# Amicus Curiae Brief — Chathas v. Smith > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0734%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 493 U.S. 1095 ## Text : a“ ri yw" © , ri No. 89-910 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 wees wae ee ne ee OA | 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0734%3A4. Public record. Not legal advice.