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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 14              Covering Cases Published in the Advance Sheets through April 2, 2001

Highlights of this Issue:

Supreme Court Decisions:

A First Look at the Civil Asset Reform Act:

U.S.S. Guideline and Sentencing Issues:

Dont forget to visit the Apprendi  Watch section of our Web site each week - the most current and comprehensive site on the entire Internet for all the latest developments involving that watershed decision. That section contains summaries of more than 190 Apprendi decisions, links to numerous Apprendi articles and more than 100 Apprendi briefs and motions, and a listing of the 48 cases that the Supreme Court has vacated to date based on Apprendi.

Atwater v. Lago Vista, No. 99-1408 (U.S. Sup. Ct. 4/24/2001) (Justice Souter)

This is an astonishing case in a number of ways. Certainly it is an example of how the courts will sometimes go out of their way to "sanitize" the facts of a particular case in an effort to make their ruling more palatable. Thus, writing for a narrow 5-4 majority in the instant case, Justice Souter attempted to describe the issue in this case as "whether the Fourth Amendment forbids a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine."

In fact, that bland description is far off the mark; although, cast in that light, it does tends to soften the blow of the Courts ruling. That is precisely why Circuit Judge Wiener castigated his brethren on the Fifth Circuit for "sanitizing" the facts of this case, when he wrote his blistering dissent in the predecessor to this decision, Atwater v. City of Lago Vista, 195 F.3d 242, 248 (5th Cir. 1999) (En banc) (Atwater I).

We have set forth in some detail Judge Wieners version of the facts principally because his version (which was accepted without challenge by all the judges in Atwater I) shows that the arrest at issue in this case was motivated by patently vindictive motives. Somehow, the policemans motives in making his arrest were ignored by all the Supreme Court Justices in the instant decision. Yet, when viewed in light of those motives, the Supreme Courts decision becomes all the more disturbing. So, to understand the full impact of this ruling, this is Judge Wieners unchallenged recitation of what really happened:

"The instant facts reveal that this case is not truly about a traffic stop followed by an arrest; it is about a police officer going to extreme lengths to satisfy a personal crusade or possibly even a vendetta. The evidence would allow a jury reasonably to infer that Officer [Bart] Turek had been eagerly awaiting the opportunity to threaten, frighten, and humiliate Gail Atwater: Approximately two months prior to the incident in question, Officer Turek had pulled Atwater over for a putative seatbelt violation; however, much to his dismay, he had been forced to let her drive off without his issuing her a citation when he discovered that she and the other occupants of her car had their seatbelts securely fastened.

"Officer Turek's frustration over this prior incident was made readily apparent from the very beginning of the traffic stop and arrest that are now under review. When Atwater was pulled over this time, she was driving her two children, ages six and four, home from soccer practice. She was traveling in a residential neighborhood, on bone-dry streets, in broad daylight, and at a reasonable, lawful rate of speed. When Officer Turek observed that neither Atwater nor her children were wearing seatbelts, he proceeded to pull her car over. According to the testimony, Officer Turek approached Atwater's car and yelled at her in a belligerent and threatening manner, pointing his finger menacingly in Atwater's face and terrifying her and her young children. Officer Turek screamed that they had had this conversation before and that this time she (Atwater) was going to jail.

"Officer Turek then ordered Atwater to produce her driver's license and proof of insurance. Atwater informed him that both documents had been in her purse when it was stolen two days earlier. She did, though, provided him with her license number and address from her checkbook. Despite the fact that Officer Turek had seen Atwater's driver's license and proof of insurance when he had pulled her over only weeks earlier, he proceeded to make good on his promise to take her to jail. First, he had her step out of her car; next, he handcuffed her behind her back; then he loaded her into the back of his squad car and took her to the police station; and there she was forced to remove her shoes and glasses, empty her pockets, and allow her mug shot to be taken. Finally, Atwater was placed in a jail cell and made to wait for approximately one hour before being produced before a magistrate." (Atwater I, id.)

Mrs. Atwater ultimately filed a civil rights action against Officer Turek and the City of Lago Vista charging violations of various rights, including a charge that the defendants had violated her Fourth Amendment right "to be free from unreasonable seizure," and she sought both compensatory and punitive damages. The defendants moved for summary judgment based in part on qualified immunity, and the district court (Judge Sparks) granted that motion and dismissed the lawsuit, finding that the individual defendants had not acted in an objectively unreasonable manner. A panel from the Fifth Circuit reversed and reinstated the lawsuit, in a decision reported at 165 F.3d 380 (5th Cir. 1999). Then, a divided en banc court reversed in Atwater I; and the case went to the Supreme Court.

A majority of the Court held that the Fourth Amendment does not forbid a warrantless arrest for minor criminal offenses; and it concluded that Atwaters arrest in this case "satisfied constitutional requirements." After all, Officer Turek "had probable cause to believe that Atwater had committed a crime in his presence." The majority did concede that Atwater had been subjected to "gratuitous humiliations" and a "pointless indignity," but what happened to her was not so extraordinary as to violate the Fourth Amendment.

While much of the majoritys opinion dealt with an historical analysis of misdemeanors and arrests, the rationale of the opinion seemed to be that to "mint a new rule of constitutional law" might turn many ordinary arrests into occasions for constitutional litigation. "A responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review."

The tone of the dissent was set in the opening paragraph of Justice OConnors decision. In an opinion joined by Justices Stevens, Ginsburg and Breyer, she wrote: "The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. The Court recognizes that the arrest of Gail Atwater was a pointless indignity that served no discernible state interest, . . .and yet holds that her arrest was constitutionally permissible. Because the Courts position is inconsistent with the explicit guarantee of the Fourth Amendment, I dissent."

She forcefully argued that Officer Tureks loud and accusatory conduct was abusive from the start, "severely infringed Atwaters liberty and privacy," and was "constitutionally unreasonable." She also argued that the majoritys interpretation of law in this case is "not only unsupported by our precedent" and conflicts with "the values of liberty and privacy at the heart of" the Fourth Amendments protections. And she warned that giving the police "such unbounded discretion . . . carries with it grave potential for abuse."

She concluded by stating: "The Court neglects the Fourth Amendments express commands in the name of administrative ease. In so doing it cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness." The potential impact of this decision is scary: a hot-tempered cop can now stick you in jail no matter how vindictive his motive may be - and in the big cities that means a god chance of an overnight stay - since there is no way you will get to a magistrate in an hour, as Mrs. Atwater did. And President Bush hasnt even begun to remake the Court into a more conservative body!

United States v. Francis, 129 F.Supp.2d 612 (S.D.N.Y. 2001) (Judge Patterson)

This is a fascinating decision in a number of respects. It is noted principally for Judge Pattersons detailed explanation of why he granted a one-level downward departure to a defendant who was forced to endure substandard conditions during pre-trial detention while incarcerated at a county jail. But the case is also noted for its graphic description of the appalling conditions at the Hudson County Correctional Center in New Jersey (HCCC); as well as for Judge Pattersons blunt rejection of the Governments angry objections to the defendants use of "unverifiable hearsay" evidence at his sentencing hearing to support his claims of substandard living conditions at HCCC. To those objections, Judge Patterson simply responded: "The Government regularly relies on hearsay evidence in sentencing proceedings, and no reason exists that the defense cannot also do so."

The defendant in this case was arrested in June, 1998, charged with illegal reentry in violation of 8 U.S.C. 1326, and sent to HCCC. On October 26, 1998, he pled guilty to the charge without a plea agreement; and at that hearing defense counsel complained to the Court about the conditions at HCCC. He complained, inter alia, that Federal inmates received "differential treatment" by the guards and other inmates; and he charged that the defendant had been the victim of an attempted slashing. That same day, Judge Patterson issued an order directing that the defendant be housed at a Federal institution and not at HCCC.

Neither the U.S. Marshals Office nor the Bureau of Prisons obeyed Judge Pattersons order until July 29, 1999, when Judge Patterson finally ordered a hearing on the conditions of confinement at HCCC. As soon as the hearing was ordered, the Marshals moved the defendant. Throughout the 13- month period that the defendant spent at HCCC, both he and his counsel repeatedly advised the Court that its order was being ignored; and they recounted numerous examples of the substandard conditions at HCCC, in addition to the safety threats previously raised.

Ultimately, the defendant moved for a downward departure at his sentencing based on the conditions at HCCC. Judge Patterson acknowledged that the Second Circuit has not yet ruled on whether a departure based on such grounds is permissible or not; and that a review of numerous cases he cited from the other Circuits and district courts revealed that "no clear consensus exists." He then concluded that departures based on conditions of confinement are an "unmentioned" factor under the Guidelines; and that there was no evidence to indicate that the Sentencing Commission "took the conditions of a pre-sentence detainees confinement into account in creating the Guidelines." Thus, under the standards established in Koon v. U.S., 518 U.S. 81 (1996), a district court may grant a departure based on an unmentioned factor if the court determines that the factor "is sufficient to take the case out of the Guidelines heartland."

Based on the evidence presented at the sentencing hearing by the defendants witnesses, the Court found that some of the conditions at HCCC "related to the very safety and health of the inmates." Among those findings were the following eye-openers: "spoiled, unsanitary food . . . did not meet basic nutritional needs"; "weapons were prevalent among inmates"; and "gangs were rampant throughout the institution."

Ultimately, the Court concluded that the defendant "was subjected to extraordinary stress and fear while housed at HCCC," and that his stay at HCCC "led to physical and psychological problems, specifically, physical attacks, significant weight loss, stress, depression, insomnia and fear." Overall, the Court described the general atmosphere at HCCC as "a dangerous one of frequent violence, weapons, and fights."

Based on those findings, the Court concluded that a one-level departure was warranted "to acknowledge the qualitatively different, substandard conditions to which Defendant was subjected for an extended period." The Court also pointedly noted that "had the Bureau of Prisons or the Marshals Service obeyed [his] October 26, 1988 Order and transferred Defendant to a facility that complied with federal standards, a departure would not be necessary." Finally, the Court rejected the Governments contention that granting the departure was "inappropriate" because it was tantamount to "judicially-imposed prison reform." Without further comment, Judge Patterson simply stated: "This Court is under no illusion that this departure for a single defendant will aid prison reform . . . ."

QUOTE OF THE WEEK - Prison Brutality - A Test of Civilization.

"There is a class of Americans, two million of them, who have little if any way to vindicate their constitutional rights. They can be abused, tortured, raped without effective recourse to law. They are the inmates of America's prisons. As such, they get little sympathy from the public. . . . Think about this recent case: A prisoner at the federal penitentiary in Atlanta was held for five days in what is called a "four-point restraint." He was chained by his wrists and ankles, on his back, in a spread-eagle position. He was forced to urinate and defecate on himself. For five days. The nauseating facts of that case are not in doubt because the prisoner found a lawyer who sued the Federal Bureau of Prisons over the lawless treatment. The bureau settled the lawsuit by paying the prisoner $99,000. . . . Brutal prison conditions should concern us the more because this country now imprisons a higher percentage of its population than any other in the world. . . .

In any event, we should be doing much more to enforce legal rules against brutality in prisons. That is for the sake not only of the prisoners but of us, the law-abiding. Winston Churchill explained why in 1910, when as home secretary he said in Parliament: The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country. A calm, dispassionate recognition of the rights of the accused, and even of the convicted criminal . . . measure[s] the stored-up strength of a nation and [is] sign and proof of the living virtue in it." From "A Test of Civilization" by Anthony Lewis, The New York Times, April 21, 2001, p. A-15.

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