Amy, Tell Me What You’re Gonna Do: Part 2

Then-Prof Amy Coney Barrett before the Senate Judiciary Committee, 6 September 2017. Photo by CSPAN [Public Domain]

Prisoner’s rights: John McCottrell v. Marcus White

Plaintiffs John McCottrell and Dustin Clay were inmates at Stateville Correctional Center in Illinois. The two were eating lunch in the prison dining hall when two other inmates began to fight. Guards subdued the fighting men and were placing them in restraints when two other guards, defendants Marcus White and Labarin Williams, who were stationed in a “guard tower” overlooking the dining hall, fired their shotguns into the hall. Buckshot from the shotguns struck four inmates, including McCottrell and Clay, injuring them severely enough to require medical attention including sutures.

The firing of shotguns into the enclosed room was not in itself an issue; the room was built with “shot box” on the ceiling, made to absorb the ricochet from warning shots. The two inmates filed suit in federal court under Section 1983, alleging violation of their 8th Amendment rights. The suit claimed that the defendant guards did not shoot into the shot box, but rather in the plaintiffs’ general direction. The guards claim they shot into the ceiling itself (though not the shot box) and moved for summary judgment. The factual dispute over where the guards pointed their weapons was resolved by the district court in favor of the defendants’ version. The motion for summary judgment was granted, dismissing the lawsuit. The plaintiffs appealed, and the 7th Circuit vacated and remanded.

The appeals court’s analysis began with the rule that in deciding a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party, without making credibility determinations. The majority opinion faults the lower court for accepting the defendants’ contention that they shot into the ceiling, because the evidence in the record is insufficient to make that determination. It doesn’t matter, the Court notes; based on circumstantial evidence, there are two possible ways in which the buckshot could have hit the plaintiffs: either the guards shot in their direction, or the defendants were hit by ricochet from the guards aiming at the ceiling. In the Court’s view, without actual direct evidence in the record to support either contention, both are equally plausible, given the circumstantial evidence (that the inmates were struck by buckshot, which penetrated their clothes and skin), and both could potentially result in a jury verdict in the plaintiffs’ favor

The guards gave differing statements between the time of the incident, the investigation by prison authorities (who found them to have used unjustifiable force), and their affidavits in this case. While both denied shooting directly at the plaintiffs, the also both indicated that they shot into the ceiling but not into the shot box. The majority opinion notes that a jury could plausibly determine that the guards did not shoot into the material intended to catch the buckshot “because they did not want the buckshot to be caught.”

The Court also looked at the defendants’ assertions of why they fired the shots in the first place. The guards contended that they did so because the other guards down on the floor were in danger from the two brawling inmates. However, there are also statements on both sides to support the plaintiffs’ argument that the inmates were already apart, under control, and being handcuffed when the shots were fired. In sum, there exists in the case genuine issues of material fact. Because facts at the summary judgment stage should be viewed in the light most favorable to the non-moving party, the 7th Circuit concluded that summary judgment was improper. It should have been left to a jury to determine which version was more believable.

Amy Coney Barrett was the lone dissent on the court. She wrote that the plaintiffs have not argued that the defendants aimed their guns with intent to hit them with buck shot, thus cannot prove the guards acted “maliciously and sadistically”, and while it may have been “deliberate indifference”, that is not enough for an 8th amendment excessive force claim. Her argument rests on an assumption that purposely firing in a manner that is likely to rain down buckshot onto bystanders is not the functional equivalent of intending to hit them with buckshot.

The question to be asked about the defendants’ actions, in her opinion, is “was it to maintain discipline or for the satisfaction of hurting the prisoner?” But she fails to discuss the evidence contemplated by the majority about the timing of the shots. Instead she resumes analyzing the guards’ intentions, concluding that no evidence supports the theory that the guards intended for their shots to injure the plaintiffs.¹ She takes the majority to task for their embrace of circumstantial evidence as support for the plaintiffs’ case, despite the fact that circumstantial evidence is not to be considered inferior to direct evidence (contrary to what you may have seen on Law & Order). She claims that “plaintiffs introduced no admissible evidence in support of the ‘direct hit’ theory,” because she dismisses the circumstantial evidence that they were, in fact, hit, which could have been the result of direct aim. In any event, that does not matter to the majority’s analysis, as they find it is possible for the plaintiffs to prevail before a jury on either theory, the direct hit or the ricochet.

The majority discussed the report of the internal investigation, which apparently assumes as fact that the guards shot at the ceiling. In a footnote in the dissent, Barrett notes that the report does not identify any evidence that the guards shot directly at the inmates. But she does not acknowledge, as the majority does, that the report does not rely on any specific evidence to support the assumption that the guards shot at the ceiling (this is relevant to Barrett’s opinion that a shot at the ceiling could not have been an intentional shot at the inmates, but not to the majority, who believed shooting at the ceiling in a way that causes ricochet to hit inmates could be deemed intentional.) Here, Barrett gives the guards the benefit of the doubt in a way that is in conflict with the court’s responsibility not to weigh evidence or credibility in a summary judgment motion. (Note that conceding that the plaintiffs’ version of facts could be believed by a jury is not the same as accepting them as true; it is only an acknowledgment that a question of fact exists.)

Barrett would require the plaintiffs to show proof that, even if the guards shot at the ceiling and intentionally did not shoot at the shot boxes, they did so knowing that the ceiling was made of material that would make dangerous ricochet likely. The existence of the shot box, in my view, would suggest to a reasonable person that it is the safe place to shoot, leading to a logical assumption that the area outside the shot boxes is not. Otherwise, why do the boxes exist? It seems like something a jury could consider, which should be the main question in the analysis.

Barrett’s dissent seems to rely on the inverse of the criticisms she lobs at the majority: giving the benefit of the doubt to one party over the other. While a jury may very well see it her way and decide that the actions of the guards were not intended to cause harm, they may also see it as the plaintiffs do, based on the available evidence, statements, and undisputed facts, making summary judgment inappropriate.

Sentencing Reform: U.S. v. Uriarte

In 2013, Hector Uriarte was sentenced to 50 years in prison for various drug, firearm, and racketeering charges. This included 2 counts of using a firearm during the commission of a kidnapping (Uriarte was a gang member, who kidnapped other drug dealers to rob them.) The sentence was above the mandatory minimum of 42 years but less than the guidelines would recommend. Specifically, the mandatory minimums to which he was subject were 10 years for drug and racketeering charges, 5 years for the kidnapping plus 2 years for the use of a firearm, and for the second firearm charge, 25 years. The second kidnapping with a firearm charge carries a heftier sentence than the first because of sentence enhancement provisions for second or subsequent charges of that crime.

Uriarte appealed his sentence and won, because the finding of use of a firearm was to have been made by a jury; in Uriarte’s case, it was made by the court. His sentence was vacated, and he was to be resentenced.

While he awaited resentencing, the First Step Act of 2018 passed. Under the Act, the 25 year enhancement would only apply to a second charge after a person was convicted of a first. In other words, because both his first and second offenses were contained within the same indictment and he was convicted of both counts at the same time, the enhancement for the second offense would not apply. Importantly, the First Step Act was retroactive to any case for which a person had not yet been sentenced.

When Uriarte was resentenced, the district court determined that the First Step Act applied to Uriarte and did not impose the enhancement. The government disagreed with the court’s finding and appealed to the 7th Circuit.

The majority considered Uriarte as unsentenced at the time of the First Step Act’s passage. His original sentence was vacated, which they consider the same as if it had never happened, meaning he was eligible for the new sentencing guidelines. The government took the position that he had already been sentenced once, and the vacating of his sentence did not erase the fact that it had happened, making him ineligible for the Act’s provisions. The relevant language of the Act is as follows:

APPLICABILITY TO PENDING CASES.—This section, and the amendments made by this
section, shall apply to any offense that was committed before the date of enactment of this
Act, if a sentence for the offense has not been imposed as of such date of enactment.

The court noted that typically, sentencing law changes are not retroactive. Here, where congress made such retroactivity explicit, the majority sees no question of their intent. When a sentence is vacated, the slate is clean, and the original sentence annulled. The court describes this as a well settle fact of the legal landscape in which congress drafted the statute. Nevertheless, as the majority concedes, not everyone has seen it this way. The 3rd Circuit disagreed, finding an initial sentence the appropriate place to draw the line; otherwise, the law would unfairly benefit those whose appeals just took longer. But the 7th Circuit considers this a policy position that is not within the province of the Court to make.

The government, and Amy Coney Barrett’s dissent, rest their argument to the contrary on an indefinite article. The statute says “if a sentence for the offense has not been imposed…”, which, they argue, is not the same as “a final sentence.” In Uriarte’s case, Barrett and the judges who joined her dissent say, a sentence had been imposed. That it had been vacated at the time of the Act’s passage is not relevant. The Act only applies if, “as a matter of historical fact”, no sentence has been imposed.

As further support for her interpretation, she cites a previous 7th Circuit case, US v. Pierson. In that case, Pierson’s appeal was pending at the time the Act passed. His sentence had not been vacated and was a valid, active sentence on that date. The court ruled then that the act did not apply to Pierson. The difference here is that Uriarte was under no valid sentence at the time. Barrett argues that if congress had intended the result the majority advocates, they could have made the statute say “the sentence” or “the final sentence”. However, the majority points out, if they intended the result the dissent urges, they likewise could have used the phrase “any sentence”

Barrett turns from her textualist approach to an analysis of fairness, comparing Uriarte to his co-defendant who also had his sentence vacated. While both appeals were decided at the same time, the co-defendant, Tony Sparkman, had already been resentenced by the time the Act passed. Uriarte, on the other hand, had pushed back his resentencing hearing several times, and by his delay put himself in a more favorable position than his co-defendant. As a result, Uriarte will have a sentence that is 20 years lighter than Sparkman’s.

Admittedly, I am not a strict textualist, and I tend to find this argument more compelling than Barrett’s reliance on the definite article. In my view, as a matter of solid fact, Uriarte was under no sentence at the time of the Act. By the inclusion of the retroactive provision, it is clear to me that the intention was to make all defendants who were sentenced from the date of passage forward subject to its provisions.

Conclusion

I am not willing to say that these cases suggest to me that Barrett will be unduly deferential to government in matters involving the criminal justice system; in fact, I have read other decisions in which she found in favor of the criminally accused, including a good 4th amendment decision in which she finds a search of a home was illegal, because the officers did not have consent. The officers were let in the house by a woman in a bathrobe, but did not ask her whether she lived in the home or otherwise had standing to consent to the search. The government relied on the mere fact that she was in a bathrobe as proof of their good faith; Barrett was not impressed with their argument and found the search was constitutionally invalid.

Nevertheless, I find her reasoning in both of these cases rather flimsy and a bit of a reach outside of common sense. I therefore dissent from both of Amy Coney Barrett’s dissents.

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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 4 covering interviews and extrajudicial writings that have made news can be found here

1. It is not required that the two individual plaintiffs were specifically the target; it would be sufficient that they were among a group of targeted people.