6th Circuit to Burleys: Tough Nuggies

Nine years ago, Geraldine and her daughter, Caroline, Burley were the victims of a forced entry into their home by masked men. They later came to learn that the men were identified as Team 11. Radley Balko was on it years ago, and is still on it now.

Geraldine, now 70, pleaded with the man to let her move to the floor slowly, explaining to him that she’d had both of her knees replaced. Instead, another officer approached, grabbed her by the face, demanded that she “get the [f–––] on the floor,” then threw her into a table. She tumbled to the ground. At that point, she said later in a deposition, everything turned to “a fire, white and ringing in my ear.” Another officer came up from the basement with her grandson, stepping on her knees in the process. She cried out again in pain.

Were these dangerous felons in need of a “dynamic entry,” the euphemism preferred by police because it sounds so much better than any more accurate phrase, by a SWAT team to rid society of their violent crimes?  Not quite.

According to the Burleys’ accounts, the officers who raided their home were clad in black. Some wore balaclava masks or face shields that hid all but their eyes. Others pulled their hats down low to shield their identities. They had also obscured their names and badge numbers. Once the Burleys’ house had been thoroughly searched, both women asked the officers for their names. After holding an impromptu meeting, the officers told the Burleys that they wouldn’t divulge any information that could identify them individually. Instead, they told the women that they had just been raided by “Team 11.”

They found no drugs, guns or other contraband, which is significant in that the raid produced no prosecution. Had there been a prosecution, the identities of the masked men would most assuredly be known. There would be reports, testimony, and prosecutors who could identify to the second who did what. But nothing was found at the Burleys’ home. The only information they had was “Team 11,” which, shockingly, turned out to be useless.

“Team 11″ didn’t actually exist. It was part of a Drug Enforcement Administration squad called “Team 6.” But for the Eight Mile operation, the team was partially split up and reorganized with members of state and local police agencies, then renamed just for that particular operation.

The Burleys sued for this raid on their home, the physical harm they endured, which might seem like a no-brainer. Except whom? The Burleys received a report naming DEA agents involved in the raid, except the agents all shrugged and said, “not me, sorry.”

In what came as a complete surprise to the Burleys’ attorneys, every agent named in the report denied participating in the raid. Instead, they claimed that “Team 11″ had actually been split into two on that particular day. One team raided the Burleys, while the other raided a home nearby. The agents claimed that the DEA report must have included the names of the wrong half of “Team 11″ by mistake. They were all in the other house.

And so, the Burleys’ attorney did the only reasonable thing he could do:

They deposed the other half of the team. You probably know where this is going. All of those agents also claimed to have been in the other house. No one denies that the Burleys were raided. No one denies that one half of “Team 11″ conducted that raid. But both halves of “Team 11″ insist it was the other half that was in in the Burleys’ home.

Had this been any private group of defendants, this wouldn’t have been a problem. Res ipsa loquitur, respondeat superior, all those cool Latin legal phrases. But this was the DEA, the government, and they’re special.

To file a civil rights lawsuit against law enforcement officers, you need to know the names of the actual officers. The courts won’t allow you to file a civil rights claim against a police or government agency in general. By the time the DEA agents sprang their surprise on the Burleys, the statute of limitations on their lawsuit had nearly run out.

To avoid the statute running, they filed suit anyway. After various unpleasant twists and turns, the Burleys argued for the application of a ruling from the 9th Circuit “shifting the burden” to the defendant to produce the identities of its agents.

This minimal burden shifting forces the police department, which is in the better position to gather information about the arrest, to come forward with some evidence of probable cause. . .. By shifting the burden of production to the defendants, we prevent this exact scenario where police officers can hide behind a shield of anonymity and force plaintiffs to produce evidence that they cannot possibly acquire.

Rational. Fair. Appropriate. But this was 9th Circuit precedent, and this wasn’t in the 9th, so U.S. District Court Judge Bernard Friedman said “nah.” The Sixth Circuit affirmed.

Under plaintiffs’ proposal, a law officer who raises an “I wasn’t there defense” can only avoid constitutional liability by mustering evidence of who was there instead, and by implication, who was responsible for the alleged excessive force. In other words, once a plaintiff has put forth some evidence of an officer being present at a raid in which a constitutional violation has allegedly occurred, that officer is presumed to be liable if he claims he was not there, unless he proves who was and who did it.

If you squint hard enough, this kinda looks logical. Except for the fact that the agents are merely the putative parties in interest, as the real culprit is the DEA, who will defend and indemnify the agents should a judgment be awarded against them, This rationale bootstraps the fiction that the agents are personally liable to deflect the obvious reality that the DEA knows, or presumably should have a clue, which of its agents raided the Burleys’ home.

So, at least some of the agents perjured themselves. All of them went into the home of two innocent women with masks, no identification, needlessly harmed them and concealed their identities. And the Circuit, to protect the government from the undue burden of telling the truth, ignores the Supreme Court’s admonition in Branzburg v. Hayes that “the law is entitled to every man’s evidence.” But then, DEA agents aren’t men, as their treatment of the Burleys made apparent.

40 thoughts on “6th Circuit to Burleys: Tough Nuggies

  1. Dave

    This is just sick. Were it not the government… (I had a case where the lawyers played “hide the insurance company’s name” until the SOL ran out – and for that, the court slammed the lawyers and ignored the SOL, allowing the suit to go forward under equitable estoppel. Apparently the DEA does not need to worry about that.)

      1. Ray Lee

        Charles Richmond tried it and did well at the Federal Circuit. The Supremes were not amused. OPM v. Richmond, 496 U.S. 414 (1990).

  2. Henry Berry

    The plaintiffs couldn’t have sued some supervisor who presumably would know which of his men went where, or someone who ordered or allowed the raid.

    1. MonitorsMost

      As Scott mentioned, there is no respondeat superior liability under 1983.

      It would probably be a long shot, but adding a claim under 42 U.S.C. 1985(3) for conspiracy to deprive a citizen of constitutional rights might have been an option. A supervisor and the other members of Team 11 could plausibly be considered to have taken an act in furtherance of the excessive force.

        1. MonitorsMost

          You would need some sort of favorable evidence regarding the planning of the raid. But unfortunately the post-deprivation cover up by itself is not enough. Mazloum v District Court of Columbia, 442 F.Supp.2d 1 (2006) addresses the need for a pre-deprivation agreement/act for liability under 42 USC 1985(3). I don’t know about Rule 11, but it would have needed something beyond just the cover up itself to get past summary dismissal.

          1. SHG Post author

            This is what troubles me with comments. You reply to Henry (who is not a lawyer and who, in a subsequent comment, makes clear that he just feels as if there ought to be some way to get past what happened here) that there is a way the Burleys could have sued a supervisor, by alleging a conspiracy in advance to use excessive force. Great idea? No, ridiculous idea, because there is no evidence whatsoever in the fact pattern to support such a claim.

            I raise Rule 11 (which would impose sanctions on the Burleys had they tried what you suggested because it was frivolous), and you respond,

            You would need some sort of favorable evidence regarding the planning of the raid.

            This is what I refer to as the “Space Aliens” argument, because the answer is no, it couldn’t be done on the extant facts. So, invent a fact that doesn’t exist and, to make matters worse, is completely implausible, to make your reply to Henry in your first comment not completely wrong.

            Why do this? What is a non-lawyer to make of this? What if I left your first comment alone, and it stood there, totally wrong, and readers who didn’t realize you were totally wrong thought you knew what you were talking about? How does this help anyone?

            1. Henry Berry

              Yes, I am not a lawyer. But I have cases filed with requests for a fee waiver based on 42 U S Code § 1983 and § 1985 at Connecticut District Court against a Connecticut municipality and members of its police department and a private library open to the public. Again, this doesn’t make me a lawyer. But I’ve studied the Federal statutes. Scott, you say, rightly, there is no extent facts. It does look to me though that there was undeniably concerted action by a group of individuals to be abusive and then cover up the abuse. I don’t think a conspiracy always has to be fully conscious or articulated, but can be said to be evident in concerted behavior whether pre-planned or not. Another remark I’ll make not as a lawyer though, is that the plaintiffs might have sued John Does to keep the statute of limitations open, at least for a longer than ordinarily allowable period.

  3. kenm

    I’m afraid I can only sputter incoherently.

    Must be nice to be able to get away with things like that. Almost enough to make me a libertarian.

  4. Henry Berry

    [Ed. Note: I’ve posted this comment as an example only. Do not try this at home.]

    I’ve been advised not to pursue a Federal case. However, in previous cases, I’ve gotten default judgments against Connecticut state’s attorneys regarding an illegal wiretap and a defendant refusing to divulge insurance information. Also, in a case of a concocted harassment charge with a judge and two lawyers tampering with a transcript with the aide of the head of the court reporters, as a pro se defendant, I got the case dismissed with the ruling that it would be expunged from the court records. However, I refuse to allow it to be expunged because I want others to know about the treacheries of so-called law-enforcement, as the Burley case once again demonstrates. In my Federal cases, I’ve alerted judges to witness intimidation of me. I wonder why if I was not handling my cases effectively, lawyers and so-called law enforcement defendants would have to, for example, collude with judges, tamper with evidence and witnesses, work so hard to try to incriminated me for something, and engage in witness intimidation. I’ll keep you all informed of the progress of my cases. I haven’t had one dismissed yet, but each has been sabotaged by actions, in most cases conspiratorial, of corporate lawyers, judges, court employees, and perjurious witnesses. I expose all of this in social media posts and other communications as things move along since as I’ve experienced, people in the legal field are unable to deal with my claims and my effective handling of the cases.

    1. SHG Post author

      If you want to keep people informed of your travails against the conspiracy, Henry, you will have to do so elsewhere. I sincerely hope you find peace.

    2. Bob

      SHG, I presume you will be posting the progress reports on Mr. Berry’s cases. I, for one, will be waiting with bated breath.

      1. Billy Bob

        Being a CONnecticut native and an unwitting victim of an “important” malicious prosecution case(s) in that state (New Haven, 2002), I am compelled to weigh-in. I know Henry Berry personally. We have corresponded for years. I am familiar with his issues, but not current. I am familiar with half a dozen other miscarriages of justice and misuse of legal process cases–and false convictions–in and by the State itself. None of these cases (including mine) are difficult to analyze by competent legal minds and/or right-minded officials. Any halfway intelligent person should be able to discern the issues if he “put his mind to them”. The problem is, nobody has any desire or motivation to do so. The so-called Innocence Project wants DNA cases only, end of story. Those are only the “tip of the iceberg”, so to speak.

        I was an bona fide active member of People against Injustice, New Haven, before leaving the state in 04,
        seeking political asylum in a neighboring jurisdiction. We got some modicum of press, but made v. little progess. The “prison-industrial complex” is well established and entrenched in the Constiutuition State, a state in denial. The General Assembly and the various governors basically ignored us, as did the Attorney General and all of the elected members.

        However, the powers-that-be (in the corrupt state) provide no functionable avenues for correction, unless you have a ton of money and can hire the best and brightest the state has to offer. Certainly you can file complaints and reams of paperwork, which invariably end up in the circular file. “Thank you for your,… but,…” Contrary to popular belief, there is no “pro bono” assistance in criminal cases. The is absolutely no help from any of the so-called non-profits, the ACLU being the worst of the worst. For example, Seeley-Santos law firm in Hartford managed to spring Michael Skakel a few years ago in a 1975 murder in Greenwich, CT (my hometown), beecause of the “ineffective assistance of counsel” of one Mickey Sherman, the disgraced Stamford lawyer at trial. It was utterly ridiculous.

        How did that happen? Well, dumdum, the Kennedy’s paid a v. high price for the best legal counsel they could find in the state! What about all the others in prison who could not afford that luxury, but could use it–desperately? (Incidentally, we have studied the case intensively, and believe Michael is factually innocent of the charges. The local police investigation was severely compromised and totally botched, and blockaded by Rushton Skakel himself, a wealthy and feared man in the community.)

        Berry’s comments on this topic may well be misplaced, but that is no reason to heap scorn upon him or imply that he is a Space Alien who just happened to drop in for an irrelevant, off-the-wall chat.

        1. SHG Post author

          Well. There ya go. Nobody is heaping scorn on Henry. All of us would very much like to see Henry find whatever justice he’s looking for. The problem, as you well know, is that this is a law blog, and we don’t spread information that’s wrong, inaccurate or dangerous, because people can get hurt by it. So as much as we wish Henry well, his legal advice has no place here. And Henry can disagree with me about the value or danger of his advice, but since I have the keys, I get to drive.

          1. Billy Bob

            You did not have to post his comments. So the onus is on you. You have dissed him before. With all due respect! Still luv ya though, and that judge in Kansas. He caught me off-guard. Between the two of you, we’re betwixt a rock and a hard place. The judge did make my day. Am still laughing my a$$ off. A valuable contributor, obviously. And a thoughtful, judicial man, hopefully. We will try not interfere with his judicial demeanor in the future,… and spell correctly.

            How do you know we intentionally misspell? Are you a mind-reader? We accidentally slipped on a bananna peal in front of the liberry. And then, everything became clear! Thanx for your considerosity and your perspicaciousness. (Not to mention persistence–in putting up with us moronic commenters.)

  5. Drew

    I apologize if I missed it in the article, but wouldn’t one avenue be to name all of the Team 11 individuals personally? It appears they know the names of the Team 11 members, just not which half raided the Burley home. Wouldn’t this be where the classic complaint line “upon information and belief, that John Doe….” is useful?

    Clearly this is a major disservice and from the employment side I can’t see how the half that perjured themselves are still employed. In my line or work we would move for removal as the officers or agents are can no longer perform their jobs because they are “brady” cops.

      1. Billy Bob

        Methinks she got you. Your answer implies as much. Why didn’t we think of that, after all the hand-wringing and chest-pounding above?
        Where there is a will, there is a way!

        1. SHG Post author

          I don’t know if it’s a he or a she, or one of the other flavors, but my answer does not imply as much. The whoosh is used to indicate the sound made when something flies over your head. You can’t hear it because of the tin foil hat. There is nothing in Drew’s comment that changes anything or would have worked.

          1. Billy Bob

            We thought whoosh was the Nike symbol, so excuse me! And if you say “tin foil hat”, one more time, we’re coming down to N.Y.,… and confront you. I mean, comfort you?

            1. KronWeld

              Yeah, no. It is swoosh, not whoosh, as all us Oregonians know.
              I’ll bypass educating you all on the correct pronunciation of Oregon.

              Like hell I will, it is Oar y gun.

            2. Billy Bob

              After a couple of beers, swoosh becomes whoosh. After a couple more, whoosh becomes moosh. When you Oarygunners visit New York, it’s Nu Yawk. When you visit New Jersey, it’s Joy-sea. As in, “how do I get to the Joysea shore?”
              (Nike may be headquartered in Portland, but it’s stock is traded in Nu Yawk, Wall Street, to be specific. Instead of buying their shoes, we buy their stock!)

            3. SHG Post author

              There is a solution to your problem, Bill. And even if you’re unprepared to fix it completely, you can always wait until Miller Time to start. You’re welcome.

  6. Jared Ratliff

    As I was reading this post, I did wonder if including all of the team members was an option. By starting with the DEA statements that team 11 conducted the raid, and these are the members of team 11 as evidenced by the DEA’s statements. Then when they all stated that they were not part of the raid, I would imagine that either the defendants or the DEA would refer to their report naming the individuals they said conducted the raid. Isn’t the burden of proof then shifted to those named in the report to prove that, contrary to the DEA’s statement, that they were not in that house?

    I saw in the comments that you and other attorneys did not think this would work. Since the idea was only a quick thought in my mind and those who commented know far more about this than me, I trust your judgement. So I’m not disagreeing that it wouldn’t work, but I am curious as to why it wouldn’t. The reason that I ask is because it seems like if the DEA stated it was certain individuals, then if those individuals disagree with that, then the burden would be on them to show the DEA’s statement false. If it didn’t shift to them, then it seems like the DEA’s own statement is not, by itself, worth anything as evidence. Couldn’t whoever wrote the report be subpoenaed to testify if the report is challenged? I guess that in general if a defendant just says “sorry I wasn’t there” then there is other evidence introduced by the plaintiffs

    1. SHG Post author

      Short answer is that it’s the plaintiffs’ burden to name each defendant and the conduct he allegedly committed sufficiently to state a cause of action. There is no free floating subpoena power aside from the suit. And the plaintiff could neither name who was present nor what they did because the plaintiff had no information to satisfy either prong. That’s the set up. After plaintiffs were informed by every putative member that they were there, the plaintiff was screwed.

      Had the plaintiff merely thrown around names based solely on purported “membership” in “Team 11,” none of whom the plaintiff could prove to have been present or committed any impropriety, together with loose, generic allegations of conduct not attributable to any particular defendant, defendants would move for summary dismissal and it would be granted, likely with sanctions.

      That’s the end of the case at best, and the beginning of their paying out monies to the maligned defendants at worst. The point of the decision (which I’m guessing you didn’t read), was that the circuit wouldn’t allow burden shifting, which was what plaintiffs sought to accomplish. That was the whole point of the post.

      Now my question for you: Why does someone completely unfamiliar with a practice area of law think it’s reasonable to expect someone else to spend the time to explained it to you to satisfy your idle curiosity?

  7. Ken Mackenzie

    Not a legal opinion, just a statement of the obvious perhaps, but if the DEA had a shred of integrity, the faintest concept of accountability to the public it is supposed to serve, it would give those names to the plaintiffs.

  8. Jerry Leichter

    If the DEA had a shred of integrity or the faintest concept of accountability to the public it is supposed to serve, it would fire every agent involved, Each of them was either involved in the raid, or lied about it – which in an ideal world should be firing offenses.

    We now return you to the real world.

    — Jerry

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