Anita CHRISTENSEN and Robert Alty, Plaintiffs-Appellants, v. COUNTY OF BOONE, ILLINOIS, and Edward Krieger, Defendants-Appellees.
No. 04-4162.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 1, 2005. Decided March 21, 2007.
Rehearing and Rehearing En Banc Denied April 16, 2007.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
Stephen E. Balogh, III (argued), Williams & McCarthy, Rockford, IL, for Defendant-Appellee.
Before EASTERBROOK, Chief Judge, and RIPPLE and KANNE, Circuit Judges.
PER CURIAM.
Anita Christensen and Robert Alty, an unmarried couple and plaintiffs in this civil rights action, allege that they have been stalked and harassed unjustifiably by Edward Krieger, a Deputy Sheriff of Boone County, Illinois. Specifically, they allege that Deputy Krieger interfered with the couple‘s constitutional right to be free from unreasonable searches and seizures and their right to intimate association. They further allege that the Deputy‘s employer, Boone County, was responsible for the Deputy‘s actions. The complaint also contains a pendent state law claim asserted solely against Deputy Krieger for intentional infliction of emotional distress.
Deputy Krieger and Boone County filed a motion to dismiss for failure to state a claim upon which relief can be granted. See
I. BACKGROUND
A. Facts
Because this case comes to us from a dismissal under
Robert Alty is a police officer for the City of Belvidere, Illinois. In 1998 he arrested a driver for operating a vehicle while under the influence of alcohol. That driver turned out to be a friend or relative of Edward Krieger, a Deputy Sheriff of Boone County, Illinois. This incident resulted in animosity between the two officers that culminated in a face-to-face altercation at some point in 2001. According to the allegations of the complaint, after that incident, Deputy Krieger engaged in “a pattern of on-duty conduct designed to harass, annoy, and intimidate” Officer Alty and his girlfriend, Anita Christensen. Specifically, the couple alleges that Deputy Krieger repeatedly followed them, both individually and with each other, while they drove on Boone County streets; parked his squad car in front of Ms. Christensen‘s place of employment in order to watch her; and sat in his police car outside of businesses that the plaintiffs were visiting in
Ms. Christensen and Officer Alty claimed that Deputy Krieger‘s actions were performed under color of state law and deprived them of their rights to privacy, freedom of association, freedom from unreasonable searches and seizures and “substantive due process rights under the First, Fourth, Fifth, and Fourteenth Amendments.” The complaint further alleges that Officer Alty and Ms. Christensen had filed numerous complaints with Deputy Krieger‘s supervisors at the Boone County Sheriff‘s Department, but that the Department had not taken any action to correct the situation. Finally, the complaint alleges that Deputy Krieger‘s conduct constituted the intentional infliction of emotional distress under Illinois law.
B. District Court Proceedings
The district court dismissed the plaintiffs’ action for failure to state a claim upon which relief could be granted. See
II. DISCUSSION
We must decide de novo whether the plaintiffs’ complaint states a claim upon which relief could be granted. See Williams v. Seniff, 342 F.3d 774, 792 (7th Cir.2003). A motion under
A. Constitutional Violations
Within this liberal framework of notice pleading, the plaintiffs seek to state a claim against Deputy Krieger and Boone County under
1. Fourth Amendment
The plaintiffs’ first constitutional claim is covered by a specific constitutional provision, the Fourth Amendment. When the violation of a specific right is alleged, such a claim “must be analyzed under the standard appropriate to that specific [constitutional] provision.” County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998). The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Only government activity that constitutes either a “search” or a “seizure” is regulated by the Fourth Amendment.
A search takes place when the state intrudes upon an individual‘s legitimate interest in privacy. See Katz v. United States, 389 U.S. 347 (1967); see also California v. Greenwood, 486 U.S. 35, 39 (1988). This expectation must be one that society is willing to accept. See Katz, 389 U.S. at 353. Furthermore, a plaintiff invoking the Fourth Amendment must show that he has attempted to keep the object of the search private. Id. at 351 (“[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.“); United States v. Dunkel, 900 F.2d 105, 107 (7th Cir.1990).
Nor were the plaintiffs ever “seized” within the meaning of the Fourth Amendment. We recognize that, in certain circumstances, a Fourth Amendment “seizure” may occur when police intentionally restrict the freedom of a person to move about in public. See Brower v. County of Inyo, 489 U.S. 593, 596 (1989). For example, if law enforcement officers attempt to stop a fleeing suspect by forcing his automobile off the road, they have conducted a seizure for purposes of the Fourth Amendment. Id. at 597. This type of seizure occurs, however, only if two conditions are met. First, the officer must, through physical force or a show of authority, “communicate[] to a reasonable person that he [is] not at liberty to ignore the police presence and go about his business.” Florida v. Bostick, 501 U.S. 429, 437 (1991) (internal quotation marks omitted); see also United States v. Packer, 15 F.3d 654, 657 (7th Cir.1994). Second, when the officer‘s encounter with the plaintiff is nonphysical, the plaintiff must have submitted to the show of authority to establish that a seizure has taken place. See California v. Hodari D., 499 U.S. 621, 626 (1991) (“An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority.” (emphasis omitted)).
In light of these requirements, the theory that the plaintiffs were “seized” when Deputy Krieger followed them in his squad car is inconsistent with the allegations of the complaint. The alleged actions by Deputy Krieger were nonphysical. Therefore, to be a seizure, the Deputy must have communicated reasonably to the plaintiffs that they were not free to move. We cannot hypothesize from the allegations contained in the complaint a scenario in which Deputy Krieger‘s actions—the following, the stalking in the parking lot—would lead reasonable persons to feel that they had to stay where they were for fear of force or arrest. See Driebel v. Milwaukee, 298 F.3d 622, 642 (7th Cir.2002) (determining that a police station employee was not seized when he was ordered to work overtime and “stand by” for three and one-half hours in the police garage, because there was “no evidence suggesting that he would have been prevented from leaving the garage had he refused to obey“). Indeed, the complaint asserts that Deputy Krieger followed the plaintiffs repeatedly, meaning that they continued to go about their daily business in spite of being followed and watched. These allegations cannot describe a Fourth Amendment “seizure” because they tell us that the plaintiffs, in fact, did not submit to whatever restriction on their freedom Deputy Krieger attempted to impose. Id. (“A
Nor do the plaintiffs’ other allegations state a claim under the Fourth Amendment. Ms. Christensen complained of being watched by Deputy Krieger as she went about her duties as an employee of a local gas station. At these moments, however, she did not enjoy a legitimate expectation of privacy. In her job at the gas station, she appeared in plain view of the public, and Deputy Krieger had no particular vantage point unavailable to the public generally. See United States v. Gonzalez, 328 F.3d 543, 547 (9th Cir.2003) (holding that a hospital employee caught on video in the mailroom of the hospital enjoyed no legitimate expectation of privacy). Thus, where Ms. Christensen‘s job exposed her movements to the public generally, the Fourth Amendment is no bar to her being watched by police officers. See United States v. Sandoval-Vasquez, 435 F.3d 739, 743 (7th Cir.2006) (holding that no search occurred when police officers entered an open business); United States v. Tolar, 268 F.3d 530, 532 (7th Cir.2001) (noting that a chain link fence surrounding a business did not engender a reasonable expectation of privacy in items visible through the fence).
Finally, the complaint describes an incident in which Deputy Krieger searched a cell phone belonging to a friend of Officer Alty to find out if the two recently had communicated. Like the others, this incident cannot supply the basis for a Fourth Amendment claim because Officer Alty had no legitimate expectation of privacy in a cell phone belonging to someone else. Rakas v. Illinois, 439 U.S. 128, 134 (1978). (“A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person‘s premises or property has not had any of his Fourth Amendment rights infringed.“); Young v. Murphy, 90 F.3d 1225, 1236 (7th Cir.1996) (“The right against unreasonable searches and seizures is a personal right and generally may not be submitted on behalf of others.“). The plaintiffs’ Fourth Amendment claims properly were dismissed.
2. Intimate Association
The plaintiffs’ other constitutional claim asserts the deprivation of a liberty interest in violation of the Fourteenth Amendment‘s Due Process Clause. More specifically, the couple asserts that Deputy Krieger‘s conduct, and the County‘s tacit approval of that conduct, unjustifiably impaired the plaintiffs’ fundamental right to associate intimately with one another. To assess this assertion, we employ the basic framework for claims that arise out of the substantive component of the Fourteenth Amendment‘s Due Process Clause. In doing so, we keep in mind the Supreme Court‘s admonition that the concept of substantive due process must be expanded reluctantly “because the guideposts for responsible decision-making in this uncharted area are scarce and open-ended.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997)
Our first step is to provide a “careful description” of the interest said to have been violated. Doe v. City of Lafayette, 377 F.3d 757, 768 (7th Cir.2004) (citing Glucksberg, 521 U.S. at 721). Then, we must determine whether that interest is “fundamental“—that is, whether it is so deeply rooted and sacrosanct that no amount of process would justify its deprivation. Glucksberg, 521 U.S. at 720-21 (“[T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation‘s history and tradition ....” (internal quotation marks omitted)). Once we are satisfied that a fundamental right is at stake, we then determine whether the government has interfered “directly” and “substantially” with the plaintiffs’ exercise of that right. Zablocki v. Redhail, 434 U.S. 374, 386-87 & n. 12 (1978). Finally, if a fundamental right has been impaired, we ask whether the governmental action can find “reasonable justification in the service of a legitimate governmental objective,” or if instead it more properly is “characterized as arbitrary, or conscience shocking, in a constitutional sense.” Lewis, 523 U.S. at 846-47.2
In the present case, the plaintiffs invoke their constitutional right to engage in “intimate association.” In more concrete terms, the plaintiffs claim that they should have been free from Deputy Krieger‘s interference with their choice to enter into a non-marital romantic relationship. The Supreme Court frequently has recognized the constitutional stature of the freedom to enter into and carry on certain intimate associations. In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Court delivered a comprehensive discussion of this right. At the outset, the Court observed that, in prior cases, it had described the freedom to associate in “two distinct senses.” Id. at 617. In the first line of cases, Roberts explained, “the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion.” Id. at 618. In the second set of decisions, “the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of
The plaintiffs’ relationship, as they assert, fits best within the second Roberts category and, therefore, must be analyzed under the Due Process Clause as a liberty interest, rather than as a relationship formed for first amendment purposes.3 Intimate associations protected by the Due Process Clause, Roberts said, “have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State.” Roberts, 468 U.S. at 618. Additionally, these relationships bestow “the ability independently to define one‘s identity that is central to any concept of liberty.” Id. at 619.
In Lawrence v. Texas, 539 U.S. 558 (2003), the Court held that private homosexual relationships are a form of intimate conduct protected as a liberty interest against un-
We next must consider whether Deputy Krieger interfered “directly” and “substantially” with the plaintiffs’ right to associate intimately. Zablocki, 434 U.S. at 387. The Constitution prevents fundamental rights from being aimed at; it does not, however, prevent side effects that may occur if the government is aiming at some other objective. That much is clear from Califano v. Jobst, 434 U.S. 47 (1977). A federal disability-benefits program cut off support when beneficiaries married. The Court held that this does not violate the Constitution, even though it could be seen as a penalty on marriage (especially so when both spouses are disabled), because it reflects a view that one spouse usually supports the other. The program‘s incidental effect on marriage when both spouses are disabled, the Court held, differs from the sort of penalty that occurs when a law is designed to penalize the fundamental interest. Cf. Administrator of Massachusetts v. Feeney” cite=“442 U.S. 256” pinpoint=“279” court=“U.S.” date=“1979“>Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (a government intends to achieve a particular result only when the law has been adopted because of, rather than in spite of or with indifference to, that result).
This is why being fired from a public job (after any hearing that may be required) does not create constitutional difficulties if it turns out that the ex-employee becomes moody and makes the family miserable; likewise the spouse of someone run over by a garbage truck may have a loss-of-consortium claim under state law but cannot invoke principles of substantive due process. Defamation by a public official, not itself a violation of the Constitution, see Paul v. Davis, 424 U.S. 693 (1976), does not turn into a constitutional tort if the defamed party becomes impotent or loses the respect of his children. In these situations, and many others, the effect on intimate association is incidental to the defendant‘s activities.
The district court dismissed the plaintiffs’ intimate-association claim because, in its view, “[t]he alleged conduct of [Deputy] Krieger simply does not rise to the level of preventing plaintiffs from having a meaningful relationship.” To the extent that the district court demanded a more complete factual narrative in the complaint, it required more than is appropriate under
We need not decide whether the complaint‘s allegations about Deputy Krieger‘s motive or objective are sufficient substantively, because the adverse consequences of his actions are not sufficiently serious. Official conduct that represents an abuse of office (as opposed to, say, the implementation of a statutory duty) violates the substantive component of the due process clause only if it “‘shocks the conscience.‘” Russ v. Watts, 414 F.3d 783, 789 (7th Cir.2005) (quoting Lewis, 523 U.S. at 846-47). In Lewis the Court held that a death from a high-speed pursuit does not shock the judicial conscience even on the assumption that the pursuit was unnecessary and an arrest could have been effected in some other way. The Court stated that “only the most egregious” conduct may be condemned under its approach. Id. at 846.
Watching people from a squad car is very far indeed from “the most egregious” conduct in which a deputy sheriff can engage. Deputy Krieger did not invade their bedroom or commit mayhem. Plaintiffs recognized who was trailing them. Thus even if Deputy Krieger‘s presence was ominous, plaintiffs had the security of knowing where to turn for redress if Deputy Krieger should decide to take more aggressive steps. They could have sought a restraining order from state court—yet we know from Castle Rock v. Gonzales, 545 U.S. 748 (2005), that, even had such an order been issued and ignored, state rather than federal courts would be the right forum for enforcement.
Lewis calls for judicial modesty in implementing a federal program of constitutional torts that lie outside any specific clause of the Constitution. A modest role means
Plaintiffs say that Deputy Krieger‘s conduct is constitutionally obnoxious because it is harmful yet unjustified by any legitimate governmental interest. That‘s just another way to say that the conduct is tortious, but Lewis holds that substantive due process does not replicate state tort law. Id. at 848-49. The language of “legitimate governmental interests” summons up the rational-basis inquiry under the equal protection clause, yet plaintiffs have not advanced a class-of-one (or class-of-two) claim under the equal protection clause. See Village of Willowbrook v. Olech, 528 U.S. 562 (2000); Lauth v. McCollum, 424 F.3d 631 (7th Cir.2005). Equal-protection analysis must be kept distinct from substantive claims under the Due Process Clause.
Asking whether the defendant had a “legitimate governmental interest” not only would depart from the “most egregious conduct” inquiry under Lewis but also would go far toward constitutionalizing state law, which Lewis said must not happen. As the complaint describes events, Deputy Krieger was acting outside the scope of his duties, disreputably and shamefully. But it is established that a violation of state law does not automatically violate the federal Constitution too. See Archie v. Racine, 847 F.2d 1211 (7th Cir. 1988) (en banc) (collecting cases). It is essential to recognize a category (a large category) of acts that offend state law without offending the Constitution too. This is another point that Lewis made. See Id. at 848-49 (conscience-shocking conduct is a very small portion of the misbehavior actionable under tort law).
In sum, the complaint includes enough descriptive matter to show that the claim is not sound under federal law.
3. Municipal Liability
Because we have determined that all of plaintiffs’ claims under federal law were properly dismissed, there can be no
B. The State-Law Tort Claim
Finally, we must decide whether the district court properly dismissed the plaintiffs’ state-law tort claim. Illinois law recognizes the tort of intentional infliction of emotional distress, which was pleaded by the plaintiffs in Count III of their complaint. See McGrath v. Fahey, 126 Ill.2d 78, 533 N.E.2d 806, 809 (1988). Among other requirements, a plaintiff‘s emotional distress must be “severe,” and the defendant‘s conduct “extreme and outrageous,” to give rise to liability for this tort. See Public Fin. Corp. v. Davis, 66 Ill.2d 85, 360 N.E.2d 765, 767-68 (1976).
In the district court‘s view, the plaintiffs’ tort claim failed because the complaint did not allege that Deputy Krieger‘s conduct was “extreme and outrageous,” and because the complaint did not allege a severe emotional injury. In making this determination, the district court appears to have applied Illinois’ fact-pleading requirements for civil complaints. Yet this suit is in federal rather than state court, and each sovereign may apply its own procedural rules in its own courts.
When state and federal practice differ, federal rules adopted under the
Although the district court was correct in observing that the complaint did not contain all of the facts that would be necessary to prevail, “a filing under Rule 8 is not supposed to do that.” Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir.2003). Instead, the complaint “should be ‘short and plain’ and suffices if it notifies the defendant of the principal events.” Id. (quoting
III. CONCLUSION
For the foregoing reasons, we affirm the district court‘s judgment to the extent that it dismissed the plaintiffs’ federal claims, but we vacate the decision to dismiss the balance of the action with prejudice. The case is remanded for further proceedings consistent with this opinion.
RIPPLE, Circuit Judge, concurring in part and dissenting in part.
I join the opinion of the court except in its treatment of the plaintiffs’ claim that Deputy Krieger‘s conduct deprived them of their right to intimate association. In my view, the district court erroneously dismissed this claim at this early stage of the proceedings. Accordingly, I respectfully dissent from this portion of the court‘s disposition and, in the following sections, shall explain why I believe that the panel majority opinion is both factually and legally in error.
A.
At the outset, it is important to note the procedural posture of the case as it comes to us. The district court dismissed this claim for failure to state a claim upon which relief can be granted. See
In its analysis of the claim,1 the panel majority simply characterizes the Deputy‘s actions as “[w]atching people from a squad car.” Op. at 464. The complaint, on the other hand, provides a more disturbing account of the Deputy‘s alleged actions; it paints a picture of a far more pervasive intrusion into the lives and the relationship of the plaintiffs. Specifically, the complaint alleges in paragraph 12 that Deputy Krieger engaged “in a pattern of on-duty conduct designed to harass, annoy, and intimidate” the plaintiffs by engaging in, among other things, the following actions:
- Repeatedly following the Plaintiffs while they are driving lawfully to and from their destinations, both individually as well as together, and while they are engaged in lawful conduct;
- Repeatedly parking his squad car at or near Plaintiff CHRISTENSON‘S [sic] place of employment and conducting surveillance of her lawful activities, as well as monitoring her lawful conduct while employed as a Clerk at Kelly Williamson Mobil Co.;
- Abandoning service calls and traffic stops to follow the Plaintiffs upon recognizing that they are in the vicinity of where he is located;
- Parking his squad car outside of businesses where Plaintiffs’ vehicles are parked when they are patronizing said businesses, in an effort to cause them difficulties with the proprietors of such establishments.
R.3 at 4. Most importantly, the complaint alleges specifically that the Deputy carried out this “pervasive plan of intimidation” with the specific intent to harm the plaintiffs in their relationship “with each other.” Id. The allegations set forth above do not simply describe an individual sitting in a police car watching individuals from afar. Rather, the allegations describe a police officer not only stalking a couple as they go about performing the daily tasks of living in a community, but also stalking in a manner designed to intrude upon and to injure their relationship.
B.
My colleagues are quite right to emphasize that claims based on the concept of substantive due process must be approached with great care and circumspection. As our own case law reflects, the Supreme Court has made clear that the scope of substantive due process is very limited. See, e.g., Tun v. Whitticker, 398 F.3d 899, 902 (7th Cir.2005) (citing Washington v. Glucksberg, 521 U.S. 702 (1997)). This reluctance is grounded, in part, in the realization that “guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). It also finds roots in our reluctance to fix the boundaries of due process in a way that intrudes into the state‘s proper domain of fashioning principles of private tort law. The Due Process Clause is intended as a “limitation of the State‘s power to act, not as a guarantee of certain minimal levels of safety and security.” DeShaney v. Winnebago County Dep‘t of Soc. Servs., 489 U.S. 189, 195 (1989).
Despite the dangers inherent in the implementation of a constitutional standard that lacks built-in guidelines, the task is hardly beyond careful judicial implementation. First of all, we must remember that, while the “shocks the conscience” standard seems at first glance to be highly subjective, the Supreme Court has made it quite clear that it is objective in nature. In determining what kind of conduct can be said to shock the judicial conscience, judges invariably start by “asking whether or not the objective character of certain conduct is consistent with our traditions, precedents, and historical understanding of the Constitution and its meaning.” County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring); see also id. at 847-48 n. 8. The court must ask whether the conduct in question “can be said to have found historical acceptance, or at least tolerance, among traditional executive practices.” Galdikas v. Fagan, 342 F.3d 684, 690 n. 3 (7th Cir.2003), abrogated on other grounds by Spiegla v. Hull, 371 F.3d 928, 941-42 (7th Cir.2004). The determination, of course, also must include an “objective assessment” of the necessities of contemporary law enforcement, an area in which “the police must be given substantial latitude and discretion.” County of Sacramento, 523 U.S. at 857 (Kennedy, J., concurring). Although negligent action never can be sufficient to meet the “shocks the conscience” standard, “actions intended to injure in some way unjustifiable by any governmental interest” are those most likely to rise to the conscience-shocking level. Id. at 849. In assessing the particular governmental conduct at issue, a court cannot view that conduct in abstracto. It is important that all the facts and circumstances of the situation be considered. See Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir.1999).
Usually, a court is faced with the task of assessing conduct that took place in the course of undertaking official duties. In such a context, it is often important to differentiate between situations in which the state actor is acting under exigent circumstances and those situations in which the state actor is working at a more deliberate pace. “Where a defendant is ‘confronted with a hyper-pressurized environment such as a high-speed chase . . . it is usually necessary to show that the officer deliberately harmed the victim.’ Where a defendant has ‘the luxury of proceeding in a deliberate fashion . . . deliberate indifference may be sufficient to shock the conscience.‘” Kaucher v. County of Bucks, 455 F.3d 418, 426 (3d Cir.2006) (quoting Estate of Smith v. Marasco, 430 F.3d 140, 153 (3d Cir.2005)); see also, e.g., Armstrong v. Squadrito, 152 F.3d 564, 581 (7th Cir.1998) (holding that deliberate indifference of jailors to prisoner‘s repeated complaints, over many days, that he was being held without a hearing shocked the conscience).
The case before us clearly falls within this last category. According to the allegations of the complaint, Deputy Krieger embarked upon a scheme of retaliation against the plaintiffs in which he used the power and authority of his office to injure their relationship. This systematic vendetta had no conceivable legitimate governmental purpose. It amounted to the raw use of the power—power that comes with a badge, a service revolver, and the power to arrest—in order to make it difficult for this couple to maintain a romantic relationship that our constitution protects as a fundamental right.2 The panel majority fails to recognize that, under the prevailing case law, such a perverse use of police authority surely shocks the judicial conscience just as it shocks our national conscience.
Today‘s decision also will have a very practical and harmful effect on municipal governance throughout this circuit. The panel majority‘s failure to recognize the situation here as a willful abuse of governmental power and its failure to characterize the conduct as conscience shocking will have a direct and immediate effect on efforts to maintain discipline and professionalism in the countless number of small municipal police forces that dot our landscape. This is no easy task for those who have the responsibility of county and municipal leadership today. The ravages of undue political influence and the lack of financial resources for both recruitment and training make the burden of those in leadership positions a heavy one indeed. Today, the highest federal court in this region of the United States sends a surely unintended, but nevertheless unwelcome, message that minimizes the significance of
I respectfully dissent.