Castle Rock, CO v. Gonzales, Jessica, et al. (06/27/2005)

Questions presented: (1) Whether, in conflict with decisions of the 6th, 7th, 8th and D.C. Circuits, the 10th Circuit's decision permitting a procedural due process claim against a local government for its failure to protect the holder of a partial restraining order from private violence, when the state itself provides no such remedy, so circumvents, as to effectively repudiate, this Court's holding in DeShaney rejecting a similar substantive due process claim? (2) If the 14th Amendment's Due Process Clause is read to permit, via its procedural aspects, the same substantive claims already rejected by this Court in DeShaney, what kind of process is required for police inaction with respect to a partial restraining order not to violate the constitution?

BY JESSICA YOUNG & MOLLY BROWN, MEDILL NEWS SERVICE

In the early evening of June 22, 1999, Simon Gonzales violated the restraining order his estranged wife obtained against him and abducted his three young daughters while they were playing outside of their home in Castle Rock, Colo.

Once Jessica Gonzales realized her daughters were missing, she suspected that her husband, who had a history of erratic and suicidal behavior, had taken them. At about 7:30 p.m., she made her first phone call to the Castle Rock Police Department, requesting that the restraining order against her husband be enforced.

She produced a copy of the order for the police officers sent to her home, but they told her there was nothing they could do. They suggested she call the police department again if her daughters did not return home by 10 p.m.

Soon after the officers left, Jessica Gonzales spoke to her husband on his cell phone, and he told her he was with the girls at an amusement park in Denver, about 40 miles north of Castle Rock. She called the police department again and demanded that police find and arrest her husband. The officer she spoke with refused and again told her to wait until 10 p.m.

When 10 p.m. came and there was no sign of her daughters, she again called, and the dispatcher told her to wait for another two hours.

At midnight, she again informed the dispatcher that they were still missing and went to her husband's apartment, finding no one home. From there, she placed another call to the police department and was advised to wait for police.

She waited until 12:50 a.m., then went to the police station. There, an officer took an incident report but made no effort to enforce the restraining order or locate the children. He went to dinner instead.

Nearly eight hours after Jessica Gonzales first contacted police, at about 3:20 a.m., Simon Gonzales arrived at the police station in his truck and opened fire on the station with a semi-automatic handgun purchased after abducting his daughters. He was fatally shot during the shootout, and police found the bodies of the three young girls, who were murdered by their father earlier in the evening, in the cab of the truck.

In June 2000, a year after the shootout, Jessica Gonzales sued Castle Rock and several police officers for $30 million in damages for violating her constitutional rights by not enforcing the restraining order. A federal judge in the U.S. District Court of Colorado dismissed the suit, concluding that Gonzales failed to state a claim under the 14th Amendment for deprivation of due process, which functions as a safeguard to both the substantive and procedural legal rights of citizens.

The substantive component of the clause is used to determine whether the government has deprived a citizen of life, liberty or property. If the state action (or inaction) in question is determined to be legitimate, the procedural standards are used to examine whether proper procedure was followed in the process.

In 1989, the U.S. Supreme Court ruled 6-3 in DeShaney v. Winnebago County that constitutionally-given due process rights shielded citizens from governmental abuses but did not require the state to protect citizens from "invasions by private actors," or third parties. The case involved a Wisconsin boy and his mother suing local authorities for returning the boy to his father even though police knew the boy was being physically abused. The decision, however, left the issue of procedural due process violations unanswered.

Gonzales appealed, hoping the procedural violation argument left open in DeShaney might have more merit.

In October 2002, a 10th Circuit Court of Appeals panel affirmed the district court's dismissal of the substantive due process claim, but reversed the procedural due process determination. The panel concluded that the restraining order, along with a Colorado statutory enforcement mechanism, established a protected property interest in the order's enforcement that could not be violated by the state without a procedural hearing of some sort.

Castle Rock and the police officers sought a rehearing from all the judges sitting on the 10th Circuit. The full panel sided with Gonzales in a closely divided 6-5 vote in April 2004.

Writing for the majority, Judge Stephanie Seymour held that the restraining order gave Gonzales a legitimate expectation of police protection, and that her repeated pleas for help should not have been arbitrarily disregarded without notification that the order would not be enforced.

"The police never engaged in a bona fide consideration of whether there was probable cause to enforce the restraining order," Seymour wrote. "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."

Judge Paul Kelly Jr., who wrote one of four dissents and was joined by two other judges, found the majority's assertion that Castle Rock should have given Gonzales notification and a hearing before failing to enforce the restraining order to be an "utter impracticality."

Kelly also joined another judge in dissent with Judge Harris Hartz, who found that an evidentiary hearing was "not feasible" in the limited time officers had to make a discretionary decision about probably cause that a crime had been committed. Gonzales was given an adequate opportunity to present police with evidence that the restraining order had been violated and to persuade them to arrest her husband, Hartz argued.

"No amount of procedural due process can guarantee that a decision maker will make the right decision," he wrote. "Procedural due process is not concerned with how neutral decision makers ‘process' information with their own minds… Errors by decision makers raise questions only of substantive due process."

Judge Michael McConnell, who wrote another dissent and was joined by three other judges, also found Gonzales' procedural argument unimpressive. The far-reaching effects of the majority's decision concerned him.

"[If] the majority is correct, it will always be possible for plaintiffs to recharacterize their substantive due process claims against arbitrary action by executive officials as ‘procedural due process' claims," he wrote.

Judge Terrence O'Brien agreed in his dissent, which was joined by two other judges. For O'Brien, the majority's decision "rest[ed] on tenuous ground" and left the 10th Circuit "both adventurous and alone, dramatically separated" from the precedent of other courts. It circumvented DeShaney and conflicted with decisions in four other circuits, he found.

"Apparently, the police can now be hauled into federal court if, with the benefit of hindsight, it appears their judgment was flawed," he wrote.

In their appeal to the U.S. Supreme Court, Castle Rock argued that the 10th Circuit decision could spur a "potentially devastating" flood of lawsuits that "could bankrupt municipal governments … given the inevitability of less-than-perfect enforcement."

On Nov. 1, 2004, the U.S. Supreme Court accepted review in the case.

The issue at the crux of the case is whether local governments can be sued for failing to enforce restraining orders. To determine this, the Court must first clearly define what constitutes an appropriate level of procedural due process.

Eric Ziporin, one of the attorneys for Castle Rock, said he could not conceive of what would be required from police departments under the current decision, which opened up "a hornet's nest" of issues.

"This is not a case where the police department affirmatively sought to have Ms. Gonzales's protective order revoked, where requirements of notice and a hearing before a neutral arbiter would make some sense," he said.

"Rather, the 10th Circuit majority has now required some kind of process every time the police fail or decline to act at the behest of one who holds a protective order, apparently without regard to whether the requested action was warranted, whether the necessary manpower was available, or even whether a city-wide emergency prevented an immediate response," he added.

Brad Bailey filed a friend-of-the-court brief on behalf of the International Municipal Lawyers Association and the National League of Cities, two organizations representing local government entities. The 10th Circuit decision is so sprawling that it would force municipalities to assign officers to protect holders of a restraining orders on a round-the-clock basis, Bailey said, placing an enormous burden on law enforcement.

Nearly 20 states have laws providing for the enforcement of restraining orders and require an arrest if officers have probable cause that orders have been violated, making them vulnerable to lawsuits if Gonzales' claim is upheld.

According to Bailey, allowing the claim to proceed would cause "staggering" liability aftershocks, clogging the courts with "substantive due process claims couched conveniently as procedural ones."

Brian Reichel, Gonzales' attorney, argued police ignored his client's calls for help over a five-hour span and could have prevented her daughters' deaths if the restraining order had been followed. Even so, Reichel said her case "reflect[ed] a very fact-specific issue that is unlikely to recur frequently."

But Bailey said the 10th Circuit's proposed solution of what they perceive as proper procedure is problematic as well.

"Ms. Gonzales is arguing she wasn't given an opportunity to argue with police before her property was taken away by their inaction," Bailey said. "This leaves local governments in a lurch.

"How do we take the procedural due process concept and apply it to police in the field on the street where snap decisions are crucial?" he asked. "Do we say ‘hold on,' pull out a card table on the sidewalk and have lawyers come represent both parties? That's just not practical."

During the Court's oral arguments on March 21, 2005, the justices questioned if there should be a procedural due process for police to follow when responding to restraining order complaints and if such orders could be considered an individual's property right. The Court also questioned the practicality of that process.

Though Justice Stephen Breyer acknowledged that "it's outrageous what happened and a terrible tragedy," he also said, "but it wasn't that they (the police) didn't hear her (Gonzales). They heard her. That's the problem."

Attorney John Eastman argued on behalf of Castle Rock. While Eastman acknowledged that Gonzales could file a tort claim against the police if their conduct was considered "willful and wanton" - and not against the city - he also argued there was "nothing in this statute that would even make it reasonable for the Colorado Supreme Court to hold that there is a property interest here."

"All we have are the allegations," Eastman said. "Even if these allegations are true, there is no underlying property interest that would involve the procedural protections of the 14th Amendment."

Breyer asked Eastman if the Court would have the jurisdiction to overturn the property right claim if the case had come through the Colorado state system instead of through the federal system's 10th Circuit. Eastman said he believed the Court could overturn the 10th Circuit's decision because he was "looking to the state legislature on whether they've created a property interest for purposes of federal law."

"We could say that they had misconstrued Colorado law?" Justice John Paul Stevens said. "I don't think you really mean that."

Eastman argued in order to make that determination, he wanted a "pretty clear statement" from the Colorado legislature to create a property interest if that was to be used as an argument.

Justice Ruth Bader Ginsburg questioned the police's role in restraining orders. "Don't the police have an obligation to enforce that?"

Eastman argued Colorados statute gives police a "great deal" of discretion in how to proceed in such cases and to use "reasonable means of enforcement."

John Elwood, Assistant to the U.S. Solicitor General, argued on behalf of the United States in support of Castle Rock. He said restraining order beneficiaries lack a property right to police enforcement of those orders because it regulates a third party and "private citizens lack a judicially cognizable interest in arrest and in prosecution of third parties."

"Do the police have any duty at all in your view?" Stevens asked.

"I don't believe that the police have any sort of actionable duty," Elwood said.

Several justices questioned Gonzales' attorney Brian Reichel about why he had not pursued a tort action instead of seeking a federal mandate to set procedure for restraining order calls.

"Don't you have a misfit between the remedy that you're trying to get and the harm that was done?" Breyer asked.

Reichel argued the Castle Rock Police Department had a pattern of ignoring complaints about restraining order violations. He repeatedly said that police should respond "by making an objective probable cause determination" and clearly communicate to the restraining order holder what actions they would take.

Breyer and Justice David Souter questioned how realistic it is to force busy police departments to properly follow procedure. "That seems to me to suggest a completely nonadministerable system," Souter said.

Reichel also argued his client's property rights as an entitlement to enforcement of her order. "She believed that she had a contract with the State of Colorado, at least a promise by the State of Colorado, that she would obtain some protection," Reichel said.

"This is such a new sort of a requirement you're seeking us to develop here," said Justice Sandra Day O'Connor. "I just don't know of any past case that would suggest such a requirement when it comes to law enforcement requests by citizens of police."

On June 27, 2005, the final day of the Court's 2004-05 term, the Court agreed with those sentiments, holding 7-2 that the due process clause does not create an entitlement that would protect Gonzales or other women when police fail to enforce restraining orders that would have protected them.

Writing for the majority, Justice Antonin Scalia concluded the due process clause can't be used to protect everything that might be considered a government benefit, and certainly not those benefits over which officials have discretion.

Justices John Paul Stevens and Ruth Bader Ginsburg dissented.