$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.

Incredible.

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.