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A Colorado judge issued a restraining order against Jessica Gonzales' husband in conjunction with their divorce proceedings. The original order commanded him not to molest or disturb the peace of her or of any child and to remain at least 100 yards from the family home at all times. Her former husband had the right to spend time with his three daughters (ages 10, 9, and 7) on alternate weekends, for two weeks during the summer, and, upon reasonable notice,Êfor a mid-week dinner visit arranged by the parties. He could also visit Jessica's home to collect the children.
The preprinted text on the back of the restraining order form also included a "NOTICE TO LAW ENFORCEMENT OFFICIALS," which read in part:
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 AMOUNTING TO PROBABLE CAUSE THAT THE RESTRAINED PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE ANY PROVISION OF THIS ORDER AND THE RESTRAINED PERSON HAS BEEN PROPERLY SERVED WITH A COPY OF THIS ORDER OR HAS RECEIVED ACTUAL NOTICE OF THE EXISTENCE OF THIS ORDER.
At about 5:30 P.M. on June 22, 1999, Jessica's husband took the three daughters while they were playing outside the family home. He had made no advance arrangements to see the daughters that evening. When she noticed the children were missing, she suspected her husband had taken them. She called the Castle Rock Police Department, which dispatched two officers. When the officers arrived, she showed them a copy of the restraining order and requested that they enforce it and return her three children to her immediately. The officers stated that they could not enforce the order and suggested that Jessica call the police department again if the three children did not return home by 10:00 P.M. At approximately 8:30 P.M., she talked to her husband on his cellular telephone. He told her he had the three children at an amusement park in Denver. She called the police again and asked them to have someone check for her husband or his vehicle at the amusement park and put out an all points bulletin for her husband, but the officer with whom she spoke refused to do so, again telling her to wait until 10:00 P.M. and see ifÊher husband returned the girls. At approximately 10:10 P.M., Jessica called the police and said her children were still missing, but they now told her to wait until midnight. She called at midnight and told the dispatcher her children were still missing. She went to her husband's apartment and, finding nobody there, called the police at 12:10 A.M. They told her to wait for an officer to arrive. When none came, she went to the police station at 12:50 A.M. and submitted an incident report. The officer who took the report made no reasonable effort to enforce the restraining order or locate the three children. Instead, he went to dinner.
At approximately 3:20 A.M., Jessica's husband arrived at the police station and opened fire with a semiautomatic handgun he had purchased earlier that evening. Police shot back, killing him. Inside the cab of his pickup truck, they found the bodies of all three daughters, whom he had already murdered.
The Fourteenth Amendment to the Constitution provides that a state shall not "deprive any person of life, liberty, or property, without due process of law." Congress has created a federal cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." Jessica Gonzales claimed the benefit of this provision on the ground that she had a property interest in police enforcement of the restraining order against her husband; and that the town deprived her of this property without due process by having a policy that tolerated nonenforcement of restraining orders.
The Supreme Court held that Mrs. Gonzales did not, for Due Process Clause purposes, have a property interest in police enforcement of the restraining order against her husband. The Due Process Clause's procedural component does not protect everything that might be described as a government "benefit":ÊTo have a property interest in a benefit, a person must have a legitimate claim of entitlement to it. Existing rules or understandings stemming from an independent source such as state law create such entitlements. In addition, a benefit is not a protected entitlement if officials have discretion to grant or deny it. Colorado law had not created a personal entitlement to enforcement of restraining orders and state law had not made such enforcement mandatory. A well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes. Moreover, even if the statute made enforcement "mandatory," it would require a state law to make enforcement an entitlement.
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