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.There is some truth here, but there is more to it.
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.
Recently in Civil Suits Category
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.
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.
The one criminal case taken up is the corruption conviction of former Virginia Governor Robert McDonnell. The question presented is:
Under the federal bribery statute, Hobbs Act, and honest-services fraud statute, 18 U.S.C. §§ 201, 1346, 1951, it is a felony to agree to take "official action" in exchange for money, campaign contributions, or any other thing of value. The question presented is whether "official action" is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.The Court declined a second question on jury voir dire and pretrial publicity.
Also taken up was law-enforcement-related civil case, Manuel v. City of Joliet, No. 14-9496. "The question presented is whether an individual's Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment."
A long orders list will likely be issued Tuesday. (Monday is a government holiday.) If the usual pattern holds, all the grants are on today's list, and Tuesday's list will be all denials.
Today we hold that the elected Sheriff of the nation's fourth largest county, located mere miles from our border with Mexico, cannot challenge the federal government's deliberate nonenforcement of the immigration laws. I agree with my colleagues that the state of the law on standing "requires, or at least counsels, the result here reached." Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 798 (D.C. Cir. 1987). But, recognizing that Sheriff Arpaio's claims reflect the widespread perception that the administration's prosecutorial discretion meme is constitutionally problematic, I write separately to emphasize the narrowness of today's ruling, and note the consequences of our modern obsession with a myopic and constrained notion of standing.Sounds to me like an invitation to the Supreme Court to take this up.* * *No doubt the modern approach to standing serves to reduce our caseload. But there are much more important matters at stake. "Some [litigants] need bread; others need Shakespeare; others need their rightful place in the national society--what they all need is processors of law who will consider the people's needs more significant than administrative convenience." Id. at 1005 (quoting Edmond Cahn, Law in the Consumer Perspective, 112 U. PA. L. REV. 1, 13 (1963)). Our approach to standing, I fear, too often stifles constitutional challenges, ultimately elevating the courts' convenience over constitutional efficacy and the needs of our citizenry.
The Defendants-Appellants' Reply Brief informed the court that "A panel of the Board of Parole Hearings has since provisionally granted Ms. Norsworthy parole." Reply Brief at 22. The parties are ordered to file status reports on or before Tuesday, July 28, 2015 regarding whether this case may be mooted by the Board of Parole Hearings panel's decision and commenting as to any possible effect on whether this court should conduct the oral argument scheduled for Thursday, August 13, 2015. The parties are further ordered to update this court within 7 days of any parole decision regarding the Plaintiff-Appellee.
The Supreme Court decided two criminal-related civil cases. In Los Angeles v. Patel, the Court struck down as unconstitutional on its face an LA ordinance letting the police inspect the guest registries of hotels at any time without a warrant. That is constitutional for junkyards, but, no, people are not the same as wrecked cars.
The second case is Kingsley v. Henderson. Pretrial detainees who claim that excessive force was used against them face a lower bar to recovery than convicted criminals.
Both cases were decided 5-4, with the "liberals" plus Justice Kennedy being the majority. (I generally don't care for those labels, but sometimes the simplistic model works.)
It also bears noting that Spider Man made an appearance in the high court in a patent/contract case, Kimble v. Marvel Entertainment LLC. How he made it through the court's tight security in that outfit I do not know. Justice Kagan has a good time with it, including a Spidey quote from 1962: "[I]n this world, with great power there must also come--great responsibility."
The next decision day is Thursday.
Yesterday, June 3, Judge Chang signed the stipulated judgment. Applications to intervene in the case were set for hearing tomorrow, June 5. The applicants were Mitchell Sims, the "slice of murder" killer sentenced to death in two states, represented at taxpayer expense by the Habeas Corpus Resource Center, and Michael Morales and Tiequon Cox, the men who murdered my clients' family members, represented by David Senior and, curiously, Jenner & Block, contra bono publico. Today, the court entered an order that the applications were moot in light of the settlement and cancelling the hearing.
Does the Americans with Disabilities Act have anything to do with the use of force by police to subdue a mentally ill and potentially dangerous person? It shouldn't. There is plenty of law governing use of force by police from other sources, and ADA is supposed to be about employment and public accommodations.
Lyle Denniston reports on the argument at SCOTUSblog. I would not be surprised if the Court drops the case. Technically, that's Dismissed as Improvidently Granted, or a DIG in SCOTUS practitioner parlance.
The main issue of that case is, of course, off-topic for the blog, and CJLF takes no position on it. Yet the law is a seamless web, and we always watch Supreme Court cases for points that may spill over and have an effect on our cases. Adam Liptak reports for the NYT that the issue of standing may pop up in this case.
Standing is an issue in two of CJLF's current cases, HCRC v. USDoJ and Winchell & Alexander v. Beard. See this post two weeks ago. Liptak's article begins:
The Supreme Court has developed elaborate tests to determine if plaintiffs have standing to sue. But their essence, Justice Antonin Scalia once observed, is a four-word question: "What's it to you?"But a very complex body of law lies beneath that seemingly simple question.
To get into court, it is not enough to be unhappy about something. Only people with a direct stake in a dispute have standing to sue.
Apparently no one has told the Supreme Court that yet, and they have set the argument for March 30.
Update: A stipulation to dismiss has been filed. Rule 46.1 provides that "the Clerk, without further reference to the Court, will enter an order of dismissal." Update 2 (2/3): Done.
Brumfield v. Cain, No. 13-1433, another Louisiana case, is set for the same day and probably will go as scheduled. It has to do with the way that state handles murderers' claims that they are intellectually disabled.
That's it for criminal cases on the March calendar. San Francisco v. Sheehan, No. 13-1412, is a law-enforcement-related civil case on the Americans with Disabilities Act and accommodating "an armed, violent, and mentally ill suspect." It is set for March 23.
Plumhoff v. Rickard involves the police's use of deadly force against someone who led them on a high-speed chase over 100 miles an hour and continued trying to escape even after the police had him cornered. There are several holdings worth noting.
See also this prior post.
Michelle Kosilek, born Robert Kosilek, has been in a heated legal battle to get the surgery, which she [sic] says is required to relieve the emotional stress caused by the disorder. Kosilek is currently serving a life sentence for killing spouse Cheryl Kosilek in 1990.
In 2012, a federal judge ruled that the department must give Kosilek the surgery.
In January, that decision was reaffirmed by a three-judge panel of the 1st U.S. Circuit Court of Appeals, which said it is a constitutional right to receive medically necessary treatment "even if that treatment strikes some as odd or unorthodox."
The prisons department appealed and won a rehearing before the full appeals court. Five appeals court judges heard arguments on the matter Thursday and could take months to issue a decision.