Crime & Federalism

So said Judge Posner in Riley v. Blagoevich, No. 04-3085.  There's a nifty chart on pages 3 and 4 of the slip that I encourage free speech wonks to read.

    * Roger Whitmore's Auto v. Del Re (RICO and section 1983 claims).  This is one of the most interesting cases I've read all year.  Consider it a C&F's must-read case of the year.
    * Racine Charter One v. Racine Unified School Dist (alleging equal protection violation where busing service is provided for some, but not all, charter schools).

Today a unanimous three-judge panel of the Seventh Circuit handed down an important class-of-one opinion, Lauth v. McCollum, No. 04-3782.  Under the Equal Protection Clause, no person can be denied equal protection of the laws.  Generally, the Equal Protection Clause only applies where a person can show that he is a) part of a protected class, and b) is being discriminated against because of his class membership.  A couple of years ago the Supreme Court held that a person not belonging to a protected class could sue under the Equal Protection Clause if a government actor treated him irrationally and differently.  The person being mistreated belongs to a "class of one." In other words, under the "class of one" theory, it violates the Equal Protection Clause for a government actor to treat you differently than others similarly situated, just because the government official doesn't like you.

Let's say "George" wants to build a deck.  His permit application is denied because someone at city hall hates his guts, but George's neighbor's permit application is granted.  George can sue under a class-of-one theory since he has been treated differently from others similarly situated (in this case, homeowners), and because his disparate treatment was irrational.

At issue in Lauth was whether an employee can sue under a class of one Equal Protection theory.  The panel virtually eliminated class-of-one cases brought by government employees.  It's a short opinion, so click here to read the panel's reasoning.

In affirming a 1983/SDP jury verdict in favor of a pretrial detainee, the panel recounts these facts:

[I]nmates on three-day rotation were subjected to as many as five in-cell strip searches each day. The process required the inmate to manipulate several unclean areas of his body in order to show officers that those areas did not conceal contraband. The inmate then had to place his fingers in his mouth for the same purpose. The evidence indicated that the strip searchers often orchestrated these steps so that an inmate would have to manipulate his armpits, groin, and buttocks before manipulating his cheeks and tongue. Because of the in-cell water restrictions, an inmate ordinarily could not wash his hands prior to such a search. Not infrequently, a strip-searched inmate would have to eat his meals with the same unclean hands.

Surprenant v. Rivas, No. 04-2285 slip op. at 5 (1st Cir. Sept. 9, 2005) (Thanks S.Cotus).

"In sum, a reasonable officer would not believe that a parolee’s consent to submit to search on demand eliminates the need to make such a demand, absent an exigency or demonstrated futility."  Green v. Butler, No. 04-2993, slip op. at 17 (7th Cir. Aug. 24, 2005).  In Butler, agents went to search a parolee's residence.  The parolee was renting from friends, though, and thus when the police barged into the house without knocking or announcing, the family sued.  The language in the case is much broader, though, and provides not just that someone with an expectation of privacy in his home be given notice before police officers barge in, but that parolees (who have no expectation of privacy) must also be warned before the police enter.

In explaining the importance of the knock and announce rule, Judge Ripple wrote:

More importantly, the entry alleged presented significant dangers for the officers, who, in entering unannounced, exposed themselves to the risk that an occupant would mistake their entry for an invasion and reasonably would take defensive measures to protect himself from the perceived, though mistaken, threat.

In the same vein, observance of the knock and announce rule is a significant safeguard to the occupants of the home, including innocent third parties for whom the surprise of an unannounced entry by law enforcement officers might elicit panic or other forms of irrational conduct—action that easily can be misapprehended by law enforcement officers and result in deadly defensive measures on their part. Specific to the facts of this case, notice of impending entry might have given the occupants a chance to control the dog, reducing the risk to the agents of an accidental attack or of the need to “shoot” the animal.  [Fortunately, their beloved family dog wasn't shot.]

That's exactly right.  Imagine if the homeowner's had thought the plain clothes officers had been burglars?  Someone might have been killed.  The knock and announce rule should be required to keep everyone safe.  That is, a search can't be reasonable absent knock and announce.

As an aside, the opinion is somewhat amusing given this introduction:

The named Illinois parole agents ... entered the residence to search Belter, prompting Mr. Green and Ms. Poulsen to file this § 1983 action for violations of their rights under the Fourth Amendment.

Section 1983 actions are apparently so common that courts needn't bother with a full citation. 

Departing from the Seventh Circuit's approach - which I covered here - today the Eighth Circuit held that non-custodial parents have a liberty interest in the care and upbrining of their children under two theories.  First, they have a liberty interest under the Yoder line of cases; second, they have one where state law affords visitation.  Here's the money languge:

The due process clause of the fourteenth amendment says, in relevant part, that no state shall "deprive any person of ... liberty ... without due process of law." U.S. Const. amend. XIV, § 1. To establish a procedural due process violation under this provision, a plaintiff must first show that the state infringed on a cognizable liberty interest. Cf. Clark v. Kansas City Mo. Sch. Dist., 375 F.3d 698, 701 (8th Cir. 2004). As a general matter, parents have a liberty interest in the "care, custody, and management of their children." Manzano v. South Dakota Dep't of Soc. Svcs., 60 F.3d 505, 509-10 (8th Cir. 1995). That said, in the past we have hedged on the question of whether non-custodial parents possess such an interest, and we have noted that the interest is subject to a de minimis exception: "Although we have recognized the possibility that visitation and placement decisions may be subject to due process scrutiny, as such decisions may infringe upon a parent's interest in the 'care, custody, and management of [his or her] child,' we have not yet found a case where the right to visitation was infringed in a manner that rose to the level of a constitutional violation."

Deputy Kofka draws on both strands of this statement from Zakrzewski. He contends that the Constitution did not protect Mr. Swipies's right to visit his daughter and that even if Mr. Swipies had a cognizable right to visitation, any infringement was so brief as not to be actionable. ...

We reject Deputy Kofka's initial argument and conclude that Mr. Swipies had a protected liberty interest. Though in Zakrzewski we did not rule on the question of whether a non-custodial parent has a liberty interest in the care, custody, and management of his or her child, we held in an earlier appeal in this case that Mr. Swipies possessed such an interest. Swipies v. Kofka, 348 F.3d 701, 703-04 (8th Cir. 2003). We are bound to follow this holding. It is not only the law of the case, see, e.g., Popp Telecom, Inc. v. American Sharecom, Inc., 361 F.3d 482, 490 (8th Cir. 2004), but the law of the circuit, i.e., a decision of another panel which only the court en banc may overturn, see United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005).

Even if our decision were not controlled by our previous holding, we would reach the same conclusion. If a state court affords a non-custodial parent visitation rights, we believe that the parent possesses, at least in some form, the liberty interest recognized in Manzano. A parent with visitation rights takes part in raising the child by making decisions about care, custody, and management during the period of the visitation, and thus he or she has the sort of parental role that deserves to be protected as a liberty interest.

Swipies v. Kofka, No. 04-3244, slip op. at 3-5 (8th Cir. Aug. 12, 2005). You can read the opinion here.

For a city to be liable under Sec. 1983, it must be deliberately indifferent to a citizens' constitutional rights.  In other words, the city must not care about your rights.  When a city hires someone with an assault and battery conviction to be a police officer, is the city deliberately indifferent to your constitutional rights?

That issue arouse in Crete v. City of Lowell: there, a unanimous three judge panel of the First Circuit held that it did not.* Here's what happened:

Steve Ciavola was hired as a police officer with the City in the fall of 1995. In March 1999, Ciavola arrested Crete and Ciavola filed for bankruptcy and the claims against him were stayed. The excessive use of force by Ciavola was part of the claim against the City for negligent hiring, and this evidence was heard by the jury. The plaintiff voluntarily dismissed the claims against Ciavola after this trial. during the course of the arrest Ciavola "threw [Crete] down onto the pavement" and "pushed [his] head onto the sidewalk three or more times." Crete alleged that he never "threatened or physically resisted" Ciavola in any way, so as to justify Ciavola's response.

Slip op. at 2-3.  The court held that although Ciavola had an assault and battery conviction, the city would not be held liable.

In this case, the City's hiring decision was itself legal, and the City did not authorize Ciavola to use excessive force. The process used to investigate the background of Ciavola was reasonable: it revealed the past conduct which Crete asserts links the hiring of Ciavola with his use of excessive force. The department made its hiring decision with knowledge of Ciavola's background and assurances from Ciavola's probation officer that Ciavola would "make an excellent police officer" despite his assault and battery conviction. But "[e]ven when an applicant's background contains complaints of physical violence, including acts of aggression and assault, this may still be insufficient to make a City liable for inadequate screening of an officer who then uses excessive force." And such is the case here: Crete simply cannot meet his heavy burden. There was insufficient evidence on which a jury could base a finding that a "plainly obvious consequence" of the City's decision to hire Ciavola was the violation of Crete's constitutional rights. 

Id. at 26-27.  This is a tough case for me.  One one hand, it's important that cities hire people unlikely to violate citizens' rights.  Police officers should be intelligent, responsible, law-abiding people. Here, Ciavola pled guilty to misdemanor assault. 

On the other hand, this is a pretty minor offense.  Indeed, I've seen lots of people charged with bogus assault counts.  An assault conviction is nothing close to a scarlet letter.

* The First Circuit applies a heightened (and incorrect) standard that is overly charitable to cities.  In the First Circuit, a city can be liable under 1983 for the acts of its employees only if a civil rights violation is a "plainly obvious consequence" of the city's decision.

This appeal arises from two consolidated actions filed by nonimmigrant aliens whose status, according to Louisiana Supreme Court Rule XVII, § 3(B), renders them ineligible to sit for the Louisiana Bar. The district courts disagreed whether the Louisiana rule impermissibly discriminates against the plaintiffs in violation of the Equal Protection Clause. Because the level of constitutional protection afforded nonimmigrant aliens is different from that possessed by permanent resident aliens, we hold that the Louisiana rule survives rational basis review.

Wallace vs. Calogero, No. 03-30752 (5th Cir. Aug. 1, 2005).

I'll have more to say after work.  Until then, here's the money quote:

We are persuaded that, for the purposes of overcoming qualified immunity, Stidham has properly demonstrated the violation of a clearly established right by showing that the defendants deprived him of his liberty interest without due process of law. The Supreme Court has said that “the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure.” Truax v. Raich, 239 U.S. 33, 41 (1915). We have confirmed the principle that one has a constitutionally protected liberty interest in pursuing a chosen occupation. See Ferrell v. Dallas Independent School District, 392 F.2d 697, 707 (5th Cir. 1968) (noting that the right of professional musicians to follow their chosen occupation free from unreasonable governmental interference comes within the liberty concept of the Fifth Amendment); Shaw v. Hospital Authority, 507 F.2d 625, 628 (5th Cir. 1975) (holding that a podiatrist's application for staff privileges at a public hospital for purposes of engaging in his occupation as a podiatrist involved a liberty interest protected by the Fourteenth Amendment); San Jacinto Savings & Loan v. Kacal, 928 F.2d 627, 704 (5th Cir. 1991) (finding that the owner of an arcade had a protectible liberty interest in operating her business). Thus we find that Stidham has identified a protectible liberty interest in pursuing an occupation of his choice.

Stidham v. Texas on Private Security, No. 04-50775, Slip op. at 11-12 (5th Cir., July 22, 2005) (Hat tip: Southern Appeal).

If you're a drug dealer with a federal agent pointing his gun at you and your stopped car, don't start driving your car towards the agent.  You will get shot.  And even suckers like me won't have any sympathy.  See Robinson v. Arrugueta, No. 04-10856 (11th Cir. July 7, 2005).

However, Robinson also indicates that the law of excessive force is moving in a dangerous direction.  In Brosseau v. Haugen, 125 S.Ct. 597 (2004), the Supreme Court suggested that a car might be a deadly weapon.  In Robinson, the Eleventh Circuit (though looking to state law) held that a car was a deadly weapon.  One implication of this holding is that a police officer can use deadly force every time a person flees via car.  As I blogged in March:

A jury can't kill you unless your guilt is proved beyond a reasonable doubt.  But a police officer - whom we can't burden by requiring him to know the law, see Devenpeck - can kill you based on probable cause.  The Court's technical holding was that a "reasonable officer" would not have known that shooting someone in the back - instead of, say, shooting the tire out - as he's sitting in his car was excessive force. 

Granted, if the guy in Haugen was going to harm a child, I'd rather see him stopped quickly.  But I also don't sanction summary executions, which is what an on-the-street shooting is.  The Court should have required a bit more quantum of proof that the suspect was really dangerous instead of giving officers a blank check to open fire.

Certainly, we would not object to a police officer's shooting someone speeding through a school zone.  But given the way qualified immunity doctrine evolves, a few more people who present no harm to anyone will be shot, and a few police officers will escape liability, before this question, "When can you kill a fleeing motorist?" is answered.  The problem with qualified immunity is that it encourages police officers to cross the line separating lawful from unlawful conduct.  Which sometimes means, the line between life and death.