William H. Rehnquist: We'll hear argument on number 04-278, the Town of Castle Rock versus Jessica Gonzales. Mr. Eastman.
John C. Eastman: Mr. Chief Justice and may it please the Court: What happened here is undeniably tragic. A father shot and killed his own daughters. He was under a restraining order, so the issue for this Court is whether the order restraining Mr. Gonzales also gave to Mrs. Gonzales and her children a property interest put against the police giving Mrs. Gonzales an entitlement to the arrest of her estranged husband. More precisely, the issue is whether the State of Colorado intended to create such a property interest.
Sandra Day O'Connor: Tell us how we know exactly how much discretion the State of Colorado wanted to give to the police.
John C. Eastman: Well, Justice O'Connor--
Sandra Day O'Connor: Without a statute that uses the word shall enforce. Do we know how Colorado has interpreted that?
John C. Eastman: --Well, they have in other cases, as we note in our brief, that the word shall is not always mandatory, particularly here, I think, Justice O'Connor, when we have such a backdrop of law enforcement discretion.
Sandra Day O'Connor: Well, are there Colorado cases that tell us how we should read those statutes?
John C. Eastman: Not in particular on this statute. They only... the Colorado case law on the word shall says that you have to read it in context of the entire statute. And here the word shall is used several different places pointing several different directions in the statute.
Antonin Scalia: So do you concede that if shall means shall, that it creates a property interest?
John C. Eastman: No, Justice Scalia, I do not. There is a long way between giving direction, even mandatory direction, to law enforcement and creating a property interest. I think that was the essence of this Court's holding in Sandin. And it's that distinction that even if you read shall in these statutes as requiring a particular outcome, and we don't--
John Paul Stevens: Mr. Eastman, would you comment on the extent of deference that we should give to the court of appeals' interpretation of Colorado while in view of what we said in Bishop against Wood?
John C. Eastman: --Yes, I don't think here, because it's not just an application of Colorado law here. We have identical statutes in 19 or 20 different states around the country. And what you do--
John Paul Stevens: But the Colorado statute is the one that's controlling in this case and normally, at least according to Bishop against Wood, we defer to the interpretation of the court of appeals as the issue of state law.
John C. Eastman: --Well, what you're asking is that the court of appeals that created... that read this statute shall, without any Colorado court interpretation, and did so without any greater indication from the Colorado legislature, that it intended more than just to give direction to police. It intended to create a property interest. I understand the question from Bishop versus Wood, but I don't think we can defer to the Tenth Circuit here in creating something that Colorado did not intend to create.
John Paul Stevens: Of course, that's the issue, whether Colorado intended to create it.
John C. Eastman: Well, but I think there is a big difference. I mean--
John Paul Stevens: The reading in Bishop against Wood was really counterintuitive also, as the dissenters pointed out, as you would agree, I think.
John C. Eastman: --Yes, and I think when you're looking at a statute such as this, that is invoking the federal court's... I mean, what we're using is a state law to invoke federal protections. And I think it's that deference to the state that I think is more critical. And I don't think you can allow the federal courts to make that decision when Colorado itself has not been... has been as ambiguous as it is. I think we need a clearer statement.
Ruth Bader Ginsburg: Did you suggest to the federal court that it certify the question of the meaning of Colorado law to this Colorado Supreme Court?
John C. Eastman: No, we did not, because I don't think the statute gets us over the hurdle to make that even necessary. There is nothing in this statute that is intended... that uses the language of property interest or entitlement. I think if this Court would look to its decision in Gonzaga, for example, in an analogous context--
Antonin Scalia: Wait, wait. I thought we were just talking here about state law as to whether shall means shall. Do you think that it's a matter of state law whether, if it does mean shall, it creates a property interest for purposes of the Federal Constitution?
John C. Eastman: --No, Justice Scalia, I don't.
Antonin Scalia: You don't concede that that's a state question at all?
John C. Eastman: No. And what we're talking about--
John Paul Stevens: Well, isn't that what we squarely held in Bishop?
John C. Eastman: --Well, what we have to look at is whether, first, the state, under Roth, intended to create a property interest rather than just giving mandatory direction to its officers. And I think the critical question there is what the default rule ought to be on a statute that is not clear on that question. And I think Roth tells us that for purposes of federal constitutional law, the default cannot be that we assume the state created a property interest, at least in this kind of nontraditional property interest. And I think it's important to focus on what kind of property interest we're talking about.
Stephen G. Breyer: Suppose shall does mean shall. Fine. But you might have a statute that says the fire department shall respond to fires, the police department shall respond to crimes, the Army shall respond to attacks. Even the word shall doesn't necessarily mean that this is the kind of interest that, like property, the Duke of Rutland relied upon Blackacre, that welfare recipients rely upon continuing to receive money. What is it about this that makes it like property, even if shall does mean shall?
John C. Eastman: Justice Breyer, I agree, and the difference between even mandatory language directing law enforcement to behave in a certain way is a far cry from actually creating a property interest in Mrs. Gonzales herself. This Court in Sandin held that in the prison context, and I think the analogy in this Court's implied right of action cases such as Gonzaga is a good one. In order to take a statute and try and find a property interest, we would want to have it phrased in terms of the beneficiary rather than the person restrained. We would want to see an actionable entitlement created. None of that is here. And I think that--
Ruth Bader Ginsburg: But if you compare it to... this is a court order and it's enforceable. There is no question about that, is there? This is a court order that enforcement officials carry out. How does it differ from, say, a money judgment and executing... levying execution on property? Judgment creditor says, here is my judgment, marshal, sheriff, go out and find some of the defendant's property.
John C. Eastman: --Well, Justice Ginsburg, you know, the analogy we cite in our reply brief and the U.S. marshal statute, 42 U.S.C. 1990 that says that there is a right in the beneficiary to have a warrant issued. And if the marshal refuses to do that, that he can be challenged and held to a thousand dollar fine for the benefit of the person whose arrest warrant he was supposed to serve. Now, even that doesn't quite go far enough because there is not a private right of action by the beneficiary about a warrant to bring the suit directly. But at least that kind of statute is getting closer to acknowledging a property interest. This is enforceable against Mr. Gonzales, and Ms. Gonzales could go back in and get a contempt proceeding. I know here, after the fact, that's not going to do any good. But the restraining order is issued against Mr. Gonzales. It's not issued to the police. And all we have then is how its violation by Mr. Gonzales will be enforced.
Ruth Bader Ginsburg: But isn't that true of all injunctive orders, they're not issued to the police. And yet the police... don't the police have an obligation to enforce that?
John C. Eastman: To my knowledge, we've never held that the police have an actionable obligation to enforce them. But the state--
David H. Souter: But wouldn't you concede that in the case of the injunction in which there is a specific order in relation to a specific respondent, that the police have much less discretion than they would have when there is in effect a general statute saying, respond in these kinds of situations?
John C. Eastman: --Justice Souter, they still have a great deal of discretion here. The statute says reasonable means of enforcement.
David H. Souter: In the case of the statute that we're talking with, but they don't have that kind of discretion, do they, in Justice Ginsburg's example? What I'm getting at is, if you're going to take the example that Justice Ginsburg has given you as equivalent to the example that we have before us, I think you're fighting uphill and I don't think you have to do that.
John C. Eastman: Well, let me take your invitation, then, and respond back. I mean, if the terms of the restraining order cut out all of the discretion whatsoever and that they specifically are written in terms of the property interest creates an entitlement in the beneficiary of the restraining order, as against not just the person restrained or the person whose property is going to be attached, but an entitlement to enforcement by the police itself, then I think we would be on the step toward creating a property interest. The Colorado statute here does none of those things. It continues to give the police a great deal of discretion. Reasonable means--
Ruth Bader Ginsburg: But is discretion... does discretion on the means to use include discretion to do nothing?
John C. Eastman: --Well, it includes a finding of probable cause. It includes a... seek an arrest or make an arrest or seek a warrant arrest when the arrest is impractical. If the arrest is impractical, such as when--
Ruth Bader Ginsburg: But were any of those determinations made here?
John C. Eastman: --Well, we don't know. We don't know because this case comes up here on a motion to dismiss. All we have are the allegations. The allegations are that they didn't enforce the restraining order, all right? But we don't know whether it's because they made a determination of no probable cause, whether there was probable cause but because he wasn't in the jurisdiction--
Ruth Bader Ginsburg: So are you requesting that there are insufficient fact findings here, so it should be returned--
John C. Eastman: --No, Justice Ginsburg, because what we're saying is that there is not a property interest at all and it doesn't matter, even if these allegations are true, there is no underlying property interest that would invoke the procedural protections of the Fourteenth Amendment.
Stephen G. Breyer: Mr. Eastman, can I ask you this question? Supposing this case came to us through the Colorado state system instead of through the federal system, and the Colorado Supreme Court had written precisely the same opinion that the Tenth Circuit ruled. Would we have jurisdiction to overturn their holding that there was a property interest here?
John C. Eastman: Justice Stevens, you're asking whether, for purposes of federal constitutional law, the state court decision that Colorado had created a property interest is dispositive. And I'm not sure it is, but--
John Paul Stevens: Then your answer is no, we would not have jurisdiction in that event.
John C. Eastman: --Well, no, I was saying that yes, you would, because what we're talking about is looking to the state legislature on whether they've created a property interest for purposes of federal law.
John Paul Stevens: We could say that they had misconstrued Colorado law? I don't think you really mean that.
John C. Eastman: Okay.
John Paul Stevens: But I think you meant--
Antonin Scalia: Perhaps what you mean is that what is a property interest for purposes of Colorado law, if Colorado chooses to nominate some utterly zany thing of property interest, it doesn't necessarily mean that it's a property interest for purposes of the Federal Constitution.
John C. Eastman: Justice Scalia, I'm happy to do that.
John Paul Stevens: --You can do that, but you won't find any cases making that point.
John C. Eastman: No, you won't, but it makes perfect sense--
Antonin Scalia: I don't think you need a case for that, do you?
John C. Eastman: --No, but it makes perfect sense.
John Paul Stevens: But you have cases saying the contrary. That's the problem.
John C. Eastman: What we want to find out is whether the Colorado--
Antonin Scalia: Do we have any cases involving a zany property interest having been found by a state? I don't think we have any.
John C. Eastman: --We don't even have any cases involving a property interest to enforcement against somebody else. All we have are cases to the contrary. Linda R.S., for example, this Court held that there is no right to arrest or enforcement against somebody else. And so I think at least in the context of these very non-zany property interest claims, that we need to have a pretty clear statement, not even from the Colorado courts, but from the legislature itself that the legislature intended, as a matter of state policy, to have a property interest created and all of the consequences that would flow from that.
Ruth Bader Ginsburg: --May I stop you? You cited that Linda R.S., whatever, I thought that was a standing case saying it's not going to do you any good to have them locked up in jail if what you want to do is get money from him.
John C. Eastman: It was, but the case has been relied on by several subsequent decisions including in the Second Circuit in the Attica case, inmates of Attica, for the proposition that there is just simply no right to an enforcement against somebody else, that there is no entitlement. Now, I'm not saying that the Colorado legislature never could create such an entitlement, but given the backdrop of Linda R.S., and also given the backdrop of traditional law enforcement discretion, I think we need a much clearer statement from the Colorado legislature itself, both that it's written in terms of the beneficiary... getting her an entitlement against the police, rather than in terms of what the person restrained is.
Sandra Day O'Connor: Mr. Eastman, assuming for the moment there is no due... procedural due process right here, on the facts of this case, does Colorado law provide any alternative remedy for Mrs. Gonzales?
John C. Eastman: Yes, Justice O'Connor, it does.
Sandra Day O'Connor: And what would that be?
John C. Eastman: There are several remedies. In the first instance, any violation of a restraining order, she can petition the court for a contempt order, even against the police. If their conduct was willful and wanton--
Sandra Day O'Connor: So she could presumably ask for some relief under that notion, against the police and possibly the town?
John C. Eastman: --Against the police and... not the town. The town has absolute immunity but against the police under the tort statute, the police are not immune if their conduct is willful and wanton. And I think this Court in DeShaney addressed that very question when it looked like if the state wanted to create an interest here, that it could do so by modifying the--
William H. Rehnquist: You say the tort statute means something like the Federal Tort Claims Act. Does Colorado have something like that?
John C. Eastman: --It does. And there is a Colorado Governmental Immunity Act that gives immunity to police except when their conduct is willful and wanton. And so that tort remedy does exist and if the Colorado legislature wanted to lower the threshold on that and make it negligent omissions or what have you, whatever the allegations are, they could do so. The fact that they haven't done so I think is a pretty strong indication that they did not intend to create a property interest here. If there is a property interest... let me just say one minute about the procedures that were given, and then I'll reserve the remainder of my time. At most we would have here, if there is a property interest, is the opportunity for Mrs. Gonzales to tell the police that she believed the restraining order was violated and that they responded to her however they did. She received whatever process might be due assuming we have a property interest here. If there are no more questions, I'll reserve the remainder of my time.
William H. Rehnquist: Very well, Mr. Eastman. Mr. Elwood, we'll hear from you.
John P. Elwood: Mr. Chief Justice and may it please the Court: For two reasons the holders of restraining orders lack a property right to police enforcement of those orders. First, Respondent's claim has to be evaluated in light of the fundamental background principles that private citizens lack a judicially cognizable interest in arrest and in prosecution of third parties. And that executive decisions not to enforce criminal statutes are presumptively beyond the scope of judicial review. Nothing in the Colorado statute reflects an intent to depart from those background presumptions and to create an individual right to enforcement. Unlike statutes where this Court has recognized a protected property interest, the provisions at issue here did not regulate the Plaintiff or Respondent, but rather regulate a third party. And the provisions do not mention the restraining order holder, much less state that she has an entitlement to review. In addition, the provisions do not afford the holder of restraining orders procedural protections or judicial review of the sort that this Court--
Ruth Bader Ginsburg: What good is... what does the restraining order do, then, other than give her a right to sue the person who is restrained for contempt?
John P. Elwood: --I think it does two main things. First of all, it gives her rights against her husband which are enforceable through contempt and are enforceable by asking the police to enforce them. And second, which has the benefit... it has the effect basically of creating a new arrest statute that lowers the threshold of what conduct is criminal from something that would be a freestanding crime to basically just violating one of the terms of the order. And that is the interest the restraining order gives her.
Ruth Bader Ginsburg: But only to ask the police and the police are not obliged to respond.
John P. Elwood: That is correct. She has the ability to ask the police to enforce the order, but the police have discretion, under our reading of the statute, not to enforce the--
John Paul Stevens: Do the police have any duty at all, in your view?
John P. Elwood: --The police... I don't believe that the police have any sort of actionable duty. I think that what the statute creates is basically it's a direction from the legislature that this is what they want them to do.
John Paul Stevens: Could the police just issue an order saying ignore all orders of this kind?
John P. Elwood: I think that if they were to do that, I do not think that there would be sort of any individual right to challenge that. I think that they would be adopting a policy decision that would probably be different than the one the Colorado legislature has made--
William H. Rehnquist: That's the sort of aggressive sort of thing that the Colorado courts could conclusively decide.
John P. Elwood: --That's something the Colorado courts decide, and it's something that would be... that could be addressed through the political process as well.
Anthony M. Kennedy: Are there any extreme cases we could imagine where the police have a duty to protect the citizen? The policeman sees four people beating up on the victim, no race involved, and he just enjoys watching the fight. Does he have a duty under the Constitution to intervene?
John P. Elwood: I think any duty that there would be would be a substantive duty. And this Court indicated in DeShaney that it would require basically state creation of the harm or state increasing the vulnerability of the person. So for example--
Anthony M. Kennedy: Did DeShaney stand for the proposition there could never be an affirmative duty to intervene, under what you're talking about the Constitution here?
John P. Elwood: --I think it would be, in a case, for example, where a prisoner was handcuffed in his cell with a cell mate who the authorities knew to be basically interested in harming him. Because they had affirmatively restrained him, I think that that would be a case where the state had created the danger or increased the vulnerability. So I think there is something left to the requirement of police protection substantively under DeShaney.
Anthony M. Kennedy: But there has to be some state... the state has to have created the risk somehow?
John P. Elwood: Under DeShaney, the state has to have created the risk or increased the vulnerability of the person. Now, in addition to the fact that the Colorado statute does not speak to the Plaintiff, it essentially speaks to the restrained party. And under... as Mr. Eastman mentioned, under Gonzaga and this Court's 1983 cases, that when a statute speaks in terms of the regulated party instead of the protected party, there is no implication of an intent to create a federal right. And I think that that principle would apply even more clearly in the context of the state rights, because there there is a question of imposing federal liability which shouldn't really be done in the absence of an indication that the state really meant to do that. Another reason is... not to assume that there is a property right here, is that the state statute does not create any sort of procedural remedies or judicial remedies which this Court has in the past taken as an indication that the state really did mean to create a protective right.
Antonin Scalia: What's your response to the fact that the Tenth Circuit found otherwise and that we usually defer?
John P. Elwood: I think our response would be that it's not simply... well, first of all, I don't want to make too much of the fact that it's obviously a very close question of state law because the Tenth Circuit was divided by a single vote. But even aside from that, you basically have to adopt not simply a question of what the state law says, but what the federal courts are going to do with it. And we are of the opinion that given what a tremendous departure it would be, what a procedural innovation it would be to give complaining witnesses essentially a right in the process, that in the absence of a very clear statement, the federal court should not imply a right or imply... should not infer, rather, that the state legislature intended to create a right. So essentially, what we're asking for is a clear statement rule. And in the absence of a clear statement, we should presume that the--
John Paul Stevens: Do you agree that if this case stands with the state system, we would have to accept their holding on the property right issue?
John P. Elwood: --Obviously, I think there would be a much closer question at a minimum. There may be something to the fact that we should... this is the sort of thing we would want a statement from the Colorado legislature.
John Paul Stevens: No, let's say the Supreme Court has said, this is what the statute means and so forth and so on, wouldn't that be binding on this?
John P. Elwood: I think it would be binding. I mean, it would still be the federal question of whether that applied federal law correctly. But given that it's basically a question of what is a state property right, yes.
John Paul Stevens: Or whether the question of property right... the property right issue is not a question of federal law, it is a question of state law.
John P. Elwood: That is correct. There is something of a federal overlay to sort of correct that at the margin--
Stephen G. Breyer: What did they hold in the Tenth Circuit? I mean, shall could be mandatory. You can have a mandatory duty, but that doesn't mean that the victim has a legal right to enforce that duty.
John P. Elwood: --That's absolutely correct, Justice Breyer.
Stephen G. Breyer: So what did they hold in the Tenth Circuit in respect to that?
John P. Elwood: Basically they said that because it is... because the statute was mandatory, they basically leapt from that to an inference that because it was mandatory, it was a duty that she could enforce. But there is no tradition in that--
Stephen G. Breyer: They should reask the certified question?
John P. Elwood: --I don't think that they need to because that is something that, again, it would be a useful thing given that there are 50 legislatures out there and there are probably at least 20 and perhaps 31 similar statutes that rather than certify the question and then have to certify on a state-by-state basis, just to adopt a background rule that this Court applies.
Stephen G. Breyer: But a background rule is awfully tough. I mean, you could have lots of shalls in all kinds of statutes. If they said shall, the sanitation department shall inspect your home for tuberculosis, maybe that does give a right. If they say to the fire department, you shall put out fires, I wouldn't think they meant that every possible homeowner had a right to a lawyer and a full judicial hearing before they go and respond to an alarm. You know, I mean, it depends on the area. I don't know how to create a background rule.
John P. Elwood: Well, I think the rule that the Court could create is that in a criminal context, which is all that is at stake here, there is a background presumption that individuals lack a judicially cognizable right to arrest or prosecution. For example, an arrest warrant, although there is some question about whether or not that really is mandatory. It's certainly couched in mandatory terms. It's directed to the marshal. To the marshal, you are hereby commanded to arrest Jane Doe or whoever. But there is a very established body of law that even the people who basically agitate for the arrest warrant don't have a grounds to complain if the arrest warrant isn't executed. At the federal level, there is Leek versus Timmerman, where the court held there is no protective interest or there is no cognizable interest in the arrest of another party. And at the state level, there is a lot of case law indicating that officers are not liable to private citizens for failure to execute arrest warrants.
John Paul Stevens: But is it not true that the Colorado legislature could create such a right if it did it with sufficient specificity?
John P. Elwood: I think that that is correct. This Court has not placed really many limits on what kind of rights could be created under Roth. There is some indication in cases like Sandin that there might be limits at the margins or rather at least limits presumptively--
Antonin Scalia: The Constitution does say property right. I mean, it has to be a property right, doesn't it? Is that meaningless? Is everything in the world either life, liberty or property? Does that describe everything in the world?
John P. Elwood: --Justice Scalia, all I'm saying is that the Roth cases haven't really indicated that there might be limits on that. I think that there are reasons--
Antonin Scalia: Well, because there has been no case that really did not involve something that could reasonably be called property.
John P. Elwood: --Correct. And I think that this is a case where courts might want to exercise some caution because there is a reason why they don't involve private citizens in the prosecution. And that is because our system is built around the idea that to... basically, we want to interpose brakes between the complaining witness and the courts and power of the state, as the Court indicated in Young versus United States ex rel. Vuitton. The prosecutor there, because it was a prosecutor, basically serves as a circuit breaker to prevent people from going straight to the--
Antonin Scalia: That's the state's problem. I mean, if the state doesn't want that, sure, the state can take that away. But if the state does, do I still have to call it property just because the state does?
John P. Elwood: --I think that you would require a much clearer statement before accepting that kind of procedural innovation. I see my time has expired.
William H. Rehnquist: Yes, it has. Thank you, Mr. Elwood. Mr. Reichel, we'll hear from you.
Brian J. Reichel: Mr. Chief Justice and may it please the Court: A public high school student threatened with suspension receives more process under this Court's holding in Goss versus Lopez than Castle Rock is willing to provide to a holder of a court-issued protective order. Instead of providing Ms. Gonzales with any opportunity to be heard in any meaningful manner, Castle Rock repeatedly ignored Ms. Gonzales's pleas to have her children returned to her and the restraining order enforced.
William H. Rehnquist: What process do you think your client was entitled to?
Brian J. Reichel: We believe that what my client seeks is much less than what police officers do every day. We would ask this Court to hold that Ms. Gonzales was entitled to an objective, reasoned and good faith consideration of her complaint of a restraining order violation, and a good faith assessment of probable cause.
William H. Rehnquist: Could that simply be made by the person on the desk?
Brian J. Reichel: It can, Your Honor, but it needs to be a probable cause determination that is actually communicated to the holder of the restraining order, whether it be a favorable or adverse determination, there needs to be some notice provided to the holder of a restraining order of what the police officers intend to do.
Stephen G. Breyer: Well, does--
David H. Souter: That... no, please.
Stephen G. Breyer: --The basic problem that I have is you just put your finger on. I mean, on your view of the facts here, which I will accept, it's outrageous what happened and a terrible tragedy, but it wasn't that they didn't hear her. They heard her. That's the problem. They heard her and they didn't do anything. So if you proceed under state law, you will, if you're right, get a holding that the police behaved very badly, that would help your client, and it would help future people in the same position. If you proceed under federal law, the most you get is somebody at the desk saying, well, we think other things are more important. And at that point, your client may or may not be helped and other people won't be helped. So don't you have a misfit between the remedy that you're trying to get and the harm that was done?
Brian J. Reichel: No, Your Honor, I don't believe so. We're asking for a specific process here. And Ms. Gonzales wants the right to prove a pattern and practice on the part of Castle Rock of not responding properly to complaints and pleas of this type.
David H. Souter: But that's not the kind that you've brought, as I understand it. As I understand it, you've brought a claim simply that she was hurt and was not given process. That's all you have to prove. If you can prove a pattern, sure, it's easy to prove an individual case. But your only claim is damage as a result of a denial of some procedural right in this case, isn't that correct?
Brian J. Reichel: As the case stands now, it is a Monell claim, Your Honor. It is a pattern and practice claim.
David H. Souter: But it's not a class action, is it? It's not a claim under some statute... civil rights statute. It's a claim for the benefit of this client and if this client wins, this client presumably will get a money judgment, isn't that the case?
Brian J. Reichel: Yes, you are correct, Your Honor. You are correct. But the ignoring here, the allegations in the complaint, Your Honors, is that Castle Rock has this custom and policy, this pattern and practice of just ignoring these types of complaints. And the ignoring, as the law enforcement amicus brief filed on our behalf points out, the ignoring is a classic example of how police have traditionally responded to these types of complaints.
David H. Souter: I'll grant you that, but as I understand it, what stands between or what would stand between your ignoring complaint and success would simply be the police's statement of a reason because, as I take it, I take it that you don't deny she was heard, they answered the phone, they talked to her. She got a result. After she had talked with them on the phone, she knew that they weren't going to do anything or that they weren't going to do anything satisfactory. So as I understand it, on your theory, the only thing she didn't get that she would be entitled to would be a statement by them as to why they were not going to do something for her. Is that what it boils down to?
Brian J. Reichel: No. What it boils down to, Your Honor, is we're looking for a probable cause determination to be made in good faith.
David H. Souter: And if they had said, we don't think there is probable cause, that would be the end of your case.
Brian J. Reichel: As long as there was a good faith determination. If there was a mistaken belief that there was a lack of probable cause, then there is no violation of due process. The process has been provided.
Stephen G. Breyer: Suppose they just say, look, in our experience, children come home in two or three hours and, moreover, we have other things to do that are more important. Is that a sufficient answer? Both things, by the way, most people who look into this would say are completely wrong. But I mean, the police would say just what I said. Is that sufficient?
Brian J. Reichel: No, Your Honor, that is not a thoughtful, objective--
Stephen G. Breyer: So what you really want is what they should do, is they should respond?
Brian J. Reichel: --They should respond by making an objective probable cause determination--
Stephen G. Breyer: But in this case, you would say they should respond?
Brian J. Reichel: --They should have made the probable cause determination.
Anthony M. Kennedy: But then your complaint is the result, not the procedure. It's true that a procedural case is designed so that the right result can be reached most of the time. I understand that. But all we ask is whether or not the procedure was added.
Brian J. Reichel: There was no procedure here, Your Honor, and that's the point of our lawsuit is that the fact that Castle Rock has an official custom and policy of ignoring, of not applying any procedure to these types of claims is the crux of our complaint in this case.
Antonin Scalia: Why was your procedure, assuming your entitled to a procedure, why did it have to come from Castle Rock? Why wasn't your proper recourse to the court that issued the restraining order? Did you try to do that, to go to the judge that issued the restraining order and say, the police are not enforcing the restraining order that you issued, I would like directive from the court that they enforce it?
Brian J. Reichel: At the point at which she realized the police weren't really going to do anything, she found out her children were dead. That would have been at that point in time a meaningless process.
Antonin Scalia: Well, just as she could have complained to the police earlier, she could have gone to the court earlier when she saw that the police weren't doing anything.
Brian J. Reichel: But the police told her to continue to wait. They strung her along, Your Honor. That's... the crux of the problem here is that she relied upon the police to enforce her restraining order. They told her to hold on--
Antonin Scalia: That may be a tort, but it's not necessarily a denial of process if the proper place to seek that process was from the court that issued the restraining order.
Brian J. Reichel: --But the restraining order has no meaning, Your Honor, unless the police are willing to enforce it.
Antonin Scalia: That's right, and the court can make sure that they enforce it upon complaint.
Brian J. Reichel: In this case, it's our position that the legislature has done so as well.
David H. Souter: Let me ask you a question that is suggested by Justice Scalia's question. And it goes basically simply to the practical problems that your position seems to entail. You answered him by saying that the point at which she realized they were denying her whatever she was entitled to was the point at which the children were dead. How would a reviewing court know when this particular right had been denied? I take it from your answer to Justice Scalia that there had not been a denial of the right and hence a violation of procedural due process after the first telephone conversation. I take it from your answer that there wasn't one after the second conversation. And I take it the only... that there was no ripening, as it were, of the facts into a denial of what she was entitled to until the 3:00 a.m. call, is that correct?
Brian J. Reichel: No, Your Honor, and I apologize if I misstated... if I gave you that impression.
David H. Souter: Well, my general question, then, is how does a reviewing court determine when or the point at which there has been a denial?
Brian J. Reichel: The initial contact with the police department we're saying has to involve appropriate processes--
David H. Souter: So following the first phone call, they would have to have made an express probable cause determination?
Brian J. Reichel: --They would have had to have made a probable cause determination in good faith and conveyed and communicated--
David H. Souter: And communicate that to her.
Brian J. Reichel: --Communicated that to her, which they never did. Instead they just kept telling her, you can call back later, call back later. They never made the probable cause determination and conveyed it to her.
William H. Rehnquist: Did they simply have to take her word as to the facts on the probable cause issue?
Brian J. Reichel: No, not at all, Your Honor, and I believe that the whole intent of Goss versus Lopez was to allow a high school student to understand the interpretation of the principal's view of the facts, and allow the student the opportunity to clarify or to fill in any missing points in terms of the understanding being--
Stephen G. Breyer: That's true, but Goss versus Lopez, to my knowledge... you may know more about it. But to my knowledge, there are not a lot of federal cases which second guess the principal or the teacher, once the teacher or the principal gives a plausible reason for suspending the student. And of course my fear is that that is precisely what would occur here. There would be procedure, there would be a reason. The reason is we're too busy. All right? And courts won't second guess that. But if you take the other route, you get what you need, which is an instruction to the police department that when a child is missing, you don't wait. But I don't see how you can get that instruction on this procedural route.
Brian J. Reichel: --Your Honor, we're not asking for the Court to instruct the police department they have to draw--
Stephen G. Breyer: Exactly. And that seems to me to be the problem, because you have a case where the problem was the delay and that's apparently a common problem. And I don't see how this route that you take gets at that problem.
Brian J. Reichel: --Your Honor, if I could respond, the delay issue is not the crux of the problem. The crux of the problem is that the police officers here never told Ms. Gonzales that they believed that there was or was not probable cause.
David H. Souter: What good could that have done anyone?
Brian J. Reichel: It would have allowed her the opportunity--
David H. Souter: She knew, as it was, that they weren't going to do anything. What good would it have done her to know that, oh, it's nice to know that they've gone through a probable cause determination in coming to the conclusion that they're not going to do anything. I mean, what is the social value of that?
Brian J. Reichel: --Your Honor, I don't believe the record is such that we've alleged that Ms. Gonzales knew that they weren't going to do anything. In fact, it's just the opposite, that she relied upon--
David H. Souter: They said call back in two hours and whatnot.
Brian J. Reichel: --And she continued to do that, to follow their instructions.
David H. Souter: And each time at the end of the call, she knew that they weren't going to do... they weren't going to go out and look and they weren't going to enforce the order at that point, didn't she?
Brian J. Reichel: I'm not sure that's correct.
David H. Souter: I mean, I can understand you're making an argument... you have made it, but I can understand you're making an argument that the point of procedure is to force people, in this case the police, to face facts. If they really know that she has made out probable cause that something is wrong here, if they are forced to face that as a result of procedure, they will then do something about it. It's not as easy to be irresponsible in that case. But the trouble with that argument, it seems to me, although it's sound as far as it goes, is that it's an argument that would apply with respect to every statute in which there is mandatory language to the police to enforce it. And that seems to me to suggest a completely nonadministerable system and one which is totally at odds with the normal accord of police discretion.
Brian J. Reichel: Your Honor--
David H. Souter: I mean, how do you get around that dilemma?
Brian J. Reichel: --We believe that the process test that we're articulating here is unique to domestic violence mandatory arrest statutes across the country. The reason being is that these statutes were enacted precisely because of this problem, the problem of--
David H. Souter: Then why weren't they enacted with an express provision saying, and by the way, the police have got to go, either through the following procedure or, by the way, this statute creates a right on the part of the protected party. In other words, if the response to what I understand the problem to have been, if the response was the response that you think the legislature made, why didn't the legislature say something that would take these statutes out of the run of the mill criminal law statutes in which the police, subject to mandatory language, have an apparent obligation to do something to enforce?
Brian J. Reichel: --I would respectfully submit, Your Honor, that they have, especially in Colorado. This statute is much more detailed than a run of the mill criminal or civil statute.
David H. Souter: But it doesn't say that people like your client have a personal right to enforcement with a damage remedy.
Brian J. Reichel: It doesn't, Your Honor, but the fact that there is a court order here in place individualizes the entitlement. It makes it personal. Ms. Gonzales went into court and aired her dirty laundry under the assumption, mistakenly here, that she was going to be provided protection from the state. That if she went in and explained the situation to the courts, the courts would issue her an order that meant something. And it could only mean something if police officers are willing to enforce it. The legislature in turn has said, if a person has this kind of order, you shall use every reasonable means to enforce it. Now, in order to enforce it, the police officers are going to have to, as they respond to every criminal complaint, make an initial probable cause determination. That's part of every day law enforcement.
Antonin Scalia: Mr. Reichel, how would you describe, briefly, the property that your client has been deprived of? What is the property?
Brian J. Reichel: The property is an entitlement to enforcement of her order. That's the property, Your Honor. That's how it was--
Antonin Scalia: The entitlement to enforcement of an order is property? Do you know any case that is... what's the closest case that you would say has held something to be property that is an entitlement to have an order enforced as opposed to an entitlement to a job, an entitlement to money, an entitlement to what I would consider property?
Brian J. Reichel: --There is no opinion of this Court that talks about orders per se. There is, however, what I would classify as a more quirky property interest, and that was the Logan versus Simmerman Brush case. That case dealt with the situation where there was a statute that provided a cutoff for when somebody could sue for unemployment benefits or discriminatory allegations in the State of Illinois. And the court there held that while there is really a right in this process, to go through this process and by cutting it off without any opportunity for notice or a hearing, the State of Illinois--
Antonin Scalia: Yeah, but it's, at the end of the day, they were unemployment benefits, right? I mean--
Brian J. Reichel: --That's true.
John Paul Stevens: Wouldn't the better analogy be to assume she made a contract with a private detective agency to protect her from these events. And if something arises, to go get the police and act on it? That would be a property right if she had a private contract with a private detective agency to do exactly what the police were supposed to do here.
Brian J. Reichel: Well, Your Honor, that's true, although when she went into court, I think 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.
John Paul Stevens: But it seems to me a contract for protection would be a familiar kind of property, is what I'm suggesting.
Brian J. Reichel: Exactly. And here the order--
Antonin Scalia: --But there is no contract here, is there?
Brian J. Reichel: --There is no contract but there is an order. There is a court issued order based upon her allegations and based upon her submissions to the court. Your Honors, again, Ms. Gonzales took the risk here of seeking an order of protection and airing her dirty laundry in public, and she did so with the reasonable expectation that the order meant something, that law enforcement would enforce it.
Ruth Bader Ginsburg: Could you be precise about what is the due process? You're saying it's not a hearing that you're seeking. Not just that she could be listened to and no action taken. But what precisely is the process to which she is due?
Brian J. Reichel: We believe that there has to be an objective, thoughtful, reasoned evaluation of her complaint of a violation. And that involves necessarily an evaluation in good faith of probable cause, a determination of whether probable cause exists, an articulation of that determination--
William H. Rehnquist: But you said a moment ago, this could be done by the sergeant on duty at the desk who probably had three other calls waiting. Do you still think that could be done?
Brian J. Reichel: --Certainly, Your Honor. I believe if you take a look at some of the model policies already in place by police departments around the country that are attached to the amicus brief of the law enforcement agencies that filed on our behalf, you'll see some policies whereby the person at the desk taking the information is required to have certain types of questions and provide certain types of responses to those questions.
Ruth Bader Ginsburg: But on any timetable?
Brian J. Reichel: Yeah, we're not asking for the police department to drop everything. We're just asking that they--
John Paul Stevens: If I understand your position correctly, I know what the allegations are here, but if the evidence should show later on that in response to one of these telephone calls, the desk sergeant said, send a squad car out and see if you can locate the kids, you would lose?
Brian J. Reichel: --No, Your Honor, that's not what I'm saying.
John Paul Stevens: Because that would have been a good faith response by somebody to try and find out whether there was probable cause.
Brian J. Reichel: There has to be an articulation of the determination of probable cause to the holder of the restraining order to allow her to, for example, clarify facts, to perhaps talk to a superior or perhaps, in this case, go somewhere else for help, go to the court.
Ruth Bader Ginsburg: but where do you get that? I know that the Tenth Circuit tried to stick to the language of the statute. But where do you get the requirement, A, that police inform her and, B, that it give reasons for nonenforcement? Those were not within what the Tenth Circuit said.
Brian J. Reichel: I believe it was wrapped within the concept of a probable cause determination. And they did specifically state that if there was an adverse determination, that notice of that determination has to be conveyed to her. That was, I believe, the fourth prong of our analysis.
Ruth Bader Ginsburg: So the notice... yeah, did it say with a statement of reasons?
Brian J. Reichel: With a statement of reasons, it did, Your Honor.
Ruth Bader Ginsburg: Where does that come from?
Brian J. Reichel: Well, the statement of reasons, Your Honor, allows again for there to be communication on both sides. So that if the statement of reasons turned out to be based upon false information--
Ruth Bader Ginsburg: I know that it would be a fair process that you're describing.
Brian J. Reichel: --A meaningful process.
Ruth Bader Ginsburg: But is it an essential one, that is, that nothing spells out... in most of the cases that involve property and a procedural due process right, it's a hearing that the person is seeking. Are they entitled to benefit or are they not? But here, this is not what you want. You want the police to enforce. And if they don't enforce, to give you a reason.
Brian J. Reichel: Well, I believe that the enforcement of the order flows from the probable cause determination. The obligation to enforce is triggered by a finding of probable cause of a violation. So the process we're looking for involves the probable cause determination. It's our position that by simply ignoring that process, you're depriving somebody potentially of their property right in enforcement of the order.
Ruth Bader Ginsburg: But if the police... let's say, focusing on this case, suppose they had looked at this order and said, wow, it gives him weekends with the girls, it gives him summertime with the girls and, subject to his ex-wife's agreement, dinner time with the girls, this can't be all that urgent because if he would harm the girls then why is the judge allowing him so much sole time with them? So wouldn't... looking at this particular order, wouldn't there be reasons why the police would say, the judge is allowing the father to spend time with the girls, this can't be that urgent?
Brian J. Reichel: There could have been, Your Honor, but again, those reasons were never articulated to my client and any reasons the police officers may have had are not in the record.
Sandra Day O'Connor: But this is such a new sort of a requirement you're seeking us to develop here. 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. It would be a major step, wouldn't it?
Brian J. Reichel: It would be a different kind of case, Your Honor.
Sandra Day O'Connor: Yes. Are there any indications that any of the police in this instance will face disciplinary action for their response here?
Brian J. Reichel: I really have no idea, Your Honor. I really have no idea.
Stephen G. Breyer: Could you still bring a state tort suit?
Brian J. Reichel: No, Your Honor. I believe that as was conceded in Petitioner's reply brief, they're really under our governmental immunity laws. They're probably the strictest in the country. There really is no viable tort--
Stephen G. Breyer: Why? Because it is willful and wanton, and you've made out a claim they didn't even give an answer, they didn't do anything, they have a practice of doing nothing.
Brian J. Reichel: --I believe that centers more around the causation and foreseeability issues that are triggered by that type of a claim.
Anthony M. Kennedy: Well, if the state cares so little about enforcing what its officers do under its own laws, isn't that some indication that it did not intend to create the property interest that you're arguing for?
Brian J. Reichel: No, Your Honor, I don't believe that at all. And in fact, again, going back to some of the Court's prior cases and the Roth series of case law, if you look, for example, at Logan versus Simmerman Brush, there was a good deal of discussion about whether there was a tort law remedy and, in fact, there was in that case.
William H. Rehnquist: Do you have any other cases besides Logan?
Brian J. Reichel: On that issue?
William H. Rehnquist: Yes.
Brian J. Reichel: Not with that elaborate of a discussion on the issue, although I would submit that the existence of a post-depravation remedy, so to speak here, is irrelevant under, again, Logan, simply because we're left now with the Monell claim. We're left with the allegations of state action, a custom and policy of a state entity here. And the existence of a post-depravation state law tort remedy is irrelevant to the analysis of whether there is a due process violation.
Ruth Bader Ginsburg: If there had been a question certified to the Colorado Supreme Court, and the Colorado Supreme Court said we weren't intending to create any entitlement here, evidence that we don't even have a tort action that's willful or wanton conduct, no liability at all in the municipality. So suppose the State Supreme Court has said, we didn't mean to create any entitlement, then where would you be?
Brian J. Reichel: We probably wouldn't be here, Your Honor. That question simply never got certified to the Tenth Circuit. And I believe you do have to give deference to the Tenth Circuit's analysis of Colorado law on that issue. Your Honors, at issue here is a specific order of protection, a legislative mandate requiring enforcement of a protective order and a pattern and practice of the Castle Rock police department of ignoring and failing to enforce court issued protective orders. This case does not turn on decisions made by police officers based solely on the facts of this case. This case involves allegations of a pattern and practice, an official policy and custom on the part of Castle Rock of not taking complaints of restraining order violations seriously. This pattern and practice that's... in and of itself proves there was no process. Ms. Gonzales merely seeks the opportunity to prove at a trial on the merits that no matter what she said to the Castle Rock police officers, they were not going to do anything about her--
John Paul Stevens: May I ask you whether you would favor or disfavor our certifying the question whether there is a property right here to the Colorado Supreme Court?
Brian J. Reichel: --At this point in time, I suppose I would disfavor it, because I believe that Bishop versus Wood is controlling. Your Honors, we respectfully request that this Honorable Court affirm the Tenth Circuit's ruling in this matter.
William H. Rehnquist: Thank you, Mr. Reichel. Mr. Eastman, you have four minutes remaining.
John C. Eastman: Thank you, Mr. Chief Justice. I want to go pack to Justice Scalia's point about the property interest. This is such a unique claim of a property interest. I think it would be appropriate to find that even if you were to accept Justice Stevens' contention of a contract, an ADT type of guarantee of protective services, that looks a lot more like the type of entitlements under Roth that this Court has recognized. I think it may well be the case that you never reach a property interest in the enforcement against somebody else, that that's a different thing in kind from this traditional contract protective services. So if there was a statute that said, when somebody has a protective order that implicates... particularly when there is a finding of dangerousness that's been made by a court that has nothing to do with the restraining order that was issued here, and that the police are obligated to provide 24-hour, seven days a week police... squad car out in front of her house until she goes to testify at a hearing, for example, that would be I think a property interest. But it would meet the criteria that this Court set out in Gonzaga, that it's defined in terms of rights to her, not just benefits that might flow from a criminal law more generally. It's phrased in terms of the person benefitting and it has an unmistakable focus. That's the phrase from Gonzaga. And that there is an intent to create a private remedy as well, not just the private right. I think those kind of things would give rise to a Roth type property interest that would lead to the invocation of procedural due process requirements.
Stephen G. Breyer: What about the willful and wanton... suppose the facts were just as they say, long-standing practice, not responding, doing nothing, doing nothing here despite evidence of serious danger, and being told you shouldn't do anything, don't pay any attention he'll come home, would that show willful and wanton?
John C. Eastman: I believe under Colorado law, that would show willful and wanton and their tort claim would be available against the police. But it's precisely because of that tort claim is available and only on those limited circumstances that I think you cannot read the Colorado legislature as having created a property interest here, because the remedies that would be available would not be so limited. We would not be limited to willful and wanton conduct. We would have all sorts of remedies beyond what the State of Colorado specifically said. And you would go a long way toward making constitutional provisions the font of Colorado tort law, and completely supplant--
John Paul Stevens: May I ask you the same question I asked your opponent? Would you favor or disfavor our certifying the property law issue to the Colorado Supreme Court?
John C. Eastman: --Disfavor. I think there is nothing in this statute that would even make it reasonable for the Colorado Supreme Court to hold that there is a property interest here. And to go back to your earlier point about Bishop, it's not a determinative rule. You give deference to the Tenth Circuit. But when the Tenth Circuit's decision is not based on any even developments in Colorado law, and based on a Colorado statute and takes the step that this statute simply doesn't comply with, I don't think you need to give the kind of absolute deference here that you might have given other cases.
William H. Rehnquist: Thank you, Mr. Eastman. The case is submitted.