Fourth Amendment Blog on Strip Searches

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

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

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

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

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

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

Third Circuit Uphold Strip Search Policy

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

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

PLRA Legal Fees

Brother, can you spare a dollar-fifty?

Mootness and Prevailing Parties

The Legal Intelligencer has this report:

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

Kids-For-Cash Judges Denied Absolute Judicial Immunity

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

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

Bizzaro World or Consolation Prize?

You decide.

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

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

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

When Will a Church Be Held Liable for Employment Discrimination?

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

Those Sworn to Enforce the Law May Ignore It

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

Multi-Issue Strip Search Case

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

Religious Freedom Restoration Act (RFRA) and Marijuana Use

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

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

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

The Supreme Court will decide.

Use of Taser Unconstitutional, Though Not Clearly So in 2005

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

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

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

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

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

No Due Process Right to Adequate Police Investigation

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

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

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

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

Economic Freedom and Equal Protection

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

Burn, Baby, Burn

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

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

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

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

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

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

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

Loud Music and Arguable Probable Cause

What's it take to get arrested these days?

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

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

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

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

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

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

In Durastanti, here is what the video revealed:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ham Sandwich Can Sue Prosecutor

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

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

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

Section 1983 and False Child Molestation Charges

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

And I'm only on page 5!  Read it.

The Nuances of Prison Litigation Reform Act Exhaustion

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

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

No excuse:

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

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

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

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

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

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

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

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

Federal Jurisdiction and Title VII Fee Awards

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

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

Appealability of Qualified Immunity Denial

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

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

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

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

$1791 for 1791

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

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

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

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

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

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

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

In any event, a very fun hypothetical.

(Hat tip: Allen Chen.)

Crack Some Skulls, Why Don't Ya?!

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

Deliberate Indifference/Failure to Protect Woman From Rape

Plaintiff able to state a Section 1983 claim where:

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

Second Amendment and Due Process

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

Thank You

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Thanks again.

Dirty Politics, Res Judicata, and Pleading

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

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

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

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

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


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

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

Police Brutality and Cover-Up

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

In the Dog House - Literally

Is it cruel to laugh at this?

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