Macias Lawsuit Text as Filed,
(Second Amended Complaint)

RICHARD A. SELTZER (SBN 092317)
CHRISTOPHER T. CODY (SBN 111464)
ANN M. HANSEN (SBN 122951)
SELTZER & CODY
180 Grand Avenue, Suite 1300
Oakland, CA 94612
Telephone: 510-893-6622

DENNIS CUNNINGHAM (SBN 112910)
3163 Mission Street San Francisco, CA 94110
Telephone: 415-285-8091

Counsel for Plaintiffs

This is a complaint for money damages for the estate and children of the late Maria Teresa Rubio de Macias hereinafter "Maria Teresa") and for her mother, Sara Rubio Hernandez (hereinafter "Sara Hernandëz"). Sara Hernandez sues in her own right for the wrongful death of her daughter and as legal guardian of the minor children, in the wake of Maria Teresa's murder by her estranged husband, who then killed himself, on April 15, 1996, in Sonoma County, California.

Plaintiffs Juan Macias, Claudia Macias, and Avelino Macias, Jr., minors, are the children of Maria Teresa Maclas. They bring this action by and through their grandmother and guardian, Sara Hernandez, to recover general and special damages for the wrongful death caused by the Defendants. Minor Plaintiffs are also the successors in interest to the Estate of Maria Teresa Macias, which claims general damages, as set forth in paragraph 15.

Plaintiff Sara Hernandez is the mother of Maria Teresa Macias. She brings this action to recover for the wrongful death of her daughter.

The County of Sonoma is a defendant in its own right on Plaintiffs' claims pursuant to the unconstitutional policies, customs, and practices of the Sheriff's Department as well as those of the District Attorney's office, which poliies, customs, and practices caused the injuries complained of herein. On information and belief, the Sheriff and District Attorney of Sonoma County, and/or certain of their respective subordinates whose identities are as yet unknown, are policymakers for the County with authority to dictate the handling of domestic violence cases, and the policies of the Sheriff's office and District Attorney's office constitute official County policy.

At all relevant times, Defendant Mark Lopez was a sheriff's deputy employed by the County of Sonoma and was acting under color of state law.

Plaintiffs do not know the true names or capacities of the Defendants sued herein by the fictitious names of Doe 1 through Doe 100, inclusive, and therefore sue said Defendants by fictitious names. However, Plaintiffs are informed and believe and based thereon allege that said Defendants are other employees of the County of Sonoma and are in some way responsi- ble for the injuries suffered by Plaintiffs as herein alleged.

At all relevant times, the Defendants were each the agent, servant and employee of each other, and these Defendants were acting within the course and scope of said agency and employment with the knowledge and consent of said employer and principal.

Plaintiffs will show that certain unconstitutional policies, customs and practices of the defendant Sonoma County Sheriff's Department (hereinafter "Sheriff's Department"), and the acts and omissions of individual deputies and supervisors including Sheriff Ihde, and other unknown named deputies sued herein as Does, and certain unconstitutional policies, customs and practices of the District Attorney's office, and the acts and omissions of individual assistant district attorneys and supervisors, and other unknown employees sued herein as Does, resulted in the failure to respond to Maria Teresa's reports that her estranged husband was violating restraining orders and abusing her and their children, or otherwise stop him from his relentless pattern of abuse, stalking, intimidation, and violence toward Maria Teresa. The Defendants in fact affirmatively increased the risk that she would be a victim of serious criminal violence, causing Maria Teresa to be deprived of her life and the enjoyment thereof, and to suffer substantial injury and loss in the months leading up to the murder; as well as caused Plaintiff Sara Hernandez to incur damages resulting from her daughter's wrongful death; and caused the minor children to be deprived of the care and comfort of their mother by virtue of her wrongful death, all in violation of the right to Equal Protection of Laws under the United States Constitution and related provisions of state law.

The Plaintiffs allege that some of the unconstitu tional policies, customs and practices which caused Plaintiffs' damages were part of long-standing, pervasive unwritten policies, customs and practices of the Sonoma County Sheriff's Office and the District Attorney's office of unconstitutional discrimination against women and, in particular, a thoroughgoing institutional indifference to complaints, and victims, of gender-based violence against women. As a result, violence against women in Sonoma County flourishes while women's rights are restricted, there are fewer arrests and prosecutions in Sonoma County in cases of gender-based violence against women than in other cases of violence, and many women live in fear without a viable remedy.

In addition, Plaintiffs' damages were caused by long-standing, pervasive unwritten policies, customs and practices of the Sheriff's Department and the District Attorney's office of denying equal protection of the law to victims of domestic violence, treating these kinds of crimes different than other violent crime without any rational basis for this classification system.

In addition, Plaintiffs' damages were caused by a pervasive discriminatory attitude within the Sheriff's Department in general, and of certain personnel within the Sheriff's Department in particular, as well as within the District Attorney's office, towards Latinos.

The named Defendants in complicity with the Sonoma County District Attorney's Office, with the knowledge and tacit approval of the Sonoma County Board of Supervisors, have maintained a pattern of "dumping" case after case of serious gender-based violence against women, and of domestic violence.

The Sonoma County Sheriff's Department and its defendant employees discriminate against women in all aspects of their work: in hiring and employment, in dealing with complaints of sexual harassment of women employees, in responding to reports and complaints of rape and sexual assault, and complaints of domestic violence. In particular, Defendants have ignored clearly-established state and federal constitutional standards1 explicit statutory mandates, and written policy objectives with which they had agreed to comply, and instead have followed a practice of prejudice and discrimination which have resulted in routinely harmful and illegal acts and omissions by deputies and supervisory staff in their official 19 dealings with women.

Sheriff Ihde, and his department top command sued herein as Does, have failed and refused to require non-discriminatory attitudes and behavior toward women, and victims of gender-based violence against women in particular, and victins of domestic violence generally by deputies and their supervisors, and to require deputies and their supervisors to follow clearly-established laws, Community Task Force on Violence Against Women recommendations, and current appropriate standards of conduct and action in dealing with victims of gender-based violence and domestic violence in general. As a result, Plaintiffs are informed of many recent cases in which women reasonably seeking law enforcement help and protection from gender-based violence and domestic violence in general have been discouraged from filing complaints against their perpetrators, deliberately misled about laws, available remedies, and sources of help, dissuaded from contacting support groups, forced to make repeated calls in order to get any law enforcement response at all, and, in general, actively blocked, impaired and dismissed in their attempts to find access to justice. As a further result, women who are victims of gender-based crimes frequently become discouraged and abandon their efforts to obtain help.

Plaintiffs are informed and believe and based thereon allege that the discrimination, bias, and lack of law enforcement response which women suffer in cases involving violence against them is even worse where the woman is also a Latina, as the decedent Maria Teresa was in this case. There exists a pervasive policy, custom and practice of harassment and discrimination within the Sheriff's Department against the Latino communities in Sonoma County.

Plaintiffs are informed and believe and based thereon allege that the District Attorney's Office has a policy and custom of discriminating against women in general, Latinas in particular, and domestic violence victims in par ticular, in its handling of reports and complaints of rape and sexual assault, and complaints of domestic violence. In par ticular, the District Attorney's office has followed a practice of discrimination which has resulted in their failure and refusal to prosecute reports of rape, sexual assault and other forms of domestic violence.

Plaintiffs are informed and believe and based thereon allege that the District Attorney's office has been deliberately indifferent to its obligations and therefore has failed and refused to supervise and/or train its employees in the handling of cases involving gender-based violence against women, and victims of domestic violence, and to require its employees to follow proper procedures in dealing with police reports of victims-of gender-based violence and domestic violence in general. As a result, women who are victims of gender-based crimes frequently become discouraged and abandon 1their efforts to obtain help.

Plaintiffs are informed and believe and based thereon allege that the discrimination which women suffer in cases involving violence against them is even worse where the woman is also a Latina, as the decedent Maria Teresa was in this case. There exists a pervasive policy, custom and practice of discrimination within the District Attorney's office against the Latino communities in Sonoma County.

Maria Teresa met Avelino Macias approximately 26 years ago in Mexico. Avelino was already living in the United States. They married in 1982 and later settled in Sonoma County. Avelino was a legal resident of the United States Maria Teresa was not. They had three children, Claudia, Juan and Avelino, Jr.

In or about March, 1995, after a long course of increasingly aggravated physical, emotional and sexual abuse of herself and her children by her husband, Avelino, Maria Teresa left her home with her children and entered a women's shelter in Ukiah, California. A report documenting Avelino's physical and sexual assaults and emotional abuse of her children was prepared on or about March 31, 1995. This report, which by law was forwarded to the Sonoma County Sheriff for 11 investigation, details continuous beatings of the children, forced sex with the children and her own and children's fear of Avelino. An interview with Teresa and the children in Ukiah by a cooperating Mendocino County Sheriff deputy provided corroboration of the report, including numerous accounts of child molestation, abuse and felony crimes.

On or about April 24, 1995, Maria Teresa filed a declaration with the Superior Court of California, County of Sonoma, which again detailed the assaults and molestation of her children and also described that she had been assaulted by Avelino when she sought to protect her children, that she had suffered severe physical abuse at his hands, that he had raped her and verbally abused her as well.

As a result of her charges of child abuse against Avelino, Maria Teresa was warned that she must keep Avelino away from their children or she would lose custody. A temporary restraining order was issued against Avelino by the Sonoma County Superior Court. Avelino returned to harass and threaten Maria Teresa, telling her that if she went back to court against him he would hurt her, her children and other family members, and report her to the Immigration and Naturalization Service (hereinafter "INS").

After Maria Teresa returned home with her children in May or June, 1995, Avelino, through mental and emotional abuse, physical intimidation and threats to report Maria Teresa to the INS, forced himself back into residing at Maria Teresa's home. Once in the home, he additionally threatened Maria Teresa that if she called the police against him, Child Protective Services (hereinafter "CPS") would take her children. In this way, he coerced her and blackmailed her into attempting to live as a family.

In June, 1995, CPS arranged to have the Defendant Sonoma County Sheriff's Department remove the children from Maria Teresa's custody because she was unable to protect the children from Avelino's violence and abuse. Despite this apparent recognition of the danger Avelino presented to Maria Teresa and the children, and their knowledge of his history of sexual assaults and other violence toward Maria Teresa, the children, and others, the Sheriff's Department did nothing to protect Maria Teresa and made no arrest of Avelino for any of the crimes they knew he had committed.

After the children were taken, Maria Teresa essen tially became a prisoner in her own home. Eventually, Plaintiff (Maria Teresa's mother) caine to Maria Teresa's assistance from Mexico and another daughter joined them as well. Together these women managed to evict Avelino from the home in or about the beginning of September, 1995; however, Avelino's aggressions continued during the next four months, and he repeatedly stalked, threatened, and sexually assaulted Maria Teresa. Avelino also began to openly boast that he would kill Maria Teresa and her mother.

On or about January 22, 1996, Maria Teresa returned to Family Court and obtained a second restraining order against Avelino. The declaration filed by Maria Teresa at this time details, among other things, Avelino's ominous threats to the safety and life of Maria Teresa, his stalking and threats to continue stalking her, his forcing her to masturbate him after having stalked her down, and his threats to kill the Plaintiff Sara Hernandez and other members of her family in Mexico. After being served with the restraining order, Avelino's stalking, harassment, and other criminal activity became worse, often occurring several times a day. He would phone Maria Teresa, he would come to her home and force his way into the home, he would tailgate her in his vehicle, he blocked her from leaving places, he would make lurid threats to her face, and he continued to threaten to kill Maria Teresa and her mother Sara Hernandez.

All of this conduct was reported to the Defendants in repeated calls and personal contacts. Maria Teresa provided sworn statements, interviews, eyewitnesses, and, later, a detailed, written chronology and other evidence, all documenting Avelino's crimes against her, and her helplessness and her fear.

On February 15, 1996, Avelino was present in court when the restraining order was made permanent for a full year. However, Avelino continued to ignore it with impunity. Emboldened, Avelino boasted to friends and others in the community that the deputy sheriffs were on his side, that the Sheriff protected him and not Maria Teresa. Avelino would torment Maria Teresa with the same gibe.

For more than a year prior to her murder on April 15, 1996, Maria Teresa was repeatedly dismissed, ignored, and even ridiculed by employees and supervisors of the Sheriff's Department and as a direct consequence, was placed in an increasingly dangerous and vulnerable position of harm from her estranged husband. Specifically, in just the last three months of her life, between January 15, 1996, and April 15, 1996, Maria Teresa made at least twenty different and distinct reports and pleas for help and protection to the Sheriff's Department. Many of these reports were witnessed by others. Some of these reports were supplemented by witnesses who independently described Avelino's conduct, including his threats to kill. These reports included descriptions of Avelino's continuous stalking, which is a felony when a restraining order is in effect or when the stalking is repeated. Often, Defendant deputies responded to Maria Teresa's home, and were shown the restraining order with its narrative of physical and sexual abuse, spoke with her in person at the Defendant's substation, or spoke on the phone with her. Despite the repeated proofs and warnings, the Defendants reacted with dismissiveness, disdain, and obstruction. Not only did various deputies, including Deputy Lopez, fail to fairly and properly respond to these repeated reports of crime against Maria Teresa, Defendant Lopez and other deputies actively undermined Maria Teresa and left her worse than they found her, by, among other things, coddling Avelino, failing to write reports, leaving the most critical information out of reports, failing to collect evidence, actively denigrating Maria Teresa's assertions, and even spreading the false rumor that she was crazy and on medication for psychological problems. Deputy Lopez' conduct as herein alleged was based on his discriminatory intent and prejudicial attitude toward women as evidence by the allegations as set forth above.

Defendant Mark Lopez was the deputy who was frequently called upon to respond to Maria Teresa's reports and requests for help, and he was the deputy most 'familiar" with the case.

In view of what was known of Deputy Lopez' personal history of conduct and attitudes detrimental to and discriminatory toward women, the assignment of Deputy Lopez to Maria Teresa's case, as well as other cases of violence against women, is further evidence of the Sheriff's Department's practice and custom of bias and discrimination against women and denial of equal protection of the law to victims of domestic violence.

Deputy Lopez has a history known by the Sheriff's 28 Department of discrimination and bias against women, and his attitude of discrimination resulted in his conduct alleged herein which ultimately was a cause of Maria Teresa's death. His animus against women has been demonstrated by the fact that Deputy Lopez has been subject to two court orders for domestic abuse and threatening behavior towards women. Defendant Lopez' former wife filed a declaration in August, 1992, chronicling the behaviors that caused her fears, including Defendant Lopez' being verbally and emotionally abusive and "always needing to feel in control of any and all situations." On July 6, 1992, Defendant Lopez was physically violent in the family home with the result that his wife moved from the home with the children for their protection. In March, 1993, he and his wife stipulated to a restraining order that they should stay 25 yards away from each other except when transferring custody of the children.

In April, 1995, Defendant Lopez' former domestic partner filed an application for a restraining order naming Defendant Lopez as the person to be restrained. The report states that Lopez made threats, including a threatening telephone call to her at work and a death threat left on her car, saying "You will die, bitch." She alleged she had separated from him over a year earlier due, inter alia, to his "violent nature."

Defendant Lopez also harassed his former domestic partner by filing a false stolen car report. In November, 1994, Defendant Lopez had signed a complaint with the Santa Rosa Police Department alleging that "his" car had been stolen. His domestic partner was actually the registered owner of the car. She reported that he told her about making the report and told her that, as a result, she would be pulled over at gunpoint. In order to prevent this intentional humiliation and harassment, she had to contact the police and show them the car registration showing she was the registered owner, after which the file was closed.

In or about March, 1996, one of Maria Teresa's calls to the Sheriff's Department was tape recorded. She called to report Avelino's having telephoned the apartment. The dispatcher contacted Defendant Lopez, who exasperatedly complained that Maria Teresa had just been there to request a report and that he can't file a report every time she calls. Lopez tells the dispatcher that he will get to it after he finishes some other things. His tone is contemptuous. Both Deputy Lopez' words and his tone evidence the intentional discrimination alleged herein.

After Maria Teresa's death, Defendant Lopez continued to exhibit an animus against women, particularly in the domestic violence context. In November, 1996, Cassandra Thomson reported violations of a restraining order by her domestic partner. Deputy Lopez responded to the call and told her that women lie about domestic violence and are the aggressors more often than men. Deputy Lopez also complained to her that his ex-wife had filed false court order violations against him. Deputy Lopez made several biased misrepresentations in his written report, refused to take important evidence of the restraining order violations, refused to speak with eyewitnesses, and omitted from his report the existence of key evidence and eyewitnesses and essential facts of the case. Ms. Thomson had to submit a supplemental report to correct the misrepresentations and omissions in Defendant Lopez' written report, including the fact that the restrained person's telephone number was logged on her caller ID box three times and that he had demanded that she accompany him to San Jose.

In a television interview, a Sonoma County Sheriff's Department spokesperson confirmed that Defendant Lopez has been the subject of internal investigations by the Sheriff's Department for misconduct, including misconduct related to his own history of threats and aggressiveness towards women. Plaintiffs are also informed and believe that he has a well-established history of discriminatory and disrespectful conduct in his dealings with the Latino community in the Sonoma Valley.

Deputy Lopez regularly ignored and dismissed Maria Teresa and regularly failed to confront Avelino although he had more than enough evidence and proof to arrest him on numerous occasions. Again, Deputy Lopez' conduct resulted from intentional discrimination as evidenced by his personal history of discriminatory attitudes and biases as alleged herein.

Plaintiffs are informed and believe and based thereon allege that on two or more occasions, police reports of Avelino's conduct were turned over to the District Attorney. On each occasion, the District Attorney's office failed and refused to properly process the reports, gather requisite information and prosecute Avelino f or his crimes when prosecution was warranted.

The Defendants' course of conduct towards Maria Teresa and Avelino affirmatively worsened the situation and increased the danger to Maria Teresa. Given a green light to continue with his crimes and threats against Maria Teresa and her family, including the open threat to kill, and emboldened by the apparent sympathy and "understanding" provided to him by the individual deputies he encountered without incident or arrest, Avelino's conduct escalated until April 15, 1996, when he tracked down Maria Teresa and the Plaintiff Sara Hernandez at a housecleaning job in the Town of Sonoma and proceeded to argue with Maria Teresa and eventually shoot her in the head and shoot Plaintiff Sara Hernandez as well before he turned the gun on himself and committed suicide.

Plaintiffs refer to and incorporate by reference the allegations of paragraphs 1 through 42 as though set forth in full herein.

At all relevant times, by their policies, customs, practices, actions and the conduct alleged in this Complaint, each of the Defendants intentionally discriminated against women, and, in particular, women who are victims of genderbased violence, and against Latinos.

In addition, at all relevant times herein, by their policies, customs, practices, actions and the conduct alleged in this Complaint, each of the Defendants denied equal protection of the law to victims of domestic violence. As a direct and proximate result of the conduct set 4orth above, the Plaintiffs were damaged as set forth in this Complaint.

WHEREFORE, Plaintiffs pray for judgment against Defendants and each of them as follows:

1. For general damages according to proof;
2. For special damages according to proof;
3. For reasonable attorneys fees pursuant to 42 U.S.C. § 1988;
4. For costs of suit; and
5. For such other and further relief as the Court may deem just and proper.

Dated: April 29, 1997 SELTZER & CODY

Richard A. Seltzer
Attorney for Plaintiffs

Plaintiffs hereby demand a jury trial in this matter.
Dated: April 29, 1997

Richard A. Seltzer
Attorney for Plaintiffs

STATE OF CALIFORNIA, COUNTY OF ALAMEDA:

I am a citizen of the United States. My business address is 180 Grand Avenue, Suite 1300, Oakland, California. I am employed in the County of Alameda, where this mailing occurs. I am over the age of 18 years, and not a party to the within cause. On the date set forth below, I served the foregoing document(s) described as:

PLAINTIFFS' SECOND AMENDED COMPLAINT FOR VIOLATION OF CIVIL RIGHTS

on the following person(s) in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows:

Michael D. Senneff, Esquire
SENNEFF, KELLY, KIMELMAN & BEACH
50 Old Courthouse Square
P.O. Box 3729
Santa Rosa, CA 95402

[ X ] (BY MAIL) I am readily familiar with my firm's practice for collection and processing of correspondence for mailing with the United States Postal Service, towit, that correspondence will be deposited with the United States Postal Services this same day in the ordinary course of business. I sealed said envelope and placed it for collection and mailing on April 30, 1997, following ordinary business practices.

[ ]BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand this date to the offices of the addressee(s).

[ ](BY FEDERAL EXPRESS) I caused such envelope to be delivered to Federal Express for overnight courier service to the office(s) of the addressee(s).

[ ](BY FACSIMILE) I caused such document to be processed via Facsimile, directed to the above-listed party(ies) using their Facsimile number(s).

[ ](STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

[ ](FEDERAL) I declare under penalty of perjury under the laws of the United States of America that the above is true and correct.

Executed on April 30, 1997,
at Oakland, California.
// Mary Back Ruiz

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