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Posner Chides Government for 'Ostrich Conduct,' Not Cite-Checking

By William Peacock, Esq. | Last updated on

The first rule of legal research is: always cite check.

If you don’t, Judge Richard Posner will compare you to a really ugly bird.

Tiberius Mays is a former inmate of the Illinois state prison at Statesville. While a resident at the facility, he enjoyed many first-class amenities, including protracted group strip searches. When he complained, and filed suit, the inmates were allegedly subjected to an even more protracted strip search, with dirty gloves, in front of other prisoners, while the guards mocked the inmates’ bodies and genitalia.

Predictably, he sued under 42 U.S.C. § 1983, arguing, amongst other things, cruel and unusual punishment.

The trial judge granted judgment as a matter of law to the defendants. The Seventh Circuit, in 2009, reversed and remanded, leading to further litigation, a trial and we can only hope, a few less strip searches.

The defendants won again - this time by jury. But the tale of the probing punishments doesn't end there.

Mays alleges that the jury instructions and special interrogatories submitted to the jury were incorrect. Because his counsel failed to object at the time, the Seventh Circuit can only reverse upon "'plain error', meaning an error at once indisputable and likely to have influenced the outcome."

Indisputable and influential, it was.

The judge's special interrogatory to the jury asked them to state whether each defendant, for each strip-searching incident, had "a valid penologic reason for the group search conducted."

The inquiry, however, is not whether a penologic reason may have existed, but whether that was the actual reason for the search. Also, in the Seventh Circuit's previous opinion of this case, "unaccountably overlooked" by the judge, regardless of the existence of a valid penological reason, "the manner in which the searches were conducted must itself pass constitutional muster."

That means no dirty gloves, freezing basements, and preferably, no exhibitionist displays.

The judge also erroneously instructed the jurors that "in order to prevail on his claim of retaliation, the plaintiff must prove that the grievances filed by the plaintiff were the sole cause of the particular strip search."

The government tried to avoid the comedy of errors by arguing that the plaintiff would have had to show that the retaliatory search "would not have been conducted had it not been for his grieving the previous searches." However, Judge Posner points out their clear error:

We have trouble understanding how the state's lawyers could have overlooked Greene - a decision squarely on point that has been cited in 54 judicial opinions, a decision that a check of citations to Fairley (which as we said the state relied on heavily in this case) in Westlaw's "citing references" program would have revealed, and a decision that the plaintiff cited multiple times in his opening brief--and that the state still ignored. This was ostrich conduct.

Ostrich conduct. Is Posner's ongoing obsession with ostriches a legal meme-in-the-making? It's certainly enough, along with the judge's mistakes, to warrant another reversal and trial.

Ostrich ConductImage courtesy of Wikimedia Commons, GNU Free Documentation License

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