Multi-Issue Strip Search Case

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

Religious Freedom Restoration Act (RFRA) and Marijuana Use

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

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

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

The Supreme Court will decide.

Use of Taser Unconstitutional, Though Not Clearly So in 2005

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

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

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

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

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

No Due Process Right to Adequate Police Investigation

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

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

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

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

Economic Freedom and Equal Protection

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

Burn, Baby, Burn

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

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

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

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

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

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

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

Loud Music and Arguable Probable Cause

What's it take to get arrested these days?

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

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

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

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

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

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

In Durastanti, here is what the video revealed:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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