Crime & Federalism

To state a procedural due process claim, the plaintiff must prove not simply that some government act injured her reputation; she must also prove she suffered some additional harm.  This is know as the "stima plus" requirement.  In Neil v. Fields, No. 04-3743 (8th Cir. Dec. 1, 2005), a nurse sued after her state's nurse-licensing board disclosed to a prospective employer that the nurse was under investigation for misconduct.  After learning about the pending investigation (but without having learned about the nature of the allegations), the hospital refused to hire the nurse.  The nurse sued the state licensing director under Section 1983, alleging a stigma-plus claim.  A unanimous three-judge panel rejected the nurse's claim, and in the process, created a high hurdle for Section 1983 litigants to meet:

Injury to reputation alone is not a liberty interest protected under the Fourteenth Amendment.  Accordingly, we have limited this claim to cases in which a public employer terminated an employee and published reasons for the discharge that seriously damaged the employee’s standing in the community or foreclosed other employment opportunities.  We further limit this claim to government accusations "so damaging as to make it difficult or impossible for the employee to escape the stigma of those charges." [E.g., where the state makes allegations of "dishonesty, immorality, criminality, racism, and the like."]  Here, Neal is not a terminated public employee, nor has she suffered the arguably analogous injury of license revocation. The Board has disclosed only the fact of an investigation, not the allegations being investigated (whether sufficiently stigmatizing or not). Thus, the complaint fails to state a procedural due process liberty interest claim as a matter of law.

Slio op. at 4-5 (citations omitted).

A bail bondsman's property interest in his license is not deprived under the Fourteenth Amendment when a judge sets a cash bond and disallows a surety bond.  Smith v. City of Hammond, No. 04-1260 (7th Cir., Nov. 3, 2004).

Wrote Judge Posner (for Flaum and Rovner, J.J.):

A provider of services to a court has no standing to challenge judicial rulings that reduce the demand for his services and hence his income. He is injured but he is not within the protected class. If a judge who is “soft” on crime releases arrested persons on their own recognizance, a bail bondsman cannot challenge the judge’s ruling on the ground that it will reduce the bondsman’s business. Manufacturers of shackles cannot sue when a judge decides that criminal defendants shall not be shackled in his courtroom. Smith could not sue the prosecutor for not bringing enough charges for violent crime (the sort that lead to surety bonds), or for charging too many poor defendants on the theory that the public fisc does not pay as handsomely as solvent defendants do. When the Federal Reserve juices up the economy, pawnbrokers cannot head to court to stop the undermining of their livelihoods.

As if this weren’t enough to demonstrate the frivolous nature of this suit, Smith is claiming a violation of the Fourteenth Amendment, which requires that he show an entitlement that can be characterized as property or liberty to issue surety bonds, and we saw earlier that he cannot show that.