Crime & Federalism

I've done the research, and these are impossible cases to win.  I don't blame the plaintiff for trying:

An Englewood woman who was inside the Baskin-Robbins ice cream shop in Aurora when an illegal immigrant allegedly caused an accident that killed three people has filed a nearly $1.9 million claim against the city of Denver.

Margaret Rains, who was injured in the Sept. 4 crash, alleges that the city shares the blame because Denver police had arrested Francis Hernandez several times before the accident but failed to enforce immigration laws.

Hernandez is accused of driving an SUV that broadsided a Mazda pickup truck at nearly 80 mph, sending both vehicles crashing into the ice cream shop on South Havana Street.

...

Several law enforcement agencies, not just Denver, had arrested Hernandez nearly 20 times altogether in the five years before the accident. But Hernandez, who was born in Guatemala and entered the U.S. illegally in 1991 at age 5, was never deported.

Some will attack the plaintiff for filing a frivolous lawsuit.  Nonsense.  Denver needs to take responsibility for its actions and inaction. 

Denver let a criminal roam free, and thus should be responsible for what that criminal did.  You cannot let a lion roam the street, and then proclaim yourself blameless when the lion bites someone!

Government officials, at least so far as the federal Constitution is concerned, are under no duty to protect you unless you've been detained, or unless they've placed you in danger.  A police officer could, with impunity, watch someone beat you to death.  The thinking is that the police officer did not place you in danger of death, and therefore he didn't cause your death. 

If, however, the police officer pulled over a car you were a passenger in, arrested the driver of the car, and had the car impounded, the police officer would be responsible for helping you arrive home safely.  After all, you were safe while in the car, but you are not safe now that the car had been impounded.  There are actual cases where police officers impounded cars and left passengers stranded in high-crime neighborhoods.

Today a 2-1 panel of the Sixth Circuit Court of Appeals, applying the above principles, reached a result that it took numerous pages to explain and defend.  Jones v. Reynolds (here).  The flaws of Jones v. Reynolds can be demonstrated with less than four sentences.  First, here's are the legally-operative facts.

A bunch of people went to watch an illegal drag race.  Police arrived. The drag race was cancelled.  The police officers told the promoters to go ahead and uncanel the drag race.  They even played some music to set the mood.  The drag race went forward as planned.  The driver of one car lost control of his car and killed a spectator.

Apply the danger-creation doctrine summarized above, two judges held that the police officers weren't liable because the police officers didn't cause the spectator to be in any more danger than she was initially in.  This is illogical, once you trace the causal chain of the spectator's death:

1.  The spectator was in the audience to watch a drag race. 
2.  The drag race was cancelled.  Therefore, at the point of cancellation, it would have been impossible for the spectator to die from the drag race because there was no longer a drag race.
3.  The police officers uncancelled the event.
4.  The woman died.

Does anyone have difficulty seeing that the police officers were part of the causal chain leading to the woman's death.  I didn't think so. This was an easy case.

Of course, it's true that the spectator has only herself to blame for dying.  She should have stayed home.  It's also surely the case that the drivers were also to blame for her death.  But it's also undeniable that the police officers, by telling the promoters to start a race that had been cancelled, also placed a role in the spectator's death.

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.

In Kennedy v. Ridgefiled, No. 04-278 (9th Cir. June 23, 2005), a split panel held liable a city under a danger creation theory of liability.  I'm not quite sure what to make of the opinion, and I need to read Castle Rock v. Gonzales.  But I'll blog more later.

Despite police promises of protection, there was no affirmative duty under the 14A to protect witness in criminal proceeding against criminal defendant.  Rivera v. Rhode Island, No. 04-1568 (1st Cir. Mar. 22, 2005).  In Rivera, a 15-year old witness to a police shooting said she was too scared to testify.  The police promised that they would protect her.  They broke that promise, and as a result, she was murdered.

This case is timely, as I've spent the past couple of days drafting a post touching these issues.  More later...

(Hat tip: Appellate Law & Practice)

Wever v. Carmen
No. 03-2976 (8th Cir., Nov. 4, 2004) (Magill, for Arnold and Murphy, J.J.)

Facts:  Wever called 911.  He was depressed and crying.  He said that he was going to kill himself.  Several police officers went to his home.  Wever lived with his mom and dad.  Wever's father arrive and tried to help the police officers calm Wever.  Wever was not doing anything illegal, but agreed to go to the hospital.

Without any apparent legal justification, the police officers decided to arrest Wever.  Wever consented on the condition that they not handcuff him.  They threw him to the ground, cuffed him, and put him the police car.  Wever said if the put him in jail, he would kill himself.

While in the car, Wever kicked out the back window.  The officers then subdued him and put him in leg chains.  Wever's mom saw the police officers start kicking Wever after he was cuffed, but the police deny this. 

After a medical examination, the nurse cleared Wever for incarceration.  The on-duty jailer was told Wever was suicidal, but nonetheless gave him a blanket.  Seventeen minutes later, Wever was found hanging from the blanket.  Wever was dead.

Issues:  In pre-trial custodial settings, the government owes an affirmative duty under the Due Process Clause to protect the detainee from harm, including self-inflicted harm.  The jailers knew that Wever said he was going to kill himself if jailed, yet they did not provide him medical treatment and they even gave him an instrumentality of suicide.  Are the jailers liable? [Ed's note: Although the issue on appeal was whether Carmen, the jailer's supervisor, was entitled to QI, we must first establish that the jailers acted unconstitutionally because, by definition, a supervisor can not be held liable under 1983 unless his subordinates violate someone's rights].

A supervisor is liable for the unconstitutional acts of his subordinates if he is has notice that they are violating the rights of others.  Carmen's jail had seen one previous suicide during the supervisor's tenure, and one during his tenure.  Is the supervisor on notice that his subordinates are violating the rights of others?

Holding: Wever's jailers violated his due process rights by not taking reasonable measures to protect him from himself, and this right was clearly established.  Carmen is liable because he was on notice that suicides had happened in his jail, but he did not train his subordinates on how to spot and prevent suicides.

Reasoning:  There is an inverse relationship between the number of events that will put a supervisor on notice of rights violations, and the severity of the rights violations.  One or two prior unconstitutional acts do not generally put a supervisor on notice (and thus subject him to liablity), but "this calculus is not rigid, and must change depending on the seriousness of the incident and its likelihood of discovery."  Id. at *9.  Thus, "[i]n some circumstances, one or two suicides may be sufficient to put a sheriff on notice that his suicide prevention training needs revision. In the present case, Wever has alleged that Carmen was placed on notice by two previous suicides, and we cannot say this is insufficient as a matter of law."  Id.

Hayes v. Faulkner County, Arkansas, No. 03-3787 (8th Cir., Oct. 29, 2004) (Benton, for Murphy and McMillian,).

A citizen is arrested and held in jail for 38-days.  He was never given a court appearance, although he requested that his jailers schedule him one, and even cited the relevant court rule putting the jailers on notice that he was required one.  Does the detainee have a cause of action under Sec. 1983/Substantive Due Process?  If so, under what circumstances are the relevant state actors liable?

A pre-appearance detainee has a claim under 1983/SDP.

First, the Due Process Clause forbids an extended detention, without a first appearance, following arrest by warrant.  *** Second, this Court considers whether the defendants' conduct offends the standards of substantive due process. Deliberate indifference to prisoner welfare may sufficiently shock the conscience to amount to a substantive due process violation. *** The third and final step in this substantive due process analysis is determining whether, in the totality of circumstances, the defendants' conduct in depriving Hayes of a constitutional right shocks the conscience.  This is a question of law. [Ed's note: Yeah, I know - How can a standard based on a judge's "conscience" be law?]

Id. at *4-6.

The County.

The County's policy was to submit the names of confinees to the court and then wait for the court to schedule a hearing. That policy attempts to delegate the responsibility of taking arrestees promptly before a court.  *** Because the County's policy here attempts to delegate the responsibility of bringing detainees to court for a first appearance and ignores the jail's authority for long-term confinement, the policy is deliberately indifferent to detainees' due process rights.

Id. at *5.

The Jailer.

Kelley helped promulgate and enforce the deliberately indifferent policy. Receiving Hayes's specific appearance grievance, Kelley made a conscious decision to do nothing. Kelley testified that he would have followed the same course of conduct even if Hayes were held for 99 days. While Hayes sat in the Center for 38 days, Kelley consciously disregarded the violation of his constitutional rights. That conscious disregard is deliberate indifference violating the standards of due process.

Id. at *5 (citation omitted).

The author of this opinion obviously knew what he or she was talking about and quickly disposed of the issues.  It is a nice refresher on the issues in a 1983 case, though.  Namely, prima facie case against individual; prima facie case against county; qualified immunity; attorneys' fees.