Don and Teri Adams Background: Letter of Trey Mayfield to 3rd Circuit Court of Appeals

Office of the Clerk
United States Court of Appeals for the Third Circuit
21400 U.S. Courthouse
601 Market St.
Philadelphia, PA 19106

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.

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.

From the Philadelphia Inquirer today:

Panel weighs reviving lawsuit against Rendell

By Joseph A. Slobodzian

Inquirer Staff Writer

Gov. Rendell has not been Mayor Rendell since 1999, and legendary Teamsters boss John "Johnny" Morris has been dead four years.

But yesterday the content of two conversations between the men eight years ago continued to fuel a civil-rights lawsuit filed by Cheltenham siblings who contend that their free-speech rights were violated when they were beaten by Teamsters for heckling President Bill Clinton at an Oct. 2, 1998, appearance in Center City.

At issue before a three-judge panel of the U.S. Court of Appeals for the Third Circuit yesterday was whether a federal judge properly dismissed the suit by Don and Teri Adams.

Don Adams, 46, and sister Teri, 47, contend that members of Teamsters Local 115 ended their anti-Clinton demonstration with a beating because Rendell had earlier called Morris, asked for a union presence at Clinton's appearance, and said the Teamsters should "drown out" anti-Clinton protesters.

"How are we supposed to decide what drown out means?" asked Judge Louis F. Oberdorfer, of the U.S. District Court for the District of Columbia.

"It's not for anybody in this room to decide what drown out means," replied the Adamses' attorney, Earl N. Mayfield 3d.

Mayfield argued that question should have been left to a jury to decide, not to U.S. District Judge William H. Yohn Jr., who dismissed the Adamses' lawsuit in August 2003.

Jane E. Istvan, a deputy city solicitor representing Rendell and the Teamsters union in the appeal, argued that Yohn made the right decision because the Adamses had not found any corroborating evidence to show the phrase drown out was a tacit agreement between Rendell and Morris to use force to silence anti-Clinton protesters.

Istvan added that, in that same telephone call, Rendell also told Morris he wanted the crowd greeting Clinton to be "extremely peaceful and extremely positive."

The judges held the case for further review and gave no indication when they might rule.

All three judges were specially named to hear the appeal after Mayfield asked the Third Circuit's own judges to recuse themselves because Rendell's wife, Marjorie O. Rendell, is a Third Circuit judge appointed by Clinton in 1997.

Clinton, then embroiled in the scandal involving his sexual contacts with White House intern Monica Lewinsky, was to be in Philadelphia on Oct. 2, 1998, for a Democratic fund-raiser hosted by Rendell at City Hall.

According to court documents, Rendell wanted to buoy the president's spirits and called 15 to 20 groups urging them to line Clinton's motorcade route with a strong show of support.

Among those Rendell called was Morris, then 72, the fiery, strong-willed secretary-treasurer of Teamsters Local 115.

At Clinton's visit, Local 115 members wearing "Teamsters for Clinton" T-shirts were on hand at City Hall, as were the Adamses and sign-carrying anti-Clinton protesters who chanted "Impeach Clinton now."

At one point, according to court documents, Don Adams and Morris exchanged words. Morris then put his own hat on Adams' head, and several Teamsters rushed forward and began beating him.

Teri Adams, a probation officer, jumped in to try to protect her brother. Both were injured, Don Adams more seriously, with a concussion and broken ribs.

Later that day, court records say, Rendell called Morris again to "console" the union leader and assure him "nothing is going to happen to these guys," referring to Teamsters videotaped attacking the Adamses.

Mayfield argued that Rendell knew of Local 115's history of violent confrontations, and that "drown them out" was code for using force.

Mayfield said Rendell's second call to Morris was further proof, because the mayor was guaranteeing Morris his members would not be prosecuted.

Istvan, however, told the judges that the second conversation was "one of consolation, not concealment," and that it would be improper to infer a conspiracy by the men to violate the Adamses' free-speech rights.

In any event, Istvan noted, five Local 115 members were charged with the assault, pleaded guilty in Philadelphia Common Pleas Court, and were sentenced to probation.

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Contact staff writer Joseph A. Slobodzian at 215-854-2985 or jslobodzian@phillynews.com.

Two point: We were protesting not "heckling" President Bill Clinton.

And I didn't "jump in." Crawled to Don , after being knocked down by the Teamsters who surrounded us, would make the statement correct.

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