Sexual intercourse with a court transport officer stated an excessive force claim. Plaintiff raised a factual dispute that the sex wasn’t consensual because of his control over her and a threat he made after he found out she talked about it to another inmate. Hale v. Boyle County, 2021 U.S. App. LEXIS 34249 (6th Cir. Nov. 18, 2021):
As in Rafferty, we conclude that a genuine issue of material fact remains as to whether Hale consented to the encounters with Pennington. Hale has attested that when Pennington discovered that she had told others about their sexual encounters and confronted her, he scared her. That is akin to the subjective “intimidation” that the incarcerated person felt in Rafferty and is evidence that the encounters were not consensual.
Most significantly, Hale asserted in an affidavit that Pennington offered to speak to the prosecutors in Hale’s case after Hale had performed oral sex on him. This proffer was a double-edged sword. By proposing to help Hale, Pennington also implied that he could harm her case. Hale was facing a decade in prison; she had a lot to lose. No doubt, Pennington’s telling Hale that he could assist her case was the most egregious example of coercion here.
Hale also asserted that Pennington exchanged privileges and favors in exchange for sex. Pennington provided Hale with sunshine, detours, cigarettes, sodas, and his mobile number. Each of these gifts, favors, and privileges is indicative of coercion. See Wood, 692 F.3d at 1047 (“Even if the prisoner concedes that the sexual relationship is ‘voluntary,’ because sex is often traded for favors (more phone privileges or increased contact with children) or ‘luxuries’ (shampoo, gum, cigarettes), it is difficult to characterize sexual relationships in prison as truly the product of free choice.”); see also Chao v. Ballista, 772 F. Supp. 2d 337, 350-51 (D. Mass. 2011) (citing perks such as cigarettes, candy, and food as evidence in rejecting the consent defense as a matter of law).
Defendants maintain that Hale voluntarily had sexual contact and intercourse with Pennington. See Pennington Br. at 1; Boyle Cnty. Br. at 2. Defendants argue in their briefs and asserted at oral argument that Pennington never intimidated or threatened Hale; that Pennington never forced her to have sex; and Hale enjoyed having sex with Pennington. See Pennington Br. at 14, 23; Boyle Cnty. Br. at 20-21; Oral Arg. at 14:20-28. In one sense, Defendants are correct. Per Hale’s testimony, all sexual contact was the product of Hale’s agreeing to have sex with Pennington. But as the Ninth Circuit recognized, coercion can make a purportedly “voluntary” act involuntary. See Wood, 692 F.3d at 1047. Defendants minimize the coercive aspects of Pennington’s gifts, privileges, and offer to intervene in Hale’s criminal case. Despite Hale’s testimony, the gifts, privileges, and statements by and from Pennington are sufficient evidence of coercion to create a genuine issue of material fact.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)