Crime & Federalism

En Banc Review Denied in Kennedy v. City of Ridgefield

Today the Ninth Circuit refused to rehear Kennedy v. Ridgefield en banc.  (The dissent of 8 judges, who would have voted to rehear it en banc, via Bashman, is here.)  That's somewhat surprising to me, since the case was wrongly decided.  Although I don't have an exact sense on how interested the Supreme Court is in the state-created danger doctrine, I do predict that the Court will grant cert.  If the Court does grant cert, I'll give 10-1 odds that it reverses the Ninth Circuit.  You can read my brief discussion of Ridgefield here.

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.)

Police Officers Who Killed Dogs Face Civil Trial

In April, 2005 a split three-judge panel of the Ninth Circuit held that certain members of the San Jose Police Department could be sued for taking truckloads of personal property and killing several dogs.  Today the Associated Press is reporting that the Supreme Court will not be reviewing the case.  This is an especially surprising report because the case, having been re-listed seven times, caused some court watchers to speculate that the panel's opinion would be summarily reversed.  I wonder what explains the successive re-lists?  UPDATE:  Tom Goldstein offers his theory explaining the repeated re-lists.

(Via Bashman)

Supreme Court Denies Cert. in Important "Shaming" Case

Dan Markel, who wrote an amicus brief in the lower-court proceedings, has the details.

Community Caretaker Doctrine and Parked Cars

Today the Ninth Circuit held that it was unconstitutional for a police officer to seize a vehicle under the community caretaker doctrine.  Miranda v. City of Corneliu (here).  The panel's opinion was exactly right, though I would not be surprised if the Court summarily reversed.  When one looks at the facts of the case, and the rationale for the community caretaker doctrine, the correctness of the panel's opinion is inescapable.

A husband wanted to teach his wife how to drive.  Husband had a license, wife did not have a license.  Fifteen-year-old high school students obtain blue slips and regularly learn how to drive from a licensed driver, usually a parent.  But because the Mirandas did not speak English well, they did not know about such driver's ed. programs.

The wife drove through their neighborhood at about 10 m.p.h.  A police officer saw the car moving slowly and pulled them over just as they were pulling into their driveway.  Rather than giving the Mirandas a warning, the police officer ticketed both of them.  He also had their car impounded.

Having one's care impounded is a major hassle.  During my first year in law school I went to a meet a friend at the Los Angeles courthouse. Because the meter maid did not see my registration sticker that was visible in the back window of my car, he or she had my car impounded. 

The impound lot was in a very seedy place - not the type of place for smaller-sized people.  They told me it would cost $425 to recover my car.  My then-fiance and I - both of us students - did not have $425 laying around.  We had to borrow the money from a relative.  All said, it took us over 6 hours to recover a car that should never have been impounded. 

Why is the impound fee so expensive?  Simple: the city shares in the revenue.  Impound fees are basically another way for cities to tax people.  Thus, when the police officer had the Mirandas' car seized from their drive-way, he was putting them through great fiscal and emotional stress - all so the city could pick up a few extra bucks, and not so the public could be protected from a road hazard.

With the help of the Oregon Law Center, the Mirandas files a Section 1983 action against the city.  They city argued that because the officer seized the car subject to a traffic stop, the seizure was per se constitutional.  In other words, under the city's view, any time the police stop you, they can take away your car.  This rule would have been a radical departure from existing law.  Thankfully the Ninth Circuit rejected this invitation for judicial activism.

When it comes to traffic stops where there is no reason to believe guns, drugs, or other illegal things are hidden in the care, the police only have the power to seize a motorist's car under the "community caretaker" exception to the Fourth Amendment.  Under this exception, first articulated in Cady v. Dombroski, the police may seize a motorist's vehicle to protect the public. Having a car hanging out on the side of the road is dangerous.  Thus, by removing the car, the police are serving as "community caretakers." (That this exception is regularly abused, and often serves as a pretext to what would otherwise be unconstitutional searches is irrelevant here.)

However, how did the police act as a community caretaker here?  The car was parked in the Mirandas' driveway.  The car did not present a hazard to others.  Thus, the community caretaker-rationale imploded. 

Indeed, seizing someone's car when there is a licensed driver in the car has always seemed to me to fall outside the community caretaker exception.  Again, the community caretaker exception's rationale is that the police should not leave cars that will serve as road hazards.  If there is a licensed driver in the car, then the car will not remain unattended on the side of the road.  Here, it's more perverse: Not only was the car not going to be left by the side of the road, but the car was in a driveway.

The Ninth Circuit got this one right, and properly held that a car parked in a driveway that does not contain anything illegal in it cannot be seized under the community caretaker exception.

Time to Revisit Neil v. Biggers

Just last week, a petition for certiorari was filed in the case of United States of America v. Jose Antonio Perez. The petition asks the Supreme Court to reconsider whether the certainty of an eyewitness identification ought to be a factor a court considers when determining whether a suggestive identification is nonetheless sufficiently reliable to satsify the requirements of due process.

Mr. Perez was convicted of a number of federal offenses arising from the contract-murder of a rival drug dealer. The Perez brothers operated a narcotics operation in Hartford, Connecticut. When things got hot with a member of the Savage Nomads, another gang, hitmen were recruited from the Bronx. The hitmen succeeded, and the case went unsolved for some time. (In the interest of full disclosure, I represented Mr. Perez at trial.) Then rats started nibbling at federal cheese.

Prior to trial, the defendant moved to suppress his identification by one of the triggerman's crew on the grounds that it was unduly suggestive. Mr. Perez's mug shot in a photo array was much darker than all the other photographs. The trial court agreed that the identification procedure was unduly suggestinve but, apllying Neil v. Biggers, 409 U.S. 188 (1972), held that the identification was nonetheless reliable because, in part, the witness was certain and had an adequate opportunity to view the defendant. The witness making the identification had been spared the death penalty in exchange for his testimony.

Biggers established a five-part test for assessing reliability of identifications. One factor requires a court to assess a witness' certainty in making an identification.

On appeal, the United States Court of Appeals for the Second Circuit noted it lacked the authority to overturn Biggers, all but inviting a run at certiorari. Diane Polan, co-counsel at trial and appellate counsel in the Perez case, wrote to the Innocence Project and asked them to take the petition. It did so.

The petition was prepared by Mayer, Brown, Rowe & Maw, LLP. Although the petition notes no split in the circuits justifying certiorari, it does note that the state courts are distancing themselves from Biggers in the wake of scientific evidence that eyewitness evidence is not always reliable.  The Utah Supreme Court has held that Biggers is insufficient to guarantee due process under the Utah constitution. State v. Ramirez, 817 P.2d 774 (Utah 1991). Massachusetts has adopted a per se rule excluding suggestive identifications. Commonwealth v. Johnson, 650 N.E. 1257 (Mass. 1995). Wisconsin recently distanced itself from the Biggers in State v. Dubose, 699 N.W.2d 582 (Wis. 2005). Both Georgia and Connecticut have recently changed jury instructions to avoid the placing too much weight on eyewitness identification. Brodes v. State, 614 S.E. 776 (Ga. 2005); State v. Ledbetter, 275 Conn. 534 (Ct. 2005).

Evidence about the unreliability of eyewitness identification is persuasive. The use of DNA has led to the exoneration of dozens of defendants, some of them formerly on death row, whose convictions relied in whole or in part on eyewitness identifications. I hope the Perez case will serve as the occasion for the Supreme Court to revisit Biggers. The growing gap in our law between state Supreme Court holdings and federal Supreme Court holdings on this topic could well yield the most unseemly of forum shopping: got a shaky identification as a matter of state constitutional law? Fine, then cook up a federal offense -- stretch the commerce clause once again until it snaps -- so that federal law will yield a greater likelihood of conviction.

Cleaning up Biggers would avoid that problem.

Why the Supreme Court Should Grant Cert. in Johnson v. Meadows

At its Nov. 23rd conference, the Supreme Court will decide whether to grant certiorari in Johnson v. Meadows, No. 05-6336.  [UPDATE: On November 14th, the Supreme Court granted cert. in a similar case - Woodford v. Ngo, No. 05-416; my collected Woodford-related posts are available here.]   At issue in Meadows is whether the Prison Litigation Reform Act, which requires prisoners to exhaust administrative remedies before bringing a Section 1983 action against prison officials, also contains a procedural default component.  There are three good reasons for the Court to review the case.

There is a circuit split.  The Supreme Court has becoming increasingly interested in resolving circuit splits.  There is a clear circuit split on this issue. Johnson v. Meadows, which held that the PLRA does contain a procedural default component, differs from the Sixth's and Ninth Circuit's approaches.  (It's worth noting that Judge Alex Kozinski joined the Ninth Circuit panel's decision in Ngo v. Woodford (here), which held the PLRA does not contain a procedural default component.)

The issue is of national importance.  Section 1983 actions arising out of prison conditions number in the tens of thousands.  According to this 1994 report from the Department of Justice's Office of Legal Policy: "[T]here is approximately one lawsuit for every thirty state prison inmates ...."  The importance of procedural issues touching Section 1983 litigation cannot be overstated.

The case will be well-argued.  Many Section 1983 cases reach the Court by accident, and they are argued by people lacking subject-matter fluency.  Steve Dillard is representing the petitioner in this case.  The prisoner will be ably represented, and all arguments supporting the prisoner will be presented.

Moreover (and this goes to the merits as much as to the cert.-worthiness), by reading into the PLRA a procedural default component, the circuits are creating different standards for every prison, and also frustrating Congress' goal that civil rights claims, though they must be exhausted, should also be heard.  In the Johnson case, e.g., the prisoner only had 5 days to give prison officials notice that his rights had been violated.  This has two unfortunate effects. 

First, it imposes a de facto 5-day statute of limitations on prisoner civil rights claims, even though under 42 U.S.C. Section 1988, the statute of limitations for civil rights actions is supposed to mirror the state's general personal injury statute of limitations.  In Georgia, the relevant statute of limitations should have been two years.  Under the Eleventh Circuit's reading of the PLRA, the statute of limitations for prison civil rights suit is 5 days. This disparate treatment of regular civil rights suits vs. prisoner civil rights suit is intolerable, and it is not required or even suggested by the PLRA's text, history, or structure.

Second, the Eleventh Circuit's reading of the PLRA allows potentially different limitations periods in every prison.  Federal law, to the extent possible, should be uniform.  By allowing each prison to set a different exhaustion deadline, there could potentially be as much disconformity as there are prisons.

Johnson v. Meadows is of important practice significance.  The Supreme Court should grant cert. to resolve the circuit split, and then it should reverse the judgment of the Eleventh Circuit.

Prediction

This is an easy one, but hey, I gotta grab 'em when I can.  I predict that at the Court's conference tommorrow, the Court will GVR U.S. v. Maxwell (the Commerce Clause/child p*rn case).  Cert. petition here; reply brief here; docket entry here.

Objective Test to Govern Private-Plaintiff First Amendment Retaliation Claims

Interesting free speech case today from the Eleventh Circuit:

Plaintiffs Danny M. Bennett and Danny L. Reid filed a complaint alleging that Dennis L. Hendrix, former Sheriff of Forsyth County, Georgia and Earl A. Singletary and David W. Waters, deputies who served under Hendrix, violated their civil rights. Plaintiffs alleged that these officers carried out a campaign of police harassment and retaliation after plaintiffs supported a county referendum opposed by the sheriff.
***
Taken in the light most favorable to the plaintiffs, the record is replete with instances where the defendants followed, pulled over, cited, intimidated, or otherwise harassed the plaintiffs. The defendants allegedly accessed confidential government databases containing information on the plaintiffs, attempted to obtain arrest warrants against the plaintiffs without probable cause, and produced and mailed to Forsyth County residents flyers depicting the plaintiffs as criminals terrorizing the county.

The issue was this: Even if the sherrif's acts would not have prevented the plaintiffs from exercising their First Amendment rights, could the plaintiffs nonetheless state a First Amendment retaliation claim?  Answer:  "[T]oday we expressly adopt the following standard: A plaintiff suffers adverse action if the defendant’s allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights."  There's an interesting discussion of the circuit split worth reading.  Also, given the wide circuit split, I'm filing this under "Cert. Watch."

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.