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.



  Norm Pattis

6:18 AM


I will concede that the reputation plus theory is not one I considered in this case. Ken was on the list, and was then observed at the rally: the arresting officer thought his conduct suspicious as he arrived abruptly and took a camera from his bag. The arrest was not merely for being on the list, but I suspect that had he not been on the list, he would not have been arrested. I am not sure the result would have been different if we had raised the reputation plus claim: It appears that the Court is prepared to let a jury consider the totality of the circumstances leading the arresting officer to conclude there was probable cause for an arrest, thus arguably encompassing the reputation plus test. But the court most likely would have held that the mere keeping the list impacts reputation alone.


3:45 PM

Norm: Thanks for the comment. I wasn't second-guessing your theory of the case. I didn't find anything about name-clearing hearings and watch lists, after a quick search. So I could be off the reservation.

I might do some more research. It seems there is something there. It's a knotty issue, though.

I doubt that, after Hartman v. Moore, 547 U.S. 250 (2006), a person could allege that an arrest was the "plus" in a "stigma plus" due process injury. Even though Hartman dealt with retaliatory prosecution under the First Amendment, it's reasoning would seem to apply more broadly.

Here, though, it seems that there wasn't probable cause for the arrest. Because of that, it should be the "plus" of a "stigma plus." I could see the argument as follows: "My client is on a watch list. Because of his placement on a watch list, he was wrongfully arrested. He has the right to contest his placement on the watch list."

I wonder what the statute of limitations would be. If he's still on the watch list, wouldn't the continuing violations doctrine apply? In theory, the defendants could defend under City of Los Angeles v. Lyons. In Lyons, the plaintiff was just another black guy for the LAPD to beat up. Unlike in Lyons, though, your client is personally a "marked man."

I don't know. Seems interesting.

  Norm Pattis

4:32 AM


This is worth pursuing. I am frustrated by not being able to reach the list itself. The problem I have with the theory is that the list itself is simply the list itself. No one is arrested merely because they are on the list. Rather, the list operates as a lens through which otherwise innocent acts become inculpatory. Thus, the list requires some other act to cause harm and is not, in and of itself, actual harm. It is a fine line, to be sure. Let me know what you find.



8:39 AM

Yes, that's the issue. How about this: If you win on the false arrest claim, then there was no legal basis for the arrest. Thus, the unlawful arrest would have been the plus of the pretext plus. Use the false arrest as res judicata to attack the list.

If they claim you should have brought the due process claim earlier, argue that - as in malicious prosecution claims - you need a win on the merits of the false arrest to establish the plus.

If you lose on the false arrest claim, then there's likely be no action under Hartman v. Moore.

Also, someone else who has been on the watch list might be able to sue, using your client's false arrest as a way to establish standing. IOW, "Look what happened to the other guy who was on the watch list. He was arrested without probable cause. That will happen to me, too."

Next guy on the list who gets picked up, call me. We'll figure something out. I'll brief the response to the 12(b)(6) motion pro bono.

  Norm Pattis

8:40 AM


  Norm Pattis

6:52 AM


Client, a law student, has elected to take his case to the firm employing him. Unhappy with our effort and analysis.