Wednesday, March 12, 2008

Yet we know what we must do. It is to achieve true justice among our fellow citizens. The question is not what programs we should seek to enact.

Wikisource has original text related to this article:
United States Bill of Rights currently housed in the National Archives.
United States Bill of Rights currently housed in the National Archives.

The Bill of Rights comprises the first ten amendments to the Constitution. Those amendments were adopted between 1789 and 1791, and all relate to limiting the power of the federal government. They were added in response to criticisms of the Constitution by the state ratification conventions and by prominent individuals such as Thomas Jefferson (who was not a delegate to the Constitutional Convention). These critics argued that without further restraints, the strong central government would become tyrannical. The amendments were proposed by Congress as part of a block of twelve in September 1789. By December 1791 a sufficient number of states had ratified ten of the twelve proposals, and the Bill of Rights became part of the Constitution.

It is commonly understood that the Bill of Rights was not originally intended to apply to the states, though except where amendments refer specifically to the Federal Government or a branch thereof (as in the first amendment, under which some states in the early years of the nation officially established a religion), there is no such delineation in the text itself. Nevertheless, a general interpretation of inapplicability to the states remained until 1868, when the Fourteenth Amendment was passed, which stated, in part, that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Supreme Court has interpreted this clause to extend most, but not all, parts of the Bill of Rights to the states. Nevertheless, the balance of state and federal power has remained a battle in the Supreme Court.

The amendments that became the Bill of Rights were actually the last ten of the twelve amendments proposed in 1789. The second of the twelve proposed amendments, regarding the compensation of members of Congress, remained unratified until 1992, when the legislatures of enough states finally approved it and, as a result, it became the Twenty-seventh Amendment despite more than two centuries of pendency. The first of the twelve—still technically pending before the state legislatures for ratification—pertains to the apportionment of the United States House of Representatives after each decennial census. The most recent state whose lawmakers are known to have ratified this proposal is Kentucky in 1792, during that commonwealth's first month of statehood.

  • Second Amendment: declares "a well regulated militia" as "necessary to the security of a free State", and as explanation for prohibiting infringement of "the right of the People to keep and bear arms."
  • Third Amendment: prohibits the government from using private homes as quarters for soldiers without the consent of the owners. The only existing case law regarding this amendment is a lower court decision in the case of Engblom v. Carey. [19]
  • Sixth Amendment: guarantees a speedy public trial for criminal offenses. It requires trial by a jury, guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. It also guarantees the accused a right to know the charges against him. The Sixth Amendment has several court cases associated with it, including Powell v. Alabama, United States v. Wong Kim Ark, Gideon v. Wainwright, and Crawford v. Washington. In 1966, the Supreme Court ruled that the fifth amendment prohibition on forced self-incrimination and the sixth amendment clause on right to counsel were to be made known to all persons placed under arrest, and these clauses have become known as the Miranda rights.
  • Seventh Amendment: assures trial by jury in civil cases.
  • Eighth Amendment: forbids excessive bail or fines, and cruel and unusual punishment.
  • Ninth Amendment: declares that the listing of individual rights in the Constitution and Bill of Rights is not meant to be comprehensive; and that the other rights not specifically mentioned are retained elsewhere by the people.
  • Tenth Amendment: provides that powers that the Constitution does not delegate to the United States and does not prohibit the states from exercising, are "reserved to the States respectively, or to the people."

Saturday, February 23, 2008

These claims, therefore, were not time-barred, and might be able to be re-filed after the prosecution of the plaintiff concluded. Price v. City of S..

AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of Law Enforcement Agencies & Personnel

Back to list of subjects Back to Legal Publications Menu

Defenses: Statute of Limitations

All claims in an arrestee's lawsuit asserting that his rights had been violated by officers involved in his arrest, prosecution, and conviction between May 2003 and February 2004 were barred by an applicable two-year statute of limitations. Rodriguez v. Pennsylvania, No. 07-4295, 2007 U.S. App. Lexis 29252 (3rd Cir.).
A lawsuit filed approximately five years after events giving rise to an arrestee's federal civil rights claims was barred by an applicable Georgia two-year statute of limitations. Additionally, the trial judge did not abuse his discretion, under the circumstances, in finding that the lawsuit was frivolous because it was time-barred. Simon v. City of Atlanta, Ga., No. 06-16269, 2007 U.S. App. Lexis 28967 (11th Cir.).
In a federal civil rights lawsuit by a woman raising various claims concerning the defendants' alleged actions impacting on her custody of a minor, allegations of abuse, and her arrest and imprisonment, all of her claims involved events occurring between 2000 and 2003. Since this time period was more than two years before the filing of her lawsuit, the trial court properly found that the lawsuit should be dismissed on the basis of a Texas statute of limitations. Morgan v. State of Texas, No. 06-20839, 2007 U.S. App. Lexis 24772 (5th Cir.).
Two men, now in their 40's could not pursue their claims against the City of Los Angeles and the Boy Scouts of America concerning their alleged sexual abuse by a police officer in the 1970's when they participated in a police department Explorer Scout program. Under a California statute, such claims must be brought before the victim's 26th birthday, unless the defendant knew or had reason to know of the unlawful sexual conduct by an employee or agent, and failed to take "reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person." The California Supreme Court upheld the dismissal of the lawsuit on statute of limitations grounds, finding that the plaintiffs failed to make specific enough allegations concerning the defendants' knowledge of the officer's alleged past sexual misconduct with minors to bring their case within the cited exception to the statute. Doe v. City of Los Angeles, No. S142546, 2007 Cal. Lexis 12186.
Civil rights claims arising from the plaintiff's 1980's arrest, prosecution, trial, and sentencing was time-barred under a Pennsylvania state two-year statute of limitations because the events at issue occurred over 20 years ago. Additionally, a false imprisonment claim was barred because the plaintiff was released from prison in March of 2003 and did not file a lawsuit until more than two years later. Hewlett v. Abraham, No. 07-1931, 2007 U.S. App. Lexis 18788 (3rd Cir.).
A businessman arrested for allegedly selling furniture after his license was suspended could not pursue malicious prosecution claims when he filed his lawsuit 2-1/2 years after the prosecution against him was abandoned, nor could he pursue a false arrest claim filed 3 years after his arrest. Both claims were barred by the statute of limitations. An offer by the defendants to drop the charges against him if he agreed not to sue them did not alter the result when he found out that the prosecution had already been dismissed the day after the offer was made, and, as a result, did not sign the release of claims the defendants provided. Shane v. Tracy, No. 88479, 2007 Ohio App. Lexis 3176 (8th Dist., Cuyahoga County).
Arrestee failed to prevent any viable legal theory or point to any specific facts which could alter the trial court's decision that his lawsuit was filed after the applicable two-year statute of limitations expired, and was therefore time-barred. Watson v. James, No. 06-6350, 2007 U.S. App. Lexis 18012 (10th Cir.).
An arrestee's claims for alleged unlawful detention accrued at the latest in 1996, so that claims he asserted under the Federal Tort Claims Act (FTCA) in 2004, were barred by a two-year statute of limitations in 28 U.S.C.S. § 2401(b). Feurtado v. Dunivant, No. 06-56496, 2007 U.S. App. Lexis 14238 (9th Cir.).
An arrestee's false arrest claim did not accrue under 42 U.S.C. Sec. 1983 until the prosecution terminated in his favor, so that his lawsuit, filed one year after that was not barred by a statute of limitations. Mapes v. Bishop, No. 06-30559, 2007 U.S. App. Lexis 14123 (5th Cir.).
When an arrestee was arraigned on June 7, 2002, and his federal civil rights lawsuit for false imprisonment was filed in February of 2006, his claim was time-barred under an Ohio state two-year statute of limitations for personal injuries. The statute of limitations for a false imprisonment claim accrued when the false imprisonment ended, in other words, at the time that the plaintiff began to be held based on legal process, a judicial determination of probable cause, reached at the arraignment. Meadows v. Whetsel, No. 06-6211, 2007 U.S. App. Lexis 12153 (10th Cir.).
Arrestee's claims for false arrest and malicious prosecution under the Federal Tort Claims Act and for federal postal employees' alleged violations of his federal civil rights accrued at the date that the alleged wrongful prosecution of him ended, so that they were barred by an applicable two-year statute of limitations. Braunstein v. U.S. Postal Service, No. 05-16390, 2007 U.S. App. Lexis 8831 (9th Cir.).
The plaintiffs' claims for unlawful search and seizure in violation of the Fourth Amendment accrued at the date of their arrest, so their failure to filed their civil rights lawsuit until three years later meant that their claims were time barred under a two-year statute of limitations. The rule in Heck v. Humphrey, No. 93-6188, 512 U.S. 477 (1994) that a federal civil rights claim does not accrue until a conviction is reversed or vacated did not apply because the plaintiffs had not been convicted of anything at the time of their arrest. Kucharski v. Leveille, No. 05-73669, 2007 U.S. Dist. Lexis 19918 (E.D. Mich.).
U.S. Supreme Court rules that the statute of limitations on a federal civil rights claim for false arrest which results in a criminal prosecution starts to run on the date the arrestee is detained. Wallace v. Kato, No. 05-1240, 127 S. Ct. 1091 (2007).[N/R]
The fact that the plaintiff had filed a prior lawsuit concerning the same incident did not toll (extend) the applicable statute of limitations, when the plaintiff never obtained service of process over the defendants in the prior action. Her second lawsuit, therefore, was barred by the statute of limitations, based on when it was filed. Geary v. City of Snellville, No. 06-12898, 2006 U.S. App. Lexis 27611 (11th Cir.). [N/R]
While plaintiff's claim that denial of access to physical evidence which was the basis for his murder conviction stated circumstances which might violate his constitutional rights, his claim was time-barred under a two-year statute of limitations which began to run on the date that a state court denied his request for access to the physical evidence for purposes of DNA testing. Savory v. Lyons, No. 06-1296 (7th Cir. November 29, 2006). [N/R]
Neither federal nor Illinois state law extended (tolled) the running of a two-year statute of limitations on a federal civil rights lawsuit for alleged wrongful arrest until the conclusion of criminal proceedings against the arrestee The arrestee's false arrest claim accrued at the time of the arrest. Foryoh v. Triton College, No. 06-1626, 2006 U.S. App. Lexis 24555 (7th Cir.). [N/R]
Federal civil rights lawsuit against police officer arising out of alleged harassment of plaintiffs through issuance of over 60 parking and traffic citations was barred by a state three-year statute of limitations. Olukayode v. Baltimore County, Md., No. L-04-2615, 2006 U.S. Dist. Lexis 73147 (D. Md.). [N/R]
Common law claims for defamation, assault, battery, false arrest, false imprisonment, and false light invasion of privacy were time-barred under a D.C. one-year statute of limitations. Rynn v. Jaffe, No. 05-2066, 2006 U.S. Dist. Lexis 76140 (D.D.C.). [N/R]
While claims for false arrest, illegal search and excessive force accrued, for purposes of an Illinois statute of limitations, on the date of the arrest, the arrestee's claim for malicious prosecution did not accrue until the charges against him were dropped. Foryoh v. Hannah-Porter, No. 05 C 2975, 428 F. Supp. 2d 816 (N.D. Ill. 2006). [N/R]
Arrestee's claim against officer arising out of his search and the officer's alleged action in coercing him into signing a release allowing the videotape of the incident to be shown on television on the Fox TV show "Cops" accrued at the time of his arrest, so his claims were barred under a Kansas statute of limitations when he sued the officer more than two years later. While his claims against the television producers and network for invasion of privacy accrued later, when the program aired, he could not pursue federal civil rights claims against them, because they did not act under color of state law. Mitchell v. Langley, No. 05-3393, 172 Fed. Appx. 900 (10th Cir. 2006). [N/R]
A New Jersey two-year statute of limitations on the plaintiff's false arrest and imprisonment claims began to run, at the latest, on the date when a grand jury declined to indict him on the underlying criminal complaint, or the date when he learned of this or reasonably should have, so that his lawsuit, filed four years later, was time barred. Akinola v. Doe, No. 05-4454, 165 Fed. Appx. 242 (3rd Cir. 2006). [N/R]
An arrestee's claims for intentional infliction of emotional distress against federal prosecutors and a postal inspector under the Federal Tort Claims Act, 28 U.S.C. Sec. 2401(b), arising out of his arrest, were subject to a two year statute of limitations in New York. Levine v. Gerson, No. 05-0748, 164 Fed. Appx. 64 (2d Cir. 2006). [N/R]
A former convict who received a pardon on the basis of innocence on a rape he was arrested and prosecuted for more than 50 years earlier could pursue a number of federal civil rights claims arising out of his arrest and prosecution. Under Heck v. Humphrey, 512 U.S. 477 (1994), federal civil rights claims which would necessarily show the invalidity of a conviction do not accrue until the conviction has been set aside, and the court ruled that the rule in Heck would be applied retroactively to determine whether the statute of limitations period should be tolled (extended) on such claims. Walden v. City of Chicago, No. 04C0047, 391 F. Supp. 2d 660 (N.D. Ill. 2005). [N/R] Oregon intermediate appeals court overturns $81,260 jury award against city in lawsuit arising from alleged sexual abuse, by a police officer, of a teenager involved in a police Explorer youth program. The court found that the lawsuit was time-barred under a two-year statute of limitations and that the plaintiff's claim accrued at the time the abuse allegedly occurred, not later when he testified before a grand jury proceeding concerning the incidents years later. Court rejects the plaintiff's theory that it was not until the grand jury proceeding that he had enough information to know that the city may have caused his injuries by ignoring reports of the officer's alleged abusive tendencies. T.R. v. Boy Scouts of America, No. 0206-5750, 133 P.3d 353 (Ore. App. 2006). [N/R]
In a lawsuit by man claiming a city "chilled" his First Amendment rights by gathering and filing information about his political activity as early as the late 1960s, and sharing this information with other agencies until March of 2000, his claims accrued, for purposes of a two-year Colorado statute of limitations on the date on which, based on his own admissions, he had knowledge that the files existed. His claims were therefore time-barred under the statute, when his own admissions showed that he had sufficient knowledge that the files existed by 1998, "at the latest," and he did not file his lawsuit until 2003. Vigil v City and County of Denver, #04-1414, 162 Fed. Appx. 809 (10th Cir. 2006). [N/R]
Excessive force, unreasonable search, and invasion of privacy claims were properly dismissed as time-barred under Texas two-year statute of limitations, but false arrest and malicious prosecution claims would not accrue until criminal prosecution against arrestee terminated in his favor. These claims, therefore, were not time-barred, and might be able to be re-filed after the prosecution of the plaintiff concluded. Price v. City of San Antonio, No. 04-51213, 2005 U.S. App. Lexis 26539 (5th Cir.). [2006 LR Feb]
Purported police harassment of witness who claimed to have witnessed two police officers murdering a woman was an insufficient basis for a civil RICO claim. The plaintiff's alleged loss of employment income because of false arrest and malicious prosecution, and his expenses for attorneys' fees to defend himself were not an injury to "business or property" as required for standing to bring a RICO lawsuit. Federal appeals court also upholds dismissal of plaintiff's First Amendment civil rights claim and state law claims as untimely. Evans v. City of Chicago, No. 03-3844, 2006 U.S. App. Lexis 264 (7th Cir.). [2006 LR Feb]
False arrest lawsuit, filed almost two years after the arrest, was time-barred under Puerto Rico's one-year statute of limitations, which began to run from the time of the arrest. Morales v. Fantauzzi, No. Civ. 04-2255, 389 F. Supp. 2nd 147 (D. Puerto Rico. 2005). [N/R]
District of Columbia one-year statute of limitations for false arrest was "tolled" (extended) during the time the arrestee was in jail, and did not start to run until his release from custody. Fernandors v. District of Columbia, No. CIV.A.02-2001, 382 F. Supp. 2d 63 (D.D.C. 2005). [N/R]
In a lawsuit by animal protection volunteers against employees of a government investigating commission who allegedly published defamatory material about them on a government website, the claim was time barred by a one-year New Jersey statute of limitations for defamation claims. The statute of limitations began to run on the date the material was first published on the website, and that time period was not extended by the fact that the website was subsequently updated or modified while continuing to contain the same allegedly defamatory material. Churchill v. State of New Jersey, 876 A.2d 311 (N.J. Super. A.D. 2005). [N/R]
While plaintiff's federal civil rights claims arising out of the search of his residence were barred by Oklahoma's two-year statute of limitations, his claims arising out of his subsequent arrest three months later, and the alleged use of excessive force against him were not time barred. Trial court erred in utilizing the date of the search as the applicable date from which all of the plaintiff's claims accrued. Price v. Philpot, No. 04-7121, 2005 U.S. App. Lexis 18050 (10th Cir.). [N/R]
Arrestee's claim for excessive use of force during his arrest, allegedly causing problems with his hearing, was time-barred under a three-year New York statute of limitations when he failed to bring his lawsuit until ten years after the incident. The time limit began to run from the date he was allegedly beaten. Hussain v. Commissioner, No. 04-CV-2443, 368 F. Supp. 2d 216 (E.D.N.Y. 2005). [N/R]
Federal trial court was mistaken in dismissing a federal civil rights lawsuit as time-barred by a Kentucky one-year statute of limitations, as the lawsuit was filed within one year from the date that the plaintiff had reason to know he had a claim. Kelly v. Burks, No. 04-5692 2005 U.S. App. Lexis 14634 (6th Cir.). [N/R]
Federal civil rights claim for detective's alleged unlawful seizure of computer from man's apartment accrued at the time the seizure occurred, or, at the latest, when the owner learned of the seizure, and his federal civil rights lawsuit was therefore time barred under an Indiana two year statute of limitations. Holly v. Anton, No. 03-1653, 97 Fed. Appx. 39 (7th Cir. 2004). [N/R]
Claims for excessive use of force during drug possession arrest accrued on the date of the arrest, even though the plaintiff claimed not to realize the permanent nature of his injuries from the officers' alleged choking and hitting until three months later. His lawsuit, therefore, was time barred under the Ohio statute of limitations. Hodge v. City of Elyria, No. 03-3296, 126 Fed. Appx. 222 (6th Cir. 2005). [N/R]
Lawsuit asserting claims under Kansas state statute concerning legitimate procedures for strip and body cavity searches was governed by three-year statute of limitations applicable to statutory claims, rather than one-year statute of limitations governing privacy claims or two-year statute of limitations applicable to federal civil rights claims in the state. The arrestee's lawsuit, therefore, was not time barred and was reinstated. McCormick v. City of Lawrence, No. 90,853, 104 P.3d 991 (Kan. 2005). [N/R]
While a two-year Illinois statute of limitations for personal injury cases applied to federal civil rights claims against a municipality and its police officer, a shorter one-year statute of limitations applied to state law claims against the same defendants joined with the federal civil rights lawsuit. Both federal and state law claims were time barred and were therefore properly dismissed. Williams v. Lampe, No. 04-1497, 399 F.3d 867 (7th Cir. 2003). [N/R]
In a lawsuit concerning the death of an Ohio resident allegedly caused by the distress the Ohio father suffered over the purported wrongful arrest of his son by California police officers, a California state six-month statute of limitations applied, rather than a two-year Ohio statute of limitations. The federal trial court, applying the California statute to the father's federal civil rights claim, therefore properly dismissed the lawsuit as time barred. Estate of Darulis v. Garate, No. 03-16580, 401 F.3d 1060 (9th Cir. 2005). [N/R]
Liquor store owners stated a viable possible claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b) based on alleged conduct of FBI agents who allegedly passed their names on to racketeers after they reported to police that they were victims of extortion by the racketeers, resulting in damage to their businesses. The racketeers were allegedly being protected by the FBI agents as confidential informants, and the agents acted within the scope of their employment under the FTCA in taking their alleged actions. The actions did not come within the "discretionary function" exemption to the FTCA, because the agents had "no room" for the exercise of discretion under extensive FBI regulations concerning how to handle confidential informants. The claims asserted, however, were time barred under the applicable statute of limitations, so the complaint was dismissed. Rakes v. United States, No. CIV.A.02-10480, 352 F. Supp. 2d 47 (D. Mass. 2005). [N/R]
Federal trial court properly dismissed both state law and federal claims asserted by a woman concerning injuries allegedly inflicted on her by a police officer, even though the defendants failed to raise their statute of limitations defense on the original state law claims in state court until after answering an amended complaint. Federal appeals court decision discusses relationship between statutes of limitations on state and federal claims in Illinois in a case removed to federal court from state court. Williams v. Lampe, No. 04-1497 2005 U.S. App. Lexis 3430 (7th Cir.). [2005 LR Apr]
The applicable three-year statute of limitations on an attorney's federal civil rights claim against court officers who allegedly physically assaulted him started to run on the date of the alleged assault. The fact that an allegedly "related" claim was pending in state court did not toll (extend) the three-year time period, so the complaint was properly dismissed as untimely. Keane v. Navarro, No. Civ.A.03-CV-10154, 345 F. Supp. 2d 9 (D. Mass. 2004). [N/R]
Motorist' claim against the State of New York for state and federal constitutional violations concerning two stops during which his car and person were searched were time barred when not filed within the two-year jurisdictional time limit of the New York Court of Claims. McKinney's Court of Claims Act, Sec. 10, sub. 3. The state was immune from these constitutional claims when not filed within two years, rather than the otherwise applicable New York statute of limitations of three years for federal constitutional claims or six years for state constitutional claims. Lyles v. State, 3 N.Y.3d 396, 820 N.E.2d 860 (N.Y. 2004). [N/R]
While a one-year statute of limitations applied to an arrestee's malicious prosecution claim under Illinois law, the statute started to run not at the time criminal charges against him were first dismissed, since they could have still been reinstated, but rather at the time when a statutory speedy trial period lapsed, and the prosecutor was barred from continuing to seek to prosecute him. Ferguson v. City of Chicago, No. 97218, 820 N.E.2d 455 (Ill. 2004). [N/R]
A motion to vacate on the basis of bad faith and misconduct a prior settlement and voluntary dismissal of the plaintiff's claim against the Missouri Highway Patrol for the alleged improper seizure and retention of cash found in his vehicle during an arrest for a drug offense had to be brought within a one-year statute of limitations for motions founded in fraud. The plaintiff's three-year delay in bringing the motion was not reasonable, so that the motion was properly denied. Middleton v. McDonald, No. 03-3179, 388 F.3d 614 (8th Cir. 2004). [N/R]
Statute of limitations was tolled (extended) during the time that court ordered mediation of the case was attempted. Plaintiff injured in a traffic accident with a county deputy sheriff could therefore pursue his personal injury claim even though the five-year statute of limitations had passed since the accident. Gonzalez v. County of Los Angeles, No. B168867, 19 Cal. Rptr. 3d 381 (Cal. App. 2nd Dist. 2004). [N/R]
Motorists' claims against individual officers that they were stopped and searched without probable cause were time-barred when they were not named as individual defendants until after the statute of limitations expired. While the city had allegedly refused to release the officers' names to the plaintiffs, the plaintiffs only filed their lawsuit one month before the statute expired, and failed to pursue discovery requests to obtain the officers' names until seven months later, so they were not entitled to tolling (extension) of the statute of limitations. Hines v. City of Chicago, #03-1595, 91 Fed. Appx. 501 (7th Cir. 2004). [N/R]
An arrestee's civil rights claim for coercive interrogation and torture by officers allegedly used to compel him to falsely confess to a murder did not accrue, for purposes of the statute of limitations, until his conviction was overturned. Accordingly, his claims were not time-barred. Patterson v. Burge, #03C4433, 328 F. Supp. 2d 878 (N.D. Ill. 2004). [N/R]
Lawsuit against U.S. soldiers allegedly involved in My Lai Massacre on March 16, 1968 during the Vietnam War by residents of Vietnamese village was barred by applicable statutes of limitations. Soldiers did not act under color of state law, so federal civil rights claims under 42 U.S.C. Sec. 1983 were barred. Federal civil rights claims for direct violations of federal law under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), were barred under the four-year Utah state personal injury statute of limitations, which applied, despite the fact that the alleged misconduct occurred in Vietnam, as the federal court was not required to attempt to apply a non-existent "hypothetical" Vietnamese statute of limitations. Claims under the Alien Tort Statute, 28 U.S.C. Sec. 1350, were barred by a ten-year statute of limitations. International convention against the use of statutes of limitations to bar claims concerning war crimes did not apply, as the U.S. government had not adhered to that convention, and it also only applies to criminal prosecutions, and not to civil lawsuits for damages. Van Tu v. Kosters, #02-4209, 364 F.3d 1196 (10th Cir. 2004). [N/R]
Claim against sheriff for alleged unlawful arrest and confinement accrued, for statute of limitations purposes, when the plaintiff was arrested for criminal trespass, when he was never charged or prosecuted for the offense, and the plaintiff's lawsuit was therefore properly dismissed as barred by a two-year statute of limitations. Dopp v. Rask, No. 03-3150, 91 Fed. Appx. 79 (10th Cir. 2004). [N/R]
Publication of newspaper article about murder of government informant did not provide his estate notice of a possible claim that the murder was caused by three FBI agents divulging the informant's identity to members of organized crime, so that the statute of limitations did not begin to run on the estate's federal civil rights claim. Trial court denies motion to dismiss lawsuit on the basis of statute of limitations, which did not begin to run until the plaintiffs knew or should have known, of both the death and the alleged factual cause of the death. Castucci v. United States, 311 F. Supp. 2d 184 (D. Mass. 2004). [N/R]
While the statute of limitations for an arrestee's false arrest Fourth Amendment claim would normally start running from the date of the arrest, a federal appeals court rules that if plaintiff was arrested and prosecuted solely on the basis of narcotics "planted" by the arresting officers, the statute would not start to run until the charges were dismissed. Wiley v. City of Chicago, #03-1490, 361 F.3d 994, rehearing denied, 2004 U.S. App. Lexis 7456 (7th Cir. 2004). [2004 LR Jun]
Plaintiff in excessive force and false arrest lawsuit against officers was not entitled to an extension of the applicable statute of limitations based on court clerk's alleged failure to respond to his request about the status of his case, when the case was initially dismissed by the court because of the plaintiff's failure to pay the filing fee. Summary judgment was properly entered in favor of the defendants when the plaintiff re-filed the case over a year after its dismissal, which was six months after the statute of limitations expired. Campbell v. Kelly, #03-3170, 87 Fed. Appx. 234 (3d Cir. 2004). [N/R]
Statute of limitations barred motorist's civil rights claim arising out of alleged "high-risk" vehicle stop. Motorist's motion to extend time to file complaint was timely, but plaintiff failed to have summons to be served with order extending time issued until after limitations period had already expired. Spencer v. Town of Chapel Hill, 290 F. Supp. 2d 655 (M.D.N.C. 2003). [N/R]
Claims which accrued over four years ago based on Native American's arrest following a "prayer march" were barred by a Nebraska state statute of limitations. Poor Bear v. Nesbitt, 300 F. Supp. 2d 904 (D. Neb. 2004). [N/R]
A three-year statute of limitations under New York state law for alleged constitutional violations in connection with the arrest of a minor did not start to run until the plaintiff turned 18, so that her claim was timely filed, and would not be dismissed. Perez v. County of Nassau, 294 F. Supp. 2d 386 (E.D.N.Y. 2003). [N/R]
Statute of limitations barred defamation claims brought by grand jury witness against deputy district attorney and county based on statements made to author of book allegedly falsely describing her as a "felony probationer." The time within which to bring the defamation lawsuit started to run, at the latest, when the book was published and distributed to the public, and was not extended based on the fact that the plaintiff allegedly did not discover that the material was in the book until she subsequently read it. Shively v. Bozanich, No. S094467, 7 Cal. Rptr. 3d 576, 80 P.3d 676 (Cal. 2003). [N/R]
In a lawsuit brought by the family of an man shot and killed by gang members after it was allegedly negligently revealed that he was an FBI informant, the right to bring the lawsuit under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671-2680, accrued at the latest on the date when family members attended hearings at which the relationship between FBI agents and gang members was revealed and widely reported in the media. Accordingly, the court holds that the lawsuit should be dismissed as time-barred under the applicable statute of limitations. McIntyre v. United States, 254 F. Supp. 2d 183 (D. Mass. 2003). [N/R]
Arrestee's malicious prosecution claim was barred by a one-year statute of limitations for claims against a municipality. The cause of action against the city accrued, and one-year time period began to run when the charges against the arrestee were first "stricken with leave to reinstate," not when the 160-day time period for reinstating the charges expired. Ferguson v. City of Chicago, #1-02-2463, 795 N.E.2d 984 (Ill. App. 1st Dist. 2003). [N/R]
Father's claim that he was falsely imprisoned in his hotel room by police who surrounded it and demanded, without justification, that he release his children, was barred by one-year statute of limitations when he failed to file lawsuit until two years and seven months had elapsed from the incident. Southern v. Jones, No. 2002-CP-01027-COA, 851 So. 2d 395 (Miss. App. 2003). [N/R]
Vehicle owner's claim for alleged unreasonable seizure of her vehicle accrued, for purposes of a three year statute of limitations on the date that she realized that her vehicle had been seized, rather than a later date when she obtained clear title to the vehicle. Lawsuit was therefore time-barred. Jonker v. Kelley, 268 F. Supp. 2d 81 (D. Mass. 2003). [N/R]
New Jersey's two-year statute of limitations on the filing of a federal civil rights lawsuit began to run on the day that a police officer took his neighbor's son into custody and to the police station for throwing rocks and dirt into the officer's swimming pool, even if the plaintiffs did not then know their "legal rights," since they did know that the incident took place. Simone v. Narducci, 262 F. Supp. 2d 381 (D.N.J. 2003). [N/R]
Arrestee's civil rights complaint, in restating the legal standard for supervisory liability and then alleging that the supervisor failed to train and supervise officers, was insufficient to state a claim for supervisory liability for officers' alleged false arrest and malicious prosecution of plaintiff, when there were no facts alleged to show that the defendant police superintendent had notice of the officers' purported misconduct or to connect his conduct to their actions. Also, as a matter of federal law, the fact that the year that the plaintiff's claim accrued was a leap year, with 366 rather than 365 days did not entitle him to an extra day to file his complaint to comply with a one-year statute of limitations, when the incident occurred past the month of February. Rodriguez Esteras v. Solivan Diaz, 266 F. Supp. 2d 270 (D. Puerto Rico 2003). [N/R]
In the absence of an express written waiver of the deadline to bring a case to trial within a California statutory five-year time limit, the deadline to do so would not be extended. In this case, the plaintiffs in a civil rights/wrongful death lawsuit over the shooting of their child, in stipulating to a continuation of the trial date to a date within the five year time period did not enter into an agreement with the defendants that extended the deadline beyond the five years. Court also rejects argument that the death of an attorney for a defendant police officer made bringing the plaintiff's case to trial within the five years "impracticable," extending the deadline. Lawsuit was properly dismissed, therefore, for failure to bring the case to trial in a timely manner. Sanchez v. City of Los Angeles, No. B157711, 135 Cal. Rptr. 2d 869 (Cal. App. 2nd Dist. 2003). [N/R]
Arrestee's federal civil rights claims for an alleged unconstitutional stop, arrest, and use of force accrued on the date they occurred, so that his claims were time barred by a two year New Jersey statute of limitations. Wilson v. Healy, No. 02-1862, 63 Fed. Appx. 613 (3rd Cir. 2003). [N/R]
Arrestee's state law false arrest and intentional infliction of emotional distress claims accrued on the date of his arrest and his federal civil rights claim for arrest without probable cause accrued, at the latest, on the date he was sentenced, rather than on the date that his conviction was subsequently invalidated nine years later. Arrestee's claims were all time-barred under two year Illinois statute of limitations. U.S. Supreme Court decision in Heck v. Humphrey, 512 U.S. 477 (1994), holding that a federal civil rights claim for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated did not apply to claims for damages resulting from false arrest not made pursuant to a warrant, the court stated, citing Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892 (7th Cir. 2001). Day v. Conwell, 244 F. Supp. 2d 961 (N.D. Ill. 2003). [N/R]
Statute of limitations on former prisoner's civil rights claim against police officers for allegedly coercing a witness to falsely testify against him in a murder case was not tolled (extended) under Illinois law by either his incarceration or the finding that he had a mental disability for purposes of Social Security benefits (when there was no showing that he was unable to manage his own affairs). Chatmon v. Easton, #02-2377, 56 Fed. Appx. 261 (7th Cir. 2002). [N/R]
Statute of limitations started running on billiard hall owner's federal civil rights claim at the time that a trial court dismissed a prosecution against him for violating an ordinance prohibiting minors from being on his premises. (His lawsuit claimed, among other things, that the application of the ordinance violated equal protection of the law, since it was only enforced against for-profit, privately owned billiard rooms and not against city-owned, public recreation centers). The city, by appealing the dismissal, did not engaged in a "continuing violation" which would toll (extend) the limitations period. Lawsuit was properly dismissed as time-barred. Trzebuckowski v. City of Cleveland, #01-3509, 319 F.3d 853 (6th Cir. 2003). [N/R]
Three year statute of limitations for both Maryland state and federal malicious prosecution claims by inmate wrongfully incarcerated for rape and murder started to run on the date that the criminal proceedings terminated in his favor, but the claims for false arrest and imprisonment accrued as of the date of the original arrest. Gray v. Maryland, 228 F. Supp. 2d 628 (D. Md. 2002). [N/R]
D.C. statute of limitations on arrestee's false imprisonment and excessive force claims was not tolled (extended) by his subsequent arrest on unrelated charges two weeks after his release, or by his subsequent imprisonment on those charges. Arrestee actually initially filed a federal civil rights lawsuit over the first incident after the second arrest, but withdrew it, waiting five years to re-file it. Arnold v. District of Columbia, 211 F. Supp. 2d 141 (D.D.C. 2002). [N/R]
Plaintiff who settled his excessive force claim against four officers for a small sum 35 years ago, allegedly in exchange for the dropping of criminal charges against him, could not pursue a new lawsuit now on the basis of affidavits from one of the officers recanting his version of the incident and stating that all four officers lied in their testimony. Neither federal nor New York state law provided a basis for extending the statute of limitations. Pearl v. City of Long Beach, #01-7914, 296 F.3d 76 (2d Cir. 2002). [2002 LR Nov]
Lawsuit for defamation against officer, based on his alleged phone call to arrestee's employer, was dismissed as time-barred under an Illinois one-year statute of limitations, but the plaintiff was allowed to conduct further discovery to determine the exact date of the alleged call. Stobinske-Sawyer v. Village of Alsip, 188 F. Supp. 2d 915 (N.D. Ill. 2002). [N/R]
An arrestee had to file his false arrest lawsuit within the applicable two year statute of limitations, despite the fact that the federal court would not have acted on his claim while his state criminal appeal arising out of the same incident was pending, since the cause of action for wrongful arrest accrued at the time of the arrest. Lawsuit filed after two year period was properly dismissed. Nesbitt v. City of Champaign, #01-3163, 34 Fed. Appx. 226 (7th Cir. 2002). [N/R]
Arrestee bringing a personal injury action under Mississippi state law against city and police officer was entitled to the benefit of an amendment to the Tort Claims Act, Miss. Code Ann.. Sec. 11-46-11(3), increasing the statute of limitations period which was enacted at a time when the claim was pending, so long as the claim was not already time-barred at the time of the amendment. Tie-Reace Hollingsworth v. City of Laurel, No. 2000-CA-01462-SCT, 808 So. 2d 950 (Miss. 2002). [N/R]
Malicious prosecution claims against officers, based on arrest pursuant to warrant, were not time-barred by Indiana's two-year statute of limitations since the claims did not accrue until the criminal prosecution was dismissed, rather than at the time of the arrest. Appeals court still upholds dismissal of claims against officers, however, in the absence of any allegation that they played an "essential or influential" role in obtaining the warrant or indictment. Snodderly v. R.U.F.F. Drug Enforcement Task Force, No. 99-3688, 239 F.3d 892 (7th Cir. 2001). [N/R]
Woman's claim that she had been sexually assaulted by a police officer when she was twelve years old accrued under New York law when she became an adult, so that the statute of limitations on all claims expired three years after she became an adult. Paige v. Police Dept. of City of Schenectady, No. 00-9584, 264 F.3d 197 (2nd Cir. 2001). [N/R]
Plaintiff's false arrest lawsuit, filed twenty-nine months after his arrest, was not barred by two year statute of limitations, since his right to bring the lawsuit did not accrue until the criminal prosecution against him was dismissed. Pascual v. Matsumura, No. CIV. 99-00706, 165 F. Supp. 2d 1149 (D. Hawaii 2001). [N/R]
345:133 Georgia appeals court rules that false arrest lawsuit was filed within the two year statute of limitations when it was delivered to the court office on the second anniversary of the arrest, but stamped "filed" on the next day. Reese v. City of Atlanta, No. A00A2562, 545 S.E.2d 96 (Ga. App. 2001).
[N/R] Claim for false arrest accrued on the date of the arrest and not on the date the plaintiff was acquitted on the charge for which he was arrested. Laurino v. Tate, #99- 3170, 220 F.3d 1213 (10th Cir. 2000).
331:102 California's one-year statute of limitations was tolled in federal civil rights lawsuit over search warrant obtained with false statements during the entire pendency of state and federal prosecutions against the arrestee; California tolling statute applied to federal prosecutions despite its language only mentioning proceedings in state court. Harned v. Landahl, 88 F.Supp. 2d 1118 (E.D. Cal. 2000).
333:134 Running of one year statute of limitations to bring a federal civil rights claim over alleged political discrimination in revocation of store's firearms sales license and raid on store accrued on the day of the raid and a lawsuit filed 23 years after the fact was time barred even if plaintiffs claimed they did not learn the reason for the raid until later. Ramos v. Roman, 83 F.Supp. 2d 233 (D. Puerto Rico 2000).
334:149 False arrest and malicious prosecution claims against officers were time barred under Illinois law when filed more than a year after the time the criminal case against the plaintiff had been dismissed; dismissal with "leave to reinstate" did not, in any event, constitute a final disposition of the case in favor of the criminal defendant, as required to support a malicious prosecution claim. Woodard v. Eubanks, 94 F.Supp. 2d 940 (N.D. Ill. 2000).
326:25 Federal appeals court rules that federal civil rights claim for illegal search of home only accrued after criminal charges against homeowner were dismissed when an award of damages for illegal search would necessarily imply invalidity of any potential conviction; one- year statute of limitations ran from date of dismissal rather than date of search. Shamaeizadeh v. Cunigan, #98-5451, 182 F.3d 391 (6th Cir. 1999).
EDITOR'S NOTE: For other decisions applying the rule in Heck to certain pre-conviction situations, see Smith v. Holtz, 87 F.3d 108 (3d Cir. 1996) (statute of limitations did not begin to run until plaintiff's murder conviction was reversed on appeal); and Covington v. City of New York, #96-2026, 171 F.3d 117 (2d Cir. 1999), (agreeing with Third Circuit that Heck rule is applicable to accrual of claims that, if successful, would necessarily imply the invalidity of a potential conviction on a pending criminal proceeding).
[N/R] Claims for excessive use of force and lack of probable cause for arrest were barred by Massachusetts three-year statute of limitations. Nieves v. McSweeney, 73 F.Supp. 2d 98 (D. Mass. 1999).
[N/R] California statute of limitations on federal civil rights claim was extended as a result of arrestee's incarceration. Ellis v. City of San Diego, Calif., No. 97- 55649, 176 F.3d 1183 (9th Cir. 1999).
[N/R] If success on plaintiff's federal civil rights claim would necessarily have implied the invalidity of any conviction resulting from his arest, then his false arrest claim could not be pursued until after the prosecution against him was dismissed, so that the statute of limitations in New York did not begin to run until that time. Covington v. City of New York, No. 96-2026, 171 F.3d 117 (2nd Cir. 1999).
322:151 Federal appeals court rules that lawsuit over man's ejection from city council meeting was properly found to be time barred by California one-year statute of limitations; separate statute of limitations, providing up to two years to bring suit when damage claims are first presented to public entity, had no applicability to federal civil rights action. Silva v. Crain, #98-15281, 169 F.3d 608 (9th Cir. 1999).
320:117 One-year statute of limitations on civil rights false arrest and malicious prosecution claims in California did not begin to run until arrestee's conviction was overturned, but excessive force claim could have been asserted earlier; excessive force claim therefore was time barred, but false arrest/malicious prosecution claims were not. Cabrera v. City of Huntington Park, No. 96-55268, 96- 55431, 159 F.3d 374 (9th Cir. 1998).
318:85 Two-year personal injury statute of limitations was correct Illinois statute for federal civil rights claim, rather than five-year "catchall" statute plaintiff in excessive force case argued should be applied. Ashafa v. City of Chicago, #97-2594, 146 F.3d 459 (7th Cir. 1998).
315:43 Arrestee whose convictions for armed robbery and murder were overturned on appeal because he was arrested without probable cause could not sue arresting officers for malicious prosecution when he did not claim that officers did anything improper to further his prosecution following his arrest. Sneed v. Rybicki, #97-2256, 146 F.3d 478 (7th Cir. 1998).
314:23 Two-year statute of limitations applied to false imprisonment lawsuit in Virginia, while one-year statute of limitations applied to defamation claim. Jordan v. Shands, 500 S.E.2d 215 (Va. 1998).
302:20 D.C. Court of Appeals overturns $500,000 excessive force award against District as time barred by one year statute of limitations; arrestee's release from custody, even if erroneous, started running of one year time period and his rearrest later on other charges did not then extend the time during which he could file his suit. District of Columbia v. Tinker, 691 A.2d 57 (D.C. App. 1997).
306:85 Day on which federal civil rights action accrued because man's family learned that he was shot and killed by police did not count towards 365-day statute of limitations under Puerto Rican law; the next day was the first day for purposes of calculating the time limit. Carreras-Rosa v. Alves-Cruz, 127 F.3d 172 (1st Cir. 1997).
308:120 Two year statute of limitations on malicious prosecution claim began to run when magistrate dismissed case against arrestee, despite the fact that criminal charges against him could have been reinstated during a subsequent four year period; lawsuit brought three years later was time-barred under Georgia law. Waters v. Walton, 483 S.E.2d 133 (Ga. App. 1997).
308:120 Federal appeals court rules that arrestee could have immediately pursued his claims of Fourth Amendment violations in his arrest, the obtaining of his confession (later suppressed), and the alleged use of excessive force against him, and need not wait until his later acquittal; lawsuit filed after retrial and acquittal was therefore time-barred. Gonzalez v. Entress, 133 F.3d 551 (7th Cir. 1998).
293:69 Alabama Supreme Court rules that federal civil rights suit against city was barred by two-year state statute of limitations; rejects argument that defendants' alleged wrongful conduct, causing wrongful arrest and imprisonment of plaintiff, continued during entire period that plaintiff was in jail Jennings v. City of Huntsville, 677 So.2d 228 (Ala 1996).
295:100 Federal civil rights lawsuit over New York officer's off-duty shooting of resident was barred by state three-year statute of limitations Baker v. New York City, 934 F.Supp. 533 (E.D.N.Y. 1996).
298:151 Kansas arrestee's claim that he was "negligently arrested" 28 days after an arrest warrant was withdrawn was, in "substance", a false arrest claim barred by a one-year statute of limitations, rather than a negligence claim governed by a twoyear limitations period Brown v. State of Kansas, 927 P.2d 938 (Kan 1996).
298:152 One year statute of limitations on federal civil rights lawsuit in Tennessee began to run on date that shooting by police took place, and expired on the same calendar date one year later Merriweather v. City of Memphis, 107 F.3d 396 (6th Cir. 1997).
{N/R} Federal civil rights claim based on malicious prosecution did not accrue until after state Supreme Court ordered that murder charges against plaintiff be dismissed Smith v. Holtz, 87 F.3d 108 (3rd Cir. 1996).
{N/R} Arrestee's federal civil rights claim accrued on date of arrest when he claimed warrantless arrest without probable cause; claim did not accrue until criminal prosecution was terminated in arrestee's favor when he claimed malicious prosecution Brooks v. City of Winston- Salem, 85 F.3d 178 (4th Cir. 1996).
278:22 Three year statute of limitations began to run on malicious prosecution claim from the time the charges against the plaintiff were finally dismissed, not from the time of the arrest Murphy v. Lynn, 53 F.3d 547 (2nd Cir. 1995). [Cross-reference: Malicious Prosecution]
278:23 California state one-year statute of limitations was extended while plaintiff was a minor; suit filed three years after arrest, but within one year of plaintiff becoming an adult was not time-barred Huntington Park, City of, v. Superior Court (Flores), 41 Cal.Rptr.2d 68 (Cal App. 1995).
281:70 One year statute of limitations did not bar federal civil rights lawsuit over allegedly false arrests with warrants brought more than one year after arrests but less than one year after acquittals; federal appeals court finds suit over alleged unlawful arrests made pursuant to warrants more analogous to malicious prosecution than false arrest claims, and time period did not begin to run until date of acquittals Webb v. Haas, 665 A.2d 1005 (Me 1995). [Cross-reference: Defenses: Qualified (Good- Faith). Immunity]
281:71 State trooper's alleged fraudulent concealment of the fact that he had seen disabled vehicle at an earlier time and had failed to inspect it defeated two year statute of limitations defense in Maine civil rights lawsuit by estate of deceased motorist; trooper was not entitled to qualified immunity on claim that his alleged "obstruction of justice" in filing false reports deprived estate of decedent of constitutional right of access to courts Webb v. Haas, 665 A.2d 1005 (Me 1995). [Cross-reference: Defenses: Qualified (Good-Faith). Immunity]
282:88 Federal court rules that complaint was filed within the statute of limitations when placed in clerk of the court's post office box at night on the last day one year statute of limitations would run, despite the fact that the clerk's office had closed hours earlier; attorney had intended to file complaint before office closed, but his computer printer malfunctioned Turner v. City of Newport, 887 F.Supp. 149 (E.D.Ky 1995).
282:88 Three year statute of limitations applied to civil rights claims against both sheriff and other county employees under Massachusetts law, despite specific state statute specifying four year time period for certain claims against sheriff King v. Sheriff of Franklin County, 38 Mass App. Ct 925, 646 N.E.2d 417 (1995).
286:151 Virginia Supreme Court rules that the absolute maximum time within which the executor of a decedent's estate must qualify as such and file a civil rights lawsuit on behalf of the estate is three and a half years; executor's appointment after that time did not "relate back" to validate the filing of a suit after that time had expired Douglas v. Chesterfield County Police Dept, 467 S.E.2d 474 (Va 1996).
{N/R} Complaint was not filed, for statute of limitations period, until clerk of court actually received it, as opposed to date it was mailed or date when incomplete copy of complaint was faxed to clerk McIntosh v. Antonino, 71 F.3d 29 (1st Cir. 1995).
265:5 Colorado Supreme Court rules that three-year statute of limitations, rather than one-year statute of limitations, applied to suit against sheriff and sheriff's deputy for pedestrian's alleged injuries in accident with vehicle driven by deputy Dawson v. Reider, 872 P.2d 212 (Colo 1994).
265:5 Michigan court holds that pretrial detention in county jail did not constitute "imprisonment" under state statute extending the statute of limitations for lawsuits by prisoners Evans v. Hebert, 513 NW2d 165 (Mich App. 1994).
266:21 Civil rights claim for wrongful conviction and sentence did not begin to accrue until sentence was invalidated; trial court therefore erred in ruling suit was barred by one-year statute of limitations without first determining whether sentence had been invalidated, and if so, when Guzman-Rivera v. Rivera- Cruz, 29 F.3d 3 (1st Cir. 1994).
267:38 California statute extending the statute of limitations for filing a civil rights complaint during period of incarceration applied from the time of plaintiff's arrest through his period of imprisonment after conviction when he had been in continuous custody; federal appeals court reinstates excessive force suit filed by prisoner dismissed by trial court Elliott v. City of Union City, 25 F.3d 800 (9th Cir. 1994).
267:38 Federal appeals court rules that Utah statute establishing a two-year statute of limitations for federal civil rights cases only would not be applied; four-year "residual" statute of limitations for personal injuries generally applied; legislature could not "usurp" federal law by lowering applicable time for bringing federal civil rights claims only Arnold v. Duchesne County, 26 F.3d 982 (10th Cir. 1994).
269:70 Arrestee's civil rights suit over alleged misconduct surrounding a lineup was barred by NY's three-year statute of limitations Veal v. Geraci, 23 F.3d 722 (2nd Cir. 1994).
270:87 Alabama Supreme Court rules that dismissal of federal civil rights lawsuit as time-barred under statute of limitations did not bar state court lawsuit for false imprisonment, which has a longer statute of limitations under state law Sims v. Geohagan, 641 So.2d 1237 (Ala 1994).
{N/R} Kansas two-year statute of limitations barred claims of constitutional violations by individual state and county officials Oyler v. Finney, 870 F.Supp. 1018 (D.Kan 1994).
Civil rights suit against FBI agent was barred under California four-year statute of limitations Gerritsen v. Consulado General De Mexico, 989 F.2d 340 (9th Cir. 1993).
Facts in complaint, including prior pursuit of administrative and state court remedy, justified "tolling" or expansion of statute of limitations period under California state law for federal law for federal civil rights lawsuit Cervantes v. City of San Diego, 5 F.3d 1273 (9th Cir. 1993).
California law stating that statute of limitations shall be "tolled" or extended on civil damage lawsuit when criminal charges are pending did not apply to civil rights lawsuit against federal law enforcement officers Matthews v. Macanas, 990 F.2d 467 (9th Cir. 1993).
Arrestee's pursuing of state habeas corpus remedies tolled or extended the time for bringing a federal civil rights lawsuit under Louisiana state law Burge v. Parish of St Tammany, 996 F.2d 786 (5th Cir. 1993).
Plaintiff arrestee's false arrest and false imprisonment claims were barred by Puerto Rico's state of limitations PerezRuiz v. Crespo- Guillen, 847 F.Supp. 1 (D.Puerto Rico 1993).
Federal appeals court rules that civil rights complaints filed by prisoners acting without attorneys will be considered filed when given to prison authorities for forwarding to a court, rather than when received by the court Garvey v. Vaughn, 993 F.2d 776 (11th Cir. 1993).
DC's three-year statute of limitations is applicable to federal civil rights lawsuits; woman's suit against police for alleged warrantless search of her residence, filed almost eight years after incident, was time-barred Rivers v. Montgomery, 842 F.Supp. 1 (DDC 1993).
North Carolina Supreme Court rules that three-year, rather than one-year, statute of limitations applies to lawsuits against police officers for assault and false arrest Fowler v. Valencourt, 435 S.E.2d 530 (N.C. 1993).
Nebraska Supreme Court rules that four-year, rather than two-year, statute of limitations governs suits against officers in that state for actions taken prior to May 13, 1987 Gatewood v. Powell, 511 N.W.2d 159 (Neb App. 1993).
Update: Alabama Supreme Court issues revised opinion, still holding that state's two-year statute of limitations barred civil rights suit for damages by man whose cash funds were seized by officers arresting him for alleged participation in drug transaction Woods v. Reeves, 628 So.2d 563 (Ala 1993).
Alabama Supreme Court holds that state's two-year statute of limitations barred civil rights suit for damages by man whose cash funds were seized by officers arresting him for alleged participation in drug transaction; plaintiff was, however, entitled to return of funds because no formal forfeiture proceeding concerning funds was ever instituted Woods v. Reeves, 621 So.2d 672 (Ala 1993). Arrestee's false arrest civil rights lawsuit, filed after his criminal conviction was reversed on appeal, was barred by New York's three-year statute of limitations; limitations period was not extended by arrestee's incarceration, and began to run from the date of his arrest, rather than from the date of the reversal of his conviction Woods v. Candela, 825 F.Supp. 43 (S.D.N.Y. 1993).
Two-year statute of limitations specifically adopted by Utah legislature to limit time for filing federal civil rights lawsuits in the state applied, rather than four-year general statute of limitations for personal injury claims Arnold v. Duchesne County, 810 F.Supp. 1239 (D.Utah 1993).
Student arrested in 1970 Vietnam war demonstration could sue officer and city for malicious prosecution almost twenty years later when newly discovered photographic evidence resulted in overturning of his prior conviction for assaulting an officer and prosecutor's dismissal of criminal charges against him; federal civil rights claim, however, was barred by three year statute of limitations Emory v. Logan, 801 F.Supp. 899 (D.Mass 1992).
When California statute of limitations in shooting case did not start to run on state law claims until after administrative complaints were denied, plaintiffs could also wait to bring federal civil rights suit in order to bring state and federal claims at the same time Hood v. City of Los Angeles, 804 F.Supp. 65 (CD Cal 1992).
Negligence lawsuit filed against off-duty police officer for his K-9 dog's attack on a female child was barred by Colorado statute of limitations when filed more than a year after the incident; dog was only present because of defendant's capacity as a police officer, so statute limited t claims against police in their official capacity applied Kilewer v. Sopata, 797 F.Supp. 1569 (D.Colo 1992).
Arrestee's civil rights suit complaining about the search of his residence during his arrest was barred under Alabama's statute of limitations when filed more than two years after the incident Holland v. Barton, 600 So.2d 233 (Ala 1992).
Pending of criminal proceedings did not toll the New Jersey
statute of limitations for bringing a civil rights lawsuit; filing a precomplaint motion to perpetuate testimony did not serve as functional equivalent of filing a complaint for purposes of statute Byrd v. Manning, 601 A.2d 770 (NJ Super AD 1992).
While Illinois two-year statute of limitations applied to detainee's civil rights claim of police beating after traffic stop, the limitations period might be extended if officers "affirmatively misled" the plaintiff about their participation in the alleged attack Smith v. City of Chicago Heights, 951 F.2d 834 (7th Cir. 1992).
Federal appeals court holds that U.S. supreme Court decision on applicable statute of limitations in civil rights cases does not apply retroactively to bar arrestee's suit against officers for alleged misconduct during arrest McKissick v. Busby, 936 F.2d 520 (11th Cir. 1991).
Special NY statute of limitations applying only to suits against municipalities, did not apply to federal civil rights claim; longer general personal injury statute was instead applicable Meiselman v. Richardson, 743 F.Supp. 143 (E.D.N.Y. 1990).
Cause of action for false arrest accrued at the time of the arrest, not several years later when arrestee allegedly discovered that arrest was based on computer error; false arrest lawsuit was time-barred Diaz v. Metro-Dade Police Dept, 557 So.2d 608 (Fla App. 1990).
Pre-trial detainee is not "imprisoned" for purposes of tolling Michigan statute of limitations for bringing a federal civil rights suit Jones v. City of Hamtrmck, 905 F.2d 908 (6th Cir. 1990).
Mississippi federal court applies U.S. Supreme Court decision in Owens v. Okure retroactively Flowers v. Dickens, 741 F.Supp. 112 (S.D.Miss 1990).
Federal appeals court reinstates false arrest lawsuit by the "Hillside Strangler" because of state statute tolling the statute of limitations during imprisonment Bianchi v. Bellingham Police Dept, 909 F.2d 1316 (9th Cir. 1990).
Two-year statute of limitations on claims against government bodies, barring claim for alleged negligent and reckless shooting of youth by police officer did not violate equal protection, despite general three-year statute of limitations on all other wrongful death claims Van Wormer v. City of Salem, 788 P.2d 443 (Or 1990).
Mississippi's six-year residual limitations period, rather than one-year statute for intentional torts, applies to civil rights actions Thomas v. City of New Albany, 901 F.2d 476 (5th Cir. 1990).
Arrestee's civil rights claims were barred by Arizona's two year statute of limitations Krug v. Imbordino, 896 F.2d 395 (9th Cir. 1990).
New Jersey's two year limitations period on personal injuries, rather than six year limit on other claims, applies to Section 1983 civil rights suits Cito v. Bridgewater Twp Police Dept, 892 F.2d 23 (3d Cir. 1989).
Federal appeals courts rule on tolling of Kentucky, Texas and Michigan statutes of limitations during imprisonment Bell v. Cooper, 881 F.2d 257 (6th Cir. 1989); Burrell v. Newsome, 883 F.2d 416 (5th Cir. 1989); Perreault v. Hostetler, 884 F.2d 267 (6th Cir. 1989).
Illinois two year statute of limitations applies to federal civil rights claims Kalimara v. Illinois Department of Corrections, 879 F.2d 276 (7th Cir. 1989).
Court again attempts to clarify limitations period for civil rights actions Owens v. Okure, 109 S.Ct. 573 (1989).


Back to list of subjects Back to Legal Publications Menu

Friday, January 25, 2008

THE LEGAL STANDARD FOR DISCOVERY REGARDING SELECTIVE PROSECUTION

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JUN 23 2000 [date stamped]

UNITED STATES OF AMERICA,
Plaintiff,

v. Criminal No. 99-1417 JP

WEN HO LEE,
Defendant.


MOTION FOR DISCOVERY OF MATERIALS
RELATED TO SELECTIVE PROSECUTION

Dr. Wen Ho Lee, through undersigned counsel, respectfully moves the Court, pursuant to the Due Process Clause of the Fifth Amendment to the Constitution of the United States of America, for discovery of materials relevant to establishing that the government has engaged in unconstitutional selective prosecution.

The grounds for this motion are set forth in the accompanying memorandum.

Respectfully submitted,

O'MELVENY & MYERS LLP

By
Mark Holscher
Richard E. Myers II

400 South Hope Street
Los Angeles, CA 90071
Telephone: (213) 430-6000
Fax: (213) 430-6407

FREEDMAN BOYD DANIELS HOLLANDER
GOLDBERG & CLINE P.A.

By:
Nancy Hollander
John D. Cline

20 First Plaza, Suite 700
Albuquerque, NM 87102
Telephone: (505) 842-9960
Fax: (505) 842-0761

Attorneys for Defendant Dr. Wen Ho Lee

I HEREBY CERTIFY that a true copy of the foregoing was mailed to opposing counsel this 25th day of June, 2000.

Nancy Hollander

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JUN 23 2000 [date stamped]

UNITED STATES OF AMERICA,
Plaintiff,

v. Criminal No. 99-1417 JP

WEN HO LEE,
Defendant.


MEMORANDUM IN SUPPORT OF MOTION FOR DISCOVERY
OF MATERIALS RELATED TO SELECTIVE PROSECUTION

INTRODUCTION

Defendant Wen Ho Lee is the only person the U.S. Department of Justice (DOJ) has selected for indictment under the draconian Atomic Energy Act since it was passed in 1948. During this fifty-year period, the DOJ has repeatedly declined to fully investigate, much less charge, individuals who may have compromised classified nuclear weapons related information.

The DOJ also indicted Dr. Lee under 18 U.S.C. § 793(c) and (e) for the alleged mishandling of computer codes and data files, even though these files had not been classified at the time of Dr. Lee's alleged activities. Instead, the computer codes and data files had been designated as "protect as restricted data" (PARD), which ranks between unclassified and confidential on the Los Alamos National Laboratory (LANL) security hierarchy. Moreover, the government obtained the indictment under § 793 even though it concededly has no evidence that the codes and data files were ever transferred to any unauthorized person. Not one person other than Dr. Lee has ever been charged under § 793 for mishandling materials that had not been formally classified and that were not transferred.

Dr. Lee has obtained concrete proof that the government improperly targeted him for criminal prosecution because he is "ethnic Chinese." This direct evidence includes the following:

* A sworn declaration from a LANL counterintelligence official who participated in the investigation of Dr. Lee that Dr. Lee was improperly targeted for prosecution because he was "ethnic Chinese."

* Videotaped statements of the FBI Deputy Director who supervised counterintelligence investigations until last year admitting that the FBI engaged in racial profiling of Dr. Lee and other ethnic Chinese for criminal counterintelligence investigations.

* The sworn affidavit the U.S. Attorney's Office used to obtain the warrant to search Dr. Lee's home, in which the FBI affiant incorrectly claimed that Dr. Lee was more likely to have committed espionage for the People's Republic of China (PRC) because he was "overseas ethnic Chinese."

* A posting to the Los Alamos Employees Forum by a LANL employee who assisted counterintelligence investigations and personally observed that the DOE engaged in racial profiling of Asian-Americans at Los Alamos during these investigations.

Dr. Lee has requested that the government provide specific reports and files to him that squarely relate to the issue of whether he has been selectively prosecuted as a result of improper racial profiling. The government has refused to provide any of these documents to Dr. Lee.

Because Dr. Lee is the only person who has ever been selected for prosecution under the Atomic Energy Act,1 and the only person ever prosecuted in remotely similar circumstances under § 793, and because he has uncovered specific direct admissions from the government that he was targeted for criminal investigation because he is "ethnic Chinese," he has made the necessary showing to obtain this discovery. Even if Dr. Lee did not have this direct evidence, he has also satisfied the stringent requirements of United States v. Armstrong, 517 U.S. 456 (1996), which held that in the absence of direct evidence of impermissible racial targeting, a defendant is nevertheless entitled to discovery if he provides some evidence that similarly situated people have not been prosecuted and that his investigation and prosecution were caused by improper racial motivations.

1 At Dr. Lee's detention hearing on December 13, 1999, FBI Special Agent Robert Messemer conceded that Dr. Lee is the only person who has ever been charged under the Atomic Energy Act. See Transcript of Proceedings, December 13, 1999, at 139.

This memorandum summarizes compelling evidence that the DOJ had an informal policy of refusing to bring criminal charges in situations similar to and (even more egregious than) Dr. Lee's case. In addition, we provide several specific examples of similarly situated individuals whom the government has chosen not to indict under either the Atomic Energy Act or § 793. Unlike the meritless selective prosecution discovery motions discussed in Armstrong, where several thousand men and women of all races had been charged under the same statutes as the defendants, Dr. Lee can conclusively establish that he is the only person whom the government has ever chosen to indict under the Atomic Energy Act and the only person indicted in similar circumstances under § 793.

FACTUAL BACKGROUND

A. The Indictment

On December 10, 1999, the government brought a fifty-nine-count indictment against Dr. Lee. Thirty-nine counts allege that Dr. Lee violated the Atomic Energy Act because he purportedly mishandled material containing restricted data, with the intent to injure the United States, and with the intent to secure an advantage to a foreign nation. Dr. Lee was also charged with ten counts of unlawfully obtaining national defense information in violation of 18 U.S.C. § 793(c), and with ten counts of willfully retaining national defense information in violation of 18 U.S.C. § 793(e).

B. Dr. Lee's Discovery Requests

Dr. Lee's counsel have made a written request to the prosecution for specific materials his counsel believe contain direct evidence that Dr. Lee was improperly selected for prosecution because he is "ethnic Chinese." 2 Among the several categories of materials requested were: (1) the reports and memoranda supporting the findings of the DOE's Task Force on Racial Profiling's January 2000 report, (2) the Defensive Information to Counter Espionage videotapes, that were created by DOE counterintelligence and shown to DOE employees until last year, and are now prohibited at LANL because they allegedly contain racial stereotypes; (3) DOE or DOJ memoranda and reports confirming that the FBI targets Americans of Chinese ethnicity for potential criminal espionage involving the PRC; (4) the DOJ's and DOE's responses to the numerous Congressional inquiries related to the justification for and details of the investigation of Dr. Lee; (5) the classified September 1999 State Department report by Jacqueline Williams-Bridger, detailing hundreds of cases of mishandling classified information, including cases of actual passing of classified information; and (6) information concerning specific cases in which the government declined to prosecute under circumstances similar to, or more egregious than, this case. The government has refused to produce any of the materials requested by Dr. Lee's counsel.

2 See May 1, 2000, letter from Mark Holscher to AUSA Robert Gorence, attached as Exhibit A.

I. THE LEGAL STANDARD FOR DISCOVERY REGARDING SELECTIVE PROSECUTION

The Supreme Court established the threshold for discovery on selective prosecution claims in United States v. Armstrong, 517 U.S. 456 (1996). The Court held that to obtain discovery in a case in which the court is asked to infer discriminatory purpose, a defendant must produce (1) some evidence that similarly situated individuals have not been prosecuted, and (2) some evidence of improper motivation in deciding to prosecute. The Court did not decide whether a defendant should be required to produce some evidence that similarly situated persons have not been prosecuted if the prosecution has admitted having a "discriminatory purpose." Id. at 469 n.3.

II. DR. LEE MORE THAN MEETS THE LEGAL STANDARD FOR DISCOVERY REGARDING SELECTIVE PROSECUTION

As we demonstrate below, Dr. Lee clearly meets the legal standard that Armstrong establishes for discovery related to a selective prosecution claim. In Part A, he presents direct evidence that government officials have admitted a racial basis for investigating Dr. Lee, and in Part B, he establishes that the government has declined to prosecute similarly situated persons.

A. Dr. Lee has Direct Evidence that He was Targeted for Criminal Investigation Because He is "Ethnic Chinese."

The troubling chain of events that led to Dr. Lee's indictment began when the DOE's Chief Intelligence Officer, Notra Trulock, incorrectly concluded in 1995 that the PRC had obtained the design information for the W-88 warhead from someone at the Los Alamos National Laboratory.3 Mr. Trulock began an Administrative Inquiry to identify the suspect or suspects who should be the focus of this counterintelligence investigation. On May 29, 1996, Mr. Trulock issued the Administrative Inquiry which listed Dr. Lee as the main suspect. This Administrative Inquiry led to meetings between DOE counterintelligence officials and FBI Special Agents in New Mexico regarding Dr. Lee. The FBI then opened a criminal investigation of Dr. Lee.

3 Just last year the DOJ conceded in a press conference that this conclusion was incorrect, and it opened a criminal investigation into the over 450 individuals outside LANL who had received this design information. See, e.g., Vernon Loeb and Walter Pincus, New Leads Found in Spy Probe, Washington Post, Nov. 19, 1999 at Al, attached as Exhibit B.

1. Vrooman's Declaration Establishes that the Government Engaged in Improper Racial Profiling

Robert Vrooman, who was the Chief Counterintelligence Officer at LANL from 1987 until 1998, participated in the Administrative Inquiry and assisted in the resulting criminal investigation of Dr. Lee. Mr. Vrooman is adamant that Mr. Trulock's targeting of Dr. Lee for investigation was the result of improper racial profiling. In a declaration, attached as Exhibit C, Mr. Vrooman states:

Mr. Trulock's office chose to focus specifically on Dr. Lee because he is "ethnic Chinese." Caucasians with the same background and foreign contacts as Dr. Lee were ignored.

Vrooman Decl., Ex. C at 3, ¶ 9. Vrooman is also unequivocal in stating that this impermissible racial profiling was the main reason Dr. Lee was targeted for criminal prosecution. "I state without reservation that racial profiling was a crucial component in the FBI's identifying Dr. Lee as a suspect." Id. at 3,¶ 12.4

4 Vrooman consistently raised this concern with federal officials, long before he provided his declaration here. As he indicated in a May 1999 letter to U.S. Senator Domenici: "[e]thnicity was a crucial component in identifying Lee as a suspect. Caucasians with the same background as Lee were ignored." See Ex. I to Ex. C. Vrooman also wrote to Senator Conrad Burns in June 1999 that "Mr. Lee was selected as the prime suspect mainly because he is ethnic Chinese." See June 25, 1999, letter from Robert Vrooman to U.S. Senator Conrad Bums, attached as Exhibit D.

Vrooman has also made clear that Trulock, who was the highest ranking DOE employee overseeing all counterintelligence investigations, intentionally targeted "ethnic Chinese" because Trulock held the belief that these American citizens could not be trusted like other American citizens. As Vrooman states in his declaration, Trulock told him that "ethnic Chinese should not be allowed to work on classified projects, including nuclear weapons." Id. at 3, ¶ 13.5 Trulock made these statements while he was chief of the DOE's counterintelligence office, and when he was personally assisting the criminal investigation of Dr. Lee. Trulock's statements that American citizens who are "ethnic Chinese" should be barred from sensitive jobs at LANL are a violation of federal civil rights statutes that prohibit racial discrimination for employment.6 Trulock's statements are further corroboration that Trulock intentionally targeted Dr. Lee because he was "ethnic Chinese."

5 Vrooman confirmed this troubling fact in the letter he wrote to Senator Domenici on May 11, 1999, See Ex. I to Ex. C.

6 See 42 USCA § 2000e-2 ("It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.").

2. Former FBI Deputy Director Paul Moore has Confirmed that Dr. Lee was Targeted by the FBI Due to Racial Profiling

The FBI used the same impermissible racial profiling in its criminal investigation of Dr. Lee. The Deputy Director of the FBI responsible for all criminal counterintelligence prosecutions until 1999 confirmed that the FBI's criminal investigation of Dr. Lee was premised on the same impermissible racial bias, namely, that "Chinese-Americans" were more likely to commit espionage. The Deputy Director, Paul Moore, oversaw portions of the criminal investigation of Dr. Lee. In a televised interview with Jim Lehrer, on December 14, 1999, regarding the arrest and indictment of Dr. Lee, Deputy Director Moore admitted that racial profiling was used, but attempted to justify this racial classification as reasonable:

There is racial profiling based on ethnic background. It's done by the People's Republic of China. ... Now the FBI comes along and it applies a profile, so do other agencies who do counter intelligence investigations -- they apply a profile, and the profile is based on People's Republic of China, PRC intelligence activities. So, the FBI is committed to following the PRC's intelligence program wherever it leads. If the PRC is greatly interested in the activities of Chinese-Americans, the FBI is greatly interested in the activities of the PRC as [regards] Chinese-Americans.

The News Hour With Jim Lehrer, December 14, 1999, Tuesday, Transcript #6619, attached as Exhibit E at 12.

Moore's statements ignored the fact that senior FBI officials, in memoranda the government is withholding from Dr. Lee, had concluded long before December 1999 that it did not have credible evidence that the Taiwanese-born Dr. Lee had engaged in any improper activities with the PRC. In his videotaped interview, Moore then attempted to explain why the DOJ had indicted Dr. Lee:

So, now, the U.S. in my opinion, this signals that the U.S. is fighting back. This is the situation quite similar to the Al Capone case where they couldn't [lock] him up for his racketeering activities, so they cast about and they found something else that they could get him for.

Id. at 14.

Moore, however, later conceded that the FBI's targeting of American citizens who are "ethnic Chinese" for increased scrutiny for espionage did not make sense. In response to a statement by Nancy Choy of the National Asian Pacific-American Bar Association that targeting people for criminal investigation based on their race was improper, Moore backtracked from his earlier statement that the racial targeting of "ethnic Chinese" by the FBI was reasonable. After Ms. Choy challenged the profiling, Moore admitted that:

Ethnic profiling doesn't work for the PRC, it doesn't work for the FBI. You cannot predict someone's intelligence, somebody's espionage behavior based on his ethnic background. (Emphasis added.)

Id. at 13.

Moore did not even attempt to address the issue of how such racial targeting could even be considered for a citizen of the United States who was born in Taiwan. The Attorney General of the United States, in testimony before a Senate subcommittee, also stated that it was illogical to claim that a Taiwanese-born scientist like Dr. Lee would be predisposed to assist the PRC. "Now, if you are using that information to suggest that you are an agent of a foreign power, to whit, [sic] the PRC, the immediate question is raised, how are you that if you are clearly working with the Taiwanese Government on matters that apparently involve non-classified information?" Top Secret Hearing Before the Senate Committee on the Judiciary, 106th Cong. (1999), (visited June 22, 2000) (http://www.fas.org/irp/congress/1999_hr/renofisa.html) (statement of Attorney General Janet Reno).

3. Acting Counterintelligence Director Washington Also Confirmed Trulock's Profiling of Chinese Americans

Eugene Washington, who was DOE's acting Director of Counterintelligence in 1996, also believes that Trulock engaged in improper racial profiling. Washington confirmed in an interview with the Washington Post in August 1999, that "he told Trulock that he was unfairly singling out Lee and another Chinese American scientist." Vernon Loeb and Walter Pincus, Espionage Whistleblower Resigns: Energy's Trulock Cites Lack of Support as Debate About His Tactics Grows, Washington Post, August 24, 1999, attached as Exhibit F. Washington apparently sent Trulock a memorandum recommending that the investigation be closed and apparently questioning the DOE's focusing on Chinese Americans. This government has not produced this memorandum to Dr. Lee.

4. The Search Warrant Affidavit the DOJ Submitted to Search Dr. Lee's House Contains Additional Proof that Dr. Lee was Targeted Because He is "Ethnic Chinese."

The once-sealed affidavit in support of a search warrant to search Dr. Lee's home confirms that the government considered Dr. Lee's race to be evidence of possible espionage.7

7 This affidavit was written after internal FBI memoranda apparently concluded that Dr. Lee did not pass W-88 information to the PRC. The government has refused to turn over to the defense the FBI 302's dated November 29, 1998, January 22, 1999, February 26, 1999, and September 3, 1999, memoranda which, according to multiple press reports, directly contradicted the sworn declaration provided to the United States Magistrate Judge in New Mexico.

To support the now fully discredited allegations that Dr. Lee may have committed espionage, the affidavit asserts that FBI counterintelligence experts were relying in part on the fact that Dr. Lee was "ethnic Chinese." As the affidavit states, the "supervisory Special Agent of the FBI who specializes in counterintelligence investigations regarding the People's Republic of China" who"has supervised from FBI headquarters PRC counterintelligence investigations for the past five years" explained to the investigative agent "that PRC intelligence operations virtually always target overseas ethnic Chinese." The affidavit leaves no doubt that improper racial profiling, which started with Mr. Trulock, continued to be a substantial basis for the targeting of Dr. Lee in 1999.

5. Another LANL Employee Has Also Confirmed that the DOE Engaged in Racial Profiling.

Dr. Lee has uncovered additional corroboration that DOE's counterintelligence staff used racial profiling. In an e-mail to his fellow employees, Michael Soukup wrote that the DOE pressured him to investigate Asian-Americans because of their ethnicity when he assisted the DOE in counterintelligence investigations. See Letter of Michael Soukup, dated April 12, 2000, and published in the Los Alamos National Laboratory Online Forum, http://www.lanl.gov/orgs/pa/News/forum/letter2000-080.html.

Specifically, Soukup states:

While I was assigned to NIS-9 (until mid-1998), I supported, on a part-time basis, the counterintelligence investigation into alleged Chinese espionage at Los Alamos. Based upon my experience and observations, I conclude that racial profiling of Asian-Americans as a result of the investigation indeed took place, but principally at the DOE. Further, DOE personnel directed some Los Alamos National Laboratory staff to undertake research that profiled Asians and Asian-Americans at the Laboratory. I do not believe any of us were happy with this.

Soukup's statement buttresses Vrooman's declaration and provides an additional basis to believe that discovery regarding selective prosecution could lead to additional proof of improper racial profiling.

B. Evidence that Similarly Situated Individuals Have Never Been Prosecuted Under the Atomic Energv Act or § 793(c) and (e)

It is clear that race played an impermissible role for selecting Dr. Lee for prosecution under the Atomic Energy Act and the Espionage Act, 18 U. S.C. § 793. During the past fifty-two years, no American has ever been prosecuted under the Atomic Energy Act. FBI Special Agent Messemer conceded this fact at the December 13 bail hearing. See fn.1, supra. Evidence that similarly situated individuals have not been prosecuted can be found in both statements of DOJ officials concerning the practices of the DOJ in declining to prosecute similar or more egregious cases as well as specific examples of similarly situated individuals that the DOJ declined to charge.

Not only have there been no other prosecutions under the Atomic Energy Act, the DOJ had a policy of not bringing cases such as this under § 793 as well. As a former DOJ official told the Washington Post a few months ago, for twenty years the Department had followed a practice of not prosecuting civilians where no evidence existed that the classified materials in question had been transferred to a third party. According to this official, "[n]o matter how gross the violation, there would be no prosecution if the agency took strong administrative action." See Walter Pincus and Vernon Loeb, U.S. Inconsistent When Secrets Are Loose, Washington Post, March 18, 2000, at Al, attached as Exhibit G. Here, not only had Dr. Lee's files not been classified at the time he allegedly mishandled them, but also the indictment does not allege that the files in question were provided to any third party and the government conceded at the detention hearing that it has no such evidence. Dr. Lee was terminated -- obviously "strong administrative action" -- and under DOJ practice there should have been "no prosecution."

Further evidence that DOJ has never prosecuted similarly situated individuals can be found in the Department's apparent blanket refusal to bring criminal charges where State Department officials have mishandled classified materials. In 1999 alone, the State Department investigated thirty-eight incidents of mishandling classified information. See id. A classified analysis by the State Department likewise detailed numerous similar breaches, in a September 1999 report written by Jacqueline Williams-Bridger. According to press reports, this classified document, which the government has not provided to the defense, details hundreds of breaches of appropriate procedures for handling classified information, including the intentional transferring of secret information, which did not result in criminal prosecution. See, e.g., S. Rep. No. 106-279, at 10-15 (2000); Vernon Loeb & Steven Mufson, State Dept. Security Has Been Lax, Audit Finds: Many Offices Not Swept For Listening Devices, Washington Post, Jan. 17, 2000, at Al, attached as Exhibit H. It is critical to note that these individuals who were not prosecuted included State Department employees who intentionally transferred secret or top secret information to unauthorized persons. By contrast, Dr. Lee did not provide information to any unauthorized person, and the material at issue had not been classified at the time of his alleged actions.

Employees of the DOE and the national weapons laboratories have a long history of unprosecuted mishandling of classified information. According to the 1999 Report by the President's Foreign Intelligence Advisory Board entitled Science at Its Best, Security at Its Worst, attached as Exhibit I, designs of classified weapons had been left unsecured on library shelves at Los Alamos, and personnel were "found to be sending classified information to outsiders via an unclassified email system," yet no prosecutions resulted. This report also outlined dozens of examples of systemic mishandling of classified information by laboratory employees. See id. at 3-6, 15, 22. During the entire time of LANL's woeful security record, nota single employee faced charges under the Atomic Energy Act or § 793. Based on discovery Dr. Lee has received to date, the DOE investigated dozens of cases of mishandling of classified information at LANL, without a single prosecution. See Pincus, U.S. Inconsistent When Secrets are Loose, Ex. G at 4.

In addition to the evidence of the government's practice of not prosecuting violations of the Atomic Energy Act and § 793(c) and (e), Dr. Lee has uncovered several individuals who have not been investigated criminally, much less indicted.

* John Deutch: During his tenure as director of the CIA, former Director John Deutch used his unsecured personal computer at home to create and access top secret files even though he had a secure computer in his home. See S. Rep. No. 106-279, at 9 (2000); Bob Drogin, CIA Reprimands 6 for Actions in Deutch Investigation, L.A. Times, May 26, 2000, at A14, attached as Exhibit J.

* Kathleen Strang: According to published reports Arms Control and Disarmament Agency employee, Kathleen Strang "improperly removed. . . [classified] documents from a storage vault at the State Department, repeatedly left them overnight in an open safe accessible to dozens of people without security clearances" and then ignored several warnings to protect these documents. These classified documents reportedly included highly sensitive details of how the U.S. intelligence community monitors nuclear tests and weapons development. These reports state that Ms. Strang gave other sensitive information to the Japanese. Apparently, one could draw a complete picture of how U.S. intelligence monitors nuclear tests and weapons development from these documents. See Bob Woodward, ACDA Aide Faulted on Security, Washington Post, Nov. 4, 1986, at Al, attached as Exhibit K.

* Anonymous sources of Bill Gertz: A government employee or government employees unknown to Dr. Lee provided Bill Gertz with classified material from the National Security Agency published in the May 1999 book Betrayal, which includes fifty-nine pages of secret documents (including those covered by the Atomic Energy Act) relating to Chinese missile technology. See Bill Gertz, Betrayal: How the Clinton Administration Undermined American Security (1999).

* Fritz Ermarth: CIA employee Fritz Ermarth reportedly transferred secret and top secret files between his home computer and his work computer, resulting in a virus entering the CIA's classified network. See Pincus, U.S. Inconsistent When Secrets Are Loose, at Al, Ex. G.

* LANL Scientist: A LANL nuclear scientist allegedly downloaded the "Green Book" containing secret restricted data regarding U.S. nuclear strategy and the vulnerabilities of U.S. nuclear weapon systems onto an unclassified LANL computer with Internet access. See id.8

8 Dr. Stephen Younger, whose testimony that the nuclear balance of power would be adversely affected if Dr. Lee were released is partly responsible for Dr. Lee being held without bond, was involved in evaluating the seriousness of this security violation and deferring the appropriate punishment of the LANL scientist referred to above.

* M.K: A CIA agent identified only as M.K. sold twenty-five CIA computers to the public without erasing top-secret information on their hard drives. The CIA learned of the breach when an individual who purchased a computer called to say that the hard drive of his computer contained files that he didn't think should be there. See Vernon Loeb, CIA Employees Sue Agency for Unfettered Right to Legal Help, Washington Post, May 14, 1999, at A31, attached as Exhibit L.

* James R. Conrad: In 1987 the government declined to prosecute defense contractor James R. Conrad, who Department of Defense investigators accused of removing classified documents from the Pentagon. Conrad earlier had transmitted classified information including missile launch commands and wartime bomber routes over unsecured computer lines from his computer in San Diego to Fairfax County, Virginia. See Secrets Breach Reported, The Dallas Morning News, June 12, 1987, at A8, attached as Exhibit M.

* Unnamed defense contractor: The DOJ investigated an employee of a defense contractor in Southern California for transferring hundreds of secret documents and storing them in his garage. DOJ lawyers apparently overruled the investigative agencies and declined to prosecute this employee.

The defense has been unable to locate a single reported decision dating back to the 1950s in which a civilian was prosecuted under § 793(c) or (e) without any allegation that he provided classified material to an unauthorized person. Unlike the defendants in the cases that have been brought, 9 the government has not even alleged that Dr. Lee transferred national-defense information to any unauthorized recipient.

9See e.g., Coplon v. United States, 191 F. 2d 749, 750-53 (D.C. Cir. 1951) (defendant was arrested while attempting to deliver data slips of F.B.I. reports to a Russian agent); Scarbeck v. United States, 317 F.2d 546, 548 (D.C. Cir. 1962) (defendant communicated classified information to representatives of the Polish Government); United States v. Dedeyan, 584 F.2d 36, 38 (4th Cir. 1978) (defendant showed a cousin who was working with a Soviet agent a classified study); United States v. Kampiles, 609 F.2d 1233, 1235 (7th Cir. 1979) (defendant was charged with willfully delivering a national-defense document to unauthorized persons); United States v. Truong Dinh Hun, 629 F.2d 908, 911 (4th Cir. 1980) (defendant arranged to have someone deliver classified papers to Vietnamese agents); United States v. Harper, 729 F.2d 1216, 1217 (9th Cir. 1984) (defendant was charged with obtaining and selling national-defense information to Polish agents; United States v. Smith, 780 F.2d 1102, 1103 (4th Cir. 1985) (defendant sold classified information to a Soviet agent); United States v. Walker, 796 F.2d 43, 45 (4th Cir. 1986) (defendant was arrested while attempting to deliver classified defense information to a Soviet agent); United States v. Zettl, 835 F.2d 1059, 1060 (4th Cir. 1987) (defendant delivered Navy program element descriptions to an unauthorized person); United States v. Morison, 844 F.2d 1057, 1060 (4th Cir.1988) (defendant sent secret Naval satellite photographs to a British publisher for publication); United States v. Whitworth, 856 F.2d 1268 (9th Cir. 1988) (defendant was charged with obtaining and delivering national-defense information to a foreign government); United States v. Miller, 874 F.2d 1255, 1258 (9th Cir. 1989) (defendant copied and delivered national-defense information to the Soviet government).

Even the defendants in reported military court cases, tried under the more stringent provisions of the Uniform Code of Military Justice, were tried when the evidence showed that they actually transferred materials or allowed an unauthorized third-party to physically obtain classified information.10

10 See, e.g., United States v. Roller, 42 M.J. 264, 265 (C.M.A. 1995) (defendant left classified documents in his garage, which allowed a moving company employee to obtain access to the documents); United States v. Baba, 21 M.J. 76, 77 (C.M.A. 1985) (defendant was charged with willfully delivering or cause to deliver three documents to unauthorized persons); United States v. Gonzalez, 16 M.J. 428, (C.M.A. 1983) (defendant left two classified messages in an unauthorized recipient's desk drawer); United States v. Grunden, 25 C.M.A. 327, 2 M.J. 116,119 (C.M.A. 1977) (defendant attempted to communicate national-defense information); United States v. Anzalone, 40 M.J. 658, 813 (N-M.C.M.R. 1994) (defendant disclosed and mailed information about military forces to unauthorized persons); United States v. Schoof, 34 M.J. 811, 813 (N-M.C.M.R. 1992) (defendant attempted to deliver microfiches to a foreign power); United States v. Lonetree, 31 M.J. 849, 852 (N-M.C.M.R. 1990) (defendant identified the names of United States intelligence agents to Soviet agents and provided the floor plans and office assignments of personnel in United States Embassies in Moscow and Vienna). But see United States v. Chattin, 33M.J. 802, 803 (N-M.C.M.R. 1991) (Defendant pleaded guilty to removing classified documents and willfully retaining it. Chattin was sentenced to confinement for four years, reduction to pay grade E-1,forfeiture of all pay and allowances, and a bad conduct discharge. The convening authority suspended all confinement in excess of three years for twelve months).

Similarly situated individuals who have not transferred any national-defense information have not been prosecuted under the Espionage Act. 11 The government has never alleged that Dr. Lee transferred the materials to anyone, nor that he left them unprotected where they could be stumbled upon by anyone. In fact, the evidence presented by the government itself at the bail hearings in this case confirms that Dr. Lee password-protected any materials on which he worked.

11 Dr. Lee anticipates that the government will attempt to rely on United States v. Poulsen, 41 F.3d 1330,1333-35, (9th Cir. 1994) (defendant was charged with violating 18 U.S.C. § 793(e), in a second superseding indictment, for storing computer tapes of United States Air Force tasking orders in a rental storage unit). But Poulsen was not similarly situated to Dr. Lee because Poulsen allowed a third party to gain actual access to the tapes. Unauthorized third-party access constitutes transfer of the information. Poulsen stole the computer tapes from a previous employer and stored the tapes under a false name and address. Defendant then defaulted on the rental payments. The tapes were discovered by a third party, the rental-unit owner, while the rental-unit owner was evicting all contents from the unit due to defendant's seventy-one-day default.

C. Dr. Lee Meets Both Prongs of the Test Stated In Armstrong.

Dr. Lee indisputably meets both prongs of the Armstrong test, and must be granted discovery because he has submitted credible evidence that similarly-situated individuals have not been prosecuted as well as statements from government and law enforcement officials demonstrating improper motivations to prosecute Dr. Lee. Dr. Lee was selected from among more than a dozen identically situated individuals at LANL for criminal investigation in 1996 because he was "ethnic Chinese." This improper classification was employed for the next three years, and was explicitly reaffirmed in the April 9, 1999, search warrant application. The evidence of selective prosecution Dr. Lee has already uncovered far exceeds the Armstrong threshold.

Armstrong denied discovery to defendants who were charged with distributing crack cocaine in violation of 21 U.S.C. §§ 841 and 846. In Armstrong, the defense offered only one hearsay affidavit that in the year Armstrong was prosecuted, the twenty-three other § 841 cases handled by the Federal Public Defender in Los Angeles involved black defendants. See id. at 459. The defendants in Armstrong presented no evidence that the prosecution undertook any targeting based on race, see id., nor did the defendants make any showing that non-blacks had not been charged in other years or by one of the ninety-two other U.S. Attorney's Offices in 1991. In Armstrong, the government submitted proof that 3,500 defendants had been charged with violating § 841 in the previous three years and eleven non-blacks had been charged for distributing crack cocaine. Id. at 482 n.6.

Dr. Lee's compelling showing here stands in stark contrast to the anemic showing in Armstrong. First, this Court has direct evidence in the form of a sworn declaration and a videotaped statement from government agents who assisted in the criminal investigation of Dr.Lee, which establish that a racial profiling was used to target Dr. Lee. Second, in contrast to Armstrong, where the government proved that 3,500 men and women of all races had been charged under §§ 841 and 846 during a three-year period, Dr. Lee is the only person who has been charged under the Atomic Energy Act in the past fifty-two years. Third, Dr. Lee has provided this Court with examples of similarly situated non-Asians who have not been prosecuted under either the Atomic Energy Act or § 793. The defendants in Armstrong made no showing whatsoever that similarly situated non-blacks had not been prosecuted. Equally as compelling, Dr. Lee has provided this Court with evidence that the DOJ had a policy of not prosecuting individuals similarly situated to Dr. Lee. Additionally, no case has been brought under § 793 involving prosecution for information that had not been formally classified at the time of the defendant's conduct.

The evidence Dr. Lee has presented by far exceeds the threshold found sufficient to permit discovery in other cases decided under the Armstrong standard. For example, In United States v. Jones, 159 F.3d 969 (6th Cir. 1998), the Sixth Circuit overturned a District Court's decision and granted discovery under circumstances directly analogous to this case. In Jones police officers sent taunting letters to two black defendants, but not to a white defendant involved in the same conspiracy, and made a T-shirt with the black defendants' pictures, but not the white defendants. In Jones, the court found that the taunting letters and T-shirt had established a prima facie case of racial motivation on the part of the investigating officers, and had set forth "some evidence" of discriminatory effect, warranting discovery. The court found that although the defendant was unable to produce "prima facie evidence" of discriminatory effect, "some evidence" was enough when coupled with the evidence of discriminatory motivation. Id. at 977. The Jones analysis holds even greater force here, where key investigators have unequivocally stated that the DOE practiced racial profiling which led to Dr. Lee's indictment, and the lead counterintelligence official at DOE made racially-charged statements regarding the fitness of American citizens who are "ethnic Chinese" to work on nuclear weapons programs. Dr. Lee has presented more than "some evidence" of discriminatory effect. Unlike the defendant in Jones who could not show that others were not prosecuted, Dr. Lee has shown that no one else has ever been prosecuted under the Atomic Energy Act provisions at issue in this case, nor has anyone else been prosecuted under § 793 for mishandling information that had not been formally classified and that had not been furnished to any unauthorized person.

Similarly, in United States v. Tuitt, 1999 WL 791927 (D.Mass. 1999), the trial court ordered that the defendant be provided discovery under far less compelling circumstances. In Tuitt, the defendant's attorney compared four counties within the judicial district over a four-month period and found a statistically significant difference between the crack cocaine prosecutions brought in federal court and the crack cocaine prosecutions brought in state court. See id. at *4. Tuitt held that this showing was enough to meet the Armstrong standard where "Defendant is simply attempting to gain discovery so that he can more adequately determine whether a selective prosecution claim might indeed be viable." Id. at * 11. Again Dr. Lee far surpasses the threshold met by the Tuitt defendant. Rather than four months, Dr. Lee's attorneys examined reported cases covering fifty years, and rather than four counties, the search covered fifty states, without finding a single other reported case of prosecution under the Atomic Energy Act.

Similarly, in United States v. Glover, 43 F. Supp. 2d 1217 (D. Kan. 1999), the court granted discovery on a selective prosecution claim regarding imposition of the death penalty where the defense provided far less evidence on either prong of the Armstrong test. In Glover, the defendant presented some statistical evidence that over a three-and-one-half-year period, "the Attorney General authorized a greater number of black defendants for death-penalty prosecution than white defendants." Id. at 1234. The court found that this evidence, coupled with evidence that two other similarly-situated defendants were not prosecuted in federal court, was enough to permit discovery. See id. Rather than the mere statistical inference found sufficient in Glover, Dr. Lee has presented credible evidence in the form of specific statements made by investigators in this case that race was a factor in selecting Dr. Lee for prosecution. Moreover, he has presented some evidence of not two, but several individuals mishandling classified information without facing criminal charges of any kind, much less a potential life sentence.

CONCLUSION

Dr. Lee has presented compelling evidence the government singled him out for prosecution because of his race and refused to prosecute similarly situated individuals. Dr. Lee is entitled to the information the government is withholding from him -- information that will prove this is an egregious example of selective prosecution in violation of Dr. Lee's rights under the United States Constitution.

This Court should grant this motion and order the government to provide Dr. Lee the requested discovery materials, as set forth in Exhibit A.

Respectfully submitted,

O'MELVENY & MYERS LLP

By
Mark Holscher
Richard E. Myers II

400 South Hope Street
Los Angeles, CA 90071
Telephone: (213) 430-6000
Fax: (213) 430-6407

FREEDMAN BOYD DANIELS HOLLANDER
GOLDBERG & CLINE P.A.

By:
Nancy Hollander
John D. Cline

20 First Plaza, Suite 700
Albuquerque, NM 87102
Telephone: (505) 842-9960
Fax: (505) 842-0761

Attorneys for Defendant Dr. Wen Ho Lee