Is "Low Value" Speech Entitled to Lesser First Amendment Protection?

The California Court of Appeal recently issued an interesting First Amendment opinion, which is discussed at my sister blog.

Letter To Publisher: Thanks But No Thanks

I am sending this letter to a publisher tomorrow. Read it and weep.

February 1, 2010

Dear Jeff:

Flattered though I am by your offer to let me participate in creation of the new book on model federal complaints, I have decided to pass. Although I have filed scores of suits arising under 42 U.S.C. Section 1983 in my career, I am no longer confident that our federal courts have the will to face these cases with anything but a motive to derail them prior to trial. I rarely encourage lawyers calling me for advice about these cases to file them any longer.

In the past few years, the judiciary has become so hostile to federal civil rights complaints that the volume of actions I have filed is greatly diminished. Just last year, the Supreme Court put another nail in the coffin of 1983 practice by requiring heightened pleading rules. I now waste time responding to boilerplate motions to dismiss. See, Iqbal v. Ashcroft. I rarely file these complaints any longer, and when I do, I am rarely confident my case will make it to the jury: An emboldened judiciary grants qualified immunity with increasing encouragement from the Supreme Court. See, Scott v. Harris.

I was invited a few months back to contribute sample voir dire questions to another volume by a different publishing complany, and never did so. I am frankly not at all confident that 1983 writs are worth filing in all but the most egregious cases of misconduct. Those cases are few and far between. Frankly, I believe the hey day of 1983 litigation has passed.

I am hard pressed to know who to recommend in my stead. Perhaps .... He remains my mentor and what little I know in this area I learned from him.

I am returning the material you were kind enough to send to me. Thanks for thinking of me.



Second Circuit Issues Horrible Post-Garcetti Opinion

The blog, "Wait a Second" has the report on Weintraub v. Board of Education (CA2)  here.

The Next Big Prosecutorial Immunity Case?

Mike Scarcella has this interesting post at the Legal Times.

Video Evidence and Scott v. Harris

Show of hands: How many of you plaintiffs lawyers have ever been able to win an excessive force case on summary judgment?  What about in those cases where you had video?  Surely you'd win on liability, with the trial court only sending a case to a jury to decide on damages.  Right?

No, nope, never.  Won't happen.  Hasn't happened.

What happens when the police have a videotape completely discrediting the plaintiffs case?  Applying Scott v. Harris, today the Eighth Circuit Court of Appeals wrote:

Although we view the facts and any reasonable inferences in the light most favorable to Wallingford, see, e.g., White, 519 F.3d at 813, we cannot ignoreincontrovertible evidence which clearly contradicts Wallingford’s allegations. In Scott, 550 U.S. at 380, the Supreme Court of the United States explained, “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
The videotape conspicuously refutes and completely discredits Wallingford’s version of the material facts upon which she bases her excessive force claim against Deputy Olson. The videotape demonstrates, as a matter of law, Deputy Olson’sconduct was objectively reasonable under the circumstances. See id. at 381-86. The district court erred in denying Deputy Olson qualified immunity as to Wallingford’s claim of excessive force. 
Wallingford v. Olson, No. 09-1271 (8th Cir. Jan. 25, 2010) (here).

I am a pragmatist rather than a true believer.  Even many victims of police misconduct certainly, in some Platonic sense, deserved it.  Ordinarily, then,  I would applaud that result.  Why send a frivolous case to a jury when you have videographic evidence that the plaintiff is a liar?

 Sure, there is the whole Jury Trial Clause of the Constitution.  And in some abstract sense, summary judgment is probably unconstitutional.  Still, don't we have enough frivolous lawsuits as it is?  Why not dismiss the ones that are provably frivolous?

There is a government-citizen asymmetry.  I've personally handled excessive force cases involving videos, and known and studied dozens of others cases clearly showing excessive force used by officers on a citizen.  I've never heard of a plaintiff ever winning an excessive force case on summary judgment.  Have you?

"Let the jury decide," is what a judge will tell a plaintiff seeking summary judgment in an excessive force case. When the police have the video, however, the case will never see a jury.  Why?

Unfortunately, Wallingford v. Olson is about much more than videographic evidence.  Wallingford stands for a much broader proposition: Police and citizens shall not have the same legal standard applied to their cases. How such a statist outlook on constitutional rights is at all consistent with an original understanding of the Constitution or the principles articulated in the Declaration of Independence, escapes me.

The Failure of Prosecutorial "Peer Review," and the Supreme Court's Disregard for Empiricism

In Imbler v. Pachtman, 424 U.S. 409 (1976), the United States Supreme Court read prosecutorial immunity into 42 U.S.C. Sec. 1983 - even though Section 1983 did not exempt prosecutors from suit. Although the Court recognized that absolute “immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of his liberty,” id. at 427, this sacrifice of the individual was necessary for “the broader public interest.” Id. Moreover, a “malicious or dishonest” prosecutor would still face discipline because

a prosecutor stands perhaps unique among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.
Id. at 428-29. Sounds fair, no? No.

In Kalina v. Fletcher, 522 U.S. 188 (1997), a Washington state prosecutor (Lynne Kalina) lied under oath:
Kalina's certification contained two inaccurate factual statements. After noting that respondent's fingerprints had been found on a glass partition in the school, petitioner stated that respondent had "never been associated with the school in any manner and did not have permission to enter the school or to take any property." In fact, he had installed partitions on the premises and was authorized to enter the school. She also stated that an employee of an electronics store had identified respondent "from a photo montage" as the person who had asked for an appraisal of a computer stolen from the school. In fact, the employee did not identify respondent.
Id. at 121. Was Ms. Kalina subject to “professional discipline” by “an association of [her] peers”?  Was she at least publicly criticized? No.

Instead, prosecutors all filed amicus briefs on her behalf! Id. at 120 ("Briefs of amici curiae urging reversal were filed [for]... Washington, ... for the Thirty-Nine Counties of the State of Washington, ... and for the National District Attorneys’ Association et al.")

Is Lynne Kalina merely an anecdote?  Unfortunately, no.  Prosecutors regularly escape sanction for misconduct.

he California Commission on the Fair Administration of Justice compiled data on prosecutorial misconduct.  (Here's the report.)  They had to do a lot of leg work, though:
Because District Attorney Offices typically do not keep statistics on the number of prosecutorial misconduct complaints filed against their office, we surveyed all California Court of Appeal decisions (published and unpublished) to determine the nature of prosecutorial misconduct problems and which jurisdictions were most affected. Appendix D contains a full report of those cases.
Think about that.  According to the conservative justices of the Supreme Court, prosecutors take prosecutorial seriously.  Yet no one is keeping track of data.  You can bet that the same offices that do not track prosecutorial misconduct do track conviction rates.  In fact, most prosecutors are data-crunching machines.  When it comes to misconduct, no one cares enough to even save an Excel sheet.

The CCFA Report was demoralizing:
Research identified 347 of the prosecutors and 30 of them were found to have committed misconduct more than once. Two of them actually did it three times. So what happened to them? In only one case was there a sanction - the prosecutor was disciplined by the State Bar.
Does the data support the Supreme Court's view that "a prosecutor stands perhaps unique among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers."  Imbler, 424 U.S. at 428?

The Department of Justice also does not take prosecutorial misconduct seriously.  The odds are less than 50-to-1 that a prosecutor reported for misconduct will receive even an informal sanction.  One might argue that prosecutors are unfairly subjected to false accusations of misconduct.  If that is your argument, consider this: Sixty-nine percent of investigated complaints were initiated by judges. Private lawyers and private litigants amounted for less than 3% of complaints leading to investigation.

Of the 84 cases worthy of investigation (58 of which were cases where a judge had already found prosecutorial misconduct), in only 18 cases were prosecutors disciplined. According to DOJ's Office of Professional Responsibility, federal judges are maliciously and falsely accusing prosecutors of misconduct.

The empirical evidence is clear.  Prosecutors do not face meaningful sanctions for misconduct.  Perhaps there are other good reasons to give prosecutors absolute rather than qualified immunity.  These reasons should be based on facts, however.

The Supreme Court's Imbler position is intellectually bankrupt.  A posteriori, the Imbler position is indefensible.

Wrongful Conviction Section 1983 Lawsuit

Working within the criminal justice system is demoralizing.  Judges ignore facts by making guesses about the way the world works.  They channel Dr. Pangloss.  See how far you get with a judge arguing that your client's confession was coerced.  Yet false confessions are a scientific fact.  They also lead to horrible results:

This civil rights case arose from the investigation and prosecution of innocent teenagers for a crime they did not commit.  Michael Crowe, Aaron Houser, and Joshua Treadway were wrongfully accused of the murder of Michael’s 12-year-old sister Stephanie Crowe. After hours of grueling, psychologically abusive interrogation—during which the boys were isolated from their families and had no access to lawyers—the boys were indicted on murder charges and pre-trial proceedings commenced.
A year later, DNA testing revealed Stephanie’s blood on the shirt of a transient, Richard Tuite, who had been seen in the Crowes’ neighborhood on the night of the murder and reported by several neighbors for strange and harassing behavior. The shirt had been collected as part of the initial investigation, but never fully tested. Charges against the boys were eventually dropped, and Tuite was convicted of Stephanie’s murder.
Michael, Aaron, Joshua, and their families filed a com-plaint against multiple individuals and government entitieswho had been involved in the investigation and prosecution ofthe boys. The complaint alleged, amongst other claims, constitutional violations under the Fourth, Fifth, and Fourteenth Amendments, and defamation claims. In two separate orders, the district court granted summary judgment in favor of the defendants as to the majority of the plaintiffs’ claims. The Crowes and the Housers now appeal the bulk of those orders and several defendants cross-appeal the district court’s denial of summary judgment on qualified immunity grounds as to several claims. We affirm in part and reverse in part.
Crowe v. Wrisley (9th Cir.) (here).

Section 1983 Lawsuit Seeking DNA May Proceed

The Legal Intelligencer's Shannon P. Duffy has this story on Grier v. Klem.

Tasers and the Fourth Amendment

Mattos v. Agarano, No. 08-15567 (9th Cir. Jan. 12, 2010) (here) is a loss for the plaintiff, but a win for the development of the law of Tasers and the Fourth Amendment.

Although the record onthis point is not as developed as we could hope for, viewingthe evidence in the light most favorable to Jayzel, we have nodifficulty concluding that the Taser stun was a serious intru-sion into the core of the interests protected by the Fourth Amendment: the right to be “secure in [our] persons.”
Sort of weird that this is a debatable point.  Anyone here been tasered?  Wanna let me taser you?

There's a library of YouTube videos of people getting tasered.  It's a nasty experience, and one which I hope to avoid.  And I've been through some nasty stuff.  In Army Basic Training, I got to experience the "gas chamber."  Basically, go into an enclosed room full of CS gas - yeah, that's tear gas.  Remove your gas mask.  Have fun!

Yes, I survived.  Hey, we all did.  Does that mean tear gas ain't no thing?

When we're talking about holding police officers accountable, though, even the banal becomes controversial:
The defendants paint a benign portrait of the Taser,offering evidence that it has been used on over one million human subjects and has proven extremely safe, as well as evidence that the actual voltage applied to a subject’s body usesless electricity than a single bulb on a string of Christmas treelights.
Over a million people have been punched in the head.  Most people don't die.  A punch in the head, by this logic, is extremely safe.

We don't want people punching each other in the head.  Because, well, it hurts.  "That which doesn't kill you makes you stronger," shouldn't supplant, "To protect and serve."

Anyhow, the plaintiff loses because no all force is excessive.  There's a balancing test to be applied.  Tasers, like every other instrument of pain infliction and death (jack boots, fists, guns, batons, pepper spray) may be used when the situation calls for it.

Channeling former Justice Sandra Day O'Connor, the panel applies a balancing test - which means it gets to do whatever it wants.  The plaintiff loses.

PLRA Failure to Exhaust Excused in Split Opinion

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.  Rarely is a failure to comply with the PLRA excused.

In Nunex v. Dr. Duncan (here), a split panel excused a failure to technically exhaust in a weird set of facts.  The prisoner filed a grievance.  The warden did two things.  First, he denied the prisoner's request for relief.  Second, he warden (in good faith) answered the prisoner's grievance by referencing some obscure document.

In order to exhaust remedies before filing suit, the prisoner needed to appeal the warden's ruling.  The prisoner thought he needed to obtain the obscure document to proceed.   While the prisoner diligently attempted to obtain the document, his time for appealing the warden's ruling passed him by.

The panel held, sensibly, that the prisoner had complied with the PLRA.  The dissenter threw a fit.  Even though the failure to exhaust was the warden's fault, the prisoner should suffer.  Look, I hate convicts as much as the next person.  But...Seriously?  You can't send a guy on a wild goose chase, and then blame him when he doesn't come back with any geese!

PLRA cases tend to anger people.  The same people who slept through Civil Procedure and never even took Federal Courts become fascinated with proceduralism when it means putting the thumb screws to prisoners.  Thus, Nunex might go en banc, even though it's a pretty boring issue.

P.S.  Congratulations to Banurekha Ramachandran winning the appeal.  (No personal relationship with her, but she took the case pro bono, and thus deserves recognition.)

Conn v. City of Reno; and Judge Alex Kozinski's Views on Section 1983 Cases

I didn't read the panel's initial opinion in Conn v. City of Reno.  I gathered from the first paragraph of Judge Kozinski's dissent from denial of rehearing en banc, that the panel's opinion raised a DeShaney issue.  Kozinski obviously wants this one reviewed by the United States Supreme Court:

Chief Judge KOZINSKI,withwhomJudgesO’SCANNLAIN, KLEINFELD, TALLMAN, CALLAHAN,BEA and IKUTA join, dissenting from the denial of rehearingen banc.
Until this opinion came along, police officers weren’trequired to serve as babysitters, psychiatrists or social workers, and judges didn’t run suicide-prevention programs.Responsibility for preventing suicide rested with the individ-ual and the family, not the state. But the panel has discoveredthat the Constitution demands a change in job description:Judges will henceforth micromanage the police, who in turnwill serve as mental health professionals. The panel’s reason-ing has no stopping point, and our decision to let it standthreatens unprecedented judicial intervention in our local institutions.
Read the rest here.

Judge Kozinski has an interesting view on Section 1983 cases.  Perhaps not coincidentally, it's my view.  Judge Kozinski has very little sympathy for police misconduct, and civil rights violations more generally.  He defines "civil rights violations" less broadly than someone like, say, Judge Stephen Reinhardt.

Probably the best example of Judge Kozinski's thinking on civil rights issues is Norwood v. Vance (here).  In Norwood, prisoners sued for being deprived of outdoor exercise.  The oral argument was viscious.  Judge Kozinski mocked the claim.  Which I would have done, too.  Shaun Martin described Kozinski's Norwood opinion thusly:
Chief Judge Kozinski is sometimes the swing vote in close civil liberties cases. So in this case, in which the other panel members are Judge Callahan and Thomas, it's not entirely surprising to discover that the party who wins Kozinski is the party who wins.
But just because you're sometimes a swing vote doesn't mean you're a moderate. This Kozinski opinion could have just as easily been written by Judge Callahan.
Sure, prisoners shouldn't be starved, or raped, or beaten by guards.  But prison is not supposed to be a nice place.  It should suck.

In the free world, police should not go around clubbing citizens, or tasing anyone who walks away from them.  That said, police are not social workers.  It's not a police officers job to prevent suicides.  Cities shouldn't be held liable because police do not know how to recognize a suicide risk.

Others obviously take a different view, though I think Kozinski's is the most sensible.  Judges like Consuelo María Callahan would grant qualified immunity to a cop who raped your spouse in front of you.  "Well, no cases technically held that forcing a citizen to watch the rape of his spouse is unconstitutional."  Judge Reinhardt would bankrupt cities by holding that every sneeze is a civil rights violation.

Judge Callahan is Texas.  Decent, rational people mock Texas justice for a reason.  Judge Reinhardt is California.  If you want to see what happens to a state that makes everything a civil right, start following California's budget crisis.

The truth is generally the mean between two extremes.  Judge Kozinski has found the golden mean on civil rights issues.

Is a Pre-Arraignment Summons a Fourth Amendment Seizure?

Burg v. Gosselin, No. 09-0708 (2d Cir. Jan. 7, 2010) (here) presents an interesting Fourth Amendment issue.  In Burg, an animal control officer issued the plaintiff a summons, requiring the plaintiff to appear in court for an animal-control-related infraction.  Arf, arf, arf!

The plaintiff blew off the summons.  Which, as we know, means you're going to hear the trial court bark back, "Bench warrant!"  After the plaintiff was arrested, she had the underlying summons that had been issued against her invalidated.  Seizure?

I don't know...The case seems much less interesting after blogging it.  A summons is just an order to appear in court in the future.  You have to make the conscious decision to blow it off in order to get arrested.

I'll thus revise my initial sentence: It's an interesting set of facts, but the Fourth Amendment issue isn't especially complicated.  Nah, just kidding.  Per the Court:
“Whether a mere pre-arraignment summons constitutes a Fourth Amendment ‘seizure’ is . . . a difficult issue and one that has not yet been resolved in this Circuit.”  Dormanv. Castro, 347 F.3d 409, 411 (2d Cir. 2003) (emphasis inoriginal) (per curiam).
Slip op. at 5.  It's complicated because there's a definite causal connection between the arrest for not appearing, and the order to appear.  If you hadn't molested me with your false summons, I'd have never been arrested!  Why should the burden be on me to show up to answer a false summons?  There's something to that argument.

The Second Circuit panel disagrees: 
Judith A. Burg, a dog owner, appeals from a finaljudgment of the United States District Court for theDistrict of Connecticut (Hall, J.), dismissing on summary judgment her Section 1983 complaint against a canine controlofficer.  The district court held that issuance of a pre-arraignment, non-felony summons requiring a later court appearance, without further restraint, does not constitute aFourth Amendment seizure. We agree, and affirm.
Read the rest here.

City v. State

Here's an interesting lawsuit brought by a city verses Utah's Lt. Governor:

This case presents an equal protection challenge to a Utah statute that allows cities, through an election open only to residents in the proposed new district, to detach from an existing school district.
The Appellants in this case were excluded from voting in an election that reduced the size of their existing school district because they were outside the proposed new district’s boundaries. They argue Utah’s detachment law violates their Fourteenth Amendment equal protection rights since they have a substantial interest in the new school district’s configuration and boundaries. In a summary judgment ruling dismissing the equal protection claim, the district court concluded the school district detachment statute advances legitimate state policies and therefore withstands rational basis review.
After considering Utah’s statute and the applicable equal protection principles, we agree with the district court that rational basis review applies and the Utah statute bears a rational relationship to legitimate state purposes. The electoral scheme furthers, among other things, the state’s interests in promoting local control of public school districts by extending the franchise only to those voters who will reside in the new district.
City of Herriman v.  Bell, No. 08-4056 (10th Cir. Jan. 7, 2010) (here).  Lots of discussion on justiciability issues, too.

The Next Pottawattamie County?

Supreme Court geek John Elwood writes at the Volokh Conspiracy:

While the settlement ends this case, this is not the last we’ve seen of this issue. Any other case which credibly presents the same issue will have an enhanced chance of being granted, because the Court has a demonstrated interest in the issue. The facts of Pottawattamie County were particularly sympathetic, which made it more cert-friendly than the run-of-the-mine case; but at this point, I think the Court is interested in the issue and won’t need outrageous facts to grant.
While I have compiled a list of cases I suspect the Court is holding pending resolution of cases on its merits docket, I am not aware of any cases being held for Pottawattamie County. Nor am I aware of any pending cases out there that present the same question. If you know of any, let me know in the comments. It’ll be interesting to see where this goes.
A commenter suggests this answer:
The 5th Circuit’s recent en banc tie vote in Thompson v. Connick would seem to be a likely candidate, although I don’t know if a cert petition has been filed by the NOLA prosecutor’s office. The time for seeking cert would have run only recently, and may well have been extended, so it likely wouldn’t be teed up for a conference until later this spring.–30443-CV2.wpd.pdf
Update: A petition for cert in that case was filed in November, and the response is due next week.
I saw that Fifth Circuit Judge Edith Jones wrote the dissent in Thompson.  So we can count on the opinion involving pure evil.

Judge Jones Trivia: Remember Texas District Court Judge Samuel Kent?  He's the guy who resigned on threat of impeachment, after being convicted of criminal sexual assault.  He's in prison.

Judge Jones' response to Judge Kent's conduct was, "What's a little sexual assault among friends?"  Think I'm kidding?  Here's the discipline she meted out:
Judge Jones oversaw the panel of judges from the Fifth Circuit that investigated the initial accusation that Judge Kent had sexually harassed his case manager, Cathy McBroom, in 2007. After an investigation, the judicial council suspended him for four months without pay and reprimanded him, without releasing details of the abuse.
Four months suspension.  For criminal sexual assault.  She also protected Judge Kent's privacy, refusing to identify case details.  Basically, she covered up Judge Kent's crime.

After Judge Jone's outrageous opinion,  the United States Department of Justice intervened.  Clearly DOJ was more concerned with judicial rape than Judge Jones was.

Keep Judge Kent's Case in mind before you read one of Judge Jone's tough-on-crime judicial opinions involving ordinary Americans.  Keep in mind her obviously biased views, too, before reading an opinion on prosecutorial immunity.  If she doesn't even care about a judge raping a court employee under her watch, why would she care about a wrongful prosecution?  Power über alles.

Pottawattamie Lost

I don't know whether to breathe a sigh of relief, or gnash my teeth: But the Supreme Court has dismissed without decision the case of Pottawattamie County, et al., v. McGhee, et al. (08-1065). That's because the parties settled the case for a reported sum of $12 million. By dismissing the case, the Supreme Court constructively endorsed the practice of municipalities' insuring public officials for what amounts to conduct that shocks the conscience.

The issue in Pottawattamie was simple: Were prosecutors immune from suit when they knowingly procured false testimony and then used it in the prosecution of innocent men? It takes balls as big as a freak show pumpkin to assert such an immunity, but given the current state of the law, why not? Our courts are systematically eviscerating claims arising under 42 U.S.C. Section 1983 with cancerous new immunities. Why not just declare prosecutors off limits once and for all? I feared that would be the import of the Pottawatamie decision.

But it may be that it is still possible to shock the conscience of a Supreme Court justice. We won't know now until the next case of prosecutorial misconduct makes its way to the court.

The Pottawattamie plaintiffs claimed that their Fourteenth Amendment right to substantive due process had been denied by lawmen so bent on a conviction that they would lie to a judge and jury to obtain one. The plaintiffs were convicted, and spent decades behind bars before they were exonerated. Proof of a subtantive due process claim requires showing conduct that shocks the conscience; the conduct in question must be at odds with the norms of a civilized society, and so fundamentally jarring as to threaten the very concept of ordered liberty. This standard is almost impossible to meet in the United States: the judicial conscience, you see, is on the endangered species list, having been all but slaughtered by efficiency freaks and those enamored of the state's power.

I expected a defeat for the plaintiffs in Pottawattamie. Perhaps I was wrong.

Obviously, it takes a case or controversy to keep a case alive, and if the parties have resolved their differences in this case, then so be it. But still, I would have preferred the Court to retain jurisdiction over the case to decide its merits once and for all. Surely, the public importance of a decision involving prosecutors who will lie to obtain a conviction raises issues fundamental to a republic. The case was on submission: the Court should have reached a decision. Substantial questions still remain about when and whether prosecutors can be liable for lying.

Instead, what we ended up with is the worst of all possible worlds, especially if you are are a taxpayer in Pottawattamie County. When lawyers for the lawmen agreed to ante up a fortune, they agreed to pay funds from the public fisc. In other words, the good people of the county are now offering financial insurance to conduct that should be regarded as a crime. And the lawmen apparently will suffer not at all. Will there be a revolt in the county? Probably not. The sheep, you see, are content to be slaughtered: that's how we ended up with a court system increasingly numb to the claims of justice.

Sadly, I expect little else when it comes to claims of official misconduct. We drapes these claims in the same species of deceit we use on juries in all manner of civil cases: We tell the jury they are the conscience of the community, and then look them straight in the eye and lie to them. They must never learn of insurance. Oh, if they learned the truth a plaintiff might be given too much money. That would be bad, we croak when no one is looking.

So instead we hide the truth from juries and call it justice. In Pottawattamie County that means prosecutors can lie, cheat and steal. And when they get caught, taxpayers can pay the damages. It's time for a new word in American life and culture. What do you say of a man or woman whose been snookered, made a fool of, treated as a fool, and then told that everything is fine? Why, the person's been pottawattamied, of course.

Pottawattamie County v. McGhee Dismissed (UPDATED)

Pottawattamie County v. McGhee, the biggest case on prosecutorial immunity in years, has been dismissed by agreement.  Details here.  UPDATE: The settlement was for $12 million.  Thanks to the damned justiciability doctrines, the Court won't decide the issue.  The lead plaintiff in Pottawattamie County was represented by Gerry Spence's law firm.  On a personal level, at least the plaintiff is going to get a fat check for the decades he spent behind bars.

Professionally and scholarly speaking, the dismissal is demoralizing.  As a citizen, it's even more demoralizing to reflect on the fact that the prosecutors who knowingly had an innocent man convicted are still practicing law.  The prosecutors were never punished.  The unethical prosecutors won't even write any checks, as taxpayers will foot the bill.

But at least the plaintiff is going to get paid.

Malicious Prosecution and Section 1983

Is there a Section 1983 cause of action for malicious prosecution?  If so, when?  Today in Avila v. Papas, No. 09-1867 (7th Cir. Jan. 4, 2010) (here), Judge Easterbrook dismissed a malicious prosecution claim where there was probable cause for the arrest, but where the citizen was charged under the wrong statute.  He dismissed the case on subject matter jurisdiction grounds:

Prior decisions inescapably render Avila’s federal theories frivolous. Albright v. Oliver, 510 U.S. 266 (1994), holds that malicious prosecution does not violate the Constitution’s due process clauses. There might be a problem under the fourth amendment if a person is arrested without probable cause, but when the suit is directed against the prosecution itself, rather than any attendant custody, there is no constitutional wrong.
In Avila, the woman made terrorist threats.  She was charged with making terrorist threats towards a public official, though the person she threatened wasn't a public official.  Still, her arrest was still proper under the Fourth Amendment.  See Devenpeck v. Alford, 543 U.S. 146 (2004) (holding that an arrest for the wrong crime is valid under the Fourth Amendment if you're nonetheless a criminal).

Beyond Avila, whether there exists a cause of action for malicious prosecution under Section 1983 is an interesting one.  In "Obstacles to Litigating Civil Claims for Wrongful Conviction: An Overview," (here) Michael Avery (a name familiar to us all) notes:
The first barrier to a cause of action under § 1983 for malicious prosecutionis the doctrinal question of whether there is any constitutional claim for mali-cious prosecution, a question that has provoked substantial controversy in the federal courts.... [T]he lower federalcourts have divided on the issue.  Most courts have held that something in addition to the common law elements of malicious prosecution is required to establish a Fourth Amendment violation, although there is disagreement as to precisely what is required.
Avery's entire article is worth reading - and is required reading if you represent the wrongfully accused.

In this blog post, Sheldon H. Nahmod writes:
However, there remains a particularly muddled area of section 1983 jurisprudence that has long cried out for rethinking: section 1983 malicious prosecution claims.
The Supreme Court’s decision in Albright v. Oliver, 510 U.S. 266 (1994) (plurality opinion), was a small step in the right direction because it at least made clear that section 1983 malicious prosecution claims cannot be based on substantive due process. But it did not go nearly far enough in removing malicious prosecution elements from the mix.
It's an interesting issue.  It's troubling that its not a constitutional tort to falsely prosecute a person.  I'd much rather spend a night in jail for a wrongful arrest than face a criminal prosecution.  (Tip: If you're in jail for a night, simply tell the guard you were threatened, and demand protective custody or solitary confinement.  Put your complaint in writing.)  How much does it cost to hire a lawyer?  How much uncertainty must one live under?

Assuming you're not raped or seriously beaten in jail, the wrongful arrest is an in-and-out procedure.  A wrongful criminal prosecution is a traumatic event that lasts for months or years.  Why is a wrongful prosecution a lesser constitutional injury than a wrongful arrest?

Judge Richard Kopf's Road To Hell

I was inclined to greet news that a Nebraska federal judge issued an order enjoining the state from enforcing part of its new sex offender law with good cheer. "Finally," I thought, "a judge with the sense to see through the madness of these new laws." But then I read the decision, and I am now inclined to view United States District Court Judge Richard Kopf's decision as yet another road to Hell. This one is not even paved with good intentions.

The plaintiffs sought to bar Nebraska from enforcing harsh new requirements for the registration and monitoring of so-called sex offenders. State lawmakers approved new legislation to go into effect on January 1, 2010, as a means of retaining federal funding under the so-called Adam Walsh Child Protection and Safety Act of 2006, codified at 42 U.S.C. Section 16912. The act, known as SORNA to insiders, aspires to create a new national sex offender registry.

Nebraska did what all good states do when the feds threaten to turn off the spigot of free cash: it amended its laws to please federal paymasters. There's nothing unlawful about this, mind you. Constitutional lawyers don't regard this as the assertion of a federal police power, a notion anathema to the very concept of federalism. No, we maintain the police fiction that cash-strapped states are free to say no to generous federal funding: States that don't want to eat Uncle Sam's carrots are free to walk away.

But Nebraska did more than SORNA required. The state also enacted requirements not found in SORNA: namely, it required sex offenders who are not on parole or probation to sign consent forms permitting the state to search and seize their personal computers at will. It also barred non-supervised registrants from participating on social networking sites on which minors might appear.

The plaintiffs in the Nebraska action, who include the mother of a so-called offender, and an attorney who employs a so-called offender, sought to enjoin Nebraska from enforcing the law, and they filed papers in mid-December to block enforcement. On December 30, Judge Kopf issued an order upholding all aspects of the new Nebraska law except the provisions requiring unsupervised registrants to consent to searches of their computers and the barring them from participating on social networking sites.

The thinking goes something like this: Once an offender is not on probation or parole, he is free, and therefore the state cannot resitrict his Fourth Amendment right to be free from unreasonable searches and seizures. Neither can the state impede the right to free association and speech. I have news for you: Those rights will evaporate for sex offenders unless something changes.

Judge Kopf's decision is troubling for those who care about civil liberties.

The federal courts have long since concluded that registration is not punishment, a view that only a life-time appointee who must never look for a job, seek a place to live or worry about random knocks on the door by vigilantes can maintain. This repulsive abandonment of reason justifies registration by saying it is a mere regulatory requirement incident to conviction of certain offenses. Thus, it violates no constitutional right to be required to register, even without a particularized showing of harm. Let's just round up this new class of niggers and put them on a libidinal plantation.

Judge Kopf notes this line of cases and then concludes, somewhat paradoxically, that it is all right to require registration, a mere incident to conviction, but it is not all right to require registrants also to consent to random searches or stay off social networking sites. Don't get me wrong, I am relieved to see this constitutional line drawn. But my sense of the current climate of hysteria among lawmakers and judges is that this constitutional line will also be erased: what's a few random searches in the name of public safety if the folks were searching are already on the registry? And do we really want Uncle Ernie fiddling about on Facebook? You know the answer in terms of popular prejudice; it won't take long for the simpering class on the bench to fall into line.

And Judge Kopf is a cheerleader for the simpering class.

"In a democracy," he writes, "we have legislatures to make public policy choices, and a black robe does not legitimize nullification of those legislative decisions simply because I find them dumb or distasteful. On the contrary, '[i]f the people want to go to Hell, I will help them. It's my job.' Let's get at it."

It does not help that Judge Kopf cites Oliver Wendell Holmes for this eviscerated vision of a federal judge's role. Sure, the judge is literate, but to what end: cowardice? May I remind Judge Kolb that the judiciary is independent for a reason, and that the Bill of Rights was also enacted for a reason: Those reasons are common, Judge. To place certain things off bounds when lawmakers are moved by passion: that is what we refer to by the notion of checks and balances. Your job, Judge, is not to hide behind a black robe and then lose yourself in the bellowing mass of idiocy any legislative body can conceive in the dark of night. We expect more of a federal judge that passing the buck.

The Nebraska decision is a disgrace: A federal judge dancing glibly to Hell, and then all but laughing about it. Sad. Tragic. And worse, a sign of things to come. Reading between the lines, the judge is really sending a signal to Congress: Amend SORNA to do whatever you like, because, in the end, I will lack the courage to do anything at all to protect the rights of our new pariahs!