We Need An Immunity Amendment

Legislation can't really overcome the U.S. Supreme Court's dangerous expansion of Presidential immunity from civil and criminal liability. This calls for a constitutional amendment, and if it is prospective, it might secure bipartisan support. I would suggest the following language:

No person acting under the color of state or federal law shall have immunity from civil or criminal consequences arising under federal law for their actions, except to the extent expressly provided by law by Congress.

This would put Presidential immunity, judicial immunity, prosecutorial immunity, and qualified immunity back in the hands of Congress, as a legislative decision, rather than allowing the U.S. Supreme Court to unilaterally decide its extent. 

The Law Permits Gross Medical Mistreatment Of Prisoners In Most Cases

Allowing deadly and grossly negligent medical malpractice to go without a remedy because patients are incarcerated is fundamentally unjust.

The defense of qualified immunity for claims seeking monetary damages for constitutionally inadequate medical care for people who are incarcerated is misguided. 

According to the U.S. Department of Justice, medical illness is the leading cause of death of people incarcerated in prisons and jails across the United States. Qualified immunity in these cases limits accountability for carceral actors, thereby limiting incentives for improvements in the delivery of constitutionally adequate medical care. 

The qualified immunity defense also compounds other existing barriers, such as higher subjective intent standards and the Prison Litigation Reform Act, to asserting legal accountability of prison and jail administrators. 

In addition, the defense is not appropriate because medical care decisions by carceral actors are fundamentally different than traditional qualified immunity cases. Traditional qualified immunity cases usually involve discretionary decisions that are one-off, emergency, binary choices made by a single actor or unit of actors. In contrast, medical decisions in carceral settings are often serial, ongoing, and usually involve multiple decision makers, sometimes acting beyond their area of expertise. 

These significant differences between medical decisions in carceral settings and traditional qualified immunity decisions illustrate the practical difficulties for incarcerated plaintiffs and their families in holding prisons accountable for violating the U.S. Constitution. 

Recent developments refining the doctrine may lessen the negative impact of the defense on these civil rights claims, but they also do not address the core disconnect between the rationales justifying qualified immunity and its application in cases of severe injury or death from inadequate carceral healthcare.

Andrea Armstrong, "Prison Medical Deaths and Qualified Immunity" (2022).

Constructive Solutions

Here are some selected legislative ideas to address public policy issues (UPDATED January 22, 2022):

Immigration

* Reduce barriers to naturalization by, for example, reducing or eliminating naturalization and exam fees, waiving citizenship and English language proficiency tests for certain candidates (e.g., graduates of U.S. high schools or colleges, graduates of foreign high schools or colleges with English as the primary language of instruction, people who have served in the U.S. military and their spouses, interpreters and former interpreters for the U.S. military or U.S. government, spouses of U.S. citizens with U.S. citizen children, adults over age sixty-five, and developmentally disabled persons), allowing accommodations for disabled test takers, and by making tests easier and more available;

* reduce or eliminate the fees for obtaining a passport or replacement passport;

* establish a path to citizenship  legislation for DACA program beneficiaries;

* clear up legal immigration backlogs, at least for close family and especially for the Philippines which has very low rates of undocumented immigration and a huge backlog; 

* replace criminal penalties with civil penalties for the lowest level immigration crimes (e.g. illegal entry);

* establish a class of licensed independent paraprofessionals authorized to act in lieu of lawyers in immigration cases;

* establish a right to counsel for all minors and all indigent persons in immigration cases;

* complete scrap and rebuilt from scratch the immigration court system which is notorious for arbitrary and capricious decision making that varies wildly from judge to judge;

* establish a statute of limitations (e.g. ten years) on deportability after illegal entry into the U.S., or upon overstaying a visa;

* establish a "immigration detainee's bill of rights" together with provisions allowing those rights to be enforced in private litigation and by a government immigrant advocate who is independent of the Department of Homeland Security;

Election Law and Access To Identification

* use federal/state/local/private funds to get photo IDs for people such as kids leaving high school, newlyweds who have changed their names, people leaving prison and/or jail, welfare beneficiaries, homeless people, senior citizens, and people with lost or stolen IDs. Also register them to vote.

* prepay mail in ballot postage (or make it free per federal law);

* fix the electoral vote counting law;

* lower state voting ages to sixteen years;

State and Local Elected Offices

* replace elected coroners with a state medical examiner's office;

* make county surveyors, county assessors, county treasurers, and state treasurers senior civil service positions rather than elected offices;

Health Care

* offer healthcare copay/deductible guaranteed loans/grants for people with health insurance;

* prohibit submission of provider charges directly to patients who have health insurance (require them to be sent to insurer instead with patient responsible only for amounts determined between health insurance and provider to be reasonable and only to extent to patient's share under health insurance);

* provide public funding for health care for people injured in crimes;

* provide public funding for health care for people injured in non-work related accidents (possibly piecemeal legislation, e.g., for people hurt outside a motor vehicle by uninsured motorists or in hit and runs);

* establish a large private endowment to finance reproductive health care that government programs and/or health insurance won't pay for;

* establish more new medical schools so that they country can produce more doctors each year (the number of medical school slots has remained almost constant for many decades despite a growing population);

Landlord-Tenant and Property Maintenance

* provide public funding for non-negligent moving to storage of the property of evicted people and homeless people;

* make renter's insurance mandatory for residential renters, with the landlord having a duty to insure that this requirement is complied with;

* establish some sort of sensible cap on lost future rent damages in residential leases terminated early (e.g. X months, or Y% of the amount claimed for Z months after the first X months);

* establish a right of a tenant to hire licensed (if applicable), bonded, and insured professionals to repair certain serious defects in property conditions at landlord expense if landlord fails to act within a statutorily set period of time after receiving legal notices from tenant;

* replace failure to maintain property ordinance violation fines with laws authorizing local governments to maintain properties at owner's expense;

Criminal Justice and Civil Rights

Criminal law 

* establish statutory exclusionary rule for confessions or testimony obtained using deception from governmental officials (possibly not as broad as 5th Amendment exclusionary rule in terms of fruit of the poisonous tree, for example);

* ban consideration of acquitted or uncharged conduct in sentencing (give this policy change retroactive effect);

* criminalize guards having sex with incarcerated people under their supervision;

* criminalize law enforcement officers having sex with people while on the job in the absence of a pre-existing relationship and an absence of exercise of law enforcement authority;

* make payments at a statutory rate in lieu of public defender representation for criminal defendants who have private criminal defense attorney and are acquitted;

* create a right to compensation without proof of fault or actual innocence for people whose incarceration pursuant to a conviction for a crime is vacated for reasons other than a pardon, and are released;

* create a right to compensation without proof of fault or actual innocence for people whose pre-trial arrest or incarceration is found to have not been supported by probable cause;

* end cash bond for pre-trial release in most cases;

* remove marijuana (and chemically or biologically related drugs) from the list of Controlled Substances under the federal Controlled Substances Act and retroactively pardon everyone convicted of mere possession under the Act for marijuana offenses;

* establish grants for private innocence project type non-profits;

* eliminate the authority of municipal governments to impose a sentence of incarceration for an ordinance violation;

* prohibit an appellate court from remanding a case reversed for an abuse of discretion by the judge in a criminal case to the same judge;

Civil law

* impose vicarious liability on governments for civil rights violations by their employees without independent proof of fault (if they don't promptly throw the violator under the bus by firing the employee promptly after a lawsuit or complaint is filed, and by establishing as a defense that the employee was acting contrary to the employer's policies);

* eliminate qualified immunity for governments that are vicariously liable for civil rights violations even if employees benefit from qualified immunity for their personal liability for civil rights violations;

* establish civil liability for violations of constitutional rights that arise from negligence, reckless, or willful and wanton conduct;

* give courts in civil rights action the authority to ban defendants found liable for violating civil rights from serving in law enforcement and/or possessing firearms;

* eliminate the immunity, absolute or qualified, from civil liability of any judge, prosecutor, or other elected official who has been convicted of a crime or ethical violation for conduct related to that crime or ethical violation with the statute of limitations on this claim deemed to arise only when the person bringing suit receives notice that the official was convicted of the related crime or ethical violation;

* end civil forfeiture, not incident to a judgment in a civil action against the owner as a named defendant or a criminal conviction of the owner, of assets that are not inherently contraband, and do not allow law enforcement agency budgets to economically benefit from civil forfeiture proceeds;

Enforcement

* create a state agency to investigate and prosecute law enforcement and prosecuting attorney violations of the law, civil rights violations, and ethical violations appointed by public defenders and/or civil rights lawyers;

Income Taxation

* treat tips as self-employment income, rather than wage and salary income, for income tax and withholding tax purposes;

Bankruptcy

* treat every claim acknowledged by a debtor in a bankruptcy in the debtor's schedules as one for which a proof of claim has been filed;

* require any entity majority owned or controlled by a bankruptcy petitioner to be included in the bankruptcy petitioner's bankruptcy;

* establish a new bankruptcy chapter for probate estates that limits relief to the automatic stay;

E-filing mechanics

* fully automate services of process upon the debtor, all parties that have filed claims in the case, and all creditors listed by the debtor in the e-filing system;

* allow creditors to file a proof of claim in a bankruptcy with an online form;

Limitations on claim discharges

* make it easier to prove that fraud/willful misconduct debts are non-dischargeable in bankruptcy without retrying underlying facts of a debt, and allow extensions of time to object to their discharge for excusable neglect or lack of notice;

* relax the standard for discharging student loan debt in bankruptcy by eliminating its non-dischargeability ten years after repayment begins, and in case where no degree has been is earned when repayment begins, where no professional licenses is obtained in a preprofessional program when repayment begins, in cases of wrongful educational institution or student loan lender practices, in cases of disability, and in other cases of unreasonable hardship;

Claim priority

* eliminate the priority in bankruptcy for tax debts other than withholding tax debts and tax liens;

* subordinate awards of punitive damages, debts for non-compensatory fines and penalties, statutory damages unrelated to actual compensatory damages, late fees, and the portion of interest on debts that exceeds non-default interest, to general creditors in bankruptcy,

* give priority in bankruptcy cases over other general creditor debt (mostly long term financing debt) to trade creditors whose debts would otherwise be general creditor debt;

* treat independent contractor payments for personal services as wages for purposes of bankruptcy priority;

Insider preferences and compensation

* claw back payments made to or authorized within one year prior to bankruptcy to equity owners;

* claw back payments made to or authorized within one year prior to bankruptcy to managers and executives in excess of (1) fair market value for the services rendered, (2) the compensation rate payable immediately prior to one year prior to bankruptcy, or when hired if first hired after that date (excluding any discretionary bonus payments), or (3) $50,000 per month (whichever of the three is smaller, but not less than minimum wage).

* limit payments to managers, executives during a bankruptcy to (1) fair market value for the services rendered, (2) the compensation rate payable immediately prior to one year prior to bankruptcy, or when hired if first hired after that date (excluding any discretionary bonus payments), or (3) $50,000 per month (whichever of the three is smaller, but not less than minimum wage).

* limit payments to legal counsel during bankruptcies pursuant to administratively set limits on total fees, contingency fee rates, and hourly rates;

* automatically cancel all equity interests of an entity that voluntarily files for bankruptcy with the authorization required to do so under state law (with a strict deadline for equity interest owners to assert that a bankruptcy was ultra vires to prevent this cancellation), and in any other case, as soon as it is established that the debts of the bankrupt exceed the assets of the bankrupt; 

Exemptions of assets from creditors claims and debtor income

* require individual debtors in bankruptcies to contribute to the bankruptcy estate an amount equal to the maximum wage garnishment allowed under state law for three years (or the equivalent in the case of a self-employed debtor) absent extraordinary circumstances set forth in the statute, in lieu of the current means-testing rule;

* place a uniform national dollar cap on the homestead exemption available in bankruptcy (e.g. $100,000 indexed) notwithstanding higher exemptions available under state law (but without increasing exemptions allowed under state law);

* allow tenancy-by-entirety protections from creditors only in joint bankruptcies of the owners;

* place a uniform national dollar cap on the exemption for retirement assets in bankruptcy (e.g. $500,000 indexed);

* place a uniform national dollar cap on the priority for alimony and child support in bankruptcy (e.g. $500,000 indexed);

Arbitration, Class Actions, And Jury Trial Waivers

* ban arbitration for child custody and establishment of child support matters;

* ban binding pre-dispute arbitration for intentional tort litigation;

* ban binding pre-dispute arbitration clauses for consumers, non-institutional investors, and non-unionized employees;

* allow arbitration awards in circumstances where arbitration is allowed to be reviewed for disregard of applicable law or failure to follow the arbitration rules agreed to by the parties;

* prohibit arbitration procedures from changing the substantive rights of the parties under non-arbitration law;

* require an occupational license to serve as an arbitrator and make that license subject to revocation for misconduct by an arbitrator;

* require public disclosure of arbitration awards in circumstances where arbitration is allowed;

* clarify statutorily that contract formation in cases where an arbitration agreement is present is for a court to decide and clarify that arbitration agreements must be in writings signed by the person against whom they are to be enforced unless select expressly specified exceptions to that requirement apply;

* ban class action waivers;

* ban jury trial waivers in connection with torts arising from personal physical injuries, and intentional torts other than business torts;

Private Law

* pass an anti-pre-emption statute (common in uniform and model laws) that  allows the law of ERISA plans and federal government provided benefit plans (e.g. federal government employee life insurance and retirement benefits) to be supplemented by common law and equity (and non-ERISA specific state law more generally) from the state where the plan administered or where the federal government employee is domiciled;

* establish a national index of marriages, civil unions, publicly filed domestic partnerships, marriage dissolutions, legal separations, and similar proceedings;

Debt collection

* subject assignees and purchasers of debts and business creditors of consumer debtors (subject to a de minimus exception) to the same obligations as debt collectors under the Fair Debt Collection Practices Act;

* establish strict liability sanctions for creditors, debt collectors, and attorneys seeking to enforce debts barred by a statute of limitations, a bankruptcy discharge, or res judicata (i.e. "zombie debt") in either a lawsuit or bankruptcy;

* prohibit making death an event of default under a contract in circumstances to be set forth in a statute, where prejudice to the other party under the contract is avoided;

Unlawful business practices

* make it a deceptive trade practice for a business to continue to use a contract, contact term, or procedure of a business has found to be void as contrary to public policy or illegal in a lawsuit in litigation with the business or in litigation in which an officer or director of the business participated with another business;

* make it an ethical violation for an attorney to draft a contract containing a term that the attorney knows is contrary to public policy or illegal under a binding precedent or statute, or to request such a term in a transactional negotiation;

Copyright

* in copyright infringement actions, eliminate statutory damages and limit awards to compensatory damages for lost profits of the copyright owner and/or disgorgement of amounts by which the infringer was unjustly enriched, together with costs, attorney fees, and interest;

* in copyright infringement actions, limit attorney fee and expert witness awards as part of court costs (combined) to not more than one-half of the damages awarded or $500, whichever is greater;

* impose a statutory civil fine upon anyone filing a wrongful takedown notice under the DCMA;

* establish mandatory copyright licensing for orphan works, translations of works that have not been translated in a timely fashion, and certain other transformative or independently innovative derivative works;

Worker's Compensation

* require worker's compensation death benefits to be at least comparable to the death benefits commonly awarded in wrongful death tort cases even in cases where a worker does not have a surviving spouse or surviving dependent children;

Debt Collection And Civil Procedure

Attorney fee and cost awards

* establish a statewide hourly rate for attorney services and paralegal services that counts are reasonable and/or fixed amounts for particular tasks, for use in fee shifting cases (at least in sanctions cases), in lieu of actual litigation of reasonableness on a case by case basis;

* in actions for money damages in which the prevailing party is entitled to attorney fees, limit the reasonable attorney fee and expert witness awards as part of court costs (combined) to not more than one-half of the damages awarded (or sought in the case of a prevailing defendant), or $500 (indexed), whichever is greater, even if the attorney fees and expert witness fees incurred were otherwise reasonable;

* allow a legal malpractice plaintiff to recover the plaintiff's attorney fees in the legal malpractice action as an element of damages;

Service of process and notice

* replace service of process by publication of a legal notice in a newspaper of record for several weeks, with service by process by notice in one of several public notice registries available in person at the courthouse and for free online (at no charge to the litigant) the entries in which have an index number that can be used to also serve the notice via text message, email, voice mail, postcard, and posted notices;

* establish a system in which an "interested person" such as a judgment creditor, a spouse, a former spouse with outstanding obligations owed to them, a secured creditor, or a creditor under a written contract, can automatically receive notice of the death of a person, the change of name of a person, probate proceedings concerning a person, bankruptcy proceedings concerning a person, lawsuits against a person, and personal property lien filings against a person;

* establish a system in which a person can automatically receive notice of new real estate record filings concerning a particular parcel of real property, and lawsuits relating to possession of a particular parcel of real property;

* allow substituted service of process of new lawsuits (i.e. service of process under Federal Rule of Civil Procedure 4 or the equivalent) to be made upon "gatekeepers" such as doormen or entry area receptionists, when access to a residence or business is restricted;

E-Filing related practices

* provide e-filing access to pro se parties;

* eliminate the requirement of a certificate of service for parties that e-file court documents since the e-filing system would handle this function automatically with third-party verifiability;

* create a publicly available database of contact information for attorneys and eliminate the requirement that attorneys with disclosed registration numbers in legal filings include their contact information on each document they file;

* give parties in cases with pro se litigants access to contract information about those litigants and eliminate the requirement that attorneys with disclosed registration numbers in legal filings include their contact information on each document they file;

Enforcement of money judgments

* give judgment liens in real property statewide scope where the judgment creditor can provide sufficient data about the judgment debtor to prevent similar name confusion;

* allow judgment creditors to gain access to the tax records (including information returns filed such as W-2s, K-1s and 1099s), and credit records, of judgment debtors, as a matter of course, at any time when judgment creditors would have a right to obtain information from judgment debtors directly about their assets and in bankruptcy cases;

* allow judgment creditors to execute upon ownership interests of judgment debtors in entities by giving notice of a judgment to the registered agent of the entity without regard to the form of the entity or whether its shares are certificated or not, or any buy-sell agreement of the company;

* establish detailed procedures and exhaustion of remedies requirements that must be followed in contempt of court proceedings alleging a willful failure to pay money or property in connection with a judgment or court order including a child support or alimony order;

Statutes of limitations

* make filing a lawsuit within the statute of limitations an element of every cause of action, that is part of the prima facie case which must be established in the complaint to state a claim, and upon which the burden of proof is on the person bringing the claim;

Procedures related to unlawful business practices

* give notice (in a publicly accessible document)  to the state attorney-general in the state where a lawsuit is filed, and also the state where an entity defendant is organized or an individual defendant is domiciled, of any lawsuit or counterclaim filed by a consumer or employee against a business or employer (so that someone can see patterns and practices of allegations whether or not the cases are settled), including product liability tort claims;

* give notice (in a publicly accessible document) to the state attorney-general in the state where a lawsuit is filed, and also the state where an entity defendant is organized or an individual defendant is domiciled of all court judgments in which a contract, contract term, or procedure of a business is found to be void as contrary to public policy or illegal;

* require a business to affirmatively disclosed that a contract, contact term, or procedure of a business has found to be void as contrary to public policy or illegal in a prior lawsuit, in litigation with the business related to that contract, contract term, or procedure.

Ethical obligations of attorneys in litigation

* require an attorney filing a civil action, or representing a party in a civil action, to disclose any assertion of law made that the lawyer knows is contrary to a controlling precedent (subject to an ongoing duty to supplement during the pendency of the litigation) even if the assertion of law does not violation Rule 11 (permitting good faith arguments to change the law) and subjecting the attorney to sanctions if the attorney's client does not prevail on the merits on that legal argument if it is not disclosed or withdrawn promptly after being identified;

* establish an ethical duty of an attorney at any stage of a proceeding (even an appeal) not to argue inferences regarding facts that are known to be factually untrue (even if the untrue facts are not themselves presented as evidence) before a tribunal in a civil matter without disclosing this reality to the tribunal;

Federal subject-matter jurisdiction

* eliminate ordinary diversity jurisdiction in cases in which both plaintiff and defendant have a U.S. domiciled party;

* eliminate general federal question jurisdiction in cases involving only non-government associated parties;

Federal personal jurisdiction

* restore the rule that general personal jurisdiction may be asserted over any entity that has any office for the conduct of business or a registered agent in a state;

* allow federal district courts where the plaintiff resides to assert personal jurisdiction over a defendant or third-party witness or garnishee who is not subject to the personal jurisdiction of any one U.S. state, or the District of Columbia, or any one U.S. territory, but does have sufficient contacts with the United States as a whole to be subject to its personal jurisdiction if the United States had been a single U.S. state;

Jury trials

* eliminate by statute, the right to a jury trial in state court in civil actions to enforce a written contract or lease signed by the party to be charged, or to sue in the alternative in such as case, for promissory estoppel or unjust enrichment;

* establish a right to a jury trial in state court with respect to counterclaims in civil actions in which there is no right to a jury trial on the claims in the complaint (i.e. repeal the "well-pleaded complaint rule" for jury trials);

Appeals

* prohibit an appellate court from remanding a case reversed for an abuse of discretion by the judge in a civil case to the same judge;

Pre-litigation discovery

* Allow a special proceeding called a pre-litigation inquiry, under a new rule of procedure in both state and in federal court, to be brought to allow prospective plaintiffs to engage in pre-litigation discovery regarding facts in the exclusive control of a prospective defendants, at the expense of the plaintiff, upon a showing that all elements of a cause of action except those requiring evidence in the exclusive control of a prospective defendant have been established, that is limited to facts in the exclusive control of a prospective defendant that are necessary to state a claim for relief (in response to new, more strict, pleading standards in Twombly, Iqbal, Warne, and related cases); 

Quality Of Life Laws

* nationalize can and bottle deposit laws;

* make public sidewalks public property for purposes of snow removal and maintenance;

Spam-like activity

* do anything that works to crack down on extended warranty solicitations, such as requiring a license number that must be disclosed in any solicitation in any medium to sell an extended warranty;

* do anything that works to reduce junk calling, including criminalizing caller ID spoofing and requiring phone companies to enact systems that prevents or makes it much more difficult to engage in caller ID spoofing;

* require all unsolicited telephone communications made, text messages, and emails to be recorded with records maintained for three years;

* establish "know your customer" laws related to firms that facilitate payments to people who are conducting fraudulent schemes resulting in payments from many people (ten or more that are in the aggregate in excess of $10,000) that can be triggered by complaints from people who have made payments or authorities as well as from business negligence, and require any company that engages in robocalling, mass faxing, mass texting, and mass email marketing (even if legal) to disclose that fact to their financial and payment systems providers;

* require a federal license (which is available as a matter of right to individuals who can do so legally, that can be revoked civilly for misconduct) to engage in robocalling, robo-faxing, mass texting, mass email marketing, and mass mailing through the U.S.P.S.

Colorado Anti-Criminal Libel Suit Advances

The civil rights suit of a Colorado man who faced a criminal libel prosecution in connection with a parody of a professor, brought against the Deputy District Attorney Susan Knox who reviewed and approved a search warrant in the case has been allowed to move forward by the 10th Circuit Court of Appeals. Binding precedents in the 10th Circuit Court of Appeals makes it even less favorable to civil or criminal suits based on parodies than U.S. Supreme Court precedent. The court held that if the facts alleged were established at trial that the plaintiff would prevail in the suit.

A search warrant was issued and carried out in connection with the criminal libel prosecution, although a criminal case charging the defendant was never brought. The search warrant also didn't allege a specific offense, although it was actually prepared in connection with an intent to investigate the parody as a criminal libel case. According to the Court: "The Greeley police then searched the home where Mr. Mink lived with his mother and confiscated their personal computer, as well as written materials referencing The Howling Pig [an online journal]."

The United States District Court for the District of Colorado had quashed the suit on the ground that the Deputy District Attorney was entitled to qualified governmental immunity. The 10th Circuit Court of Appeals disagreed.

An earlier 10th Circuit ruling in the same case held that a prosecutor was not entitled to absolute immunity, as prosecutors are in most circumstances, because review of an affidavit in support of a search warrant is an activity involving the investigative or administrative duties of a prosecutor, rather than a prosecutor's rule as an advocate in a commenced case.

The pair of rulings establishes a template for suing prosecutors who are involved in the issuance of search warrants in cases where a clearly established constitutional right makes it unconstitutional to do so. In particular, it strongly discourages prosecutors from bringing questionable criminal libel lawsuits in Colorado.

Since, in this case, most of the defenses to the plaintiff's case were questions of law, rather than claims that assertions that the facts alleged in the case were not true, the ruling makes the plaintiff's case much stronger.

In a case like this one, the stakes aren't particularly high. The damages suffered by the Plaintiff, Mr. Mink, in having his computer seized by police, were probably modest in economic terms. He was not wrongfully imprisoned. He could win an award for non-economic damages, but is unlikely to win that kind of large award that juries sometimes hand down in police brutality and racial bias cases. In theory, the prosecutor is personally liable for the suit, but in practice, the government or its insurance pool, is likely to pay any damage award on her behalf. From a professional reputation perspective, this is probably not a career ending event, despite the fact that it is very rare for prosecutors to be found legally liable for violating someone's civil rights.

But, the stakes could have been much higher if the damages had been greater, for example, if someone had been physically injured or killed in the police search of the house.

To be clear, this ruling does not find that Colorado's criminal libel statute is unconstitutional. Instead, it holds that participating in the issuance a search warrant in a criminal libel case that clearly has no legal basis is unconstitutional and gives rise to a right to seek money damages.

One practical result of this case in Colorado politics may be to discourage the criminalization of campaign conduct. Almost every election year, someone asks some prosecutor to press charges against a candidate under one of the Colorado statutes that makes it illegal to make false statements of fact about an opponent. Almost invariably, prosecutors say no, but the temptation is always there, particularly in light of the fact that Colorado's prosecutors are partisan elected officials. This ruling gives Colorado prosecutors cover to say that they won't enforce these criminal libel laws and similar election laws.

The outcome also encourages prosecutors to bring charges without conducting searches and seizures, effectively subjecting their discretion to supervision by a judge hearing lawyers for both sides of case, in cases that are constitutional close calls.

Lawyers have higher ethical obligations in requests for search warrants and other "ex parte" proceedings where the lawyer for the other side is not present when a judge is asked to take action, than in contested adversarial proceedings. In an ex parte proceeding, the lawyer before the court must inform the court of all material facts, even those that hurt the lawyer's case, and prosecutors also have an ethical duty to refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.

Employee Arbitration Gone Amok

As this Op-Ed in the Los Angeles Times explains, there is a problem with employer-employee arbitration in many case. Such as this one:

A young American woman already denied the right to criminal justice in Iraq was insulted for a second time when a judge denied her the right to sue for civil relief in a U.S. court.

What was the reason? There was a binding arbitration clause in her employment contract. The judge said: "Sadly, sexual harassment, up to and including sexual assault, is a reality in today's workplace." He then sent the case to binding arbitration as requested by Halliburton and its former subsidiary, KBR, snuffing out the civil case of their employee, a mother of five who had filed a lawsuit alleging sexual harassment and assault by co-workers while on the job in Iraq.

A second woman is likely to face the same fate in the same court, in a case alleging that she was drugged and brutally gang-raped by co-workers in Iraq and then held incommunicado, without food or water, in a shipping container by the same employer. In an unbelievable statement to the Equal Employment Opportunity Commission, KBR said that after a medical examination, the woman was "taken to a secure unlisted living container where she could rest." It is hard to imagine any greater trauma to an already traumatized and injured rape victim than terrifying and forcible isolation immediately after the violent event. Adding insult to injury, the rape kit used by a military doctor in examining the victim was reportedly handed over to Halliburton/KBR, and doctor's notes and photos of her bruises are missing.

There was no criminal prosecution of the alleged perpetrators because they worked for a defense contractor, which is exempt from criminal sanctions under an order enacted by the Coalition Provisional Authority in Iraq during L. Paul Bremer III's tenure as its administrator.

The bigger issue:

This is a preview of the demise of the jury system . . . "Tort reform" is a deliberately deceptive term coined in the 1980s by tobacco, pharmaceutical, insurance and gun lobbyists and lawyers who set about to transform our civil justice landscape by eliminating corporate exposure to civil liabilities. . . . the courthouse doors are rapidly being closed to average citizens, who will be shunted off into a lucrative private legal system presided over by retired judges employed by alternative dispute-resolution providers.

Many Americans would be surprised to learn they are barred from pursuing a case in court because of boilerplate binding arbitration clauses buried in forms they signed with banks, real estate and escrow companies, auto dealerships, medical care providers (including hospitals) and many other people and entities that may have caused them harm. Yet that's often the case (and what happened to the two Halliburton employees would have been the same, even if they'd been in Wisconsin rather than Iraq). . . .

In such arbitration proceedings, there is no public or media access, no rules of evidence or procedure, no court transcript, no jury and, most important, no appeal -- no matter what. Quite simply, there is no accountability in binding arbitration, in which the arbitrators and alternative dispute-resolution providers are paid by the corporate defendants -- who are also likely to guarantee repeat business.

Binding arbitration clauses were drafted and put into form contracts by lawyers for the corporations that stood to benefit from them the most.

The Iraq War immunity from criminal liability for government contractors was eggregious.

Pre-dispute arbitration claues with consumers and in individual employee-employer situations should be banned. Short of that, there ought to, at least, be an exception for intentional torts, almost all of which are also crimes, like the one in this case.

There is a public interest in having dispute resolutions that are both actually fair and perceived to be fair, something that is no longer true in the case of consumer and individual employee arbitrations. There is a public interest in not creating an environment where one employee has the power to rape another with impunity. There is a public interest in discouraging government contractor cover ups. There is a public interest in knowing what justice has been meted out.

ICE "Beyond Cruel"

The immigration system has no natural advocate for immigrants in the political system, and as a result, has developed a culture of indifference. The results are sometimes deadly, as the U.S. District Court notes in recent court ruling finding in favor of the survivors of an immigrant in a suit against the federal government and the involved federal officials, which the government parties moved to dismiss.

The Facts

The Court recounts the facts, which are well documented -- most come from documents disclosed by the federal government, and the remaining relevant facts are corroborated by third party medical records:

On March 27, 2006, Plaintiff Francisco Castaneda – an immigration detainee – informed the Immigration and Customs Enforcement (“ICE”) medical staff at the San Diego Correctional Facility that a lesion on his penis was becoming painful, growing in size, and exuding discharge.

On site doctors contacted "the Division of Immigration Health Services (“DIHS”), requesting approval for a biopsy and circumcision" because there was strong concern that the problem was penile cancer. It was denied, were further efforts to have that decision changed.

Plaintiff has submitted thirty-three exhibits of Defendants’ own official medical records documenting their knowledge of the fact that several physicians had concluded that Plaintiff’s lesion was very likely penile cancer, and that he needed a biopsy – a straightforward procedure – to rule cancer out. These documents show that nevertheless, Defendants refused to grant Plaintiff this simple procedure for almost eleven months, even while they noted that his pain and suffering were severe and increasing, that his penis was emitting blood and discharge, and that a second growth had developed. Therefore, if Plaintiff’s evidence proves true, from the first time Castaneda presented with a suspicious lesion in March 2006 through his release in February 2007, the care afforded him by Defendants can be characterized by one word: nothing.

As a result he suffered “'ten months of pain, bleeding, anxiety, loss of sleep, and humiliation while in ICE’s custody, the amputation of his penis, and nearly a year of grueling chemotherapy,' not to mention his eventual death." . . .

As the opinion notes (citations to the record omitted):

[A] biopsy was finally scheduled for early February. However, a few days before the procedure, Castaneda was abruptly released from ICE custody. Castaneda then went to the ER of Harbor-UCLA Hospital in Los Angeles on February 8, 2007, where he was diagnosed with squamous cell carcinoma. His penis was amputated on Valentines Day, 2007. . . . Harbor-UCLA confirmed that Castaneda had metastatic cancer. Castaneda began undergoing chemotherapy at Harbor-UCLA. However, the treatment was not successful, and on February 16, 2008, Mr. Castaneda died.

The Court's Analysis

The Justice Department argued (among other points) that the immigrant detainee had not alleged enough to state a claim against the government at all. In response, the Court ruled that:

The evidence that Plaintiff has already produced at this early stage in the litigation is more thorough and compelling than the complete evidence compiled in some meritorious Eighth Amendment actions. . . . the evidence suggests that not only did the individual Public Health Service Defendants ignore doctor recommendations to provide Castaneda with a simple procedure, they may also have lied about those recommendations.

The Court concluded by noting that:

If Plaintiff’s evidence [Ed. consisting almost entirely of federal government documents produced by the government] holds up, the conduct that he has established on the part of Defendants is beyond cruel and unusual.16

FN 16: After all, Plaintiff has submitted powerful evidence that Defendants knew Castaneda needed a biopsy to rule out cancer, falsely stated that his doctors called the biopsy “elective”, and let him suffer in extreme pain for almost one year while telling him to be “patient” and treating him with Ibuprofen, antihistamines, and extra pairs of boxer shorts. Everyone knows cancer is often deadly. Everyone knows that early diagnosis and treatment often saves lives. Everyone knows that if you deny someone the opportunity for an early diagnosis and treatment, you may be - literally - killing the person. Defendants’ own records bespeak of conduct that transcends negligence by miles. It bespeaks of conduct that, if true, should be taught to every law student as conduct for which the moniker “cruel” is inadequate.

Particularly culpable in the Court's summary of the records was Esther Hui, M.D. at the Division of Immigration Health Services who played a central role in overriding the medical judgment of the treating physician and denying care despite having detailed knowledge of the case and the medical skills to evaluate that information.

Also troubling was the conduct of Claudia Mazur, a DIHS nurse, who appeared to have lied about what the doctor's had recommended in a denial report of October 26.

As the Court explains, this was essentially a case of murder by spreadsheet (citations to the record omitted):

Dr. Hui and the DIHS included this false characterization in official reports despite the fact that a TAR recognized that both doctors “strongly recommend admission, urology consultation, surgical intervention via biopsy,” and despite that fact that [Ed. treating] Dr. Wilkinson reported that he had spoken to “the physicians at the correctional facility” and “[t]hey understand the need for urgent diagnosis and treatment.” Indeed, Dr. Hui herself recognized in a report that Castaneda might have cancer but “[s]ince this is an elective outpatient procedure, we decided that we would not admit him [to the hospital to have the procedure] at this time.” Plaintiff’s evidence also suggests why Dr. Hui was so interested in characterizing the surgery as elective; “as such the Federal Government will not provide for such surgery.”15 Plaintiff has thus submitted compelling evidence that Defendants purposefully mischaracterized Plaintiff’s medical conditions as elective in order to refuse him care. Dr. Wilkinson reported that Defendants refused to admit Castaneda to the hospital for a biopsy because they wanted a “more cost effective” treatment. Official records document Defendants’ circular logic that because they would not allow him to have the biopsy, “he DOES NOT have cancer at this time”; because he does not have cancer, he therefore does not need a biopsy. In other words, as long as they could label Castaneda’s condition elective, Defendants could remain willfully blind about his lesion and avoid having to pay for its treatment.

FN 15 The Court has serious questions as to the constitutionality of a policy of refusing to pay for all medical treatment that can be characterized as “elective” because, as evidenced by this case, the label fails to identify accurately who needs care. DIHS labeled the treatment in this case “elective” even while acknowledging that Castaneda’s condition was so “severe” that he would need a “resection” - full or partial removal of the penis. Indeed, Plaintiff’s evidence suggests that Dr. Hui defined “elective” so broadly that she believes the term to encompass life-saving treatment.

Genralow Wilson DA Is A Creep

The District Attorney in Georgia, David McDade, who prosecuted Genarlow Wilson* didn't just abuse his prosecutorial discretion in that case, he is a creep. The fact that he was elected in Douglas County, Georgia when this happened doesn't speak well of the voters there.

The Case

McDade was sued for sexual harassment in his office, and those claims survived a motion for summary judgment, but were dismissed on an appeal to the 11th Circuit Court of Appeals. The Plaintiff requests a rehearing en banc, which was denied. Here is what a dissenting judge in the rehearing en banc decision stated:

[T]he panel held that although District Attorney McDade "ran a DA's office rife with gender-discrimination," qualified immunity protects him from civil liability because there is no pre-existing case which would have put him on notice that: (1) berating his female employees with pejorative terms such as "hysterical female," "bitch," "blonde bombshell," "smurfette," and "bimbette," (2) photographing his female employees' buttocks, (3) throwing coins and other objects down his female employees' blouses, (4) telling a female employee to uncross and cross her legs again while he watched, (5) stating that the only thing women are good for is "making babies," (6) saying "women don't have the balls to be prosecutors," and (7) embarrassing his female employees with statements such as "you can't come in, Rita doesn't have her clothes on," constituted sexual harassment.

Lewis v. McDade, 250 F.3d 1320, 1321 (11th Cir. 2001) (Justice Barkett, dissenting from denial of rehearing en banc).

Here is the full statement of facts from the trial court decision appealed from:

Defendant McDade was elected District Attorney for the Douglas Judicial Circuit in the summer of 1990. Though persons employed in the District Attorney's office are paid by the State and/or Douglas County, the authority to hire, supervise, discipline, and terminate these employees rests with Defendant McDade.

Plaintiff Lois Gerstenberger was hired as an assistant district attorney by Defendant McDade's predecessor, Frank Winn, on November 1, 1986. After Defendant McDade was elected District Attorney, he allowed Plaintiff Gerstenberger to continue to work as an assistant district attorney in the office. Plaintiff Gerstenberger resigned on August 18, 1994, to be effective September 2, 1994.

In January, 1990, then District Attorney Winn employed Plaintiff Martha Carver as the first and only Victim-Witness Coordinator for the District Attorney's office. Defendant McDade also allowed Plaintiff Carver to continue in this position from January 1, 1991 until she submitted her resignation on September 26, 1994, effective two weeks later.

In March, 1990, then District Attorney Winn employed Plaintiff Rebecca Lewis as his office receptionist. In November, 1990, Plaintiff Lewis was transferred to the data entry position. Defendant McDade allowed Plaintiff Lewis to remain in this position until she submitted her resignation on September 23, 1994, effective October 8, 1994.

Then District Attorney Winn employed Plaintiff Linda Hughes as a county-paid secretary in August, 1990. In April, 1994, Plaintiff Hughes was appointed to a state-funded secretary position. Upon his election, Defendant McDade allowed her to remain in this position. By letter dated August 18, 1994, Plaintiff Hughes submitted her letter of resignation to Defendant McDade.

In January, 1979, Plaintiff Rita Smith was hired by then District Attorney Winn as a state-funded secretary in the District Attorney's office. Defendant McDade allowed Plaintiff Smith to continue in her employment in this position until she resigned on October 23, 1995. Plaintiff Smith functioned as the District Attorney's Office Manager from January, 1991 until February, 1995.

In July, 1988, Plaintiff Brenda Heath was appointed as the Douglas District Attorney's first and only investigator by then District Attorney Winn. Defendant McDade allowed Plaintiff Heath to remain in this position until he terminated her on February 3, 1995.

There is no evidence that during 1994 and 1995, the Douglas District Attorney's office employed more than fifteen (15) employees, as that term is defined at 42 U.S.C. § 2000e(f), for each working day in each of twenty (20) or more weeks during that calendar year.

The office of the District Attorney operated very informally. Employees often engaged in sexually suggestive language and activities. The Magistrate Judge has reviewed this conduct in detail in the Report and Recommendation which is incorporated herein. However, a brief summary of that evidence, construed in a light most favorable to Plaintiffs, follows.

Defendant McDade would tell a woman employee to walk down the hall so that he could watch her walk from behind. On occasion, he made comments about Plaintiff Lewis' legs and that her dress was a "turn-on." Defendant McDade would often throw coins down the blouses or bras of the female employees. Defendant McDade also shot rubber bands at the breasts and buttocks of the female employees. On several occasions, Defendant McDade lifted [*1337] Plaintiffs Gerstenberger and Smith off the ground. Defendant McDade lifted the suit jacket of Plaintiff Gerstenberger and looked and pointed at her buttocks. When someone would knock on his door while a woman was in his office, on occasion Defendant McDade would state, "You can't come in, she doesn't have her clothes on" or "Don't come in right now, I don't have my pants on." Defendant McDade told Assistant District Attorney Perrin (a female employed from November, 1991 through July, 1992) she would have to wear the office uniform (a bikini) while playing volleyball at the Prosecuting Attorneys Council Meeting. On an occasion when a man was being prosecuted who had obtained a penile implant, Defendant McDade carried the implant around the office proclaiming he was larger than the implant.

Plaintiffs also participated in the sexual games and conduct in the office. On one occasion, the female employees dressed as prostitutes. The female employees gave Defendant McDade a photo album with sexually-charged comments accompanying the photographs. On one occasion, the female employees presented Defendant McDade with an ice sculpture of breasts. Also, a tape recorded montage of sexual comments and innuendos was prepared for Defendant McDade. (The Plaintiffs also gave Defendant McDade a number of cards and notes praising him as a boss. At times, Plaintiffs were unoffended by Defendant McDade's conduct and willingly joined in it. At other times, they found his conduct demeaning. Though at times certain of the Plaintiffs may have mildly intimated displeasure with some of the sexual comments or activities, no Plaintiff lodged any type of formal complaint concerning the same.

Defendant McDade also used language and conduct which, while not sexual in nature, was demeaning and abusive toward females. Again, this conduct is described in detail in Parts Three and Four of the Report and Recommendation, which have been incorporated herein, but a summary follows. Defendant McDade would often yell at the female employees and use abusive language. On one occasion, he loudly cursed Plaintiff Lewis in a courtroom filled with people. On another occasion, Plaintiff Lewis delivered a book for Defendant McDade to Detective Shaddix. Detective Shaddix was not in his office, and Detective Brumbalow took the book from Plaintiff Lewis for Detective Shaddix. When she told Defendant McDade what had occurred, he pounded his fist on the desk and said, "What in the hell did I tell you to do with the goddamn mother fucking book!?" When Plaintiff tried to explain that Detective Brumbalow had taken the book from her and placed it on Detective Shaddix's desk, Defendant stated, "Does Brumbalow sign your goddamn paycheck?" Plaintiff started trembling and was speechless. Defendant finally told her to leave his office.

When females would ask for time off for medical reasons, Defendant routinely stated that the employee was "having her annual nervous breakdown," or "sunbathing on the deck," or "PMS'ing." When a woman employee would make a statement or ask a question in front of visitors, Defendant McDade would often respond "that's not true" or "that didn't happen." When women employees would ask for a second of Defendant McDade's time, he would often say "not unless you've got an empty pocket, I [*1338] gotta pee!"

Defendant McDade required Plaintiff Heath to work on his campaign. Plaintiff Heath asked Defendant McDade if he wanted the other women in the office to help. He replied, "I don't want a bunch of stupid lazy women getting in the way but you be there at 6 p.m." Plaintiff Heath had to get the food, buy beer, cigarettes, etc. for the "men" who helped.

Immediately after Plaintiff Hughes began working in the District Attorney's office, she noticed Defendant McDade was disrespectful and insulting to women. During her first few days, Defendant McDade came into the secretaries' office and demanded loudly that he wanted somebody to "pick up this file" and do the work required. He then dropped the file in the middle of the floor and all three (3) secretaries immediately went to their knees to retrieve the file.

When Defendant McDade wanted to throw out something from his mail basket, he would drop it on the floor beside Plaintiff Hughes' desk. When she would move her trash can under his hand to catch the trash, Defendant McDade would deliberately move over causing the trash to fall on the floor and causing Plaintiff to get on the floor to pick it up.

Defendant McDade constantly pitted the women in the office against one another by telling them lies about the other women. Defendant McDade would have swimming parties at his home and require all of the women employees to come and to wear bathing suits.

Defendant McDade referred to women in the following terms: "that bitch," "blonde," "friggin idiot," "hysterical," "whiney," "squalling," "my baby," "a honey," "fucking bitch," "feather head," "bazumbas," "stupid bitch," "whoa baby!" He used these terms in reference to women lawyers, women in the District Attorney's and Clerk's offices, women victims, and women members of victims' families.

Defendant McDade referred to employee Rita Fitzpatrick as a "bleach blonde," "a hypochondriac," "money grubber," and a "hysterical female." Further, he stated that he thought she had breast implants. Fitzpatrick complained to Plaintiff Smith that she felt Defendant McDade's actions were discriminatory towards women. McDade told Smith that "she [Fitzpatrick] wouldn't last six months--that there was more than one way to skin a cat and he wanted her to resign." He then ignored Fitzpatrick's comments and questions and ordered her to carry big boxes of files upstairs even though she was ill. Ultimately, she resigned.

On two occasions, Defendant McDade hit Plaintiff Carver. On the first occasion, he hit her in the presence of the head of the Council on Battered Women in Atlanta. Defendant McDade said he did it to see what the reaction of the Director of the Council on Battered Women would be. Plaintiff Carver was shocked and did not laugh or think the matter was a joke. The second occasion occurred in the last year of Plaintiff Carver's employment. On that occasion, Defendant McDade simply walked up and hit her. He did not say anything, but the hit left a mark on her. Plaintiff Carver simply responded, "Ouch, that hurt." On another occasion, Defendant McDade grabbed Plaintiff Carver and told her that she did not know how close he had come to hitting her.

Plaintiff Gerstenberger asserts that, as a female, she was discriminated against in comparison to the males based upon her [*1339] greater case load, lesser salary, failure to obtain promotion to a state-paid position and less favorable benefits and vacation time. In 1990, Defendant McDade stated to Plaintiff Hughes that Plaintiff Gerstenberger was an idiot, and he was looking for a way to fire her. He asked Plaintiff Hughes to watch her and report anything to him for which he could fire her. Defendant McDade also remarked that if he fired her she would sue him for sexual harassment, that she had once "sicked her husband" on him about some joke in a lawyer's meeting. Defendant McDade refused to act on leave requests by Plaintiff Gerstenberger and directed Plaintiff Hughes that she was to put down no overtime on Gerstenberger's time sheets no matter how long she worked. Defendant McDade told Plaintiff Smith, as office manager, that he "had decided to not hire any more women assistant district attorneys because they don't have what it takes." He instructed her that if any resumes came in from women, Smith was to interview the woman and then send her a regret letter.
Assistant District Attorney Janet Perrin stated that Defendant McDade often denigrated women by stating "if you're a woman, you just don't have the 'kahonees' or … the 'stones' to be a prosecuting attorney." He also stated that Perrin and Gerstenberger, in particular, did not have the "balls" to prosecute criminals.

When Plaintiff Heath had to have surgery, she advised Defendant McDade she would require an extended period of leave. From the time she made this request, Defendant McDade refused to speak to her. Prior to Defendant McDade terminating Plaintiff Heath, he told Plaintiff Smith that he was going to fire Heath, and if Smith told Heath, Smith would be fired. When Plaintiff Heath was having physical problems because Defendant McDade had assigned her to work the phone, Plaintiff Heath sent Defendant McDade a memo requesting to speak with him. Instead, Beau McClain, the Chief Assistant District Attorney, met with her and informed her that her memo had made Defendant McDade furious, and she was lucky that Defendant McDade had not hit her.

In December, 1993, Plaintiff Carver submitted a letter of resignation to Defendant McDade. Defendant McDade asked what he had to do to get her to stay. Plaintiff Carver told him that he would have to get counseling for the way he treated women in the office.

Cathy Tatay, an employee in the District Attorney's office, complained about sexual harassment by Beau McClain. Defendant McDade stated that "Cathy Tatay's neurotic. She's got all kinds of mental problems, and I don't believe this about Beau." When McClain was on vacation, McDade reassigned Tatay to work for another attorney. When McClain returned and found that Tatay had been reassigned, he was upset. Defendant McDade then stated that the transfer was a stupid thing to do. He stated, "I don't know why I reassigned her. I should have left her right where she was. Beau doesn't have a right to be treated that way, he's Chief Assistant D.A., if he wants her as his secretary, by God, that's who he ought to have, and if she doesn't like it then she can just get out." Defendant McDade told Plaintiff Smith that he was going to force Tatay to resign because she complained about McClain. Defendant McDade moved Tatay from the secretarial area into the hallway outside McClain's office directly in McClain's line of vision and from where she could be easily overheard in McClain's [*1340] office. Tatay resigned.

Defendant McDade stated that any complaints about office matters which were made outside the office would be grounds for immediate termination. Plaintiff Hughes complained to the court administrator and a superior court judge about Defendant McDade but was told that she had no recourse but to resign.

Defendant McDade intimidated Plaintiffs by stating that as for anyone who embarrassed him with a lawsuit, he would "own all their houses and they will send all [his] children to college."

One day when several women in the office were discussing dreams, Defendant McDade stopped and listened. He stated that he had two recurring dreams. In one of those, he killed a woman by cutting her head off. When he would awake, he was never sure if it was real or a dream.

Douglas County issued sexual harassment policies which Defendant Smith distributed to all employees of the District Attorney's office. The policies provided that an employee who felt that he or she was a victim of sexual harassment should bring the matter to the immediate attention of his or her supervisor, the personnel director, or the county manager. No plaintiff ever filed a formal complaint pursuant to those policies. However, Plaintiff Smith reported Tatay's complaints to Gloria Turner, the Douglas County Personnel Director. She also told Turner there was a lot of employee dissension in the District Attorney's office, that the female employees were very upset about their treatment; that several women had left; and that Smith feared that others were going to leave because of what was going on in the office. Turner acknowledged that she had attended seminars on sexual harassment and the conduct appeared to be sexual and gender-based harassment. However, no action was taken.

Lewis v. McDade, 54 F. Supp. 2d 1332, 1336-1340 (D. Ga. 1999) (citations to dpeosition testimony and discovery documents omitted).

Hat Tips to AboveTheLaw.com and the Sentencing Law and Policy Blog.

*Genarlow Wilson is the Georgia boy who was sentenced to 10 years in prison for having consensual oral sex with a 15-year-old girl when he was 17 years old. The Georgia statute under which he was convicted has since been amended to make the same offense a misdemeanor, but the change was not made retroactive to Wilson's case. Under Georgia law at the time he would have not committed a crime if he had engaged in vaginal sex with her, rather than oral sex. The prosecutor is widely distributing videotapes of the sex act and appears to have improperly intimidated Wilson's mother as well.

An Open Letter To Mayor Hickenlooper

Denver's best efforts to deal with abusive law enforcement personnel are disappointing, as illustrated by the recent case of Denver Officer Randall Krouse.

Offense: Applies a Taser to the neck of Kenneth Rodriguez of Tucson, Arizona after making a racially charged remark. "Understando Taser?" Krouse is heard saying to Rodriguez, who was uncooperative but not assaulting the officers in anyway.

Result: Suspended for 60 days.

When a primarily culpable, racist, violent bad cop who also lies in a criminal case producing a false conviction gets only a 60 day suspension, the police discipline system is deeply broken. This isn’t even plausibly a case of mere negligence.

With rogue officers like Randall Krouse on the force, and soon to be back on the streets, I don't feel safe.

It is bad enough to sometimes have to fear criminals. At least the system is out to get them. No kid with spray paint is ever going to shock me with a Taser and know that he can get away with it. But, it is far worse to have the system protect criminals in uniform.

Randall Krouse belongs in prison, not back on the streets of Denver as a cop in a couple of months. Have any criminal charges been brought against him? He is a menace to our city and he undermines the faith the ordinary citizens like me can have in the police force generally. How can I trust a police force that allows men like Randall Krouse to remain a part of it? How can I as a juror trust police officers who testify at trial if officers whose lies produce false convictions are kept on the force? You can’t have liars in a job that routinely requires court testimony. This punishment is the equivalent of giving an embezzler 60 days off work and then returning him or her to handling the petty cash fund.

It is also a matter of city finances. Civil rights laws allow municipalities to protect themselves from liability by throwing guys like Randall Krouse under a bus and making it absolutely clear that this kind of behavior isn’t tolerated. But, allowing a guy like him to get off with a slap on the wrist in the face of clear evidence virtually amounts to a policy of condoning his behavior as not great, but tolerable in small amounts.

Mayor Hickenlooper, what do you have to say about this travesty? Are you doing anything to crack down harder on bad cops in the Denver Police force? This kind of kid gloves treatment of bad cops caught red handed on videotape, who then lie about it, is not acceptable. If your hands are tied by comparable discipline rules and union agreements, you need to roll up your sleeves as you have with other problems in this city, and overcome those barriers.

Don't Get Accidentally Boffed By The Army

The Army does pay compensation for accidental killings of innocent people. But, not much. The going rate is $500 for dead boys, a usual cap of $2,500 for a wrongful killing, and $7,500 in truly egregious cases.

Is it any wonder that the Army creates new insurgents every day?

Murder By Inmate

John Derek Chamberlain was murdered. Jail guards were the perpetrators. Prison inmates were the weapons. The jail guards are likely to walk away with impunity from the incident. Some of the inmates will go to prison for short prison terms (for murder) if they don't all hang together and refuse to implicate each other.

American Public Law

For all the sturm und drang over tort reform, you'd think American tort law was deeply flawed. But, you would be wrong. American private law isn't perfect, but honestly, most of the rules of tort law are common sense moral intuition. The vast majority of the time, even if the rules were different, juries would bend and twist them to look more like they do now.

The elements of fraud, for example, procedurally, come from quotations of countless appellate court decisions. But, in practice, those legal elements simply define something that our broader culture finds morally culpable. The common law was developed by common sense English and American judges for a millenium, and the rules work.

American public law, in contrast, is not healthy. We are trying to bootstap a legal system rooted in a minimalist English monarchy into a functional way of managing a sprawling governmental empire that accounts for a substantial fraction of the country's entire economic output.

Some of the major reforms of American history that were designed to stop corruption, like the civil service system and extensive regulation of government contractors, have so hobbled the functioning of some kinds of governmental activities that the temptation to simply scuttle them by privatizing government functions is immense.

We have done a poor job of striking a balance between allowing government actors to act wrongfully with impunity, and opening the floodgates of liability to anyone who tries to do their job in public service.

Key doctrines in American public law, like "standing" reflect this connundrum. Standing is generally obvious when individuals are involved, but is often a puzzling doctrine in public law cases with no clear application. Conservatives on the Supreme Court and elsewhere want to set the standing bar so high that no one has a right to sue even when government agencies or actors openly flout the rule of law. For example, the U.S. Supreme Court yesterday in a 5-4 decision, held that the Environmental Protection Agency is required by law to regulate pollutants that can lead to global warming. Dissenters didn't seriously argue that the law didn't require the EPA to do this, but instead, argued that no one has an injury particularized enough to bring suit to force the EPA to do what it is required by law to do.

Liberals, driven by the contours of precedent that leave them no other options for holding government accountable, have been forced to push for rules that hold individuals personally culpable even when they aren't truly the culpable individuals.

Some of this is just a legal fiction. For example, the defendant in a suit alleging someone has been wrongfully convicted or sentenced for a crime at trial and on direct appeal, called a habeas corpus suit, is formally brought against the prison warden, who, of course, is simply following court orders 98% of the time. No one would expect a prison warden to actually release a prisoner being held pursuant to a criminal court conviction upheld on appeal because the warden didn't believe that the judges got the law right. Searching legal analysis of the validity of convictions isn't in a prison warden's job description.

In practice, while the warden is sued all the time and serves as the named defendant, he turns the lawsuit over to the relevant attorney general, sits back unworried about any personal consequences, and does whatever the court orders when a judgment is rendered. Outside of rare cases like the Jose Padilla case, where the government plays games by shifting the detained person from one place to another all over the country, the actual warden of the prisoner is utterly irrelevant.

Indeed, many states have virtually abolished habeas corpus, per se, as a means for collateral attack on convictions, instead substituting a criminal procedure rule which is substantively the same, but lacks the procedural and historical quirks of the great writ. In Colorado, for example, the pomp and circumstance of the writ of habeas corpus has been largely replaced by Colorado Rule of Criminal Procedure 35, which governs post-convinction remedies. This rule, among other things, makes a request for post-conviction relief a part of the continuing original criminal case, rather than a separate civil action.

In the same vein, a recent lawsuit seeking to adjudicate the federal constitutional sufficiency of Amendment 41 in Colorado (full disclosure, Anne McGihon, with whom I practice law, is a plaintiff in the suit), named Governer Bill Ritter as a defendant. The Denver Post reports today that the attorney general has filed, on his behalf, a defense alleging that he can't be sued because he isn't charged with enforcing that law, an ethics board that doesn't yet exist has that job.

I'm not enough of a guru on the technicalities of this kind of litigation to judge the merits of that defense, but I can say with confidence that it should be simply a formality. The Governor in public law litigation is generally a symbolic defendant. Nobody is going to dock his paycheck if he loses the case, or charge him personally for attorneys' fees in the case.

The plethora of plaintiffs in the Amendment 41 case, and the choice of defendants, both reflect a tradition ridden, standing hobbled tradition of public law litigation. We lack an alternative to do cleanly what ought to be a straightforward task -- a way to quickly obtain a binding court interpretation of what legislation means and whether it is constitutionally valid. Most Western governments have constitutions that expressly give a number of people the power to bring this kind of case, often in a special constitutional court or other public law tribunal. Americans, in contrast, are fuzzy about whether anyone other than line executives in the government, has a right to compel the government to follow the law outside isolated cases.

At other times, the focus on individuals is quite a bit more than a legal fiction. When an agency doesn't do its job, often a remedy is to hold the agency's top executive in contempt of court, potentially exposing that individual to personal fines and imprisonment. Secretary Norton, who faced contempt proceedings in connection with the U.S. Department of Interior's handling of Indian Trust accounts discovered this first hand, as did the Colorado official in charge of the state's mental hospital for the criminally insane, which stopped accepting court orders to take on new patients.

In civil rights suits, the "normal" course is to seek money damages from the particular individuals who committed the wrong doing. But, should the cost of insuring against abusive cops really be finances out of the personal assets of these government employees? Wouldn't it make more sense to hold government's accountable for bad cops, and thereby give them an incentive to maintain discipline in the force as a whole? The requirement that individual participants in the acts be defendants in civil suits is one factor that makes the law surrounding these incidents so convoluted.

As I've noted in previous posts, governmental immunity, likewise, often leads to absurd and unjust results. Our treatment of whistle blowers is also problematic.

While it is a major project, ultimately, I think that this apple is rotten to the core. We need to fundamentally rethink the principles of American public law, because while solving its problems piecemeal can solve some problems, a flawed structure for the entire system invites unforeseeable consequences of a bandaid fix to crop up somewhere else.

Torture Is Bad

The Bush Administation is still wrong on torture, even in its latest version. It is wrong, and it is wrong to immunize the administration from civil lawsuits to prevent it or remedy it. The Washington Post explains why as well as I would.

Judicial Cowardice

A U.S. District Court has denied a remedy to a man whose rights were violated by the CIA not because his rights weren't violated, but because the CIA did it.

A federal judge yesterday threw out the case of a German citizen who says he was wrongfully imprisoned by the CIA, ruling that Khaled al-Masri's lawsuit poses a "grave risk" of damage to national security by exposing government secrets.

U.S. District Judge T.S. Ellis III in Alexandria acknowledged that Masri "has suffered injuries" if his allegations are true and that he "deserves a remedy." Sources have said Masri was held by the CIA for five months in Afghanistan because of mistaken identity. Masri says he was beaten, sodomized and repeatedly questioned about alleged terrorist ties.

But Ellis said the remedy cannot be found in the courts. Masri's "private interests must give way to the national interest in preserving state secrets,'' the judge wrote in dismissing the lawsuit filed last year against former CIA director George J. Tenet and 10 unnamed CIA officials.

In all likelihood, the allegations are true.

German investigators have confirmed most of Masri's allegations . . . . In December, a senior Bush administration official traveling with Secretary of State Condoleezza Rice said U.S. officials had told the Germans that Masri was released because the intelligence was insufficient to justify his detention.

I don't recall any anti-snitching exceptions in the Bill of Rights. Indeed, the Court's didn't acknowledge any such government immunity until the 1950s.

Created in the 1950s, [the State Secrets Privilege] allows the government to urge courts to dismiss cases on the grounds of damage to foreign policy or national security. . . . Last year, for example, the government won dismissal of a lawsuit by a Canadian citizen who claimed that he was taken to Syria by U.S. officials for detention and was tortured.

If our judicial system won't remedy cases of torture committed by our own government, our system of government is a criminal enterprise.

UPDATE:

From Slate:

[W]hile the government asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it's asserted it 23 times in the four years after Sept. 11. . . .

Traditionally, this privilege was most often used to prevent plaintiffs from getting a hold of very specific, sensitive evidence in an ongoing lawsuit; it was seldom invoked to dismiss entire cases. . . .

[I]n el-Masri and other similar lawsuits—almost all of which involve important challenges to the government's conduct since Sept. 11—the administration has been routinely asserting the privilege to dismiss the suits in their entirety. . . . the administration is now well on its way to transforming it from a narrow evidentiary privilege into something that looks like a doctrine of broad government immunity. . . . courts have examined the documents' underlying claims of state secrecy fewer than one-third of the times it has been invoked. And . . . courts have only actually rejected the assertion of the privilege four times since 1953.

It is one thing to say that a case must be brought under seal and with proceedings closed when national security is at stake. It is another to use state secrets doctrines to deny a plaintiff a remedy entirely. The reality is that the government can not be trusted to invoke it responsibly.

Indeed, United States v. Reynolds, the Supreme Court decision first recognizing the legitimacy of a state secrets privilege, is also apparently an object lesson in how the privilege can be misused. Decided in 1953 at the height of the Cold War, Reynolds was brought by the widows of three civilians who died when the Air Force plane they were on crashed. The widows sued the Air Force for negligently maintaining the aircraft and tried to obtain accident reports from the government to further their suit. Unfortunately for the widows, in addition to their husbands, the plane was also carrying secret electronic equipment. Citing the presence of this top-secret equipment, the government refused to turn over the documents, claiming that doing so would jeopardize national security. The Supreme Court upheld the government's refusal, and the state secrets privilege was born.

As it turns out, the documents didn't really back up the Air Force's claims. In 2000, the children of the original plaintiffs got hold of the reports their mothers had sought when the documents became declassified. Nothing in these documents appeared to bear at all on national security. They were, however, filled with evidence of negligence, all of which was nicely summarized by the Air Force's straightforward conclusion that "the aircraft is not considered to have been safe for flight."

Democrats need to craft a better solution to the state secrets problem than the Courts have when they take power.

The example used in the Slate story was of a janitor who slipped and fell over uranium at the Manhatten Project and was denied discovery of the contents of what he fell over, or perhaps even had his case dismissed. Does it really make sense to leave a legitimately aggrieved person, who very likely was privy to all sorts of confidential information unrelated to his case, out there with every reason to blab what he knows? If you are going to keep secrets, you have to be prepared to treat people who encounter them fairly, or you won't have secrets very long.