Is a Restraining Order a Substantive Entitlement?

Castle Rock v. Gonzales

Ms. Gonzales was granted a restraining order by the state of Colorado against her estranged husband, and limiting his interaction with their three children. On the back of the order was a warning to those to whom it restrained, that violation of the order was a crime, and that they “may be” arrested upon a probable-cause belief that they violated the terms of the order. There was also a statement addressed to law enforcement officials which stated “you shall use every reasonable means to enforce this restraining order,” and which went on to require arrest or the attempt to obtain a warrant upon probable cause to believe that the order was violated. One day the estranged husband showed up and took the kids without warning. Ms. Gonzales called the police, who told her to call back after 10:00. She then found out where they were and asked the police to check on them. She was told to call back. At 10:10 she was told to call back after midnight, after midnight the officers went to dinner instead of enforcing her order. At 3:00 Ms. Gonzales’ estranged husband walked into the police station and started shooting. He had killed the three children, whose bodies were found in his truck. This case deals with Ms. Gonzales’ claim that her 14^th Amendment right to property was violated (right to life, liberty, and property) when the police opted not to enforce her order.

The majority begins by pointing out that the allegation is of a violation of Ms. Gonzales’ procedural right to property, a right which, the Court says, must come from State law because for a benefit to be a right, it must become an entitlement (which comes from State law). The majority then explains that despite the seemingly mandatory language used in the document the police do retain some discretion in the application of the order, a proposition based in history, and seemingly founded on the principle of allowing the police discretion against making frivolous arrests. At any rate, this proposition is accepted as true by the ABA. Because this protection is conditional, the reasoning goes, it cannot be an entitlement. In response to entitlement theories raised by the dissent (specifically that Ms. Gonzales was entitled to an arrest or the pursuance of a warrant) the majority argues that this would be an entitlement to mere procedure, which is insufficient (Souter explains this better*). Finally, the majority asserts that even if there were an entitlement, the property interest “arises incidentally” to a regular function of government, putting it in a lower class of claims than true entitlements.

Justice Souter states that because we would not accept the interference by a private citizen with the contempt power of the court, we cannot infer any “guarantee of a level of protection” as a claim of entitlement. He also notes that “Gonzales does not claim to have a protected liberty interest” (I must say I was wondering why that hadn’t been discussed. *Ultimately, Souter holds that the claim fails because it is a claim for a federal procedural right defined in state process, and without being connected to a substantive interest, there is no federal claim because “[p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.”

In his dissent, Justice Stevens adopts the view that if an entitlement were created by Colorado law (“the functional equivalent” of a contract between Ms. Gonzales and a private security firm), it would qualify as “property” interest under the 14^th Amendment. He then suggests that it would have bee more proper for the Court to defer to the state court to settle its own law, since property interests are created by state law, especially because the conclusion by the state court, which was different than that here, was at the very least “eminently reasonable.” Justice Stevens then sates that the majority makes three mistakes. First, it does not recognize the wave of statutes actually mandating arrest in domestic violence situations, passed around the country in the 1980s in response to underenforcement, and instead focuses on other statues that fit the majority’s purpose; second, that this order was of a relatively small class that was created with the specific purpose of mandating arrest; and third, Justice Stevens takes issue with the assertion that the property interest (if it exists) in police enforcement is of a lower caliber than of any other interest.

It seems clear at this point that if the words used actually mandated arrest there would be (at least) an almost infinitely better chance that the court would have recognized an entitlement. The words in controversy are “A NOTICE TO LAW ENFORCEMENT OFFICIALS,” “YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING ORDER. YOU 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 AMMOUNTING TO PROBABLE CAUSE THAT THE RESTRAINED PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE ANY PROVISION OF THIS ORDER…” (Caps in original). This case demonstrates exactly how much weight “original intent” is given, and how subjectively is has been interpreted. Were it not for this line of thought the words would be given a reasonable reading and that would be the end of the inquiry. I’m not saying the idea of original intent is wrong by any means, but that for it to be an effective interpretive tool it must be refined so that everyone can agree on what matters and what doesn’t (the basis of the difference between Stevens and Rehnquist and/or Souter in this case).