S. Ct. on 42 USC 1983 Due Process

The S.Ct. released an opinion in the case of Town of Castle Rock v. Gonzales concerning a case where a mother had a restraining order against a father. The father kidnapped the kids and later murdered them. The facts are reasonably horrible. The kids disappeared from the yard between 5 and 5:30. Mom noticed the kids were gone, suspected the husband had them, and called the police at about 7:30 and, when the officers arrived at her home, showed them a copy of the restraining order and requested it be enforced. The officers said they couldn’t do anything and told her to call back if the kids were still gone at 10. At 8:30 mom talked to dad on the cell phone. Dad said he had the kids at an amusement park in Denver. Mom called the police and requested that the police check out the amusement park and get the kids back for her. They told her to call back at 10. At 10 she called back. They said call back at midnight. At midnight she called, and eventually got an officer dispatched to her home at 12:50 a.m. The investigating officer took the report and but didn’t try to enforce the order, instead he went to dinner. At 3:20 a.m. dad showed up at the police station and opened fire on the police. They returned fire, killing him. In the cab of dad’s pickup truck were the bodies of the 3 children.

Mom sued the city on her own behalf and on behalf of her dead children under 42 USC 1983 under a theory that their due process rights had been violated both procedurally and substantively. The 10th Circuit denied her substantive due process claim but upheld the procedural due process claim, holding “protected property interestin the enforcement of the terms of her restraining order” and that the town had deprived her of due process because “the police never ‘heard’ nor seriously entertained her request to enforce and protect her interests in the restraining order.”

The Supreme Court overturned the 10th Circuit decision in an opinion written by Justice Scalia joined by Rehnquist, O’Connor, Kennedy, Souter, Thomas and Breyer. Justices Stevens and Ginsburg dissented. Justice Scalia mentioned that this question had been left opened by the 1989 case of DeShaney v. Winnebago County (The “Poor Joshua” case for those of you who remember Justice Steven’s dissent.) Scalia described the question in DeShaney:

As the Court of Appeals recognized, we left a similar question unanswered in DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189 (1989), another case with “undeniably tragic” facts: Local child-protection officials had failed to protect a young boy from beatings by his father that left him severely brain damaged. Id., at 191–193. We held that the so-called “substantive” component of the Due Process Clause does not “requir[e] the State to protect the life, liberty, and property of its citizens against invasion by private actors.” Id., at 195. We noted, however, that the petitioner had not properly preservedthe argument that—and we thus “decline[d] to consider” whether—state “child protection statutes gave [him] an ‘entitlement’ to receive protective services in accordance with the terms of the statute, an entitlement which would enjoy due process protection.”

The 10th Circuit’s decision turned on a Colorado statute which provided, among other things, “A peace officer shall enforce a valid restraining order whether or not there is a record of the restraining order in the registry.” The 10th Circuit held that this statute demonstrated the state of Colorado’s clear intent “to alter the fact that the police were not enforcing domestic abuse retraining orders,” and thus its intent “that the recipient of a domestic abuse restraining order have an entitlement to its enforcement.” Any other result, it said, “would render domestic abuse restraining orders utterly valueless.” If the recipient of the restraining order had an entitlement to its enforcement, the argument goes, then a failure to enforce the restraining order deprives the recipient of its value and, therefore, constitutes deprivation of property without due process in violation of the 5th and 14th Amendments.

The Supreme Court regarded the 10th Circuit’s language as hyperbole.

Whether or not respondent had a right to enforce the restraining order, it rendered certain otherwise lawful conduct by her husband both criminal and in contempt of court. The creation of grounds on which he could be arrested, criminally prosecuted, and held in contempt was hardly “valueless”—even if the prospect of those sanctions ultimately failed to prevent him from committing
three murders and a suicide.We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory. A well established tradition of police discretion has longcoexisted with apparently mandatory arrest statutes.

With respect to police discretion, the Court noted:

It is hard to imagine that a Colorado peace officer would not have some discretion to determine that—despite probable cause to believe a restraining order has been violated—the circumstances of the violation or the competing duties of that officer or his agency counsel decisively against enforcement in a particular instance. The practical necessity for discretion is particularly apparent in a case such as this one, where the suspected violator is not actually present and his whereabouts are unknown.

With respect to the entitledment, the Court noted:

Respondent does not specify the precise means of enforcement that the Colorado restraining-order statute assertedly mandated—whether her interest lay in having police arrest her husband, having them seek a warrant for his arrest, or having them “use every reasonable means, up to and including arrest, to enforce the order’s terms,” Such indeterminacy is not the hallmark of a duty that is mandatory. Nor can someone be safely deemed “entitled” to something when the identity of the alleged entitlement is vague.

Even if the obligation to enforce the warrant was mandatory on the police, the Court argues, that wouldn’t necessarily mean that the mandate constituted an entitlement for the benefit of the Respondent (in this case, the mother).

The Court concludes with a summary of the law of which I approve, as someone who frequently defends government entities against claims under 42 U.S.C. 1983:

In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in itsprocedural nor in its “substantive” manifestations. This result reflects our continuing reluctance to treat the Fourteenth Amendment as ‘a font of tort law,’ but it does not mean States are powerless to provide victims with personally enforceable remedies. Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871, 17 Stat. 13 (the original source of §1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system understate law.

Because the police have discretion over enforcement, their failure to enforce the restraining order did not constitute a violation of mom’s Constitutional rights.