But Police Get Tasered, Too!

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

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

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

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

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

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

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

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

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

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

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

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

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

Taser Case May Proceed to Trial

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

Marijuana and Federal Courts

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

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

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


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

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

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

Was Monroe v. Pape Wrongly Decided?

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

Was Monroe v. Pape wrongly decided?

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

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

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

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

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

The law, Dickens noted, is an ass.

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

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

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

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

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

Reprinted courtesy of the Connecticut Law Tribune.

Is Refusing to Meet with a Citizen Retaliatory?

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


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

Turkmen v. Ashcroft Issued

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

Eighth Circuit Holds that Fabricating Evidence is Not Conscience Shocking

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

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

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

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

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

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

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

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

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

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

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

Cowboy Cops Kill Innocent Bystander

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

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

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

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

Liquor Licenses and Section 1983

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

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

No Fourth Amendment Violation to Force Police to Take Breathalyzer

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

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

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

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

Procedural Due Process and Destruction of Private Property

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

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

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

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

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

However, the government cannot be arbitrary and capricious:

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

Standing and the PATRIOT Act

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

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

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

Law Review Article as Judicial Opinion

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

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

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

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

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

Sheldon Nahmod on Public Employee Free Speech


Advise-of-Counsel Defense in Qualified Immunity Cases?

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

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

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

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

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

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

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

Proving Deliberate Indifference in Denial of Medical Care Cases

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

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

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

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

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

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

Prayers for Police?

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

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

Is a Pre-Sale Home Inspection Requirement Constitutional?

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

How to Spot Pretext

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

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

Ord v. District of Columbia May Go to Trial

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

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

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

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

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

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

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