1997-01-07 /audio/cases/1996/95-1717_19970107-argument.mp3 /source/oyez/transcripts/trs/1996/95-1717_19970107-argument.trs Stephen G. Breyer Sandra Day O'Connor Ruth Bader Ginsburg Anthony M. Kennedy William H. Rehnquist Antonin Scalia David H. Souter John Paul Stevens Clarence Thomas Unknown Speaker Seth P. Waxman Alfred H. Knight United States v. Lanier (No. 95-1717) - Oral Argument
Argument of Seth P. Waxman We'll hear argument now in Number 95-1717, United States v. David Lanier. Mr. Waxman. Mr. Chief Justice, and may it please the Court: Between 1989 and 1991, the jury found Judge David Lanier sexually assaulted five women in his judicial chambers, one by repeated forcible oral rape, the others by what the jury concluded was "physical abuse of a serious, substantial nature. " As to each count on which Lanier was convicted, the jury found beyond a reasonable doubt first that Lanier's conduct had deprived the victims of a right secured or protected by the Fourth Amendment. That is, the right to be free of unjustified physical abuse, including sexual assault, of a serious, substantial nature under color of law and, second, that he had acted wilfully, which the court defined in accordance with this Court's decision in Screws v. United States. A divided en banc Sixth Circuit ordered the indictments dismissed because in the majority's view the due process right to be free of forcible and coerced sexual assault had not been made specifically... sufficiently specific for the defendant to have known that in assaulting his victims he was violating their constitutional rights. In concluding that sexual assault or any serious unjustified assault committed under color of law cannot be prosecuted under section 242, the court below misapprehended Screws and applied a standard no court has ever found necessary or appropriate. Because the jury found that Lanier had sexually assaulted his victims while acting under color of law and with the knowledge and intention of violating their legal rights, and because decisions of the Federal courts had made specific the due process protection of those rights, the defendant was properly and constitutionally convicted in this case. Why does it have to-- --Mr. Waxman, two of the concurring judges in the court of appeals I believe felt that the oral rape should be sustained but that the misdemeanors simply, I believe, weren't under color of State law. Does the Government take any position on that here? Well, yes, we do, Mr. Chief Justice. First of all, I would stand corrected. I had thought that what the two dissenting justices said was that the misdemeanors didn't rise to the level of a specifically defined constitutional violation. Well, you may be right. I'm not sure. But in any event, we do disagree. We certainly recognize that there is a very significant difference in degree as to the conduct with respect to the coerced oral rapes and the conduct with respect to the other five misdemeanor convictions, but the right that has been made specific in this case is the right that this Court in Ingraham v. Wright identified. It made specific the substantive due process "right to be free from unjustified intrusions on personal security. " Well, if that's true, then why does... there has to be a serious touching, or a serious assault, because that was part of your submission at the outset. If indeed it is the fourth Amendment that is controlling, why is not any offensive touching a violation of the act? Well, your... Justice Kennedy, your question raises a lot of issues. One is whether it's the Fourth Amendment that's controlling, and the second, why it is that substantial serious was included in the jury instruction. If I can... I will attempt to answer each of them separately. We don't think... we did not understand that the Fourth Amendment was controlling in this case. this was alleged, the indictment alleged that this was a substantive due process violation, the substantive due process right being the right to freedom from unwarranted intrusions by under color of State law physical integrity. We don't understand the Fourth Amendment cases... and that was our effort to articulate a right that had been made specific by this Court in a series of due process decisions. We did... have not understood this Court's Fourth Amendment jurisprudence, particularly in light of James Daniel Goode Real Estate, to include searches or conduct that occurs either outside the law enforcement context or, in any event, as not part of a search for or an effort to protect evidence of wrongdoing. So in your view the Fourth Amendment is not really the controlling element in this case. We think that it's not, although if it were, we would urge the Court to find that in any event there is no prejudice to the defendant because in any event the constitutional right alleged to have been violated would have been the Fourteenth Amendment, since the Fourth Amendment would apply only as incorporated, and the sub-- Mr. Waxman, the idea of the Fourth Amendment does go way, way back, even to Boyd v. United States, of any invasion of a person's personal security. Is that not so? And I thought in your very first remarks you mentioned the Fourth Amendment, didn't you? --No, I... if I did, I certainly meant to say the Fourteenth Amendment. Oh, that was what misled me. Okay. I apologize to the Court. I perhaps misheard you. I left off a digit. [Laughter] In any event, we don't think, even if it were the Fourth Amendment... I think this is responsive to both of your questions... even the test would be the same, because the question under substantive due process under Ingraham and its progeny, whether... would be whether the physical intrusion was "unjustified"-- Okay. Let's get to the next part, then, which is how-- --and then the Fourth Amendment test would be unreasonable. --How serious it has to be. Well, in Ingraham this Court recognized in the due process context, as this Court recognized in McMillian and the Eighth Amendment context and other courts have recognized, that "there is, of course, a de minimis level of imposition with which the Constitution is not concerned. " Now, the problem in every case, of course, is to determine whether or not that de minimis threshold was surmounted. In the case of the forced oral rape of Vivian Archie, I... we submit there is no possible... there's no conceivable notion that it wasn't surmounted, but if we look to this Court's precedent, in Ingraham itself, after stating that there was a de minimis level of imposition, it held that because in Ingraham itself appreciable physical pain was inflicted the threshold was certainly met. Now, that threshold, the threshold of de minimis, is one which decisions of this Court have not made more specific, but lower-- Well, maybe... maybe... the instructions here certainly called for more, did they not? --They certainly did. They called for physical abuse of a serious, substantial nature involving physical force, mental coercion, bodily injury, or emotional damage which is shocking to the conscience, so clearly this instruction envisioned something much more serious than passing some de minimis line. That is absolutely correct, and that is why I would submit to the Court that because the-- Well, do you think that instruction was wrong? --Well, we thought that the shocks-the-conscience standard was unnecessary. We didn't submit it. The defendant asked for it. It was clearly cumulative of the other requirements, the serious and substantial nature that the jury had-- I mean, the problem you'd have is that virtually every arrest where handcuffs are put on, or anything of the sort, would result in a Federal case as well as any ordinary excessive force claim. --Well, I think-- And I think that has to be a concern, of course. --It very-- It may not affect this case because of the instruction here, but I think this issue is terribly important, whether it's just some de minimis threshold that's left out, or is it something more. --We agree that it is a very important question, and if I could, Justice O'Connor, let me address this case and then get to where... how we think these cases should be decided under other circumstances. Well, I prefer that you'd get right down to what the heart of the standard is and then talk about the facts here. Okay. We think that at a minimum the standard is a serious and substantial intrusion, and we think that because the jury was so instructed in this case, that as to those counts that the jury convicted... and the jury was quite discriminating in this case. It acquitted on three counts, and one count was dismissed by the judge on a motion for judgment of acquittal. As to those counts on which the jury convicted, there is more than enough, way more than enough evidence for a rational fact-finder to conclude-- Serious and substantial, as you're putting it, is almost inconsistent to me with the concept of a misdemeanor, which is what some of these convictions were. --It's true that all but the oral rapes were misdemeanor convictions, but none... it may be, Mr. Chief Justice, that the instructions in this case set the bar too high. Ordinarily in... I would think in one of these cases a trial judge, if presented with a clearly insignificant or relatively insignificant intrusion, would apply the same Jackson v. Virginia standard that it would apply, for example, in a 1983 suit or a 242 prosecution brought alleging that a... that in the course of an arrest or a seizure unreasonable force was used. There's a real element of vagueness in all of this, though. Well, there is in this as in, for example, when a jury is asked to decide whether a search and seizure is unreasonable-- Mr. Waxman, you just-- --or whether an obscenity case-- --Mr. Waxman, you just mentioned 1983 in connection with 242, and it would help me very much if you would clarify two things about the relationship. Is everything that would be susceptible to a 1983 charge also indictable under 242, and is there any difference in the state of mind requirement in the two? --Yes, Justice Ginsburg. First of all, there is a significant difference in the state of mind requirement. Under 242, under Screws, this Court has said that 242 may constitutionally be applied only if the defendant acted wilfully. That is... and I'm quoting Screws... when persons act wilfully in the sense in which we use the word, they act in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite, and in deciding Monroe v. Pape, for example, this Court emphasized a much higher intent requirement that is required. I understand the abstract concept, but frankly I don't understand when one intentionally beats another human, to take an example, what is wilful any more than intentional in that context. Intentional in conventional common... in conventional criminal law terms, and it's reflected in all of the pattern jury instructions, an intent to do a crime, a specific intent to do a crime means that you intend to do the act which you do. But as this Court said in Screws, the common definition of wilfulness implies something much more. That is, a bad purpose, or a specific intent to do something that the law forbids, knowing that the law forbids it, and intending that it be forbade, and that in fact is precisely what we have in this case. In this case we really have quite an extraordinary set of circumstances. In the motion for judgment of acquittal the... Judge Lanier's counsel said, and I am quoting at page 110 of the Joint Appendix, I am satisfied that a deprivation of freedom and liberty from sexual assault is adequate. And when Judge Lanier testified, and I'm quoting now from volume 9 at page 1569, he was asked, question: Well, you understand, for example, judge, that everybody in this country has a right to be free from sexual assault and abuse. You understand that, don't you? Yes, sir, I understand that. Well, Mr. Waxman, that's-- --That's not clear at all whether... he could have been answering in response to State law, Federal law... a vague question like that doesn't prove much. And it's not true anyway, is it? Everybody doesn't have a Federal... we're talking here about a Federal constitutional right. The statute requires deprivation of any right secured or protected by the Constitution. And laws. Or laws. Now, the Constitution, or the laws here... you're talking about Federal law that was the basis for this charge, anyway. The Constitution does not protect you against derivation of your physical integrity. If a private individual comes up and beats you up, that's not a violation of the Constitution. That's absolutely right. Now-- You have to have under color of law. --Exactly, and... well, more than under color of law. There has to be some State participation in some manner or other. Now, I had thought that when we were dealing with the Due Process Clause's procedural component, procedural due process, any action of the State would suffice to come within this provision of being the right guaranteed by the Constitution, so that even if the State is acting as employer and terminates your contract without proper procedure it would be a deprivation of procedural due process, but I had not thought that when we're talking about substantive due process every activity of the State brings down upon those State actors the prohibitions of the Federal Constitution. For example, if someone goes into a motor vehicle registration office and the person behind the desk jumps up and punches the person, I would not consider that to be any violation of the Federal Constitution. It's a State actor in the function of his job. But it has always seemed to me that in order to come within substantive due process protection the State must be acting in its... what should I say, in its compulsory fashion. It must be exerting State power, not just acting like an employer. Well, Justice Scalia-- A policeman, for example, arresting someone is exerting State power over you, and if in the course of that he beats you up, substantive due process has been violated. --Justice Scalia, I understand your point about State action. Let me say first that although I understand your view of the proper construction of the terms, under color, dozens and dozens of lower court decisions have not construed it that way, including many of the assault cases and other cases that this Court has specifically cited approvingly. But let me just-- I wasn't referring to the phrase, under color. I was referring to rights secured or protected by the Constitution. I was not referring to the phrase, under color. --Well, the right... this Court has said, Justice Holmes in the Moseley case and this Court many times since has said that this statute and its companion, 241, protect all Federal rights in a bundle. That is, all rights created by the Constitution or laws of the United States. But I think we've treated substantive and procedural due process differently. Unless you disagree about my-- I do disagree. --About my example... my example of the motor vehicle employee. I disagree-- He jumps up and beats-- --I disagree, and I could cite-- --So any physical tort committed by a State agent in the course of his employment is a constitutional violation. --No. A... an assault committed by a State agent in the course of his employment, or something that satisfies the Classic definition of under color of State law, if it violates State law-- You see, I just don't agree. I cannot imagine that 242 was meant to cover that situation in which a, you know, a State bureaucrat jumps up from the desk and punches somebody out. --Well, let me give you an example from Polk v. Dodson, a case that this Court decided, in which case this Court held that a State public defender was not acting under color of law when she was engaging in the representation of her clients because, as this Court subsequently explained in West v. Adkins, she was acting as the adversary of the State. In Polk v. Dodson this Court said we leave undisturbed cases like, for example, the section 242 prosecution in the Seventh Circuit case of United States v. Senacht, where a State public defender was prosecuted and convicted under 242 for extorting money from friends and relatives of people that he was representing. But that was in relation very specifically to his duties. Supposing in your case in this courthouse a janitor leaped out of a closet, abducted a woman, and molested her. Would that be a 242 violation, in your view? Probably not. It would be very difficult, I think, to... I think it would be impossible to show that the janitor was acting under color of State law. Well, he's on the premises. It's during the course of his employment. It's obviously... he's not using the employment in any other way than as a physical proximity, to get access to the victim. Well, this... I'm not... I don't know of any-- And incidentally I'm not sure that that isn't true in the case that's before us. --Well, let me talk about the case that's before us. The... none of the six opinions issued by the court of appeals or members of the court of appeals in this case concluded that the defendant did not act under color of State law, and with good reason. State law is a... state action, or color of State law is a jury question, and the jury in this case was instructed in hac verba from this Court's Classic definition-- Haec verba. --in United States v. Classic, and the evidence, I submit, certainly exceeds the minimum that is necessary to find-- Well, so... is it then your position that anything a government, anything a judge does in the course of his office is necessarily under... during working hours is under color of State law? --No, certainly not, but what you have in this case were, all of these assaults occurred... and I don't intend to get into the details of these assaults, but all of these assaults occurred in his chambers during regular working hours as to women who were either employees hired and supervised by him or people who were there in connection with an official responsibility in which he had asked them to be there, and-- Well, Mr. Waxman, assuming... taking that as you say, help me on one thing. I thought we could decide this case, and I thought the issue that you had brought to us could be decided without getting into the question of the scope of under color of State law, and I think you just said or implied that the concept of color of law was never an issue in the trial court. Am I correct? --I believe it was an issue in the trial court. But was it resolved against the Government, or-- It was resolved in favor of the Government. --All right. That is, the... there was a pretrial motion to... well, I will-- Well, let me change my question. The only issue that you have brought to us, as I understand, is the issue of how definite the right must have been articulated prior to the charge that is brought under this statute, is that correct? --That is correct, and that was the only basis for the en banc majority. Can that issue be decided, as I assumed it could be, without getting into the concept of color of law? Well, we certainly think it can be. Of course, a judgment below can be affirmed, I suppose, on any grounds, but the issue of under color of State law was only raised for the first time in the red brief in this case. No, that's not true. It was raised in the opposition to the petition for certiorari. Well, the-- At the first opportunity that this defendant could raise it. It wasn't reached by the court of appeals. But moreover, your opponent contends, and I tend to agree, that color of State law is one issue, but that the same kind of considerations arise in the interpretation of the phrase, rights secured or protected by the Constitution, that it is not all rights to physical integrity that are protected by the Constitution, but only those that are taken away by the State in a certain fashion, and his contention is that that fashion has to be when the State is exerting governmental power, is acting as custodian, or in some other fashion, so the same issue comes up in a different guise, not under color of law but under the other provisions-- --I would make two points, Justice Scalia. First of all, there are a raft of lower court decisions applying 242 and 1... and 1983 in contexts in which the State is not acting as custodian of some sort. And second of all, I would make the point that we tried to make in our brief that the notion that somehow individuals who are in custody, either in a mental institution or prison or in a public school, somehow have more rights to be free of unjustified bodily intrusion than free citizens is exactly the opposite of-- --Mr. Waxman... Mr. Waxman, wasn't she essentially arrested, confined, if we're talking about Vivian Archer? I didn't understand your departing from the Fourth Amendment so swiftly, because it seemed to me what was very clear is that that woman was locked up. --As to Vivian Archie I think the facts are overwhelming. She came in for... this judge had granted her a divorce and granted her custody of her child. She came in to file an employment application with him. He told her that her father was asking him to take custody of the child away from her. He then forcibly physically orally raped her and told her not to say anything about it. Now, are you saying that this makes the right more specific? I'm not saying-- Because if you are, then I think your answer to Justice Souter might have been that color of law is necessary for us to consider to make the right more specific. Now, maybe that's not your position. --That's not my position. My position is that there are four elements to a 242 offense, of which color of law is one, and violation of a constitutional right made specific is another, wilfulness is a third and, of course, the commission of the acts alleged is a fourth. As we understood and as we brought this case to this Court, the issue was the first, the second that I identified, which is, was the right violated here a right that has been made specific, and our point-- And if you win on that you then go back to the court of appeals for further proceedings on color of law, or the... Justice Scalia's articulation of the concept of right guaranteed? --I don't think that it's... I suppose maybe I haven't thought of this closely enough. I don't think it's required for us to go back to the court of appeals for any other determinations. This case was presented to the panel on all issues, and they were all denied. They went to the en banc court on two issues, and the en banc court I think has disposed of this case. There is not the slightest intimation in this case that the en banc court was inclined to find that this didn't exist under color of law. I thought it disposed of the case against you and found it unnecessary... having found against you on another ground, found it unnecessary to reach the color of law ground. Well, that-- Which seems dirty pool, to never give the defendant a shot at that ground. --I-- The court of appeals never considered it. --I would never wilfully play dirty pool. I'm sure you wouldn't. [Laughter] And in fact if that is the proper construction, it should be set down. It's our rule 3.2. [Laughter] The dirty pool rule. I honor all of your rules, whether they've been made specific or not. Mr. Waxman-- [Laughter] Mr. Waxman, you said... in comparing 1983 you said there's a stronger intent requirement. What about qualified immunity? That's a big thing in 1983. Does it figure in 242? Well, I think it does in this respect. You have to determine how to give content to the words, made specific, and we think that the made specific standard under 242 and clearly established standard under qualified immunity cases are and ought to be considered quite similarly, and that is the test should be the functional test that this Court articulated in Forsyth v. Mitchell. Similarly but not identically? Why shouldn't that be identical? Or whether... whether one familiar with the law could have had a legitimate question or better. As this Court said in Anderson v. Creighton, in light of preexisting law the unlawfulness must be made apparent. And don't you think the standard should be the same for... under each standard? I do. Yes. I do. Mr. Chief Justice, I'd like to reserve the balance of my time. Very well. Thank you. Mr. Knight, we'll hear from you.
Argument of Alfred H. Knight Mr. Chief Justice, and may it please the Court: It seems to me that the exceptional aspect of this case from a factual standpoint, as a 242 case, is that the respondent was convicted of offenses involving the spontaneous use of physical force, but as a public official he had no legitimate authority to impose force on citizens. Now, that goes to the color of law issue. Your Honor, I think it-- Is that before us? --I believe, Your Honor, it goes in a sense to all three possible issues here. It certainly goes to the color of law issue in the sense that within the language of the Screws case he could not have been acting under the pretense of exercising his legitimate authority when he committed the-- Oh, I understand your point there, but I think my question is this: if we should determine that the court of appeals was wrong in applying a standard which goes beyond what Mr. Waxman suggested, in other words that goes beyond reasonably definite, and instead require the substantially identical circumstances or facts I think is how the court of appeals articulated it, if we say that was an error, isn't it possible to dispose of that issue without ever determining whether in this particular, or in any of these particular instances the office or the judge in this case was acting under color of law? --I believe you could dispose of that issue, but I believe that in addressing the due process issue there would have to be a finding of State action in connection with this conduct, and State action is in my mind so closely allied with the concept of acting under color of law, I think it would be difficult for this Court to enunciate a due process violation without addressing the question of whether the conduct could be considered State action, which would be very close to determining whether it was action committed under color of State law. Well, I suppose we would just say we are determining only the question here, how definitely the right must have been articulated prior to the commencement of this prosecution, or prior to the act charged-- Yes. --and questions of State action and color of law are simply-- Well-- --not covered by our opinion. --I would contend, Your Honor, that in determining how specific the due process right must be articulated, or have been previously articulated, the Court would address the question of in what context is the assault conducted? In other words, is assault per se by someone who happens to be a public official a due process violation? I would contend that that's too broad, that that's beyond the ambit of what Screws had in mind, and that therefore the governmental context in which the assault was conducted would have to be determined, which to my mind brings you back to the question of the State action and the governmental context in which the assault was committed. I'm inclined to agree with you on the point of breadth that you raise, but I'm not sure that I can agree with you that we could not decide the case on the grounds of what I will call prior definite statement of the right without getting into color-- Well, I do believe, Your Honor, that as an abstract proposition certainly you could decide the due process issue if you felt that the due process issue could be determined without reference to considering the governmental context in which the assault occurred. If you adopt the Government's view in this case that unjustified interference with physical integrity, which I take it is coextensive with assault, if you decide that that is a definite enough statement of due process violation to pass muster, then I would agree that you would not have to consider State action or the governmental context in which the assault occurred. But my fundamental contention in this case is that that definition that has been proposed by the Government is far broader than any definition certainly this Court has undertaken and, in fact, I think is contrary to several holdings of this Court, or certainly to the spirit and thrust and intent of a number of decisions that have been rendered by this Court. --So-- --Mr. Knight, do you think that there's any violent assault by a public official, any at all, against a free person as opposed to someone who is in custody, that would be a violation of 242? I cannot, Your Honor. It's quite difficult to conjure that up, and I've tried to do that, and I've been asked those hypothetical questions along the way in these appeals, and I cannot. Well, what about a policeman trying to keep order at a parade or in a demonstration who just... and has authority to... he doesn't have custody of the onlookers, but he has authority to keep them back from the street, and he wades in with a baton and starts beating them? Wouldn't that qualify? I suppose, Your Honor, you do get situations where there is not custody in the full sense of an arrest and something happening after the arrest. I don't think the issue is custody. I think the issue is the exertion of State power. I would agree with that, Your Honor, that that is the broad issue. I believe that the case law has so far by this Court been in terms of injuries that occur while in custody. But you would... would you distinguish the hypothetical Justice Scalia just gave you and the case we have before us? Yes, Your Honor, I would on the basis that I initially suggested, which is that a judge has no authority conferred by the State to assault or restrain or subdue citizens, and therefore-- May I interrupt you on that question? Suppose the judge is presiding at a trial, and the... this potential victim is a party to the case, and he says, I want to have a pretrial conference, I just want to see you in chambers, and say I'm planning to rule against you unless you submit to my advances, would that be covered in your view? --He says I would rule against you unless you submit to my advances. Right. Your Honor, that is a use I would think possibly of governmental power. It may get back, and I know we've got a problem with color of law here. I don't think that would be under color of law, because I think under color of law within the meaning of Screws is a purported or pretended exercise of actual authority. Well, his... he says, I threaten you with an exercise of my power to rule against you in the case pending before me unless you do what I want you to do. Well-- You'd say that isn't colorable. --I would make the distinction that there's a difference between an extortive use of power, or an extortive use of position where you say, I'm strong enough to force you to do this on the one hand, and saying as a judge I have the authority to sentence you to be assaulted by me. Oh, but I thought you could answer Justice Stevens that that is a more specific right than the right that's involved in this case, i.e., the right to be free from having the judicial officer use the powers and the authority of his office in order to commit a sexual assault. I would agree with that, Your Honor. But that isn't too... Justice Stevens' hypothesis isn't too far from what actually happened here-- Oh, I-- --with the case of the oral rape. --If Your Honor please, I think there has been some misconception about what happened during those Archie assaults, which are certainly the most serious assaults in the case. What happened was, in the first interview, at the outset of the interview the respondent said, your father has indicated an interest in filing a change of custody petition, and I can't discuss that with you. That was just... that was a statement of fact that as far as we know was a true statement of fact, and with the benefit of hindsight it has been said well, that was an implied threat. There was an interview that was subsequently conducted. The assault itself was a pure exercise of physical force that did not involve any such-- Well, but surely a jury could conclude from that series of events that there was an implied threat to use judicial power if there was no submission. --Well, I would say first of all that that situation is distinguishable from the case raised in that there was no pending case. That-- But he did have the authority to determine custody, didn't he? --He would have the... he would be a judge who could have determined custody had the petition been filed. In the... as the facts developed, another judge decided that custody issue, and that was a consensual decree that Vivian Archie agreed to which was brought to and signed by a different judge. Well, wouldn't it be sufficient if the jury found that what he said was the equivalent of this: if a custody case, if your custody case comes before me, I can decide it against you unless you do what I want you to do right now? If a jury could find that, that would be enough, even for your view of color of law, would it not? I think an explicit threat to use judicial power in a pending case would come within the requirement of an exercise of State power that resulted in the harm. I don't deny that. But that has not been the Government's submission here this morning, and it was not the theory on which it tried the case, is it? That is correct, Your Honor, not in the least. That was not-- On color of law, I thought that there was a question of... the definition of Classic, as I understand it, was a misuse of power possessed by virtue of State law and made possible only because the wrongdoer is clothed with the authority of the law. I take it you accept that as a definition. --I think the... they did say that. Yes. I think what that meant, as I interpret factually what happened in this case, is a little bit deceptive. But I mean, my question really is that you accept that as a proper-- They use that terminology, yes. --Right, and you accept that as proper, so then the only question would be... if you do accept that as a proper definition, the only question would be whether the facts bring it within that definition, which the jury found they did. Is... I'm just trying to understand the issue. But I would say that-- Am I right? --Well, I would say... I'm sorry, Your Honor, but that phrase was used. Yes. But I would insist that the proper phrase would be misuse of authority, not misuse of power in the sense in which the Government meant it, which was misuse of his status as a judge, which for the most part, to the extent there was any alleged misuse, simply was a subjective feeling on the part of these women that they would not report these assaults because he was a judge. I mean, it had to do mostly with his status as a judge. But that... one can distinguish on that basis the misdemeanor types of things from the oral rape, don't you think, that the use of status as a judge is much more apparent in the oral rape case? Well, it is more apparent in that there... it is apparent at all, or that they could be some argument-- Yes. --made, but I will-- And the jury might find it, as you acknowledge. --Well-- I think you acknowledge, although they weren't asked to find it. --I didn't mean to acknowledge that the jury could have construed his statement-- Okay. --which is a conversational statement, as a threat. But they weren't asked to, anyway. They were not asked to anyway. But on your theory, as I understand it in your response to Justice Breyer and to the Chief Justice, as I understand it you're drawing a distinction something like this. You're saying that the official was acting under color of law if, in effect, he abuses the authority which the State law ostensibly gives him as distinguished from simply using influence which incidentally comes to him because he's a State official. Is that the way you draw the line, roughly? That's the way I draw the line, Your Honor, and I would say-- You would say any authority the State gives him, even the authority simply to hire or fire employees? --No-- Which is not a distinctively governmental-- --In terms of judicial authority-- --Okay. --Which I thought-- I thought the question was broader, and-- --No. No, I don't think it... you see, the authority that they talked about in this case was not surgically confined to he is a judge. It had to do with the fact he is a powerful political figure. He's significant in the community. People won't listen to me if I report him. It's the sort of reaction that you could have to any prominent citizen, and certainly if that's the test, then any assault by almost any public official or public employee could be subjected to that kind of analysis. --Let's take color of law out of it. Let's take Justice Stevens' hypothetical. The judge orders the person into their... into his chambers by herself and commits an aggravated sexual assault. Is there a specific right of bodily integrity that the judge has violated in the exercise of his office by an abuse of his authority? If he has ordered her into his office, let's say, we need to have a pretrial conference in your case, or-- Yes, we have all the color of law that we can hypothesize. --Oh, I concede that if there is an exercise of State-granted power and physical injury ensues, I don't know what the degree of physical injury need be, but I don't deny-- Then there is a specific right... there's a specific right of bodily integrity outside the context of people in custody. --Theoretically. I know of no case law that says that, but theoretically that could happen. Well, so then you accept the definition of the Solicitor General. I mean, the basic issue, I guess, is whether there is a specific defined... whether there is a Federal right made definite, and is it sufficient in your opinion that the Federal right involved is a right given by the Due Process Clause of the Constitution in defining those matters that the State cannot take from a person irrespective of what procedure it gives? You see, Your Honor-- That's called... what I want to do is give you two or three suggestions and see how you respond. --All right. You'd say, one, this is in the area of substantive due process, i.e., the State cannot remove it from a person irrespective of the procedures. If it is genuine State action-- All right. Second... second... and that's, say, a right against serious bodily intrusion, serious and substantial bodily intrusions. Second, the State criminal law makes it a crime, and third, the person knows it, so there is no surprise, no possibility that what he thinks he was doing was right, and fourth, there are cases saying in related virtually indistinguishable areas that the Federal Constitution protects it. Where you have those four things, is there any reason why it would not be sufficiently specific under Screws to permit a criminal prosecution? --Particularly the fourth element of that hypothetical, Your Honor, would have to convince me, but I don't know what the Constitution... I don't know what that Constitution-- If a policeman can't beat up a person, say in the parade, can't hit him over the head, can't put his fist in the person's face at the parade, I suppose it's somewhat similar to have offensive sexual contact with a woman at the least. Is there some difference between those two things? --I don't think... I think... I think there's... the only difference there would be is that if there is sexual abuse, that would be a sort of a continuum of the exercise of force that began the situation as opposed to a policeman that simply beats up Rodney King and says this whole process was an exercise of legitimate State authority in which I was subduing, trying to arrest him, and trying to defend myself. But if I could, Your Honor has mentioned Screws, and we have not, I don't think really talked about the Screws aspects of this, because my reading of Screws would say that what the Government is doing in this case in defining this due process crime is essentially what the Screws court, seven of the justices including the majority and dissenting justices, feared would happen, were concerned would happen, and did not want to happen. And that is, taking the concept of liberty interest as it floats through the case law and developing out of that evolving standards of criminal liability which would result in ex post facto judicial creation of crime, in perhaps coopting for Federal prosecution large areas of State criminal prosecution, and of depriving defendants of fair notice of offenses that-- Weren't they concerned with the problem of evolution taking place in the course of the prosecution itself, and if that was their concern, then doesn't the Government answer that concern when the Government says, we'll settle for a standard like the Creighton standard on qualified immunity? Is it reasonably definite, and if it is reasonably definite by reference to the law prior to this prosecution, doesn't that satisfy the concern that underlay the statements that were made in Screws? --Well, it does not underlay those concerns as they were expressed in the Screws opinion. I mean, as I read the Screws opinion, the Screws opinion is saying we don't need to be developing ongoing principles of criminal liability based upon all of these circuit courts and the Supreme Court deciding all sorts of different fact-specific situations, and as the court put it, referring the citizen to a library, a law library in order to determine what is or is not criminal action. But that boils down to saying, it seems to me, we don't think the ordinary citizen or, indeed, in this case the ordinary official, should be in the position of having a surprise pulled on him when to that official, even without having done massive research, it would not have seemed reasonably definite in advance that what he was doing was in fact a substantive violation. Isn't that what they were getting at? I think that was part of it, but I also think that there was great concern in that opinion for the ex post factor problems. But isn't that the ex post facto problem? If it's reasonably definite before the act, then the ex post facto problem, it seems to me, goes away because you've got what is admittedly a formula criminal statute, but you've got a source of content for it which predates the act, and doesn't that respond to the ex post facto concern? Well, I think the Court was looking for a kind of definiteness that was quite fact-specific. Why isn't reasonably definite enough, reasonably definite within the sense that is used in Creighton? Well, reasonably definite implies that there can be conflict among decisions to some degree. There can be questions of whether a precedent really and truly does factually apply to a situation, and I think the Court-- Well, isn't it the same kind of inquiry that you conduct under section 1983 for qualified immunity? Isn't that sufficient here? --It is the same inquiry. Well, why shouldn't that be sufficient here? I'm sorry, I didn't mean to say it's the same inquiry. Well, maybe it is. I think it's a stricter inquiry. I think it's a stricter inquiry. Doesn't it depend on what it is that we're inquiring is reasonably definite or not? I mean, if the issue is whether it's reasonably definite that depriving someone of his physical integrity can in some circumstances constitute a violation of the Constitution, you can find that to be reasonably definite relatively easily. That-- But if you're going to fold into the inquiry whether it's reasonably definite that a judge who is not immediately in the exercise of his judicial authorities conducts an assault of this sort in his chambers, if that's the question on the other hand, you come up with a different answer, and how do we decide at what level of generality to ask the question? --I think you ask it if you look at the Screws case at a level that is quite fact-specific. I think-- Mr. Knight, let me ask you a fact specific, then. Suppose this woman were in a holding cell awaiting her trial. She's taken out by a police officer. She's in the corridor. The judge grabs her, takes her into his chambers, and he rapes her. Would that qualify for a 242 prosecution? --You know, I will say, Your Honor, in terms of the language of the Screws case itself, it might not. The Screws case itself says the fact that a prisoner is assaulted, even murdered, does not necessarily mean that he has been deprived of a constitutional right under this statute. I think the Screws court had in mind something more specific than physical harm rendered even in custody. Well, but maybe the Screws court had nothing more in mind than the possibility of the situation of the prisoner being led down the hallway to trial and a judge in a fit of exasperation coming out of his chambers with a revolver and shooting him. In that case, I suppose the judge was not on either your test or Mr. Waxman's test exercising that authority that would bring him under color of law. I thought that was the example, though. Wasn't that sort of the same example? I thought that was the example that Justice Ginsburg gave, the same kind of thing, a judge who didn't shoot him but just jumped out of his chamber and-- In the course of being transferred-- --Yes. --there is then a-- A rape. --An assault, yes. I think that's close to it. About the same. But I think what the Screws court had in mind was that a casual beating by a deputy sheriff just for the heck of it and with no specific intent except he liked to beat up prisoners was not a violation of any due process right because you had to have a right to deprive him of his trial by a jury in lieu of trial by ordeal. I thought that part of Screws-- I mean, they were dealing in quite specific deprivations in that case-- --Isn't that part of Screws dealing with the under color of law question? Yes. Which is just what Justice Souter said? Of course-- --I'm sorry? --Wasn't the part of Screws you're talking about dealing with the question under color of law? I believe-- Of course, a murder doesn't violate the Constitution if one private citizen has murdered another, and I thought that's what they had in mind by that instruction. --I believe the structure of the opinion, Your Honor, is that there is a section on deprivation of due process followed by a section of under color of law, new paragraph, and the new paragraph deals with the problem of the balance of State-Federal law enforcement so that you're not getting into turning over State criminal law enforcement and assault cases en masse to the Federal Government and they... that's where that sentence appears, and the end of that paragraph refers both to color of law and due process, as I recall, but-- Is there something fictional about Screws... I've always had a problem with it... when we say that the defendant there was wilfully depriving the person of his Sixth Amendment right, of his Fifth Amendment right? That really wasn't in the mind of these sheriffs at all was it, in Screws? --That they had certain constitutional provisions-- Yes. They didn't beat him once because of his Fifth Amendment right, another because of his Sixth Amendment-- [Laughter] --Well, I think the... interestingly, the instruction to the jury was quite specific in terms of a deprivation of trial rights. I mean, that's where the idea came from that he had a constitutional right not to be deprived of his-- But I'm asking, isn't that something of a fiction, even in Screws? --Well, I think it's certainly a fiction in terms of thinking that these deputies were... had the Constitution in mind. Yes. But I'm not sure it was a fiction in terms of the facts, because there was evidence that the deputy had said, we're going to get this guy, and they arrested him under some pretext and killed him before he could be tried, so I think there were facts from which a jury could conclude that in a factual sense they really were depriv... they really did intend to deprive him of legal process and kill him before he could be found innocent, but I mean, that's... as I read the case, that's what was going on. And I do think that the concern of all seven of the justices that... well, seven of the nine, was that this statute might be so vague as to be almost subject to due process objection on its face, and I think the intent was to construe it very narrowly to require very specific constitutional violations and intent factually to violate those rights. Depending on just how far we go with specificity, may I at least come back to consider a distinction raised by Justice Ginsburg's question? Your answer was very probably under Screws that that, in fact, would not qualify as a violation. Yes. But as I understood it under Justice Ginsburg's hypothetical the person who was subject to the sexual assault would have been subject to the judge's judicial jurisdiction later on. Doesn't that affect the answer, and for that reason shouldn't the answer... shouldn't your answer have been different? Well, if there were facts from which a jury could find an intent to deprive her of a trial by jury and to punish her by some other means, or to... whatever. Or to threaten her. Yes. That's conceivably so. I know my red light's on. Yes, it is on, and your time has expired. Mr. Waxman, you have 4 minutes remaining.
Rebuttal of Seth P. Waxman Thank you, Mr. Chief Justice. With respect to the issue of the level of specificity that a number of members of the Court have raised, I think the issue of how specific the right has to be was, in fact, a question that was dealt with in Anderson v. Creighton where the Court said, well, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Well, Mr. Waxman, though, you're not... qualified immunity is a civil concept, really. Certainly you might want a more demanding standard in the area of the criminal law, it seems to me. Well, for sure you would, and the way the standard is made more demanding, Mr. Chief Justice, is by the requirement of a showing that the defendant acted with a bad purpose, with an intent to violate the law. Yes, but as Justice Kennedy says there's a certain fiction about all of that. Well, I'm not sure that I really understand what the fiction is. The... it is true that in Screws the... under Screws there is an obligation to identify in the indictment the specific right violated and the manner in which it was violated. The Government in Screws chose to allege that the right violated was the deprivation of a right to have a trial and a conviction before punishment. It may be, we don't know why, that that's because Screws was indicted and decided before Rochin and Ingraham and Youngburg and Vitek and Cruzan. Well, the fiction is is that they probably weren't thinking in constitutional terms, and if you use the term wilfully, then you say well, you intend the consequences of your act, but then you're right back where you started from. That is exactly right, and what this Court said in Screws, and I quote, it is not necessary that you... to show or prove that the defendant was thinking in constitutional terms at the time of the incident. You may find that the defendant acted with reckless and specific intent even if you find that he had no real familiarity with the Constitution-- But that seems to take out the one specific element that you put in at the beginning of the premise. --No. What the Court said was, if I can just continue, that you had to show... it's not material whether they were thinking in constitutional terms, but you have to show that their aim was not to enforce the law but to "deprive the citizen of a right, and that right was protected by the Constitution. " So the right, you could... I could know it was a right, because I know that the criminal law makes criminal that which I am doing, thereby giving a right to the victim. That is absolutely right, and that is the way this Court has construed that language. I took that to mean that they had to intend to make sure this guy never got to trial, whether or not they knew there was a constitutional right for him to get to trial. That was in the-- But they had to intend to prevent him from getting to trial. --No-- That's not how it reads? --What it reads is, for example, if you just take the way... just look at the way in which Screws was presaged in Classic and applied in Guest, which was decided afterwards, in both of those cases the constitutional right involved... in Classic it was the right that the Federal Constitution protected voting in a primary election, and in Guest it was the right to travel. In both of those cases, the actual constitutional right was announced by the Supreme Court in that case, and that's why in Screws, referring to Classic, the Supreme Court said it's not necessary that the defendant be thinking in constitutional terms. You must prove that he intended to deprive a citizen of a right. Of the right to travel, or of the right to be tried, but certainly not just to beat up the citizen. Well, it would have to be more than beat up the citizen. You would have to prove either that he acted... by not understanding the Constitution he acted in reckless disregard of a right which has been made so specific that the unlawfulness under that right "would be apparent"-- Thank you, Mr. Waxman. The case is submitted. Thank you.