Hadaway, the Hard Logic – 28au18
re: Hadaway, Beck & Buxbaum v. Tooke
Case No. 2:18-cv-107-RWS … U.S. District Court, N. District of Georgia
— In summary form, points of legal analysis on the fate of this case…
compiled from email discussions with plaintiffs & attorneys involved, July-Aug.’18.
Here some items are re-phrased for clarity, but this is accurately what they saw:
These ideas were on the table but disregarded when the decision was finalized.
— s.c. addison, PCU•Free Assembly Project
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On July 2 the ‘Hadaway’ civil suit was filed… on July 3 it won a stipulated Injunction against unlawful roadblocks on the Rainbow Gathering in Chattahoochee National Forest… on July 7 the attorney met with 1 of the 3 plaintiffs, and it was suddenly decided to dismiss this case and take these issues elsewhere.
This made no sense, on many levels… over the next 7 weeks I pursued discussions with those involved, and provided seasoned legal analysis hoping to dissuade such a move. I started this case upon solid research & planning, intended to support it through its best course, and was appalled that it was being dumped.
I spoke further with Don Wirtshafter & John McCall about all this — the only ‘Rainbow’ attorneys who have plugged in over the years and won cases. They concurred that this case poses no imminent legal risk, and that it would be foolish to give up the high ground and blow the momentum it attained. We explored the issues… the prospect of scuttling this initiative bodes ill in the big picture:::
Below are the major points put forth to save it, still communicated in the present tense.
IN SUM — there were good reasons to sustain this case, and bad reasons to dump it.
[)(] There are sound premises and clear benefits in going forward with ‘Hadaway’:
a) ‘Hadaway’ as amended would add plaintiffs and argue a spectrum of harms they represent, more strongly anchored on 1st Amendment rights targeted by roadblocks and other means. It should also name the County & State cops as defendants, as in the precedent cases (MO’96, FL’98). It addresses the systematic nature and recurrence of police abuses on the Rainbow Gatherings, and reaches broader issues of Federal agency policy, beyond particular instances of harassment.
b) The draconian nature and extent of of police actions on the gathering in North Georgia piled up compelling civil rights harms that are appropriate to litigate in that jurisdiction. The wealth of contributed and collected evidence can make a strong factual record in this case — all usable ‘as-is’ in a well-supported summary judgment action in lieu of trial to decide the issues. That’s how ‘Park’ won in the Western District of Missouri… (I pulled in affidavits for the attorneys).
c) Possible damage claims in the future do not make ‘Hadaway’ superfluous; such cases are different in their conduct & scope. It’s advantageous to have a ‘pure’ case in Fed court for declaratory & injunctive relief (without damage$), in the lineage of the successful ‘Park’ & ‘Addison’ roadblock cases of 20 years ago — extending the good law they made, keeping the big legal principles in fuller focus. This live case would also support the Lumpkin Co. defenses and any related civil claims with tangible research and definitive constitutional positions.
d) The imminent opportunity for Interrogatories and Discovery under Court scrutiny is crucial::: it can get to the policy decisions behind police actions and the ‘targeted prosecutions’ they spawn, and finally implicate Incident Command as the malefactor; I have relevant FOIA materials as well. This will set up arguments on Emergency Law applied to Speech, and the “unlawful delegation of authority” from the FS to the Cops.
e) The real decision to go forward in Georgia (or not) is reserved: In civil cases, after Discovery plaintiffs can ride or amend the pleadings, push the case or drop it if needed. It is also procedurally possible to build the case on powerful Georgia facts, then transfer it to a new venue (MN-WI) for prospective relief before the next Gathering. By then it would be a ready-made ‘pre-enforcement challenge’.
And other things… … …to be discovered and assessed.
[)(] Conversely the rationales for dropping the case are absurd as law and strategy:::
The major fears going forward center on the conservative federal judges in Georgia and the 11th Circuit, and the spectre of sustaining a bad legal loss on these issues. These concerns are inflated and unfounded:
First as a matter of principle, civil rights & speech claims cannot be deterred by the reputation of the court; that is all the more reason to advance such claims and hold judges to the Law. Being in a tough jurisdiction is not cause to abandon ‘Rainbow Roadblock’ claims, and nothing new: “We WON on these issues in western Missouri & central Florida… it’s not like the next venue will be Haight-Ashbury. We will have to surmount the same Rule 12(b) & ‘qualified immunity’ challenges anywhere we go.” (sca, 7/20/18)
Then knowing about civil procedure, clearly there is no imminent threat to our legal position, and the long-term risks are distant and manageable. There is no obstacle to pushing the case through Discovery — which will augment the facts and may alter the claims, by design (see Par. “e” above). This can easily take a year ot more; the failsafe point on proceeding to trial is further down the pike, — plenty of time to refine the arguments, assess the prospects, and make new plans if necessary. There is absolutely no compelling reason to bail out now.
As our inside discussions on the ‘Hadaway’ case bogged down in August and a decision point loomed, on 8/24 Garrick Beck the Power-Trip Plaintiff finally responded and doubled-down on his original position:
“I am keen on wrapping up our case (Hadaway v ) and moving ahead with both defense for the arrested, and a civil suit (or suits) for injunctive relief and damages.”
[[ This sounded so cool, but so facile and full of holes… I had to answer::: ]]
As to what you are “keen on”, to clarify:
(1) Cases are “wrapped up” AFTER achieving something in some litigation proceedings — not before they are properly filed, served, and before the court… this is abandonment.
(2) By “moving ahead” do you mean you might actually DO something, or is this just the usual feelgood shmooey about work others are expected to move?
(3) Again, Atlanta atorneys “C” and “J” are only looking at Lumpkin County detainees, a small subset of the harassment victims at the gathering, who suffered particular kinds of harms. “C” has not yet identiied any defenses underway, nor disclosed the legal grounds applied or the terms of her representation.
(4) “J” is a civil attorney awaiting exonerated defendants for civil damage claims, 4-6 months away, still speculative. If they happen these cases would open a good new battle front, but will get narrow on particular cop actions & 4th Amendment harms, and tend to go to settlement on compensation, not trial on the issues.
(5) The positions of the 3 ‘Hadaway’ plaintiffs and other civil rights victims are probably outside the scope of any prospective Lumpkin detainee claims, based on the nature of damage suits — and the attorney has not suggested how they would be included. If this broader case for declaratory judgment goes down, most fact situations from the gathering are not represented and related arguments will not be made.
Not so keen after all.
[)(] Dumping ‘Hadaway’ – Tactical Tests
In legal practice, it is an aberration to trash a case right after you start it — especially a good civil rights case that wins a first-round TRO. There must be compelling legal grounds for such an extreme measure that sacrifices immediate claims, gives up a strong position and wastes all the effort that went into it:
• Imminent Risk of Losing Big [NG… this rumor has been dispelled.]
• No Benefit in Proceeding [NG… the opportunities have been explained.}
• There is a Better Plan… [ ** … this must be considered and assessed. ]:::
** The suggested alternative (or palliative) is to “take this little win” into some other court. The premise is problematic, given that it was not really an “Injunction” at all… of brief duration, with no hearing or court ruling on the merits, it was really a short-lived ‘consent decree’ with big loopholes. As such it is of little value as a new precedent outside the ‘Hadaway’ case itself.
Initially it was implied that these issues would go into another lawsuit for some Gathering down the road, maybe next year — all very vague and clueless of the difficulties of landing a new case in a new place in real-time. But later a different prospect was proffered —
“…I’d like to be part of a solid case by detained and otherwise harrassed plaintiffs
for injunctive relief and damages working with [“J”] at Spartacus.” (G.Beck, 8/28/18)
Woefully uninformed: First off, “J” is a civil attorney not affiliated with the Spartacus Defense Fund, which in turn has nothing to do with civil cases. Then as discussed above — Damage cases are different from Declaratory cases in their scope & conduct, generally evade big issues of law and focus on specific incidents & compensable harms, and get pushed to settlement to pay off the lawyer’s contingency. Any injunctive relief included is likely to be narrow in accord, and those “otherwise harrassed” (sic) have no legal standing in such claims.
“J” is waiting for Lumpkin County detainees cleared of charges — many months away, and then only a few might be found who are suitable and willing to proceed in civil claims. All of this is still just conjecture…there is no guarantee that such cases will even happen… and if “J” intended to represent other kinds of plaintiffs, he would have asked for referrals and found some by now. (See Par. 4-5 above.)
So, in Synopsis:
** A Better Plan has to be —
— Real and Do-Able…
[Nothing in the pipeline, nobody lined up to pump it.]
— Scope ≥ ‘Hadaway’…
[Broad GA harms – beyond damages, not replicable elsewhere.]
— Superior Venue+Odds…
[A crapshoot anywhere… scouts choose the jurisdiction in June.]
— 0 > 1, in theory…
[A potential case later is of greater value than the real one now.] ??
BUTT::: 0 < 1, in fact.
NO CASE ≠ NOW CASE.
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Possible future claims are still imaginary, intransitive, do nothing…
Current claims are real, transitive, enable movement & impact Now.
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Risking Issues that might be excluded vs. Defining the Case & knowing what ya got.
THEREFORE::: There Is No Better Plan.
AND IN EFFECT::: We ‘Hadaway’ and Bungled It.
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¯\_(ツ)_/¯…..
_sca__