Recently in Civil Suits Category

Zoe Tillman has this post at BLT:

Yorie Von Kahl was convicted of second degree murder in the 1983 fatal shooting of two deputy U.S. marshals in North Dakota. Kahl was sentenced to life in prison, but he scored a recent win from a Washington federal judge who found that Kahl could proceed with a libel suit against The Bureau of National Affairs, Inc. (BNA) over a summary of his case published by the company.

BNA's summary of the case said Kahl "showed no hint of contrition."  That turned out to be a prosecutor's argument rather than the judge's ruling, but Kahl himself may be partly responsible for the confusion.

The US Supreme Court decided one law-enforcement related civil case today.  In Millbrook v. United States, No. 11-10362, the high court held that a suit by a federal prisoner against the government for an alleged sexual assault by correctional officers can go forward under the Federal Tort Claims Act.  It comes within an exception to an exception to the FTCA's exception to sovereign immunity, if you pick your way through the statutes.

Justice Thomas wrote the opinion for a unanimous court.  The case was argued a little over a month ago, making this one of the more rapid decisions.

Next Monday, the D.C. Circuit will hear argument in Cook v. FDA, No. 12-5176.  In that case (formerly Beaty v. FDA), the District Court held that the FDA had acted illegally in allowing importation of sodium thiopental for executions.  The court went on to order the FDA to inform the states that use of their existing stocks of thiopental is illegal and to take steps to recover it.  In issuing the latter part of the injunction, the court was untroubled by the fact that not a single word of the briefing or the court's opinion provided a legal basis for the order.  It was also untroubled by the facts that the states with a powerful interest involved were not parties to the action, the plaintiffs had not taken any steps to make them parties, and the plaintiffs had not shown any reason for an exception to the general rule against adjudicating the rights of nonparties in their absence.

In the Court of Appeals, CJLF appeared as amicus pointing out these problems.  The nonparty problem is the subject of Federal Rule of Civil Procedure 19.  The plaintiffs largely ignored the brief, just dropping one footnote about the general rule of not considering issues raised only by amici.  That rule has exceptions that the plaintiffs simply ignored.  Some issues must be considered whether a party raises them or not.  Subject matter jurisdiction is one, and Rule 19 is another.

Today the court issued the following order:

It is ORDERED, on the court's own motion, that the parties be prepared to address at oral argument on March 25, 2013, (1) the standing of the appellees to bring this case, with particular reference to the requirement of redressability; and the (2) Federal Rule of Civil Procedure 19 and remedial issues raised in the brief of the amicus curiae Criminal Justice Legal Foundation.

A prior post with links to multiple earlier posts on this case is here.  CJLF's summary of argument and a link to the full brief are in this post.

As noted this morning, the US Supreme Court took up one civil case for full briefing and argument, Walden v. Fiore, 12-574.  The case is a Bivens action against a DEA agent.  The specific issue before the Court is the jurisdiction of a federal court in Nevada over a Georgia officer for events happening in Georgia.  The only connection to Nevada is the officers' knowledge that the plaintiffs lived there. The plaintiffs were professional gamblers traveling with a large stash of cash.  The Ninth Circuit majority opinion concludes:

Zoe Tillman has this post at BLT on something I would like to see more often -- attorneys' fees paid by the plaintiff to a prevailing defendant in a civil case.  This case is not crime-related (it is ASPCA against Barnum & Bailey), but issues of attorneys' fee awards often come up in suits against law enforcement officers and agencies.

A follow up to Bill's post -- Michael Mayko reports in the Stamford Advocate:

Just days after filing a $100 million lawsuit claiming the state failed to adequately protect the students at Sandy Hook Elementary School, a New Haven lawyer has withdrawn it.

But that doesn't preclude a future filing, Irving Pinsky said.

"I received new evidence on security at the school, which I need to evaluate," Pinsky said Monday.

Once that happens, Pinsky said he may re-submit the paperwork to J. Paul Vance Jr., who as the state's claims commissioner has the authority to determine if a claim is justified and requires hearings. Vance must approve any claim before a state agency can be sued.

CJLF has filed an amicus brief in the D.C. Circuit in the case of Cook v. FDA.  This is the case where convicted murderers got an injunction against the FDA allowing any more imports of thiopental, and the judge also order the FDA to "notify" the states that their continued possession and use of the previously imported thiopental is illegal.  The latter holding is remarkable in that it was issued without a single sentence in the opinion to support it and in a case where the entities most affected were not parties.  The Summary of Argument is after the jump.

The Ninth Circuit decided an interesting case today of a card counter versus a casino, Tsao v. Desert Palace, No. 09-16233.

The case does not (and does not need to) resolve whether counting cards in blackjack is a crime.  A casino can, however, declare a person persona non grata, after which that person's entry into the casino is a trespass.  [I got thrown out of a casino on that ground once myself, many years ago.]  The case actually involves the options available to casino security guards, who are not police officers but do have a kind of citation authority, along with citizen's arrest.  It's complicated.  Anyhow, the Ninth resolves the federal questions in favor of the casino and remands to district court to decide if it still wants to exercise pendent jurisdiction over the state-law claims.

Generally, the United States has sovereign immunity from civil lawsuits.  Congress has made exceptions, most notably in the Federal Tort Claims Act.  In Millbrook v. United States, No. 11-10362, a federal prisoner claims he was sexually assaulted by prison guards. The Third Circuit held:

Millbrook contends that the defendant is liable under the FTCA for the alleged assault on March 5, 2010. Under 28 U.S.C. § 2680(h), the United States is generally not liable for intentional torts of its employees except for certain intentional torts committed by investigative or law enforcement officers. See 28 U.S.C. § 2680. We have limited claims that arise under § 2680(h) to cases in which an intentional tort is committed by a law enforcement or investigative officer while executing a search, seizing evidence, or making arrests for violations of federal law. Pooler, 787 F.2d at 872. Defendant argued that because the alleged assault did not arise out of conduct during an arrest, search, or seizure, Millbrook's tort claim is not cognizable.

The Third Circuit agreed that the defendant (the government) was correct.  "Thus, we agree with the District Court that while the alleged conduct is troubling, Millbrook has not shown that he is entitled to relief under the FTCA."  (He can sue the guards, but Uncle Sam has a vastly deeper pocket.)

The Supreme Court granted certiorari today.  The Court stated the Question Presented in its order: "Whether 28 U.S.C. §§1346(b) and 2680(h) waive the sovereign immunity of the United States for the intentional torts of prison guards when they are acting within the scope of their employment but are not exercising authority to 'execute searches, to seize evidence, or to make arrests for violations of Federal law.' "

If the QP sounds a little odd, it's an odd statute:

There are several doctrines related to criminal law in which the decision turns not on a federal court's opinion on a point of law as such but rather how clearly that point was established at the time someone else had to make a "judgment call."  Among these are the retroactivity rule of Teague v. Lane, the qualified immunity rule for civil suits against law enforcement officers, and the so-called deference rule for federal habeas review of points decided on the merits in state court, 28 U.S.C. §2254(d).

Do you need Supreme Court precedent to establish a rule with sufficient clarity, or will on-point circuit precedent do?  For §2254(d) there is no doubt.  Congress explicitly said Supreme Court precedent.  For the other two judge-made rules, however, the issue remains unresolved.

In Reichle v. Howards, the Supreme Court today decided one subsidiary question.  Howards claimed that an arrest by Secret Service agents was actionable, despite probable cause, because it was in retaliation for his exercise of First Amendment rights.  He had on-point precedent of the Tenth Circuit (the circuit the case was in) for that proposition.  Easy case, right?

The Supreme Court today decided Filarsky v. Delia:

Section 1983 provides a cause of action against state actors who violate an individual's rights under federal law. 42 U. S. C. §1983. At common law, those who carried out the work of government enjoyed various protections from liability when doing so, in order to allow them to serve the government without undue fear of personal exposure. Our decisions have looked to these common law protections in affording either absolute or qualified immunity to individuals sued under §1983. The question in this case is whether an individual hired by the government to do its work is prohibited from seeking such immunity, solely be- cause he works for the government on something other than a permanent or full-time basis.

As you might guess from the phrasing of the question, the answer is no.  The temporary or part-time government actor gets the same immunity, the Court held unanimously.  Filarsky arises out of civil litigation, but its rationale would extend to an attorney who acts as a prosecutor on a less-than-full-time basis.

The US Supreme Court decided three cases today, one of which is a crime-related civil suit, Messerschmidt v. Millender.  This decision confirms that getting a search warrant provides a police officer with strong protection against civil liability if the search is later deemed unreasonable.  The protection is not absolute.  The Court has "recognized an exception allowing suit when 'it is obvious that no reasonably competent officer would have concluded that a warrant should issue.' ... Our precedents make clear, however, that the threshold for establishing this exception is a high one, and it should be."  The decision is 6-1-2.  Opinion of the Court by Chief Justice Roberts with Justice Kagan concurring in part and dissenting in part and Justices Sotomayor and Ginsburg dissenting.

The Notorious Ninth gets another unanimous summary reversal today in Ryburn v. Huff.  The case involves police entry into a home under circumstances they believed to be exigent and qualified immunity in a subsequent civil suit.

(My summaries of this morning's cases are necessarily brief.  I may expand on them later today.  Further discussion in the comments is welcome, as always.)

In 1971, the Supreme Court created a constitutional tort remedy against federal agents who violate constitutional rights in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 389.  Subsequent cases created qualified immunity for actions where the legality of the agent's actions were fairly debatable at the time.

How about federal prisons operated by private contractors?  No need to expand Bivens, the Court said today in Minneci v. Pollard, No. 10-1104.  Just sue the privately employed guards in a state tort action like you would any other employee of a private business who violates your rights. 

For one thing, the potential existence of an adequate "alternative, existing process" differs dramatically in the two sets of cases. Prisoners ordinarily cannot bring state law tort actions against employees of the Federal Government....  But prisoners ordinarily can bring state-law tort actions against employees of a private firm.

The discussion makes clear that the Court is going to be very reluctant to expand Bivens into any new territory.  Bivens won't be expanded if there is another remedy, and maybe not even then.

Justices Scalia and Thomas concur.  They go further and say that "Bivens and its two follow-on cases" should be limited "to the precise circumstances that they involved."  Justice Ginsburg dissents alone.

Off-topic but interesting, Adam Liptak has this story in the NYT about an Eighth Circuit decision saying a discrimination suit against U. Iowa College of Law must go to trial.