Previous month:
May 2005
Next month:
July 2005


I don't have time to blog today, but I want to share the facts of a recent rent control case with you.  Bisno v. Santa Monica Rent Control Board.  It aptly demonstrates how the rich use rent control as yet another way to get richer.

Short story: Tenant is paying around one-thousand dollars a month in a rent-controlled unit that would rent for five-thousand dollars in the open market.  When the Rent Control Board raised the rent because the tenant held onto the place even though it wasn't his principle residence, he retained Irell & Manella - a very large, and very expensive law firm - to sue.  (And, hey, who wouldn't hold on to an oceanfront apartment with rent set at less than 20% market.)

People with enough money to retain Irell & Manell don't need rent control.  Of course, it's possible that Irell & Manell took the case pro bono; then again, the Rent Control Board wouldn't have raised his rent if he were destitute. 

I wish I had time to blog this case today, as it aptly demonstrates how people with lots of money milk rent control.  A couple of my neighbors - who make much more than my wife and I - pay 20% less rent than we do because of Santa Monica's rent control laws.  Fresh graduates saddled with student loans also have the rich using us for a free ride.  Later, I'll explain how rent control actually helps the rich exploit the middle-class and poor.

Speed Limits and Substantive Due Process

Plaintiffs brought a substantive due process/1983 claim against a city for failing to lower the speed limit in a residential neighborhood from 25 to 15 mph.  Schroder v. City of Fort Thomas, No. 04-5216 (6th Cir. June 29, 2005).  They lost.  As they should have, since the claim was frivolous.  Still, Schroder's worth reading for its discussion of the two DeShaney exceptions to the "no duty" rule.  Slip op. at 3-5.

Scalia's "Federalism"

As with his "originalism," Justice Scalia selectively incorporates federalism into his opinions.  Snuck into Castle Rock v. Gonzales was this gem:

[Castle Rock's] result reflects our continuing reluctance to treat the Fourteenth Amendment as a font of tort law, but it does not mean States are powerless to provide victims with personally enforceable remedies.  Although the framers of the Fourteenth Amendment andthe Civil Rights Act of 1871, 17 Stat. 13 (the original source of §1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law.

Slip op. at 19.  Cute.  Very cute.  The Fourteenth Amendment should not be a "font" of tort law, since tort law is better left to the states.  After all, every cause of action allowed under the Fourteenth Amendment applies to all 50 states.  Scalia, it seems, interprets the Constitution with federalism in mind.  Or does he?

Why did he not write the same thing of the Commerce Clause in Raich?  There, he could just have easily have written: "This result reflects our continuing reluctance to treat the Commerce Clause as a general police power."

What an unprincipled jerk.

Danger Creation in Kennedy v. City of Ridgefield

Keep an eye on this recent Section 1983 action - Kennedy v. City of Ridgefield, No. 03-35333 (9th Cir. June 23, 2005).  It's cert. worthy, to be sure. 

Michael Burns, a 13-year old, allegedly molested Kimberly Kennedy's daughter.  Burns had a history of violent behavior: he regularly tormented his family and he once lit a cat on fire.

Kennedy reported the crime to the police.  But because of Burn's violent history, Mrs. Kennedy begged the police to warn her before they told Burns he was being investigated.  Their plan was to leave town, to, in a word, hide out.  The police promised not to tell Burns without first warning the Kennedys.

Then, for some stupid reason, officer Noel Shields told Burns about the allegations.  When Mrs. Kennedy found out that Burns knew, she was terrified.  Noel Shields promised Mrs. Kennedy that the police would patrol the area.  It should not surprise anyone that he lied.

Enraged, Burns broke into Mrs. Kennedy's house, shot and killed her husband, and wounded her.  Mrs. Kennedy sued under Section 1983.  The issue was whether Shields was liable because, in informing Burns of the allegations and promising police protection, Shields created or increased the danger the Kennedys faced .

A 2-1 panel, in a Judge Browning opinion, said, Yes:

Shields’s affirmative actions placed the Kennedy family in a situation of danger greater than they would have faced had he not acted at all. Shields does not dispute that the revelation to Michael Burns’s mother of the allegations of sexual abuse against Michael Burns triggered his actions against Plaintiff and her husband. In revealing the existence of allegations against Michael to Angela Burns after having promised Kennedy that he would notify her first, Shields created a situation of heightened danger. It was inevitable that Michael Burns would eventually learn of the allegations made against him, and he would likely infer who had made them. If Kennedy had received the prior warning officer Shields promised her, she and her family could have taken additional precautions. Instead, they relied on Shields’s promise of advance notification and so considered additional precautions unnecessary.

Moreover, Shields further augmented this danger by offering false assurances that the police would patrol the Kennedy’s neighborhood the night of the shooting. Misrepresentation of the risk faced by a plaintiff can contribute to a finding of state-created danger. See Grubbs, 974 F.2d at 121 (“The Defendants also enhanced L.W.’s vulnerability to attack by misrepresenting to her the risks attending her work.”). Plaintiff alleges that she and her husband based their decision to remain at home that night and leave in the morning in reliance on Shields’s assurances that the neighborhood would be patrolled. Defendant’s affirmative promise of a police patrol thus influenced Plaintiff’s assessment of the risk she and her family faced.

Slip op. at 7484-7485.  The panel held that the contours of right to be free from state-created danger were clear.  Shields can be sued!

This case is cert. worthy (assuming it's not first heard en banc) for a lot of reasons.  But local governments have enough people working for them.  I'm keeping my mouth shut, and my fingers crossed.

UPDATE: The Ninth Circuit, over the dissent of 8 judges, refused to rehear Ridgefield en banc.  I predict the Supreme Court will grant cert. and reverse.

The Government Can Lie

Like Norm, I knew that Castle Rock's outcome was preordained, and yet I'm still disappointed.  In Castle Rock, the government told a mother that it would protect her and her children.  And then lied.

Castle Rock did not involve a slow reaction to a 9-11 phone call.  It involved an affirmative - and dangerous - lie.

When a person files a retraining order against an abusive lover, anger elevates: seeking a restraining order often puts one in more danger than before.  Yet government attorneys will encourage domestic violence victims to seek one.  "We'll protect you," they say. 

After Casle Rock, the government, unlike you or me, can promise to protect someone - and then wilfully break that promise.  The government can assume a duty, and breach that duty without consequence.  A recent pre-Castle Rock decision illustrates why one should never depend on the government.

In Rivera v. Rhode Island (CA1), 15-year old Jennifer Rivera witnessed a gangland murder.  She was too afraid to testify, though, because everyone knew that crossing the gang would mean the death penalty.  But the police promised that they would protect her.

When they broke that promise, little Miss Jennifer died.  Of course, the government faced no consequences.

One reason for not holding them liable is that the police must discretion to enforce the law as they please.  That's reasonable.  But that discretion should be bound when they make promises.

In Castle Rock, the Court could have sent a powerful message to state actors: Don't make promises you don't intend to keep.  It's something most of us learned in as children, but it's something those drunk from power and dizzy from a life of unaccountability no longer remember.

Instead, the Court looked at the potential problems of such a rule.  It let its need to protect government officials from suit overcome the need to hold the government liable. 

The thumb is often on the scales in favor of the government in civil rights cases.  After Castle Rock, there seems to be a fist - an iron fist.

UPDATE: Mackenzie has a post on Castle Rock not to be missed.