(Cite as: 545 U.S. 748, 125 S.Ct. 2796) - NYU La · and interests in. Most Cited Cases (Formerly 92k277(1)) To have a protected property interest in a be-nefit, for due process purposes,

Supreme Court of the United StatesTOWN OF CASTLE ROCK, COLORADO, Peti-

tioner,v.

Jessica GONZALES, individually and as nextbest friend of her deceased minor children, Re-becca Gonzales, Katheryn Gonzales, and Leslie

Gonzales.

No. 04–278.Argued March 21, 2005.Decided June 27, 2005.

Background: Wife brought civil rights actionagainst municipality and police officers based onofficers' refusal to enforce domestic abuse re-straining order against husband. The UnitedStates District Court for the District of Colorado,Wiley Daniel, J., dismissed the action for failureto state a claim. The Tenth Circuit Court of Ap-peals, 307 F.3d 1258, reversed. Upon rehearingen banc, the Tenth Circuit Court of Appeals, Sey-mour, Circuit Judge, 366 F.3d 1093, reversed theDistrict Court's decision and remanded.

Holdings: Following grant of certiorari, theUnited States Supreme Court, Justice Scalia heldthat:(1) Supreme Court would not defer to the TenthCircuit Court of Appeals' determination that Col-orado law gave wife a right to have police en-force restraining order;(2) Colorado law did not create personal entitle-ment to police enforcement of restraining orders;and(3) wife did not have protected property interestin police enforcement of restraining order.

Reversed.

Justice Souter filed concurring opinion, inwhich Justice Breyer joined.

Justice Stevens filed dissenting opinion, inwhich Justice Ginsburg joined.

West Headnotes

[1] Constitutional Law 92 3869

92 Constitutional Law92XXVII Due Process

92XXVII(B) Protections Provided andDeprivations Prohibited in General

92k3868 Rights, Interests, Benefits, orPrivileges Involved in General

92k3869 k. In general. Most CitedCases(Formerly 92k252.5)The procedural component of the Due Pro-

cess Clause does not protect everything thatmight be described as a benefit. U.S.C.A.Const.Amend. 14.

[2] Constitutional Law 92 3874(3)

92 Constitutional Law92XXVII Due Process

92XXVII(B) Protections Provided andDeprivations Prohibited in General

92k3868 Rights, Interests, Benefits, orPrivileges Involved in General

92k3874 Property Rights and In-terests

92k3874(3) k. Benefits, rightsand interests in. Most Cited Cases(Formerly 92k277(1))To have a protected property interest in a be-

nefit, for due process purposes, a person musthave more than an abstract need or desire andmore than a unilateral expectation of it. U.S.C.A.Const.Amend. 14.

[3] Constitutional Law 92 3874(3)

92 Constitutional Law92XXVII Due Process

92XXVII(B) Protections Provided andDeprivations Prohibited in General

92k3868 Rights, Interests, Benefits, orPrivileges Involved in General

92k3874 Property Rights and In-terests

92k3874(3) k. Benefits, rights

125 S.Ct. 2796 Page 1545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658, 73 USLW 4611, 05 Cal. Daily Op. Serv. 5642, 05 Daily JournalD.A.R. 7653, 18 Fla. L. Weekly Fed. S 511(Cite as: 545 U.S. 748, 125 S.Ct. 2796)

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and interests in. Most Cited Cases(Formerly 92k277(1))To have a protected property interest in a be-

nefit, for due process purposes, a person musthave a legitimate claim of entitlement to it.U.S.C.A. Const.Amend. 14.

[4] Constitutional Law 92 3874(2)

92 Constitutional Law92XXVII Due Process

92XXVII(B) Protections Provided andDeprivations Prohibited in General

92k3868 Rights, Interests, Benefits, orPrivileges Involved in General

92k3874 Property Rights and In-terests

92k3874(2) k. Source of right orinterest. Most Cited Cases(Formerly 92k277(1))Property interests, in the due process context,

are created and their dimensions are defined byexisting rules or understandings that stem from anindependent source such as state law. U.S.C.A.Const.Amend. 14.

[5] Constitutional Law 92 3869

92 Constitutional Law92XXVII Due Process

92XXVII(B) Protections Provided andDeprivations Prohibited in General

92k3868 Rights, Interests, Benefits, orPrivileges Involved in General

92k3869 k. In general. Most CitedCases(Formerly 92k252.5)A benefit is not a protected entitlement, for

due process purposes, if government officialsmay grant or deny it in their discretion. U.S.C.A.Const.Amend. 14.

[6] Constitutional Law 92 3874(2)

92 Constitutional Law92XXVII Due Process

92XXVII(B) Protections Provided andDeprivations Prohibited in General

92k3868 Rights, Interests, Benefits, orPrivileges Involved in General

92k3874 Property Rights and In-terests

92k3874(2) k. Source of right orinterest. Most Cited Cases(Formerly 92k277(1))Although the underlying substantive interest

in property is created by an independent sourcesuch as state law, federal constitutional law de-termines whether that interest rises to the level ofa legitimate claim of entitlement protected by theDue Process Clause. U.S.C.A. Const.Amend. 14.

[7] Federal Courts 170B 3204

170B Federal Courts170BXVI Supreme Court170BXVI(E) Proceedings

170Bk3203 Scope and Extent of Re-view

170Bk3204 k. In general. Most CitedCases(Formerly 170Bk460.1)The Supreme Court would not defer to the

Tenth Circuit Court of Appeals' determinationthat Colorado law gave wife a right to have policeenforce a domestic abuse restraining order againsther husband, for purpose of determining ultimatequestion of whether wife had protected propertyinterest in police enforcement, in wife's civilrights action against police and municipality,arising from failure to enforce order; the Court ofAppeals' opinion did not draw upon state-specificcase law or expertise, but instead relied upon lan-guage that appeared in many state restraining lawstatutes. U.S.C.A. Const.Amend. 14; West'sC.R.S.A. § 18–6–803.5(3)(a, b).

[8] Constitutional Law 92 4488

92 Constitutional Law92XXVII Due Process92XXVII(G) Particular Issues and Applica-

tions92XXVII(G)25 Other Particular Issues

and Applications92k4488 k. Orders for protection.

Most Cited Cases(Formerly 92k277(1))

Municipal Corporations 268 740(1)

125 S.Ct. 2796 Page 2545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658, 73 USLW 4611, 05 Cal. Daily Op. Serv. 5642, 05 Daily JournalD.A.R. 7653, 18 Fla. L. Weekly Fed. S 511(Cite as: 545 U.S. 748, 125 S.Ct. 2796)

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268 Municipal Corporations268XII Torts

268XII(A) Exercise of Governmental andCorporate Powers in General

268k740 Injuries by Mobs or OtherWrongdoers

268k740(1) k. In general. Most CitedCases

Colorado law did not create a personal enti-tlement to police enforcement of domestic abuserestraining orders, for purpose of determiningwhether wife had protected property interest inpolice enforcement of restraining order againsthusband, in civil rights action against police andmunicipality, arising from failure to enforce it; al-though restraining order statute provided that po-lice “shall use” every reasonable means to en-force a restraining order, tradition of police dis-cretion coexisted with similar mandatory arrestprovisions, enforcement was not always possibleor practical, statute provided for alternative to im-mediate enforcement, which was the seeking ofan arrest warrant, an entitlement to procedureonly, and although statute provided for a protec-ted person's direct power to initiate contempt pro-ceedings against restrained person if order wasviolated, it did not expressly give protected per-son a right to request or demand an arrest.U.S.C.A. Const.Amend. 14; West's C.R.S.A. §§18–6–803.5(3)(a, b), 18–6–803.6(1).

[9] Constitutional Law 92 3869

92 Constitutional Law92XXVII Due Process

92XXVII(B) Protections Provided andDeprivations Prohibited in General

92k3868 Rights, Interests, Benefits, orPrivileges Involved in General

92k3869 k. In general. Most CitedCases(Formerly 92k252.5)A person cannot safely be deemed “entitled”

to something, for purpose of determining whetherperson has protected due process interest, whenthe identity of the alleged entitlement is vague.U.S.C.A. Const.Amend. 14.

[10] Constitutional Law 92 4488

92 Constitutional Law92XXVII Due Process92XXVII(G) Particular Issues and Applica-

tions92XXVII(G)25 Other Particular Issues

and Applications92k4488 k. Orders for protection.

Most Cited Cases(Formerly 92k277(1))

Municipal Corporations 268 740(1)

268 Municipal Corporations268XII Torts

268XII(A) Exercise of Governmental andCorporate Powers in General

268k740 Injuries by Mobs or OtherWrongdoers

268k740(1) k. In general. Most CitedCases

Wife did not have protected property interestin police enforcement of restraining order, issuedpursuant to Colorado law, against her husband,and thus, she could not prevail in civil rights ac-tion against police and municipality for an al-leged due process violation, arising from failureto enforce it; even assuming that Colorado lawcreated an entitlement to police enforcement ofthe restraining order, it was an indirect benefit,rather than a direct benefit. U.S.C.A.Const.Amend. 14; West's C.R.S.A. §18–6–803.5(3)(a, b).

[11] Constitutional Law 92 3865

92 Constitutional Law92XXVII Due Process

92XXVII(B) Protections Provided andDeprivations Prohibited in General

92k3865 k. In general. Most CitedCases(Formerly 92k278(1), 92k255(1))An indirect and incidental result of the gov-

ernment's enforcement action does not amount toa deprivation of any interest in life, liberty, orproperty, for due process purposes. U.S.C.A.Const.Amend. 14.

[12] Constitutional Law 92 4523

125 S.Ct. 2796 Page 3545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658, 73 USLW 4611, 05 Cal. Daily Op. Serv. 5642, 05 Daily JournalD.A.R. 7653, 18 Fla. L. Weekly Fed. S 511(Cite as: 545 U.S. 748, 125 S.Ct. 2796)

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92 Constitutional Law92XXVII Due Process92XXVII(H) Criminal Law92XXVII(H)3 Law Enforcement

92k4521 Conduct of Police and Pro-secutors in General

92k4523 k. Investigative activityin general. Most Cited Cases(Formerly 92k252.5)A state-law created benefit that a third party

may receive from having someone else arrestedfor a crime generally does not trigger protectionsunder the Due Process Clause, neither in its pro-cedural nor in its substantive manifestations.U.S.C.A. Const.Amend. 14.

**2798 *748 Syllabus FN*

FN* The syllabus constitutes no part ofthe opinion of the Court but has beenprepared by the Reporter of Decisionsfor the convenience of the reader. SeeUnited States v. Detroit Timber & Lum-ber Co., 200 U.S. 321, 337, 26 S.Ct. 282,50 L.Ed. 499.

Respondent filed this suit under 42 U.S.C. §1983 alleging that petitioner violated the Four-teenth Amendment's Due Process Clause when itspolice officers, acting pursuant to official policyor custom, failed to respond to her repeated re-ports over several hours that her estranged hus-band had taken their three children in violation ofher restraining order against him. Ultimately, thehusband murdered the children. The DistrictCourt granted the town's motion to dismiss, butan en banc majority of the Tenth Circuit reversed,finding that respondent had alleged a cognizableprocedural due process claim because a Coloradostatute established the state legislature's clear in-tent to require police to enforce restraining or-ders, and thus its intent that the order's recipienthave an entitlement to its enforcement. The courttherefore ruled, among other things, that respond-ent had a protected property interest in the en-forcement of her restraining order.

Held: Respondent did not, for Due ProcessClause purposes, have a property interest in po-lice enforcement of the restraining order against

her husband. Pp. 2802–2810.

(a) The Due Process Clause's proceduralcomponent does not protect everything**2799that might be described as a government“benefit”: “To have a property interest in a bene-fit, a person ... must ... have a legitimate claim ofentitlement to it.” Board of Regents of State Col-leges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701,33 L.Ed.2d 548. Such entitlements are created byexisting rules or understandings stemming froman independent source such as state law. E.g.,ibid. Pp. 2802–2803.

(b) A benefit is not a protected entitlement ifofficials have discretion to grant or deny it. See,e.g., Kentucky Dept. of Corrections v. Thompson,490 U.S. 454, 462–463, 109 S.Ct. 1904, 104L.Ed.2d 506. It is inappropriate here to defer tothe Tenth Circuit's determination that Coloradolaw gave respondent a right to police enforcementof the restraining order. This Court therefore pro-ceeds to its own analysis. Pp. 2803–2804.

(c) Colorado law has not created a personalentitlement to enforcement of restraining orders.It does not appear that state law truly made suchenforcement mandatory. A well-established tradi-tion of policediscretion *749 has long coexistedwith apparently mandatory arrest statutes. Cf.Chicago v. Morales, 527 U.S. 41, 47, n. 2, 62, n.32, 119 S.Ct. 1849, 144 L.Ed.2d 67. Against thatbackdrop, a true mandate of police action wouldrequire some stronger indication than the Color-ado statute's direction to “use every reasonablemeans to enforce a restraining order” or even to“arrest ... or ... seek a warrant.” A Colorado of-ficer would likely have some discretion to de-termine that—despite probable cause to believe arestraining order has been violated—the viola-tion's circumstances or competing duties counseldecisively against enforcement in a particular in-stance. The practical necessity for discretion isparticularly apparent in a case such as this, wherethe suspected violator is not actually present andhis whereabouts are unknown. In such circum-stances, the statute does not appear to require of-ficers to arrest but only to seek a warrant. That,however, would be an entitlement to nothing but

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procedure, which cannot be the basis for a prop-erty interest. Pp. 2804–2808.

(d) Even if the statute could be said to makeenforcement “mandatory,” that would not neces-sarily mean that respondent has an entitlement toenforcement. Her alleged interest stems not fromcommon law or contract, but only from a State'sstatutory scheme. If she was given a statutory en-titlement, the Court would expect to see some in-dication of that in the statute itself. Although thestatute spoke of “protected person[s]” such as re-spondent, it did so in connection with mattersother than a right to enforcement. Most import-antly, it spoke directly to the protected person'spower to “initiate” contempt proceedings if theorder was issued in a civil action, which contraststellingly with its conferral of a power merely to“request” initiation of criminal contempt proceed-ings—and even more dramatically with its com-plete silence about any power to “request” (muchless demand) that an arrest be made. Pp.2808–2809.

(e) Even were the Court to think otherwiseabout Colorado's creation of an entitlement, it isnot clear that an individual entitlement to en-forcement of a restraining order could constitute a“property” interest for due process purposes.Such a right would have no ascertainable monet-ary value and would arise incidentally, not out ofsome new species of government benefit or ser-vice, but out of a function that government actorshave always performed—arresting people whenthey have probable cause. A benefit's indirectnature was fatal to a due process claim inO'Bannon v. Town Court Nursing Center, 447U.S. 773, 787, 100 S.Ct. 2467, 65 L.Ed.2d 506.Here, **2800 as there, “[t]he simple distinctionbetween government action that directly affects acitizen's legal rights ... and action that is directedagainst a third party and affects the citizen only ...incidentally, provides*750 a sufficient answer to”cases finding government-provided services to beentitlements. Id., at 788, 100 S.Ct. 2467. Pp.2809–2810.

366 F.3d 1093, reversed.

SCALIA, J., delivered the opinion of the

Court, in which REHNQUIST, C. J., andO'CONNOR, KENNEDY, SOUTER, THOMAS,and BREYER, JJ., joined. SOUTER, J., filed aconcurring opinion, in which BREYER, J.,joined, post, p. 2811. STEVENS, J., filed a dis-senting opinion, in which GINSBURG, J., joined,post, p. 2813.John P. Elwood, for the United States as amicuscuriae, by special leave of the Court, supportingthe petitioner.

Thomas S. Rice, Eric M. Ziporin, Counsel of Re-cord, Senter, Goldfarb & Rice, L.L.C., Denver,Colorado, John C. Eastman, c/o Chapman Uni-versity School of Law, Orange, CA, Erik S. Jaffe,Erik S. Jaffe, P.C., Washington, D.C., Counselfor Petitioners.

Brian J. Reichel, Counsel of Record, Law Officeof Brian J. Reichel, Broomfield, CO, David T.Odom, Odom & Associates, P.C., Naperville, IL,Counsel for Respondent.

For U.S. Supreme Court briefs, see:2004 WL3007308 (Pet.Brief)2005 WL 353695(Resp.Brief)2005 WL 622835 (Reply.Brief)

Justice SCALIA delivered the opinion of theCourt.

We decide in this case whether an individualwho has obtained a state-law restraining order hasa constitutionally *751 protected property interestin having the police enforce the restraining orderwhen they have probable cause to believe it hasbeen violated.

IThe horrible facts of this case are contained

in the complaint that respondent Jessica Gonzalesfiled in Federal District Court. (Because the casecomes to us on appeal from a dismissal of thecomplaint, we assume its allegations are true. SeeSwierkiewicz v. Sorema N. A., 534 U.S. 506, 508,n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).) Re-spondent alleges that petitioner, the town ofCastle Rock, Colorado, violated the Due ProcessClause of the Fourteenth Amendment to theUnited States Constitution when its police of-ficers, acting pursuant to official policy or cus-tom, failed to respond properly to her repeated re-

125 S.Ct. 2796 Page 5545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658, 73 USLW 4611, 05 Cal. Daily Op. Serv. 5642, 05 Daily JournalD.A.R. 7653, 18 Fla. L. Weekly Fed. S 511(Cite as: 545 U.S. 748, 125 S.Ct. 2796)

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ports that her estranged husband was violating theterms of a restraining order.FN1

FN1. Petitioner claims that respondent'scomplaint “did not allege ... that she evernotified the police of her contention that[her husband] was actually in violationof the restraining order.” Brief for Peti-tioner 7, n. 2. The complaint does allege,however, that respondent “showed [thepolice] a copy of the [temporary restrain-ing order (TRO) ] and requested that itbe enforced.” App. to Pet. for Cert. 126a.At this stage in the litigation, we may as-sume that this reasonably implied the or-der was being violated. See Steel Co. v.Citizens for Better Environment, 523U.S. 83, 104, 118 S.Ct. 1003, 140L.Ed.2d 210 (1998).

The restraining order had been issued by astate trial court several weeks earlier in conjunc-tion with respondent's divorce proceedings. Theoriginal form order, issued on May 21, 1999, andserved on respondent's husband on June 4, 1999,commanded him not to “molest or disturb the**2801 peace of [respondent] or of any child,”and to remain at least 100 yards from the familyhome at all times. 366 F.3d 1093, 1143 (C.A.102004) (en banc) (appendix to dissenting opinionof O'Brien, J.). The bottom of the preprinted formnoted that the reverse side contained“IMPORTANT NOTICES FOR RESTRAINEDPARTIES AND LAW ENFORCEMENT OFFI-CIALS.” Ibid. (emphasis deleted). The preprinted*752 text on the back of the form included thefollowing “WARNING”:

“ A KNOWING VIOLATION OF A RE-STRAINING ORDER IS A CRIME .... A VI-OLATION WILL ALSO CONSTITUTE CON-TEMPT OF COURT. YOU MAY BE ARRES-TED WITHOUT NOTICE IF A LAW EN-FORCEMENT OFFICER HAS PROBABLECAUSE TO BELIEVE THAT YOU HAVEKNOWINGLY VIOLATED THIS ORDER.”Id., at 1144 (emphasis in original).

The preprinted text on the back of the formalso included a “NOTICE TO LAW EN-

FORCEMENT OFFICIALS,” which read inpart:“YOU SHALL USE EVERY REASONABLEMEANS TO ENFORCE THIS RESTRAININGORDER. YOU SHALL ARREST, OR, IF ANARREST WOULD BE IMPRACTICAL UN-DER THE CIRCUMSTANCES, SEEK AWARRANT FOR THE ARREST OF THE RE-STRAINED PERSON WHEN YOU HAVE IN-FORMATION AMOUNTING TO PROBABLECAUSE THAT THE RESTRAINED PERSONHAS VIOLATED OR ATTEMPTED TO VI-OLATE ANY PROVISION OF THIS ORDERAND THE RESTRAINED PERSON HASBEEN PROPERLY SERVED WITH A COPYOF THIS ORDER OR HAS RECEIVED AC-TUAL NOTICE OF THE EXISTENCE OFTHIS ORDER.” Ibid. (same).

On June 4, 1999, the state trial court modi-fied the terms of the restraining order and made itpermanent. The modified order gave respondent'shusband the right to spend time with his threedaughters (ages 10, 9, and 7) on alternate week-ends, for two weeks during the summer, and, “‘upon reasonable notice,’ ” for a midweek dinnervisit “ ‘arranged by the parties' ”; the modifiedorder also allowed him to visit *753 the home tocollect the children for such “parenting time.” Id.,at 1097 (majority opinion).

According to the complaint, at about 5 or5:30 p.m. on Tuesday, June 22, 1999, respond-ent's husband took the three daughters while theywere playing outside the family home. No ad-vance arrangements had been made for him to seethe daughters that evening. When respondent no-ticed the children were missing, she suspected herhusband had taken them. At about 7:30 p.m., shecalled the Castle Rock Police Department, whichdispatched two officers. The complaint continues:“When [the officers] arrived ..., she showed thema copy of the TRO and requested that it be en-forced and the three children be returned to herimmediately. [The officers] stated that there wasnothing they could do about the TRO and sugges-ted that [respondent] call the Police Departmentagain if the three children did not return home by10:00 p.m.” App. to Pet. for Cert. 126a. FN2

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FN2. It is unclear from the complaint,but immaterial to our decision, whetherrespondent showed the police only theoriginal “TRO” or also the permanent,modified restraining order that had su-perseded it on June 4.

At approximately 8:30 p.m., respondenttalked to her husband on his cellular telephone.He told her “he had the three children [at an]amusement park in Denver.” Ibid. She called thepolice again and **2802 asked them to “havesomeone check for” her husband or his vehicle atthe amusement park and “put out an [all pointsbulletin]” for her husband, but the officer withwhom she spoke “refused to do so,” again tellingher to “wait until 10:00 p.m. and see if” her hus-band returned the girls. Id., at 126a–127a.

At approximately 10:10 p.m., respondentcalled the police and said her children were stillmissing, but she was now told to wait until mid-night. She called at midnight and told the dis-patcher her children were still missing. She wentto her husband's apartment and, finding nobodythere, called the police at 12:10 a.m.; she was toldto wait for an officer to arrive. When none came,she went to the police station at *754 12:50 a.m.and submitted an incident report. The officer whotook the report “made no reasonable effort to en-force the TRO or locate the three children. In-stead, he went to dinner.” Id., at 127a.

At approximately 3:20 a.m., respondent'shusband arrived at the police station and openedfire with a semiautomatic handgun he had pur-chased 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. Ibid.

On the basis of the foregoing factual allega-tions, respondent brought an action under Rev.Stat. § 1979, 42 U.S.C. § 1983, claiming that thetown violated the Due Process Clause because itspolice department had “an official policy or cus-tom of failing to respond properly to complaintsof restraining order violations” and “tolerate[d]the non-enforcement of restraining orders by itspolice officers.” App. to Pet. for Cert. 129a.FN3

The complaint also alleged that the town's actions“were taken either willfully, recklessly or withsuch gross negligence as to indicate wanton dis-regard and deliberate indifference to” respond-ent's civil rights. Ibid.

FN3. Three police officers were alsonamed as defendants in the complaint,but the Court of Appeals concluded thatthey were entitled to qualified immunity,366 F.3d 1093, 1118 (C.A.10 2004) (enbanc). Respondent did not file a cross-petition challenging that aspect of thejudgment.

Before answering the complaint, the defend-ants filed a motion to dismiss under Federal Ruleof Civil Procedure 12(b)(6). The District Courtgranted the motion, concluding that, whether con-strued as making a substantive due process orprocedural due process claim, respondent's com-plaint failed to state a claim upon which reliefcould be granted.

A panel of the Court of Appeals affirmed therejection of a substantive due process claim, butfound that respondent had alleged a cognizableprocedural due process claim. 307 F.3d 1258(C.A.10 2002). On rehearing en banc, a divided*755 court reached the same disposition, conclud-ing that respondent had a “protected property in-terest in the enforcement of the terms of her re-straining order” and that the town had deprivedher of due process because “the police never‘heard’ nor seriously entertained her request toenforce and protect her interests in the restrainingorder.” 366 F.3d, at 1101, 1117. We granted cer-tiorari. 543 U.S. 955, 125 S.Ct. 417, 160 L.Ed.2d316 (2004).

IIThe Fourteenth Amendment to the United

States Constitution provides that a State shall not“deprive any person of life, liberty, or property,without due process of law.” Amdt. 14, § 1. In 42U.S.C. § 1983, Congress has created a federalcause of action for “the deprivation of any rights,privileges, or immunities secured by the **2803Constitution and laws.” Respondent claims thebenefit of this provision on the ground that she

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had a property interest in police enforcement ofthe restraining order against her husband; and thatthe town deprived her of this property withoutdue process by having a policy that tolerated non-enforcement of restraining orders.

As the Court of Appeals recognized, we left asimilar question unanswered in DeShaney v. Win-nebago County Dept. of Social Servs., 489 U.S.189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), an-other case with “undeniably tragic” facts: Localchild-protection officials had failed to protect ayoung boy from beatings by his father that lefthim severely brain damaged. Id., at 191–193, 109S.Ct. 998. We held that the so-called“substantive” component of the Due ProcessClause does not “requir[e] the State to protect thelife, liberty, and property of its citizens againstinvasion by private actors.” Id., at 195, 109 S.Ct.998. We noted, however, that the petitioner hadnot properly preserved the argument that—andwe thus “decline[d] to consider” whether—state“child protection statutes gave [him] an‘entitlement’ to receive protective services in ac-cordance with the terms of the statute, an entitle-ment which would enjoy due process protection.”Id., at 195, n. 2, 109 S.Ct. 998.

[1][2][3][4] *756 The procedural componentof the Due Process Clause does not protecteverything that might be described as a “benefit”:“To have a property interest in a benefit, a personclearly must have more than an abstract need ordesire” and “more than a unilateral expectation ofit. He must, instead, have a legitimate claim ofentitlement to it.” Board of Regents of State Col-leges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701,33 L.Ed.2d 548 (1972). Such entitlements are, “‘of course, ... not created by the Constitution.Rather, they are created and their dimensions aredefined by existing rules or understandings thatstem from an independent source such as statelaw.’ ” Paul v. Davis, 424 U.S. 693, 709, 96 S.Ct.1155, 47 L.Ed.2d 405 (1976) (quoting Roth,supra, at 577, 92 S.Ct. 2701); see also Phillips v.Washington Legal Foundation, 524 U.S. 156,164, 118 S.Ct. 1925, 141 L.Ed.2d 174 (1998).

A

[5] Our cases recognize that a benefit is not aprotected entitlement if government officials maygrant or deny it in their discretion. See, e.g., Ken-tucky Dept. of Corrections v. Thompson, 490 U.S.454, 462–463, 109 S.Ct. 1904, 104 L.Ed.2d 506(1989). The Court of Appeals in this case determ-ined that Colorado law created an entitlement toenforcement of the restraining order because the“court-issued restraining order ... specifically dic-tated that its terms must be enforced” and a “statestatute command[ed]” enforcement of the orderwhen certain objective conditions were met(probable cause to believe that the order had beenviolated and that the object of the order had re-ceived notice of its existence). 366 F.3d, at 1101,n. 5; see also id., at 1100, n. 4; id., at 1104–1105,and n. 9. Respondent contends that we are ob-liged “to give deference to the Tenth Circuit'sanalysis of Colorado law on” whether she had anentitlement to enforcement of the restraining or-der. Tr. of Oral Arg. 52.

[6] We will not, of course, defer to the TenthCircuit on the ultimate issue: whether what Col-orado law has given respondent constitutes aproperty interest for purposes of the FourteenthAmendment. That determination, despite its *757state-law underpinnings, is ultimately one of fed-eral constitutional law. “Although the underlyingsubstantive interest is created by ‘an independentsource such as state law,’ federal constitutionallaw **2804 determines whether that interest risesto the level of a ‘legitimate claim of entitlement’protected by the Due Process Clause.” MemphisLight, Gas & Water Div. v. Craft, 436 U.S. 1, 9,98 S.Ct. 1554, 56 L.Ed.2d 30 (1978) (quotingRoth, supra, at 577, 92 S.Ct. 2701; emphasis ad-ded); cf. United States ex rel. TVA v. Powelson,319 U.S. 266, 279, 63 S.Ct. 1047, 87 L.Ed. 1390(1943). Resolution of the federal issue begins,however, with a determination of what it is thatstate law provides. In the context of the presentcase, the central state-law question is whetherColorado law gave respondent a right to policeenforcement of the restraining order. It is on thispoint that respondent's call for deference to theTenth Circuit is relevant.

[7] We have said that a “presumption of de-

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ference [is] given the views of a federal court asto the law of a State within its jurisdiction.” Phil-lips, supra, at 167, 118 S.Ct. 1925. That presump-tion can be overcome, however, see Leavitt v.Jane L., 518 U.S. 137, 145, 116 S.Ct. 2068, 135L.Ed.2d 443 (1996) (per curiam), and we thinkdeference inappropriate here. The Tenth Circuit'sopinion, which reversed the Colorado DistrictJudge, did not draw upon a deep well of state-specific expertise, but consisted primarily ofquoting language from the restraining order, thestatutory text, and a state-legislative-hearing tran-script. See 366 F.3d, at 1103–1109. These texts,moreover, say nothing distinctive to Colorado,but use mandatory language that (as we shall dis-cuss) appears in many state and federal statutes.As for case law: The only state-law cases aboutrestraining orders that the Court of Appeals reliedupon were decisions of Federal District Courts inOhio and Pennsylvania and state courts in NewJersey, Oregon, and Tennessee. Id., at1104–1105, n. 9, 1109.FN4 Moreover, if we weresimply to acceptthe *758 Court of Appeals' con-clusion, we would necessarily have to decide con-clusively a federal constitutional question (i.e.,whether such an entitlement constituted propertyunder the Due Process Clause and, if so, whetherpetitioner's customs or policies provided too littleprocess to protect it). We proceed, then, to ourown analysis of whether Colorado law gave re-spondent a right to enforcement of the restrainingorder.FN5

FN4. Most of the Colorado-law casescited by the Court of Appeals appearedin footnotes declaring them to be irrelev-ant because they involved only substant-ive due process (366 F.3d, at 1100–1101,nn. 4–5), only statutes without restrain-ing orders (id., at 1101, n. 5), or Color-ado's Government Immunity Act, whichthe Court of Appeals concluded applies“only to ... state tort law claims” (id., at1108–1109, n. 12). Our analysis is like-wise unaffected by the Immunity Act orby the way that Colorado has dealt withsubstantive due process or cases that donot involve restraining orders.

FN5. In something of an anyone-but-usapproach, the dissent simultaneously(and thus unpersuasively) contends notonly that this Court should certify aquestion to the Colorado Supreme Court,post, at 2815–2816 (opinion ofSTEVENS, J.), but also that it should de-fer to the Tenth Circuit (which itself didnot certify any such question), post, at2814–2815. No party in this case has re-quested certification, even as an alternat-ive disposition. See Tr. of Oral Arg. 56(petitioner's counsel “disfavor[ing]” cer-tification); id., at 25–26 (counsel for theUnited States arguing against certifica-tion). At oral argument, in fact, respond-ent's counsel declined Justice STEVENS'invitation to request it. Id., at 53.

B[8] The critical language in the restraining

order came not from any part of the order itself(which was signed by the state-court trial judgeand directed to the restrained party, respondent'shusband), but from the preprinted notice to law-enforcement personnel that appeared on **2805the back of the order. See supra, at 2801. Thatnotice effectively restated the statutory provisiondescribing “peace officers' duties” related to thecrime of violation of a restraining order. At thetime of the conduct at issue in this case, that pro-vision read as follows:

“(a) Whenever a restraining order is issued,the protected person shall be provided with acopy of such *759 order. A peace officer shalluse every reasonable means to enforce a re-straining order.

“(b) A peace officer shall arrest, or, if an ar-rest would be impractical under the circum-stances, seek a warrant for the arrest of a re-strained person when the peace officer has in-formation amounting to probable cause that:

“(I) The restrained person has violated or at-tempted to violate any provision of a restrain-ing order; and

“(II) The restrained person has been properly

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served with a copy of the restraining order orthe restrained person has received actual noticeof the existence and substance of such order.

“(c) In making the probable cause determina-tion described in paragraph (b) of this subsec-tion (3), a peace officer shall assume that theinformation received from the registry is accur-ate. A peace officer shall enforce a valid re-straining order whether or not there is a recordof the restraining order in the registry. ”Colo.Rev.Stat. § 18–6–803.5(3) (Lexis 1999)(emphases added).

The Court of Appeals concluded that thisstatutory provision—especially taken in conjunc-tion with a statement from its legislative history,FN6 and with another statute restricting *760criminal and civil liability for officers making ar-rests FN7—established the Colorado Legislature'sclear intent “to alter the fact that the police werenot enforcing domestic abuse restraining orders,”and thus its intent “that the recipient of a domest-ic abuse restraining order have an entitlement toits enforcement.” 366 F.3d, at 1108. Any otherresult, it said, “would render domestic abuse re-straining orders utterly valueless.” Id., at 1109.

FN6. The Court of Appeals quoted onelawmaker's description of how the bill “‘would really attack the domestic viol-ence problems' ”:

“ ‘[T]he entire criminal justice systemmust act in a consistent manner, whichdoes not now occur. The police mustmake probable cause arrests. The pro-secutors must prosecute every case.Judges must apply appropriate sen-tences, and probation officers mustmonitor their probationers closely.And the offender needs to be sen-tenced to offender-specific therapy.

“ ‘[T]he entire system must send thesame message ... [that] violence iscriminal. And so we hope that HouseBill 1253 starts us down this road.’ ”366 F.3d, at 1107 (quoting Tr. of Col-orado House Judiciary Hearings on

House Bill 1253, Feb. 15, 1994; em-phasis deleted).

FN7. Under Colo.Rev.Stat. §18–6–803.5(5) (Lexis 1999), “[a] peaceofficer arresting a person for violating arestraining order or otherwise enforcinga restraining order” was not to be heldcivilly or criminally liable unless he ac-ted “in bad faith and with malice” or vi-olated “rules adopted by the Coloradosupreme court.”

This last statement is sheer hyperbole.Whether or not respondent had a right to enforcethe restraining order, it rendered certain otherwiselawful conduct by her husband both criminal andin contempt of court. See §§ 18–6–803.5(2)(a),(7). The creation of grounds on which he could bearrested, criminally prosecuted, and held in con-tempt was hardly “valueless”—even if the pro-spect of those sanctions ultimately failed to pre-vent him from committing three murders and asuicide.

We do not believe that these provisions ofColorado law truly made enforcement of restrain-ing orders mandatory. A well established tradi-tion of police discretion has **2806 long coexis-ted with apparently mandatory arrest statutes.

“In each and every state there are long-standing statutes that, by their terms, seem topreclude nonenforcement by the police....However, for a number of reasons, includingtheir legislative history, insufficient resources,and sheer physical impossibility, it has been re-cognized that such statutes cannot be inter-preted literally.... [T]hey clearly do not meanthat a police officer may not lawfully decline to... make an arrest. As to third parties in thesestates, the full-enforcement statutes simplyhave no effect, and their significance is *761further diminished.” 1 ABA Standards forCriminal Justice 1–4.5, commentary, pp. 1–124to 1–125 (2d ed.1980) (footnotes omitted).

The deep-rooted nature of law-enforcementdiscretion, even in the presence of seeminglymandatory legislative commands, is illustrated by

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Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849,144 L.Ed.2d 67 (1999), which involved an ordin-ance that said a police officer “ ‘shall order’ ”persons to disperse in certain circumstances, id.,at 47, n. 2, 119 S.Ct. 1849. This Court rejectedout of hand the possibility that “the mandatorylanguage of the ordinance ... afford[ed] the policeno discretion.” Id., at 62, n. 32, 119 S.Ct. 1849. Itis, the Court proclaimed, simply “common sensethat all police officers must use some discretionin deciding when and where to enforce city ordin-ances.” Ibid. (emphasis added).

Against that backdrop, a true mandate of po-lice action would require some stronger indica-tion from the Colorado Legislature than “shalluse every reasonable means to enforce a restrain-ing order” (or even “shall arrest ... or ... seek awarrant”), §§ 18–6–803.5(3)(a), (b). That lan-guage is not perceptibly more mandatory than theColorado statute which has long told municipalchiefs of police that they “shall pursue and arrestany person fleeing from justice in any part of thestate” and that they “shall apprehend any personin the act of committing any offense ... and, forth-with and without any warrant, bring such personbefore a ... competent authority for examinationand trial.” Colo.Rev.Stat. § 31–4–112 (Lexis2004). It is hard to imagine that a Colorado peaceofficer would not have some discretion to determ-ine that—despite probable cause to believe a re-straining order has been violated—the circum-stances of the violation or the competing duties ofthat officer or his agency counsel decisivelyagainst enforcement in a particular instance. FN8

*762 The practical necessity for discretion is par-ticularly apparent in a case such as this one,where the suspected violator is not actuallypresent and his whereabouts are unknown. Cf.Donaldson v. Seattle, 65 Wash.App. 661,671–672, 831 P.2d 1098, 1104 (1992) (“There isa vast difference between a mandatory duty to ar-rest [a violator who is on the scene] and a man-datory duty to conduct a follow up investigation[to locate an absent violator].... A mandatory dutyto investigate ... would be completely open-endedas to priority, duration and intensity”).

FN8. Respondent in fact concedes that

an officer may “properly” decide not toenforce a restraining order when the of-ficer deems “a technical violation” too“immaterial” to justify arrest. Respond-ent explains this as a determination thatthere is no probable cause. Brief for Re-spondent 28. We think, however, that adetermination of no probable cause tobelieve a violation has occurred is quitedifferent from a determination that theviolation is too insignificant to pursue.

The dissent correctly points out that, in thespecificcontextofdomesticviolence,mandatory-ar-rest statutes have been found **2807 in someStates to be more mandatory than traditional man-datory-arrest statutes. Post, at 2816–2819(opinion of STEVENS, J.). The Colorado statutemandating arrest for a domestic-violence offenseis different from but related to the one at issuehere, and it includes similar though not identicalphrasing. See Colo.Rev.Stat. § 18–6–803.6(1)(Lexis 1999) (“When a peace officer determinesthat there is probable cause to believe that a crimeor offense involving domestic violence ... hasbeen committed, the officer shall, without unduedelay, arrest the person suspected of its commis-sion ... ”). Even in the domestic-violence context,however, it is unclear how the mandatory-arrestparadigm applies to cases in which the offender isnot present to be arrested. As the dissent explains,post, at 2817, and n. 8, much of the impetus formandatory-arrest statutes and policies derivedfrom the idea that it is better for police officers toarrest the aggressor in a domestic-violence incid-ent than to attempt to mediate the dispute ormerely to ask the offender to leave the scene.Those other options are only available, of course,when the offender is present at the *763 scene.See Hanna, No Right to Choose: Mandated Vic-tim Participation in Domestic Violence Prosecu-tions, 109 Harv. L.Rev. 1849, 1860 (1996)(“[T]he clear trend in police practice is to arrestthe batterer at the scene ... ” (emphasis added)).

As one of the cases cited by the dissent, post,at 2818–2819, recognized, “there will be situ-ations when no arrest is possible, such as whenthe alleged abuser is not in the home.” Donald-

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son, 65 Wash.App., at 674, 831 P.2d, at 1105(emphasis added). That case held that Washing-ton's mandatory-arrest statute required an arrestonly in “cases where the offender is on thescene,” and that it “d[id] not create an on-goingmandatory duty to conduct an investigation” tolocate the offender. Id., at 675, 831 P.2d, at 1105.Colorado's restraining-order statute appears tocontemplate a similar distinction, providing thatwhen arrest is “impractical”—which was likelythe case when the whereabouts of respondent'shusband were unknown—the officers' statutoryduty is to “seek a warrant” rather than “arrest.” §18–6–803.5(3)(b).

[9] Respondent does not specify the precisemeans of enforcement that the Colorado restrain-ing-order statute assertedly mandated—whetherher interest lay in having police arrest her hus-band, having them seek a warrant for his arrest,or having them “use every reasonable means, upto and including arrest, to enforce the order'sterms,” Brief for Respondent 29–30.FN9 Such in-determinacy is not the hallmark of a duty that ismandatory. Nor can someone be safely deemed“entitled” to something when the identity of thealleged entitlement is vague. See Roth, 408 U.S.,at 577, 92 S.Ct. 2701 (considering *764 whether“certain benefits” were “secure[d]” by rule or un-derstandings); cf. Natale v. Ridgefield, 170 F.3d258, 263 (C.A.2 1999) (“There is no reason ... torestrict the ‘uncertainty’ that will preclude exist-ence of a federally protectable property interest tothe uncertainty that inheres in [the] exercise ofdiscretion”). The dissent, after suggesting variousformulations **2808 of the entitlement in ques-tion,FN10 ultimately contends that the obliga-tions under the statute were quite precise: eithermake an arrest or (if that is impractical) seek anarrest warrant, post, at 2820. The problem withthis is that the seeking of an arrest warrant wouldbe an entitlement to nothing but proced-ure—which we have held inadequate even to sup-port standing, see Lujan v. Defenders of Wildlife,504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351(1992); much less can it be the basis for a prop-erty interest. See post, at 2811–2813 (SOUTER,J., concurring). After the warrant is sought, it re-mains within the discretion of a judge whether to

grant it, and after it is granted, it remains withinthe discretion of the police whether and when toexecute it.FN11 Respondent would have been as-sured nothing but the seeking of a warrant. This isnot the sort of “entitlement” out of which a prop-erty interest is created.

FN9. Respondent characterizes her enti-tlement in various ways. See Brief forRespondent 12 (“ ‘entitlement’ to receiveprotective services”); id., at 13 (“interestin police enforcement action”); id., at 14(“specific government benefit” consist-ing of “the government service of enfor-cing the objective terms of the court or-der protecting her and her childrenagainst her abusive husband”); id., at 32(“[T]he restraining order here mandatedthe arrest of Mr. Gonzales under spe-cified circumstances, or at a minimumrequired the use of reasonable means toenforce the order”).

FN10. See post, at 2813 (“entitlement topolice protection”); ibid. (“entitlement tomandatory individual protection by thelocal police force”); ibid. (“a right to po-lice assistance”); post, at 2816 (“a cit-izen's interest in the government's com-mitment to provide police enforcementin certain defined circumstances”); post,at 2822 (“respondent's property interestin the enforcement of her restraining or-der”); post, at 2823 (the “service” of“protection from her husband”); post, at2824 (“interest in the enforcement of therestraining order”).

FN11. The dissent asserts that the policewould lack discretion in the execution ofthis warrant, post, at 2820, n. 12, butcites no statute mandating immediate ex-ecution. The general Colorado statutegoverning arrest provides that police“may arrest” when they possess a war-rant “commanding” arrest.Colo.Rev.Stat. § 16–3–102(1) (Lexis1999).

Even if the statute could be said to have

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made enforcement of restraining orders“mandatory” because of the domestic-violencecontext of the underlying statute, that would not*765 necessarily mean that state law gave re-spondent an entitlement to enforcement of themandate. Making the actions of government em-ployees obligatory can serve various legitimateends other than the conferral of a benefit on aspecific class of people. See, e.g., Sandin v. Con-ner, 515 U.S. 472, 482, 115 S.Ct. 2293, 132L.Ed.2d 418 (1995) (finding no constitutionallyprotected liberty interest in prison regulationsphrased in mandatory terms, in part because“[s]uch guidelines are not set forth solely to bene-fit the prisoner”). The serving of public ratherthan private ends is the normal course of thecriminal law because criminal acts, “besides theinjury [they do] to individuals, ... strike at thevery being of society; which cannot possibly sub-sist, where actions of this sort are suffered to es-cape with impunity.” 4 W. Blackstone, Comment-aries on the Laws of England 5 (1769); see alsoHuntington v. Attrill, 146 U.S. 657, 668, 13 S.Ct.224, 36 L.Ed. 1123 (1892). This principle under-lies, for example, a Colorado district attorney'sdiscretion to prosecute a domestic assault, eventhough the victim withdraws her charge. SeePeople v. Cunefare, 102 P.3d 302, 311–312(Colo.2004) (en banc) (Bender, J., concurring inpart, dissenting in part, and dissenting in part tothe judgment).

Respondent's alleged interest stems onlyfrom a State's statutory scheme—from a restrain-ing order that was authorized by and tracked pre-cisely the statute on which the Court of Appealsrelied. She does not assert that she has any com-mon-law or contractual entitlement to enforce-ment. If she was given a statutory entitlement, wewould expect to see some indication of that in thestatute itself. Although Colorado's statute spokeof “protected person[s]” such as respondent, it didso in connection with matters other than a right toenforcement. It said that a “protected person shallbe **2809 provided with a copy of [a restraining]order” when it is issued, § 18–6–803.5(3)(a); thata law enforcement agency “shall make all reason-able efforts to contact the protected party uponthe arrest of the restrained person,” §

18–6–803.5(3)(d); and that the agency “shall give[to the protected *766 person] a copy” of the re-port it submits to the court that issued the order, §18–6–803.5(3)(e). Perhaps most importantly, thestatute spoke directly to the protected person'spower to “initiate contempt proceedings againstthe restrained person if the order [was] issued in acivil action or request the prosecuting attorney toinitiate contempt proceedings if the order [was]issued in a criminal action.” § 18–6–803.5(7).The protected person's express power to “initiate”civil contempt proceedings contrasts tellinglywith the mere ability to “request” initiation ofcriminal contempt proceedings—and even moredramatically with the complete silence about anypower to “request” (much less demand) that anarrest be made.

The creation of a personal entitlement tosomething as vague and novel as enforcement ofrestraining orders cannot “simply g[o] withoutsaying.” Post, at 2821, n. 16 (STEVENS, J., dis-senting). We conclude that Colorado has not cre-ated such an entitlement.

C[10] Even if we were to think otherwise con-

cerning the creation of an entitlement by Color-ado, it is by no means clear that an individual en-titlement to enforcement of a restraining ordercould constitute a “property” interest for purposesof the Due Process Clause. Such a right wouldnot, of course, resemble any traditional concep-tion of property. Although that alone does notdisqualify it from due process protection, as Rothand its progeny show, the right to have a restrain-ing order enforced does not “have some ascertain-able monetary value,” as even our “ Roth-typeproperty-as-entitlement” cases have implicitly re-quired. Merrill, The Landscape of ConstitutionalProperty, 86 Va. L.Rev. 885, 964 (2000).FN12

Perhaps most radically, the alleged property *767interest here arises incidentally, not out of somenew species of government benefit or service, butout of a function that government actors have al-ways performed—to wit, arresting people whothey have probable cause to believe have commit-ted a criminal offense.FN13

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FN12. The dissent suggests that the in-terest in having a restraining order en-forced does have an ascertainable monet-ary value, because one may “contractwith a private security firm ... to provideprotection” for one's family. Post, at2813, 2823, and n. 19. That is, of course,not as precise as the analogy betweenpublic and private schooling that the dis-sent invokes. Post, at 2823–2824, n. 19.Respondent probably could have hired aprivate firm to guard her house, to pre-vent her husband from coming onto theproperty, and perhaps even to search forher husband after she discovered that herchildren were missing. Her alleged enti-tlement here, however, does not consistin an abstract right to “protection,” but(according to the dissent) in enforcementof her restraining order through the arrestof her husband, or the seeking of a war-rant for his arrest, after she gave the po-lice probable cause to believe the re-straining order had been violated. Aprivate person would not have the powerto arrest under those circumstances be-cause the crime would not have occurredin his presence. Colo.Rev.Stat. §16–3–201 (Lexis 1999). And, needless tosay, a private person would not have thepower to obtain an arrest warrant.

FN13. In other contexts, we have ex-plained that “a private citizen lacks a ju-dicially cognizable interest in the prosec-ution or nonprosecution of another.”Linda R.S. v. Richard D., 410 U.S. 614,619, 93 S.Ct. 1146, 35 L.Ed.2d 536(1973).

**2810 [11] The indirect nature of a benefitwas fatal to the due process claim of the nursing-home residents in O'Bannon v. Town Court Nurs-ing Center, 447 U.S. 773, 100 S.Ct. 2467, 65L.Ed.2d 506 (1980). We held that, while the with-drawal of “direct benefits” (financial paymentsunder Medicaid for certain medical services)triggered due process protections, id., at 786–787,100 S.Ct. 2467, the same was not true for the

“indirect benefit[s]” conferred on Medicaid pa-tients when the Government enforced “minimumstandards of care” for nursing-home facilities, id.,at 787, 100 S.Ct. 2467. “[A]n indirect and incid-ental result of the Government's enforcement ac-tion ... does not amount to a deprivation of anyinterest in life, liberty, or property.” Ibid. In thiscase, as in O'Bannon, “[t]he simple distinctionbetween government action that directly affects acitizen's legal rights ... and action that is directedagainst a third party and affects the citizen onlyindirectly or incidentally, provides a sufficientanswer to” respondent's reliance on cases thatfound government-provided *768 services to beentitlements. Id., at 788, 100 S.Ct. 2467. TheO'Bannon Court expressly noted, ibid., that thedistinction between direct and indirect benefitsdistinguished Memphis Light, Gas & Water Div.v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30(1978), one of the government-services cases onwhich the dissent relies, post, at 2822.

IIIWe conclude, therefore, that respondent did

not, for purposes of the Due Process Clause, havea property interest in police enforcement of therestraining order against her husband. It is ac-cordingly unnecessary to address the Court ofAppeals' determination (366 F.3d, at 1110–1117)that the town's custom or policy prevented the po-lice from giving her due process when they de-prived her of that alleged interest. See AmericanMfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 61,119 S.Ct. 977, 143 L.Ed.2d 130 (1999). FN14

FN14. Because we simply do not addresswhether the process would have been ad-equate if respondent had had a propertyinterest, the dissent is correct to note thatwe do not “contest” the point, post, at2813. Of course we do not accept iteither.

[12] In light of today's decision and that inDeShaney, the benefit that a third party may re-ceive from having someone else arrested for acrime generally does not trigger protections underthe Due Process Clause, neither in its proceduralnor in its “substantive” manifestations. This result

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reflects our continuing reluctance to treat theFourteenth Amendment as “ ‘a font of tort law,’ ”Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct.1908, 68 L.Ed.2d 420 (1981) (quoting Paul v.Davis, 424 U.S., at 701, 96 S.Ct. 1155), but itdoes not mean States are powerless to providevictims with personally enforceable remedies. Al-though the framers of the Fourteenth Amendmentand the Civil Rights Act of 1871, 17 Stat. 13 (theoriginal source of § 1983), did not create a systemby which police departments are generally heldfinancially accountable for crimes that betterpolicing might have *769 prevented, the peopleof Colorado are free to craft such a system understate law. Cf. DeShaney, 489 U.S., at 203, 109S.Ct. 998.FN15

FN15. In Colorado, the general statutoryimmunity for government employeesdoes not apply when “the act or omissioncausing ... injury was willful and wan-ton.” Colo.Rev.Stat. § 24–10–118(2)(a)(Lexis 1999). Respondent's complaintdoes allege that the police officers' ac-tions “were taken either willfully, reck-lessly or with such gross negligence as toindicate wanton disregard and deliberateindifference to” her civil rights. App. toPet. for Cert. 128a.

The state cases cited by the dissent thatafford a cause of action for police fail-ure to enforce restraining orders, post,at 2818–2819, 2820–2821, n. 13, vin-dicate state common-law or statutorytort claims—not procedural due pro-cess claims under the Federal Consti-tution. See Donaldson v. Seattle, 65Wash.App. 661, 831 P.2d 1098 (1992)(city could be liable under some cir-cumstances for per se negligence infailing to meet statutory duty to ar-rest); Matthews v. Pickett County, 996S.W.2d 162 (Tenn.1999) (county couldbe liable under Tennessee's Govern-mental Tort Liability Act where re-straining order created a special duty);Campbell v. Campbell, 294 N.J.Super.18, 682 A.2d 272 (1996) (rejecting

four specific defenses under the NewJersey Tort Claims Act in negligenceaction against individual officers);Sorichetti v. New York, 65 N.Y.2d 461,492 N.Y.S.2d 591, 482 N.E.2d 70(1985) (city breached duty of carearising from special relationshipbetween police and victim); Nearing v.Weaver, 295 Or. 702, 670 P.2d 137(1983) (en banc) (statutory duty to in-dividual plaintiffs arising independ-ently of tort-law duty of care).

**2811 The judgment of the Court of Ap-peals is

Reversed.

Justice SOUTER, with whom Justice BREYERjoins, concurring.

I agree with the Court that Jessica Gonzaleshas shown no violation of an interest protected bythe Fourteenth Amendment's Due Process Clause,and I join the Court's opinion. The Court emphas-izes the traditional public focus of law enforce-ment as reason to doubt that these particular legalrequirements to provide police services, howeverunconditional their form, presuppose enforceableindividual rights to a certain level of police pro-tection. Ante, at 2808. The *770 Court also notesthat the terms of the Colorado statute involvedhere recognize and preserve the traditional discre-tion afforded law enforcement officers. Ante, at2805–2808, and n. 8. Gonzales's claim of a prop-erty right thus runs up against police discretion inthe face of an individual demand to enforce, anddiscretion to ignore an individual instruction notto enforce (because, say, of a domestic reconcili-ation); no one would argue that the beneficiary ofa Colorado order like the one here would be au-thorized to control a court's contempt power ororder the police to refrain from arresting. Theseconsiderations argue against inferring any guar-antee of a level of protection or safety that couldbe understood as the object of a “legitimate claimof entitlement,” Board of Regents of State Col-leges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701,33 L.Ed.2d 548 (1972), in the nature of propertyarising under Colorado law.FN* Consequently,

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the classic predicate for federal due process pro-tection of interests under state law is missing.

FN* Gonzales does not claim to have aprotected liberty interest.

Gonzales implicitly recognizes this, when shemakes the following argument:

“Ms. Gonzales alleges that ... she was deniedthe process laid out in the statute. The policedid not consider her request in a timely fashion,but instead repeatedly required her to call thestation over several hours. The statute promiseda process by which her restraining order wouldbe given vitality through careful and promptconsideration of an enforcement request ....Denial of that process drained all of the valuefrom her property interest in the restraining or-der.” Brief for Respondent 10.

The argument is unconventional because thestate-law benefit for which it claims federal pro-cedural protection is itself a variety of proceduralregulation, a set of rules to be followed by of-ficers exercising the State's executive power: use*771 all reasonable means to enforce, arrest upondemonstrable probable cause, get a warrant, andso on, see ante, at 2800–2801.

When her argument is understood as uncon-ventional in this sense, a further reason**2812appears for rejecting its call to apply Roth, a reas-on that would apply even if the statutory man-dates to the police were absolute, leaving the po-lice with no discretion when the beneficiary of aprotective order insists upon its enforcement. TheDue Process Clause extends procedural protectionto guard against unfair deprivation by state offi-cials of substantive state-law property rights orentitlements; the federal process protects theproperty created by state law. But Gonzalesclaims a property interest in a state-mandatedprocess in and of itself. This argument is at oddswith the rule that “[p]rocess is not an end in it-self. Its constitutional purpose is to protect a sub-stantive interest to which the individual has a le-gitimate claim of entitlement.” Olim v. Wak-inekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 75L.Ed.2d 813 (1983); see also Doe v. District of

Columbia, 93 F.3d 861, 868 (C.A.D.C.1996) (percuriam); Doe v. Milwaukee County, 903 F.2d499, 502–503 (C.A.7 1990). In putting to rest thenotion that the scope of an otherwise discernibleproperty interest could be limited by related state-law procedures, this Court observed that “[t]hecategories of substance and procedure are distinct.... ‘Property’ cannot be defined by the proced-ures provided for its deprivation.” Cleveland Bd.of Ed. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct.1487, 84 L.Ed.2d 494 (1985). Just as a State can-not diminish a property right, once conferred, byattaching less than generous procedure to itsdeprivation, ibid., neither does a State create aproperty right merely by ordaining beneficial pro-cedure unconnected to some articulable substant-ive guarantee. This is not to say that state rules ofexecutive procedure may not provide significantreasons to infer an articulable property rightmeant to be protected; but it is to say that wehave not identified property *772 with procedureas such. State rules of executive procedure,however important, may be nothing more thanrules of executive procedure.

Thus, in every instance of property recog-nized by this Court as calling for federal proced-ural protection, the property has been distinguish-able from the procedural obligations imposed onstate officials to protect it. Whether welfare bene-fits, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct.1011, 25 L.Ed.2d 287 (1970), attendance at pub-lic schools, Goss v. Lopez, 419 U.S. 565, 95 S.Ct.729, 42 L.Ed.2d 725 (1975), utility services,Memphis Light, Gas & Water Div. v. Craft, 436U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978), pub-lic employment, Perry v. Sindermann, 408 U.S.593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), pro-fessional licenses, Barry v. Barchi, 443 U.S. 55,99 S.Ct. 2642, 61 L.Ed.2d 365 (1979), and so on,the property interest recognized in our cases hasalways existed apart from state procedural protec-tion before the Court has recognized a constitu-tional claim to protection by federal process. Toaccede to Gonzales's argument would thereforework a sea change in the scope of federal dueprocess, for she seeks federal process as a substi-tute simply for state process. (And she seeksdamages under Rev. Stat. § 1979, 42 U.S.C. §

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1983, for denial of process to which she claimeda federal right.) There is no articulable distinctionbetween the object of Gonzales's asserted entitle-ment and the process she desires in order to pro-tect her entitlement; both amount to certain stepsto be taken by the police to protect her family andherself. Gonzales's claim would thus take us bey-ond Roth or any other recognized theory of Four-teenth Amendment due process, by collapsing thedistinction between property protected and theprocess that protects it, and would federalizeevery mandatory state-law direction to executiveofficers whose performance on the job can**2813 be vitally significant to individuals af-fected.

The procedural directions involved here arejust that. They presuppose no enforceable sub-stantive entitlement, and Roth does not raise themto federally enforceable status in the name of dueprocess.

*773 Justice STEVENS, with whom JusticeGINSBURG joins, dissenting.

The issue presented to us is much narrowerthan is suggested by the far-ranging arguments ofthe parties and their amici. Neither the tragic factsof the case, nor the importance of according prop-er deference to law enforcement professionals,should divert our attention from that issue. Thatissue is whether the restraining order entered bythe Colorado trial court on June 4, 1999, created a“property” interest that is protected from arbitrarydeprivation by the Due Process Clause of theFourteenth Amendment.

It is perfectly clear, on the one hand, thatneither the Federal Constitution itself, nor anyfederal statute, granted respondent or her childrenany individual entitlement to police protection.See DeShaney v. Winnebago County Dept. of So-cial Servs., 489 U.S. 189, 109 S.Ct. 998, 103L.Ed.2d 249 (1989). Nor, I assume, does any Col-orado statute create any such entitlement for theordinary citizen. On the other hand, it is equallyclear that federal law imposes no impediment tothe creation of such an entitlement by Coloradolaw. Respondent certainly could have entered intoa contract with a private security firm, obligating

the firm to provide protection to respondent'sfamily; respondent's interest in such a contractwould unquestionably constitute “property” with-in the meaning of the Due Process Clause. If aColorado statute enacted for her benefit, or a val-id order entered by a Colorado judge, created thefunctional equivalent of such a private contractby granting respondent an entitlement to mandat-ory individual protection by the local policeforce, that state-created right would also qualifyas “property” entitled to constitutional protection.

I do not understand the majority to rule outthe foregoing propositions, although it does ex-press doubts. See ante, at 2809 (“[I]t is by nomeans clear that an individual entitlement to en-forcement of a restraining order could constitute a*774 ‘property’ interest”). Moreover, the major-ity does not contest, see ante, at 2810, that if re-spondent did have a cognizable property interestin this case, the deprivation of that interest viol-ated due process. As the Court notes, respondenthas alleged that she presented the police with acopy of the restraining order issued by the Color-ado court and requested that it be enforced. Ante,at 2800, n. 1. In response, she contends, the of-ficers effectively ignored her. If these allegationsare true, a federal statute, Rev. Stat. § 1979, 42U.S.C. § 1983, provides her with a remedyagainst the petitioner, even if Colorado law doesnot. See Cleveland Bd. of Ed. v. Loudermill, 470U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

The central question in this case is thereforewhether, as a matter of Colorado law, respondenthad a right to police assistance comparable to theright she would have possessed to any other ser-vice the government or a private firm might haveundertaken to provide. See Board of Regents ofState Colleges v. Roth, 408 U.S. 564, 577, 92S.Ct. 2701, 33 L.Ed.2d 548 (1972) ( “Property in-terests, of course, are not created by the Constitu-tion. Rather, they are created and their dimen-sions are defined by existing rules or understand-ings that stem from an independent source suchas state law—rules or understandings that securecertain benefits and that support**2814 claims ofentitlement to those benefits”).

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There was a time when our tradition of judi-cial restraint would have led this Court to defer tothe judgment of more qualified tribunals in seek-ing the correct answer to that difficult question ofColorado law. Unfortunately, although the major-ity properly identifies the “central state-law ques-tion” in this case as “whether Colorado law gaverespondent a right to police enforcement of therestraining order,” ante, at 2804, it has chosen toignore our settled practice by providing its ownanswer to that question. Before identifying theflaws in the Court's ruling on the merits, I shallbriefly comment on our past practice.

*775 IThe majority's decision to plunge ahead with

its own analysis of Colorado law imprudently de-parts from this Court's longstanding policy ofpaying “deference [to] the views of a federalcourt as to the law of a State within its jurisdic-tion.” Phillips v. Washington Legal Foundation,524 U.S. 156, 167, 118 S.Ct. 1925, 141 L.Ed.2d174 (1998); see also Bishop v. Wood, 426 U.S.341, 346, and n. 10, 96 S.Ct. 2074, 48 L.Ed.2d684 (1976) (collecting cases). This policy is notonly efficient, but it reflects “our belief that dis-trict courts and courts of appeals are betterschooled in and more able to interpret the laws oftheir respective States.” Brockett v. Spokane Ar-cades, Inc., 472 U.S. 491, 500–501, 105 S.Ct.2794, 86 L.Ed.2d 394 (1985); Hillsborough v.Cromwell, 326 U.S. 620, 629–630, 66 S.Ct. 445,90 L.Ed. 358 (1946) (endorsing “great deferenceto the views of the judges of those courts ‘whoare familiar with the intricacies and trends of loc-al law and practice’ ”). Accordingly, we have de-clined to show deference only in rare cases inwhich the court of appeals' resolution of state lawwas “clearly wrong” or otherwise seriously defi-cient. See Brockett, 472 U.S., at 500, n. 9, 105S.Ct. 2794; accord, Leavitt v. Jane L., 518 U.S.137, 145, 116 S.Ct. 2068, 135 L.Ed.2d 443(1996) (per curiam).

Unfortunately, the Court does not even at-tempt to demonstrate that the six-judge en bancmajority was “clearly wrong” in its interpretationof Colorado's domestic restraining order statute;nor could such a showing be made. For it is cer-

tainly plausible to construe “shall use every reas-onable means to enforce a restraining order” and“ shall arrest,” Colo.Rev.Stat. §§18–6–803.5(3)(a)–(b) (Lexis 1999) (emphasis ad-ded), as conveying mandatory directives to thepolice, particularly when the same statute, at oth-er times, tellingly employs different language thatsuggests police discretion, see §18–6–803.5(6)(a) ( “A peace officer is authorizedto use every reasonable means to protect ... ”;“Such peace officer may transport ... ” (emphasisadded)). FN1 Moreover, unlike *776 today's de-cision, the Court of Appeals was attentive to thelegislative history of the statute, focusing on astatement by the statute's sponsor in the ColoradoHouse, ante, at 2805, n. 6 (quoting statement),which it took to “emphasiz[e] the importance ofthe police's mandatory enforcement of domesticrestraining orders.” 366 F.3d 1093, 1107 (C.A.102004) (en banc). Far from overlooking the tradi-tional presumption of police discretion, then, theCourt of Appeals' diligent analysis of the statute'stext, purpose, and history led it to conclude that**2815 the Colorado Legislature intended pre-cisely to abrogate that presumption in the specificcontext of domestic restraining orders. That con-clusion is eminently reasonable and, I believe,worthy of our deference.FN2

FN1. The Court of Appeals also lookedto other provisions of the statute to in-form its analysis. In particular, itreasoned that a provision that gave po-lice officers qualified immunity in con-nection with their enforcement of re-straining orders, see Colo.Rev.Stat. §18–6–803.5(5) (Lexis 1999), supportedthe inference that the Colorado Legis-lature intended mandatory enforcement.See 366 F.3d 1093, 1108 (C.A.10 2004)(en banc).

FN2. The Court declines to show defer-ence for the odd reason that, in its view,the Court of Appeals did not “draw upona deep well of state-specific expertise,”ante, at 2804, but rather examined thestatute's text and legislative history anddistinguished arguably relevant Colorado

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case law. See ante, at 2804, and n. 4.This rationale makes a mockery of ourtraditional practice, for it is preciselywhen there is no state law on point thatthe presumption that circuits have localexpertise plays any useful role. When acircuit's resolution of a novel question ofstate law is grounded on a concededlycomplete review of all the pertinentstate-law materials, that decision is en-titled to deference. Additionally, itshould be noted that this is not a case inwhich the Court of Appeals and the Dis-trict Court disagreed on the relevant is-sue of state law; rather, those courts dis-agreed only over the extent to which aprobable-cause determination requiresthe exercise of discretion. Compare 366F.3d, at 1105–1110, with App. to Pet. forCert. 122a (District Court opinion).

IIEven if the Court had good reason to doubt

the Court of Appeals' determination of state law,it would, in my judgment, be a far wiser course tocertify the question to the *777 Colorado Su-preme Court.FN3 Powerful considerations sup-port certification in this case. First, principles offederalism and comity favor giving a State's highcourt the opportunity to answer important ques-tions of state law, particularly when those ques-tions implicate uniquely local matters such as lawenforcement and might well require the weighingof policy considerations for their correct resolu-tion.FN4 See Elkins v. Moreno, 435 U.S. 647,662, n. 16, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978)(sua sponte certifying a question of state law be-cause it is “one in which state governments havethe highest interest”); cf. Arizonans for OfficialEnglish v. Arizona, 520 U.S. 43, 77, 117 S.Ct.1055, 137 L.Ed.2d 170 (1997) (“Through certific-ation of novel or unsettled questions of state lawfor authoritative answers by a State's highestcourt, a federal court may save ‘time, energy, andresources, and hel[p] build a cooperative judicialfederalism’ ” (brackets in original)).FN5 *778Second, by certifying**2816 a potentially dispos-itive state-law issue, the Court would adhere to itswise policy of avoiding the unnecessary adjudica-

tion of difficult questions of constitutional law.See Elkins, 435 U.S., at 661–662, 98 S.Ct. 1338(citing constitutional avoidance as a factor sup-porting certification). Third, certification wouldpromote both judicial economy and fairness to theparties. After all, the Colorado Supreme Court isthe ultimate authority on the meaning of Color-ado law, and if in later litigation it should dis-agree with this Court's provisional state-law hold-ing, our efforts will have been wasted and re-spondent will have been deprived of the oppor-tunity to have her claims heard under the authorit-ative view of Colorado law. The unique facts ofthis case only serve to emphasize the importanceof employing a procedure that will provide thecorrect answer to the central question of statelaw. See Brockett, 472 U.S., at 510, 105 S.Ct.2794 (O'CONNOR, J., concurring) (“Speculationby a federal court about the meaning of a statestatute in the absence of a prior state court adju-dication is particularly gratuitous when, as is thecase here, the state courts stand willing to addressquestions of state law on certification from a fed-eral court”).FN6

FN3. See Colo. Rule App. Proc. 21.1(a)(Colorado Supreme Court may answerquestions of law certified to it by the Su-preme Court of the United States or an-other federal court if those questions“may be determinative of the cause” and“as to which it appears to the certifyingcourt there is no controlling precedent inthe decisions of the [Colorado] SupremeCourt”).

FN4. See Westminster v. Dogan Constr.Co., 930 P.2d 585, 590 (Colo.1997) (enbanc) (in interpreting an ambiguous stat-ute, the Colorado Supreme Court willconsider legislative history and the“consequences of a particular construc-tion”); ibid. (“ ‘Because we also presumethat legislation is intended to have justand reasonable effects, we must construestatutes accordingly and apply them soas to ensure such results' ”). Addition-ally, it is possible that the Colorado Su-preme Court would have better access to

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(and greater facility with) relevant piecesof legislative history beyond those thatwe have before us. That court may alsochoose to give certain evidence of legis-lative intent greater weight than wouldbe customary for this Court. See, e.g.,Brief for Peggy Kerns et al. as AmiciCuriae (bill sponsor explaining the Col-orado General Assembly's intent inpassing the domestic restraining orderstatute).

FN5. Citing similar considerations, theSecond Circuit certified questions ofstate law to the Connecticut SupremeCourt when it was faced with a procedur-al due process claim involving a statutethat arguably mandated the removal ofchildren upon probable cause of childabuse. See Sealed v. Sealed, 332 F.3d 51(C.A.2 2003). The Connecticut SupremeCourt accepted certification and held thatthe provision was discretionary, notmandatory. See Teresa T. v. Ragaglia,272 Conn. 734, 865 A.2d 428 (2005).

FN6. The Court is correct that I wouldtake an “anyone-but-us approach,” ante,at 2804, n. 5, to the question of who de-cides the issue of Colorado law in thiscase. Both options that I fa-vor—deferring to the Circuit's interpreta-tion or, barring that, certifying to theColorado Supreme Court—recognize thecomparative expertise of another tribunalon questions of state law. And both op-tions offer their own efficiencies. Bycontrast, the Court's somewhat overcon-fident “only us” approach lacks any co-gent justification. The fact that neitherparty requested certification certainlycannot be a sufficient reason for dismiss-ing that option. As with abstention, theconsiderations that weigh in favor of cer-tification—federal-state comity, consti-tutional avoidance, judicial efficiency,the desire to settle correctly a recurringissue of state law—transcend the in-terests of individual litigants, rendering

it imprudent to cast them as gatekeepersto the procedure. See, e.g., Elkins v.Moreno, 435 U.S. 647, 662, 98 S.Ct.1338, 55 L.Ed.2d 614 (1978) (certifyingstate-law issue absent a request from theparties); Aldrich v. Aldrich, 375 U.S.249, 84 S.Ct. 305, 11 L.Ed.2d 304(1963) (per curiam) (same); see also 17AC. Wright, A. Miller, & E. Cooper, Fed-eral Practice and Procedure § 4248, p.176 (2d ed. 1988) (“Ordinarily a courtwill order certification on its own mo-tion”).

*779 IIIThree flaws in the Court's rather superficial

analysis of the merits highlight the unwisdom ofits decision to answer the state-law question denovo. First, the Court places undue weight on thevarious statutes throughout the country that seem-ingly mandate police enforcement but are gener-ally understood to preserve police discretion. As aresult, the Court gives short shrift to the uniquecase of “mandatory arrest” statutes in the domest-ic violence context; States passed a wave of thesestatutes in the 1980's and 1990's with the unmis-takable goal of eliminating police discretion inthis area. Second, the Court's formalistic analysisfails to take seriously the fact that the Coloradostatute at issue in this case was enacted for thebenefit of the narrow class of persons who are be-neficiaries of domestic restraining orders, andthat the order at issue in this case was specificallyintended to provide protection to respondent andher children. Finally, the Court is simply wrongto assert that a citizen's interest in the govern-ment's commitment to provide police enforce-ment in certain defined circumstances does notresemble any “traditional conception of prop-erty,” ante, at 2809; in fact, a citizen's propertyinterest in such a commitment is just as concreteand worthy of protection as her interest in anyother important service the government or aprivate firm has undertaken to provide.

**2817 In 1994, the Colorado General As-sembly passed omnibus legislation targeting do-mestic violence. The part of the legislation at is-sue in this case mandates enforcement of a do-

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mestic restraining order upon probable cause of aviolation, § 18–6–803.5(3), while another partdirects that police officers “shall, without unduedelay, arrest” a suspect upon “probable cause tobelieve that a crime or offense of domestic viol-ence *780 has been committed,” § 18–6–803.6(1).FN7 In adopting this legislation, the ColoradoGeneral Assembly joined a nationwide movementof States that took aim at the crisis of police un-derenforcement in the domestic violence sphereby implementing “mandatory arrest” statutes. Thecrisis of underenforcement had various causes,not least of which was the perception by policedepartments and police officers that domestic vi-olence was a private, “family” matter and that ar-rest was to be used as a last resort. Sack, BatteredWomen and the State: The Struggle for the Futureof Domestic Violence Policy, 2004 Wis. L.Rev.1657, 1662–1663 (hereinafter Sack); id., at 1663(“Because these cases were considered noncrim-inal, police assigned domestic violence calls lowpriority and often did not respond to them forseveral hours or ignored them altogether”). In re-sponse to these realities, and emboldened by awell-known 1984 experiment by the Minneapolispolice department,FN8 “many states enactedmandatory*781 arrest statutes under which a po-lice officer must arrest an abuser when the officerhas probable cause to believe that a domestic as-sault has occurred or that a protection order hasbeen violated.” Developments in the Law: LegalResponses to Domestic Violence, 106 Harv.L.Rev. 1498, 1537 (1993). The purpose of thesestatutes was precisely to “counter police resist-ance to arrests in domestic violence cases by re-moving or restricting police officer discretion;mandatory arrest policies would increase policeresponse and reduce batterer recidivism.” Sack1670.

FN7. See Fuller & Stansberry, 1994 Le-gislature Strengthens Domestic ViolenceProtective Orders, 23 Colo. Lawyer 2327(1994) (“The 1994 Colorado legislativesession produced several significant do-mestic abuse bills that strengthened bothcivil and criminal restraining order lawsand procedures for victims of domesticviolence”); id., at 2329 (“Although many

law enforcement jurisdictions alreadytake a proactive approach to domestic vi-olence, arrest and procedural policiesvary greatly from one jurisdiction to an-other. H.B. 94–1253 mandates the arrestof domestic violence perpetrators and re-straining order violaters. H.B. 94–1090repeals the requirement that protectedparties show a copy of their restrainingorder to enforcing officers. In the past,failure to provide a copy of the restrain-ing order has led to hesitation from po-lice to enforce the order for fear of an il-legal arrest. The new statute also shieldsarresting officers from liability; this isexpected to reduce concerns about enfor-cing the mandatory arrest requirements”(footnotes omitted)).

FN8. See Sack 1669 (“The movement tostrengthen arrest policies was bolsteredin 1984 by the publication of the resultsof a study on mandatory arrest in do-mestic violence cases that had been con-ducted in Minneapolis. In this study, po-lice handled randomly assigned domesticviolence offenders by using one of threedifferent responses: arresting the offend-er, mediating the dispute or requiring theoffender to leave the house for eighthours. The study concluded that in com-parison with the other two responses, ar-rest had a significantly greater impact onreducing domestic violence recidivism.The findings from the Minneapolis studywere used by the U.S. Attorney Generalin a report issued in 1984 that recom-mended, among other things, arrest indomestic violence cases as the standardlaw enforcement response” (footnotesomitted)); see also Zorza, The CriminalLaw of Misdemeanor Domestic Viol-ence, 1970–1990, 83 J.Crim. L. & C. 46,63–65 (1992) (tracing history of mandat-ory arrest laws and noting that the firstsuch law was implemented by Oregon in1977).

Thus, when Colorado passed its statute in

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1994, it joined the ranks of 15 States **2818 thatmandated arrest for domestic violence offensesand 19 States that mandated arrest for domesticrestraining order violations. See Developments inthe Law, 106 Harv. L.Rev., at 1537, n. 68 (notingstatutes in 1993); N. Miller, Institute for Law andJustice, A Law Enforcement and Prosecution Per-spective 7, and n. 74, 8, and n. 90 (2003), ht-tp://www. ilj. org/ dv/ dvvawa2000.htm (as vis-ited June 24, 2005, and available in Clerk ofCourt's case file) (listing Colorado among themany States that currently have mandatory arreststatutes).FN9

FN9. See also Brief for InternationalMunicipal Lawyers Association et al. asAmici Curiae 6 (“Colorado is not alonein mandating the arrest of persons whoviolate protective orders. Some 19 statesrequire an arrest when a police officerhas probable cause to believe that suchorders have been violated” (collectingstatutes)).

Given the specific purpose of these statutes,there can be no doubt that the Colorado Legis-lature used the term “shall” advisedly in its do-mestic restraining order statute. While *782“shall” is probably best read to mean “may” inother Colorado statutes that seemingly mandateenforcement, cf. Colo.Rev.Stat. § 31–4–112(Lexis 2004) (police “shall suppress all riots, dis-turbances, and breaches of the peace, shall appre-hend all disorderly persons in the city ...”(emphases added)), it is clear that the eliminationof police discretion was integral to Colorado andits fellow States' solution to the problem of un-derenforcement in domestic violence cases.FN10

Since the text of Colorado's statute perfectly cap-tures this legislative purpose, it is hard to imaginewhat the Court has in mind when it insists on“some stronger indication from the Colorado Le-gislature.” Ante, at 2806.

FN10. See Note, Mandatory Arrest: AStep Toward Eradicating Domestic Viol-ence, But is It Enough? 1996 U. Ill.L.Rev. 533, 541–542, 544–546(describing the problems that attend a

discretionary arrest regime: “Even whenprobable cause is present, police officersstill frequently try to calm the parties andact as mediators .... Three studies foundthe arrest rate to range between 3% and10% when the decision to arrest is left topolice discretion. Another study foundthat the police made arrests in only 13%of the cases where the victim had visibleinjuries .... Police officers often employirrelevant criteria such as the ‘reason’ forthe abuse or the severity of the victim'sinjuries in making their decision to arrest.... Some [officers] may feel strongly thatpolice should not interfere in family ar-guments or lovers' quarrels. Such atti-tudes make police much more likely toinvestigate intent and provocation, andconsider them as mitigating factors, inresponding to domestic violence callsthan in other types of cases” (footnotesomitted)); see also Walsh, The Mandat-ory Arrest Law: Police Reaction, 16 PaceL.Rev. 97, 98 (1995). Cf. Sack1671–1672 (“Mandatory arrest policieshave significantly increased the numberof arrests of batterers for domestic viol-ence crimes .... In New York City, from1993, the time the mandatory arrestpolicy was instituted, to 1999, felony do-mestic violence arrests increased 33%,misdemeanor domestic violence arrestsrose 114%, and arrests for violation oforders of protection were up 76%” ).

While Colorado case law does not speak tothe question, it is instructive that other statecourts interpreting their analogous statutes havenot only held that they eliminate the police's tra-ditional discretion to refuse enforcement, buthave *783 also recognized that they create rightsenforceable against the police under state law.For example, in Nearing v. Weaver, 295 Or. 702,670 P.2d 137 (1983) (en banc), the court held thatalthough the common law of negligence did notsupport a suit against the police for failing to en-force a domestic restraining order, the statute'smandatory directive formed the basis for the suitbecause it was “a specific duty imposed by statute

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for the benefit of individuals previously**2819identified by judicial order.” Id., at 707, 670 P.2d,at 140.FN11 In Matthews v. Pickett County, 996S.W.2d 162 (Tenn.1999) (on certification to theSixth Circuit), the court confirmed that the statutemandated arrest for violations of domestic re-straining orders, and it held that the “public duty”defense to a negligence action was unavailable tothe defendant police officers because the restrain-ing order had created a “special duty” to protectthe plaintiff. Id., at 165. See also Campbell v.Campbell, 294 N.J.Super. 18, 24, 682 A.2d 272,274 (1996) (domestic restraining order statute“allows no discretion” with regard to arrest;“[t]he duty imposed on the police officer is minis-terial”); Donaldson v. Seattle, 65 Wash.App. 661,670, 831 P.2d 1098, 1103 (1992) ( “Generally,where an officer has legal grounds to make an ar-rest he has considerable discretion to do so. In re-gard to domestic violence, the rule is the reverse.If the officer has the legal grounds to arrest pur-suant to the statute, he has a mandatory duty tomake the arrest”). To what extent the ColoradoSupreme Court would agree with the views ofthese courts is, of course, an open question, but itdoes seem rather brazen for the majority to as-sume that the Colorado Supreme Court *784would repudiate this consistent line of persuasiveauthority from other States.

FN11. The Oregon Supreme Court notedthat the “widespread refusal or failure ofpolice officers to remove persons in-volved in episodes of domestic violencewas presented to the legislature as themain reason for tightening the law so asto require enforcement of restraining or-ders by mandatory arrest and custody.”Nearing, 295 Or., at 709, 670 P.2d, at142.

Indeed, the Court fails to come to terms withthe wave of domestic violence statutes thatprovides the crucial context for understandingColorado's law. The Court concedes that, “in thespecificcontextofdomesticviolence,mandatory-ar-rest statutes have been found in some States to bemore mandatory than traditional mandatory-arreststatutes,” ante, at 2806–2807, but that is a serious

understatement. The difference is not a matter ofdegree, but of kind. Before this wave of statutes,the legal rule was one of discretion; as the Courtshows, the “traditional,” general mandatory arreststatutes have always been understood to be“mandatory” in name only, see ante, at2805–2806. The innovation of the domestic viol-ence statutes was to make police enforcement, not“more mandatory,” but simply mandatory. If, asthe Court says, the existence of a protected“entitlement” turns on whether “government offi-cials may grant or deny it in their discretion,”ante, at 2803, the new mandatory statutes undeni-ably create an entitlement to police enforcementof restraining orders.

Perhaps recognizing this point, the Courtglosses over the dispositive question—whetherthe police enjoyed discretion to deny enforce-ment—and focuses on a different ques-tion—which “precise means of enforcement,”ante, at 2807, were called for in this case. Butthat question is a red herring. The statute directsthat, upon probable cause of a violation, “a peaceofficer shall arrest, or, if an arrest would be im-practical under the circumstances, seek a warrantfor the arrest of a restrained person.”Colo.Rev.Stat. § 18–6–803.5(3)(b) (Lexis 1999).Regardless of whether the enforcement called forin this case was arrest or the seeking of an arrestwarrant (the answer to that question probablychanged over the course of the night as the re-spondent gave the police more information aboutthe husband's whereabouts), the crucial point isthat, under the statute, the police were required toprovide enforcement; they lacked the discre**2820 tion to do nothing. *785 FN12 The Courtsuggests that the fact that “enforcement” may en-compass different acts infects any entitlement toenforcement with “indeterminacy.” Ante, at 2807.But this objection is also unfounded. Our caseshave never required the object of an entitlementto be some mechanistic, unitary thing. Suppose aState entitled every citizen whose income was un-der a certain level to receive health care at a stateclinic. The provision of health care is not a unit-ary thing—doctors and administrators must de-cide what tests are called for and what proceduresare required, and these decisions often involve

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difficult applications of judgment. But it couldnot credibly be said that a citizen lacks an entitle-ment to health care simply because the content ofthat entitlement is not the same in every givensituation. Similarly, the enforcement of a restrain-ing order is not some amorphous, indeterminatething. Under the statute, if the police have prob-able cause that a violation has occurred, enforce-ment consists of either making an immediate ar-rest or seeking a warrant and then executing anarrest—traditional, well-defined tasks that lawenforcement officers perform every day.FN13

FN12. Under the Court's reading of thestatute, a police officer with probablecause is mandated to seek an arrest war-rant if arrest is “impractical under thecircumstances,” but then enjoys un-fettered discretion in deciding whether toexecute that warrant. Ante, at2807–2808. This is an unlikely readinggiven that the statute was motivated by aprofound distrust of police discretion inthe domestic violence context and motiv-ated by a desire to improve the protec-tion given to holders of domestic re-straining orders. We do not have the be-nefit of an authoritative construction ofColorado law, but I would think that ifan estranged husband harassed his wifein violation of a restraining order, andthen absconded after she called the po-lice, the statute would not only obligatethe police to seek an arrest warrant, butalso obligate them to execute it by mak-ing an arrest. In any event, under re-spondent's allegations, by the time thepolice were informed of the husband'swhereabouts, an arrest was practical and,under the statute's terms, mandatory.

FN13. The Court wonders “how themandatory-arrest paradigm applies tocases in which the offender is not presentto be arrested.” Ante, at 2807. Again,questions as to the scope of the obliga-tion to provide enforcement are far afieldfrom the key issue—whether there existsan entitlement to enforcement. In any

event, the Court's speculations are offbase. First, this is not a case like Donald-son v. Seattle, 65 Wash.App. 661, 831P.2d 1098 (1992), in which the re-strained person violated the order andthen left the scene. Here, not only did thehusband violate the restraining order bycoming within 100 yards of the familyhome, but he continued to violate the or-der while his abduction of the daughterspersisted. This is because the restrainingorder prohibited him from “molest[ing]or disturb[ing] the peace” of the daugh-ters. See 366 F.3d, at 1143 (appendix todissent of O'Brien, J.). Because the“scene” of the violation was whereverthe husband was currently holding thedaughters, this case does not implicatethe question of an officer's duties to ar-rest a person who has left the scene andis no longer in violation of the restrain-ing order. Second, to the extent that ar-resting the husband was initially“impractical under the circumstances”because his whereabouts were unknown,the Colorado statute (unlike some otherStates' statutes) expressly addressed thatsituation—it required the police to seekan arrest warrant. Third, the Court iswrong to suggest that this case falls out-side the core situation that these types ofstatutes were meant to address. One ofthe well-known cases that contributed tothe passage of these statutes involvedfacts similar to this case. See Sorichettiv. New York City, 65 N.Y.2d 461, 467,492 N.Y.S.2d 591, 482 N.E.2d 70, 74(1985) (police officers at police stationessentially ignored a mother's pleas forenforcement of a restraining orderagainst an estranged husband who madethreats about their 6–year–old daughter;hours later, as the mother persisted in herpleas, the daughter was found mutilated,her father having attacked her with a forkand a knife and attempted to saw off herleg); Note, 1996 U. Ill. L.Rev., at 539(noting Sorichetti in the development ofmandatory arrest statutes); see also Sack

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1663 (citing the police's failure to re-spond to domestic violence calls as animpetus behind mandatory arrest stat-utes). It would be singularly odd to sup-pose that in passing its sweeping omni-bus domestic violence legislation, theColorado Legislature did not mean to re-quire enforcement in the case of an ab-duction of children in violation of a re-straining order.

**2821 *786 The Court similarly errs inspeculating that the Colorado Legislature mayhave mandated police enforcement of restrainingorders for “various legitimate ends other than theconferral of a benefit on a specific class ofpeople,” ante, at 2808; see also ibid. (noting thatthe “serving of public rather than private ends isthe normal course of the criminal law”). Whilethe Court's concern would have some bite werewe *787 faced with a broadly drawn statute dir-ecting, for example, that the police “ shall sup-press all riots,” there is little doubt that the statuteat issue in this case conferred a benefit “on a spe-cific class of people”—namely, recipients of do-mestic restraining orders. Here, respondent ap-plied for and was granted a restraining order froma Colorado trial judge, who found a risk of“irreparable injury” and found that “physical oremotional harm” would result if the husband werenot excluded from the family home. 366 F.3d, at1143 (appendix to dissent of O'Brien, J.). Asnoted earlier, the restraining order required thatthe husband not “molest or disturb” the peace ofrespondent and the daughters, and it ordered(with limited exceptions) that the husband stay atleast 100 yards away from the family home. Ibid.FN14 It also directed the police to “use everyreasonable means to enforce this ... order,” and toarrest or seek a warrant upon probable cause of aviolation. Id., at 1144. Under the terms of thestatute, when the order issued, respondent and herdaughters became “ ‘protected person[s].’ ” §18–6–803.5(1.5)(a) ( “ ‘Protected person’ meansthe person or persons identified in the restrainingorder as the person or persons for whose benefitthe restraining order was issued”).FN15 The stat-ute criminalized the knowing violation of the re-straining order, § 18–6–803.5(1), and, as already

discussed, the statute (as *788 well as the orderitself) mandated police enforcement, §§18–6–803.5(3)(a)–(b).FN16

FN14. The order also stated: “If you vi-olate this order thinking that the otherparty or child named in this order hasgiven you permission, you are wrong,and can be arrested and prosecuted. Theterms of this order cannot be changed byagreement of the other party or thechild(ren). Only the court can changethis order.” 366 F.3d, at 1144 (appendixto dissent of O'Brien, J.).

FN15. A concern for the “ ‘protectedperson’ ” pervades the statute. For ex-ample, the statute provides that a “peaceofficer may transport, or obtain trans-portation for, the alleged victim to shel-ter. Upon the request of the protectedperson, the peace officer may also trans-port the minor child of the protected per-son, who is not an emancipated minor, tothe same shelter ....” § 18–6–803.5(6)(a).

FN16. I find it neither surprising nortelling, cf. ante, at 2809, that the statuterequires the restraining order to contain,“in capital letters and bold print,” a“notice” informing protected personsthat they can demand or request, respect-ively, civil and criminal contempt pro-ceedings. § 18–6–803.5(7). While the le-gislature may have thought that theselegal remedies were not popularly under-stood, a person's right to “demand” or“request” police enforcement of a re-straining order simply goes without say-ing given the nature of the order and itslanguage. Indeed, for a holder of a re-straining order who has read the order'semphatic language, it would likely comeas quite a shock to learn that she has noright to demand enforcement in the eventof a violation. To suggest that a protec-ted person has no such right would posita lacuna between a protected person'srights and an officer's duties—a result

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that would be hard to reconcile with theColorado Legislature's dual goals of put-ting an end to police indifference andempowering potential victims of domest-ic abuse.

**2822 Because the statute's guarantee of po-lice enforcement is triggered by, and operatesonly in reference to, a judge's granting of a re-straining order in favor of an identified “‘protected person,’ ” there is simply no room tosuggest that such a person has received merely an“ ‘incidental’ ” or “ ‘indirect’ ” benefit, see ante,at 2810. As one state court put it, domestic re-straining order statutes “identify with precisionwhen, to whom, and under what circumstancespolice protection must be afforded. The legislat-ive purpose in requiring the police to enforce in-dividual restraining orders clearly is to protect thenamed persons for whose protection the order isissued, not to protect the community at large bygeneral law enforcement activity.” Nearing, 295Or., at 712, 670 P.2d, at 143.FN17 Not only doesthe Court's doubt about *789 whether Colorado'sstatute created an entitlement in a protected per-son fail to take seriously the purpose and natureof restraining orders, but it fails to account for thedecisions by other state courts, see supra, at2818–2819, that recognize that such statutes andrestraining orders create individual rights to po-lice action.

FN17. See also Matthews v. PickettCounty, 996 S.W.2d 162, 165(Tenn.1999) (“The order of protection inthis case was not issued for the public'sprotection in general. The order of pro-tection specifically identified Ms. Mat-thews and was issued solely for the pur-pose of protecting her. Cf. Ezell [v.Cockrell, 902 S.W.2d 394, 403(Tenn.1995)] (statute prohibiting drunkdriving does not specify an individualbut undertakes to protect the public ingeneral from intoxicated drivers)”);Sorichetti, 65 N.Y.2d, at 469, 492N.Y.S.2d 591, 482 N.E.2d, at 75 (“The[protective] order evinces a preincidentlegislative and judicial determination

that its holder should be accorded a reas-onable degree of protection from a par-ticular individual”).

IVGiven that Colorado law has quite clearly

eliminated the police's discretion to deny enforce-ment, respondent is correct that she had muchmore than a “unilateral expectation” that the re-straining order would be enforced; rather, she hada “legitimate claim of entitlement” to enforce-ment. Roth, 408 U.S., at 577, 92 S.Ct. 2701. Re-cognizing respondent's property interest in the en-forcement of her restraining order is fully consist-ent with our precedent. This Court has “madeclear that the property interests protected by pro-cedural due process extend well beyond actualownership of real estate, chattels, or money.” Id.,at 571–572, 92 S.Ct. 2701. The “types of interestsprotected as ‘property’ are varied and, as often asnot, intangible, relating ‘to the whole domain ofsocial and economic fact.’ ” Logan v. ZimmermanBrush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 71L.Ed.2d 265 (1982); see also Perry v. Sinder-mann, 408 U.S. 593, 601, 92 S.Ct. 2694, 33L.Ed.2d 570 (1972) (“ ‘[P]roperty’ interests sub-ject to procedural due process protection are notlimited by a few rigid, technical forms. Rather,‘property’ denotes a broad range of interests thatare secured by ‘existing rules or understandings'”). Thus, our cases have found “property” in-terests in a number of state-conferred benefits andservices, including welfare benefits, Goldberg v.Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d287 (1970); disability benefits, Mathews v.Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d18 (1976); public education, Goss v. Lopez, 419U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975);utility services, Memphis Light, Gas & WaterDiv. v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56L.Ed.2d 30 (1978); government employment,*790 Cleveland Bd. of Ed. v. Loudermill, 470U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985),as well as in other entitlements that defy easy cat-egorization, see, e.g., **2823Bell v. Burson, 402U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971)(due process requires fair procedures before adriver's license may be revoked pending the adju-dication of an accident claim); Logan, 455 U.S.,

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at 431, 102 S.Ct. 1148 (due process prohibits thearbitrary denial of a person's interest in adjudicat-ing a claim before a state commission).

Police enforcement of a restraining order is agovernment service that is no less concrete andno less valuable than other government services,such as education.FN18 The relative novelty ofrecognizing this type of property interest is ex-plained by the relative novelty of the domestic vi-olence statutes creating a mandatory arrest duty;before this innovation, the unfettered discretionthat characterized police enforcement defeatedany citizen's “legitimate claim of entitlement” tothis service. Novel or not, respondent's claimfinds strong support in the principles that underlieour due process jurisprudence. In this case, Col-orado law guaranteed the provision of a certainservice, in certain defined circumstances, to a cer-tain class of beneficiaries, and respondent reason-ably relied on that guarantee. As we observed inRoth, “[i]t is a purpose of the ancient institutionof property to protect those claims upon whichpeople rely in their daily lives, reliance that mustnot be arbitrarily undermined.” *791 408 U.S., at577, 92 S.Ct. 2701. Surely, if respondent hadcontracted with a private security firm to provideher and her daughters with protection from herhusband, it would be apparent that she possesseda property interest in such a contract. Here, Col-orado undertook a comparable obligation, and re-spondent—with restraining order inhand—justifiably relied on that undertaking. Re-spondent's claim of entitlement to this promisedservice is no less legitimate than the other claimsour cases have upheld, and no less concrete than ahypothetical agreement with a private firm.FN19

The **2824 fact that it is based on a statutory en-actment and a judicial order entered for her spe-cial protection, rather than on a formal contract,does not provide a principled basis for refusing toconsider it “property” worthy of constitutionalprotection. FN20

FN18. The Court mistakenly relies onO'Bannon v. Town Court Nursing Cen-ter, 447 U.S. 773, 100 S.Ct. 2467, 65L.Ed.2d 506 (1980), in explaining why itis “by no means clear that an individual

entitlement to enforcement of a restrain-ing order could constitute a ‘property’interest for purposes of the Due ProcessClause.” Ante, at 2809. In O'Bannon, thequestion was essentially whether certainregulations provided nursing-home resid-ents with an entitlement to continued res-idence in the home of their choice. 447U.S., at 785, 100 S.Ct. 2467. The Courtconcluded that the regulations created nosuch entitlement, but there was no sug-gestion that Congress could not createone if it wanted to. In other words,O'Bannondid not address a situation inwhich the underlying law created an en-titlement, but the Court nevertheless re-fused to treat that entitlement as a prop-erty interest within the meaning of theDue Process Clause.

FN19. As the analogy to a private secur-ity contract demonstrates, a person's in-terest in police enforcement has “ ‘someascertainable monetary value,’ ” ante, at2809. Cf. Merrill, The Landscape ofConstitutional Property, 86 Va. L.Rev.885, 964, n. 289 (2000) (remarking, withregard to the property interest recognizedin Goss v. Lopez, 419 U.S. 565, 95 S.Ct.729, 42 L.Ed.2d 725 (1975), that “anyparent who has contemplated sendingtheir children to private schools knowsthat public schooling has a monetaryvalue”). And while the analogy to aprivate security contract need not be pre-cise to be useful, I would point out thatthe Court is likely incorrect in statingthat private security guards could nothave arrested the husband under the cir-cumstances, see ante, at 2809, n. 12. Be-cause the husband's ongoing abductionof the daughters would constitute aknowing violation of the restraining or-der, see n. 13, supra, and therefore acrime under the statute, see §18–6–803.5(1), a private person who wasat the scene and aware of the circum-stances of the abduction would have au-thority to arrest. See § 16–3–201 (“A

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person who is not a peace officer may ar-rest another person when any crime hasbeen or is being committed by the arres-ted person in the presence of the personmaking the arrest”). Our cases, of course,have never recognized any requirementthat a property interest possess “ ‘someascertainable monetary value.’ ” Regard-less, I would assume that respondentwould have paid the police to arrest herhusband if that had been possible; at thevery least, the entitlement has a monet-ary value in that sense.

FN20. According to Justice SOUTER,respondent has asserted a property in-terest in merely a “state-mandated pro-cess,” ante, at 2812 (concurring opin-ion), rather than in a state-mandated“substantive guarantee,” ibid. This mis-understands respondent's claim. Puttingaside the inartful passage of respondent'sbrief that Justice SOUTER relies upon,ante, at 2811, it is clear that respondentis in fact asserting a substantive interestin the “enforcement of the restraining or-der,” Brief for Respondent 10. Enforce-ment of a restraining order is a tangible,substantive act. If an estranged husbandviolates a restraining order by abductingchildren, and the police succeed in enfor-cing the order, the person holding the re-straining order has undeniably just re-ceived a substantive benefit. As in otherprocedural due process cases, respondentis arguing that the police officers failedto follow fair procedures in ascertainingwhether the statutory criteria that triggertheir obligation to provide enforce-ment— i.e., an outstanding order plusprobable cause that it is being viol-ated—were satisfied in her case. Cf.Carey v. Piphus, 435 U.S. 247, 266–267,98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)(discussing analytic difference betweenthe denial of fair process and the denialof the substantive benefit itself). It isJustice SOUTER, not respondent, whomakes the mistake of “collapsing the dis-

tinction between property protected andthe process that protects it,” ante, at2812.

Justice SOUTER also errs in suggest-ing that respondent cannot have aproperty interest in enforcement be-cause she would not be authorized toinstruct the police to refrain from en-forcement in the event of a violation.Ante, at 2811. The right to insist on theprovision of a service is separate fromthe right to refuse the service. For ex-ample, compulsory attendance lawsdeny minors the right to refuse to at-tend school. Nevertheless, we have re-cognized that minors have a propertyinterest in public education and thatschool officials must therefore followfair procedures when they seek to de-prive minors of this valuable benefitthrough suspension. See Goss, 419U.S. 565, 95 S.Ct. 729. In the end,Justice SOUTER overlooks the corepurpose of procedural due pro-cess—ensuring that a citizen's reason-able reliance is not frustrated by arbit-rary government action.

*792 VBecause respondent had a property interest in

the enforcement of the restraining order, state of-ficials could not deprive her of that interestwithout observing fair procedures.FN21 Her de-scription of the police behavior in this case andthe department's callous policy of failing to re-spond properly to reports of restraining order vi-olations clearly alleges*793 a due process viola-tion. At the very least, due process requires thatthe relevant state decisionmaker listen to theclaimant and then apply the relevant criteria inreaching his decision.FN22 The failure to observethese **2825 minimal procedural safeguards cre-ates an unacceptable risk of arbitrary and“erroneous deprivation[s],” Mathews, 424 U.S., at335, 96 S.Ct. 893. According to respondent'scomplaint—which we must construe liberally atthis early stage in the litigation, see Swierkiewiczv. Sorema N. A., 534 U.S. 506, 514, 122 S.Ct.

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992, 152 L.Ed.2d 1 (2002)—the process she wasafforded by the police constituted nothing morethan a “ ‘sham or a pretense.’ ” JointAnti—Fascist Refugee Comm. v. McGrath, 341U.S. 123, 164, 71 S.Ct. 624, 95 L.Ed. 817 (1951)(Frankfurter, J., concurring).

FN21. See Logan v. Zimmerman BrushCo., 455 U.S. 422, 432, 102 S.Ct. 1148,71 L.Ed.2d 265 (1982) (“ ‘ “While thelegislature may elect not to confer aproperty interest, ... it may not constitu-tionally authorize the deprivation of suchan interest, once conferred, without ap-propriate procedural safeguards” ’ ”).

FN22. See Fuentes v. Shevin, 407 U.S.67, 81, 92 S.Ct. 1983, 32 L.Ed.2d 556(1972) (“[W]hen a person has an oppor-tunity to speak up in his own defense,and when the State must listen to what hehas to say, substantively unfair andsimply mistaken deprivations of propertyinterests can be prevented” (emphasisadded)); Bell v. Burson, 402 U.S. 535,542, 91 S.Ct. 1586, 29 L.Ed.2d 90(1971) (“It is a proposition which hardlyseems to need explication that a hearingwhich excludes consideration of an ele-ment essential to the decision whether li-censes of the nature here involved shallbe suspended does not meet [the] stand-ard [of due process]”); Goldberg v.Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011,25 L.Ed.2d 287 (1970) (“[T]he decision-maker's conclusion as to a recipient's eli-gibility must rest solely on the legal rulesand evidence adduced at the hearing”);cf. ibid. (“[O]f course, an impartial de-cision maker is essential”).

Accordingly, I respectfully dissent.

U.S.,2005.Town of Castle Rock, Colo. v. Gonzales545 U.S. 748, 125 S.Ct. 2796, 162 L.Ed.2d 658,73 USLW 4611, 05 Cal. Daily Op. Serv. 5642, 05Daily Journal D.A.R. 7653, 18 Fla. L. WeeklyFed. S 511

END OF DOCUMENT

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