Opposition Brief — Andrews v. Fairley

[Seen Coat US.

| FILED

No. 09-745 |__APR 19 2010

T orice OF THE CLERK

IN THE

Supreme Court of the United States

DENNIS ANDREWS, TIM KAUFMANN, SAUL WEINSTEIN,

NosBerto BErcaAsSIO, FRED CoFFEY, EVAN FERMAINT,

LONALD PROHASKA and EDWARD ByRng,

Petitioners.

ROGER FAIRLEY and RICHARD GACKOWSKI.

Respondents.

ON PETITION FOR A WRit OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS

FOR THE SEVENTH CIRCUIT

MATTHEW J. PIERS

Counsel of Record

Mary M. RowLanp

HuGHES SocoL PIERS

RiSNICK & Dy, LTp.

70 W. Madison, Suite 4000

Chicago, Illinois 60602

(312) 580-0100

mpiers@hsplegal.com

Counsel for Respondents

PAVIA cr

QUESTION PRESENTED

Whether the appellate court correctly held that

harassment of two county correctional officers, that

included threats of physical violence and battery, made

under color of law and with the purpose of intimidating

the employees from providing truthful and constitutionally

protected testimony in a civil lawsuit, is actionable under

the First Amendment

TABLE OF CONTENTS

QUESTION PRESENTED ..................

TABLE OF CONTENTS ....... aa caret ai U

TABLE OF AUTHORITIES .. ret ll

REASONS FOR DENYING THE PETITION ...

STATEMENT OF THE CASE .............. 2

Tote) 4, yer re ' 6

A. THERE IS NO SPLIT IN THE

CIRCUITS BECAUSE THE COURT OF

APPEALS’ LEGAL HOLDING IS

WELL-ESTABLISHED AND UNRE

MARKABLE. . - Peer ere (5

CONCLUSION 1]

TABLE OF CITEDAUTHORITIES

CASES

Aebisher 1 Kya n, 622 F.2d 651 (2d Cir.1980) . v

Alexander v. United States, 509 U.S. 544 (1998

evcisicaawee tee eS LO

bard v. State of Arizona, 401 U.S. 1 (1971) a

Bantam Books, Inc. v. Sullivan. 372 U.S. 58

1963)...... ada kaa ee errr ek

Edwards v. City of Goldsboro, 178 F.3d 231

4" Cir 1999) : > aelae ele’ .

Fairley A nare MWS, 57S 3d D1s {' ( iV. ZU0Y ) F Z

Farrle Y Vv Fermaint, 482 F.3d 897 (7 Ci

cert dened. 128 S A LS] (2007

La fit (Vv Bowls r Corn {} We Site ry Wel] U sy}

Inc., 261 U.S. 887 (1923

Morr ( naau 146 i 3) LOZ ( I uo

Py Lhowuse [4 / al j \f | / fy 14 (}

frctire

Ridpath hy Board or (sO YrvOY

(4 Cir. 2006)

Schenck v. United States. 249 U.S

lUinited Public Workers of America 1 Mitchel)

330 U.S. 75 (1947

STATUTES

18 U.S.C

y 7 ,

RULES

4 at

supreme Court Rul

REASONS FOR DENYING THE PETITION

Petitioners set out to silence — through harassment,

threats of physical violence and batteries

tespondents’ truthful testimony in a well-publicized

case about the use of excessive force at the Cook County;

Jail. That such conduct, when done under color of law

is actionable as a violation of the First Amendment 1

obvious, unremarkable and does not warrant thi

Court’s attention. Rather than cite any applicable

section of Supreme Court Rule 10, Petitioners attempt

to divert the Court's attention by asserting that

certiorari should be granted because the Seventh

Circuit Court of Appeals has “effectively transform|ed|

the most basic of juvenile schoolyard threats if you

tell on me, I'll beat you up ’— into a prima facie federua

cause of action.” Pet. at 7. The Court of Appeals did ni

uch thing. Instead, the appellate opinion, citing thi

Court's cases from as far back as 1919, upholds the

axiomatic proposition that it}hreatening penaltie to?

future speech goes by the name ‘prior restraint, and a

prior restraint is the quintessential first amendment

violation.” Fairl yt A lrew av ee. Ie3d 518, 625 (7" {1}

2009) (citing Schenck v. United States, 249 U.S. 47, 5]

D2 (1919)(“It well may be that the prohibition of law

abridging the freedom of speech is not confined t

previous restraints, although to prevent them may hav:

been the main purpose. )). Not only is there no split

the Court of Appeal on the legal } le raised in thi

petition, but the appellate court holding is based on wi

established law and in no way “conflict|s] with relevant

decisions of this Court.” See Supreme Court Rule 10(a

ne grant of a petition for cert ral require

ompelling rea I , ire entire KI! aL

Layne & Bowler ¢ ‘OTP. 2 Western Well Works. Inc.. 261

U.S. 387, 393, 438 S. Ct. 422, 423 (1923) (in dismissing

the writ, the Court stated, “it is very important that we

be consistent in not granting the writ of certiorari except

in cases involving principles the settlement of which is

of importance to the public, as distinguished from that

of the parties, and in cases where there is a real and

embarrassing conflict of opinion and authority between

the Circuit Courts of Appeals.”) Accordingly, the writ

must be denied

STATEMENT OF THE CASE

Petitioners trivialize the constitutional violatior

here (as well as the appellate court’s opinion) when

they assert that the harassment in this case 1s aki

Lo a playground argument among schoolchildren

Pet. at 7. The harassment in this case is substantially

more serious than a typical schoolyard quarrel

\s correctional officers at the Cook County ail. Fairley

ind Gackowski routinely witnessed fellow officers beat

and abuse inmates. R.553-6 at 146, 51. 71-72, 198, 20]

46-247, 311-312; R.686 at 4-7.’ When they objected t

and reported the abuse, their fellow officers and

pervisors viciou harassed and taunted them.~ O1

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July 29, 2000, Fairley witnessed Petitioners Fermaint

and Bercasio and other officers beat handcuffed and

shackled inmates in and near the “Special Incarceration

2 Unit” (the “SI-2 Incident”). R.553-6 at 171, 74; R.686

aut 5. Fairley yelled at the officers to stop beating the

inmates. R.553-6 at 976; R686 at 5. Petitioner Byrne,

however, told the officers, “They want to hurt my officer:

Fuckin’ kill ‘em. They deserve to die.” R.553-6 at 977

On August 5, 2000, Byrne told Gackowski that during

the SI-2 Incident, Byrne had twisted and jumped on an

inmate's leg in an attempt to break it but that he could

not get it to “snap.” R.553-6 at 189. During that same

discussion, Petitioner Fermaint told Gackowksi, “lw

got |inmate] Scott. We beat that bitch’s ass.” R.553-6 al

790

On August 16, 2000, the inmates who had been

beaten during the SI-2 Incident filed a lawsuit (the

“Fields Litigation”). R.553-6 at 191104-105; R.686 at 6

he filing of that case received substantial media

attention, and was widely discussed among officer

R.553-6 at 191106-124. It became widely known that an

investigator working for the inmates’ counsel attempted

to interview Fairley, already an officer widely derided

as an “inmate lover.” R.686 at 7-8. After the S1-2

Incident, and increasingly after the inmates’ private

investigator sought to interview Fairley, both

Respondents experienced pervasive and unrelenting

harassment by Petitioner ind other office and

uperviso! R.686 at 7-3. In addition to frequent

incidents of verbal harassment, Petitioners Bercasio and

Fermaint forcefully attempted to and did “dry hump”

Fairley and Gackowsk}, seizing them from behind and

lating anal intercourse. KR -H at 254-256. 2¢

R.686 at 8. Bercasio repeatedly drew vile pornographic

eartoons of Gackowski, which were posted on bulletin

boards. R.553-6 at 19257-2600. Petitioner Byrne

repeatedly gave Fairley dangerous and undesirable

assignments to the SI-2 Unit, which houses the most

dangerous and violent inmates. R.553-6 at 191213-214,

216-221; R.686 at 7. During these assignments, Bercasio

and Fermaint repeatedly refused to unlock the security

door to SI-2 to allow Fairley out to use the restroom,

and provided Fairley with insufficient food and other

supplies for SI-2 inmates, which provoked the inmates’

rage against Fairley. R.553-6 at 191251-253; R.686 at 7.

In addition to this conduct, Petitioners threatened

Fairley and Gackowski with physical violence. In

November 2002, Petitioner Coffey told Fairley: “You

know, in the old days when we used to work here, an

officer filed a complaint on another officer — or told on

another officer — you'd usually get met in a parking lot.”

R.553-6 at 11320-322. More menacing was an incident

which began on December 20, 2002, when an SI-2 inmate

attacked Fairley and cut him on the wrist with a shank.

R.553-6 at 19337, 347-349; R.668 at 10. Within a week of

this attack, Bercasio told Fairley, “You see that, Fairley?

You fuck with people, that’s how you get stabbed.” R.558-

2 at 19377-381. On January 7, 2003, ten days before

Fairley was deposed in the FXelds Litigation, Petitioner

Prohaska approached Gackowski and asked him,

“What’s up with your buddy Fairley? Why is he trying

to fuck us all? If Fairley goes into court on this SI-2 case

from July 29, 2000 and tells the truth, he will fuck

everyone involved.” Gackowski asked Prohaska, “What’s

Fairley supposed to do? tie for some idiots that got out

of hand?” Prohaska then stated, “We always knew he

| Fairley] was a weak link and when a weak link can fuck

everyone in the chain, then we have to bury the weak

link. It’s nothing personal. It’s just business.” R.553-2

at 1384; R.686 at 11.

Following Prohaska’s threat to “bury weak

links,” Fairley and Gackowski went to the Internal Affairs

Division (“TAD”) to submit “Emergency Transfer

Requests.” R.553-2 at 19403-405. Fairley’s request

stated:

The R/O [reporting officer] on 17 Jan. 2003

gave a deposition under subpoena in a law suit

[sic] concerning an incident that occurred on

29 July 2000 in Division One SI-2. In the R/

O’s sworn testimony, the R/O implicated

several officers in wrongdoing one of whom

was Lt. Byrne. Since this incident the R/O has

been harassed and the R/O’ [szc] life has been

threatened. The harassment increased when

it was known that the R/O was to give a

deposition on 17 Jan. 2003. ... The R/O

requests a transfer to Chief Security and

requests that Lt. Byrne be moved from that

assignment.

R.553-2 at 19408-409. Fairley told the Chief of [AD that

there were some “bad people” working at the Cook

County Jail and that he would not commit perjury for

them. R.553-2 at 1407. IAD never responded to

Respondents’ requests for transfers. Fearing for their

safety, Fairley and Gackowski resigned their

employment. R.553-2 at 7420.

6

Fairley was deposed in the Fvelds Litigation on

January 17, 2008, and testified about the numerous

times he witnessed inmate abuse, including but not

limited to the beating he witnessed during the SI-2

Incident and about Byrne’s brazen encouragement of

the beating. R.553-2 at 1403; R.744-2 at 171; R.553-6 at

191401-402; R.738 at Exhibits 8 and 9. One month later,

on February 18, 2008, Gackowski was deposed in the

Fields Litigation and testified about numerous

incidences of inmate abuse that ne had witnessed over

the years and about Byrne’s and Fermaint’s admissions

that they had beaten inmates during the SI-2 Incident.

R.738 at Exhibit 12; R.744-2 at 972.

ARGUMENT

A. THERE IS NO SPLIT IN THE CIRCUITS

BECAUSE THE COURT OF APPEALS’ LEGAL

HOLDING IS WELL-ESTABLISHED AND

UNREMARKABLE.

This case does not warrant this Court’s review. The

essence of the panel opinion is that the “first amendment

protects speakers from threats of punishment that are

designed to discourage future speech.” 578 F.3d at 525.

There can be no legitimate dispute about this legal

principle. Fairley and Gackowski are prepared to prove

at trial] that the Petitioners’ conduct, in addition to being

vile and ‘llegal, was intended to intimidate them into

silence so that they would not testify about the use of

excessive force at the Cook County Jail.? As the

3. Petitioners repeatedly assert that their threats did not

actually “prevent” Respondents from testifying in the Fields

Litigation. See, e.g., Pet. at 11. However, Respondents do not

allege that Petitioners physically restrained them from getting

to their depositions or the courthouse.

appellate court observed during the initial appeal in this

case wherein certain of the Petitioners asserted qualified

immunity: “It was clearly established long before the

events of which plaintiffs complain that state actors may

not assault witnesses in federal litigation. That’s a crime,

see 18 U.S.C. § 1512(a)(2), so no public official could think

the conduct proper.” Fairley v. Fermaint, 482 F.3d 897,

902 (7 Cir.) (“both threats designed to deter future

speech and penalties for past speech are forbidden”)

(emphasis added), cert. denied, 128 S. Ct. 181 (2007).

Petitioners contend that this case warrants review

by the Court because it “impermissibly expands the

reach of [the prior restraint] doctrine that this Court

has heretofore expressly confined to state actions that

rise to a ‘legal impediment... to... expressive activity.’””

Pet. at 7 (citations omitted). Petitioners’ exaltation of

form over substance is wrong as a matter of law and

provides no basis for this Court to grant the writ.

Although prior restraint cases tend to arise in the

context of formal “legal impediments” such as gag

orders or written policies, there is no requirement for

such in order to state a viable First Amendment

violation. To the contrary, for well over forty-five years,

this Court has recognized, for example, that “informal

censorship may sufficiently inhibit the circulation of

publications to warrant injunctive relief.” Bantam

Books, Ine. v. Sullivan, 372 U.S. 58, 67 (1963).

In Bantam Books, the Court observed it was not

“the first court to look through form to the substance”

of the prior restraint to determine its constitutionality.

id. at 67 n. & (collecting cases). The prior restraint in

Bantam Books took the form of a notice sent by a Rhode

Island state agency to book distributors indicating that

the agency was listing a specific book as “objectionable.”

Id. at 62. In response, distributors often cancelled orders

from publishers and pulled the book off the shelves. /d.

Like the Petitioners here, Rhode Island took the

position that there was no prior restraint because there

was no actual regulation suppressing obscene material.

Id. This Court found Rhode [sland’s argument

untenable, and struck down the practice as

unconstitutional. Jd. at 64. Contrary to Petitioners’

contention, form never has triumphed over substance

for purposes of an actionable prior restraint claim.

See also Baird v. State of Arizona, 401 U.S. 1, 5-6 (1971)

(although it did not prohibit speech, Arizona violated

the First Amendment when it asked about Communist

party membership prior to admission to the practice of

law); Redpath v. Board of Governors, 447 F.3d 292, 319

(4° Cir. 2006)(where University warned employee

against commenting publicly on an NCAA investigation,

employee's chilling claim is essentially a “derivative of a

retaliation claim: if a public employee cannot fire,

demote, or similarly punish a public employee for

engaging in protected speech, the employer also cannot

intimidate the employee into silence by threatening

impermissible retribution.”); Edwards v. City of

Goldsboro, 178 F.3d 231, 246 (4" Cir. 1999)(where a police

officer’s superiors threatened to terminate him if he

engaged in protected speech, the court held, “a public

employer is prohibited from threatening to discharge a

public employee in an effort to chill that employee’s

rights under the First Amendment.”); Morris v.

Lindau, 196 F.3d 102, 118 (2™ Cir. 1999)(defendant’s

threat to discipline plaintiff employee if plaintiff spoke

Y

out actionable as a prior restraint); Aebisher v. Ryan,

622 F.2d 651, 655 (2d Cir.1980) (court found cause of

action existed for teacher who alleged principal’s letter

of reprimand in her file chilled right to speech because

“First Amendment rights may be violated by the chilling

effect of governmental action that falls short of a direct

prohibition against speech.”); Penthouse Internat’l, Ltd.

v. McAuliffe, 610 F.2d 1353, 1362 (5th Cir. 1980) (holding

that an “informal system of prior restraint” is proscribed

by the First Amendment).

With no legitimate basis to request review by the

Court, the Petitioners attempt to analogize the prior

restraint here (harassment and death threats and

ultimate constructive discharge) to the unenforced

provisions of the Hatch Act challenged in United Public

Workers of America v. Mitchell, 330 U.S. 75 (1947). The

Mitchell plaintiffs, who had neither engaged in political

work nor been sanctioned under the Hatch Act,

requested a declaration that certain provisions of the

Act were unconstitutional. The Court found that

plaintiffs failed to present a justiciable case or

controversy because a “hypothetical threat is not

enough.” /d. at 89-90. Respondents do not quibble with

the holding of Mitchell, but for Petitioners to compare

the harassment that Respondents endured at the hands

of the Petitioners from the time the inmates’ lawsuit

was filed until they were constructively discharged to

the “hypothetical threat” at issue in M7tchell is wholly

unpersuasive and cannot give rise to a basis for this

Court to grant certiorari in this case.

4. During the seven years this case has been pending,

Petitioners have never challenged the jurisdiction of the federa

courts to hear the controversy

10

The Petitioners also rely on Alexander v. United

States, 509 U.S. 544 (19938), to attempt to persuade this

Court that the appellate court overstepped its authority

by holding that the harassment at issue here could

constitute an actionable prior restraint. The Petitioner

in Alexander argued that a RICO-based forfeiture of

assets “operates as a prior restraint because it prohibits

future presumptively protected expression in retaliation

for prior unprotected speech.” /d. at 549-550. The Court

refused to “stretch the term ‘prior restraint” in this

context where the forfeiture order did not forbid speech,

but, based on a criminal conviction, seized assets from

the convict. /d. Unlike the wholly inapposite forfeiture

order in Alexander, Fairley and Gackowski stand ready

to prove that the threats and harassment in this case

were intended to deter their future constitutionally

protected speech. Though Petitioners may argue to the

jury that the harassment did not take place or that it

was not intended to deter Respondents’ speech, those

issues are of no concern to this Court. [t is well-past

time for Respondents to have an opportunity to prove

their case to a jury. Certiorari should be denied

>

CONCLUSION

The holding in this case, while significant to both

the Petitioners and the Respondents, falls far short of

presenting any compelling reason for this Court’s

review. Respondents respectfully request this Court to

deny the petition for certiorari.

Respectfully ubmitted.,

MATTHEW J. PIER

Counsel of Record

Mary M. RowLanp

HuGHES SocoL PIERS

RESNICK & Dym, LTD.

70 W. Madison, Suite 4000

Chicago, Illinois 60602

312) 580-0100

Mplers\a hsplega! Com

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