Previous month:
March 2007
Next month:
May 2007

Special Rules for Takings Claims?

Although the general rule in cases arising under 42 U.S.C. Section 1983 is that a plaintiff need not exhaust administrative remedies before turning to the Courts for relief, there is an exception in the case of takings claims. The exception makes little sense.

Patsy v. Board of Regents, 457 U.S. 496 (1982) held that exhaustion is not required in 1983 claims. Yet three years after the Patsy holding, the Supreme Court decided Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985). Williamson requires a plaintiff to obtain a final decision about the property in question from the government agency implementing the relevant regulations. A plaintiff must also pursue "reasonable, certain. and adequate" procedures for obtaining just compensation. Id., at 194. In the Second Circuit, that means a plaintiff may well be required to seek a state court remedy even where the remedy remains "unsure and developed." Villager Pond, Inc. v. Darien, 56 F.3d 375, 380 (2d Cir. 1995).

The Williamson court notes that it is not requiring exhaustion at all. It merely holds that a claim is not ripe until these preliminary steps are taken.

A recent Connecticut case illustrates how odd the ripeness doctrine looks in a 1983 claim alleging an unlawful taking. A plaintiff alleged that she was promised credit toward a degree if she did web design for a professor. The student did the work, but the credit wasn't given. She sued, alleging, among other things, a taking. The District Court granted summary judgment after denying a motion to dismiss. The court held that because the plaintiff can state a claim in state court for a taking under the state constitution, the matter was not ripe for federal adjudication. Leone v. Whitford, et al, 3:05cv823 (JCH).

This seems like an unusual application of Williamson. No regulatory provision seems to govern a taking of this sort. Indeed, the taking is akin to common-law theft of services. And in the absence of any claim of such a regulatory scheme, it seems ad hoc to require plaintiffs to first sue in state court. This effectively closes the doors of the federal court house to plaintiffs who lose in a state court action. Should the plaintiff lose in state court her claim will be res judicata in the federal court.

The Leone case is one of mine. I would appreciate comments from 1983 practitioners on law review articles and similar cases as I evaluate the merits of an appeal.

Killing The Messenger?

This week's major news story was the murder of 32 people at Virgnia Tech. That would be major news any week of any year. It was horrific, and terrifying. But the week's cause celebre was the backlash over the insensitivity of the major media in broadcasting material sent to NBC by Cho Seung Hui, the killer. The publication of a so-called manifesto and video images mailed by Seung Hui sparked uror.               

I for one am glad the images were published. I wondered in the wake of the shooting whether this were really the work of a lone deranged gunman, or whether it was the work of a terrorist. Sure, it sounds like a distinction without difference. Seung Hui inspired terror, and he did so for reasons all his own. He was, in a manner of speaking, a terrorist killing to call attention to private objectives -- a psychopathic jihad. But it mattered to me whether al Qaeda had discovered low-rent tactics.

Seeing Seung Hui assured me that the killings were the work of a lone student consumed by mental health problems. Hearing his voice made clear this blood-stained swath was the work of a disturbed soul. He looked like the kid next door.

Why the''anger at the media for sharing the information? We didn't knuckle under to the demands of a terrorist. The killer is dead and demands nothing. Sure, there are others like him out there. And there may be copy cats craving posthumous fame. But this is not an invitation to kill.

I was amazed to learn that some friends and family of victims refused to appear on television shows because Seung Hui's tape was rolled. That seems odd. Don't they want to understand the man who killed?

Is it that we would rather feel good than face facts? Without the tape, the airwaves would have been innundated with round after round of grieving folks, friends of the victims, family of the victims, friends of the friends of the family members, ad infinitum. I suppose all this is necessary as we process our collective grief, but it is not news.

Somehow the media has become obsessed with its own image. It is not enough to report facts. Now the media must manage the reaction to the facts lest ratings suffer. And, as in the case of Imus, when not reporting on facts, only pleasant, middle of the road sorts of opinions are to be tolerated. Imus was lynched over locker room chatter.

So instead of a meaningful conversation about race and sexism, we ostrasize a voice and congratulate ourselves on our sensitivity. And instead of trying to understand a mass murderer, we protest that we'd rather not know the killer in our midst. All we like sheep lead ourselves astray.

Would it be better in the Seung Hui case to leave the images to law enforcement? This father does not know best. I am unprepared to say to the FBI and various police departments: Go, do your job. You know best. Protect us but keep us from the knowledge of good and evil. These same folks have a tendency, when so emboldened, to view such things as warrants as mere options.

We're poorly served by a media afraid of its own shadow. If something is true and newsworthy, it should be reported. Opinion pieces should provoke. The Fourth Estate has a privileged place in our life because it is where debate and alternative points of view can challenge complacency and rein in those in power.

But now the media seems to have become aware of itself as a power. Its convergence towards a bland center leaves much undone and much unsaid.

Seung Hui was news this week. That there are others like him in our world is all but certain. Why do we run from the truth and seek merely to feel good? Is too much truth too frightening?

Day Two At Georgetown

Today was an eye-opener at the 1983 seminar at the Georgetown Law Center. Two topics blew me away.

James Harrington of the Texas Civil Rights Center gave a fantastic talk on the use of the Americans with Disabilities Act in prison litigation. I've always regarded Section 1983 as the queen of civil rights litigation. Litigating constitutional isues on behalf of little people takes a close second to representing those accused of crimes in terms of passionate engagement with the law.

But Eighth Amendment standards are hard and the developing law of qualified immunity makes 1983 litigation for prisoners a dying art. Few claims can get to a jury. I was dispirited.

Harrington has persuaded me that the ADA is a viable means of addressing prison issues. Immunity issues, both in terms of absolute and qualified immunity, are greatly reduced. And the law carries with it the same dynamic as Title VII cases: a plaintiff must show that a reasonable accommodation is available; the burden then shifts to a defendant to show why the accommodation is too costly to be reasonable. I suspect these cases favor the strong cross examiner, just as do employment cases. I am hoping to travel to Texas to do a week's volunteer work at the Civil Rights Center so that I can learn more about how to use the ADA.

Also of interest was a topic addressing suits against social workers and police officers for warrantless and unjusitified removal of children from their homes. David Beauvais, a solo in Oakland, California, gave an overview of cases that compelled me to rethink my reluctance to bring such cases. It appears that most of the law in this area was developed in the Ninth Circuit, so arguably it will be harder to advance beyond qualified immunity in the near term, but I had not seen remedies that apparently exist.

I should not neglect Karen Blum's presentation on 1983 basics. She teaches law at Suffolk University in Boston. Together with Michael Avery and David Rudovsky, she writes Police Misconduct, Law and Litigation, an always reliable practice aid.

Tomorrow I hear Erwin Chemerinsky of the Duke Law School. It will be the first time I will have heard him. It's rare I sit in a room and feel humbled into something approaching silence. I suspect tomorrow I will not utter a peep. This is a great conference, and if you are reading this blog, you should plan to attend. These folks are tops in 1983 litigation.

Wassup With Jones Day?

I am a small town lawyer. So when I visit big cities I keep an eye out to see how the other half lives. Today I stumbled on the Washington office of Jones Day. Holy cow.

I was returning from the Capitol, where I took pictures of the building and some of the ever-present tulips. I have serious tulip envy. We can't grown them at our place because we are overrun with deer. Tulip bulbs are like caviar to them.

The buildings in Washington impress me. All these granite behemoths with broad facades sidling up to the curbs. "We're a new nation, but we're aiming to stay," they seem to shout. I read the names on the buildings. I am all tourist, excited when I recognize something I've heard about before. Sort of like seeing a celebrity at a restaurant.

"Jones Day," one of the imposing structures announces by way of some street-level sign. My first thought is that it must be the name of a building contractor doing some work on the facade. But then I see the name above the doorway. "Jones Day" this massive granite toaster proclaims. With a name like that, it must be a law firm. I try to peek into windows as I go by. Few signs of life. But furtive smokers are gathered out back. People work there.

I check Google back at my hotel. A firm with 2,200 lawyers and 30 offices around the world. The firm's web page gives a choice of six languages. The firm represents more than half of the Fortune 500 companies, it boasts. I am intimidated. Imagine filing suit against someone and having that block of granite thrown at you.

I am not sure whether to admire the audacity, however. Imagine buying a former government building with a view of the Capitol. That is a firm with a blue chip on its shoulder. It probably has a committee to manage issues relating to image and decorum.

Anyone know who owned the building before the blue bloods invaded? And anyone have any idea what it is like to work in such a colossus?

Greetings From Georgetown

Greetings from the Georgetown University Law Center, where I am doing the unthinkable, and attending a seminar on 1983 litigation. For the first twelve years of my career as a lawyer, I was an employee, and then partner, of John Williams, one of the deans of 1983 litigation nationwide. No need for CLE when I just had to walk down the hall to get a tutorial. But since forming my own firm, I fear I am going rusty. I admire people who read widely in law, watching doctrine develope from circuit to cicuit. It is all I can do to keep track of my cases.

Today's seminar was on police misconduct. It appears as though about 70 percent of the class was defense counsel, which surprised me. Somehow I expected more fellow-travelers -- exhausted plaintiff's lawyers looking for inspiration.

David Rudovsky from the University of Pennsylvania gave an excellent presentation on qualified immunity. It disappointed in only one regard. I am still trying to understand the 2002 decision by the U.S. Supreme Court in Saucier v. Katz. That case held that qualified immunity could be granted in a case even though a finding had been made that a police officer used unreasonable force. I simply cannot understand how a fact finder can conclude that it was objectively unreasonable to use force, but that it was objectively reasonable for the officer to believe conduct that is unreasonable conduct was all right.

Rudovsky, who wrote an amicus brief in the case, appears not to understand it, either. The gist of his presentation suggested that the courts finesse the issue. When faced with a qualified immunity issue in a use of force case, the courts will simply address the underlying use of force question. I am not satisfied with that as an answer, but I don't have a better one.

Andrew Clarke of Memphis, Tennessee, also spoke. I'd not heard of him before the conference. He's worth watching. He briefed the case of Scott v. Harris, argued earlier this term and soon to be decided by the Supreme Court. The case may shed new light on qualified immunity in the context of a high-speed chase.

Police force trainer Jack Ryan also spoke. He likes Tasers in general. An interesting statistic. One insurer for a major police force paid out $8 million in claims on unreasonable force claims in a given year. During that same year, the insurer paid out approximately $125 million in workers' compensation claims for injured police officers. Most of the injuiries occurred in making arrests. Ryan hopes use of Tasers will yield less resistance to officers as word gets out that getting zapped hurts.

The focus turns tomorrow from police misconduct to general 1983 claims. I recommend the seminar to practitioners. It is a good thing from time to time to look beyond tomorrow's skirmishes and focus pureply on legal doctrine.

Getting Right To The Point In Skakel

The parties wasted little time in getting to the central issue in the Michael Skakel new trial petition: Did defense counsel Mickey Sherman have sufficient information to explore a third-party culpability defense before the trial began? The state says yes, the defendant contends not.

Logic suggests that Skakel is a potential winner in either case. If Sherman had the information and did not use it, then Skakel loses the new trial petition, but is sitting pretty for a habeas corpus claim contending Sherman was ineffective. If the Sherman did not have the information, then the new trial claim is bolstered.

Of course, that assumes the third-party culpability evidence is both admissible and material. Those issues have yet to be decided. News story


The autopsy results are clear. The cause of death is a ruptured liver incident to blunt trauma. There are no other signs of illness or injury. The insult to the liver was so great, death would have occurred within an hour. So now the question is what, or who, dealt the death-dealing blow?

I am the only suspect. I alone cared for the decedent. While my wife had access to him, too, there is no evidence she went near him in the two days before his death. Indeed, she rarely cared for him. Yet I know I did not strike, kick or otherwise use force against him. So why do I feel as though I am a killer?

Earlier today I reported finding our Emu dead in one of our chicken coops. I was so upset about it I took him to our veterinarian. I wanted to know what went wrong. We have perhaps forty animals wandering our land. If there is a problem, I wanted to know about it.

The vet's report startled me. My first reaction was shock, followed quickly by anger. Our house is out of the way. We don't really have neighbors. I alone am suspect. So throughout the day I have replayed each move I made with the bird over the past two days. Did I hold him too tightly? Did I move him aside with too much force when I filled a watering can? Did I? Did I?

Effects have causes, and the manner of death in this instance is an open question. It hardly seems accidental. The bird is small, the size of a small turkey. How could he have run into a wall with force enough to cause such trauma? He can't fly or jump, so there is no question about his falling. Did he flee from a rat? Rodents are a common scourge where grain is kept.

I have no answer, yet sorrow and the need for something like closure make me want to confess. Events only two days old seem hazy, and capable of reconstruction.

It's been a good day for reflection. I wonder how many folks found near a crime react similarly. How many confessions are spawned by some need deeper and different than the truth? Talking to our vet makes me feel at once ashamed and somehow guilty.

I didn't kill the Emu, but I was responsible for his care. I feel therefore responsible for his death. Were he a human, I'd be a target, questioned by lawmen bent on getting answers to this simple death.

Given how I feel today, I would certainly hire a lawyer. I don't trust myself, and I wonder what an investigator would make of my tortured ruminations. I see now why innocent persons sometimes confess.

The Value Of Raising Animals

I raise small animals as a hobby. We have a flock of Rhode Island Reds and an assortment of guinea fowl, which my wife enjoys more than I can comprehend. Raising them isn't much work. And it reminds daily of the importance of commitment. Simple things matter: Food, water and a clean place to sleep. I can provide these things. It feels good to do so.

A month or so ago, a farm raising animals to work with troubled kids had a baby Emu it couldn't raise. We volunteered to take him in. We gave him the small coop, the one we use for resuce birds and new chicks we incubate from the eggs of our own flocks. We put a chicken in with Moo Moo to keep him company.

Last night, Moo Moo died. He was in no distress the night before. There are no signs of violence to his body. He was properly fed and watered. And, although it's mid-April, it's still unseasonably cold in New England, so we still have a heat lamp on.

It is a sad day. Oh, birds don't return the same affection and loyalty as do dogs. Were one of my dogs to die, I would hardly find the means to simply go to work as if it were another workaday day. But I spent a lot of time with this bird, hoping to keep him as tame as his species permitted. When full grown, he would have been more than six feet tall, and he might weigh as much as 150 pounds. He followed me around as we worked to prepare the gardens this frigid farce of a spring.

So he is dead. And I am sad. And I am ready for another. Raising animals teaches much, including a certainly equanimity in the face of inevitable loss.  How does an agnostic give thanks for time spent with an animal?

VA Tech And Terror

Today's shooting at Virginia Tech left more than 30 people dead, and at least a score more wounded. Although details are only now emerging, there is little doubt that the next week or so will see a mass of expulsions from middle schools and high schools nationwide.

A non sequitur? Yes, as a matter of logic. But not as a matter of experience.

It happens like clockwork in Connecticut. Within 48 hours of a report of school violence on national news, my office gets a couple of calls from parents whose children have been expelled for saying they'd like to beat the bejesus out of a classmate, or punching someone at recess.

A random act of violence yield an almost Pavlovian response among school administrators suffer from the Columbine Effect. They fall back on "zero tolerance" policies and send students home for mere fighting words. Those expelled, and their lawyers, will face hostile decisionmakers determined not to let deadly violence emerge at their facility.

One news account says that the FBI reports there is no evidence that this was an act of terror. I am not sure what this means, because every parent with a child at school cannot help but to feel terrified at the sight of photos taken of wounded students. What heart does not break at the thought of receiving a call about a murdered child? This is terror, whether the violence was meted out for political purposes or not.

I worry that with each round of violence, the scope of what we accept as a reasonable means of assuring our safety expands, leaving less and less room for civil liberties. When I came up in Chicago and Detroit we fought in the schoolyards more than we should of. I don't recall ever being expelled over a bloody nose or a broken pair of glasses.

But times have changed. We now see how easy it is to kill and imagine killers everywhere. We clamp down on the different to avoid danger. New calls for gun control will emerge. We will grasp at a thousand straws hoping to feel safe. But we will never be entirely safe from random acts of savagery.