Civil procedure in the federal courts has changed dramatically over the past few years, primarily through the Supreme Court’s manipulation of doctrine to encourage lower courts to dismiss tort, class action, antitrust, and civil rights cases. As I wrote a year ago in a guest post at TortsProf:

 

[A]s the courts become increasingly obsessed with deciding complicated cases by reference to procedural doctrines that ask the court to leave its expertise in the law and feign expertise in complex factual situations, courts run an increasing risk of becoming wholly unmoored from the facts of the disputes they are trying to decide. If a primary concern about tort litigation is that it is unpredictable — as is often stated by tort reformers — then everyone should be concerned when judges decide for themselves the dispositive facts of cases.

 

In early May of this year, Professor Suja Thomas had published an article in Judicature explaining how the summary judgment standard had “become a proxy for a judge’s own view of the evidence.” In one of her examples, she compared the majority and dissent opinions in Scott v. Harris, 127 S. Ct. 1769 (2007), a civil rights case involving a police chase, and just how far the majority had to leap to enter summary judgment for the defendant, preventing the plaintiff from ever presenting his case to a jury.

 

Then, on May 5, 2014, came Tolan v. Cotton, a civil rights case with depressingly common facts: with slim-to-none probable cause, a police officer instigated a confrontation with homeowners and ended up shooting a family member, permanently injuring him. There, all nine members of the Supreme Court agreed that the underlying court had dismissed the case based on their own view of the evidence, and so reversed the entry of summary judgment:  Continue Reading The Supreme Court’s Results-Oriented Summary Judgment Precedent

I suppose it’s unsurprising that criminal defense lawyers and plaintiff’s lawyers would all have concerns about the use of Tasers — the Taser victims and their family members end up in our offices — but even prosecutors and municipal and state defense lawyers (speaking off the record, of course) express dismay at the frequency and manner in which Tasers are used.

 

By Amnesty International’s count, since 2001 over 500 people have died in the US as a result of Taser use. Police departments have just begun admitting there’s a problem. Cincinnati’s police chief has admitted Tasers can kill. Seattle won dismissal of the civil rights claims in a case case where they Tasered a pregnant woman for refusing to sign a speeding ticket and, rather than crowing over their victory, said they had already changed their policy. It’s a start; as I’ve discussed before, the tendency of police departments to move from zealous law enforcement to brutality is all too common.

 

Alas, if you’re a criminal defense lawyer or a civil rights lawyer, then you instinctively rolled your eyes the moment you read the phrase “changed their policy.” To what? Do these new policies treat Tasers the way they should be treated — given the studies confirming real risks of heart attacks and skull fractures — as a means of last resort, literally a substitute for a bullet, instead of a more convenient means of obtaining compliance? Or do these new policies merely warn about “extended or repeated Taser exposure” — which some police officers will gladly read as including more than a minute of tasing, and dozens of shocks — with an all-purpose exception for “active resistance,” so the police officers can always claim the suspect was “actively resisting” and thereby comply with the Potemkin policy?

 

Which brings us to the point of this post. So, you’re a plaintiff’s lawyer, and a client (or their survivor) has just come in after a tasing incident. Now what?

 

There are three main claims you could bring: (1) excessive force civil rights claims against the cops; (2) a Monell practice or policy claim against the police department; and, (3) a products liability claim in strict liability or negligence against Taser International itself.

 

Excessive force claims (of all types, not just Tasers) are common; they’re disfavored by federal courts that are a bit too keen on summary judgment, but they’re typically inexpensive to litigate and can provide for attorney’s fees if successful, which is important because the verdicts and settlements are typically fairly low unless the client is brain damaged, paralyzed, or deceased. The real art is in distinguishing strong claims from merely meritorious ones in effectively conveying your own client’s version of events while undermining the police officer’s undoubtedly different version, and in grappling with the tendency of many jurors to believe your client got what was coming to them.

 

Monell claims are also tough. Courts rarely let any type of civil rights claim get to a jury, and courts are even more strict on Monell claims. There’s little harm in alleging them in the complaint, but get moving in discovery to back them up — and if you can’t back them up, know when to fold them and stop wasting everyone’s time. Truth is, Monell claims are generally not the province of generalist personal injury lawyers doing an occasional police brutality or wrongful prosecution case, they’re more for civil rights and public interest lawyers who have repeatedly seen the same problem and so already have the inside knowledge needed to back up the claims.

 

Finally, product liability lawsuits in general are not for the faint of heart nor plaintiff’s lawyers on shoestring budgets, and lawsuits directly against Taser International are no exception. Consider this: Taser won the first 60 product liability lawsuits filed against it, going back to the early 1990s, then finally lost one in 2008. Similarly, like with most product liability claims, plaintiffs’ firms should expect to pay $100,000 in costs just to get to a jury and should have the wherewithal to pay $250,000 on a single risky case. Needless to say, that means Taser product liability suits tend to make sense only when your client has been catastrophically injured or when your suit is on behalf of survivors. Study the Fontenot and Rich cases below; if you don’t have a case like that — e.g., a client who died from a heart attack after being tasered in the chest by a cop taught by Taser to go for “center of mass” — then consider forgoing the product liability claim because it’ll just chew up your time and money, reduce the recovery for your client, and create bad law for the rest of us. If you have a case like that but don’t have the ability to prepare or to fund it, refer it to someone who can.

 

Now, on to the law.

Continue Reading A Trial Lawyer’s Guide To Taser Lawsuits

Insurance-Funded Congressional Representatives Again Try To Deny Justice For Patients Injured By Medical Malpractice

Some bad ideas just will not go away. A few days ago The Pop Tort noted that the new, anti-patient Congress was holding hearings on medical malpractice liability. If they had listened to the excellent testimony of Joanne Doroshow, Executive Director of the Center for Justice & Democracy, they would have realized that injured patients need more, not less, legal protection.

But the “hearings” were a sham anyway, and a few days later the insurance-backed members of Congress introduced a new plan to strip away the rights of medical malpractice victims.

Phil Gingrey (R-GA11) ran unopposed last election, but that did not stop health services companies, HMOs, hospitals, pharmaceutical companies, medical device companies, and insurance companies from contributing nearly $500,000 to his “campaign.”

It seems like he is ready to pay them back. As his press release trumpets:

Senior Health Subcommittee Member Phil Gingrey, M.D. (R-Ga.), House Judiciary Committee Chairman Lamar Smith (R-Texas), and Congressman David Scott (D-Ga.) today introduced The HEALTH Act (H.R. 5), a bill that includes meaningful medical liability reforms to lower the cost of health care while strengthening the doctor-patient relationship.

The press release has little by way of facts, except for this whopper: “According to the Harvard School of Public Health, 40% of malpractice suits filed in the U.S. are ‘without merit.’”

That’s funny, since I actually read the Harvard study on medical malpractice, and it said:

The researchers analyzed past malpractice claims to judge the volume of meritless lawsuits and determine their outcomes. Their findings suggest that portraits of a malpractice system riddled with frivolous lawsuits are overblown. Although nearly one third of claims lacked clear-cut evidence of medical error, most of these suits did not receive compensation. In fact, the number of meritorious claims that did not get paid was actually larger than the group of meritless claims that were paid. …

“Some critics have suggested that the malpractice system is inundated with groundless lawsuits, and that whether a plaintiff recovers money is like a random ‘lottery,’ virtually unrelated to whether the claim has merit,” said lead author David Studdert, associate professor of law and public health at HSPH. “These findings cast doubt on that view by showing that most malpractice claims involve medical error and serious injury, and that claims with merit are far more likely to be paid than claims without merit.”

Most claims (72%) that did not involve error did not receive compensation. When they did, the payments were lower, on average, than payments for claims that did involve error ($313,205 vs. $521,560). Among claims that involved error, 73% received compensation.Overall, the malpractice system appears to be getting it right about three quarters of the time,” said Studdert. “That’s far from a perfect record, but it’s not bad, especially considering that questions of error and negligence can be complex.” The 27% of cases with outcomes that didn’t match their merit included claims that went unpaid even though the injury was caused by an error (16%); claims that were paid but did not involve error (10%); and claims that were paid but did not appear to involve a treatment-related injury (0.4%).

The title of the study’s own press release was “Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits.” Who are you going to believe, a paid-for Congressman or your lying eyes?

The study did not find that 40% of medical malpractice lawsuits were without merit. The study found that one-quarter of medical malpractice victims did not recover compensation, while, at most, only one-tenth of successful claims involved injures not caused by medical malpractice — and the plaintiffs in those cases received far less than the plaintiffs who had injures which even a panel of doctors thought were caused by medical malpractice.

The system works imperfectly, but so does every system — including our medical system, which costs the economy a minimum of $20 billion just in treating medical (iatrogenic) injuries. When you recognize that our entire medical malpractice liability system costs under $5 billion a year, you realize that, all in all, our medical malpractice liability system is downright cheap, and is compensating victims of medical negligence for only a fraction of their damages.

Even if we put aside the fact that, for every dollar spent on compensating the victims of medical negligence, more than $5 dollars in damage was caused by medical negligence, it bears repeating that the overall costs of compensating injured patients is so small that it the medical malpractice liability system does not restrict access to health care. Similarly, malpractice lawsuits have not been shown to change of physician behavior — so-called “defense medicine” — even in high-risk, high-liability cases like obstetricians’ decisions to perform c-sections when the baby shows signs of fetal distress.

I could go on — like how Gingrey’s proposal of “non-economic caps” would slam the courthouse doors shut on all but a few injured patients, and even then only those patients who were earning high incomes when they were injured or died — but I think the burden of proof here should lie with the people, like Gingrey, saying there’s a “medical malpractice crisis.” So far, he can’t muster anything more than a lie about the Harvard study.

Continue Reading New Medical Malpractice “Tort Reform” Just Another Pack of Lies

Talking Points Memo reports the latest on the Shirley Sherrod fiasco:

Shirley Sherrod said this morning on CNN that she would like to “get back at” Andrew Breitbart.

Asked if she would consider a defamation suit against Breitbart, the conservative blogger who posted the edited clip that got her fired, she said, “I really think I should.”

“I don’t know a lot about the legal profession but that’s one person I’d like to get back at, because he came at me. He didn’t go after the NAACP; he came at me,” she went on.

To recap the underlying facts here:

BigGovernment.com “broke” a story yesterday about a speech given a few months ago by Shirley Sherrod, USDA Georgia Director of Rural Development, at an NAACP Freedom Fund dinner. In it, Sherrod tells a story from 24 years ago about not helping a white farmer as much as she could have because she was “struggling with the fact that so many black people had lost their farm land.”

The point of this story, told in a public venue, was that she quickly realized that she had done wrong. “That’s when it was revealed to me that it’s about poor versus those who have. It’s not so much about white…it is about white and black but it’s not, you know…it opened my eyes.”

Breitbart apparently edited the video he released, removing the context which showed the timeframe in which it occurred, Sherrod’s quick realization of how wrong she had been, and Sherrod’s subsequent friendship with the white farmers at issue. To anyone who saw the video and the report — including Secretary of the Agriculture Tom Vilsack and the NAACP — it appeared that Sherrod had unabashedly admitted discriminating against whites in her official duties.

The NAACP sharply criticized Sherrod, and Secretary Vilsack promptly fired her. Once the full tape was released, the NAACP apologized profusely for having been “snookered” by Breitbart, and Vilsack offered Sherrod her job back. Breitbart also posted a correction:

Correction: While Ms. Sherrod made the remarks captured in the first video featured in this post while she held a federally appointed position, the story she tells refers to actions she took before she held that federal position.

So if everyone supposedly now knows the truth, can she still sue for defamation?

Certainly.

Two words: Richard Jewel.

What came to mind when you read that?

If you’re like me, you thought: Olympic Park Bomber.

Jewel wasn’t the bomber, of course — that was Eric Rudolph — but after he was identified as a “person of interest,” the media quickly cemented in the public’s mind a nefarious, rather than heroic, connection between Jewel and the bombing. Subsequent corrections were issued, but the libelous link lingered.

He sued in Georgia, where Sherrod is based and where she would likely sue.

The problem, though, was the high bar he had to reach to prevail:

The central issue presented by this appeal is whether Jewell, as the plaintiff in this defamation action, is a public or private figure, as those terms are used in defamation cases. This is a critically important issue, because in order for a “public figure” to recover in a suit for defamation, there must be proof by clear and convincing evidence of actual malice on the part of the defendant. Plaintiffs who are “private persons” must only prove that the defendant acted with ordinary negligence. Jewell contends the trial court erred in finding that he is a “public figure” for purposes of this defamation action.

Atlanta Journal-Constitution v. Jewell, 555 SE 2d 175 (Ga. 2001). Jewel lost on that, though, and had to move forward in his case as a “public figure.”

But he prevailed anyway, negotiating settlements with several media outlets that were apparently in the six or seven figure range. We’ll never know what a jury would have found in his case, but we know that the defendants were certainly worried about it, despite the subsequent corrections.

Breitbart apparently senses the danger, and has, through his site, started a defense:

Did Breitbart really excise or ignore the exculpatory portion of Sherrod’s remarks? The initial version of the video included Sherrod’s change-of-heart conclusion that she ought to engage in class warfare rather than race warfare. Her subsequent remarks (the ones that were supposedly edited out) simply built on that theme. Also, does anyone really believe that Andrew Breitbart would intentionally distort a video clip to make a one-day splash? Risk his growing reputation with a deliberate, easily refutable distortion? For those clamoring for more careful consideration of context and intent, perhaps they should contemplate those questions.

Those are just the type of questions a jury would contemplate in assessing whether or not Brietbart acted with “actual malice.” Indeed, there’s reason to believe Brietbart had some objective in mind with the edited video:

It’s also important to understand that Andrew Breitbart’s timing of the release of the grossly distorted video of Sherrod, which he admits having had for weeks, may not be entirely random. Congress will soon vote on whether to fund part of a settlement between the USDA and African-American farmers who faced acknowledged discrimination — farmers like Sherrod and her husband used to be. It’s a tiny piece of the upcoming war supplemental bill.

The only way we’ll actually get an answer to Breitbart’s own questions is if Sherrod does indeed sue.

All the signs were there:

[Dr. Rolando G. Arafiles Jr. had] a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services. …

Dr. Arafiles was sending e-mail messages to patients about an herbal supplement he sold on the side. …

The hospital administrator, Stan Wiley, said in an interview that Dr. Arafiles had been reprimanded on several occasions for improprieties in writing prescriptions and performing surgery and had agreed to make changes. Mr. Wiley, who said it was difficult to recruit physicians to remote West Texas, said he knew when he hired Dr. Arafiles that he had a restriction on his license stemming from his supervision of a weight-loss clinic.

In a surprise inspection last September, state investigators found several violations by Dr. Arafiles …

Most doctors are competent and diligent professionals who, over the course of their careers, might breach the standard of care in a manner that causes significant harm to patients only a handful of times.

As I have written before, however, “Fact is, there is a small minority of doctors who are simply terrible at their jobs.” The nationwide malpractice settlement numbers don’t lie:

A few physicians were responsible for a large proportion of malpractice payment dollars paid: The 1 percent of physicians with the largest total payments in the NPDB were responsible for about 11.7 percent of all the money paid for physicians in malpractice judgments or settlements reported to the NPDB. The 5 percent of physicians with the largest total payments in the NPDB were responsible for just under a third (31.4 percent) of the total dollars paid for physicians. Eleven percent (11.6 percent) of physicians with at least one malpractice payment were responsible for half of all malpractice dollars paid from September 1, 1990 through December 31, 2006.

It looks like Dr. Arafiles was among the bottom-of-the-class physicians who shouldn’t practice medicine at all.

At least that’s what Anne Mitchell, the hospital’s compliance officer, and two other nurses (one of them the hospital’s quality improvement officer) thought, so they, as Texas law requires them to do, filed an anonymous complaint with the Texas Medical Board.

And what did they get in return for reaching out — through the appropriate, confidential, state-required channels — to protect patients?

They were fired then criminally prosecuted:

When she was fingerprinted and photographed at the jail here last June, it felt as if she had entered a parallel universe, albeit one situated in this barren scrap of West Texas oil patch.

“It was surreal,” said Mrs. Mitchell, 52, the wife of an oil field mechanic and mother of a teenage son. “I said how can this be? You can’t go to prison for doing the right thing.”

But in what may be an unprecedented prosecution, Mrs. Mitchell is scheduled to stand trial in state court on Monday for “misuse of official information,” a third-degree felony in Texas.

I wish I could say I was surprised, but I’m not: Texas is perhaps the most patient-unfriendly state in the union. Just last year, the American College of Emergency Physicians gave Texas an “A” for tort reform and an “F” for access to emergency care. That’s no surprise: as tort reform goes up, care goes down.

Tort reform wasn’t enough, though. The doctors in Texas are apparently so bad they need not just special civil protections from patients and their lawyers, but also the threat of criminal prosecution looming over nurses and hospital compliance / quality improvement officers.

Read more about our medical malpractice and birth injury legal services.

Sometimes, a police officer’s hunch is right:

Columbia [Missouri] Police Officer Jessica McNabb pulled over then-19-year-old Daniel Sanders at Stadium Boulevard and Audubon Drive for running a red light and failing to use his headlights at night. Sanders didn’t have a license. He asked for an attorney almost immediately.

After a search of the trunk, McNabb found the body of Sanders’ mother beneath a tire — next to a new shovel with the price tag still on it.

Sometimes not:

Jordan Miles, who is black, thought his life was in jeopardy when three white men jumped out of a car on the night of January 11 as he walked not far from his home.

"My son tried to run thinking his life was in jeopardy," Terez Miles said. "He made three steps before he slipped and fell." After that, she said, the [Pittsburgh] police used a stun gun and beat him, pulling out a chunk of his hair.

The criminal complaint says the officers, considering Jordan Miles’ appearance suspicious, got out of the car and identified themselves as police. He tried to flee, fell, and then struggled to escape.

The officers "delivered 2-3 closed fist strikes to Miles’ head/face with still no effect," and then a "knee strike to Miles’ head causing him to momentarily stop resisting," so that he could be handcuffed, the document says.

Miles’ mother said the officers did not identify themselves as police to her son, a viola player and student at the city’s Creative and Performing Arts High School.

The complaint says the police officers believed Miles was engaged in criminal activity and possibly armed with a "large heavy object." The object turned out to be a bottle of Mountain Dew.

There’s a law for both:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Ironically, Daniel Sanders might have a better chance of avoiding a conviction for his mother’s murder than Jordan Miles has of recovering compensation for his injuries.

Last year, the Supreme Court held in Arizona v. Gant that the Fourth Amendment prohibits "a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle," with a limited exception for such searches "when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle."

Sanders was not pulled over or arrested for his mother’s murder, so the exception doesn’t apply. There’s no doubt that he was "secured" — he didn’t even put up a fight, he just asked for his lawyer.

His lawyer has moved to exclude from the trial all evidence found from the search of Sanders’ car, including, of course, his mother’s body:

In that motion, [Sanders’ lawyer] Slusher said McNabb continued to question Sanders after he asked for an attorney and that the search of the car was conducted without a warrant or probable cause. Slusher characterized the search and the continued questioning as unconstitutional and thus inadmissible in trial.

He might win it. I’m sure the district attorney’s office is burning the midnight oil to find some daylight in Arizona v. Gant.*

Returning to Miles, it’s quite possible that the officers identified themselves as police and that Miles didn’t hear them. Police confrontations are often fraught with confusion. Consider this instance:

Defendant Murphy approached the driver’s side window and asked Plaintiff to produce his identification and credentials for inspection. (Frohner Dep. at 39.) Plaintiff, who kept his credentials in the door pocket of the driver’s side door when driving, (Pl.’s Br. Ex. C at 4), began to reach down to retrieve his credentials. (Frohner Dep. at 39.) As Plaintiff was reaching down, Defendant Murphy shouted at Plaintiff, "keep your hands where I can see them." (Id. at 39-40.) Plaintiff, "[n]ot immediately understanding what was transpiring," continued to reach for his credentials in the door pocket, which prompted Defendant Murphy, who by this time had drawn his firearm, to again shout to Plaintiff to keep his hands in view. (Id. at 39-42.) Plaintiff complied with Defendant Murphy’s second order and ceased reaching down to the door pocket. (Id. at 40.)

Frohner v. City of Wildwood, 07-1174 (D.N.J. 2008).

Plaintiff there — who was almost shot — was an on-duty undercover FBI agent. He was approached by a uniformed police officer who had pulled him over in a marked police car. Yet, even he didn’t "immediately understand what was transpiring."

Consider what Miles would have "immediately understood" when three men in plainclothes jumped out of a car and started chasing him.

To win in a civil lawsuit, though, Miles has to show more than that the officers made a mistake.

First, he has to show his constitutional rights were violated. Then, he must overcome qualified immunity by showing "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Curley v. Klem, 499 F.3d 199, 206-07 (3d Cir. 2007). Neither is easy to prove; most plaintiffs alleging violations of their constitutional rights lose their cases.

Miles has two constitutional rights that were potentially violated: the right to be free from false arrest and the right not to be subjected to excessive force during an arrest. I don’t know what about his "appearance" was "suspicious," but the article reports "the police officers believed Miles was engaged in criminal activity and possibly armed with a large heavy object." From that, we can presume their nominal purpose was to perform a Terry v. Ohio stop and frisk to see if the Mountain Dew was an illegal weapon. If either the judge or the jury believes that, then the officers (really, the City of Pittsburgh, which will indemnify them) are free from liability for the false arrest claim.

When it comes to the excessive force claim:

In deciding whether challenged conduct constitutes excessive force, a court must determine the objective reasonableness of the challenged conduct, considering the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Other factors include the duration of the officer’s action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time.

Couden v. Duffy, 446 F.3d 483, 496-97 (3d Cir. 2006). 

Hence the emphasis on the Mountain Dew: the officers want to justify their conduct by arguing "the possibility that the suspect may be armed." It also likely that, at some point, Miles was "actively resisting arrest or attempting to evade arrest by flight," given that he thought he was being assaulted. Such resistance, under excessive force precedent, makes the officers’ punching and kicking less "objectively unreasonable."

After showing all of the above, Miles must also show the judge "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted" to overcome qualified immunity. Miles can’t just show what the officers did was wrong; he has to show it was so wrong that the officers had to know it was illegal.

Can Miles do that? Maybe so. Then again, a lot of constitutional rights / qualified immunity cases — like Curley v. Klem, in which a police officer was accidentally shot — end with a jury verdict for the defendant and a speech from the appellate court like so:

The mistake Klem made has undoubtedly been terrible in its long-term consequences for Officer Curley and his family, and we do not for a moment discount the pain, sorrow, expense, and frustration that it has visited on them in their innocence. But a mistake, though it may be terrible in its effects, is not always the equivalent of a constitutional violation. … "[P]olice officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 397, 109 S.Ct. 1865. Those were the circumstances facing both Trooper Klem and Officer Curley at the George Washington Bridge toll plaza. Viewed from that perspective, Saucier, 533 U.S. at 205, 121 S.Ct. 2151, the seizure effected by the mistaken shooting was not unreasonable under the Fourth Amendment. It therefore was not a constitutional violation.

Courts of law, not of justice.

Continue Reading A Mountain Dew, A Body In The Trunk, and The Wacky World Of Probable Cause and Qualified Immunity

[UPDATE: The WSJ Law Blog rounds up reactions by the parties, while SCOTUSBlog rounds up reactions from the media and bloggers.]

[UPDATE II: For a peek behind the corporate curtain, see the memo that Republican election lawyer Benjamin L. Ginsberg (of Patton Boggs) is circulating. I think he’s going too far in his conclusions; as much as he and his clients would like corporations’ electioneering to drown out candidates’ and parties’ own communications, the disclosure requirements — which were upheld by the Court 8-1 — put a significant damper on that, since the money can still be traced to some extent, and since voters can generally discern if an ad is from a campaign or from some shadow group with an Orwellian name.]

The Citizens United v. FEC opinion has been released, with a majority opinion, two concurrences, and two concurrences-dissents, totaling 183 pages. For those of you keeping score at home:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined as to Part IV.

ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined.

SCALIA, J., filed a concurring opinion, in which ALITO, J., joined, and in which THOMAS, J., joined in part.

STEVENS, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.

THOMAS, J., filed an opinion concurring in part and dissenting in part

Here’s how Justice Kennedy (joined by Scalia, Thomas, Alito and Roberts) describe the statute at issue:

The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.

That would, indeed, be unconstitutional.

But it’s not actually the law.

Corporations, unions, and nonprofits can do all of the above, they just have to do it through a Political Action Committee. To the five conservative Justices, that, apparently, is too much:

Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak. See McConnell, 540 U. S., at 330–333 (opinion of KENNEDY, J.). A PAC is a separate association from the corporation. So the PAC exemption from §441b’s expenditure ban, §441b(b)(2), does not allow corporations to speak. Even if a PAC could somehow allow a corporation to speak—and it does not—the option to form PACs does not alleviate the First Amendment problems with §441b. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations. For example, every PAC must appoint a treasurer, forward donations to the treasurer promptly, keep detailed records of the identities of the persons making donations, preserve receipts for three years, and file an organization statement and report changes to this information within 10 days. …

PACs have to comply with these regulations just to speak. This might explain why fewer than 2,000 of the millions of corporations in this country have PACs. … PACs, furthermore, must exist before they can speak. Given the onerous restrictions, a corporation may not be able to establish a PAC in time to make its views known regarding candidates and issues in a current campaign.

For shame. You run a multi-billion-dollar company and, before you can spend millions of dollars to influence an election, the mean old government demands you spend a couple grand on lawyers to set up a separate, regulated entity with disclosure requirements so that the public can actually know who is spending millions of dollars to influence an election.

It’s all so unfair.

Justice Stevens’ dissent (joined by Ginsburg, Breyer and Sotomayor) starts off with that malarkey: 

The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United’s nor any other corporation’s speech has been “banned,” ante, at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case. …

Pervading the Court’s analysis is the ominous image of a “categorical ba[n]” on corporate speech. Ante, at 45. Indeed, the majority invokes the specter of a “ban” on nearly every page of its opinion. Ante, at 1, 4, 7, 10, 11, 12, 13, 16, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 33, 35, 38, 40, 42, 45, 46, 47, 49, 54, 56. This characterization is highly misleading, and needs to be corrected.

In fact it already has been. Our cases have repeatedly pointed out that, "contrary to the [majority’s] critical assumptions,” the statutes upheld in Austin and McConnell do “not impose an absolute ban on all forms of corporate political spending.” Austin, 494 U. S., at 660; see also McConnell, 540 U. S., at 203–204; Beaumont, 539 U. S., at 162–163. For starters, both statutes provide exemptions for PACs, separate segregated funds established by a corporation for political purposes. See 2 U. S. C. §441b(b)(2)(C); Mich. Comp. Laws Ann. §169.255 (West 2005). “The ability to form and administer separate segregated funds,” we observed in McConnell, “has provided corporations and unions with a constitutionally sufficient opportunity to engage in express advocacy. That has been this Court’s unanimous view.” 540 U. S., at 203.

But what of the so-called "original meaning" of the Constitution — did the Framers intend the First Amendment’s broad language to prohibit regulatory requirements for corporate speech?

[W]hereas we have no evidence to support the notion that the Framers would have wanted corporations to have the same rights as natural persons in the electoral context, we have ample evidence to suggest that they would have been appalled by the evidence of corruption that Congress unearthed in developing BCRA and that the Court today discounts to irrelevance. It is fair to say that “[t]he Framers were obsessed with corruption,” Teachout 348, which they understood to encompass the dependency of public officeholders on private interests, see id., at 373– 374; see also Randall, 548 U. S., at 280 (STEVENS, J., dissenting). They discussed corruption “more often in the Constitutional Convention than factions, violence, or instability.” Teachout 352. When they brought our constitutional order into being, the Framers had their minds trained on a threat to republican self-government that this Court has lost sight of.

So much for "originalism."

Stevens’ conclusion puts the case in proper perspective:

In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” Bellotti, 435 U. S., at 817, n. 13 (White, J., dissenting). At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

It’s Kennedy’s, Scalia’s, Thomas’, Alito’s and Roberts’ country; the rest of us just live in it.

Years ago, Jonathan Turley, professor at George Washington University Law School, found himself unable to decide whether he wanted to be a professor or a litigator, so he cloned himself to be able to do both.

I am only half-joking; even after factoring in big firm co-counsel (including associates, paralegals, assistants, et cetera), being lead counsel on major litigation is no joke, particularly if you’re up against a well-funded opponent who not only defends the rightness of their conduct, but who conceals and destroys the truth lying at the heart of the case.

Take, for example, Rayming Chang et al. v. United States et al., Civil Action 02-2010, United States District Court for the District of Columbia. Here’s some background, courtesy of Washington City Paper:

On the morning of September 27, 2002, D.C. Police had set about to monitor anti-IMF/World Bank demonstrators. By then, the protests and the policing of the protests had become routine, almost boring. There were no major acts of violence, vandalism or unrest that day.

But then the police decided to move on people in Pershing Park. They had funneled protesters into the park. Video taken of the park shows the protesters looking bored, sitting around. There were also other non-protesters in the park including nurses in town for a convention, and lawyers on their way to work.  Without warning, police rounded them up and arrested them all.

Police then transferred the mass to its training  academy in Blue Plains; each citizen was then hogtied and left on a mat for hours. They were all arrested for "failure to obey" an officer’s order.

We wrote  a cover story on the arrests. Cathy Lanier had a hand in developing the hogtie tactic.

The controversial arrests hounded then-Chief Charles Ramsey. Then-Councilmember Kathy Patterson conducted an investigation into the incident and issued a devastating report.

The report concluded that Ramsey and Co. did not have probable cause to arrest anyone in Pershing Park, failed to give any orders to the people in Pershing Park (they were arrested for "failure to obey"), and went on to question whether Ramsey lied to the council in his testimonies.

Prof. Turley, along with a number of lawyers at Bryan Cave, represent the plaintiffs, who filed suit in October 2002, less than a month after the incident. For seven years, plaintiffs and their lawyers have exercised their right to civil justice to investigate what happened.

Seven years, you ask? Indeed. The case is a classic example of how a determined, entrenched defendant can abuse the discovery process to bury the truth for years, forcing the plaintiffs to spend thousands of hours and hundreds of thousands of dollars to obtain basic information.

D.C. has undoubtedly failed to permit discovery: e.g., after filing a motion to dismiss attaching affidavits referencing events outside of the complaint (which is flatly prohibited), defendants turned around and objected to discovery into those affidavits and events. After agreeing to produce some discovery informally, defendants turned around and demanded formal discovery, to which they then objected. After scheduling depositions, defendants canceled them at the last minute, then turned around and claimed the depositions were inappropriate.

Adding insult to injury, all of this litigiousness — all the above attempts to delay and to deny justice in a blatantly obvious case, all 567 docket entries in the case — are paid for by taxpayers not once (paying the Court), not twice (paying the government defense lawyers), but thrice, since attorney’s fees are available to plaintiffs who win in constitutional rights / 42 U.S.C. 1983 cases.

Plaintiffs have asked for simple stuff. Stuff that’s preserved in the ordinary course of business even when there’s no lawsuit. Stuff you’d expect the government that polices our national capitol city to hold on to when they throw hundreds of people in jail for doing nothing more than lawfully attending a protest.

Seven years of litigation later, the police’s own activity log from that day (the "running resume") has never been found. Audiotapes of police radio communications from that day have been produced, but with significant gaps.

Gone.

The dog ate it.

The judge isn’t buying it:

U.S. District Judge Emmet G. Sullivan last week blasted D.C. officials for mishandling evidence in a civil lawsuit brought by some of those arrested seven years ago. In an extraordinary rebuke that reduced D.C. assistant attorney general Thomas Koger to tears, Judge Sullivan likened the city’s "shenanigans" to the kind of prosecutorial abuses he saw in the criminal case of former senator Ted Stevens (R-Alaska). The office of D.C. Attorney General Peter Nickles was singled out, but the questions extend to police and other officials.

Plaintiffs allege that critical evidence — such as the "running résumé" of all events and decisions made on Sept. 27 — was destroyed or lost. Even more troubling is their rather convincing charge that information was deleted from audiotapes supplied to them during discovery. Judge Sullivan has demanded that Mr. Nickles provide a full accounting of the city’s "pattern of shortcomings" and "discovery abuses."

Mr. Nickles told us that he is taking the judge’s admonition to heart. He has blamed the city’s inability to properly manage records during discovery on a chronic lack of resources, but he said he is reserving judgment on exactly what went wrong in this case until he knows all the facts. It’s encouraging that he enlisted former federal judge Stanley Sporkin, who is offering his considerable expertise on a pro bono basis, to advise him.

That was a few months ago. As Turley reported Saturday,

For those following the World Bank/IMF litigation, the Attorney General of the District of Columbia has been repeatedly referencing the forthcoming report of his adviser, former Judge Stan Sporkin, on the allegations of the destruction of evidence in the case. Judge Sullivan has previously indicated that he is considering a criminal referral and would wait for the Sporkin Report. The District waited until after 6 p.m. on a Friday night to file the report.

The report states the following:

* “Because the contradictory statement in the record are incapable of being reconciled, we cannot rule out the possibility of untruthfulness or something worse.” (Page 16)

* “We are particularly disturbed by the fact that not only have we been unable to retrieve a hard copy of the Running resume but also that the electronic copy was purged from the system. We have no way of knowing whether this was an act of intentional mischief or reflects a benign action. We do not believe it was the later” (sic) (page 15.)

* “We are particularly troubled by the fact that the group recordation system was purged. It is difficult to understand how something like this could occur innocently.” (Page 16)

Judge Sporkin wasn’t hired by the plaintiffs; he wasn’t even appointed by the Court. He’s D.C.’s own advisor, and he thinks the running resume was intentionally destroyed.

Turley’s role in the case precludes him from saying much about the case, but the truth is, everything can be summed up in one word: the whole case — from the arrests to the coverup to the stalling tactics in litigation — is a disgrace.

The Sporkin Report — by no means a whitewash, but an incomplete investigation since he left no paper trail — is only the beginning. If we cannot have the truth, then we must know at least where it went and why. Actions have consequences.

Following up on yesterday’s post about “ex parte blogging,” i.e. the possibility that the Supreme Court might see a newspaper editorial, article or blog post about a pending case, let’s consider the supposed worst-case scenario, in which a Justice sees an editorial, article or blog post which has an effect on their interpretation of the case.

So what?

The Student Note that started the discussion at Balkinzation and Prawfsblog based its analysis on the Kennedy v. Louisiana fiasco, in which a military-justice blogger revealed a significant error in the Supreme Court’s opinion, resulting in new briefing and a modification to the opinion.

Kennedy, however, does not show the danger lurking in “ex parte blogging,” but rather exactly the opposite: Kennedy shows the danger in relying upon nine people (and their typically fresh-out-of-law-school staff of four clerks each) to set legal policy for the entire country based upon two merits briefs of 15,000 words each and two reply briefs of 7,500 words each. More words are spilled on the Wikipedia page listing the people in line to succeed to the British throne.

The re-hearing and re-writing of the Kennedy opinion was a good thing; we want the Supreme Court’s opinions to be based on accurate facts and solid legal reasoning.

We also want those opinions to be as clear as possible; consider Washington v. Davis, the 2006 case in which the Supreme Court laid down an “objective and quite workable” rule that was, quite literally, interpreted differently in every state in the union.

Why wait until the damage has been done — why not invite public comment before the opinions become law?

That’s what the other two branches of the federal government do. The United States Congress debates bills for weeks, sometime months, prior to passage, all of which you can see on the Library of Congress’ Thomas service, or on the non-profit OpenCongress.org. The Executive Branch similarly posts each and every regulatory change to Regulations.gov for public review and comment prior to promulgating the regulations.

Just how powerful is the public comment process?

Consider epidemiology. As Jennifer Gardy, the co-head of British Columbia Centre for Disease Control explains in this fascinating talk (via), when the SARS coronavirus pandemic began in 2003, it took 19 days just to sequence the virus’s genome. This year, after the H1N1/09 influence was declared a pandemic, by the 19th day dozens of virus genomes had been sequenced, the origin and spread of the virus had been established, and a vaccine was already in the works. (Read more from Gardy here; see late-breaking H1N1 research in progress at the Public Library of Science’s Currents.)

Indeed, open access / public commenting is how most of academia functions these days. Draft social science and law journal articles are posted on SSRN prior to publication. Draft papers on physics, mathematics, and other complex quantitative papers are posted on arXiv.org.

It’s hard to think of any field of government or scholarship today in which work not subject to public scrutiny is considered worthy of use by others; in cryptography, for example, any encryption method which doesn’t make its source code available for public scrutiny, like even the government’s own encryption standard is available, is presumed worthless.

Individual collegiate evaluation worked for Henry Oldenburg when he was peer-reviewing the Philosophical Transactions of the Royal Society back in 1665. It doesn’t work so well when nine Justices are supposed to decide cases of national importance involving hundreds of thousands of pages of briefs, precedent, statutes, regulations, and appellate records at a rate of one opinion issued every four or five days, every word of which will be pondered, analyzed, scrutinized, and, unfortunately, misinterpreted by courts every day.

Ashby Jones at the Wall Street Journal reports on absolute judicial immunity:

In January, federal prosecutors filed fraud charges against Mark A. Ciavarella and Michael T. Conahan, judges on the Luzerne County, Pa., Court of Common Pleas. Prosecutors alleged that the judges sent numerous juveniles to detention centers over several years in exchange for more than $2.6 million in kickbacks from the former co-owner of two centers.

After the criminal charges, several lawyers filed civil suits seeking monetary damages on behalf of dozens of children and their families against the judges and other defendants. They alleged, among other things, that the judges violated their civil rights.

In filings, the judges argued that judicial immunity insulated them from suits. A ruling on the motions is pending. Both judges declined to comment.

Legal experts say the plaintiffs face an uphill battle in piercing the immunity shield. Dating to 1872, the U.S. Supreme Court has repeatedly supported the notion that judges should express their legal convictions without having to worry about personal consequences. In perhaps the most widely cited Supreme Court case on judicial immunity, the court in 1978 rejected a suit filed by a woman against an Indiana judge who had years earlier ordered the woman — who was then 15 and allegedly mentally impaired — sterilized without her knowledge.

According to Arthur Hellman, a law professor at the University of Pittsburgh, judicial immunity doesn’t protect judges from suits stemming from administrative decisions made while off the bench, like hiring and firing decisions. But immunity generally does extend to all judicial decisions in which the judge has proper jurisdiction, he says, even if a decision is made with "corrupt or malicious intent."

In Mr. Hellman’s mind, the rule makes sense. Without it, the courts might be stacked with baseless lawsuits filed against judges. "On one level, it seems outrageous to ban someone from suing a corrupt judge," he says. "But if you allow plaintiffs to pierce the immunity by alleging bad motive, it opens the floodgates."

There is good reason for judicial immunity. Judges, more than any other government officials, determine who wins and who loses in our legal system. They do not pass general laws applicable to everyone like the legislature. They do not enforce the laws in general through multiple levels of supervision, collaboration, and procedures like the executive.

They spend weeks, months and years right in front of citizens with a lot to lose and then tell those citizens to their faces if they win or lose. It is very easy to blame a judge for a citizen’s loss in a civil or criminal trial: the judge was the one who made it happen.

We thus cannot have judges hesitating in their good faith decisions about who loses because they fear litigation. The system just will not work; it’s the judge’s job to determine the loser.

That said, the Luzerne County case is different. We don’t need to dive into the bigger questions of when and how immunity should be denied, because it’s quite clear it should be denied here, for the two reasons raised by a group of former judges who filed an amicus brief in the case:

Application of immunity to judges who admitted under oath to engaging in a criminal scheme that lasted for years would indeed be "monstrous." [Quoting Judge Learned Hand in Gregorie v. Biddle, 177 F.2d 579 (2d Cir. 1949)] To find immunity would denigrate the respect of the public for the judiciary, which is dependent upon judges making decisions based on the law and the facts, rather than personal, corrupt motives. Moreover, denying Conahan and Ciavarella the privilege ofjudicial immunity in this case would not risk a flood of civil claims against other judges.

There is simply no way that Conahan’s and Ciavarella’s admittedly criminal arrangements with the detention facilities or their predetermination to detain juvenile offenders before any judicial proceeding even existed, can be considered judicial acts. Conahan’s and Ciavarella’s arguments to the contrary are disingenuous. They necessarily conceded that they acted non-judicially when they admitted to criminal conduct in violation of their judicial oath. Those admissions cannot be reconciled with their present assertion that they acted in a judicial capacity.

Exactly. Wherever it may be that judicial immunity should lie, we know it should not lie where a judge (1) admitted (or were convicted of) corruption or (2) acted wrongfully outside their judicial function.

The "immunity" underlying judicial immunity is — like qualified immunity for executive officials — an "immunity" from being sued. It is a deliberate policy choice to deny some worthy cases even a shot at proving entitlement to relief in exchange for ensuring unworthy cases do not waste judicial time or cause hesitation in the judicial process.

Here, there is no doubt as to the worthiness of plaintiffs’ claims: the judges admitted corruption. There is also no doubt that the problem at here was not solely judicial, for there is nothing "judicial" about receiving payments under the table from a private party.

The United States Supreme Court is already considering a related issue, the extent of immunity for prosecutors who fabricate evidence, in Pottawattamie County v. McGhee. They will see this case coming down the pipeline; let’s hope they understand the robes cloak only those decisions made for the right reasons.