It was "Poor Joshua!" then and will it now be "Poor Rebecca, Katheryn, Leslie and Jessica"?

It is reported that Chief Justice Rehnquist will be back on the bench on Monday, when arguments are heard in Town of Castle Rock, CO v. Gonzales, No. 04-278. Is this the best time for the Chief Justice to be back on the bench, to defend his earlier decision in DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989), the one memorable for Justice Blackmun's heart wrenching dissent in which he wrote "Poor Joshua!" - in reference to the child that the Court found had no substantive due process right to protection from private violence.

Castle Rock is a tragic and shocking story of police ineptitude and indifference, one resulting in the murder of three minor girls, Rebecca, Katheryn, and Leslie Gonzales, killed by their own father. If you want some good reading on Castle Rock, over at Crime and Federalism Norm Pattis has written about it here, and Mike has followed up here and here. And over at SCOTUSblog there's an excellent post by Steven Wu here. The ACLU has reported on the case here.

Behind all the legalese, what is truly at issue is the fear that municipalities will be held accountable for money damages for acts of private violence. In Puerto Rico there are no jury trials in civil cases in the Commonwealth Courts. Damages amounts handed down by judges tend to be stingy. Thus, the opportunity to get the cases into federal court is of great importance to plaintiffs in the shoes of Jessica Gonzales, respondent in Castle Rock.

The Merits Briefs:

• Brief for Petitioner Town of Castle Rock, Colorado
• Brief for Respondent Jessica Gonzales
• Reply Brief for Petitioner Town of Castle Rock, Colorado
• Amicus Brief for the United States in Support of Petitioner
• Amicus Brief National Network to End Domestic Violence, et al.
• Amicus Brief of Peggy Kerns
  
• Amicus Brief for ACLU, et al.
• Amicus Brief for The National Association of Women Lawyers and The National Crime Victim Bar Association in Support of Respondent
  

The Tenth Circuit's panel opinion, Gonzales v. City of Castle Rock, 307 F.3d 1258 (10th Cir. 2002) is here, and the en banc opinion Gonzalez v. City of Castle Rock, 366 F.3d 1093 (10th Cir. 2004) is here (must scroll down a bit).

The Tenth Circuit got things right. Let's see if the Supreme Court can do the right thing this time around. I believe that this case is clearly distinguishable from DeShaney and that the Court will not have to overrule it for respondent to prevail, as she should.

There's a good article in The National Law Journal - March 9, 2005 on Castle Rock - Supreme Court to Weigh in on Due Process and Domestic Violence – Justices to Decide if Police are Liable, by Marcia Coyle. Thanks to Crime and Federalism for the link. The article has some good observations from Section 1983 guru Sheldon H. Nahmod, whose first ed. (when it was still a single volume) of Civil Rights and Civil Liberties Litigation - The Law of Section 1983 (now in its 4th edition) served as my bible when I worked at the Commonwealth of Puerto Rico Department of Justice - Federal Litigation Division.