Crime & Federalism

Is Criminal Assault Unreasonable Police Conduct?

There is no better way to see "quirks," "nuance," or "double standards" than to simultaneously study or practice two areas of law: Criminal defense and police misconduct. The same conduct that would get an ordinary citizen arrested is often found to be "no big deal," when a police officer does it.  The same conduct that gets a civilian thrown into jail won't even allow for a lawsuit against a police officer.  A recent Eighth Circuit Court of Appeals case is illustrative.

In v. City of Bella Villa, No 08-2712 (8th Cir. Oct. 2, 2009) (here), a man left a car after witnessing Chief Edward Lock sexually assault the man's wife. The police officer, without any warning, tasered the man. The officer placed the man into handcuffs and then

Chief Locke picked Michael up off the ground and slammed Michael against Diane's mother's car. Chief Locke then instructed Michael to get in the patrol car, but when Michael had difficulty getting in the vehicle, Chief Locke pushed Michael into the car, hitting Michael’s head on the door.

Slip op. at *11-12. The Fourth Amendment states that a seizure of a person must be reasonable. What reasonable reason exists for slamming Michael (who weighed 112 lbs.) into a car?   Michael was already in custody. Thus, no use of force would have been reasonable. Nevertheless, two federal Court of Appeals judges held that the use of force was reasonable. How did the two judges reach that conclusion?

They credited the lack of permanent or serious physical injuries:

The record before us contains pictures of these alleged injuries which reveal two puncture marks on Michael’s chest where the taser darts entered, and, at most, a scrape to Michael’s eyebrow. In its memorandum granting summary judgment on Michael’s excessive force claim, the district court noted the lack of any significant injury sustained by Michael and no permanent physical injury.

Shouldn't the existence of injuries go towards damages rather than liability? The Fourth Amendment allows a police officer to use force to effectuate an arrest. Once a person is arrested, though, what excuses the use of force?  The cop is kicking a man "just for kicks." How is that not per se unreasonable?

Edward Locke lives in Missouri. Under Missouri law, Locke's conduct was unreasonable as a matter of law.

Mo. Rev. Stat. provides that a person is criminally liable for third-degree assault when "(1) The person attempts to cause or recklessly causes physical injury to another person ... (3) The person purposely places another person in apprehension of immediate physical injury []."  Slamming a person's head into a car just for fun can cause an injury.  Slamming a person into the hood of a car puts a person into apprehension of physical injury.  Under Missouri criminal lock, Locke committed a crime.

The law of criminal assault will nearly the same way in every state in the union. Nevertheless, two federal judges held that criminal conduct, when done by a police officer, isn't even unreasonable.

Some will say say, "But constitutional law is different from criminal law."  That's true on its face, but also glosses over how constitutional law - at least in Section 1983 cases - is made.  The Constitution states that the use of force must be reasonable.  The Constitution doesn't contain an Appendix of Definitions.  The Constitution does not define "reasonable."

Judges must determine, on a case-by-case basis, what conduct is reasonable.  One way to judge reasonableness is to look towards criminal and civil laws.  If every state in the union has classified assault as a crime, isn't it reasonable to infer that assault is unreasonable conduct?

Here, Edward Locke assaulted a man under the law of every state.  How then could two judges excuse his conduct? 

Sheldon Nahmod has a Blog

The legal blogging world became much more interesting, now that Sheldon H. Nahmod, an expert on Section 1983 law, has begun blogging.  In the "About" section to his page, Nahmod notes: "I plan to blog once or twice weekly on 42 U.S.C. section 1983, perhaps the most important federal civil rights statute, and on constitutional law (including the First Amendment), the teaching of constitutional law and other law-related topics."

That is most welcome news.  Be sure to welcome him to the blogosphere.  

District Attorney David Paulson Found Liable for Retaliation

This is an interesting jury verdict:

Solano County, Calif., District Attorney David Paulson retaliated against a bail bondsman who slammed the prosecutor in a newspaper ad, a federal court jury decided Wednesday.

Paulson and his chief investigator, Al Garza, acted with malice when they sought a temporary restraining order against Joel Thomas "Tom" Toler and then unsuccessfully pursued charges that he violated that order, the eight-member jury found.

The Recorder has the rest of the details here.

Retaliation claims are very hard to win.  I won't have time to review this stuff until Sunday at the earliest.  I have, however, uploaded the Complaint as well as the Order denying summary judgment, and thus allowing the retaliation claim to go to trial:

• Download Retaliation Complaint  
• Download Retaliation Order

Domestic Violence Victim's Section 1983 Lawsuit May Proceed to Trial, Second Circuit Holds

Okin v. Village of Cornwall-on-Hudson, No. 06-5142 (2d Cir. Aug. 18, 2009) (here).

A woman’s live-in boyfriend, Roy Sears, was a hometown hero. He owned a bar where the cops got drunk and watched sports. The police department gave the bar owner a license to beat up his live-in girlfriend.

She’d call the police. When they bothered to show up, they didn’t question her husband. They ignored her bruises. Finally she sued. Her allegations: 

Okin filed a 42 U.S.C. § 1983 action ... alleging violations of her federal Due Process and Equal Protection rights .... By failing to arrest or even interview Sears, Okin alleges that defendants endangered her by emboldening Sears. Okin also alleges that defendants “acted in concert with Sears,” that they failed to respond effectively to her repeated complaints about Sears because he “had significant personal relationships with ranking members of [the Village and Town] police departments and made financial contributions to or at the behest of the Town Police Department,” and that defendants’ dismissive and inappropriate behavior which was witnessed by Sears affirmatively increased the danger she faced.

Held: “Viewing the evidence in the light most favorable to Okin, we find a genuine issue of material fact as to whether defendants implicitly but affirmatively encouraged Sears’s domestic violence.”  After all, a “reasonable factfinder ... could infer that defendants’ actions, such as discussing football with Sears during their response to Okin’s complaint that he had beaten and tried to choke her, ‘plainly transmitted the message that what he did was permissible and would not cause him problems with authorities.’”

Substantive due process claim stands: 

We find the record in this case to support the conclusion that Okin raises a genuine issue of material fact as to whether the defendants’ affirmative creation or enhancement of the risk of violence to Okin shocks the conscience. The serious and unique risks and concerns of a domestic violence situation are well known and well documented.

She lost on her equal protection claim for lack of evidence: 

Okin alleges that, by their failure to apply the law equally on the basis of gender and their failure to discharge their duties in a non-discriminatory manner, defendants violated her equal protection rights. Her claim is that, although the defendant police departments’ stated policy was that domestic violence incidents were to receive the same police attention as other criminal incidents, their unspoken policy and practice was to treat complaints of domestic violence towards women differently.

She didn't have any evidence to prove her allegation.

Her lawyers should have brought a class-of-one equal protection claim. Allegation: Okin was treated differently – and thus was a class of one – from other domestic violence victims because her husband was drinking buddies with the police force.

Municipal liability/Monnell claim stands: 

We have no trouble in finding that policymakers would know that officers will confront domestic violence situations, that training assists officers to employ criminal justice strategies attuned to the complexities of domestic violence, and that in Okin’s case, the record indicates a history of mishandling her complaints.

Interesting opinion overall. Most police departments have a mandatory-arrest policy in domestic violence cases. If a woman calls the police, the man is going to get arrested.  This is the case even when a female victim recants once police arrive. When police officers refuse - repeatedly - to arrest someone accused of domestic violence, you don't need a Ph.D. to get the realpolitik.

By the way, these are the scumbag police officers who let their drinking buddy beat up his girlfriend: Rusty O’Dell, Thomas Douglas IV, Michael Lug, Paul Weber, Charles Williams, Edward Maion, and Roy Sears. Cheers to you, losers.

What is a "Criminal Case" Under Chavez v. Martinez: Section 1983 Lawsuits for Violation of the Self-Incrimination Clause

I had an longer post but my computer crashed, and I need to return to work.  Here is what you need to know.  Today the Ninth Circuit held in Stroot v. City of Everett:

A coerced statement has been “used” in a criminal case when it has been relied upon to file formal charges against the declarant, to determine judicially that the prosecutionmay proceed, and to determine pretrial custody status. Such uses impose precisely the burden precluded by the Fifth Amendment: namely, they make the declarant a witnessagainst himself in a criminal proceeding.

In Stroot, the coerced statement was used against the defendant in:

(1) the Affidavit filed insupport of the Information charging him with child molestation;(2) a pretrial arraignment and bail hearing (the CrR 3.2hearing);12 and (3) a pretrial evidentiary hearing (the CrR 3.5hearing) to determine the admissibility of his confession. Thequestion is whether these forms of reliance on Paul’s statementsconstitute “use” in a “criminal case” under Chavez. Weconclude that (1) and (2) above do constitute such “use.”

There is a circuit split:

The Third, Fourth, and Fifth Circuits have applied Chavez to bar recovery under the Fifth Amendment unless the allegedly coerced statements were admitted against the defendant at trial. See Burrell v.Virginia, 395 F.3d 508, 513-14 (4th Cir. 2005); Murray v. Earle, 405 F.3d 278, 285 (5th Cir. 2005); Renda v. King, 347 F.3d 550,552 (3d Cir. 2003).

The Ninth Circuit has joined the Second and Seventh Circuits:

The Seventh and Second Circuits disagree.... Sornbergerv. City of Knoxville, Illinois, 434 F.3d 1006 (7th Cir. 2006).... More recently, the Second Circuit joined the Seventh Circuitin rejecting the view that police coercion violates theFifth Amendment only if the confession is used at trial. Higazy v. Templeton, 505 F.3d 161 (2d Cir. 2007).

Stroot may be read here.

So Much for Don't Blame the Victim: Ninth Circuit Validates Suicide-by-Cop

The Recorder has the details.

Ashcroft v. Iqbal: Supervisory Liability Under Bivens and Section 1983

In its recent opinion in Ashcroft v. Iqbal, the United States Supreme Court confused the law of supervisory liability.  Iqbal's bare majority did not, contra the some gasps in the dissent, overrule supervisory liablity under Bivens or Section 1983.  The Court did confuse the law of supervisory liablity.  Let's look at where the Court went wrong.

Bivens Actions. A state or local government official who violates a citizens constitutional rights may be sued under federal statute - 42 U.S.C. 1983.  Section 1983 was not used for decades.  Then, in the 1960s, the Supreme Court awoke Section 1983 from hibernation - in Monroe v. Pape.  

Monroe, however, involved a lawsuit against state officials.  Such lawsuits were covered directly under federal statute.  

How then, if at all, may a citizen sue a federal agent who violates the Constitution?  This is a tricky question.  Is the Constitution self-executing?  Or must Congress first create enabling legislation allowing a private party to sue federal agents?   

Section 1983, e.g., is a enabling legislation.  The Constitution is the source of the substantive rights. Section 1983 is what allows a party to file a lawsuit.  What then to do with federal officials?

In Bivens v. Six Unknown Named Agents, the Supreme Court answered the controversial question.  In Bivens, the Court held that at least some parts of the Constitution were self-executing.  Thus, even without enabling legislation, a citizen could sue federal agents for violating the Constitution.

Bivens Divides Liberal and Conservative Justices.  Conservatives hate Bivens.  Liberals love it.  There are fantastic arguments for love and hate.  Some conservatives say that Article III courts lack the power to create common-law causes of action.  Plus, conservatives, as a matter of realpolitik, don't like lawsuits against the police.  On the former point, liberals say that's silly: There is indeed a substantial body of federal common law.  On the latter point, liberals say nothing.  Pointing out conservative's pro-government bias is bad manners.

Reasonable minds disagree. But Bivens exists.  Now what?

Conservative justices, when they can, limit Bivens.  When they get the votes, the write opinions which state: "Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability 'to any new context or new category of defendants.'"  Which is exactly what the conservative 5 justices of the United States Supreme Court wrote in Ashcroft v. Iqbal. 

Supervisory Liablity.  Under Section 1983, a supervisor may be sued for his subordinate's unconstitutional acts.  However, a supervisor is not strictly liable under respondeat superior.  Rather, supervisory liability attaches only where a plaintiff can show that the supervisor's policy or custom was a moving force behind the civil rights violation.  To hold a supervisor liablity, a plaintiff must show ratification, or acquiesce.  

For example, a cop hits you over the head with a baton because you're wearing a "Goldman Sachs is Evil" t-shirt.  No supervisory liablity.  If the supervisor issued a memo saying, "Hit anyone over the head who defames Goldman Sachs," then the supervisor would be liable.  The supervisor would have ratified an official policy.

The Supreme Court has recognized, though, that policy is created based on not just what you say - but on what you don't say.  Imagine your employees come into the office at 9:30 a.m.  You say nothing.  The de facto start time for the workday, then, would be 9:30.  You need not issue a memo for your subordinates to learn the policy or custom.  That you issued no such memo, though, doesn't mean there isn't a policy or custom.  There is acquiesce.

Thus, in City of Canton v. Harris, the Supreme Court held that supervisory liablity may attach where "policymakers were aware of, and acquiesced in, apattern of constitutional violations."  If the chief of police knows that his officers are beating up people who speak ill of Goldman Sachs and does nothing, then one could infer that he's sanctioned the policy.  After all, it's his job to tell officers what to do - and not do.  Moreover, policymakers should not be able to avoid liablity through an ostrich policy. 

Iqbal Ignores Canton.  In Iqbal, the majority writes: 

[Plaintiff] argues that, under a theoryof "supervisory liability," petitioners can be liable for "knowledge and acquiescence in their subordinates' use of discriminatory criteria to make classification decisions among detainees." That is to say, respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of "supervisory liability" is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeed sof their agents. In a §1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term "supervisory liability" is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.

The majority ignores Canton, but also fails to note that a government official's misconduct includes failure to properly train or supervise his subordinates; and for creating unconstitutional policies that are the moving force of civil rights violations.  Thus, the majority's statement: "Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct," is nonsensical.  

The Iqbal majority ignored decades of case law.  It has cast doubt over the elements in a cause of action brought against supervisors who fail to properly train or supervise subordinates; or who close to their eyes to constitutional rights violations.

The real action now will occur in the lower courts.  

Lower courts should recognize that, as the Supreme Court noted in Canton, supervisors have an independent duty to supervise and train employees; and to prevent their employees from creating a culture of lawlessness.  

Holding supervisors accountable for their actual, unconstitutional conduct is not imposing strict liablity.  Thus, as has always been the case, post-Iqbal plaintiffs will be required to prove that the supervisor failed to supervise his subordinates.  Simply alleging a supervisor-subordinate relationship is not enough.  

Rather, as most jury instructions provide, the plaintiff must show: "[3. (a) the defendant knew, or reasonably should have known, that [his] [her] subordinate[s] were engaging in theseact[s] and that their conduct would deprive the plaintiff of these rights; and(b) the defendant failed to act to prevent [his] [her] subordinate[s] from engaging in such conduct.]"  Ninth Circuit Model Civil Instructions No. 9.3.  

A few stray sentences in Iqbal should not uproot longstanding law.

Huppert v. City of Pittsburg, and the Definition of a Police Officer's Duties

In  Huppert v. City of Pittsburg, a split panel of the Ninth Circuit Court of Appeals held that a police officer who speaks to FBI agents about police misconduct, is doing so pursuant to his official duties as a police officr.  In reaching its conclusion, the panel cited California law:

Though Huppert argues that he was repeatedly informed by the FBI that his investigatory work was outside his duties as a police officer, this is not enough to overcome California’s jurisprudence defining such duties. It is clear that in California a police officer’s official duties include investigating corruption, so as to “prevent[ ] the commission ofcrime, . . . [and] assist[ ]in its detection.” Christal, 92 P.2d at 419. While we do not know the contents of any speech that Huppert made, we do know that such conversations with the FBI would have been to “disclos[e] all information known to [Huppert]” regarding the alleged acts of corruption within the PPD. This obviously encompasses his duty to uphold the law specifically entrusted to California’s peace officers.

That language struck me as odd - as it should anyone familiar with the law of Section 1983.  In general, police have no duty to protect the public.  This is known as the no-affirmative-duty rule.  If we filed a lawsuit alleging that police officers did a shoddy police investigation, the case would be dismissed.

Now some might say, "The no-duty rule grew out of due process law.  Thus, as a matter of the Fourteenth Amendment's Due Process Clause, police have no duty to investigate corruption or prevent the commission of a crime.  As a matter of state law, they do."  I thought that argument had to be wrong, too.  Sure enough, it is.

In Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, the California Court of Appeals wrote: 

[2] The existence of a duty is a question of law.  As a general rule, a person who has not created a peril has no duty to come to the aid of another no matter how great the danger in which the other is placed, or how easily he could be rescued, unless there is some relationship between them which gives rise to a duty to act.  This rule applies to police officers as well as to other citizens: The police owe duties of care only to the public at large and, except where they enter into a special relationship, have no duty to offer affirmative assistance to anyone in particular. 

Id. at 859-60 (citations and quotation marks omitted).  So, as a matter of state law, police officers do not have a duty to investigate corruption or prevent the commission of a crime.  How then does the Ninth Circuit's split panel justify its decision?

I suppose one might say that we're discussing tort law.  But wasn't the case against Pittsburg a tort case?  A Section 1983 action is a tort.  Indeed, a fantastic casebook is entitled Constitutional Torts.  The section of the Department of Justice responsible for defending against Bivens claims (the federal equivalent of Section 1983) is entitled the "Constitutional Torts Staff."  

Shouldn't the panel at least considered the application of the no-duty rule in its analysis?

After all, if under both state and federal law a police officer could not be criminally prosecuted for failing to report misconduct; and he could not be civilly sued for not reporting misconduct: Does it really make sense to say that a police officer has a duty to report misconduct?

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.