Recently in Civil Suits Category

A month ago, the U.S. Court of Appeals for the Eleventh Circuit revived a suit over Alabama's substitution of midazolam for pentobarbital as the first drug of its three-drug execution method.  USCA11 said that the plaintiffs had adequately pleaded the elements required by Glossip v. Gross, including the availability of an alternative.  They alleged that sodium thiopental is available, taking us full circle to the original three-drug method.  The case is Burton v. Commissioner, No. 17-11536.  Burton's is the "lead" case, but there are a total of twelve, including the case of Jeffery Borden.

But an allegation sufficient to state a cause of action and a demonstrated possibility of success on the merits sufficient for a preliminary injunction are two different things.  Thiopental is, in fact, not currently available.  Last Friday, the Eleventh Circuit decided to enjoin the execution of Borden anyway, under the All Writs Act.  Citing its own precedent, the court said that the usual requirement of a likelihood of success on the merits does not apply to the All Writs Act.

So you can stop the execution of a judgment that is already very long overdue just by alleging a "fact" that is patently false?

The Supreme Court today vacated the injunction in Dunn v. Borden, No. 17A360.  The vote was apparently 6-3:  "Justice Ginsburg, Justice Breyer, and Justice Sotomayor would deny the application to vacate the injunction."  No opinions are on the Court's website as of this writing.

Borden's execution date is tomorrow.

Short List from the Long Conference

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Today the U.S. Supreme Court announced the short list of cases it decided to take up during its end-of-summer Long Conference on Monday.  The long list of cases not taken up (meaning the lower court decision stands) will be announced when the Court opens its new term on the First Monday in October.

Criminal cases include several Fourth and Fifth Amendment claims, one on the "plain error" standard of review on appeal, and one on military commissions.
The U.S. Supreme Court issued a summer orders list today, and it includes a grant of certiorari, which is unusual for a summer list.

The case is Murphy v. Smith, 16-1067.  It involves 42 U.S.C. § 1997e(d)(2).  Section 1997e applies to civil rights suits by prisoners.  Subdivision (d)(2) reads:

Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.
The Question Presented, as framed by attorneys for the plaintiff prisoner, is:

Whether the parenthetical phrase "not to exceed 25 percent," as used in 42 U.S.C. § 1997e(d)(2), means any amount up to 25 percent (as four circuits hold), or whether it means exactly 25 percent (as the U.S. Court of Appeals for the 7th Circuit holds).

Harmonizing with Only One Note

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Ed Kozak in his Lifezette article yesterday notes that one prominent crowdfunding site turned its back on police officers targeted for murder because the lawsuit they aim to file does not promote "harmony:"

The website YouCaring, which describes itself as a company fostering "compassionate crowdfunding," has sent a loud and clear message to law enforcement officers across the country: It finds pro-police causes to be too "controversial" to host.

On Sunday the crowdfunding site removed donation pages set up by Donna Grodner, a lawyer who is suing Black Lives Matter and its leaders. Their legal action is on behalf of Baton Rouge police officers who were targeted for assassination by assailants inspired by Black Lives Matter rhetoric.

"In alignment with our mission, we removed this fundraiser because it was not within our community guidelines around promoting harmony," YouCaring chief marketing officer Maly Ly told PBS in an email. "We are not the right platform to air grievances, or engage in contentious disputes or controversial public opinion."

As you might expect, there is more to this story.




Reckless Disregard of the Truth

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Newspaper editorials are statements of opinion, but those opinions are often supported by assertions of fact.  As the saying goes, everyone is entitled to his own opinion but not his own facts.

On this blog we have often called out the New York Times editorial page for its particularly loose association with the truth.  See, e.g., this post from 2013.  NYT editorials regularly make factual assertions that seem to be pulled out of advocates' talking points.  If they do any fact-checking at all on their editorials before they print them, they are doing it exceptionally poorly.

Now Derek Hawkins reports in the WaPo that Sarah Palin has sued the NYT over false assertions of fact in an editorial.

Freezing Bivens In Place

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Can and should the federal courts invent new kinds of lawsuits, creating causes of action that Congress has not authorized?  The U.S. Supreme Court's thinking on that question has evolved over the years, and it took another step today.

Courts have been creating causes of action for a very long time.  The English courts did so before there even was a Parliament as we now know it, and these are the "common law" causes of action we learned in the first year of law school.  They created common law crimes as well.

But courts do this less than they used to, and the federal courts do less than the state courts.  Many states no longer have common law crimes; the federal courts have never been thought to have the power to create them.

During Reconstruction, Congress created a cause of action for people whose constitutional rights are violated by state and local officials, but not by federal officials.  In 1971, the Supreme Court created such a cause of action under the banner of "for every wrong there is a remedy."  That was the Bivens case, involving an alleged Fourth Amendment violation by federal agents.  In the next few years, the Court expanded Bivens a couple of times to new areas, but then it stopped.

The present Supreme Court term has two cases presenting the questions of what it means to extend Bivens to a new area and whether to do so.  One of those cases was decided today by a short-handed six-Justice Supreme Court.  If the approach of the four-Justice majority is reaffirmed in the next case, then Bivens is effectively frozen in ice.  It will exist within its current scope, but it will not be extended, and nearly any variation on existing themes will be considered an extension.
Immediately after last November's election, two lawsuits were filed by the anti-death-penalty crowd in California.  One of them, in the California Supreme Court, seeks to block the voter-approved reform measure, Proposition 66.  Briefing in that case is completed, and we are waiting with bated breath for oral argument to be set.

The second case was filed by the ACLU in Superior Court in Oakland, Alameda County.  This suit claims that the statute specifying lethal injection as the method of execution and leaving it to the Department of Corrections and Rehabilitation (CDCR) to fill in the details violates the separation of powers.  This thesis has been rejected by courts nationwide except Arkansas.  Seriously, you would have to go all the way back to 1935 and the notorious "sick chicken case" to find such a cramped view of delegation in the federal courts or any but an aberrant few state courts. 

CDCR filed a demurrer.  That's legalspeak for "even if all the facts you allege were true, you would still have no case as a matter of law."  It's a way to get rid of a bogus case at the threshold instead of going to trial.

Judge Kimberly Colwell sustained the demurrer without leave to amend.  That's legalspeak for "You're outta here and don't come back."

The early pages of the order are background and rejecting CDCR's arguments why the court should not reach the merits.  The good stuff is the merits discussion beginning on the bottom of page 8.

Nonconsensual Consent Decree

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Scott Calvert and Aruna Viswanatha report for the WSJ:

BALTIMORE--A federal judge on Friday approved a legally binding overhaul of the Baltimore Police Department to address concerns about racially biased practices, despite repeated Justice Department requests to put the brakes on the Obama-era agreement.
The decision by U.S. District Judge James Bredar means the 227-page consent decree--finalized between the city and Obama administration days before President Donald Trump took office in January--now carries the force of law and is to be implemented under the watch of an independent monitor.
The misuse of consent decrees is a subject Congress should look into.

Lesson 3: Judge-Shopping Must Be Curbed

Here is the third lesson to be learned from the debacle noted this morning.

Plaintiffs seeking to enjoin government actions have way too much choice where to file their suits.  Further, there is not enough control on conflicting decisions when it comes to injunctions.

The WSJ article noted in a previous post this morning reports on the development of the strategy of the opponents:

Democratic attorneys general and their aides held a series of conference calls. They agreed to mount separate lawsuits across the country. The goal: try lots of different arguments to block the ban in hopes that one of them would succeed.

Minnesota's attorney general, Lori Swanson, joined the Washington lawsuit. New York Attorney General Eric Schneiderman joined the American Civil Liberties Union's case in federal court in Brooklyn. Massachusetts Attorney General Maura Healey did the same with an ACLU case in Boston.

Not only did they throw as much against the wall as they could to see what stuck, they threw it against as many walls as they could, and it only needed to stick to one.  Judge Gorton in Boston declined to extend his earlier, temporary block of the executive order, but Judge Robart in Washington did block it, and the result was that it was blocked.  Conceivably, a group of persons opposed to some government action could file coordinated suits in every district in the country, and they would only have to win one to get a halt for the time being.

Even when only one suit is filed, broad venue rules and "related case" rules give the challengers too much leeway to steer cases to the judges they know will be favorable to them.  The habeas corpus "fast track" regulations were held up for over three years by order of a judge with no jurisdiction in a case steered to her in exactly that manner.

Congress should take a hard look at the rules regarding venue in cases that seek nationwide injunctions.  "Venue" sounds like a boring subject, but this case illustrates how much it can matter.
Habeas corpus is the correct procedure for persons who claim they are wrongly imprisoned.  For any other civil rights claim in federal court by a state prisoner, the correct procedure is a suit under the civil rights law, 42 U.S.C. §1983.  The line between the two is not always clear.

Today the U.S. Court of Appeals for the Ninth Circuit, sitting sort of en banc, decided Nettles v. Grounds, No. 12-16935:

Damous Nettles, a prisoner serving a life sentence in California prison, appeals the district court's dismissal of his habeas petition for lack of jurisdiction. The petition challenged a disciplinary violation on constitutional grounds and claimed that the failure to expunge this violation from his record could affect his eligibility for parole. We conclude that because Nettles's claim does not fall within the "core of habeas corpus," Preiser v. Rodriguez, 411 U.S. 475, 487(1973), it must be brought, if at all, under 42 U.S.C. § 1983.
Judge Ikuta wrote the opinion, joined in full by Judges Rawlinson, Clifton, Callahan, and Randy Smith.  Judge Hurwitz concurred in part.  Judge Berzon dissented, joined by Chief Judge Thomas and Judges Fletcher, Murguia, and Nguyen.

Another Take on Civil Liability

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Last week we had some discussion of a WaPo op-ed by USCA2 Judge Jon Newman on civil remedies for police transgressions.  See my post on Friday and Bill's on Saturday.  For another perspective, see this post by L.A. Deputy Sheriff Sean Van Leeuwen at the blog of the Association for Los Angeles Deputy Sheriffs.

Here's an idea.  Let's make Federal Appellate Court judges civilly liable for every decision they have reversed by the Supreme Court.  Unlike cops, who have to make real time decisions affecting legal rights, often under life-threatening circumstances, judges have the luxury of time, law clerks and quiet, safe, well-appointed chambers to make sure their legal decisions are correct. Why shouldn't they be accountable for rendering legal opinions the Supreme Court determines are wrong?
Interesting thought.  If Judge Stephen Reinhardt of USCA9 had to fork out cash for every decision of his the Supreme Court later determined was wrong, he would be standing on a street corner with a cardboard sign.
Senior Circuit Judge Jon Newman of USCA2 has this op-ed in the WaPo, proposing expanded civil remedies for police misconduct.  It is an important subject and worthy of serious consideration, but I think Judge Newman's article may mislead folks who are not familiar with the law in this area, both nonlawyers and lawyers who specialize in other areas.  Judge Newman writes,

The acquittal Thursday of another Baltimore police officer charged in the death of Freddie Gray, like the acquittal 25 years ago of the Los Angeles officers who beat Rodney King, reveals the inadequacy of the criminal-law remedy. Suing the police for money under a strengthened federal civil rights law would be a better response to police misconduct.

Right now, however, federal law makes it more difficult to sue a police officer for denying a citizen his constitutional rights than for injuring him by ordinary negligence. If an officer negligently drives his car and injures a citizen, the victim can win money just by proving negligence, and the city that employs the officer pays whatever the jury awards.

But when an officer uses excessive force or makes an unlawful arrest or search, proving wrongful conduct is not enough. Under Section 1983 of the federal civil rights statute, the officer can escape liability with the special defense of qualified immunity -- showing that he reasonably believed his conduct was lawful, even if it was not. And if the jury finds the officer liable, federal law does not require his employer to pay the award.
There is some truth here, but there is more to it.
The U.S. Supreme Court decided two cases this morning involving the reach of federal law under the Commerce Clauses of the Constitution.

Taylor v. United States, No. 14-6166, deals with one of the broadest laws for extending federal criminal jurisdiction to seemingly local cases, the Hobbs Act.  Any robbery affecting interstate commerce is within federal jurisdiction, and given the post-1937 definition of interstate commerce, that is a very broad sweep.  In today's case, any robbery of drug dealers can be a federal offense.

RJR Nabisco v. European Community, No. 15-138, involves civil suits under the Racketeer Influenced and Corrupt Organizations Act.  The Court puts some limits on this much-misused procedure, blocking civil RICO suits where the acts are all outside the United States.

Today's SCOTUS Cases

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Today the U.S. Supreme Court issued decisions in three civil cases and no criminal cases.  However, all three of the civil cases have some interesting and potentially relevant aspects.
One of my least favorite U.S. Supreme Court precedents is Mapp v. Ohio (1961).  That is the case that imposed on the states the rule previously followed by federal courts that evidence obtained in violation of the Fourth Amendment (with "violation" determined long after the fact and frequently unknowable to the police at the time of the search or seizure) must be excluded from a criminal trial.

In my view, the criminal trial should be all about a reliable determination of whether the defendant did it.  All reliable evidence should be considered.  If you want to put the police on trial for what they did, that should be a separate case.

One of the objections to eliminating the Fourth Amendment exclusionary rule and relying on civil remedies is that the doctrine of qualified immunity prevents the resolution of previously undetermined questions.  That is, if the searchee sues the police officer, the officer is entitled to immunity as long as what he did was not clearly illegal at the time of the search.  So how can you ever get to a judicial determination to make the law clear for future cases?

One answer is that if the action in question is a regular practice of the police department, you sue the city, not the cop, and there is no immunity.  Today's decision of the U.S. Court of Appeals for the Ninth Circuit in Lowry v. City of San Diego, No. 13-56141, illustrates the point.

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