Backlash 1Castle Rock v. Gonzales, 545 U.S. 748 (2005)

The Marines' refusal to protect a female soldier from her rapist and the tolerance of honor killings in the US draw attention to the loss of women's rights gained in the 1970's and 80's - I will begin to document this on this blog under the title Backlash - this post is the first in that series.

Jessica Gonzales v. U.S.A.
In June 1999 Jessica Gonzales' three young daughters, ages seven, nine and ten, were abducted by her estranged husband and killed after the Colorado police refused to enforce a restraining order against him. Although Gonzales repeatedly called the police, telling them of her fears for her daughters' safety, they failed to respond. Hours later, Gonzales' husband drove his pick-up truck to the police department and opened fire. He was shot dead by the police. The slain bodies of the three girls were subsequently discovered in the back of his pickup truck.

Gonzales filed a lawsuit against the police, but in June 2005 the U.S. Supreme Court ruled that she had no Constitutional right to police enforcement of her restraining order. She then filed a petition with the Inter-American Commission on Human Rights, saying that the inaction of the police and the Supreme Court's decision violated her human rights. This is the first time an individual complaint by a victim of domestic violence has been brought against the United States for international human rights violations.

October 10, 2007
Case Law Development: Inter-American Commission on Human Rights Finds Domestic Violence Police Response Case Admissible

The Inter-American Commission on Human Rights, in the case of Jessica Gonzales v. United States has declared Jessica Lenahan's (formerly Gonzales) case admissible. In Castle Rock v. Gonzales, the United States Supreme Court held that Jessica did not have a property interest in prompt police response to enforce the provisions of her domestic violence restraining order. The court thus reversed the 10th circuit's decision finding a constitutional violation when the police ignored repeated calls from Jessica that her estranged husband had violated a protective order and taken her children.

Ms. Lenahan (Gonzales) has since then pursued this action before the Inter-American Commission on Human Rights. The Commission's recent decision says that Ms. Lenahan (Gonzales) exhausted all domestic remedies and indicates that countries in the Americas, including the United States, are responsible under the American Declaration on the Rights and Duties of Man for protecting victims of domestic violence from private acts of violence. This is the first time that the Commission has ever made such a pronouncement.

In the merits phase of this process, the Commission will decide whether the US and the Castle Rock Police Department/Colorado violated Ms. Lenahan (Gonzales') and her children's human rights. Ms. Lenahan (Gonzales) has alleged that the United States has violated her rights to life, non-discrimination, family life/unity, due process, petition the government, and the rights of domestic violence victims and their children to special protections.

The Commission's admissibility decision is available online at the Commission's website; Columbia Law Schools Human Rights website, or the ACLU website.

Ms. Gonzales' testimony before the Inter-American Commission in March 2007, can be viewed at the Organization of American State's website
(Last visited October 10, 2007 bgf)
A 1989 decision, DeShaney v. Winnebago County, held that the failure by county social service workers to protect a young boy from a beating by his father did not breach any substantive constitutional duty. By framing her case as one of process rather than substance, Ms. Gonzales and her lawyers hoped to find a way around that precedent.
But the majority on Monday saw little difference between the earlier case and this one, Castle Rock v. Gonzales, No. 04-278. Ms. Gonzales did not have a "property interest" in enforcing the restraining order, Justice Scalia said, adding that "such a right would not, of course, resemble any traditional conception of property."
Although the protective order did mandate an arrest, or an arrest warrant, in so many words, Justice Scalia said, "a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes."
But Justices Stevens and Ginsburg, in their dissenting opinion, said "it is clear that the elimination of police discretion was integral to Colorado and its fellow states' solution to the problem of underenforcement in domestic violence cases." Colorado was one of two dozen states that, in response to increased attention to the problem of domestic violence during the 1990's, made arrest mandatory for violating protective orders.
"The court fails to come to terms with the wave of domestic violence statutes that provides the crucial context for understanding Colorado's law," the dissenting justices said.
Organizations concerned with domestic violence had watched the case closely and expressed disappointment at the outcome. Fernando LaGuarda, counsel for the National Network to End Domestic Violence, said in a statement that Congress and the states should now act to give greater protection.
Read an explanation here.


Stevens, J., dissenting
No. 04—278

It is perfectly clear, on the one hand, that neither the Federal Constitution itself, nor any federal statute, granted respondent or her children any individual entitlement to police protection. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189 (1989). Nor, I assume, does any Colorado statute create any such entitlement for the ordinary citizen. On the other hand, it is equally clear that federal law imposes no impediment to the creation of such an entitlement by Colorado law. Respondent certainly could have entered into a contract with a private security firm, obligating the firm to provide protection to respondent’s family; respondent’s interest in such a contract would unquestionably constitute “property” within the meaning of the Due Process Clause. If a Colorado statute enacted for her benefit, or a valid order entered by a Colorado judge, created the functional equivalent of such a private contract by granting respondent an entitlement to mandatory individual protection by the local police force, that state-created right would also qualify as “property” entitled to constitutional protection.
I do not understand the majority to rule out the foregoing propositions, although it does express doubts. See ante, at 17 (“[I]t is by no means clear that an individual entitlement to enforcement of a restraining order could constitute a ‘property’ interest”). Moreover, the majority does not contest, see ante, at 18, that if respondent did have a cognizable property interest in this case, the deprivation of that interest violated due process. As the Court notes, respondent has alleged that she presented the police with a copy of the restraining order issued by the Colorado court and requested that it be enforced. Ante, at 2, n. 1. In response, she contends, the officers effectively ignored her. If these allegations are true, a federal statute, Rev. Stat. §1979, 42 U.S.C. § 1983 provides her with a remedy against the petitioner, even if Colorado law does not. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985).
The central question in this case is therefore whether, as a matter of Colorado law, respondent had a right to police assistance comparable to the right she would have possessed to any other service the government or a private firm might have undertaken to provide. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972) (“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are 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”).


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