The Journal & Courier has an article entitled Woman’s lawsuit claims Frankfort police botched rape case. According to the article, the woman alleges that she was raped by three men while at a friend’s house. The claim against the Frankfort police alleges that, after she reported the crime, they didn’t send the rape kit to the state lab for five weeks because the detectives were friends with the suspects. She is suing the police department and the alleged rapists.
The claim against the rapists would be fairly straight forward. If they did what she said, she should get a judgment for her damages. With a disclaimer that I haven’t seen the actual complaint, but only the news stories, the claim against the city and the city police department is likely to be problematic. I am skeptical about whether a victim has a personal right of action based on prosecution or failing to prosecute a crime and handling of the state’s evidence against potential criminal defendants. Under state law, units of government are immune from claims that they improperly enforced a law or failed to enforce a law. I imagine the federal claim is based on the U.S. Constitution, and so the state law immunities would not apply directly. But, to make, for example, a due process claim; she would have to establish that she was entitled to some sort of process — and if rape is a state law crime and if the government is immune from claims that it improperly enforced that law, it’s not clear that the victim here had a due process interest in the first place that could form the basis of a Fifth or Fourteenth Amendment due process claim.
But, who knows; maybe her lawyer(s) are more clever than I am and have a better idea of what Constitutional rights are implicated in screwing up a police investigation.
Far be it to me to try and answer this query, however, it might be – what I’d like to call – a reverse 1983 action. Let me explain:
In a common 1983 action under the 14th Amendment, you’re normally challenging what HAS been done to you that has infringed upon your rights. In, what I can only assume, would be a good analogy, many prisoner’s challenge the inaction of the State to do an investigation regarding the death or injuries to inmates that were in part or wholly caused by state actors.
I would assume that most of the briefs submitted for a motion to dismiss will fall along these lines and it is rather intriguing, if that’s correct, how it will turn out.
>>In a common 1983 action under the 14th Amendment, you’re normally challenging what HAS been done to you that has infringed upon your rights. In, what I can only assume, would be a good analogy, many prisoner’s challenge the inaction of the State to do an investigation regarding the death or injuries to inmates that were in part or wholly caused by state actors.<<
There are a lot of similar prisoner 1983 prisoner cases – "deliberate indifference" cases, for example, based on the failure to provide medical care, are very common. ("Deliberate indifference" to a prisoner's medical needs is the standard under the 8th Amendment). There are also a lot of religious cases based on a failure to accommodate the religious needs of a prisoner (usually based on the prisoner's in-prison conversion to an uncommon religion, such as a native american religion requiring the use of a sweat lodge and the wearing of a medicine bag). Although these claims may be brought under RFRA (or similar federal law) rather than as a 1983 action.
I would imagine a 1983 action in this instance would be based on deprivation of due process based on the relationship between police and the alleged rapist. I.e., even if you don't have the right to a police investigation in a particular case, it may still violate some right if the police don't carry out the investigation for an improper purpose – for an easier case, imagine that the police were bribed not to investigate.
Having said that, though, I'm still not sure what constitutional right would be implemented: I'm having trouble seeing a due process violation here. And, in general, the US constitution is basically set up to protect the rights of the accused, not to somehow balance interests.
After some cursory web searches, SCOTUS has ruled on at least 3 occasions that a failure to investigate does not constitute a violation of the 14th’s Due Process clause. The votes were 7-2, 6-3, 7-2, so it isn’t really a closely contested issue. The only evidence I found of something remotely like this are a few cases, not yet decided, the DoJ is bringing against Pittsburgh, PA and Maricopa County, AZ where police failure to investigate was systemic involving a protected class. In this regard, if she could prove that the department regularly failed to investigate claims against women she may prevail, but it appears to be a monumentally high standard to prove.
The only other angle I could think of was:
1. Assume the officer did hinder the investigation, thereby committing some crime or abetting the offender
2. The Violence Against Women Act has language indicating that all participants in the crime are civilly liable.
It may be hard to prove that slow-walking an investigation is part of the original criminal act, so it would be moot.
A layman’s view at best, but the topic interested me for some reason.
Sounds a little like a substantive due process claim. Those have never been held in very high esteem by the U.S. Supreme Court, and have been in decline for quite a while, I think.
The deliberate indifference prisoner claims aren’t that instructive because they hinge on the State failing to act in a situation where the prisoner has been deprived of the right to act for himself.
Generally speaking, a Constitutional claim is going to require that the plaintiff show that she’s been deprived of something by the State that the State had a duty to provide.
Seems like she’d have a better shot at a tort claim against the individual investigating officers, claiming that they acted outside the scope of employment and, therefore, do not benefit from the state, law enforcement immunity provision. Obtaining a rape kit with no intention to use it for law enforcement purposes could be, for example, a battery.
However, if financial recovery is a goal in this litigation, that might not work because the officers are unlikely to have the wherewithal to pay a significant judgment.
Two words: willful & wanton.
This post is interesting in light of the Devil and the Law post, in which the protagonist says I don’t know what’s right, I only know what’s legal. The lawyers who’ve written appear to agree that, legally, this woman has no case. It would appear to mean, then, that the only “right” thing is to file this under the heading of “too bad for you”
Doug –
You should have subtitled this posting as: Constitutional Law Nerds only.
But I love it.
Always good to read knowledgeable people having an intelligent discussion. It’s a positive challenge, and we all grow. A great site.
Oh, but we’re all Constitutional Law nerds now. The Indiana General Assembly has endorsed shooting an officer if he’s acting unconstitutionally.
I hear a rumbling sound. Is it the sound of attorneys from other states, rushing to get licensed in Indiana because they smell an opportunity? And the critics say that the legislature didn’t pass any jobs legislation!
According to the ABA, Indiana is currently 25th in the nation for the amount of attorneys still active. ABA states that there are currently approximately 15,600 active attorneys in the state. It is DWARFED by Illinois (64k), Ohio (38k), and Michigan (34k).
So, if you’re in the midwest, just graduated from law school, and want to put yourself in the best situation to find a gig – Indiana’s not a bad bet.
David – here is some additional data showing that Indiana is 44th per capita. I thought the interesting number was almost half of Ohio’s 38,000 are idle.
http://lawschooltuitionbubble.wordpress.com/original-research-updated/lawyers-per-capita-by-state/
Crap I screwed up the thread. Doug – you will receive my internet commenter license in the mail forthwith.
Ohio = 9 law schools where most stay in Ohio. Yes, you read that right. NINE LAW SCHOOLS.
Indiana = four law schools (two of which send most of their graduates out of state – I’ll let you guess which ones).
Full disclosure – I went to an Ohio law school, but always knew I’d be coming back home to Indiana afterwards.
Well David, Ohio does have nearly twice Indiana’s population, so having around twice as many law schools shouldn’t be too much of a stretch, should it?
Problem is that there isn’t a market for a lot of those new folks in Ohio. See the note above about how many of those 38,000 are “idle” (i.e. can’t find a job).
Well, I agree with you completely on that.
The cops should be sued for, and judgement awarded, an amount greater than the United States Gross Domestic Product. The case should last all of five minutes, quickly concluding with an award for trillions.
Shameful judges shield police with nonsense judge-enacted legislation saying that cops have no duty to defend. My landscaper has a duty to mow my lawn; my mechanic has a duty to fix my car, yet this particular service provider is exempt from the obligations that bind all others in the service industry.
Shame on the cops, and moreso, shame on the judges. If they have no duty to defend, then we have no responsibility to pay them or give any heed to their farcical becostumed illusions of power.
“But, who knows; maybe her lawyer(s) are more clever than I am and have a better idea of what Constitutional rights are implicated in screwing up a police investigation.”
Truly, are you serious? It’s moments such as these when you accidentally reveal your view of government that absolutely terrify lovers of freedom.
You have not shared your brilliance with us in awhile.
How was your stay in the institution? It sure did not produce positive results.
All right, let’s do it this way. Quote me the Constitutional provision that requires the government to compensate a victim for failing to effectively investigate and prosecute a criminal. No penumbras.
Your response is either craven or an intellectual exercise in self-amusement that is best never attempted and always withheld from public view.
Curious, Carlito: which frailties, minority statuses, illnesses, conditions and imperfections does the Left consider it acceptable to use as the basis of insult?
Any I choose. You see, “Freedom,” I make it my business to ridicule you and your positions at every turn. Your hyperbole is entertaining. Your pretentious, prosiac and turgid use of the English Language is a scream. (Actually, calling me obstreperous repeatedly is damned hilarious.) Your ad hominiem attacks while whining about the deserved ones made against you are an easy target.
I do it because I like to rip you apart and suck you into vituperous and illogical responses against me. And others.
Until Dog the moderator tells me to let up on you, I am your Roger Rabbit. I do it because it is funny and makes me laugh.
BURRRRRRRRN.
Call the Firehouse.
As you’re a blithering idiot, all you do is smack yourself in the face when you dare to speak with your betters in any conversation in which you don’t assume your proper role of a supplicant seeking enlightenment.
You are a fool. You are trash. In a disproof of Xeno, I yet manage to reduce you by yards with every word. You are comprehensively inferior to me. You are less. You are unworthy of respect. You are not entitled to status as human. You are a gnat. You are a disease. You lessen the world.
Well, I guess that’s the end of that rational discussion.
I mean aren’t we all supplicants seeking enlightenment? Am I right, or am I right?
I guess we all fit into that first paragraph, to one degree or another.
Reminds me of the story about a London newspaper that asked people to help answer the question “what’s wrong with the world”.. G.K. Chesterton, the famous writer submitted his opinion: “Dear Sirs, I am. Sincerely Yours, G.K. Chesterton”.
I wish I could be in the august Company of Chesterton, but alas, I am just a general irritant and merely lessen the world but am not responsible for all of its pathologies. I wish I were.
This reminds me of a joke that perhaps “freedom” would appreciate. There is an amoeba couple living in lower-class squalor. Portable TV, trash on the floor, clothes hanger as an antenna.
The wife amoeba is looking at the husband contemptuosly. The husband amoeba replies, with a beer in his hand and his feet on the ottomon, “I want you to know that I AM the lowest form of life, baby.”
Ah, the great thoughts on this site!
Carlito, if I need a defense attorney, you are my guy.