Castle Rock v. Gonzales,
545 U.S. 748 (2005)

Annotate this Case



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

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

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

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

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

   (a) The Due Process Clause’s procedural component does not protect everything that might be described as a government “benefit”: “To have a property interest in a benefit, a person … must … have a legitimate claim of entitlement to it.” Board of Regents of State Colleges v. Roth, 408 U. S. 564, 577. Such entitlements are created by existing rules or understandings stemming from an independent source such as state law. E.g., ibid. Pp. 6–7.

   (b) A benefit is not a protected entitlement if officials have discretion to grant or deny it. See, e.g., Kentucky Dept. of Corrections v. Thompson, 490 U. S. 454, 462–463. It is inappropriate here to defer to the Tenth Circuit’s determination that Colorado law gave respondent a right to police enforcement of the restraining order. This Court therefore proceeds to its own analysis. Pp. 7–9.

   (c) Colorado law has not created a personal entitlement to enforcement of restraining orders. It does not appear that state law truly made such enforcement mandatory. A well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes. Cf. Chicago v. Morales, 527 U. S. 41, 47, n. 2, 62, n. 32. Against that backdrop, a true mandate of police action would require some stronger indication than the Colorado statute’s direction to “use every reasonable means to enforce a restraining order” or even to “arrest … or … seek a warrant.” A Colorado officer would likely have some discretion to determine that—despite probable cause to believe a restraining order has been violated—the violation’s circumstances or competing duties counsel decisively against enforcement in a particular instance. The practical necessity for discretion is particularly apparent in a case such as this, where the suspected violator is not actually present and his whereabouts are unknown. In such circumstances, the statute does not appear to require officers to arrest but only to seek a warrant. That, however, would be an entitlement to nothing but procedure, which cannot be the basis for a property interest. Pp. 9–15.

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

   (e) Even were the Court to think otherwise about Colorado’s creation of an entitlement, it is not clear that an individual entitlement to enforcement of a restraining order could constitute a “property” interest for due process purposes. Such a right would have no ascertainable monetary value and would arise incidentally, not out of some new species of government benefit or service, but out of a function that government actors have always performed—arresting people when they have probable cause. A benefit’s indirect nature was fatal to a due process claim in O’Bannon v. Town Court Nursing Center, 447 U. S. 773, 787. Here, as there, “[t]he simple distinction between government action that directly affects a citizen’s legal rights … and action that is directed against a third party and affects the citizen only … incidentally, provides a sufficient answer to” cases finding government-provided services to be entitlements. Id., at 788. Pp. 17–19.

366 F. 3d 1093, reversed.

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

Primary Holding

There is no procedural due process claim when a local government does not actively enforce a restraining order to protect its holder.


Jessica Gonzales obtained a restraining order against her estranged husband that prohibited him from seeing Gonzales or their three daughters outside prescheduled visits. He abducted the three children shortly afterward, and the police responded to her requests for help by telling her to wait and see whether the husband returned the children. Her husband opened fire inside the police station six hours later, and he was killed by the police. During the previous night, he had killed all three of their children.

Gonazales argued that the police had violated her due process rights by willfully or negligently declining to enforce the restraining order that the court had granted her. The lower court determined that this complaint failed to state a claim, but the Tenth Circuit ruled that she had a claim limited to procedural rather than substantive due process. It based the decision on mandatory language in the Colorado law on restraining orders, finding that this entitled someone protected under a restraining order to receive protective services from the police. The court also noted that the failure of the police to attempt to arrest her husband might well have violated the procedural due process rights that were implied under this state law.



  • Antonin Scalia (Author)
  • William Hubbs Rehnquist
  • Sandra Day O'Connor
  • Anthony M. Kennedy
  • David H. Souter
  • Clarence Thomas
  • Stephen G. Breyer

Due process is not implicated in these circumstances because the holder of a restraining order has no constitutionally protected property interest in enforcing the order. Moreover, she was not entitled by state law to a mandatory action by the police. Restraining orders give police discretion to determine what they need to do to enforce them, which may or may not include arresting the subject of the order, depending on the circumstances.


  • John Paul Stevens (Author)
  • Ruth Bader Ginsburg

A property interest does arise from a restraining order, and it is protected by the Due Process Clause. Under state law, the police were required to enforce the restraining order, which is an individual benefit. However, the Colorado Supreme Court should determine the question presented in this case because it arises under state law, and a federal court should not resolve it de novo.


  • David H. Souter (Author)
  • Stephen G. Breyer

Case Commentary

This decision seemed disheartening for advocates of the movement to stop violence against women. It appears to render restraining orders relatively ineffective by providing no penalties for perfunctory enforcement. The substantial amount of discretion given to police in these situations means that they are not required to take any particular action.

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