Vol. 10, No. 43	Covering Cases Published in the Advance Sheets through October 27, 2003

Threats to Arrest Children Held Not Sufficient to Negate Voluntary Nature of Consent to Search

• The Soriano case from the Ninth Circuit is noted for its wildly disparate views on the issue of whether a written consent to search a motel room was rendered invalid because the police threatened the defendant’s girlfriend that, if she did not consent, she would be arrested and her children taken from her and placed in custody with social services. Writing for the majority, Judge Clifton, a recent appointee of President Bush, concluded that the consent was “free and voluntary” under the totality of the circumstances. Judge Berzon, an appointee of President Clinton, disagreed with that assessment, stating that “a reasonable parent would not have felt at liberty to refuse consent.”

Fourth Amendment

• In the Roving Wiretap case, a divided panel from the Ninth Circuit held that the FBI cannot force companies like OnStar to use its facilities and employees to help the FBI eavesdrop on conversations taking place within cars containing emergency cellular/GPS tracking and communications systems.
  
  
• In the International Union case, Judge McKeague of the W.D.Mich. rejected a union challenge, brought on behalf of four groups of state employees (most of whom were in law enforcement) who argued that Michigan’s random, suspicionless drug and alcohol testing program violated the Fourth Amendment. In its decision, the court presented a comprehensive survey of the current state of the law on the “special needs” exception to the Fourth Amendment.
  
  

Deliberate Indifference

• Two cases this week show the elusive nature of the Eighth Amendment concept of “deliberate indifference” in the prison setting. In Scicluna, the Sixth Circuit held that a series of mishaps and misguided judgments by prison doctors did indeed lead to an inference of deliberate indifference; while in Majors, Judge Sharp of the N.D.Ind. ruled that a comparable series of grotesque events did not constitute deliberate indifference: they were merely negligence, incompetence or malpractice.

Jury Nullification and the First Amendment

• In Braun, the Seventh Circuit upheld the dismissal of a civil rights lawsuit based on an infringement of freedom of speech, holding that the plaintiff had no First Amendment right to hand out pamphlets advocating jury nullification in a courthouse because a citizen has “no greater right than a criminal defendant’s lawyer to tell jurors in the courthouse to disobey the judge’s instructions.”

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U.S. v. Soriano, 346 F.3d 963 (9th Cir. 2003) (Judge Clifton)

The defendant in this case, Herman Soriano, was convicted of possession of stolen mail and receipt of a stolen U.S. Treasury check, both of which were discovered during a warrantless search of a motel room that he was sharing with his girlfriend, Hiroe Mukai. On appeal, Soriano argued principally that the district court had erred in refusing to suppress the evidence seized during the search as the fruit of an illegal search. The Government argued that Mukai had given her consent to the search; while Soriano argued that Mukai’s consent was not voluntary act of free will, but rather the product of threats and intimidation. Thus, the voluntary nature of that consent was the central issue in this appeal.

Here’s what happened. Acting on a tip, a team of six to seven law enforcement officers from the Los Angeles Police Department (LAPD) and the U.S. Postal Service went to the motel where Soriano and Mukai were staying. Collectively, they confronted Mukai in the lobby of the motel and told her that they were conducting an investigation involving Soriano; and they asked her to consent to a search of the room where she, Soriano and her two young children were staying. Expressing concern about her two children, Mukai initially refused to cooperate. For the next 30 minutes, “surrounded by six to seven LAPD officers and federal agents [Mukai] was continuously pressed for her consent.” (Id., at 975-76).

At one point during that confrontation, one of the police officers - and “the only uniformed officer in the group immediately surrounding Mukai” (id., at 976) - told her that “if she did not sign, she might be arrested and her children would be placed in custody with social services.” (Id., at 967). Within minutes, Mukai signed the consent form that was presented to her.

During the suppression hearing, Mukai testified that she began crying and shaking when she heard that her children might be taken away; and she explained: “Why I signed that form, I feel like I have to. I’m scared. Even small possibility that they might get my children to the social worker, I don’t want it to happen.” (Id., at 976). The district court (Judge Baird of the C.D.Cal.) “fully credited” that testimony and found that “the LAPD officer did tell her that if she refused to sign that she might be arrested and that her children would go to social workers.” (Id.)

Nevertheless, the district court concluded that Mukai’s consent was voluntary, in large part because “she seemed to carefully think the situation through before ultimately signing the consent form.” (Id., at 970.)

In a decision that reeks with after-the-fact rationalizations, a majority of the panel affirmed. It stressed that the while a court must look at the “possibly vulnerable subjective state of the person who consents,” it must also look at “the reasonableness of that fear. . . . Specifically , the court must determine whether ‘a person in [Mukai’s] position would reasonably have feared’ her children being taken into custody in light of the totality of the officer’s conduct.” (Id., at 969). Using that standard, the majority then concluded:

“It was not clear error for the district court to find that Mukai's fear for losing custody of her children, while perhaps reasonable at the time when [the police officer] made the threat, was not reasonable and did not negate the voluntariness of her consent at the time that consent was given. Several minutes elapsed between [the] threat and Mukai's signing of the consent form. By that time, [a second agent] had clarified that Mukai's children would only be taken away if Mukai was arrested, and since she was not a suspect, that was not a reasonable possibility.” (Id., at 969-70) (Emphasis added).

In a biting dissent, Judge Berzon effectively accused the majority of ignoring reality and grasping at straws to uphold the conviction. She stated, bluntly, that the district court had indeed committed clear error; and she argued, equally bluntly, that the majority’s decision:

“(1)disregards the degree of coercion created by a threat to take away a parent's children; (2) attributes to Mukai some basis for believing [one agent’s statement] over [the uniformed police officer’s threat], when a reasonable lay person would have no basis for such a choice; (3) emphasizes that Mukai thought hard about whether to give consent, yet her deliberation -- as Mukai testified and as the judge expressly recognized -- reasonably took into account the risk that the threat would be carried out, precluding a voluntary choice in the sense required by the Fourth Amendment.” (Id., at 976).

Judge Berzon concluded that the police officer’s “baseless threat” was made in a deliberate attempt to “prey upon the material instinct” and she stated: “For a parent, there is no threat greater than the threat to take away one’s children. . . . Such psychological coercion undermines the voluntariness of consent.” (Id., at 977). Then, after a painstaking analysis of virtually every premise upon which the majority’s decision rested, she wrote: “A reasonable person - a reasonable parent - faced with this situation would not have felt at liberty to refuse consent.” (Id., at 983).

Scicluna v. Wells, 345 F.3d 441 (6th Cir. 2003) (Judge Gilman)
Majors v. Ridley-Turner, 277 F.Supp.2d 916 (N.D.Ind. 2003) (Judge Sharp)

The decisions in these two cases help to explain why so much confusion exists regarding the wonderfully dichotomous concept of “deliberate indifference” - one of the most frequently cited cliches in the lexicon of prison litigation. Long ago, the Supreme Court agreed that deliberate indifference by prison personnel to a prisoner's serious illness or injury constitutes the type of “unnecessary and wanton infliction of pain” that is proscribed by the Eighth Amendment. (See, e.g., Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Later, the Supreme Court established a two-part test for determining whether an inmate has suffered an injury of constitutional magnitude: the defendant “must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must draw that inference.” (Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

The problem is that, ever since that Pandora’s box of “deliberate indifference” was opened, the courts have been under pressure to cut back on prison litigation; and, in that environment, the criteria for defining what constitute “deliberate indifference” has become more and more amorphous - and, as will be seen, it is a standard that often depends on the eyesight of the beholder.

Scicluna

In this case, Alfred Scicluna brought suit against various prison officials and prison doctors for alleged violations of his Eighth Amendment rights. While in prison, Scicluna suffered a fractured skull as the result of an unprovoked attack by another inmate; and he was immediately brought to a community hospital in Muskegon, MI for emergency neurosurgery. He was treated by a civilian physician, who removed a portion of his skull and recommended continued treatment, including a crainioplasty to replace the removed portion. (Id., at 444) Rather than authorize any further expensive surgery, Dr. Richard Huff, the Medical Director at Scicluna’s prison, recalled Scicluna from the community hospital; examined Scicluna himself; and prescribed the anti-seizure drug Dilantin.

When it became evident that Scicluna was not responding well to the Dilantin treatment approach, Huff had him transferred to second prison hospital. Unfortunately, that prison did not have the facilities to treat him, so Scicluna was transferred to still a third prison hospital “for an immediate neurological consultation.” The resident neurological expert at that prison, Dr. Paul Harvey, didn’t even examine Scicluna for 20 days after his arrival. When Harvey finally got around to examining Scicluna he determined that Scicluna’s level of Dilantin was toxic. Dr. Harvey immediately lowered the Dilantin dosages and then shipped Scicluna back to Dr. Huff.

In his lawsuit, Scicluna charged that Drs. Huff and Harvey had both been deliberately indifferent to his serious medical and safety needs. The two doctors asserted the defense of qualified immunity; but, in a decision reported at 219 F.Supp.2d 846 (E.D.Mich. 2002), Judge Avern Cohn ruled that qualified immunity was not available in a case where the conduct at issue was objectively unreasonable in light of clearly established constitutional rights; and he thus denied their motions for summary judgment.

The doctors appealed to the Sixth Circuit, which not only affirmed the district court’s ruling, it also concluded that Scicluna had established a prima facie case of deliberate indifference. For example, the Court observed that Dr. Huff’s decision to transfer Scicluna to a hospital that did not have the proper facilities to treat him “is conduct that would alert a reasonable person to the likelihood of personal liability.” (Id., at 446). Similarly, it commented that Dr. Harvey’s three-week delay in examining Scicluna at least raised an inference of deliberate indifference.

Of particular significance, the Court concluded that: “To show that he was subjected to such deliberate indifference, Scicluna need not prove that the defendants had the ‘express intent to inflict unnecessary pain,’ but only that their conduct demonstrated a level of ‘obduracy and wantonness’ greater than simple ‘inadvertence or error in good faith . . . ‘." (Id., at 445) (Internal citations omitted.)

Majors

The plaintiff in this case, Roger Majors, sued various prison officials pursuant to 42 U.S.C. § 1983, alleging a violation of his Eighth Amendment rights as a result of the dental treatment he received while in prison. He started with a toothache; and that led the prison doctors to have a tooth pulled. After a week of continued pain, swelling and infection, x-rays showed that parts of the tooth and roots were still in the jaw - so another operation was conducted to remove those remaining parts. Another week later, still in pain, Majors returned to the doctors and it was discovered that his jawbone had been cut and two other teeth had been damaged. Another operation removed the two damaged teeth; and a partial plate was made - but that plate never fit. As a result of those events, Majors also suffered nerve damage and a loss of feeling on the right side of his face.

Guess what? Judge Sharp ruled there was no deliberate indifference. He wrote that deliberate indifference “is comparable to criminal recklessness, and is shown by ‘something approaching a total unconcern for [the plaintiff’s] welfare in the face of serious risks, or a conscious, culpable refusal to prevent harm.” (Id., at 919). He then concluded: “The reasonable inferences from Mr. Major’s allegations do not support a claim of deliberate indifference; at worst, they imply negligence, incompetence, or malpractice. For the forgoing reasons, the case is dismissed.” (Id.)

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