Category Archives: Law: Everything Else

Miami Human Rights Clinic Wins Big Women’s Rights Case Before Inter-American Commission on Human Rights

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

Posted in Law: Everything Else, Law: International Law | 2 Comments

Judge Jordan Nominated for 11th Circuit

President Obama announced today that he will nominate Judge Adalberto José Jordán, one of the leading lights of the local federal bench, to the 11th Circuit Court of Appeals. Among his other virtues, Judge Jordan graduated from UM Law in 1987, and clerked for Judge Thomas A. Clark of the 11th Circuit and then for Supreme Court Sandra Day O’Connor of the Supreme Court of the United States. Judge Jordan has been on the Southern District of Florida since 1999, and regularly teaches Federal Courts at UM.

This is a great appointment and I cannot imagine that it will be controversial. Judge Jordan is a real star. I hope the Senate actually gets around to confirming him — they’re pretty slow up there.

Posted in Law: Everything Else | 1 Comment

May 5: President Obama Announces Intent to Nominate Stephen Higginson to Serve on 5th Circuit

I don’t know how I missed this, but back on May 5th, President Obama announced his intent to nominate Stephen Higginson to the United States Court of Appeals for the Fifth Circuit.

“Stephen Higginson is a distinguished candidate for the Court of Appeals for the Fifth Circuit,” President Obama said. “Both his legal and academic credentials are impressive and his commitment to judicial integrity is unwavering. I am confident he will serve the American people with distinction.”

Stephen Higginson was born in Boston, Massachusetts. He attended Harvard College, where he received his A.B., summa cum laude, in 1983. After graduating from Harvard, Higginson attended Cambridge University in England, where he was a Harvard Scholar, earning a Masters in Philosophy in 1984. He then attended Yale Law School and obtained his J.D. in 1987. While in law school, Higginson was Editor-in-Chief of the Yale Law Journal.

After graduating from Yale Law School, Higginson served as a law clerk to the Honorable Patricia M. Wald of the United States Court of Appeals for the District of Columbia. The following year, from 1988 to 1989, Higginson served as a law clerk to the Honorable Byron R. White of the Supreme Court of the United States. He has been an Assistant United States Attorney since 1989, when he joined the Criminal Division in the District of Massachusetts. Since 1993, Higginson has served as an Assistant United States Attorney in the Eastern District of Louisiana, where he became the chief of appeals in 1995. As chief of appeals, Higginson has personally handled or supervised all criminal and civil appeals in the District, editing or writing more than 100 appellate briefs, and presenting numerous oral arguments before the United States Court of Appeals for the Fifth Circuit. Higginson has received the Department of Justice’s awards for superior and outstanding performance as a federal prosecutor. From 1997 to 1998, he served a six-month detail with the Department of State, working as deputy director of special projects for the Presidential Rule of Law Initiative.

Since 2004, Higginson has worked part-time in the United States Attorney’s Office, continuing to supervise the appellate section. That same year, he joined the full-time faculty at Loyola University New Orleans College of Law, becoming an Associate Professor of Law. Higginson teaches subjects including constitutional law, evidence, and criminal law.

I’ve known Steve since law school, where many people would have guessed he’d end up as a judge. He’ll be great — if the Senate ever confirms him.

Posted in Law: Everything Else | Leave a comment

Saudi Arabia Struggles to Join the 20th Century — Or Maybe the 18th

Early 20th Century:

Philippines – Pay Cut Rejected for Maids in Saudi Arabia

The Philippines has rejected an appeal from Saudi Arabia to cut by half a minimum-wage requirement for Filipino maids working in Saudi Arabia and will not be sending new domestic helpers until the dispute is resolved. Labor Secretary Rosalinda Baldoz said Friday that the Saudi government wanted the minimum monthly salary for Filipino maids lowered to $200 from $400.

18th Century — or earlier:

Female Saudi doctor appeals to top court for right to choose a husband.

Her father and brothers demanded that she marry a cousin, and, she says, beat her when she refused. For the past five years, she has lived in a shelter for battered women.

“I’m a surgeon. I’m responsible for people’s lives,” says Samia, now in her 40s. “I want to be responsible for my own life.”

So far, no dice. Oh, and her family gets her salary as a doctor meanwhile, which may be part of the reason they won’t let her marry who she likes.

Posted in Law: Everything Else | 1 Comment

Statutory Interpretation for Biologists

Tongue no doubt firmly in cheek, a biologist suggests that the Florida legislature accidentally legislated celibacy this week.

Among (many) other things, the statute in question says that

A person may not:

Knowingly engage in any sexual conduct or sexual contact with an animal;

(In its infinite wisdom, the Florida Legislature had never before the current moment gotten around to legislating on this important subject.)

People are animals, hence sex with humans must be banned, right?

Any blog post that makes fun of this year’s unusually dire Florida Legislature is OK with me, but I have to put in a few words for the law here, even at the price of spoiling the joke.

Yes, it’s time to roll out Nix v. Heddon, 149 U.S. 304 (1893), in which the Supreme Court of the United States had to decide whether at tomato is a fruit or a vegetable for purposes of the Tariff Act of March 3, 1883. There were good arguments for ‘fruit': after all, to a biologist, a tomato is clearly a fruit. But the Supreme Court made short work of that claim:

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.

In short, in figuring out legislative intent in the absence of a definition in the statute itself, courts look to the ordinary, common, meaning of words and not their scientific meaning unless something in the context suggests otherwise. In SB 344, it’s pretty clear that when the Florida legislature — yes, even this year’s model — says “animals” it is not referring to us nor even to itself.

Posted in Florida, Law: Everything Else, Law: The Supremes | 6 Comments

Does This Mean What I Think It Means?

I’m looking at the detailed terms and conditions for the three-year “notebook protection with ADH” plan offered by CDW on a laptop which in fact has a manufacturers’ three-year warranty for defects in workmanship.

The attraction of the extra warranty is that it purports to offer some protection from accidents.

Coverage begins on the date of product purchase and is inclusive of the manufacturer’s warranty, Coverage includes Accidental Damage from Handling, 100% of shipping cost reimbursement for depot service if required, Coverage provided by Service Net.

Since this is a gift for an accident-prone person, that sounds attractive.

But, hey, I’m a lawyer, right, so I’m going to read the detailed terms and conditions. And in there I find this amazing paragraph:

3. ACCIDENTAL DAMAGE FROM HANDLING (ADH): ADH pertains to You if listed on the reverse side of this Contract. Your Product is protected against accidental damage from handling. ADH will end prior to the expiration date when We have, as a result of service provided to You, replaced Your Product or incurred costs under this plan and all other coverage equal to the original purchase price of Your Product (as indicated on your invoice). ADH only covers operational or mechanical failure caused by an accident from handling and does not include protection against normal wear and tear, theft, misplacement, negligence, viruses, reckless, abusive, willful or intentional conduct associated with handling and use of the Product, cosmetic damage and/or other damage that does not affect the unit functionality, damage caused during shipment between You and Our service providers and any other limitations listed in the Limitations of Coverage section. Any resultant damage from this type of treatment is NOT covered by this ADH program. The use of this coverage requires an explanation of where and when the accident occurred as well as a detailed description of the actual event. Failure to provide this information will result in claim denial.

I’ve read this three times now, and I’m having some trouble figuring out what sort of accident this covers. What would be an “operational or mechanical failure caused by an accident from handling” that is other than the excluded “normal wear and tear, theft, misplacement, negligence, viruses, reckless, abusive, willful or intentional conduct”? The exclusions seem to cover both negligence and willfulness. What’s left?

Whatever it is, they seem to think people will pay $152 for it.

Posted in Law: Everything Else, Shopping | 7 Comments

Could it Really Be that You HAVE to be Stupid to be a Cop?

I very much hope that this news brief oversimplifies the issues in some way, because I would hate to think that — even if it’s legal — a police department was intentionally trying to avoid hiring smart applicants.

A Federal judge has dismissed a lawsuit by a man who was barred from the New London police force because he scored too high on an intelligence test.

In a ruling made public on Tuesday, Judge Peter C. Dorsey of the United States District Court in New Haven agreed that the plaintiff, Robert Jordan, was denied an opportunity to interview for a police job because of his high test scores. But he said that that did not mean Mr. Jordan was a victim of discrimination.

Judge Dorsey ruled that Mr. Jordan was not denied equal protection because the city of New London applied the same standard to everyone: anyone who scored too high was rejected.

via Judge Rules That Police Can Bar High I.Q. Scores.

And, yes, I do know there is more to smarts than IQ scores. But still.

PS. A little research suggests that this might actually be true. For example, Jordan v. City of New London, 2000 U.S. App. Lexis 22195 (August 23, 2000):

On March 16, 1996, plaintiff Robert Jordan and 500 other applicants underwent a written screening process conducted by the Law Enforcement Council of Southeastern Connecticut, Inc. (“LEC”), a coalition of fourteen cities and towns, for a position as a police officer. That testing process operated as an initial screen for participating police departments. The testing material included the Wonderlic Personnel Test and Scholastic Level Exam (“WPT”), which purports to measure cognitive ability. An accompanying manual listed recommended scores for various professions and cautioned that because overqualified candidates may soon become bored with unchallenging work and quit, “simply hiring the highest scoring employee can be self-defeating.” Jordan scored a 33 on the WPT, above the median for any listed occupation, and well over the normative median of 21 suggested for a police patrol officer.

In the fall of 1996, Jordan learned that the city of New London was interviewing candidates. Upon further inquiry, however, he learned from assistant city manager Keith Harrigan that he would not be interviewed because he “didn’t fit the profile.” Plaintiff, who was 46 years old, suspected age discrimination and filed an administrative complaint with the Connecticut Commission on Human Rights and Opportunities. The city responded that it removed Jordan from consideration because he scored a 33 on the WPT, and that to prevent frequent job turnover caused by hiring overqualified applicants the city only interviewed candidates who scored between 20 and 27.

The court is probably correct on the law, unless someone is going to try suggest that there’s some connection between IQ and a protected class (race, religion, sex, national origin, over-40-ness). But what a policy!

How long before some defense lawyer tries to use this policy to impeach a police witness?

Posted in Law: Everything Else | 3 Comments