Suing the DA for Discriminatory Pattern of Non-Prosecution

The Supreme Court decided long ago that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). But can a victim of crime sue a district attorney on the ground that a long pattern of discriminatory nonprosecution was a contributing cause of the crime? An amicus brief by former Circuit Judge Alex Kozinski joined by former Attorney General and District Judge Michael Mukasey and former District Judge F.A. Little asks the Fifth Circuit to address that question en banc. Beneath it lies a tangled tale as thick as the undergrowth in Louisiana swamp country.

Alison Frankel has this story for Reuters, describing how Judge Kozinski became involved in the case through a former law clerk who did time in a Louisiana prison. The plaintiff in the case alleges that she was raped repeatedly by the assistant warden at Angola State Prison.

The claim is different from the claim in the Linda R.S. case, says the judges’ amicus brief.  The primary claim is that the pattern of nonprosecution before the crime gave the alleged perpetrator a green light, a causal factor in the crime. “Victims of sexual assault suffer a redressable injury-in-fact when a jurisdiction’s persistent and discriminatory policy of underenforcing rape laws causes their rape.” The District Attorney’s after-the-fact decisions in the case of the alleged rapist are also actionable in this case, say the judges. Victims “also suffer redressable injuries-in-fact when a jurisdiction’s discriminatory non-prosecution of their specific attacker denies them access to crime victim resources, exacerbates mental anguish, and causes reasonable fear of re-victimization.”

The panel opinion does not seem to appreciate the distinction, regarding the case as legally a straightforward application of the Linda R.S. rule, although the allegations are appalling, if true. There might be a good reason for that, though. Counsel for plaintiff/appellee did not file a brief.  In footnote two of the petition for rehearing en banc, he says, “Counsel for Plaintiff must assume the lion’s share of responsibility for these oversights. Because of medical issues—which provide no excuse, only explanation—he failed to file a brief before the panel, despite multiple extensions.” Further details are in the Reuters article.

The amici criticize the panel for making a precedential decision without briefing on one side:

Despite the lack of adversarial testing and a truncated deliberative process, the panel published an opinion eliminating an entire class of law enforcement-related equal protection claims, just as our national dialogue over discriminatory law enforcement has begun. If this case had been pro se, the Court surely would have appointed counsel before eliminating these claims in a way that can never be fixed by a legislature. Yet without the benefit of an advocate on the other side, it eliminated them forever and all time, or at least so long as Article III stands.

So why is this a petition for rehearing en banc only, without an alternative request for panel rehearing? Perhaps this is a Fifth Circuit practice issue, but that seems very odd to me. If the three-judge panel did not really understand the issues because of a default by an incapacitated lawyer, should they not have first crack at correcting their own error, or at least providing a more complete explanation of their reasoning with the issues fully briefed?

The underlying issues are difficult, and frankly I am not sure what rule can be crafted to deal with this situation. “Hard cases make bad law” is a well-known and long-standing truism. A rule that would provide relief for the plaintiff in this case would need some very clear limits to prevent it from spreading into a weapon for tying down prosecutors’ offices with a web of civil suits. That result would not be in the interests of victims of crime overall. This requires some deep thought.