Gonzales v. City of Castle Rock

• Decision Date: 29 April 2004
• Docket Number: No. 01-1053.,01-1053.
• Parties: Jessica GONZALES, individually and as next best friend of her deceased minor children Rebecca Gonzales, Katheryn Gonzales and Leslie Gonzales, Plaintiff-Appellant, v. CITY OF CASTLE ROCK; Aaron Ahlfinger; R.S. Brink; Marc Ruisi, Officers of the Castle Rock Police Department, Defendants-Appellees. Colorado Municipal League; Colorado Counties, Inc.; and Colorado Association of Chiefs of Police, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

366 F.3d 1093

Jessica GONZALES, individually and as next best friend of her deceased minor children Rebecca Gonzales, Katheryn Gonzales and Leslie Gonzales, Plaintiff-Appellant, v. CITY OF CASTLE ROCK; Aaron Ahlfinger; R.S. Brink; Marc Ruisi, Officers of the Castle Rock Police Department, Defendants-Appellees.

Colorado Municipal League; Colorado Counties, Inc.; and Colorado Association of Chiefs of Police, Amici Curiae.

No. 01-1053.

United States Court of Appeals, Tenth Circuit.

April 29, 2004.

COPYRIGHT MATERIAL OMITTED

Brian J. Reichel, Attorney, Thornton, CO, for Plaintiff-Appellant.

Thomas S. Rice, Senter Goldfarb & Rice, L.L.C. (Eric M. Ziporin, Senter, Goldfarb & Rice, L.L.C. and Christina M. Habas, Bruno, Bruno & Colin, P.C., with him on the brief), Denver, CO, for Defendants-Appellees.

Carolynne White, Staff Attorney, Colorado Municipal League; Thomas J. Lyons, Hall & Evans, LLC, Denver, CO; and Julie C. Tolleson, Kennedy & Christopher, PC, Denver, CO, on the brief for Amici Curiae.

Before TACHA, Chief Judge, SEYMOUR, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, and McCONNELL, Circuit Judges.

SEYMOUR, Circuit Judge.

This civil rights case asks us to decide whether a court-issued domestic restraining order, whose enforcement is mandated by a state statute, creates a property interest protected by the due process clause of the Fourteenth Amendment. The district court held it does not and dismissed the action under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. A panel of this court reversed. Gonzales v. City of Castle Rock, 307 F.3d 1258 (10th Cir.2002). On rehearing en banc, we reverse the district court's dismissal of Jessica Gonzales' procedural due process claim as to the City of Castle Rock, but hold that the individual police officers are entitled to qualified immunity.

I

"We review de novo the district court's dismissal under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted." Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir.2002), cert. denied, 538 U.S. 999, 123 S.Ct. 1908, 155 L.Ed.2d 826 (2003). We accept as true all well-pleaded facts, liberally construe the pleadings, and make all reasonable inferences in favor of the plaintiff. Id. "The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support her claims." Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Only where it appears beyond a doubt that a plaintiff cannot prove any set of facts entitling her to relief, can a motion to dismiss be granted. Id. With these precepts guiding our review, the complaint sets forth the following tragic facts.

On May 21, 1999, Ms. Gonzales obtained a temporary restraining order limiting her husband's ability to have contact with her and their daughters, aged ten, nine and seven. The restraining order was issued by a state court in accordance with COLO.REV.STAT. § 14-10-108, and commanded in part that Mr. Gonzales "not molest or disturb the peace of [Ms. Gonzales] or ... any child." Aplt. Appx. at 29. The restraining order further stated "the court ... finds that physical or emotional harm would result if you are not excluded from the family home," and directed Mr. Gonzales to stay at least 100 yards away from the property at all times. Id. See also COLO.REV.STAT. § 14-10-108(2)(c) (party can be excluded from family home upon a showing that physical or emotional harm would otherwise result).

Neither parent nor the daughters could unilaterally change the terms of the order because it explicitly states:

If you violate this order thinking that the other party or a child named in this order has given you permission, you are wrong, and can be arrested and prosecuted. The terms of this order cannot be changed by agreement of the other party or the child(ren). Only the court can change this order.

SUSAN WENDALL WHICHER & CHERYL LOETSCHER, HANDBOOK OF COLORADO FAMILY LAW, ch. IV, F-12 at 2 (3d ed.1996) (emphasis in original) (hereinafter "Restraining Order").¹ The order also contained explicit terms directing law enforcement officials that they "shall use every reasonable means to enforce" the restraining order, they "shall arrest" or where impractical, seek an arrest warrant for those who violate the restraining order, and they "shall take the restrained person to the nearest jail or detention facility...." Id.

Upon the trial court's issuance of the temporary restraining order, and pursuant to COLO.REV.STAT. § 18-6-803.7(2)(b), the order was entered into the state's central registry for such protective orders, which is accessible to all state and local law enforcement agencies. On June 4, 1999, the order was served on Mr. Gonzales. On that same date, upon "having heard the stipulation of the parties, and after placing the parties under oath and examining the parties as to the accuracy of the Stipulation ... and finding that [the] Stipulation [was] in the best interests of the minor children," Aplt. Appx. at 30, the state court made the restraining order permanent. The temporary order's terms were slightly modified to detail Mr. Gonzales' rights to parenting time with his daughters on alternative weekends, and for two weeks during the summer. The order also allowed Mr. Gonzales "upon reasonable notice... a mid-week dinner visit with the minor children. Said visit shall be arranged by the parties." Id. (emphasis added). Finally, the order allowed Mr. Gonzales to collect the girls from Ms. Gonzales' home for the purposes of parental time. However, all other portions of the temporary restraining order remained in force, including its command that Mr. Gonzales was excluded from the family home and that he could not "molest or disturb the peace" of Ms. Gonzales or the girls. Id. at 29.

Despite the order's terms, on Tuesday, June 22, 1999, sometime between 5:00 and 5:30 p.m., Mr. Gonzales abducted the girls while they were playing outside their home. Mr. Gonzales had not given Ms. Gonzales advanced notice of his interest in spending time with his daughters on that Tuesday night, nor had the two previously agreed upon a mid-week visit. When Ms. Gonzales realized her daughters were missing, she suspected that Mr. Gonzales, who had a history of erratic behavior and suicidal threats, had taken them. At approximately 7:30 p.m., she made her first phone call to the Castle Rock police department requesting assistance in enforcing the restraining order against her husband. Officers Brink and Ruisi were sent to her home. Upon their arrival, she showed them a copy of the restraining order, and asked that it be enforced and her children returned to her immediately. In contradiction to the order's terms, the Officers "stated that there was nothing they could do about the TRO and suggested that Plaintiff call the Police Department again if the children did not return home by 10:00 p.m." Id. at 9.

About an hour later, Ms. Gonzales spoke to Mr. Gonzales on his cellular telephone and he told her he was with the girls at Elitch Gardens, an amusement park in Denver. She immediately made a second call to the Castle Rock police department, and spoke with Officer Brink, requesting that the police find and arrest Mr. Gonzales. Officer Brink refused to do so, and suggested Ms. Gonzales wait until 10:00 p.m. to see if the girls returned home. Shortly after 10:00 p.m., Ms. Gonzales called the police department and reported to the dispatcher that her daughters had yet to be returned home by their father. She was told to wait for another two hours. At midnight, she called the police department again and informed the dispatcher her daughters were still missing. She then proceeded to Mr. Gonzales' apartment complex and found no one at home. From there, she placed a fifth call to the police department and was advised by the dispatcher to wait at the apartment complex until the police arrived. No officers ever came to the complex, and at 12:50 a.m., Ms. Gonzales went to the Castle Rock police station, where she met with Officer Ahlfinger. Officer Ahlfinger took an incident report from Ms. Gonzales, but he made no further effort to enforce the restraining order against her husband or to find her children. Instead, he went to dinner.

At approximately 3:20 a.m., nearly eight hours after Ms. Gonzales first contacted the police department, Mr. Gonzales arrived at the Castle Rock police station in his truck. He got out and opened fire on the station with a semi-automatic handgun he had purchased soon after abducting his daughters. He was shot dead at the scene. The police found the bodies of the three girls, who had been murdered by their father earlier that evening, in the cab of the truck.

Ms. Gonzales subsequently brought this action on behalf of herself and her deceased daughters against the City of Castle Rock, Colorado, and Castle Rock police officers Aaron Ahlfinger, R.S. Brink, and Marc Ruisi. Pursuant to 42 U.S.C. § 1983, she claimed her due process rights were violated by the officers' failure to enforce the restraining order against her husband. She also alleged the city maintained a custom and policy of failing to respond properly to complaints of domestic restraining order violations and tolerated the non-enforcement of such protective orders by police officers, resulting in the reckless disregard of a person's right to police protection granted by such orders.

The district court granted the defendants' motion to dismiss, finding Ms. Gonzales failed to state a claim under the Fourteenth Amendment for the deprivation of either substantive or procedural due process.² On appeal, the panel affirmed the district court's dismissal of Ms. Gonzales' substantive due process claim, but reversed as to ...