... and Justice for All

Tased to Death and Closed Are the Federal Courthouse Doors; The Sixth Circuit Turns Away Another Family

In law school I was taught that the function of a jury was to decide what happened in a particular instance. And once they decided what had happened they might also decide whether a party acted reasonably in the circumstances presented. There was a name for it: fact-finding and trial by jury. 

Somebody, an anonymous tipster, called the Covington police and reported that Leroy Hughes, a large African-American man, was acting suspiciously or weirdly (or something).  One would think Hughes was not to be missed, since he weighed over 400 lbs. Nevertheless, when police drove by the location where the tipster had reported Hughes to be, they didn't notice him. So the tipster called back again. The Covington police again went out looking for Hughes but found him this time. And when they got there, they immediately pulled their guns and aimed them at Hughes. 

Hughes didn't get shot by the Covington police. He never pulled any gun, although he had one with him. At least as far as the Sixth Circuit's opinion reports, Hughes never threatened the police, although the opinion does report that he did act strangely at times. Eventually, after deciding that they didn't need to worry about Hughes shooting them, the Covington police tased Hughes 12 times in just a few minutes. This caused cardiac arrest and Hughes died; he was tased to death.

The suit by Hughes' estate went nowhere; the district court granted the City of Covington and the police officers a summary judgment as to all claims. The Sixth Circuit affirmed in an opinion by Senior District Judge Frederick Stamp from the Northern District of West Virginia joined by Circuit Judge Danny Boggs that is an exercise in fiction. It claims that Hughes was "known" to be armed near a school; in fact, police did not know whether he was armed or not, although some unknown tipster had said he was. In any event, what does that really say, since the opinion does not bother to say or assert that Hughes possessed unlawfully any weapon. So the court's majority would claim that deadly force was supported in part by completely lawful acts by a United States citizen. 

The majority opinion asserts that Hughes consistently acted "as if" he were reaching for his waistband, where the weapon was located it was determined.  Well, did Hughes reach for his waistband or did he not? Juries are supposed to resolve questions about who did or did not do something. 

The majority opinion asserts that Hughes attempted to flee the area. In the rest of the world, fleeing means running away. But not in the Sixth Circuit: the majority reports that Hughes did not run (or try to run) away from the police but that he moved toward them. One wonders how a reasonable jury could possibly find that someone attempted to flea police by running toward them? As Judge Gilman once wrote, "there is no way."

Circuit Judge Bernice Donald dissented, focusing from the beginning as follows:

Let us recall, for a moment, that a man is dead.

But it is no matter in the Sixth Circuit. And so it goes.

The case is Sheffey v City of Covington, No 12-5109 (April 28, 2014). 

Robert L. Abell
www.RobertAbellLaw.com 

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Tased or not to be Tased

As a Matter of Justice Is "What's Finished" Better Than "What's Right"?

The eternal question of whether the criminal justice system must favor what's finished -- finality -- over what's right -- curing manifest injustice is central to a recent decision by the Fourth Circuit, Whiteside v. United States, 13-7152 (April 8, 2014),one that provoked the following short concurring opinion by Senior Circuit Judge Andre M. Davis:

The dissenting opinion is hopelessly pleased with itself. This is not surprising, as it prostrates itself at the altar of  finality, draped in the sacred shroud of judicial restraint.  There is much that could be said about the dissenting opinion’s paean to finality, but one can hardly say it more poignantly or more persuasively than has Judge Rovner. See Hawkins v. United States, 724 F.3d 915, 919-25 (7th Cir. 2013) (Rovner, J., dissenting from the denial of rehearing), en banc reh’g denied, 725 F.3d 680 (7th Cir. 2013) (Rovner, J., joined by Wood, Williams, and Hamilton, JJ., dissenting from denial of rehearing en banc).

In any event, what’s remarkable is that, as viewed through the lens of our good friend’s dissenting opinion, it is perfectly fine for the United States Department of Justice, which is to say the Executive Branch, to bypass supposed reverence for finality on a case-by-case basis, through waivers of limitations and other devices, see ante, Maj. op., n.6, but the Third Branch is duty-bound never to acknowledge instances in which law’s interest in finality must give way to competing values rooted in our shared abhorrence of manifest injustice. To devolve to the Executive Branch sole authority to identify a cognizable miscarriage of justice amounts to judicial abdication, not judicial restraint. Such an approach enjoys no legitimate place in our scheme of institutional checks and balances. The Third Branch’s transcendent role, in our enviable but imperfect system of criminal justice, is to afford protection from the loss of individual liberty resulting from profoundly erroneous decision-making, and not least of all, erroneous decision-making by the Third Branch itself, as in this very case. 

The dissenting opinion favors what’s “finished” over what’s “right” and thereby blinks at a profound miscarriage of justice. It is wrong to do so.

The federal courts and Congress have increasingly lionized efficiency and finality over the course of the last 25 years plus, which covers my career so far. Is it better that a case be done and over even if we all know its wrong? Is faith and public confidence in our courts enhanced or reduced where their emphasis is to get a case over more than to get it right? Does an emphasis on getting a case over favor corporations and government over individuals? 

These fundamental questions get a full and spirited discussion in this case. The majority opinion was written by Circuit Judge Roger Gregory and the dissenting opinion by Circuit Judge Harvie Wilkinson, both of whom are distinguished judges but with differing opinions as to how these questions should get resolved.

Professor Doug Berman discusses the Whiteside decision and its remarkable opinions on his blog, Sentencing Law and Policy, Fourth Circuit Deepens (Via Dramatic Split Opinion) Circuit Split Over Fixing Sentencing Problems Via 2255 Motions. 

 

Robert L. Abell
www.RobertAbellLaw.com

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