I don't know whether to breathe a sigh of relief, or gnash my teeth: But the Supreme Court has dismissed without decision the case of Pottawattamie County, et al., v. McGhee, et al. (08-1065). That's because the parties settled the case for a reported sum of $12 million. By dismissing the case, the Supreme Court constructively endorsed the practice of municipalities' insuring public officials for what amounts to conduct that shocks the conscience.
The issue in Pottawattamie was simple: Were prosecutors immune from suit when they knowingly procured false testimony and then used it in the prosecution of an innocent man? It takes balls as big as a freak show pumpkin to assert such an immunity, but given the current state of the law, why not? Our courts are systematically eviscerating claims arising under 42 U.S.C. Section 1983 with cancerous new immunities. Why not just declare prosecutors off limits once and for all? I feared that would be the import of the Pottawatamie decision.
But it may be that it is still possible to shock the conscience of a Supreme Court justice. We won't know now until the next case of prosecutorial misconduct makes its way to the court.
The Pottawattamie plaintiffs claimed that their Fourteenth Amendment right to substantive due process had been denied by lawmen so bent on a conviction that they would lie to a judge and jury to obtain one. The plaintiffs were convicted, and spent decades behind bars before they were exonerated. Proof of a subtantive due process claim requires showing conduct that shocks the conscience; the conduct in question must be at odds with the norms of a civilized society, and so fundamentally jarring as to threaten the very concept of ordered liberty. This standard is almost impossible to meet in the United States: the judicial conscience, you see, is on the endangered species list, having been all but slaughtered by efficiency freaks and those enamored of the state's power.
I expected a defeat for the plaintiffs in Pottawattamie. Perhaps I was wrong.
Obviously, it takes a case or controversy to keep a case alive, and if the parties have resolved their differences in this case, then so be it. But still, I would have preferred the Court to retain jurisdiction over the case to decide its merits once and for all. Surely, the public importance of a decision involving prosecutors who will lie to obtain a conviction raises issues fundamental to a republic. The case was on submission: the Court should have reached a decision. Substantial questions still remain about when and whether prosecutors can be liable for lying.
Instead, what we ended up with is the worst of all possible worlds, especially if you are are a taxpayer in Pottawattamie County. When lawyers for the lawmen agreed to ante up a fortune, they agreed to pay funds from the public fisc. In other words, the good people of the county are now offering financial insurance to conduct that should be regarded as a crime. And the lawmen apparently will suffer not at all. Will there be a revolt in the county? Probably not. The sheep, you see, are content to be slaughtered: that's how we ended up with a court system increasingly numb to the claims of justice.
Sadly, I expect little else when it comes to claims of official misconduct. We drapes these claims in the same species of deceit we use on juries in all manner of civil cases: We tell the jury they are the conscience of the community, and then look them straight in the eye and lie to them. They must never learn of insurance. Oh, if they learned the truth a plaintiff might be given too much money. That would be bad, we croak when no one is looking.
So instead we hide the truth from juries and call it justice. In Pottawattamie County that means prosecutors can lie, cheat and steal. And when they get caught, taxpayers can pay the damages. It's time for a new word in American life and culture. What do you say of a man or woman whose been snookered, made a fool of, treated as a fool, and then told that everything is fine? Why, the person's been pottawattamied, of course.
Hat tipe: Mike; http://www.omaha.com/article/20091231/NEWS01/701019961
Showing posts with label Endangered Doctrines: 42 U.S.C. Section 1983. Show all posts
Showing posts with label Endangered Doctrines: 42 U.S.C. Section 1983. Show all posts
Tuesday, January 5, 2010
Tuesday, February 3, 2009
Qualified Immunity Gets More Teeth
I was getting ready to board a trans-contintental flight the other day when an email arrived: "Saucier v. Katz" has just been over-ruled." I was overjoyed for a distracted moment, and then a small voice asked: "What was it that Erwin Chemerinsky said?"
Saucier v. Katz, 533 U.S. 194 (2001), is one of those cases I simply do not understand. Oh, I get the case's holding all right, and I understand the rule of law it announces: Unreasonable force claims against police officers are subject to qualified immunity. What I do not understand is how the court reached the decision it did. Here's the problem:
To prevail on an unreasonable force claim against a cop arising under 42 U.S.C. Section 1983, you most show that the use of force by a police officer is objectively unreasonable. In other words, you must show that a reasonable police officer would not have believe he was justified in, let's say, clocking an unresisting kid in the head with a nightstick. Such claims are typically proven by contrasting an officer's training with his behavior.
Often these cases turn on whether the plaintiff was resisting arrest. Plaintiff: "I was just standing there when the officer belted me." Defendant: "The subject struggled and I applied reasonable measures for officer safety." There's a dispute of fact threre that should require a jury to sort it all out.
But not so fast. Qualified immunity is a judicial doctrine the gives the benefit of the doubt to police officers in close cases and immunizes them from a law suit. Think of a board game. We're all pawns on life's board; what we can do to one another is defined and limited by the rule of law. Those folks making the rules say some pieces can't be touched; those pieces enjoy immunity. In legalspeak, one way to get qualified immunity is if reasonable officers disagree about whether the conduct in question was unlawful. Another is to prove that the right they are said to have violated was not clearly established at the time.
Head hurting yet? Try this on for size. There is no doubt that unreasonable force violates the constitution. Even so, in Saucier v. Katz the Court concluded that objectively unreasonable conduct might be reasonable after all, at least in the mind of some officers. Hence, the general rule is swallowed by a particular opinion. Put another way, sometimes it is reasonable to be unreasonable. I struggle with this.
So the thought of Saucier being overruled delighted me. But then I recalled hearing Chemerinsky speak last year at Georgetown's annual CLE on 1983 litigation. He warned that Pearson v. Callahan was yet to be decided. This case would, he concluded, resolve the so-called "order of battle" problem. (P.S. This year's Georgetown seminar is April 16 and April 17 in Washington, D.C. It is well worth attending.)
This is legal arcania, but it matters in the hurly-burly of litigation. Saucier required Court's reviewing claims of police misconduct to first decide whether there are facts making out a constitutional violation. Once that was done, courts could turn to whther the unlawfulness of the conduct was clearly established. This required cases to linger on the docket some while lawyers developed facts to support their claims.
No more, said the Supreme Court. District Courts are now free to parse claims as they see fit. Police need not be encumbered quite so often by the inconvenience of answering questions about their conduct.
This might not seem like such a big deal to non-lawyers, but it will matter greatly to civil rights lawyers. What the Supreme Court has said is that it is all right for lower courts to cut to the chase without a complete factual record. In other words, qualified immunity just got a whole lot easier to grant, and, as a result, the ability to hold police officers accountable for civil rights violations just got a whole lot more difficult.
I've avoided writing about this for several weeks because it has the feel of commenting on a necessary piece of dental works. It hurts; it is foreseeable; there is nothing that can be done about it. The decisions trickling out of the Court this term are an authoritarian's dream come true.
Saucier v. Katz, 533 U.S. 194 (2001), is one of those cases I simply do not understand. Oh, I get the case's holding all right, and I understand the rule of law it announces: Unreasonable force claims against police officers are subject to qualified immunity. What I do not understand is how the court reached the decision it did. Here's the problem:
To prevail on an unreasonable force claim against a cop arising under 42 U.S.C. Section 1983, you most show that the use of force by a police officer is objectively unreasonable. In other words, you must show that a reasonable police officer would not have believe he was justified in, let's say, clocking an unresisting kid in the head with a nightstick. Such claims are typically proven by contrasting an officer's training with his behavior.
Often these cases turn on whether the plaintiff was resisting arrest. Plaintiff: "I was just standing there when the officer belted me." Defendant: "The subject struggled and I applied reasonable measures for officer safety." There's a dispute of fact threre that should require a jury to sort it all out.
But not so fast. Qualified immunity is a judicial doctrine the gives the benefit of the doubt to police officers in close cases and immunizes them from a law suit. Think of a board game. We're all pawns on life's board; what we can do to one another is defined and limited by the rule of law. Those folks making the rules say some pieces can't be touched; those pieces enjoy immunity. In legalspeak, one way to get qualified immunity is if reasonable officers disagree about whether the conduct in question was unlawful. Another is to prove that the right they are said to have violated was not clearly established at the time.
Head hurting yet? Try this on for size. There is no doubt that unreasonable force violates the constitution. Even so, in Saucier v. Katz the Court concluded that objectively unreasonable conduct might be reasonable after all, at least in the mind of some officers. Hence, the general rule is swallowed by a particular opinion. Put another way, sometimes it is reasonable to be unreasonable. I struggle with this.
So the thought of Saucier being overruled delighted me. But then I recalled hearing Chemerinsky speak last year at Georgetown's annual CLE on 1983 litigation. He warned that Pearson v. Callahan was yet to be decided. This case would, he concluded, resolve the so-called "order of battle" problem. (P.S. This year's Georgetown seminar is April 16 and April 17 in Washington, D.C. It is well worth attending.)
This is legal arcania, but it matters in the hurly-burly of litigation. Saucier required Court's reviewing claims of police misconduct to first decide whether there are facts making out a constitutional violation. Once that was done, courts could turn to whther the unlawfulness of the conduct was clearly established. This required cases to linger on the docket some while lawyers developed facts to support their claims.
No more, said the Supreme Court. District Courts are now free to parse claims as they see fit. Police need not be encumbered quite so often by the inconvenience of answering questions about their conduct.
This might not seem like such a big deal to non-lawyers, but it will matter greatly to civil rights lawyers. What the Supreme Court has said is that it is all right for lower courts to cut to the chase without a complete factual record. In other words, qualified immunity just got a whole lot easier to grant, and, as a result, the ability to hold police officers accountable for civil rights violations just got a whole lot more difficult.
I've avoided writing about this for several weeks because it has the feel of commenting on a necessary piece of dental works. It hurts; it is foreseeable; there is nothing that can be done about it. The decisions trickling out of the Court this term are an authoritarian's dream come true.
Saturday, January 31, 2009
An Invitation To Carelessness
I miss Linda Greenhouse's reporting on the law in The New York Times. She has been replaced by a fellow named Adam Liptak. Liptak writes well enough for the Times, but his analysis rarely rises above the obvious, and he sometimes misses nuances that are important.
In this morning's paper, Liptak reports on the exclusionary rule, the latest endangered doctrine in the law. The Supreme Court seems poised to do away with the rule. Liptak is right, of course. The recent decision in Herring ruled that mere negligence by a police officer is not enough to yield suppression of evidence. Thus in the case of Mr. Herring, the fact that sloppy policy work resulted in his arrest for a non-existent warrant does not yield suppression of evidence seized at the time of his arrest.
The court seems to be distancing itself from the doctrine that requires suppression of evidence seized when police violate the law. A new doctrine is emerging, requiring courts to balance the harm resulting from suppression against the deterrence value of suppression as a remedy for police misconduct. The emerging doctrine says that when a police officer is merely negligence, the balance tips in favor locking up the bad guys.
All this is obvious. But here is where Liptak falls far short of the level of analysis expected of the Times. He paraphrases Justice Anotnin Scalia's majority opinion in Hudson v. Michigan for the proposition that suppression is not necessary as a remedy because people can now sue the police for misconduct, a right set in stone about the time the exclusionary rule took shape.
What no one notices is the following. An action against a police officer for a Fourth Amendment violation can be pursued under 42 U.S.C. Section 1983. But these actions cannot be supported by allegations of mere negligence. An officer's misconduct must arise from recklessness or intent to be cognizable. Ordinary negligence claims never make it passed a motion to dismiss. Period.
Scalia's cheery dicta about civil suits for lawyers is simple silliness. In Herring's case there can be no federal civil rights remedy. The cops were merely careless. Hence, evidence seized unlawfully was used to convict him, and there is nothing he can do about it. There is no deterrence. Period. To suggest otherwise is simply ignorance, as in Liptak's case, or worse, as in Scalia's.
What's more, even in those instances in which there might be a claim for police misconduct, where cops are reckless or act with intent, many jurisdictions routinely indemnify police officers for their damages and the cost of their defense. Put another way, government insures police officers agains the consquences of violating our rights.
The Herring and Hudson decisions should be read together. When they are, the picture emerging is chilling: There are no remedies against illegal searches and seizures when police are merely careless. That's the law. And we haven't even begun to discuss the Court's recent decision on qualified immunity, which will follow here in a later post.
Bottom line: Medieval law knew a maximum which went as follows: The king can do no wrong. Substitute state for king in our emerging jurisprudence and you get the picture. Rights are merely recommendations the sovereign is free to follow or not. This is frontpage news, but not the news the Times reported.
In this morning's paper, Liptak reports on the exclusionary rule, the latest endangered doctrine in the law. The Supreme Court seems poised to do away with the rule. Liptak is right, of course. The recent decision in Herring ruled that mere negligence by a police officer is not enough to yield suppression of evidence. Thus in the case of Mr. Herring, the fact that sloppy policy work resulted in his arrest for a non-existent warrant does not yield suppression of evidence seized at the time of his arrest.
The court seems to be distancing itself from the doctrine that requires suppression of evidence seized when police violate the law. A new doctrine is emerging, requiring courts to balance the harm resulting from suppression against the deterrence value of suppression as a remedy for police misconduct. The emerging doctrine says that when a police officer is merely negligence, the balance tips in favor locking up the bad guys.
All this is obvious. But here is where Liptak falls far short of the level of analysis expected of the Times. He paraphrases Justice Anotnin Scalia's majority opinion in Hudson v. Michigan for the proposition that suppression is not necessary as a remedy because people can now sue the police for misconduct, a right set in stone about the time the exclusionary rule took shape.
What no one notices is the following. An action against a police officer for a Fourth Amendment violation can be pursued under 42 U.S.C. Section 1983. But these actions cannot be supported by allegations of mere negligence. An officer's misconduct must arise from recklessness or intent to be cognizable. Ordinary negligence claims never make it passed a motion to dismiss. Period.
Scalia's cheery dicta about civil suits for lawyers is simple silliness. In Herring's case there can be no federal civil rights remedy. The cops were merely careless. Hence, evidence seized unlawfully was used to convict him, and there is nothing he can do about it. There is no deterrence. Period. To suggest otherwise is simply ignorance, as in Liptak's case, or worse, as in Scalia's.
What's more, even in those instances in which there might be a claim for police misconduct, where cops are reckless or act with intent, many jurisdictions routinely indemnify police officers for their damages and the cost of their defense. Put another way, government insures police officers agains the consquences of violating our rights.
The Herring and Hudson decisions should be read together. When they are, the picture emerging is chilling: There are no remedies against illegal searches and seizures when police are merely careless. That's the law. And we haven't even begun to discuss the Court's recent decision on qualified immunity, which will follow here in a later post.
Bottom line: Medieval law knew a maximum which went as follows: The king can do no wrong. Substitute state for king in our emerging jurisprudence and you get the picture. Rights are merely recommendations the sovereign is free to follow or not. This is frontpage news, but not the news the Times reported.
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