But Police Get Tasered, Too!

A frustratingly common argument in favor of widespread Taser use goes as follows: "Mike, Tasers are not that big of a deal.  Every new officer in the police academy gets tased.  Are you saying we are torturing our own cadets?!"  Superficially, that's not a bad argument.  In reality, it's an embarrassingly weak one.

In training in the police academy when police get tased, there are EMTs on site. The floors are padded. Other officers are there to “spot” the officers.

On the streets, a motorist doesn't have an EMT to monitor him for heart conditions.  He has no one to prevent him from landing on the concrete, causing him to lose teeth.  In short, a real-life tasering is nothing like a police academy tasering.

This video should put the, "Cops get tased, too!" argument to bed:

Bryan v. McPherson to be Reviewed by the Supreme Court?

Orin Kerr suspects that Bryan v. McPherson, a Ninth Circuit opinion regarding the use of Tasers, might be reviewed by the Supreme Court.  I hope it's reviewed.

In Bryan v. McPherson (CA9), a police officer tasers a motorist posted no threat to police officers.  The motorist was wearing his boxes.  Thus, the throw-away, "He might have been concealing a gun!" line couldn't be used.  Rather, the cop tased the motorist out of narcissistic rage.  The officer, Southpark character Eric Cartman style, said, "You Will Respect My Authoritah!"

There are a lot of interesting issues surrounding the use of Tasers and the Fourth Amendment. Tasers were first sold to the public as an alternative to deadly force. The idea, we were told, was that police would use Tasers rather than shoot people. Thus, under the rationale Tasers were sold to the public, police should use Tasers only when they face an immediate threat of harm.

Instead, Tasers are being used as general compliance and officer frustration devices. “Do as I say, now, or get tased.” For an example of that, see the Eighth Circuit Court of Appeal’s split opinion in Cook v. City of Bella.

Legally, would a reasonable officer know that you shouldn’t taser someone merely because the officer is frustrated? TO me, the answer is, clearly, Yes. To Scalia and Thomas, the answer would be: “You’re lucky we’re not putting thumb screws on you.” Alito isn’t a Thomas-Scalia style Inquisitor, but will still no doubt side with the officers on the QI issue.

Roberts is a sensible man, and not nearly as cruel as Thomas and Scalia. See, e.g., Hedgepeth v. Washington Metropolitan Area Transit Authority (DC Cir.). He’s a bit pro-law enforcement...So he might decide that the law regarding the use of Tasers was not clearly established.

For the Court’s liberals, this should be an easy case. In fact, it’s a great test case from my perspective. There was no threat to the police officer who tased the young man. So why tase him?

Personally, I hope it gets reviewed. Those of us who are tired of police using Tasers Eric Cartman style couldn’t ask for a much better set of facts.

Taser Case May Proceed to Trial

Remember when Tasers were sold to the public as an alternative to lethal force?  "We'll use Tasers instead of guns to make everyone safer," police claimed.  Now-a-ways, walking around in your boxers is grounds for Tasering.  Fortunately, Tasering someone in his boxers is also grounds for a Section 1983 lawsuit.  Shaun Martin has the details here.

Marijuana and Federal Courts

You need to get high to appreciate justiciability doctrines.  From the Eighth Circuit Court of Appeals:

073837P.pdf    12/22/2009   David Monson   v.   Drug Enforcement

U.S. Court of Appeals Case No: 07-3837
District of North Dakota - Bismarck
[PUBLISHED] [Bowman, Author, with Melloy and Smith, Circuit Judges]
Civil case - Controlled Substances Act. District court did not err in concluding the cannabis plants plaintiffs proposed to cultivate fell within the Controlled Substances Act's definition of marijuana and that their planned cultivation of industrial hemp under North Dakota state law was subject to federal regulation under the Controlled Substances Act; plaintiffs had standing to challenge the Act because they established they were targets of DEA action and showed actual injury sufficient to confer standing; their claims were ripe for review, and the district court did not err in finding that further efforts to exhaust the DEA's administrative procedures would be futile; Congress has the authority under the Commerce Clause to regulate marijuana that is grown on a large scale for the undeniably commercial purpose of generating products for sale in interstate commerce; Congress's decision to regulate the manufacture of all marijuana plants - regardless of the grower's ultimate purpose - was a rational means of achieving the congressional purpose of controlling the supply and demand for controlled substances and state law restrictions, such as prohibiting the plant from leaving the farmer's property, did not place the cultivation beyond Congress's reach.

Questions

Norm's post, below, reminded me of something irksome:  It is easier to defend a police officer in a Section 1983 lawsuit than it is to defend a citizen charged with a crime.  Does anyone who has handled both Section 1983 and criminal cases disagree?  Almost certainly not.

Assuming my view is accurate (if you disagree, please post a comment): What does that tell us about such things as the presumption of innocence, burdens of proof, and reasonable doubt?

What does it tell us about the judiciary's views of police and citizens?  You'd think that judges would be outraged by law enforcement and prosecutorial misconduct.  Yet most judges simply do not seem to care.  Why?

Was Monroe v. Pape Wrongly Decided?

The New Year is a time to ask big questions, to put nagging issues and concerns into perspective, and to chart a course which, perhaps, will make the world a more elegant place in which to live and work. So I ask this question on the cusp of 2010. It is a question that has been on my mind for the past few years. I simply have not had the courage to ask it.

Was Monroe v. Pape wrongly decided?

It sure feels as though most judges think it was. But none of them seem willing to think things through to their logical conclusion. So let me offer a helping hand.

The 1961 Supreme Court decision is the lodestone of modern civil rights practice. It clearly established that individuals can bring a federal cause of action against state actors for abusing a person's constitutional rights. This single decision breathed new life into the Ku Klux Klan Act, codified at 42 U.S.C. Section 1983. And for several decades, litigation under the act was robust. During the past decade, however, the courts have done all they could to trim the sails of civil rights litigants. All, that is, except the one thing remaining: overturn Monroe v. Pape.

Here are the facts of the case: Chicago police officers investigating a murder burst into the Monroe home in Chicago. They rousted the family, forcing them to stand naked in the livingroom while they ransacked the family apartment. They then whisked Mr. Monroe to the police station for a couple days of interrogation. It was Gestapo treatment, pure and simple.

Monroe sued the officers in federal court. The police officers argued that they were not acting under color of law. Their acts were, in effect, ultra vires. If Monroe had a beef, he should and could raise the claims in state-law tort actions. His claims had no business in federal court.

A majority of the Supreme Court thought otherwise, and thus was spawned a complex jurisprudence filled with crazy patchwork logic: You can sue a cop for money damages, but only in his individual capacity. To do otherwise is to violate Eleventh Amendment immunity. And thus was born a public policy that has municipalities throughout the nation in effect providing free insurance to police officers who break the law in the performance of their duties. Sue a cop for violating the right to be free from unreasonable force, and he'll get a city-appointed lawyer; why, the city will even pay damages in most jurisdictions.

The law, Dickens noted, is an ass.

Justice Felix Frankfurter dissented in Monroe v. Pape. His logic is elegant. When a cop violates the law, they lose the cloak of lawman. A thug is a thug is a thug. Ultra vires acts transform a cop into a citizen, and citizens can bring tort claims against one another under state common law. (Good luck with the state-law immunities.)

The federal courts are now behaving as though Frankfurter's dissent is the law of the land, only the judges won't admit it. In the past decade of so a judicial doctrine you'll never hear a rock-ribbed conservative fuss and moan about prevents most cases from ever seeing the light of a courtroom floor. Qualified immunity has become a judicial fantasy land. All but the most egregious conduct by state actors is now forgiven by lifetime appointees.

The federal courts also show hostility to these claims by adopting new rules requiring heightened pleading standards, a boon to the defense bar, which blithely bills every hour. And there are special rules on emotional distress damages. A single witness can testify to a crime, but emotional distress requires corroboration by other witnesses.

The fact is that the federal courts have lost interest in claims of official misconduct. If that is the case, then why not reconsider Monroe v. Pape? Is a little intellectual honesty from the judiciary too much to expect?

Happy New Year, and if you see a cop on the road, genuflect: the law requires it.

Reprinted courtesy of the Connecticut Law Tribune.

Is Refusing to Meet with a Citizen Retaliatory?

Interesting First Amendment/retaliation case out of the Second Circuit.  In Tuccio v. Marconi (here) citizen needed to meet with city officials in order to have a development project approved.  Before attending his scheduled meeting, he sued a city police officer - presumably for excessive force, although the opinion simply notes that the case was "unrelated."  After the lawsuit was filed, the city cancelled the meeting, and refused offers for later meetings.  Retaliation?

No:

our constitutional doctrine prohibits government officials from punitive retaliation against persons who exercise their First Amendment right to sue the government. Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87, 91-92 (2d Cir.2002). It does not follow, however, that government officials are compelled by law to behave with a litigation adversary exactly as they would if the person were not a litigation adversary.  There are many precautions prudently taken with a litigation adversary to avoid possible prejudice to one’s position in the litigation. The mere fact that a government official takes such reasonable precautions, notwithstanding that the official would not have taken them if the counterparty had not been a litigation adversary, does not make such actions unconstitutional retaliation, especially when they cause no harm to the adversary.
Slip op. at 6-7.  If you have business with the city, don't sue the city.  Because you'll lose your business with the city, and you'll probably lose your lawsuit, too.

Turkmen v. Ashcroft Issued

I hadn't seen any blogospheric announcements that Turkmen v. Ashcroft (CA2) was released earlier today.  Here you go.

Eighth Circuit Holds that Fabricating Evidence is Not Conscience Shocking

What is the difference between fabricating evidence and merely misinterpreting evidence?  Abstractly, that's a tough question.  If I say fingerprints match when they don't: Am I lying or just incompetent?  Remember, too, that my testimony is evidence.  To lie about my observations is to fabricate a story - which is the fabrication of evidence.

With that question in mind, let's take look at Akins v. Vaughan, 08-3753 (8th Cir. Dec. 18, 2009) (here).  In Akins v. Vaughan, a police deputy fired at a motorist.  The motorist claimed that the police officer was behind him when shots were fired.  Police claimed that the deputy was in front of the motorist.  The deputy opened fired on the motorist to save his own life.

The motorist was criminally charged with attempting to run down a police officer.

Now, back to the first question.  Did the investigator fabricate or misinterpret evidence?

As the lead criminalinvestigator, Robert Vaughan gathered and examined the evidence, including the van, andinterviewed witnesses, including Akins’s mother and Deputy Crouch. Vaughan detailed his findings in his report. At a deposition prior to Akins’s criminal trial, Vaughan testified that a bullet hole he discovered towards the rear of the van was an exit hole from a bullet that had passed through the inside of the van.
OK.  The "scientific evidence" confirmed the officer's story.   Or not:
At his criminal trial, Akins highlighted various inconsistencies in the officers’ testimony and prosecution’s evidence. Younger testified that he fired all seven shots prior to or while being run over by the van. Akins confronted Vaughan with physical evidence that showed that the bullet hole towards the rear of the van was an entry hole and that the bullet had been shot from behind the van. Vaughan corrected his deposition testimony on the stand, and his trial testimony established that Younger was behind the van when he fired the shot, not in front of it.
 Slip op. at 4.  Notice the sleight of hand.  The investigator "corrected" his deposition testimony.  Because, hey, who can tell the difference between an entry and exist hole, right?  Certainly officer Robert Vaughn can't.

The Eighth Circuit put its stamp of approval on police perjury and falsification of evidence:
Akins highlights multiple errors and inconsistencies in Trammell’s and Vaughan’s investigation, but he has failed to show conscience-shocking reckless orintentional conduct.
Slip op. at 9.  "Errors" and "inconsistencies."  Really...What?

Seriously, let's take a step back.  A man was on trial.  A criminal trial.  He was going to go to prison.  The only issue in the case - the only issue that would decide freedom or prison - was whether the motorist was moving towards or away from the police.

Now, you are probably not a "forensic" scientist.  I am not.  I do know, though, that entry holes in the back of a vehicle indicate that the person fired the gun at - you guessed - the back of the vehicle.  Which would mean that the officer was behind the motorist.  Which would mean that the motorist never drove his car towards police.  Not guilty.  False prosecution.  Simple stuff.

It's not so simple, however, when you're more concerned with insulating police from liability than with following the law.  No doubt the Federalist Society (of which I was once a member) will hold a press conference decrying this judicial activism.  How can anyone who cares about the rule of law not become outraged and shocked when police fabricate evidence in an attempt to convict an innocent man?  Yet the Eight Circuit doesn't even care.

This wasn't merely negligence.  Negligence requires something other than intentional misconduct.  Does anyone here want to swear a blood oath that a criminal investigator can't tell the difference between entry holes and exit holes?

This was a complete distortion of the criminal process.  Such a distortion was not, however, conscience shocking.  Which makes one wonder: Can you shock something that is dead?

Cowboy Cops Kill Innocent Bystander

In Ellis v. Ogden City, No. 08-4166 (10th Cir. Dec. 17, 2009) (here), two police officers went on a high-speed chase through a residential district.  They went up to 80 miles per hour.  The dispatcher ordered them to disengage.  After all, the suspects being pursued were known to local police.  They knew where the suspects lived.  They knew their known associates.  The suspects could have been arrested later.

What good is being a cop, though, if you can't drive fast and carry a gun?  Thus, the police drove recklessly.  They finally killed an innocent bystander.  If you or I drove recklessly through the city, we'd have been charged with manslaughter.  According to a Tenth Circuit panel, what the police did was not even worthy of a due process violation.

This tragic case addresses the level of intent necessary to prove a 42 U.S.C. § 1983claim against officers for their conduct in a high-speed chase resulting in a bystander’sdeath. The teaching of County of Sacramento v. Lewis, 523 U.S. 833, 836 (1998), is thatin such circumstances “only a purpose to cause harm unrelated to the legitimate object ofarrest will satisfy the element of arbitrary conduct shocking to the conscience, necessaryfor a due process violation.” See also id. at 858 (Kennedy, J., concurring) (“intent toinjure” is required)
That is so weak.  What other purpose was there?  The officers will claim that their legitimate purpose was pursuing a suspect.  Yet the suspects were well known to police.  There was no do-or-die reason to pursue the suspects.  Moreover, in continuing the pursuit, the police officers violated officials orders.  "The officers were advised and ordered bydispatch to disengage from the pursuit."

Why then did they continue the pursuit?  Let's let a jury decide.  Did the officers continue the pursuit for legitimate reasons; or because they were adrenaline junkies who cared not for the harm of others?  Yet this case will never see a jury.  Just as the bystander Ogden City police officers Matt Jones and Troy Burnett murdered will never see another day.

Liquor Licenses and Section 1983

The city of Country Club Hills, Illinois issued a bar a liquor license.  Afterwards, they attempted to change the terms of the liquor license.  The bar sought a preliminary injunction, which the District Court granted.  A unanimous three-judge panel affirmed.  Pro's Sports Bar & Grill v. City of Country Club Hills, No. 09-2082 (7th Cir. Dec. 16, 2009) (here)

The Fourteenth Amendment prohibits states from depriving a person of  “life, liberty, or property, without due process of law.” This prohibition applies with equal force to municipalities. See Home Tel. & Tel. Co. v. City ofLos Angeles, 227 U.S. 278 (1913). We take a two-step approach to procedural due process claims: first, we ask whether the plaintiff has been deprived of a protected liberty or property interest; if so, we ask whether thedeprivation occurred without due process. Doe v. Heck, 327 F.3d 492, 526 (7th Cir. 2003).
As with all Section 1983/due process cases, the issue of whether a property interest exists is one of state law.  Yep, the panel had to go slummin' it:
Once granted, an Illinois liquor license is a form of property within the meaning of the due process clause. See Club Misty, Inc. v. Laski, 208 F.3d 615, 618 (7th Cir.2000) (citing Reed v. Village of Shorewood, 704 F.2d 943, 948-49 (7th Cir. 1983)). This interest extends to the license’s annual renewal. Id. Like revocation during the term of a license, nonrenewal requires cause and a hearing. Id.;see also 235 ILCS 5/7-1 to 7-14 (detailing the revocation process).
Even worse, the panel had to look at municipal law.  City ordinances are often a mess.  Majors and city council members are often morons.  The same kids who ran for class president grow up wanting to be mayor. The panel discusses some of the silliness that the council attempted to pull:
First, the City argues that the signed ordinance does not reflect the city council’s action on November 26, 2007 because of a scrivener’s error. Rather than adopt the proposed ordinance, the City maintains, the council adopted an amended ordinance with limited hours. In the alternative, the City suggests that we interpret the ordinance based on the intent of the council, which it argues was to impose an hours restriction on Pro’s.
Nice try, guys.  You fail.  For being morons, you'll be required to pay the bar's legal fees under Section 1988.  Of course, the taxpayers will be forced to pay.  They elected you idiots, so they deserve to foot the bill.

No Fourth Amendment Violation to Force Police to Take Breathalyzer

Don't you just love police unions?  Police unions do nothing if not seek double standards.  They want the police to follow a different standard from the rest of us.  Not higher standards, of course - lower standards.  Thus, in Lynch v. The City of New York, No. 08-5250 (2d Cir. Dec. 11, 2009) (here):

Plaintiffs-appellants are union representatives of police officers employed by the New York City Police Department (“NYPD” or “Department”). They brought this action in the United States District Court for the Southern District of New York (George B. Daniels, Judge) challenging the constitutionality of an NYPD policy that requires that a breathalyzer test—which measures the amount of alcohol in the bloodstream—be administered to an NYPD officer immediately after he or she causes injury or death as a result of firing his or her gun. Plaintiffs moved in the District Court to preliminarily enjoin the enforcement of the breathalyzer policy, and the District Courtdenied the motion. Plaintiffs now appeal the denial of the preliminary injunction. We affirm.
The cops lost, for reasons you can read here.

Incidentally, in Hudson v. Michigan, Justice Antonin Scalia argued that the exclusionary rule was unnecessary because of "[a]nother development over the past half-century that deters civil-rights violations," namely, "the increasing professionalism of police forces, including a new emphasis on internal police discipline."

Yet, here, the police union challenged a policy that, in cop-speak, only a person with something to hide would be against.  How's that for police professionalism?

Procedural Due Process and Destruction of Private Property

When can the government destroy your home without notice or an opportunity to be heard?  Whenever it wants.  Well, sort of.  Actually, not even close.  WWBITV, Inc. v. The Village of Rouses Point, No. 08-5112 (2d Cir. Dec. 9, 2009) (here).

In WWBITV, a fire badly damaged a fire.  Government contractors determined that the building was in danger of collapsing.  So they blew it up, without first giving the property owner a pre-deprivation hearing.

The property owner sued under Section 1983.  He lost.  Good thing, too. It sounds like the hotel was going to have pieces all into the road.

Yeah, sorry that your hotel had a fire.  Really, that must have been awful.  That's why you have insurance.  Should the problem of your crumbling hotel become a hapless motorist's problem?  Jerks.

Their legal arguments weren't half bad.  There was some tension within the Second Circuit over this issue: If you can give a pre-deprivation hearing, must you?  The WWBITV panel held: No.  Slip op. at 12 ("Assuming arguendo that plaintiffs have raised valid questions about whether the Village chose the best possible method of safeguarding the public, such a showing is not sufficient to defeat summary judgment.")

However, the government cannot be arbitrary and capricious:

[W]here an adequate post-deprivation process exists, an official reasonably believing on the basis of competent evidence that there is an emergency does not effect a constitutional violation by ordering a building demolition without notice or a hearing. Whether the official abused his discretion or acted arbitrarily in concluding that a genuine emergency exists is a factual issue, subject to the usual considerations for a district court addressing a summary judgment motion. Summary judgment may not be awarded where there is a genuine issue of fact as to whether officials acted arbitrarily in declaring an emergency.
Id. at 11.  Here, the WWBITV building was a POS:
By the time Clarke left the scene, the building had been extensively damaged. The roof and the top floors had been completely destroyed. Debris hung off the hotel’s facade, and officials were concerned that it would fall into the street. The instability of the building, as well as its proximity to the street, necessitated the closing of State Road 11.
Id.  at 4.  Ergo, summary judgment for the defense.

Standing and the PATRIOT Act

Federal Courts - now that's a class.  Many Section 1983 lawsuits get screwed up because the lawyers think Section 1983 is just another tort.  Section 1983 puts the constitutional in constitutional torts.  Article III, yo.  The procedural stuff is nasty.  And don't even get me started Section 1983/land-use issues.  I'll leave those cases to this guy.

Mayfield v. USA, No. 07-35865 (9th Cir. Dec. 10, 2009) (here) is a nice primer on standing in civil rights cases.  (Sure, it's not a Section 1983 case, which is self-evident in the case caption.  By definition, a case against the United States cannot be a Section 1983 claim.)  Still, lots of good stuff await:

In this appeal, we must decide whether Plaintiffs-Appellees Brandon Mayfield, a former suspect in the 2004 Madrid train bombings, and his family, have standing to seek declaratory relief against the United States that several provisions of the Foreign Intelligence Surveillance Act (“FISA”) as amended by the PATRIOT Act are unconstitutional under the Fourth Amendment of the U.S. Constitution. Although Mayfield settled the bulk of his claims against the government, the settlement agreement allowed him to pursue his Fourth Amendment claim. According to the terms of the settlement agreement, the only relief available to Mayfield, if he were to prevail on his Fourth Amendment claim, is a declaratory judgment. He may not seek injunctive relief. We hold that, in light of the limited remedy available to Mayfield, he does not have standing to pursue his Fourth Amendment claim because his injuries already have been substantially redressed by the settlement agreement, and a declaratory judgment would not likely impact him or his family. We thus vacate the judgmentof the district court.
Read the whole thing here.

Law Review Article as Judicial Opinion

Although Section 1983/parent rights suits are something of a subspecialty of mine, there is no freaking way I'm reading Green v. Camreta, 06-35333 (9th Cir. Dec. 10. 2009) (here).  It's 43 pages.  There is no way in the world a parental rights case should be so lengthy.  Why so long?

Judge Berzon "authored" the opinion - which means one of her law clerks wrote it.  Judge Berzon gets the Yalies.  Yalies, when writing, are more interested in self-indulgence than reader edification. [This does not apply to you, Will B. - Mike.]  The law clerk had a chance to publish a law review article in the F.3d.  And thus we're stuck with it.

Number One Rule of writing: Write for your readers, not for yourself.  Unless you're Tiger Woods, no one wants to read your diary.  No one cares about your innermost thoughts.  Don't believe me?  Start a biographical, self-indulgent blog.  See how many readers you get.  The marketplace of readers is ruthless.

A good judicial opinion should clearly state the legally-operative facts; state the rule; apply the rule; and reach a conclusion.  The opinion should be written with authority.  No mealy-mouthed language, or endless "on the other hands."

The "on one hand, on the other hand" stuff is for law review articles - where not offending the reader is more important than taking a stand.

Sheldon Nahmod on Public Employee Free Speech

Self-recommending.

Advise-of-Counsel Defense in Qualified Immunity Cases?

In Ewing v. City of Stockton, No. 08-15732 (9th Cir. Dec. 9, 2009) (here), police officers arrested a woman for a crime she did not commit.  According to the Ewing panel, there wasn't probable cause for the arrest.  However, before making the arrest, the police talked to a prosecutor.  What result?

The lawsuit against the police officers was dismissed, because the police spoke to a prosecutor before booking the woman.

[T]he officers were entitled to rely on the legal advice they obtained from Fleming.  Many courts, including this one, have endorsed such consultation, see, e.g., Kijonka v. Seitzinger, 363 F.3d 645, 648 (7th Cir. 2004) (citing Arnsberg v. United States, 757 F.2d 971, 981 (9th Cir. 1985)), and while it will not automatically insulate an officer from liability, “it goes far to establish qualified immunity.” Id.; see also Frye v. Kansas City Mo. Police Dep’t, 375 F.3d 785, 792 (8th Cir. 2004)(“Although following an attorney’s advice does not automaticallycloak [officers] with qualified immunity, it can show the reasonableness of the action taken.”) (internal quotation marks omitted).
That outcome is troublesome.  To avoid liability, a police officer need only find a friendly neighborhood prosecutor to offer him some mealy-mouthed advice.

Yet the panel offers a salve.  They properly (holy judicial integrity, batman!) applied Burns v. Reed, 500 U.S. 479 (1991).
The Ewings concede that Fleming is entitled to absolute immunity for his decisions to charge Heather and Mark with murder and not to release them between November 10 and 15, see Morley v. Walker, 175 F.3d 756, 760 (9th Cir. 1999) (stating that a prosecutor’s failure to dismiss charges after learning of new information is protected by absolute immunity), but argue that he is not so entitled for advising the officers to add book [guessing "add book" is a typo - Mike, King of Typos] murder charges on November 8. We agree.
The Supreme Court has clearly stated that with respect to advising police, prosecutors are entitled to qualified not absolute immunity. Burns, 500 U.S. at 492-95. Noting the absence of a common law tradition supporting absolute immunity, the Court stated: “Indeed, it is incongruous to allow prosecutors to be absolutely immune from liability forgiving advice to the police, but to allow police officers only qualified immunity for following the advice. Ironically, it would mean that the police, who do not ordinarily hold law degrees, would be required to know the clearly established law, but prosecutors would not.” Id. at 495 (internal citation omitted).
In the present case, the district court appears to havemistakenly limited Burns to apply only to situations whereprosecutors advise police about prospective investigative techniques. Although the Burns Court sometimes characterized the prosecutor’s role as “investigative,” it clearly held that with respect to advising police that they had probable cause to arrest, the prosecutor was not entitled to absolute immunity.
Id. at 16238.

Under Burns, a prosecutor is not absolutely immune for legal advice.  Lester F. Flemming gave terrible legal advice.  Based on my reading of the opinion, his advice was given in bad faith; and he should be investigated by the State Bar of California.

While I disagree with allowing police to rely on an advice-of-counsel defense, one might consider this a reasonable disagreement.  After all, the judges did not disingenuously give the prosecutor a pass.  Intellectually bankrupt judges certainly would have misapplied Burns.

Not all disagreements are due to dishonesty.  Sometimes, we just disagree.  And sometimes it means that those we disagree with are right, and it's we who are wrong.  Though I shall make no concessions!

Proving Deliberate Indifference in Denial of Medical Care Cases

While it's black-letter law that a prisoner has a constitutional right to medical attention, it's the law of reality that prisoners denied medical care will rarely win their lawsuits.  This is because a prisoner must prove that prison guards were deliberately indifferent to his serious medical needs.  In the prison context, this means that the guards must have been subjectively aware of a serious risk to the prisoner's health.

Excuse the rant, but in criminal cases, mens rea is always easily proven.  Rarely are cases dismissed pre-trial (or reversed on appeal), for an inability to establish the criminal defendant's mental state.  In prisoner's rights cases, however, federal judges go all Wittgenstein: How can we know what any person was subjectively aware of?  Case dismissed, due to the beetle in the box problem.

The double standards are a bit much - even to someone like me, who isn't especially sympathetic to the plight of prisoners.  I do care about the rule of law; and intellectual and judicial integrity requires judges to apply legal standards equally.  Prison guards should not be treated more favorably than criminal defendants.

Indeed, given the Bill of Rights, one would say that prison guards in a civil case - where there exists no presumption of innocence - should be treated worse than criminal defendants.  Yet our current legal system flips the script: Civil defendants in Section 1983 cases have more rights and are treated more favorably than criminal defendants.  What's up with that?

Anyhow, in Marlita v. Cook County, No. 08-2232 (7th Cir. Dec. 1, 2009) (here), a pre-trial detainee's estate (this means he died in jail, even though he had never been convicted, and thus was presumed innocent) was able to establish deliberate indifference where:

A brief overview of the record reveals testimony describing in detail Smith’s condition on the days leading up to his death. A number of witnesses reported that Smith was vomiting, coughing and exhibiting other signs of serious illness including nausea and lethargy. A fellow inmate reported that on April 29, 2004, the day when all three officer defendants were working, Smith was “coughing a lot, running back and forth to the bathroom, throwing up, just laying on the floor, not moving, not eating . . . .” . Another inmate reported that Smith was lying on the floor in front of the cell—which would have placed him in the direct path of the officials when performing their rounds. Inmates testified that they complained or heard others complain to officers aboutSmith’s condition during all three shifts: 7a.m.-3p.m., 3p.m-11p.m., and 11p.m.-7a.m., that were covered by Officers Facundo, Toomey, and Sanchez respectively. Finally, Officer Toomey testified that he saw Smith that day, and, at one point, saw him lying in front ofhis cell.
Slip op. at 10.  Thus, deliberate indifference was established.  Id. at 11. ("The evidence suggests that the officers wereaware of the risk to Smith’s health, either from the inmates’complaints, or from his visible symptoms ... and their failure to act could have led a jury tofind that they ignored this risk.")

Prayers for Police?

Milwaukee Deputy Sheriffs' Association v. Clark, No. 08-1515 (7th Cir. Dec. 4, 2009) (here):

When the Milwaukee County Sheriff invited a religious group to speak at the Sheriff’s department leadership conference, some officers took offense to the Christian-focused presentation. And when the Sheriff allowed the same group to speak at a number of mandatory employee meetings, the officers complained. When the presentations continued, two Milwaukee County Sheriff’s deputies, along with their union, sued under 18 U.S.C. § 1983, alleging a violation of the Establishment and Free Exercise Clauses of the First Amendment. The district court granted the plaintiffs’ motion for summary judgment on their Establishment Clause claim, and the defendants appealed. Because the group’s presentations during mandatory employee gatherings gave, at the least, the appearance of endorsementby the Sheriff’s Department, we conclude that the defendants violated the Establishment Clause. Therefore, we affirm.

Is a Pre-Sale Home Inspection Requirement Constitutional?

Mann v. Calumet City, 09-1681 (7th Cir. Dec. 7, 2009) (here).  I haven't read it, but it seems interesting.  A quick skim reveals, "frivolous," "criminal contempt," and "Posner."  So, yeah, I'll definitely be checking this one out during tomorrow's coffee break.

How to Spot Pretext

Wimbley v. Cashion, No. 08-2829 (8th Cir. Dec. 3, 2009) (here):

Civil Case - qualified immunity. Denial of qualified immunity is affirmed, as a reasonable jury could find stated reasons for firing female correctional officer for accidental discharge of pepper spray was pretextual, when white male correctional officer who discharged pepper spray was not terminated, and gender and sex discrimination is well established.

Ord v. District of Columbia May Go to Trial

Mike Scarcella of the Legal Times reports: "Federal Appeals Court Rules Against D.C. in Gun Suit."  Our earlier post on Ord v. District of Columbia is available here.

Suit Against Prison Law Librarian Dismissed: Another Pearson v. Callahan Disaster

Phillips v. Hust, No. 04-36021 (9th Cir. Dec. 2, 2009) (here):

We consider whether a prison librarian is entitled to qualified immunity from suit alleging a constitutional tort for hindering an inmate’s ability to comb-bind a petition for a writ of certiorari to the Supreme Court of the United States.
My initial reaction was, "No way."  My ignorance was exposed by the case history.  The prisoner initially won on summary judgment.  A panel of the Ninth Circuit Court of Appeals initially affirmed:
Subsequently, a judge called for rehearing en banc. After a vote, the full court denied Hust’s petition for rehearing en banc. Chief Judge Kozinski, joined by nine other judges, dissented from the denial of rehearing en banc. Phillips v. Hust, 507 F.3d 1171 (9th Cir. 2007).
Hust then filed a petition for a writ of certiorari in the Supreme Court of the United States. The Court granted the petition, vacated our three-judge panel opinion, and remanded for reconsideration in light of Pearson v. Callahan, 129 S. Ct. 808 (2009).
Id. at 15749-50.  On remand, the prisoner loses 3-0. Judge Diarmuid F. O’Scannlain plays a dirty trick.  Using Pearson v. Callahan, he refuses to determine whether the prisoner's rights had actually been violated - "gladly," even:
Because the qualified immunity issue is straightforward, this is an appropriate case to bypass the more difficult question of whether Hust violated Phillips’s constitutional rights. See Pearson, 128 S. Ct. at 818 (“There are cases in which it is plain that a constitutional rightis not clearly established but far from obvious whether in factthere is such a right.”). Moreover, this is a case “in which the constitutional question is so fact-bound that the decision [would] provide[ ] little guidance for future cases.” Id. at 819.Thus, gladly exercising our newfound authority, we do not decide whether Hust’s actions violated Phillips’s constitutional rights. Rather, we proceed directly to ask whether Hust is entitled to qualified immunity.
Id. at 15754.  Great.  So it's a tough issue.  Now someone else is going to have to litigate it.  And guess what that lawyer and his client will win - a booby prize!

Think about it.  A prisoner asks you to sue, raising the issue presented in Phillips v. Hust.  Will you take the case?  You'd be crazy to.  It's guaranteed that you won't collect any fees.  How so?

On the next go around, the panel might actually decide the issue in favor of the prisoner.  Yes, a prisoner has a right to use a comb-binding machine.  But guess what: That right was not clearly established.  See Phillips v. Hust.  (See this post.)

Pearson v. Callahan is thus having the exact effect we said it would: It's preventing the law from becoming clearly established.

Iqbal, Churning and Rule 11

I just wasted about an hour of time this morning responding to a frivolous motion to dismiss. Defense counsel's pleading relied on Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Here's the issue.

The clients were stopped by police on a highway when one of the plaintiff's had difficulty negotiating a tricky intersection on an Interstate highway. Once the officer had stopped the driver and passenger, he accused them of drinking to excess. They denied it. He separated the two of the and placing the driver in his cruiser, and leaving the passenger in the plaintiffs' car.

He interrogated both, offering understanding if one would but admit they'd both been drinking. Neither did. The stop lasted for more than an hour. When it was done, he issued the driver a citation for a bad lane change, and let them go. We sued on grounds of an unreasonable seizure as to both. In the complaint, we plead that the defendant's action were intentional and inspired by malice.

The defendant trotted out Iqbal, asking for more facts.

Iqbal is a gift for the defensne bar. At the recent Practicing Law Institute seminar in New York City, I sat near a group of young lawyers from the New York City Corporation Counsel's office. One of them arrived late, after the section on Iqbal and what I will refer to as heightened pleading requirements. "The moral of the story?" one young lawyer said to the late arrival, "File a motion to dismiss in every case."

Iqbal requires more than incantation at the pleading stage. You must plead plausible facts supporting a claim, facts that can survive something new under the Sun: a "plausibility standard."

Filing a motion to dismiss in every case is frivolous. Pleading intent is required to sustain even minimal pre-Iqbal scrutiny. So is pleading malice, if you want the jury to consider punitive damages.

In my case, the defense lawyer really wanted to challenge my claim that the stop was more than an hour in duration. He had a police CAD entry that showed the stop to be all of about 20 minutes in length. He served requests to admit on my clients asking them to authenticate and validate the CAD entry. We did not do so. We do not know how long the officer waited before calling in the stop. My clients checked their watches and are prepared to testify that they were detained more than an hour. We would not have pleaded that they were detained for that period if it were not supported by anticipated testimony.

So what was the point of this Iqbal motion? Most likely, billable hours and harassment of the plaintiff's bar. The case is privately defended, so I am guessing the lawyer billed several hours to produce his 17-page brief. But to what end? The case is simple and should not require detailed pleading: the officer stopped two women; he detained them; once he realized there was no reason to hold them, he refused to let them leave. This isn't rocket science. It is a bread and butter claim of an unreasonable seizure.

Plaintiff's lawyers don't work on an hourly basis. And police misconduct claims are notoriously difficult. Qualified immunity makes all but the most egregious claims a crap shoot to get to a jury. The defense bar can use Iqbal to generate fees for themselves while increasing what I call the aggravation costs to the plaintiff's bar. I wonder whether trial judges will grant sanctions for Iqbal motions filed in bad faith? I doubt it, and I don't intend to press the issue by wasting more time I do not have.

Norm Pattis

Back

No longer seeing double.  If only my double vision had been caused by too much Scotch rather than the superflu.  More posts coming once I'm caught up with the rent-paying stuff.

Prisoner Meals, Prevailing Parties, and the Prison Litigation Reform Act

Prisoner's-rights lawsuits always crack me up.  "How dare you now serve us the meat that our religion demands we eat!" is unironically screamed by people in prison.  Um, guys, if religion had been so important to you...You would not be in prison.  There is a near-perfect overlap between immoral conduct under religious law, and criminal conduct under the civil law.

Oh, but they found religion while in prison.  OK.  Perhaps the newly redeemed ought not apply their moral energy towards trivialities like food choice (you're not starving, guys), but instead should focus on materialities like...not being a scumbag criminal?  It is astounding.

Energy is a scarce resource.  One could pray, read books, learn job skills, volunteer to help other prisoners, write letters outside, etc.  Or one could self-implode because the prison is denying you tasty treats.

As we all know, no man is righteous life the self-righteous, and thus litigation over prison meals is common.  I've even worked on a few cases.  If an ass was good enough for Jesus to ride on, how dare I to refuse to ride the law when it's an ass?

In Perez v. Westchester County Department of Corrections, No. 08-4245 (2d Cir. Nov. 19, 2009), some Muslim inmates sued because they didn't get proper Muslim food.  Jews, however, got Kosher food.    After the Muslims sued, the prison began treating Jews and Muslims equally.  Thus the legal issues.

Were the Muslims prevailing parties under Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001).  Also, some of the inmates had been released from prison after the lawsuit had been filed.  Assuming those inmates were prevailing parties: Does the Prison Litigation Reform Act's pay caps apply to them?  Yes, and yes.  You can find out why by reading the opinion here.

Umpire Watch and Equal Justice: "Close Calls" Go to the Government

United States v. Jewell, No. 08-2909 (8th Cir. Nov. 18, 2009) (here) involves an application for attorney's fees after a prosecutor frivolously seized a pension plan in a civil forfeiture proceeding.  Thus, U.S. v. Jewell has nothing to do with constitutional torts.  And yet it has everything to do with constitutional torts:

Barry J. Jewell sought attorneys’ fees pursuant to the Civil Asset Forfeiture Reform Act (“CAFRA”), codified in part at 28 U.S.C. § 2465(b), after he prevailed in an ancillary proceeding pursuant to 21 U.S.C. § 853(n). The § 853(n) proceeding was ancillary to a criminal case against Jewell’s former law partner, Bobby Keith Moser. In Moser’s criminal case, the government had seized Jewell’s pension and retirement account funds, and in the § 853(n) proceeding, the district court concluded that the funds were beyond the reach of the government’s forfeiture efforts. Ultimately, even though Jewell prevailed in the ancillary proceeding, the district court denied his fee request, finding that the ancillary proceeding did not qualify as “any civil proceeding to forfeit property under any provision of Federal law.” 28 U.S.C.§ 2465(b)(1).
We find many of Jewell’s arguments regarding the characterization of § 853(n) ancillary proceedings persuasive. Ultimately, however, we are called upon in this case to interpret the breadth of 28 U.S.C. § 2465(b), a federal statute waiving sovereign immunity and authorizing the payment of attorneys’ fees in limited situations. The arguments for and against permitting a prevailing § 853(n) petitioner to receive attorneys’ fees from the government are too closely balanced for us to conclude that Congress’s waiver of sovereign immunity clearly and unequivocally applies in this situation.
Even when the law is on your side, it's not.  The sovereign wins.  One might wonder if the American Revolution ever actually occurred; and if federal judges even read historical documents like the Declaration of Independence.

Prosecutorial Immunity for Civil Habeas Proceeding?

Isn't a habeas proceeding a collateral proceeding?  It's a civil proceeding, right?  We hear this all of the time.  A habeas petitioner doesn't have the full rights we learned about in Criminal Procedure because a habeas proceeding is not a criminal proceeding.  Simple enough, right?

That simple distinction changes when a criminal prosecutor has withheld exculpatory evidence in a civil proceeding.  Suddenly the prosecutor is acting as a prosecutor - even though it's a civil proceeding.  This is all nonsense, of course, that is designed to protect prosecutors who commit violations of the Constitution and Rules of Professional Conduct.

See this Law.com report on Warney v. Monroe County, 08-0947 (2d Cir. Nov. 13, 2009) (here).

Tenth Circuit Approves of Harrassment-Via-Investigation

A doctor who reported her colleagues for drug and alcohol abuse received what all government employees who report misconduct receive - a commendation.  Actually, the hospital rewarded her by investigating her.  In a 38-page opinion, a unanimous three-judge panel dismisses her First Amendment/retaliation claim.

One of the opinion's more troubling aspects: "An investigation of potential misconduct, as already noted, will generally not constitute an adverse employment action."  Couch v. Carter, No. 08-8001 (10th Cir. Nov. 17, 2009) (here).  Thanks for the complaint.  Now please excuse me while I put on these latex gloves.  Oh, no, this isn't retaliation.  It's just an investigation, after all.

The government employee speech cases all do a great job of ensuring that government employees never actually report misconduct.  What's the incentive?  I suppose we'd say, "Doing the right thing."  How many of you are willing to risk your career and your pension?  Federal judges are ensuring that government employees look the other way rather than report misconduct.

Valerie Plame Wilson v. CIA

Did you know that Valerie Plame worked for the CIA?  Yeah, I didn't either.  Who knew?  Anyhow, she wanted to write a book about it.  She couldn't, because it was classified information.  See Wilson v. CIA, No 07-4244 (2d Cir. Nov. 12, 2009) (here) (no First Amendment right to talk about stuff that everyone knows about, because said stuff is classified information).

Section 1983 and the Death Penalty

If you're a condemned prisoner who has lost on direct and collateral review, why not file a Section 1983 lawsuit, too?

Eight condemned Missouri prisoners appeal the dismissal of their 42 U.S.C.§ 1983 action challenging the manner in which Missouri’s written lethal injection protocol might be implemented in future executions. The prisoners allege the State of Missouri, through its officers Larry Crawford, James Purkett, and Terry Moore (collectively, Missouri), has a “well-documented history of employing incompetent and unqualified personnel to oversee [the] crucial element[s] of executions by lethal injection,” and “refusing properly to train the individuals to whom responsibility for crucial tasks in the lethal injection process is delegated.” Based on this history, the prisoners argue Missouri “will continue to employ such incompetent and unfit personnel for future executions.” The prisoners contend this possibility violates the Eighth Amendment by creating a substantial risk that Missouri’s written execution protocol will not be followed, resulting in the condemned prisoners being insufficiently anesthetized and suffering extreme pain before their deaths.
Middleton v. Crawford, No. 08-2807 (8th Cir. Nov. 10, 2009) (here) They lost on the legal issues, but are alive to fight another day.

When Should Judges Apply Pearson v. Callahan?

In a Section 1983/due process lawsuit arising out of a high-speech chase, Judge Boyce F. Martin, Jr. issued this thoughtful concurring opinion:

As the Court notes, neither party has cited a single example of a case, from any circuit or district court, in which an officer’s actions in a police chase have ultimately been found to shock the conscience, and I am aware of no such case. Thus, it appears that the set of examples of constitutionally impermissible police-pursuit behavior iscurrently an empty one. Although surprising, this was not especially troubling under the mandatory analytical regime set forth in Saucier v. Katz, 533 U.S. 194 (2001).
 ...
However, police-pursuit cases do not fall within the group of section 1983 cases for which Katz accomplished its goal of developing constitutional precedent because the set of examples of impermissible police-pursuit behavior remains empty. I am therefore concerned about applying Pearson in future police-pursuit cases. Except in the most overwhelmingly egregious case, an officer that crosses the Fourteenth Amendment’s threshold likely still would be entitled to qualified immunity because it was not clearly established that his specific actions were of the kind that crossed the line. Under Pearson, the court confronted with this officer’s actions could avoid the constitutional question entirely and resolve the case on the clearly established prong. And so too could all subsequent courts.
Jones v. Byrnes, No. 08-1889 (6th Cir. Nov. 9, 2009) (here).  Yes.  Pearson creates a vicious circle.  The law was not clearly established because the law was not clearly established.  Judge Martin continues:
This, of course, results in a self-perpetuating cycle in Fourteenth Amendment police-pursuit cases: district courts will skip the constitutional inquiry in favor ofdisposing of cases on the “clearly established” prong, so there will never be an actual finding that an officer’s conduct shocks the conscience, so courts will continue to be able to dispose of cases on the “clearly established” prong, and so on.
It's a serious problem.  Hopefully Judge Martin's concurring opinion will serve as persuasive authority in the Sixth Circuit and beyond.

Cop Who Beats Up Mentally Disabled Man Denied Qualified Immunity

Rohrbough v. Hall, No. 08-1617, slip op. at 3 (8th Cir. Nov. 9, 2009) (here) is a basic excessive force case that of course was not entitled to summary judgment.  It does illustrate the banality of police brutality:
A store owner approached Officers Hall and Kimble on the street and told them that a man had just created a disturbance in her optometry shop. The woman then identified Mr. Rohrbough to them as the man in question as Mr. Rohrbough walked away from the store. While Officer Kimble stayed with the woman, Officer Hall followed Mr. Rohrbough and instructed him to stop. Mr. Rohrbough turned and greeted Officer Hall. Mr. Rohrbough's arms were raised but he did not make a fist or assume a fighting stance. At this point, Officer Hall pushed Mr. Rohrbough. After Mr. Rohrbough returned the push, Officer Hall punched Mr. Rohrbough in the face; Officer Hall then pushed Mr. Rohrbough again, took him to the ground face down, landed on top of him, and handcuffed him. At this point, Officer Hall sat Mr. Rohrbough on the curb. According to Mr. Rohrbough, an unknown second officer then hit him several times with a club; Officer Hall attested, however, that no other officer was present. Although Mr. Rohrbough was arrested for disturbing thepeace and resisting arrest, he was taken straight to the hospital and discharged three days later. Mr. Rohrbough suffered a subconjunctival hemorrhage on his left eye, orbital swelling, a fractured rib, and other lacerations.
Slip op. at 3.

Are Prison Guards Ignorant of Anti-Snitching Prison Culture?

Some civil rights cases lead one towards hysteria.  "Are you kidding me!?!" is the only rational response to  Norman v. Schuetzle, No. 08-1686 (8th Cir. Nov. 9, 2009) (here).  In Norman, a prison inmate made several complaints about how a prison class was conducted.  The prisoner claimed that the class was corrupt.  The prisoner's complaints might have led to the cancellation of a prisoner cookout.

A prison guard showed these complaints to other inmates.  Why?  Really...What legitimate penological interest is there is telling prisoners, "Hey, someone is snitching.  Oh, and the cookout you've all been looking forward to might be cancelled."  Could it be that the prison guard was trying to incite violence against the prisoner?  Is there anyone familiar with prison culture who thinks that is not what the guard was doing?

Given the no-snitch culture that rules prisons, what do you suppose happened?  Of course the plaintiff was mercilessly beaten by an inmate who had seen the grievances.

A split panel of the Eighth Circuit Court of Appeals held that the prison guard was not on notice that telling other prisoners that a fellow prisoner is snitching on people, might lead to the prisoner getting assaulted.  Judge Kermit Bye wrote a sober dissent:

Assuming, as we must, that Wrolstad disclosed the content of Norman's grievances to inmates whose interests stood to be adversely affected, the evidence shows Wrolstad's actions violated prison policy. A reasonable jury could conclude Wrolstad was aware of prison policy and his decision to violate the policy is evidence he intended to anger and incite the other inmates. Such a conclusion is especially reasonable in light of the fact that Wrolstad has offered no legitimate reasons for his violation of prison policy. Furthermore, in his affidavit Wrolstad acknowledges he was aware the other inmates were angry and discussing what action they should take in retaliation against Norman.
Slip op. at 32 (Bye, J., dissenting).  This shouldn't be a complicated issue.  One often sees uncomplicated issues resolved wrongly when prisoners are the plaintiffs.

Norman v. Schuetzle (CA8)

Something bad happened in   Norman v. Schuetzle, No. 08-1686 (8th Cir. Nov. 9, 2009) (here).  From the Clerk's unofficial summary:

[PUBLISHED] [Hansen, Author, with Wollman and Bye, Circuit Judges] Prisoner case - prisoner civil rights. Warden was entitled to qualified immunity on failure-to-protect claim as there was no evidence he knew of and disregarded an excessive risk to plaintiff's safety and the risk was not so obvious that a reasonable prison official would have noticed it; court could not say case worker violated plaintiff's Eighth Amendment rights when he logged a possible threat to plaintiff and notified his supervisor but failed to take any further action, and the case worker was entitled toqualified immunity; similarly, a second caseworker's failure to take additional action was not a constitutional violation, and she was entitled to qualified immunity; existing case law did not put defendant Wrolstadon notice that his actions in showing plaintiff's kites to other inmates would put plaintiff at a substantial risk of harm from other inmates, thereby violating his rights, and, as a result, Wrolstad was entitled toqualified immunity on plaintiff's claims that his actions violatedplaintiff's rights. Judge Bye, concurring in part and dissenting in part. 
There was a dissent.  I'm guessing this is the issue: "existing case law did not put defendant Wrolstadon notice that his actions in showing plaintiff's kites to other inmates would put plaintiff at a substantial risk of harm from other inmates."  Judges who want to let a defendant off make you point to nearly identical factual case in order to get past qualified immunity.  When I have time to review the opinion, we'll see if my guess was right.

Name-Clearing Hearings and Watch Lists

Norm Pattis blogs about a Section 1983 case that he litigated.  In Krayeske v. City of Hartford (no written ruling available), a man sued after his placement on an "watch list" led to his arrest.  Krayeske sued under a general First Amendment retaliation theory.  I wonder, though, if there wasn't another claim to raise.

There is no generalized due process right to have a good reputation.  In Paul v. Davis, 424 U.S. 693 (1976), a man sued after a police chief left a photograph of him at a store, identifying the man as a "active shoplifter."  Since the plaintiff was indeed a shoplifter, there was no cause of action for defamation.  Instead, the plaintiff sued, alleging that Due Process Clause protects freedom from reputational harm.  The Supreme Court held that there is no right to a good reputation.

The Court in Paul (and later, in other cases) did say that a citizen who suffers some tangible harm in conjunction with the reputational injury may sue under the due process clause.  The plaintiff must suffer a "stima plus" to sue.

Has a person who has been arrested after being placed on a watch list suffered a stigma plus?  In Krayeske, the plaintiff's sole offense was that he was on the watch list.  Police didn't merely pay close attention to Krayeske, waiting for him to slip up.  There was not, in other words, probable cause for Krayeske's arrest.   Being on a watch list is certainly stigmatizing.  Being arrested is certainly the deprivation of a tangible interest.

The problem might be that there are no facts to refute.  See Codd v. Velger, 429 U.S. 624, 627-28 (1977) ("If he does not challenge the substantial truth of the material in question, no hearing would afford a promise of achieving that result for him.")  Does being placed on a watch list involve no factual issues to refute?  One isn't we hope, anyway - placed on a watch list by lottery.  Someone, somewhere, made some factual determination that the person placed on the list was trouble.

Thoughts?

Catholic League v. City and County of San Francisco Goes En Banc

Establishment Clause cases bore me because the stakes are so low.   Early Christians died for their religion.  Today's religious people file lawsuits when someone sneezes at them.  Atheists cry when someone mentions God or gods or G-d. It's all very silly.  You'd think there wasn't real suffering in the world.

In any event, the Ninth Circuit Court of Appeals has agreed to rehear Catholic League v. City and County of San Francisco en banc.  The original panel opinion is here:

Appellants, Catholic League for Religious and Civil Rights, Dr. Richard Sonnenshein, and Valerie Meehan (collectively, “Catholic League” or “the League”), appeal the dismissal of their civil rights action under 42 U.S.C. § 1983 for failure to state a claim. At issue is the constitutionality of a non-binding resolution adopted by the Board of Supervisors of the City and County of San Francisco (“the Board”) concerning the adoption of children by same-sex couples and the Catholic Church’s position against such adoptions. Catholic League argues that in adopting the resolution the Board expressed disapproval of the Catholic religion in violation of the First Amendment’s Establishment Clause. Because we conclude that the resolution passes constitutional scrutiny, we affirm.
In Catholic League, San Francisco basically said, "Stop discriminating against gays."    The Catholics, naturally, filed a lawsuit.  You think I'm joking?  Here's the Resolution's introduction:
Resolution urging Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican, to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.
One should say to himself, "Life is good when your biggest problem is that someone hurt your feelings."  Yet in our culture of narcissism, hurt feelings are the basis for a lawsuit.

Pottawattamie County v. McGhee Oral Argument Transcript

The oral argument transcript from Pottawattamie County v. McGhee is available here.

Having read the oral argument transcript: It seems clear that Chief Justice Roberts and Justice Alito both favor the prosecutors.  Justice Breyer is a strong "maybe" for the prosecutors, as is Justice Scalia.  Justices Stevens and Ginsburg are going to vote in favor of the framed men: Justice Sotomayor is seemingly inclined to join them.  Justice Kennedy could go either way.

Justice Thomas, as is his habit, said nothing.  Justice Thomas is generally pro-prosecutor, and thus it's unlikely he'd cast the deciding vote in favor of liability.

This is going to be a close case.  That a case where a prosecutor framed an innocent citizen is a close case belies the assertion that liberal judicial activists have taken over the courts.

This should be an easy case.  Police are entitled to qualified immunity for pre-trial conduct.  Prosecutors do not deserve more protection than police officers receive.  That should be especially true where, as in Pottawattamie County, prosecutors framed an innocent man for murder.

Pottawattamie County v. McGhee Oral Argument

Today the United States Supreme Court hear oral arguments in Pottawattamie County v. McGhee.  NPR has this pre-oral argument report.  According to NPR's post-oral argument report, the oral arguments seemingly went badly:

The Supreme Court on Wednesday questioned whether allowing persons wrongfully convicted of crimes to sue prosecutors would have a chilling effect on prosecutions.
During oral arguments in Pottawattamie County v. McGhee, several justices said they were concerned about how their ruling would affect honest prosecutors if suspects could sue because they didn't like a jury verdict.
(You may read the oral argument transcript here.)  That argument is intellectually weak for all of the reasons I stated in this post.  A prosecutor is always entitled to absolute immunity for prosecutorial acts.  In Pottawattamie County, the prosecutors are being sued for acts taken before an indictment.  Prosecutors acting in an investigative capacity have for decades only been entitled to qualified immunity.  And yet the Republic has not fallen.

A prosecutor who does not - unlike the prosecutors in Pottawattamie County - frame a person would have any lawsuit against him dismissed under qualified immunity.  Honest prosecutors have nothing to fear.

By the way, the prosecutors in Pottawattamie County have never been disciplined; never been punished; never been sanctioned.  This is true even though it's indisputable that the Pottawattamie County prosecutors framed innocent black men.  What is wrong with our system of justice?

The Supreme Court will have the last word.  Will it give unethical prosecutors a pass - using the fake justification that honest prosecutors will be deterred from prosecuting cases if they can be sued for framing an innocent man?

Is Giving a Nazi Salute Inherently Disruptive?

At a city council meeting, a member of the public expressed his frustrations with the proceedings by giving a Nazi salute.  It seemed that no one paid much attention to the crank - with the mayor not even noticing.  Nevertheless, the major ejected the citizen upon learning of the salute.  Constitutional?

Yes, said a split panel from the Ninth Circuit:

In sum, the salute had little to do with the message content of the speaker whose time had expired. Rather, it was a condemnation of the efforts of the Mayor to enforce the rules of the meeting. The Council member who called the salute to the Mayor’s attention could reasonably have interpreted it as intended to support and to further the disruption that had just been occurring in the room. Officers presiding over public meetings are not required to condone conduct fostering disruptionof a meeting. The district court correctly ruled that the individual defendants were entitled to immunity when they reasonably acted on the belief that disruptive behavior was occurring and was fostered by the Nazi salute.
Norse v. City of Santa Cruz, No. 14802, slip op. at 14802 (9th Cir. Nov. 3, 2009) (here).

Judge A. Wallace Tashima properly dissented:
While it is clear under our case law that local public officials conducting public meetings can restrict speech at such meetings according to subject matter, duration, and method, it is equally clear that public officials may not restrict speech according to the viewpoint of the speaker. In order to avoid any constitutional problems, in a prior appeal, we construed the rules of the Santa Cruz City Council “to proscribe only disruptive conduct.”  That limitation on what conductthe Council rules proscribe is the law of the case. Yet, the record supports the inference that the Mayor and members of the City Council excluded Norse from the 2002 meeting because they disagreed with the views he expressed by givinghis silent Nazi salute.
Slip. op. at 14803 (Tashima, J., dissenting) (citations omitted).  This is a case that should have gone to trial:
If the reasonable inferences are drawn in favor of Norse, as should have done in this summary-judgment-like proceeding, Norse was deprived of his First Amendment right silently to protest the Council’s action by his Nazi salute because the Mayor and Council carried out their previously voiced threat— that Norse would be removed from the meeting if he engaged in rendering his Nazi salute again. What’s more, this law has been clearly established for decades. There is nothing ambiguous or “iffy” about this aspect of First Amendmentlaw. No reasonable local public official could believe that he could lawfully remove a member of the public from a public meeting because he found that person’s silent speech to be abhorrent or personally offensive.
Id. at 14807-08.

No Appellate Costs (Fed. R. App. P. 39) for Section 1983 Defendant

In Moore v. Andreno, No. 08-2426 (2d Cir. Nov. 2, 2009) (here) a civil rights plaintiff lost on appeal in his lawsuit against a police officer who unconstitutionally searched his home.  In a case that will be of great interest to civil rights lawyers, a unanimous three-judge panel of the Second Circuit Court of Appeals denied the defendant's Rule 39 motion for costs.  The six-page opinion concludes:

Exercising that discretion in light of the facts presented by this case, we determine thatequitable considerations warrant denying appellants’ request to recover costs. In particular, Moore’s meager financial resources and his good faith prosecution of claims alleging government misconduct by appellants—misconduct significant enough to convince a state trial judge to suppress evidence and to lead a panel of this Court to find a constitutional violation—counsel in favor of requiring appellants to bear their own costs.
Slip op. at 6.

Section 1981 and State Actors

Does 42 U.S.C. Section 1981 provide for a right of action against state actors? What a fascinating puzzle. It’s the stuff of a Federal Courts final exam.

First, the text. Title 42 U.S.C. Section 1981 does not, on its face, give a party a private right of action. Sure, it has rights-creating language, namely everyone “shall have the same right in every State and Territory to make an enforce contracts,” but it doesn’t say: “Anyone whose rights under this provision shall be able to sue.” Does that matter?

We all learned in law school that a right without a remedy is not a right. Or something like that. Today’s Supreme Court, however, is generally anti-lawsuit. Thus, it has taken the approach that, as the Court said in 1918: “The distinction between rights and remedies is fundamental. A right is a well founded or acknowledged claim; a remedy is the means employed to enforce a right or redress an injury.” Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 384 (1918). You can, in other words, have a right without a remedy. See Alexander v. Sandoval, 532 U.S. 275 (2001) (“The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.”)

In several cases, however, the Supreme Court held that Section 1981 does indeed contain a private right of action. Section 1981 does not just contain a right: It also contains a remedy. However, Section 1981 was original limited to private parties. Section 1981 did not contain a provision prohibiting the government from discriminating against its citizens.

Thus, in Jett v. Dallas Independent School District, 491 U.S.701 (1989), the Supreme Court held that Section 1981’s implied right of action did not cover state actors. Jett had a bitter dissent. After all, Section 1981 did not limit its text to private parties. Nevertheless, Jett’s holding was clear: There existed no private right of action against state actors.

Here is where things get interesting.

In 1991, Congress amended Section 1981 in the Civil Rights Act of 1991. According to the legislative record, “Section 1977 of the Revised Statutes (42 U.S.C. 1981) is amended- (c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”  Gee...What could that language have intended to accomplish?

Our syllogism should be clear, shouldn’t it? Section 1981 allows a private right of action. This private right of action extends to “impairment under color of State law.” Yet all but one Circuit Court of Appeals has held that Section 1981 does not allow a private right of action against state actors. How can this be?

Within a system of separated powers, Congress doesn’t give “high fives” to the Supreme Court. When the Supreme Court interprets a law that Congress favors, then Congress has no need to amend the law. Congress knew that the Courts implied a private right of action under Section 1981. Congress also knew about Jett’s holding. Isn’t that, after all, the clear implication of this language: “Section 1977 of the Revised Statutes (42 U.S.C. 1981) is amended- (c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”

The Circuits, though, claim that because Congress did not say, “We hate Jett,” but instead merely added statutory text stating that “impairment under color of State law” is prohibited: Congress somehow didn’t intend to overrule Jett.

McGovern v. City of Philadelphia, No. 08-1632 (3d Cir. Jan 8, 2009) (here) is illustrative. In McGovern, a unanimous three-judge panel wrote that “§ 1981(c) can establish equal rights for parties against private and state defendants without establishing equal remedies [].” That banality is true. However, the United States Supreme Court, in a long line of cases, had already held that Section 1981 contains a private right of action. Congress did not need to say, “We really liked the Supreme Court’s rulings.”

Instead, the Civil Rights Act of 1991 was enacted “to strengthen and improve Federal civil rights laws.” Congress did so by clarifying that Section 1981. Congress made it clear that Section 1981 “protected against ...impairment under color of State law.”

At last count, every Circuit but one (the Ninth; and you can bet how people will use that against my arguments) has held that the Civil Rights Act of 1991 did not overrule Jett. If the case goes before the United States Supreme Court, you can bet that the Supreme Court will uphold Jett.

It's still an interesting issue.  Probably someone has written an entire law review article on it.  If you know of a good one, please leave a comment.

False Imprisonment, Nursing Homes, and Judicial Immunity

Gross v. Rell, No. 08-2626 (2d Cir. Oct. 27, 2009):

For nearly a year beginning in 2005, Daniel Gross, an octogenarian, had a conservatorship imposed for his estate and person against his will. He was kept in a nursing home for ten months, until a Superior Court judge in Connecticut, citing “a terrible miscarriage of justice,” granted his petition for a writ of habeas corpus and ordered him released. This lawsuit stems from that unfortunate series of events.
It is alleged that a probate court judge signed a facially impossible order that did not comply with the law; the court-appointed attorney disregarded Gross’s wishes to return to his home in New York; the court-appointed conservator forcibly kept Gross in a nursing home, against medical advice; and a nursing home housed Gross with a violent roommate who attacked him. The complaint further alleges that defendant Maggie Ewald, Connecticut’s Long-Term Care Ombudsman at the time, did not act on complaints about Gross’s treatment at the nursing home because of concerns about adverse publicity.
These allegations, if true, might make out a case against the defendants. However, Judge Thomas P. Brunnock, Conservator Kathleen Donovan, Attorney Jonathan Newman, and Grove Manor Nursing Home, Inc. (“Grove Manor”) have asserted absolute immunity to suit: Brunnock has asserted judicial immunity and the other three have asserted quasi-judicial immunity. The District Court agreed and dismissed all claims against those defendants....
The federal common law defense of quasi-judicial immunity applies to Gross’s federal claims, and the similar but distinct state common law defense of quasi-judicial immunity applies to Gross’s state law claims. Connecticut state law is unsettled as to quasi-judicial immunity. Therefore, we certify questions to the Connecticut Supreme Court on the state law claims.
Read the rest here.  Any Connecticut insiders know the story about the names emboldened in the text?  They may be entitled to immunity from suit.  They are not entitled to immunity from public discussion.  Please send me an e-mail if there's corruption that requires the antiseptic of sunlight.

Stormans Inc. v. Selecky

Fortunately I had some familiarity with the legal issues.  Otherwise, Judge Kim Wardlaw's statement of the issues would have been confusing - since her statement is framed argumentatively, and anti-civil rights:

We must decide whether the district court abused its discretion by preliminarily enjoining the enforcement of new rules promulgated by the Washington State Board of Pharmacy (“Board”) that require pharmacies to deliver lawfully prescribed Federal Drug Administration (“FDA”)–approved medications and prohibit discrimination against patients, on the ground that the rules violate pharmacies’ or their licensed pharmacists’ free exercise rights under the First Amendmentto the U.S. Constitution. We have jurisdiction pursuant to 28 U.S.C. § 1292. Because we conclude that the district court incorrectly applied a heightened level of scrutiny to a neutral law of general applicability, and because the injunction is overbroad, we vacate, reverse, and remand.
Stormans Inc. v. Selecky, No. 07-36039, Slip op. at 14414 (9th Cir. Oct. 28, 2009) (here).  The realpolitick: Pharmarcists must give patients the morning-after pill.  Or else.  Others will no doubt blog about this case, since it has Culture War stamped on top of it.  Selecky is a trickier case than most want to admit.  Some will say, "As a pharmacist, your job is to give people whatever drug they obtain a prescription for."

Yet a pharmacist must have a license to practice pharmacy.  Here, a pharmacist is being forced to not just choose between a job and his morals; but his profession and his morals.  An employer should of course be able to make someone choose between her job and her morals.  Isn't it more extreme to make a person who has spent years in college and post-graduate school to make that choice?

Many criminal defense lawyers will not represent child rapists.  Others disagree with that choice, and claim that a criminal defense lawyer should represent all clients.  Nevertheless, we all agree that there should be some play in the joints.  The State Bar should not require lawyers to represent child rapists.  A professional should have at least some discretion.

Why can't a pharmacist have a similar play in the joints?  If CVS wants to fire the pharmacist, fine.  The government's forcing a person to lose his livelihood seems cruel.

Selecky is a disturbing case.  Unfortunately, people on either side simply scream at each other.  We all too often act as if there are no reasonable counter-arguments.  Alas.

Prisoner Grievances, Retaliation, and the First Amendment

In Brodheim v. Cry, No. 07-17081 (9th Cir. Oct. 28, 2009) is prisoner sued under the First Amendment, alleging that a prison guard retaliated against him for filing a prison grievance:

Michael Brodheim, a prisoner at the California Medical Facility (“CMF”), appeals the district court’s grant of summary judgment against him on his claim that his First Amendment right to petition the government for redress of grievances was violated by defendant Michael Cry, the prison Appeals Coordinator. The claimed violation occurred when a prison official denied Brodheim’s written “interview request,” and noted on the denial that Brodheim should be “careful” what he writes and requests in his administrative grievances. This was also followed by a request from the same official that Brodheim be transferred out of the CMF due to his filing of grievances and this lawsuit.
Held: Summary judgment in favor the prison guard was improper.  Slip op. at 14544.  Much of the opinion is devoted to a res judicata issue.  For the discussion of the prisoner's First Amendment claim, skip to slip op. at 14552 (page 11 of the .pdf); or just click here.  The quote that will show up in briefs: "[T]he mere threat of harm can bean adverse action, regardless of whether it is carried out because the threat itself can have a chilling effect."  Slip op. at 14554.

Police Dogs and Deadly Force

Interesting discussion of the issue in Thomson v. Salt Lake County, Utah, No. 06-4304 (10th Cir. Oct. 27, 2009):

Plaintiffs assert that the release of Chaos, Deputy Morrical’s police dog, constituted deadly force because Chaos is trained to bite and hold suspects, which conceivably can cause serious bodily harm and even death, and that it is possible that Chaos was not trained properly. We disagree that the use of a police dog on the facts of this particular case constitutes deadly force, but we leave open the question of whether the use of a police dog could constitute deadly force in other circumstances.
Initially, we decline to deem a police dog’s ability to bite and hold to be sufficient to make Chaos’s release, alone, an act of deadly force. To hold otherwise could result in nearly every release of a police dog being considered deadly force. See, e.g., Jarrett v. Town of Yarmouth, 331 F.3d 140, 143 (1st Cir.2003) (noting that undisputed evidence presented at trial indicated that the vast majority of jurisdictions train police dogs in the bite and hold method); Watkins v.City of Oakland, 145 F.3d 1087, 1091 (9th Cir. 1998) (“Police dogs were trained and tested to bite solidly, bite hard, and hold on.”); Kerr v. City of W. PalmBeach, 875 F.2d 1546, 1550 (11th Cir. 1989) (“Dogs in the canine unit were trained to ‘bite and hold’ a suspect. This method of training is employed by many other police departments throughout the country. The distinctive aspect of this training method is its aggressive nature: unless the handler countermands his order, the dog will seek to seize a suspect even if that individual complies with the officer’s orders. Thus, injury to the apprehended suspect is often inevitable.”); cf. Johnson, 576 F.3d at 661 (“[W]e do not mean to minimize the unpleasantness of having a German Shepherd clamp onto one’s arm or leg. This does not mean, however, that the practice of deploying trained dogs to bite and hold suspects is unconstitutional per se; the situation might warrant the use of a dog that has been trained and that is under the control of the officer . . . .”). Adopting a rule like that advanced by Plaintiffs—one that could essentially preclude the use of police dogs—would not be wise and we discern nothing that would compel us to do so.
Read the rest here.

Cattle Rustling, Bank Fraud, and the Fourth Amendment

It's hard to be sure what really happened in Bowling v. Rector, No. 07-6284 (10th Cir. Oct. 26, 2009) (here). Reading between the lines, it seems that a bank found a friendly police officer to harass the bank's customer.  The bank's customer had borrowed money from the bank using cattle as collateral.  When the cows went missing, the bank moved to foreclose.  Through influence or connections, the bank was able to convert its civil foreclosure action into a criminal investigation.  In order to do this, they enlisted an Oklahoma Special Ranger - Joe Rector.

Joe Rector applied for a search warrant of Danny Bowling's ranch.  In his search warrant application, Ranger Rector omitted a material fact: He lacked authority under state law to investigate bank fraud.  Unaware of Rector's omissions, the magistrate approved the warrant application.

After conducting an overbroad search, Rector was sued.  "In relevant part, Bowling’s complaint alleged that Rector had exceeded his limited statutory authority as an OSBI Special Ranger when he applied for a warrant to investigate bank fraud and sale of mortgaged property, when Oklahoma law dictates that Special Rangers may only enforce laws pertaining to the larceny of livestock."  Slip op. at 8.  A three-judge panel of the Tenth Circuit Court of Appeals dismissed exceeding-authority claim.  The discussion of the issue beings on page 14 of the slip opinion.

The opinion is disappointing.  This isn't an issue I've thought about myself, so I don't have an opinion about the legal issue.  The panel, instead of analyzing the issue, simply posits arguments in support of its favored outcome.  The panel acts as though there are no counter-arguments.  The opinion reads much more like a lawyer's brief than a judicial opinion.

While I don't have a strong sense about the issue, it is troubling when a police officer omits material facts in his search warrant application.  Would the examining magistrate had issued the search warrant if Rector had been truthful?  If the answer was, No, then the search might have unconstitutional.  Unfortunately, the panel doesn't even discuss the issue.

A lawyer's brief should be a piece of advocacy.  A judicial opinion should be a piece of scholarship.  Scholarship, unlike advocacy, is concerned with truth, process, and outcome.  The panel's opinion in Bowling didn't seem concerned with much more than simply supporting the judge's desired outcome.  Even if the panels' opinion reached the right conclusion, the judicial process was flawed.

Towing and Procedural Due Process

Lone Star Security v. Los Angeles, No. 07-56521 (9th Cir. Oct. 21, 2009) (here) is something you don't often see - a fun procedural due process case.  In Lone Star Security, a habitual violator of Los Angeles' parking ordinances sued after having their vehicles repeatedly towed.  The plaintiff, Lone Star, would park large trailers on city streets.  These trailers were nothing more than advertising billboards.

Under California law, police may two a vehicle that has been parked in the same location for 72 consecutive hours.  Los Angeles tweaked the law, in order to close a loophole.

Under state law, Lone Star could seemingly park in one location for 71 hours; move the car down a block; park for 71 hours; move the car down the block; ad infinitum and ad nauseum (especially in the parking-strapped city of Los Angeles).  To close this loophole,  Los Angeles enacted an ordinance that allowed police may tow a vehicle stating: "a vehicle shall be deemed parked or left standing for...72 hours unless during that period [it] is either driven a minimum of one mile after leaving the location where it has been parked or left standing or, within that period, is removed from any highway, street or alley."

Since Los Angeles' ordinance was seemingly preempted under state law, Lone Star filed a Section 1983 lawsuit, alleging violations of procedural due process.  A unanimous three-judge panel of the Ninth Circuit Court of Appeals dismissed their suit.  Slip op. at 14748 ("Lone Star purports to raise two distinct due process claims in this action. We conclude that the district court should haverejected the invalid-ordinance claim and properly rejected the notice claim.")

"Lone Star contends that its due process rights were violatedsolely by virtue of the City’s acting under an ordinance that is invalid under state law. We conclude that this claimfails as a matter of law."  Id. at 14749.  Why?  The panel goes into some detail, but here is the rule: "[A] plaintiff doe snot make out a § 1983 claim by alleging only that the government enforced a preempted state law."  Id. at 14751.

The notice claim was much more interesting, and is the type of analysis I enjoyed reading when preparing for law-school exams.  Before towing a vehicle, first-time offenders get pre-deprivation notice.  After a while, the city stopped giving Lone Star Security pre-deprivation notices.  Applying the Mathews v. Eldridge balancing test, the panel held that Lone Star Security was not entitled to a pre-deprivation notice:

First, although “[t]he uninterrupted use of one’s vehicleis a significant and substantial private interest,” Scofield, 862F.2d at 762, Lone Star does not assert such an interest. See Clement, 518 F.3d at 1094 (concluding that “the owner’s normal interest in continued use of his vehicle — as a means ofgetting from place to place” — had “no force” for the seizure at issue because the plaintiff’s car had “just sat in the parking lot, unused”). Lone Star was not using its trailers for transportation, but as an advertising medium in residential neighborhoods.Such a use creates a lesser interest in the trailers thanhad they served as a means of transportation. In addition, because of Lone Star’s unique status as a commercial, chronic offender having general notice through repeated previous individual notices that its trailers are subject to towing, the additional costs and burdens that concerned us in Clement are not present here. Lone Star suffers no “anxiety” when it discovers one of its trailers has disappeared from its parking place. When a trailer disappears, Lone Star knows that it hasbeen towed. Nor are Lone Star’s costs of reacquiring possession of impounded trailers of concern. Lone Star, despite knowing its trailers are subject to towing without individualized notice, nonetheless continues to violate the ban on parking more than 72-hours. Were violating the ordinance unprofitable, we presume that Lone Star would stop violating it.
Slip op. 14754.  That analysis is exactly right.  Lone Star Security was not an ordinary motorist whose vehicles were towed.  Lone Star was a repeat player.  They knew the score.  They didn't require pre-deprivation notice.  All in all, a very interesting procedural due process opinion.