This report concerns a petition presented to the Inter-American Commission on Human Rights (hereinafter the “Commission” or “IACHR”) against the Government of the United States (hereinafter the “State” or the “United States”) on December 27, 2005, by Caroline Bettinger-Lopez, Emily J. Martin, Lenora Lapidus, Stephen Mcpherson Watt, and Ann Beeson, attorneys-at-law with the American Civil Liberties Union.1 The petition was presented on behalf of Ms. Jessica Lenahan, formerly Jessica Gonzales,2 and her deceased daughters Leslie (7), Katheryn (8) and Rebecca (10) Gonzales.
The claimants assert in their petition that the United States violated Articles I, II, V, VI, VII, IX, XVIII and XXIV of the American Declaration by failing to exercise due diligence to protect Jessica Lenahan and her daughters from acts of domestic violence perpetrated by the ex-husband of the former and the father of the latter, even though Ms. Lenahan held a restraining order against him. They specifically allege that the police failed to adequately respond to Jessica Lenahan’s repeated and urgent calls over several hours reporting that her estranged husband had taken their three minor daughters (ages 7, 8 and 10) in violation of the restraining order, and asking for help. The three girls were found shot to death in the back of their father’s truck after the exchange of gunfire that resulted in the death of their father. The petitioners further contend that the State never duly investigated and clarified the circumstances of the death of Jessica Lenahan’s daughters, and never provided her with an adequate remedy for the failures of the police. According to the petition, eleven years have passed and Jessica Lenahan still does not know the cause, time and place of her daughters’ death.
The United States recognizes that the murders of Jessica Lenahan’s daughters are “unmistakable tragedies.”3 The State, however, asserts that any petition must be assessed on its merits, based on the evidentiary record and a cognizable basis in the American Declaration. The State claims that its authorities responded as required by law, and that the facts alleged by the petitioners are not supported by the evidentiary record and the information available to the Castle Rock Police Department at the time the events occurred. The State moreover claims that the petitioners cite no provision of the American Declaration that imposes on the United States an affirmative duty, such as the exercise of due diligence, to prevent the commission of individual crimes by private actors, such as the tragic and criminal murders of Jessica Lenahan’s daughters.
In Report N° 52/07, adopted on July 24, 2007 during its 128th regular period of sessions, the Commission decided to admit the claims advanced by the petitioners under Articles I, II, V, VI, VII, XVIII and XXIV of the American Declaration, and to proceed with consideration of the merits of the petition. At the merits stage, the petitioners added to their allegations that the failures of the United States to conduct a thorough investigation into the circumstances surrounding Leslie, Katheryn and Rebecca’s deaths also breached Jessica Lenahan’s and her family’s right to truth in violation of Article IV of the American Declaration.
In the present report, having examined the evidence and arguments presented by the parties during the proceedings, the Commission concludes that the State failed to act with due diligence to protect Jessica Lenahan and Leslie, Katheryn and Rebecca Gonzales from domestic violence, which violated the State’s obligation not to discriminate and to provide for equal protection before the law under Article II of the American Declaration. The State also failed to undertake reasonable measures to protect the life of Leslie, Katheryn and Rebecca Gonzales in violation of their right to life under Article I of the American Declaration, in conjunction with their right to special protection as girl-children under Article VII of the American Declaration. Finally, the Commission finds that the State violated the right to judicial protection of Jessica Lenahan and her next-of kin, under Article XVIII of the American Declaration. The Commission does not consider that it has sufficient information to find violations of articles V and VI of the American Declaration. As to Articles XXIV and IV of the American Declaration, it considers the claims related to these articles to have been addressed under Article XVIII of the American Declaration.
II. PROCEEDINGS SUBSEQUENT TO ADMISSIBILITY REPORT Nº 52/07
In Report No. 52/07, adopted on July 24, 2007, the Commission declared Ms. Lenahan’s petition admissible in respect to Articles I, II, V, VI, VII, XVIII and XXIV of the American Declaration and decided to proceed with the analysis of the merits of the case.
Report Nº 52/07 was forwarded to the State and to the Petitioners by notes dated October 4, 2007. In the note to the petitioners, the Commission requested that they provide any additional observations they had within a period of two months, in accordance with Article 38(1) of the Commission’s Rules of Procedure. In both notes, the Commission placed itself at the disposal of the parties with a view to reaching a friendly settlement of the matter in accordance with Article 38(4) of its Rules, and requested that the parties inform the Commission as soon as possible whether they were interested in this offer. In a communication dated October 12, 2007, the petitioners informed the Commission that they were amenable to engaging in friendly settlement discussions with the United States, which the Commission forwarded to the State on January 30, 2008. By letter dated October 15, 2007, Ms. Araceli Martínez-Olguin from the American Civil Liberties Union requested that all communications from the Commission pertaining to this matter be sent to her as well as to Mr. Watt and Ms. Bettinger-Lopez at their respective addresses.
In a communication dated March 24, 2008, the petitioners submitted to the Commission their final observations on the merits of the matter. The Commission forwarded to the State these observations by letter dated March 26, 2008, with a request pursuant to Article 38 (1) of its Rules to present any additional observations regarding the merits within two months. In a communication dated March 24, 2008, the petitioners also requested a merits hearing before the Commission during its 132º period of sessions. By letter dated August 4, 2008, the petitioners reiterated their request for a merits hearing during the 133º period of sessions, which was granted by the Commission on September 22, 2008. In a communication dated October 16, 2008, the State forwarded to the Commission its merits observations on this matter, which were transmitted to the petitioners on October 21, 2008.
The petitioners submitted additional observations and documentation to the Commission on October 21 and 22, 2008; March 12 and July 16, 2009; and January 11, February 20, and June 5, 2010; communications which were all duly forwarded to the State.
On August 3, 2009, the Commission requested the State to submit the complete investigation files and all related documentation in reference to the death of Simon Gonzales and of Leslie, Katheryn and Rebecca Gonzales, within a period of one month.
The State submitted additional observations to the Commission on April 9, 2010, which were duly forwarded to the petitioners.
The Commission convened a merits hearing pertaining to this case during its 133º ordinary period of sessions on October 22, 2008 with the presence of both parties.
During the processing of this case, the IACHR has received several amicus curiae briefs, which were all duly forwarded to the parties. In a communication dated July 6, 2007, Katherine Caldwell and Andrew Rhys Davies, attorneys for the firm Allen & Overy LLP, submitted an amici curiae brief, on behalf of several organizations, entities and international and national networks dedicated to the protection of the rights of women and children.4 In a communication dated January 4, 2008, Jennifer Brown and Maya Raghu from Legal Momentum; David S. Ettinger and Mary-Christine Sungalia from Horvitz & Levy LLP; and various local, national and international women’s rights and human rights organizations,5 presented an amicus curiae brief. On October 15, 2008, the Commission received a supplemental amicus curiaebriefby Maya Raghu from Legal Momentum; David S. Ettinger and Mary-Christine Sungalia from Horvitz & Levy LLP; and various local, national and international women’s rights and human rights organizations.6
By letter dated October 20, 2008, Professor Rhonda Copelon presented an amicus curiae brief on behalf of the International Women’s Human Rights Law Clinic of the City University of New York School of Law, the Center for Constitutional Rights and Ms. Ayumi Kusafaka, Prof. Vahida Nainar, Andrew Fields and Jennifer Green. By letter dated October 17, 2008, William W. Oxley, Christopher Chaudoir, Phylipp Smaylovsly, Melanie D. Phillips, and Jonathan Roheim from Orrick, Herrington & Sutcliffe, LLP presented an amicus curiaebrief with various local, national and international women’s rights and human rights organizations as signatories.7
By communication dated October 17, 2008, Amy Myers, Elizabeth Keyes, and Morgan Lynn from Women Empowered against Violence (WEAVE) presented an amicus curiae brief. By communication dated October 17, 2008, Cristina Brandt-Young, Amanda Beltz, and Yisroel Schulman from the Domestic Violence Clinical Center of the New York Legal Assistance Group and Sarah M. Buel, Clinical Professor of Law of the University of Texas School of Law presented an amicus curiae brief with various various local, national and international women’s rights and human rights organizations.8
By communication dated October 10, 2008, the National Centre for Domestic Violence, Baker & McKenzie (Sydney), Freehills Foundation (Australia) and the Equal Justice Project (Auckland), represented by Lovells LLP, presented an amicus curiae brief in support of the petitioner’s arguments. By communication dated November 13, 2008, Lucy Simpson and Kirsten Matoy Carlson from the Indian Law Resource Center and Jacqueline Agtuca and Terri Henry from the Sacred Circle National Resource Center to End Violence Against Native Women9 presented an amicus curiae brief.
On April 11, 2011, the Commission also received a communication accrediting the University of Miami School of Law Human Rights Clinic as a co-petitioner, and Caroline Bettinger-Lopez as a representative of the Human Rights Clinic and lead counsel in the case. By communication dated April 18, 2011, Sandra Park from the Women’s Rights Project of the American Civil Liberties Union was also accredited as co-counsel in the case. On July 6, 2011, the Commission received an additional communication accrediting Peter Rosenblum as co-counsel in the case and as Director of the Human Rights Clinic of Columbia Law School.
III. POSITIONS OF THE PARTIES
Position of the Petitioners
The petitioners allege that Jessica Lenahan, of Native-American and Latin-American descent, lived in Castle Rock, Colorado and married Simon Gonzales in 1990.10 In 1996, Simon Gonzales allegedly began adopting abusive behavior towards Jessica Lenahan and their three daughters Leslie, Katheryn and Rebecca (ages 7, 8 and 10). In 1999, after he attempted to commit suicide, Jessica Lenahan filed for divorce and started living separately from him.
They allege that after Jessica Lenahan separated from Simon Gonzales, he continued displaying erratic and unpredictable behavior that harmed her and their daughters. Between January and May, 1999, Simon Gonzales had several run-ins with the Castle Rock Police Department (hereinafter “CRPD”), among these, for road rage while driving with his daughters, for two break-ins to Jessica Lenahan’s house, and for trespassing on private property and obstructing public officials at the CRPD station. The petitioners allege that by June 22, 1999, Simon Gonzales was a name that “the CRPD – a small police department in a small town – knew or should have known to be associated with domestic violence and erratic and reckless behavior.”11
Jessica Lenahan requested and obtained a restraining order from the Colorado Courts on May 21, 1999.12 The petitioners indicate that the temporary restraining order directed Simon Gonzales not to “molest or disturb the peace” of Jessica Lenahan or their children; excluded Simon Gonzales from the family home; and ordered him to “remain at least 100 yards away from this location at all times.”13 The petitioners affirm that the front page of the temporary restraining order noted in capital letters that the reserve side contained “important notices for restrained parties and law enforcement officials.”14 The reverse side of the temporary restraining order allegedly directed law enforcement officials as follows: “You shall use every reasonable means to enforce this restraining order….,” according to the requirements of Colorado’s mandatory arrest law.15 When the order was issued, the petitioners report that it was entered into the Colorado Bureau of Investigation’s central registry of restraining orders, which is a computerized central database registry that is accessible to any state or local enforcement agency connected to the Bureau, including the Castle Rock Police Department.16
Jessica Lenahan alleges that, despite the issuance of the temporary order, her former husband continued to terrorize her and the children. She called the CRPD to report this and other violations of the restraining order, but the police ignored most of her calls and in her words: “they would be dismissive of me, and they scolded me for calling them and asking for help.”17
On June 4, 1999, the state court made permanent the temporary restraining order, including slight changes such as granting Jessica Lenahan sole physical custody of the three girls and allowing Simon Gonzales occasional visitation or “parenting time.”18 The petitioners claim that, upon Jessica Lenahan’s request, the judge restricted Simon Gonzales’ weekly contact with the girls to one “mid-week dinner visit,” that Simon and Jessica Lenahan would previously arrange.19
The petitioners allege that, in Colorado, as in other states, a restraining order represents a judicial determination that any violation of its terms threatens the safety of the domestic violence victim. As with Colorado’s mandatory arrest law mentioned previously, restraining orders “are specifically meant to cabin police discretion in determining whether a threat exists in the face of evidence of such a violation.”20
Despite the existence of the restraining order, the petitioners claim that on Tuesday, June 22, 1999, Simon Gonzales abducted his three daughters and their friend from the street in front of Jessica Lenahan’s home. Simon Gonzales allegedly abducted his daughters in violation of the restraining order, since time for visitation had not been previously arranged with Jessica Lenahan. In response, over the next ten hours, Jessica Lenahan repeatedly contacted the CRPD to report the children missing, and to request the enforcement of her restraining order. According to the petition, the police continuously ignored her cries for help. During her conversations with various police officers from the CRPD, Jessica Lenahan clearly communicated that Simon Gonzales had abducted the children, in violation of a valid restraining order, that there was no pre-arranged dinner visit, and that she was concerned for the safety of her missing children.
The petition relates that Jessica Lenahan first called the police department on June 22nd, 1999, approximately at 5:50 p.m. seeking advice. During this conversation she communicated to the dispatcher that she did not know where her children were, that she thought perhaps her daughters had been taken by her ex-husband, and that this visit had not been pre-arranged as required by the restraining order. She also informed them that their friend Rebecca Robinson had also been taken. Around 7:40 p.m., Jessica Lenahan called the police department a second time noting that she held a restraining order against Simon Gonzales and that she was concerned over her children’s safety.
The petitioners claim that at approximately 7:50 p.m., two hours after Jessica Lenahan first called the Castle Rock Police Department, Officer Brink and Sergeant Ruisi arrived at her house. Jessica Lenahan allegedly showed both officers a copy of the restraining order, which expressly directed them to arrest Simon Gonzales upon violation of the order. Jessica Lenahan explained to the officers that the judge had specifically noted in the order that the dinner visit was to be “pre-arranged” by the parties, that Simon Gonzales’s normal visitation night was on Wednesday evenings, and that she had communicated to her former husband that he could not switch nights that week, since the girls had plans for their friend to sleep over.21 Officer Brink allegedly held the restraining order in his hands and glanced at it briefly, and then communicated to Jessica Lenahan that there was nothing he could do because the children were with their father. The Officers promised Jessica Lenahan that they would drive by Simon Gonzales’ apartment to see if he and the girls were there.
The petitioners claim that shortly after 8:30 p.m., Jessica Lenahan was able to reach Simon Gonzales by phone and learned that he was with the girls at an amusement park in Denver, approximately 40 minutes from Castle Rock. She also received an alarming call from Simon Gonzales’ girlfriend, Rosemary Young, asking questions about his mental health history, his capacity for harming himself or the children, and his access to firearms. Ms. Young also communicated that Simon Gonzales had threatened to drive off a cliff earlier that day.
After these calls, Jessica Lenahan became more alarmed and called the CRPD for a third time to communicate her concerns. The dispatcher allegedly communicated to Jessica Lenahan that an officer would be sent to her house, but the officer never arrived. Officer Brink did telephone Jessica Lenahan shortly thereafter, and she explained to him again that she had a restraining order, that it was “highly unusual,” “really weird,” and “wrong” for Simon Gonzales to have taken the girls to Denver on a weeknight, and that she was “so worried,” particularly because it was almost bedtime and the girls were still not home.
Jessica Lenahan allegedly called the CRPD a fourth and a fifth time before 10:00 p.m., and requested several actions from Officer Brink including a) that an officer be dispatched to locate Simon Gonzales and the children in Denver, and to call the Denver police; b) to put on a statewide All Points Bulletin22 for Simon Gonzales and the missing children; and c) to contact Rosemary Young. Officer Brink allegedly refused to perform any of these three actions and asked Jessica Lenahan to wait until 10:00 p.m. to see whether Simon Gonzales returned with the children. In light of police inaction in the face of her concerns, Jessica Lenahan alleges that:
I was shocked when they responded that there was nothing they could do because Denver was outside of their jurisdiction. I called back and begged them to put out a missing children alert or contact the Denver police, but they refused. The officer told me I needed to take this matter to divorce court and told me to call back if the children were not back home in a few hours. The officer said to me: “at least you know where the children are, they are with their father.” I felt totally confused and humiliated. I called the police again and again that night.23
Jessica Lenahan allegedly called the police department a sixth time around 10:00 p.m. to report that her children were still not home and again informed them about the restraining order. During the call, the dispatcher asked Jessica Lenahan to call back on a non-emergency line and scolded her stating that it was “a little ridiculous making us freak out and thinking the kids are gone.”24 Jessica Lenahan called again a seventh time at midnight to inform the CRPD that she was at her husband’s apartment, that no one was home and she feared that her husband had “run off with my girls.”25 The dispatcher told her that she would send an officer, but the officer never arrived.
Shortly thereafter, Jessica Lenahan drove to the CRPD where she met with Detective Ahlfinger, to whom she communicated again that she had a restraining order against Simon Gonzales, that she was afraid he had “lost it,” and that he might be suicidal. According to the petitioners, inaction and indifference persisted in the response of the police even after Jessica Lenahan went to the Castle Rock Police Department and filed an incident report. The police simply replied that the father of the children had the right to spend time with them, even though she repeatedly mentioned the restraining order against him and that no visitation time had been agreed upon. She was only advised to wait until 10:00 p.m., and when she called at that time, her pleas were dismissed, and she was again told to wait, until 12:00 a.m.
The petitioners allege that approximately ten hours after Jessica Lenahan’s first call to the police, Simon Gonzales drove up to and parked outside the police station at 3:15 a.m. on June 23, 1999, waited approximately 10-15 minutes, and then began shooting at the station. The police returned fire and shot and killed Simon Gonzales, and then discovered the bodies of Leslie, Katheryn and Rebecca in the back of Simon Gonzales’ truck, apparently having been shot to death. The petitioners indicate that Jessica Lenahan trusted that the police would take action, and had she known the police would not do anything to locate her daughters, she would have undertaken steps to find them herself and avoid the tragedy.
After hearing about the shooting from Rosemary Young, Jessica Lenahan drove to the police station.26 The petitioners allege that the officers refused to offer Jessica Lenahan any information on whether the girls were alive or not, and ignored her pleas to see the girls and identify them for about twelve hours. According to the petition, despite repeated pleas from the family, the deaths of Leslie, Katheryn and Rebecca Gonzales were never duly investigated by the State. Jessica Lenahan allegedly never learned any details of how, when and where her daughters died, their death certificates do not state this information, and therefore, she is still unable to include this information on their grave stones.27
The petitioners claim that, to this day, Jessica Lenahan does not know whether the numerous bullets found inside of their bodies came from Simon Gonzales’ gun or the guns of the police officers who fired upon the truck. She also alleges that she has never received any information as to why Simon Gonzales was approved to purchase a gun that night by the Federal Bureau of Investigations, since gun dealers cannot sell guns to individuals who are subject to a restraining order in the United States.
The petitioners claim that the investigations conducted by the authorities solely related to the shooting death of Simon Gonzales. According to them, these investigations summarily conclude that Simon Gonzales had murdered his children before the shootout at the CRPD station, yet provide little evidence to substantiate this conclusion. They claim that the evidence in these documents is insufficient to determine which bullets killed the Jessica Lenahan’s daughters; those of the CRPD, or those of Simon Gonzales.
The petitioners allege that Jessica Lenahan and her family remain deeply traumatized by the deaths of Leslie, Katheryn and Rebecca Gonzales. The petitioners indicate that their sense of loss has been aggravated by the failure of Colorado and federal authorities to adequately investigate these deaths and respond with the information the family seeks. As set forth in the declaration of Jessica Gonzales’ mother, Tina Rivera, the entire family has experienced great trauma and feels that closure to their tragedy will only come once questions surrounding the girls’ deaths are answered.28
The petitioners indicate that Jessica Lenahan filed suit in the United States District Court for the District of Colorado, a court of federal jurisdiction, alleging that the City of Castle Rock and several police officers had violated her rights under the Due Process Clause of the Fourteenth Amendment, claiming both substantive and procedural due process challenges. Firstly, in the realm of substantive due process, Jessica Lenahan argued that she and her daughters had a right to police protection against harm from her husband. In the realm of procedural due process, she argued that she possessed a protected property interest in the enforcement of the terms of her restraining order and that the Castle Rock police officers’ arbitrary denial of that entitlement without due process violated her rights. Jessica Lenahan also claimed that the City had failed to properly train its police officers in relation to the enforcement of restraining orders, and had a policy of “recklessly” disregarding the right to police protection created by such orders.
The District Court dismissed Jessica Lenahan’s case, and on appeal a panel of judges of the Third Circuit Court of Appeals affirmed in part and reserved in part. This finding was then affirmed in a rehearing before all of the judges of the appellate court (“en banc” review).
Jessica Lenahan’s case reached the Supreme Court, the highest court in the United States. On June 27, 2005, the Supreme Court rejected all of the claims presented by Jessica Lenahan, holding that her due process rights had not been violated. The Supreme Court held that despite Colorado’s mandatory arrest law and the express and mandatory terms of her restraining order, Jessica Lenahan had no personal entitlement to police enforcement of the order under the due process clause.
The petitioners claim that, under the American Declaration, the judiciary had the obligation to provide a remedy for the police officers’ failure to enforce the restraining order issued in favor of Jessica Lenahan in violation of state law and principles of international human rights law, which it failed to do. Moreover, the petitioners claim that the United States Supreme Court’s decision in Town of Castle Rock v. Gonzales leaves Jessica Lenahan and countless other domestic violence victims in the United States without a judicial remedy by which to hold the police accountable for their failures to protect domestic violence victims and their children.
Regarding federal avenues, the petitioners mention two previous decisions from the United States Supreme Court, which read together with Town of Castle Rock v. Gonzales, allegedly severely limit access to such avenues for victims of domestic violence perpetrated by private actors.29 In regards to potential state remedies and due process for domestic violence victims, the petitioners argue that a civil tort suit under Colorado law against either the Town of Castle Rock or the individual officers involved, although technically available to Jessica Lehanan, would have had no possibility of success due to the doctrine of sovereign immunity. In regards to administrative channels, the petitioners claim that they have thoroughly reviewed a variety of Castle Rock sources, but have not located any information pointing to mechanisms available to file administrative complaints against the CRPD or the Town of Castle Rock.
The petitioners finally highlight that domestic violence is a widespread and tolerated phenomenon in the United States that has a disproportionate impact on women and negative repercussions on their children. They maintain that the failings of the Castle Rock Police Department in this case are representative of a larger failure by the United States to exercise due diligence in response to the country’s domestic violence epidemic.30 The petitioners contend that Jessica Lenanan’s claims are paradigmatic of those of numerous domestic violence victims in the United States, the majority of which are women and children, who pertain disproportionately to racial and ethnic minorities and to low-income groups. Even though the prevalence, persistence and gravity of the issue are recognized at the state and federal levels, and certain legislative measures have been adopted to confront the problem, the historical response of police officers has been to treat it as a family and private matter of low priority, as compared to other crimes. According to the petitioners, the present case demonstrates that police departments and governments still regularly breach their duties to protect domestic violence victims by failing to enforce restraining orders.
The petitioners also recently presented information to the Commission pertaining to two legal developments that they consider pertinent to the Commission’s decision in this case. They highlight the 2009 sentence of the Inter-American Court of Human Rights in the case of Claudia Ivette Gonzales and Others v. Mexico,31 as a source of key principles of state responsibility in the context of violence against women.32 They particularly underscore the emphasis of this judgment on the obligation of States to act with due diligence towards acts of violence against women perpetrated by private actors. They also highlight that in April of 2009, the United States Department of Homeland Security articulated a new position recognizing the eligibility of foreign domestic violence victims for asylum in certain circumstances, thereby recognizing state responsibility to protect those victims.
The petitioners have presented their legal allegations under Articles I, II, IV, V, VI, VII, XVIII and XXIV of the American Declaration focusing on three main issues.33 First, they claim this case is about the United States’ affirmative obligations under the American Declaration to exercise due diligence to protect domestic violence victims who are beneficiaries of court issued restraining orders when the government has knowledge that those victims, and their children, are in danger. Second, they affirm that this case is about the government’s obligation to provide a remedy when it does not comply with its duty to protect. Third, they argue that this case is about a mother’s right to truth, information and answers from the State as to when, where and how her daughters died after they were abducted in violation of a domestic violence restraining order, and the police ignored her calls for help.