Amy, Tell Me What You’re Gonna Do: Part 3
Federal Tort Claims: Chronis v. The United States
Anna Chronis had an annual checkup at University of Illinois Mile Health Center in June 2015. As part of her physical, she underwent a gynecological exam, which she says left her bruised and in pain. Chronis made several attempts to contact the doctor who performed the exam, the Center itself, and finally the Health Center grievance committee. She wrote letters, detailing her injuries and the costs incurred due to her receiving follow up care for them. The bills, mileage and expenses she claimed added up to $332. None of her requests for help received a response, so Chronis, a Medicaid beneficiary, wrote a letter to the Center for Medicare and Medicaid Services, the federal agency who oversees the programs. In her letter, she stated that she believed the Health Center was liable for the damages caused by the doctor they employed and that she incurred many out-of-pocket costs for seeking follow-up treatment. She included a numbered list of what she sought; number 3 was “restitution”. She attached dozens of pages of copies of her correspondence with the health center, including her letter to the grievance committee in which she specifically asked for $332 as restitution for her out-of-pocket costs. She ended her letter to CMS by asking for their assistance in receiving restitution, and that she looked forward to their guidance on how to proceed.
CMS responded by instructing her to file a complaint against the doctor and the clinic with the state’s Department of Financial and Professional Regulation. Frustrated with the lack of action, Chronis sued the doctor and the clinic in state court. She was unrepresented (likely because she could not afford a lawyer, and even if she could, very few lawyers would invest time and effort into a case worth $332, certainly not on contingency.) The US substituted itself as the defendant in the case because the clinic was federally funded and the doctor was its employee, and removed the case to federal court. Then, alleging that Chronis had not followed the requirements of the Federal Tort Claims Act, the government moved to dismiss her complaint.
Specifically, the government alleged Chronis failed to notify the agency of her claim in advance of filing suit, thwarting the chance for the agency to settle the claim without the need for litigation. The District Court agreed that her letter to CMS, with its 60ish pages of attachments and her request for restitution did not qualify as notification to the agency that she had a claim for damages. Chronis appealed, pro se, and was appointed amicus counsel to assist her. In her appeal, she maintained that her letter was adequate to provide the agency with notice that she was claiming to be injured and wanted reimbursement for the associated damages, but the 7th Circuit, in an opinion authored by Amy Coney Barrett, disagreed and upheld the District Court’s dismissal.
Barrett’s opinion sets forth the relevant elements of the FTCA’s notice requirement: (1) notification of the incident; (2) demand for a sum certain; (3) title or capacity of the person signing; and (4) evidence of the person’s authority to represent the claimant. Of these four requirements, it is the second on which Barrett hangs her black robe. She acknowledges that the attachments to the letter included Chronis’s letter to the clinic in which she specifically demands $332. But Barrett waves this away with a vague argument that the agency should not be expected to be bothered with reading through all of that. However, even if one accepts the idea that government employees should not have to be saddled with actually reading through the documents a person submits, Barrett also must- and does- concede that precedent has not required that a specific dollar amount be provided, despite the language of “a sum certain”. But Barrett insists that Chronis not only did not set forth a specific amount, she did not even make it clear that she was seeking money.
Chronis’s letter to CMS specifically stated that she wanted restitution. As Barrett herself explains, Chronis’s words should be interpreted as they would be understood by a “legally sophisticated reader.” And yet Amy Coney Barrett, who no doubt qualifies as legally sophisticated, pretends that restitution, in the context of a complaint of medical malpractice, would mean anything else. Instead, she insists that the federal government employee who received and responded to Chronis’s letter believe it to be merely a request for direction on how to file an administrative complaint. But just as the letter did not say “I demand $332 from you, the Center for Medicare and Medicaid Services”, it also did not say “I ask that you please explain to me how I file an administrative complaint.” Yet Barrett thinks that Chronis should be savvier to the correct buzzwords than a federal employee tasked with evaluating her correspondence.
While it is true that she ended her letter by asking for guidance on how to proceed, she did not say “how to proceed with an administrative complaint.” It was just as easily, or more easily, in my view, interpreted as “I want restitution for my out of pocket costs, so please tell me what I need to do to get it.” Barrett supports her ruling by citing precedent which held that a request for something besides money fails to constitute a demand for money. But the examples cited in that precedent are demands for apologies, better training for employees, or the return of personal property. Chronis asked for restitution and guidance on how to get it.
Finally, Barrett ends by surmising that Chronis had no idea that it was CMS who might owe her money when she sent them the letter asking for help. This may be true, but what she knew is irrelevant to what the agency should have known from reading the letter.
One of the judges dissented from Barrett’s majority opinion, but it is of little consolation to Chronis, who was left to try and salvage her complaint- if the statute of limitations had not expired. Granted, it is $332, which seems a small amount of money in relation to the time and effort required by the labyrinthine legal system. But if the government and the courts are willing to go to this length to defeat even the paltriest claim, one can hardly expect better in matters of larger value.
If lawyering were easy, everyone would do it, but Chronis did her best to advocate for herself; I believe her letter should have been construed liberally in her favor. This case, like US v Uriarte in Part 2 that hinged on the definition of “a”, is an example of Barrett employing an absurdly strict textualism to reach a conclusion favorable to the government. While it is true that the wording of a statute or of a pleading is of paramount consideration, that does not mean one should take a sentence and strangle it, one word at a time, until it loses all common sense meaning.
Each of these cases could merit its own full write up, but in the interest of time and space, I’ll discuss them jointly to get an outline of her approach to search and seizure cases.
U.S. v. Cordarell Wilson
In US v. Cordarell Wilson, opinion issued in June 2020, Wilson argued that his fourth amendment right against unlawful search and seizure was violated, resulting in his subsequent arrest and conviction for being a felon in possession of a firearm. In the underlying case, officers responded to a 911 call about armed men selling drugs in front of a residence in Chicago. The suspects were described as three black men, including a man in a white shirt, one in a red shirt, and one with a “walking boot” on his leg. The men were gone when police arrived, but the responding officers saw a group of men at a nearby park on their way to the scene. Among the group were black men, some in red shirts and some in white shirts. Officers approached the group, of which Wilson was a part and wearing a dark blue shirt. One of the officers claims he saw Wilson grab a “bulge” in his right pocket, and turn his right side away from the officers before sitting down on a ledge. He was asked to stand, at which point, according to bodycam footage, he got up and ran. He was chased, caught, searched, and arrested.
He moved to suppress the gun as the result of an unlawful search. He argued that the officers had no probable cause to “seize” him and therefore no right to search him. The government argued that the seizure and subsequent search were lawful, because precedent holds that the presence of the “bulge” in the pocket along with Wilson’s furtive movements and his flight from the officers provided the requisite reasonable suspicion needed to justify his seizure. The 7th Circuit agreed, and by holding the seizure lawful, the search is deemed lawful.
Barrett wrote a short concurrence to the majority opinion in which she stated that, had Wilson not run away, he may have had a stronger argument against the seizure, because he did not match the description of the suspects in any way other than being a black male. A perfect match is not required for a stop, Barrett wrote, but Wilson “wasn’t even in the ballpark.”
U.S. v. Dimitris Terry
The DEA had a warrant for the arrest of Dimitris Terry. They took him into custody one morning when he returned from driving his son to school, arresting him as soon as he got out of his car. They took him immediately to their field office, while two agents stayed behind. They then knocked on the door to his apartment. The door was answered by a “sleepy” woman in a bathrobe, who let them in upon their request. They had no warrant to search the apartment, but they did have a “consent to search” form, which they presented to the woman, who signed it.
Before the police can search your house (without a warrant,) they have to get consent from a person who is authorized to give it. They did not even ask the woman if she lived there or had authority to give consent; the agents assumed she lived there, because of the bathrobe. Only after they began their search did they ask her if she lived there. She said she did not; she was the mother of Terry’s child who lived in the apartment, but she lived elsewhere. Nevertheless, the agents continued on with their search. They found 4 cell phones and a “drug ledger”.
While the search was going on, Terry was with the DEA agents, refusing to sign a waiver of his right to remain silent. According to the agents, Terry said that though he would not sign the form, he was willing to talk. The agents wrote “gave verbal consent” on the form and questioned him; Terry then made inculpatory statements about his role in a heroin distribution operation.
Terry moved to suppress both the fruits of the search and the post-arrest statement. He argued that the woman had no authority to consent to the search, nor did agents have any reason to think she did. He also argued that his statement was inadmissible because he did not understand his rights, pointing to the unsigned waiver form as proof. After an evidentiary hearing, the District Court denied his motions. The court found that the woman being in her bathrobe was enough to give officers a good faith belief of her authority to consent, but added the facts that the woman’s son lived in the apartment, she was in the home while Terry was not, and consented without hesitation. Further, the Court pointed out Terry’s 18 prior arrests in deciding he did, in fact, understand his rights when he gave the statement.
He was convicted and given 14 years in prison. He filed an appeal based on the denial of his motions to suppress. Writing for unanimous 3-judge panel in 7th Circuit, Barrett ruled in Terry’s favor on the search of his home. At best, she reasoned, the robe gave rise to an assumption that she had spent the night in the home. She could have been an overnight guest, a short-term guest, or a visiting relative. In any event, there was certainly ample reason for the agents to inquire further into her authority to consent. Barrett also rejected the District Court’s reliance on the fact that her son lived in the apartment, because the agents did not know at the time of consent that the boy was her child. Furthermore, having been left alone in the apartment for the short time it took Terry to take the child to school was not enough to create a reasonable inference in the agents’ minds that she had the authority to consent. Therefore, Barrett ruled, the agents had no right to search the apartment and the items found therein were inadmissible.
As to the statement, however, Barrett did not accept Terry’s argument that his refusal to sign the waiver was proof that he lacked understanding of his rights. She relied upon Terry’s “education, sophistication, and familiarity with the criminal justice system” to determine that he understood his rights, which were read to him out loud by the agents.
His case was remanded for retrial, without the fruits of the unlawful search.
Milwaukee police pulled Vaccaro over late one night for running a red light. After Vacarro stopped, one of the officers saw him bend over at the waist, toward the passenger seat, and then reached with both hands into his back seat. Concerned by Vaccaro’s movements, they ordered him to get out of the car with his hands up, with their guns drawn.
Immediately, one officer handcuffed him while the other patted him down. They found no weapons on his person, but they did find a GPS ankle monitor. When asked, Vaccaro told the officers he was on supervision due to a conviction for “false imprisonment”, a felony.
Officers stated that Vaccaro acted erratically when asked if there were any weapons in his car, claiming that people were trying to kill him. When asked, a visibly frustrated Vaccaro said that the odd movements they saw was him removing his jacket, and that he “didn’t have anything” in his car. His actions and demeanor, “nervous” and “amped up” led the officers to believe he was under the influence of drugs.
Both officers would later testify that they saw a rifle case in the back seat while speaking to Vaccaro outside of the car, though neither asked Vaccaro about it, purportedly because they feared further agitating him and escalating the encounter. Instead, they locked him in their squad car and searched his vehicle. Underneath a coat in the backseat was the rifle case, containing a rifle. Vaccaro was a convicted felon, and was charged for the possession of the rifle.
Vaccaro challenged both the pat down and the search of his car. The federal magistrate recommended that the motion be denied; she found that the “furtive movements” justified the pat down. The magistrate did not accept as fact that the officers saw the rifle case prior to placing Vaccaro in their cruiser. But she determined that the search of the vehicle was nevertheless legal because of Vaccaro’s odd movements, (believing the officers’ accounts of what they saw based on Vaccaro’s admission of making the movements when removing his jacket.)
The 7th Circuit readily accepted the lower court’s determination as to the frisk. However, the question for the search of the car was “closer”. Precedent holds that the warrantless search of the car would have been lawful if the officers had probable cause, or if a “sweep” of the car was necessary to make sure the suspect could not access a weapon. Since the lower court rejected the officers’ claim of having seen the rifle in the backseat, there was no probable cause, and the decision hinged on whether the “protective sweep” was necessary for officer safety. Recall, however, that Vaccaro was cuffed in the back of a police car when the search was conducted.
The controlling precedent relied upon in this case was Michigan v Long, a 1983 Supreme Court decision. In pertinent part, that case stated:
“[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.”
Barrett’s majority opinion accepts that the first prong is satisfied, finding that it was reasonable for the officers to view Vaccaro as potentially dangerous due to his odd behavior and erratic movements. However, given that Vaccaro was handcuffed in the back of another vehicle, his ability to “gain immediate control of weapons” is less clear.
Vaccaro’s argument relied on Arizona v. Gant, in which the Supreme Court held that a protective sweep of a vehicle was not lawful when the suspect had been arrested and was handcuffed in a squad car. But, Barrett points out, Vaccaro was not at that point arrested. He was merely restrained for officer safety. The government relied on a prior 7th Circuit case, U.S. v. Arnold, which was decided before Gant. The circumstances were very similar; Arnold was not under arrest but was detained – not handcuffed – in a squad car at the time of the search. The officers in Arnold intended to have the car towed. The court reasoned that because the officers might have let Arnold retrieve personal items from the vehicle before it was taken away, it was necessary to sweep the car for weapons.
Here, officers maintained that Vaccaro was not under arrest-and Vaccaro never argued that he was- and would have been free to leave if they had not found the firearm. Thus, the 7th Circuit applied the Arnold holding, and upheld the lower court’s denial of Vaccaro’s motion to suppress.
Vacarro rests on an acceptance of law enforcement’s contention that they had not intended to arrest him. I am not sure that I believe that, given their stated belief that he was under the influence while driving the vehicle, but the Court was required to defer to the lower court’s findings of fact unless they were especially egregious. The lower court’s determination of credibility is generally to be respected by the appeals court. However, it seems odd that the same officers who are deemed to have lied about having viewed the rifle case prior to the search are to be believed when offering a second specious justification that saves their case. Nevertheless, a court is free to accept one part of a witness’s testimony even as it disregards another.
I find the first two of these 4th Amendment decisions sound, but the third leaves me uncomfortable. It is difficult to determine how Barrett–or any judge, really–decides when to respect a lower court’s finding of fact and when to disregard it. It is purely subjective and worth keeping an eye on, especially in cases in which the government is in need of the benefit of the doubt.
Overall, these cases along with those in Part 2 leave me concerned about Barrett’s tendency to favor government actors over citizens. To some extent, this is true of the American legal system in general, but it is, at this point, my greatest concern over her appointment.
In my 4th and final installment of this series, I will examine Barrett’s extrajudicial writings, which some of her detractors have found most concerning.
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Part 1 covering Disciplinary hearings for sexual assault allegations on campus: John Doe v. Purdue University and Gun rights for felons: Rickey Kanter v. William Barr can be found here
Part 2 covering Sentencing Reform: U.S. v. Uriarte and Prisoner’s rights: John McCottrell v. Marcus White can be read here
Part 4 covering interviews and extrajudicial writings that have made news can be found here