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Wednesday, June 3. 2009
On June 3-4, the Chinese army turned its guns on its own people, who were peaceful demonstrators in Tiananmen Square. Such atrocities are not limited to China. Look no farther than Kent State nineteen years earlier, even if on a smaller scale and not ordered from the highest echelons of power. Following is a reprint of my April 23, 2007, account of this horrific tragedy: Tiananmen Square massacre. Best viewed on an empty stomach. On June 3, 1989, I was about to go to sleep before going to my younger brother's high school graduation the next morning. The television news reported on the Tiananmen Square massacre that had taken place. The news reports were just coming in, and apparently in the process of being clarified and detailed. Having no Internet for getting more information, I went to bed with a sick feeling in the pit of my stomach. The next morning I watched the news to learn how massive, extreme and brutal had been the massacre. I felt even sicker. I saw Norman Mailer at the graduation, and thanked him for sharing his writing with the world. I could have talked to him about the massacre, but felt relief enough that he was there. I returned to Washington, DC, where I was preparing for the bar exam. After lunch with two law school friends, we passed by the Chinese embassy, where I saw a lone demonstrator standing before the lady liberty statue that had been standing in a park near the embassy. I asked the driving friend to let me off there, because I decided to join the lone protestor. They advised caution about getting into trouble. What trouble was I supposed to fear, demonstrating peacefully so shortly after the massacre? The lone demonstrator was originally from China, and a local college professor in the United States. (Addendum: After receiving my request for permission to identify this professor, he gave me the go-ahead. He is Gallaudet University math professor Fat C. Lam.) His sign read "Don't let tyrants sleep." I stood with him; I forget if I made a sign, and if I did, it would only have been on the legal pad I had with me. The Secret Service uniformed officer told me he supported our message, but that he would arrest me if I entered the embassy building to express my grievances. I stayed around an hour or longer with the lone demonstrator. Out of my deep sadness over the Tiananmen massacre came hope from learning that such Tiananmen leaders as Li Lu had escaped safely, and exhilaration at meeting Mr. Lu at a 1989 Washington, DC, reception sponsored by the Lawyers Committee for Human Rights (now called Human Rights First). The following June 1990, I joined a long massacre anniversary demonstration march supporting the Tiananmen Square activists, which ended, appropriately, before the Chinese embassy. Even with the intervening explosion of the Internet and capitalism in China, the government there has managed to continue to keep a tight grip over dissent subsequent to the Tiananmen Square massacre. Whether or not the Tiananmen activists are biding their time until the iron is hot for them to re-enter the political arena in China, or just enjoying the capitalist opportunities in the world, I recently obtained the following updates on Tiananmen leaders Li Liu and Shen Tong: Li Lu obtained multiple degrees from Columbia University, and became an investment professional. Shen Tong became a high-tech capitalist, who now visits China to sell his software products; his sister believes he is not fixated on making big money. Hopefully the spark of hope, optimism and human rights keeps Li Lu, Shen Tong, and the other surviving Tiananmen Square activists ready to turn in their business suits -- at least temporarily, when the iron is hot -- to push further for more democracy and individual liberties in China. Jon Katz.
Tuesday, June 2. 2009
Bill of Rights. (From the public domain.)
NOTE: Underdog's June 2 blog entry is being posted late. Stay tuned for a resumption of regular daily postings. Criminal defendants sometimes focus on their time out of jail versus in jail, and not enough time on the often onerous and even draconian deprivations of liberty involved during supervised probation and parole. Consider William Robert Bender. He got a four-year prison sentence for sexual activity with an underage female, and was ordered to be on five years of supervised release thereafter. U.S. v. Bender, __ F.3d _ (8th Cir., June 2, 2009). His probation conditions included no access to so-called "pornography" (which has no legal definition), no unsupervised contact with minors, and no access to libraries, lest he use the Internet there or look for children there. Mr. Bender was found in violation of supervised release for entering a library and using a computer to access "pornography", on top of being in a place (a library) frequented by minors. On appeal from Bender's sentence for violating supervised release, the Eight Circuit vacated some of his conditions of supervised release and remanded for sentencing. For instance, the Eighth Circuit held that a total ban from access to libraries is disfavored (including consideration of inmates' needs to use libraries) and vacated that condition. The Eighth Circuit also found that his supervised release conditions for no access to "pornography" and ability to be near minors unchaperoned was not tailored well enough to his circumstances rather than to a general class of similarly-situated people. Bender is an important read for its addressing similar issues in other circuits, and because similar supervised release conditions are very common by now for those convicted of soliciting or engaging in sexual activity with minors. Jon Katz. ADDENDUM: Thanks to my brother lawyer Larry Sutter -- Senior Counsel, FriendFinder Networks Inc. -- for alerting me to this Bender case.
Monday, June 1. 2009
Thanks to listserv members for bringing my attention to the following material on Judge Sonia Sotomayor, looking at her performance as a judge and as a lawyer: - "A View of Judge Sonia Sotomayor from Cyberspace," by Arthur Bright. - "Sotomayor Sides With the Cops - And persuades a Republican judge to go along with her," by Emily Bazelon.
Sunday, May 31. 2009
Today, I was minding my own business waiting for a traffic light to turn green when there was a light tap on my driver's side window. There was a time when I would have tensed up in defensiveness with my armor under the same circumstances, before knowing who was there, lest it be someone with a knife or otherwise. Having increased the time I spend on t'ai chi, I thought nothing suspicious of the tap, and opened my window after seeing what appeared to be the driver of the tourbus to my left, asking the meaning of my license plate's acronym, NMMHRGK. I replied: "It is a Japanese Buddhist prayer for peace," which seemed to tickle the gentleman at minimum. (The acronym represents the odaimoku of Na-Mu-Myo-Ho-Ren-Ge-Kyo, which is the essence of the Lotus Sutra; I first learned it from my friend and teacher Jun Yasuda, who is peace personified; chanting it daily helps me approach that level of internal peace.) It is hard to persuade judges, jurors and other people to trust me any more than I trust them. What good does it serve for tension to be visible in me by the people I am trying to persuade, especially if they think they are the ones making me feel tense? Tension has no place in t'ai chi, and makes it harder to sense and listen to the situation at hand. Similarly, this past week, I stayed calm while dealing with a prosecutor who was more than happy to have me listen to his every word as he made a guilty plea offer -- which my client rejected, followed by the wise decision of going to trial -- which I was obligated by basic ethics rules to convey to my client, even though he reacted sharply dismissively when I came back soon thereafter with a counteroffer. Had I done otherwise, I would have been tense, which does not serve the process of battle and persuasion, and does not help one sense, listen to, and follow all essential battle-related events. There was a time when I thought that acting calmly in the face of an insulting opponent might sometimes make me look weak to my opponent and colleagues. Sure, I call opponents on this from time to time, but the difference now is that I do it calmly, and with an effort not to lose the ability to hear my opponent between the lines as well as in the lines of communication. In t'ai chi, we are taught not to tense up when under attack, just as we do not help ourselves to tense up when a car seems about to hit us, when we are trying to avert or minimize harm. All that does is to make it easier for us to be pushed by our opponents. When we soften ourselves up -- like water or wind -- to our opponents to the point that they cannot find anything to push against, the opponent's attack is at the very least neutralized, and sometimes is thrown off balance to my client's benefit. Jon Katz.
Friday, May 29. 2009
Bill of Rights. (From the public domain.) When Bill Clinton was elected president, I was happy to be seeing George Bush I leave the presidential palace, but did not have high hopes for
Bill Clinton -- including consideration of his detour to attend an execution during the presidential campaign -- but had higher ones than I had for Bush I. My expectations became my views of Bill Clinton's presidency to this day. I have had the same views right up to today about Barack Obama. He is a great improvement over George Bush II, but I am not holding my breath for him to do any better than Bill Clinton in Clinton's rather centrist approach (at best) to criminal defendants' rights, civil liberties, and immigrants' rights, among other important social justice items. Similarly, just as I expected Bill Clinton to do less damage with federal court appointments than his predecessor, I anticipated the same from Obama, but did not expect better. From what I know so far about Supreme Court nominee Sonia Sotomayor, she is no better a pick than Clinton's nominations of Justices Ruth Bader Ginsburg and Stephen Breyer; the latter two seem to have excellent legal and general minds and generally to take great care in their written opinions. On the one hand, the elimination of discrimination based on gender, race, ethnicity, and religion is of course critical, and a predominantly all-white male Supreme Court involves insufficient diversity benefits. On the other hand, just as Obama and everyone currently sitting on the Supreme Court do not deviate too far from preserving heavy power in government, corporations, and the wealthy, it does not appear that Sotomayor will be any different in that regard, particularly if the claim is true that she has not deviated much from stare decisis coming from her own Second Circuit. It seems that Obama engaged in a well-choreographed, tightly-controlled search for and announcement of Justice Souter's replacement, rather than risking the appearance of dissent among the more liberal organizations and individuals who backed and donated to his presidential campaign. In a democratic and open government, I would wish to see all presidents welcome real public input before making a final Supreme Court nomination. Hope springs eternal. Here are some additional items and links to consider: - I doubt Judge Sotomayor will be a good enough friend to free expression, and plan to review her opinions in this area. For instance, as addressed by a great First Amendment lawyer I know, her opinion in Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006). -- rejecting vagueness and overbreadth challenges to a parole condition banning possession of "pornographic material", when "pornographic material" is not a term of legal art -- gives cause for pause about whether she has a sufficient grasp of the First Amendment and related court opinions to sufficiently protect First Amendment rights. -  Sotomayor is a former prosecutor. She apparently has never represented a criminal defendant, and it appears that she has never represented an individual as a client, beyond any claim that crime victims are the clients of prosecutors. SexCrimes says she did not favor criminal defendants much more than her peers in 2008; that leaves her other years on the bench to examine. - Here is a May 27, 2009, New York Times overview of some of Judge Sotomayor's "notable" court opinions and articles. - Jonathan Turley likely will provide important reading throughout the confirmation process. - Sentencing Law and Policy posts some links on Judge Sotomayor. - Crime and Consequences addresses Judge Sotomayor's treatment of the AEDPA. - TalkLeft repeatedly blogs on Judge Sotomayor. Jon Katz.
Thursday, May 28. 2009
On May 25, I wrote about Jan Diepersloot's Warriors of Stillness, This book further says: "Both in the conduct of his life and in the methods of his teachings, Master Cai [Song Fang] epitomizes how knowing one's own center and that of those we come in contact with in push-hands and energy field play can be used to shore people up rather than upsetting them, stabilizing rather than destabilizing them." Nevertheless, such internal martial arts as t'ai chi can deliver devastating blows, as Diepersloot also writes in Warriors of Stillness: "The martial art therapy of the wuji-taiji method of awareness has a yin and yang side to it. Its greatest achievement is the yin aspect, the development of awareness and control in the skill of neutralizing and keeping the peace. However, in its yang aspect, the wuji-taiji method of awareness delivers the power to enforce the peace through the development of the power of deadly integral force that can be discharged with a mere intention." I have previously related the foregoing ideas to the practice of criminal defense as follows: Some clients think they need a lawyer who will go into the ring growling, baring fangs, and showing fresh blood on the fingernails. Other clients feel uncomfortable seeing their lawyers yuck it up with cops and prosecutors who are trying to get them convicted and locked up. I respond to my clients that the goal is neither to seek to draw blood that does not need to be drawn for the client's benefit, nor for me to find a new friend for happy hour. Instead, the goal is to harmonize my client's problem to my client's best advantage. If this can be done without harming the other side, wonderful. If this can only be done by seriously -- and at all time ethically -- damaging the other side, so be it. Jon Katz
Wednesday, May 27. 2009
Bill of Rights. (From the public domain.) Yesterday, the Fourth Circuit confirmed that trial courts may not presume reasonableness of Guidelines sentences: While an appellate court reviewing a sentence may presume that the sentence within a properly calculated Guidelines range is reasonable, see United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008), the sentencing court may not, in sentencing a defendant, rely on this presumption. See Gall v. United States, 128 S. Ct. 586, 596-97 (2007) (citing Rita v. United States, 127 S. Ct. 2456 (2007)). Rather the sentencing court must "first calculate the Guidelines range, and then consider what sentence is appropriate for the individual defendant in light of the statutory sentencing factors, 18 U.S.C. § 3553(a), explaining any variance from the former with reference to the latter." Nelson v. United States, 129 S. Ct. 890, 891-92 (2009) (per curiam). Because the district court’s statement in sentencing Smith suggests that the court improperly presumed that a sentence within the Guidelines range would be reasonable, we vacate Smith’s sentence and remand for resentencing. U.S. v. Cordell Smith, __ F.3d _ (4th Cir., May 26, 2009). Jon Katz
Tuesday, May 26. 2009
As I said yesterday, t'ai chi ch'uan is essential for my life and law practice. Here are some powerful passages from Wolfe Lowenthal's biography of t'ai chi master Cheng Man Ch'ing, entitled Gateway to the Miraculous: Further Explorations in the Tao of Cheng Man Ch'ing: "Whatever abuse or oppression we may experience, its effect on our balance is still in our hands." "The only real opponent exists inside each of us." "A demonized opponent implies a condition of fear." "Egotism and arrogance are weak because they are too expansive." "Where there is tension, the body is dead." "There is nothing that in and of itself need destroy our sense of well-being." For my trial law practice, the above passages teach not to get angry at the judge nor the opposing lawyer or opposing witnesses. That weakens the lawyer's ability to persuade them. Jon Katz
Tuesday, May 26. 2009
To those asking if we are still seeking a new legal assistant, the position has been filled. Thanks to all those who applied. In this day of resumes sent by the simple click of a button, we may not get a chance to reply individually to each candidate who applied. This vacancy was created by my top-notch legal assistant who is going to law school. His vacancy will be filled by very capable hands. Jon Katz.
Monday, May 25. 2009
Long ago, I learned that t'ai chi ch'uan is essential for my life and law practice. Consequently, I decided to incorporate the t'ai chi symbol in my above-displayed law firm logo, after having toyed with a tidalwave or my initials in bamboo shape. The tidalwave symbolizes t'ai chi's lesson to be as hard to push against as water or air, but as powerful as a tidalwave or hurricane. Bamboo symbolizes the t'ai chi lesson to be yielding to an attack but always strong. My final logo enabled me to incorporate the scales of justice of the law field into the t'ai chi symbol. In the Washington, D.C., area, I know of four weekly t'ai chi practice gatherings, aside from the many classes available during the week. They are the Capitol Hill t'ai chi group, which I have been joining for several weeks; the Cabin John Park group; the Glen Echo Park group; and the McLean, Virginia group. I started in 1994 with the Glen Echo Park group, before starting to take lessons there with my teachers Ellen and Len Kennedy. Only the first two groups include sensing/pushing hands practice, and the Capitol Hill group meets more consistently than the Cabin John Park, and at a more reasonably early hour. All meet on Saturday morning. After returning to the Glen Echo Park group, I have found much more benefit with the Capitol Hill gathering. At the Saturday morning t'ai chi practices is a man who has been practicing t'ai chi much longer than I, who starts his t'ai chi practice each day at 4:30 a.m. He suggested the very real extra benefits of my practicing t'ai chi for ninety minutes daily instead of my previous average of fifteen minutes. Yesterday and today, I followed his advice. The ninety minutes gives me time to self-practice several rounds of the t'ai chi form; perform standing meditation; hold t'ai chi postures for several minutes each -= no burn, no earn/no pain, no gain, as t'ai chi master Ben Lo happily says; and circle my house like a cat, so that the front foot is empty when first landing on the ground, to prevent tripping on obstacles and losing balance if an opponent kicks the leg that is off the ground. Ben Lo emphasizes the importance of relaxing and practicing, and advised me to practice t'ai chi in the morning and the evening when it was an accomplishment for me to even do one round of the form each day. Through reading Wolfe Lowenthal's Gateway to the Miraculous and talking with the 4:30 a.m. practitioner, I have learned of the importance of spending at least ninety minutes daily with t'ai chi practice. I have also learned about the importance of such practice to get not only the upper body relaxed, but the legs relaxed enough so that I will be using not more than four ounces of force even to perform the kicking parts of the t'ai chi form. Practicing t'ai chi for ninety minutes daily is a realistic time commitment when considering that this is the minimum time usually consumed to exercise at the gym and to travel there and back When the weather is good, I practice on my backyard patio. In bad weather, I can practice inside my house, or can drive to Cabin John Park, where an extended roof by the mini-train station protects against the rain. Here are some further t'ai chi lessons I have learned, in addition to my dozens of blogpostings on t'ai chi ch'uan: - The 4:30 a.m. t'ai chi practitioner recommends Robert Chuckrow's t'ai chi books, which are here and here. He also recommends reading Peter Ralston (see here, too) on t'ai chi, but so far I have only found Ralston addressing t'ai chi in book form through his preface to Ron Sieh's T'ai Chi Ch'uan: The Internal Tradition. (UPDATE: The 4:30 a.m. t'ai chi practitioner confirmed that he recommends Ralston's Cheng Hsin: Principles of Effortless Power; here is Ralston's Cheng Hsin page). - Here are beneficial t'ai chi videos: -- Videos of Fu Zhongwen, who was a student of Yang Cheng Fu. Fu Zhongwen later married one of Yang's family members; I am wondering whether the family relationship led Yang Cheng Fu to share even more t'ai chi secrets with Fu Zhongwen than if the family relationship had not existed. Yang Cheng Fu taught t'ai chi to Cheng Man Ch'ing, who taught Robert W. Smith as his first Western student, who taught Ellen and Len Kennedy, who taught me starting in 1994. Fu Zhongwen videos are here, here, here, here, and here, -- Videos of Fu Sheng Yuan, the son of the above-discussed Fu Zhongwen: Fu Sheng Yuan and Fu Zhongwen sensing hands together. See also here, here and here. -- Cheng Man Ch'ing doing t'ai chi sword practice. Wolfe Lowenthal lists the sword form postures here. -- Yang Sau Chung, eldest son of Yang Cheng Fu. - Internal martial artist Fong Ha included t'ai chi study with Yang Cheng Fu's eldest son Yang Sau Chung and Yang's student Tung Ying Chieh. Fong Ha also studied yiquan with Han Xing Yuan, who was a student of Wang XiangZhai. Videos of Fong Ha are here, here, here, here, and here, - I am currently reading Jan Diepersloot's Warriors of Stillness Volume I: Qigong of the Center, Essence of Taijiquan -- The Teachings of GrandMaster Cai Song Fang. Diepersloot studied with the above-discussed Fong Ha and Cai Song Fang, both of whom eventually focused heavily on the martial and meditative benefits of standing meditation and holding t'ai chi postures rather than doing the t'ai chi form as interconnected movements. Diepersloot focuses heavily on the wuji posture. Wang Tsung-yueh wrote that: "Taiji (The Great Ultimate) comes from Wu Chi (Undifferentiated Oneness) and is the mother of yin and yang. In motion Taiji separates; in stillness yin and yang unite and return to Wu Chi." The Nine Dragon Baguazhang page further discusses the relationship between wuji and taiji. Whether accurate or not, here is diagramming of the wuji symbol and t'ai chi symbol. As I understand it, the wuji posture is the starting t'ai chi posture in the Cheng Man Ch'ing-style t'ai chi ch'uan that I practice. - Wolfe Lowenthal recommends Richard Wilhelm's translation of the I Ching, which influenced the Tao Teh Ching. Taoism heavily influences t'ai chi ch'uan. Links about Wilhelm are here and here. This page purports to present Wilhelm's I Ching translation. I have ordered Wilhelm's translation in hardcopy. - Practicing t'ai chi ch'uan helps one loosen attachment to one's body, to desires, and to material things, in that in t'ai chi one must deflate the ego, softness is valued and muscular strength is not sought, and this martial art is suitable for practitioners of any age and any level of physical health or lack thereof. As the above-discussed Jan Diepersloot writes in Warriors of Stillness: "The accomplishment of the training in the meditative and martial arts is precisely the ability to transcend and suppress the functioning o the sympathetic, pituitary-adrenal system and continue to operate with calm equanimity in the face of extreme danger, including, ultimately, the encounter with death itself." Jon Katz
Monday, May 25. 2009
Friday, May 22. 2009
If a cop is going to arrest a reporter and news camera operator for covering something as non-political and non-controversial as an overturned truck from the opposite side of the highway, imagine what the same cop will do under the cover of the night passing by people doing "oink, oink" pig sounds. That is, unless the cop gets demoted to a desk job. Former El Paso police sergeant Raul Ramirez went on a power trip last April, manhandled the reporter and cameraperson, and arrested them, while letting the onlooking civilians to continue to watch the scene. His misdeeds were caught on camera and audio. How many people has he manhandled worse when he thought nobody was videotaping, watching, or witnessing? Mr. Ramirez was demoted over a previous police abuse incident. For his mistreatment of the reporter and cameraperson, the police chief this month concluded that he "somewhat overreacted." Is that not like being a little bit pregnant? The First Amendment guarantees press freedom and freedom of expression. Raul Ramirez either did not know that, did not give a crap, or both. Were the police not here for the purpose of serving the public, rather than the other way around? What juror who sees the above-posted video of this incident is not going to downgrade his or her reliance on the truthfulness and judgment of Mr. Ramirez next time he testifies? Isn't this video enough to convince many more people finally to join my call to shrink and improve the police function and the rest of the criminal justice system, by legalizing marijuana, heavily decriminalizing all other drugs, eliminating mandatory minimum sentencing, eliminating the death penalty, and eliminating per se rules of intoxication based on minimum blood alcohol levels? I'll drink to that. Jon Katz ADDENDUM: Of course, the recently-revealed Birmingham, Alabama, police brutality tape is even more stomach turning.
Thursday, May 21. 2009
Bill of Rights. (From the public domain.) Daniel Crabtree was found in violation of federal probation in part based on audiotapes that his girlfriend surreptitiously recorded of Crabtree's phone conversations with others. Two days ago, the Fourth Circuit reversed Crabtree's probation violation ruling, writing in part that: "In our view, the issue is resolved by the language of [18 U.S.C.] § 2515 itself. Section 2515 states, in its entirety, that 'Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.' 18 U.S.C.A. § 2515. The statute seems to clearly and unambiguously prohibit the use in court of improperly intercepted communications; we simply see no gaps or shadows in the language that might leave lurking a clean-hands exception. Because the statute is clear and unambiguous, our inquiry typically would start and stop with its plain language. See, e.g., Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) ("We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete." (citations and internal quotation marks omitted)).'" U.S. v. Crabtree, _ F.3d _ (4th Cir., May 19, 2009). Jon Katz
Wednesday, May 20. 2009
In the courts where I practice criminal defense, even giving an unwanted hug is an assault. That is additional testimony to the wisdom of bowing to others to greet them, apart from the reduced risk of catching swine flu (or mucus, if the person recently sneezed into the right hand), but I digress. Geneva Clark was more than angry that her son's school busdriver successfully recommended that his Henrico County, Virginia, school remove his bus privileges, at least temporarily. Ms. Clark's anger may have gone beyond standing up for her son's rights and dignity, to being frustrated about how he was going to get to and from school, at least if he was not a safe or close enough walk from the school. She acted unwisely, as further detailed below, but her actions should not have merited an assault conviction. After her son's bus expulsion, Ms. Clark one morning arrived at the school's bus parking area, allegedly parking her car to make it hard for the other buses to easily depart after arriving, walked towards the bus that her son would have been on that morning had he not been ejected, and said: “'I told you I’m going to get you, bitch, don’t care, I don’t care where you at, if you’re on the school ground, if you’re in the school, or you’re in the grocery store,' '[I’m going to] [f]**k you up.'" Clark v. Virginia, _ Va. App. _ (May 12, 2009). Ms. Clark allegedly repeated similar actions the same afternoon when it was time for the buses to pick up the students. Understandably, the busdriver was scared, at the very least. Convicted of assault by Circuit Court bench trial for the foregoing actions, Ms. Clark successfully appealed her conviction, with a 2-1 Virginia Court of Appeals panel ruling that the facts were insufficient to find an overt act that would enable an assault conviction. The Court of Appeals reconsidered the case en banc and reversed. The court paid lipservice to the fact that words alone cannot constitute an assault, but proceeded to give the trial judge the benefit of the doubt that maybe the trial judge had concluded that Ms. Clark intentionally and successfully blocked the buses (rather than just getting there on time to get her message to the busdriver) and stood menacingly close to the bus. The en banc court opinion distinguishes another appellate opinion that reversed an assault conviction for similar behavior towards police conducting an investigation in that the police went to the defendant's home as opposed, finding it important that the defendant never sought out the police. Praised be the three dissenters from the en banc opinion in Clark. They did not buy that the facts -- even when viewed in the light most favorable to the prosecution -- presented an overt act that would have permitted a conviction. Beyond Clark's application to overt acts, the opinion confirms that in Virginia, the definition of assault is the same for both criminal prosecutions and civil tort actions. Back to my discussion of bowing at the beginning of this blogpost. Imagine how many fewer arrests, prosecutions, and lawsuits there would be if the West borrowed the practice in Japan and elsewhere of respectfully bowing to each other. Had Ms. Clark done so, more diplomatic words may have followed. In any event, I still disagree with the en banc Clark opinion.
Tuesday, May 19. 2009
Although most of my time is spent on criminal defense, my strong civil libertarian bent has led me to do in-depth civil litigation over the years, as well, particularly defending free expression rights of political activists, adult entertainment industry members, and libel defendants. My first experience with civil litigation was in the late 1980's with my first law firm, which represented financial institutions and transportation companies. There, my legal research often found opinions about the American rule that each private party must bear its own attorney fees, and that the attorney fees sometimes are available from the government under civil rights laws and the Equal Access to Justice Act. In the area of civil rights litigation, some statutory schemes make prevailing plaintiffs eligible to obtain an award of attorney fees from the defense. No matter how counterintuitive it may or may not be, such exposure sometimes extends to defeated plaintiffs, as well. As recently recounted by the Fourth Circuit, here is the state of the law on the matter: Pursuant to [42 U.S.C.] § 1988(b), the "prevailing party" in certain civil rights proceedings is entitled to recover attorney’s fees. Although the explicit provisions of § 1988 do not distinguish between a prevailing plaintiff and a prevailing defendant, the courts have nevertheless drawn such a distinction. Under controlling precedent, a prevailing civil rights plaintiff is ordinarily entitled to receive an attorney’s fee award as a matter of course. See Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) ("[A] prevailing plaintiff should ordinarily recover an attorney’s fee [under § 1988] unless special circumstances would render such an award unjust." (internal quotation marks omitted)). A much stricter standard applies, however, when a court is requested to make such an award to a prevailing defendant. See, e.g., Jones v. Continental Corp., 789 F.2d 1225, 1232 (6th Cir. 1986) (describing fee award to civil rights defendant as "extreme sanction" reserved only for "truly egregious cases of misconduct").
In order for a prevailing defendant to be entitled to recover attorney’s fees under § 1988, the plaintiff’s claim must have been either "‘frivolous, unreasonable, or groundless,’" or the plaintiff must have "‘continued to litigate after [the claim] clearly became so.’" Lotz Realty Co., Inc. v. U.S. Dept. of Housing & Urban Dev., 717 F.2d 929, 931 (4th Cir. 1983) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)). Indeed, the mere fact that a civil rights plaintiff lost her case does not render her claim frivolous, unreasonable, or groundless. As the Supreme Court explained in this regard:
[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success.
Christiansburg, 434 U.S. at 421-22; see also Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 303 (6th Cir. 2008) ("The Sixth Circuit affirms awards of attorney fees [to prevailing defendants under § 1988] only when plaintiffs relitigated already-settled legal matters, and we reverse the award of attorney fees when issues of law remained unresolved or when a plaintiff had an arguable basis for pursuing his or her claim." (internal quotation marks omitted)). The purpose of distinguishing between a fee award being made to a successful plaintiff, on the one hand, and such an award being made to a prevailing defendant, on the other, arises out of the legitimate concern for the "chilling effect" that the latter type of award would have on potential civil rights plaintiffs — and their lawyers — in deciding whether to initiate lawsuits. See Lotz, 717 F.2d at 932. We have explained, however, that "[w]hen a court imposes fees on a plaintiff who has pressed a ‘frivolous’ claim, it chills nothing that is worth encouraging." Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993). Unus, et al. v. Kane, et al., __ F.3d _ (4th Cir., May 6, 2009). Consequently, it is essential, before filing any lawsuit, to determine the attorneys' fee recovery landscape and other possible landmines for the case. That does not mean to be fearful to file suit, but to be knowledgeable about potential pitfalls before doing so.
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