Loralee Vasquez and Charles Vasquez v. Lt. Charles Hernandez, Officers Robert Kierney, Jackie L. Dukes

CRABB, Chief District Judge,

dissenting.

The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens. Equality of treatment in this respect is not left to depend upon comity between the states, but is granted and protected by the Federal Constitution.

Chambers v. Baltimore & Ohio Railroad, 207 U.S. 142, 148 , 28 S.Ct. 34, 35 , 52 L.Ed. 143 (1907) (citations omitted). Because, in my judgment, plaintiffs have stated a ease for *330 conspiracy by state actors that deprived them of their right of access to the courts, I would reverse the district court’s grant of summary judgment.

To sustain a cause of action for conspiracy under § 1983, plaintiffs must show that a conspiracy existed and that it deprived them of rights protected by federal law. Bell v. City of Milwaukee, 746 F.2d 1205, 1254 (7th Cir.1984). The district court has conceded that there is sufficient evidence of a conspiracy to defeat defendants’ motion for summary judgment on this aspect of plaintiffs claim. (“Obviously, certain pieces of evidence point to a possible conspiracy” and given “the Seventh Circuit’s directives in allowing circumstantial evidence to paint the conspiratorial picture, we refrain from holding that no conspiracy existed.”) With the district court’s assumption that there was sufficient evidence of a conspiracy, the only question is whether the Vasquezes’ right of access to the courts was abridged by this conspiracy.

The Fourteenth Amendment entitles an individual to a fair opportunity to present a claim where that claim has a reasonable basis in fact or law. Bell, 746 F.2d at 1261 (citing Armstrong v. Manzo, 380 U.S. 545 , 85 S.Ct. 1187 , 14 L.Ed.2d 62 (1965) and Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731 , 103 S.Ct. 2161 , 76 L.Ed.2d 277 (1983)). A conspiracy to obstruct an individual’s legitimate efforts to seek judicial redress for such a claim interferes with the individual’s due process right of access to the courts. Bell, 746 F.2d at 1261 . Loralee Vasquez had a legitimate tort claim when she was shot in the ear. It follows that a police conspiracy to conceal the facts that form the basis of that claim hinders her from pursuing that claim and thus abridges her right of access to the courts with respect to that claim. The conspiracy in this case prevented Mrs. Vasquez from fully exercising her legal right to redress for at least four months. Before hints of a possible police cover up were revealed, her chose in action against members of the Cicero Police Department was rendered worthless by dint of the conspiracy. That defendants have interfered with plaintiffs’ right to access to the courts is evident.

The majority raises the valid concern that the length of the delay was minimal and casts the Vasquezes’ plight as insignificant compared to the decades-long cover up that prevented the Bell plaintiffs from bringing their suit. The majority’s view is that the four-month delay has not prevented the Vas-quezes from bringing suit well before the statute of limitations expired and, therefore, should be seen as a deprivation unworthy of constitutional protection. My principal difficulty with this approach is that it provides no guidance on how future courts or litigants might analyze threats to access to the courts posed by a conspiracy of state actors.

Rather than simply concluding that a situation does not compare favorably to Bell , or attempting to set temporal boundaries for determining whether a particular delay caused by a conspiracy of state actors passes constitutional muster, I believe that the analysis should encompass a variety of factors, including the length of the delay, the reason for the delay, and the prejudice caused by the delay. These considerations are among those employed in determining whether a defendant’s right to a speedy trial has been abridged, Doggett v. United States, 505 U.S. 647, 650-56 , 112 S.Ct. 2686, 2690-93 , 120 L.Ed.2d 520 (1992); Barker v. Wingo, 407 U.S. 514, 530 , 92 S.Ct. 2182, 2192 , 33 L.Ed.2d 101 (1972), or whether one’s due process right against oppressive pre-indictment delay has been violated. United States v. Lovasco, 431 U.S. 783, 789 , 97 S.Ct. 2044, 2048 , 52 L.Ed.2d 752 (1977) reh’g denied 434 U.S. 881 , 98 S.Ct. 242 , 54 L.Ed.2d 164 (1977); United States v. Canoy, 38 F.3d 893, 901-02 (7th Cir.1994) (two-pronged inquiry into pre-in-dictment delay: prejudice and reason for delay).

The analogy between speedy trial or pre-indictment delay analysis and that of the right to access to the courts is not perfect: the concern for protecting a defendant facing incarceration is not present in a civil claim. Still, the comparison is a good one: both situations involve state action that can cause delay in having one’s case heard in a timely fashion to the potential prejudice of one’s rights. Indeed, in United States v. Eight Thousand Eight Hundred & Fifty Dollars, *331 461 U.S. 555, 562-64 , 103 S.Ct. 2005, 2010-12 , 76 L.Ed.2d 143 (1983), the Supreme Court deemed the Barker speedy trial analysis analogous to the question whether the government’s delay in filing a civil forfeiture proceeding violated an individual’s due process right to a hearing in a timely fashion. In the present case, there is a close relationship among the causes and effects of the length of the delay, the reasons for the delay, and prejudice.

An examination of the length of the delay reveals that it is sufficient to show significant harm to the plaintiffs. Length of delay is something of a “triggering mechanism” in speedy trial analysis, Barker, 407 U.S. at 530 , 92 S.Ct. at 2192 , and germane to an access to the courts inquiry as well. Although delay itself is not tantamount to prejudice, Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 391 (7th Cir.1995), it may raise a presumption of prejudice. Barker, 407 U.S. at 530 , 92 S.Ct. at 2192 . Delay need not be extraordinarily long in order to find a constitutional violation:

In applying the Barker balancing test ... [Ijittle can be said on when a delay becomes presumptively improper, for the determination necessarily depends on the facts of the particular ease. Our inquiry is the constitutional one of due process: we are not establishing a statute of limitations. Obviously, short delays — of perhaps a month or so — need less justification than longer delays.

Eight Thousand Eight Hundred & Fifty Dollars, 461 U.S. at 565, 103 S.Ct. at 2012 (emphasis added).

In concluding that the Vasquezes have not been deprived of the right to access to the courts the majority appears to rely on the fact that they were not totally prevented from pursuing a tort action in state court. This reasoning contradicts this court’s earlier pronouncements that in order to deny access to the courts, one “need not literally bar the courthouse door or attack plaintiffs’ witnesses.” Bell, 746 F.2d at 1261 . The majority acknowledges that where police officers “shield from the public and the victim’s family key facts which would form the basis of ... claims for redress,” the constitutional right of access to the courts is clearly abridged. Bell, 746 F.2d at 1261 . To require total loss of a cause of action “would encourage police officials to conceal the circumstances related to unlawful [acts] committed under the color of state law and other deprivations of federal rights which Section 1983 was designed to remedy.” Id. For example, if it were necessary to allege a total loss of a cause of action in order to state a claim of denial of access to the courts, then, in theory, no constitutional violation would result even if the police concealed evidence of a crime until the day before the applicable statute of limitations ran. Such a proposition is unacceptable.

In Bell , this court cited approvingly a similar ease from the Fifth Circuit, Ryland v. Shapiro, 708 F.2d 967 (5th Cir.1983), in which plaintiffs alleged that their daughter had been killed by a local official and that two other officials conspired to hinder police investigation and to cover up facts about the death for nearly a year. Bell, 746 F.2d at 1260-61 . Ryland does not rely on loss of a cause of action for its finding of harm to the plaintiffs. Rather, the court found constitutional harm in the delay in the prosecution of an action caused by the actions of state officers.

Delay haunts the administration of justice. It postpones the rectification of wrong and the vindication of the unjustly accused. It crowds the dockets of the courts, increasing the costs for all litigants, pressuring judges to take short cuts, interfering with the prompt and deliberate disposition of those causes in which all parties are diligent and prepared for trial, and overhanging the entire process with the pall of disorganization and insolubility. But even these are not the worst of what delay does. The most erratic gear in the justice machinery is at the place of factfinding, and possibilities for error multiply rapidly as time elapses between the original facts and its judicial determination.

Ryland, 708 F.2d at 974 (quoting Rheuark v. Shaw, 628 F.2d 297, 303-04 (5th Cir.1980)). Unlike the twenty-year delay following the initial crime in Bell , the cover-up in Ryland lasted approximately eleven months. Id. at *332 969 . Although this delay was longer than the one at bar, the case illustrates that a finding of constitutional harm does not require a total loss of a cause of action as a consequence of the running of statutes of limitations or a decades-long delay. We cannot assume that a four-month delay in bringing a cause of action in this case would not have resulted in “stale evidence and the fading of material facts in the minds of potential witnesses.” Id. at 975 .

The second consideration, reasons for the delay, argues for finding constitutional injury in this case. In speedy trial analysis, deliberate delay by the government weighs heavily in favor of finding breach of the constitutional right. Barker, 407 U.S. at 531 , 92 S.Ct. at 2192 . Similarly, in pre-indictment delay cases, deliberate delay may impute a violation of due process even if the indictment is brought within the limitations period. United States v. Gouveia, 467 U.S. 180, 192 , 104 S.Ct. 2292, 2299-300 , (1984) (citing Lovasco, 431 U.S. at 789-90 , 97 S.Ct. at 2048-49 ). I see no reason to alter this analysis when examining interference with access to the courts caused by a conspiracy of state actors. The reason for delay in this particular case could hardly be more egregious. The very nature of a conspiracy makes it difficult for parties from whom evidence or other information is being withheld to determine the extent of their harm. When state actors seek to protect one or more of their own by concealing evidence, hindering investigation or failing to cooperate with the judicial process, it is all the more difficult to discern the full extent of the victim’s deprivation. Where, as here, there is evidence of a conspiracy to intentionally impede justice, the showing of prejudice required should be minimal.

The third consideration lies in prejudice to the plaintiffs. The district court made no specific findings on the matter of prejudice. This is unfortunate. I believe that very little prejudice would be necessary in order to state a claim of improper interference with the right of access to the courts where there are credible allegations of a deliberate coverup by government officials. See Hessel v. O’Hearn, 977 F.2d 299, 303-04 (7th Cir.1992) (doctrines such as de minimis non curat lex may be relevant to due process inquiry, but have little if any application to deliberate wrongs). Although the lower court implied that prejudice has been minimized by the FBI’s actions, the majority has relied on the fact that, despite the conspiracy, plaintiffs were still able to bring claims against the defendants. As I stated earlier, this is an unsatisfying ground upon which to base a finding of no constitutional harm.

I find disturbing the majority’s implication that the efforts of the FBI have blunted the effects of the insidious actions of the police to the point of rendering them harmless. I do agree with the majority’s general sentiment that in all likelihood the harm done to the Vasquezes as a result of the conspiracy has been mitigated in part by the serendipitous investigation by the FBI. Nevertheless, the FBI’s actions do not absolve the defendants of their egregious behavior or the subsequent cover-up. Although it seems certain that the FBI report on the incident put the Vas-quezes in a better position than they would have been after months of an undisclosed police cover-up without such a report, it is not a forgone conclusion that the Vasquezes are better off than they would have been if the police had acted appropriately from the very beginning. Memories fade with time. Witnesses may have responded differently to investigators hired by the Vasquezes shortly after the shooting than they did in the FBI interviews months later. It is possible also that witnesses available soon after the incident became unavailable by the time the FBI arrived on the scene.

Although the amount of harm suffered by the Vasquezes is difficult to determine at this stage, they have suffered some harm from delay alone. If the bullet that struck Mrs. Vasquez did come from the Super Bowl party and the investigation was hindered by the actions of the police, then Mrs. Vasquez’s tort claim was rendered useless for months at least in part because of defendants’ actions. Improperly denying her information that would have allowed for earlier legal action amounts to harm. This harm is in addition to that possibly suffered as a result of those investigatory burdens discussed earlier and the lack of information plaintiffs still *333 suffer because of the defendants’ continuing conspiracy of silence.

Finally, one of the fundamental purposes of § 1983 is deterrence.

Title 42 U.S.C. § 1983 provides a cause of action against “[e]very person who, under color of any statute ... of any State ... subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws....” The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.

Wyatt v. Cole, 504 U.S. 158, 161 , 112 S.Ct. 1827, 1830 , 118 L.Ed.2d 504 (1992) (citing Carey v. Piphus, 435 U.S. 247, 254-257 , 98 S.Ct. 1042, 1047-49 , 55 L.Ed.2d 252 (1978)); Graham v. Sauk Prairie Police Comm’n, 915 F.2d 1085 , 1104 (7th Cir.1990) (“Section 1983 damages are considered to be appropriate as long as those damages generally effectuate the policies underlying § 1983.”). Allowing the actions of the federal government to negate the iniquitous behavior of state actors frustrates this deterrent purpose. Even if the harm done to plaintiffs is small, as the majority suggests, the goals of § 1983 urge availability of damages.

Because I believe that the trial court has not properly weighed the interrelated factors of the length of the delay, the reasons for the delay, and resulting prejudice to the plaintiffs, I would remand this case for further findings. Because I find that the Vasquezes’ right to access to the courts has been impaired and because allowing the fortuitous actions of an outside entity to absolve the wrongdoer would frustrate the deterrent purposes of § 1983, I respectfully dissent.