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.

McSherry v. City of Long Beach

On March 30, 2009, in McSherry v. City of Long Beach, 560 F.3d 1125 (9th Cir. 2009) (here) (media coverage here), a unanimous three-judge panel held that a lawsuit alleging a fabrication of evidence claim against the Long Beach Police Department could go forward.  The original McSherry opinion was 12 pages.

Yesterday, in a 38-page opinion, the same panel withdrew the earlier - published opinion - issuing a superseding opinion.  In today's opinion, the panel dismissed the wrongfully convicted man's lawsuit.

The 38-page opinion is analytically unsound, and has disastrous policy implications.  The facts drive this case.  The facts involve an eyewitness identification; a car; and a grandmother's living room.

The Facts.  In 1988, a six-year-old girl and her brother were together at a playground.  A man got out of his car, kidnapped the six-year old girl, brought her to a home, and raped her.  Several hours later, the rapist released the victim.

The victim's four-year-old brother witnessed the abduction.  Both the victim and her brother gave police a description of the rapist.  The description did not match Leonard McSherry.

Several weeks later, Officer Norman Terry allegedly showed the two children a photographic line-up.  McSherry's picture was included.  According to Officer Terry, the children identified McSherry as the rapist.

Officer Terry also claimed that he showed the victim and her brother a photography array of cars.  According to, the children identified a yellow Mazda station wagon that belonged to McSherry's father.

Based on the eyewitness identification of McSherry and McSherry's father's car, Officer Terry applied for an arrest warrant.  Officer Terry then arrested McSherry.

At this point, all of us would agree that - assuming Officer Terry told the truth - there was probable cause to arrest McSherry.  No especially debatable, right?  The problem is that there is smoking-gun evidence providing that Officer Terry fabricated evidence.  Let's look at it.

After McSherry was in custody, McSherry gave a detailed description of his grandmother's living room.  Officer Terry claimed that, during a witness interview with the six-year-old victim, the victim described McSherry's grandmother's living room to a T.  There was one problem: The victim was never in the grandmother's living room.  We know this because: a) the victim said so; and b) McSherry never brought the victim to his grandmother's living room - since someone other than McSherry raped the child.

It wasn't until 16-years later that we learned that the victim had never been in McSherry's grandmother's room.  It wasn't until DNA evidence linked a notorious child rapist to the victim that we learned the truth.

Given that Officer Terry lied the living room: Couldn't a reasonable jury conclude that Officer Terry also lied when he claimed that the children identified McSherry as the rapist?  Remember, too, that the children's earlier description of the rapist did not match McSherry.

The Panel's Opinion.  The panel held that Officer Terry should escape criminal liability essentially because Terry did a good job of framing McSherry.  Do you consider that hyperbole?  Please read on.

The panel seems to suggest that a probable cause hearing based on fabricated evidence exonerates police officers who fabricate evidence against an innocent citizen.  Slip op. at 14588 ("The probable cause to arrest McSherry as well as to hold him to answer for trial was confirmed in a preliminary hearing held before a neutral magistrate where the victim again identified McSherry as her attacker, this time under oath.")  A preliminary hearing presupposes that the witnesses are testifying truthfully; and that they haven't been coerced or manipulated into giving false testimony.  Given that Officer Terry definitely fabricated evidence, isn't the preliminary hearing tainted?

Indeed, consider the opinion's policy implications.  A police officer who frames someone will escape liability if he does a really good job of framing the person.  If the officer's lies are believable, then of course a court will find probable cause that the defendant committed a crime.  According to the Ninth Circuit panel, a police officer who commits fraud upon the court cannot be sued - if, again, his fraud is done well enough.

The panel gave police officers another escape hatch.  The panel held that a police officer who tricks a prosecutor into filing charges (using fabricated evidence) can escape liability.  Wrote the panel:
In Beck v. City of Upland, 527 F.3d 853 (9th Cir. 2008), a case decided after briefs were filed and we heard oral argument in this matter, we held that "in any constitutional tort case . . . in which a prosecutor has instigated a prosecution, it is necessary, if not sufficient, that a plaintiff seeking to sue non-prosecutorial officials alleged to be responsible post complaint for the arrest or prosecution show the absence of probable cause."
Slip op. at 14589.  Think about the policy implications.  A police officer who frames an innocent citizen need only trick the prosecutor, too, to completely avoid civil liability.  Isn't that astounding?
The panel's attempt to sidestep the negative policy implications fail.  The panel wrote:
McSherry argues specifically that Lamb's independent investigation was tainted by Defendant's fabricated evidence and unconstitutionally suggestive interview procedures and techniques. This, of course, could be a valid claim — if McSherry had facts to back it up.
Slip op. at 14601.  McSherry does have the evidence to back it up.  Namely, Officer Terry lied about the grandmother's living room.  Moreover, the children's initial description of the rapist did not match McTerry.  A reasonable jury could infer that Officer Terry fabricated evidence in the arrest warrant, and that he "nudged" the children into identifying McSherry.
The panel, rather than addressing that argument, returns again to the preliminary hearing and decision-to-prosecute argument:
But McSherry’s presentation fell short and failed toraise a genuine issue of material fact as to whether the alleged fabrication or any misconduct by Defendants caused his arrest, prosecution, and conviction. As described above, there was probable cause to justify McSherry’s arrest and prosecution.
Slip op. at 14601.  Again, there was probable cause only because Officer Terry convinced a police and prosecutor that there was probable cause.  Since Officer Terry used fabricated evidence, both the preliminary hearing and prosecutor's decision were tainted.

Unfortunately, the panel gave Officer Terry a pass - even though the evidence seems pretty clear that Officer Terry fabricated evidence.  What's worse is that the panel's opinion seems to give police officers who frame an innocent citizen two escape hatches: Convince a prosecutor to file charges; or lie well enough at the preliminary hearing.

Tenth Circuit Court of Appeals on De Minimus Injuries in Excessive Force Cases

Apropos a recent post entitled, "Excessive Force, De Minimus Injuries, And Tight Handcuffs," a unanimous three-judge panel of the Tenth Circuit Court of Appeals today handed down a thorough excessive force case that begins:

After Robert Fisher mistakenly shot himself twice, his wife called 911. Two officers responded to the call. Fisher alleges, despite the seriousness of the gunshot wounds to his bicep and stomach, the officers handcuffed him in a painful manner that exacerbated his injuries. Fisher filed suit, claiming the officers violated 42 U.S.C. § 1983 by employing excessive force in violation of his Fourth Amendment rights.
The district court disagreed and granted summary judgment to the officers on qualified immunity grounds. The court concluded that, although the force used by the officers was excessive, the resulting injuries themselves were insufficient as a matter of law under our precedent to permit recovery.
Taking Fisher’s allegations as true, we conclude a reasonable jury could find his injuries sufficient to satisfy our minimal threshold injury requirement. Accordingly, we REVERSE.
Fisher v. City of Las Cruces, No. 07-2294 (10th Cir. Oct. 19, 2009) (here).  Although the panel held that the officers were not entitled to qualified immunity, the panel seemed to suggest that a plaintiff's injuries must be more than de minimus.

Concurring in the judgement, Judge Neil  Gorsuch, who has obviously given a lot of thought to the de minimus injury requirement, astutely writes:
In Section II.A.3, however, the majority takes a detour, asking whether, in addition to satisfying all three Graham factors, Mr. Fisher has also shown that he suffered a “non–de minimis injury.” Previously, we have required proof of some such injury only in cases involving allegations of overly tight handcuffing, and we have done so only to fill a small analytical void that Graham left open.
Even more fundamental questions still lurk here. How are we to square our opinion today with Cortez’s admonition that “proof of physical [or emotional] injury . . . is not an essential element of an excessive force claim”? 478 F.3d at1129 n.24. And how do we reconcile it with the Fourth Amendment’s plain language, which condemns all unreasonable seizures?
Are we certain that the Fourth Amendment really prefers, as an injury requirement might, eggshell plaintiffs over more resilient individuals? Or that the fortuity of whether an officer chooses to deploy handcuffs should determine the quantum of evidence a plaintiff must marshal to prove a constitutional violation? Most pointedly of all, how can we explain that free citizens must prove injuries to prevail on excessive force claimsunder the Fourth Amendment in light of the Supreme Court’s and our own refusal to require convicted felons to prove injuries to prevail on similar claims under the Eighth Amendment?
Judge Neil Gorsuch's thoughtful concurring opinion is required reading.

No Constitutional Right to Leave Pamphlets in Government Parks

Judge Richard Posner's legal opinions don't interest me.  Nevertheless, it seems that everyone has a crush on Judge Posner; and everyone loves the First Amendment.  Thus, you might enjoy Illinois Dunesland Preservation Society v. Illinois Department of Natural Resources, No. 09-1535 (7th Cir. Oct. 14, 2009) (here).  

The facts:

The defendants refused to display in the display racks in various buildings in the park a scary two-page pamphlet that the plaintiff had prepared. Entitled “Tips for Avoiding Asbestos Contamination at Illinois Beach State Park,” the pamphlet recommends “commonsense approaches . . . for minimizing exposure to you and your family from asbestos contamination while at the beaches of Illinois Beach State Park.”
The beaches do contain asbestos fibers, possibly as aresult of the park’s adjacency to a site on which Johns-Manville once manufactured building materials containing asbestos; another potential source is beachfront homes that contained asbestos and long ago washed into the lake.  But studies of the beaches by federal and stateagencies have not found levels of asbestos sufficient tomenace human health.
Slip op. at *2-3.  After a brief discussion of First Amendment forum doctrines, Judge Richard Posner wrote:
It is difficult to see what difference there is between such restrictions and the selection that the director of astate theater has to make among theater groups clamoring for access to the stage. Indeed it is rather difficult to see what work “forum analysis” in general does. It is obvious both that every public site of private expression has to be regulated to some extent and that the character of permitted regulation will vary with thedifferences among the different types of site.
Slip op. at *7.  In other words, Judge Posner doesn't like the First Amendment forum analysis cases.  Neither do I.  Still, the cases exist.  Do something with them.

Instead, Judge Posner decides against the plaintiffs on pragmatic grounds:
Which brings us to the compelling practical objections to the plaintiff’s position. Display racks crammed with brochures and pamphlets are omnipresent in public property in the United States, not only parks and otherareas of public recreation but also turnpike service plazas and the lobbies of government buildings. If the plaintiff’s conception of freedom of speech prevailed, every clerk responsible for stocking such a display rack would face a potential First Amendment suit by an interest group that wanted to influence government action or public opinion. Must every public display rackexhibit on demand pamphlets advocating nudism, warning that the world will end in 2012 (see Lawrence E. Joseph, Apocalypse 2012: An Investigation into Civilization’s End (2007)), reciting the “Seven Aphorisms of Summum” (the title of the plaintiff’s monument in the Summum case), or proclaiming the unconstitutionality of the income tax, together with pamphlets expressing the opposing view on all these subjects? Or (contrary to the recent ruling in Sutliffe v. Epping School Dist., 2009 WL 2973115, at *14 (1st Cir. Sept. 17, 2009)) must the park on request linkits online home page to every website of an organizationor a person who would like to express an opinion on asbestos fibers or any other topic that might relate to Illinois Beach State Park? We can guess what the effect of the position urged by the plaintiff in this case would be: no more display racks on public property; no more home pages for public agencies. See Pleasant Grove Cityv. Summum, supra, 129 S. Ct. at 1138; Sutliffe v. EppingSchool District, supra, 2009 WL 2973115, at *17 (“the Town has created a website with the intended purpose to convey information about itself to its citizens and others, and it has added a limited number of hyperlinks to external sites . . . in order to further this purpose. The public forum doctrine could risk flooding the Town website with private links, thus making it impossible for the Town to effectively convey its own message and defeating the very purpose of the website and hyperlinks chosen by the Town”). We can avoid that end by avoiding this beginning.
Slip op. at *10-11.  Judge Posner's legal opinions are overrated - at least if you care about the law rather than Judge's Posner's opinion of what the law should be.

Eleventh Circuit's Heightened Pleading Rule Violates Separation of Powers Principles

Article I of the Constitution delegates the Congress the power "[t]o constitute tribunals inferior to the Supreme Court []."  This Article I power includes the power to draft rules of procedure.  Congress has enacted rules of procedure in federal courts, namely the Federal Rules of Civil Procedure.

Under Rule 8 of the Federal Rules of Civil Procedure, a plaintiff need merely allege a "a short and plain statement of the claim showing that the pleader is entitled to relief []."  Nevertheless, the Eleventh Circuit Court of Appeals has enacted a heightened-pleading rule in Section 1983 cases:

However, this Circuit has tightened the application of Rule 8 in section 1983 cases where qualified immunity is at issue, like this one. In such cases, the “heightened pleading standard” applies and “[s]ome factual detail in the pleadingsis necessary.” GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1367(11th Cir. 1998); see also Danley v. Allen, 540 F.3d 1298, 1314 (11th Cir. 2008) (“Under the heightened pleading requirement, the relevant facts must be allegedwith some specificity.”) (internal quotation omitted). The purpose of the heightened pleading standard is for the plaintiff to provide facts with “sufficient detail for Defendants to understand what alleged rights were violated . . . and which of their actions allegedly violated those rights,” as well as “for the court to determine whether those facts indeed set out a violation of rights and whether those rights were clearly established when these incidents occurred.” Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1180 (11th Cir. 2009).
Harper v. Lawrence County, No. 09-10226, slip op. at *8-9 (11th Cir. Oct. 7, 2009) (here). Those are all noble policy goals.  Perhaps Congress should rewrite the Federal Rules of Civil Procedure to enact the Eleventh Circuit's policy goals.

However, Congress disagrees with the Eleventh Circuit Court of Appeals.  Congress requires notice pleading in Section 1983 cases.  Pleading standards are matter of Article I - not Article III - authority.

The Eleventh Circuit has abrogated Congress' Article I powers.  It has violated separation of powers principles.  It has created a new rule that has no basis in the law.  "The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body."  The Federalist No. 79 (Alexander Hamilton) (concerning the judiciary).

The Eleventh Circuit should reverse its unconstitutional line of cases - cases where impose upon litigants requirements that Congress rejected.  Otherwise the Supreme Court should review the Eleventh Circuit's rulings.  Judge-made heightened pleading standards are unconstitutional, as they are an abrogation of Congress' Article I powers.

No Sanctions for Frivolous Appeal

Section 1983 law, on its face, seems pretty simple.  Section 1983 is nothing more than a constitutional tort.  The law of torts is simple.  The challenge tort lawyers face is marshaling the facts.  Rarely do tort laws trip over the law.  Section 1983 law is complex, with many rules that even a well-educated legal observer wouldn't anticipate.

Thus, lawyers often litigate Section 1983 cases with embarrassing results.  Today's example comes from the Ninth Circuit Court of Appeals.  See Padgett v. Wright, No. 08-16720 (9th Cir. Oct. 14, 2009) (here).

Some quick background: In nearly every tort case, a defendant may not appeal an order denying him summary judgment.  Instead, the defendant must face trial.  If the defendant loses at trial, the defendant may appeal.  Section 1983 cases are an exception.

A denial of a defendant's motion for summary judgment is immediately appealable.  Mitchell v. Forsyth, 472 U.S. 511, (1985).  Qualified immunity is not merely immunity from liability, it is immunity from suit.  Thus, a defendant should not be forced to stand trial simply because a federal judge denied his motion for summary judgment.  The immediately-appealable rule is one of many "quirks" of Section 1983 law.

In Padgett v. Wright, the defendant lost at summary judgment.  His case proceeded to trial.  He lost.  Nevertheless, his lawyer appealed the denial of the motion for summary judgment.  The panel quickly showed why the lawyer who appealed the denial of summary judgment was out of his league:

Wright’s interest in immediately appealing the district court’s denial of qualified immunity was an interest in avoiding “stand[ing] trial or fac[ing] the other burdens of litigation.” Mitchell, 472 U.S. at 526. Because the trial has already occurred, there is no longer any compelling reason for us to deviate from the general rule preventing us from reviewing denials of summary judgment. “Since the appeal was taken before the trial, the only ruling that it could challenge was the ruling that [Wright] must stand trial. . . . Since all that was atstake in the appeal was whether [Wright] must stand trial, thetrial mooted the appeal by eliminating the stake.” Chan v.Wodnicki, 67 F.3d 137, 140 (7th Cir. 1995).
Slip op. at *14560.  Nevertheless, the panel did not sanction the defendant for filing a frivolous appeal:
The Padgetts ask us to sanction Wright for filing a frivolous appeal. Fed. R. App. P. 38 (“[I]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.”). Because their request was not separately filed, we deny the request. See Higgins v. Vortex Fishing Sys., Inc., 379 F.3d 701, 709 (9th Cir. 2004) (“Arequest made in an appellate brief does not satisfy Rule 38. . . .” (quoting State of Cal. Emp. Dev. v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1154 (9th Cir. 1996))).
Id. at *14561.  The Court of Appeals should have sanctioned the defendant for wasting its time.  The Ninth Circuit is a busy court.  It takes well over a year to issue its rulings when deciding meritorious appeals.  Frivolous appeals not only harm the Court.  Frivolous appeals harm the litigants with properly-filed appeals who must wait in line behind a frivolous appeal.

 I suspect that the Seventh Circuit Court of Appeals (especially with Frank Easterbrook on the panel) would have been so relaxed.  The Seventh Circuit has the right approach to sanctions.  Appeals are serious business.  Don't waste the Court's time.  Don't waste the time of litigants with invalid appeals.  Everyone suffers when frivolous appeals are filed.

Excessive Force, De Minimus Injuries, and Tight Handcuffs

Recently defendants in excessive force claimed have offered this defense: "Even if I pushed the guy on the ground, his injuries weren't bad.  Thus, the excessive force claim should be dismissed."  Shouldn't the degree of plaintiff's injuries go to damages rather than liability?  Amazingly, some courts are receptive to de minimus injury argument.

Imagine if, in a criminal assault case, a defendant said, "Sure, I pushed him up against the wall. It's not like I hurt him that badly."  Arguments that would earn a criminal defendant a tongue lashing become persuasive when made by a police officer who has been sued for excessive force.

Today, in Morrison v. Board of Trustees of Green Township, No. 08-3051 (6th Cir. Oct. 8, 2009) (here), a unanimous three-judge panel rejected "a blanket de minimis injury requirement for excessive force claims." Slip op. at *16.  In Morrison, the police officer allegedly pushed a handcuffed woman on the ground.  The Sixth Circuit held that a police officer who wantonly inflicts punishment cannot defend himself by claiming, "I only hurt the plaintiff a little."  Wrote the court:

"Gratuitous violence" inflicted upon an incapacitated detainee constitutes an excessive use of force, even when the injuries suffered are not substantial. See, e.g., Pigram ex rel. Pigram v. Chaudoin, 199 F. App’x 509, 513 (6th Cir. 2006). In Pigram, it was alleged that the defendant police officer slapped the handcuffed plaintiff in the face because the latter was being unruly and had a “smart-ass mouth.” Id. at 513. Finding the defendant’s conduct to be unreasonable under the Fourth Amendment for the purposes of summary judgment, Pigram emphasized that a “slap to the face of a handcuffed suspect – even a verbally unruly suspect – is not a reasonable means of achieving anything more than perhaps further antagonizing or humiliating the suspect.” Id. The Court reached this conclusion notwithstanding the relatively minimal use of force applied and the absence of any resulting injury. See id. (stating “under specific circumstances, a slap may constitute a sufficiently obvious constitutional violation” even if “involv[ing] less physical force than a ‘tackle’”).
Id. at *17.

The officer also allegedly tightened the handcuffs, cutting off the circulation of the plaintiff's wrists.  In denying qualified immunity in an excessive force claim, gave us a helpful summary of the law of tight handcuffs:
In order for a handcuffing claim to survive summary judgment, a plaintiff must offer sufficient evidence to create a genuine issueof material fact that: (1) he or she complained the handcuffs were too tight; (2) the officer ignored those complaints; and (3) the plaintiff experienced "some physical injury" resulting from the handcuffing. See Lyons v. City of Xenia, 417 F.3d 565, 575-76 (6th Cir. 2005).
Slip op. at *8.  How much of an injury is required in order to state a claim for excessive force based on tight handcuffs?
The remaining, and most contentious, issue on appeal with respect to the handcuffing claim is whether Amanda alleged an adequate physical injury to preclude summary judgment. In finding Amanda met this requirement, the district court relied on Cynthia’s testimony that the handcuffs were so tight that "[Amanda's] skin was all pinched over and it was turning black and blue." Although not specifically mentioned by the district court, there was also evidence that there were "marks" on Amanda’s wrists as a result of the handcuffing. Specifically, Amanda explained to an inquiring paramedic that the marks on her wrists were from the handcuffs. Officer Celender argues that allegations of bruising and wrist marks alone are, as a matter of law, insufficient to establish a "physical injury." We disagree.
Slip op. at *9 (citations omitted).  Bottom line?  "[B]ruising, skin marks, and attendant pain allegedly suffered by Amanda during the forty to fifty minutes she was handcuffed creates a genuine issue of material fact regarding the existence of an injury."  Id. at *10.

Williamson County; and England Reservations

Anyone who has filed a Section 1983 lawsuit alleging a takings, has felt the hammer of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).  Land use cases have an exhaustion requirement.  For an outstanding summary of Williamson issues, check out Los Altos El Granada v. Capitola, 07-1688 (9th Cir. Oct. 7, 2009) (here), which begins:

The complicated procedural history of this case reveals the sisyphean task that the Supreme Court’s decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), has created for plaintiffs who seek to have their federal takings claims adjudicated in federal court. After a full complement of administrative appeals, three California Superior Court decisions, a California Court of Appeal decision, three federal district court decisions, and one prior federal appellate court decision, the plaintiff in this case assumed that it had properly exhausted its state law causes of action in state court and would be entitled to present its unadjudicated federal claims in federal court. Yet, the district court decided that in the process of exhausting its state law causes of action the plaintiff had created a bar to any subsequent assertion of federal claims in federal court.

Byrd v. Maricopa County Sheriff's Department to be Reheard En Banc

In Byrd v. Maricopa County Sheriff's Department, No. 07-16640 (May 18, 2009) a split panel of the Ninth Circuit Court of Appeals held that cross-gender strip searches were constitutional under the Fourth Amendment.  The Ninth Circuit has agreed to rehear the case en banc (order).  For some Byrd-related gallows humor, check out this post by Shaun Martin.

Tasers and the Fourth Amendment

The Fourth Amendment requires police to use reasonable force when arresting a citizen. A police officer who harms a citizen may be subject to an excessive force or unreasonable force claim. Many police officers have begun tasering people into compliance; or in retaliation for “insolence” or “disrespect.” Departmental policy has become: Taser first, ask questions later.  Is this pro-Taser policy constitutional?

On Friday, a split Eighth Circuit Court of Appeals panel opinion approved the use of a Taser in an unusual circumstance. See Cook v. City of Bella Villa, No: 08-2712 (8th Cir. Oct. 2, 2009). Cook had some disturbing facts, which require repeating.

Edward Locke is the chief of police of Bella Villa, Missouri. For reasons not immediately clear, Locke remains police chief even though several women have accused him of sexual assault. Indeed, Cook v. City of Bella Villa, was the second published Eighth Circuit Court of Appeals opinion involving claims of sexual assault against Locke. See also, Schmidt v. City of Bella Villa, 557 F.3d 564 (8th Cir. 2009) (Locke required woman to unbutton her pants so Locke could take multiple pictures of a tattoo located near her public area).

Locke stopped a motorist who was allegedly swerving over the center line for “three miles.” The female motorist claimed the police made a false factual statement. She also challenged Locke’s epistemology: She noted that noted that Locke had just pulled out from behind a bend in the road, a mere one-hundred yards behind. Thus, it would have been impossible for him to have seen her swerving.

Locke demanded that the woman “blow into his hand.” She refused. He arrested her. Then it gets creepy.

thrust his knee between [Diane's] legs, and while Diane was still leaning on the hood of the patrol car, Chief Locke began to paw and stroke her, beginning at Diane’s waist and moving down to her buttocks. Diane testified Chief Locke was “rubbing down [her] butt onto and around [her] inner/outer thighs, [and then] around the front.” ... Diane claims Chief Locke then slid his hands under her sweater and began “working his hands up from [her] waist up to [her] sides towards [her] breasts.”
Slip op. at *5.

Michael Cook, the motorist’s husband, was in Diane's car during the assault:
When Chief Locke began moving his hands underneath Diane’s shirt toward her breast area, Michael exited the vehicle. Michael stated, “Yo, dude, what’s the problem? You can’t be touching her that away.” When Michael made those comments, he was standing beside the car. Chief Locke told Michael that Chief Locke would talk to Michael in a minute. Michael remained where he was, smoking a cigarette. Chief Locke then walked Diane to where Michael was standing. Michael took one step toward Chief Locke. Chief Locke told Michael to “[g]et back in the fucking car” and, at the same time, Chief Locke tasered Michael. Michael never saw the taser.
Slip op. at *26 (Shepherd, J., dissenting). Michael sued Locke, alleging (among other claims) that using of a Taser without any notice was an unreasonable use of force. The trial court granted summary judgment in favor of Locke. Shockingly, a split panel of the Eighth Circuit Court of Appeals affirmed.

The panel stated:
Viewing the facts in the light most favorable to the Cooks, Michael stepped out of the vehicle to confront Chief Locke when Michael saw what he believed to be Chief Locke inappropriately touching Diane. Michael began yelling at Chief Locke and took one step forward. Chief Locke instructed Michael to get back into the car, and Chief Locke simultaneously tased Michael.
Slip op. at *11.  The panel recognized, then, that Locke tasered Michael without any warning. The panel failed to note, however, that Michael had good cause to approach Locke.  Locke, after all, was sexually assaulting his wife.

The panel nevertheless affirmed summary judgment:
In evaluating Appellees’ motion for summary judgment, the district court concluded, “[Chief] Locke’s conduct, in tasering and causing Michael’s head to strike the subject vehicles, [was] objectively reasonable as a matter of law.” The court continued, “In addition to being alone and outnumbered by presumably intoxicated suspects, Diane’s sarcastic comments and noncompliance, coupled with Michael’s wayward behavior in exiting the vehicle and opposing Locke’s arrest and/or search could lead a reasonable officer to respond in the manner described of [Chief] Locke.” We agree.
Slip op. at 11-12. The panel seems to be suggesting that “sarcastic comments” are a reason to taser a citizen. That's an unfortunate analysis, which among other reasons, caused Bobby E. Shepherd to dissent.

In his dissent, Judge Shepherd conducted a standard use-of-force analysis.  Id. at *26 (balancing the "severity of the crime at issue, whether the suspect poses an immediate threat to the safety ofthe officers or others, and whether [the suspect] is actively resisting arrest orattempting to evade arrest by flight") (citations and quotation marks omitted).  Judge Shepherd only briefly discussed the use of Tasers against a non-violent suspect.  Id. at *28 ("With regard to Michael’s yelling at Chief Locke, 'a reasonable officer would not discharge his Taser simply because of insolence.'") (quoting Parker v. Gerrish, 547 F.3d 1, 10 (1st Cir. 2008)).

The use of Tasers is an issue of scholarly concern and real-world impact.  The law needs Judge Shepherd's handiwork, as Judge Shepherd would no doubt provide a scholarly analysis of this important issue.

Therefore, the Eighth Circuit should rehear Cook en banc. Cook presents a perfect opportunity for the entire Court to consider whether a Taser may be used where the citizen’s only “offense” is causing offense. See Parker v. Gerrish, 547 F.3d 1, 10 (1st Cir. 2008) (“a reasonable officer would not discharge his Taser simply because of insolence.”) Tasers were originally used as a substitution for deadly force.  These days, a person who fears that a police officer might rape his wife can be tasered.

Under what circumstances may a Taser be used? May a Taser be used for compliance-only purposes where a police officer does not face any threat? May a Taser be used where, as here, a citizen is yells at a police officer who is sexually assaulting his wife?

Are citizens required to remain quiet when witnessing a woman being sexually assaulted by the police? Ultimately, Michael Cook was tasered for simply telling Locke to stop sexually assaulting his wife. May a police officer really Taser a man for telling him to stop sexually assaulting his wife?  That seems to be one implication of the panel's ruling.

Let's hope this case gets reheard en banc.

Ninth Circuit Strikes Down Leafleting Prohibition

Klein v. City of San Clemente, No. 08-55015 (9th Cir. Oct. 2, 2009) (here):

The City of San Clemente flatly prohibits the leafleting ofunoccupied vehicles parked on city streets. We conclude that petitioners are likely to succeed in demonstrating that the City’s justification for its prohibition is insufficient and that they have otherwise met the requirements for obtaining a preliminary injunction enjoining enforcement of the prohibition.We therefore reverse the district court’s order denying petitioners’ motion for a preliminary injunction and remand forfurther proceedings consistent with this opinion.

Millender v. County of Los Angeles Goes En Banc

Law Professor Eugene Volokh comments about Millender here.  Shaun Martin wrote about Millender a couple of months agon, in a post you may find here.

Prisoner Chained to Bed During Childbirth May Sue, Eighth Circuit Holds

Here is the Clerk's unofficial summary of Nelson v. Norris, No. 07-2481 (8th Cir Oct. 2, 2009) (here):

[PUBLISHED] [Murphy, Author, for the Court En Banc]Prisoner case - Prisoner civil rights. For the vacated panel opinion inthe case, see Nelson v. Corr. Med. Servs., 533 F.3d 958 (8th Cir. 2008). From all of the evidence a factfinder could draw the inference that defendant Turensky, the corrections officer who shackled plaintiff to her hospital bed during the delivery of her child, recognized that shackles interfered with plaintiff's medical care, could be an obstacle in the event of a medical emergency, and caused unnecessary suffering at a time when plaintiff would likely have been unable to flee because of the pain and birth process; as a result there was sufficient evidence in the record to permit a reasonable fact finder to determine that Turensky's actions violated the Eighth Amendment; since plaintiff's right to be free of such cruel and unusual punishment was clearly established, the district court did not err in denying Turensky's motion for summary judgment based on qualified immunity; with respect to plaintiff's claims that defendant Norris, the director of the department of corrections, violated her Eighth Amendment rights by failing to ensure that proper policies and customswere in place with respect to the restraint of female inmates in labor, there was no evidence that Norris personally displayed deliberate indifference to the hazards and pain resulting from shackling a prisonerduring the final stages of her labor, and the district court did not err ingranting his motion for summary judgment based on qualified immunity. Judge Riley, with whom Chief Judge Loken, and Judges Colloton,Gruender and Shepherd join, concurring in part and dissenting in part.