi were sent to her home. Upon their arrival, she showed them a copy of the restraining order, and asked that it be enforced and her children returned to her immediately. In contradiction to the order's terms, the Officers "stated that there was nothing they could do about the TRO and suggested that Plaintiff call the Police Department again if the children did not return home by 10:00 p.m." Id. at 9.

About an hour later, Ms. Gonzales spoke to Mr. Gonzales on his cellular telephone and he told her he was with the girls at Elitch Gardens, an amusement park in Denver. She immediately made a second call to the Castle Rock police department, and spoke with Officer Brink, requesting that the police find and arrest Mr. Gonzales. Officer Brink refused to do so, and suggested Ms. Gonzales wait until 10:00 p.m. to see if the girls returned home. Shortly after 10:00 p.m., Ms. Gonzales called the police department and reported to the dispatcher that her daughters had yet to be returned home by their father. She was told to wait for another two hours. At midnight, she called the police department again and informed the dispatcher her daughters were still missing. She then proceeded to Mr. Gonzales' apartment complex and found no one at home. From there, she placed a fifth call to the police department and was advised by the dispatcher to wait at the apartment complex until the police arrived. No officers ever came to the complex, and at 12:50 a.m., Ms. Gonzales went to the Castle Rock police station, where she met with Officer Ahlfinger. Officer Ahlfinger took an incident report from Ms. Gonzales, but he made no further effort to enforce the restraining order against her husband or to find her children. Instead, he went to dinner.

At approximately 3:20 a.m., nearly eight hours after Ms. Gonzales first contacted the police department, Mr. Gonzales arrived at the Castle Rock police station in his truck. He got out and opened fire on the station with a semi-automatic handgun he had purchased soon after abducting his daughters. He was shot dead at the scene. The police found the bodies of the three girls, who had been murdered by their father earlier that evening, in the cab of the truck.

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

deceased daughters against the City of Castle Rock, Colorado, and Castle Rock police officers Aaron Ahlfinger, R.S. Brink, and Marc Ruisi. Pursuant to 42 U.S.C. § 1983, she claimed her due process rights were violated by the officers' failure to enforce the restraining order against her husband. She also alleged the city maintained a custom and policy of failing to respond properly to complaints of domestic restraining order violations and tolerated the non-enforcement of such protective orders by police officers, resulting in the reckless disregard of a person's right to police protection granted by such orders.

The district court granted the defendants' motion to dismiss, finding Ms. Gonzales failed to state a claim under the Fourteenth Amendment for the deprivation of either substantive or procedural due process.⁽²⁾ On appeal, the panel affirmed the district court's dismissal of Ms. Gonzales' substantive due process claim, but reversed as to the district court's procedural due process determination. The panel held the restraining order, coupled with the Colorado statute mandating the enforcement of such orders, see Colo. Rev. Stat. § 18-6-803.5(3), established a protected property interest in the enforcement of the restraining order which could not be taken away by the government without procedural due process. Gonzales, 307 F.3d at 1266. The panel concluded, therefore, that Ms. Gonzales' procedural due process claim could proceed.

The city and police officers timely filed a petition for rehearing en banc, seeking review of the panel's conclusion that Ms. Gonzales stated a procedural due process claim. This court granted the petition, and asked the parties to address the following questions: (1) whether Colo. Rev. Stat. § 18-6-803.5(3) in combination with the restraining order issued by the Colorado court created a property interest entitled to due process protection and, (2) if so, what process was due.

II

To succeed in her § 1983 claim, Ms. Gonzales must show that she was deprived of a constitutional right by a person acting under color of state law. Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir. 1991). At issue here is whether Ms. Gonzales' due process rights, pursuant to the Fourteenth Amendment of the U.S. Constitution, were violated when the officers failed to enforce her restraining order against her husband.

The Fourteenth Amendment specifies that no State shall "deprive any person of life, liberty, or property, without due process of law . . . ." U.S. Const. amend. XIV, § 1. The Supreme Court has noted that the contours of this constitutional provision "guarantee more than fair process and . . . cover a substantive sphere as well, barring certain government actions regardless of the fairness of the procedures used to implement them." County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (internal citation and quotations omitted). In Lewis, the Supreme Court explained that

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

Id. at 845-46 (internal quotations and citations omitted). Ms. Gonzales' complaint encompassed both substantive and procedural due process challenges, both of which the district court dismissed. In the substantive due process context, the argument was that Ms. Gonzales and her daughters had an inherent Constitutional right to police protection against harm from her husband. However, as noted in our panel opinion, the Supreme Court made clear in DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1989), that the Constitution itself does not require a state to protect its citizens from third party harm, and Ms. Gonzales' case does not fall within the narrow "danger

creation" exception arising out of DeShaney.⁽³⁾ See Gonzales, 307 F.3d at 1262-63.

Contrary to the assertions of the city and officers, as well as those of our dissenting colleagues, the issue before this en banc court is distinct from the substantive due process claim dismissed below. Defendants and the dissenters assert that if this court concludes Ms. Gonzales has a protected property right in the enforcement of the restraining order, we will have "carved out an exception contrary to DeShaney and the general rule that the state does not have an affirmative duty to protect individuals from private third parties." Aple. Br. at 6. However, DeShaney limited its constitutional review to whether a substantive due process right to government protection exists in the abstract, and specifically did not decide whether a state might afford its citizens "an 'entitlement' to receive protective services in accordance with the terms of the statute, an entitlement which would enjoy due process protection against state deprivation" under Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). DeShaney, 489 U.S. 189, 195 n.2 (1989). As we discuss infra, Roth clarified that "[p]roperty interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ­ rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Roth, 408 U.S. at 577.

We are not being asked here to address whether Ms. Gonzales had a substantive right under the Constitution to receive government protection that could not be denied without a "reasonable justification in the service of a legitimate government objective." Lewis, 523 U.S. at 846. Rather, we must determine whether the state of Colorado created in Ms. Gonzales an entitlement that cannot be taken away from her without procedural due process, and if so, whether the officers' arbitrary denial of that entitlement was procedurally unfair. None of our dissenting colleagues who claim that we are improperly mixing substantive and procedural due process concepts suggest that the state of Colorado could not create such an entitlement if it chose to do so despite DeShaney's holding that there is no such entitlement protected by the substantive due process clause.⁽⁴⁾

When the due process clause is "invoked in a novel context, it is our practice to begin the inquiry with a determination of the precise nature of the private interest that is threatened by the State. Only after that interest has been identified, can we properly evaluate the adequacy of the State's process." Lehr v. Robertson, 463 U.S. 248, 256 (1983) (citations omitted). See also Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). We acknowledge this case raises compelling and novel questions about state created property interests and the manner by which such interests are protected by the Fourteenth Amendment. However, we are persuaded Ms. Gonzales' complaint states a claim that she possessed a protected property interest in the enforcement of the terms of her restraining order and that the officers' arbitrary denial of that entitlement violated her procedural due process rights. In reaching this conclusion, we begin by examining the restraining order issued to Ms. Gonzales and the Colorado statute mandating its enforcement.⁽⁵⁾

A

Our analysis must start with the familiar rubric of Roth. In Roth, the Supreme Court noted that "property" is a "broad and majestic term." Roth, 408 U.S. at 571. The Court "made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money," id. at 571-72, and "may take many forms," id. at 576. "Property interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law ­ rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. at 577. A property interest is created when a person has secured an interest in a specific benefit to which the individual has "a legitimate claim of entitlement." Id. The interest must be more than an "abstract need or desire" or a "unilateral expectation of" the benefit. Id. The Court has accordingly identified property rights protected under the procedural due process clause to include continued public employment, Perry v. Sindermann, 408 U.S. 593, 602-03 (1972), a free education, Goss v. Lopez, 419 U.S. 565, 574 (1975), garnished wages, Sniadach v. Family Finance Corp., 395 U.S. 337, 339 (1969), professional licenses, Barry v. Barchie, 443 U.S. 55, 64 (1979), driver's licenses, Bell v. Burson, 402 U.S. 535, 539 (1971), causes of action, Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982), and the receipt of government services, Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12 (1978) (utility services); Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (disability benefits); Goldberg v. Kelly, 397 U.S. 254, 262 (1970) (welfare benefits).

At least two other courts have addressed whether a court order creates a Roth-type entitlement subject to procedural due process protections. Directly applicable here is Coffman v. Wilson Police Dep't, 739 F. Supp. 257 (E.D. Pa. 1990), in which the court found the mandatory language in a restraining order created a "property interest in police enforcement that is cognizable under Roth." Id. at 264. In Flynn v. Kornwolf, 83 F.3d 924 (7th Cir. 1996), the plaintiffs contended the specific terms of a court order created in them an entitlement to employment. After examining the order's terms, the Seventh Circuit disagreed, concluding that the order's language was not of a mandatory nature limiting the employer's discretion regarding the termination of certain positions. Id. at 927 (citing Fittshur v. Village of Menomonee Falls, 31 F.3d 1401, 1406 (7th Cir. 1994)). In doing so, the Seventh Circuit analyzed the court order pursuant to the analysis employed in cases determining whether a state statute creates a property interest.

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

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

Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (emphasis added) (citation and internal quotations omitted). Conversely, "the use of explicitly mandatory language, in connection with the establishment of specified substantive predicates to limit discretion, forces a conclusion that the state has created a [protected] interest." Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 463 (1989) (internal quotations omitted). See also Bd. of Pardons v. Allen, 482 U.S. 369, 379-81 (1987) (mandatory language in regulation, coupled with specific criteria which must be met in order to deny benefit, creates presumption of entitlement); Hewitt v. Helms, 459 U.S. 460, 471 (1983) ("the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest"); Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 11-12 (1979) (structure of regulatory provision together with word "shall" requires decision maker to take specific action unless particular criteria is met). Hence, where a court order commands the grant of a government benefit or service through the use of mandatory language and objective predicates limiting the discretion of official decision makers, a protected property interest exists.⁽⁶⁾ We therefore examine the restraining order to determine whether its "language is so mandatory that it creates a right to rely on that language thereby creating an entitlement that could not be withdrawn without due process." Cosco v. Uphoff, 195 F.3d 1221, 1223 (10th Cir. 1999) (per curiam).⁽⁷⁾

At the outset, we emphasize that Ms. Gonzales' entitlement to police enforcement of the restraining order against Mr. Gonzales arose when the state court judge issued the order, which defined Ms. Gonzales' rights. The restraining order was granted to Ms. Gonzales based on the court's finding that "irreparable injury would result to the moving party if no order were issued," Aplt. Appx. at 29, and that "physical or emotional harm would result if [Mr. Gonzales was] not excluded from the family home."  Id. By its specific terms, the order made clear that Mr. Gonzales could not "molest or disturb the peace" of Ms. Gonzales or her children. Id. Likewise, the order gave notice to Mr. Gonzales that he could "be arrested without notice if a law enforcement officer [had] probable cause to believe that [he] knowingly violated the order." Restraining Order at 2.⁽⁸⁾

The restraining order's language also clearly evinced the state's intent that its terms be enforced by the police. Included within the order was a notice to law enforcement officials stating "[y]ou shall use every reasonable means to enforce this restraining order." Id. It further dictated that an officer

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

Id. (emphasis added). Additionally, officers were required to enforce the order "even if there is no record of it in the restraining order central registry." Id. Finally, the order commanded that the officers "shall take the restrained person to the nearest jail or detention facility utilized by your agency." Id.

Not only does the order itself mandate that it be enforced, but the Colorado legislature passed a series of statutes to ensure its enforcement. The front of Ms. Gonzales' restraining order states that it was issued pursuant to Colo. Rev. Stat. § 14-10-108. That statute details that a party may request the court to issue an order "[e]njoining a party from molesting or disturbing the peace of the other party or of any child [or] [e]xcluding a party from the family home . . . upon a showing that physical or emotional harm would otherwise result." Colo. Rev. Stat. § 14-10-108(2)(b)-(c). In addition, Colo. Rev. Stat. § 14-10-109 dictates that "[t]he duties of police officers enforcing orders issued pursuant to . . . 14-10-108 shall be in accordance with section 18-6-803.5, C.R.S. . . . . " Colo. Rev. Stat. § 14-10-109. Section 18-6-803.5 provides:

(3)(a) Whenever a restraining order is issued, the protected person shall be provided a copy of such order. A peace officer shall use every reasonable means to enforce a restraining order.

(b) A peace officer shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of a restrained person when the peace officer has information amounting to probable cause that:

(I) The restrained person has violated or attempted to violate any provision of the restraining order; and

(II) The restrained person has been properly served with a copy of the restraining order or the restrained person has received actual notice of the existence and substance of such order.

(c) In making the probable cause determination described in paragraph (b) of this subsection (3), a peace officer shall assume that the information received from the registry is accurate. A peace officer shall enforce a valid restraining order whether or not there is a record of the restraining order in the registry.

Colo. Rev. Stat. § 18-6-803.5(3) (2002). This language is similar to that which appears in the restraining order.⁽⁹⁾

The district court concluded that any duty imposed upon police officers to enforce restraining orders is triggered only upon an officer's probable cause determination that the restraining order was being violated. According to the district court, because an officer's probable cause determination implicitly requires the use of judgment and discretion, no absolute duty is derived from the language mandating arrest and hence no protected property right existed. The district court is incorrect.

There can be no question that the restraining order here mandated the arrest of Mr. Gonzales under specified circumstances, or at a minimum required the use of reasonable means to enforce the order. Those circumstances were defined by the restraining order which told the police what its objective terms were and commanded that an arrest occur upon an officer's probable cause determination that the order was being violated and that Mr. Gonzales had notice of the order. The restraining order here specifically directed, with only the narrowest of exceptions, that Mr. Gonzales stay away from Ms. Gonzales and her daughters. Thus, the restraining order provided objective predicates which, when present, mandated enforcement of its terms. See Olim, 461 U.S. at 249; Crown Point I, LLC v. Intermountain Rural Elec. Ass'n, 319 F.3d 1211, 1216-17 (10th Cir. 2003); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 2000); Wash. Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 36 (D.C. Cir. 1998); Mallette v. County Employee's Supplemental Ret. Sys. II, 91 F.3d 630, 635-36 (4th Cir. 1996).

In this context, and contrary to the district court's conclusion, a police officer's finding of probable cause is not a wholly discretionary determination which undermines the mandatory edict of the restraining order or statute. While an officer must obviously exercise some judgment in determining the existence of probable cause, the validity and accuracy of that decision is reviewed under objectively ascertainable standards and judged by what a reasonably well-trained officer would know.  See Malley v. Briggs, 475 U.S. 335, 345 (1986). See also Beck v. Ohio, 379 U.S. 89, 96 (1964) ("When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would warrant a man of reasonable caution in the belief that an offense has been committed.") (quotation and citation omitted); United States v. Davis, 197 F.3d 1048, 1051 (10th Cir. 1999) (probable cause is measured against objective standard and evaluated against what a prudent, cautious and well trained officer would believe).

In Allen, the Supreme Court noted one could use the term "discretion" in two distinct ways.⁽¹⁰⁾ "In one sense of the word, an official has discretion when he or she 'is simply not bound by standards set by the authority in question.'" Allen, 482 U.S. at 375 (citing R. Dworkin, Taking Rights Seriously 32 (1977)). In the alternative, "the term discretion may instead signify that 'an official must use judgment in applying the standards set him [or her] by authority.'" Id. (citing Dworkin, supra at 31, 32). See also Watson v. City of Kansas City, 857 F.2d 690, 695 (10th Cir. 1988) (the determination of probable cause "represents a judgment call on the part of the officer or officers at the scene taking into account the particular circumstances. Although there are clearly guidelines, much depends upon the individual officers' assessment."). In Allen, the Supreme Court concluded parole guidelines created a liberty interest in parole where the guidelines mandated release upon the parole board's finding of certain factors. Allen, 482 U.S. at 381. While the parole board did have discretion within the Court's latter definition of the term to determine whether a prisoner satisfied the release criteria, such discretion did not extinguish the protected interest. So too in the instant case, where a court has specified the objective circumstances in which the police officer is required to act.

An officer must certainly exercise a measure of judgment and discretion in determining whether probable cause exists. However, in making that decision, the officer is bound to "facts and circumstances within the arresting officer's knowledge and of which he or she has reasonably trustworthy information [which] are sufficient to lead a prudent person to believe the arrestee has committed or is committing an offense." Guffey v. Wyatt, 18 F.3d 869, 873 (10th Cir. 1994) (internal quotation omitted). See also Nearing v. Weaver, 670 P.2d 137, 142 & n.7 (Or. 1983) (duty to arrest domestic order violator not discretionary despite requirement that arrest be supported by probable cause); Campbell v. Campbell, 682 A.2d 272, 274-75 (N.J. Super. Ct. Law Div. 1996) (same), rejected in part on other grounds by Macaluso v. Knowles, 775 A.2d 108, 111 (N.J. Super. Ct. App. Div. 2001). Thus, an officer's determination of probable cause is not so discretionary as to eliminate the protected interest asserted here in having the restraining order enforced according to its terms. The officer must make a decision which, upon review, will be deemed right or wrong. Moreover, once probable cause exists, any discretion the officer may have possessed in determining whether or how to enforce the restraining order is wholly extinguished. If the officer has probable cause to believe the terms of the court order are being violated, the officer is required to arrest or to seek a warrant to arrest the offending party.

We also acknowledge there are some settings in which an officer's need to make split-second decisions in exigent circumstances might undermine a claim for protection under the Fourteenth Amendment. Cf. Lewis, 523 U.S. at 854-55 (substantive due process context). The officers here, however, were not faced with the necessity of making an instant judgment in a rapidly evolving situation. More importantly, they were not given carte blanche discretion to take no action whatsoever. The restraining order and its enforcement statute took away the officers' discretion to do nothing and instead mandated that they use every reasonable means, up to and including arrest, to enforce the order's terms.

Nor do we believe the language commanding that the officers use "every reasonable means to enforce this restraining order," Restraining Order at 2, undermines the order's mandatory nature. First, the order's more general command of enforcement by "every reasonable means" does not negate its more specific command that officers shall make arrests or obtain arrest warrants when certain requirements are met.⁽¹¹⁾ Second, the order's language commanding that officers use every reasonable means to enforce the order simply indicates there may be instances where the mandatory duty of enforcing a restraining order could be accomplished through means other than arrest. Such a position is not unprecedented. Courts finding an entitlement in the enforcement of protective orders have defined the property interest in terms of a reasoned police response or reasonable protection. See Siddle v. City of Cambridge, 761 F.Supp. 503, 510 (S.D. Ohio 1991) ("when a protective order exists . . . there is a governmental duty to protect the individual, the scope of which is a reasonable protection given the resources of the governmental agency responsible"); Coffman, 739 F.Supp. at 266 (nature of property right in restraining order is a "reasoned police response"). Hence, while the police officers may have some discretion in how they enforce a restraining order, this by no means eviscerates the underlying entitlement to have the order enforced if there is probable cause to believe the objective predicates are met. After all, states are afforded vast discretion in how to educate their children, but the existence of such discretion did not prevent the Supreme Court from concluding that the ultimate receipt of the benefit ­ a free education ­ was a protected entitlement. See Goss, 419 U.S. at 573-74.

The state's intent in creating a protected interest in the enforcement of restraining orders is highlighted by the legislative history for the statute, which emphasizes the importance of the police's mandatory enforcement of domestic restraining orders. See Colo. Rev. Stat. § 18-6-803.5. Recognizing domestic abuse as an exceedingly important social ill, lawmakers

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

. . . .

First of all, . . . the entire criminal justice system must act in a consistent manner, which does not now occur. The police must make probable cause arrests. The prosecutors must prosecute every case. Judges must apply appropriate sentences, and probation officers must monitor their probationers closely. And the offender needs to be sentenced to offender-specific therapy.

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

Aplt. Appx. at 121-122, Transcript of Colorado House Judiciary Hearings on House Bill 1253, February 15, 1994 (emphasis added). See also Michael Booth, Colo. Socks Domestic Violence, Denver Post, June 24, 1994, at A1 (law mandates arrest when restraining order is violated or police suspect domestic violence); John Sanko, Stopping Domestic Violence: Lawmakers Take Approach of Zero Tolerance as They Support Bill, Revamp Laws, Rocky Mountain News, May 15, 1994, at 5A (police must arrest and remove accused when answering domestic violence calls). The Colorado legislature clearly wanted to alter the fact that the police were not enforcing domestic abuse restraining orders.

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

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

Colo. Rev. Stat. § 18-6-803.5(5) (2002). Hence, even if an officer is mistaken in his or her determination that there is probable cause a domestic abuse restraining order is being violated, the officer will only be held liable in very limited situations. The passage of subsection (5) supports the legislature's goal that officers be vigilant and consistent in enforcing restraining orders by relieving them of any fear that an erroneous enforcement of restraining orders might result in liability. It also supports our conclusion that the state of Colorado fully intended that the recipient of a domestic abuse restraining order have an entitlement to its enforcement.⁽¹²⁾

Our conclusion that the domestic abuse restraining order, whose enforcement is mandated by statute, creates a constitutionally protected entitlement, is supported by case law from other jurisdictions. As the panel opinion for this case noted:

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

Gonzales, 307 F.3d at 1264. Likewise, as we noted earlier, in Coffman the court concluded that the mandatory language in the restraining order itself, rather than the state statute which contained permissive language, created a "property interest in police enforcement that is cognizable under Roth." Coffman, 739 F. Supp. at 264. "An order of court, served upon the [police] Department, that states that the Department shall enforce the order is unambiguous. The word 'shall' is mandatory, not precatory, and its use in a simple declarative sentence brooks no contrary interpretation." Id. See also Campbell, 682 A.2d at 274 (individual officers had duty in state negligence action to enforce restraining order where statute mandated officers arrest violator of order); Nearing, 670 P.2d at 140-42 (same).

Thus, the specific government benefit Ms. Gonzales claims, the government service of enforcing the objective terms of the court order protecting her and her children against her abusive husband, fits within the other types of Roth entitlements acknowledged by the Supreme Court and is properly deemed a property interest. Police enforcement of the restraining order, like a free education, Goss, 419 U.S. at 574, continued utility service, Memphis Light, 436 U.S. at 11-12, and welfare or disability benefits, Goldberg, 397 U.S. at 261-62; Mathews, 424 U.S. at 332, is a government benefit to which Ms. Gonzales and her daughters had a legitimate claim of entitlement. The state court's issuance of the restraining order to Ms. Gonzales, containing mandatory language and specific objective criteria curtailing the decisionmaking discretion of police officers, clearly commanded that the domestic abuse restraining order be enforced. The mandatory statute, its legislative history, and the grant of immunity to officers for the erroneous enforcement of restraining orders provides added weight to our conclusion. For us to hold otherwise would render domestic abuse restraining orders utterly valueless.⁽¹³⁾

"It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined." Roth, 408 U.S. at 577. There can be no doubt Ms. Gonzales and her daughters relied on the enforcement of the restraining order to go about their daily lives. Nor can there be any doubt, if the alleged facts are proven, that their reliance was arbitrarily undermined by the officers' failure to enforce the restraining order, resulting in an unspeakably tragic outcome.

B

Having established that Ms. Gonzales has a protected interest in the enforcement of the restraining order, we must now turn our focus to whether Ms. Gonzales has stated a claim that she was denied "an appropriate level of process." Farthing, 39 F.3d at 1135.⁽¹⁴⁾

The due process clause of the Fourteenth Amendment

raises no impenetrable barrier to the taking of a person's possessions. But the fair process of decision making that it guarantees works, by itself, to protect against arbitrary deprivation of property. For when a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented.

Fuentes v. Shevin, 407 U.S. 67, 81 (1972). "The 'right to be heard before being condemned to suffer grievous loss of any kind . . . is a principle basic to our society.' The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews, 424 U.S. at 333 (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring) and Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). A meaningful hearing protects an individual's

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

Fuentes, 407 U.S. at 81. Based on the allegations in Ms. Gonzales' complaint, she did not receive any process whatsoever prior to the deprivation of her interest in enforcement of the restraining order. Instead, the officers repeatedly ignored and refused her requests for enforcement.⁽¹⁵⁾

The city and officers challenge the contention that Ms. Gonzales should have been afforded some form of process prior to their non-enforcement of the restraining order. They claim Ms. Gonzales' action against them is precluded by Parratt v. Taylor, 451 U.S. 527, 537 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986), which they cite for the proposition that even if a protected property right existed, the

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

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

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

Id. at 28. They also contend an adequate post-deprivation remedy exists. Consequently, they aver that Ms. Gonzales' claims cannot proceed.

We completely disagree. First,

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

Fuentes, 407 U.S. at 81-82 (citing Stanley v. Illinois, 405 U.S. 645, 647 (1972)). Second, the city and officers' reliance on Parratt is misplaced.

Under Parratt, a plaintiff cannot raise a § 1983 procedural due process claim where the loss of property resulted from the random and unauthorized actions of a state actor which made the provision of pre-deprivation process impossible or impracticable, and an adequate state post-deprivation remedy exists. Parratt, 451 U.S. at 540-41, 543. See also Hudson v. Palmer, 468 U.S. 517, 533 (1984) ("an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post deprivation remedy for the loss is available"). Conversely, when the deprivation is caused by established state procedures, the existence of an adequate remedy at state law does not extinguish a procedural due process claim. See Logan, 455 U.S. at 435-37. See also Zinermon v. Burch, 494 U.S. 113, 136-39 (1990).

In Logan, the Court held that the plaintiff suffered a procedural due process violation because established state procedures erroneously deprived him of his property interest in bringing a cause of action. Logan, 455 U.S. at 437. The Court distinguished the case from Parratt, noting that the plaintiff's deprivation was not random and unauthorized, but instead the result of an "'established state procedure' that destroy[ed] his entitlement without according him proper procedural safeguards." Id. at 436.

Of primary importance here, Ms. Gonzales alleges that her deprivation was not the result of random and unauthorized behavior by the individual officers. Rather, she asserts the deprivation was the result of a custom and policy of the City of Castle Rock not to enforce domestic abuse protective orders. In accordance with Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978),

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

Monell, 436 U.S. at 690-91 (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-68 (1970)). See also Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1249 (10th Cir. 1999) ("Absent . . . an official policy, a municipality may also be held liable if the discriminatory practice is so permanent and well settled as to constitute a custom or usage with the force of law.") (quotations omitted). A municipality may also be liable for the "actions of an employee who is not a final policymaking authority if a widespread practice exists to the end that there is a custom or usage with the force of law." Sauers v. Salt Lake County, 1 F.3d 1122, 1129 (10th Cir. 1993) (quotation omitted); see also Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997).

Accepting as true the well-pleaded facts in Ms. Gonzales' complaint, and making all reasonable inferences in her favor, Ruiz, 299 F.3d at 1181, Ms. Gonzales has stated a claim of municipal liability against the City of Castle Rock for the deprivation of her property interest without procedural due process. She alleges that "the City of Castle Rock, through its police department, has created an official policy or custom of failing to respond properly to complaints of restraining order violations" and "the City's police department maintains an official policy or custom that recklessly disregards a person's rights to police protection with respect to protective orders, and provides for or tolerates the non-enforcement of protective orders by its police officers . . . ." Aplt. Appx. at 12.⁽¹⁶⁾ Based on these allegations, Ms. Gonzales has asserted that the deprivation of her property right was not the result of random and unauthorized acts, but instead was pursuant to an official policy or custom of the city. Just as the plaintiff in Logan could not be deprived of his property right by a defective state procedure that afforded him no process, neither may Ms. Gonzales' property right be denied by the city's alleged custom of refusing to enforce restraining orders. In concert with Logan, and based on Ms. Gonzales' complaint against the City of Castle Rock and the individual officers, her procedural due process claims are therefore not precluded by Parratt.

Courts dealing with the convergence of Monell claims and Parratt defenses have held accordingly. For example, in Brooks v. George County, 84 F.3d 157 (5th Cir. 1996), the court held that

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

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

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

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

Wilson, 839 F.2d at 380. See also Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir. 1991) (when plaintiff brings municipal liability action claiming established state procedures deprived him of property interest, Parratt not applicable); Matthias v. Bingley, 906 F.2d 1047, 1058 (5th Cir. 1990) ("rationale of Parratt . . . does not apply when the challenged actions comply with City policy"); Sullivan v. Town of Salem, 805 F.2d 81, 86 (2d Cir. 1986) (if conduct of official was pursuant to town policy, Parratt not applicable); Sanders v. Kennedy, 794 F.2d 478, 482 (9th Cir. 1986) (Parratt does not apply in § 1983 action against individual officers and chief of police where plaintiff alleged property damage incurred during course of arrest was result of official policy, practice or custom); McKee v. Heggy, 703 F.2d 479, 482-83 (10th Cir. 1983) (where record suggested plaintiff's seized car was sold by police department pursuant to customary procedures treating seized vehicles as abandoned, city could be held liable for violation of procedural due process claims).

Thus, when the issue is a deprivation resulting from a municipal policy, not the random acts of rogue officers, neither the city nor individual officers can seek refuge under Parratt. See Matthias, 906 F.2d at 1058 (city not shielded by Parratt from § 1983 liability for acts in compliance with city policy); McKee, 703 F.2d at 482-83 (same); Amons v. Dist. of Columbia, 231 F. Supp. 2d 109, 114 (D.D.C. 2002) (same); Brooks, 84 F.3d at 165-66 (individual officers sued in individual and official capacities may not rely on Parratt where deprivation is result of local custom or procedure); Alexander v. Ieyoub, 62 F.3d 709, 712-13 (5th Cir. 1995) (same); Sullivan, 805 F.2d at 86 (same). Therefore, the assertions of the city and officers that pre-deprivation process was impossible and post-deprivation proceedings adequate are inapposite here.

The district court dismissed Ms. Gonzales' complaint as deficient under Fed. R. Civ. P. 12(b)(6). We thus have no record of what the police actually did or considered, or of what the City's policy actually is. In general, however, we note that "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972). In Mathews, the Supreme Court highlighted the "truism that '[d]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Mathews, 424 U.S. at 334 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)). "The hearing 'need not be elaborate;' indeed, 'something less than a full evidentiary hearing is sufficient.'" Benavidez v. City of Albuquerque, 101 F.3d 620, 627 (10th Cir. 1996) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985)). For example, in Memphis Light, 436 U.S. at 16 & n.17, the Supreme Court held due process satisfied when prior to the termination of utility services, the customer had an opportunity to informally consult with and present her case to a designated employee of the company who had authority to correct any billing mistakes. Likewise, in Goss the Court held that before a student could be suspended from school, he had to

be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.

Goss, 419 U.S. at 581 (emphasis added).

Judge McConnell implies that Ms. Gonzales did receive some form of a hearing from the officers and hence her complaint cannot be construed as challenging the lack of process she received, but, instead, is a challenge to the results of that hearing. Dissent, McConnell, J., at 6. We wholly disagree that Ms. Gonzales' repeated phone calls to the police department and the officers' seemingly outright dismissal of her claims constitutes "the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews, 424 U.S. at 333. According to Ms. Gonzales' complaint, in effect no one was listening.

In specifically determining what process is due a plaintiff, a court must balance

three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 335. See also Watson v. Beckel, 242 F.3d 1237, 1240 (10th Cir. 2001); Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir. 1999). Although the balancing test required by Mathews cannot be undertaken without a developed record, we note that the likelihood here of serious loss is patently evident by the very facts of this case, the murder of children the order was obtained to protect. See Mathews, 424 U.S. at 335. If the "discontinuance of water or heating even for short periods of time may threaten health and safety," thereby requiring pre-deprivation process, Memphis Light, 436 U.S. at 18, certainly one's interest in the enforcement of a domestic abuse protective order must be deemed equally vital. See also Bell, 402 U.S. at 539 (possession of driver's license "essential in the pursuit of a livelihood" and cannot be denied without pre-deprivation process); Goldberg, 397 U.S. at 263 (discontinuation of welfare benefits constitutes "grievous loss" meriting pre-deprivation process). Moreover, if it should turn out the officers repeatedly ignored and denied Ms. Gonzales' requests for enforcement, it follows that no procedures of any form were employed to minimize the risk of erroneous deprivation, see Mathews, 424 U.S. at 335 (court must examine "risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards"), resulting in what can only be described as the arbitrary denial of a protected interest. See Lewis, 523 U.S. at 845-46. Clearly then, additional procedural safeguards could have prevented the risk of erroneous deprivation of Ms. Gonzales' protected interest.

Applying the Mathews analysis to the allegations here, it is apparent that the restraining order enforcement statute provides direction in answering the question of what additional procedural safeguards could have been employed by the police officers. See Colo. Rev. Stat. § 18-6-803.5. In our earlier discussion, we held the restraining order's specific terms, mandatory language, and objective predicates limiting decision maker discretion, created a protected property interest in the enforcement of the domestic abuse protective order granted to Ms. Gonzales. The statute, while absent the specificity of the restraining order, nonetheless guides officers as to the process they should provide a holder of a restraining order before depriving that individual of his or her enforcement rights.

The statute directs police officers to determine whether a valid order exists,⁽¹⁷⁾ whether probable cause exists that the restrained party is violating the order, see Colo. Rev. Stat. § 18-6-803.5(3)(b)(I), and whether probable cause exists that the restrained party has notice of the order. See Colo. Rev. Stat. § 18-6-803.5(3)(b)(II).⁽¹⁸⁾ If, after completing these three basic steps, an officer finds the restraining order does not qualify for mandatory enforcement, the person claiming the right should be notified of the officer's decision and the reason for it.

These steps, while admittedly abbreviated, appropriately acknowledge the exigent circumstances which accompany a request to enforce a domestic abuse protection order and are sufficiently flexible to meet the demands of that particular situation. See Morrissey, 408 U.S. at 481. While this procedure obviously does not provide Ms. Gonzales with the opportunity for a full court hearing, it is not essential that it does so. See Benavidez, 101 F.3d at 627 (something less than full evidentiary hearing can be sufficient to satisfy procedural due process). Regardless of its brevity, the procedure provides the opportunity to present a request for enforcement to the police and to have it adequately and sufficiently examined prior to any official decision to deny enforcement. Of equal importance, if followed, the process would minimize the risk of the arbitrary, erroneous or mistaken deprivation of an individual's right to have a protection order enforced. Mathews, 424 U.S. at 335. By completing the three steps laid out in the statute, the wrongful denial of Ms. Gonzales' right could have been prevented, and three lives potentially spared.

Nor does the identified procedure amount to a substantial burden upon the interests of police departments and municipalities. Indeed, the process would only take minutes to perform, and includes tasks officers regularly perform in the course of their daily duties. Under the balancing test required by Mathews, and reading the allegations of Ms. Gonzales' complaint in the light most favorable to her, we therefore determine the scales tip in her favor. Ms. Gonzales' interest in having the restraining order enforced was substantial, and without question the officers' alleged failure to provide her with any meaningful process prior to refusing to enforce the court order erroneously deprived her of her protected entitlement. Moreover, the use of additional safeguards would have certainly aided in preventing the risk of wrongful deprivation. Finally, requiring the officers to engage in this three step process prior to depriving an individual of her enforcement rights is hardly an unreasonable burden to place on the police.

In sum, we conclude that the process set up in the statute was that the police must, in timely fashion, consider the merits of any request to enforce a restraining order and, if such a consideration reveals probable cause, the restrained person should be arrested. Here, Ms. Gonzales alleges that due to the city's policy and custom of failing to properly respond to complaints of restraining order violations, she was denied the process laid out in the statute. The police did not consider her request in a timely fashion, but instead repeatedly required her to call the station over several hours. The statute promised a process by which her restraining order would be given vitality through careful and prompt consideration of an enforcement request, and the constitution requires no less. Denial of that process drained all of the value from her property interest in the restraining order.

If one considers that constitutional process includes a right to be heard, Ms. Gonzales was deprived of that process because, according to her allegations, the police never "heard" nor seriously entertained her request to enforce and protect her interests in the restraining order. Alternatively, if one considers that the process to which she was entitled was a bona fide consideration by the police of a request to enforce a restraining order, she was denied that process as well. According to Ms. Gonzales' allegations, the police never engaged in a bona fide consideration of whether there was probable cause to enforce the restraining order. Their response, in other words, was a sham which rendered her property interest in the restraining order not only a nullity, but a cruel deception.

Based on the well-pleaded facts of Ms. Gonzales' complaint, we hold that she has adequately stated a procedural due process claim upon which relief can be granted. She had a property interest in the enforcement of the restraining order which was allegedly taken from her without due process of law. Her § 1983 action can therefore proceed.

We must next address whether the individual officers, acting pursuant to

the official policy or custom of the City of Castle Rock, were entitled to the defense of qualified immunity. Sullivan, 805 F.2d at 87. Under the doctrine of qualified immunity, a government actor is not subject to liability unless it is "sufficiently clear that a reasonable official would have understood that his conduct violated the right." Currier v. Doran, 242 F.3d 905, 923 (10th Cir.), cert. denied, 534 U.S. 1019 (2001). See also Lybrook v. Members of the Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1337 (10th Cir. 2000); Liebson v. N. M. Corr. Dep't, 73 F.3d 274, 276 (10th Cir. 1996).

"Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Currier, 242 F.3d at 923 (citing Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)). In the instant case, we cannot hold that a reasonable officer would have known that a restraining order, coupled with a statute mandating its enforcement, would create a constitutionally protected property interest. No Supreme Court or Tenth Circuit case has so held. Nor have we found any other circuit court cases addressing this specific question. Somewhat analogous cases from the Sixth and Eleventh Circuits have held that comprehensive state child welfare statutes created liberty interests in personal safety and the freedom from harm which gave rise to procedural due process protections. See Meador v. Cabinet for Human Res., 902 F.2d 474, 476 (6th Cir. 1990); Taylor v. Ledbetter, 818 F.2d 791, 799 (11th Cir. 1987) (en banc). Likewise, two district courts, addressing facts similar to those in the present case, held that protective orders or their supporting statutes created a property interest in enforcement. See Siddle, 761 F. Supp. at 509; Coffman, 739 F. Supp. at 264. Nevertheless, this precedent is insufficient to clearly establish the law for this circuit. Officers Ahlfinger, Brink and Ruisi are thus entitled to the affirmative defense of qualified immunity.

The same cannot be said for the City of Castle Rock. It is well established that municipalities cannot avail themselves of the qualified immunity doctrine. See Leatherman v. Tarrant Co. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993); Dill v. City of Edmond, 155 F.3d 1193, 1212 (10th Cir. 1998). Ms. Gonzales can proceed with her § 1983 action against the city.

IV

Accordingly, we REVERSE the district court's dismissal of Ms. Gonzales' procedural due process claim, and REMAND for further proceedings in accordance with this opinion.

No. 01-1053, Gonzales v. City of Castle Rock

KELLY, Circuit Judge, joined by TACHA, Chief Circuit Judge, and O'BRIEN, Circuit Judge, concurring in part and dissenting in part.

The facts of this case give new meaning to the old adage that hard cases make bad law. I understand this court's desire to fashion a cause of action to remedy what charitably could be described as gross negligence. However, I do not agree that the Fourteenth Amendment elevates what is essentially a case of negligence by a state actor into a constitutional violation. Accordingly, I respectfully dissent from the court's constitutionalization of state law.

I agree that the individual officers are entitled to qualified immunity, but disagree that a protected property interest exists "in the enforcement of the terms of [a] restraining order." Ct. Op. at 14. The court reaches its conclusion based upon the restraining order and the Colorado statutes upon which it is based, particularly Colo. Rev. Stat. § 18-6-803.5(3) (2002). Colorado has enacted a statute making it a misdemeanor to knowingly violate a protective order, and then specified peace officers' and prosecutors' non-exclusive duties in enforcing the statute as well as the protective order itself. Colo. Rev. Stat. § 18-6-803.5(1)­(3); People v. Coleby, 34 P.3d 422, 424 (Colo. 2001). A protected person may also initiate contempt proceedings against one who violates a restraining order. Colo. Rev. Stat. § 18-6-803.5(7).

This court retreats from the holding of the panel opinion that the statute, by its use of objective predicates and seemingly mandatory outcomes, creates a property interest in the enforcement of a protective order by every reasonable means, including arrest whenever probable cause exists to believe the restrained person has violated the order. Gonzales v. City of Castle Rock, 307 F.3d 1258, 1265-66 (10th Cir. 2002). Instead, the court holds that the property interest derives from the protective order that is issued by a court pursuant to the statute. Ct. Op. at 21 n.9. This is largely a distinction without a difference, for the same statutory provisions the panel opinion relied upon are repeated in the protective order.⁽¹⁾ Moreover, the protective order binds the parties to it; it cannot bind the peace officers who are non-parties.

A. Judicial Notice

The court issues its pronouncement by taking judicial notice on appeal (and then supplementing the record with) of the back of a restraining order form. Obviously, when reversing a district court, we should hesitate to take judicial notice of (or supplement the record with), ostensibly dispositive materials not before the district court.

B. Due Process

The panel decision correctly rejected the substantive due process claims on the authority of DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1989), which held "that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause," id. at 197, absent a special relationship between the State and the victim or some role of the State in creating the danger. Gonzales, 307 F.3d at 1262-63; see also Duong v. County of Arapahoe, 837 P.2d 226, 229 (Colo. Ct. App. 1992) (rejecting claim that county defendants breached a constitutional duty by failing to protect wife from husband where a permanent restraining order had been issued and the judge specifically requested security) (citing Estate of Gilmore v. Buckley, 787 F.2d 714 (1st Cir. 1986)⁽²⁾). Neither exception applies in this case, and although the facts alleged plainly state a claim for gross negligence, not every common law duty supports a federal due process violation.

The Plaintiff, however, invokes a different source of due process protection by claiming a property interest in the enforcement of her protective order, which she argues could not be deprived without an opportunity to be heard. However improbable it may be that Ms. Gonzales sought only a hearing on the decision not to enforce the protective order­rather than enforcement itself­I take her argument at face value and analyze her case under our procedural due process precedents.⁽³⁾ Defendants argue that the panel's decision on the procedural due process claim is discordant with DeShaney because "a private individual need not have a special relationship with the state, nor must he show the state created or enhanced the danger to establish a Fourteenth Amendment violation . . . . Instead, the individual only need cite a state law containing mandatory language and then assert that a property interest has been denied without the benefit of procedural due process." Aplees. Reh'g Br. at 6. Given that this statute primarily sets out a criminal offense and then contains procedure on how the offense is to be prosecuted, I agree.

In Board of Regents v. Roth, 408 U.S. 564, 569-71 (1972), the Supreme Court held that the procedural due process requirements of the Fourteenth Amendment apply only where the particular interest at stake falls within the Amendment's protection of liberty or property. Acknowledging that the property interests protected by procedural due process "extend well beyond actual ownership of real estate, chattels, or money," the Court stated that it has "at the same time observed certain boundaries. For the words 'liberty' and 'property' in the Due Process Clause . . . must be given some meaning." Id. at 572. The Court went on to define a property interest as an interest "that a person has already acquired in specific benefits." Id. at 576 (emphasis added). Moreover, the Court added that to have a property interest in a benefit, the individual claiming the interest "must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. at 577.

From Roth, it is apparent that the test for determining whether an interest in a benefit constitutes "property" for due process purposes consists of two distinct elements. First, that benefit must be specific, and second, the individual claiming the interest must have a legitimate claim of entitlement to the benefit. It has always been the law that mere procedure contained in a statute does not create a property interest­were it otherwise every statute prescribing procedure would confer procedural due process rights. See Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983).

The panel opinion determined that a portion of the statute, Colo. Rev. Stat. § 18-6-803.5(3), goes beyond establishing mere procedural guidelines, and instead contains mandatory directives to enforce protective orders if certain substantive conditions are fulfilled. Gonzales, 307 F.3d at 1264-66. The court now focuses on those same mandatory directives as contained in the protective order. It concludes by negative inference that the failure to enforce the protective order results in a denial of a property interest for which due process protections are required. See Sandin v. Connor, 515 U.S. 472, 480-81 (1995); Hewitt v. Helms, 459 U.S. 460, 472 (1983); Cosco v. Uphoff, 195 F.3d 1221, 1223 (10th Cir. 1999). Even though the court has shifted its primary focus from the statute to the protective order, the statute very much matters because the form protective order contains a notice provision (on the back) that essentially repeats the statute.

Where an individual claims a property or liberty interest based upon a state statute or regulation containing mandatory language, that language must "requir[e] that a particular result is to be reached upon a finding that the substantive predicates are met." Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 464 (1989); see also Sandin, 515 U.S. at 481 (describing liberty interest under this approach as an enforceable expectation that mandatory language and substantive predicates "would produce a particular outcome"). Where discretion is not limited, the language is not mandatory for purposes of this analysis, and a property or liberty interest is not created. See Olim, 461 U.S. at 249-50 (no liberty interest in limiting prison transfers where regulations described procedure but did not place substantive limits on discretion). Stated another way, if a particular result is not required, no liberty or property interest is created. See Thompson, 490 U.S. at 464.

When the statute is viewed as a whole, it is apparent that it does not require a particular result in every case and necessarily involves discretion. This is a criminal statute that not only defines the crime of violation of a protective order, but also specifies how enforcement, including arrest and prosecution, may occur. A general directive in subsection 3(a) requires that "[a] peace officer shall use every reasonable means to enforce a restraining order." Colo. Rev. Stat. § 18-6-803.5(3)(a). Enforcement of a protective order at this level is necessarily procedural­peace officers do not decide guilt or innocence, nor do they confer substantive benefits, including the right to be free of the activities proscribed by the statute. See id. Subsection 3(b) then elaborates on but one means of enforcement­arrest­and then contains a totally unremarkable probable cause requirement. Id. § 18-6-803.5(3)(b). It requires a peace officer to arrest a restrained person on probable cause that a protective order is being violated and the restrained person has notice of the order. Id. Even then it gives discretion to an officer to merely seek a warrant "if an arrest would be impractical under the circumstances." Id. The statute acknowledges means of enforcement other than arrest. See id. § 18-6-803.5(5) (containing an exculpatory provision for a peace officer "arresting a person for violating a protection order or otherwise enforcing a protection order") (emphasis added). At best, these provisions are specifications of procedure, not the creation of substantive rights inuring to the benefit of protected persons.

While the statute may channel the discretion of law enforcement, it in no way eliminates that considerable discretion for obvious reasons. As the panel noted, "an arrest is not always necessary to enforce a restraining order." Gonzales, 307 F.3d at 1265. It all depends upon the circumstances. Intervention short of an immediate arrest may be more effective, safer and more efficient for the protected person and law enforcement. Moreover, an arrest or an arrest warrant is influenced by other discretionary factors apart from probable cause, including the well-being of the protected person, the peace officer, the restrained person and the community. Whether we define the interest as "reasonable means to enforce a protection order," Colo. Rev. Stat. § 18-6-803.5(3)(a), or "in terms of a reasoned police response or reasonable protection," Ct. Op. at 27, the conclusion is the same­these formulations deal with procedure and simply lack the concrete specificity necessary for a property interest.

Because of the varied circumstances that law enforcement officers confront, the Colorado legislature obviously did not prescribe arrest in all cases. Bear in mind this restraining order was issued ex parte, allowing the restrained party to move for its dissolution or modification on two days notice to the person obtaining the order. App. 29; Colo. Rev. Stat. § 14-10-108(6). The restraining order was modified and made "permanent" in another temporary order not part of a final decree. App. 30. Colo. Rev. Stat. § 14-10-108(5)(b)­(c). Whether we call it "a property interest in the enforcement of the terms of [a] restraining order," Ct. Op. at 14, or a property interest in "the government service of enforcing the objective terms" of a protective order, id. at 32, the interest identified is too general. It cannot be reduced to definite outcomes, regardless of whether the court relies upon the statute or part of an order that provides notice of the statute's terms. It matters not that the restraining order was issued on a showing of irreparable injury and that it forbade Mr. Gonzales from molesting or disturbing the peace of any party or of any child as envisioned by the statute. App. at 29; Colo. Rev. Stat. 14-10-108(2)(b)­(c), (3). The cases recognizing property and liberty interests have dealt with particular and discrete outcomes where due process is required based upon state law. See Washington v. Harper, 494 U.S. 210, 221 (1990) (liberty interest in freedom from arbitrary administration of anti-psychotic medication); Hewitt, 459 U.S. at 471-72 (liberty interest in freedom from administrative segregation); Vitek v. Jones, 445 U.S. 480, 487-91 (1980) (liberty interest in freedom from an arbitrary, involuntary transfer to a mental hospital); Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 11-12 (1979) (liberty interest in parole); Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974) (liberty interest in avoiding loss of good time credits); Roth, 408 U.S. at 578 (potential property interest in re-employment for the next year); Goldberg v. Kelly, 397 U.S. 254, 260-61 (1970) (property interest in welfare benefits requiring pre-termination hearing). Enforcement of a protective order is different­it is necessarily case by case, influenced by a variety of decisionmakers and no single remedy would suffice. There just is not a certain outcome in which to have a legitimate expectation of entitlement. See Doe v. Hennepin County, 858 F.2d 1325, 1328 (8th Cir. 1988) ("To have an entitlement the benefit must be clearly definable; public assistance, social security or unemployment benefits are examples of such.").

As noted, although the court emphasizes the language contained in the protective order (against a backdrop of the statute), its analysis differs little from the panel opinion because both rely upon the statute's seemingly mandatory terms. See Ct. Op. at 21. If anything, the language in the protective order in effect complicates the analysis. First, the fact that the form of order contained a "Notice to Law Enforcement Officials" repeating the language of the statute does not eliminate the discretion of law enforcement. That section is preceded by a "Notice to Restrained Party" indicating "You may be arrested without notice if a law enforcement officer has probable cause to believe that you have knowingly violated this order." (emphasis added). This suggests law enforcement discretion. Second, although a later temporary order makes the restraining order permanent, the later order modified the restraining order and specifically allowed parenting time for the father. Some of that time was with notice and consent, and some was without. Regardless, the order in effect plainly contemplated that the father was to have contact with the children on alternating weekends, at mid-week dinner visits arranged by the parties, and during two weeks of the summer. App. at 30-31. The statement that: "The restraining order here specifically directed, with only the narrowest of exceptions, that Mr. Gonzales stay away from Ms. Gonzales and her daughters," Ct. Op. at 23, is somewhat beside the point, as well as inaccurate, because the restraining order had been significantly modified when the incident occurred. Determining whether the father was in compliance with the order then in effect is not quite as obvious as the court portrays it to be.

Unlike a money judgment, a protective order is not collectable, transferable, or bankable. The temporary protective order here was not an adjudication of Ms. Gonzales's rights against the law enforcement officials or an enforceable agreement between them. Instead, as its caption indicates, the protective order was issued in favor of Ms. Gonzales to protect her and her children from her husband. See Colo. Rev. Stat. § 14-10-108(2) ("either party [spouse] may request the court to issue a temporary injunction . . . [e]njoining a party . . . [e]xcluding a party . . . .") (emphasis added).

The conclusion that Ms. Gonzales had a property interest in the enforcement of the terms of the protective order strongly implies that law enforcement was bound by the order also. This is untenable. For obvious reasons, the law is very specific when it comes to the legal effect of an injunction or temporary restraining order:

Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

Colo. R. Civ. P. 65(d) (emphasis added); accord Fed. R. Civ. P. 65(d). By operation of law, the defendants as non-parties were not bound by this temporary restraining order, nor could they be said to be acting in active concert or participation with either party in this case. The restraining order in this case cannot do service for a mandatory affirmative injunction that names the Defendants and the tasks they must accomplish. That Ms. Gonzales did not have an entitlement to action by law enforcement under the terms of the order is buttressed by Colorado's statutory recognition that the "violation of a protective order" is committed not by a failure of law enforcement to take specific action, but when a person subject to an order's provisions "contacts, harasses, injures, intimidates, molests, threatens, or touches any protected person or enters or remains on premises or comes within a specified distance of a protected person or premises." Colo. Rev. Stat. § 18-6-803.5(1). Indeed, the back of the form also informs a restrained party that violation of such an order "will . . . constitute contempt of court," consistent with a remedy envisioned by the statute. See Colo. Rev. Stat. 18-6-803.5(7).

Thus I fully agree with Judge O'Brien:

Any process to which Ms. Gonzales was due based upon the decretal, and therefore enforceable, language of the TRO (and centuries of jurisprudence) has nothing to do with law enforcement officers. It is the right to an appropriate remedy against a contumacious party, judicially imposed after a hearing. That process was never denied Ms. Gonzales.

O'Brien, J., dissent at 9. The court rejects our observations about the limits of a restraining order as a source of constitutional tort liability as tantamount to suggesting "that police officers in Colorado are at liberty to ignore the terms of court orders, especially where such orders clearly direct police enforcement and are issued pursuant to legislation anticipating the same." Ct. Op. at 21 n.9. The court follows this with citations to cases illustrating that other states "have by no means sanctioned an officer's failure to enforce terms appearing in a restraining order and mandated by statute." Id. The cases all involve applications of state law (negligence or statutory negligence) and immunity defenses. Of course, police officers in Colorado are not at liberty to ignore the terms of statutes or court orders, but whether state tort law would recognize a legal duty of care for which damages may be awarded is a wholly separate question from (1) whether the officers were bound by the order and could be held to answer in contempt for any violation, and (2) whether the terms of the order create a non-discretionary entitlement. That one state court has recognized a private right of action based upon similar statutory terms, Nearing v. Weaver, 670 P.2d 137, 140-41 (Ore. 1983), does not persuade me that Colorado would do so, particularly given the seemingly mandatory language contained in so many Colorado enactments and the expansion of liability that such a change portends.

DeShaney foreshadowed an argument that state statutes (and perhaps orders incorporating those statutes) might create an entitlement to receive protective services. DeShaney, 489 U.S. at 195 n.2. Sandin suggests limits on recognizing a liberty interest based upon mandatory language and substantive conditions contained in a state statute or regulation. The Court indicated that such an approach "may be entirely sensible in the ordinary task of construing a statute defining rights and remedies available to the general public," but concluded that it is "less sensible in the case of a prison regulation primarily designed to guide correctional officials in the administration of a prison." Sandin, 515 U.S. at 481-82. This court concludes that the approach has not been foreclosed "in non-prison settings," Ct. Op. at 18 n.6, and applies it here, but a more nuanced approach ought to be considered. After all, the Court abandoned this approach because it focused more on the statutory language rather than the nature of the alleged deprivation and "in practice [was] difficult to administer and . . . produce[d] anomalous results." Sandin, 515 U.S. at 481, 483 n.5. This is apparent when one considers the apparently mandatory duties of the police chief who "shall apprehend any person in the act of committing any offense against the laws of the state or ordinances of the city and, forthwith and without any warrant, bring such person before a municipal judge, county judge, or other competent authority for examination and trial pursuant to law." Colo. Rev. Stat. § 31-4-112 (2003). Although couched in mandatory terms, it does not create a property interest in enforcement of the criminal law any more than the specific criminal statute in this case or the order which incorporates the terms of the statute.

In concluding that the order creates mandatory duties, the court relies upon language (contained in the statute and the notice provisions of the order) that law enforcement "shall use every reasonable means" and "shall arrest" on probable cause. Ct. Op. at 20-21; Colo. Rev. Stat. § 18-6-803.5(3)(a)­(b); see also Gonzales, 307 F.3d at 1265 ("shall" means "shall" and creates a mandatory obligation). Amici Colorado Municipal League, Colorado Counties, Inc., and the Colorado Association of the Chiefs of Police note that the term "shall" is used throughout the statute to describe the procedural requirements attendant to arrest and prosecution, and that each of these acts of criminal procedure could subject local governments and individual peace officers to liability for civil damages and attorney's fees under 42 U.S.C. §§ 1983 and 1988.⁽⁴⁾

Amici correctly focus this court's attention on the numerous procedural requirements in this statute, prompting the question of whether the procedural requirements in the peace officer provision should be construed differently than the provisions attendant to subsequent prosecution.

Notwithstanding the legislative history relied upon by this court, the language of Colo. Rev. Stat. § 18-6-803.5(3) simply does not require peace officer arrests in every case any more than it requires prosecutors to prosecute every case. App. 122; see also Colo. Rev. Stat. 18-6-803.5(3)(d) ("The arrest and detention of a restrained person is governed by applicable constitutional and applicable state rules of criminal procedure."). By the same reasoning, the recitation of the statute in the protective order's notice provisions does not automatically require a peace officer arrest in this specific case. While the statute channels a peace officer's discretion by establishing factors that inform the probable cause determination for an arrest, peace officer discretion is not eliminated. Any other conclusion necessarily means that enforcement of this misdemeanor offense or this particular protective order prevails over any other law enforcement priorities and regardless of the circumstances. Those circumstances (not addressed by the statute or the protective order) might include the apparent seriousness of the alleged violation, the likely response of the restrained person, i.e. flight, violence or acquiescence, and the existence of any cooperating witnesses or protected persons. Such could not have been the intent of the Colorado legislature, let alone the judge that issued this protective order. See Sealed v. Sealed, 332 F.3d 51, 57-59 (2nd Cir. 2003) (finding statute that contained mandatory language authorizing removal of child ambiguous insofar as creating a substantive entitlement and certifying the interpretive issue to state supreme court). Just as in Sandin, the purpose of the section of the statute relied upon by this court is to guide law enforcement in the administration of a criminal offense. To be sure, the statute evinces serious concerns about protected persons, but not to the exclusion of protecting the public, other law enforcement priorities, and peace officers themselves.

Finally, the court decides what process is due here. An officer must determine whether a valid order exists, and whether there is probable cause to believe that the restrained person has notice of the order and is violating it. Ct. Op. at 46. If the officer will not enforce the order, "the person claiming the right should be notified of the officer's decision and the reason for it." Id. Because I would not find a property interest, it is unnecessary to comment on the utter impracticality of requiring law enforcement officers to conduct pre-deprivation hearings in the course of their other duties. See Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988) (en banc) ("It is hardly possible to hold hearings in advance to decide whether fire dispatchers will turn deaf ears to cries of distress.").

No. 01-1053, Gonzales v. City of Castle Rock

McCONNELL, J., joined by TACHA, C.J., and KELLY and O'BRIEN, JJ., concurring in part and dissenting in part.

Jessica Gonzales's complaint sets forth claims under the Due Process Clause of the Fourteenth Amendment without distinguishing between the procedural and substantive components of that provision. The district court analyzed the complaint separately under both procedural and substantive due process standards, and dismissed the complaint in both respects. The majority affirms dismissal of the substantive due process claim, but reverses as to the procedural claim. The majority devotes the bulk of its opinion to determining "whether a court-issued domestic restraining order, whose enforcement is mandated by a state statute, creates a property interest protected by the due process clause of the Fourteenth Amendment." Maj. Op. 2. I dissent on the ground that, even assuming the restraining order coupled with the statute creates a property interest protected by the Due Process Clause, Ms. Gonzales's complaint raises only a substantive and not a procedural claim.⁽¹⁾

The facts, as alleged in the complaint, are that Ms. Gonzales repeatedly contacted the police regarding an apparent violation of a domestic relations restraining order, but the officers did nothing, as a result of which her children were murdered by their father. The Supreme Court has held that the Due Process Clause, of its own force, does not create a liberty or property interest in protection by the police. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196 (1989). The majority correctly points out, however, that DeShaney is arguably distinguishable in this case, because the plaintiff does not rely on the Due Process Clause itself as the foundation for her claim of constitutional entitlement, but on a source in state law. Maj. Op. 11-12. The majority never convincingly explains, however, why her claim is procedural rather than substantive.

When a plaintiff asserts that a protected liberty or property interest has been infringed by action of the executive branch (such as police officers), the Supreme Court holds that the primary test for whether the action violates substantive due process is whether it "shocks the conscience." County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).⁽²⁾ Only when a plaintiff asserts that government action is procedurally unfair ­ usually for lack of a hearing ­ does the balancing test of Mathews v. Eldridge, 424 U.S. 319, 333-35 (1976), invoked by the majority (Maj. Op. 43-44), apply. Mathews is a far different, and less restrictive, test for a plaintiff to satisfy than the "shocks the conscience" test.

The question is whether the facts, as alleged, constitute a procedural due process claim. I think they do not. The "touchstone of due process" ­ both substantive and procedural ­ "is protection of the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 558 (1974), quoted in Lewis, 523 U.S. at 845. But a procedural due process claim is based on "a denial of fundamental procedural fairness," while a substantive claim is based on the "exercise of power without any reasonable justification in the service of a legitimate governmental objective." Id. at 845-46.

Although the majority employs the language of procedural due process, Ms. Gonzales's complaint contains no reference to procedural issues in any form. She does not complain that she was denied a "right to be heard," Mathews, 424 U.S. at 333, or that the police conduct was "procedurally unfair," Maj. Op. 33 n.13. She makes no allegations regarding "the manner by which the police allegedly deprived [her] of her interest in enforcement of the restraining order." Maj. Op. 36 n.15 (emphasis in original). She does not allege that if sh