UNITED STATES v. MIDGETTE, USCA-4 No. 05-4765, http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/054765.P.pdf , on appeal from USDC-NCED, before USCJs Niemeyer, Traxler, and Shedd, opinion by Niemyer, filed 26 Feb 2007.
LONG STORY SHORT: North Carolina statute allowing probation officers to search their probationers without a warrant is reasonable under the Fourth Amendment, and probation officers may request police assistance in such searches. Binding in MD, NC, SC, VA, WV.
FACTS: Defendant pleaded guilty to North Carolina state offenses and accepted suspended sentences and supervised probation. The judge at his sentencing ordered orally and in writing that a special condition of Defendant's probation was that he "submit at reasonable times to warrantless searches by a probation officer of the defendant's person, and of the defendant's vehicle and premises while the defendant is present, for the purposes which are reasonably related to the defendant's probation supervision." Two months later, SGT Wilcutt of the New Bern Police Department told Defendant's probation officer, PO Edwards, that he knew Defendant well and that Defendant had a reputation for carrying firearms, and that Defendant had retrieved firearms from the New Bern PD eight months before.
At Defendant's next regular meeting with PO Edwards, two New Bern officers searched Defendant without finding any contraband, then searched Defendant's vehicle, finding a pistol magazine loaded with ten live rounds of .40-caliber ammunition. PO Edwards then took Defendant and the officers over to Defendant's house, where she directed the officers to search for any other contraband. The officers found two shotguns and a pistol, all loaded, and 59.1g of marijuana. One of the shotguns had a barrel less than 18 inches long. The officers arrested Defendant on the spot.
PROCEDURE: The United States indicted Defendant for possessing firearms while a convicted felon, possession of an unregistered firearm (short-barreled shotguns are subject to registration and taxation under the National Firearms Act), and possession of marijuana. Defendant moved to suppress all the contraband, on grounds that only probation officers are allowed to conduct warrantless searches of probationers under NC law, and that no reasonable suspicion supported the search. A U.S. Magistrate Judge of the Eastern District of North Carolina heard the motion and recommended that it be denied. Defendant objected to the report, but not on grounds that the NC statute was unconstitutional or that no reasonable suspicion supported the search. The assigned U.S. District Judge overruled him and adopted the USMJ's report. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty and received a 46-month sentence, on condition that he could appeal the denial of suppression to the U.S. Court of Appeals for the Fourth Circuit. On appeal, Defendant argued that the NC statute violated the Fourth Amendment and that no reasonable suspicion supported the search of Defendant's vehicle and house.
DECISION: Objections to a magistrate judge's report must be specific; a general objection will not suffice, because the district judge needs to have reasonable notice of what issues are not satisfactory, and the true grounds for such objections. Parties may not appeal issues in a report without specifically and timely objecting to them. Since Defendant did not tell the district court that he objected to the constitutionality of the warrantless serach statute or that no reasonable suspicion supported the search, he waived his right to appeal on those issues.
However, Defendant's arguments were meritless anyway. NC needs to be able to supervise probationers' compliance with their conditions of probation, both to promote probationers' rehabilitation and to protect the public. Though the statute did not require "individualized suspicion" as do some other states' laws that have survived constitutional review, the state's special need to supervise probationers justifies the reduced privacy expectations and rights of probationers. Searches conforming to NC's probation statutes are eminently reasonable under the Fourth Amendment.
In this case, reasonable suspicion, that is, a particularized and objective basis for suspecting criminal activity, was present because SGT Wilcutt was an experienced, knowledgeable, and trustworthy officer that PO Edwards was entitled to rely on, just as a court would have. Other courts have upheld searches of probationers without any suspicion at all. Though the statute requires probation officers to authorize and direct warrantless searches of probationers, regular police officers may suggest them in the first place, and may assist in the actual search. Probationers can be very dangerous people and probation officers need all the help they can get. DENIAL OF SUPPRESSION AFFIRMED.
EDITORIAL: Good decision, but since the Fourth Circuit started out by observing that this guy wasn't supposed to be appealing those issues at all, the next probationer who gets his house tossed is going to argue that this apparent papal blessing of NCGS § 15A-1343(b1)(7) really means nothing. The first thing to remember about a successful appeal is that it starts in the trial court. If you don't say something when it happens, then appellate courts figure it couldn't have been as bad as all that. At best/worst, appellate courts will say that if you didn't object at trial because you didn't want to look like a jerk in front of the jury, then doom on you if the jury recognized you as a jerk anyway.
This is yet another reminder to keep on the good side of probation officers no matter what side of the law you're on. For regular officers, taking a PO along can be a ticket to busting somebody you can't quite get a warrant on. Just make sure the PO is the one to decide on the search and asks you for help.
Monday, February 26, 2007
Wednesday, February 14, 2007
If You Barricade Yourself, Burn Your House, And Raise A Rifle, Then Getting Shot Is YOUR Fault
LIVERMORE v. LUBELAN, USCA-6 No. 06-1465, 2007 U.S.App. LEXIS 2594, on appeal from USDC-MIWD, before USCJ-6 Batchelder and Griffin and USDJ-TNED Phillips, opinion by Griffin, filed 07 Feb 2007.
LONG STORY SHORT: The proximate cause of the subject's death was his threatening posture with a rifle after he had exhibited very violent behavior, and both the lieutenant who commanded the raid on his house and the sergeant who shot the subject were entitled to qualified immunity. Binding in KY, MI, OH, TN.
FACTS: Cass County, Michigan residents Crosslin and Rohm advocated marijuana production and use, and practiced what they preached at Rainbow Farms Compound, which Crosslin owned. On 31 Aug 2001, Rohm blew off a required court appearance, and he and Crosslin set fire to some outbuildings at Rainbow Farms, inspiring the Cass County Sheriff's Department to surround the premises and call for help from the Michigan State Police Emergency Services Team. Crosslin, visibly armed, refused officers entry and later that day fired at least one bullet into a news helicopter. The standoff continued for days.
On 03 Sep 2001, FBI agents found Crosslin while he was returning from a burglary, and had to shoot and kill him in self-defense. On 04 Sep, Rohm agreed by phone with MSPEST negotiators to surrender if he could talk with his son, but instead Rohm set fire to his house, took up a rifle, and hid between two trees in his backyard. MSPEST had received word that the house was rigged with explosives. A Light Armored Vehicle commanded by Lieutenant Ellsworth of MSPEST approached and by loudspeaker he ordered Rohm to surrender. To use their radios, the two MSPEST sergeants in the LAV with Lieutenant Ellsworth had to sit partially exposed in the open roof hatches, but still could not see Rohm in the early daylight and smoke.
MSPEST sharpshooter Sergeant Lubelan, 150 yards away in a concealed observation position, could see Rohm and his rifle, and testified that Rohm was in a left-handed firing position, appearing to track the LAV and preparing to shoot at the exposed officers. Sergeant Lubelan testified that he fired two shots at Rohm's back. However, autopsy and reconstruction showed that the first and fatal shot passed through Rohm's rifle stock and into his chest. The sergeants in the LAV testified that when they learned Rohm had been shot, they were back inside the LAV, but one sergeant testified that he was still exposed at the exact time Rohm was shot.
PROCEDURE: Plaintiff, Rohm's mother, sued Sergeant Lubelan and Lieutenant Ellsworth in U.S. District Court for the Western District of Michigan per 42 U.S.C. § 1983 for violating Rohm's Fourth Amendment right to be free from unreasonable seizure, and for liability under Michigan state law. Plaintiff claimed that Lieutenant Ellsworth had already ordered his sharpshooters to fire at Rohm if he aimed a rifle at the LAV, and presented expert testimony that police acted deliberately or recklessly to provoke Rohm's actions. After discovery, Defendants moved for summary judgment on grounds that as a matter of law they had not acted unreasonably, and were entitled to qualified immunity. The trial court ruled that the LAV sergeants' testimony that they were inside the LAV when they learned of the shooting, plus Rohm's stepfather's testimony that Rohm always fired rifles right-handed, together with Plaintiff's police practices expert's testimony, established a genuine issue of material fact as to both qualified immunity and Michigan state law liability. SUMMARY JUDGMENT DENIED in all respects. Defendants appealed immediately to the U.S. Court of Appeals for the Sixth Circuit.
DECISION: If any material facts affecting qualified immunity are still in dispute, no appellate court has jurisdiction. However, the Sixth Circuit held that even taking the facts in the light most favorable to Plaintiff, only issues of law remained, establishing appellate jurisdiction. Under these facts, the police did not make the trouble any more than any responding officer does when presented with lawbreaking or violence; in fact, police have a duty to intervene.
Whether or not Lieutenant Ellsworth ordered anyone to fire at Rohm if he raised a weapon at the LAV was immaterial. The two shots that Sergeant Lubelin fired at Rohm constituted the only "seizure" under the Fourth Amendment, and courts may only look at the split-second judgments of the officer who made the actual seizure. Under these facts, a supervisor such as Lieutenant Ellsworth could not be liable, and he was entitled to summary judgment.
Beyond dispute, Rohm was holding his rifle when he was shot, as evidenced by the bullet hole in it. Even if Sergeant Lubelin did not see Rohm point his rifle toward the LAV, a reasonable officer in Sergeant Lubelin's position had probable cause to believe that Rohm was about to do deadly harm. Rohm's violent behavior and the inherent dangerousness of a rifleman close to the LAV were justification for Sergeant Lubelin's well-aimed shots, and he was entitled to summary judgment. Furthermore, under Michigan law, Rohm's own behavior, not any police provocation or recklessness, proximately caused his own death, meaning that all officers were entitled to summary judgment. DENIAL OF SUMMARY JUDGMENT REVERSED.
EDITORIAL: Two great big thumbs up to the Sixth Circuit and Michigan Assistant Attorney General Margaret A. Nelson for a splendid job. Now that's what I call world-class appellate advocacy. I feel for the guy's mother, but nobody gets to raise a hand, much less a deadly weapon, to the law without severe consequence. Bravo Zulu to Sergeant Lubelin for fulfilling the police sharpshooting mission perfectly; righteous shots that hit only the guilty person, stop the fight, and save innocent lives.
LONG STORY SHORT: The proximate cause of the subject's death was his threatening posture with a rifle after he had exhibited very violent behavior, and both the lieutenant who commanded the raid on his house and the sergeant who shot the subject were entitled to qualified immunity. Binding in KY, MI, OH, TN.
FACTS: Cass County, Michigan residents Crosslin and Rohm advocated marijuana production and use, and practiced what they preached at Rainbow Farms Compound, which Crosslin owned. On 31 Aug 2001, Rohm blew off a required court appearance, and he and Crosslin set fire to some outbuildings at Rainbow Farms, inspiring the Cass County Sheriff's Department to surround the premises and call for help from the Michigan State Police Emergency Services Team. Crosslin, visibly armed, refused officers entry and later that day fired at least one bullet into a news helicopter. The standoff continued for days.
On 03 Sep 2001, FBI agents found Crosslin while he was returning from a burglary, and had to shoot and kill him in self-defense. On 04 Sep, Rohm agreed by phone with MSPEST negotiators to surrender if he could talk with his son, but instead Rohm set fire to his house, took up a rifle, and hid between two trees in his backyard. MSPEST had received word that the house was rigged with explosives. A Light Armored Vehicle commanded by Lieutenant Ellsworth of MSPEST approached and by loudspeaker he ordered Rohm to surrender. To use their radios, the two MSPEST sergeants in the LAV with Lieutenant Ellsworth had to sit partially exposed in the open roof hatches, but still could not see Rohm in the early daylight and smoke.
MSPEST sharpshooter Sergeant Lubelan, 150 yards away in a concealed observation position, could see Rohm and his rifle, and testified that Rohm was in a left-handed firing position, appearing to track the LAV and preparing to shoot at the exposed officers. Sergeant Lubelan testified that he fired two shots at Rohm's back. However, autopsy and reconstruction showed that the first and fatal shot passed through Rohm's rifle stock and into his chest. The sergeants in the LAV testified that when they learned Rohm had been shot, they were back inside the LAV, but one sergeant testified that he was still exposed at the exact time Rohm was shot.
PROCEDURE: Plaintiff, Rohm's mother, sued Sergeant Lubelan and Lieutenant Ellsworth in U.S. District Court for the Western District of Michigan per 42 U.S.C. § 1983 for violating Rohm's Fourth Amendment right to be free from unreasonable seizure, and for liability under Michigan state law. Plaintiff claimed that Lieutenant Ellsworth had already ordered his sharpshooters to fire at Rohm if he aimed a rifle at the LAV, and presented expert testimony that police acted deliberately or recklessly to provoke Rohm's actions. After discovery, Defendants moved for summary judgment on grounds that as a matter of law they had not acted unreasonably, and were entitled to qualified immunity. The trial court ruled that the LAV sergeants' testimony that they were inside the LAV when they learned of the shooting, plus Rohm's stepfather's testimony that Rohm always fired rifles right-handed, together with Plaintiff's police practices expert's testimony, established a genuine issue of material fact as to both qualified immunity and Michigan state law liability. SUMMARY JUDGMENT DENIED in all respects. Defendants appealed immediately to the U.S. Court of Appeals for the Sixth Circuit.
DECISION: If any material facts affecting qualified immunity are still in dispute, no appellate court has jurisdiction. However, the Sixth Circuit held that even taking the facts in the light most favorable to Plaintiff, only issues of law remained, establishing appellate jurisdiction. Under these facts, the police did not make the trouble any more than any responding officer does when presented with lawbreaking or violence; in fact, police have a duty to intervene.
Whether or not Lieutenant Ellsworth ordered anyone to fire at Rohm if he raised a weapon at the LAV was immaterial. The two shots that Sergeant Lubelin fired at Rohm constituted the only "seizure" under the Fourth Amendment, and courts may only look at the split-second judgments of the officer who made the actual seizure. Under these facts, a supervisor such as Lieutenant Ellsworth could not be liable, and he was entitled to summary judgment.
Beyond dispute, Rohm was holding his rifle when he was shot, as evidenced by the bullet hole in it. Even if Sergeant Lubelin did not see Rohm point his rifle toward the LAV, a reasonable officer in Sergeant Lubelin's position had probable cause to believe that Rohm was about to do deadly harm. Rohm's violent behavior and the inherent dangerousness of a rifleman close to the LAV were justification for Sergeant Lubelin's well-aimed shots, and he was entitled to summary judgment. Furthermore, under Michigan law, Rohm's own behavior, not any police provocation or recklessness, proximately caused his own death, meaning that all officers were entitled to summary judgment. DENIAL OF SUMMARY JUDGMENT REVERSED.
EDITORIAL: Two great big thumbs up to the Sixth Circuit and Michigan Assistant Attorney General Margaret A. Nelson for a splendid job. Now that's what I call world-class appellate advocacy. I feel for the guy's mother, but nobody gets to raise a hand, much less a deadly weapon, to the law without severe consequence. Bravo Zulu to Sergeant Lubelin for fulfilling the police sharpshooting mission perfectly; righteous shots that hit only the guilty person, stop the fight, and save innocent lives.
Saturday, February 10, 2007
4A4C 2006: Jury Must Decide Furtive Movement Shooting Of Wounded Man, But Unwounded Woman Wasn't "Seized"
SCHULTZ v. BRAGA, USCA-4 No. 05-1604, 05-1610, 455 F.3d 470, 2006 U.S.App. LEXIS 19170, on appeal from USDC-MDD, before Circuit Judges Wilkinson and Traxler and USDJ-VAED Williams, opinion by Traxler, filed 31 July 2006.
LONG STORY SHORT: When an FBI agent mistook an innocent car passenger for a bank robber, and fired a shot him when he appeared to be reaching for a weapon, but the passenger and others testified that he made no such move, the firing agent was not entitled to qualified immunity, and a jury would have to resolve the conflicting testimony. However, the driver of the car had no claim because the agent did not use any force on her and could not have seized her under the Fourth Amendment. Binding in MD, NC, SC, VA, WV.
FACTS: FBI agents were surveilling a 7-Eleven, where Agent Bronson had told them they would see a male bank robbery suspect wearing a white baseball cap arrive in a red vehicle being driven by the suspect's red-haired girlfriend. The suspect, a career criminal and drug addict believed to be seeking suicide by cop, had confessed his involvement in the robbery to King, who told the suspect he would wait in the 7-Eleven to give the suspect clothes and money to help him escape. The suspect did not know that King was cooperating with FBI. As expected, the agents observed a red vehicle park beside the King's truck. A male wearing a white baseball cap got out of the red vehicle, entered the 7-Eleven where the CI was waiting, and returned to the red vehicle, driven by a red-haired female. The arrest team followed this red vehicle.
Agent Hanburger, commanding the arrest team, decided that probable cause existed to stop the red vehicle, and the arrest team executed a dynamic stop, exiting their vehicles yelling "Police," "FBI," "put your hands up," with rifles ready. Agent Kornek positioned himself forward of Harkum (driver), aiming his rifle at her. Agent Stowe, wearing an FBI vest, approached Plaintiff's (passenger) side from the front, aiming his rifle at Plaintiff while continuing to shout verbal commands. Defendant arrived behind Plaintiff, aiming his rifle [according to news reports, the rifle was a 5.56mm M4, the carbine version of the M16] at the back of Plaintiff's head, whereupon Agent Stowe shifted his aim to Harkum. Seconds later, Defendant fired one rifle bullet, which shattered Plaintiff's car window and fragmented on the D-ring of Plaintiff's seat belt, driving numerous metal and glass fragments into Plaintiff's face, seriously injuring him.
The agents extracted Plaintiff and Harkum from their vehicle and handcuffed them, just before Agent Brosnan and King arrived. King had been trying unsuccessfully to communicate to the agents that they were following the wrong red vehicle; the suspect and his girlfriend had driven by the 7-Eleven without stopping. Some blood drops and tiny fragments from Defendant's shot may have hit Harkum but did not injure her. She subsequently suffered from depression and PTSD.
Agent Stowe testified that he arrived first at the subject vehicle. Defendant arrived a second later and began ordering Plaintiff "show me your hands." Agent Stowe tried to open Plaintiff's (passenger) door, to find it locked, and then backpedaled a step, aiming his rifle at Harkum (driver) and ordering her to unlock the door, relying on Defendant to cover the "bank robber," actually Plaintiff. Plaintiff and Harkum testified that they were both focused on Agent Stowe. Harkum testified that she was looking right at Agent Stowe and therefore could see Plaintiff's hands raised up as ordered. Plaintiff testified that he kept his hands in view and began leaning to the right to unlock his door when Defendant's rifle discharged.
Defendant, however, testified that he ran up to the car as Agent Stowe was yelling "Police, FBI, get your hands up," but then Agent Stowe fell silent; Defendant never heard Agent Stowe order anyone to unlock a door. Defendant saw Plaintiff's hands still down, but after the fourth or fifth order from Defendant to raise his hands, Plaintiff instead turned to the left and reached down toward the center console. Since Plaintiff appeared to be trying to reach a weapon, Defendant fired one shot to stop him.
PROCEDURE: Plaintiff and Harkum sued Defendant and other agents in U.S. District Court for the District of Maryland per Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) for excessive force in violation of the Fourth Amendment. After discovery, Defendant moved for summary judgment on grounds of qualified immunity. The trial court ruled that material facts were still in dispute as to Plaintiff's claim; QUALIFIED IMMUNITY DENIED as to him. However, the trial court also ruled that Defendant did not seize Harkum for Fourth Amendment purposes and could not have violated her rights; QUALIFIED IMMUNITY GRANTED as to her. Defendant and Harkum appealed to the U.S. Court of Appeals for the Fourth Circuit.
DECISION: Qualified immunity protects LEOs from bad guesses in gray areas, but not those who choose to step over constitutional bright lines. While the intrusiveness of a seizure by means of deadly force is unmatched by any other type of seizure, courts must evaluate the officer's actions for objective reasonableness in light of the facts and circumstances he knew at the time of the incident, without any questions as to the officer's subjective intent and motive. Here, Defendant reasonably believed that the suspect was armed and dangerous and probably suicidal, and never mind that Plaintiff turned out not to be the suspect, a reasonable officer in Defendant's place would take appropriate defensive measures as the situation evolved.
However, Defendant and Plaintiff testified to virtually opposite facts. Defendant said he saw Plaintiff keep his hands down and then turn and reach toward the center console, where weapons could be hidden. Plaintiff said he raised his hands and began to lean away from the center console and toward the door lock as Agent Stowe was ordering him at gunpoint to do. A reasonable jury could credit the former witness and exonerate Defendant--or could credit the latter witness and find that Defendant shot Plaintiff with a highpower rifle for no good reason. DENIAL OF QUALIFIED IMMUNITY AFFIRMED in part.
As to Harkum, intentional acquisition of physical control must be present in order to constitute a seizure subject to Fourth Amendment regulation. Though the seizure may be of the wrong person or thing, the seizure must be willful. The classic example is of an officer shooting at a suspect, unintentionally missing the suspect, and unintentionally hitting an innocent bystander. The victim may claim negligence, but not wrongful seizure. A contrary example is an innocent motorist who suffers psychological injury from police gunfire aimed at her car and meant to stop her from driving off; the police achieved their goal of terminating her freedom of movement. Here, Defendant directed his force at Plaintiff, not Harkum, and if she was seized at all, it was when she submitted to a different agent's commands to raise her hands and unlock her door. Whether or not some blood drops or fragments may have struck her was irrelevant because Defendant did not mean to seize her. The Fourth Circuit would not stretch the Fourth Amendment to cover what was not a seizure. GRANT OF QUALIFIED IMMUNITY AFFIRMED in part.
EDITORIAL: What a mess, with only the slight consolation that the real suspect, Mike Blottenberger (must be a stage name), got caught not long after. Based on news reports, a Maryland grand jury got an earful about this case, including non-immunized testimony from the firing agent, and refused to indict the firing agent or any other agent. Astonishingly, to moi anyway, a lot of conservatives jumped all over the firing agent, saying he shouldn't be allowed to have a gun because this was the second time he shot an unarmed subject. Never mind that the other shoot was righteous by all accounts, some people just don't want federal agents running around armed.
I can't pass judgment at all, if this is all I know about it. I'll wait for the judge and jury to find the facts. Just to sort out what you see here took me about four hours! However, the Fourth Circuit should have not just affirmed the denial of qualified immunity, but should have dismissed that part of the appeal for lack of subject matter jurisdiction. As you and I know, appellate courts can only decide interlocutory appeals if they involve pure questions of law, and if any facts are still up in the air, no appellate court has the power to touch it. Maybe the Fourth Circuit does it a bit differently. I will also have to plumb the depths of just what is a seizure and what kind of crazy results are possible from the "intent to seize" rule. As I understand it, you walk if you misidentify an innocent man as a subject and shoot at him and miss, killing an innocent woman. That way, you get rewarded for both bad police work and bad marksmanship exercised simultaneously. I need an aspirin.
LONG STORY SHORT: When an FBI agent mistook an innocent car passenger for a bank robber, and fired a shot him when he appeared to be reaching for a weapon, but the passenger and others testified that he made no such move, the firing agent was not entitled to qualified immunity, and a jury would have to resolve the conflicting testimony. However, the driver of the car had no claim because the agent did not use any force on her and could not have seized her under the Fourth Amendment. Binding in MD, NC, SC, VA, WV.
FACTS: FBI agents were surveilling a 7-Eleven, where Agent Bronson had told them they would see a male bank robbery suspect wearing a white baseball cap arrive in a red vehicle being driven by the suspect's red-haired girlfriend. The suspect, a career criminal and drug addict believed to be seeking suicide by cop, had confessed his involvement in the robbery to King, who told the suspect he would wait in the 7-Eleven to give the suspect clothes and money to help him escape. The suspect did not know that King was cooperating with FBI. As expected, the agents observed a red vehicle park beside the King's truck. A male wearing a white baseball cap got out of the red vehicle, entered the 7-Eleven where the CI was waiting, and returned to the red vehicle, driven by a red-haired female. The arrest team followed this red vehicle.
Agent Hanburger, commanding the arrest team, decided that probable cause existed to stop the red vehicle, and the arrest team executed a dynamic stop, exiting their vehicles yelling "Police," "FBI," "put your hands up," with rifles ready. Agent Kornek positioned himself forward of Harkum (driver), aiming his rifle at her. Agent Stowe, wearing an FBI vest, approached Plaintiff's (passenger) side from the front, aiming his rifle at Plaintiff while continuing to shout verbal commands. Defendant arrived behind Plaintiff, aiming his rifle [according to news reports, the rifle was a 5.56mm M4, the carbine version of the M16] at the back of Plaintiff's head, whereupon Agent Stowe shifted his aim to Harkum. Seconds later, Defendant fired one rifle bullet, which shattered Plaintiff's car window and fragmented on the D-ring of Plaintiff's seat belt, driving numerous metal and glass fragments into Plaintiff's face, seriously injuring him.
The agents extracted Plaintiff and Harkum from their vehicle and handcuffed them, just before Agent Brosnan and King arrived. King had been trying unsuccessfully to communicate to the agents that they were following the wrong red vehicle; the suspect and his girlfriend had driven by the 7-Eleven without stopping. Some blood drops and tiny fragments from Defendant's shot may have hit Harkum but did not injure her. She subsequently suffered from depression and PTSD.
Agent Stowe testified that he arrived first at the subject vehicle. Defendant arrived a second later and began ordering Plaintiff "show me your hands." Agent Stowe tried to open Plaintiff's (passenger) door, to find it locked, and then backpedaled a step, aiming his rifle at Harkum (driver) and ordering her to unlock the door, relying on Defendant to cover the "bank robber," actually Plaintiff. Plaintiff and Harkum testified that they were both focused on Agent Stowe. Harkum testified that she was looking right at Agent Stowe and therefore could see Plaintiff's hands raised up as ordered. Plaintiff testified that he kept his hands in view and began leaning to the right to unlock his door when Defendant's rifle discharged.
Defendant, however, testified that he ran up to the car as Agent Stowe was yelling "Police, FBI, get your hands up," but then Agent Stowe fell silent; Defendant never heard Agent Stowe order anyone to unlock a door. Defendant saw Plaintiff's hands still down, but after the fourth or fifth order from Defendant to raise his hands, Plaintiff instead turned to the left and reached down toward the center console. Since Plaintiff appeared to be trying to reach a weapon, Defendant fired one shot to stop him.
PROCEDURE: Plaintiff and Harkum sued Defendant and other agents in U.S. District Court for the District of Maryland per Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) for excessive force in violation of the Fourth Amendment. After discovery, Defendant moved for summary judgment on grounds of qualified immunity. The trial court ruled that material facts were still in dispute as to Plaintiff's claim; QUALIFIED IMMUNITY DENIED as to him. However, the trial court also ruled that Defendant did not seize Harkum for Fourth Amendment purposes and could not have violated her rights; QUALIFIED IMMUNITY GRANTED as to her. Defendant and Harkum appealed to the U.S. Court of Appeals for the Fourth Circuit.
DECISION: Qualified immunity protects LEOs from bad guesses in gray areas, but not those who choose to step over constitutional bright lines. While the intrusiveness of a seizure by means of deadly force is unmatched by any other type of seizure, courts must evaluate the officer's actions for objective reasonableness in light of the facts and circumstances he knew at the time of the incident, without any questions as to the officer's subjective intent and motive. Here, Defendant reasonably believed that the suspect was armed and dangerous and probably suicidal, and never mind that Plaintiff turned out not to be the suspect, a reasonable officer in Defendant's place would take appropriate defensive measures as the situation evolved.
However, Defendant and Plaintiff testified to virtually opposite facts. Defendant said he saw Plaintiff keep his hands down and then turn and reach toward the center console, where weapons could be hidden. Plaintiff said he raised his hands and began to lean away from the center console and toward the door lock as Agent Stowe was ordering him at gunpoint to do. A reasonable jury could credit the former witness and exonerate Defendant--or could credit the latter witness and find that Defendant shot Plaintiff with a highpower rifle for no good reason. DENIAL OF QUALIFIED IMMUNITY AFFIRMED in part.
As to Harkum, intentional acquisition of physical control must be present in order to constitute a seizure subject to Fourth Amendment regulation. Though the seizure may be of the wrong person or thing, the seizure must be willful. The classic example is of an officer shooting at a suspect, unintentionally missing the suspect, and unintentionally hitting an innocent bystander. The victim may claim negligence, but not wrongful seizure. A contrary example is an innocent motorist who suffers psychological injury from police gunfire aimed at her car and meant to stop her from driving off; the police achieved their goal of terminating her freedom of movement. Here, Defendant directed his force at Plaintiff, not Harkum, and if she was seized at all, it was when she submitted to a different agent's commands to raise her hands and unlock her door. Whether or not some blood drops or fragments may have struck her was irrelevant because Defendant did not mean to seize her. The Fourth Circuit would not stretch the Fourth Amendment to cover what was not a seizure. GRANT OF QUALIFIED IMMUNITY AFFIRMED in part.
EDITORIAL: What a mess, with only the slight consolation that the real suspect, Mike Blottenberger (must be a stage name), got caught not long after. Based on news reports, a Maryland grand jury got an earful about this case, including non-immunized testimony from the firing agent, and refused to indict the firing agent or any other agent. Astonishingly, to moi anyway, a lot of conservatives jumped all over the firing agent, saying he shouldn't be allowed to have a gun because this was the second time he shot an unarmed subject. Never mind that the other shoot was righteous by all accounts, some people just don't want federal agents running around armed.
I can't pass judgment at all, if this is all I know about it. I'll wait for the judge and jury to find the facts. Just to sort out what you see here took me about four hours! However, the Fourth Circuit should have not just affirmed the denial of qualified immunity, but should have dismissed that part of the appeal for lack of subject matter jurisdiction. As you and I know, appellate courts can only decide interlocutory appeals if they involve pure questions of law, and if any facts are still up in the air, no appellate court has the power to touch it. Maybe the Fourth Circuit does it a bit differently. I will also have to plumb the depths of just what is a seizure and what kind of crazy results are possible from the "intent to seize" rule. As I understand it, you walk if you misidentify an innocent man as a subject and shoot at him and miss, killing an innocent woman. That way, you get rewarded for both bad police work and bad marksmanship exercised simultaneously. I need an aspirin.
Tuesday, February 6, 2007
4A4C 2006: Dr. Feelgood's Dope-Slinging Justified Seizure Of All Patient Records
UNITED STATES v. HURWITZ, USCA-4 No. 05-4474, 459 F.3d 463, 2006 U.S.App. LEXIS 21425, on appeal from USDC-VAED, before Circuit Judges Widener and Traxler and USDJ-SCD Currie, opinion by Traxler, dissent by Widener, filed 22 Aug 2006.
LONG STORY SHORT: Attachments to the search warrant affidavit did not have to accompany the officers who served the search warrant, and when the offense in question involves a physician overprescribing controlled substances to many patients, the business is so permeated with crime that all patient records were subject to seizure. Binding in MD, NC, SC, VA, WV.
FACTS: In 2002, an unusual number of people in the McLean, Virginia area were arrested for illegal sale of prescription opoids, and several arrestees named Defendant, a medical doctor, as the source of their products. High-dose opoid therapy normally allowed a patient 195mg of morphine or 100mg of Oxycontin daily, but investigation indicated that Defendant was prescribing median dosages of 2,000mg per day to his patients, and some patients received up to 10,000 pills per month. Defendant charged his patients $1,000 "initiation fees" and $250 monthly "maintenance fees." Cooperating arrestees secretly taped Defendant admitting that it was not inconceivable that some of his patients were selling their meds. Medical authorities had disciplined Defendant twice before for overprescribing controlled substances.
Agent Lucas of DEA swore to a search warrant affidavit setting forth those facts, and in the warrant application wrote "See Attachment A of Affidavit" for a description of the property to be seized. Attachment A specified items in Defendant's "medical practice which constitute evidence of [drug trafficking]" including "[p]atient medical and billing files," without identifying any individual patient files. The court issued the warrant and ordered Attachment A and the affidavit sealed. During the search of Defendant's office, federal agents seized all of Defendant's patients' files, and did not bring the affidavit or Attachment A with them when they searched.
PROCEDURE: The United States indicted Defendant for over 60 drug offenses in U.S. District Court for the Eastern District of Virginia. Defendant moved to suppress all evidence found in his office on grounds that the warrant was fatally overbroad and that it did not name the things to be seized with sufficient particularity. The trial court disagreed; SUPPRESSION DENIED. Defendant was convicted of most offenses at jury trial and received a 25-year sentence. He appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that the search warrant was invalid and that he had not gotten a fair trial.
DECISION: The Fourth Amendment requires that warrants particularly describe the things to be seized; otherwise, officers would be entitled to a general rummaging through peoples' property to find what they wanted. This particularity requirement applies to the warrant itself, not just the application for the warrant, but referenced documents can be made part of the warrant. Though other circuits might require both a reference in the warrant and attachment of the referenced document to the warrant, the Fourth Circuit only requires one or the other. The warrant in this case satisfied the requirement by referencing Attachment A to the warrant affidavit.
The fact (which Defendant asserted in the trial court and the United States did not contest, so it was a fact on appeal) that agents brought only the warrant with them, not Attachment A, was not a constitutional problem. Though the better practice is to bring the warrant and all referenced documents, not least because the searching officers can look at it to guide their actions, the Fourth Amendment does not require officers to bring the warrant with them, even if other rules or statutes might.
Neither was the warrant overbroad. Its supporting affidavit provided probable cause that Defendant was running a huge drug trafficking enterprise under the label of a medical practice. Defendant's prescribing practices were well in excess of medically excepted bounds and many of his patients were caught selling controlled substances that he prescribed to them. Defendant's business was so permeated with drug crime that officers needed to seize all patient records. DENIAL OF SUPPRESSION AFFIRMED.
However, Defendant's argument that his trial was unfair had merit. CONVICTIONS AND SENTENCE VACATED and remanded for new trial. The dissent related only to the issues at trial and not the motion to suppress.
EDITORIAL: Good decision in a hard case. I'm giving the guy every benefit of the doubt, because some of his patients at trial testified that he made their pain go away with lots of opoids, and being allergic to pain myself, I'm glad to hear that part. However, it looks like there was waaaay too much of a good thing going down. The feds sure can get carried away with these blanket seizures, though. When I was working the Payne Stewart crash case, I was one of the lowly associates going through boxes of documents (although there are far worse ways to spend a day, I tell you) that the FBI had just turned loose almost three years after swooping in and snatching essentially the entire charter business that had owned the unlucky Lear 35. There was no possible crime in that crash and they destroyed the business for nothing. I have no idea who had the political horsepower to order the FBI in on it. I'd sure like to know though.
LONG STORY SHORT: Attachments to the search warrant affidavit did not have to accompany the officers who served the search warrant, and when the offense in question involves a physician overprescribing controlled substances to many patients, the business is so permeated with crime that all patient records were subject to seizure. Binding in MD, NC, SC, VA, WV.
FACTS: In 2002, an unusual number of people in the McLean, Virginia area were arrested for illegal sale of prescription opoids, and several arrestees named Defendant, a medical doctor, as the source of their products. High-dose opoid therapy normally allowed a patient 195mg of morphine or 100mg of Oxycontin daily, but investigation indicated that Defendant was prescribing median dosages of 2,000mg per day to his patients, and some patients received up to 10,000 pills per month. Defendant charged his patients $1,000 "initiation fees" and $250 monthly "maintenance fees." Cooperating arrestees secretly taped Defendant admitting that it was not inconceivable that some of his patients were selling their meds. Medical authorities had disciplined Defendant twice before for overprescribing controlled substances.
Agent Lucas of DEA swore to a search warrant affidavit setting forth those facts, and in the warrant application wrote "See Attachment A of Affidavit" for a description of the property to be seized. Attachment A specified items in Defendant's "medical practice which constitute evidence of [drug trafficking]" including "[p]atient medical and billing files," without identifying any individual patient files. The court issued the warrant and ordered Attachment A and the affidavit sealed. During the search of Defendant's office, federal agents seized all of Defendant's patients' files, and did not bring the affidavit or Attachment A with them when they searched.
PROCEDURE: The United States indicted Defendant for over 60 drug offenses in U.S. District Court for the Eastern District of Virginia. Defendant moved to suppress all evidence found in his office on grounds that the warrant was fatally overbroad and that it did not name the things to be seized with sufficient particularity. The trial court disagreed; SUPPRESSION DENIED. Defendant was convicted of most offenses at jury trial and received a 25-year sentence. He appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that the search warrant was invalid and that he had not gotten a fair trial.
DECISION: The Fourth Amendment requires that warrants particularly describe the things to be seized; otherwise, officers would be entitled to a general rummaging through peoples' property to find what they wanted. This particularity requirement applies to the warrant itself, not just the application for the warrant, but referenced documents can be made part of the warrant. Though other circuits might require both a reference in the warrant and attachment of the referenced document to the warrant, the Fourth Circuit only requires one or the other. The warrant in this case satisfied the requirement by referencing Attachment A to the warrant affidavit.
The fact (which Defendant asserted in the trial court and the United States did not contest, so it was a fact on appeal) that agents brought only the warrant with them, not Attachment A, was not a constitutional problem. Though the better practice is to bring the warrant and all referenced documents, not least because the searching officers can look at it to guide their actions, the Fourth Amendment does not require officers to bring the warrant with them, even if other rules or statutes might.
Neither was the warrant overbroad. Its supporting affidavit provided probable cause that Defendant was running a huge drug trafficking enterprise under the label of a medical practice. Defendant's prescribing practices were well in excess of medically excepted bounds and many of his patients were caught selling controlled substances that he prescribed to them. Defendant's business was so permeated with drug crime that officers needed to seize all patient records. DENIAL OF SUPPRESSION AFFIRMED.
However, Defendant's argument that his trial was unfair had merit. CONVICTIONS AND SENTENCE VACATED and remanded for new trial. The dissent related only to the issues at trial and not the motion to suppress.
EDITORIAL: Good decision in a hard case. I'm giving the guy every benefit of the doubt, because some of his patients at trial testified that he made their pain go away with lots of opoids, and being allergic to pain myself, I'm glad to hear that part. However, it looks like there was waaaay too much of a good thing going down. The feds sure can get carried away with these blanket seizures, though. When I was working the Payne Stewart crash case, I was one of the lowly associates going through boxes of documents (although there are far worse ways to spend a day, I tell you) that the FBI had just turned loose almost three years after swooping in and snatching essentially the entire charter business that had owned the unlucky Lear 35. There was no possible crime in that crash and they destroyed the business for nothing. I have no idea who had the political horsepower to order the FBI in on it. I'd sure like to know though.
SCOTUS: If The Inmate Didn't Exhaust His Grievances, Then Say So, Or YOU'LL Be Grieving
JONES v. BOCK, SCOTUS Nos. 05-7058, 05-7152, 2007 U.S. LEXIS 1325, 75 USLW 4058, on certiorari from USCA-6, opinion by Chief Justice Roberts, filed 22 Jan 2007.
LONG STORY SHORT: The Prison Litigation Reform Act does not require inmates to plead exhaustion of administrative remedies when they file suit; exhausted claims may not be dismissed on grounds that other claims were not exhausted; and failure to exhaust is an affirmative defense that defendants must plead and prove. Binding in the United States.
FACTS: Three prisoners of the Michigan Department of Corrections alleged violations of their rights. Jones was in a traffic accident while in custody and suffered significant neck and back injuries. Months later, over his protests, he received a work assignment that aggravated his injuries, as corrections officials knew it would. Jones exhausted his administrative remedies against two officials, but also believed that several others were responsible. He eventually sued those two officials and the several others he thought liable.
Williams suffered from a painful and disfiguring condition in his right arm, for which a prison doctor recommended surgery, but corrections officials denied surgery and denied Williams' request for a one-man handicapped cell. Williams filed a grievance regarding his medical treatment, without naming any specific persons, and a grievance regarding his cell. All grievances and appeals were denied.
Walton assaulted a corrections officer and his punishment was an upper-slot restriction, that is, having to receive food and paperwork through the lower slot of his cell door. Later, Walton found out that two other inmates, who were white, had committed the same offense and gotten a three-month upper-slot restriction, but Walton's punishment was indefinite, and he believed that his race was a factor in this disparate treatment. Walton filed a grievance, naming only one specific person as a respondent. The grievance and all appeals were denied. He eventually sued the specific respondent and several other officials.
PROCEDURE: Jones, Williams, and Walton filed separate suits in U.S. District Courts, seeking damages per 42 U.S.C. Section 1983 for alleged violations of their Eighth Amendment rights to be free from cruel and unusual punishment. All three suits had to conform to PLRA, 42 U.S.C. Sec. 1997e et seq. All three complaints were DISMISSED under the Sixth Circuit's "total exhaustion" reading of PLRA, i.e., if a prisoner sued two or more defendants but had not exhausted his administrative remedies against one or more of them, then the whole suit was dismissed. All three prisoners appealed to the Sixth Circuit, which held that the district courts had correctly applied its precedent. Jones had not met the Sixth Circuit requirements of total exhaustion and heightened pleading. In reference to Williams and Walton, prisoners must specifically grieve against the persons they intend to sue. DISMISSALS AFFIRMED. All three prisoners petitioned for and received certiorari from the Supreme Court of the United States, and argued that the Sixth Circuit's legal reasoning was contrary to the Rules of Civil Procedure regarding pleadings and affirmative defenses, and not the majority view of federal courts.
DECISION: It is well known that inmates file a lot of lawsuits, most of which are meritless. Congress passed PLRA in 1996 to require among other things: "No action shall be brought with respect to prison conditions under [42 U.S.C. 1983], or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." However, an inmate need do no more than what the procedures require or allow. Neither may courts use the general principle of "fewer and better prisoner suits" to read into statutes and rules any restrictions that are not already present.
In Williams' case, Michigan grievance procedures did not require him to name any specific person he intended to sue, even if that would be a better practice. PLRA does not make grievance rules; the corrections authorities do. Since he had been as specific as the procedures made him be, he had exhausted. The same went for Walton.
In Jones' case, the "no action shall be brought" language was congressional boilerplate and did not require dismissal of all claims, good and bad, when similar language in many other statutes did not require the same. For example, statutes of limitation are defenses to whatever discrete claims in a lawsuit are too old, but are not defenses to any timely commenced claims in the same suit, even though SOLs typically read "no action shall be brought." As dismaying as the prospect may be, courts must distill "not so much wheat from chaff as needles from haystacks," with the consolation prize that hopefully inmates will no longer have incentive to file several small suits against one or a few defendants each.
In all cases, PLRA exhaustion requirements do not override the Rules of Civil Procedure regarding affirmative defenses. Defendants have to plead and prove lack of exhaustion themselves; the courts may not do so for them. Inmates need not plead exhaustion, and courts may not dismiss their complaints on that basis. SCOTUS is aware that lower courts have plenty of work to do and that inmate litigation is a major difficulty, but lower courts are not free to invoke public policy on a case-by-case basis. Established rulemaking procedures are available and all interests should use them if they are displeased with this ruling.
EDITORIAL: Good show! The Dread Chief Justice Roberts ("I Am Here For Your SOOOOUL") seems not to be quite the inmate-torturing law 'n' order zealot that liberals assured us he was. He actually read the statute, compared it with other similar statutes, considered what other courts said about it, and evaluated the results in light of the fact that we are a government of laws and precedents, not of make-it-up-as-you-go-along "public policy" elasticity. Now THAT is what liberals fear--the courts telling you to go change the rules, not ignore them, when they collide with your lofty ideals. Note also, liberals, that with correct reasoning and logic, it's possible to come up with a unanimous pro-inmate decision, with even Nino Scalia and Quiet Man Thomas agreeing. It seems we have some leadership going on here.
Having run a few inmate civil rights lawsuits in my day, and having given up on that enterprise because it is very hard to pick the good cases out of the squillions of letters I used to get, I rather like this opinion. It makes corrections officials responsible for some of their own behavior. And CJOTUS Roberts gets off a good one now and then--"fewer and better prisoner lawsuits" is classic, as is the footnote about Walton's beef: "An upper slot restriction limits the inmate to receiving food and paperwork via the lower slot of the cell door. Presumably, this is less desirable than access through the upper slot; the record does not reveal how effective this particular sanction is in discouraging assaults on staff." Nor do I see how this amounts to cruel and unusual punishment, or lack of due process, at least enough to bother a federal court with, but you'd be amazed at what prisoners consider really important.
LONG STORY SHORT: The Prison Litigation Reform Act does not require inmates to plead exhaustion of administrative remedies when they file suit; exhausted claims may not be dismissed on grounds that other claims were not exhausted; and failure to exhaust is an affirmative defense that defendants must plead and prove. Binding in the United States.
FACTS: Three prisoners of the Michigan Department of Corrections alleged violations of their rights. Jones was in a traffic accident while in custody and suffered significant neck and back injuries. Months later, over his protests, he received a work assignment that aggravated his injuries, as corrections officials knew it would. Jones exhausted his administrative remedies against two officials, but also believed that several others were responsible. He eventually sued those two officials and the several others he thought liable.
Williams suffered from a painful and disfiguring condition in his right arm, for which a prison doctor recommended surgery, but corrections officials denied surgery and denied Williams' request for a one-man handicapped cell. Williams filed a grievance regarding his medical treatment, without naming any specific persons, and a grievance regarding his cell. All grievances and appeals were denied.
Walton assaulted a corrections officer and his punishment was an upper-slot restriction, that is, having to receive food and paperwork through the lower slot of his cell door. Later, Walton found out that two other inmates, who were white, had committed the same offense and gotten a three-month upper-slot restriction, but Walton's punishment was indefinite, and he believed that his race was a factor in this disparate treatment. Walton filed a grievance, naming only one specific person as a respondent. The grievance and all appeals were denied. He eventually sued the specific respondent and several other officials.
PROCEDURE: Jones, Williams, and Walton filed separate suits in U.S. District Courts, seeking damages per 42 U.S.C. Section 1983 for alleged violations of their Eighth Amendment rights to be free from cruel and unusual punishment. All three suits had to conform to PLRA, 42 U.S.C. Sec. 1997e et seq. All three complaints were DISMISSED under the Sixth Circuit's "total exhaustion" reading of PLRA, i.e., if a prisoner sued two or more defendants but had not exhausted his administrative remedies against one or more of them, then the whole suit was dismissed. All three prisoners appealed to the Sixth Circuit, which held that the district courts had correctly applied its precedent. Jones had not met the Sixth Circuit requirements of total exhaustion and heightened pleading. In reference to Williams and Walton, prisoners must specifically grieve against the persons they intend to sue. DISMISSALS AFFIRMED. All three prisoners petitioned for and received certiorari from the Supreme Court of the United States, and argued that the Sixth Circuit's legal reasoning was contrary to the Rules of Civil Procedure regarding pleadings and affirmative defenses, and not the majority view of federal courts.
DECISION: It is well known that inmates file a lot of lawsuits, most of which are meritless. Congress passed PLRA in 1996 to require among other things: "No action shall be brought with respect to prison conditions under [42 U.S.C. 1983], or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." However, an inmate need do no more than what the procedures require or allow. Neither may courts use the general principle of "fewer and better prisoner suits" to read into statutes and rules any restrictions that are not already present.
In Williams' case, Michigan grievance procedures did not require him to name any specific person he intended to sue, even if that would be a better practice. PLRA does not make grievance rules; the corrections authorities do. Since he had been as specific as the procedures made him be, he had exhausted. The same went for Walton.
In Jones' case, the "no action shall be brought" language was congressional boilerplate and did not require dismissal of all claims, good and bad, when similar language in many other statutes did not require the same. For example, statutes of limitation are defenses to whatever discrete claims in a lawsuit are too old, but are not defenses to any timely commenced claims in the same suit, even though SOLs typically read "no action shall be brought." As dismaying as the prospect may be, courts must distill "not so much wheat from chaff as needles from haystacks," with the consolation prize that hopefully inmates will no longer have incentive to file several small suits against one or a few defendants each.
In all cases, PLRA exhaustion requirements do not override the Rules of Civil Procedure regarding affirmative defenses. Defendants have to plead and prove lack of exhaustion themselves; the courts may not do so for them. Inmates need not plead exhaustion, and courts may not dismiss their complaints on that basis. SCOTUS is aware that lower courts have plenty of work to do and that inmate litigation is a major difficulty, but lower courts are not free to invoke public policy on a case-by-case basis. Established rulemaking procedures are available and all interests should use them if they are displeased with this ruling.
EDITORIAL: Good show! The Dread Chief Justice Roberts ("I Am Here For Your SOOOOUL") seems not to be quite the inmate-torturing law 'n' order zealot that liberals assured us he was. He actually read the statute, compared it with other similar statutes, considered what other courts said about it, and evaluated the results in light of the fact that we are a government of laws and precedents, not of make-it-up-as-you-go-along "public policy" elasticity. Now THAT is what liberals fear--the courts telling you to go change the rules, not ignore them, when they collide with your lofty ideals. Note also, liberals, that with correct reasoning and logic, it's possible to come up with a unanimous pro-inmate decision, with even Nino Scalia and Quiet Man Thomas agreeing. It seems we have some leadership going on here.
Having run a few inmate civil rights lawsuits in my day, and having given up on that enterprise because it is very hard to pick the good cases out of the squillions of letters I used to get, I rather like this opinion. It makes corrections officials responsible for some of their own behavior. And CJOTUS Roberts gets off a good one now and then--"fewer and better prisoner lawsuits" is classic, as is the footnote about Walton's beef: "An upper slot restriction limits the inmate to receiving food and paperwork via the lower slot of the cell door. Presumably, this is less desirable than access through the upper slot; the record does not reveal how effective this particular sanction is in discouraging assaults on staff." Nor do I see how this amounts to cruel and unusual punishment, or lack of due process, at least enough to bother a federal court with, but you'd be amazed at what prisoners consider really important.
Subscribe to:
Posts (Atom)