Earlier this week, the Seventh Circuit rejected an attempt by the U.S. Department of Justice to rewrite a federal statute to suit the Executive Branch’s convenience.  In Bormes v. United States, No. 13-1602 (7th Cir. July 22, 2014), the issue was whether the United States can be sued for damages under the Fair Credit Reporting Act, which authorizes litigation against a  “person” who willfully or negligently violates the statute.  See 15 U.S.C. § 1681n(a).  The Act defines “person,” inter alia, as “any . . . government or governmental subdivision or other agency.”  Id. § 1681a(b).  In an opinion written by Judge Easterbrook, the court of appeals held that “[b]y authorizing monetary relief against every type of government, the United States has waived its sovereign immunity.”  Slip op. at 2.  

To support its contention that the Act does not waive sovereign immunity, DoJ essentially argued that the statute’s damages provision implicitly and necessarily excludes the United States.  According to the court, this was tantamount to  maintaining that  “the definition [of person] should not be given its natural meaning.”  Ibid.  The court explained that “Congress need not add ‘we really mean it!’ to make statutes effectual.”  Id. at 4 (emphasis added).  

The statute was originally enacted in 1970.  The damages provision, § 1681n, was broadened in 1996 to encompass “all persons,” but the already broad statutory definition of “person,” § 1681a(b), remained the same.    “Apparently no one in the Executive Branch asked Congress to revise the definition of § 1681a(b) when changing the category of entities for which § 1681n authorizes awards of damages.” Id. at 3.  The court indicated that “[t]he argument that a silent legislative history prevents giving the enacted text its natural meaning has been made before—and it has not fared well.” Ibid.

The Seventh Circuit did exactly what a court should do when interpreting a federal (or state) statute:  Give the statutory text its plain meaning, rather than rewrite it for policy reasons or the Executive Branch’s convenience.  The Constitution, of course, provides the proper remedy for a problematic federal statute—leave it to Congress to fix!             

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An attorney's fees award to prevailing defendants under 42 U.S.C. 1988 is relatively uncommon, at least more uncommon than fee awards to prevailing plaintiffs.  But this week in Carter v. Inc. Village of Ocean Beach, the Second Circuit affirmed a fee award to certain defendants where the plaintiffs' claims were frivolous.

Plaintiffs are five former seasonal and part-time police officers who were employed - and terminated - by a village in New York State.  They filed suit against numerous village and county defendants, alleging a variety of federal constitutional claims as well as state law claims pertaining to their termination.  The plaintiffs voluntarily dismissed some claims, the district court dismissed other claims on summary judgment, and the court declined to exercise supplemental jurisdiction over the remaining claims, which were state law claims.  The plaintiffs re-filed their state claims in state court, which dismissed all claims against the county defendants.

In the federal action, the county defendants moved for, and were awarded, attorney's fees pursuant to section 1988, to the tune of almost $64,000.  Under fee shifting statutes like section 1988, prevailing plaintiffs are ordinarily awarded attorney's fees.  But prevailing defendants are awarded fees only if the action was frivolous.  At issue on this appeal was whether the action was frivolous, and whether the defendants could be considered prevailing parties given that the claims were disposed of in various ways.

The Second Circuit had no problem finding the action frivolous, making it abundantly clear to the plaintiffs that they never should have filed suit against the county defendants because the county had nothing to do with the village's hiring or firing practices.  As for the prevailing party aspect of the analysis, to prevail for purposes of attorney's fees, a party must have gained through the litigation a material alteration of the parties' legal relationship.  A voluntary dismissal with prejudice is such an alteration because the action cannot be filed again.  Here, the plaintiffs voluntarily dismissed some claims, had other claims dismissed on summary judgment by the district court, and had the remaining claims dismissed by the state court.  Since there was no chance for any of the claims to be relitigated, there was indeed a material alteration of the parties' legal relationship and thus the defendants were properly considered prevailing parties.

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In a significant decision issued on Friday, July 18, 2014, involving a retail store, the Vermont Supreme Court has abolished the old premises liability distinction between “business invitees” (i.e., customers) and licensees (other visitors).  The Court has now formally adopted a general negligence standard of reasonable care applicable to both types of visitors.  The case is Demag v. Better Power Equipment, Inc., 2014 VT 78.  

This case involved a visitor who was on the defendant’s business premises not as a customer, but as a vendor providing a service to the business.  He fell into a storm drain in the business’s parking lot because the drain cover had been dislodged by a snowplow.  The owners of the business claimed not to know that the storm drain cover had been dislodged.  The visitor sued the business.  The trial court classified the visitor as a “licensee” (i.e., not a customer) – as opposed to an “invitee” (i.e., a customer) and granted summary judgment to the business, reasoning that the business owed a lower standard of care to a licensee.  In other words, because the visitor was a licensee, the owners owed him no legal duty to be aware that the storm drain cover had been dislodged and posed a danger to him.  The Vermont Supreme Court reversed, ruling that there should no longer be any distinction in Vermont between a licensee and an invitee.  

In 99% of cases, this decision will generally not affect retail or business establishments, because, with respect to customers, they were already held to the higher standard for “invitees.”  However, sometimes the person who is injured in or around a business establishment might be a vendor.  In such cases, the business establishment can no longer argue that it has a lower standard of care because the vendor was a “licensee.”  The legal standard will now be the same regardless of whether the plaintiff is a customer of the business or a vendor.  Obviously, this decision has implications for business establishments.  While vendors who are injured while on another business’s premises will typically be covered by their own employer’s workers compensation insurance, they can still bring a claim against the business establishment for negligence.  This decision will potentially make their claim easier to prove.

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Yesterday, the Seventh Circuit ruled that Indiana’s statute regarding who may solemnize a marriage violates the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment, reversing the lower court’s decision. In Center for Inquiry, Inc. v. Marion Circuit Court Clerk, No. 12-3751, 2014 WL 3397217 (7th Cir. July 14, 2014), the Center for Inquiry filed suit under 42 U.S.C. § 1983 contending that Indiana’s marriage-solemnization statute violates the Constitution’s First Amendment, applied to the states through the Fourteenth Amendment, by giving some religions a privileged role. The statute specifies who may perform the final steps that unite persons who hold marriage licenses. The list includes religious officials designated by religious groups, but it omits equivalent officials of secular groups such as humanist societies. 

The Seventh Circuit wrote that three states (Florida, Maine, and South Carolina) authorize humanists to solemnize marriages by becoming notaries public, but Indiana does not (notaries cannot perform marriages in Indiana)—nor does it provide any other way for private secular groups to exercise this authority. Four states (Alaska, Massachusetts, Vermont, and Virginia) allow anyone to solemnize a marriage, and another six (Colorado, Kansas, Montana, Pennsylvania, New York, and Wisconsin) allow the couple to solemnize their own marriage, but neither option is available in Indiana. For hundreds of years, in the legal tradition that we inherited from England, the persons who could solemnize marriages included clergy, public officials, sea captains, notaries public, and the celebrants themselves. When Indiana codified the list in 1857 it left off captains, notaries, and the marrying couple, though it included some religious groups (and added some other religious groups later). 

The Center for Inquiry is a nonprofit corporation that describes itself as a humanist group that promotes ethical living without belief in a deity. The Center seeks to show, among other things, that it is possible to have strong ethical values based on critical reason and scientific inquiry rather than theism and faith. The Center maintains that its methods and values play the same role in its members’ lives as religious methods and values play in the lives of adherents. The Center would be satisfied if notaries were added to the list; nothing in humanism makes it inappropriate for a leader (or any other member) to be a notary public.

In the lawsuit, Indiana stated that a humanist group could call itself a religion, which would be good enough for the state. It also noted that a humanist celebrant could conduct an extra-legal ceremony, which the not-yet-married couple could follow up with a trip to the local court to have the clerk perform a legally effective solemnization. The Center and its Indiana leader, who is also a plaintiff, find these options unacceptable; they are unwilling to pretend to be something they are not or pretend to believe something they do not; they are shut out as long as they are sincere in following an ethical system that does not worship any god, adopt any theology, or accept a religious label.

The Seventh Circuit observed that the Supreme Court has forbidden distinctions between religious and secular beliefs that hold the same place in adherents’ lives. It also observed its own past holding that when making accommodations in prisons, states must treat atheism as favorably as theistic religion. What is true of atheism is equally true of humanism, it wrote, and as true in daily life as in prison.

The Seventh Circuit noted that the Supreme Court has addressed the long-established practice of opening legislative meetings with prayer, most recently in this year’s Greece v. Galloway, 134 S.Ct. 1811 (2014). But while these cases concern what a chosen agent of the government says as part of the government’s own operation, they do not concern how a state regulates private conduct. The Indiana marriage statute, by contrast, is regulatory. So although a government may, consistent with the First Amendment, open legislative sessions with Christian prayers while not inviting leaders of other religions, a state cannot limit the solemnization of weddings to Christians, while excluding Judaism, Islam, Buddhism, and—humanism.

Reversing the lower court decision, the Seventh Circuit remanded with instructions to issue an injunction allowing certified secular humanist celebrants to solemnize marriages in Indiana—to do this with legal effect, and without risk of criminal penalties. It wrote, however, that if Indiana amends its statute to allow notaries to solemnize marriages, the district court should be receptive to a motion to modify the injunction to minimize the extent to which a federal decree supersedes the state’s own solution to the problems the Seventh Circuit has identified.

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On June 23, 2014, the United States Supreme Court issued its widely anticipated decision in Utility Air Regulatory Group v. EPA concerning the U.S. Environmental Protection Agency’s regulation of greenhouse gas emissions (GHGs) from stationary sources. In a divided decision with a majority opinion written by Justice Antonin Scalia, the Court rejected EPA’s regulation of sources that would become newly subject to federal Clean Air Act permitting based only on their potential to emit GHGs.  The Court’s decision to remove a wide range of sources from EPA’s permitting jurisdiction raises the question of whether those sources are now more vulnerable to common law claims.

In the Court’s landmark 2007 decision in Massachusetts v. EPA—widely known as the “single largest expansion in the scope of the Clean Air Act in its history”—the Court rejected EPA’s position at that time that the Clean Air Act could not encompass GHGs. EPA then began the regulatory process mandated by the Court, resulting in the rules at issue in UARG.  In the same time frame, plaintiffs sought to obtain injunctive relief or damages under nuisance and other common law theories.  In American Elec. Power Co. v. Connecticut, 131 S.Ct. 2527 (2011), one of those common law suits, the Court held that the Clean Air Act’s authorization of EPA regulation displaced any federal common law right to seek reduction of GHG emissions under common law theories.  Id. at 2537.

In the rulemaking at issue in UARG, EPA interpreted the Act and its rules to mean that once GHGs were regulated under any part of the Clean Air Act, Title V and PSD permitting requirements would automatically apply to any stationary source with the potential to emit GHGs in excess of the respective 100- or 250-ton statutory air pollutant thresholds.  Recognizing the regulatory burden this interpretation would impose on smaller sources never before subject to PSD or Title V requirements—such as malls, apartment buildings, and schools—EPA attempted to “tailor” its program for those “new” sources by redefining the statutory threshold for GHGs to 100,000 tons per year, as opposed to the statutorily-required 100 or 250 tons.  

In its decision, the Court saw EPA’s attempt to “tailor” a clear 100- or 250-ton statutory threshold to 100,000 tons as an overstep in the Agency’s authority and an impermissible attempt to “tailor legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.”  However, the Court supported EPA’s interpretation that sources already subject to PSD and Title V for conventional pollutants may be required to limit emissions of GHGs through conditions in their federal air permits.  As a result of these two primary holdings, federal air permitting controls on GHGs apply only to large sources, such as power plants, refineries and heavy manufacturing facilities, and not to a wide range of other sources.

Does this mean that displacement of federal common law no longer applies for those other sources?  For at least two reasons, the answer should be no.

First, the issues before the Court in UARG concerned certain federal permitting programs, not the entire Clean Air Act.  Other sections of the Act, particularly section 111, provide alternate pathways for regulating greenhouse gas emissions.  And the Court explicitly stated that its ruling on the permitting programs did not undercut EPA’s authority under section 111 to issue performance standards.  See UARG, slip op. at 14-15 n. 5.  Section 111 regulates by category, not by size.  Indeed, EPA recently issued its first set of performance standards for GHG emissions, which will cover fossil fuel-fired power plants.  Standards for other categories will very likely follow.  Consequently, sources excluded by UARG from PSD and Title V regulation could nonetheless be included in section 111 performance standards and be required to reduce GHGs at some point in the future.    

Second, even if EPA declines to issue performance standards for every category of sources, the displacement of federal common law remains intact.  

The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing § 7411 rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency's expert determination.

AEP, 131 S. Ct. at 2538-39.  Thus, the regulatory process remains the exclusive avenue for federal limits on GHG emissions.

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When a federal district judge issues an important interlocutory ruling, the options for immediate appeal are limited. Most lawyers think of certification under 28 U.S.C. § 1292(b). But certification is within the trial court's discretion, and as a practical matter, certification requests are usually denied. Further, even when an interlocutory order is certified, the court of appeals has to agree to hear the appeal. See Fed. R. App. P. 5. A "collateral order appeal" is another option for certain types of interlocutory rulings-orders that (i) conclusively determine a disputed question of law, (ii) resolve an important issue that is completely separate from the merits of the case, and (iii) would be effectively unreviewable on appeal from a final judgment. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). But various categories of interlocutory rulings-including rulings involving application of the attorney-client privilege-do not qualify for collateral order appeal. See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106-13 (2009).

That leaves mandamus, the most drastic method for challenging a federal district court's interlocutory ruling. Many lawyers consider filing a petition for a writ of mandamus under Fed. R. App. P. 21 to be a daunting, no-win situation. They are reluctant to seek mandamus out of fear of alienating (or further alienating) the trial judge, who presumably will continue to preside over the suit.

A recent D.C. Circuit case, however, In re Kellogg Brown & Root, Inc. ("KBR"), No. 14-5055, demonstrates that mandamus can be used successfully to challenge interlocutory rulings that meet the stringent criteria set forth in Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004). Under Cheney, the following three conditions must be met: (i) the mandamus petitioner must have no other adequate means for attaining the desired relief; (ii) the mandamus petitioner must show that its right to mandamus is clear and indisputable;, and (iii) the court of appeals, in the exercise of its discretion, must be satisfied that mandamus is appropriate under the circumstances. Id. at 380-81 (citing Kerr v. U.S. District Court for the Northern District of California, 426 U.S. 394, 403 (1976)).

In the KBR case, a federal district judge, presiding over a False Claims Act qui tam action, denied the protection of the attorney-client privilege to a company that had generated certain documents in connection with an internal investigation. The district court declined to certify its ruling for interlocutory appeal, so the company filed a petition for a writ of mandamus in the D.C. Circuit. Applying the Cheney factors, the court of appeals held that the denial of the privilege was clear error, and issued a writ of mandamus vacating the district court's document production order. First, the court indicated that in an attorney-client privilege case where an order to disclose documents is being challenged, mandamus (in the absence of § 1292(b) certification) is often the only adequate means to obtain relief since even in light of Mohawk, appeal after final judgment "will often come too late." Second, the court explained that if denial of attorney-client privilege is not merely erroneous, but instead, "a clear legal error," the right to mandamus is "clear and indisputable." Third, the court held that although the requirement that mandamus be appropriate under the circumstances is "broad and amorphous," it is satisfied where a district court's broad and novel privilege ruling "would have potentially far-reaching consequences," such as creating widespread uncertainty within the business community, and even among other trial courts.

Be forewarned, however, that issuance of a writ of mandamus does not necessarily mean that the errant judge will be taken off the case. In the KBR case, the court of appeals indicated that "we will reassign a case only in the exceedingly rare circumstance that a district judge's conduct is 'so extreme as to display inability to render fair judgment'" (quoting Liteky v. United States, 510 U.S. 540, 551 (1994)). The court held that the KBR case did not reach "that very high standard."


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Those Pesky Clients- Part Deux

Posted on July 9, 2014 02:53 by Steve Crislip

You may have heard me say how much fun the practice of law would be without dealing with clients.  (See June 2013 Post).  They always seem to need something from you right now and, by the way, don’t always want to pay full price for on-demand services.  Well, perhaps clients as the consumers of legal services have a point.  Currently there are plenty of good lawyers around, even more than there is of good legal work to do. Perhaps there are now more lawyers than there is demand and the clients have experienced a shift in this balance.

More companies use inside General Counsel who act as the new trusted advisors to the companies, but with a business budget line to control.  So, many trends and changes are afoot in the delivery of legal services and firms need to adapt.  Things that can be done cheaper than using lawyers are simply outsourced.  Young lawyers cannot be billed in some cases until they have some experience.  More and more technology is required by clients to meet their needs, and the costs of that are not recoverable by the law firms.  As they say, “it is what it is” and lawyers who want to be successful in the future must adapt and improve the delivery of their services to be competitive.

Routinely advocating change and the ability to adapt, I still push back at the commodity procurement driven approach of many companies — buying legal services like buying pipes. Cost cutting driven by the Finance and HR portions of companies sometimes result in “guidelines” that seem written by non-lawyers and have more restrictions than the professional rules.  Caution is urged at this point, regardless of the market.  

One speaker at the 40th ABA National Conference on Professional Responsibility referred to these company-imposed guidelines as a source of private regulation.  He pointed out two main areas of concern:  (1) client identity and (2) conflicts of interest.  Some corporate guidelines say you will represent all of our affiliates and a conflict would exist as to each. Often we lawyers do not know and cannot determine who these hundreds of related parties may be.  The guidelines views of what they say is a conflict may exceed both the case law and the professional rules.  

Watch also these corporate guidelines for other hefty duties such as:

          • Data security audits and other type random audits.

          • Different file destruction requirements.

          • Disaster recovery plans for firms.

          • Breach notifications procedures and damages.

          • Personnel background checks on all employees.

          •  Indemnity clauses that can cause coverage issues.

There is no cookie cutter response to these.  I very much advocate a measured discussion and written exceptions to the guidelines when needed and possible.  Some will throw their weight around and put the firm in a take-or-no take situation.  Generally however, reasonable discussions can produce workable exceptions.  Since the firm’s engagement letter is intended to meet its professional responsibility where it practices, a procedure that states the General Counsel and the firm’s designated lawyer agree to resolve any differences between the guidelines and the engagement letter seems fair.  Placing the various affiliates in the firm conflict base for information and discussion purposes, but only representing the defined client in this matter may be a good compromise on the one-equals-all problem with regard to conflicts.

Despite being an advocate of law firms changing to adapt, there have been times when the guidelines were just so bad or unreasonable that I have said:  “We do not deserve to be your lawyers.”  Most however are workable.  Just be very aware of what you are agreeing to by way of guidelines since a court may well conclude they were contract terms, despite being more than required in the law or rules.  

This blog was posted on July 7 on Lawyering for Lawyers blog. Click here to read the original entry. 

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Why Do You Think They Call it Dope?

Posted on July 8, 2014 03:32 by Tom Feher

More than twenty states and the District of Columbia have legalized the growing, processing, transportation, sale, and use of marijuana for medical purposes.  Two states, Colorado and Washington, have also legalized recreational and personal use.  The Department of Justice is making noises about backing off on prosecuting certain marijuana crimes.   Most observers expect these trends to continue and that the era of marijuana’s underground economy is coming to an end.  

As a result, there is a growing demand for legal services from those associated with this would-be “legal” industry: growers and retail sellers, lenders, tenants and landlords, those that would invent and manufacture technology associated with and many others associate with or servicing those that want to take advantage of this gold rush.  Great news for a legal industry in the doldrums.  Yipee!  Hop on the gravy train!

Not so fast you would-be rain makers.  The grass is not always greener, and there are hazards for the unwary lurking among the weed(s).  In the fog of all this pot-mania, it is easy to forget something significant about Marijuana (I’m out of metaphors) -  It’s still illegal.  

Marijuana is a Schedule 1 drug, and possession, sale, and distribution are federal crimes.   Because possession, sale and distribution are still illegal, conspiring with or aiding and abetting someone who possesses, sells or distributes marijuana is a crime under federal law.   So, if your legal services might be argued (by some zealous prosecutor) to constitute conspiring aiding or abetting a client in possessing, distributing or selling marijuana, you may be committing a federal conspiracy crime.  And, depending on what it entails, your legal service could also be argued (by some zealous prosecutor) to constitute conspiring, aiding or abetting a client in possessing, distributing or selling marijuana, or even aiding or abetting a client in aiding or abetting someone else (which is also a crime).  

As if the potential of being charged with a crime weren’t enough, ethical issues also loom.  Model Rule 1.2(d) provides that a lawyer shall not “assist a client in conduct the lawyer knows is criminal or fraudulent.”  Cultivating, distributing, and using marijuana is still a federal crime, and Model Rule 1.2(d) prohibits a lawyer from assisting a client committing a crime.  So the lawyer must examine whether providing the requested representation and advice might constitute “assisting” in the commission of a violation of federal law, even in those state jurisdictions that have legalized the client’s activity.  Likewise, if the lawyer’s legal assistance facilitates the possession or sale of marijuana in violation of federal criminal law, the lawyer may also be at risk of violating Rule 8.4(b), which states that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s fitness as a lawyer, as well as Model Rule 8.4(d), which prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice.

Six state authorities have issued ethics opinions or amended the comments to their rules of professional conduct in an attempt to sort out the problem, with inconsistent results.   Though several seem to permit some participation by lawyers, they do not insulate lawyers in these jurisdictions from discipline. They still may face disciplinary action if the client conduct goes beyond what is permitted under the state regulatory framework.  Also, there are additional issues raised by advising local businesses regarding their operations in other states that have different laws regarding marijuana.  Under most analysis, there is a critical distinction between presenting a client with an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud may be committed with impunity.

And what about personal use in the brave new world?  There are no clear answers yet, but Model Rule 8.4 provides that it is professional misconduct for a lawyer to “commit an illegal act that reflects adversely on the lawyer’s honesty or trustworthiness”.  Does marijuana use (where illegal) fit that bill?  That’s open to interpretation.  One thing that is clear is that,  as with  alcohol, a lawyer risks discipline if  his or her  marijuana  use  leads to breaching the duties of competence (Model Rule 1.1) or diligence  (Model Rule 1.3), or results  in a criminal violation, such  as driving under the influence of marijuana.

So, what’s an ethical lawyer to do?  Lawyers still risk discipline if they assist a  client that engages in activity that goes beyond the state's regulatory framework (save, obviously, if they can prove that they had no reason to know or suspect that the client was engaged in wrongful conduct).  Until Congress decriminalizes marijuana use or distribution under federal law, lawyers considering representing clients that are or want to be involved in the growing marijuana industry need to look carefully at both local laws and exactly what they are being asked to do. 

Tom Feher is a partner in the Cleveland Ohio office of Thomson Hine, in the Business Litigation and Product Liability practice groups, and serves as the firm's Loss Prevention Partner.  He is a member of DRI's Lawyers' Professionalism and Ethics Committee and Chair of the Law Firm Counsel Subcommittee.  The very square views expressed herein are TOTALLY AWESOME DUDE, but are still his own.

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On June 27, 2014, the Seventh Circuit found that two Fourth Amendment excessive force claims were compatible with Heck v. Humphrey, 512 U.S. 477 (1994), reversing the court below on this issue. In Green v. Chvala, No. 13-3568, 2014 WL 2925182 (7th Cir. June 30, 2014), the plaintiff sued two law enforcement departments and several of their officers for excessive force in violation of the Fourth Amendment. The district court concluded that the plaintiff’s principal claims against two officers using force were barred by Heck, relying on the plaintiff’s conviction for recklessly endangering safety, which stemmed from the same course of events underlying his civil suit. But finding these claims to be compatible with Heck, the Seventh Circuit vacated the lower decision in part and remanded.

Under Heck, to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a Section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. Heck states that an example of a Section 1983 action that does not seek damages directly attributable to conviction or confinement but whose successful prosecution would necessarily imply that the plaintiff’s criminal conviction was wrongful would be the following: A state defendant is convicted of and sentenced for the crime of resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest. He then brings a Section 1983 action against the arresting officer, seeking damages for violation of his Fourth Amendment right to be free from unreasonable seizures. To prevail in this Section 1983 action, he would have to negate an element of the offense of which he has been convicted. Regardless of the state law concerning res judicata, the Section 1983 action will not lie.

Because Heck can be an important Section 1983 defense, it is important to be aware of the Seventh Circuit’s limitation of Heck as a claims bar in Chvala.

In Chvala, the facts assumed true on appeal were that the plaintiff was pulling away from a stop sign when a defendant officer approached in a squad car and activated its lights. The plaintiff pulled into a nearby lot, promptly backed out of it, and slowly drove past the squad car. The officer responded by opening fire on the plaintiff’s car, and bullets shattered the passenger and back windows. Fearing for his life, the plaintiff then sped away. Later that day, two officers apprehended the plaintiff, now on foot, at gunpoint. While the plaintiff was lying motionless and handcuffed on the ground, a defendant officer came over and kneed him in the ribs as the other officers watched. Several months later the plaintiff pleaded no contest and was convicted of a Wisconsin statute for “second degree recklessly endangering safety” for conduct committed on the date of his arrest.

The plaintiff sued based upon the shooting, the kneeing, other officers’ failure to stop the kneeing, and departmental failure to train on proper force. At screening the district court dismissed each of the plaintiff’s claims for failing to state a claim for relief under Section 1983. First, the district court concluded that the plaintiff’s excessive-force claim against the shooting officer was barred by Heck because the plaintiff’s allegation that he posed no immediate safety threat (thus making the use of deadly force unreasonable) could not be reconciled with the plaintiff’s conviction for recklessly endangering others. Concerning the plaintiff’s claim against the kneeing officer, and against the other officers for not stopping the kneeing, the district court concluded that the force was justified. It reasoned that the officers could anticipate further resistance from the plaintiff given his recent flight, which Heck prevented the plaintiff from denying. Lastly, the district court concluded that the plaintiff’s claims against two law enforcement departments must be dismissed because neither had the legal capacity to be sued.

On appeal, the plaintiff first argued that his excessive-force claim against the shooting officer was compatible with his conviction for two reasons. First: the shooting officer shot at his car before he sped off in a manner that, according to the conviction, was reckless. Second: because he pleaded no contest under North Carolina v. Alford, 400 U.S. 25 (1970), he did not admit to reckless driving.

The Seventh Circuit observed that the plaintiff’s Alford plea did not nullify the Heck bar or its application to reckless driving. Like any plea, an Alford plea resulted in a conviction to which Heck applies. Moreover, under Heck, the plaintiff could not pursue any claim that would necessarily imply the invalidity of his conviction. The plaintiff was convicted of recklessly endangering others by speeding away from the officer, and an officer may reasonably use deadly force when a suspect poses a threat of serious physical harm, either to the officer or to others. Thus, Heck would bar any allegation that the shooting officer used excessive force after the plaintiff began driving recklessly under the state statute of his conviction.

But the Seventh Circuit found that Heck did not bar the plaintiff’s claim against the shooting officer because, construing his allegations liberally, he was alleging that the shooting officer used deadly force before the reckless driving that led to his conviction. The plaintiff alleged that the shooting officer fired at him as he slowly drove past the shooting officer, before he sped away. The Seventh Circuit ruled that Heck does not bar that claim because, if it did, then resistance that did not jeopardize safety, such as the low-speed driving that the plaintiff described, would invite the police to inflict any reaction or retribution they choose. The Seventh Circuit cautioned, though, that the plaintiff survived Heck only if, as his complaint implied, the conviction was for conduct that occurred after the shooting.

In any case, the Seventh Circuit found there had been no seizure under the Fourth Amendment because if, as the plaintiff contended, he sped away after the officer fired the second shot, then he was not seized by that force because he was not stopped by the very instrumentality set in motion or put in place to achieve that result. However, because the plaintiff alleged that the officer shot at his slowly moving car, not to enforce a government interest, but to kill him, the Seventh Circuit found that the allegations stated a Fourteenth Amendment claim.

Regarding the plaintiff’s claim against the kneeing officer, the Seventh Circuit found that the plaintiff stated a claim for relief against the kneeing officer because he had alleged that the kneeing officer applied significant force after he was unable to resist arrest. 

As to the other defendants, the Seventh Circuit found that the officers who watched the plaintiff get kneed in the ribs were not liable because the plaintiff asserted that he was kneed just once, so there was no chance for other officers to step in and no need to warn the kneeing officer to stop. And the Seventh Circuit affirmed the lower decision that the named law enforcement departments could not be sued under Section 1983 because they were departments of government units.

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Categories: Governmental Liability

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I often thought about myself or my law firm when it came to attending networking events.  After attending my fourth Young Lawyers Seminar last week in Denver, I realized that there is much more to networking and socializing than the obvious benefit of establishing relationships that will one day generate business. 

In the past year or so, I found myself in a position to refer several pharmaceutical defense cases to local counsel around the country: one in Virginia; one in Oregon; others here and there.  I immediately went to the DRI member directory to find DRI members who practice in those jurisdictions.  I also asked my fellow Young Lawyers Committee members who they knew in certain jurisdictions.  I came away with several referrals, and was able to place the matters after clearing conflicts checks.  Simple enough, right?  There’s more.

In Denver this past week, I saw one of the Young Lawyers who was able to accept one of these referrals.  She’s doing a phenomenal job representing our client.  This was my lightbulb moment.  Networking and building referral sources isn’t always about our own book of business; it’s about being part of an organization that fosters skill, experience, and professionalism.  It’s about being part of an organization in which our clients are benefitted by our contacts and friendships.  Our clients reap the rewards by being referred to the best defense attorneys and law firms in the world.  So the next time you approach a networking opportunity, consider all that your clients can benefit by your membership in DRI.  They will thank you.

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