Tuesday, March 8, 2011

What I Meant Isn't What You Think I Meant Unless You Think I Meant What I Meant

I've written so much about Hank Skinner's case, that I just assumed I'd be writing about the decision as soon as it came out.  Then the opinion came out yesterday and was so narrow and constrained - carefully explaining how what Skinner wanted (a chance to argue in federal court that the application of the Texas DNA testing law to his case violates his due process rights) did not run afoul of the Rooker-Feldman Doctrine (don't ask) and establishing that what Skinner wanted isn't actually to undo his conviction or sentence, so it's not a habeas issue - that it really didn't break much ground or lend itself to my brand of pontificating.  So I left it alone.
Except that there was this sentence Clarence Thomas wrote in dissent nagging at me.
The Court has recognized that §1983 does not reach to the full extent of its “broad language.”
Hmm.  Here's what § 1983 (that's Section 1983 of Title 42 of the US Code, by the way) says. 
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Ok, that is pretty broad.  In plain English, what it says is that anyone whose rights under the US Constitution or federal law are violated by any state or local official can sue over the violation.  (There are some limitations, but narrow ones, on suing judges.)  But as Thomas didn't quite say, plain English is for losers.  And as he did say, the Court has consistently said that 1983 doesn't mean what it says.
Now, Thomas is one of those guys who believe that the words control (except, of course, when they don't) and that judges and justices don't have the right to ignore the laws as they are writ just 'cause they disapprove.  So you might think he would be getting set to say something about how the Court is out of line.  If you thought that, you'd be mistaken, seriously, profoundly mistaken.
In fact, the whole point of Thomas's dissent is that 1983 means even less of what it says than the majority thinks.  And the majority doesn't think it means much.
Oh, there have been and continue to be lots of successful 1983 actions.  People, in fact, bring those cases all the time.  And they win a fair percentage.  (They lose a fair percentage, too, of course, but that's a different issue.)  But as Thomas says, there's much that the courts don't allow to be covered.
That's worth saying again.
There's much that the courts don't allow to be covered.
It's not a secret conspiracy.  It's that some things . . . . Well, you just can't sue over them.  Or if you can, there are hurdles.  Or you can sue, but not through 1983.
In 1803, in Marbury v. Madison, Chief Justice John Marshall, for a unanimous Supreme Court, wrote this.
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the 3d vol. of his Commentaries, p. 23. Blackstone states two cases in which a remedy is afforded by mere operation of law.

163 In all other cases," he says, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, when ever that right is invaded."
Though as it happened (and this is long before there was a 1983), Marshall found that Marbury's rights were invaded but that he really couldn't sue over them.
It begins (for our purposes) with the Constitution.
The First Amendment says,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Justice Black famously declared that "'No law' means no law."  That's tautologically true, of course, but nobody with any authorizing power (including Black himself) really understood it that way.
And if the words of the Constitution don't mean what they say (and I'm not getting, here, into discussion of whether it includes stuff it doesn't say, like "there's at least some right to privacy"), then there's really no use expecting that the statutes will mean what they say.
And so, when you really get down to it, the question the Court chose to confront in Hank Skinner's case was how much the decision would matter.  Not to Skinner, of course.  To the courts.
Ginsburg (in the Court's opinion), took it head on.  (I'm omitting a footnote.)
Respondent Switzer and her amici forecast that a “vast expansion of federal jurisdiction . . . would ensue” were we to hold that Skinner’s complaint can be initiated under §1983. See Brief for National District Attorneys Association as Amicus Curiae 8. In particular, they predict a proliferation of federal civil actions “seeking postconviction discovery of evidence [and] other relief inescapably associated with the central questions of guilt or punishment.” Id., at 6. These fears, shared by the dissent, post, at 6.
And here's what Thomas wrote on the subject (footnote included).
Allowing Skinner to artfully plead an attack on state habeas procedures instead of an attack on state habeas results undercuts the restrictions Congress and this Court have placed on federal review of state convictions. See Osborne, supra, at ___ (ALITO, J., concurring) (slip op., at 3). To allege that the Texas courts erred in denying him relief on collateral review, Skinner could only file a federal habeas petition, with its accompanying procedural restrictions and deferential review. But a successful challenge to Texas’ collateral review procedures under §1983 would impeach the result of collateral review without complying with any of the restrictions for relief in federal habeas.
The majority contends that its decision will not “spillover to claims relying on Brady v. Maryland, 373 U. S. 83 (1963).” Ante, at 13; but cf. Osborne, supra, at ___–___ (ALITO, J., concurring) (slip op., at 3–5). In truth, the majority provides a roadmap for any unsuccessful state habeas petitioner to relitigate his claim under §1983: After state habeas is denied, file a §1983 suit challenging the state habeas process rather than the result. What prisoner would not avail himself of this additional bite at the apple?*
*Nor is there any reason to believe that the Court’s holding will be cabined to collateral review procedures. The Court does not discuss whether a State’s direct review process may be subject to challenge under §1983, but it suggests no principled distinction between direct and collateral review. This risks transforming §1983 into a vehicle for direct criminal appeals. Cf. Heck v. Humphrey, 512 U. S. 477, 486 (1994). Just as any unsuccessful state habeas petitioner will now resort to §1983 and challenge state collateral review procedures, so, too, will unsuccessful appellants turn to §1983 to challenge the state appellate procedures.
See it's not about the law.  it's about the courts.  The issue is floodgates.  And the courts don't want to open them.  Never have.
In this case, a key to Spitzer's win is that he convinced the majority there wouldn't be a ton of new cases.  It may not be so easy for the next guy.
The next guy as it happens, is Abdullah Al-Kidd.  I wrote about his case last week.  The question involved Al-Kidd's right to sue John Ashcroft for violating his rights under the 4th Amendment.  Among the topics discussed at oral argument was just how many other cases there might be.  Lee Gelernt, Al-Kidd's lawyer, said "only a few hundred each year."  Roberts didn't see that as so few.
So every time the prosecutor elects not to call one of these witnesses for a variety of reasons, you would have a claim that this wasn't designed to elicit testimony?
Kennedy floated the idea of 4,000 a year.
No, said Gelernt.  Just a few hundred.
Neal Katyal picked up on the question in his rebuttal argument.
If I could start with the Chief Justice's point about the cost of these lawsuits and allowing them to proceed. My friend on the other side says, well, but this will be a small, rare case, an isolated example, but I don't think that's true. I think if you allow their motivation argument to -- to -- to pierce absolute immunity, you will have this in every case or near every case. 95 to 96 percent of Federal cases are resolved by plea agreements. So there isn't someone who is actually called at trial.  You could allege it in any of those cases.
And particularly when you lace on to that what my friend has said is a disturbing, quote, "national pattern of abuse" of the material witness statute, something which we --with which we vigorously disagree, but if you could add the fact that someone wasn't called on in a trial to that national pattern, then you'll be having these damages actions quite a bit of the time. Now he says don't worry, it will only be a few hundred of these lawsuits. Well, leaving apart the fact that that excludes immigration cases and excludes the States' cases, as Justice Kennedy said, a few hundred lawsuits just at the Federal level filed against the Attorney General?
It's not all (or always) about actually making work for the courts.  Nor does it always shut out cases.  Those are just easy instances.  Rather, it's a larger point to which I've alluded to a whole bunch of times.
Words matter, but they don't control.  The law means what it says except when it doesn't.  And we're not seers.
There's no certainty in this business.  Not in the Supreme Court of the United States and not at trial in your local municipal court or whatever the lowest level court of record is in your jurisdiction.  Any lawyer who makes a promise about what can be achieved is either deluded or lying.
We live in a world of best guesses.  And as I've said more than once - dismaying many young lawyers and law students and driving crazy many folks too smart to go to law school - the correct answer to every legal question is 
It depends.
What got me started here isn't that Clarence Thomas said that 1983 doesn't mean what it says.  It's that the proposition is so obvious that he doesn't even see why or how it's at odds with his judicial philosophy.  (Ditto Scalia, but he didn't join that dissent.)

`I don't know what you mean by "glory",' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.
`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you can make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'  


  1. Actually, there are very few civil rights actions, relative to the potential provocation. In 2006, it was 18,000 law enforcement related civil rights actions for 14.4 million arrests.


    "Floodgates" never seems to be a concern regarding the seemingly limitless numbers of criminal actions brought by the government.

  2. loved this part!

    " I think if you allow their motivation argument to -- to -- to pierce absolute immunity, you will have this in every case or near every case. 95 to 96 percent of Federal cases are resolved by plea agreements. So there isn't someone who is actually called at trial. You could allege it in any of those cases."

    Guess it's just becasue i'm NOT a laywer. Seems to me a simple fix would be easy. If you don't have SOMEONE charged with a crime. You can't lock up so-called witnesses to THAT crime. Sounds like a no-brainer to me Even a judge should be able to figure it out. some law enforcment individual comes to tell you we need a material witness warrant for an individual...first question should be "ok what CRIME did he witness and who's been charge"