# United States v. David W. Lanier

> Court of Appeals for the Sixth Circuit · January 23, 1996 · 73 F.3d 1380

URL: https://www.frixlaw.com/law-library/cases/9488830

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. David W. LANIER, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 23, 1996
- **Citations:** 73 F.3d 1380; 1996 U.S. App. LEXIS 757; 1996 WL 21177
- **Precedential status:** Published
- **Opinion:** Concurring in part by Wellford
- **Judges:** Merritt, Keith, Kennedy, Martin, Jones, Wellford, Nelson, Ryan, Boggs, Norris, Suhrheinrich, Siler, Batchelder, Daughtrey, Moore
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by United States v. Lanier, 520 U.S. 259 (1997).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9488830

## How later opinions describe it (automated extraction)

- concluding that “sexual assaults may not be prosecuted as violations of a constitutional substantive due process right to bodily integrity” under 18 U.S.C. § 242

## Opinion text

WELLFORD, Circuit Judge,
concurring in part and dissenting in part.
To the extent that the majority has set aside the convictions of this state judge on five misdemeanor counts for sexual assault, without any resulting serious bodily injury to the victims, I concur in the result reached, although I do not agree with the majority decisions’s rationale. I do so in order that 18 U.S.C. § 242 , a venerable criminal statute that was originally designed to protect the rights of those recently freed from the bonds of slavery, not be trivialized. It is simply better to recognize that immoral, abusive conduct of a state judge should not be prose-euted in federal court if that deplorable conduct amounts to nothing beyond a state misdemeanor offense.
I dissent from the reversal of the convictions for the two felony offenses that I believe fall within the spirit and the meaning of 18 U.S.C. § 242 . I agree with and adopt the separate dissenting opinion of Judge Daugh-trey in this regard. I recognize that this is a difficult case, the first of its kind in our court (fortunately), and perhaps the first of this type against a state judge in any federal court. Further, I do not concur in the majority’s condemnation of the prosecution for bringing the charges against a defendant who possessed great political and judicial power in his community and who abused that power shamelessly against those who came within the grasp of his authority.
The fundamental question in this case is whether gross abuse of state authority and state law (and custom) by a state actor amounts to deprivation of rights protected by the Constitution and laws of the United States. This defendant and his family have occupied positions of power and political authority in Dyersburg, Dyer County, Tennessee, for several generations. It was clear that Judge David W. Lanier was not going to be called into account for his misdeeds and judicial misconduct by local or county officeholders who had been beholden to the longstanding sway of the Lanier dynasty. The bringing of this indictment and the pursuit of a trial against Lanier was not, however, a political maneuver, nor was it an effort to impose federal will and law upon an opponent. It was not in any sense a “useful political weapon,” but it was instituted to set a new precedent if Lanier were to be prosecuted at all.
*1395 The felony offenses, of which David Lanier was determined to be guilty by a court and jury, was expressly found to be shocking to the conscience of the court. As stated by the majority, the two felony counts charged “coercive sexual acts,” which were found to be deprivations of liberty without due process of law by willful conduct of the defendant “using his official position as a [state] Chancellor.”
The Supreme Court in Screws v. United States, 325 U.S. 91 , 65 S.Ct. 1031 , 89 L.Ed. 1495 (1945), as was rather grudgingly conceded by the majority, did uphold the constitutionality of 18 U.S.C. § 242 in the face of a challenge similar in many respects to that expressed by the majority and by the defendant himself. The objections expressed by Chief Judge Merritt are essentially that this statute was “too indefinite and too vague to meet due process standards.” The crime in Screws involved a major state felony offense which deprived the victim under color of law “of certain constitutional rights guaranteed to him.” Screws, 325 U.S. at 94 , 65 S.Ct. at 1032 . The defendant in Screws claimed, as does Lanier, that there was no noticed, determinable “standard of guilt” set out in 18 U.S.C. § 242 . Id. at 95 , 65 S.Ct. at 1032 .
Quoting Betts v. Brady, 316 U.S. 455, 462 , 62 S.Ct. 1252, 1256 , 86 L.Ed. 1595 (1942), however, the Court in Screws upheld a then novel application of § 242:
The phrase [due process] formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights. Its application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.
Id. (emphasis added).
In upholding the constitutionality of the Act, the Court concluded:
We hesitate to say that when Congress sought to enforce the Fourteenth Amendment in this fashion it did a vain thing. We hesitate to conclude that for 80 years this effort of Congress, renewed several times, to protect the important rights of the individual guaranteed by the Fourteenth Amendment has been an idle gesture. Yet if the Act falls by reason of vagueness so far as due process of law is concerned, there would seem to be a similar lack of specificity when the privileges and immunities clause (Madden v. Kentucky, 309 U.S. 83 [ 60 S.Ct. 406 , 84 L.Ed. 590 ]) and the equal protection clause (Smith v. Texas, 311 U.S. 128 [ 61 S.Ct. 164 , 85 L.Ed. 84 ]) of the Fourteenth Amendment are involved.
We do say that a requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconstitutionality on the grounds of vagueness.
Id. at 100, 103, 65 S.Ct. at 1035, 1036 (footnote omitted).
In addition, Screws established the principle that a defendant charged with a violation of § 242 is not saved or excused by any claim that, when, doing the assaultive acts, was not “thinking in constitutional terms;” when, however, his “aim was ... to deprive a citizen of a right ... protected by the Constitution.” Id. at 106, 65 S.Ct. at 1037-38 . The emphasis in Screws , as in United States v. Classic, 313 U.S. 299 , 61 S.Ct. 1031 , 85 L.Ed. 1368 (1941), and in this case, was upon the misuse of official state powers to the injury of a citizen who was subject to the officer’s authority or control. Justice Rutledge described the criminal action as a “gross abuse of authority.” Screws, 325 U.S. at 113 , 65 S.Ct. at 1041 (concurring opinion). 1 He further observed in note 5 that “[i]t does not appear that the state has taken any steps toward prosecution for violation of its law.” *1396 Neither has Tennessee prosecuted Lanier in the instant case. 2
As noted by Justice Rutledge in Screws, Classic analyzed a number of cases which “sustained [the statute] in application to a vast range of rights secured by the Constitution.” Id. at 121-22 , 65 S.Ct. at 1045 . Justice Rutledge also answered another objection made in this case: “the generality of the section’s terms simply has not worked out to be a hazard of constitutional, or even serious, proportions.... Generally state officials know something of the individual’s basic legal rights. If they do not, they should.” Id. at 128, 129 , 65 S.Ct. at 1048, 1049 .
Our court has recently recognized:
“[0]nce a due process right has been defined and made specific by court decisions, that right is encompassed by § 242.” United States v. Stokes, 506 F.2d 771, 774-75 (5th Cir.1975) (citing Screws). Courts have applied § 242 to punish police officers who have abused their authority under “color of law.”
United States v. Epley, 52 F.3d 571, 576 (6th Cir.1995). In Epley , the constitutional right at issue was “[the] right to be free from ‘seizure’ without probable cause.” Id. In my view, the right to be free of sexual assault is akin to the constitutional right recognized in Epley . In addition, other courts have recognized that “the Supreme Court seldom voids federal statutes on vagueness grounds.” Columbia Natural Resources v. Tatum, 58 F.3d 1101 , 1108 (6th Cir.1995). The Tatum court inferred that the court would set aside a federal statue, such as § 242, only if “no standard of conduct is specified at all.” Id. (quoting United States v. Angiulo, 897 F.2d 1169, 1179 (1st Cir.), cert. denied, 498 U.S. 845 , 111 S.Ct. 130 , 112 L.Ed.2d 98 (1990)). That Congress might “have chosen ‘clearer and more precise language’ ” in § 242 is not sufficient to make out a vagueness challenge. See United States v. Powell, 423 U.S. 87, 94 , 96 S.Ct. 316, 321 , 46 L.Ed.2d 228 (1975) (quoting United States v. Petrillo, 332 U.S. 1 , 67 S.Ct. 1538 , 91 L.Ed. 1877 (1947).
The Supreme Court has recognized that persons, especially females, have a constitutional right to bodily integrity. Planned Parenthood v. Casey, 505 U.S. 833 , 112 S.Ct. 2791 , 120 L.Ed.2d 674 (1992); see also Ingraham v. Wright, 430 U.S. 651 , 97 S.Ct. 1401 , 51 L.Ed.2d 711 (1977). Such a right from physical and sexual assault under 42 U.S.C. § 1983 was recognized in Doe v. Taylor Independent School Dist., 15 F.3d 443 (5th Cir.) (en banc), cert. denied sub nom., — U.S. -, 115 S.Ct. 70 , 130 L.Ed.2d 25 (1994).
If the Constitution protects a schoolchild against being tied to a chair or against arbitrary paddlings, then surely the Constitution protects a schoolchild from physical abuse — here, sexually fondling a 15-year old school girl and statutory rape.... It is uncontrovertible that bodily integrity is necessarily violated when a state actor sexually abuses a schoolchild and that such misconduct deprives that child of rights vouchsafed by the Fourteenth Amendment.
Id. at 451.
Other federal cases have enforced 18 U.S.C. § 242 in the context of state officers sexually assaulting or abusing their authority to demand sexual favors. See United States v. Contreras, 950 F.2d 232 (5th Cir.1991), cert. denied, 504 U.S. 941 , 112 S.Ct. 2276 , 119 L.Ed.2d 202 (1992) (affirming conviction of police officer under 18 U.S.C. § 242 for sexually assaulting illegal immigrant in patrol car and attempting to kill her to prevent her from testifying); United States v. Davila, 704 F.2d 749 (5th Cir.1983) (affirming conviction of border patrols under 18 U.S.C. § 242 for depriving illegal aliens of their liberty by coercing sexual favors from them). Many other cases have involved charges brought against state officials for physical assaults and other types of misuse of their power and authority. See United States v. Brummett, 786 F.2d 720 (6th Cir.1986) (affirming conviction of jail officials under 18 U.S.C. § 242 for having inmates beat another prisoner); United States v. Dise, 763 F.2d 586 (3d Cir.) *1397 (affirming conviction of mental health worker under 18 U.S.C. § 242 for beating psychiatric patients), cert. denied, 474 U.S. 982 , 106 S.Ct. 388 , 88 L.Ed.2d 341 (1985); United States v. Stokes, 506 F.2d 771 (5th Cir.1975) (police officer convicted under 18 U.S.C. § 242 for beating prisoner); United States v. Occhipinti, 772 F.Supp. 170 (S.D.N.Y.1991), aff'd, 969 F.2d 1042 (2d Cir.1992) (INS officer convicted under 18 U.S.C. § 242 for violating suspect’s rights to be free from unlawful search and seizure). 3
The district judge in this case instructed the jury that to convict the defendant the jurors had to find him guilty of physically abusive and unconstitutional conduct “of a serious and substantial nature” involving “physical force, mental coercion, bodily injury or emotional damage which is shocking to one’s conscience.” These were serious charges, far beyond mere sexual harassment or employment discrimination. Despite the fact that this prosecution was a first, and the substantial reservations that I share about expansion or intrusion of federal authority, I would affirm Lanier’s felony convictions under all the circumstances.
I would also find Lanier’s actions here to constitute an official abuse of power under color of state law, not mere personal pursuits as he has claimed. In this respect, I quote from Judge Milbum’s earlier opinion (now vacated) discussing this aspect of the case:
Defendant argues that his actions in this case were personal pursuits. However, the jury correctly concluded that defendant’s actions in this case were taken under color of state law. First, all of the assaults took place in defendant’s chambers during working hours, and during each assault there was at least an aura of official authority and power. Three of the victims, Sandy Sanders, Patty Mahoney, and Sandy Attaway, were present in defendant’s chambers because they were working for him. On the first occasion Vivian Archie was assaulted, she had gone to defendant’s chambers to apply for a secretarial position. On the second occasion Archie was assaulted, defendant used his continuing authority to determine custody of her child to coerce her into returning to his office. Finally, Fonda Bandy was assaulted while she was present in defendant’s chambers to make a presentation about her parenting classes for juvenile offenders.
Further, there was evidence that defendant used his position to intimidate his victims into silence. Prior to the first assault, defendant told Archie that her father wanted to know how he could go about seeking custody of her child. Defendant was also able to coerce Archie back into his office a second time because he knew she needed a job in order to ensure that she would keep custody of her child.
Furthermore, we wish to emphasize that his case involves much more than a defendant who is a mere public official. Rather, this case involves a state judge who committed various abhorrent and unlawful sexual acts in his chambers, oftentimes while wearing his judicial robe. We consider such egregious misconduct on the part of defendant to be shocking to the conscience of the court.
United States v. Lanier, 33 F.3d 639, 653 (6th Cir.1994), vacated, 43 F.3d 1033 (1995).
Accordingly, I DISSENT from the majority’s reversal of the felony convictions in this case.
. The majority discusses, and disagrees with, the decision in Screws by its “interpretation” that it “diverges ... from ... well established canons of criminal law.” There is no discussion, however, of Classic , cited as precedential authority in Screws .
. In footnote 12, the majority assumes that state and local officials were cooperating in the federal prosecution. There is no question but that neither has taken any steps to prosecute Lanier on any basis during the six years since some of his offenses occurred in Dyer County, Tennessee.
. I recognize that the absence of custody in the instant case makes it distinguishable from the above-cited § 242 criminal proceedings.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9488830. Public record. Not legal advice.