58 Fla. L. Rev. 459 (2006) | 
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TEXT :: Respondent’s husband abducted his three little girls, ages 10, 8, and 7, and shot each of them in the head at close range. He committed this abhorrent and tragic triple murder despite the fact that Respondent had obtained a restraining order commanding him to stay away from the girls. Accordingly, Respondent claimed the town of Castle Rock, Colorado violated the Due Process Clause and brought an action under 42 U.S.C. § 1983, alleging that the town’s police department tolerated the non-enforcement of restraining orders and that such actions were either willful, reckless, or grossly negligent. The district court granted the town’s motion to dismiss. The court of appeals, however, reversed, holding that Respondent had a legitimate procedural due process claim. On rehearing en banc, a divided court reached the same conclusion, but the United States Supreme Court reversed and HELD, that Respondent did not, under the Fourteenth Amendment of the United States Constitution, have a property interest in police enforcement of the restraining order against her husband.
The Fourteenth Amendment’s Due Process Clause provides, in part, that no State shall “deprive any person of life, liberty, or property, without due process of law.” The Supreme Court’s interpretation of the clause prohibits the federal government from depriving any person of life, liberty or property without first giving that person notice and an opportunity to be heard. Consequently, the first element of a procedural due process claim that alleges a deprivation of property is the identification of a property interest. In cases involving tangible property, a property interest is usually easy to ascertain. When the property interest is not readily identifiable, however, procedural due process cases become more complicated. As a result, there has been much discussion about what should constitute a property interest requiring procedural due process.
In Board of Regents of State Colleges v. Roth, the Supreme Court examined the notion of intangible property interests. In Roth, the respondent was hired as an assistant professor for a fixed term of one year. When he was not rehired the following year, he brought an action alleging that the decision violated his procedural due process rights. The district court granted summary judgment for the respondent and the court of appeals affirmed. The United State Supreme Court, however, reversed.
In coming to its decision, the Court stated that “the range of interests protected by procedural due process is not infinite.” The Court then defined property interests by noting that “[t]o have a property interest in a benefit, a person clearly must . . . have a legitimate claim of entitlement to it.” The Supreme Court went on to point out that property interests are not created by the Constitution. Instead, they are created and “defined by existing rules or understandings that stem from an independent source such as state-law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Thus, even though the respondent had an “abstract concern” in being rehired, he did not have a property interest in continued employment at the university, absent specific contractual terms providing a right to re-employment for the next year. Although the Court did not find that respondent had a property interest, Roth did serve to establish the benchmark that future courts would look to in determining whether an individual had a protected interest for procedural due process purposes.
Roth, therefore, defines property as an “entitlement.” The inherent difficulty in the definition rests in the fact that the quoted language from Roth lends itself to two conflicting approaches. On the one hand, an entitlement could be defined by the importance the individual places on the interest; that is, if an individual relies on a government benefit in her daily life, then it should be deemed a property interest that cannot be arbitrarily undermined. The Roth Court, however, also concluded that an entitlement is determined by an “independent source such as state law” and the “rules or understandings” that it creates. Accordingly, this view suggests that an entitlement only exists if there is a “reasonable expectation to continued receipt of a benefit.” The Supreme Court has generally followed this second approach.
In O’Bannon v. Town Court Nursing Center, the Supreme Court further narrowed the definition of property interest by restricting the approach elucidated in Roth. In O’Bannon, patients at a nursing home claimed they had a right to a hearing before a state or federal agency could revoke the home’s authority to provide them with care paid for by the government. In response to the patients’ claim, the O’Bannon Court acknowledged that the government cannot withdraw direct benefits from an individual without due process, but also determined that residents of the nursing home were only indirectly and incidentally affected by government action aimed towards a third party.
The O’Bannon Court further explained that even though government action may have an adverse impact on certain individuals, if that impact is incidental and indirect, it cannot amount to a deprivation of any property interest. Analyzing the case using the Roth standard, the O’Bannon Court found that such an indirect result could not constitute a legitimate claim of entitlement. Thus, the direct/indirect impact test refined the definition of protected entitlement interest first set forth in Roth.
Three years after O’Bannon, the Supreme Court added another element that must be satisfied before an entitlement interest may be recognized. In Olim v. Wakinekona, the Supreme Court decided whether the transfer of an inmate from a Hawaii state prison to a California state prison implicates a protected interest within the meaning of the Due Process Clause. The Court held that even though a state creates a protected interest by putting substantive limits on official discretion, Hawaii’s prison regulations did not place any substantive limitations on the prison administrator’s discretion to transfer a prisoner. That is, if the decisionmaker can deny the requested relief for any constitutionally permissible reason, as opposed to being required to base his decision on “objective and defined criteria,” then the state has not created a protected entitlement requiring due process. As a result, a benefit is not a protected entitlement if government officials may deny it at their discretion.