Green fist graphicThe Judi Bari Web Site

Webmaster's preface: This article was written for a legal journal, yet it minimizes jargon. It begins with a brief case overview, then, in the authors' words: "use(s) the case as a lens to explore a number of key challenges in civil rights litigation which we wrestled with, in order to aid fellow activists and attorneys in winning more 'people’s victories.' While we offer it as a law review article, we have not cluttered it with legal citations, in hopes that it will be accessible to attorneys and non-attorneys alike." There may be slight differences here from the published version, as this is the final draft. (posted here 4/13/03)

Published in  

Guild Practitioner
 legal journal of the National Lawyers Guild
Vol. 59, No. 4,  Fall 2002 

Judi Bari vs. the FBI:
Snatching Victory from the Jaws of Deceit

by Ben Rosenfeld and Dennis Cunningham
 San Francisco, California
(Bari/Cherney legal team members)

Overview

On May 24, 1990, a car bomb exploded under the driver’s seat of Judi Bari’s Subaru wagon while she was driving through Oakland, California, shattering her pelvis and nearly killing her.[1]  Her passenger and fellow Earth First! environmental activist, Darryl Cherney, was less severely injured but equally terrified by the attempted assassination and the sinister government frame-up which ensued.  Judi and Darryl were on their way to Santa Cruz, where they were scheduled to speak and perform folk songs (she fiddled, he plays guitar) as part of their recruitment drive for Redwood Summer, a campaign of nonviolent civil disobedience, which they patterned on Mississippi Summer, aimed at preserving California’s cathedral forests from rapacious corporate clearcutters.  In the months and weeks leading up to the bombing, Judi and Darryl had received numerous threats from timber workers (and assorted others, including Neo-Nazis), incited by their corporate bosses, notwithstanding Judi’s increasingly successful efforts as a longtime Wobbly labor organizer to unite them in the struggle against a common corporate menace whose vision of the future included neither forests nor jobs.  Despite their pledges of non-violence and Judi’s public renunciation of “monkeywrenching” (industrial sabotage), environmentalists were coming under increasing physical attack.  Eight months before the bombing, Darryl, Judi, her children, and several others were run off the road, Karen Silkwood-style, into a ditch by an irate logging truck driver.  They miraculously escaped serious injury, even though Judi’s car was totaled.  When she reported receiving a photo with a rifle cross-hairs drawn over her face, a sheriff’s sergeant told her he didn’t have enough manpower to investigate.  “If you turn up dead,” he said, “then we’ll investigate.”

Within minutes of the car bombing, FBI Agents arrived on scene, almost as if they had been standing around the corner plugging their ears.  Over the previous couple of years, the FBI indeed had spent millions of dollars infiltrating Earth First! trying to “pop” its co-founder, Dave Foreman, “in order to send a message,” in the words of the undercover agent who accidentally recorded himself talking to his handlers, and the FBI was at least alert for the opportunity to exploit the car-bombing and use it to smear and discredit Earth First!  The Special Agent in Charge of the San Francisco Office at the time was none other than Richard W. Held, Jr., son of one of J. Edgar Hoover’s lieutenants in the early days of COINTELPRO, the once official - now covert - policy to “expose, disrupt, misdirect, discredit or otherwise neutralize” political targets.  Held Jr. is himself a well-known COINTELPRO maven, whose history of dirty tricks includes  participating in disrupting the American Indian Movement and in framing Black Panther leader Geronimo ji jaga Pratt.

The FBI agents who responded -- senior members of the San Francisco Terrorism Squad -- told arriving Oakland police officers essentially that Bari and Cherney were known members of a violent terrorist group and they were the type of people who would be involved in making and placing explosives.  Never mind that the bomb was hidden under the seat, armed and triggered by a motion-device.  The police lied and said  it sat in plain view on the back seat floorboard, where plaintiffs would have seen it loading the car; ergo it was their bomb. The evidence clearly showed it was hidden under seat, directly under the hole it blew in the seat, over the wide spot in the hole it blew in the floorboard of the car, and adjacent to the damage it did to the bowed out driver’s door.  Never mind that the bomb was studded with nails -- for shrapnel effect.  The police lied and said they matched nails in bags in the back of Judi’s car (she was also a carpenter), when in fact the nails were as different as nails could be.  Never mind that plaintiffs and their associates told police they were strictly non-violent and had received numerous threats (copies of which plaintiffs had in their possession at the time).  Police ignored the threats, the many obvious leads, and inverted the statements of plaintiffs’ associates to suggest they believed plaintiffs were violent.

Together, the FBI Agents and Oakland Police Officers arrested plaintiffs within three hours of the bombing, concocted false search warrant affidavits and lied through the lapdog media to a scandalized world that these environmentalists were terrorists.  Judi lay in traction in the hospital, literally fighting for her life.  The FBI held the physical evidence back from the lab for days and, along with the Oakland police, kept up the charade for nearly two months, periodically broadcasting that Judi and Darryl were “the only suspects.”  In so doing, they worked in perfect tandem with the bomber(s), who certainly did not intend to martyr Judi Bari, but to smear her and undermine her efforts to save the ancient forests.  A California ballot initiative dubbed “Forests Forever,” which would have ended clearcutting of public and private forests and which was leading in the polls before the bombing, ended up losing by a sliver after its antagonists began dubbing it “the Earth First!” initiative and claiming it was sponsored by terrorists.

Finally, the Alameda County District Attorney declined to file charges, citing lack of evidence.  The FBI and Oakland police never tried to solve the crime, but continued their sham investigation by surveilling and harassing a wider group of environmental activists throughout California, pretending that all the clues lay within the community of their only suspects, Judi and Darryl.  If they talked to anyone outside this community, it was only to try to get dirt on the environmentalists.  The bomber(s), given a free pass by these police, are still out there.

In 1991, Judi and Darryl filed suit under the Civil Rights Act of 1871, 42 U.S.C. ' 1983, against various FBI agents and Oakland police officers, for false arrest, illegal search and seizure, interference with their rights of free expression and association, and conspiracy, in violation of their First and Fourth Amendment rights.  Eleven years later, on June 11, 2002, after a six-week trial, and  seventeen days of  deliberation, ten jurors (eight women, two men; eight Whites, two Blacks) sustained most of the claims and awarded plaintiffs a total of 4.4 million dollars in compensatory and punitive damages.  They were a perfectly police-friendly, mainstream jury.  Yet, when plaintiffs finally had a chance to present their evidence, the jurors did not like what they saw, and for once, the FBI was busted.[2]  It could not have happened at a more important time, while Osama Bush-Laden and Obersturmbahnführer Ashcroft are rapidly repealing whatever constitutional rights we still had before 9/11.  It was a stinging rebuke -- heard in saltatory echoes in some places around the world -- whose impact only history can record.  But it is an undeniable People’s Victory, which hopefully will nourish the people in their pursuit of social and environmental justice.

We won through a combination of incredible volunteer support, powerful evidence, skillful lawyering and luck.  We won despite the fact that civil rights law is rapidly unraveling, and the Supreme Court puts civil rights practitioners a little more out of business every time it sits down.  We do not intend in this article to offer a detailed account of the legal case; for that, we invite readers to visit the website, www.judibari.org, or to surf the ’net.  Instead, we will use the case as a lens to explore a number of key challenges in civil rights litigation which we wrestled with, in order to aid fellow activists and attorneys in winning more “people’s victories.”  While we offer it as a law review article, we have not cluttered it with legal citations, in hopes that it will be accessible to attorneys and non-attorneys alike.

Qualified Immunity

As if the system did not protect them enough, government officials enjoy “qualified immunity” from suit in federal court.  Whereas plaintiffs hear qualified, defendants and judges hear immunity.  For legal and equitable reasons, both sides need to hear each other.  A police officer’s immunity is not absolute; otherwise, police abuse in our society would go virtually unchecked.  The Supreme Court established qualified immunity, it said, in order to discourage frivolous lawsuits, to protect good cops from fighting withering legal battles and to assure them that they can make tough, split-second decisions without having to fear legal reprisals.[3]  But often, police can and should hesitate, such as before they make patently false allegations in a warrant affidavit under no emergency time pressure, as they did in the Bari/Cherney case.  The public interest is served by tying up bad cops in litigation (though it would be better served if their departments had the will to discipline them and fire the recidivists).  Defendants and judges need to understand that civil rights practitioners already have plenty of incentive to screen out frivolous claims, since even the meritorious ones are so difficult to maintain and win.[4]

Plaintiffs need to understand that defendants and judges hear “immunity,” not “qualified.”  Therefore, we need to work at every turn to persuade the courts that these police defendants have behaved egregiously -- uncommonly badly -- even if privately we know that their behavior is not uncommon at all.  Since qualified immunity is usually decided first on summary judgment, it is crucial for plaintiffs to develop the disputed facts in the record.  Judges must then be reminded that they are obligated to consider the evidence in the light most favorable to the non-moving party (i.e. plaintiff) and not weigh it themselves.  The Supreme Court has said that qualified immunity protects every official “but the plainly incompetent or those who knowingly violate the law.”[5]  Since a great many police practices fall into one of these two categories, we prefer to phrase it that “qualified immunity does not protect those who act incompetently or knowingly violate the law.”

Among our various run-ins with qualified immunity in the Bari/Cherney case, we faced the “multiple bites at the apple” problem.  Though qualified immunity was determined against defendants before trial by the trial court and the Ninth Circuit (in an appeal by Oakland which ate up two years), defendants successfully argued that the court should re-visit it at the close of all the evidence.  This, despite the fact that the Supreme Court (perhaps confused by its own illogic) stated explicitly in Katz that qualified immunity “is an entitlement not to stand trial, not a defense from liability.” It would seem that any “harm” sought to be avoided -- i.e. harassing “good cops” -- is complete and therefore moot by the time a trial ends, so no public interest is served by granting them qualified immunity after the fact.  Moreover, the Ninth Circuit’s Civil Model Jury Instructions do not include a qualified immunity instruction, stating instead that it should be decided by the court early in the case.  Nevertheless, the district court in our case not only took up the qualified immunity question again after trial but gave it to the jury to decide.[6]  Thus, a jury was asked to determine a legal question, which had already been answered by two courts, and was moot in any event.  Whether because the jury understood or misunderstood its charge, it in fact found certain defendants liable yet qualifiedly immune on certain claims.

In one sense, the court did plaintiffs a favor by submitting the question to the jury.  Since courts are divided over whether defendants get a second bite at the qualified immunity apple, plaintiffs, by taking the harder road, are better protected on appeal.  Also, the court agreed that the jury did not have to consider qualified immunity in reference to the First Amendment claims, since no officer intentionally but reasonably could have interfered with plaintiffs’ free speech rights -- at least until the Supreme Court throws this logic to the wind as well.  But the fact that we had to deal with this harrowing question again after trial certainly highlights a critical flaw in our ability to enforce civil rights.

Causation

Legal minds will remember that civil rights is a species of tort law (involving “constitutional torts”) and therefore imports common law causation standards.  This law varies from state to state.  For example, while some states explicitly provide that a police officer can be liable not just for falsely arresting a person, but for “instigating” or “procuring” a false arrest, California law makes no such provision.  How then, is one to hold liable officers who participate in a false arrest, even if they are not the physical, arresting officers?  One answer can be found in the wording of the statute itself.  Under 42 U.S.C. ' 1983 an official is liable if s/he “subjects, or causes to be subjected” a person to a deprivation of a constitutional right.  The phrase “causes to be subjected” certainly implies that all those who participated are liable.  Another well-established principle of tort law is that an event can have more than one cause.[7]

Getting the courts to recognize these principles was crucial for victory in the Bari/Cherney case, since plaintiffs did not sue the police officers who physically took them into custody or guarded them -- whom we believed were just following orders and were not intimately involved in the frame-up -- concentrating instead on the serious violators.  Nevertheless, this left plenty of causation issues to overcome.  The whole case arose, after all, when the FBI used the Oakland Police as its cat’s claw to carry out the politically-driven false arrests, illegal searches and smear campaign.  Therefore, both sets of defendants denied responsibility (i.e. causation) by blaming each other.  Thus, Oakland said:  Don’t blame us, the FBI said they were known terrorists and the bomb was in plain view.  Who are we to question the FBI?  And the FBI said:  Don’t blame us.  Oakland made the arrests and swore out the warrants.  We only expressed our opinion about the location of the bomb and cautioned that we weren’t certain and we would have waited until after the reports came back from the lab.

The problem for defendants, in the end, was that their excuses were also fabrications.  First, the evidence showed that the Oakland officers eagerly joined in, not just by repeating the FBI’s blatant lies, but by concocting lies of their own.  They went to the scene, viewed the car and the bomb debris, made arrests and interviewed witnesses, then lied about what they heard and saw.  And the FBI defendants could not show that they qualified their lies -- that the bomb was in plain view or the nails matched -- because they didn’t; rather, plaintiffs showed that FBI  Special Agent Frank Doyle drafted part of Oakland’s warrant application himself, and “almost dictated” the rest of it to Oakland’s Sergeant Chenault.  Second, whereas defendants might have hoped on motion that, if they blamed each other, the case would fall like a clumsy drunk between two bar stools, they looked extremely duplicitous pointing fingers at each other in open court.  Third, neither set of defendants could effectively blame the other for the sham investigation or their mutual persistence in treating plaintiffs as “the only suspects” long after the criminal case fell apart.

Hearsay vs. Smearsay

A new rule of evidence seemed to emerge from the Bari/Cherney trial.  While the court strictly enforced the hearsay rule -- sometimes preventing plaintiffs from introducing statements by witnesses we could not call directly because defendants, despite relying on an alleged statement, would became amnesiac about who said it[8] -- defendants encountered almost no limit on the amount of smearsay they could introduce.  They practically had carte blanche to continue their smear campaign against plaintiffs in court, by repeating all sorts of innuendo, and by seeking to make plaintiffs look guilty by their mere association with Earth First!, which they slandered as a violence-prone group, despite their total lack of evidence to support their accusations.  Conversely, the court steadfastly barred plaintiffs from introducing any evidence of COINTELPRO -- or the FBI’s sordid history by any name -- of disrupting and neutralizing progressive political movements.[9]  And defendants successfully prevented plaintiffs from even referring to them as “the FBI” or “the Oakland police,” despite the fact that what they did is inseparable from who they are and the culture of arrogance and impunity in which they operate.

This double standard is not just another inequity, but a fundamental barrier to redressing police misconduct.  The entire business of law enforcement is predicated on hearsay and the courts have bent over backwards to uphold its use.  First, police rely on tips from citizen informants, whose reliability they are entitled to presume on the strength of little or no track record or corroborating evidence.  Their informants can be, and often are, vulnerable people seeking favors, wannabe cops seeking official acceptance, people with vendettas against their targets and people of questionable emotional and psychological stability.  Police can easily mold the information they receive from such people into what they want to hear.  And since criminal informants enjoy anonymity and protection, there is little meaningful review of this process.  According to a former FBI agent whom plaintiffs retained as an expert ( and who was fired after he refused to go along with the FBI’s counterintelligence program against the Plowshares Movement in the 1980s), often enough the FBI simply makes up its source information and essentially puts its own words in a real or fictitious person’s mouth.  The court barred this expert from testifying.  Still, plaintiffs succeeded in showing that the FBI exaggerated and falsified information it said it had received from a source in Santa Cruz concerning Earth First! and a bomb.  There was no mention of a bomb from the source, whose reliability, the FBI admitted at trial, had not been verified in any event.

Second, under the “collective knowledge doctrine” and the “fellow officer rule,” police are entitled reasonably to rely on the information they receive from one another, and no single officer need possess probable cause, but probable cause can exist among and between the participating officers, whether they actually communicate their information to one another or not.  In other words, police are entitled by law to operate as a sort of Hydra, each uttering, or simply knowing, only a piece of probable cause.  Yet criminal defendants and civil rights plaintiffs cannot, under traditional hearsay rules, ask one head what another one said to it (unless the other head is also a civil defendant).

In the Bari/Cherney case, the Oakland defendants significantly based their defense on the fellow officer rule, claiming that they had a right to rely on the FBI defendants’ pronouncements that plaintiffs were essentially known terrorists capable of building and transporting bombs.  Plaintiffs were able to show, however, that any such reliance was unreasonable, since Oakland defendants went to the scene, saw the evidence, interviewed witnesses, joined the frame-up and lied.

Third, police applications for search and arrest warrants are often a jumble of hearsay statements, as they were in this case, and the only filters are the honesty and accuracy of the officers reporting them.  In a case such as this, where the essential charge is that officers sworn to protect and serve in fact lied and framed, and the “code of silence” is an immutable law of nature, it does little good simply to call as witnesses all the police declarants and give them a chance to affirm the lies which their fellow officers ascribed to them.  Undressing such lies depends fundamentally on impeaching the witnesses and catching them in contradictions, and it therefore requires asking parties to an alleged conversation to testify to both what they said and heard.  If police are entitled to rely so extensively on hearsay, it is only fair that criminal defendants or civil plaintiffs be entitled to rely on hearsay to unmask the lie or cover-up, and civil rights attorneys should press for such parity by aggressively invoking rules concerning hearsay exceptions and non-hearsay purposes.

Joint and Several liability

Closely related to the question of causation is the question whether officials sued under ' 1983 or Bivens[10] are jointly and severally liable for the injuries they each cause.  If so, the prevailing plaintiff is allowed to collect the total sum in damages from any one or several of the defendants or “tortfeasors.”  However, the question has extra significance in the civil rights context, in that it helps to determine whether the jury is asked to make many separate findings as to the compensation each defendant owes or just one finding as to the compensation plaintiff deserves.  Civil rights attorneys disagree over which is better.  On one hand, the more lines on which the jury can enter damages figures, the more likely the numbers will compound.  On the other hand, the more lines the form contains, the longer and more confusing it is, the more the jury is asked to linger over vexing causation questions in its deliberations by asking just what part each defendant played and whether it was significant or trivial, thus increasing the chances the final verdict will contain reversible contradictions.

Police defense attorneys seek to “atomize” a case, by subjecting every little question to a legal test, in a vacuum and divorced from its interconnected and “holistic” significance.  Defense attorneys accomplish a lot by this tactic, since they can often make the discreet actions of police officers look reasonable, justifiable or trivial, or cite a case which validates the particular, isolated behavior in some other context.[11]  The approach is classic divide and conquer.  Therefore, the possibility of racking up more damages on more lines may not be worth the risks it invites.

Since civil rights law developed as a species of tort law (involving “constitutional torts”), and in torts, joint and several liability is the general rule, one would assume that ' 1983 liability is joint and several.  However, while the case law leans toward this view, we could find no case which held so explicitly.  Instead, the question appears to turn on whether a plaintiff’s injury is “divisible” or not -- that is, whether the injury can be divided into different components (in which case damages can meaningfully be apportioned among the offending officers), or whether there is just one injury, caused by the officers’ collective malfeasance, in which case it cannot be apportioned.[12]

In the Bari/Cherney case, each violation of Judi and Darryl’s rights -- the false arrest, the illegal search, the interference with each one’s rights of free expression and association -- plainly resulted in an indivisible injury and plaintiffs lobbied vehemently for joint and several liability.  Defendants, on the other hand, fought to have the jury apportion damages separately as to each defendant.  In the end, the court adopted a hybrid approach, asking the jury first to determine one sum in damages for each plaintiff for each violation, and then to assign a percentage of fault to each liable, non-immune defendant (so that the percentages totaled 100%).  A copy of the verdict form is available at www.judibari.org.[13]

Finally, whether and to what extent defendants in this case are jointly and severally liable for plaintiffs’ attorneys’ fees is also a matter of contention.  The federal government claims that it is not liable for a penny of attorneys’ fees; their position enjoys some support under an inane Ninth Circuit case, Kreines v. United States.[14]  However, an exception obtains if the trial judge makes a finding that the federal defendants “acted in concert” with the Oakland defendants -- which they surely did in this case.

Damages

Betraying just how little it values civil liberties, the Supreme Court has held that constitutional rights have no intrinsic value, and violations are only compensable to the degree that a plaintiff can show actual harm.[15]  Since civil rights violations rarely result in large out-of-pocket expenses, except in excessive force cases, proving damages can be very difficult.  The legal system, as a capitalist institution, is well set up to value tangible things and transfer sums which are certain (“specials” in legal parlance), like the value of a contract, lost income from a wrongful termination, the cost to repair or replace a car, or medical bills.  It is less well set up to value non-tangible losses, like emotional harm.  But plaintiffs in this case, and indeed many civil rights plaintiffs, cannot easily reduce their losses to a sum certain.[16]  They were not highly paid forest consultants who lost large earnings as a result of the frame-up, but ascetic environmental activists.  Like many civil rights plaintiffs, they did not seek counseling for the emotional harm they suffered.  Therefore, they had to try to prove that their emotional injuries, along with the damage to their reputations and their environmental organizing, was worth millions, so that a victory would resound and reverberate throughout officialdom.[17]  Fortunately in this case, the jury did awarded millions in both compensatory and punitive damages, assigning the greatest sum to the First Amendment violations, as plaintiffs hoped they would.  But if the case is appealed, a battle looms over the amount of the damages.  The courts’ general indifference, if not hostility, toward valuing deprivations of rights remains an abyss for many civil rights plaintiffs and their attorneys.[18]

Conspiracy

While the case law defining civil conspiracy is clear (and very strong, thanks in large measure to the work of lead counsel Dennis Cunningham and others in another historic civil rights case, Hampton v. Hanrahan[19]), on behalf of the family of slain Chicago Black Panther Party leader Fred Hampton), there is some confusion about how it helps a plaintiff.  There is no question that hearing a jury say that the police defendants conspired to violate one’s rights is strong solace and good P.R., but by law, a civil conspiracy does not give rise, in of itself, to any damages.  It is, rather, a theory of liability and an evidentiary tool which allows plaintiffs to tie together various actors and hold them all responsible, where more direct evidence of their participation may be lacking, perhaps through their own efforts at concealment.[20]  Thus, a properly constructed special verdict form would first ask jurors to check off which defendants participated in a given violation and then ask them to add in any other defendants found to have conspired.  The whole group, together, would then be jointly and severally liable for the damages.  But since the term is freighted with all sorts of colloquial meanings jurors bring with them to the deliberation room, jurors might believe that plaintiffs who seek conspiracy verdicts are “conspiracy theorists,” and question their grip on reality.  Therefore, civil rights practitioners should think carefully about whether or not to allege conspiracy.

Conclusion

“Where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.”[21]  At least that is the way it supposed to work, according to an earlier and very different Supreme Court.  The late Judi Bari and Darryl Cherney obtained a resounding victory, at a crucial crossroads in our history, at which people will have to decide whether to continue rolling back civil liberties or to expand them again, the better to protect and foster our dissenting voices, which hold the real keys to peace and tranquility.  As Darryl Cherney has said, “What is our national security but the land we live on, the air that we breathe, the water we drink, the forests that modify our climate and all the wonderful things that the Earth provides us?”  Just as we will hone our skills, the Gestapo will learn from its mistakes -- but not in the way we would like.  When COINTELPRO was exposed, they took it off the books but continued to practice it.  Now, they can be expected to write down even less, keep fewer records which might become evidence in court and generally put the “secret” back in secret police.  In this struggle, our best assets are each other, as eleven years of unflagging and clamorous support by a wide community of talented supporters demonstrated.  The People kept this case alive and brought it to trial, and proved that we can win.  Long live freedom.  Viva Judi Bari!

Footnotes:

[1] Judi, who survived her terrible injuries, albeit with crippling pain, died tragically of breast cancer on March 2, 1997 at age 47.  Until then, she continued to work tirelessly in defense of the environment and workers, and against repression by the political police in her own case.  She has inspired countless activists and her living legacy includes the alliance between Teamsters and Turtles at the WTO protests in Seattle and the Alliance for Sustainable Jobs and the Environment between steelworkers and environmentalists in California.  Judi was fond of saying, "don't mourn, organize," and her incredible spirit guided her friends to victory in this case.

[2] As this article goes to press, the wrangling continues, and it is unclear yet whether defendants will file an appeal or own up and pay up.

[3] The doctrine of qualified immunity, first enunciated in Harlow v. Fitzgerald, 457 U.S. 800 (1982), means that a government official cannot even be subjected to a lawsuit unless the right s/he violated was clearly established by other legal precedent at the time of the violation.  Qualified immunity also protects officials who reasonably could have believed that their conduct was lawful.  As such, it makes no sense, and does not even have an internal logic.  It means that officers reasonably can believe they have probable cause even when they do not (where probable cause itself already insulates officers who reasonably, though incorrectly, arrest or search a suspect).  Thus, some courts have termed it “arguable probable cause.”  Recently, the Supreme Court held that qualified immunity means that officers reasonably can believe they are using objectively unreasonable force.  Saucier v. Katz, 121 S. Ct. 2151 (2001).  Go figure.  This paradoxical and therefore standardless construction plainly invites trial courts to substitute their own subjective notions of reasonableness for a jury’s decision.  Katz can only be interpreted to carve out a de minimus use of force below which the rude shove B a punch which left no mark? a  bruise which healed before suit was commenced?  pepper spraying which caused only transitory pain? -- will not be actionable in federal court, in flagrant derogation of the Fourth Amendment, which has long been understood to protect against unnecessary and unreasonable, not just grossly injurious, force.

[4] As it stands, too few civil rights attorneys are taking too few cases, so a great number of legitimate claims go unredressed.  Since most civil rights attorneys work on contingency (and front the costs of litigation), we are very careful to filter out cases which, however righteous, are likely unwinnable, or too “small money” to justify the financial risks.  The plaintiff might be unsympathetic or too difficult to work with over the (probably long) duration of the case.  There might not be any witnesses, or if there are, they might have vanished, wanting not to get involved.  The ratio of the number of cops, all synchronizing their stories, to good witness might be unfavorable.  Of course, a court or cabinet member might recently have abolished the right we are seeking to vindicate.  And the judge and jury can be counted on to start out biased in favor of the police defendants.

This does not mean we have to shy away from the “small money” police misconduct cases, or what I like to think of as the “day in the life of Officer X” cases -- like the endless warrantless home intrusions and false arrests.  While the fight is always arduous, sometimes we can keep costs down, settle these cases for ten or twenty thousand dollars and still get paid something for our time.  I believe these are extremely important cases to take and every civil attorney should take a handful of them.  After all, Officer X hones his oppressive habits through a series of “small” constitutional violations, unimpeded, until he commits a big one.

[5] Malley v. Briggs, 475 U.S. 335, 341 (1986).

[6] The court gave plaintiffs a choice - either to let the court decide qualified immunity, in which case the court would still ask the jury to make a number of specific factual findings in aid of the court’s determination, further complicating an already long and difficult verdict form, or to let the jury decide qualified immunity directly.  Through the eloquence of attorney Robert Bloom, plaintiffs at least persuaded the court to refrain from asking the qualified immunity question 30-plus times on the verdict form -- as to each defendant, for each plaintiff, on each claim -- thereby dodging an even bigger bullet.

[7] Legal minds will also remember that as a species of tort law, ' 1983 liability depends on “proximate causation.”  However, this does not mean that a jury must be instructed on proximate cause, a concept which vexes legal scholars and sounds confusingly like “probable cause” to the uninitiated.  In the Bari/Cherney case, the court heeded plaintiffs’ request and declined to instruct the jury on proximate cause.

[8] For example, in a candid moment in his deposition, Oakland Sgt. Sitterud said FBI personnel at the scene told him that “the individuals in the car that had been injured were people they knew, and they talked about Earth First!.  That these were the type of individuals who would be involved in transporting explosives, bombs.”  But at trial, the court would not allow plaintiffs’ counsel to question him about who exactly said it, unless it was pre-established that a defendant had said it (otherwise, it was hearsay).  Of course, requiring that plaintiffs start with proof that it was a defendant who said it in order to obtain proof that it was a defendant who said it is a circular problem, especially when dealing with lying witnesses who are protecting each other.  Nor were plaintiffs allowed to question Oakland defendants about any conversations they might have had with the non-defendant Oakland officer who oversaw the OPD Red Squad, and kept files on over 300 political groups, including Earth First!

[9] If defendants appeal, plaintiffs will surely cross appeal on this issue, and seek to reinstate their case against Richard W. Held, Jr., the Special Agent in Charge of the San Francisco office in 1990.)

[10] Bivens v. Six Unnamed Known Agents, 403 U.S. 388 (1971) established the right to sue individual federal agents for violations of constitutional rights.  42 U.S.C. ' 1983 had created that right against state actors only.

[11] It should be recalled that the police defendants in the Rodney King criminal trial did precisely this by showing the damning video tape a frame at a time and rationalizing each individual action of each individual defendant.

[12] There is no question that officers who are found to have conspired are jointly and severally liable for one another’s actions, but the jury in the Bari/Cherney rejected plaintiff’s conspiracy claim.  Plaintiffs believe that this resulted in part from the Court’s asking the jury to consider conspiracy at the end of the verdict form, after already determining liability and damages, where a conspiracy verdict would not have added or changed anything, and jurors may have just rejected it in their horse-trading.

[13] After requesting apportionment, the Oakland defendants are now complaining that this construction unfairly penalizes defendants by making them carry the liability of other defendants who were found liable but immune.  Thus, Oakland is trying to take advantage of the mischief it helped create by arguing for both a jury determination of qualified immunity and apportionment of damages.  Plaintiffs have countered that liability is joint and several, and Oakland waived any complaint about apportionment by requesting it.  Moreover, Oakland’s complaint is disingenuous, because as a practical matter, police defendants rarely if ever pay their judgments.  Rather, they are picked up either by the government or a police union.  In California, the municipal government is obligated to pay their compensatory damages, and permitted, if certain conditions are met, to pay their punitive damage.  Cal. Gov’t Code ' 825(a), (b).  Under federal law, FBI Agents may request that the federal government pay their judgments.  28 C.F.R. ' 50.15(c)(1) and (4).  Since both sets of defendants have enjoyed the services of government attorneys for 12 years, it is clear that the governments will also pay their judgments, if and when that time comes.  Jurors, however, are not told this at trial.

[14] 33 F.3d 1105 (9th Cir. 1994).

[15] Carey v. Piphus, 435 U.S. 247 (1978).  Civil rights plaintiffs can also seek punitive damages, which are designed to punish and deter wrongdoing, but the standard is high, and such damages are difficult to win, even though plaintiffs did in this case.  And they can seek injunctive relief -- i.e. forms of non-monetary redress -- but as practical matter, these seldom go anywhere, and in the American legal tradition, a tort is supposed to be reduced to a price.

[16] Judi and Darryl could not assign the cost of their physical injuries to defendants, because they did not allege in the lawsuit that defendants bombed them.

[17] Courts must be reminded that “[T]he fundamental policies behind Section 1983 are twofold: compensation for and deterrence of unconstitutional acts committed under state law.  Bell v. City of Milwaukee, 746 F.2d 1205, 1239 (7th Cir. 1984), citing Robertson v. Wegmann, 436 U.S. 584, 590-591 (1978).  And deterrence is accomplished through the mechanism of compensatory as well as punitive damages.  “Punitive damages asideYdeterrence is also an important purpose of [' 1983], but it operates through the mechanism of damages that are compensatory  -- damages grounded in determinations of plaintiffs’ actual losses.”  Memphis Community School District v. Stachura 477 U.S. 299, 306-07 (1986) (emphasis in original).  “To that end, compensatory damages may include not only out-of-pocket loss and other monetary harms, but also such injuries as impairment of reputation,...personal humiliation, and mental anguish and suffering.”  Id.

[18] There is even an open question in California, as in some other states, whether non-economic (i.e. emotional, psychological, or “hedonic”) damages survive the death of a plaintiff.  Thus, Oakland has argued, and can be expected to argue in any appeal, that the compensatory damages which the jury awarded to the Estate of Judi Bari must be stricken, because Judi herself died before trial, and her emotional losses died with her.

[19] 600 F.2d 600 (7th Cir. 1979).

[20] “The charge of conspiracy in a civil action is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible for any overt act or acts.”  Putman v. Gerloff, 701 F.2d 63, 65 n. 4 (8th Cir. 1983), citing Hostrop v. Board of Junior College District No. 515, 523 F.2d 569, 575 (7th Cir. 1975).

[21] Bivens, supra, 403 U.S. at 392 (1971), quoting Bell v. Hood, 327 U.S. 678, 684 (1946).

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