# 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/9488831 ## 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 Nelson - **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/9488831 ## 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 DAVID A. NELSON, Circuit Judge, concurring in part and dissenting in part. I do not question the validity of the general principles set forth in the majority opinion, and I agree with the majority’s application of those principles to defendant Lanier’s misdemeanor convictions. It does not seem to me that the women who were on the receiving end, of the various “touchings” and “grab-bings” described in the pertinent misdemean- or counts of the indictment were deprived of their “liberty” in the sense in which that term is used in the Fourteenth Amendment. *1398 Whether or not the oafish behavior described in these misdemeanor counts was enough to shock the conscience, therefore, I do not believe that such behavior was criminalized by 18 U.S.C. § 242 . 1 I question, moreover, whether the jury could properly have found all of the touchings and grabbings in question to have been engaged in “under color of any law....” The acts that the jury found to be felonious, however, could well be found to have been committed under color of law, in my view — and the victim of those acts was so clearly deprived of her liberty, as I see it, that the applicability of the statute strikes me as self-evident. 2 The theory of the felony counts was that the defendant willfully — and repeatedly — used the powers of his judicial office to coerce a woman named Vivian Archie into fellating him on pain of losing her child. Mrs. Archie was physically restrained throughout these assaults, according to her testimony, and she was afraid to scream for help because of the defendant’s implied threats to deprive her of the custody of her little girl. The jury evidently thought that Mrs. Archie was telling the truth — and if the jury was right in this, it is hard for me to imagine a more clear-cut deprivation of liberty. We need not rely on emanations from the penumbras of Planned Parenthood v. Casey, 505 U.S. 833 , 112 S.Ct. 2791 , 120 L.Ed.2d 674 (1992), to reach the conclusion that Mrs. Archie was willfully deprived of a constitutional right — and I confess myself somewhat mystified by the majority’s insistence that the right in question was a “newly-created” one. From the day it was adopted in 1868, the Fourteenth Amendment has prohibited the states from depriving any person of liberty without due process of law. Section 242 has long put the literate public on notice that any willful violation of this prohibition, if committed under color of law, is a crime. There is nothing ambiguous, abstract, or unclear about the statute in this respect, and at no point during the course of his trial did it occur to the defendant to claim otherwise. If the jury got its facts right, Vivian Archie was literally (and humiliatingly) deprived of her liberty while locked in the defendant’s foul embraces. We must take it as given that Mrs. Archie was restrained not only by the defendant’s hands on her throat, but by the defendant’s none-too-subtle suggestion that her daughter would be taken away from her if she resisted. On these facts, I simply cannot believe that the statesmen who framed the Fourteenth Amendment, or the Congress that enacted Section 242 in 1874, would have had any doubt that the defendant’s conduct was unconstitutional. Although it was not a constitutional case, Union Pacific Ry. Co. v. Botsford, 141 U.S. 250 , 11 S.Ct. 1000 , 35 L.Ed. 734 (1891), may serve to remind us of the sensibilities of the age in which the provisions at issue here were adopted. The plaintiff in Botsford was *1399 a woman who claimed to have been injured in an accident aboard a railway ear. The defendant railway company moved for a court order requiring the plaintiff to submit to a surgical examination — to be conducted, the defendant was at pains to explain, “in [a] manner not to expose the person of the plaintiff in any indelicate manner-” Upholding a refusal by the trial court to order the examination, absent any statute authorizing it, the Supreme Court observed that: “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Id. at 251 , 11 S.Ct. at 1001 . Vivian Archie, as the jury concluded in the ease at bar, was deprived of the possession and control of her own person, and was subjected to the vilest sort of restraint and interference. Surely the Botsford court — a court that considered it “an indignity, an assault, and a trespass” for anyone, “especially a woman,” to be compelled “to lay bare the body, or to submit it to the touch of a stranger,” id. at 252 , 11 S.Ct. at 1001 — would have had some difficulty with the conclusion that a woman used in the way that the defendant apparently used Mrs. Archie was not deprived of her liberty. It is true that the Supreme Court has not had occasion to decide explicitly whether Section 242 criminalizes a deprivation of liberty resulting from lust, but this does not suggest to me that lower courts are somehow es-topped to apply Section 242 in this context. It would be passing strange, I think, if judges could acquire by prescription a right to make sex slaves of litigants or prospective litigants. And if the majority opinion is correct in the conclusion it draws from the absence of direct Supreme Court precedent, I am not sure that I understand how such a question could ever reach the Supreme Court in the first place. It is also true that in recent years other public officials and employees may have engaged in deviant behavior similar to the defendant’s without having been prosecuted. I do not recall any such person having been accused of forcing a woman to choose between her virtue and her child. But if other public officials have escaped prosecution for using the power of public office to subjugate women in the way defendant Lanier is supposed to have done, I question whether it follows that the prosecution of defendant La-nier was improper. Perhaps the impropriety lies in the failure to prosecute the others. It might well have been preferable for defendant Lanier to be prosecuted in a state court. For reasons to which Judge Wellford has alluded, however, that was probably not likely to happen. In any event, ineffectiveness of state criminal process is no more an element of the federal offense with which the defendant was charged than ineffectiveness of state drug laws is an element of a federal drug case. I certainly do not fault the decision of the United States Attorney to present this ease to a federal grand jury, and I know of absolutely nothing to suggest that the defendant was a victim of “selective” prosecution. Concurring in the reversal of the misdemeanor convictions, and dissenting from the reversal of the felony convictions, I join in the opinions of Judges Wellford and Daugh-trey insofar as those opinions are consistent with the views I have stated. . The Supreme Court has rejected the “shock the conscience” test for excessive use of force by the police, Graham v. Connor, 490 U.S. 386 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989), and Graham left it uncertain to what extent, if at all, this fuzzy test may be applicable in other contexts. See Braley v. City of Pontiac, 906 F.2d 220, 226 (6th Cir.1990). But see also Collins v. City of Harker Heights, Texas, 503 U.S. 115 , 112 S.Ct. 1061 , 117 L.Ed.2d 261 (1992), where the Court seemed to assume some continuing role for the test. With regard to n. 8 of the majority opinion, it is not the legislative labeling of the touchings and grabbings as misdemeanors that leads me to agree that they are not constitutional crimes under § 242. The touchings and grabbings are not constitutional crimes, in my view, because they do not clearly entail a deprivation of liberty. . One reading the statute without benefit of any judicial gloss might not think it self-evident that Section 242 criminalizes deprivations of constitutional rights regardless of motive, as opposed to criminalizing deprivations committed on account of the victim’s "being an alien, or by reason of his color, or race....” In United States v. Classic, 313 U.S. 299, 326-29 , 61 S.Ct. 1031, 1043-44 , 85 L.Ed. 1368 (1941), however, the Supreme Court squarely held that the quoted qualification applies only to the imposition of "different punishments, pains, or penalties," and does not apply to deprivations of constitutional rights generally. Under Classic , and under Screws v. United States, 325 U.S. 91 , 65 S.Ct. 1031 , 89 L.Ed. 1495 (1945), the rule seems to be that deprivation of any express constitutional right — including, of course, the right not to be deprived of life, liberty or property without due process of law — is criminalized by Section 242 if "willfully inflicted by those acting under color of any law, statute and the like.” Classic, 313 U.S. at 329 , 61 S.Ct. at 1044 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9488831. Public record. Not legal advice.