Discussing news and court opinions, crime, federalism, and Section 1983.

October 20, 2005

Jury Decisionmaking in Section 1983/Prison Rape Case


Via Talkleft comes this interesting article about an ex-prisoner's lawsuit against prison officials for failing to protect him from prison rape.  (Prison guards are required to protect prisoners from prison rape, though suing them when they fail to is a tough case to maintain.) Jurors sided with the guards, and provided these insights into their decisionmaking:

*  Some jurors believed that Johnson was sexually abused but didn't believe that the guards knew about it. Actually, Johnson told the guards he was being raped, but since he was homosexual and often "flirted" with other prisoners and guards, they considered it a lovers quarrel.  A common assumption in prison rape cases is that a homosexual can't be raped.  I hope trail blazing lawyers start suing under Equal Protection Clause, arguing that the bias and resultant inaction is itself actionable.
*  One juror "felt like every one of [the guards] followed their policy," adding that prison officials are "doing the best that they can."  The Nuremberg defense prevails.
*  Another juror voted for the guards even while noting that Johnson was likely raped.  The juror could not vote for Johnson because he didn't present any scientific evidence to support his claim.  This is a valuable lesson civil rights lawyers can learn from prosecutors. Many jurors are requiring that in criminal cases where physical evidence is (or should be) available, that prosecutors and investigators obtain it.  It's known as the CSI Effect. People - and jurors are people, after all - find it bizarre that someone so willing to sue for rape (and thus re-live the torment) would not submit to a rape exam.  Why would you not re-live the experience in order to obtain valuable evidence while being willing to re-live the experience to obtain money damages?  There are solid answers to this question, but I'm trying to think of what questions other people might ask.

*  A few other jurors, after Johnson was caught in a few lies, didn't take any part of his story seriously.  It's textbook in any rape case where there's a reasonable consent defense that the one claiming rape not lie.  Here, Johnson wasn't suing his attackers, he was suing prison guards.  If Johnson lied to the jury, might he not also have lied to the prison guards?  If so, then how can the prison guards be held liable for essentially not believing him?

Anyhow, some are proclaiming that the defense verdict results from biases against African Americans or homosexuals.  While I think the guards' inaction was due to an irrational belief that homosexuals can't be raped (and they should be held liable for this denial of equal protection),  I think the jury decision was reasonable.  This was a case where someone who claimed to be raped never presented any physical evidence, and got caught up in a couple of misrepresentations.  In a case where credibility is everything, jurors are looking for reasons to believe the cops over the criminals.

October 20, 2005 in 42 U.S.C. 1983 (Theory, Tips, Resources) | Permalink | Comments (0) | TrackBack

September 09, 2005

Section 1983 Resources at C&F


I placed numerous 1983-related posts into categories.  Happy reading:

Section 1983 (Elements)
Section 1983 (Immunities)
Section 1983 (Procedure)
Section 1983 (Theory, Tips, Resources)


September 9, 2005 in 42 U.S.C. 1983 (Theory, Tips, Resources) | Permalink | Comments (1) | TrackBack

September 01, 2005

Section 1983 in the Circuits


This is a totally unscientific list (and I'm providing minimal citations, which means, be skeptical), so I'd love to hear your comments.  But after having read at least a thousand Section 1983 cases (and having worked on quite a few), I've formed a few opinions.  I would broadly describe the federal circuits* as such:

1st - relatively pro-government, but not in an activist way.  Some pretty interesting cases, since there are a couple of prominent civil rights firms in this circuit.

2d - tends to be pro-individual, but not in an activist way.  Its civil rights docket is not nearly as exciting as its criminal docket (lots of interesting RICO and other complex cases against mobsters).

3rd - similar to 1st Cir., but it's a pretty boring circuit for civil rights cases.

4th - activistly pro-government.  Sign should read: "You're entering the Fourth Circuit.  Please do not bring in any foreign plants, or American civil rights."  Luttig isn't as bad as most people would assume, but watch out for Wilkinson.

5th - activistly pro-government, but not as activist as the 4th Cir. 

6th - pro-individual, somewhere between the 9th and 2d Cirs.  It usually has some interesting civil rights cases, since there are a couple of excellent civil rights firms in Ohio.

7th - pro-government, but not as pro-government as the 11th Cir.  A lot of prisoner cases - perhaps the most of any circuit.  Judge Rovner seems to know her caselaw best of all judges in this circuit, but for some reason, she gets no props.  The juvenile curfew case illustrates her mad skills.

8th- neither pro-government nor pro-invidual, i.e., most often applies "the law" as it should be applied without regard to who wins.  If this were a spectrum, the 8th Cir. would be in the middle.  Judge Morris Arnold is especially knowledable judge, as is Judge Bye.  (RIP Judge Richard S. Arnold, of course).  Second-most "exciting" civil rights docket.  (Why is that?)

9th - activistly pro-individual, e.g., Devenpeck (rev'd by SCt).  (I generally love their outcomes, but as a judicial conservative, I don't often approve of the 9th's methodology.)  Oddly, even though a "liberal" circuit, it is the best forum for property rights litigants.  See, e.g., Lingle v. Chevron (rev'd by SCt).  Kozinski's are the funnest to read, since he has an anti-government streak, and it shows.  His Ruby Ridge case (whether Supremacy Clause bars prosecution of federal actor under state law) is my all-time favorite opinion.

10th - similar to 3d Cir.  Blase.

11th - pro-government, but less so than the 4th and 5th Cirs., and not pro-government in an activist way.  Has some outliers, e.g., the first Evans panel (unanimous reversal en banc) and Felzer (rev'd SCt).  Pryor is a righteous dude on 1983 cases (e.g., the prison AIDS case), despite liberal screaming about his nomination.  It has the most "exciting" civil rights docket, and I check the court's website every lunch hour.

I'd love to have your thoughts.  One rule: No smart-ass comments unless you can actually cite cases.  I'll argue or retreat from my position as necessary, but I'm not going to argue with someone who lacks a demonstrable fluency in 1983 law.

*By quirk, I rarely read D.C. Cir. cases, and thus haven't form an opinion.  (Though I did read the Hedgepath: anyone who disagrees with the legal reasoning - as opposed to wishing the outcome were different - doesn't know 1983 from a frency fry.)

September 1, 2005 in 42 U.S.C. 1983 (Theory, Tips, Resources) | Permalink | Comments (2) | TrackBack

August 31, 2005

Behrens v. Regier

Norm Pattis

Behrens v. Regier, 2005 WL 2085656, (11th Cir., 2005) presents an all too common problem for plaintiffs bringing actions arising under 42 U.S.C. Section 1983. State actors under color of law have erred, egregiously so, and yet there is nothing to be done as a matter of constitutional law.

The facts are simple. Behrens and his wife have both a natural and an adopted child. They would like to adopt a third. Trouble is that years ago an accident at the family home led to the injury of their adopted child. Florida's Department of Children and Families investigated, as did the state's attorney. No criminal charges were brought and a Florida circuit court dismissed the allegations of abuse as they were not proven by a preponderance of the evidnce.

So why is Behrens still listed in as a "verified" child abuser in DCF records?

Behrens sued contending that he had not been given a name-clearing hearing in violation of his right to procedural due process. He further contended that his right to substantive due process had been abridged.

The 11th Circuit applied the stigma-plus test of Paul v. Davis, 424 U.S. 693 (1976), to these facts and granted a motion to dismiss. While the plaintiff had made out a claim that the DCF workers had stigmatized him, the plaintiff failed to establish that he had been deprived some more tangible Constitutional interest. Put another way, he had no liberty interest or property interest in the desire to once again become a foster parent. It is a harsh, but correct, ruling. The desire to become a foster parent once again looks an awful lot like a mere expectancy, although the 11th Circuit did not use that term.

Behrens raised an interesting argument that his legal right to become a foster parent had previously been recognized, given his prior adoption. However, the court held that this did not create a prospective right to adopt again.

The court then made short work of the  substantive due process claim observing that there is no fundamental right to apply for adoption. The court's refusal to even consider the possibility that a government official who recklessly maintains records of false information about a citizen might undermine the rights implicit in the concept of ordered liberty is disturbing. Have we created a government of laggards capable of any reckless incompetence, but beyond the reach of law?

Behrens appears never to have raised an equal protection claim. Arguably, that may have been his best shot at a jury. Why not argue that he was treated different than other similarly situated persons? Of course, discovering the necessary facts to withstand summary judgment on this theory would be costly. But it is hard to believe that Florida never expunges the records of those once accused of neglect and refuses ever to cease calling people "verified" child abusers once courts have dismissed actions claiming abuse.

The import of the case? It establishes no new legal principle, and is not cert. worthy. It reminds once again that mere defamatory acts cannot support a constitutional claim. But it does illustrate the degree to which the due process clause can be eviscerated to shield the truly incompetent from the consequences of their errors.

August 31, 2005 in 42 U.S.C. 1983 (Theory, Tips, Resources) | Permalink | Comments (0) | TrackBack

August 10, 2005

Prosecutorial Immunity and the "Functional Approach"


One of the most challenging aspects of dealing with absolute immunity is answering this question: What's the function?  For example, prosecutorial immunity does not apply to all prosecutorial conduct.  Rather, the reviewing court looks to "the nature of the function performed, not the identity of the actor who performed it."  Forrester v. White.  In Imbler v. Pachtman, the Court noted the significant difference between "those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate [ ]."  In practice, courts really mean is Ms. Prosecutor is participating in the investigative phase of the proceeding. 

This is called the "functional test" to immunities.  And like all common law rules, it seems simple enough.  But things get hazy. 

Determing when someone is an "administrator" is pretty easy.  Hiring and firing decisions, for example, easily fit the definition of "administrative" ("of or relating to administration or an administration.")   Forrester v. White

But what about giving legal advice to police officers?  That's not advocative, since one isn't an advocate until, by definition, there's an adversarial proceeding.  Is it administraive?

What about testifying as a complaining witness?  Kalina v. Fletcher.  That's not administrative, but it's also not investigative.  A witness doesn't investigate crimes, but rather, provides relevant information.

I think the better approach is to not look at the supposed function performed, but instead, to look at the phase of the proceeding.  If charges haven't been filed, or if there is not yet probable cause to charge, then the case is in its investigative phase.  Under this view, every act understand before probable cause has been establishment would be protected by qualified, not absolute, immunity.

August 10, 2005 in 42 U.S.C. 1983 (Immunities), 42 U.S.C. 1983 (Theory, Tips, Resources) | Permalink | Comments (0) | TrackBack

July 25, 2005

Issue Framing in Section 1983 Cases


Conyers v. Abitz, No. 04-1630 perfectly illustrates the legal gamesmanship involved in  unpredictability of a Sec. 1983 qualified immunity analysis.  In Conyers, a prison inmate was not notified that a deadline to participate in the Ramadan Fast was approaching.  Before Ramadan, but after the deadline, Conyers requested that his meals be modified per Ramadan's requirements.  Prison officials denied his request (even though they could have accomodated it with ease), and he sued.

The state officials argued that they were entitled to qualified immunity since they "could not have been expected to know that not providing [Conyers] with advance written notice of the sign-up deadline would violate his freedom of religion."  Slip op. at 8.  In other words: Is there a case on point requiring a prison officials to notify prisoners that Ramadan is upcoming?  If the court had analyzed the case with this degree of specificity, then officers would always be entitled to qualified immunity. Even the most vicious dog would get one free bite.

The court, on the other hand, framed the issue more broadly: "The relevant inquiry is whether, at the time the defendants refused Conyers's request, the law was clearly established that prison officials must have a legitimate penological interest before imposing a substantial burden on the free exercise of an inmate’s religion, even when that inmate is in disciplinary segregation."  Id.  With the issue framed more reasonably,* the panel easily denied qualified immunity.  Id. at 8-9. 

The challenge for lawyers and judges is finding the "right" way to frame the issue.  (In truth, the "right" way is the one the court decides.)  This, of course, comes as no surprise to civil rights lawyers.  But it does illustrate why ever Section 1983 case is unusually challenging: even with great facts, the court can sink the case with one question.

*The panel took a middle approach in framing the issue. It could have said (unfairly broadly): Is the right to be free from substantial burdens on religious exercise clearly established?  Another (unfair) issue-framing would have been: Must prison administrators given written notice of upcoming religious holidays?  The panel instead focused on "the specific context of Muslim inmates who were denied pork-free meals while confined in disciplinary segregation," and noted that those decisions put prison officials on fair notice that they "must demonstrate a legitimate penological objective for decisions that impede religious exercise."

July 25, 2005 in 42 U.S.C. 1983 (Theory, Tips, Resources) | Permalink | Comments (0) | TrackBack

June 28, 2005

Castle Rock's Disappointing Message

Norm Pattis

It has long been the case that police officers could not be sued for their failure to protect a person. But it took the Castle Rock decision to extend that doctrine one step further: Officers don't even have a duty when a court imposes one.

The plaintiff sought protection from the courts from an abusive spouse. She obtained a protective order requiring that her husband be arrested if he violated the order. The court granted the order.

Well, the husband violated it. He took the couple's three children. The plaintff called the police, who did next to nothing. The children are now dead, at the hands of the man a court had restrained.

The majority of the court held this was not a property interest giving rise to a claim under the Fourteenth Amendment. The more obvious constitutional route, that the police failure shocked the conscience, was foreclosed by the holding of DeShaney in 1989 barring substantive due process claims in failure to protect cases.

It would not have mattered had the plaintiff plead her case as a liberty interest, I suspect. The analysis would have been largely the same. The deeper policy impulses compelling the conclusion reached favored the "well-established tradition of police discretion," according to Justice Scalia.

The court reasoned that state remedies may well exist. In Connecticut, there is an exception to municpal immunity in cases in which an identifiable victim is in immanent risk of harm. It is a difficult needle to thread.

Given DeShaney, Castle Rock was a foregone conclusion. But it needn't have turned out this way. There was an easy distinction that could have been drawn: The court order in Castle Rock transformed this case from one about mere private expectations to one involving whether the state can be held accountable for breaking its commitment to protect a person who had sought the shelter of the court.

By abandoning the plaintiff in Castle Rock, police officers showed something less than respect for the authority of the court and for the rule of law. The Supreme Court's ruling sends a message to vulnerable people: Trust not the courts. It leaves one wondering whether the hidden message to plaintiffs in cases such as these is that self-help and a hand gun are your only real hope for relief.

June 28, 2005 in 42 U.S.C. 1983 (Theory, Tips, Resources), Castle Rock v. Gonzales | Permalink | Comments (1) | TrackBack

June 20, 2005

The Tragicomedy of "Peer Review"


In Imbler v. Pachtman, 424 U.S. 409 (1976), an activist Supreme Court read into 42 U.S.C. Sec. 1983 – which allowed for no immunities - prosecutorial immunity.  Although the Court recognized that absolute “immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of his liberty,” id. at 427, this sacrifice of the individual was necessary for “the broader public interest.”  Id.  Moreover, a “malicious or dishonest” prosecutor would still face discipline because

a prosecutor stands perhaps unique among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers. These checks undermine the argument that the imposition of civil liability is the only way to insure that prosecutors are mindful of the constitutional rights of persons accused of crime.

Id. at 428-29.  Sounds fair, no?  No.

In Kalina v. Fletcher, 522 U.S. 188 (1997), a Washington state prosecutor, under oath, misstated material facts in a probable cause hearing.

Kalina's certification contained two inaccurate factual statements. After noting that respondent's fingerprints had been found on a glass partition in the school, petitioner stated that respondent had "never been associated with the school in any manner and did not have permission to enter the school or to take any property."  In fact, he had installed partitions on the premises and was authorized to enter the school. She also stated that an employee of an electronics store had identified respondent "from a photo montage" as the person who had asked for an appraisal of a computer stolen from the school.  In fact, the employee did not identify respondent.

Id. at 121.  Was Ms. Kalina subject to “professional discipline” by “an association of [her] peers”?  Was she at least publicly criticized?  Nah. 

Instead, they all filed amicus briefs on her behalf!  Id. at 120 ("Briefs of amici curiae urging reversal were filed [for]... Washington, ... for the Thirty-Nine Counties of the State of Washington, ... and for the National District Attorneys’ Association et al.")  So much for peer review.

June 20, 2005 in 42 U.S.C. 1983 (Theory, Tips, Resources) | Permalink | Comments (3) | TrackBack

June 01, 2005

Younger Abstention, Judicial Misconduct


A recent Eighth Circuit opinion, styled as a non-sexy (as if!) abstention case illustrates how federal abstention doctrines cause federal courts to look away from rights violations.  In Norwood v. Dickey, No. 04-3120 (8th Cir. Jun. 1, 2005):

Norwood, a licensed attorney practicing in Arkansas, filed a complaint with the Arkansas Commission alleging violations of a judicial canon against an Arkansas circuit court judge. The Arkansas Commission oversees all proceedings involving the discipline or disability of judges in the state courts of Arkansas. After filing the complaint, Norwood received a letter from Badami informing Norwood that if he publicly disclosed the nature of the complaint that he would be subject to punishment for contempt by the Arkansas Supreme Court, pursuant to Arkansas Judicial Discipline and Disability Commission Rule 72 and Ark. Code Ann. § 16-10-404.

Slip op. at 2 (emphasis added).  Arkansas' rule is both a prior restraint and a content-based restriction on speech - which means they're subject to strict scrutiny.  Norwood wanted to challenge the rule.  [I have a post in the works analyzing lawyer- and judge-made omertas.]  He thus filed a Section 1983 action in federal court, seeking declaratory and injunctive relief.

The District Court improperly dismissed his claim on abstention grounds.  The Eighth Circuit improperly affirmed.  Id. at 3-5.

Broadly stated, federal courts apply abstention doctrines, that is, they abstain from hearing a case, when they have jurisdiction but where prudence cautions against the exercise of jurisdiction.  One such instance where prudence requires abstention is where there is an ongoing state court proceeding.  Younger v. HarrisSans Younger, any person charged with a crime in state court could (in theory) march over to federal court and ask the federal court to enjoin the prosecution.  Because this would raise major federalism issues, and because it would burden the federal courts, a federal court must abstain from hearing controversies already pending in a state proceeding.  Per the Eighth Circuit:

[Under Younger v. Harris] federal courts to abstain from hearing cases when (1) there is an ongoing state judicial proceeding which (2) implicates important state interests, and when (3) that proceeding affords an adequate opportunity to raise the federal questions presented.

Fuller v. Ulland, 76 F.3d 957, 959 (8th Cir. 1996).  In Norwood, there was an ongoing proceeding involving alleged judicial misconduct. But there was not an adequate opportunity for Norwood to raise his federal question. "[N]either by statute nor by court rule does the State of Arkansas provide a procedure by which anyone other than the respondent in the administrative proceeding can challenge the constitutionality of the rules of disciplinary proceedings for judges at issue in this lawsuit."  Appellant's Brief at 18 (emphasis added).

As the panel noted: "Rule 12F of the Arkansas Judicial Discipline and Disability Commission Rules
allows the Arkansas "Supreme Court [to]. . . bring up for review any action taken upon any complaint filed with the Commission, and may also bring up for review a case in which the Commission has failed to act.'" Id. at 4 (citing Ark. J.D. & D.C. R. 12F).  But, the panel could not cite any opinion where the Arkansas Supreme Court reviewed the constitutionality of a rule.  Thus, while the Arkansas Supreme Court will review disciplinary actions under Rule 12F, the panel did not cite one example where the court heard a constitutional challenge, brought by a complaintaint, to a rule.  Thus, Norwood did not have a an adequate opportunity to raise his claim.

What's worse is that he never will.  His complaint against the judge was dismissed in 2004.  Id. at 5, n 3.  Thus, Norwood would not have standing to challenge the rule.  City of Los Angeles v. Lyons (holding that a person previously harmed by a policy does not have standing to enjoy enforcement of the policy unless he can demonstrate that the policy is likely to harm him again.)  But had the District Court not abstained, and assuming an exception to the mootness doctrine applied, Norwood would have been able to litigate against Arkansas' blantant speech suppression.

The Eighth Circuit's Norwood's decision is misguided.  The panel blindly applied YoungerYounger abstention was designed as a principle of federalism, and is presupposes a fair and open forum where one can litigate his constitutional claims.  Where one can not litigant his claims, the reason for Younger collapses.

June 1, 2005 in 42 U.S.C. 1983 (Theory, Tips, Resources) | Permalink | Comments (0) | TrackBack

March 22, 2005

Rivera v. Rhode Island Illustrates Inadequacy of Current Affirmative Duty Doctrine


I have a secret to tell you -- The police are not required to protect you.  Even if the police watch someone beat you up, you could not sue them.  Most people don't know this, and are shocked when I explain it.

The Fourteenth Amendment provides that no person shall be deprived of life, liberty, or property without due process of law. The 14th Amendment, however, is a guarantee of negative liberties -- It only protects one from governmental actions. Thus, the government does not have a duty to prevent deprivations of one's life liberty or property.  (DeShaney).

Currently, the circuits have recognized two exceptions to the "no duty" rule. The state has a duty to protect a citizen from private violate where there is a special relationship, and where the state creates or increases the danger the citizen faces.

Special relationship cases arise most frequently where there is involuntary confinement. When a the state places someone in prison or a mental hospital, they take away his ability to defend himself, and therefore must offer some protection. Thus, the state owes a duty to protect someone from prison rape, and to provide a prisoner with medical care.

Danger creation occurs when the state puts the person in harms way. For example, in Wells v. Walker (CA8), the state endangered the decedent by dropping off a released prisoner (whom prison officials knew posed a danger to himself and others) at the store she was working at. 

These two categories are too narrow, as a recent First Circuit case illustrates.

In Rivera v. Rhode Island (CA1), a 15-year old - Jennifer Rivera - witnessed a gangland murder.  She was too afraid to testify, though, because everyone knew that if crossing this gang meant the death penalty.  But the police promised that they would protect her.  But for those promises, little Jennifer would have clammed up. 

Sadly, the police broke their promises.  Jennifer did not have any protection, and she was murdered. 

Applying DeShaney, and circuit court decisions interpreting danger creation, a unanimous three-judge panel denied Rivera's claims.  Slip op. at *21 ("While the unkept promises may have rendered her more vulnerable to the danger posed by Charles Pona and his associates,
merely rendering a person more vulnerable to risk does not create a constitutional duty to protect.")  It's counterintuitive that making some vulnerable does not create danger.  But that is generally how the circuits have analyzed affirmative duty cases, and that is why affirmative duty cases should be analyzed differently.

Since section 1983 is to be against the backdrop of tort liability, the courts should provide a simple, workable rule: The state owes a person protection when the state assumes a duty to protect, and where a reasonable person in the citizens position would reasonably rely on the assertion.

Some would argue that this rule would open the floodgates of litigation and lead to crippling money judgments against government employees and municipalities.  That criticism is wrong for two reasons.

First, the state would be under a duty only if it assumed one.  A plaintiff would be prevented from making will-nilly arguments that some facts showed a duty.  Rather, the state would have to unequivocally assume the duty.  In Rivera, the police assumed a duty when they promised her protection.  Simply put, if a state actor wanted to avoid liability, she would need only not make promises she did not intend to keep.

Second, to state a substantive due process claim, the plaintiff still has to meet the almost insurmountable obstacle of shocking a federal judge's conscience  That is, the plaintiff can't win unless the defendant's conduct shocks the conscience of the reviewing court.  In Rivera, e.g., it might shock the conscience maliciously police broke their promise, but not simply if they made a mistake when trying to protect her.

Thus, my rule would offer protection for plaintiffs who become vulnerable only after receiving promises of protection from government officials while not opening the floodgates of civil rights claims.

UPDATE: Tom Lincoln has a good post here.

March 22, 2005 in 42 U.S.C. 1983 (Theory, Tips, Resources) | Permalink | Comments (4) | TrackBack