TOWN OF CASTLE ROCK v. GONZALES: THE ... - Stetson University

File: Hasanbasic.362.GALLEY(d).doc Created on: 9/25/2007 2:29:00 PM Last Printed: 9/26/2007 10:35:00 AM888 Stetson Law Review [Vol. 36tionally protected property entitlement. 47 The Court emphasizedthat although property entitlements are created within the prerogativeof individual state legislatures, once an entitlement iscreated “[the State] may not constitutionally authorize the deprivationof such an interest . . . without appropriate proceduralsafeguards.” 48Although Castle Rock was the first Supreme Court case toaddress the issue of whether a state restraining order statutemandated police enforcement, state courts had addressed the issue.In Nearing v. Weaver, 49 the Supreme Court of Oregon heldthat state law created a mandatory duty on police officers to arrestviolators of restraining orders, once probable cause of a violationhad been established. 50 In finding that the probable causerequirement of the statute did not make the statute discretionary,the Court noted that “an officer or employee is not engaged in a‘discretionary function or duty’ whenever he or she must evaluateand act upon a factual judgment.” 51 Similarly, in Robinson v.United States, 52 the Court of Appeals for the District of Columbiainterpreted a Washington, D.C. domestic violence statute to bemandatory, stating that “D.C. Code Section 16-1031(a) makes itmandatory for a police officer to arrest any person . . . whom theofficer has probable cause to believe has committed a violent intrafamilyoffense.” 53 Although the Colorado courts have not specificallyaddressed whether police officers have any discretion underthe restraining order statute at issue in Castle Rock, the47. Id. at 432.48. Id.49. 670 P.2d 137 (Or. 1983).50. Id. at 139. The mandatory language of the 2002 Oregon Revised Statutes Section133.310(3) reads:A peace officer shall arrest and take into custody a person without a warrantwhen the peace officer has probable cause to believe that:(a) There exists an order issued pursuant to . . . [Or. Rev. Stat. Ann.§§§ 107.095 (1)(c) or (d), 107.716 or 107.718] restraining the person; [and](b) A true copy of the order and proof of service on the person has been filedas required in . . . [Or. Rev. Stat. Ann. § 107.720]; and(c) [The peace officer has probable cause to believe that] [t]he person to be arrestedhas violated the terms of that order.51. Nearing, 670 P.2d at 142.52. 769 A.2d 747 (D.C. Cir. 2001).53. Id. at 757. For the relevant language of the cited statute, see infra note 217.