Fourth Amendment Blog on Strip Searches

Courts, it seems, are obsessed with strip searches.  In the conservative Fifth Circuit, misdemeanor arrestees may not be strip searched without reasonable suspicion.  (More here.)

This is a weird issue for me.  I understand the "inherent dignity" of mankind arguments.  Yet I showered in a locker room since Junior High.  What's the big deal about someone strip searching you?

During Basic Training, I was strip searched for contraband.  Most of the guys there (all-male Basic Training) were high school athletes.  None of us thought it bizarre.

Wins for the Fourth Amendment are so rare, that I shouldn't take a contrarian view.  Take your wins where you can.

Probably the answer is in culture.  If a woman takes her top off in public, people freak.  People in the United States are uncomfortable with a woman breast feeding.  Thus, there's something "special" about being naked.

Intellectually, I see the point.  I don't agree with the arguments, however.

Third Circuit Uphold Strip Search Policy

Shannon P. Duffy, writing for The Legal Intelligencer, has a story that begins:

For decades, it was well settled in federal law that jails cannot employ a blanket strip-search policy that includes even those arrested on minor offenses whose behavior would not trigger any reasonable suspicion of the need for such an intrusive search.
Those days are over.
The pendulum is now swinging in the other direction and the law is very much in flux as illustrated by Tuesday's decision from the 3rd U.S. Circuit Court of Appeals that upheld blanket strip-search policies in two New Jersey counties.
You may read the rest here.  Our prior posts on strip searches are available here.

PLRA Legal Fees

Brother, can you spare a dollar-fifty?

Mootness and Prevailing Parties

The Legal Intelligencer has this report:

In Singer Management Consultants Inc. v. Milgram, the 3rd U.S. Circuit Court of Appeals has granted en banc rehearing before a 16-judge court to decide on the proper test for determining when a plaintiff is entitled to attorney fees as the "prevailing party."
The vote to rehear the case en banc was a swift one, and it vacates an Aug. 5 decision that said plaintiffs may be entitled to fees even when a case is declared moot if the presiding judge played a role in persuading government officials to change their legal positions.
A dissenting judge, however, said he believes that a plaintiff never enjoys the status of prevailing party unless he emerges from court with an enforceable order. Apparently that dissenting view has now swayed a majority of the court's judges to vote for rehearing.
You may read the rest of the story here.  Our prior discussion of this horrible doctrine is here.

Kids-For-Cash Judges Denied Absolute Judicial Immunity

Shannon P. Duffy of The Legal Intelligencer offers this report:

Even the doctrine of absolute judicial immunity proved to be too weak a defense for the two disgraced former Luzerne County judges who are the leading figures in Pennsylvania's "kids-for-cash" scandal.
A federal judge has ruled that the pair -- Michael T. Conahan and Mark A. Ciavarella Jr. -- are immune only for actions they took in court or while ruling on cases, but that they can still be sued for their roles in an alleged conspiracy to take kickbacks from the owner and builder of a privately run juvenile prison. Conahan had also asserted a defense of legislative immunity, arguing that some of the allegations lodged against him stemmed from the funding decisions he made in his role as president judge.

Bizzaro World or Consolation Prize?

You decide.

False Rape and False Arrest has this fascinating account of a woman who had been jailed for filing a false rape complaint.  Later her claim was proven truthful.  I had to call this case interesting, because the poor victim must have been completely traumatized.  Nevertheless, a hazard of working among the suffering is that one comes to view human suffering as interesting.  There's a balance.

If you allow yourself to get sucked into your client's problems, you'd have a nervous breakdown.  Unlike a client, a civil rights or criminal lawyer has dozens of clients.  That's dozens of traumas.  If you ignore the suffering altogether, you become jaded and thus less persuasive.  As David Hume recognized, all movement follows emotion.  If you don't care, where would you find the motivation to work?

Lawsuit Against Student-Harassing Prosecutor May Proceed has this report.

When Will a Church Be Held Liable for Employment Discrimination?

Almost never, under the - judicially-created ministerial exception to federal anti-discrimination laws. has this report about Skrzypczak v. Catholic Diocese of Tulsa (CA10) (here).

Those Sworn to Enforce the Law May Ignore It

There is no mistake-of-law defense, unless you're a police officer.

Multi-Issue Strip Search Case

091185P.pdf 06/30/2010 Alice McCabe v. Michael Parker
[PUBLISHED] [Bye, Author, with Wollman and Murphy, Circuit Judges]
Civil case - civil rights. Plaintiffs were able to adequately present the conflicting testimony regarding the place where they were arrested during a Cedar Rapids anti-war protest, and the district court did not abuse its discretion by denying their requests for permission to ask leading questions during their direct examination of the arresting officers; no abuse of discretion in denying plaintiffs permission to question the officers about a settlement; jury's answers to special interrogatories were correctly interpreted by the district court as showing that the jury found plaintiffs' arrests were supported by probable cause under Iowa law; because defendant Macaulay had probable cause for plaintiffs' arrest he could not be held liable for any damages from an unlawful search conducted by others as part of plaintiffs' booking process; district court did not abuse its discretion by determining that plaintiffs' case was a "garden variety" strip search case or by using a damage comparison approach in evaluating the size of the damage award; nor did the court abuse its discretion by finding a $750,000 damage award was excessive; however, the court erred in remitting the damage award to $75,000; when a court employs a damage comparison approach and thereafter identifies a range of reasonable jury awards in similar cases, the court is not at liberty to remit the award to the low range or even somewhere in the middle; the court's only choice is to remit the award to the maximum amount identified as within the reasonable range; the matter must be remanded to the district court for recalculation of the remittitur; on remand the court should consider the effect of inflation when comparing the awards from earlier cases, and it should make an award to each plaintiff; the plaintiffs should have the option of accepting the new remittitur or undertaking a third trial on the issue of damages from their unlawful strip and body cavity searches; the award of attorneys' fees must also be reversed for reconsideration in light of the ruling on remittitur.

Religious Freedom Restoration Act (RFRA) and Marijuana Use

United States v. Quaintance (CA10) (here);

Danuel and Mary Quaintance responded to their indictment for conspiracy and possession with intent to distribute marijuana with a motion to dismiss. They didn’t deny their involvement with the drug, but countered that they are the founding members of the Church of Cognizance, which teaches that marijuana is a deity and sacrament. As a result, they submitted, any prosecution of them is precluded by the Religious FreedomRestoration Act (“RFRA”), which forbids the federal government from substantially burdening sincere religious exercises absent a countervailing compelling governmental interest.
After taking extensive evidence, the district court denied the motion to dismiss. It held, as a matter of law, that the Quaintances’ professed beliefs are not religious butsecular. In addition and in any event, the district court found, as a matter of fact, that the Quaintances don’t sincerely hold the religious beliefs they claim to hold, but instead seek to use the cover of religion to pursue secular drug trafficking activities.
After this ruling, the Quaintances pled guilty to the charges against them butreserved their right to appeal the district court’s denial of their motion to dismiss. They do that now. Because we conclude the district court did not err in finding the Quaintances insincere in their beliefs, we affirm its judgment.

May One Sue the State Under Section 1983 to Demand DNA Testing?

The Supreme Court will decide.

Use of Taser Unconstitutional, Though Not Clearly So in 2005

Are Tasers such alien devices that someone couldn't understand why using them without good reason would be unreasonable?  If I can't club you, punch you, kick you, pepper spray you, or choke you: Why should I be able to Taser you?  One needn't have a perfect SAT score to analogize a Taser to other pain-inflicting devices.

Early one morning in the summer of 2005, Officer Brian MacPherson deployed his taser against Carl Bryan during a traffic stop for a seatbelt infraction. Bryan filed this action under 42 U.S.C. § 1983, asserting excessive force in violation of the Fourth Amendment. Officer MacPherson appeals the denial of his motion for summary judgment based on qualified immunity. We affirm the district court in part because, viewing the circumstances in the light most favorable to Bryan, Officer MacPherson’s use of the taser was unconstitutionally excessive. However, we reverse in part because the violation of Bryan’s constitutional rights was not clearly established at the time that Officer MacPherson fired his taser at Bryan on July 24, 2005.
Bryan v. McPherson (CA9) (here).  Because this case was decided on qualified immunity, the lawyer won't get paid.

Attorney's Fees, Nominal Damages, and the Public Purpose of Section 1983 Actions

Here's one way to get an award of attorney's fees when only nominal damages were awarded at trial:

The jury awarded no compensatory damages, and this lack of damages normally would weigh against a fee award. See Farrar, 506 U.S. at 115. But on the other hand, the jury held that Maley used excessive force, and an award of fees is justifiable if the jury verdict prompted a tangible benefit. Here, we conclude that a fee award serves a purpose beneficial to society by encouraging the City of San Diego to ensure that all ofits police officers are well trained to avoid the use of excessive force, even when they confront a person whose conduct has generated the need for police assistance.
Perhaps more important, a fee award sends an unmistakable message to the City and its police department that even when police officers reasonably must take forceful actions in response to an incident, and even when such forceful actions are permissible at first, if the officers go too far by unnecessarily inflicting force and pain after a person is subdued, then the force, unnecessary in part of the action, can still be considered excessive. 
As an example, suppose extreme force isneeded to subdue a violent offender. Nonetheless, for police officers to then kick the person when he or she is down, or touse pepper spray to cause pain without any need to use it for safety, may be considered excessive force by a jury. This is significant here because the SDPD internal affairs division concluded, contrary to the jury, that Maley did not use excessive force. See Morales v. City of San Rafael, 96 F.3d 359,363-64 (9th Cir. 1996) (reasoning that if the jury had awarded only nominal damages, the plaintiff would nonetheless have been entitled to attorney’s fees because his victory served the public purpose of helping to protect him and others from being subjected to similar unlawful treatment in the future and constituted a warning to law enforcement officers to treat civilians in a constitutional manner).
Guy v. San Diego (CA9 (here).

No Due Process Right to Adequate Police Investigation

If your child died, you'd expect the police to adequately investigate your child's death.  This is a reasonable expectation, as you are a taxpayer.  It's also the case that rich and connected people receive thorough police investigations.  Thus, an average American family believes that police should find out who killed their child.

The caselaw on this point is well-established.  As a matter of federal constitutional, there is no right to an adequate police investigation:

The question presented is whether citizens of Suffolk County, New York, have a propertyinterest protected by the Due Process Clause of the Fourteenth Amendment in adequate police investigations. Plaintiffs-appellants Thomas and Ann Marie Harrington (“plaintiffs”) appeal from a judgment of the United States District Court for the Eastern District of New York (Leonard D.Wexler, Judge) dated August 18, 2009 dismissing their complaint pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs claimed that defendants-appellees (“defendants”) had violated their constitutional rights byfailing to conduct an adequate investigation into a traffic accident that resulted in the death ofplaintiffs’ son.
We hold that the Suffolk County Code does not confer on plaintiffs a constitutionally protected property interest in an adequate police investigation. Although the complaint alleges police conduct that is far from satisfactory, it does not allege misconduct rising to the level of a violation of the United States Constitution. 
Harrington v. County of Suffolk (CA2) (here).  Hire your own private investigators.  You can't afford that?  Tough luck.

While there is no constitutional right to an adequate police investigation, there is a de facto privilege to one.   See United States v. Aleynikov (Goldman Sachs has a direct line to the FBI, and thus claims of employee misconduct are handled within 48 hours of a phone call.)

Economic Freedom and Equal Protection

Not a Section 1983 issue per se, but nevertheless interesting and relevant.

Burn, Baby, Burn

092700P.pdf 06/10/2010 Cody Davis v. Oregon County
U.S. Court of Appeals Case No: 09-2700
U.S. District Court for the Western District of Missouri - Springfield
[PUBLISHED] [Bye, Author, with Arnold and Colloton, Circuit Judges]
Civil case - civil rights. In action by a pretrial detainee alleging the sheriff failed to ensure his safety after a fire broke out at the jail, the district court did not err in granting the sheriff's motion for summary judgment; even if the fire was caused by inmates'smoking, the jail's anti- smoking policy and the officers' efforts to curb the use of contraband demonstrated no deliberate indifference to a substantial risk to plaintiff's safety; jail's inoperable sprinklers and lack of extra fire equipment did not amount to deliberate indifference in light of the jail officers' efforts to prevent contraband and the presence of fire extinguishers and smoke detectors; failure to provide additional safety training did not constitute deliberate indifference to plaintiff's safety; under the circumstances, the sheriff's safety-related decisions were discretionary in nature, and he was entitled to official immunity on plaintiff's negligence claims.

Anti-Solicitation Law Upheld (Comite De Jornaleros Redondo Beach)

Comite De Jornaleros Redondo Beach (CA9) (here):

This appeal raises a First Amendment challenge to Redondo Beach Municipal Code § 3-7.1601, which prohibits the act of standing on a street or highway and soliciting employment, business, or contributions from the occupants of an automobile. We have previously upheld a virtually identical ordinance against a constitutional challenge. See ACORN v. City of Phoenix, 798 F.2d 1260, 1273 (9th Cir. 1986). We reach the same result here and hold that the Redondo Beach ordinance is a valid time, place, or manner restriction.  Accordingly, we reverse the contrary decision of the district court.

Settlement Agreements and Attorneys' Fees (Prison Legal News v. Schwarzenegger)

What is best in life?  To crush your enemies, to see them driven before you, and to hear the lamentations of their settlement agreements:

We must decide whether, and to what extent, the publisherof a monthly prison news magazine may recover attorneys’ fees from the State of California and various of its officers for monitoring their compliance with a settlement agreement resolving claims about prison conditions.
Prison Legal News v. Schwarzenegger (CA9) (here).  Answer:
The work of PLN’s attorneys monitoring the state officials’ compliance was not only “performed after the time the Settlement Agreement [was] signed,” but also “spent on substantive issues related to [the] Agreement.” There can thus be no question that PLN’s pursuit of fees for that work under § 1988 is consistent with the terms of the agreement.

Loud Music and Arguable Probable Cause

What's it take to get arrested these days?

We conclude Brown’s actions in playing loud music, stopping her car, and rolling her window down could have indicated to an objectively reasonable officer at the scene that Brown was making unreasonable noise with intent to create public annoyance, even if those circumstances were insufficient to prove an actual violation of § 13A-11-7.
Details at Fourth Amendment Blog.

Honestly, every day I wonder: "Why bother?"  Those are the types of cases coming out of the federal courts each day.  More and more talented lawyers are fleeing Section 1983 law.  Would any of you "old timers" advise a young lawyer to consider devoting even a minority of his practice to constitutional tort litigation?

Federal Judges Abrogate Jury's Role in Thomas v. Durastanti

Thomas v. Durastanti (CA10) (here) is part of a growing trend.  Federal courts, for years, have been taking cases out of the hands of a jury.  A judge is supposed to answer questions of law.  Juries are supposed to answer questions of fact.  This is a matter of constitutional law.  It's a matter of common law.  No judge can legitimately claim to have the power to decide questions of fact.

How do you get around this?  Simple.  You claim that even if the facts are true, there is no legal basis for the suit.  But how do you determine if the facts are true?  Watch a video.

But wait...Isn't watching a video acting as a jury?  In Scott v. Harris, in disregard for centuries of common law, judicial conservatives concluded that judges may decide what the video says.  Judges may now weigh and review evidence.

In Durastanti, here is what the video revealed:

Two guys jumped out of a Ford Explorer with their guns drawn.  They drew their guns on unarmed men, who had stopped at the gas station for a re-fill.  The would-be car jacking victim accelerated his car, hitting one of the armed gun men.  The crime victim sped off.

And now comes the predictable punchline: The car jackers were ATF agents in an unmarked police car.  They were not wearing badges, or even a cool ATF jacket.  There is no way that the plaintiffs could have known they were not being car jacked.  The driver thus did what most of us would have done: Run!

One might wonder why the ATF agents drew their guns on the men.  Surely they were under investigation for something evil.  Here is another punchline: The ATF agents, at most, had probable cause that the men they drew down on had been - wait for it - speeding.  Yes, speeding.  Not speeding as in using meth, but speeding as in driving too fast for road conditions.

As any 1L will tell you on her Crim Pro final, you cannot use deadly force when someone seeks to avoid a traffic infraction.  You cannot flash your gun on someone for an infraction.  It's call the fleeing felon rule for a reason.  Unless the person fleeing is a felon, and poses a danger to others: Keep your guns in your pockets, please.  Thus, the seizure of the men was unconstitutional.  Right?

Wrong.  Two judges watched the video, and somehow concluded that the case wasn't even worthy of trial.  They dismissed it on summary judgment.  Their opinion is long - too long for such a simple case.

Durastanti drew a dissent (here).  Perhaps Judge David M. Ebel can get Durastanti heard en banc.  It really is a horrible case.  The Federalist Society should host a Separation of Powers panel discussing it.  No doubt the "judicial conservatives" are are outraged as I that the judges have exceeded their Article III power by answering questions of fact rather than limiting themselves to questions of law.

Private Prisons and Bivens Actions: Pollard v. GEO Group, Inc.

Title 42 U.S.C. Section 1983 only provides a cause of action against state actors.  The right to sue federal officials was recognized at common law in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).  In recent years, the right to bring Bivens actions has been limited.

In Pollard v. GEO Group, Inc. (CA9) (here) an inmate in a private federal prison filed a lawsuit under Bivens.  The catch: GEO Group, Inc. is a private prison.  Under normal state action doctrine, that would be an easy issue to resolve.  Where a private party performs a traditional state function, or is granted powers ordinarily reserved solely to the state, then the private party acts under color of law.  If you or I locked people up in our basements, we'd be charged with kidnapping - even if our prisoners were convicted child molesters.  It's thus frivolous to suggest that imprisoning citizens who have been convicted of crimes is not a traditional state function.

Yet Bivens actions are odd ducks.  There has been extensive push-back against them.  Why?

If you're a realist and scholar of the law, you'd say that federal courts are hostile to constitutional torts generally.  If you drink the Federalist Society Flavor-Aid (disclosure: I was chapter president of my law student's Federalist Society), you'd say something about the judiciary limiting its role.  That federal courts have abrogated the jury's constitutionally-defined, thus expanding the judicial power in unconstitutional ways, would not be mentioned.  Once my brothers and sisters host a panel criticizing heightened pleading in Section 1983 cases, then their arguments about "judicial restraint" will be taken more seriously.  See, "Eleventh Circuit's Heightened Pleading Rule Violates Separation Of Powers Principles."

Anyhow, in Pollard the a split panel of the Ninth Circuit Court of Appeals recognized a Bivens action against a private prison:

In Bivens, the Supreme Court recognized an implied cause of action under the Fourth Amendment for injury caused “by a federal agent acting under color of his authority. . . .”  403 U.S. at 389. It is widely accepted that Bivens provides a cause of action only against an official “acting under color of federal law.” See, e.g., Morgan v. United States, 323 F.3d 776, 780 (9th Cir. 2003) (“Morgan’s Complaint sufficientlysets forth the elements of a Bivens claim by alleginga violation of his constitutional rights by agents acting underthe color of federal law.”). Thus, the threshold question presented here is whether the GEO employees can be considered federal agents acting under color of federal law in their professionalcapacities. We conclude that they can.
As Judge Restani notes, this adds to the circuit split on the issue.  It's thus very likely that the United States Supreme Court will review this opinion.

Pollard should be a no-brainer.  If the private sector wants to perform a function that the government usually performs, then the private sector should be suable under Bivens.  Given the Supreme Court's hostility towards Bivens actions, common sense and comment decency will have an uphill climb.  See, "Alternative State Remedies in Constitutional Torts" ("In Bivens actions, the Supreme Court has recently implied that constitutional tort plaintiffs must seek relief under state law when it is available, rather than invoke their federal constitutional rights.")

Both congratulations and well-wishes are offered to Professor John F. Preis, plaintiff's counsel and Section 1983 Blog reader.

Substantive Due Process at Conscience-Shocking Speeds (Sitzes v. City of West Memphis Arkansas)

For those of you who practice criminal law, or are exposed to criminal cases, or took Criminal Law in law school, consider this set of facts:

In traveling to Wal-Mart, John Smith drove north on Rich Road, aresidential street with a posted speed limit of 30 m.p.h. Witnesses estimated that John Smith was traveling at 80-90 m.p.h., well above the posted speed limit.  As he approached theintersection of Rich Road and Arlington Road, John Smith was traveling in the southbound (opposing) lane of traffic, attempting to pass cars traveling northbound.  At the intersection of Rich and Arlington Roads there are no stop or yield signs fordrivers on Rich Road, but there are stop signs for drivers on Arlington Road.
Unfortunately, at the same time, Brittney Sitzes was also driving north on Rich Road ahead of John Smith, with her younger sister Shelby in the passenger seat.   As Brittney approached the intersection with Arlington Road, she slowed and began to make a left-hand turn onto Arlington Road. As John Smith entered the intersection, he struck the driver’s side of Brittney’s car as she executed her turn. Brittney was killed in the accident, and Shelby sustained severe injuries.
Does anyone here think that the driver did not act in wanton disregard for human life?  Does anyone reading believe that a criminal conviction for vehicular homicide would not occur?  Everyone understands driving three times the speed limit, passing cars, and running stop signs is deliberately indifferent to human life.  It's a crime.

Since this a blog about Section 1983 law, you already know the punchline.  "John Smith" was a police officer.  And according to two federal judges, the police officer did not engage in conscience-shocking behavior.  Sitzes v. City of West Memphis, Arkansas (CA8) (here).

It's cases like these that illustrate the judiciary's contempt for the average American.  When you or I speed, we act in reckless disregard for human life.  When a police officer speeds (he was responding to a call that someone had had $55 dollars - no typo - stolen), a different legal standard applies.  All hope is not lost, however, as one judge dissented.


Shouldn't it be harder to convict a person of a crime than to hold the person civilly liable?  If an individually will be held criminally liable for speeding, shouldn't a police officer be held civilly liable for the same?

Shouldn't the common law of crimes inform the common law of Section 1983?  If driving dangerously is acting in wanton disregard of human life: Isn't driving dangerously evidencing deliberate indifference for human life?  The language used is different, but the concepts are the same.  Why then don't judges look to criminal law for an understanding of civil law?

Would applying standards of criminal law to civil law would lead to greater police accountability?  After all, not many here would dispute that driving as the officer in Sitzes at least presented prima facie evidence of criminal liability.  It would be a triable case, yes, and a conviction would not be guarantee.  None would dispute that the officer's conduct presented a jury question.

Here, however, the Eighth Circuit dismissed the case without ever allowing a jury to hear it.  Is this part of a larger trend - namely, of federal judges abrogating the power of the jury?  See, "Shouldn't Excessive Force Cases (Almost) Always Go to a Jury?"

Time to Amend 42 U.S.C. Section 1988 (As Qualified Immunity Has Gutted It)

Most people whose rights are violated aren't like us.  While we might not be CEO of Goldman Sachs, most regular readers aren't the type of people randomly selected for a civil rights violation.  We are People, or at least we know People.

Recognizing that most civil rights plaintiffs are often friendless and penniless, Congress enacted Title 42 U.S.C. § 1988.  Under Section 1988 (emphasis mine), a trial "court, in its discretion, may allow the prevailing party ... a reasonable attorney's fees []."  "The purpose of § 1988 is to ensure 'effective access to the judicial process' for persons with civil rights grievances." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)(quoting H.R.Rep. No. 94-1558, p. 1 (1976)).

Prevailing party is italicized by me - and for good reason.  In Section 1983 litigation, a person can both prevail and not prevail.  It ain't quantum physics: It's qualified immunity.

In Safford Unified School Dist. #1 v. Redding, for example, the Supreme Court held that strip searching a small girl is unconstitutional under the Fourth Amendment.  The Supreme Court also held that the defendants were entitled to qualified immunity, since the law of stripping children naked - despite volumes of published child porn cases and seasons of "To Catch a Predator" - was not clearly established.

Thus, the plaintiff won but also lost.  Winning while losing means one very important thing to those of us with overhead: We can't pay our bills.  Why?

In Hewitt v. Helms, 482 U.S. 755 (1987) the United States Supreme Court held: "We conclude that a favorable judicial statement of law in the course of litigation that results in judgment against the plaintiff does not suffice to render him a 'prevailing party.'"

We thus have a Gordian knot of doctrines and disincentives.  Let's look at the tangles:

  • A state actor is entitled to qualified immunity.
  • Qualified immunity applies when the law has not been clearly established.
  • Courts are more willing than ever to find in favor of defendants based on qualified immunity.
  • A lawyer who creates clearly-established law will not get paid.
In Hewitt, the Supreme Court indicated that it won't budge.  Denying a living to lawyer who creates new law in the United States Supreme Court is required not just by law - but by common sense. (!)  Id. at 763 ("Any other result strains both the statutory language and common sense.")

It is therefore incumbent upon Congress to amend 42 U.S.C. Section 1988.  In a case where new law is recognize, or the contours of the law are defined, the plaintiff should be entitled to attorneys' fees.  Otherwise, police officers will continue violating the Constitution - since few lawyers are able to litigate for free.

If you think this is about greed, think again.  I'd gladly litigate civil rights cases for free.  That would also require me to go bankrupt.  And since my student loans are from the federal government: Wouldn't you like to be paid back?

A compromise solution would be to deviate from the lodestar method in cases where qualified immunity is awarded.  Under the lodestar method, reasonable fees "under § 1988 are to be calculated according to the prevailing market rates in the relevant community []."  Blum v. Stenson, 465 U.S. 886, 895 (1984).  Cutting the lodestar in half would embitter the bill, but still double the medicine.

Under Section 1988 as written, few lawyers can afford to vindicate the Constitution.  Is that what Congress intended when it enacted Section 1988?  See S.Rep. No. 94-1011. (Congress “intended that the amount of fees awarded ... be governed by the same standards which prevail in other types of equally complex Federal litigation ... and not be reduced because the rights involved may be non-pecuniary in nature.”); H.R.Rep. No. 94-1558, p. 1 ("The purpose of § 1988 is to ensure ‘effective access to the judicial process' for persons with civil rights grievances.")

Ham Sandwich Can Sue Prosecutor

It's been long said that a prosecutor could get a grand jury to indict a ham sandwich.  A grand jury is a way for a prosecutor to violate the Fourth Amendment.  See Tim Lynch, "A Grand Fa├žade: How the Grand Jury Was Captured by Government" (here).

One grand juror started asking a prosecutor too many questions.  The prosecutor, assistant U.S. Attorney Daniel Zachem, dismissed the grand juror.  The grand juror sued, and the D.C. Court of Appeals held that the prosecutor lacked absolute prosecutorial immunity.

Today the United States Supreme Court decline to review the opinion.  Mike Scarcella has more details here.

Section 1983 and False Child Molestation Charges

There is so much going on in White v. McKinley (CA8) (here) that I'm struggling writing a post.  Short story: A wife falsely accused her husband of child molestation.  The cop she was dating withheld evidence exonerating the husband.  At least two prosecutors knew that the cop was having sex with the wife, but didn't disclose this to the defense.

And I'm only on page 5!  Read it.

The Nuances of Prison Litigation Reform Act Exhaustion

Ordinarily a litigant is not required to exhaust administrative remedies before filing a civil rights lawsuit. Under the Prison Litigation Reform Act, prisoners must first complain to the prison before filing a lawsuit.  There is endless litigation over what "exhaustion" means.  It's exhausting.

In Harvey v. Jordon (CA9) (here), a prisoner failed to report a grievance to prison officials within 15 days of his injury - here, guards were overly loose with pepper spray grenade.  The prisoner felt ill, but didn't attribute his illness to prison officials' misconduct.  Thus, he didn't file a grievance within the deadline; but he did file after discovering that his respiratory illness was a reaction to pepper spray.

No excuse:

According to Harvey’s own statements, he knew on the date of his cell extraction that prison officials had no justification for any of the cell searches conducted that day; that the pepper spray “worked its way into [the] vent system,” causing obnoxious and powerful fumes to circulate throughout the prison; that he did not refuse to comply with the search or obstruct the view through his cell window; and that the pepper spray grenade “nearly incapacitated” him when it was thrown into his cell. Because Harvey could have filed an excessive force grievance based on those allegations alone, he was not prevented from filing a timely grievance because of a lack of information.
Read the rest here.

Do Parents Have a Constitutional Right to Murder Their Child? (P.J. v. Cunningham)

A very interesting legal issue in P.J. v. Cunningham (CA10) (here), a child was diagnosed with a tumor.  The parents didn't want to give the child medical treatment.  The Tenth Circuit Court of Appeals held that denying a child medical care is parent neglect:

when a child’s life is under immediate threat, a state’s interest in protecting the child is at its zenith, and a state has broad authority to intervene in parental decision making that produces the threat to the child’s life.
Thirty-five pages of niceties and balancing tests when the court should have given the parents a ruthless smack down.  Spare the rod, spoil the child - and it's obvious here that the parents are the ones behaving like children.

You cannot beat your children.  If you put your kid on the roof in the hot sun to communicate with Apollo, no one would claim that you had parental autonomy to give your kid heat stroke.  You cannot kill your kid.  If you put a knife up to your child's neck, a cop would blow out what little brains you have - and we'd all be happy to see you leave planet Earth for whatever afterlife you believe in.

Somehow when a child has a fatal cancer, everyone starts to act as if these are tough issues.  They are not.  If you believe that there is a God that's going to heal your child, great.  But the child's life is not your own.  You are a trustee - or in Biblical terms, a steward.  This means you save your child's life.

The child has a right to live.  And if you think your deity is so powerful that it will cure cancer, then your deity will push aside the modern medicine to touch the child.  In other words, a little chemotherapy isn't going to stop any god with enough power to cure cancer.

What a revolting case, and what a malignant set of parents.

Federal Jurisdiction and Title VII Fee Awards

A Naval employee won his discrimination claim before the EEOC, but the EEOC didn't award the plaintiff his attorneys' fee request.  Does a federal court have jurisdiction to hear his claim for attorneys' fees where there is no longer a substantive cause of action under Title VII?  Yes, said the Ninth Circuit:

We conclude that, under New York Gaslight Club, Inc. v.Carey, 447 U.S. 54 (1980), federal courts have subject matter jurisdiction over claims brought solely to recover attorney’s fees incurred in Title VII administrative proceedings. Accordingly, we reverse.
Porter v. Winter (CA9) (here).

Appealability of Qualified Immunity Denial

In most civil cases, a defendant may not immediately appeal the denial of summary judgment, as it's not an appealable order.  Instead, a defendant who has been denied summary judgment must proceed to trial.  If the trial court misinterpreted the law, an appeals court will reverse after trial.  Until then, the case must go on.

The United States Supreme Court concluded that government officials were a privileged category of civil defendant.  Thus, a government defendant who has been denied summary judgment may immediately appeal the denial of qualified immunity.

Fortunately, the privileged class must still go to trial when the court denies qualified immunity based on a question of fact rather than of law:

But just because an order denying a motion to dismisson qualified immunity grounds is generally considered a final decision, it does not mean that the right to appeal that order is unlimited. If the denial of qualified immunity turns on factual rather than legal questions, the denial is not properly subject to appellate jurisdiction under the collateral order doctrine because the decision is not “final.” Johnson v. Jones, 515 U.S. 304, 313-18(1995); Wernsing, 423 F.3d at 741.
Leven v. George (CA7) (here).  The distinction between law and fact is sometimes tricky, but not so here:
The magistrate judge denied defendants’ claim of qualified immunity on the grounds that genuine issues of material fact existed with regard to whether Officers George and Westerfield had probable cause to arrest Levan, and whether Officer George had probable cause to use force. Although at oral argument defendants’ counsel attempted to distinguish the factual determinations from the legal issue of qualified immunity, we find it nearly impossible to sever the two questions. Instead, we think it readily apparent that the question of qualified immunity turns on genuine issues of material fact. As Justice Breyer wrote in Johnson, when “a defendant simply wants to appeal a district court’s determination that the evidence is sufficient to permit a particular finding of fact . . . it will often prove difficult to find any such separate question . . . .” Id. at 314. That admonition rings true here.  
While the panel's view of its role in resolving disputes is correct, judicially-activist courts would have decided the issue differently. (More here.)

$1791 for 1791

Here's a fun story that also raises an interesting legal issues:

Longtime county critic Mike Zinna won his First Amendment lawsuit Dec. 9 against former county commissioner Jim Congrove when jurors awarded him $1,791 — a number corresponding with the year the Bill of Rights was ratified.
The former talk-radio host and gadfly blogger alleged Congrove and others violated his First Amendment rights by taking steps to prevent him from speaking at public hearings and to halt his investigations into county government.
The closing arguments concluded Wednesday, Dec. 9, leaving the jury to begin its relatively brief deliberations. During the process, a juror reportedly asked U.S. District Judge Richard Matsch for the effective year of the First Amendment. The jurors returned to the courtroom shortly afterward to deliver their verdict.
While that's a fun damages award, there's no doubt an argument that the jury awarded nominal damages.   A jury awards nominal damages when it believes that a person has suffered a rights violation in the abstract, but without suffering any concrete harm.  In other words, "Your rights were violated, but it wasn't like you got a billy club to your head."

Now, before you write to attack me, let me state that my views are different.  Isn't an injury to the Constitution - the Supreme Law of the Land - and actual, concrete, and comprehensible injury?  Yes, we agree.  The federal courts, however, are less protective of the Constitution than we are.  See Carey v. Piphus, 435 U.S. 247 (1978) (holding that in "the absence of proof of actual injury," a plaintiff is "entitled to recover only nominal damages.")

A jury ordinarily awards only $1 in nominal damages cases.  Here, perhaps the jury awarded $1791 just to be cute, or to remind the County of the date of the ratification of the Bill of Rights?

This stuff matters because attorneys' fees under 42 U.S.C. 1988 are not readily available in cases where nominal damages only are awarded.

Fortunately for the plaintiff, the Federal Rules of Evidence prevents lawyers from sneaking into the jury room to determine why they reached the verdict they had reached.

After all, maybe the jury thought the plaintiff suffered $2,000 in damages - but thought he'd really enjoy having a check for $1791.  Juries have done much weirder things.  And, frankly, my gadfly self would much rather have a check for $1791 than $2,000.  It might be economically irrational; but it's cute and I'd like to hang it on my wall.  It's purely speculative to claim that the jury awarded nominal damages only.  We don't know; and the Federal Rules of Evidence say we can't know.

In any event, a very fun hypothetical.

(Hat tip: Allen Chen.)

Crack Some Skulls, Why Don't Ya?!

Blog has not been abandoned.  Just haven't read any good cases (other than stuff we're personally working on) lately.  As always, you're invited to send an e-mail noting cases or news stories of interest.  And if you see any good Section 1983 stuff on other blogs, we'd be happy to pass along a link.

Deliberate Indifference/Failure to Protect Woman From Rape

Plaintiff able to state a Section 1983 claim where:

On December 15, 2005, employees from the StoneCounty Jail transported prisoners to the Missouri Department of Corrections (DOC). Whitson, a female prisoner, was placed in the prison van with four male prisoners and, although Whitson first attempted to enter the van and sit in the first caged area just behind the transporting officers, she was specifically instructed to sit in the second caged area together with prisoner Richard Leach. The van was very dark inside. Each section of the van was caged separately and the back caged area had two bench seats, which at the outset Leach and Whitson occupied separately. Corporal Shawna Sorrick drove the van, accompanied by Officer Brown, who sat in the front passenger seat. Sorrick and Brown played loud music and the three men in the first caged area were talking loudly. Whitson contends that during the transport Leach managed to remove his hand restraints, grab her arm, sit her on his lap, pin her against the seat in front ofher, pull her pants down and rape her.
Whitson v. Stone County Jail (CA8) (here).

Second Amendment and Due Process

If the government doesn't like the rights you have, it will just delay in allowing you to exercise those rights.  The "Wait a Second!" bloggers have an illustrative example here.  (If you don't already, be sure to bookmark "Wait a  Second!")

Thank You

Readership has been growing nicely.  Thank you for telling your friends and colleagues about Section 1983 Blog.

If you have any case tips or suggestions, please e-mail them by clicking here; or post a comment.

Thanks again.

Dirty Politics, Res Judicata, and Pleading

In Zutz v. Nelson (CA8) (here) some new County Board suspected that the other members of the Board were cheating taxpayers.  Shocking, for sure.  After examining the books, the new members confirmed the corruption.

The existing members of the Board then used taxpayer money and connections with the local prosecutor to investigate the board members who invested them.  At a Board meeting, the crooked Board members defamed the ethical Board members.

The honest Board members filed a defamation action in state court, which they lost.  They then filed a Section 1983 action, alleging retaliation under the First Amendment:

To successfully plead a First Amendment retaliation claim, a plaintiff must plausibly plead that he/she "engaged in protected activity and that defendants, to retaliate for the protected activity, took adverse action against [them] that would chill a person of ordinary firmness from engaging in that activity." Lewis v. Jacks, 486F.3d 1025, 1028 (8th Cir. 2007). The appellants have plausibly pled that they were engaged in protected activity and that the appellees' defamatory comments were madewith an intent to retaliate for the protected activity. But, because they have not plausibly pleaded that the defamatory conduct would chill a person of ordinary firmness, the First Amendment retaliation claim was properly dismissed.
All that the original complaint alleges is that the appellees made defamatory statements regarding the appellants' exercise of their official duties as public officials. While these statements may have damaged the reputation of Zutz and Elseth, we believe that such reputational damage was insufficient to chill a person of ordinary firmness from engaging in the protected activity. We, therefore, affirm the districtcourt's dismissal of the retaliation claim. 
Having not seen the Complaint and thus lacking personal knowledge of how the First Amendment cause of action was pled, I'll spare you my righteous indignation.  Yet the panel opinion seems wrong - clearly wrong and very wrong.  The corrupt Board members did not merely hurt the feelings of the honest Board members.

 Here is what the corrupt Board members did:
On June 18, 2007, at a formal meeting of the Board, co-Board members Nelson and Stroble complained about the appellants' investigation. Specifically, Nelson and Stroble made statements falsely claiming that the appellants had violated Minnesota law. In an effort to find support for their false accusations, the appellees requested that the Marshall County Commission investigate the matter. County Attorney Michael Williams followed up on this request and hired Rough Rider, a North Dakota investigating firm.
RoughRider's employee, Kamrowski, conducted an investigation and filed a formal report with Williams. The report contained a number of false allegations against the appellants including conclusions that appellants had engaged in improper acts. Despite the allegations in the report, Williams concluded that appellants had not committed any malfeasance.
Although Williams declined to adopt the report's conclusions, appellee Drees sent the report to a wide number of people in Marshall County, thereby falsely representing the report as the final conclusion as to the legality of the appellants' financial investigation. Drees also sent a letter to certain people falsely alleging, among other things, that the Board had lost its insurance as a result of appellants'conduct.
The crooked Board members did not merely hurt the honest Board members' feelings.  Instead, the Board members initiated a criminal investigation against them.  After the investigation cleared the honest Board members, the crooked Board members falsely claimed that the investigated inculpated them.


I am more than a person of ordinary firmness.  Yet I'd reconsider taking on City Hall - on in this case, the Middle-Snake-Tamarac Rivers Wastershed District Board -  if I knew false criminal accusations would be brought against me.  Wouldn't you?

Unless the Complaint was embarssingly-poorly plead, the panel opinion wrongly applied First Amendment retaliation doctrine.

Police Brutality and Cover-Up

Have you ever wondered what police misconduct looks like? We have police brutality and a subsequent cover-up in this incredible video.

In the Dog House - Literally

Is it cruel to laugh at this?

083141P.pdf    04/13/2010   Thomas Morris, III   v.   Armand Zefferi
U.S. Court of Appeals Case No: 08-3141
U.S. District Court for the Eastern District of Missouri - St. Louis
[PUBLISHED] [Riley, Author, with Wollman and Melloy, Circuit Judges]
Civil case - civil rights. In the absence of any compelling urgency and with other alternatives available, defendant's actions in transporting plaintiff, a pre-trial detainee, in a small, unsanitary dog cage was excessive in relation to the goal of preventing his escape, and an inference may be drawn that the officer's conduct amounted to punishment; district court did not err in denying officer's motion for summary judgment based on qualified immunity as the unconstitutionality of the conduct should have been obvious based on both common sense and prior general case law. 

Ninth Circuit Holds that RLUIPA Does Not Abrogate Eleventh Amendment Immunity

The Ninth Circuit Court of Appeals has joined every Federal Courts of Appeals (excluding the Eleventh Circuit) by concluding that the state may not be sued for money damages under RLUIPA:

State prisoner Patrick Ronald Holley, Sr., appeals from the district court’s summary judgment in favor of defendant prison officials. Holley alleges in his 42 U.S.C. § 1983 action that California Department of Corrections grooming regula-tions requiring short hair imposed a substantial burden on his exercise of religion in violation of section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1. He seeks damages from defendants in their official capacities. 
We must decide whether the acceptance of federal prison funding by the state of California effected a waiver of the state’s sovereign immunity that would allow the RLUIPA claim for damages against state officials in their official capacities to proceed in federalcourt. We conclude that California did not waive its Eleventh Amendment immunity under either RLUIPA or the Rehabilitation Act Amendments of 1986, and we therefore affirm the judgment of the district court.
Holley v. California Department of Corrections (CA9) (here).  Our prior coverage of RLUIPA and abrogation/waiver is available here.

USe Google Scholar for Legal Research

Here's why; more here.

Family Law Science Fiction Meets Rooker-Feldman

In Dodson v. Univ. of Arkansas (CA8) (here), a married couple created several cryogenically-frozen embryos.  Under the agreement with the laboratory, both the husband and wife were required to consent to the implantation of the embryo into the wife.

After the couple were divorce, the wife wanted to the embryo implanted into her.

Full stop.

How terrifying must that have been for the ex-husband?  In the wife had implanted the embryo into herself, the ex-husband would have been liable for at least 18 years of child support.

In family law, the interests of the man are simply irrelevant.  Despite the constitutional prohibition of involuntary servitude, a woman can create a child contrary to the man's choice - and the man will be forced to surrender 25% of his wages for two decades.

A man can also be tricked into the creation of a child, such as when a woman lies about her using birth control.  "Forget" to take the pill?  Poke a hole in a condom?  No problem.

That a woman is able to conceive based on trick, deceit, or breach of contract doesn't matter.  In family law, men mere supplicants: Even cuckolds are required to pay child support.  So much for the pro-choice movement and gender equality!

Fortunately for the ex-husband, the lab would not violate the terms of the agreement.  They would only implant the embryo into the woman with the man's consent.  The man naturally did not want to write child support checks to his ex-wife for a child that he'd never even met.

Patrica Dodson sued the laboratory under Section 1983.  All of her claims were dismissed under the Rooker-Feldman doctrine, since a previous state-court order held that the agreement was enforceable.

Scary stuff, and the ex-husband certainly dodged a bullet.

Criminal Conviction Collaterally Estops Civil Rights Lawsuit

Brown v. City of Chicago (CA7) (here):

Arthur Brown sued Officer Duane Blackman under 42 U.S.C. § 1983 for excessive force, alleging Officer Blackman shot him without justification.  The district court granted Officer Blackman summary judgment, concluding that because Brown had been convicted of aggravated assault, aggravated unlawful use of a weapon, and unlawful possession of a weapon by a felon based on his encounter with Officer Blackman, Brown’s current suit was barred by collateral estoppel. Brown appeals. We affirm.

Brooks v. City of Seattle: Ninth Circuit OK's Tasering of Pregnant Woman

Split panel; 48-page opinion; Tasers.  Might not be the last we've heard of this case (especially in light of the Ninth Circuit's opinion in Bryan v. McPherson) in which Judge Berzon leads her dissent thusly:

Here is what happened to Malaika Brooks, a pregnant mother, as she was driving her son to school one day: Two, soon three, police officers surrounded her. The officers thought she was speeding in a school zone; she says she was not. Brooks provided her identification when asked, so there was no doubt who she was or where to find her. The officers wrote her a ticket but she refused to sign it. Refusing to sign a speeding ticket was at the time a nonarrestable misdemeanor; now, in Washington, it is not even that. Brooks had no weapons and had not harmed or threatened to harm a soul.  Although she had told the officers she was seven months pregnant, they proceeded to use a Taser on her, not once but three times, causing her to scream with pain and leaving burn marks and permanent scars.
We have more Taser/Fourth Amendment/Section 1983 discussion here.  Our favorite post is entitled, "Tasers and the Fourth Amendment."  See also the post on Bryan v. McPherson.

Eighth Circuit Civil Rights Cases (3.25.2010)

The Clerk's official summary:
091814P.pdf    03/25/2010   Katie J. Felder   v.   Jason King
U.S. Court of Appeals Case No: 09-1814
U.S. District Court for the District of Minnesota - Minneapolis
[PUBLISHED] [Benton, Author, with Loken, Chief Judge, and Gruender, Circuit Judge]
Civil case - civil rights. This appeal of an order denying the defendant police officers' motion for summary judgment based on qualified immunity must be dismissed for lack of jurisdiction as the decision was fact-based and is not appropriate for interlocutory appeal.

091843P.pdf    03/25/2010   Eric Williams   v.   Moses Jackson
U.S. Court of Appeals Case No: 09-1843
U.S. District Court for the Eastern District of Arkansas - Helena
[PUBLISHED] [Melloy, Author, with Wollman and Riley, Circuit Judges]
Civil case - civil rights. In action alleging defendants willfully and maliciously exposed plaintiff, then an Arkansas state prisoner, to excessive ultraviolet radiation during his treatment for TB, the correction officer defendants, who allegedly purposefully removed a protective shield in retribution for a past incident, were not entitled to summary judgment based on qualified immunity as malicious and retaliatory exposure to a known harm without penological purpose would violate a prisoner's established rights; as a result, the district court erred in granting summary judgment in favor of the correction officer defendants; the claims against the defendant maintenance supervisor alleged no more than negligence, and he was entitled to summary judgment. 

Solitary Confinement for 27 Years?

The University of Denver's Civil Rights Clinic had a lower-court victory in a very interesting case:

I’m very happy to report a significant prisoners’ rights victory from the Civil Rights Clinic. We represent Tommy Silverstein, a federal prisoner who has been held in solitary confinement for the past 27 years. In 2007, we filed suit on behalf of Mr. Silverstein challenging several of his conditions of confinement against the federal Bureau of Prisons. We filed claims arguing that Mr. Silverstein had not received due process during his long detention. Yet, most significantly, we claimed that the Government’s indefinite imprisonment of him under “no human contact” status constitutes cruel and unusual punishment in violation of the Eighth Amendment....
This morning, the Honorable Philip A. Brimmer in the U.S. District Court for the District of Colorado held that Mr. Silverstein’s procedural due process claim is allowed to proceed (for both injunctive relief and damages), as is his Eighth Amendment claim for injunctive relief (the damages claims were dismissed on QI grounds). The decision on the Eighth Amendment is one of only two or three in the entire country where a court has held that solitary confinement alone is enough to state a claim for cruel and unusual punishment, even absent mental illness or other physical harm. We anticipate and hope that this decision will have a positive impact on the ability of litigators across the country to challenge the disturbing trend of holding individuals in solitary confinement indefinitely. 
You may read the opinion here.  (Hat tip: Alan K. Chen.)

Failure to Identify a Disability a Private Right of Action Under the Individuals with Disabilities Education Act (IDEA)

Nice law school hypothetical from the Ninth Circuit.  Does IDEA have rights-creating language, pursuant to Gonzaga University v. Doe?  See Compton Unified School District v. Addison (CA9) (here).

Civ Pro Meets Crim Pro

The New York Times has this report about a lawsuit alleging that the New York Public Defender system is inadequate.

Section 1983 Fourth Amendment Claims v. State Law False Arrest Claims

File those pendent state law claims, California lawyers:

While the existence of probable cause renders the arrest reasonable under the Fourth Amendment, and thus constitutional, more is needed to authorize Edgerly’s custodial arrest under state law. Cf. People v. McKay, 41 P.3d 59, 71 (Cal. 2002) (holding that state arrest procedures do not limit the constitutionality of arrests under the Fourth Amendment, but emphasizing that that holding “in no way countenance[s] violations of state arrest procedure,” as “[v]iolation of those rights exposes the peace officers and their departments to civil actions seeking injunctive or other relief”). As noted above, a first offense under section 602.8(a) is punishable only as an infraction and, under California law, “[i]n all cases . . . in which a person is arrested for an infraction,” custodial arrest is authorized “[o]nly if the arrestee refuses to sign a written promise [to appear], has no satisfactory identification, or refuses to provide a thumbprint or fingerprint.” Cal. Penal Code § 853.5(a).
Here, because the Officers did not testify that Edgerly met any of these three requirements, or that they had reason to believe that he previously violated section 602.8(a), the custodial arrest was not authorized by state law. Further, because this limitation on arrests for mere infractions was clearly established by statutory law, the officers did not have “reasonable cause to believe the arrest was lawful” under state law, and they are not entitled to immunity from civil liability. See Cal. Penal Code § 847(b)(1) (providing that officers areentitled to immunity from false arrest claims if “the arrest waslawful” or the officers had “reasonable cause to believe thearrest was lawful”); see also O’Toole v. Superior Court, 44Cal. Rptr. 3d 531, 548-49 (Cal. Ct. App. 2006) (noting thatpolice officers are not granted governmental immunity forfalse arrest or false imprisonment under California law, but that California Penal Code section 847 protects them from civil liability under certain circumstances). We therefore reverse and remand for further proceedings on this state lawclaim.
Edgerly v. San Francisco (CA9) (here).

Section 1983 Cases in the United States Supreme Court in 2009

Sheldon H. Nahmod has an excellent video presentation available for viewing.  Click here.

Section 1983 and IDEA (Payne v. Peninsula School District)

Whoa.  Some cases speak for themselves.  In a split panel opinion, the Ninth Circuit Court of Appeals held that exhaustion was required under the Individuals with Disabilities Education Act (IDEA) when a teacher locked an autistic student in a closet.  After the autistic child crapped and pissed himself, some whack-job school teacher claimed, "Locking autistic children up is how we educate them."  The Ninth Circuit - two judges, anyway - bought that argument.  Payne v. Peninsula School District (CA9) (here).

Judge Noonan, dissenting, clearly gets the best of the argument.  In a sentence: Just because something happens at school to an autistic child doesn't mean the IDEA applies.

This case needs to be reheard en banc.  At least some judge needs to give the case briefs a look.  Why does the opinion mention Section 1983 and IDEA causes of action when the panel dismisses the case under the IDEA?

My knowledge is fuzzy, but isn't Blanchard v. Morton School District (CA9) still good law?  Under Blanchard, IDEA rights are not enforceable under Section 1983.  Assuming that's the case, why didn't the panel discuss the separate causes of action under Section 1983?

Someone help me out.  Is Blanchard still good law?  Or is a Section 1983 action now merged with an IDEA cause of action  (not a rhetorical question; help me out)?  Even if the causes of action have been merged, the student has a separate cause of action for the lock-up.

If an autistic kid were sexually assaulted by a school teacher, he'd be able to sue under substantive due process/Section 1983.  If an an autistic child was denied food or medicine, he'd be able to sue under Section 1983.  In Payne, an autistic kid was locked in a closet - euphemistically called a "safe room, a roughly 5′ x 6′ roomlocated within the special education classroom."  Locking a child up on a closet is conscience-shocking behavior, and therefore is actionable under Section 1983.

This case desperately needs reheard.  And I say this as a major critic of the IDEA.  The IDEA is a way for rich parents to scam school systems out of money.  Even a critic of the IDEA can see the problem with allowing teachers to hide behind the IDEA when they make conscience-shocking decisions like locking a seven-year-old child up.

Religious Organizations Can Exploit Suckers (Rosas v. The Corporation of the Catholic Church)

Am I the only one who cracks up when churches say, "Keep your government out of our affairs!" when a law of general applicability is applied to them; but who also sue to allow full access to public facilities and other generally-available fora?  Church and state should be kept separate when it benefits the church - and at no other time.  See Rosas v. The Corporation of the Catholic Church (here).

Anyhow, some chump was fooled into believing he'd burn in Hell if he didn't slave away for the Church.  Later he got hip and attempted to have the law applied to the Catholic Church.  Good luck with that, right?

He lost:

“The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” Everson v. Bd. ofEduc., 330 U.S. 1, 18 (1947). The interplay between the First Amendment’s Free Exercise and Establishment Clauses creates an exception to an otherwise fully applicable statute if the statute would interfere with a religious organization’semployment decisions regarding its ministers. Bollard v. Cal.Province of the Soc’y of Jesus, 196 F.3d 940, 944, 946-47(9th Cir. 1999). 
This “ministerial exception” helps to preservethe wall between church and state from even the mundane government intrusion presented here. In this case, plaintiff Cesar Rosas seeks pay for the overtime hours he worked as a seminarian in a Catholic church in Washington. The district court correctly determined that the ministerial exception bars Rosas’s claim and dismissed the case on the pleadings. We have jurisdiction under 28 U.S.C. § 1291,1 and we affirm.

By the way, this case will get plenty of media play.  It will probably go en banc.  The ministerial exception was incorrectly applied, and thus the case was wrongly decided.  Telling a church that is must pay overtime is not telling a church whom it may hire as ministers.

Telling the Catholic Church that is must ordain women because Title VII prohibits employment discrimination is quite different from saying, "You must pay overtime wages."  The counter-argument is that churches often encourage service.  Fine.  But requiring a church to pay overtime doesn't end volunteer work.

I volunteer.  I get paid nothing.  The wage-and-hour laws simply do not apply because I am a volunteer.   I have also worked internships - no pay, no complaints, no issues.

Demanding that the Catholic Church actually pay overtime wages thus has absolutely nothing to do with the ministerial exception.  The Church is still free to discriminate against women and gays.  The Church is still free to inspire and encourage a culture of volunteerism.  The Church may not, under the ministerial exception, refuse to pay overtime.

In any event, it's unlikely that today's panel will have the last word on this issue.

Fair Housing Act and Sexual Harassment

Not a 1983 case, but interesting nonetheless.  Quigley v. Winter (CA8) (here):

[PUBLISHED] [Riley, Author, with Hansen and Gruender, Circuit Judges] Civil case - civil rights. A claim for hostile housing environment created by sexual harassment is actionable by the tenant under the Fair Housing Act; there was sufficient evidence to support the jury's verdict that defendant subjected plaintiff to unwelcome sexual harassment and that the harassment was so pervasive or severe as to interfere with or deprive her of her right to use or enjoy her home; jury verdict for plaintiff on her quid pro quo sexual harassment claim affirmed; evidence was sufficient to support jury's verdict that plaintiff was subjected to coercion, intimidation and interference with her housing rights; instructions on discriminatory housing practices claim were not erroneous; challenges to evidentiary rulings rejected; district court did not err in submitting punitive damages issue to the jury as defendant admitted he knew sexual harassment was unlawful, that he was an experienced landlord and that he knew the lease agreement forbade discrimination based on sex; $250,000 punitive damage was excessive, but the district court erred in reducing it to $20,527; the court finds an appropriate award is $54,750, which is four times the compensatory damage award; attorneys' fees award reduced to $78,044. Judge Gruender, concurring in part and dissenting in part.

Guggenheim v. City of Goleta Goes En Banc

Back in September I noted that, "This split panel decision from the Ninth Circuit Court of Appeals will likely go en banc."  And it is going en banc (order).

Claiming psychic powers would be nice.  Instead, an understanding of bias allowed me to recognize that the case would likely go en banc.

Property rights are the bastard child of the Constitution.  Liberal judges do not like opinions giving effect to the Takings Clause.

It's pretty amazing that abortion can be read into the Constitution; where as property rights - which are specifically mentioned - seem to not exist.

Norse v. City of Santa Cruz (the Nazi Salute Case) Goes En Bacn

Today the Ninth Circuit Court of Appeals agreed to hear Norse v. City of Santa Cruz en banc (order).  Our prior coverage is here.

Justice Clarence Thomas' View of the Eighth Amendment

Linda Greenhouse shares her production of Two Minute Hate at the New York Times. For a deeper look into Justice Thomas' views on the Eighth Amendment, read Hope v. Pelzer a/k/a the hitching post case.  It's here, and let's just say reading it should make you very happy to not be in Justice Thomas' prison.

Ninth Circuit Encourages Prosecutorial Misconduct in Valdovinos v. McGrath?

A three-judge panel of the Ninth Circuit Court of Appeals granted a habeas petition in a case where a prosecutor and police officer withheld exculpatory evidence.  In other words, the prosecutor broke the law.  After reading Valdovinos v. McGrath (CA9) (here), you will be given a one-question exam.  Read careful.

Who was the prosecutor who broke the law?  
Like me, you'd get an "F" on this examination.  You would learn that Detective Ernesto Alcantar hid exculpatory evidence in a case involving eye-witness identification.  Federal judges always identify the miscreant police officers.  When it comes to identifying the lawyer who hid evidence, judges mention "the prosecution."  Like this:
At the preliminary hearing, Valdovinos’s defense attorney, in the presence of the prosecutor [Who is this prosecutor?] and Detective Alcantar [there's the poor cop's name again] ,requested a blackboard preliminary hearing, in which a screen prevents the witnesses from seeing the defendant. Defense counsel made the request based on a review of police reports indicating the witnesses had never seen a lineup or photo lineup. Neither the prosecutor [Who is this man or woman?] nor Detective Alcantar [hello again] informed the court or defense counsel that the witnessesalready had seen photo lineups including Valdovinos’s photo, or that [one eye-witness] tentatively had identified Valdovinos’s photo whereas [another eye-witness] had chosen different photographs. The courtdenied the defense attorney’s request.
If you read the entire opinion, you'll learn that the entire case against the defendant was based on eye-witness identification.  Wrongful eye-witness identifications are the leading cause of wrongful convictions.  You will learn that one of the eye-witnesses put someone other than the defendant at the scene of the crime.

Think about that.   An eye-witness said that the defendant was not present during the shooting.

A prosecutor hid this evidence form the defense, in violation of the Constitution, and in violation of the California Rules of Professional Conduct.

The Ninth Circuit panel found the prosecutors' conduct so prejudicial to the administration of justice that they granted a habeas petition.  Yet the panel never referred the prosecutor to the California State Bar for investigation.  The panel did not even identify the prosecutor by name.

Why do courts refuse to identify prosecutors by name when prosecutors have committed prosecutorial misconduct?

What does a prosecutor risk by violating the Constitution and Rules of Professional Conduct?  The odds of being caught are extremely low: If you hide something that no one knows to look for, how will they find it?  And even if you're caught, the courts will keep you anonymous.

Prosecutorial misconduct should be treated as the serious violation of the law that it is.  Yet refusing to sanction prosecutorial misconduct - even, refusing even to name unethical prosecutors in a judicial opinion - at best excuses prosecutorial misconduct; at worst, it encourages it.

How Dangerous is Policing, Really?

A common theme in civil rights cases is officer discretion.  Police, we are told, must be allowed to violate our rights because their job is so dangerous.  Is policing really that dangerous?

"Of course it is, Mike!" you'll scream at me.  Yet you'd be wrong.  As thinking people, we must always elevate statistics over sentiment.

Each year a media outlet will produce a list of the most dangerous jobs.  Today the Business Insider has the latest data.  According to the actual data, policing is substantially less dangerous than crab fishing, logging, iron working, electrical working, and many other professions.  See for yourself.

According to the FBI (data here), only 41 police officers were murdered in the line of duty in 2008.  "Only?!" Certainly every officer death is a tragedy, yet in 2005 (the most-recent data I could find) were nearly 700,000 police officers.

Most crime rates are measured by incidents-per-100,000: "How many murders are there for every 100,000 people in geographic region," the statistician asks.  In San Fransisco in 2008, there were 52 murders.  (Data set; scroll down.)  San Fransisco has a population of almost 800,000.

Assuming for the sake of argument that we have the same - rather than a greater - number of police officers in 2008 that we had in 2005, consider this: 41 police officers out of 700,000 were murdered.  In San Francisco, 52 citizens out of 800,000 were murdered.

Simply living in San Francisco is more dangerous than being a police officer.

Policing is a valuable profession.  Who suggests otherwise?  I certainly do not going around saying, "F-ck the police."

Elevating the police above all others, however, is destructive to civil society.  It is also superstitious.  Policing is not nearly as dangerous a profession as defenders of police misconduct claim it to be.  Like many jobs, policing has its risk.  Policing is not so dangerous, however, that officers who have sworn to uphold law should be able to violate the law with impunity.

Pleading Civil Rights Cases Under Iqbal

Here's a post of interest from a blog covering civil rights law in the Second Circuit Court of Appeals.

Provoking a Confrontation and the Fourth Amendment

Here's a quirk within the law of deadly force:

Where a police officer “intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he maybe held liable for his otherwise defensive use of deadlyforce.”  Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir.2002). If an officer intentionally or recklessly violates a suspect's constitutional rights, then the violation may be a provocation creating a situation in which force was necessary and such force would have been legal but for the initial violation.
Espinosa v. San Francisco (CA9) (here).  The doctrine makes sense, but seems too even-handed and common sense to exist.  In Espinosa, a Ninth Circuit panel applied it to a police officer who illegally entered a home and awoke a sleeping man.
In this case, the district court did not err in findingthat there are genuine issues of fact regarding whether theofficers intentionally or recklessly provoked a confrontationwith Sullivan. Evidence strongly suggests that the initial entry into the apartment by Officer Morgado violated Sullivan’s Fourth Amendment rights. Viewing the evidence in the light most favorable to the plaintiffs, there is evidence that the illegal entry created a situation which led to the shooting and required the officers to use force that might have otherwise been reasonable. See Alexander v. City and County of San Francisco, 29 F.3d 1355, 1366 (9th Cir. 1994) (holding officers provoked a confrontation where they entered a man’shouse without a warrant and this violation provoked the man to shoot at the officers). Because there is a genuine issue of fact regarding whether the defendants intentionally or recklessly provoked a violent confrontation, the district did not err in denying defendants’ summary judgment motion on this issue. See id.
Under the provocation-of-conflict doctrine, even if they were telling the truth about seeing a gun in the unarmed man's hand, they might still be liable.  After shooting the unarmed man, the cops in Espinosa of course claimed that they saw a black object in the unarmed man's hand.
Officer Keesor stated that he shot because he believed that he saw something black in Sullivan’s hand that looked like a gun. Officer Alvis stated that she shot because she thought she saw something in Sullivan’s hand and that she saw him move his right arm. Sullivan was unarmed.
Aren't police trained to identify firearms?  If so, why are all of these unarmed people being shot?  Might the more rational explanation be that police officers routinely lie about these mysterious black objects?


Framing is a psychological principle thought of as a persuasive technique, though framing is much more influential in our own lives.  Framing changed conduct.

A police officers soldiers or protectors?  How a police officer views himself will determine whether innocent people live or die.  Espinosa v. San Francisco (CA9) (here) is a classic example of the cop-as-soldier frame:

Officer Alvis climbed into the attic with her gun drawn. Officers Morgado and Keesor entered the attic after Officer Alvis with their guns drawn as well. It was dark, but Officers Alvis and Morgado had flashlights. Officer Alvis shouted that she saw Sullivan. An officer responded over the radio “Hey,why don’t we just pull back really quick, set up a perimeter and just try to get him later.” Officer Alvis then shouted  “Cover both closets. I have him at gunpoint. He’s not going anywhere. . . .” 
No one was in Espinosa was in any danger.  The man police killed was not holding anyone hostage.  He was trapped in an attic - where he had been sleeping.  The police didn't even have a good reason to be in the man's apartment.

Painted on police cars is, "to protect and serve."  Whom were police protecting when they drew their guns on a sleeping man?  Whom were police serving when they shot an unarmed man?

Modern police forces have become militarized, as Radley Balko covers in detail here.  Police officers are not trained to protect and serve; they are trained to shoot first, and ask questions later.

In a military setting, collateral damage is recognized as justifiable.  Innocent people die to further the military mission.  Even in just wars, collateral damage is inevitable.  ("As tragic as it is, collateral damage to innocents is an inescapable consequence of war. Catholic theology recognizes this. It applies to such situations a well-established principle known as the law of double-effect. According to this law it is permissible to undertake an action which has two effects, one good and one evil, provided that certain conditions are met.")

What just war are police fighting on American soil?  Why has the police frame shifted from that of the beat cop who knows his neighborhood and interacts with the public, to armed-and-dangerous soldiers who illegal enter homes and shoot to kill?  

Whatever the cases, the effect is clear: Police do not view themselves as protectors and defenders.  Why then should we?

Civil Rights Lawsuit for Daycare Closing

McBeth v. Himes (CA10) (here) is probably a must-read for those of you who do retaliation cases.  I'm going to need to sit down with it.  Here's what you'll have to look forward to:

While we do not hold that the Hartman rule is applicable to “ordinary” retaliation claims, we do think that the logic of the rule necessitates its application here, where “multi-layered causation” complicates the court’s inquiry into whether the defendant’s retaliatory animus caused the adverse action that harmed the plaintiff.
In McBeth, a daycare worker had to close down operations after her license was suspended.  Why was her daycare license suspended?  Well, that's the issue.  The plaintiff claimed that her license was suspended in retaliation for her lawyering up when police asked for her clients' names and addresses.

Good luck proving retaliation where there is "multi-layered causation."  The cynical among us would call "multi-layered causation" diffusion of responsibility.  If you want to avoid a retaliation lawsuit, just convince someone else to assist with your dirty work.  Involving everyone means no one will be held responsible.  Pretty cool, isn't it?

PLRA Legal Fees

Keup v. Hopkins (CA8) (here) is a reminder why lawyers should rarely file civil rights lawsuits on behalf of prisoners - at least if you want to keep the lights on.

In Keup, a prisoner won his lawsuit against various prison officials. Because the prisoner's injury was more abstract that monetary, the prisoner was awarded nominal damages - just one dollar. Nevertheless, the prisoner did prove that his rights had been violated.

Under 42 U.S.C. 1988, a prisoner is entitled to have the defendants pay his legal fees. Under 42 U.S.C. 1997, those fees are capped. In cases where nominal damages are awarded, the lawyer is only entitled to $1.50 in legal fees:

The district court awarded Keup approximately $25,000 in attorney fees eventhough the court determined Keup was entitled to only $1.00 in nominal damages.  The district court’s ruling is contrary to governing precedent. Section 1997e(d)(2)provides, “If the award of attorney’s fees is not greater than 150 percent of thejudgment, the excess shall be paid by the defendant.” We have repeatedly construedthis “awkwardly worded” statute to cap awards of attorney fees in prisoner rightscases to 150% of the monetary damages awarded.  When the plaintiff only receivesnominal damages of $1.00, § 1997e(d)(2) caps attorney fees at $1.50.  See, e.g., Royal v. Kautzky, 375 F.3d 720, 725-26 (8th Cir. 2004) (referring to the statute as“awkwardly worded” and affirming an attorney fees award of $1.50); Foulk, 262 F.3dat 704 (similar); see also Pearson v. Welborn, 471 F.3d 732, 742-44 (7th Cir. 2006) (holding cap at § 1997e(d)(2) applied to a prisoner who was entitled to nominaldamages); Robbins v. Chronister, 435 F.3d 1238, 1239 (10th Cir. 2006) (en banc)(similar); Walker v. Bain, 257 F.3d 660, 667 (6th Cir. 2001) (similar); Boivin v.Black, 225 F.3d 36, 40-41 (1st Cir. 2000) (similar).
No thanks.