Posted on 10/16/2006 7:01:31 PM PDT by Physicist
Cuccinelli & Day, PLLC
September 24, 2006
Office of the Clerk
United States Court of Appeals for the Third Circuit
21400 U.S. Courthouse
601 Market St.
Philadelphia, PA 19106
Re: Adams v. Teamsters Local 115 (No. 03-3680)
Dear Clerk:
In light of the significant period of time that has elapsed since Appellants’ Reply Brief was filed with the Court on December 3, 2004, and the scheduled hearing of this case by the Court on October 18, 2006, Appellants wish to provide the Court with a brief update of legal authority pertinent to the issues presented in the case.
Appellees have repeatedly argued that then-Mayor (now Governor) Rendell cannot be held liable under § 1983 for violating the Adamses’ First Amendment rights because he was not present at the protest, and did not specifically order their beatings. That, of course, is not the standard for § 1983 liability. As the Tenth Circuit recently affirmed in Bliss v. Franco, “Anyone who causes any citizen to be subjected to a constitutional deprivation is also liable [even if he did not personally participate in or supervise the deprivation by others]. The requisite causal connection is satisfied if the defendants set in motion a series of events that the defendants knew or reasonably should have known would cause others to deprive the plaintiff of his constitutional rights.” 446 F.3d 1036, 1046 (2006) (internal citations and punctuation omitted).
Well aware of their propensity for violence against those with whom they disagreed, Rendell personally invited Local 115 Teamsters to attend the Clinton rally, and requested that they drown out anti-Clinton protestors. The Teamsters then set about doing precisely what any reasonable person would expect them to do: engaging in violence and intimidation against the protestors, including the Adamses. Rendell’s conceded behavior in recruiting the Teamsters plainly makes out a § 1983 violation.
In its summary judgment order holding the evidence insufficient to find Rendell liable for conspiracy under § 1983, the District Court opined that Woodring’s testimony concerning the post-rally conversation between Rendell and Morris—in which Rendell consoled Morris for the negative publicity, assured him that the Teamsters would suffer no consequence for beating the Adamses, and suggested that the Teamsters file charges against the Adamses—was legally irrelevant to the conspiracy allegation. JAI at 59 (S.J.Op. at 16) (the facts of Woodring’s conversation “do not evidence the object of the conspiracy which plaintiffs allege; namely, that the union would threaten or assault anti-Clinton protestors at the rally”).
As set forth at pp. 30-32 of Appellants Brief and pp. 25-28 of their Reply, the District Court’s ruling concerning the evidentiary value of Woodring’s testimony is directly contradicted by the law of this Circuit, as set forth in United States v. Smith, 294 F.3d 473, 478-79 (2002) (“we find these acts of concealment to be relevant to a finding of conspiracy;” “it is intuitive that concerted actions to cover up [the unlawful behavior] . . . have a tendency to suggest that the [unlawful actions] were taken as part of an agreement, as opposed to having been random, uncoordinated acts . . . the District Court erred by disregarding this evidence”).
Smith’s rule concerning the probative value of concealment in demonstrating the existence of an unlawful conspiracy was recently reaffirmed by this Court in United States v. Brodie, 403 F.3d 123 (2005)1. Evaluating the alleged conspiracy under the well-established rule that the evidence must be viewed as a whole, not in isolation, id. at 150, 158, the Brodie Court held that “a rational jury . . . could legitimately consider the relationship between [the parties involved in the alleged wrongdoing] in drawing reasonable inferences about the Defendant’s knowledge and intent.” With respect to the inferences to be drawn from disputed conversations between a defendant and other individuals, the Court held that, “While one does not know exactly what the Defendant said to [the other individual], a rational jury could reasonably infer the content of that statement based on the reaction of both men. A rational jury viewing the evidence as a whole could also draw a reasonable adverse inference as to the Defendant’s motive in speaking to [the other individual]. Such inferences are not merely speculative, but have a logical and convincing connection.” Id. at 154 (emphasis in original). So too here, a jury can reasonably infer the accuracy of Woodring’s rendition of the telephone conversation between Rendell and Morris—and hence Rendell’s conspiratorial motive—based on their subsequent behavior, e.g., Rendell’s actions via his subordinates in the police department to assure Morris and their failure to investigate him or promptly arrest the Teamsters, and Morris’s initiation of the false prosecution of Don Adams (per Rendell’s suggestion) and Morris’s expressed belief (to Police Sgt. Motto and in Local 115 records) that he had been assured that the Teamsters would be left alone. See Appellants’ Br. at 16-22.
Particularly apposite to the instant case is Brodie’s holding that a phone call by a defendant subsequent to the alleged conspiracy that could reasonably be viewed as an attempt to conceal the conspiracy is itself highly probative evidence of the conspiracy’s existence. Id. at 157. “The mere fact” that the defendant chose to contact someone involved in the illegal conduct after the fact when an investigation seemed likely “is itself important.” Id. The Court held that, “an inference of concealment [from such a phone call] is reasonable and further conclude that a rational jury viewing the evidence as a whole could further infer, as the impetus [for the phone call], that the Defendant knew of the [original unlawful conspiracy at the time it was made].”
Contradicting the view taken by the District Court in this case that the Woodring evidence might be relevant only to a conspiracy occurring subsequent to the beatings and not to the original conspiracy to inhibit the protestors’ exercise of their First Amendment right, see JAI at 59 (S.J.Op. at 16), the Brodie Court held that, “It is just as reasonable (if not more so) to infer that the Defendant was seeking to conceal illegal activity . . . of which he knew at the time [it was conducted] than it is to conclude he was seeking to conceal acts which he now understood to be illegal. . . . Moreover, a rational jury viewing the evidence as a whole could certainly decline to interpret the Defendant’s advice to [the recipient of the phone call] as benign [as Rendell claims in his testimony], and instead view it as another instance of the Defendant attempting to conceal [his original unlawful behavior].” 403 F.3d at 157. Hence, Woodring’s testimony concerning the conversation between Rendell and Morris is not only admissible, but is strong evidence from which a reasonable jury could infer that the two men had a pre-existing understanding to violate the First Amendment rights of the protestors. See Monteiro v. City of Elizabeth, 436 F.3d 397, 404-05 (3d Cir. 2006) (holding that where there is competing evidence as to whether a public official’s actions were motivated by a desire to suppress a plaintiff’s viewpoint, the question must be submitted to a jury).
Finally, Appellants wish to bring to the Court’s attention its recent decision in Farber v. City of Patterson, which holds that § 1985(3) “does not provide a cause of action for individuals allegedly injured by conspiracies motivated by discriminatory animus directed toward their political affiliation.” 440 F.3d 131, 143 (2006). While Appellants believe that the Court’s construction of the statute is erroneous and in conflict with its prior holding in Richardson v. Miller, 446 F.2d 1247 (1971), the Farber decision is binding on this panel and may be overridden only by an en banc decision of this Court or by the Supreme Court. Accordingly, Appellants are precluded from pressing before this panel the question of the proper interpretation of § 1985(3), which is the second of the issues they have appealed, and is found at pp. 39-51 of their Brief and pp. 29-35 of their Reply.
Appellants thank the Court for its attention to these matters.
Sincerely,
Earl N. “Trey” Mayfield, III, Esq.
Counsel for Appellants
Cc. Thomas H. Kohn, Esq.
Karen A. Brancheau, Esq.
Robert M. Baptiste, Esq.
Jane Lovitch Istvan, Esq.
1Both Smith and Brodie were criminal cases requiring proof beyond a reasonable doubt. The evidentiary burden in the instant civil conspiracy case is, of course, the easier-met preponderance of the evidence standard.
People have gone to great lengths (both in real life and on the net) to distract and scare us off this case and even off this board. Despite that, we are NOT going to QUIT or LEAVE.
I greatly appreciate your kind words- I am just "an old keyboard cowboy," you and Don were in the trenches. My highest regards to you both.
Please remove me from this PING list.
Thank you.
Thank you. : ) But being a keyboard cowboy is being in the trenches and is NEVER easy, don't sell yourself short.
I wasn't suggesting to quit.
I was suggesting that it never should have gone on so long.
With people pleading guilty in criminal cases I would expect civil cases to be easier.
Just wondering why they didn't seem to be easier.
When the civil end began, Ed Rendell was campaigning for governor, which slowed the deposition and judicial decision process. When the Third Circit court rendered it's decision (among others not in our favor) that our case was not a Federal matter, and should be remanded to State Court, we appealed. Because Midge Rendell, wife of Ed Rendell sits on the third circuit, we requested the Third Circuit recuse itself which they did. A hearing will now be conducted by the three judge panel tomorrow.
Thanks for the update!
Thanks for the ping. I was just thinking about this case yesterday (the Lynne Stewart sentencing reminded me another Lynne, the corrupt D.A. Lynne Abraham, which reminded me of this case)
March for Justice bump
Adams BUMP!
Yer damn right!
I remember this as if it was yesterday.
Some things need to be fought until the last blow is thrown.
Thanks for the post, Physicist
Everyone should also know it was Rendell who told Morris to have Don prosecuted by filing a private criminal complaint. We have it in an affadavit supplied by someone listening in on that phone conversation.
Rendell should have to go to a proctologist every day for a year. This dude is bad to the bone and the MSM refuses to believe it or even report it. Good luck, and do you plan on selling the Govenor's mansion when you own it?
Taxman Bravo Zulu to Don and Teri Adams (and to you, as well, Physicist) for keeping the faith in the justice system, despite all manner of adversity! Surely you will prevail!
This incident triggered the March for Justice on Oct 31, 1998, as has already been noted, and the March for Justice is the reason I (and, I suspect, many other FReepers) joined FRee Republic.
What a wonderful ride it has been since then! I very much regret that Don and Teri got assaulted for exercising their First Amendment rights, but the upside of that incident has paid enormous dividends.
We have made a difference, FReepers, and we must continue to do so!
Not to change the subject, but we have a chance to make a difference on November 7.
We must vote to keep the Democrats FRom assuming control of the US Government -- VOTE! and get your FRiends, neighbors and relatives to VOTE.
Nancy Pelosi, Speaker of the House, and Harry Reid, Majority Leader of the Senate should be all the inspiration you or any other conscientious American needs for motivation!
Voting Republican on November 7, irrespective of your disillusionment and differences (and, I must confess that I have more than my fair share of them!) with the Republican Party, should be a no-brainer once the horrific notion of Speaker Pelosi and Majority Leader Reid takes ahold of your thinking mechanism!
Democrats simply must not be allowed to gain control of the US Congress!
And, to keep that FRom happening, we must Get out the Republican Vote!
Now, get to it!
How did it go today?
BTTT
ping
The three judge panel consisted of a Reagan appointee, a Carter appointee and a Lyndon Johnson appointee. The hearing was about an hour in length. One judge was particularly adamant this case was a free speech and constitutional question.
Because this hearing is of a more delicate nature than the others, we do not feel at liberty ourselves to discuss it in greater detail and hope you all understand. Some media was present from the Philadelphia Inquirer and Bulletin. We hope they cover the matter and then we (or who ever sees it first) can post it on this thread, by itself or both.
Thank you and everyone so much for your interest and concern. Please keep us and this case in your prayers.
Physicist, when you have the time, I would be most appreciative if you could ping the list again. And thank you again, for your excellent work. As I was just saying to Don, I marvel at the fact that you are always so thorough, and never make a mistake.
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