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...and a next best friend of her deceased minor children, GONZALES et al. No. 04-278, U.S. Court of Appeals, 10th Circuit, June 2005
Facts:
Respondent filed this suit under 42 U. S. C. ยง1983 alleging that petitioner violated the Fourteenth Amendment's Due Process Clause when its police officers, acting pursuant to official policy or custom, failed to respond to her repeated reports over several hours that her estranged husband had taken their three children in violation of her restraining order against him. The police did not act on Respondents reports and the husband ultimately opened fire on the police station and murdered all three children. The District Court granted the town's motion to dismiss, but an en banc majority of the Tenth Circuit reversed, finding that respondent had alleged a cognizable procedural due process claim because a Colorado statute established the state legislature's clear intent to require police to enforce retraining orders, and thus its intent that the order's recipient have an entitlement to its enforcement.
Issue:
Whether, as a matter of Colorado law, an individual who has obtained a state-law restraining order has a constitutionally protected property interest in having the police enforce the restraining order when they have probable cause to believe it has been violated.
Rules:
1. A benefit is not a protected entitlement if officials have discretion to grant or deny it. See, e.g., Kentucky Dept. of Corrections v. Thompson, 490 U. S. 454, 462-463.
2. Colorado law has not created a personal entitlement to enforcement of restraining orders. It does not appear that state law truly made such enforcement mandatory. A well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes. Cf. Chicago v. Morales, 527 U. S. 41, 47, n. 2, 62, n. 32
3. A benefit's indirect nature was...
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