Days before five Supreme Court justices vindicated his “mosaic” theory of Fourth Amendment search by GPS in United States v. Jones [PDF], Judge Ginsburg issued another Fourth Amendment opinion that may be just as unpopular with the Metropolitan Police Department.
In Rudder v. Williams [PDF], the D.C. Circuit reinstated an excessive force suit brought by three adults and two children against two police officers. The plaintiffs claim the officers beat them to the ground with batons at D.C.’s Caribbean Carnival when they left the sidewalk to hug family members in the parade.
The D.C. Circuit reversed the district court’s sua sponte dismissal of all five plaintiffs’ Fourth Amendment excessive force claims. Several lines from that analysis will be quoted frequently by future plaintiffs:
A person who responds verbally to a police officer assaulting a child hardly invites violence against herself.
Unlike, say, pushing an arrestee against a wall and pulling his arm behind his back, beating a suspect to the ground with a baton exceeds in violence anything we would expect in the course of a routine arrest.
Justice requires that a plaintiff be afforded the opportunity to refine his allegations without losing forever the right to litigate his claims on the merits.
But the most important part of the opinion may be its holding that the district court erred in dismissing the children’s common law tort claims “with prejudice,” even though–in response to a motion to dismiss–the plaintiffs “inexplicably” conceded that those claims were time-barred. As it turned out, the concession was incorrect–the statute of limitations does not begin to run until the plaintiffs reach the age of majority. Judge Ginsburg held that because “the deficiency in this case lies not in the complaint but in the plaintiffs’ erroneous concession,” the district court should have dismissed those claims without prejudice to their being filed anew.
In future cases, this anti-waiver holding may be limited to child-plaintiffs on the ground that minors cannot intelligently waive legal rights. But on its face, the opinion suggests that the district court may never rely on a plaintiff’s express concession to dismiss his claim with res judicata effect–at least where the concession is based on an overt mistake of law. The opinion cannot mean that a court must second-guess the plaintiff whenever he waives an argument. Indeed, it held that the appellants abandoned or forfeited their Fifth and Fourteenth Amendment claims against the District by conceding them in the district court and failing to press them on appeal.
- Orin Kerr, Reader Poll on Tasing of OccupyDC Protester, Volokh Conspiracy (Jan. 30, 2012) (video of recent, unrelated incident involving U.S. Park Police)
- Orin Kerr, More on the OccupyDC Tasing Video, and Two Narratives of Police-Citizen Interaction, Volokh Conspiracy (Jan. 31, 2012) (“The equality narrative posits that the police are just citizens who happen to wear uniforms, and they have no more right to get their way than anyone else. . . . The inequality narrative posits that the police have special authority by virtue of being police officers, and that people interacting with the police have to recognize that special authority and should expect trouble if they don’t. . . . The video . . . presents a circumstance in which viewers can reasonably differ as to whether we should be in the equality-narrative zone or the inequality-narrative zone. . . . [D]ifferent viewers fill in the uncertainty by just picking a narrative.”)
- Rose Bouboushian, Cops Still Face Claims of Beating Kids at Parade, Courthouse News Service (Jan. 25, 2011).
- Orin Kerr, What’s the Status of the Mosaic Theory After Jones?, Volokh Conspiracy (Jan. 23, 2011) (“[T]he mosaic theory seems like a revolutionary new approach to Fourth Amendment law, and yet here 5 Justices seem ready to embrace it without even really recognizing how dramatic the change might be or what it might mean. Perhaps that means that the Justices see it as having some non-obvious limitation that makes it narrower than it might seem. Perhaps it only would apply to GPS devices or beepers, for example? Or perhaps the Justices just didn’t think too deeply about the issue and the complications it raises — perhaps because Scalia came forward with his new trespass test and any other theory would just be dicta? Either way, the biggest surprise of Jones is that the mosaic theory lives. And it may have five votes.”)