Town of Castle Rock v. Gonzales

1. Town of Castle Rock v. Gonzales Nate Belding Candice Porter Rachel Schaller

2. History of Domestic Violence 753 B.C. During the reign of Romulus in Rome, wife beating is accepted and condoned under The Laws of Chastisement. Under these laws, the husband has absolute rights to physically discipline his wife. Since by law, a husband is held liable for crimes committed by his wife, this law was designed to protect the husband from harm caused by the wife's actions. These laws permit the husband to beat his wife with a rod or switch as long as its circumference is no greater than the girth of the base of the man's right thumb, hence "The Rule of Thumb." The tradition of these laws is perpetuated in English Common Law and throughout most of Europe. 202 B.C. At the end of the Punic Wars, the family structure changes giving women more freedoms, including property rights and the right to sue their husbands for unjustified beatings.

3. History of Domestic Violence (cont.) c. 300 A.D. The Christian Church re-establishes the husband's patriarchal authority and the patriarchal values of Roman and Jewish law. The Roman Emperor, Constantine the Great, has his wife burned alive when she is no longer of use to him. 1500’s Early settlers in America base their laws on old English common-law that explicitly permits wife-beating for correctional purposes. However, the trend in the young states is towards declaring wife-beating illegal. One step towards that end is to allow the husband to whip his wife only with a switch no bigger than his thumb. 1824 A decision by the Mississippi Supreme Court in Bradley v. State 2 Miss. (Walker) 156 (1824), allows a husband to administer only "moderate chastisement in cases of emergency. . ."

4. History of Domestic Violence (cont.) 1894 The right to administer moderate chastisement is overruled in Mississippi in Harris v. State, 71 Miss. 462 (1894). 1950's &1960's The civil rights and anti-war movements challenge the country, laying a foundation for the feminist movement. 1970's "We will not be beaten" becomes the mantra of women across the country organizing to end domestic violence. A grassroots organizing effort begins, transforming public consciousness and women's lives. The common belief within the movement is that women face brutality from their husbands and indifference from social institutions.

5. History of Domestic Violence (cont.) 1970’s The Richmond, CA police department is the first in the nation to make domestic crisis intervention training part of its in-service training, and the first to train all of its police officers. This program operates without federal or state funding. 1974 The term "battered women" is still not a part of the public's vocabulary. Writings on battered women are becoming less overtly hostile, but are still riddled with sexism. 1975 With a unanimous vote at its national conference, NOW declares marital violence a major issue and establishes a National Task Force on Battered Women/Household Violence. 1993 The United Nations recognizes domestic violence as an international human rights issue and issues a Declaration on the Elimination of Violence Against Women. A similar resolution is issued by the Organization of American States. Source: Herstory of Domestic Violence: A Timeline of the Battered Women's Movement

6. Domestic Violence Legislation The World Conference on Human Rights, held in Vienna, 1993 Declaration on the Elimination of Violence against Women, 1993 Violence Against Women Act, 1994 Colorado General Assembly’s omnibus legislation targeting domestic violence, 1994

7. Facts of the Case • TRO language: You shall use every reasonable means to enforce this restraining order. You shall arrest, or if an arrest would be impractical under the circumstances, seek a warrant for the arrest of the restrained person when you have information amounting to probable cause that the restrained person has violated or attempted to violate any provision of this order... • Approximately 5 phone calls and a visit to the police station • Suicide by cop and 3 dead children • CBS4 News Story Broadcast June 26, 2005

8. Town of Castle Rock v. Gonzales Procedural Posture Due Process Claims Substantive Due Process Claim Precluded by DeShaney v. Winnebago Procedural Due Process Claim Not Precluded by DeShaney v. Winnebago

9. Castle Rock, Colo. v. GonzalesAnalyzing the Decision Crux of Complaint Oral Arguments No Deference to Tenth Circuit Oral Arguments Context of Statutory Interpretation Tradition of Police Discretion v. Crisis of Under-enforcement Shall v. May Impractical arrests Entitlement to enforcement Seeking a warrant is a procedure

10. Castle Rock, Colo. v. GonzalesAnalyzing the Decision (Cont.) Mandatory language not strong enough for entitlement Right to enforcement not explicitly stated Court ruled stronger language required An entitlement does not necessarily constitute a property interest for purposes of the procedural component of the due process clause Nontraditional property interest Benefits afforded incidental to “enforcement” Oral Arguments Can an individual be entitled to a procedure? Is “enforcement” of a restraining order a substantive benefit?

11. Certification The Supreme Court could have certified the questions of state law to the Colorado Supreme Court. The Court held that certification was not proper, noting that no party requested certification, that the Tenth Circuit Court of Appeals did not certify, and that Mrs. Gonzales’s counsel declined Justice Steven’s invitation to request it. (Oral Argument Audio)

12. Police Department’s Custom or Policy of Ignoring Domestic Violence Reports The issue of whether Castle Rock’s custom or policy prevented the police from giving Mrs. Gonzales due process when they deprived her of her alleged property interest in police enforcement of the restraining order was not addressed in the majority opinion. The majority opinion did not reach this issue because it simply did not address whether the process would have been adequate if respondent had had a property interest.

13. Other Domestic Violence Opinions Penned by Scalia Davis v. Washington, 547 U.S. 813 (2006) Giles v. California, 545 U.S. 748 (2005)

14. The Decision’s Impact On domestic violence, law enforcement and state legislation

15. Domestic Violence Victims • Domestic violence statistics • Women hesitant to seek police protection • Private methods of protection

16. Law Enforcement Officials • Additional facts of the case • DPPA Amicus Brief: Because of inevitable shortages of resources and the status of officers as ‘first responders’ in the war on terror, circumstances will likely arise in which the officers’ response to procedural requirement will cause their attention to be diverted from other matters with potentially grave consequences. • No more police discretion • CBS4 Denver News Broadcast June 27, 2005 • Interview with retired cop

17. Question • What do you think about the competing interests of domestic violence victims versus law enforcement officials? • Is one group of interests more important than the other?

18. State Legislation • Use of “shall” in the statute • Colorado Supreme Court’s interpretation of “shall” • Peggy Kerns’ Amicus Brief • Costs of domestic violence versus mandatory enforcement

19. Question • What could the State legislature have done to create a property interest in police enforcement of TROs or to eliminate police discretion?

20. Alternative Legal Theories

21. State-Created Danger Exception • State creates a dangerous situation or renders citizens more vulnerable to danger • Successfully pursued in Sadrud-Din v. City of Chicago • Justice O’Connor question during oral argument

22. JUSTICE O'CONNOR: Mr. Eastman, assuming for the moment there is no due-- procedural due process right here, on the facts of this case, does Colorado law provide any alternative remedy for Mrs. Gonzales? • MR. EASTMAN: Yes, Justice O'Connor, it does. • JUSTICE O'CONNOR: And what would that be? • MR. EASTMAN: There are several remedies. In the first instance, any violation of a restraining order, she can petition the court for a contempt order, even against the police. If their conduct was willful and wanton-- • JUSTICE O'CONNOR: So she could presumably ask for some relief under that notion, against the police and possibly the town? • MR. EASTMAN: Against the police and-- not the town. The town has absolute immunity but against the police under the tort statute, the police are not immune if their conduct is willful and wanton. And I think this Court in DeShaney addressed that very question when it looked like if the state wanted to create an interest here, that it could do so by modifying the-- • CHIEF JUSTICE REHNQUIST: You say the tort statute means something like the Federal Tort Claims Act. Does Colorado have something like that? • MR. EASTMAN: It does. And there is a Colorado Governmental Immunity Act that gives immunity to police except when their conduct is willful and wanton. And so that tort remedy does exist and if the Colorado legislature wanted to lower the threshold on that and make it negligent omissions or what have you, whatever the allegations are, they could do so. The fact that they haven't done so I think is a pretty strong indication that they did not intend to create a property interest here. • Oral Arguments

23. Equal Protection Clause • Police treat domestic violence victims differently than other assault cases • Police policy that fails to protect domestic violence victims has a discriminatory impact on women, since they are usually the victims of these crimes • Watson v. Kansas City

24. State Law • Nearing v. Weaver • Mandatory arrest statutes for domestic violence are the law in 22 states and D.C.

25. Question • Can you think of any other alternative legal theories? • Why do you think Ms. Gonzales did not pursue a claim under: • State Created Danger Exception • Equal Protection Clause • State Law

26. Jessica Gonzales v. United States of America Cause Lawyering: The Client Side

27. Did the U.S. Supreme Court Violate Ms. Gonzales’ Human Rights? • What is a violation of human rights? • Human Rights: basic rights and freedoms to which all humans are entitled • Civil, political, economic, cultural, social • 6 months after the U.S. Supreme Court denied Ms. Gonzales’ §1983 claim, Ms. Gonzales filed a petition with the Inter American Commission of Human Rights • Documentary Film Clip

28. Creating an International System of Governance • What was going on in the world in 1948? • Intergovernmental cooperation key to reconstructing Germany after WWII • Intergovernmental cooperation to prevent WWIII • American Declaration of the Rights and Duties of Man signed April 1948 • At the same meeting, signed the Charter which established the Organization of American States • Universal Declaration of Human Rights signed December 10, 1948 • International Customary Law • Non-binding

29. United States’ Ratification of International Treaties • The United States ratified: • the OAS founding Charter • The Declaration of the Rights and Duties of Man • What are some examples of international treaties not signed by the United States? • Kyoto Protocol • Rome Statute of the International Criminal Court • U.S. no longer subject to ICC

30. Treaties Signed but not Ratified by the United States • Convention on the Rights of the Child • U.S. active in drafting Convention • Signed by Madeline Albright, U.S. Ambassador to the U.N. • Not ratified by any U.S. President since • Barak Obama has stated failure to ratify is “embarrassing” and promises to review the Convention • The American Convention on Human Rights • Canada and some Caribbean nations have also not ratified • Provision in Convention announcing illegality of abortions • Contrary to Canada’s express approval of abortions • Mexico ratified on the condition that did not agree to abortion provision • The United States did not accede to the Inter American Court • 21 out of 35 OAS member states acceded to Inter American Court

31. The Special Rapporteurship on the Rights of Women • In 1994, the IACHR created a special unit to support the rights of women in member states • First initiative was to author the Report on the Status of Women in the Americas • www.globalhealthmagazine.com • U.S. developments in Women’s Rights cited by the Report • Violence Against Women’s Act (VAWA) • Largely diminished in 2000 by the U.S. Supreme Court decision U.S. v. Morrison • Struck down portion of VAWA providing for private damages for gender motivated violence • Violence Against Women Office • Office within the Department of Justice • S.T.O.P. • Jessica Gonzales influence 2005 renewal of VAWA

32. Jessica Gonzales Special Victim’s Assistants • VAWA up for renewal in 2005 • Added a purpose for VAWA grant money: • Support placement of Jessica Gonzales Victim’s Assistants • Liaison between victim’s of domestic violence, dating violence, sexual assault and stalking. • Personnel in local law enforcement agencies to improve the enforcement of protection orders • Accomplish the above by collaborating with: • prosecutors, courts, local law enforcement, and persons seeking enforcement of protection orders • The Renewal added 10,000,000 in grant money specifically to be spent on Victim’s Assistants • What is more effective at preventing domestic violence, private damages or grant money?

33. Ms. Gonzales Petitions the IACHR • Obtaining a final decision from the IACHR is a two step process • Admissibility phase • Merits phase • During Admissibility phase, the Commission determines if the petitioner has an admissible human rights violation • Central to this determination is whether there are any domestic remedies available to petitioner • Did Ms. Gonzales have any remedies within the U.S. legal or legislative system? • Possible alternative legal theories • Legislative action

34. Finding Ms. Gonzales’ Claim Admissible • On July 24, 2007, the Commission admitted Jessica Gonzales v. United States of America • Commission admits a petition based on 4 criteria • Duplication • Timeliness of petition • Colorable Claim • Exhaustion of domestic remedies

35. Colorable Claim • Do the facts tend to establish a claim under a treaty ratified by the accused member State? • Preventable death • U.S. says no affirmative duty in Declaration • Commission determines their interpretation of Declaration in precedence indicates there is an affirmative duty • Domestic Violence as a low priority crime • “The alleged facts would constitute possible violations to Article II of the American Declaration. The IACHR observes that the Petitioners allege that the police authorities engage in a systematic and widespread practice of treating domestic violence as a low-priority crime, belonging to the private sphere, as a result of discriminatory stereotypes about the victims. These stereotypes influence negatively the police response to the implementation of restraining orders. The failures in the police response affect women disproportionately since they constitute the majority of victims of domestic violence. The deficiencies in the state response allegedly have a particularly alarming effect on women that pertain to racial and ethnic minorities, and lower income groups.”

36. Exhaustion of Domestic Remedies • Does the national system provide an adequate and effective remedy? • United States argues: • the Supreme Court decision is but one of many possible legal theories legislative action, federal and state funding of domestic violence victims support • Jessica Gonzales argues: • No administrative channels available in 1999, Equal protection claim and substantive due process argument barred by precedent, no state remedy because of Colorado qualified immunity • Commission holds domestic remedies exhausted: • U.S. Supreme Court highest federal court, U.S. did not identify possible alternative legal theories • Standard is “no reasonable prospect of success in light of prevailing jurisprudence of state’s highest court.”

37. Transforming the Legal Argument for IACHR Merits Phase • CBS4 Denver News Broadcast Ocober 7, 2007 • Affirmative obligations of governments • Governments subject to the Declaration must use “due diligence” to sustain human rights • Interpreted in Velasquez-Rodriguez: • An illegal act which violated human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.”

38. Newly Revealed Facts • Ms. Gonzales claim and subsequent appeals in the U.S. legal system based on summary judgment • No discovery process • Pursuit of international tribunal exposed previously unknown facts • Castle Rock Police investigation • Actual cause of death • Eye-witness testimony • IACHR Hearing on the Merits

39. Town of Castle Rock Investigation • 18th Judicial Critical Incident Team Shooting of Simon Gonzales Castle Rock PD • Thorough analysis of Mr. Gonzales’ death • Brief conclusion regarding children’s deaths • Colorado Bureau of Investigation: Report of Investigation • No. 45 bullet casings located inside the truck • Different from bullets issued by Mr. Gonzales’ gun • No attempt by CRPD to identify those metal fragments in vehicle • Multiple requests by Ms. Gonzales for further information were denied

40. Actual Cause of Children’s Deaths • Gun shot wounds at multiple angles • Coroners Report of Rebecca Gonzales • Coroners Report of Katheryn Gonzales • Merits Brief suggests that findings in Coroners report are inconsistent with Colorado law enforcement’s official cause of death, that Mr. Gonzales shot the girls at close range in the vehicle. • Subsequent requests for information by Ms. Gonzales were unfulfilled

41. Eye Witness Testimony • Helen Pipes • Lived in an apartment near the police station • Ellen Eloise Walls • As well as her mother-in-law Jacqueline Regan • Rosemary Young • On the phone with CRPD during shootout

42. Specific Allegations • Jessica Gonzales alleges that the United States violated the following provisions of the American Declaration: • Article I – right to life and to be free from inhumane treatment • Article II – right to equality/freedom from discrimination • Article IV – right to truth • Article V and VI – right to family life and protection • Article VII- right to special protection for mothers and children • Article XVIII –right to resort to courts • Article XXIV- right to due process of law and an adequate and effective remedy

43. Relief Prayed for by Petition • Commission decree that the United States violated its ratified international agreements • Given that the Commission does not have the power to force action on the United States, what effect do you think this declaration would have on the moral and political standing of the United States in the international arena? • Does President Obama present a different image of U.S. participation in international law? • Do you believe he will be able to follow through with a multilateral strategy?

44. Recommended Remedies • If the Commission finds for Jessica Gonzales, they will issue a recommendation that the U.S. provide certain remedies • Jessica Gonzales and her legal team suggest: • Individual relief • Compensation • Investigation into her children’s deaths • Legal and programmatic reform to comport with international human rights law

45. Legal and Programmatic Reform • The Commission should: • Authorize the Special Rapporteurship on the Rights of Women to conduct an on-site visit to Colorado to assess the efficacy of measures adopted by the state to address domestic violence and to protect victims. • The Rapporteur should consider whether these measures adhere to the due diligence standards prescribed under the American Declaration, as interpreted in light of universal and regional human rights law. • Request the Inter-American Court to deliver an advisory opinion on the nature and full extent of States’ obligations under both the American Declaration on the Rights and Duties of Man and the American Convention to address violence against women, in light of the Convention of Belém do Pará, CEDAW, and other human rights instruments. • Recommend that the United States ratify, without reservation, the American Convention on Human Rights, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (“Convention of Belém do Pará”), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and its Optional Protocol. • The United States should: • Publicly recognize that its current laws, policies, and practices too often condone domestic violence, promote discriminatory treatment of victims, and have a particularly detrimental effect on poor, minority, and immigrant women.

46. Legal and Programmatic Reform Cont. • The United States should take meaningful steps to rectify this situation by: • Sending an unequivocal message that it is a national priority to curb violence against women and protect women and children from acts of domestic violence. • Initiating public education campaigns that condemn violence in the home; programs to educate men and women, boys and girls, about women’s human rights; and initiatives that promote domestic violence survivors’ knowledge of their rights and the legal remedies available to them. • Promote and protect the human rights of women and children and exercise due diligence in responding to domestic violence, including inter alia • Improved Domestic Violence Restraining Orders and Police Powers • Providing guidance on how to make restraining orders more specific, to better secure the safety of victims. I • Protecting victims and their children by ensuring that the terms of domestic violence restraining orders are effectively enforced in accordance with state law by establishing meaningful standards for enforcement and imposing consequences for a failure to enforce. • Training for Police and Judges and Prosecutors • Requiring and mainstreaming the provision of effective annual domestic violence training sessions to all entities that provide direct governmental services, including the legal, judicial, law enforcement, health, and education fields. • Legislative Reform • Enacting and, where necessary, reinforcing or amending domestic legislation, at the federal and state level, in accordance with international standards, including measures that recognize that it is a State priority and obligation to protect women and children from domestic violence, measures that further develop and strengthen support services, and measures that ensure that remedies are available to domestic violence victims, at the federal and state level, where state actors have failed to respond with due diligence. • Respect for Victims • i. Providing access to adequate redress – financial and otherwise – for victims, including, inter alia, redress for injuries, physical and psychological, stemming from the United States’ failure to address domestic violence appropriately. • Establishing, strengthening, and facilitating support services to respond to the needs of individuals threatened by or experiencing domestic violence, including: safe and adequate shelter, including transitional and long-term housing; financial assistance; legal assistance; employment; psychological and health care services; and child care. • Ensuring the rights of victims to access criminal and civil remedies, including financial compensation, rehabilitation, and support services.

47. Legal and Programmatic Reform Cont. • Adopting a Holistic Strategy in Responding to Domestic Violence • integrating efforts to prevent and reduce violence against women into a wide range of program areas, including urban planning, immigration, poverty reduction, HIV/AIDS, and reproductive health. • Requiring police departments to enter into collaborations with domestic violence, women's and children's rights advocates to develop initiatives to address domestic violence that are tailored to the needs of particular communities, including domestic violence arrest policies that protect the safety of victims of domestic violence and their families. • Strengthening governmental response to domestic violence by facilitating regular meetings between federal and state officials; educating the 50 states about the United States’ obligations to victims and their children under international human rights law; assisting states and localities in developing pilot programs and in “best practice” sharing; and setting quantifiable benchmarks and timetables for state compliance with international obligations. • Adopt affirmative measures to effectively address the structural causes of domestic violence – including poverty, gender and race discrimination, and underdevelopment – and to strengthen efforts to empower women, including inter alia: • Holding up to public scrutiny and eliminating those institutional and cultural attitudes that foster, justify, or tolerate private and state violence against women; • Engaging in intensified efforts to develop and/or utilize effective legislative, educational, social, and other measures aimed at the prevention of violence; and • Taking steps to ensure equal remuneration for equal work and increased job opportunities and housing options for women; supporting affirmative action programs to promote women’s education, development, and leadership; facilitating increased access by women to economic resources such as credit, land, and savings. • Provide funding for further research to strengthen domestic violence prevention by: • Providing full funding for federal and state programs that seek to eradicate violence against women, including, but not limited to fully funding those programs authorized under the Violence Against Women Act (VAWA) and the Office on Violence against Women (OVW). • Instituting effective mechanisms employing methodologically sound strategies to measure the success of programs funded under domestic violence prevention initiatives (including the Violence Against Women Act) and making this analysis available for public review. • Ensuring meaningful oversight of grantees funded through domestic violence prevention initiatives (including the Violence Against Women Act). Overseers should include members of both government and civil society.

48. Inter American System as an Avenue for Change • KCFR (Colorado Local Public Radio) Broadcast October 22, 2007 • Little known and little used system by U.S. lawyers and advocates • Widely used by other OAS member States • Do you think the Inter American system can be an effective forum for public interest lawyers in the United States?

49. Political Effect of International Campaign • International Violence Against Women Act • Violence Against Women Caucus at the U.N. Committee on the Elimination of Racial Discrimination

50. Personal Effect of International Campaign • “True catharsis” for Jessica Gonzales • Jessica Gonzales v. United States of America pending documentary • jessicagonzalesvsunitedstates.com • Facebook page for supporters • www.facebook.com/pages/Jessica-Gonzales-vs-The-United-States-of-America/