# Appendix — United States v. Lanier

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 259

## Text

— | Supreme Court, U.S. |
Ob-1LT1¢e FILED

APR 22 1996

In the Supreme Court of the Gn

OCTOBER TERM, 1995

UNITED STATES OF AMERICA, PETITIONER

DAVID W. LANIER

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT N

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI

Drew S. Days, III
Solicitor General
DEVAL L. PATRICK
Assistant Attorney General
PAUL BENDER
Deputy Solicitor General
PAUL R.Q. WOLFSON
Assistant to the Solicitor
General
JESSICA DUNSAY SILVER
THOMAS E. CHANDLER
Attorneys
Department of Justice
Washington, D.C. 20530

(202) 514-2217

TABLE OF CONTENTS

Appendix A (court of appeals opinion dated Jan. 23,

Appendix B (court of appeals’ opinion dated Aug. 19,
1994)

Appendix C (district court’s order on pending
motions dated Oct. 30, 1992)

Appendix D (district court’s judgment dated Apr. 19,
1993)

Appendix E (court of appeals’ order dated Jan. 4,
1995)

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 93-5608
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
*.

Davip W. LANIER, DEFENDANT-APPELLANT

Filed: Jan. 23, 1996

Before: Merritt, Chief Judge; Kirn, KENNEDY,

MARTIN, JONES, WELLFORD, NELSON, RYAN, Bodds,
NORRIS, SUHRHEINRICH, SILER, BATCHELDER,
DAUGHTRY, and Moore, Circuit Judges.
Merritt, C.J., delivered the opinion of the Court for
nine judges, in which KENNEDY, MARTIN, BoGGs,
NORRIS, SUHRHEINRICH, and SILER, JJ., concurred in
full and in which RYAN and BATCHELDER, II.,
concurred in Parts I and III. WELLFORD (pp. 1394-1397
[33a-41a]), and NELSON (pp. 1397-1399 [42a-46a]), JJ.,
delivered separate opinions concurring in part and
dissenting in part, with Judge WELLFORD also
concurring in Judge NELSON’s opinion. KEITH (pp.
1399-1400 [47a-49a]), JONES (pp. 1400-1403 [50a-56a)),
and DAUGHTREY (pp. 1403-1414 [57a-86a]), II.,
delivered separate dissenting opinions, with Judges
KEITH and MoorE concurring in Judge DAUGHTREY’S
dissenting opinion.

MERRITT, Chief Judge.

(la)

2a

I. The Question Presented

This is a direct criminal appeal by a convicted
Tennessee state judge. He raises a question of inter-
pretation about 18 U.S.C. § 242, perhaps the most
abstractly worded statute among the more than 700
crimes in the federal criminal code. Section 242 was
adopted as a codification of prior law in 1874 during
the period of Reconstruction in the aftermath of the
Civil War. It criminalizes without any further defin-
ition the willful “deprivation of any rights
protected by the Constitution” committed by any
person under “color of any law.“ That is the broad

' The evolution of the language of the statute is as follows.
In 1874, the crime read:

SEC. 5577. Every person who, under color of any law,
statute, ordinance, regulation, or custom, subjects, or
causes to be subjected, any inhabitant of any State or
Territory to the deprivation of any rights, privileges, or
immunities, secured or protected by the Constitution and
laws of the United States, or to different punishments,
pains, or penalties, on account of such inhabitant being an
alien, or by reason of his color or race, than are prescribed
for the punishment of citizens, shall be punished by a fine
of not more than $1,000, or by imprisonment not more
than one year, or by both.

2 Cong.Rec. 828 (1874).

In 1909, it was amended to add the requirement of
wilfulness. 43 Cong.Rec. 3599 (1909). In 1988, it was amended
so that the penalty provision would contain: “and if bodily
injury results shall be fined under this title or imprisoned not
more than ten years, or both.” 102 Stat. 4396 (1988).

In 1994, after the indictment was returned in this case, § 242
(along with many other criminal statutes) was amended to add
the death penalty and other enhanced penalty provisions. The
statute now reads as foliows (with the new part underlined):

3a

language we must interpret. The specific question
before us is whether the sexual harassment and
assault of state judicial employees and litigants by
the judge violates this federal criminal statute. The
statute, as applied in this case, does not specifically
mention or contemplate sex crimes, and including
sexual misconduct within its coverage stretches its
meaning beyond its original purpose. Thus, the
fundamental question before us is whether the
statute—tied by its language simply to “consti-
tutional rights“ should receive a fixed definition of
criminal liability or should be interpreted as evolving
or expanding over time to include the abridgement of

Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects any person in
any State, Territory, or District to the deprivation of any
rights, privileges, or immunities secured or protected by
the Constitution or laws of the United States, or to dif-
ferent punishments, pains, or penalties, on account of such
person being an alien, or by reason of his color, or race,
than are prescribed for the punishment of citizens, shall be
fined under this title or imprisoned not more than one
year, or both; and if bodily injury results from the acts
committed in violation of this section or if such acts
include the use, attempted use, or threatened use of a
dangerous weapon, explosives, or fire, shall be fined under
this title or imprisoned for not more than ten years, or
both; and if death results from the acts committed in
violation of this section or if such acts include kidnapping
or an attempt to kidnap, aggravated serual abuse, or
an attempt to commit aggravated sexual abuse, or an
attempt to kill, shall be fined under this title, or im-
prisoned for any term of years or for life, or both, or may
be sentenced to death.

18 U.S. C. A. § 242 (West 1969 & 1995 Supp.), 108 Stat. 1970-71,
2109, 2113, 2147 (1994).

da

new constitutional rights as they are recognized in
our civil constitutional law. The courts have devel-
oped theories or ingredients of constitutional viola-
tions primarily in the civil context, and there is no
developed law of constitutional crimes. Section 242 by
its terms criminalizes violations of “constitutional
rights” only in the abstract, not conduct which is
described specifically by federal or state statute. The
problem here is to articulate as nearly as possible a
theory of constitutional crimes consistent both with
constitutional rights declared in civil cases and also
consistent with established canons of statutory
construction of federal criminal laws.

In Screws v. United States, the Supreme Court
upheld the constitutionality of § 242 by one vote, with
the majority unable to agree on a single rationale. 325
U.S. 91 (1945). In a five-four decision, the Court nar-
rowly rejected arguments, accepted by the dissenters,
that the statute is too indefinite and vague to meet
due process standards. These standards require fed-
eral criminal statutes to be written with sufficient
definiteness to give notice of the criminal conduct for
which a person may be punished in federal court.

In a long line of cases before and after the Screws
case, the Supreme Court has sought to apply a fun-
damental principle limiting the judicial power
to extend criminal statutes by interpretation, a
long-standing principle articulated in 1820 by Chief
Justice John Marshall for a unanimous Court:

The rule that penal laws are to be construed
strictly, is perhaps not much less old than con-
struction itself... It is the legislature, not the
court, which is to define a crime, and ordain its
punishment .... It would be dangerous, indeed, to

5a

carry the principle, that a case which is within
the reason or mischief of a statute is within its
provisions, so far as to punish a crime not
enumerated in the statute, because it is of equal
atrocity, or of kindred character, with those
which are enumerated.

United States v. Wiltberger, 18 U.S. 76, 93-94, 5
Wheat. 35, 43-44, 5 L.Ed. 37 (1820). This case stands
for a number of fundamental propositions that form
the basis of our criminal law, in addition to the prin-
ciple of strict construction. No matter how out-
rageous a defendant’s actions may be, he has to be
charged with the appropriate offense created by
federal law. Courts may not create or extend crim-
inal law by using a common-law process of interpre-
tation. If Congress has not been clear about the type
of conduct that it wishes to criminalize, courts should
not hold a defendant criminally liable by creating a
new federal crime.

More recently, Justice Thurgood Marshall ob-
served that reasons of federalism, as well as the
necessity of public notice and fair warning, underlie
this principle of interpretation:

[Unless Congress conveys its purpose clearly, it
will not be deemed to have significantly changed
the federal-state balance. Congress has tradition-
ally been reluctant to define as a federal crime
conduct readily denounced as criminal by the
States.

United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515,
523, 30 L.Ed.2d 488 (1971).

In this case, the defendant, a state Chancery Court
judge from a rural county in West Tennessee, was
indicted in eleven counts, three of which were felony

6a

counts. The three felony counts charged him with
instances of willfully “coercing” a woman “to engage
in sexual acts” with him which caused bodily injury
(counts 6, 7 and 10). Eight of the counts were misde-
meanor counts charging him with various types of
“willful sexual assault” by “touching,” “grabbing the
breasts and buttocks of” or “exposing his genitals to”
awoman. The three felony counts charging coercive
sexual acts involved two women, and the other eight
misdemeanor counts involved six other women. In
each count, the constitutional deprivation is described
in abstract terms as “the right not to be deprived of
liberty without due process of law” under the Four-
teenth Amendment. The government alleges that in
each instance the defendant acted “under color of law”
by using his official position as a Chancellor to
engage in the “willful sexual assault.”

The District Court overruled the defendant’s mo-
tion to dismiss the indictment for failure to state a
crime under § 242. Seeking to narrow the potential
reach of the statute in sex crime cases, it charged the
jury that “it is not ... every unjustified touching or
grabbing” that constitutes a constitutional violation,
only “physical abuse ... of a serious and substantial
nature... which is shocking to one’s conscious [sic}”
(emphasis added). The jury convicted the defendant of
two of the three felony counts and five of the eight
misdemeanor counts, for which the District Court
sentenced him to a total of twenty-five years im-
prisonment. He has appealed on numerous grounds,
including the failure of the District Court to dismiss
the indictment for failure to state a federal crime
under § 242.

After consideration of the legislative history of this
statute, the case law, the long established tradition of

7a

judicial restraint in the extension of criminal
statutes, and the lack of any notice to the public that
this ambiguous criminal statute includes simple or
sexual assault crimes within its coverage, we con-
clude that the sexual harassment and assault indict-
ment brought under § 242 should have been dismissed
by the District Court upon motion of the defendant.
Thus the conviction and sentence of the defendant is
reversed and the indictment dismissed.

In asserting that sexual assault is a constitutional
crime, the prosecution proposes that this substantive
due process, sexual assault offense be defined as
“interference with bodily integrity that shocks the
conscience of the court and the jury.“ The prose-
cution relies exclusively on this theory. It has
neither articulated nor proposed the recognition of a
gender-based crime for sexual assault involving dis-
crimination against or oppression of women in
violation of the Equal Protection Clause. Nor did the
prosecution allege in the indictment, or attempt to
prove as an element of the offense, that the state
criminal process in Tennessee was incapable of en-
forcing its own criminal statutes prohibiting sexual
assault, nor did the prosecution allege as an element
of the § 242 offense that state law enforcement
officials have laws, customs, policies or practices that
discriminate against or oppress women as a class.
There is no claim that state law enforcement officials
and state prosecutors, judges or jurors are any less
concerned about such crimes than their federal
counterparts. Therefore, our opinion addresses only
the substantive due process, “shock-the-conscience”
crime alleged by the prosecution, not a crime based on
equal protection, state-sanctioned abuse, or some
other legal theory.

8a

II. The Legislative History of § 242

Section 242 is an unusual statute, perhaps unique
in our legislative history. Scholars and judges
frequently question how much emphasis or reliance
one should attempt to put on “legislative intent”
derived from studying legislative history. Although
it is problematic to presume that any deliberative
assembly comprised of many legislators will have one
cohesive, coherent and decisive “intent” when it
passes such an ambiguous statute, or that judges will
be able to discern it, see Max Radin, Statutory Inter-
pretation, 43 HARV. L. REV. 863, 872 (1930), we
continue to find it useful to examine the legislative
history to confirm or exclude certain interpretations
of a statute like the one now before us.

Section 242 was adopted in 1874 as a part of a
codification of federal statutes. It attempted to merge
three previous sections that had been adopted as part
of the 1866 and 1870 Civil Rights Acts and the 1871
Ku Klux Act. In 1909, the Congress added the word
“willfully” to the statute. Those legislative acts cre-
ated the basic language of the statute.

It turns out that the broad language of the 1874
statute, and hence the present language of § 242,
arose as a result of a misunderstanding or a confusion
in codifying the 1866, 1870 and 1871 Acts. In 1870,
Congress commissioned a one-volume compilation of
all federal statutes because the sixteen disparate
volumes then in existence were too cumbersome. It
hired a codifier, Mr. Durant, to redraft and codify the
laws of the United States. He decided to fuse the
three statutes from 1866, 1870, and 1871 into one new
statute that became § 242. Although in codifying the
law he was charged with making no substantive

9a

changes, in fact, the one new statute that is now § 242
dramatically expanded criminal liability for civil
rights violations if given a literal interpretation and
created a new crime that had not previously existed.
Congress adopted the new compilation of laws
apparently without realizing that any substantive
change had been made or that a new, undelineated set
of evolving constitutional crimes might be implied
from the statute in the future.

On the floor of the House of Représentatives, Con-
gressman Lawrence read the three existing sections
from the three earlier Acts into the record to illus-
trate that the new statute Durant proposed, which
was to become § 242, changed nothing. But none of
the three previous statutes criminalized deprivations
of all constitutional rights made under color of law.
The 1866 statute—which at the time of enactment
was arguably unconstitutional because passed prior
to the adoption of the Fourteenth Amendment—
criminalized interference under color of law with
certain enumerated rights, most notably, contract
and property rights and equal protection of the laws.“

2 The Act read as follows:

That all persons born in the United States, and not subject to
any foreign power, excluding Indians not taxed, are hereby
declared to be citizens of the United States; and such citizens,
of every race or color, without regard to any previous con-
dition of slavery or involuntary servitude, except as a pun-
ishment for crime whereof the party shall have been duly
convicted, shall have the same right, in every State or Ter-
ritory in the United States, to make and enforce contracts, to
sue, be parties, and give evidence, to inherit, purchase, lease,
sell, hold, and convey real and personal property, and to full
and equal benefit of all laws and proceedings for the security of
the person and property, as is enjoyed by white citizens, and
shall be subject to like punishment, pains, and penalties, and to

10a

By 1870, the Fourteenth Amendment had been
adopted, and Congress in the 1870 Civil Rights Act
passed another statute under the authority of the new

— Amendment that performed the same basic function

as the 1866 Act.“ Finally, Congressman Lawrence

none other, any law, statute, ordinance, regulation, or custom,
to the contrary notwithstanding.

Sec. 2. And be it further enacted, That any person who, un-
der color of any law, statute, ordinance, regulation, or custom,
shall subject, or cause or be subjected, any inhabitant of any
State or Territory to the deprivation of any right secured or
protected by this act, or to different punishments, pains or
penalties on account of such person having at any time been
held in a condition of slavery or involuntary servitude, except
as a punishment for crime, whereof the party shall have been
duly convicted, or by reason of his color or race, than is
prescribed for the punishment of white persons, shall be
deemed guilty of a misdemeanor, and, on conviction, shall be
punished by fine not exceeding one thousand dollars, or
imprisonment not exceeding one year, or both, in the discretion
of the court.

2 Cong.Rec. 827 (1874) (citing 14 Stat. 27 (1866)) (emphasis
added).

The relevant portions of the 1870 Act read by Con-
gressman Lawrence were:

Sec. 16. And be it further enacted, That all persons within
the jurisdiction of the United States shall have the same right
in every State or Territory of the United States to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citi-
zens, and shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and none other,
any law, statute, ordinance, regulation, or custom, to the
contrary notwithstanding ....

Sec. 17. And be it further enacted, That any person who,
under color of any law, statute, ordinance, regulation, or
custom, shall subject, or cause to be subjected, any inhabitant of

lla

mistakenly cited—based on the fact that Durant had
mistakenly included—a portion of the 1871 Ku Klux
Act as the third predecessor criminal statute incor-
porated in the new condensed criminal statute. That
statute provided only for a civil remedy for violations
under color of law of any constitutional rights. It was
the civil predecessor of § 1983.“ Durant in his codifi-
cation continued civil liability for the violation of all
constitutional rights—a rendition true to the 1871
Act—but he then created what is essentially a par-
allel criminal statute that covered violations of all

any State or Territory to the deprivation of any right secured
or protected by the last preceding section of this act, or to
different punishment, pains, or penalties on account of such
person being an alien, or by reason of his color, or race, than is
prescribed for the punishment of citizens, shall be deemed
guilty of a misdemeanor, and, on conviction, shall be punished
by fine not exceeding $1,000, or imprisonment not exceeding
one year, or both, in the discretion of the court.

Id. at 827-28 (citing 16 Stat. 144 (1870)) (emphasis added).

* [SJection 1... That any person who under color of any
law ... of any State, shall subject, or cause to be subjected,
any person within the jurisdiction of the United States to
the deprivation of any rights, privileges, or immunities
secured by the Constitution of the United States, shall .. .
be liable to the party injured, in any action at law, suit in
equity, or other proper proceeding for redress ....

Id. at 828 (citing 17 Stat. 13 (1871)) (emphasis added).

The Ku Klux Act provided for both civil and criminal
liability. Section 1, however, was purely civil, and provided an
action for individuals to get either damages or injunctions
against those who deprived them of their civil rights. The
criminal provision of the 1871 Act is Section 2, which is the
predecessor of current § 241. The compiler mistakenly used
language from the civil section of the 1871 Act and created a
statute like the civil statute, tied simply to “constitutional
rights” and not limited to any specific conduct.

12a

constitutional and federal statutory rights under
color of law. Previously, one could only be held
criminally liable if one acted under color of law and
violated contract, property or equal protection
rights.“ But the new statute codified by Durant
criminalized violations of all constitutional rights
and all rights protected under federal statutory laws.
In effect, the recodification grafted the much broader
scope for civil liability onto the criminal statute.

Congressman Lawrence explained that the compil-
ation in the “civil rights” area might have resulted in
some minor “misconstruction” and errors “bordering
on [new] legislation,” but that the process was still
“valuable in securing uniformity.” Congressman
Lawrence’s remarks provide only the most oblique
reference to the large expansion in the criminal law
that the codification had in fact created:

In the revision of seventeen volumes there will
undoubtedly be not only erroneous punctuation
but some omissions of provisions of laws in force;
some misconstruction of statutes carried into the
new phraseology adopted; some provisions of
laws put down as in force which may have been
repealed, and some other errors occur which will
escape all the care, vigilance, and scrutiny that
have been or can be given to the revision

Another portion of the Ku Klux Act of 1871 provided for
criminal penalties for conspiracies to violate constitutional
rights, and became the basis for the modern day 18 U.S.C.
§ 241. This act was directed primarily at the Ku Klux Klan,
and did not include the requirement that the violation occur
under color of law. It criminalizes a conspiracy in which “two
or more persons... go in disguise upon the public highway” to
hinder the exercise of a constitutional right. 18 U.S.C. § 241
(1988).

13a

The plan adopted is to collate in one title of
“civil rights” the statutes which declare them,
which point out the remedies to be pursued, in the
manner required in judiciary and procedure
statutes; and to insert under the title of “crimes”
and under the subdivision chapter of “crimes
against the elective franchise and civil rights” the
penal provisions of the civil rights acts.

A reference to this will indicate the manner in
which the purposes of the several civil-rights
statutes have been translated into the compiler,
and possibly may show verbal modifications
bordering on legislation.

[The Congressman then read from the Civil
Rights Act of 1866 and 1870, the Fourteenth
Amendment, and the 1871 Ku Klux Act, and
continued:

Mr. Durant, in his Revision of General Laws, .. .
condehses into one the three criminal sections I
have cited from the acts... .°

While the three acts contain each a criminal
section differing in words each from the other, and
each section covering some crimes perhaps not
covered by either of the others, the one
consolidated section of Durant is made applicable

This is a serious mistake. The section quoted from the
1871 Act was civil only, and it was the broad language of the
civil statute that was adopted as § 242.

14a

to the violations of rights alike in the three acts.
It requires great care to compare and examine the
effect of all this, and it is possible that the new
consolidated section may operate differently
from the three original sections in a very few
cases. But the change, if any, cannot be
objectionable, but is valuable as securing
uniformity.

2 Cong. Rec. 827-28 (1874) (empliasis added).

Contrary to the reference by Congressman
Lawrence to possible “errors,” “misconstruction”
and minor changes “bordering on legislation,” the
Congressional leaders in both the House and the
Senate flatly stated that the Durant codification
would result in no changes to the laws. In the House,
Congressman Poland, the manager of the bill, stated,
“we purpose to present the law, when we have gone
over it, as a reflex of existing statutes in force on the
first day of this session [Dec. 1, 1873].”" Likewise, on

The following passages are excerpts of Congressman
Poland’s statements to the House assuring other represen-
tatives that the recodification would not change the law.

Mr. Wood: If the gentleman from Vermont would permit
me, I would like to ask him a question.

It is, whether there will be anything in this revision of
the laws that we have not already in the Statutes at
Large?
Mr. Poland: Nothing; At least we do not intend there
shall be.
2 Cong. Rec. 129 (1873).
Later, Mr. Poland again made it clear that no substantive
changes were intended:

15a

the Senate floor during the course of a very short
discussion of the new codification, Senator Conkling
attempted to assure his colleagues that the revision
did not represent a change in the law, but added the
caveat—which turns out to be an understatement—
that he had “no expectation that this work is free
from error.” 2 Cong. Rec. 4284 (1874).

Accordingly, we can only conclude that, although
members of Congress may have realized that in
passing a large recodification of the existing body of
federal law they might unwittingly be changing
something, they had no actual knowledge that they
were expanding criminal liability to cover violations
of rights beyond certain enumerated rights, primarily
those of contract, property, and equal protection.
Congress does not evidence in § 242 a deliberate
intent to create an evolving criminal law which
expands to include new constitutional rights as they
become a part of our civil constitutional law. Cer-
tainly Congress evidences no intent to make sexual
or simple assault a constitutional crime under § 242.
Previously, Congress had provided liability for
constitutional rights generally only by providing for
civil liability.

Mr. Poland: As I have already said, the commissioners
have made some changes in the law, as they were author-
ized to do under the law. Mr. Durant [the compiler] was
employed by the sub-committee of the House . to go
over this work and strike out everything in the nature of
a change of the law. We purpose to present the law,
when we have gone over it, as a reflex of existing statutes
in force on the first day of this session | Dec. 1, 1873].

2 Cong. Rec. 648 (1874).

16a

Since 1874, Congress has not addressed the scope of
the rights to be covered by the abstract language of §
242. The Supreme Court has once in passing recog-
nized that t he substantial change thus effected [to
§ 242] was made with the customary stout assertions
of the codifiers that they had merely clarified and
reorganized without changing substance.” United
States v. Price, 383 U.S. 787, 803, 86 S.Ct. 1152, 1161,
16 L.Ed.2d 267 (1966). This neglected and confused
episode in the early history of civil rights legislation
indicates that the 1874 Congress never deliberately
intended to criminalize in § 242 the greatly expanded
scope of modern-day constitutional rights even
though the literal language of the statute—recodified
from a previous civil statute by mistake—is open to
that interpretation. Thus our reading of the legis-
lative record does not support the extension of the
abstract language of § 242 to cover all newly-created
constitutional rights. Congress has deliberately
provided only federal civil liability in such cases.

III. ANALYSIS

A. Case Law on Sexual Assault
as a Constitutional Crime

Government counsel in their briefs and at oral
argument recognized that in order to sustain the
indictment here they must more specifically define
the theory behind the “constitutional right” that has
been “deprived” under § 242. They recognize that it
would not be sufficient simply to point to bad behavior
by a state employee or official criminalized under
state law. They also recognize that assault and
battery and rape are state law crimes and that the
Supreme Court has not held or implied that simple or
sexual assault by state officials constitutes a consti-

17a

tutional tort under § 1983 or a constitutional crime
under § 242.

Counsel argue at an extremely high level of
generality. They assert that the constitutional right
at issue is one of substantive due process. Their
constitutional argument is that “freedom from sexual
assault” is a part of a general constitutional right
against interference with “bodily integrity” in a way
that “shocks the conscience.” They construct a
constitutional right against sexual assault from
language taken from two cases, Ingraham v. Wright,
430 U.S. 651 (1977), and Rochin v. California, 342
U.S. 165 (1952).

Counsel, like our dissenting colleagues, do not cite
a Supreme Court opinion enforcing such a right.
Instead, counsel construct the right from language in
Ingraham, in which the Court said that schools must
afford rudimentary procedural due process to children
before paddling them but that such punishment is not
subject to the Eighth Amendment. 430 U.S. at 671. In
dicta, the Court mentioned that the Due Process
Clause protects a person from “unjustified intrusions
on personal security.” Ingraham, 430 U.S. at 672.

To bolster their constitutional theory, government
counsel then cite several lower court decisions in
civil cases decided under § 1983. These are civil cases
which created a general constitutional right to be
free from sexual harassment and coercion. All of
these civil decisions, rather than pointing to prece-
dent establishing the right, make assertions such as:
“surely the Constitution protects a schoolchild from
physical sexual abuse . by a public schoolteacher,”
Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 451 (5th
Cir. 1994) (en banc); or “the notion that individuals
have a fundamental substantive due process right to

18a

bodily integrity is beyond debate,” Walton v. Alex-
ander, 44 F.3d 1297, 1306 (5th Cir. 1995) (Parker, J.,
concurring). These broad statements are not sup-
ported by precedent indicating that a general
constitutional right to be free from sexual assault is
part of a more abstract general right to “bodily
integrity.”

The prosecutors cite only one criminal case in
which a lower court affirmed a § 242 conviction
involving the deprivation of constitutional rights
through sexual assault. In United States v. Davila,
two border patrol officers conditioned entry into the
United States upon receipt of sexual favors. 704 F.2d
749 (5th Cir. 1983). In that case, the defendants did
not challenge the extension of § 242 to sex crimes.
The opinion addresses only evidentiary and other
procedural issues. The Davila case does not decide
or address the issue before us.

In Cruzan v. Missouri Department of Health, 497
U.S. 261 (1990), and Planned Parenthood v. Casey,
— U.8. . 112 S. Ct. 2791 (1992), neither of which
are cited by government counsel, the Court mentions
“bodily integrity” as a significant value. Cruzan
discussed bodily integrity in the context of an indi-
vidual’s decision to terminate life support. Similarly,
in Casey, the Court recognized that the right to an
abortion was related to “bodily integrity.” Neither
case dealt with an assault, and neither supports the
Government’s contention that the state right to be
free from rape and sexual assault and harassment has
also been recognized by the Supreme Court generally
as a component of an enforceable general constitu-
tional right to “bodily integrity.”

The fact that government counsel find it necessary
to limit the general constitutional right of “freedom

19a

xual assault” to conduct that “shocks the
— illustrates the weakness of their consti-
tutional theory. In line with this theory, the district
court below instructed the jury to convict the defen-
dant only if the sexual assaults in this case were 80
severe that they “shock the conscience” of the jury.
Conditioning the right on whether the particular
acts of a defendant “shock the conscience” leaves the
definition of the crime up in the air.” The “shocks the
conscience” language comes from Rochin, a case
holding that pumping a suspect’s stomach for drugs
“shocked the conscience” and therefore violated his
due process rights. 342 U.S. at 172. But the Court
intended the standard to be one of law, to be
interpreted and applied by judges, not an element of a
criminal offense. Id. at 170. When a jury is asked to
make a factual determination of whether a particular
act “shocks the conscience,” the instruction requires
them to make an essentially arbitrary judgment.
“Shocks the conscience” is too indefinite to give
notice of a crime. The language as applied in different
cases will yield results that depend too heavily on
factual particularity of an individual set of events and
upon biases and opinions of individual jurors. Counsel
for the defendant observes in his en banc brief that

® The dissenting opinions of Judges Wellford and Nelson
also note the difficulty of applying this amorphous standard,
but their solution is to concur in dismissing only oe
misdemeanor counts. This solution is incommensurate e
because they fail to follow their own rationale by
applying it to the two felony counts as well. They fail to recog-
nize that the legislative choice in labelling sexual misconduct a
misdemeanor instead of a felony provides no coherent principle
for deciding whether conduct in question is a constitutional
crime under § 242.

20a

the consequences of adopting such an argument
generally to extend § 242 to sex crimes leaves the
statute open-ended:

The Congressional intent to punish corruptions
and distortions of a lawful state process by state
officials will be displaced by a judicially-created
rule of criminal liability, applicable to physical
assaults committed by state officials which a
particular jury finds “shocking.” Such a drastic
expansion of this criminal statute is not only a
judicial encroachment upon legislative authority,
it is also an unwarranted encroachment of federal
law enforcement authority into the ambit of state
law enforcement.

Further Supplement to Defendant’s En Banc Brief at
5, United States v. Lanier (No. 93-5608) (May 5, 1995).

B. Canons of Interpretation of Criminal Statutes

In Connally v. General Construction Co., the
Court said that “the terms of a penal statute creating
a new offense must be sufficiently explicit to inform
those who are subject to it what conduct on their part
will render them liable to its penalties... .” 269 U.S.
385, 391 (1926). This language from Connally follows
the three general canons that govern judicial con-
struction of criminal statutes set out 175 years ago
by Chief Justice Marshall in United States v. Wilt-
berger, 18 U.S. 76, 93, 56 Wheat. 35, 43, 5 L.Ed. 37
( 1820), quoted earlier: (1) the legislature, not the
judiciary, is the primary lawmaking body in the field
of federal criminal law and must give the courts
something definite to construe; (2) the “rule of lenity”
provides that ambiguous criminal statutes should be
construed in favor of the defendant; (3) the corollary

21a

that criminal statutes are normally strictly con-
strued by the courts.

Chief Justice Marshall held that Congress has the
sole responsibility to draft criminal ee the
only branch of government with the ty to
create new crimes. As he observed, “the power of
punishment is vested in the legislature, not the
judicial department. It is the legislature, not the
court, which is to define a crime and ordain its
punishment.” 18 U.S. at 93. This is an articulation of
a basic principle of the separation of powers, as well
as due process. The theory is that behavior should
only be criminalized if the democratic will so ordains.
Unelected judges do not have the authority to enact
new criminal laws.”

The Supreme Court has explicitly asserted this
principle on a number of occasions. In Bowie v. City
of Columbia, the Court reversed a conviction
sustained by the South Carolina Supreme Court. 378

None of the dissenting opinions even mentions the basic
point that unelected judges do not have the authority to enact
new criminal laws or expand old ones to include new crimes.
They do not recognize that each day at all levels of govern-
ment, legislators, judges, administrators, prosecutors, police
officers, school teachers and coaches, public health and hospital
doctors, nurses and employees, military officers, tax collectors
and many others interfere, sometimes unreasonably (often
arguably maliciously and “shockingly”), with the property
rights, personal liberty and bodily integrity of individuals in
our society. The open-ended expansion of criminal liability
under § 242 by our dissenting colleagues to include any sort of
deprivation of a liberty or property interest, or bodily integ-
rity, would presumably turn each such wrong by one of these
millions of public actors into a federal constitutional crime.
Any rational discussion of the issue must come to grips with
this problem.

22a

U.S. 347 (1964). The state courts had convicted pro-
testors of a criminal trespass under a novel inter-
pretation of a state trespass statute. The court
decision had the effect of creating a new crime. In
Bouie, the Supreme Court condemned the attempt to
use a judicial construction to achieve an “ex post
facto effect” and concluded that such an extension of a
criminal statute violated Wiltberger. Id. at 362." See

% The Bouie opinion concludes as follows:

We think it clear that the South Carolina Supreme Court,
in applying its new construction of the statute to affirm
these convictions, has deprived petitioners of rights
guaranteed to them by the Due Process Clause. If South
Carolina had applied to this case its new statute prohib-
iting the act of remaining on the premises of another after
being asked to leave, the constitutional proscription of ex
post facto laws would clearly invalidate the convictions.
The Due Process Clause compels the same result here,
where the State has sought to achieve precisely the same
effect by judicial construction of the statute. While such a
construction is of course valid for the future, it may not be
applied retroactively, any more than a legislative enact-
ment may be, to impose criminal penalties for conduct
committed at a time when it was not fairly stated to be
criminal... .

In the last analysis the case is controlled, we think, by the
principle which Chief Justice Marshall stated for the Court in
United States v. Wiltberger, 5 Wheat. 76, 96:

“The case must be a strong one indeed, which would
justify a Court in departing from the plain meaning of
words, especially in a penal act, in search of an intention
which the words themselves did not suggest. To deter-
mine that a case is within the intention of a statute, its
language must authorize us to say so. It would be dan-
gerous, indeed, to carry the principle, that a case which is
within the reason or mischief of a statute, is within its
provisions, so far as to punish a crime not enumerated in

23a

also Crandon v. United States, 494 U.S. 152, 158
(1990) (“legislatures, not courts, define criminal
liability”). .

Similarly, turning assault and battery into a
constitutional crime would violate the Wilt-
berger-Bouie principle by judicially creating a new
crime under § 242. To do so would subject the
defendant to the “ex post facto effect” rejected in
Bouie.

in Wiltberger, Chief Justice Marshall also relied on
the rule of lenity which mandates that in the case of
an ambiguous criminal statute, the ambiguity should
be resolved in favor of the defendant. The underlying
reason for the rule is that the judiciary should not
criminalize behavior that Congress may or may not
have intended to prohibit by federal law, particularly
when the conduct violates state law and comes within
a traditional area of state police power. Of course,
courts should not go to extreme lengths to charac-
terize criminal statutes as ambiguous when they can
be read as relatively well-defined. The courts should
adopt a construction that gives a defendant the benefit
of ambiguities, if any, but which also gives effect to
the attempts of legislatures to address a particular
problem. As Marshall wrote in 1820, “where there is

the statute, because it is of equal atrocity, or of kindred
character, with those which are enumerated ... .”

The crime for which these petitioners stand convicted was
“not enumerated in the statute” at the time of their con-
duct. It follows that they have been deprived of liberty
and property without due process of law in contravention
of the Fourteenth Amendment.

378 U.S. at 362-63.

—

24a

no ambiguity in the words, there is no room for
construction,” Wiltberger, 18 U.S. at 95-96.

The final and most general principle enunciated in
Wiltberger—that criminal statutes normally should
be construed strictly—can be traced back to Heydon’s
Cace, 76 Eng. Rep. 637 (1584), in which Chief Justice
Coke referred to the principle to limit the reach of a
broad statute.” In Wiltberger, Chief Justice Marshall
wrote that

the rule that penal laws are to be construed
strictly, is perhaps not much less old than con-
struction itself. It is founded on the tenderness
of the law for the rights of individuals .... To
determine that a case is within the intention of
the statute, its language must authorize us to say
so.

18 U.S. at 95-96. In addition, Chief Justice Marshall

said in language equally applicable to the case before

us:
It would be dangerous, indeed, to carry the
principle that a case which is within the reason
or mischief of a statute, is within its provisions,
so far as to punish a crime not enumerated in the
statute, because it is of equal atrocity, or
of kindred character, with those which are
enumerated.

Id. at 96.

Since Wiltberger, the Supreme Court, and the
federal courts generally, have repeatedly reaffirmed
this canon of construction. Commissioner v. Acker,

u For a discussion of the historical development of this
canon, see Max Radin, A Short Way With Statutes, 56 HARV.
L. REV. 388, 389 (1942).

25a

361 U.S. 87, 91 (1959) (“The law is settled that ‘penal
statutes are to be strictly construed.’”) (citations
omitted). The Wiltberger language is frequently
quoted, see Moskal v. United States, 498 U.S. 103, 132
(1990) (“The temptation to stretch the law to fit the
evil is an ancient one, and it must be resisted.”)
(Scalia, J., dissenting).

A holding here that the defendant is criminally
liable under federal law would succumb to the temp-
tation that Chief Justice Marshall warned against.
The law would be punishing the defendant for com-
mitting a series of repugnant acts that may be of
“equal atrocity, or kindred character” with crimes
punishable under the statute, but no language of the
statute and no holding of the Supreme Court suggest
that such behavior constitutes a federal constitu-
tional crime. There has been no notice to the public of
such a federal crime. To hold otherwise would violate
the Rule of Law as it has developed in criminal cases
from the time of Chief Justice Marshall.

C. The Screws Case Interpreted

Screws v. United States, 325 U.S. 91 (1945), as the
three dissenters (Justices Jackson, Frankfurter, and
Roberts) in that case repeatedly pointed out, diverges
in part from these well established canons of con-
struction of criminal law:

It was settled early in our history that prose-
cutions in the federal courts could not be founded
on any undefined body of so-called common law.
United States v. Hudson, 7 Cranch 32; United
States v. Gooding, 12 Wheat. 460. Federal
prosecutions must be founded on delineation by
Congress of what is made criminal. To base
federal prosecutions on the shifting and indeter-

26a

minate decisions of courts is to sanction prose-
cutions for crimes based on definitions made by
courts. This is tantamount to creating a new body
of federal criminal common law.

It cannot be too often emphasized that as basic a
difference as any between our notions of law
and those of legal systems not founded on
Anglo-American conceptions of liberty is that
crimes must be defined by the legislature.

Id. at 152 (citation omitted).

Although the majority sought to minimize the
deviation from precedent, Screws is the only Supreme
Court case in our legal history in which a majority of
the Court seems willing to create a common law
crime. (Justice Douglas wrote a plurality opinion in
which Chief Justice Stone and Justices Black and
Reed concurred while-Justice Rutledge concurred
separately.) In Screws, a Georgia sheriff and two
other officers arrested a black man and brutally
executed him without a trial or a hearing. The
plurality opinion by Justice Douglas upheld the
indictment under § 242 because they believed that (1)
it fit within the specific original purpose of the act,
i.e., “in origin it was an antidiscrimination measure
(as its language indicated), framed to protect Negroes
in their newly won rights,” id. at 98, and (2) the
wrongful conduct fit within the specific original
purpose of the right of procedural due process going
back to the Magna Charta, i. e., that punishment may
not be imposed prior to a trial:

It is plain that basic to the concept of due process
of law in a criminal case is a trial—a trial in a
court of law, not a “trial by ordeal.” .... Those

27a

who decide to take the law into their own hands
and act as prosecutor, jury, judge, and execu-
tioner plainly act to deprive a prisoner of the trial
which due process of law guarantees him.

Id. at 106 (citation omitted). Throughout the opinion,
the plurality refers to the wrong as racial discrim-
ination in depriving the decedent of the classic consti-
tutional “right to be tried by a court rather than by
ordeal.” Id. at 107.

In Screws, the plurality opinion expressly observed
that the Court believed that it was pushed to the
difficult choice between declaring § 242 unconsti-
tutional and adopting a “saving construction” that
would greatly narrow the statute to the deprivation of
obvious, well-established and publicly known consti-
tutional rights. (“Only if no construction can save the
Act ... are we willing to reach that result.”) Id. at
100. Justice Douglas expressed the view that the
plurality wanted to “save” the statute by limiting it
to constitutional rights that any reasonable person
should know about. The plurality called its construc-
tion a “narrow construction” that preserves the
principle of strict construction of criminal statutes,
and “so construed has a narrower range in all its
applications than if it were interpreted in the manner
urged by the government.” Id. at 105. This saving
construction held that a criminal defendant could
receive the required notice that a constitutional right
existed (and therefore that its breach was a crime)
from “the express terms of the Constitution or laws
of the United States or by decisions interpreting
them.” Id. at 104. It is this phrase, which includes
rights enunciated by “decisions,” that makes Screws
unique among criminal law precedents. It is

28a

clear, however, that the Screws exception to the
Wiltberger-Connally-Bouie principles must be
confined (1) to cases under § 242 in which the
constitutional right “deprived” is specifically stated
in the Constitution itself (e.g., unconstitutional
searches or seizures) and understood by the literate
public to be a well-settled constitutional right, and
(2) to well-established procedural due process rights
like the right to be tried before being punished by law
enforcement officers.

The right deprived in the instant case—the right
not to be assaulted—is a clear right under state law
known to every reasonable person. The defendant
certainly knew his conduct violated the law. But it is
not publicly known or understood that this right rises
to the level of a “constitutional right.” It has not
been declared as such by the Supreme Court. It is not
a right listed in the Constitution, nor is it a
well-established right of procedural due process like
the right to be tried before being punished.

Lower court decisions are not sufficient to
establish and make definite a particular constitu-
tional crime so as to provide the constitutionally-
required notice necessary to support an indictment
under § 242. Only a decision of the Supreme Court
establishing the constitutional crime under § 242 can
provide such notice. To accept lower court authority
would result routinely in making federal criminal
liability under § 242 turn on new crimes recognized
only by the circuit or district court where the
defendant engaged in the conduct at issue. A crime
recognized in the Sixth Circuit but not in the Eighth
Circuit would mean that felonious conduct crimin-
alized in Memphis would not be a federal crime across
the river in Arkansas. Only a Supreme Court de-

cision with nationwide application can identify and
make specific a right that can result in § 242 liability.
Although a rule permitting the Supreme Court to
create a new crime obliquely in this way is an
exception to the Wiltberger-Bouie canons, Screws
does contain language that creates a narrow excep-
tion under § 242.

Screws limits the reach of § 242 to cases in which
the Supreme Court itself for the nation as a whole has
made a particular constitutional right sufficiently
clear that a violation of that right constitutes a crime
as well as a civil wrong. Moreover, in both cases
since Screws in which it has addressed the scope of
§ 242, the Supreme Court has cited one of its own
precedents as clearly enunciating the constitutional
right violated. See United States v. Price, 383 U.S.
787, 793 (1966) (citing Screws); Williams v. United
States, 341 U.S. 97, 101 (1951) (citing Chambers v.
Florida, 309 U.S. 227, 237 (1940), and Brown „.
Mississippi, 297 U.S. 278, 285-86 (1936)). Screws does
not extend § 242 to conduct not addressed in the
statute, nor ever addressed by the Supreme Court.

In Screws, the Supreme Court reasoned that only
its own opinions could provide sufficient notice under
§ 242 to make “specific” the constitutional right in
question. 325 U.S. at 104. As we interpret the “make
specific” requirement, the Supreme Court must not
only enunciate the existence of a right, it must also
hold that the right applies to a factual situation
fundamentally similar to the one at bar. If the Court
enunciates a right, but leaves some doubt or
ambiguity as to whether that right will apply to a
particular factual situation, the right has not been
“made specific” as is required under Screws and

30a

under traditional canons of construction of criminal
statutes.

The “make specific” standard is substantially
higher than the “clearly established” standard used
to judge qualified immunity in section 1983 civil
eases. The Court normally reviews constitutional
rights in the context of section 1983 cases. In those
civil, constitutional tort cases, the parties accused of
violating constitutional rights have the protection of
the qualified immunity doctrine. Anderson
v. Creighton, 483 U.S. 635, 639 (1987) (the operation of
qualified immunity “depends substantially upon the
level of generality at which the relevant ‘legal rule’ is
to be identified”). Government counsel do not admit
the existence of such a ‘qualified immunity” defense
in criminal cases. So interpreted, § 242 would mean
that the criminal statute is much broader in scope
than its civil counterpart. The government’s theory
of § 242 criminal liability would visit long criminal
sentences on defendants who could successfully de-
fend a constitutional tort case for damages on
grounds that the federal constitutional law has not
yet become “clearly established.” Criminal liability
would be much easier to establish for the same wrong
than civil liability.

Civil law usually exacts less severe penalties, and
consequently, the law allows for a more fluid inter-
pretation in civil cases than in criminal cases. But
here, according to the government, § 242 would be
carried along on the currents of these civil law
interpretations without the corresponding defenses
allowed in civil damage cases.

Furthermore, unlike other criminal statutes, § 242
criminalizes violations of abstract rights at an ex-
tremely high level of generality and not particular

3la

conduct that may be illegal under state law. As the
Screws plurality noted, murder and assault com-
mitted under color of law may or may not violate § 242
depending on whether other factors are present that
raise the conduct to the level of a constitutional
deprivation. Screws, 325 U.S. at 108-09 (“The fact
that a prisoner is assaulted, injured, or even mur-
dered by state officials does not necessarily mean that
he is deprived of any right protected or secured by the
Constitution or laws of the United States.”). For
example, in Screws, the murder had to constitute a
“trial by ordeal” to rise to the level of a procedural
due process violation. In this case, we do not hold that
simple or sexual assault may never violate § 242. For
example, a sexual assault raising an equal protection
gender discrimination claim may present an entirely
different case. We only conclude that sexual
assaults may not be prosecuted as violations of a
constitutional substantive due process right to bodily
integrity, the only theory presented by government
counsel. In doing so, we cons. ue Screws narrowly,
as we normally construe criminal statutes.

2 Our dissenting colleagues in their various opinions repeat
the refrain that local prosecutors and law enforcement officials
in West Tennessee are so corrupt that they would not prose-
cute a member of the Lanier family for sexual assault. For
example, Judge Wellford states, “it was clear that Judge David
W. Lanier was not going to be called into account for his mis-
deeds and judicial misconduct by local or county officials who
had been beholden to the longstanding sway of the Lanier
dynasty.” There is no factual basis in the record for such
statements. There is no basis in the record for assuming
anything other than that state and local officials cooperated in
the investigation of the defendant in the normal way and then
stepped aside when the federal prosecutor decided to take the
case.

32a

As counsel for defendant argues, permitting federal
prosecutions for “conscience shocking” simple and
sexual assaults committed by federal, state and local
employees or officials places unparalleled, unprece-
dented discretion in the hands of federal law enforce-
ment officers, prosecutors and judges. In the absence
of any definition or limitations on the extent of the
crime—and given that such prosecutions are useful
political weapons—permitting such discretion is a
particular risk for due process. Many public officials
and employees have recently been accused of similar
deviant conduct, but no other case has been prose-
cuted. Such an unprecedented, selective application of
the statute in this case was possible only by giving
the broadest possible construction to the most
ambiguous of federal criminal statutes. The indict-
ment in this case for a previously unknown, unde-
clared and undefined constitutional crime cannot be
allowed to stand. Accordingly, the judgment of the
court below is reversed and the Court is instructed to
dismiss the indictment.”

This appeal has produced five separate opinions, passion-
ately and in some passages eloquently stated, in addition to the
Court's opinion for nine judges. Allowing the defendant who is
guilty of reprehensible conduct to go free is not a satisfying
result, but it is the result required by longstanding principles
of federalism, separation of judicial and legislative powers and
the right to formal public notice when new crimes are enacted.
It should be noted also that the defendant’s conduct has not
remained unnoticed. He has lost his robes, his income and his
reputation. He was incarcerated for two years in federal
prison pending appeal and will remain subject to prosecution
in state court for many years to come. Tenn. Code Ann.
$§ 39-13-502 through 506 (Supp. 1995) defines the crimes
of “Aggravated Rape,” “Rape,” “Aggravated Sexual Battery”
and “Sexual Battery” and §§ 40-2-101 provides statute of limita-

33a

HARRY W. 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
immofal, abusive conduct of a state judge should not
be prosecuted 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 Daughtrey 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, |
do not concur in the majority’s condemnation of the
prosecution for bringing the charges against a de-
fendant 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

tions periods of 15, 8, 8 and 2 years respectively for these
crimes.

34a

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 long-
standing 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.

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 (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 guaran-

35a

teed to him.” Screws, 325 U.S. at 94. The defendant

in Screws claimed, as does Lanier, that there was no

noticed, determinable “standard of guilt” set out in 18
S.C. § 242. Id. at 95.

153 Betts v. Brady, 316 U.S. 455, 46 (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 funda-
mental 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 con-
clude that for 80 years this effort of Congress,
renewed several times, to protect the important
rights of the individual guaranteed by the Four-
teenth 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 priv-
ileges and immunities clause ( Madden v. Ken-
tucky, 309 U.S. 83) and the equal protection clause

36a

(Smith v. Texas, 311 U.S. 128) 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 (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. The emphasis in Screws, as in United
States v. Classic, 313 U.S. 299 (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 (concurring opinion). He
further observed in note 5 that “[iJt does not appear
that the state has taken any steps toward prosecution
for violation of its law.” Neither has Tennessee
prosecuted Lanier in the instant 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.

2 In footnote 12, the majority assumes that state and local
officials were cooperating in the federal prosecution. There is

37a

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.” Jd. at 121-22. 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 consti-
tutional, 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.

Our court has recently recognized:

“{OJnce 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.” Jd. 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

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.

—

38a

standard of conduct is specified at all.“ Id. (quoting
United States v. Angiulo, 897 F.2d 1169, 1179 (Ist
Cir.), cert. denied, 498 U.S. 845 (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 (1975) (quoting United States
v. Petrillo, 332 U.S. 1 (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 (1992); see also Ingraham v. Wright, 430 U.S.
651 (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 bane), cert. denied sub nom., 115 S.Ct. 70
(1994).

If the Constitution protects a schoolchild against
being tied to a chair or against arbitrary pad-
dlings, 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 vouch-
safed 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 (1992) (affirming
conviction of police officer under 18 U.S.C. § 242 for

39a

sexually assaulting illegal immigrant in patrol car
and attempting to kill her to prevent her from testi-
fying); 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 liber-
ty 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.) (affirm-
ing conviction of mental health worker under 18
U.S.C. § 242 for beating psychiatric patients), cert.
denied, 474 U.S. 982 (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 con-
victed under 18 U.S.C. § 242 for violating suspect’s
rights to be free from unlawful search and seizure).“
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

8 I recognize that the absence of custody in the instant case
makes it distinguishable from the above-cited § 242 criminal
proceedings.

40a

was a first, and the substantial reservations that I
share about expansion or intrusion of federal author-
ity, 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 Milburn’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 author-
ity to determine custody of her child to coerce her
into returning to his office. Finally, Fonda Bandy
was assaulted while she was present in defen-
dant’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 warted to know how he
could go about seeking custody of her child.

4la

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.

42a

Davip 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 “grabbings” described in the
pertinent misdemeanor counts of the indictment were
deprived of their “liberty” in the sense in which that
term is used in the Fourteenth Amendment. Whether
or not the oafish behavior described in these misde-
meanor counts was enough to shock the conscience,
therefore, I do not believe that such behavior was
criminalized by 18 U.S.C. § 242.“ 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

The Supreme Court has rejected the “shock the con-
science” test for excessive use of force by the police, Graham v.
Connor, 490 U.S. 386 (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 (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 misde-
meanors 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.

43a

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.’ 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 re-
strained 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 penum-
bras of Planned Parenthood v. Casey, 505 U.S. 833
(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

2 One reading the statute without benefit of any judicial
gloss might not think it self-evident that Section 242 crimin-
alizes 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
(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 depri-
vations of constitutional rights generally. Under Classic, and
under Screws v. United States, 325 U.S. 91 (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.

14a

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 Amend-
ment, 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 (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 a woman who claimed to have
been injured in an accident aboard a railway car. 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

45a

examination, absent any statute authorising 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.” Jd. at 251.

Vivian Archie, as the jury concluded in the case 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—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 estopped 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

46a

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 defen-
dant Lanier is supposed to have done, I question
whether it follows that the prosecution of defendant
Lanier 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 case 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 Daughtrey insofar as those opinions are
consistent with the views I have stated.

47a

Damon J. KErru, Circuit Judge, joining in the
dissent.

Today, the majority, in an opinion thoroughly
lacking in indignation for the outrageous acts
perpetrated by Judge Lanier, reverses Lanier’s con-
viction under 42 (sic: 18] U.S.C. § 242 on the grounds
that § 242 does not expressly criminalize sexual
assault committed against court employees and
litigants by a state judge. I dissent for the reasons so
eloquently stated by Judge Daughtrey. However,
because I am deeply disturbed by not only the
conclusion the majority has reached, but also by the
insensitive tone and lack of compassion permeating
the majority opinion, I add this additional comment.

In one of the most deplorable cases to come before
this Court since I have served on the federal bench,
the majority has done the public a great disservice. It
is clear that in a society that has historically
oppressed women, abuse of power by a judicial officer
appointed or elected to ensure fairness is truly
devastating. It is undeniable that Judge Lanier
wielded tremendous power and influence in the
Dyersburg, Tennessee community. His power over
his victims was augmented by his position as
employer to some and in the case of Vivian Archie, by
his contro’ over the custody arrangements of
Archie’s child. The shocking sexual assaults, forced
sex acts and threats with which Judge Lanier vic-
timized women are reprehensible. In my view, Judge
Lanier’s loathsome acts, combined with the fact that
he was found to have sexually assaulted one of his
victims while wearing his judicial robes, are more
than enough to satisfy the most stringent interpre-
tations for prosecution under § 242.

48a

However, incredibly, the majority ignores the facts
and the law to hold that § 242 does not criminalize
such behavior. In order to reach its preposterous
result, the majority not only dismisses clearly estab-
lished law protecting each person’s right to be free
from interference with bodily integrity that shocks
the conscience, but also ignores the outrageous
nature of Judge Lanier’s actions. Besides glossing
over the horrendous acts for which Lanier was
convicted, the majority, in cavalier fashion, also
devalues the fact that Lanier was tried and found
guilty by a jury of his peers and was later sentenced
to twenty-five years in prison. In consideration of the
above, the majority’s holding does nothing less than
render Judge Lanier’s egregious acts acceptable.

As judges, we are guardians and trustees of the
justice system. At a time when lack of public
confidence in the justice system is at it greatest, the
majority reaches a result that is guaranteed to
further lower the public’s trust. In a country where
the average person may go to jail for stealing a loaf of
bread, the majority releases back into the community
a judge who has used the power of his office and his
position in society to repeatedly victimize women. If
federal law is not to protect women from being forced
to sexually gratify a judicial officer at his request
under threats of losing their jobs or children, whom is
it to protect? Certainly, it was not intended to
protect judges who commit such outrageous acts. No
person is above the law, especially a judge. It is my
firm belief that for people to have faith in our system
of justice, the grossly offensive acts Judge Lanier
committed against women at his mercy cannot be
sanctioned by this Court. Sadly, the majority seems
to have forgotten that while law is a means, j justice

49a

is the end.” See THE FEDERALIST No. 51 (James
Madison) (Clinton Rossiter ed., 1961).' In this case,
law has not served the ends of justice.

Accordingly, I join in Judge Daughtrey’s dissent.

In Federalist paper No. 51, James Madison wrote: “Justice
is the end of government. It is the end of civil society. It ever
has been and ever will be pursued until it be obtained, or until
liberty be lost in the pursuit.”

50a

NATHANIEL R. JONES, Circuit Judge, dissenting.

One of the cardinal principles that guides my
appellate review of criminal cases is to insure that
outrage at the egregiousness of the complained of
conduct has not intruded upon the application of neu-
tral principles of law. Thus, in this case, the offensive
and degrading conduct of Appellant Lanier prompted
me to undertake a searching review of the record and
legal precedents related to enforcement of various
civil rights statutes. I candidly admit that my first
reading of the majority opinion impressed me so
greatly that I was forced to reexamine my initial
decision to uphold the conviction.

A meticulous review of the record now assures me
that the conviction in this case did not result in a
criminalization of conduct based upon its outrage-
ousness rather than its unconstitutionality. So
assured, I dissent.

I can readily understand the result reached by the
majority, given the premise from which it begins its
analysis. However, my view of constitutional rights
and of the evolvement principles, carries me to
another analytical starting point. My belief is now
clear that Lanier’s actions against his victims
transgressed their liberty interest enshrined in the
constitution.

For me to agree with the majority would require
that I hold, even at this late date in our civil rights
and human rights development, that section 242
should be limited to deprivation of the discrete cate-
gories of property, contract, and equal protection.
The narrow reading applied by the majority would
abandon the Supreme Court’s opinion in Screws v.
United States, which upholds section 242 as it applies
to willful violations of any constitutional right that

5la

has been made specific. 325 U.S. 91, 104 (1945).
Section 242 has proven to be a valuable tool in prose-
cuting willful violators of a number a constitutional
rights. To list only a few, section 242 convictions
have resulted from: violations of the Eighth Amend-
ment right to be free from cruel and unusual punish-
ment, United States v. Tines, et al., 70 F.3d 891 (6th
Cir. 1995); United States v. Georvassilis, 498 F.2d 883
(6th Cir. 1974); the Fourth Amendment right to be
free from excessive force during detention, United
States v. Reese et al., 2 F.3d 870 (9th Cir. 1993); the
Fourteenth Amendment procedural due process right
to a trial before conviction, United States v. Cobb, et
al., 905 F.2d 784 (4th Cir. 1990). I note particularly
that section 242 prosecutions have been brought for
violations of Fourteenth Amendment substantive due
process rights. In United States v. O’Dell et al., 462
F.2d 224 (6th Cir. 1972), this court affirmed a section
242 conviction for a violation of a pretrial detainee’s
substantive due process right to be free from ex-
cessive force amounting to punishment. I see no
barrier to applying section 242 to violations of
substantive due process rights just as it is applied to
violations of other constitutional rights. The only
hurdle is demonstrating that the right has been made
specific by decisions of the courts of the United
States.

Like Judge Daughtrey, I believe that court de-
cisions have made specific the right to be free from
invasions of bodily integrity that shock the con-
science. In my dissent from the majority opinion in
Wilson v. Beebe, I acknowledged a protected liberty
interest in personal dignity and bodily integrity. 770
F.2d 578, 594 (6th Cir. 1985) (Jones, J. dissenting).
The complainant in Wilson sustained critical injuries

52a

after being shot by a police officer who attempted to
handcuff him while holding his cocked service re-
volver in one of his hands. Id. As Judge Daughtrey
has in this case, in Wilson, I drew from the Supreme
Court’s decision in Ingraham v. Wright, 430 U.S. 651,
672 (1977), as the source of the liberty interest. I
concur in Judge Daughtrey’s discussion of the devel-
opment anc establishment of the right to bodily
integrity and accordingly see no need to repeat the
discussion in this separate opinion.

Moreover, I am not disturbed that the Supreme
Court has not held specifically that sexual assault
violates the right to bodily integrity. This reflects
only the reality that a number of ways exist to
deprive one of a right. Surely the majority would not
suggest that a deprivation of property or contract
would be any less a deprivation because it was accom-
plished by a means not previously addressed by the
Supreme Court. If a right to bodily integrity includes
freedom from corporal punishment, freedom to make
reproductive decisions and freedom from unwanted
medical intrusions, it must include protections from
forced sexual advances. Further, as Judge Daughtrey
points out, violations of bodily integrity by sexual
assault have previously been the basis for convictions
under section 242.

I must also dissent from the majority’s rejection of
the right to bodily integrity as grounds for a section
242 conviction because its bounds have been estab-
lished in civil rather than criminal cases. Once
established, a constitutional right is absolute. Of
course, the degree of infringement necessary to
support a suit may differ depending upon whether the
suit is civil or criminal. I cannot, however, endorse a
policy of denying the basic existence of a right in a

53a

criminal case because the courts have developed the
right in civil rather than criminal cases. As stated by
the Ninth Circuit:

There is nothing wrong with looking to a civil
case brought under 42 U.S.C. § 1983 for guidance
as to the nature of the constitutional right whose
alleged violation has been made the basis of a
section 242 charge. The protections of the Consti-
tution do not change according to the procedural
context in which they are enforced—whether the
allegation that constitutional rights have been
transgressed is raised in a civil action or in a
criminal prosecution, they are the same constitu-
tional rights.

United States v. Reese, 2 F.3d 870, 884 (9th Cir. 1993),
cert. denied 114 S.Ct. 928 (1994). Likewise, in United
States v. Bigham, the Fifth Circuit stated:

Whether a case is brought on the civil or criminal
side of the docket, the actionable conduct is
deprivation of rights secured by the Constitution
or laws of the United States. The culpable intent
will vary from willfulness of a criminal charge to
something less in a civil complaint, and it may
vary according to the particular constitutional
right infringed. Otherwise, between the criminal
and civil statutes the courts recognize the intent
of Congress to cover the same cases, though pro-
viding different remedies.

812 F.2d 943, 948 (5th Cir. 1987) (citations omitted).
Once a right has been made a definite and specific part
of the body of Fourteenth Amendment due process
rights, a willful violation of that right comes within
the purview of section 242. United States v. Stokes,

54a

506 F.2d 771, 776 (5th Cir. 1975) (relying on both
criminal and civil cases to hold the right to be free
from injury while in police custody had been made
specific). Even though the parameters of the right to
bodily integrity have been forged primarily in civil
cases, the right has been made specific nonetheless.
Therefore, there should be no question that the
violation of the right may serve as the basis of a
prosecution under section 242.

I share the majority’s view that the monstrous
nature of a defendant’s actions must not lead the
courts to expand federal criminal statutes beyond
their intended reach. Principles of strict construc-
tion require this court not to do so. The Supreme
Court, however, has approved, in this unique instance,
a criminal statute that changes with the changing
nature of due process rights. The Supreme Court
recognized in Screws that not every law enforcement
officer would be aware of the full range of rights that
might be constitutional. For that reason, the
Supreme Court limited the application to section 242
to rights made specific. Screws, 325 U.S. at 104. A
criminal conviction based on a right not fully defined
and developed by the courts would violate principles of
notice and strict construction. Nevertheless, when
the courts fully define the parameters of the right,
notice has been given that violation of such a right
may result in a criminal conviction.

Some of my colleagues apparently and understand-
ably fear that a criminal statute cannot cross refer-
ence a series of rights that may be ever changing.
However, the nature of the substantive due process
right is to change to protect that values of our times.
Without elastic principles of due process, many of our
greatest civil rights challenges could not have been

55a

overcome. Although appealing on one level, I have
concluded that worries that [Section] 242 will provide
an impermissibly flexible body of criminal law are not
well founded. The Supreme Court built safeguards
into the statute by requiring the specific estab-
lishment of rights and by requiring willful violations.
Without the establishment of a right by the courts,
there is no danger that runaway or other opportun-
istic prosecutors will break open the bounds of the
statute with crimes that were never meant to be
encompassed by its reach. Courts are entrusted with
the duty to decide when a right is constitutional. Only
after this decision has been made are prosecutors
afforded the opportunity to bring indictments.’

Again, I note my agreement with the principles
behind the majority’s push to limit the application of
section 242. Without legislative action, the criminal

In its footnote 9, the majority expresses its belief that the
dissenters somehow have not contemplated the effect that
holding violations of bodily integrity are within the reach of
section 242. By listing the number of potential violators, the
majority seems to reason that because a wide range of govern-
ment employees may regularly violate citizens’ bodily integ-
rity, section 242 cannot be used to criminalize such violations.
The majority's statement lacks the support of logic. The
number of violators should not determine whether an action is
criminal. It is unlikely that the majority would decline to
affirm section 242 violations of Fourth or Eighth Amendment
rights merely because many police officers around the country
beat and abuse inmates on a regular basis. If the number of
conscience shocking violations occurring regularly is near to
what the majority suggests, criminal prosecution is perhaps
even more important. Furthermore, criminal prosecution of
some of these allegedly rampant violations may serve as a
deterrent to prevent continued encroachments on individuals’
bodily integrity.

56a

law generally cannot be freely expanded to meet the
outrage of an angry community. Such elasticity in
the law would make potential defendants of those
whose actions disturb a particular prosecutor or
community but not the populace at large. Minorities,
who have traditionally suffered the most injustice at
the hands of our criminal law, would be especially
vulnerable to a criminal law that makes unpopular
actions criminal without endorsement of the legis-
lature and without notice to the potential violator. I
am comfortable with the elasticity of section 242 only
because its growth is checked by its link to our
Constitution. I am secure in my knowledge the link
between the statute and the Constitution will prevent
section 242 from being used as a tool to prosecute
those whose actions are merely unpopular in a par-
ticular community. The disgusting and reprehensible
conduct of Appellant Lanier sinks far below any
characterization of merely unpopular or unacceptable.
Lanier’s conduct clearly violated constitutional
rights and falls squarely within the range of conduct
Congress intended to punish with section 242.

I join in Judge Daughtrey’s opinion to the extent it
is consistent with my views stated here, and I
respectfully DISSENT.

57a

MARTHA CRAIG DAUGHTREY, Circuit Judge,
dissenting.

Apparently because the United States Supreme
Court has never held, specifically, that 18 U.S.C. §
242 proscribes sexual assault by a sitting state judge,
committed against litigants, court personnel, or those
involved in court-related programs, the majority
today reverses the defendant’s convictions under §
242 and declares that the charges against him should
not have been brought. This result rests on the
majority’s conclusion that the federal constitution
offers no protection against such assaults. Because |
conclude, to the contrary, that such constitutional
protection is well-entrenched, I respectfully dissent.

In its opinion, the majority sets out, at some length,
the fruits of its exhaustive research into the legis-
lative history of § 242. Missing, however, is even a
brief sketch of the factual history of this case, so
necessary to put the constitutional analysis in con-
text. Those facts were fairly and dispassionately
summarized by the three-judge panel that first heard
this appeal, as follows:

The evidence presented at trial showed that
defendant was born in Dyer County, Tennessee,
and had lived there virtually all his life. Defen-
dant is from a politically prominent family. He
served as alderman and mayor of Dyersburg,
Tennessee, before first being elected Chancery
Court Judge of the Twenty-Ninth Judicial Dis-
trict in 1982. Defendant was reelected in 1990. He
continued to serve as a chancery court judge until
he was removed from his position pending
resolution of this case.

58a

As a chancery court judge, defendant princi-
pally presided over divorces, probate matters, and
boundary disputes. Although the circuit court
also has concurrent jurisdiction . . . over divorce
cases, defendant presided over 80 to 90 percent of
the divorce cases in Lake and Dyer Counties,
including child support and other matters related
to the divorce cases. Further, .. defendant also
served as juvenile court judge in said counties.

In 1989, defendant hired Sandy Sanders to be the
Youth Service Officer of the Dyer County
Juvenile Court. Sanders was to supervise the
Youth Service Office. During her job interview,
defendant told Sanders that he had sole hiring
authority for the Youth Service Officer position.
Defendant also had the authority to fire the Youth
Service Officer.

As part of her job duties, Sanders was required
to have weekly meetings with defendant to review
the work performed by her office. During one of
these weekly meetings, which occurred in defen-
dant’s chambers, defendant got up from his desk,
sat beside Sanders in a chair, and, during their
conversation, grabbed and squeezed her breast.
Sanders became upset and tried to remove defen-
dant’s hand; however, defendant told her not to be
afraid.

Sanders left the meeting as quickly as possible.
She did not tell anyone about what had occurred
because she thought that no one would believe her
since defendant was a judge and was influential! in
the community. Subsequently, Sanders tele-
phoned defendant and told him she needed to meet

with him. She went to defendant’s chambers, told
him she did not appreciate his action, and received
an apology from him.

Sanders continued to have weekly meetings
with defendant. However, after she confronted
him about his actions, he began complaining about
the quality of her work, and, eventually, he took
away her supervisory authority. Sanders
testified that she believed defendant took away her
supervisory authority in retaliation for her con-
frontation with him. She testified that she con-
sidered quitting her job, but she remained in her
position because she believed she was helping the
children she worked with.

Defendant testified that he was often alone with
Sanders in his chambers; however, he denied ever
touching her breast. He testified that prior to the
alleged incident, he and Sanders would hug and
kiss each other as a friendly greeting. Defendant
testified that he stopped such behavior after
Sanders told him she was no longer comfortable
hugging him.

In the fall of 1990, defendant hired Patty
Mahoney to be his secretary. Mahoney was
recently divorced and had two young children to
support. Mahoney understood that defendant was
her supervisor and had the power to fire her.
Mahoney was uncomfortable with defendant
because she felt that he had inappropriately
hugged her during her job interview. However,
she accepted the job because, for a person without
a college degree, it was a good job in Dyersburg.

60a

Mahoney testified that she worked for defendant
for two weeks, but she quit when it became
apparent that he was not going to leave her alone.
She testified that while she worked in defendant’s
chambers, he would hug her or touch her on her
breasts or buttocks. By the second day of her
employment, defendant began to firmly place his
hands on her breasts.

Mahoney testified that defendant eventually
became more aggressive, grabbing and squeezing
her breasts, rather than just placing his hands on
them. [Defendant also telephoned Mahoney at her
home, invited her to vacation with him in the
Bahamas, and told her, “If you will sleep with me,
you can do anything you want to. You can come in
to work any time you want to, you can leave any
time you want to.“] She confronted him about his
behavior, but he told her that if she reported his
behavior it would hurt her more than it would
hurt him. Mahoney testified that since the Lanier
family was so powerful, she thought that no one
would hire her if she reported defendant’s
behavior.

Despite her confrontation with defendant and
her efforts to avoid being alone with defendant, the
touching and grabbing of Mahoney’s breasts con-
tinued on a daily basis. After deciding she would
quit, Mahoney telephoned defendant from her
home and informed him of her decision. Mahoney
went to work the next day and met with defendant
in his chambers. She broke down crying, telling
him that she needed the job and wanted him to
leave her alone. At that point, defendant put his

6la

arms around her, lifted her off the floor, and
aggressively hugged her. Then, with one hand on
the lower part of Mahoney’s back, defendant slid
her down his body and pressed his pelvis against
her. That same night, Mahoney called defendant
and told him she was quitting. She worked one
more week because she needed the job.

E K * * &

At trial, defendant denied that he ever touched
Mahoney in a sexual manner or grabbed either her
breasts or buttocks. However, defendant testified
that he and Mahoney hugged every day.

Vivian Archie grew up in Dyersburg and was
acquainted with the Lanier family. She married
in 1988 and gave birth to a daughter. She was
divorced the following year. Defendant presided
over her divorce proceedings and awarded the
custody of her daughter to her.

In 1990, Archie was out of work and living with
her parents. Archie learned that a job was
available at the courthouse. She went to the
courthouse, filled out an application for a secre-
tarial position, and met with defendant in his
chambers. At the outset of their meeting,
defendant told Archie that her father had come to
see him that day. Defendant said that Archie’s
father had told him that she was not a good
mother, and he wanted custody of her child.

Archie became frightened and asked defendant if
he was going to take her daughter away from her.
Defendant told her that he could not talk about it

62a

because he was the judge who would preside over
any such case. Defendant told Archie that he had
already promised the job to someone else. Archie
replied that she needed the job and would do
anything to get a job. She testified that she stated
this because, otherwise, defendant would have
leverage to take her child away.

When Archie was ready to leave, she reached
across the desk to shake defendant’s hand. At that
point, defendant grabbed her hand, pulled her
around to the end of his desk, and grabbed her hair
and neck. When Archie told defendant to stop and
tried to push him away, he twisted her neck
and tried to fondle her. Defendant kept pulling
Archie’s hair and neck, and finally, he turned
around and threw her into a chair. Defendant
then [placed his hand under her jacket and repeat-
edly tried to force his tongue into her mouth], and
each time she tried to get away, he would squeeze
her neck harder. Finally, defendant stood over
Archie, exposed his penis, and pulled her head
down and her jaws open. He then forced his penis
into her mouth and moved his pelvis back and forth
with great force. Archie testified that this hurt
her throat and jaw.

Defendant did not stop until he had ejaculated in
Archie’s mouth, Archie, who was crying, got up
and went into defendant’s bathroom to clean her
mouth and face so that she could leave the court-
house. Archie testified that when she got home,
her head was tender where defendant had pulled
her hair; her neck was sore, and when she brushed
her hair where defendant had pulled it, some of her

63a

hair fell out. Archie also testified that she did not
scream when defendant attacked her or report the
incident because she was afraid he would take
custody of her child from her [and because
defendant’s brother was then the prosecutor for
the area].

A few weeks later, defendant telephoned
Archie’s residence and told her mother he had a
job for her. Defendant did not tell Archie’s
mother where the job interview would be located.
Rather, he told her mother that Archie would
have to come by his chambers to get the
information. Archie was reluctant to call defen-
dant; however, at her mother’s insistence, she
returned his telephone call. Although Archie
repeatedly asked defendant to tell her where the
job interview was, he insisted that she return to
his chambers for the information. Archie then
returned to defendant’s chambers believing that if
she did not, her parents would be furious with her
and defendant would believe that she had told her
parents about the assault.

When she arrived at defendant’s chambers, he
told her about a secretarial position in the office of
Dr. Lynn Warner. Archie told defendant she
knew where Dr. Warner’s office was located be-
cause he had been her doctor since she was a child.
While they were talking, defendant walked around
his desk towards Archie. She tried to get out of
the room, but he slammed the door closed and
began kissing her. She told him to stop, but he
began pulling her hair and threw her into a chair.
As she was saying “no,” defendant again exposed

64a

himself, turned her head, pulled her mouth open,
and forced her to perform oral sex. During this
period, defendant continued to grab Archie by the
hair, squeeze her neck and shoulders, and pull her
head back, all of which caused her great pain.
Archie also testified that during this period she
was crying, gagging, choking, and having trouble
breathing. Defendant again ejaculated in her
mouth. She ran crying into his bathroom and
cleaned up her mouth and face so that she could go
to her job interview.

Archie did not report either of the assaults
because her child custody case had been in defen-
dant’s court, and she was afraid that defendant
would take her daughter away from her. Archie
testified that she subsequently met with defen-
dant and that he asked her if she had said anything
to anyone and also asked why she had not been
back to see him. Defendant then asked Archie
how her family life was going. Archie testified
that she interpreted defendant’s remarks to mean
that he would permit her to keep custody of her
daughter if she did not tell anyone what had
happened.

At trial, defendant acknowledged that he was
alone with Archie in his chambers on both of the
occasions mentioned in her testimony, but he
denied ever assaulting her or having oral sex with
her. He testified that Archie came to him looking
for a job and he told her he did not have one
available, but he would let her know if he learned
of one. He also admitted telling Archie that he
had met her father and that her father wanted to

65a

know how to go about getting custody of Archie’s
daughter.

Defendant admitted that he told Dr. Warner
that Archie needed a job and that he set up an
interview for her with Dr. Warner. Defendant
also admitted that he told Archie to come to his
chambers so he could tell her where the interview
was. Defendant testified that Archie did come to
his chambers and that he sent her to Dr. Warner
for the interview.

Dr. Warner testified as a defense witness. He
testified that Archie never told him that defendant
forced her to have sex with him. On
cross-examination, Warner testified that Archie
did tell him that defendant requested oral sex and
that she performed oral sex. Dr. Warner also
testified on cross-examination that he discussed
Archie with defendant, and defendant told him that
Archie might be willing to provide sexual favors.
As a result, Warner agreed to interview Archie
for the job.

* X X X *

In March 1991, defendant hired Sandy Attaway,
age 26, to be his secretary. After her first month
of work, defendant began making sexual comments
to Attaway. He told Attaway that he would loan
her money and they could work out a payment. He
also asked Attaway what she would do for him if
he let her off from work. Finally, defendant told
Attaway that he knew how he could relieve her
stress and she could relieve his. Attaway believed
these comments referred to sex.

66a

Defendant also asked Attaway if she were afraid
of him. She testified that she told him “no,”
although that was untrue, because she did not
want him to think she was weak and could be
intimidated. Defendant told Attaway that he was
a judge, and everyone should be afraid of him.

Defendant then went from sexual comments to
physical contact with Attaway. He began hitting
her on the buttocks when she walked by him.
Further, when Attaway was in defendant’s cham-
bers to have him sign some papers, he walked
around behind her and threw his arms around her.
Defendant then, while still wearing his judicial
robes,] pushed his pelvic area into Attaway’s
buttocks and began making a grinding motion.
She could tell that defendant’s penis was erect
because she felt him rubbing it against her.
Attaway then yelled at defendant to stop. He told
her to lower her voice because there were people
in the courtroom, and defendant was afraid they
would hear Attaway.

** eK *

Attaway did not quit after the assault because
she needed the job. However, three months later,
defendant terminated Attaway on the ground that
things were not working out. Attaway testified
that she saw defendant at the courthouse after he
had terminated her, and defendant told her they
would have gotten along fine if she had liked to
have oral sex.

67a

Defendant testified regarding Attaway’s
allegations. He denied sexually assaulting her in
any way.

In the fall of 1991, Fonda Bandy met with
defendant in his chambers, concerning her work
for a federal program, Drug Free Public Housing.
Bandy wanted to implement a new program of
parenting classes for parents who lived in public
housing and had children before the juvenile
court. Since defendant was the juvenile court
judge, Bandy arranged a presentation about the
program for him. She hoped that he would refer
parents to her program as part of their children’s
sentencing.

XR X X * *

Bandy testified that when she began to leave
defendant’s chambers, he put his arms around her
and started kissing her. As she tried to turn and
pull away, defendant put one of his hands behind
her head and pulled her up to him. Defendant then
began to fondle one of Bandy’s breasts and she
tried to push him away. When she eventually
pulled herself free, Bandy saw that defendant had
lipstick all over him.

Bandy was shaken and panicked, and she went
into the bathroom to clean herself up before
leaving defendant’s chambers. After she left the
bathroom, Bandy had to walk past defendant’s desk
to exit his chambers. As she walked by, defendant,
who was sitting on the end of his desk nearest the
door, reached out and put his hand on Bandy’s
crotch. Bandy momentarily hesitated and then

68a

kept on walking towards the door. Defendant
followed her to the door and told her that if she
came back, she would have all the clients that she
wanted for her new program. ‘

Bandy testified that she never returned to see
defendant because she did not want to have to go
through that kind of treatment again. Defendant
only referred two individuals to Bandy’s program.
These two individuals had cases pending before
defendant at the time of his meeting with Bandy,
and defendant and Bandy had discussed their
cases. Bandy testified that she did not report the
incident with defendant because he was a judge
and she did not want too many people to know
about it.

Defendant testified and admitted that he had
met with Bandy alone in his chambers. He denied
ever sexually assaulting Bandy. Defendant also
testified that after their meeting, Bandy came
over to him and hugged and kissed him.

United States v. Lanier, 33 F.3d 639, 646-50 (6th Cir.
1994), vacated, 43 F.3d 1033 (6th Cir. 1995).

In light of these facts, the grand jury returned
against Lanier an 1l-count indictment enumerating
alleged violations of “the right not to be deprived of
liberty without due process of law, including the right
to be free from wilfull [sic] sexual assault, ... all in
violation of Title 18, United States Code, Section
242.” At trial, the jury, after being instructed that
the improper conduct must be “so demeaning and
harmful under all the circumstances as to shock one’s
conscience,” convicted the defendant on two felony
and five misdemeanor counts in connection with the

69a

egregious behavior. The majority, however, now
holds that prosecution pursuant to § 242 was improper
based upon its examinations of legislative history,
case law, canons of judicial interpretation, and con-
stitutional notice requirements. I respectfully sug-
gest that such analyses ignore historical facts and
jurisprudential precepts that mandate a contrary
conclusion.

A. Examination of Legislative History

Presently, 18 U.S.C. § 242 provides, in relevant
part:

Whoever, under color of any law, statute,
ordinance, regulation, or custom, willfully sub-
jects any person in any State, Territory, or
District to the deprivation of any rights, priv-
ileges, or immunities secured or protected by the
Constitution or laws of the United States.
shall be fined under this title or imprisoned not
more than one year, or both; and if bodily injury
results from the acts committed in violation of
this section.. , shall be fined under this title or
imprisoned not more than ten years or both....

At first blush, the provisions of the statute would
seem to outlaw unambiguously the willful deprivation
under color of law “of any rights ... secured or pro-
tected by the Constitution.” (Emphasis added.) Ordin-
arily, such a lack of ambiguity would preclude a foray
into the uncertainties of legislative history. As Chief
Judge Merritt himself announced in United States v.
Winters, 33 F.3d 729, 721 (6th Cir. 1994), cert. denied,
115 S.Ct. 1148 (1995), “[oJnly if the language of the
statute is unclear do we look beyond the statutory

70a

language to the intent of the legislature.” Never-
theless, in this case, simply by declaring § 242 to be
“perhaps the most abstractly worded statute among
the more than 700 crimes in the federal criminal
code,” the majority justifies its extensive recounting
of the historieal development of the provision. Then,
despite acknowledging that the forerunner of today’s
§ 242 clearly expanded the scope of criminal liability
for constitutional violations, the majority would have
us ignore the clear language of the statute and con-
clude that Congress did not intend to criminalize all
willful violations of constitutional rights committed
under color of law.

The majority’s analysis and conclusions are inter-
esting as an academic exercise attempting to divine
the motivations of a disparate collection of legis-
lators, acting over a century ago on what appears (as
is often the case with legislative action) to be a less
than fully educated basis. That analysis fails, how-
ever, to accord appropriate deference to the holdings
of Supreme Court decisions that are binding upon this
tribunal today. Specifically, in Screws v. United
States, 325 U.S. 91, 104 (1945), the Court recognized
that § 242 reached not only to a static, limited group
of super-constitutional rights, but also to any right
“which has been made specific either by the express
terms of the Constitution or laws of the United
States or by decisions interpreting them.” (Emphasis
added.) Similarly, in United States v. Price, 383 U.S.
787, 803 (1966), the Court noted that § 242, like its
companion provision, 18 U.S.C. § 241, includes in its
protections a “wide range of rights: ... ‘any rights,
privileges, or immunities, secured or protected by the

71a

Constitution or laws of the United States.“ Thus,
“the ‘customary stout assertions of the codifiers that
they had merely clarified and reorganized without
changing [the] substance’ [of § 242] cannot be taken at
face value.” Maine v. Thiboutot, 448 U.S. 1, 8 n.5
(1980) (quoting United States v. Price, 383 U.S. at
803).

Moreover, over the years, and through subsequent
amendments, Congress has not seen fit to alter § 242
in the face of Supreme Court decisions that con-
tradict the position espoused by the majority. If
Congress itself has not found it necessary to correct
the supposed misconstruction of the reach of § 242,
this court should be hesitant now to fill in the gap
that the majority attempts to create. Instead, we
should limit our inquiry in this case to the relevant
question of whether court decisions had “made
specific,” by the time Lanier committed the acts for
which he was convicted, a constitutional right to be
free from interference with bodily integrity.

B. Examination of Case Law

At the outset, it should be noted that the majority
appropriately does not contend that judges are
immune fom prosecutions under § 242. See Briscoe
v. LaHue, 460 U.S. 325, 345 n.32 (1983). Also, the
majority does not, and indeed cannot, contend that
Lanier did not perform the reprehensible acts that
form the basis of the jury’s verdict in this matter.

' Concurring in Chapman v. Houston Welfare Rights Org.,
441 U.S. 600, 661 n.34 (1979), Justice White also noted that
“[t)itle 18 U.S.C. §§ 241 and 242 encompass the same rights. See
United States v. Price, 383 U.S. at 797; United States v. Guest,
383 U.S. 745, 753 (1966); Screws v. United States, 325 U.S. at

119 (Rutledge, J., concurring).

72a

Finally, the majority does not question the con-
clusion that those acts were committed under “color
of law.” Instead, in deciding te dismiss the indictment
issued against Lanier, the majerity insists that the
constitutional right upon which the prosecution based
its case, the right to be free from interference with
bodily integrity that shocks the conscience, had not
been recognized in a United States Supreme Court
opinion at the time the defendant committed the acts
of which he was accused.

As mentioned earlier, Screws held in 1945 that the
reach of § 242 extends to any right “which has been
made specific either by the express terms of the
Constitution or laws of the United States or by
decisions interpreting them.” Screws v. United
States, 325 U.S. at 104. In this case, the government
does not rely upon any express constitutional pro-
vision “making specific” the right of individuals to be
free from interference with their bodily integrity.
Instead, the prosecution submits that principles of
substantive due process, as interpreted by the federal
courts, protect and make specific the very right
asserted in this prosecution.

This court has previously recognized that
deprivations of due process fall into two categories:
“violations of procedural due process and violations of
substantive due process.. Mansfield Apartment
Owners Assoc. v. City of Mansfield, 988 F.2d 1469,
1473-74 (6th Cir. 1993). In turn, substantive due
process violations themselves can be grouped into two
separate classifications. “The first type includes
claims asserting denial of a right, privilege, or
immunity secured by the Constitution or by federal
statute other than procedural claims under ‘the
Fourteenth Amendment simpliciter.“ Mertik v.

73a

Blalock, 983 F.2d 1353, 1367 (6th Cir. 1993) (quoting
Parratt v. Taylor, 451 U.S. 527, 536 (1981). “The
other type of claim is directed at official acts which
muy not occur regardless of the procedural safe-
guards accompanying them. The test for substantive
due process claims of this type is whether the conduct
complained of ‘shocks the conscience’ of the court.”
Mertik v. Blalock, 983 F.2d at 1367-68. It seems
obvious to me, as it did to the prosecution, the district
court, the federal jury, and the origin

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0717%3A03. Public record. Not legal advice.