Tag Archives: 42 USC 1983

Supremes Reject ‘The Greater The Harm, The Lesser the Remedy’ § 1983 Standard – Update for April 15, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREMES EXPAND RIGHT TO SUE LOCAL COPS UNDER 42 U.S.C. § 1983

Larry Thompson was charged with resisting arrest when he tried to stop police from entering his apartment in response to a false child abuse complaint. A New York court later dismissed the case on motion of the prosecution “in the interest of justice,” which is code for “no way we can win this dog of a case.”

policestate190603When Larry later sued under 42 U.S.C. § 1983, alleging that the police violated his 4th Amendment right to be free of unreasonable search or seizure), his case was thrown out. Existing New York law held the plaintiff had to show the underlying criminal case had been initiated without probable cause, initiated for a purpose other than bringing the defendant to justice, and terminated in favor of the defendant. A “favorable termination” was one where the plaintiff had been found to be not guilty.

Larry’s problem was that the criminal case against him was so specious that it didn’t make it to trial. He never enjoyed a “favorable termination” because the prosecution gave up before trial.

You can see the problem in this approach: the sketchier the criminal case, the more likely it is that the matter will never make it to trial. That means the greater the outrage visited on a hapless defendant, the less likely he or she will be found “not guilty” after a trial, because the lower the likelihood that there will even be a trial. The “favorable termination” rule thus punishes the people who have been most aggrieved.

champions220415Last week, the Supreme Court greatly expanded a former defendant’s ability to bring a 42 U.S.C. § 1983 claim, holding that “terminated in favor” means only that the “prosecution ended without a conviction” and not “with some affirmative indication of innocence.”

Justice Brett Kavanaugh wrote for a six-justice majority:

The question of whether a criminal defendant was wrongly charged does not logically depend on whether the prosecutor or court explained why the prosecution was dismissed. And the individual’s ability to seek redress for a wrongful prosecution cannot reasonably turn on the fortuity of whether the prosecutor or court happened to explain why the charges were dismissed. In addition, requiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a §1983 claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial enough to proceed to trial. That would make little sense. Finally, requiring a plaintiff to show that his prosecution ended with an affirmative indication of innocence is not necessary to protect officers from unwarranted civil suits—among other things, officers are still protected by the requirement that the plaintiff show the absence of probable cause and by qualified immunity.

Thompson v. Clark, Case No. 20-659, __ S.Ct. __, 2022 WL 994329, 2022 U.S. LEXIS 1885 (April 4, 2022)

– Thomas L. Root

A Day to Beat Up Lawyers – Update for February 23, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LAWYERS BEHAVING BADLY

Today, we feature a pair of cases in which lawyers are the stars, and not in a good way:

banana210223I Feel Conflicted: When Eric Scurry arrived for day 1 of his drug trial, his lawyer – Chris Davis – was missing. It seemed Chris had a hearing in another courtroom, and that one was more important to him than Eric’s was. This is not a development calculated to give a client a warm, fuzzy feeling about his attorney, the notion that his or her freedom was playing second banana to a client who had paid more for the lawyer’s services.

But not to fear, Eric! Chris’s wife, Mary, was also a lawyer, and Chris – who cared about Eric’s case very much – dispatched her to cover the trial. No matter (as it turned out later) that Mary had not read the file and knew nothing about Eric’s case. She was a warm body with a law degree, just what a guy facing decades in prison needed.

Had Mary read the file, she would have been aware that Eric and his co-defendants previously had attacked the wiretap that led to their arrest for a technical deficiency, albeit a glaring one. The district court denied their motion to suppress the evidence, but the issue their joint motion raised was a substantial one.

Everyone on the defense side of the table knew that… except for Mary. She convinced Eric to take a plea deal for a minimum 10 years, reserving only the right to appeal one inconsequential pretrial holding. The co-defendants also pled, but their attorneys reserved the right to appeal the wiretap suppression.

jailfree140410That turned out to be a good deal for Eric’s co-defendants. They appealed and won. The Court of Appeals held the government’s wiretap application to be deficient, and all of the evidence against them was suppressed. The co-defendants walked free. But Eric did not, because his plea deal did not reserve the right to raise that issue.

Eric seemed to recognize that Mary had screwed up, because on appeal, he had the Davises thrown off his case. He told the court he planned to accuse them later of incompetence. That made sense. But what happened next did not.

Inexplicably, when Eric filed a post-conviction motion under 28 USC § 2255 seeking to set aside his guilty plea, Mary offered to represent him on the motion, and he agreed. She then amended the § 2255 motion, claiming Eric had been coerced into pleading guilty by the evidence that had later been thrown out in his co-defendants’ cases, thus giving him the same level of professional representation on his § 2255 that she had given him at trial: lousy.

The problem was simple: to set aside his guilty plea and plea deal, Eric was required to show not just that his perception of the admissibility of the evidence was wrong, but that his lawyer had given him incompetent representation. Which of course Mary had. But because Mary failed to argue her own incompetence during the § 2255, the court denied Eric relief.

conflict200318Last week, the D.C. Circuit threw Mary (and, for good measure, Chris) off the case again. The problem is, the Circuit said, “as long as counsel’s advice to take the plea rather than gamble on an evidentiary suppression issue was “reasonably competent,” the plea is “not open to attack on the ground that counsel may have misjudged the admissibility of the defendant’s confession.” That being the case, Eric could not win his § 2255 unless he showed Mary has given him incompetent advice. And that, as I noted, meant Mary would have to argue that she was incompetent.

The Circuit ruled that “by affirmatively intervening in Scurry’s collateral proceedings despite the conflict and not pressing the ineffective assistance claim, Davis seemingly made a choice advancing her own interest at the expense of her client’s.”

Eric will get another shot at relief, this time – we trust – with a competent lawyer.

usmale210223I’m A U.S. Male: Elvis warned that you shouldn’t “tamper with the property of the U.S. Mail (or maybe ‘male’)”. Last week, Sixth Circuit said you can’t use the U.S. mail to tamper with statutory deadlines, either.

Blake Cretacci hired a lawyer to file a 42 USC § 1983 action for damages against some local jail guards who allegedly used excessive force against him and . Blake hired a local lawyer by the unlikely name of Andy Justice, who prepared the complaint. Andy planned to file the federal court complaint electronically, as attorney members of the bar of the court are allowed to do. But on the night before the statute of limitations expired on Blake’s claim, Andy discovered that Coffee County, Tennessee, where the conduct occurred, was not in the Middle District of Tennessee, where Andy was admitted, but instead in the Eastern District of Tennessee, where Andy was not admitted.

The next day, Andy tried to get admitted to the Eastern District so he could electronically file the complaint, but that could not be accomplished in only a day. Andy drove to a federal courthouse in Winchester, Tennessee, to try to file the complaint in person, but there was no staffed clerk’s office there. By then, Andy could not get to the Chattanooga federal courthouse in time, but he had an idea.

The “prison mailbox rule,” enshrined in Houston v. Lack, holds that if an inmate files a document with a federal court by mailing it from the prison, the filing is deemed to be delivered to the courthouse the moment the inmate turns it over to a prison official. Andy, being a bright lawyer, knew this, so he ran the complaint over to Blake at the jail.

Andy told Blake that he should deliver it to a correctional officer immediately, explaining that because he was an inmate, he could take advantage of the prison mailbox rule. Blake did so.

dogmail210223Last week, the 6th Circuit threw out Blake’s complaint as untimely. The Circuit ruled that “the prison mailbox rule was created to prevent pro se prisoners from being penalized by any delays in filing caused by the prison mail system. But if a prisoner does not need to use the prison mail system, and instead relies on counsel to file a pleading on his or her behalf, the prison is no longer responsible for any delays and the rationale of the prison mailbox rule does not apply… Accordingly, we hold that, in the context of the filing of civil complaints, the prison mailbox rule applies only to prisoners who are not represented by counsel and are proceeding pro se.”

Nice try, Andy, but you can’t use the U.S. mail to tamper with court deadlines. Elvis could have told you that.

United States v. Scurry, Case No 18-3067, 2021 U.S.App. LEXIS 4785 (D.C. Cir.  Feb 19, 2021)

Cretacci v. Call, Case No 20-5669, 2021 U.S.App. LEXIS 4493 (6th Cir. Feb 17, 2021)

– Thomas L. Root

Gundy Brings Forth a Mouse – Update for June 21, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

GUNDY – NO BANG BUT A WHIMPER

As soon as the Supreme Court announced yesterday that it had affirmed the 2nd Circuit by an 8-1 vote, I knew that the Justices had massaged the case – which was argued the first week of October 2018 – until they reduced the holding to something narrow enough that they could almost all agree.

mouse170706Petitioner Herman Gundy, a convicted sex offender, was convicted of failing to register under the Sex Offenders Registration and Notification Act. He had been convicted of the sex offense before SORNA passed, but Congress included in the bill a directive to the Attorney General to “specify the applicability” of SORNA’s registration requirements and “to prescribe rules for [their] registration.”

Under that delegated authority, the Attorney General issued a rule specifying that SORNA’s registration requirements apply in full to pre-Act offenders. This made Herman’s failure to register a crime. Both the District Court and the Second Circuit rejected Herman’s claim that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to essentially determine what act or non-act constituted a crime.

Gundy was considered to be a big case, because the laxity with which Congress has delegated authority to the Executive Branch to make crimes cuts a broad swath across the law. The DEA has the power to declare an analogue drug to be a controlled substance. The ATF has the power to declare a little bent piece of metal a “machinegun” because it can be inserted into an AR-15 to make it fire on full auto. In fact, there are over 1,500 regulations enacted by Executive Branch agencies that carry criminal consequences.

Many observers thought Gundy could be a watershed, a moment when the Court would finally say “enough” to the willy-nilly delegation of power without limits. The fact that SCOTUS has taken so long to decide an early-term case suggested that there was a lot of dissention among the Justices, and that the decision, when it finally came, would be a whopper.

No such luck. Instead the Justices parsed the history of SORNA, and found that Congress had always meant for SORNA’s registration requirements to apply to pre-Act offenders, based on the Act’s statutory purpose, its definition of sex offender, and its history. But Congress was afraid that registering so many people right away would not be feasible. SORNA, the Court said, created a “practical problem[ ]” because it would require “newly registering or reregistering a large number of pre-Act offenders.”

Congress therefore asked the Attorney General, who was already charged with responsibility for SORNA implementation, to examine the issues and to apply the new registration requirements accordingly.” On that understanding, the Court said, the “Attorney General’s role… was important but limited: It was to apply SORNA to pre-Act offenders as soon as he thought it feasible to do so.”

There, the Court said. The AG only did what Congress clearly wanted done. Problem solved.

can190620What really happened is the Court was able to find justification in this instance for the AG doing what he did, rather than addressing the broader question. (Of course, lurking beneath the surface was the unspoken fear that declaring anything that pummels sex offenders to be unconstitutional would unleash a maelstrom of media and social criticism of the Court). Whatever the reason, the Court’s punt leaves the broader delegation doctrine question, which is as important as it is dry, for another day.

Gundy v. United States, Case No. 17-6086 (Supreme Court, June 20, 2019)

CLOCKWATCHERS

Another SCOTUS decision yesterday was a sleeper, one I had paid scant attention to. But it is a useful holding nonetheless.

A lot of people who were unlawfully treated before and during their criminal cases, and may have good legal issues against the people responsible, end up getting shut out by the statute of limitations. That happened to Ed McDonough.

Ed was an election commissioner in Troy, New York. After questions arose, Youel Smith was specially appointed to prosecute a case of forged absentee ballots in that election. Ed became his primary target.

clockwatcher190620Ed alleged that Youel fabricated evidence against him and used it to secure a grand jury indictment. Youel tried the case, using the allegedly false evidence, Ed got a mistrial the first time, but an outright acquittal the second.

Ed sued Youel under 42 U.S.C. § 1983, asserting a claim for fabrication of evidence. The district court dismissed the claim as untimely, and the 2nd Circuit affirmed. The courts both held that the 3-year limitations period began to run when Ed learned that the evidence was false, which undisputedly occurred by the time Ed was arrested and stood trial.

The Supremes reversed, ruling for Ed. The fabrication claim was a lot like a malicious prosecution claim, and such a claim does not arise until the defendant is acquitted. To follow the lower courts’ holding would create practical problems in places where prosecutions regularly last nearly as long as — or even longer than—the limitations period. Criminal defendants, SCOTUS said, “could face the untenable choice of letting their claims expire or filing a civil suit against the very person who is in the midst of prosecuting them. The parallel civil litigation that would result if plaintiffs chose the second option would run counter to core principles of federalism, comity, consistency, and judicial economy.”

McDonough v. Smith, Case No. 18–485 (Supreme Court, June 20, 2019)

– Thomas L. Root

The Incredible Shrinking Bivens – Update for June 19, 2019

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BAD NEWS FOR BIVENS

Everyone knows that the 1971 Supreme Court case Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics established a private person’s right to sue federal officials for violation of one’s constitutional rights. What everyone does not know is that Bivens continues to be under assault.

Oops, wrong house... If they're locals, sue 'em under 42 USC 1983

Congress in its wisdom enacted a statute, 42 USC 1983, that permits a private person to sue an agent of a state or local government (like the crazy cops who wanted to shoot a shoplifter) for violating the victim’s constitutional rights. But Congress did not authorize a private person to sue a federal agent or official for doing the same thing. This created a weird dichotomy: if the local fuzz kicked down your door and terrorized you in a drug raid (when the warrant was really for a house one block away) could be sued, but if the same act was committed by a SWAT-truckload of DEA agents, you were out of luck. Some 48 years ago, this struck the Supreme Court as just plain wrong, so the Court decided that the Constitution implied the right to bring the same suit against the Feds that Sec. 1983 allowed one to bring against the local cops.

My take, for what it’s worth: the Constitution says things. It does not imply things. Bivens is just plain wrong. But the Court was right that there ought to be such a right. I’m a big fan of allowing citizens (and non-citizens, too, thinking about Mexican kids playing in the Rio Grande who get shot by DEA agents just for fun) the right to enforce their constitutional rights when government actors violate them. But pretending that the Constitution implicitly authorizes whatever right is flavor of the day is a slippery slope. Implication eventually makes the Constitution little more than a reflection of the will of the majority.

A few years ago, Yaz Farah and a bunch of his friends were indicted for forcing minor females to engage in prostitution. No question, such conduct is horrific, or would be horrific if it really happened. In Yaz’s case, a federal prosecutor convinced a jury that it did happen, and Yaz and most of his buddies were convicted.

The 6th Circuit was calling Officer Heather one... and in a big way.
The 6th Circuit was calling Officer Heather one… and in a big way.

But the district court threw out the verdict due to manifold Brady violations (that is, the prosecution possessed evidence that Yaz and his friends did not do it, but hid that evidence from the defense), as well as the trial judge’s strong suspicion that the lead investigator made up a lot of the story to which she had testified. The 6th Circuit upheld the dismissals, blasting the investigator, St. Paul cop Heather Weyker (who had been deputized as part of an FBI Task Force), as an out-and-out liar.

Yaz and his friends sued Heather under Bivens for her false testimony, fabricated evidence and conniving, all of which had left some of them jailed for three years awaiting trial on bogus charges. However, last week, the 8th Circuit reluctantly threw out Yaz’s Bivens claim in an opinion that began as follows:

If a federal law-enforcement officer lies, manipulates witnesses, and falsifies evidence, should the officer be liable for damages? We hold that the Constitution does not imply a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), so the answer must come from Congress, not from us. And Congress has, so far, answered no.

The problem is that the Supreme Court has recognized an implied a private right to sue the government in only three cases (and has recently tried to crank back the reach of Bivens). The first was in Bivens itself: a 4th Amendment remedy for a warrantless search. The second was in Carlson v. Green (cruel and unusual punishment resulting in a prisoner death), and the third in a gender discrimination claim against a Congressman by a former aide. “Since then,” the 8th Circuit said, “the Court has become far more cautious and has, in fact, consistently refused to extend Bivens to any new context or new category of defendants’” for almost forty years. Recognizing that the Bivens inquiry is about “who should decide” whether to create a new cause of action, the 8th said, the Supreme Court has answered “most often . . . Congress.”

shocked190619Here, the Court ruled that the police officer’s misconduct, while shocking, was not similar to any of the three forms of Bivens claims that had been permitted. Letting the action go forward “would require courts to interfere in an intrusive way with sensitive functions of the Executive Branch,” whether Congress has taken other action in the area without authorizing a damages remedy, and whether a “remedial structure” is already in place to address constitutional violations, even if it does not go as far as a Bivens remedy would. When factors like these are present, the 8th Circuit said, the Supreme Court has explained that it is “less probable that Congress would want the Judiciary to entertain a damages suit.”

Until Congress creates a federal remedy similar to the 42 USC 1983 remedy against state agents and officers, Yaz’s damages will go without a remedy.

Farah v. Weyker, 2019 U.S. App. LEXIS 17566 (8th Cir. June 12, 2019)

– Thomas L. Root

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The Immunity of Charlatans – Update for July 7, 2017

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AIN’T NO JUSTICE…

In the annals of whack-job prosecution “experts,” Steven Hayne and Michael West are royalty. The pair, who have dominated Mississippi’s death investigation system for the better part of 20 years, have put dozens of people in prison for life or on death row with testimony that falls well outside the constraints of science.

biteme170710Hayne once claimed that a murder victim’s bullet wounds were “consistent with” a theory that two people were holding the gun when it was fired. West has claimed to be able to trace bruises on a victim’s abdomen to the specific shoe that inflicted the injuries, to match fingernail scrapes to the specific fingernails that made them, and in one case, claimed that the knife wounds in a murder victim could only have been caused by one specific knife and that marks on the defendant’s hands that could only have been caused by gripping the handle of that same knife.

Scott Greenfield succinctly explained bite-mark forensics in his Simple Justice blog: “Just to be absolutely clear, bite marks identification evidence is complete, total junk science. It doesn’t work, which is how Hayne and West became the leading “experts” in bite mark evidence.”

Among the dozens of unfortunates locked up by the fake science peddled by Hayne and West were Kennedy Brewer and Levon Brooks. After the two were exonerated of murders that had gotten one of them sentenced to life and the other put on death row – based on nonsensical bite mark testimony from Hayne and West – they sued the “experts” under 42 USC § 1983. Last week, the 5th Circuit ruled that because Hayne and West are protected by qualified immunity for any case in which they testified, they’re only liable to a lawsuit if the plaintiff can show that they acted recklessly. Mere negligence — even gross negligence — is not enough.

The Circuit held

Plaintiffs have made a compelling showing that Defendants were negligent in their forensic analysis, but negligence alone will not defeat qualified immunity. Viewed in the most favorable light, Plaintiffs’ evidence is not suggestive of an intent to fabricate. The disagreement voiced by Plaintiffs’ experts is evidence that Defendants were mistaken in their conclusions or methodologies, but no more. Likewise, the evidence of the “extraordinary frequency” with which Defendants found bite mark evidence certainly undermines the reliability of the forensic odontology techniques they employed — and perhaps the field in general — but does not lead to an inference of intentional fabrication.

charlatan170710It is significant that Hayne and West aggressively marketed their abilities to find forensic evidence that would convict, and were thus the darlings of prosecutors all over Mississippi. In fact, Hayne could almost claim as his trademark the phrase “indeed, and without a doubt.” Juries loved it: no wishy-washy equivocating from this “expert.” Hayne’s and West’s findings were clear, their opinions stark and powerful.

Unfortunately for the defendants against whom they testified, Hayne’s and West’s findings were dubious and their opinions wrong. But that was not enough for the 5th Circuit. “The allegation of a previously false bite mark by Dr. West — whether created intentionally or accidentally — gives pause,” the Court said. “Yet the inference Plaintiffs ask us to draw from that evidence is one generally not permitted under the federal rules. The same is true of the evidence regarding Defendants’ professional histories—propensity evidence will not sustain an inference that the Defendants intentionally fabricated evidence here.”

In other words, just because these “experts” cheated in prior cases before does not mean you can use that to suggest to the jury that they’re cheating now. That seems to be a twist on F.R.Ev. 404 that collides with due process. But then, the whole notion of a pair of medical mountebanks like these two stealing the lives of innocent defendants to line their pockets with expert fees pretty much shocks the conscience.

Brewer v. Hayne, Case No. 16-60116 (5th Cir., June 27, 2017)

– Thomas L. Root

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