Coerced Waivers, RICO, Lee Baca (Avalos v. Baca)

Not much time to discuss Avalos v. Baca (here):

J. Avalos was over-detained by the Los Angeles Sheriff’s Department (“LASD”). He filed this action against officers of the LASD in their official and individual capacities. He asserts claims pursuant to 42 U.S.C. § 1983 for alleged violations of his rights under the Fourth and Fourteenth Amendment based on his over-detention and for defendants’ efforts to procure an involuntary waiver of his civil rights claim based on his over-detention. Avalos also alleges claims of conspiracy and violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(a)-(c)(“RICO”). 
The district court granted summary judgment in favor of defendants. 
We conclude that (1) plaintiff has failedto show an unconstitutional custom, policy or practice of over-detention, (2) there is no actionable claim under § 1983 for procuring a coercive or involuntary waiver of a civil rights claim, (3) the district court properly granted summary judgment for defendants on plaintiff’s conspiracy claims, and (4) plaintiff has failed to present sufficient evidence of a RICO violation or any harm to his business or property from the alleged act of racketeering. Accordingly, the district court’s grant of summary judgment in favor of defendants isaffirmed.
Seems odd that a person cannot state a Section 1983 claim for a coerced waiver.  Isn't a right to sue someone a property interest?  If the government forces you to relinquish your right to sue, isn't that a deprivation of a property interest?  Moreover, a person has a First Amendment right to petition to the court for redress of grievances.  Coercing a citizen to give up that right would be a First Amendment violation.

Also of note: The Yagman law firm has been on a decade-long crusade to hold L.A. County liable under RICO. No luck, so far.

Zombies Have Rights, Too (Baribeau v. City of Minneapolis)

Here's a fun case from the Eighth Circuit Court of Appeals.  Baribeau v. City of Minneapolis (here):

[PUBLISHED] [Per Curiam - Before Colloton, John R. Gibson and Beam, Circuit Judges]
Civil case - civil rights. Plaintiffs were entitle to engage in their protected expressive conduct, in which they dressed like zombies, walked erratically and broadcast anti-consumerism statements over a makeshift loudspeaker system, and the police lacked probable cause to arrest them; defendants were not entitled to qualified immunity because they violated plaintiffs' clearly established rights when they arrested plaintiffs without arguable probable cause to believe that plaintiffs had displayed weapons of mass destruction; defendants were entitled to qualified immunity on plaintiffs'claims that they were arrested in retaliation for exercising their First Amendment rights; defendants were also entitled to qualified immunity on plaintiffs' claims that the officers committed the state-law tort of false imprisonment; officers' action in confiscating plaintiff Sternberg's prosthetic leg was not a violation of his fourteenth amendments rights as the confiscation was reasonably related to the legitimate governmental objective of maintaining jail security; plaintiff Sternberg failed to state a claim that the confiscation violated his rights under Title II of the ADA. Judge Colloton, concurring in part and dissenting in part.

How to Turn a Parent Into a Kidnapper (Murray v. Lene)

When his children complained that their mother and her husband sexually abused them, Ronald Murray told police that he would not relinquish custody of his children to the alleged abusers.  Murray v. Lene (CA8) (here).  Murray's ex-wife agreed to not demand custody of the children until an investigation was completed.

When the ex-wife's parents demanded that Mr. Murray relinquish custody to them.  Mr. Murray refused, as any concerned parent would.  The ex-wife and alleged child molester called the police.

Mr. Murray told the police that he would comply with any court order demanding him to relinquish custody. All Mr. Murry wanted, it seemed, was some level of due process for his children.

How did police respond? They pulled a classic trick: Omit material facts from an arrest warrant application. It happens every day in criminal cases. Here's how it works:

Let's say that you have a marginal - even applying the low probable-cause standard - case for an arrest. Many judges would say, "This doesn't seem like a crime. I am not going to issue an arrest warrant." You really want the arrest, though, so here's what you do:

Officer Jason Lene Lene prepared a probable cause statement, although he neglected to mention that Mr. Murray was willing to comply with a court order to return the children, that Mr. Murray and Ms. Vittetoe shared joint custody, and that Ms. Vittetoe had agreed not to have any contact with the children during the course of the investigation.
Cool, huh? You've magically turned a father into a kidnapper. You haven't lied by telling false facts. Every fact is true. You have omitted material facts. Thus:
Basedon Officer Lene's affidavit, Mr. Williams initiated a prosecution against Mr. Murray for abducting his children and the Cedar Rapids, Iowa, Police Department arrested and detained him for about a month before it released him on his own recognizance. After a grand jury declined to indict Mr. Murray and Mr. Williams dismissed the prosecution, Mr. Murray commenced this suit.
A grand jury will indict a ham sandwich, but not a father who seeks to protect his children from being raped. Will the courts protect that same father?

Of course not:
The fact that Ms. Vittetoe agreed not to have contact with the children during the investigation would also not have been "clearly critical" to the finding of probable cause.  [Thus, the cop who omitted material facts will not be held accountable for misleading a judge into authorizing the arrest of an innocent man.]
Really? Does anyone here believe that a judge would have granted a search warrant application that stated: Ms. Vittetoe has been accused of sexually assaulting her children. She has agreed not to have any contact with her children until an investigation has been completed.  Her parents are demanding that Mr. Murray give them custody of the children.  Mr. Murray said he will comply with a court order demanding that he relinquish custody to the parents of the accused child molester.

The omitted facts are a game-changer, aren't they?  They change everything.  Mr. Murray was not some random man who kidnapped the children.  Instead, he was a concerned father who simply wanted a judge to hear him out before handing his children over to an alleged child molester's mother.

Moreover, isn't the grand jury's failure to indict evidence that the officer's omissions were deliberately calculated to lead to a false arrest? A grand jury - unlike a petit jury - does not decide guilt beyond a reasonable doubt.

Instead, a grand jury will indict when there is a probable cause that a crime was committed.  It's the same standard that applies when granting an arrest warrant.  Here, the grand jury refused to indict. A grand jury, when presented with all of the facts, refused to find probable cause; where as a judge, when presented with only a few facts, did find probable cause that a crime had been committed.

Shouldn't the grand jury's decision mean something?  At the least, it's prima facie evidence that the omitted facts were material.

Moreover, why didn't the court let a jury decide the issue? Why did the panel decide - as a matter of law - that the police officer was not reckless in his warrant application? It seems to be that if reasonable minds would disagree on the issue, then a jury should decide it.  Here, though, a court stole the issue from the jury.

Murray v. Lene is the latest is a long line of Section 1983 cases that only excuse police misconduct; but which also arrogate power to the judiciary. The panel had no legal authority to take this case away from a jury.  What relevance is the Seventh Amendment in light of Lene?

Lene's outcome is horrendous. It encourages police to lie - through omission - on probable cause affidavits.   An innocent man spent a month in jail for kidnapping because a police lied.  Lene also disregard's the judiciary's limited role in adjudicating disputes.  Lene harms not just Mr. Murray, but our entire constitutional system of separated - and therefore limited - powers.

Section 1983 Case Updates (2009 Case Summaries)

At DocStoc, there is this fantastic 17-page summary of circa-2009, Section 1983 cases.  Check it out.

Prosecutors Seek Qualified Immunity for State Bar Proceedings

Prosecutors are always making creating uses of the law.  Every day they send people to prison under novel interpretations of the law.  Yet when a prosecutor who has committed prosecutorial misconduct faces disciple from the State Bar, what do those whose job it is to "seek justice" argue?

A California State Bar Court appellate panel has upheld a four-year suspension for former Santa Clara County prosecutor Benjamin Field, despite an amicus curiae brief from the California District Attorneys Association warning of a chilling effect on prosecutions.
The CDAA's amicus brief, while not taking an explicit position on Field's discipline, warned that several of the bases for discipline involved unsettled law. "Attorneys should be disciplined for conduct that violates clearly established law, or conduct so outrageous that its illegality is obvious," the amicus stated, "but should not be disciplined for conduct where the law is unsettled."
More here.  Incidentally, the case against Prosecutor Fields involved clear Brady violations.  There is nothing novel about a prosecutor's duty to turn over exculpatory evidence.  Nevertheless, prosecutors sought to protect one of their own.

Student Speech

A student finally wins one.

Pervert Banned from Swimming Pool Wins Procedural Due Process Lawsuit

I can get as high-minded the next guy.  The Constitution applies equally to everyone.  Government cannot act arbitrarily.  [Insert some quotes from James Madison and Thomas Jefferson.]

But if you're a middle-aged dude creeping on children, then the state should be able to ban you from a swimming pool without a hearing or any articulable legal standards.  No one is sending this pervert to prison.  Instead, a bunch of people who didn't want a middle-aged dude staring at their kids got him banished - not from the polis, just from the pool.

In June 2007, Kennedy purchased a pool token from the CRC for $10.... “[A]ll” of the lifeguards “observed [Kennedy] . . . at the pool watchingthe kids[,]” and that they “all felt uncomfortable around him[.]” Couzins specifically described how lifeguard Jenny Sallee saw Kennedy “trying to . . . throw a ball with [a boy] or follow him into the woods[.]” “[M]ultiple parents at the pool” also approached Couzins to communicate “that they felt uncomfortable with [Kennedy’s] presence” at the pool.
The creepster was told to stay away from the pool.  He sued.  He won.  Kennedy v. City of Cincinnati (CA6) (here).

Apply City of Chicago v. Morales, 527 U.S. 41 (1999), the panel wrote:
Assuming that Kennedy’s version of the facts are true, defendants have barred Kennedy from entering any property deemed a part of the City of Cincinnati’s recreational system, which presumably encompasses more than its public pools, and certainly encompasses more than Mt. Washington pool. “The City’s action isreminiscent of a partial banishment, which serves to expel [Kennedy] from certain portions of City property[.]”  Doe v. City of Lafayette, 377 F.3d 757, 780 (7th Cir. 2004)(en banc) (Williams, J., dissenting) (citing Smith v. Doe, 538 U.S. 84, 98 (2003)) (discussing banishment as a measure historically recognized as punishment). Thus, itis clear that Kennedy had a liberty interest “to remain in a public place of his choice”and that defendants interfered with this interest. Morales, 527 U.S. at 54.
Read the rest of the opinion, which is a nice summary of procedural due process cases.

As with most things, there is irony in the concern over the creeper.  Folks, if anyone rapes your child, it's going to be you or someone you know.  The statistics bear that out every time.  There's a tenfold greater risk that an acquaintance, friend, or relative is going to perv on your kids.

If anything, the swimming pool weirdo poses no real danger precisely because he's so creepy.  A middle-aged white male wearing jorts at a swimming pool is going to have all eyes on him.

Thus, the parents wanted protection from psychic harm.  They were revolted to know that some dude was probably filling up his fantasy library with their children.  Hey, I get it.  I support the death penalty for child molesters.  Criminal lawyers who represent child molesters should note that the Excessive Fines provision of the Eighth Amendment does not apply to legal fees...So if you're going to take those cases, make them pay up.

That said, no child was in any concrete danger.  Indeed, those children are in much more danger every time they get dropped off at the sitter's - more so when the sitter is your loving Uncle Ed.

Life is danger.  Life is risk.  Be rational about what you fear.  Stranger Danger is overstated.  It's the people you (think you) know who are going to hurt you.

Section 1983 Class Action and Attorneys' Fees: Percentage-of-Fund or Lodestar?

Today the Second Circuit Court of Appeals handed down a lengthy attorneys'-fee opinion.  I can sum it up for you: District Courts have broad discretion in civil rights lawsuits.  This means the Court may award a legal fee based on the lodestar method or the percentage-of-fund standard.  McDaniel  v. County of Schenectady (CA2) (here).

Two interesting footnotes:  One, McDaniel  v. County of Schenectady involved a successful class action lawsuit challenging Schenectady County's policy of strip searching pre-trial detainees.  The Ninth Circuit recently upheld the practice of blank strip searches.  Bull v. San Francisco.  Probably the Supreme Court - if it hears the issue - will affirm the Ninth Circuit's ruling.  In McDaniel, the early bird definitely got the worm.

Two, a close friend successfully prosecuted a Section 1983 lawsuit that was filed on principle.  The woman whose rights had been violated did not want big money damages.  She merely wanted $1 and a declaration that her rights had been violated.  She got both.

Nevertheless, the District Court stuck it to my friend, who asked for a very humble legal fee - approximately $7,500 $5,330.  The legal fees were so "high" because the defendants refused to settle, and thus forced the case to trial.

The District Court told my friend, "You're entitled to a 33% contingency fee for the money damages award.  Therefore, you get 33 cents."

While recognizing that the District Court was giving my friend a "Fuck you," the Second Circuit affirmed in an unpublished opinion McCardle v. Haddad, 131 F.3d 43 (2d Cir. 1997), which is available here.  While Congress gives prevailing parties a right to legal fees, District Courts remain fiefdoms.

When a District Court has near-total discretion over the award of attorneys' fees, how can we say that we live in a rule of law, not of men?  Or do you think that thirty-three cents is what Congress intended when it enacted 42 U.S..C. 1988?  See S.Rep. No. 94-1011 (stating that Congress' intent is “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.”)  Does a legal fee award of thirty-three cents  “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)).

Peppercorms and Malicious Prosecution --

A criminal defendant who walks out of a criminal courtroom a free man without a conviction has every reason to believe that the result of his case was favorable. But for practitioners in the area of 42 U.S.C. Section 1983, the truth is more complex. A recent Second Circuit decision illustrates why.

Dale Roberts got in a jam with the local police. He was arrested by Bloomfield, Connecticut, police officers on "various criminal and motor vehicle charges." While he was in police custody, an officer allegedly teed off on him, causing him injury. The officer then charged the man with assault on a police officer. The cop then beefed up his police report to make sure that the prosecutor forged ahead on the assault charge, a case of malicious prosecution. At least this is how the complaint read.

Roberts was charged with, among other things, interference with a police officer. This is one of a series of offenses I call "fourth outfielder" crimes. When all else fails, an officer can charge this offense. The statute reads more or less as follows. A person is guilty of interfering when they obstruct, hinder or delay an officer in the performance of his duties. Read literally, anything other than "yes, sir" promotes delay.

The state nolle'd the assault on a police officer charge, and Mr. Roberts plead guilty to interfering with a police officer. The plaintiff's lawyer, John Williams of New haven, plead the case as follows: The ass ult charge was nolle'd because "it was apparent from the medical evidence that the plaintiff was innocent of the charge." A district court granted the defendant judgment on the pleadings, dismissing the malicious prosecution and unreasonable force claims.

The Second Circuit reversed in a decision authored by Guido Calabresi holding that on the status of the pleadings it was by no means certain that the record was barren on whether the nolle of the assault charge was related to the guilty plea to interfering. "Notwithstanding the temporal proximity of the two charges and the subsequent guilty plea to one and the nolle prosequi of the other entered on the same day, there is nothing in the record that proves that the assault charge was nolled as part of the bargain struck," the Circuit held. In a rare victory for plaintiffs arising under Iqbal, the court also credited the claim in the complaint that the medical evidence made it evident that the assault charge was bogus.

Also of note in this decision is the Court's addressing of an issue that has hitherto confused and divided the District Courts in Connecticut: Is a nolle a favorable termination? Some district court judges have flirted with the notion of a nolle-plus test, requiring not just a unilateral abandonment of prosecution by the state, but some other indicia that the prosecution was not supported by probable cause. The Circuit formally abandoned that theory.

"The majority of cases from Connecticut courts interpret Connecticut law so that a nolle prosequi satisfies the `favorable termination' element as long as the abandonment of the prosecution was no based on an arrangement with the defendant," the Court noted and followed this majority rule.

The moral of the story for practitioners: Any consideration given in exchange for a nolle is fatal. Don't stipulate to probable cause, offer an apology, agree to an evaluation, accept a diversionary program or donate a penny to the prosecutor's favorite charity. Think of it in terms of the detrimental reliance doctrine you learned in contracts class. A criminal defendant who altered his position in the world by a micron in exchange for a nolle forfeits the right to bring a malicious prosecution claim. And the same is true for those who purchase their nolle with consideration as insubstantial as the proverbial peppercorn.

Of course, all is not roses for the plaintiff in this case. The defendant made a run at Judgment on the Pleadings under FRCP 12(c). This is a hard case for a defendant to make, requiring a trial court to accept all well-plead facts as true. This will be a tough case to win at trial: having made this failed run at Judgment on the Pleadings all but guarantees that summary judgment will be denied.

See, Roberts v. Babkiewicz, 08-3858-cv.

DUI Checkpoints and the Fourth Amendment

The New York Times has a galling video report on the abuse of DUI checkpoints.  DUI checkpoints are not about catching drunk drivers.  Instead, the checkpoints are designed to steal cars from illegal immigrants.  Definitely check out this video.  Also, see this report.

In California, the police have a 30-day mandatory seizure of vehicles.  Yes, they'll keep your car for 30 days, even if you cure the defect that lead to the seizure.

For example: You were stopped driving on an expired license on 2/14/2010.  On 2/15/2010, you go to the DMV to renew your license.  You cannot get your vehicle for another 29 days, even though you now have a valid driver's license.

How can that be a reasonable seizure under the Fourth Amendment?  Assuming it's proper to seize your car when your license is expired (rather than allowing you to call a friend with a valid license to drive the car), how is the continual seizure of a vehicle constitutional?

Surely there's a pending Section 1983 lawsuit involving this issue.  Got any case cites?

The Cop Gets One Kill? (Law Review Article Idea)

At common law, every dog gets one bite.  That is, a dog owner won't be held liable the first time his dog bites someone.  After all, a dog owner can only be liable if he's on notice that his dog is a dangerous animal.  Absent the first bite, how was the owner to know?

Do police officers get one free killing before they can be held criminally liable for murder?  That's an interesting empirical question that the SF Weekly takes up in "Shoot First: Mehserle Likely Only Bay Area Cop Ever Charged With Murder for On-Duty Killing," which puts the BART shooting in context:

Just like Johannes Mehserle, we can't give you a straight answer -- but the former BART police officer appears to be the first Bay Area cop to ever find himself charged with murder following a job-related shooting.
Jim Chanin, a veteran Berkeley attorney who has prosecuted more than 20 police shooting incidents and is currently handling two in Oakland, couldn't recall a similar instance. The closest he could come was a policeman last year convicted of murder in Ohio -- but that man killed his pregnant girlfriend -- on his own time. Mike Rains, a Pleasant Hill defense attorney who has been representing police for more than 25 years, couldn't think of a case like this either.
Read the rest here.  Can any of you think of instances where police have been charged with murder?

I've worked on dozens of police misconduct cases, and never seen a case where a cop was criminally charged - even where the facts of the excessive-force case were gruesome, and even where the was beyond-a-reasonable-doubt evidence of guilt, and even when an innocent citizen died.

Whenever I read an especially violent excessive force Section 1983 opinion, I research the officers involved - to see whether they were criminally charged.  They are almost never charged with any crimes.

Any law students or law professors reading?  Because here's a paper idea for you: Pour over some excessive force opinions for "bad" facts.  Then follow-up with the named defendants.  Did the defendants who were held civilly liable face criminal sanctions?

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

Is Justice Scalia's so-called "new police professionalism" claim empirically false?  My suspicion is that is most certainly is.  You should write an article about it.  Prove me wrong; or, even better, prove Justice Scalia wrong.

Madness in Love (Bolmer v. Oliveira)

Nietzsche said that, "There is always some madness in love."  Unfortunately for Brett Bolmer, some psychologists took Nietzsche seriously.

In Bolmer v. Oliveira (CA2) (here) a man claimed that he had an affair with a mental-health worker.  After a cursory interview and zero investigation of Mr. Bolmer's claims, the doctors locked him up.  The loons running the nut house even had a name for Mr. Bolmer's condition - erotomania.  After diagnosing Bolmer with erotomania, the psychologists wondered why many of us do not take them seriously.  Actually, no, they locked the lovestruck soul up.

Bolmer's doctors/jailers, unfortunately, only took the survey course in Nietzsche.  Had they read on, they would have learned that while there is madness in love, "there is also always some reason in madness."  Bolmer had many good reasons for his madness:

the Greater Danbury Mental Health Authority .... provides out-patient services to patients in its care.  As part of the program, Bolmer was assigned a case manager, Lisa Kaminski.  Bolmer and Kaminski had known one another before ... the two began communicating frequently through text messages and phone calls.
According to Bolmer, he began a sexual relationship with Kaminski in February 2004. He claims that they would meet once or twice per week at Kaminski’s apartment. 
Just friends?  Maybe.  There are easy ways to investigate this mystery, yes?

Did the mental health experts ask obvious (to lawyers, anyway) questions like:
Does Ms. Kaminski had any identifying marks?  Tattoos?  Moles?  Scars?
What color underwear does she usually wear?  Thongs?  G-strings?  Granny panties? 
 What are her grooming habits?  Noble savage?  Fur bikini?  Landing strip?  Bald eagle?  Brazilian wax?
What does Ms. Kaminski's apartment look like?  Please describe the arrangement of her living room.  Where is her television located?  What color is her couch?  Curtains or blinds?
Please describe Ms. Kaminski's bedroom.  Give details.
Obvious stuff, right?  Yet the psychologists asked none of those obvious questions.  Instead, they said, "We don't believe you.  Since we don't believe you, you are mentally ill.  Erotomania.  Don't leave any stains on the rubber room."

There are many legal issues involved in Bolmer, and its worth a read.  (The "Wait a Second!" gang have a helpful post up.)  Bolmer is much more interesting to me as a critique of our mental-health system.  Here, the doctors and nurses did nothing to corroborate whether Bolmer was delusional.  This would have been easy.  Ask the guy some factual questions.  Make some falsifiable inquiries, such as "What color is Kaminski's couch?"  If the guy couldn't answer, then, yes, he's probably delusional.  But if he could have...

Instead, the doctors relied on their voo-doo.   Science demands that you investigate facts before making judgments.  To a logical - scientific - person, judgment always follows facts.  All too many psychologists lack a training in basic factual investigation.  They don't know how to discover the truth.

Psychologists are all too often no different from wizards and warlocks.  If they don't believe you, then you must be lying.  How can we know the shrinks are right?  To ask such questions of mystics is likely itself evidence of your own mental illness.  No doubt the Alchemist's Manual/DSM-V has an entry for "Pathologies associated with excessive inquisitiveness and demands for evidence."

Not just psychiatry - but much of modern medicine - is not science, but is instead morality.  If a guy in a lab coat feels doesn't like what you're telling him, then you're clearly nuts.  If their moral judgments were limited to mere condemnation, who cares?  The problem is that the guys in the white coats have the power to luck us up.

Profile of an Excessive Force Expert

The SF Weekly has this profile of a leading defense expert on the use of force in police misconduct cases.

Legal Weapon
Don Cameron trains cops in how to use force, and then defends them in court when they're accused of going too far.

Sheriff Not Liable for Failing to Train Deputy Not to Rape

Parrish v. Ball (CA8) (here):

Civil case - civil rights. While it may have been unwise to fail to train deputies that sexually assaulting detainees was wrong, it is not so obvious that failure to do would actually result in an officer assaulting a female detainee, and the County is not liable for its alleged failure to train the officer; sheriff was not liable in his individual supervisory capacity for his own failure to train and supervise the deputy as the sheriff had no reason to know that failure to train the deputy not to assault detainees would cause him to engage in that behavior.

Strip Search Class Action Dismissed (Bull v. San Francisco)

Bull v. San Francisco (CA9) (here) is a huge case raising an interesting issue.  Can a jail have a blanket strip-search policy?  In Bull, the plaintiffs were arrested for non-violent and non-drug offenses.  The lead plaintiff was arrested during a political protest.  Given that stripping a person naked is an affront on a person's dignity, should a jailer be required to search only based on individualized suspicion?

Today the Ninth Circuit, in an en banc opinion, green-lighted blanket strip searches:

To address a serious problem of contraband smuggling in the jail system, Sheriff Michael Hennessey instituted a policy requiring the strip search of all arrestees who were to be introduced into San Francisco’s general jail population for custodial housing. In a class action lawsuit challenging this policy on its face, a district court held that it violated the Fourth Amendment rights of the persons searched, and denied Sheriff Hennessey qualified immunity. Hennessey, the San Francisco Sheriff’s Department, and the City and County of San Francisco brought this interlocutory appeal, challenging the denial of qualified immunity. A divided panel of this court affirmed the district court’s denial, Bull v. City & County of San Francisco, 539 F.3d 1193 (9th Cir. 2008), and we granted rehearing en banc. Because we conclude that San Francisco’s policy did not violate plaintiffs’ constitutional rights, we reverse the district court’s denial of Sheriff Hennessey’s motion for summary judgment based on qualified immunity, and in doing so necessarily reverse the district court’s grant of plaintiffs’ motion for partial summary judgment as to Fourth Amendment liability.

Pottawattamie County v. McGhee: Postscript

Norm Pattis has an important postscript to Pottawattamie County v. McGhee:

Terry Harrington is now a free man. And he is probably a millionaire. He owes that to a woman named Anne Danaher. According to Harrington's legal advisers, however, Ms. Danaher shouldn't be paid a dime. Shame on the legal advisers.
Read the rest here.

Section 1983 and the Death Penalty

We - as a collective "public" and as individuals - kill people.   We go to war.  We make economic decisions that lead to death each day.  Just read some Peter Singer and tell me what your comebacks are.  How many lives could you have saved had you not sent your kid to prep school?  My monthly coffee budget could probably save a few lives each day.  I still pay $3.50 for my Philz Coffee.

Each of us, every day, makes decisions that kill others.  But, man, bring up the death penalty, and watch the righteous feathers flare!  We all suddenly become peacocks for morality.  How dare the State kill in our name!?  Dudes, once you pull the kid out of Andover and into public school and send the rest over to starving children, then we can talk about your moral certainty about the need to save criminals' lives.

Anyhow, in America, a criminal gets a trial.  This is so even when there is 100% proof of guilt.  In Connecticut, for example, two guys broke into a house; tied up some children; raped them; raped a wife; beat a husband nearly to death; burned down the house.  Guilt is 100% certain.

Those guys will still get trials.  And direct appeals to the Connecticut Court of Appeals and Connecticut Supreme Court.  Then those guys - who are 100% guilty - will receive several levels of review in federal court.  Millions of bucks we'll spend to add a few years to their lives.  How many starving children who don't rape and murder could we have saved with that money?

Another way to stop executions is through Section 1983 actions.  In Nooner v. Norris (CA8) (here), some guy who is totally guilty of heinous crimes and who in a State of Nature would already be dead, appeals to civilized society to save him.  Sociopaths always appeal to pity, and the most uncivil always demand the most civil of all legal processes. 

Well, the guy lost. Here's the Clerk's excellent summary:
Death Penalty - civil rights.  Grant of summary judgment that legal injection protocol does not subject inmates to a substantial risk of serious harm is affirmed. Arkansas protocol contains sufficient safeguards to ensure inmate is fully unconscious before pancuronium bromide and potassium chloride are administered. and any risk that the procedure will not work as designated is merely a risk of accident.
Read the whole thing here.  And chill out about the death penalty.

Of course, it's much easier to become outraged over the death penalty, since it allows us to escape blame for our own moral choices.  Hey, I'll spend a few grand a month on luxury sensual indulgences while people are starving.  What's that say about me?  Tough question.  Too tough.  How dare the State kill in my name?!

I've created a narcissistic monument to myself. I call this a child, and spend money on him.  (Well, if I have one, I will.)  I'll send the kid Andover, and then Dartmouth.  How many millions will that cost in 2030?  Well, why shouldn't I send the kid to a decent public school, and send some portion of those millions to starving kids?  Morally, that's the right decision.  Right?  Tough question.  Too tough.  How dare the State kill in my name?!

Most morality exists to distract ourselves from ourselves.  It's so much easier to judge other people than to say: How am I living my life?  What are my moral choices?  So we scream bout the State killing people in our names, never looking inward, asking: Am I killing people in my own name?  

Excessive Force Video and Lying Cops

Good post over at Simple Justice.

False Arrest and Prosecutorial Immunity

Waggy v. Spokane County, Washington (CA9) (here):

Plaintiff-Appellant Robert Mark Waggy (“Waggy”), a convicted sex offender, was arrested on harassment charges while serving part of his original sentence on community placement in Spokane, Washington. The day after he posted bond and was released, he was again arrested pursuant to a bench warrant issued due to his failure to progress in his court-imposed sexual deviancy treatment program. Based on this latter arrest for violation of his required supervision, he brought suit under 42 U.S.C. § 1983, claiming that the Spokane County prosecuting attorneys and the county violated his constitutional right to be free from arrest without probable cause. The district judge awarded absolute immunity to the deputy prosecuting attorney and found that the plaintiff had failed to allege sufficient facts to warrant trial against the county. We affirm

Los Angeles County Gets One Free Day of Your Life

Mortimer v. Bacha (CA9) (here):

Plaintiffs brought this action under 42 U.S.C. § 1983 against the Los Angeles County Sheriff, Leroy Baca (“Baca”), in his official capacity. Plaintiffs allege that their civil rights were violated when they were kept in custody by the Los Angeles County Sheriff’s Department (“LASD”) for periods of time ranging from twenty-six to twenty-nine hours after the court had authorized their releases, and that their over-detentions were the result of a policy of deliberate indifference to their constitutional rights. We determine that our prior opinion in this litigation, Berry v. Baca, 379 F.3d 764 (9th Cir. 2004), did not preclude the district court from considering defendant’s motion for summary judgment on its merits, and that the court properly granted defendant’s motion for summary judgment because the proffered evidence would not support a finding of deliberate indifference.

Six-Figure Attorneys' Fees Award Upheld in Nominal Damages Case

Want to keep your fee of $136,687.35 in a case where you only earned $1 in damages for your client?  Then read Mahac-Watkins v. Larry Depee (CA9) (here).

Wow.  I am definitely pro-Section 1983; and definitely pro-getting paid!  How does one rack up over a hundred grand in legal fees in a wrongful death Section 1983 case?  The lawyer initially asked for nearly $700,000.


Title 42 U.S.C. 1988 - which authorizes legal fees in Section 1983 cases - exists so that competent lawyers will take on Section 1983 cases.  Victims of police misconduct are usually poor.  Members of the privileged class (like it or not, us), unfortunately, don't get beaten up or shot.  We can afford lawyers; they can't.  Thus, attorneys' fees are extremely important in civil rights cases.

Still...Are lawyers really going to stop taking Section 1983 cases if they earn less than $136,687.35?

In any event, read the case even if you don't care about legal fees.  The facts are appalling - though pretty typical.

A CHP officer shot a schizophrenic.  The CHP officer lied about why he shot the man.  If the officer's story was believed (the forensic evidence directly contradicted it), then the schizophrenic was shot after trying to hit the officer with a flash light.  To Officer Larry Depee (and CHP, which cleared him), shooting a man dead is a proportional response to a flashlight swing:

Q. Why did you believe, maybe it’s obvious, but tell the jury why did you believe he was trying to kill you?
A. That flashlight is no doubt, to me that’s a deadly weapon when you[‘re] swinging that flashlight somebody, to me it’s painfully obvious he was trying to kill me.
That's right.  Best case: Cops will kill you if you wield the incredibly dangerous MagLite.

CHP stuck behind their man, and cleared him of all wrongdoing.

Query: Does this mean that CHP officers use deadly force by swinging a flash light?  If not, why not?  After all, CHP concluded that shooting a flashlight-wielding man was appropriate.  This conclusion presupposes that a flashlight is extremely dangerous.

In any future excessive force cases involving flashlights, be sure to remind CHP about this case.

"2d Circuit rejects constitutional challenge to New York's felon disenfranchisement laws"

The legal blog," Wait a Second!" has this interesting post on a challenge to New York's felon disenfranchisement law.

Corrupt Cops and Prosecutors Lose "Reverse Section 1983" Lawsuit Against John Grisham

Yes, I realize there is no such thing as a reverse Section 1983 lawsuit.  Still, it is pretty amusing that the police and prosecutors who had an innocent man sent to prison for over a decade sue an author for intentional infliction of emotional distress.  John Grisham hurt your feelings?  Sue the bastard!

Some dude went to prison for a decade, and instead of agonizing over their corruption and incompetence, they niggled over a narcissistic injury.  It's good to see that the bad guys lost again:

In 1988, Ronald Williamson and Dennis Fritz were wrongly convicted of the rape and murder of Debra Sue Carter. Both men were later exonerated after spending over a decade in jail. Their painful story caught the attention of renowned legal-fiction author John Grisham, who wrote a book about Williamson appropriately titled The Innocent Man. Fritz also wrote a book, Journey Toward Justice, detailing the horror of his years of unjust confinement.
Each of the plaintiffs in this case—Oklahoma District Attorney William Peterson; former Shawnee police officer Gary Rogers; and former Oklahoma state criminologist Melvin Hett—played a role in the investigation or prosecution and conviction of Williamson and Fritz. Neither The Innocent Man nor Journey Toward Justice paints the plaintiffs in a positive light.
Following the release of these books, plaintiffs filed suit in Oklahoma district court seeking relief for defamation, false light invasion of privacy, intentional infliction of emotional distress, and civil conspiracy. They named Grisham, Fritz, anti-death penalty advocate Barry Scheck, and author Robert Mayer—along with their respective publishers—as defendants. The district court dismissed the suit for failure to state a claim upon which relief can be granted. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
The full opinion is here.