Crime & Federalism

Fourth Circuit Refuses to Follow Supreme Court Precedent; And Why Should They, Since Precedents Will Likely Shift

As is his custom, Fourth Circuit Judge Wilkinson refuses to follow Supreme Court precedent when that precedent would require an outcome with which he disagrees; and when his handiwork would likely escape Supreme Court review.  In Holly v. Scott (here), he and another activist judge reach the extraordinary conclusion that operating a federal prison is not a government function.  Thus, an employee of a private prison corporation cannot be sued under Bivens.

My mouth is still gaping open, as this outcome is so outrageously wrong that I am at a loss for words.  In Malesko (here) after all, the Supreme Court assumed that a person could sue a private prison guard.  The assumption was so obvious that it wasn't even stated in the opinion, since decades-old precedent holds that private actors performing traditional government functions act under color of law. This is so obvious that every first year law student in the country would realize that a private prison guard acts under color of law. 

Anyhow, if this case goes upstairs, it might very well be affirmed.  Scalia would overrule Bivens if he could, as Justice Thomas and soon-to-be-Justice Alito likely would.  Heck, the only marginally uncertain votes would be Chief Justice Roberts and Justice Kennedy.  Despite protests from conservative commentators, Justice Kennedy has shown marked hostility towards civil rights litigants.  And does anyone think Chief Justice Roberts would join the four liberal justices in a potentially watershed case like Scott v. Holly?  Like Gonzaga University v. Doe (here), Holly could be the, as Chief Justice Rehnquist characterized Gonzaga, the "sleeper case" of the next Term.

A constitutional revolution is coming, folks, and its victims will not include cases like Roe v. Wade.  It will be technical doctrines like state action and Bivens that find their heads on the chopping block.  The only issue with this case is this: Will Scalia be able to obtain four votes to obtain Court review when the cert. petition is invariably filed?  Or will he wait, concerned that Roberts and Alito might not quite be ready for the revolution?  If this case is reviewed, I predict a 5-4 outcome in favor of affirmance.

(Hat tips go to Donald Caster at All Deliberate Speed and Robert Loblaw, who have commentary here and here.)

Hope v. Pelzer Back at Trial

I'm out of town, and so I can't offer much commentary or case background (Norm, want to post something?), but this seems just bizarre.  On remand in Hope v. Pelzer, the trial court dismissed the case, writing:

"Plaintiff offered no evidence to prove that any of the individual defendants acted with deliberate indifference or were aware of a substantial risk of serious harm," Bowdre wrote. "Merely showing that an Eighth Amendment violation occurred, without more, is not sufficient to impose liability on the defendants in this case."

But "showing that an Eighth Amendment violation occurred," by definition, means that the plaintiff showed that the officers were deliberately indifferent.  To state an Eighth Amendment claim, the planitff must prove deliberate indifference.   Again, if the plaintiffs "show[ed] that an Eighth Amendment violation occurred," then they must show nothing more.

Does anyone have a copy of this opinion? Hope v. Pelzer, No. CV-96-BE-2968-S.  It seems beyond bizarre, and it's possible the quote is taken out of context.  (Though, that's doubtful, since I've found Scott Simonsons' legal affairs coverage to be universally excellent.)

UPDATE: Thanks to Stephen Polin, a D.C. criminal and civil rights lawyer, I have a copy of the judge's order.  You can dowloand it here:

Download hope_v. Pelzer Rule 50 Order.pdf

UPDATE: You can read a more detailed post here.

The Diabetic Victim of Police Misconduct

Here's something that happens too frequently: The police stop a driver who is behaving erratically.  They tell the driver to get out of his car.  The driver is disoriented.  The police handcuff the driver, and ignore his pleas for medical help.  The driver then goes into diabetic shock.

When the driver sues under Section 1983, the police officers have a good chance at being granted qualified immunity.  "But, a reasonable officer, observing the driver's behavior, would have thought he was drunk.  Thus, our actions were reasonable."  It's unconscionable that police officers aren't trained to recognize symptoms of diabetic shock, but courts seem reluctant to hold that when a municipality fails to train someone how to recognize diabetic shock, or when a police officer fails to learn this crucial information, that they should be held liable under Section 1983.  Is there a solution to this problem?

A recent student article offers a provocative solution.  You can read about it here. 

Eighth Circuit (Subtly) Distinguishes Monell

In Lund v. Hennepin County, the civil rights plaintiff was arrested for a drunk-driving offense.  At his post-arrest court hearing, the trial court ordered him released immediately, and did not require him to post bail.  Because of delays in processing his paperwork, the plaintiff was released 12 hours later.  He filed a substantive due process/1983 claim against the county.

Since this was an action against the county, the plaintiff had to prove two things.  First, that his substantive due process rights were violated.  To establish this, he has to show that the government caused something "conscience shocking" to happen to the plaintiff.  Second, since he sued the county, the had to prove that a county policy or custom was the moving force behind this conscience-shocking result.  In other words: The county caused this really bad thing to happen to me.

The unanimous three judge panel denied Lund relief.  Tracing the case law governing unlawful detentions, the court held that a 12-hour delay in release would not ordinarily shock the conscience.  So far, so good.  You and I might disagree over whether this result is, in some Platonic sense, correct.  Regardless, it's consistent with the case law and is therefore a proper conclusion.  But the panel does take a wrong course.

Under Monell v. Dept. of Social Servs., a city is liable for the unconstitutional acts of its employees if the city has a "policy or custom" that was the "moving force" behind the rights violation.  Got that?  Three elements: (1) policy or custom; (2) moving force; (3) rights violation.  The panel, however, endorsed previous efforts that de facto added a new element to Monell actions.  Watch carefully:

[In a Monell action, the plaintiff must] show that the moving force behind plaintiff's detention was a county policy whose inadequacy was "both obvious and likely to result in the alleged deprivation of constitutional rights" or that there was a widespread informal custom having substantially the same effect.

***

Because Lund has not alleged facts sufficient to show that his due process rights were violated or that the County was deliberately indifferent to such a violation, the district court did not err by granting summary judgment.

In other words, the panel seems to be suggesting that a policy or custom that was the moving force behind a rights violation is insufficient to state a Monell claim in the Eight Circuit. Rather, the policy or custom must also be deliberately indifferent to a citizens' constitutional rights.  The Eight Circuit (and, in fairness, most federal circuits) has added a new element to Section 1983/Monell claims.

Section 1983 Damages -- Part II

Each and every day in almost each and every courthouse in the United States, we lie to juries. We look them right in the eye and play act. We lead them to believe that a defendant in a civil case is on the hook for whatever damages are awarded in a civil case. We lie because we know that the defendant himself won't ante up; his insurance company will.

We say justice requires this white lie. The fear is that if we did not tell it, verdicts would skyrocket. Juries would pick the deep pockets actually paying the judgments.   

In cases arising under 42 U.S.C. Section 1983 this lie arguably has grave social consequences. We permit muncipalities and insurance companies to underwrite damages for the violation of core constitutional rights, even of punitive damages. The very purpose of punitive damages is frustrated in such a case. How is anyone ever deterred from misconduct if they never feel the consequences?

Consider the strange case of Lee v. Edwards, 101 F.3d 805 (2d.Cir.1996), a case of mine that haunts me still.

My client was arrested after colliding with a parked car. He'd been drinking. The arresting officer clocked my client with a nightstick, claiming the force was necessary as the officer had been assaulted. My client, a corrections officer, was charged with a serious felony, assault on a police officer.

The police officer lied, and witnesses said so. We sued for malicious prosecution, and asked for punitive damages.

At trial, the defendant's lawyer stipulated to municipal indemnification for damages. Why? I was trying to put on evidence that the city would pay for the damages, and that the cop had no exposure whatsoever. If a defendant has a right to put on evidence of his assets to keep damages down, why didn't a plaintiff have the right to say otherwise? Armed with the stipulation, I got to argue deep pockets.

The stipulation cost my adversary plenty. Theu jury assessed nominal damages of $1 and punitive damages of $200,000. A remitittur motion was denied and off we went to the Second Circuit.

The Circuit remitted to $75,000. Why? Two hundred thousand was too much for a cop; they don't make that much. But the officer put on no evidence of net worth. There was nothing in the record about whether he had money in the bank or not. I still believe the decision was lawless.

Needless to say, I have never had someone stipulate to indemnification again.

Plaintiffs lawyers don't do enough in discovery to determine whether damages will be indemnified. Just the other day, I spoke to someone who has the right idea: She is doing discovery of a city's policy and practice of paying damages in 1983 claims. Why? She intends to bring a Monell claim contending that the practice of underwriting wrongdoing encourages future torts. That seems to me an intelligent way to proceed, but I suspect it will be torpedoed along the way by a judiciary eager to endorse the lie that keeps from jurors the facts about who really pays for police misconduct.

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.

Section 1983 Damages -- Part One

When a police officer get tagged with a civil verdict in a case arising under 42 U.S.C. Section 1983, who really pays?

I've won dozens of these cases and I have never seen a case in which the tortfeasor himself or herself pays. But I have seen a lot of game playing.

A dozen years ago I won a case against two Connecticut State Troopers. They gave a man a gratuitous kick to the, er, hm, family jewels. No permanent injuries. But the jury awarded compensatory and punitive damages in the amount of $50,000. I was thrilled; so was the client.

Then came the remittitur motion. The defendants' lawyer claimed that the sum was excessive, given the officers' income and assets. Of course, no such evidence had been presented.

Smelling a rat, I subpoenaed the governor, the head of the state police, the head of the state police union, and everyone else with a high-powered pulse I could think of to a hearing. That yielded a motion to quash by the Attorney General's office. What took place at the hearing on that motion taught me bundles.

The State provided the troopers a defense under a reservation of right to decline coverage. (A.k.a. free legal defense.) The State's practice at the time was to evaluate coverage decisions post verdict -- long after a judgment had entered. A committee would evaluate the verdict to determine whether the conduct was so egregious as to decline to step in and pay the bill.

When pressed by the judge, the Assistant Attorney General bringing the motion to quash could not think of a case in which coverage was ever declined. No decision had yet been made on whether to provide coverage in the case I had just won.

I argued that the remittitur motion was little more than a shell game. The State was apparently trying to hide behind the meager assets of the defendants in an effort to reduce a judgment it fully intended to pay. The judge ordered the AG to report back with a decision on coverage, and deferred ruling on the remittitur motion.

Several weeks later, the State reported it would underwrite the constitutional tort, effectively serving as a silent insurer of the unlawful conduct of its troopers. The remittitur motion was denied as moot, and the judgment was paid, with attorney's fees and interest.

Lesson? Things are rarely what they appear in terms of damages in 1983 actions. In Part II of this post, I will tell the strange tale of Lee v. Edwards, a case in which the United States Court of Appeals for the Second Circuit went out of its way to reduce a damages award, even when the defendant's lawyer stipulated that the municpal employer would pay the damages.

Stay tuned ...

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)

 

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 Pelzer (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.)

Behrens v. Regier

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.

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.

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."

Castle Rock's Disappointing Message

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.

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.

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. Harris.  Sans 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 Younger.  Younger 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.

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.