Amicus Curiae Brief — Chathas v. Smith

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

ALICE CHATHAS and BYRON ELLIS,

Petitioners,

V.

NORBERT SMITH, Individually and as

Chief of Police of Village of Evergreen Park, et al.,

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

MOTION OF THE CHICAGO LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW FOR LEAVE

TO FILE A BRIEF AMICUS CURIAE IN SUPPORT OF

THE PETITIONERS AND BRIEF AMICUS CURIAE

IN SUPPORT OF THE PETITIONERS

ROSLYN C. LIEB

Counsel of Record

KIMBERLY M. WYMA

Chicago Lawyers’ Committee

for Civil Rights Under Law

185 North Wabash Avenue

Suite 2100

Chicago, Illinois 60601

(312) 630-9744

Attorneys for the Chicago Lawyers’

Committee for Civil Rights

Under Law as Amicus Curiae

January 4, 1990

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

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No. 89-910

IN THE

Supreme Court of the United States

OcTOBER TERM, 1989

ALICE CHATHAS and BYRON ELLIS,

Petitioners,

We

NORBERT SMITH, Individually and as

Chief of Police of Village of Evergreen Park, et al.,

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

MOTION OF THE CHICAGO LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW

FOR LEAVE TO FILE A BRIEF AMICUS CURIAE

IN SUPPORT OF THE PETITIONERS

Pursuant to Rule 36.3 of the Rules of this Court, the

Chicago Lawyers’ Committee for Civil Rights Under Law,

Inc. (the ‘Lawyers’ Committee”) moves for leave to file

a brief amicus curiae in support of the Petitioners in the

above-captioned proceeding. In support of this motion, the

Lawyers’ Committee states:

1. Although the attorney for the Petitioners has con-

sented to the filing of the attached proposed brief amicus

curiae, the attorneys for the Respondents have refused

consent.

il

2. The Lawyers’ Committee has represented plaintiffs

in numerous actions against police departments and other

governmental entities, often in causes that have been

viewed as unpopular. Over the past twenty years, hun-

dreds of private attorneys have contributed their services

to work on Lawyers’ Committee cases filed to eliminate

inequities in the law on behalf of the voiceless and dis-

possessed members of society. The holding of the Seventh

Circuit Court of Appeals in this cause trivializes the con-

stitutional rights of both an attorney and her client, and

could have a serious chilling effect on the willingness of at-

torneys to represent clients with unpopular causes. There-

fore, the Lawyers’ Committee has an essential interest

in having this Court grant certiorari to the Petitioners.

3. The Lawyers’ Committee believes that this case is

of great importance to all citizens of the United States

since it presents issues related to basic Fourth and Four-

teenth Amendment rights to be secure from unreasonable

searvhes, seizures, and the use of excessive force. In par-

ticular, it raises serious issues related to the conflict

among the Circuit Courts of Appeals as to the retroactive

application of last term’s decision in Grakam v. Connor,

109 S.Ct. 1865 (1989). It also presents the issue of each

person's right of access to the courts. These kinds of

issues have been the touchstone of the work of the

Lawyers’ Committee for the past two decades.

4. Because of the national significance of the issues in-

volved in the case and the failure of Petitioners to raise

fully the issue of the retroactive application of Graham,

the Lawyers’ Committee feels that the present parties

cannot adequately represent the interests of the public

while at the same time representing their own parochial

interests.

ill

For the foregoing reasons, the Chicago Lawyers’ Com-

mittee for Civil Rights Under Law requests that the

Court grant this motion for leave to file the attached brief

amicus curiae. :

January 4, 1990

Respectfully submitted,

ROSLYN C. LIEB

Counsel of Record

KIMBERLY M. WYMA

Chicago Lawyers’ Committee

for Civil Rights Under Law

185 North Wabash Avenue

Suite 2100

Chicago, Illinois 6061

(312) 630-9744

Attorneys for the Chicago Lawyers’

Committee for Ciirl Rights

Under Law as Amicus Curie

iv

TABLE OF CONTENTS

REASONS FOR GRANTING THE WRIT ....

I.

BY FAILING TO APPLY THE GRAHAM

STANDARD TO CHATHAS’ AND ELLIS’ EX-

CESSIVE FORCE CLAIMS, THE SEVENTH

CIRCUIT IGNORED THE PRINCIPLE THAT

NEWLY-FASHIONED LEGAL RULES SHOULD

BE APPLIED TO PENDING CIVIL CLAIMS—

A PRINCIPLE THAT SO CLEARLY DIC-

TATES THE RETROACTIVE APPLICATION

OF GRAHAM THAT EVERY OTHER LOWER

COURT CONSIDERING THE ISSUE HAS

FOUND FF COUPES hess ebsrencceuss

A. The Seventh Circuit’s Decision Not To

Apply The Fourth Amendment “Reason-

ableness Test” Of Graham To Pending

Excessive Force Claims That Arose Prior

To Graham Conflicts With The Holdings

Of The Second, Fifth, Eighth, And Dis-

trict of Columbia Circuits ............

B. Under The Court’s Three-Part Test In

Chevron Oil, The Seventh Circuit Erred

In Not Applying Graham’s Fourth Amend-

ment Standard To Chathas’ And Ellis’

Excessive Force Claims ..............

Vv

Il.

WHEN PETITIONER CHATHAS ENTERED

THE COURTHOUSE TO REPRESENT HER

CLIENT, RESPONDENTS DEPRIVED HER

OF HER FOURTH AMENDMENT RIGHT

AGAINST UNREASONABLE SEIZURE AND

EXCESSIVE FORCE BY FORCIBLY LIFTING

HER OFF HER FEET AND MOVING HER

INTO A DARKENED JURY ROOM ........

Ill.

RESPONDENTS DEPRIVED PETITIONER

ELLIS OF HIS FOURTEENTH AMENDMENT

RIGHT TO ACCESS TO THE COURTS AND

HIS FOURTH AND FOURTEENTH AMEND-

MENT RIGHT AGAINST EXCESSIVE FORCE

BY PHYSICALLY ASSAULTING HIM WITH-

OUT CAUSE, FORCIBLY RESTRAINING HIM

IN A JURY ROOM, AND PREVENTING HIM

FROM APPEARING AT A SCHEDULED HEAR-

BE, Hea ecu keded ew riasa rch aves cereap tases

vi

TABLE OF AUTHORITIES

Cases PAGE

Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.

IGGQ ne vevecvnwvseeeeecures eee 13

Brown v. Glossip, 878 F.2d 871 (5th Cir. 1989) .. 5

Brown v. Louisiana, 447 U.S. 323 (1980) ...... 5

Burch v. Louisiana, 441 U.S. 130 (1979) ...... 5

Carey v. Piphus, 435 U.S. 247 (1978) ......... 8

Chathas v. Smith, 884 F.2d 980 (7th Cir. 1989) .: 5, 11, 15

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)... 6,7

EEOC v. Vucitech, 842 F.2d 936 (7th Cir. 1988) . 6

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) . 6

Graham v. Connor, ___. U.S. ___, 109 S. Ct. 1865

(10GB): .. ce vsncsennseteusnaneeuaun ee passim

Graham v. Davis, 880 F.2d 1414 (D.C. Cir. 1989) . 5

Gumz v. Morrisette, T72 F.2d 1395 (7th Cir. 1985). 4,12

Heckler v. Mathews, 465 U.S. 728 (1984) ...... 8

Johnson v. Morel, 876 F.2d 477 (5th Cir. 1989) ... 5

Lemon v. Kurtzman, 411 U.S. 192 (1973) ..... 5

Lemon v. Kurtzman, 403 U.S. 602 (1971) ..... 5

Lester v. City of Chicago, 830 F.2d 706 (7th Cir.

ROBT) .....sacecencannaeeaennaee einen: 4

Lund v. Shearson/Lehman/American Express, Inc.,

852 F.2d 182 (Gth Cir. 1988) .............. 6

Miller v. Lovett, 879 F.2d 1066 (2d Cir. 1989)... 5,12

vii

Payton v. New York, 445 U.S. 573 (1980) .....

Roach v. City of Fredericktown, 882 F.2d 294 (th

OC dnaig ale ich we eases TP RES DCEO S >

Saint Francis College v. Al-Khazraji, 107 S. Ct.

PSR ae eo A Re

Teague v. Lane, 109 S. Ct. 1060 (1989) .......

Tennessee v. Garner, 417 U.S. 1 (1985) .......

Terry v. Ohio, 392 U.S. 1 (1968) .............

Thorpe v. Housing Authority, 393 U.S. 26% (1969) .

United States v. Johnson, 457 U.S. 537 (192) ...

United States v. Security Industrial Bank, 459

i EE ae nc vundepiesuctceses ne ee:

Other Authority

Freyermuth, Rethinking Excessive Force, 19%7

a i ee awa eben ees

wa |

fy

No. 89-910

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

ALICE CHATHAS and BYRON ELLIS,

Petitioners,

Vv.

NORBERT SMITH, Individually and as

Chief of Police of Village of Evergreen Park, et al.,

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

PROPOSED BRIEF OF THE CHICAGO LAWYERS’

COMMITTEE FOR CIVIL RIGHTS UNDER LAW AS

AMICUS CURIAE IN SUPPORT OF THE PETITIONERS

INTEREST OF AMICUS CURIAE

The Chicago Lawyers’ Committee for Civil Rights Under

Law (“the Lawyers’ Committee”’) is one of eight affiliated

civil rights organizations around the country that were

formed in the 1960’s and 1970’s to provide pro bono legal

representation to people who were being deprived of their

==

civil rights. Over the past two decades the Lawyers’ Com-

mittee has represented the interests of Blacks, Hispanics,

women, and the disabled in hundreds of cases related to

employment discrimination, housing discrimination, equal

access to public accommodations, education, and voting

rights.

Among those actions have been several major lawsuits

against municipalities and police departments for violations

of civil rights. The Lawyers’ Committee’s cases are handled,

in large measure, by volunteer attorneys. In this matter,

the treatment of both Petitioners as well as the holdings

of the Seventh Circuit Court of Appeals that the seizure

and force used against attorney Chathas and her client

Ellis were within constitutional limits could have a serious

chilling effect on the willingness of attorneys to repre-

sent clients with unpopular causes. Thus, the Lawyers’

Committee, which relies so heavily on the pro bono work

of attorneys, has an essential interest in having this Court

grant certiorari to the Petitioners.

pare

REASONS FOR GRANTING THE WRIT

I.

BY FAILING TO APPLY THE GRAHAM STANDARD TO

CHATHAS’ AND ELLIS’ EXCESSIVE FORCE CLAIMS,

THE SEVENTH CIRCUIT IGNORED THE LONG ESTAB-

LISHED PRINCIPLE THAT NEWLY-FASHIONED LEGAL

RULES SHOULD BE APPLIED TO PENDING CIVIL

CLAIMS—A PRINCIPLE THAT SO CLEARLY DICTATES

THE RETROACTIVE APPLICATION OF GRAHAM THAT

EVERY OTHER LOWER COURT CONSIDERING THE

ISSUE HAS FOUND IT CONCLUSIVE.

A. The Seventh Circuit’s Decision Not To Apply The Fourth

Amendment “‘Reasonableness Test’’ Of Graham To Peti-

tioners’ Pending Excessive Force Claims Conflicts With

The Holdings Of The Second, Fifth, Eighth, And District

Of Columbia Circuits.

Last term in Graham v. Connor, 109 S. Ct. 1865 (1989),

this Court firmly embraced a uniform framework for ex-

cessive force claims brought in the context of ‘“‘an arrest

or investigatory stop, or other ‘seizure’ of a free citizen.”

Id. at 1871. Distinguishing such claims from those brought

by pretrial detainees and prisoners, the Court concluded

that all such claims “should be analyzed under the Fourth

Amendment and its ‘reasonableness’ standard, rather than

under a ‘substantive due process’ approach.” Jd.

Although Petitioners do not directly raise the issue of

retroactive application of Graham in their petition for cer-

tiorari, amicus argues that this is a crucial issue that

should be considered here. Last term in Teague v. Lane,

109 S. Ct. 1060 (1989), this Court recognized the propriety

of addressing the question of retroactivity in just this situ-

ation, either when an amicus brief raises the issue, or

when the Court sua sponte decides to address it. Jd. at

ils

1069. Amicus respectfully submits that the Court should

address the issue of retroactivity here since the Seventh

Circuit decision in this case was contrary to well estab-

lished case law when it failed to apply the holding in

Graham retroactively.

Prior to the decision in Graham, most lower federal

courts had endorsed a far less accommodating substantive

due process standard. Indeed, the Second, Fifth, Sixth,

Eighth, Ninth, Tenth, and Eleventh Circuits had routinely

applied a due process standard to excessive force claims

based on police mistreatment during an investigatory stop

or seizure. See Freyermuth, Rethinking Excessive Force,

1987 DUKE L.J. 692, 695 n.20. A few other circuits, the

Seventh included, initially relied on a due process analysis

before adopting a Fourth Amendment “‘objecti | reason-

ableness” standard. Compare Lester v. City 0, — hicago,

830 F.2d 706 (7th Cir. 1987) (excessive force claims should

be founded on the Fourth Amendment) with Gumz v.

Morrisette, 772 F.2d 1395 (7th Cir. 1985) (endorsing due

process approach).

This near consensus among lower courts ensured that

while the pre-Graham due process regime held sway,

nearly all excessive force claims based on police behavior

during an arrest or investigatory stop were subject to the

much higher “shocks the conscience” standard. Such claims,

in turn, represented a significant proportion of all ex-

cessive force claims, including those brought by pretrial

detainees and prisoners. See Freyermuth, 1987 DUKE L.J.

at 694-95 (roughly half of all excessive force claims).

In the period that has elapsed since Graham, those cir-

cuits which had adopted the prevailing due process stan-

dard and circuits, like the Seventh, which had only re-

—__eently rejected such an approach, have had to choose the

=e on

proper standard to apply to the pending claims that arose

prior to this Court’s adoption of the Fourth Amendment

standard. In addition to the Seventh Circuit, four other

circuits have considered the retroactive application of

Graham. See Roach v. City of Fredericktown, 882 F.2d

294, 297 (8th Cir. 1989); Brown v. Glossip, 878 F.2d 871,

873 (5th Cir. 1989); Graham v. Davis, 880 F.2d 1414, 1419

(D.C. Cir. 1989); Miller v. Lovett, 879 F.2d 1066, 1069-70

(2d Cir. 1989); Johnson v. Morel, 876 F.2d 477, 478 (5th

Cir. 1989). With the glaring exception of the Seventh Cir-

cuit, in each case the circuit court has applied the holding

in Graham to pending claims.

The consensus among other circuits notwithstanding, the

majority below summarily rejected the retroactive appli-

cation of Graham to Chathas’ and Ellis’ excessive force

claims. Although acknowledging Graham’s unequivocal en-

dorsement of a Fourth Amendment analysis, the Chathas

majority expressly considered and declined to apply Graham

to Petitioners’ excessive force claims. See Chathas v.

Smith, 884 F.2d 980, 988 (7th Cir. 1989).

Given the split among the circuits and the certainty that

this issue will recur with great frequency, granting cer-

tiorari in this case would be entirely consistent with the

Court’s practice of quickly resolving the retroactive force

of recently fashioned important constitutional rules. See,

e.g., Brown v. Louisiana, 447 U.S. 323 (1980) (address-

ing the retroactivity of Burch v. Louisiana, 441 U.S. 130

(1979)); United States v. Johnson, 457 U.S. 537 (1982) (ad-

dressing retroactivity of Payton v. New York, 445 U.S.

573 (1980)); Lemon v. Kurtzman, 411 U.S. 192 (1973) (ad-

dressing retroactivity issue raised by Lemon v. Kurtzman,

403 U.S. 602 (1971)); see generally Johnson, 457 U.S. at

542 (“Since Linkletter, the Court’s announcement of a con-

stitutional rule in the realm of criminal procedure has

-

been followed by a separate decision explaining whether,

and to what extent, that rule applies to past, pending,

and future cases.”). Such a course should be followed here.

B. Under The Court’s Three-Part Test In Chevron Oil, The

Seventh Circuit Erred In Not Applying Graham’s Fourth

Amendment Standard To Chathas’ And Ellis’ Excessive

Force Claims.

From the time of Chief Justice Marshall, in the vast

majority of cases this Court has held that an appellate

court should apply the case law governing at the time

of appeal even if that case law has changed the law pre-

vailing at the time of trial and at the time of the incidents

forming the basis of suit. In cases not involving the im-

position of criminal liability, this Court has rarely wavered

from the principle of retroactive application of judicial de-

cisions, a principle this Court observed should be “familiar

to every law student.’”’ United States v. Security Indus-

trial Bank, 459 U.S. 70, 79 (1982); see also Saint Francis

College v. Al-Khazraji, 107 S. Ct. 2022, 2025 (1987).

Only in ‘‘certain defined circumstances,” Goodman v.

Lukens Steel Co., 482 U.S. 656, 662 (1987), have courts

employed the three-part test in Chevron Oil Co. v. Huson,

404 U.S. 97 (1971), to limit a rule to prospective applica-

tion. See Lund v. Shearson/Lehman/American Express,

Inc., 852 F.2d 182, 184 (6th Cir. 1988) (‘exception to

retroactivity” should be construed “narrowly”); EEOC v.

Vucitech, 842 F.2d 936, 941-42 (7th Cir. 1988) (presump-

tion “strongly in favor of retroactive application”). Under

Chevron, a court may refuse to apply a newly-decided rule

of law retroactively only if the decision “‘establish[es] a

new principle of law, either by overruling clear past prece-

dent on which litigants may have relied ... or by deciding’

an issue of first impression whose resolution was not clear-

a en

ly foreshadowed.” 404 U.S. at 106. Even if this threshold

requirement were met, a court still would have to “weigh

the merits and demerits” of retroactive application, id.

at 106-107, and “the inequity imposed by retroactive appli-

cation.” Jd. at 107. Even assuming that Graham overruled

clearly established precedent, the other two considerations

articulated in Chevron counsel this Court to uphold the

“general rule ... that an appellate court must apply the

law in effect at the time it renders its decision.”’ Thorpe

v. Housing Authority, 393 U.S. 268, 281 (1969).

The retroactive application of Graham will not produce

an inequitable result, and in fact furthers the rationale

underlying section 1983: compensating victims of unconsti-

tutional conduct by government officials. This Court has

found retroactive application to be inequitable especially

when past expectations have been firmly based on bright

line rules. Yet such is not the case here. In Chevron itself,

the Court rejected the retroactive application of a statute

of limitations that would have time-barred petitioner’s

claim. See Chevron, 404 U.S. at 108. The Court in Saint

Francis College v. Al-Khazraji, 107 S. Ct. at 2025, refused

to foreclose respondent’s section 1981 claim through the

retrospective application of a new statute of limitations.

In both cases, the party that would have been prejudiced

had formed expectations based on an unequivocal prior

rule that precisely specified conforming conduct. See

Chevron, 404 U.S. at 108. As the Chevron Court noted,

defeating expectations based on less clearly-established

prior rules “would not work a comparable hardship.” 404

U.S. at 108 n.10.

Such 1s the case with the Graham decision. Retroactive

application will impinge on far less well-established expec-

tations. In striking contrast to an obligation to file suit

= =

within a set period of time, the due process standard in-

corporated only a general proscription against behavior

that “‘ ‘shocks the conscience.’ ”’ Graham, 109 S. Ct. at

1870 (citation omitted). Given the amorphous nature of this

standard, police departments and law enforcement officers

in the field are most unlikely to have been led to believe

that the use of force on any given occasion would pass

constitutional muster.

Moreover, any expectations that law enforcement offi-

cers may have formed about the constitutionality of em-

ploying more than the “reasonable” amount of force per-

mitted by Graham are illegitimate. The Graham Fourth

Amendment standard fully accommodates legitimate law

enforcement concerns by excusing all uses of force that

are reasonable “in light of the facts and circumstances” —a

standard that allows for “the fact that police officers are

often forced to make split-second judgments—in circum-

stances that are tense, uncertain and rapidly evolving . . . .”

Graham, 109 S. Ct. at 1872. Unlike the case of the plain-

tiffs in Chevron and St. Francis Hospital whose lawsuits

would have been foreclosed by the application of the

“new” rule, here there can be no legitimate law enforce-

ment rationale for employing more force than that per-

mitted under Graham. Retroactive application of Graham

is entirely consistent with the precept that “an unconsti-

tutional scheme could not be retained . . . even for a brief

period if the expectations sought to be protected were

themselves unreasonable or illegitimate... .’’ Heckler v.

Mathews, 465 U.S. 728, 746 (1984).

This Court has recognized that compensating “persons

for injuries caused by the deprivation of constitutional

rights” is “the basic purpose of a section 1983 damages

award.” Carey v. Piphus, 435 U.S. 247, 254 (1978). This

+ A RAN ec ARID = 0 aia

=

general principle applies with particular vigor to excessive

force claims for which there is no adequate alternative

remedy. To allow the Seventh Circuit’s decision to stand

would be to trivialize the constitutional rights invoked by

Petitioners. This Court has acknowledged a duty to “ ‘re-

solve all cases ... on direct review in light of [the Court’s]

best understanding of governing constitutional prin-

ciples.’”’ United States v. Johnson, 457 U.S. 587, 555

(1982) (citation omitted). ‘ ‘If a ‘‘new”’ constitutional doc-

trine is truly right, we should not reverse lower courts

which have accepted it; nor should we affirm those which

have rejected the very arguments we have embraced.’ ”’

Id. Retroactive application of Graham would allow a just

result.

In sum, the Seventh Circuit’s refusal to apply Graham

retroactively is an indefensible departure from a proper

and long-accepted principle. This Court should grant cer-

tiorari to correct this error, to resolve the conflict among

the Circuit Courts of Appeals, and to provide guidance

to other lower courts that will face this issue in the

future.

Il.

WHEN PETITIONER CHATHAS ENTERED THE COURT-

HOUSE TO REPRESENT HER CLIENT, RESPONDENTS

DEPRIVED HER OF HER FOURTH AMENDMENT

RIGHT AGAINST UNREASONABLE SEIZURE AND

EXCESSIVE FORCE BY FORCIBLY LIFTING HER OFF

HER FEET AND MOVING HER INTO A DARKENED

JURY ROOM.

According to the facts elicited at trial, facts which must

be taken in the light most favorable to Petitioners, as

Petitioner Chathas entered the courthouse, she and her

purse were scanned by a metal detector. When she then

=

attempted to proceed to the courtroom for her client’s

hearing, Respondents seized Chathas, lifted her off her

feet, carried or dragged her across the rotunda of the

courthouse, and deposited her into a darkened jury room.

Once in the jury room, Respondents searched her purse

and subjected Chathas to a pat down search. Throughout

the entire incident, Respondents refused to answer Chathas’

requests for information about the reason she was being

seized and where Respondents were taking her.

The Fourth Amendment to the United States Constitu-

tion protects persons against unreasonable seizures. It is

undenied that Chathas was seized. In Terry v. Ohio, this

Court recognized that the seizure of a person includes any

conduct that ‘by means of physical force ... has in some

way restrained the liberty of a citizen.” 392 U.S. 1, 19

n.16 (1968). The question here is whether this seizure was

reasonable. Amicus argues that in light of the surround-

ing circumstances, the seizure of Chathas was unreason-

able and a violation of the Fourth and Fourteenth Amend-

ments. Tennessee v. Garner, 417 U.S. 1, 8-9 (1985). First,

Chathas was an attorney who had come to the courthouse

to represent her client at trial, a trial, it should be noted,

in which some of the Respondents were defendants. As an

officer of the court, Chathas could have expected to have

been and should have been treated with more respect and

dignity. Second, having already examined Chathas’ per-

son and purse with a metal scanner, Respondents knew

that she was not armed. They therefore had no probable

cause for seizing and physically moving her to the jury

room for a further search. When Chathas repeatedly

asked why she was being searched and where she was

being taken, Respondents would not even answer. Final-

ly, whatever probable cause Respondents may have had

to seize Petitioner Ellis, they had ne probable cause to

search, seize, or detain Petitioner Chathas. Thus, in light

|

of the surrounding circumstances, the seizure of Chathas

was unreasonable and violated her Fourth Amendment

rights. Graham v. Connor, 109 S. Ct. 1865 (1989). As

Judge Fairchild noted in his dissenting opinion, at the

very least, Chathas ‘“‘made out a prima facie case, of un-

reasonable seizure of her person in violation of the Fourth

Amendment,” and the jury should have been allowed to

consider the issue. Chathas v. Smith, 884 F.2d at 990.

Because the granting of the directed verdict motion by

the district court was plain error, the Seventh Circuit

should have reversed and remanded the case for further

proceedings.

The fact that Chathas was an attorney who was at the

courthouse to represent her client at a trial that involved

some of the Respondents emphasizes the egregious nature

of the Respondents’ conduct. Amicus urges this Court to

grant the petition for writ of certiorari in order that such

unreasonable searches and seizures of attorneys will not

go unredressed. To allow such conduct could inhibit the

filing of nonfrivolous cases against governmental agencies

and law enforcement officers. Thus, this case has signifi-

cant implications for all attorneys, particularly for public

interest and civil rights attorneys.

In addition to challenging the unreasonableness of her

seizure under the Fourth and Fourteenth Amendments,

Chathas claimed that her seizure was effectuated with ex-

cessive force. This Court recently held that “‘a// claims

that law enforcement officers have used excessive force—

deadly or not—in the course of an arrest, investigatory

stop, or other ‘seizure’ of a free citizen should be analyzed

under the Fourth Amendment and its ‘reasonableness’

standard ....” Graham v. Connor, 109 S. Ct. at 1871 (em-

phasis in original). As was noted above in the first sec-

tion, it is a well-settled principle that with few exceptions,

=

a circuit court of appeals should apply the decisions of

this Court, even decisions rendered during the time inter-

vening between the judgment of the trial court and the

consideration of the case by the appellate court. In accord-

ance with this principle, several Circuit Courts of Appeals

have applied Graham in -cases similar to this one. In

Miller v. Lovett, the Second Circuit held, “In light of

Graham, (decided four days before Miller was argued to

the circuit court], it was plain error to charge the jury

under the old ... standard for evaluating excessive force

claims ....” 879 F.2d 1066, 1070 (2d Cir. 1989). Such

should have been the case here as well.

However, the United States Court of Appeals for the

Seventh Circuit refused to apply this Court’s holding in

Graham. While noting Graham, the Seventh Circuit af-

firmed the district court’s use of a very different stan-

dard. Further, the Seventh Circuit’s opinion is internally

inconsistent. The court appears to suggest that since the

Graham decision was decided after the Respondents’ use

of excessive force, the conduct must be measured against

the standard that was in place at the time. However, the

standard that the district court used (the more stringent

test adopted in Guwmz v. Morrisette, 772 F.2d 1395 (7th

Cir. 1985)) had itself not been decided at the time of the

Respondents’ conduct. In sum, the Seventh Circuit’s deci-

sion is contrary to the decision of this Court in Graham

which should have been controlling and applied in this

case.

Finally, this Court withheld its consideration of the

“proper application” of qualified immunity claims “in ex-

cessive force cases that arise under the Fourth Amend-

ment” in Graham. 109 S. Ct. at 1873 n.12. Amicus urges

this Court to grant the petition for writ of certiorari and

take the opportunity this case affords to address that

issue.

eis

Ill.

RESPONDENTS DEPRIVED PETITIONER ELLIS OF

HIS FOURTEENTH AMENDMENT RIGHT OF ACCESS

TO THE COURTS AND HIS FOURTH AND FOURTEENTH

AMENDMENT RIGHT AGAINST EXCESSIVE FORCE BY

PHYSICALLY ASSAULTING HIM WITHOUT CAUSE,

FORCIBLY HOLDING HIM IN A JURY ROOM, AND

PREVENTING HIM FROM APPEARING AT A SCHED-

ULED HEARING.

Access to the courts is a hallmark of this nation’s justice

system and is guaranteed by the Due Process Clause of

the Fourteenth Amendment. As the Seventh Circuit itself

noted, ““To deny such access defendants need not literal-

ly bar the courthouse door ....”’ Bell v. City of Milwau-

kee, 746 F.2d 1205, 1261 (7th Cir. 1984). Here, that is

exactly what Respondents did; they effectively barred the

courthouse door. But in this case the Seventh Circuit held

that because Petitioner Ellis eventually won the case for

which he was at the courthouse the day Respondents de-

prived him of his constitutional rights, he was not “prej-

udiced”’ by the deprivation and, therefore, had no right

to any redress.

Bell involved a claim by a decedent’s family and estate

against defendant police officers who concealed the facts

surrounding decedent’s death. If one applied the Seventh

Circuit’s analysis in the instant case to the facts in Bell,

the plaintiffs would have had no claim because they ulti-

mately found out that defendants were concealing facts

and successfully sued the defendants. However, there, the

Seventh Circuit held that the mere concealment of ma-

terial facts by the defendants was a violation of the plain-

tiffs’ constitutional due process right of access to the

courts. Here, Respondents did not conceal facts, but at-

tempted to “conceal” Petitioner and actually prevented

him from appearing in court that day. Such conduct con-

sate lice

stituted a violation of Petitioner’s due process right of

access to the courts.

Respondents also violated Ellis’ constitutional right against

excessive force. Assuming arguendo that Respondents had

probable cause to seize Ellis, the question remains whether

that seizure was effected with excessive force. As stated

above, the excessive force claim should have been analyzed

under the Graham reasonableness standard. While ulti-

mately such question is a question of fact to be decided

by a jury, and should have been allowed to go to the jury

in this case, amicus supports Petitioners’ claim that the

force used to effectuate the seizure was excessive.

First, after scanning Ellis with the metal scanner and

searching his briefcase, Respondents knew that he was

unarmed. Second, without giving either Chathas or Ellis

an explanation, Respondents carried or dragged away

Ellis’ attorney and then physically assaulted Ellis as he

tried to make his way to the courtroom in which his hear-

ing was to be held. Third, Ellis was exhibiting no unusual

or violent behavior, nothing that would give cause for

alarm or call for the beating that he received at the hands

of Respondents. Fourth, Respondents refused to give Ellis

an explanation or reason for the seizure or to state

whether he was under arrest. Fifth, Respondent Cainkar,

an attorney acknowledged that Ellis’ constitutional rights

were being violated. Cainkar repeatedly stated that he

did not care whether he was violating Ellis’ civil rights,

and that he did not give a “damn” about the law. See

Petition at 8. Such utter disregard for constitutional rights

should not go unredressed.

Again, amicus emphasizes that this Court need not de-

cide the issue of whether Respondents’ treatment of Peti-

tioner Ellis was violative of the Fourth Amendment. Since

under the reasonableness standard, Petitioner Ellis made

|

out a prima facie case and the issue should have been

allowed to go to the jury. See Chathas v. Smith, 884 F.2d

at 990 (“Ellis sufficiently made out a prima facie case that

he was subjected to excessive force by the defendants he

identified.”) (Fairchild, J., dissenting). Because this case

represents such a departure from the accepted and proper

judicial proceedings with regard to the granting of a mo-

tion for directed verdict, this Court should grant the peti-

tion for certiorari and remand the case for a new trial.

If this Court allows the circuit courts of appeals to act

as judge and jury, the right to a jury of one’s peers be-

comes a hollow one.

CONCLUSION

For these various reasons, particularly the conflict among

the circuits on the retroactive application of Graham,

amicus submits that the petition for certiorari should be

granted.

January 4, 1990

Respectfully submitted,

ROSLYN C. LIEB

Counsel of Record

KIMBERLY M. WYMA

Chicago Lawyers’ Committee

for Civil Rights Under Law

185 North Wabash Avenue

Suite 2100

Chicago, Illinois 60601

(3i2) 630-9744

Attorneys for the Chicago Lawyers’

Committee for Civil Rights

Under Law as Amicus Curiae