U. Miami lawyers from our new Human Rights Clinic won a major moral victory for their client Jennifer Lenahan (formerly formerly Jessica Gonzales) in a decision announced today July 21, 2011 by the Inter-American Commission on Human Rights, Jessica Lenahan (Gonzales) v. United States. Ms. Lenahan got nothing from the US Supreme Court in 2005, losing big in the famous Castle Rock v. Gonzales case, an occasion in which the Supreme Court (per Justice Scalia) famously held that Ms. Gonzales (as she then was) did not have an enforceable Due Process Clause interest in police enforcement of a restraining order against her husband even when the police had probable cause to believe the order had been violated. In the event, despite her telephoned pleas, and the fact that violation of the restraining order was a crime under Colorado law, the Castle Rock, Colorado police did nothing — and Ms. Lenahan’s husband murdered her three daughters.
In contrast, the IACHR said today that the US authorities’ pattern of insufficient attention to domestic violence and violence against women, combined with the failure to react in this case, violated US obligations:
[T]he Commission holds that the systemic failure of the United States to offer a coordinated and effective response to protect Jessica Lenahan and her daughters from domestic violence, constituted an act of discrimination, a breach of their obligation not to discriminate, and a violation of their right to equality before the law under Article II of the American Declaration. The Commission also finds that the State failure to undertake reasonable measures to protect the life of Leslie, Katheryn and Rebecca Gonzales, and that this failure constituted a violation of their right to life established in Article I of the American Declaration, in relation to their right to special protection contained in Article VII of the American Declaration. (¶ 170)
Congratulations to Carrie Bettinger-Lopez, our students from the Clinic, and all the other lawyers from around the country involved in this case.
Here’s part of the IACHR’s unofficial summary of the decision:
The restraining order was the only means available to Jessica Lenahan at the state level to protect herself and her children in a context of domestic violence, and the police did not effectively enforce it. The state apparatus was not duly organized, coordinated, and ready to protect these victims from domestic violence by adequately and effectively implementing the restraining order. These failures to protect constituted a form of discrimination in violation of the American Declaration, since they took place in a context where there has been a historical problem with the enforcement of protection orders; a problem that has disproportionately affected women since they constitute the majority of the restraining order holders.
The Commission established that the State did not duly investigate the complaints presented by Jessica Lenahan before the death of her daughters. The State also failed to investigate the circumstances of their deaths once their bodies were found. Consequently, their mother and their family live with this uncertainty, and the law enforcement officers in charge of implementing the law have not been held accountable for failing to comply with their responsibilities.
The Commission encourages the United States to comply with the recommendations contained in the Merits Report, which include to conduct a serious, impartial and exhaustive investigation into systemic failures that took place related to the enforcement of Jessica Lenahan’s protection order, to reinforce through legislative measures the mandatory character of the protection orders and other precautionary measures to protect women from imminent acts of violence, and to create effective implementation mechanisms, among others.
A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this matter. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.
Here’s the text of the lawyers’ press release:
Landmark Human Rights Case Finds that Failure to Enforce a Restraining Order and Indifference to Domestic Violence Led to Daughters’ Deaths
In a landmark decision, an international tribunal has found the U.S. government responsible for human rights violations against a Colorado woman and her three deceased children who were victims of domestic violence.
Jessica Lenahan (Gonzales) v. United States is the first case brought by a domestic violence survivor against the U.S. before an international human rights body, the Inter-American Commission on Human Rights (IACHR). The IACHR ruling also sets forth comprehensive recommendations for changes to U.S. law and policy pertaining to domestic violence.
The case concerns a tragic 1999 incident in which police in Castle Rock, Colorado failed to respond to Jessica Lenahan’s repeated calls for help after her estranged husband, Simon Gonzales, kidnapped their three young children in violation of a domestic violence restraining order. Ten hours after Lenahan’s first call to the police, her husband drove up to the Castle Rock Police Department and began firing his gun at the police station. The police returned fire, killing Gonzales. Inside the truck, the police found the bodies of the three girls – Rebecca, Katheryn, and Leslie – who had been shot dead. Local authorities failed to conduct a proper investigation into the children’s deaths, resulting in questions about the cause, time, and place of their deaths that remain to this day.
“I have waited 12 years for justice, knowing in my heart that police inaction led to the tragic and untimely deaths of my three young daughters,” said Lenahan. “Today’s decision tells the world that the government violated my human rights by failing to protect me and my children from domestic violence.”
Lenahan is represented by the Human Rights Clinic at the University of Miami School of Law, the Columbia Law School Human Rights Clinic and the American Civil Liberties Union.
“The commission’s determination that the United States violated Ms. Lenahan’s and her children’s human rights by failing to ensure their protection from domestic violence has far-reaching implications,” said Professor Caroline Bettinger-Lopez, director of the Human Rights Clinic at the University of Miami School of Law. “As our country seeks to promote human rights of women and children around the world, we must also look at our own record here at home.”
The commission’s decision stands in stark contrast to the U.S. Supreme Court’s decision in Town of Castle Rock v. Jessica Gonzales (2005), where the justices ruled that Lenahan (then Gonzales) had no constitutional right to police protection, and that the failure of the police to enforce Lenahan’s order of protection was not unconstitutional. Lenahan then filed a petition against the U.S. before the IACHR, alleging violations of international human rights. “Now that the commission has appropriately found the police and the United States responsible for their appalling lack of action, it is critical that they be held accountable,” said Lenora Lapidus, director of the ACLU Women’s Rights Project. “We can no longer accept police departments’ failure to treat domestic violence seriously and to regard it as simply a private matter unworthy of serious police attention.”
Established in 1959, the Inter-American Commission on Human Rights is charged with promoting the observance of and respect for human rights throughout the Americas. The commission is expressly authorized to examine allegations of human rights violations by all 35 member-states of the Organization of American States, which includes the United States, and to investigate specific allegations of violations of Inter-American human rights treaties, declarations and other legal instruments.
“We know that the issue of violence against women is one that the Obama Administration cares deeply about,” said Peter Rosenblum, director of the Columbia Law School Human Rights Clinic. “We encourage the Administration to work with the appropriate state and local officials to address and adapt the Commission’s recommendations in a meaningful way.”
More information on this case can be found at:
www.aclu.org/human-rights-womens-rights/jessica-gonzales-v-usa;
www.law.miami.edu/hrc/hrc_gonzalez_usa.php;
www.law.columbia.edu/human-rights-institute/initiatives/interamerican/gonzales
Most of what I’ve heard so far about NAFTA 2.0 is either boring (everyone hates the new acronym for the the United States-Mexico-Canada Agreement; it doesn’t change much) or mildly bad (it forces an extension of already near-endless copyright terms on Canada). But here’s a small ray of sunshine, courtesy of Eric Goldman, Good News! USMCA (a/k/a NAFTA 2.0) Embraces Section 230-Like Internet Immunity.
