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


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 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.


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.