Suboh v. Borgioli

• Citation: 298 F.Supp.2d 192
• Decision Date: 07 January 2004
• Docket Number: No. CIV.A.00-10396-WGY.,CIV.A.00-10396-WGY.
• Parties: Mouna Kandy SUBOH, Individually, As Administratrix Of The Estate Of Ishaq Suboh, And As Next Friend Of Her Minor Daughter, Sofia Kandy, Plaintiffs, v. Carl BORGIOLI, Defendant.
• Court: U.S. District Court — District of Massachusetts

298 F.Supp.2d 192

Mouna Kandy SUBOH, Individually, As Administratrix Of The Estate Of Ishaq Suboh, And As Next Friend Of Her Minor Daughter, Sofia Kandy, Plaintiffs, v. Carl BORGIOLI, Defendant.

No. CIV.A.00-10396-WGY.

United States District Court, D. Massachusetts.

January 7, 2004.

COPYRIGHT MATERIAL OMITTED

Michael J. Akerson, Edward P. Reardon, P.C., Worcester, MA, Denise DiCarlo, City Solicitor's Office, Revere, MA, Austin M. Joyce, Edward P. Reardon, P.C., Worcester, MA, for Defendants.

Laurie A. Frankl, Rodgers, Powers & Schwartz LLP, Boston, MA, James R. Knudsen, Whittenberg Knudsen, LLP, Lynnfield, MA, Harvey A. Schwartz, Rodgers, Powers & Schwartz LLP, Boston, MA, for Plaintiffs.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

I. SOME PRELIMINARY THOUGHTS

There is a derisive ditty going around the courthouse as this opinion is being written. Set to the music of "Happy Together" by The Turtles, in relevant part it goes:

Imagine me as God. I do.

I think about it day and night.

It feels so right

To be a federal district judge and know that I'm

Appointed forever.

I was anointed by the President,

And revelation told him I was heavensent.

And Congress in their wisdom granted their consent.

Appointed forever.

I'm a federal judge

And I'm smarter than you

For all my life.

I can do whatever I want to do

For all my life.

* * * * * *

Even at the very worst,

If you take me up to get reversed,

You'll have to get the circuit court to hear you first,

And that takes forever.

Bar & Grill Singers, Appointed Forever, on Licensed To Grill (1997), lyrics available at http:// volokh.blogspot.com /2003_04_13_volokh_archive.html# 2001549 16 (last visited January 6, 2003).¹

The reality is more prosaic, yet far more enduring.

[L]awyers who become judges ... seek to operate as if bound by rules not because they will be punished if they do not but because they believe it is the right thing for a judge to do. They begin to think about cases not from their intuition about the just outcome but from the dictates of authoritative sources of law. The question that judges ask is ... "What is the law, and what does it mean for this case?" Those may be difficult questions in themselves, but they significantly narrow the ambit of admissible considerations.

... [T]he orientation of judges to applying law does not do away with the problems inherent in that task. The process of interpreting legal authority and of applying it to new cases often requires highly contextual judgments respecting the nature of the principles embodied in governing law and the circumstances relevant to the application of a given principle. Legislators and constitution framers cannot foresee all relevant circumstances, nor can they specify with clarity all applications of the principles they adopt; they cannot, in other words, always fashion meaningful rules that fully give effect to the law framers' general design. Indeed, it would be wasteful to try.

Ronald A. Cass, The Rule of Law in America 69, 72-73 (2001) (criticizing the notion, advanced by legal scholars like Duncan Kennedy, that the question judges typically ask when confronted with a case for decision is: "How do I describe the law to make it fit my preference respecting the outcome of this case?").

Of which genre is this case? Here, despite case-specific guidance from the court of appeals, I botched the instructions to the jury. Neither side objected and, as it turns out, the error made no difference to the jury whatsoever. I know this latter fact, however, from sources I am duty-bound not to consider. What to do?

II. INTRODUCTION

Following an adverse verdict on their civil rights claim, the plaintiffs—Mouna Kandy Suboh ("Suboh") suing individually, as administratrix of the estate of Ishaq Suboh, and as next friend of her minor daughter Sofia Kandy ("Sofia")—have moved for judgment as matter of law, or alternatively, for a new trial on grounds that the verdict was against the weight of the evidence and that the jury instructions were erroneous. The Court held a hearing on the plaintiffs' motion on April 8, 2003. At that hearing, the Court denied the plaintiffs' motion for judgment as matter of law, but took under advisement the issue of error in the jury instructions. 4/8/03 Tr. at 2, 11. More specifically, the Court acknowledged that the jury instructions were indeed erroneous, but noted— with the acknowledgment of the plaintiffs' counsel—that no timely objection was made to those instructions. See id. at 2-3, 6. Thus, the question is now whether the error in the jury instructions rises to the level of plain error warranting a new trial. Id. at 3, 11. The Court further ruled that if it did conclude that a new trial was warranted, qualified immunity would not protect the defendant, Carl Borgioli ("Borgioli"). Id. at 10-11.

Upon reflection, the Court has concluded that there was plain error in the jury instructions, and that a new trial is therefore warranted. The following discussion serves (1) to identify the nature of the error and to explain why, in this Court's view, it qualifies as plain error; and (2) to discuss the framework within which the new trial will be conducted, with particular reference to the Court's ruling that Borgioli is not entitled to qualified immunity.

III. DISCUSSION

A. Error in the Jury Instructions

1. Identification of the Error

In assessing the error in the Court's instructions to the jury, it is helpful to begin with a brief review of the nature of Suboh's complaint and of the applicable law. The factual background of this case is discussed in great detail in Suboh v. District Attorney's Office of the Suffolk District, 298 F.3d 81 (1st Cir.2002). As the First Circuit explained in that opinion, Suboh's complaint most directly implicates the procedural due process rights accorded to parents under the Due Process Clause of the Fourteenth Amendment. Suboh, 298 F.3d at 91. Reduced to its essence, Suboh's claim is that Officer Borgioli of the Revere Police Department violated her procedural due process rights when he separated her from her biological daughter, Sofia, and placed Sofia in the custody of Suboh's parents, Mustapha and Rahima Kandy ("the Kandys"), without ensuring that Suboh would receive a pre-separation or post-separation hearing, despite Suboh's statements to him that she was Sofia's biological mother and wanted custody. See id. at 87-88, 91. As the Suboh court put it, "[w]hat is at issue here is the right of a parent to procedural due process protections before a governmental official resolves the disputed issue of custody of a child, when there are known competing claims to custody." Id. at 91.

The case law sets out the process that is due when a parent is being deprived of custody of her child: a pre-removal hearing, or, in emergency circumstances, a post-removal hearing instead. As the Suboh court stated:

Due process protects a parent's rights even when a state temporarily removes a child before obtaining a court order, as the state may place a child in temporary custody only when it has evidence giving rise to a suspicion that the child has been abused or is in imminent danger. Moreover, due process requires that some sort of process be provided promptly after an emergency removal. [I]n those extra-ordinary situations where deprivation of a protected interest is permitted without prior process, the constitutional requirements of notice and an opportunity to be heard are not eliminated, but merely postponed.

Suboh, 298 F.3d at 92 (alteration in original) (quoting Weller v. Dept. of Social Servs., 901 F.2d 387, 393 (4th Cir.1990) (quoting Hooks v. Hooks, 771 F.2d 935, 942 (6th Cir.1985) (quoting Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir.1977)))) (internal quotation marks omitted).

Moreover, in cases where such an emergency removal occurs, courts have held that the burden is on the government to initiate a post-deprivation hearing to provide the parent with the process that is due, and to take the necessary steps to ensure that such a hearing will be available. See Weller, 901 F.2d at 395-96 ("The burden of initiating judicial review must be shouldered by the government.... Proof that defendants deprived [the plaintiff] of the custody of [his son] without a hearing—either prior to the transfer of custody or promptly after an emergency transfer of custody—would show a due process violation, for which appropriate relief may be granted."); Hooks, 771 F.2d at 942 (6th Cir.1985) ("Here the children were turned over to [the defendant father] by the Tennessee defendants allegedly with the knowledge that they would immediately be taken to Texas and thus out of the jurisdiction of Tennessee, effectively eliminating the opportunity for [the plaintiff mother] to receive a post-deprivation hearing. The Tennessee defendants do not contend that they made any effort to request or direct [the defendant father] to remain in Tennessee until a hearing could be held.") (emphasis added); Duchesne, 566 F.2d at 828 ("In this situation, the state cannot constitutionally `sit back and wait' for the parent to institute judicial proceedings. It cannot ... [adopt] for itself an attitude of `if you don't like it, sue.'" (alteration in original) (internal citations and quotation marks omitted)).

In other words, the Fourteenth Amendment's Due Process Clause provides a blanket protection against the loss of parental custody without some sort of a hearing. If a parent receives no review whatsoever, her procedural due process rights have, by definition, been violated. Thus, the inquiry is different from that implicated by substantive due process cases involving, say, excessive force, where if the force is deemed to have been reasonable, no violation of the Fourth Amendment (as incorporated against the States through the Due Process Clause of the Fourteenth Amendment) has occurred. The Fourth Amendment does not protect against the use of any force; it...