Appellate Law & Practice

CA1: what to do about a shooting of a mentally ill person

Est. of D. Bennett v. Wainwright, No. 07-2169.  Mentally ill guy off his meds shoots at some cops.  Mentally ill guy gets shot by cops. 

There issues here of notes.  The estate appeared to make a “loss of consortium” argument, but the First says that can’t be based on the liberty or property interest of the defendant.  But, really, it seems like the plaintiff just made a bunch of legal-sounding noises (like “substantive due process”) and hoped the courts understood.  Also, the First appears to provide some discussion of the difference between a Fifth Amendment taking and a Fourth Amendment taking. 

Anyway, the First appears to take the qualified immunity arguments seriously.  However, it sides with the cops.  Based on the facts, I would say this is a great example of qualified immunity working.  However, because courts seem too willing to apply it, I can’t take that too seriously. 

They also screwed up the local Rule 56 requirements.  Though, while the First delights in saying that lots of arguments are waived, it does pause to mention that one of the cops involved was known as “Deputy Death.” 

CA1: vindicative license revocation okay due to preclusion

Giragosian v. Ryan, No. 08-1067.  One upon a time there once was a gun shop that would give lessons in the sports of shotting-stuffs-man-ship.  While being taught the art of shooting, a customer committed suicide.  The police chief revoked his gun license.  The gun store owner went to state court, and the state court vacated the suspensions.  Undeterred, the police chief revoked his license again citing some other reasons.  So, the gun-store owner sued under 42 U.S.C. 1983 in federal court and proceeded in state court as well.

This time the police chief did better at state court.  The first then holds that the 1983 action is precluded, but it seems to just say that the plaintiff made a strategic error (and therefore loses his business and livelihood) by simultaneously filing in state court, or at least should have filed the 1983 claim in state court when challenging the second denial.

The First also says that in a 12(b)(6) motion a District Court can consider documents from prior state court adjudications. 

CA1: developer plaintiff moves forward with “class of one” environmental case

SBT Holdings, et al v. Town of Westminster et al , 08-1512.  This is a 1983 case for rich people.  The First reverses the District Court and holds for the developers.  SBT bought property.  Storms came.  Runoff started messing with the environment.  The town and state suggested some remediation and prevention measures.  But the town should have yieled to the state agencies on this (as a jurisdictional matter).  The town sued in state court for an injunction.  The developer won.  The developer went to federal court and sued under 1983, alleging that the town violated his right to be protected equally as a “class of one.”  The District Court dismissed. The First reverses pointing to a number of bits of evidence that show that the town-actors were out to get the developer.  The First also rejects a claim preclusion claim, noting that the state court lawsuit wasn’t about constitutional rights.  Finally, the First unravels a number of basic state-law issues about who the proper party is under state law.

CA1: the limits of Scott v. Harris

Parker v. Gerrish, No. 08-1045 affirms a jury verdict in a 1983 case where a cop tased someone on video.  That’s a surprise.  So, there must be some important law here.  Actually, the facts are very important in light of the Supreme Court’s recent qualified immunity decisions regarding qualified immunity and summary judgment based on video simply because people move in and out of the frame of the video.  See Scott v. Harris, 127 S. Ct. 1769, 1776 (2007).

On the excessive force claim (where the plaintiff had expert testimony) the First points out that DWI doesn’t pose that much of a risk to the officer, and the arrestee wasn’t meaningfully engaged in the practice of “resisting arrest” and a jury could have found that some hand motion during cuffing was “de minimis in light of the circumstances.”  The First goes on to say that Scott v. Harris, 127 S. Ct. 1769, 1776 (2007) doesn’t change the standard of review regarding videtape evidence, but rather Scott just governs how a court assesses whether a jury could reasonably have found something.    Moreover, reasonable officers don’t taze people just because they are “insolent” and insulting.  (This is something that officers and members of the non-barred class need to understand.  However, a lot of lay people and some summer associates think that insolence is grounds for tazing a poor person.)

CA1: $3.1 award affirmed in FBI-agent leak case

McIntyre v. US, Nos. 07-1663, 07-1664.  This case has a very long and celebrated history.  But not much law is made here. Essentially, an FBI agent leaked the identity of a mob informant, and the mob informant was killed.  But, the facts reveal that various FBI agents were aware of the close relationship between the agents and the mob, and protecting informants from prosecution.  The government’s appeal challenges the District Court’s finding that “claims that the court erred only in concluding that Connolly's leak of McIntyre's identity fell within the scope of his employment for the FBI, the prerequisite to liability against the United States under the FTCA.”  Specifically, “In the terms of the multi-prong framework of Massachusetts law, the United States maintains that leaking McIntire's identity was neither the kind of conduct Connolly was hired to perform (prong one) nor motivated by a purpose to serve the FBI (prong three)”  The First says that the evidence showed that it was the “custom” (that is, the way they fought the war on crime), and that the FBI really bent over backwards for them.  Some agents were not so pleased with this, but that doesn’t change the fact that the FBI was really going out of its way to help some bad people.

At the end there is some law on post-judgment interest.  The rate should be 5.1% and it “runs from the date of filing of the transcript of the judgment with the Secretary of the Treasury through the day before the date of the mandate of affirmance.”  31 U.S.C. § 1304(b)(1)

CA1: Pullman abstention doesn’t apply to fight over poor-people law fees

Batterman v. Leahy, No. 07-2653.  This is a long prolonged suit by a lawyer that was contracted to represent children that were being taken away from their poor parents.  There was a lot of underlying litigation, and the Committee for Public Counsel Services ("CPCS") balked to represent poor people in long trials that would decide the silly matter of whether they would have their kids taken away from them. CPCS decided to audit his billing records, but dragged its feet.  The suit alleged various constitutional and state law issues (the big one being a cap on the number of hours billed).  The District Court sua sponte invoked R.R. Comm'n of Tex. v. Pullman, 312 U.S. 496 (1941) abstention, so the plaintiff could proceed in state courts.  Now we are talking grown-up law.

The First says that Pullman abstention doesn’t apply here.  After all, state law is fairly clear.  It says Burford v. Sun Oil Co., 319 U.S. 315 (1943) abstention might apply, but that isn’t clear, either.

But, then the First goes even further, and it says that the attack on the cap is meritless.  Showing that the judges (and their clerks) never represented real people, it preaches that lawyers might get screwed over if they can’t withdraw from a non-paying representation.  This is oversimplistic: just because a rule of professional conduct says something, doesn’t make it constitutional.  Moreover, when the government seeks to use a rule of professional conduct as a sword against a lawyer state action is invoked, and there is a constitutional issue.  But the First doesn’t care. 

So, it tosses out this bone:

In all events, Batterman’s attack on the cap is meritless and his present hope of a vast monetary recovery may well be dubious. At the same time, he may be owed something under the manual and an agency cannot easily explain why it takes years for it to decide about reimbursement for past work. Both sides ought to consider whether this case can be resolved by discussion and without further litigation.

CA1: government liable when postal workers steal mail for political ends

Levasseur v. US Postal Service, No. 08-1266.  This case would be interesting but for the fact that the plaintiff is a pro se.  As you know, there is an exception in the FTCA for that preserves sovereign immunity for "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matters." 28 U.S.C. § 2680(b).  The plaintiff claims that “political campaign flyers that were diverted by a partisan postal employee to prevent them from being delivered to voters shortly before a municipal election.”  The District Court said the exception applied, because that exception didn’t apply to intentional torts.  The First says that Birnbaum v. United States, 588 F.2d 319 (2d Cir. 1978) doesn’t applying because Birnbaum didn’t involve a loss but rather CIA agents (many of whom were paid less than first year associates looked at peoples’ mail). 

As I said, this is an interesting question, but the First seems to not be taking it seriously.  There are serious issues at stake here.  Some postal workers were trying to take mail for partisan purposes.  The best the First can muster is “We think it entirely reasonable to say, as these cases have, that mail that is stolen by a postal employee is thereby ‘lost’ from the postal system.”

CA1: No authority to revisit final order memorializing consent decree when policy changes

Ricci v. Okin, No. 07-2522,  07-2523.  This case revolves around a consent decree meant to reform a mental hospital.  The underlying litigation ended in 1993, with an “disengagement order.”  Then, in 2006, the court issued an injunction prohibiting transfers of some of the patients, appointed the US Attorney to investigate, and concluded that by the terms of the 1993 order, the case should be reopened.

The First sides with the state and holds that the District Court doesn’t have the authority to reopen its case.  The First says that the Disengagement Order allowed for hospitals to be closed, and whatever the case, the monitor found that the state was complying with the order as it stood by in 1993.  And, since then, the “law” has moved away from the putting retarded people in institutions, but instead letting them trade mortgage-backed securities.

What this really comes down to is the “modification doctrine.”  See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992).  But circumstances didn’t not change.

The First then says that there is no “inherent authority” to revisit the 1993 order, or would an exercise of ancillary jurisdiction under Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994) be warranted. 

CA1: another chapter in Narragansett Indian Tribe lawsuit ends on procedural note

Thomas v. State of RI, No. 07-1985.  This is yet another appeal regarding a raid onto the tribal lands.  As you may recall, the First Circuit in Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 30-31 (1st Cir. 2006) (en banc) (our coverage here) decided that “state officers could execute a search warrant on tribal lands and arrest members of the Tribe in order to enforce the State's laws.” .  But, now they are arguing that the earlier cases didn't decide whether the state has jurisdiction over the tribe.  The plaintiffs sought leave to amend, but that was denied.

The First says that the complaint in the second lawsuit didn't aledge of lack of probable cause, and the complaint was really just too vague.  Moreover, the request for leave to amend didn't comply with local rules.

CA1: cop fight results in valid First Amendment claims

Welch v. Ciampa, No. 07-2470.  This is one of those frequent cases where cops and politics result in lawsuits.  See, although cops frequently tase poor people, they also like to sue each other.  It is part of cop culture, too.  They should have gone to law school. 

But what else do cops like?  Ah, misconduct.  And retaliation.  Recall elections.  And being indicted.   

Anyway, skipping over all the angst, here is what we got.

Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977 ) can be applied to political discrimination cases, but the plaintiff must actually take whatever job action or harassment being complained of. 

Since a lot of this took place in the context of a recall election, the First does, however, conclude that:

We can discern no principled basis for holding that an employee who supports an opposition group is protected by the First Amendment but one who chooses to remain neutral is vulnerable to retaliation. We recognize that a plaintiff’s active support of a candidate or cause may help the plaintiff meet her evidentiary burden of showing that the adverse employment decision was substantially motivated by her political affiliation.

Therefore, discriminating against people for being neutral can support a political discrimination claim. 

The plaintiffs partially lose on their Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978) claim which was essentially that the municipality put power into the kinds of people likely to engage in politically-motivated retaliation.  On the other hand, one of the defendants actually did have policy-making capability, so they plaintiffs partially win.

So, with all that in mind, the plaintiffs also get a reversal on the state whistleblower, and tortious interference claims.