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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.

Woe is I

The Eleventh Circuit handed down three extremely interesting civil rights cases today, and I'm too busy to read them.  I have two small scholarly-type projects to finish for tomorrow, a memo on a complicated point of administrative law due today, and a motion to dismiss one count of murder and thirty counts of perjury due "sooner rather than later."  The MTD is one we should actually win, i.e., we're not filing it just to preserve error, so it really has to rock.  Here are the cases.  Feel free to summarize them in the comments.
    * Behrens v. Regier (no due process right to not have name included in child abuse database)
    * Bozem v. Orum (excessive force in jail)
    * Hicks v. Moore (blanket jail strip searches)

Important Rape Shield Case

Today the Ninth Circuit issued an important rape shield case:

Defendant-Appellant Jeff Fowler was convicted of annoying or molesting Charla Lara in violation of California Penal Code § 647.6 following a jury trial in which he was precluded from cross-examining Lara regarding two prior incidents in which she alleged that other men had molested her. We conclude that the proffered cross-examination sufficiently bore upon Lara’s reliability or credibility such that the jury might reasonably have questioned it and, thus, that the crossexamination implicated Fowler’s Sixth Amendment right to confrontation.

Fowler v. Sacramento County (CA9 8.31.05)

Is Batson Gay?

Does Batson v. Kentucky prohibit discrimination against homosexuals?

Although the California Supreme Court has held sexual orientation should be a protected class for jury selection purposes, see People v. Garcia, 92 Cal. Rptr. 2d 339, 347-48 (2000), and the Ninth Circuit has assumed, without deciding, sexual orientation qualifies as a Batson classification, Johnson v. Campbell, 92 F.3d 951, 953 (9th Cir. 1996), neither the United States Supreme Court nor this circuit has so held.

While we seriously doubt Batson and its progeny extend federal constitutional protection to a venire panel member’s sexual orientation, our review of the trial record persuades us that even if Ehrmann made a prima facie case of purposeful discrimination, his Batson objection fails because the government offered legitimate, nondiscriminatory reasons for striking the panel member. The prosecutor told the district court he questioned the suitability of this panel member even before learning of the panel member’s sexual orientation. The prosecutor was concerned about the panel member’s liberal education and background, his livelihood as a musician, and his being a potential loner. Ehrmann offered no evidence to show the government’s proffered reasons were pretextual. Accordingly, we find no clear error in the district court’s denial of Ehrmann’s Batson challenge.

U.S. v. Ehrmann (CA8 8.32.05)

Continue reading "Is Batson Gay?" »

Katrina Relief Efforts

Orin Kerr is looking for people to match him dollar-for-dollar in donations for the Katrina relief efforts.  He's willing to give from $200 to $1,000 - the amount will vary based on the number of people willing to match him.  Since a lot of people can't afford to give $1,000, he has suggested that people form groups.  This way, by formating a group of ten, you'd only have to commit to donating from $20 to $100.  Anyhow, I'll commit to being part of a group of ten.  So if you want to form a group, just let me know.  Here's the details.

Are Politics Killing Civil Rights?

William R. Yeomans, a 25-year veteran of the Department of Justice's Civil Rights Division has an interesting article in Legal Affairs.  His thesis: "Political appointees to the Justice Department's civil rights division are driving career lawyers to retirement []."  The Civil Rights Division of the Department of Justice enforces federal civil rights laws against the states - both criminally and civilly.  They were the ones who led the prosecution of Rodney King's attackers.  And they frequently sue states to ensure compliance with federal laws such at the ADA and Voting Rights Act. I don't know enough about the history of Civil Rights to have an opinion, but his article is provocative and timely.  Do check it out.

Cyberlaw and Computer Crime

Orin Kerr is blogging at Balkinization about cyberlaw and computer crime.  His first two posts are interesting:

A Brief History of Cyberlaw
The Case for a New Computer Crime Law

I hope Kerr covers "Sentencing in Computer Crime Cases."  Will sentences in computer crime cases resemble white collar sentences?  I worked on one computer crime case (can't go into details) where the defendant was looking at 20-years based on (in my biased opinion) ridiculous loss calculations.  E.g., if I hack into your computer, what is your "loss"?  What is the harm to you, other than the psychic damages resulting from the realization that your computer isn't safe?  Should someone serve a 20-year sentence for hacking into a computer system, even if they don't cause any tangible harm?  In the computer context, what exactly is a "harm"? 

Another issue is "Effective Assistance of Counsel in Computer Crime Cases."  In the case I worked on, the defendant was convicted because his trial lawyer didn't understand the technology, and thus, did not assert an obvious defense.  Can lawyers without a sophisticated understanding of computers be able to render effective assistance of counsel?  Given that most lawyers don't even know what a blog is, I feel for the first batch of computer crime defendants.