Personal Injury & Torts
Jun. 18, 2002
Equally Unprotected
SAN FRANCISCO - Claire Joyce Tempongko never met Maria Teresa Macias, but the two domestic violence murder victims have a lot in common in court.
Lawyers for Sonoma County's Macias and for San Francisco's Tempongko have developed parallel equal protection claims in separate federal civil rights lawsuits over allegations that official blunders led to the women's deaths.
The two suits seek to hold law enforcement officials liable for failing to protect minority women despite their calls for help in enforcing laws and restraining orders against their batterers.
A jury trial in the Macias case begins this morning in San Francisco with opening arguments before U.S. District Judge Susan Illston. The named plaintiff is the Sonoma County sheriff, Mark Ihde. The plaintiffs seek $15 million. Estate of Macias v. Ihde, C96-3658SI
No one will be watching more closely than lawyers in the Tempongko matter, filed on behalf of the dead woman's mother and children. That suit is in its early stages. Tempongko v. San Francisco, C01-3927SBA.
"I'm following every move," said the Tempongko plaintiffs' attorney, Khaldoun A. Baghdadi, of Walkup Melodia Kelly & Echeverria in San Francisco. "A lot of this involves issues of first impression, and there is no real road map."
Baghdadi is handling the case with Walkup Melodia name partner Michael A. Kelly. The firm is well practiced in police procedure matters, including its representation of the family of Sheila Detoy, a teen-ager shot to death by San Francisco police in 1998 during a drug arrest. That case settled for $505,000 for the family.
"From simple things like jury instructions to the very nature of this equal protection claim, we're very interested in seeing how things play out and how the Macias jury reacts," Baghdadi said last week.
Success with the equal protection argument will force new accountability on law enforcement, lawyers say.
"A jury trial in a case like this is another brick in the wall that will let police agencies realize they're being watched by courts and juries," said the lead plaintiffs lawyer in Macias, Richard A. Seltzer, of Oakland's Seltzer & Cody. "That moves the matter beyond police self-regulation."
Second chair in Macias is Dennis Cunningham, the San Francisco sole practitioner who last week won a $4.4 million verdict in the Earth First civil rights trial.
Michael D. Senneff, of Santa Rosa's Senneff Freeman & Bluestone, is handling the defense. He's under the direction of Sonoma County Counsel Steven Woodside.
"You'll see a vigorous argument" on allegations that Macias got substandard treatment from sheriffs' deputies, Woodside said in an earlier interview. "Law enforcement believes their job is to protect people here of all races and genders. There was no indifference."
Part of Baghdadi's intense study of the case that is preceding his to trial involved a look at the Macias defense.
"I got a read on the case from Senneff Freeman," he said. "They were very gracious. I know what Rick's going to say for the plaintiffs, but I'm even more eager to see how Macias is defended."
A positive outcome for Macias' and Tempongko's heirs will energize domestic violence victims' advocates seeking to impress officials with the importance of enforcing restraining orders against batterers, legal observers said.
"Just the fact that we've gotten this case before a jury is significant," Seltzer said as jury selection got under way last week. "Most are disposed of on motions to dismiss or on motions for summary judgment."
Macias, filed in 1996 after the victim was gunned down on a Sonoma street by her estranged husband, was dismissed on summary judgment by U.S. District Judge D. Lowell Jensen but revived in 2000 by the 9th U.S. Circuit Court of Appeals.
The suit asserts that Macias' death was the result of a Sonoma County policy that discriminates against women, victims of domestic violence and Hispanics. Her documented pleas for official help went largely unanswered before she was shot to death and her mother wounded by former husband Avelino Macias on April 16, 1996, the suit claims. Avelino Macias took his own life.
The appellate panel said Jensen mistakenly believed the alleged constitutional deprivation was Macias' murder, which led him wrongly to let the Sonoma County defendants off the hook on due process grounds.
Jensen followed the U.S. Supreme Court's lead in DeShaney v. County of Winnebago, 489 U.S. 189 (1989). That case has made it difficult for battered domestic partners to prevail in suits against protective agencies because it holds the agencies cannot be liable for the criminal acts of private citizens.
But the 9th Circuit panel discerned a different cause of action in the Macias estate's suit. It identified the issue as whether the county's conduct deprived Macias of equal police protection under the 14th Amendment. Estate of Macias v. Ihde, 219 F.3d 1018 (2000).
Jensen later recused himself and was replaced by Illston, who denied Sonoma County's renewed summary judgment motion in March, setting the stage for trial.
Similarly, defense lawyers at the San Francisco city attorney's office have filed a motion to dismiss the Tempongko suit.
That action was filed last year after Tempongko was fatally stabbed by her former boyfriend, Tari Ramirez, who had previously been arrested and charged with numerous felonies related to attacks on Tempongko.
Contrary to San Francisco police policies and a city ordinance, the suit alleges, authorities did not link new incidents to the prior attacks, and Ramirez was cited but not taken into custody for making terrorist threats against Tempongko on Sept. 7, 2000. That left him free to murder her a few weeks later, on Oct. 22, 2000. Ramirez remains at large and is believed to have fled to Mexico.
In her May 28 motion for judgment on the pleadings, Deputy City Attorney Cheryl Adams cited DeShaney, just as the Macias defendants did, to argue the police had no constitutional duty to protect Tempongko from harm.
"Plaintiffs' grief is entirely understandable," Adams wrote. "But, the law does not support a cause of action against the city for failing to prevent the criminal act of a third party."
Adams declined to comment for this story. Her motion also faults the complaint for listing as plaintiffs Tempongko's relatives instead of her estate. "Constitutional rights are personal and cannot be vicariously asserted," Adams wrote.
Baghdadi hopes U.S. District Judge Saundra Brown Armstrong of Oakland will follow the 9th Circuit's reasoning in Macias and let his case survive the pleading stage.
"A lot of defendants view these lawsuits as actions for negligence, relying on common law and Government Code immunities that afford protection for the wrongful conduct of third parties," he said. "They simply fail to recognize the denial of equal protection rights."
Macias and Tempongko are not based on entirely novel theories.
In Brown v. Grabowski, 922 F.2d 1097 (1991), for example, the 3rd U.S. Circuit Court of Appeals ruled in favor of a police officer's conduct in a domestic violence death investigation on the grounds that a reasonable officer in 1985 would not have known that he was violating the 14th Amendment.
But times have changed. Baghdadi and Seltzer believe that more recent decisions - and improved police practices training - will undercut an ignorance defense in cases in 2002.
"Presenting our case in a federal civil rights context will force the defense and the jury to look at constitutional violations in the system as a whole," Baghdadi said.
"We want to gear our argument toward a focus on how domestic violence laws are being administered, rather than on singular instances of police misconduct."
That wish will be a reality in the Macias trial, which may serve as a tutorial on best police practices in domestic abuse cases.
When Illston denied Sonoma County's renewed summary judgment motion, she also opened the door for a wide-ranging courtroom look at exactly how domestic violence incidents are handled by the sheriff's office.
Illston ruled admissible the testimony of expert witness Ann O'Dell, a retired San Diego police officer who advises the California District Attorneys Association on domestic violence issues.
O'Dell's lengthy pretrial declaration examines every recorded instance of Macias' interaction with law enforcement.
She wrote that the key to deterring violent abusers is to hold them accountable and to compel them into treatment from the start. Laws exist for that purpose, she pointed out.
Her conclusion: "Had the Sonoma County Sheriff's Department followed and observed the State of California Penal Code and its own General Orders, it would have arrested Avelino Macias on numerous occasions.
"As a result, more likely than not he would have been in jail or on probation and in some form of an intensive treatment program long before Maria Teresa was murdered."
John Roemer
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