Toppling Rights

There is no area in which the individual predilection of judges more consistently subverts the rule of law, common sense and basic moral decency than civil rights. In the 19th century, biased interpretation by courts of the 14th Amendment and post-civil war federal civil rights legislation sank the lofty notions of equality, privileges and immunities and Due Process into Jim Crow laws, despair and nothingness. It has been the same with all civil rights innovations since.
        Elitist judges - quick to take factual issues from juries, protect property from judgment, defend public and private institutions, protect state's rights, create immunities for officials and limit federal jurisdiction - are slow to acknowledge evidence of discrimination, injury, indignity and abuse of individuals' rights to life and liberty.
        This month, for example, the 8th U.S. Circuit Court of Appeals unjustly overturned a sizable jury verdict that was returned in favor of a female victim of employment discrimination. In Duncan v. General Motors, the jury received evidence that, after a female employee rebuffed advances by her married supervisor, his criticism of her work swelled. He allegedly suggestively touched her hand when passing her the telephone.
        When Duncan, the female employee, requested a promotion to an illustrator position, the supervisor allegedly told her that, instead of proving her artistic ability by drawing automotive parts as required of earlier applicants, she must draw an object he displayed in his office: an obscene planter, shaped like a slouched man wearing a sombrero, with a cactus protruding from a hole in his pants. Ultimately, this supervisor allegedly ordered her to prepare a manifesto of the "He-Man Women Hater's Club," which included assertions that women's right to vote should be repealed, that women are the source of 99.9 percent of stress in men, that sperm have a right to live and that prostitution should be legalized. She had enough.
        Remarkably, the reviewing court agreed with General Motors that there was insufficient evidence of a hostile work environment and constructive termination.
        "The supervisor's actions were boorish, chauvinistic, and decidedly immature, but," the court added, "we cannot say they created an objectively hostile work environment permeated with sexual harassment."
        The court's sole, express support for its holding was an analogy to three other cases where evidence of discrimination also was not enough to constitute a hostile work environment. In the first case, the court held that it was not enough that there were unwanted sexual jokes aimed at the victim, comments about low-necked tops, leers at her breasts, touches of her arms and buttocks and instructions to not wave at police officers because people would think she was a prostitute.
        In the second, it was not enough that the supervisor suggestively reached over to the victim, told her, "nothing I like more in the morning than sticky buns," suggested to her that a parcel of land be named "Hootersville" and asked her - while discussing property near a biker bar - "Weren't you there Saturday night dancing on the tables?"
        In the third case, it was not enough that a supervisor unsuccessfully requested dates, put his hands on the victim's shoulders, placed "I love you" signs at her work station and called her a "dumb blond."
        Thus, the court reasoned, it was unreasonable for the jury to conclude that Duncan's evidence was enough.
        Although the Duncan court uses the rhetoric of analogy and seems to carefully consider the evidence, everywhere one searches for principled legal reason, one finds, instead, non sequitur and the shadow of free-floating contempt for women, Title VII and resolution of facts by jury. In allowing an accretion of incidents of bad behavior to be defined as mere "boorish" conduct, the court subtly immunizes the building blocks of, and thereby encourages, hostile work environments.
        The same month, a 9th U.S. Circuit Court of Appeals panel unjustly ruled in Estate of Jeffrey Ford v. Ramirez-Palmer against the survivors of an inmate viciously murdered by a sociopath whom prison officials indifferently double-celled with the victim. Prison officials knew that James Diesso was an extremely violent predator with a history of four violent altercations in three years when they placed him in administrative segregation for stabbing an inmate 17 times. The victim was described as an effeminate homosexual whom Diesso feared would expose him as a homosexual. Notwithstanding prison officials' protestations that Diesso was on "meds," the result, when they double-celled him with Ford, was painfully predictable.
        Ford suffered blunt force trauma to the head, abrasions and lacerations to the face, legs and back, and ligature strangulation. The cell walls were covered with bloody handprints and smears. Written in the victim's blood were the words, "die demon."
        The Eighth Amendment prohibits cruel and inhuman punishment. This includes a duty by prison officials to take reasonable steps to protect inmates from foreseeable inmate violence. Regrettably, the U.S. Supreme Court has made proving actionable Eighth Amendment violations unnecessarily difficult, holding in Farmer v. Brennan, 511 U.S. 825 (1994), that victims must establish that subjective and objective "deliberate indifference" caused constitutional injury. Even with this high standard, the 9th Circuit, nevertheless, impliedly found trial-worthy issues regarding whether prison officials should have double-celled Ford with the reliably violent Diesso.
        Yet the court ordered the dismissal of the case under the qualified immunity doctrine.
        There was no mention of qualified immunity when Congress passed legislation in 1871 establishing civil remedies for violation of federal rights by officials acting "under color of law." That judicial creation came much later because for nearly seven decades the issue was mooted by federal courts' restrictive interpretations of the Civil Rights Act of 1871, limitations that choked the flow of reported actionable cases to less then 20 over 70 years. It was not until 1960 that the act was rescued by reinterpretation after a fairer look at its underlying legislative history. Thereafter, however, the Supreme Court, acting more out of an extralegislative desire to protect government officials and the taxpayer than any slavish devotion to legislative intent, began to create immunity doctrines limiting actionable civil rights.
        The surface logic of qualified immunity is that it is unfair to hold government officials liable if they could not reasonably know beforehand that their actions violated the law. By 2001, in Saucier v. Katz, 533 U.S. 194 (2001), the doctrine metastasized to the point that, even if, for example, an excessive force victim could show that an officer's use of force was objectively unreasonable, courts must take an additional step before finding a Fourth Amendment violation. The court must decide whether prior case law had made it sufficiently clear that the force used would be found to be unreasonable.
        Common sense would suggest that if an officer's use of force was objectively unreasonable and the law prohibits objectively unreasonable use of force, that finding should end rather than begin the analysis. Instead, the Supreme Court's gymnastic reasoning gives law enforcement a second bite at the apple. Under the new doctrine, unreasonable force is immunized whenever the factual context is sufficiently innovative, with federal courts left to develop their own doctrines of what is sufficient.
        In Ford, the 9th Circuit, driven by Saucier, extended this illogical immunity doctrine to Eighth Amendment analysis. The panel determined that prison officials, although both objectively and subjectively aware that they placed an inmate in mortal danger, are, nonetheless, immunized because previous case law had not made it clear that a court would find their acts were unlawful. According to the panel, previous case law "has not fleshed out 'at what point a risk of inmate assault becomes sufficiently substantial for Eighth Amendment purposes,'" quoting Farmer.
        It is incredible that, 203 years after the Eighth Amendment and 131 years after enactment of a civil remedy for violation of federal rights, courts claim an analytic need for still more cases to flesh out jurisprudence establishing that an inmate who has been killed by a known sociopath in a deliberately locked cell is a victim of actionable cruel and inhuman punishment. The Ford court's doctrinal inability to hold any prison official accountable for a cell assignment this foolish and depraved is grotesque. Where federal courts stand in 2002 bears no resemblance to the clear intent and purpose of the 42nd Congress that, in passing the Civil Rights Act of 1871, sought to create a simple civil remedy to vindicate and deter violations of federally guaranteed rights.
        Duncan and Ford are but two drops of the incremental evaporation of federal civil rights law filling the air. Justice will be restored only when actionable civil rights are re-established and juries, not judges, decide issues of fact.