Vol. 8, No. 31
Covering Cases Published in the Advance Sheets through July 30, 2001

Highlights of this Issue:

Apprendi Watch:

No Immunity for Police Violations of Civil Rights:

Civil Disobedience and Affirmative Defenses:

U.S.S.G. and Sentencing Issues:

Don't forget to visit the "Apprendi Watch" section of our Web site for the most current and comprehensive coverage of that watershed decision on the entire Internet. It now includes links to more than 300 published lower-court Apprendi decisions, all of which are organized by Circuit.

Sampson v. Schenectady, No. 99-CV-1331 (N.D.N.Y. 8/16/2001) (Judge Kahn)

In this case, Judge Kahn held that police officers who violate a person's civil rights are not immune from damages and are not entitled to assert a defense of qualified immunity in a lawsuit charging them with civil rights violations - even if the policemen claim that they were following orders or enforcing a departmental practice or policy. The ruling addressed an important question left open by the Supreme Court in one of its seminal cases on the subject of immunity, namely Harlow v. Fitzgerald, 457 U.S. 800 (1982) and not previously addressed in the Second Circuit.

Here, two police officers from the City of Schenectady were accused of picking up David Sampson, an African-American, from a city street, transporting him outside city limits at night, and leaving him in a remote town some ten miles away, after hurling his shoes into the woods. The Court noted that the two police officers had been under investigation for "a host" of unrelated felony charges stemming from their conduct while employed as police officers by the City of Schenectady; and both officers ultimately pled guilty to a number of felony charges, including drug distribution and extortion.

Sampson filed a civil rights suit, pursuant to 42 U.S.C. § 1983, against the two officers and the City of Schenectady, alleging that the officers had deprived him of various Constitutional rights and privileges through a series of acts that included false arrest, unlawful imprisonment, and assault and battery. (Although denied by the Police Chief, the defendant police officers testified that the Police Department had an unwritten policy requiring them to cleanse Schenectady's streets by picking up drunks and suspected drug dealers and users and dumping them in other communities.)

Sampson filed a motion for summary judgment on his claims. The policemen opposed that motion on various grounds, including that they were entitled to qualified immunity. Judge Kahn partially granted the motion with respect to the police officers' liability to Sampson for violating his Fourth Amendment seizure rights as well as his Fourth Amendment and state law false arrest rights. He explained the reasons for his ruling in this decision.

Regardless of whether or not there was an official "relocation policy" of undesirable people on Schenectady's streets, Judge Kahn concluded that the police officers were not entitled to a defense of qualified immunity under the "extraordinary circumstances" provision of Harlow. In Harlow, a majority of the Court denied senior aides of President Nixon derivative absolute presidential immunity. However, the Court held that public officials "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. . . . If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. (Harlow, id., at 818-19) (Emphasis added).

In the years since Harlow was decided, neither the Supreme Court nor the Second Circuit has provided much guidance as to what constitutes an "extraordinary circumstances." While Judge Kahn did not define that term either, he did adopt a high standard for police conduct and he concluded that, whatever the standard, the police officers did not meet that standard in the instant case. He observed that the few courts that have addressed the meaning of "extraordinary circumstances" have agreed that the exception applies to "those limited situations when the defendant was so prevented from knowing that his actions were unconstitutional that he should not be imputed with knowledge of an admittedly clearly established right'."

Here, he reasoned that "given the clarity of existing case law and the flagrancy with which the Officers violated it, the Court will not allow their city policy and negligent training claims to cloak their unlawful conduct with the veil of objective reasonableness." He further concluded that even if the policemen were able to establish probable cause for their seizure of Sampson, the manner in which they removed him from the city was clearly improper. Finally, he also held that it made no difference whether the police officers were following orders of performing in accordance with their training or the department's policies.

United States v. Maxwell, 254 F.3d 21 (1st Cir. 2001) (Judge Selya)

This decision deals with the ongoing protests in Puerto Rico over the Navy's use of a military installation on the island of Vieques as a site for live-fire artillery and bombing exercises. What makes the decision both novel and interesting is its discussion of two affirmative defenses that the defendant attempted to use at his trial - namely the defense of necessity and the "International Law" or "Nuremberg" defense. Because civil disobedience is a topic that often generates great passion, it is usually approached by the courts with a fair degree of trepidation. To some judges, civil disobedience, in almost any form, is the equivalent of an armed and seditious rebellion that must be crushed. Other judges tend to view certain forms of peaceful civil disobedience as a beneficial and therapeutic part of our nation's growth and maturity. The facts that gave rise to the instant case seem to evoke both views. (For a historical perspective on the role of civil disobedience in our society, see the Quote of the Week below.)

For some 60 years, the U.S. Navy has maintained a military installation (Camp Garcia) on the island of Vieques. Because of the use of live ammunition during training exercises at Camp Garcia, the Navy's presence on Vieques has sparked passionate protests over recent years; and those protests have led to the arrest and imprisonment of hundreds of protestors. To control the demonstrations, the Navy treats Camp Garcia as a "closed" base, which means that entry by members of the general public requires permission from the commanding officer. Closing the camp, however, has not been an unqualified success. As this Court noted, "[t]he political controversy attendant to the Navy's use of Vieques recently reached a fever pitch. In the calendar year 2000, approximately 400 persons were prosecuted for protest-related trespasses." (Id., at 23).

The defendant in this case, Raul Maxwell, was one of the 400 persons arrested for trespassing on Camp Garcia. He was ultimately convicted at a bench trial of the crime of criminal trespass (a misdemeanor), in violation of 18 U.S.C. § 1382, and sentenced to 30 days in prison. Section 1382 makes it a crime for anyone to enter a military reservation, post or installation "for any purpose prohibited by law or lawful regulation . . . ." Pursuant to regulations promulgated by the Department of the Navy, the "purpose prohibited by . . . lawful regulation" is the one set out in 32 C.F.R. § 770.38, namely, "entry . . . for any purpose whatsoever without the advance consent of the Commanding Officer."

Prior to his bench trial, Maxwell filed a motion requesting permission to present affirmative defenses based upon necessity and international law. The Government objected, and the district court (Judge Fusté) ruled that the two defenses could not be maintained as a matter of law "because of the lack of a proper predicate." (U.S. v. Maxwell-Anthony, 129 F.Supp.2d 101, 104-07) (D.Puerto Rico 2000)). As it has done in every reported Vieques decision we have read, the First Circuit affirmed.

The Court described Maxwell's necessity defense as follows: Maxwell suspected that at least one Trident submarine was present in the waters off Camp Garcia; that the grave risks triggered by the deployment of such submarines were a far greater evil than the commission of criminal trespass to stop their deployment; that harm was imminent; and, since he had previously taken a wide variety of political actions to no avail, he had no practical alternative but to break the law. (Id., at 27).

The Court conceded that a defendant has "a wide-ranging right to present a defense," (id., at 26) and that a necessity defense, "like other justification defenses, allows a defendant to escape responsibility [for his crime] despite proof that his actions encompassed all the elements of the criminal offense." (Id., at 27). It also assumed, without deciding, that the necessity defense was available "as a defense to crimes, like this one, committed as acts of indirect civil disobedience (meaning that the law violated as part of the protest is not the law being protested)" (id., at 26, n. 2) - although it noted that at least one court has rejected the use of the necessity defense in such cases.

However, the Court concluded that Maxwell had failed to satisfy his "entry-level burden of producing competent evidence" on at least three of the four elements of the necessity defense. (Id., at 29). The Court explained that the necessity defense requires the defendant to show that he "(1) was faced with a choice of evils and chose the lesser evil, (2) acted to prevent imminent harm, (3) reasonably anticipated a direct causal relationship between his acts and the harm to be averted, and (4) had no legal alternative but to violate the law." (Id., at 27). In this case, it concluded that Maxwell could not meet the burdens of showing "imminent harm" - or "reasonable anticipation of averting harm" - or that he had exhausted his broad range of "many legal options for advancing his political goals" - such as "by speech on public streets, in parks, in auditoriums, in churches and lecture halls." (Id., at 29).

In like manner, the Court leerily rejected Maxwell's "International Law" or "Nuremberg" defense. That defense hinged on his claim that the deployment of Trident submarines is a "war crime," giving him the privilege of breaking domestic law to stop it - and he cited as his authority on this point the decisions of the international tribunals that presided over the trials of the Nazi war criminals in Nuremberg after World War II. (Id., at 29).

The Court acknowledged that the Nuremberg tribunal had established the principle that persons under compulsion to violate crimes against humanity have a privilege under international law to violate domestic law to prevent the ongoing crimes against humanity - a fairly broad and interesting concept. The Court, however, quickly, cut off any unacceptable expansion of that doctrine by stating that "[b]ecause Maxwell was under no compulsion to violate international law, his attempt to cloak himself in the Nuremberg mantle fails. Under his formulation, an individual gains the privilege to violate domestic law simply by being a citizen of a nation that possesses nuclear weapons. This is a quantum leap beyond the frontier of the classic Nuremberg defense - and one that we refuse to undertake." (Id., at 30).

QUOTE OF THE WEEK - "The Government is best which governs least."

In the middle of the 19th Century, philosopher and author Henry David Thoreau wrote the model for social protest in his classic essay "Civil Disobedience" - a work that was originally titled "Resistence to Civil Government." Starting with the premise that "the government is best which governs least," he strongly endorsed both the need for, and the right of the people to engage in, civil disobedience. His essay has often disturbed governments; and he has sometimes been condemned by those entrenched in power as an anarchist and as the devil incarnate. One of Thoreau's guiding philosophies was that "[t]he law will never make men free; it is men who have got to make the law free. They are the lovers of law and order, who observe the law when the government breaks it."

Among the many memorable teachings set forth in "Civil Disobedience" is the following: "After all, the practical reason why, when the power is once in the hands of the people, a majority are permitted, and for a long period continue, to rule is not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest. But a government in which the majority rule in all cases can not be based on justice, even as far as men understand it. Can there not be a government in which the majorities do not virtually decide right and wrong, but conscience?--in which majorities decide only those questions to which the rule of expediency is applicable? Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator?"


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:


This Week

Year to Date

Since 1996

Courts of Appeal




District Courts




Copyright 2001 Punch and Jurists, Ltd.