Charles Dewey Latimore v. George Widseth, Assistant Hennepin County Attorney

Before RICHARD plea agreement S. Chief and the substance of McMILLIAN, GIBSON, Judge, R. JOHN Latimore’s statement were disclosed to the FAGG, BOWMAN, WOLLMAN, MAGILL, the Kreitz required by BEAM, LOKEN, HANSEN, and MORRIS Further, Minnesota law. iden- SHEPPARD Judges, Circuit en tified possible as a case, witness in the al- banc. though he was not to testify called at the trial.2 On aggravated the robbery charge, BOWMAN, Judge. Circuit Latimore received a sentence forty-nine of George appeals the District months, with served, credit for time the bal- denying Court’s decision motion for sum- ance of the suspended, sentence years three mary judgment qualified immunity based on probation, of and a requirement that he com- in Charles Latimore’s U.S.C. 1983 case.1 plete a substance abuse treatment program. panel A of this Court affirmed and remanded (in Latimore was fact, released at sentencing Widseth, for trial. Latimore v. 986 F.2d 292 he was released plea after the hearing) and (8th Cir.1993) omitted). (subsequent history jail served no additional time for aggra- the granted We petition Widseth’s rehearing robbery. vated banc, en panel the opinion, vacated and now judgment reverse the of the District Court. September 9, 1987, On Latimore was ar- In February rested for the brutal stabbing Charles Latimore robbery and of pleaded guilty to a charge aggravated of a ninety-one-year-old woman in apart- her robbery. plea bargain Pursuant to a negoti- ment. Because of the heinous nature of the Widseth, ated George Hennepin Assistant crime, the provoked media were inquire (Minnesota) County Attorney, agreed and why someone with lоng Latimore’s parties the in October Latimore criminal history was still serving not time for give consented to a formal statement and to aggravated the robbery offense. Widseth testify in case prosecut- another Widseth was truthfully, answered revealing no more infor- ing, in exchange for a recommendation for mation than that which could be found the leniency in sentencing aggravated on the rob- public record, that Latimore received re- bery charge. Although involved, he was not duced providеd sentence he because informa- Latimore had information gang- about the prosecution tion to the in the Kreitz murder related of sixteen-year-old murder Christine case. Widseth’s comments reported were on Kreitz, who was killed allegedly because she the local television news. provided had information to authorities about perpetrators the gun robbery. store ‍​​​‌‌​​‌​​​​​‌‌‌​‌‌​‌​​​‌​‌​‌​​‌​‌‌‌​‌​‌​‌​‌​​‌‌‍La- later, One month Latimore was sent to the timore’s implicated statement Grailon state correctional facility Stillwater, Williams and Scruggs, John both members Minnesota. His admission interviews show Disciples, with which Latimore prison authorities asked whether he had been associated. anyone knew of might wish to harm him or whether he plea hearing, special cooper- where his protection. responded ation He authorities that he the Kreitz case did not. was noted, place took On open November court and on Latimore moved was record, and a transcript of from the hearing orientation unit at was Stillwater to the filed with clerk of the general court. prison population. later, Besides One week being record, matter of the terms of he was attacked in cell and stabbed Appeal 1. from the denial of and, a motion for sum- became matter of record mary judgment, ordinarily a disallowed interloc- especially, known to specif- the Kreitz defendants utory appeal, appealable is an "final order" ically, Latimore promised claims that Widseth when summary mоtion for anonymity. him nothing He offers to substanti- qualified based on a immunity defense. Mitchell affidavit, except ate that claim for his own even Forsyth, 526-27, though numerous written documents rec- and 2815-16, (1985). bargain. ords plea memorialized the Under our Notwithstanding disposition these of this circumstances this factual under issue of no identity which Latimore’s consequence. informant status specifically, claims, punishment, who, cruel and unusual were

four inmates in- by fellow protected from harm “to be gang members.3 known Marcantonio, 910 F.2d mates.” Smith is whether only issue before us The Cir.1990). The “well estab- immunity on qualified is entitled asserted does lished” nature availability claim.4 inquiry. Latimore cannot our short-circuit discretionary exercising to an official right, and viola- a broad constitutional assert requires careful authority particular case thereof, for sum- and survive a motion tions law at the of the established consideration mary judgment time, objective knowledge of actor’s the state dispute simply because there is no grounds complained-of conduct. right asserted. indeed have the that he does government immunity protects a “Qualified right process of law example, “For to due if, the time of the chal from suit at official by Due Pro- quite clearly established acts, clearly established it not lenged was Clause, a sense in and thus there is cess clearly estab actions would violate that those (no that Clause any action that violates which person reasonable law of which a lished partic- may that the matter how unclear it be Rapps, v. 947 known.” Jackson would have violation) clearly a violates a ular action is — denied, (8th Cir.1991), 332, cert. F.2d 338 Anderson, at right.” 483 U.S. established 1561, U.S. -, 112 S.Ct. 639, accept If Lati- at 3038. we 107 S.Ct. (1992). Immunity appropriate if the will be permitting him theory, be more’s we would allege § violation plaintiff 1983 does immunity “to convert the rule clearly right in the established constitutional virtually unqualified ... a rule of liabili- into Fitzgerald, 457 Harlow v. first instance. extremely ty by alleging violation of simply 2727, 2738, 800, 818, 73 102 S.Ct. U.S. rights.” Id. abstract (1982). assertion of 396 The mere L.Ed.2d however, adequate: right, will not be such a a consti Latimore effect claims right be sufficient “The contours of the must right withheld from the me tutional to have un ly reasonable official would clear that a matters of record concern dia truthful doing violates that that what he is derstand plea having a favorable ing his obtained Creighton, 483 U.S. right.” Anderson v. exchange for information useful agreement 3034, 3039, 523 97 L.Ed.2d 107 S.Ct. There is prosecution in another case. to the viable, (1987). may be Thus the defense still right, vaguely even no constitutional such (and clearly established in the face of even established, and no ob jurisprudence, in our violated) right, if the defendant constitutional prosecutor would have jectively reasonable ‘objective legal reason can demonstrate “the right. an established aware of such been light action assessed ableness’ of the Moreover, accept assuming we were to with ‘clearly at legal that established’ rules were Eighth Amend question that the broad out Anderson, 483 it was taken.” U.S. the time protected from harm infliсt right ment to be omitted) (citations at at 107 S.Ct. 3038 inmates is the constitutional ed fellow 819, 818, Harlow, at (quoting here, Widseth could right properly invoked 2738). actions would violate not have known that his here, prosecutor right. No ease has held right that invoked The constitutional violating prisoner’s § under 1983 for is Latimore’s hable established in the and well rights as a result of the Eighth Amendment right free from Eighth Amendment to be ended, Supreme just Court held appropri- the term they 4. would be factual issues Because case, prosecutor wе do not not entitled to absolute ate for resolution at a trial in the that questions causa- rather serious immunity § consider some tion, i.e., his out-of-court 1983 case for were in Fitzsimmons, whether Latimore’s attackers Buckley press. statements to members, was in whether the attack fact - U.S. -, 125 L.Ed.2d having provided infor- retaliation for Latimore’s (1993). Court did not "consider whether prosecutors mation to in the Kreitz [including respondents' the state some or all of comments as to Latimore's whether Widseth's by qualified attornеy’s] protected be conduct only source informant status were the attackers’ at -, immunity.” 113 S.Ct. at 2609. Id. of that information. press truthful statements to the for his prosecutor’s actions that role. We will not concerning qualified immunity § matters of record. refuse to a 1983 defen- failing protect dant for prisoner from cases, § involving abso The related harm at the hands of fellow inmates when claims, protec constitutional lute that defendant had neither responsibility Eighth rights, than Amendment tions other ability protect prisoner nor the from prosecutors, defendants other than and false actions, harm. although such Widseth’s tak- press, put a statements to the would not actor, en in his role as a state were unrelated person reasonable on notice he could be ‍​​​‌‌​​‌​​​​​‌‌‌​‌‌​‌​​​‌​‌​‌​​‌​‌‌‌​‌​‌​‌​‌​​‌‌‍incarceration, to Latimore’s understandably See, suggests. e.g., Hobbs liable as inso view of the fact that Widseth had no (8th Cir.1991) Evans, knowledge spoke at the time he of whether violating pris (holding prison guard liable for or, so, Latimore would be if incarcеrated Eighth oner’s to be free where, any much less whether there was guard prisoner from attack fellow because reason officials would be unable to informant); prisoner labeled Gobel v. protect him from harm inflicted other Maricopa County, 867 F.2d inmates. Latimore cannot show that Wid- Cir.1989) (concluding 1983 action seth, job description whose does not include against prosecutor challenging pretrial condi supervision the prisons, of the State’s “failed process tions of confinеment stated due claim protect to him dangers from known at- of pretrial pun because detainee cannot be pervasive tacks fellow inmates or that a ished; immunity absolute was un risk of harm” to which failed to Widseth prosecutor qualified available to but immuni respond prevailed "withinthe Stillwater facili- considered); Gumbinner, ty was not Marx v. Marcantonio, ty. Smith v. 910 F.2d at 502. (11th Cir.1988) 788, (refusing 791 855 F.2d negligence part The mere on the of Widseth immunity prosecutor plain absolute to where alleges adequate that Latimore is not process rights tiff claimed violation of due for prove Eighth Amendment violation. “The release); allegedly defamatory press Marre qualified immunity ‘gives ample standard Hialeah, (5th 499, City ro v. 625 F.2d 519 of judgments’ protecting room for mistaken Cir.1980) (holding plaintiff pro asserted due plainly incompetent ‘all but the or those who alleged defamatory cess claim for statements ” knowingly violate the law.’ Hunter v. denied, resulting alleged injury), in cert. 450 — U.S. -, -, 534, Bryant, 112 S.Ct. 1353, 67 U.S. L.Ed.2d 337 (1991) (quoting Malley 116 L.Ed.2d 589 (1981). Although ‘“precise factual corre 335, 343, 341, Briggs, 475 U.S. ‍​​​‌‌​​‌​​​​​‌‌‌​‌‌​‌​​​‌​‌​‌​​‌​‌‌‌​‌​‌​‌​‌​​‌‌‍106 S.Ct. spondence’ рrecedent” is not (1986)). 1092, 1097, 1096, 89 L.Ed.2d 271 clearly for a to be established and an non-protect Widseth falls into neither of the objectively reasonable state actor to know he categories, ed and we hold that he is entitled O’Hara, right, violating the J.H.H. v. qualified immunity. (8th Cir.1989) (quoting Lappe F.2d Cir.1987)), Loeffelholz, The of the District Court is re- denied, rt. and the case is remanded with di- versed ce 1117, (1990), summary judg- the facts here rection that the court enter “correspon ground are far too different and the ment favor of Widseth on the of far qualified immunity. dence” with established law is too remote liability gave to attach. Widseth truthful ARNOLD, MORRIS SHEPPARD Circuit answers based on the record to the joined Judge, by RICHARD S. probing questions concerning media’s a mat McMILLIAN, Judge, R. Chief and JOHN By ter of vital interest. reference to GIBSON, Judges, dissenting. Circuit now, clearly the law then established objectively Widseth’s actions were reason respectfully from the court’s dissent able. judgment in ease. Further, February, In Latimore the nature of Widseth’s Charles position prosecutor pleaded guilty charge aggravated to a as assistant would not robbery put potential liability pursuant him on notice of and was released to an only journalists’ paraphrase of Widseth’s co-operate with the he would agreement that statement, supplement- have been Specifically, Lati- which separate case. in a State In from other sources. testify against Grailon with information ed agreed to event, local television stations Scruggs, any when two members and John Williams matter, they reports also been a on the stated Latimore had broadcast gang of which testify member, agreed in the in the implicated Latimore had and who were George Kreitz. Widseth Two months after Kreitz murder cases. murder Christine County Attorney broadcasts, Latimore, Hennepin having incarcer- been was the Assistant facility, Pursuant to negotiated plea. was correctional ated Minnesota formal state- provided who he plea, Latimore cell four men attacked also murder. Latimore on the Kreitz ment mеmbers of the claims were known testify as to willingness to acknowledged his ease. implicated in the Kreitz murder that he made in the statement the assertions against this action Latimore commenced 28, 1986. signed on October September, county and state officials 1987, shortly plea January, before omissions had alleging that their actions and terms of the hearing, reiterated the Widseth only claim issue led to assault. at- in a letter to Latimore’s plea agreement upon against George based appeal is agree- torney. also stated that to the news media and his statements to be disclosed ment would have links subsequent prison assault. Latimore attorney. Subsequently, Lati- assault, Williams’s causally to the Widseth’s statements appeared on the list of state’s more’s name which, Eighth posits, violated copy A case. witnesses the Williams rights. moved for provided to statement arguing en- summary judgment, that he was attorney, that he dis- who asserts Williams’s that Lati- titled to testimony potential with cussed Latimore’s not, cоuld as a matter of establish Although Widseth also communi- his client. causally were re- that Widseth’s statements testimony to the substance of the cated court attack. The district lated to attorney, Scruggs Scruggs’s testified at bases, on both motion denied Widseth’s hearing that he did not post-conviction relief enti- appeals, arguing that he was Widseth identity prior or dur- of Latimore’s to learn summary judgment on either or both tled to Ultimately, ing Latimore was his trial. theories. prosecution. in neither called as a witness I. February, plea hearing in At Latimore’s Lati- informed the court that Widseth discretionary func performing Officials part agreement more had fulfilled his immunity and are there enjoy qualified tions agreeing to by providing the statement and damages liability for civil so by shielded from accept- testify in The court the Kreitz case. clearly long conduct does not violate as their plea, transcript of the ed Latimore’s and the rights statutory or constitutional established court, plea hearing, open was filed held hаve person would of which a reasonable clerk of the court and promptly with the Fitzgerald, 457 U.S. Harlow v. known. See public record. became a 2727, 2738, 800, 818, 102 (1982). release, performing a discretion An official after his Latimore was

Six months respond to a arrested, ary can be to robbing and function again this time for fail to meet journal- only if his or her actions attacking elderly civil suit woman. When “objective legal reasonableness.” why re- the test of asked Latimore had ists 2739; at see also ag- 102 S.Ct. previous Id. ceived lenient treatment 635, 639-41, Creighton, 483 U.S. gravated robbery charge, told them Anderson 3038-40, 97 L.Ed.2d cooperation of Latimore’s State. (1987). the rele Harlow transformed it Since specified that was Whether Widseth objective legal rea inquiry into one cooperated is vant Kreitz case which Latimore sonableness, the issue dispute. No documentation of his state- pure ordinarily one of been considered have has ment to the media was offered. We See, O’Hara, e.g., law. J.H.H. v. agree F.2d with the district court and note (8th Cir.1989). recognized, We have also that Christine Kreitz was a victim of the however, that there are some cases that will gang’s retaliation when she became an infor- require inquiry a factual into a relevant mat against mant them. Given the recency of ter, namely whether the official knew or retribution, that carried out the same should have known that the conduct would gang against whose members Latimore had violate, of, or a plaintiffs cause violation con testimоny, offered ample there is evidence rights. stitutional Most such will eases in from a which fact-finder could conclude that volve an invasion that is not an immediate Widseth should known have his conduct consequence of ‍​​​‌‌​​‌​​​​​‌‌‌​‌‌​‌​​​‌​‌​‌​​‌​‌‌‌​‌​‌​‌​‌​​‌‌‍defendant’s activities but ne would lead to a violation of right. vertheless proximate follows as a likely See, result of e.g., them. Smith v. Marcanto II. nio, (8th Cir.1990). 910 F.2d district court believed that this case was such I respectfully disagree with court’s a agree. and I We should review the first characterization of the constitutional below, therefore, to determine right that Latimore seeks to vindicate right alleged whether the have been violat litigation. asking He is protection of his clearly ed was established and whether right to be free of an risk of unreasonable reasonable fact-finder could conclude from inmates, assault from his fellow right, as the record before the court that defendants seen, we firmly have that established in could or should have known that the conduct claim, our сases. To does, court that violate, would of, or plain cause a violation Latimore seeks to “right construct a to have tiffs rights. constitutional from withheld the media truthful matters of The district court correctly first noted that public record,” seriously misstates and trivi- prisoner’s Eighth to be alizes theory of the case. It free from attack fellow inmates is a well- passes over, moreover, Latimore’s assertion established one of which Widseth knew or promised him not to reveal the should have known. Sеe Andrews v. Siegel, agreement details anyone who had (8th Cir.1991); 929 F.2d Bailey legal right them, no promise know Wood, 1197,1199 Cir.1990). relegates footnote, court asserting inquiry the factual into whether Widseth that, “disposition ease,” under its of this the knew or should have known that his behavior promise “is consequence.” of no suggest, I right violated the likely or would lead to its on contrary, the promise that the of is ex- violation, the district court noted several traordinary consequence, for at least two First, facts. experienсed Widseth reasons. prosecutor knew propensities the of all, First of promise the Second, breach of gangs. furnish that, Latimore asserts pur- proof es of Widseth’s state of mind: suant to I believe plea bargain, his statement re- that a deliberate garding breach of the roles of contract can Scruggs Williams and amount to a the Kreitz “deliberate murder was to to an indifference” remain confidential inmate’s rights. unless he constitutional See government was called as a Brand wit- Brewer, scomb alleged aspect ness. This 669 F.2d 1297 agreement of the Cir. 1982). Second, provides an the promise effectively additional indication that es- Wid- tops potential seth from asserting knew of the that danger he could to Lati- more. Finally, liability know that for that foreseeable knew conse quential was to be incarcerated as a losses could follow from result of revela tions, robbery charge armed prompted breach since of contract that is no means Wid- public legal seth’s Aсcordingly, theory. statement. a novel It is familiar virtual to court ly citizen, that every certainly concluded knew or should and to a licensed have known regard- lawyer. proposition that his revelation The that Widseth’s reve ing willingness testify against legally to objec lations were reasonable as an gang leaders would likely prison lead to a tive cannot matter therefore be supported: against attack him. It duty be hard to think of a legal would name Additionally, that Latimore’s he notes obli- than the “clearly established” more provided to both fact, lists if it was on witness up one’s word. to live to gation attorneys. Scruggs’s and Williams’s prosecutor one, has held a “no case is that violating prisoner’s liable under causation, the district court discussing of the rights as a result Eighth Amendment possibility that Widseth’s acknowledged the statements,” on which prosecutor’s truthful from the attack were too remote remarks relies, point because it court is beside provide a basis for Widseth’s Latimore to being narrowly chаracterizes the too however, court, consid- liability. The district asserted, and, posits a importantly, of evidence there was sufficient ered that “surprise” that makes Wid- wholly unrealistic sum- to defeat Widseth’s proximate causation ring of notice hollow. claim of lack seth’s issue. The motion on this mary judgment point is authority directly in The lack of court wrote: lawyers government merely that evidence suggests ... that the The evidence duty keep promises, their recognize to their substantially to in- certain broadcast was so. and do including ... general public, form the is, course, always to possible It almost members, in the role gang [Latimore’s] novel, by plaintiffs claim as characterize a Kreitz mur- trial. Both the Kreitz murder conceptual net deliberately casting the charges pending against [La- der trial ap- make the case encompass facts that will press oc- conference when timore] legal fair charac- unique. But a pear to be publicity. attracted substantial curred rеquires that we omit such facts terization members became The likelihood question of notice to not material to the are mur- plaintiffs role in the Kreitz aware of me, case lies And for this the defendant. light significant, particularly in trial is der comfortably perimeters within specifi- unambiguous remarks of Widseth’s principle that actors cannot behave State cally implicating [Latimore]. deliberately indifferent to manner that is agree the district court that suffi- I right to be free from assault prisoner’s presented support has been cient evidence inmates. fellow statements were a conclusion that Widseth’s cause of the attack proximate III. Eighth violated course, requires a causal Section though rights. Even the detail of Widseth’s relationship a defendant’s conduct between in the disputed, the media is statement deprivation. plaintiffs constitutional summary judgment motion we context of relationship, the defendant Absent such light in the most consider the evidence must then, In this entitled to dismissal. Here, рarty. non-moving favorable to the ultimately prevail he for Latimore order then, specifically men- that Widseth assume that Widseth’s statements must establish cooperation occurred that Latimore’s tioned deprivation of proximate cause of the were a pres- the Kreitz trial. The respect a rights. To survive Eighth Amendment lists Latimore’s name on the witness ence of issue, La- summary judgment motion on this little, might very for he have been proves which a present evidence from timore must cooperating witness. compelled rather than a jury that Wid- could conclude reasonable noted, Also, Scruggs indicated previously proximate were the cause seth’s statements identity that he didn’t realize right. the violation of his constitutional attorney informed him that Lati- when apparently testify. Scruggs did ‍​​​‌‌​​‌​​​​​‌‌‌​‌‌​‌​​​‌​‌​‌​​‌​‌‌‌​‌​‌​‌​‌​​‌‌‍more would which points to other sources gang there was a former realize that learned that Lati- gang members could have pres- Latimore. As for member named Kreitz murder trial. cooperated public information in a this same willing- ence of Specifically, he notes that Latimore’s record, improbability that simply note the we Kreitz case was cooperate ness records. Fur- consulted such open gang members plea hearing, held at his discussed informed, thermore, they been so even if had plea hearing be- transcript of that court. A might acted on the record, not have any person. gang members came a available information. cooperation When Latimоre’s

was broadcast two local television sta-

tions, however, it became knowledge, pride

and the collective

engaged. Their motivation to retaliate

have greatly been increased the broad-

cast.

IV.

I would therefore affirm and remand to

the District Court. I note too that Widseth’s

First speech to free ap-

pears implicated ease, be in this parties

would therefore invite the to address

this issue in proceedings. further

ADAMS DISTRICT, PUBLIC SCHOOL

Plaintiff-Appellant, CORPORATION, LTD.,

ASBESTOS a for eign corporation; Turner, Atlas former

ly Asbestos, Inc., known as Atlas a for

eign corporation; Company, H.K. Porter formerly known as Pacific Asbestos David Thompson, ND, Fargo, Cor appel- for poration, Company, Inc., foreign lant. cor poration; North American Asbestos Raymond Cullen, (ar- Philadelphia, PA Corp., wholly Control owned subsid gued), Valenza, Dennis J. Kevin M. Ddono- iary Cape Industries, London; Union (on van and brief), Wickham Corwin Carbide Corporation, foreign corpora appellee. tion; Gypsum United Company, States corporation, Delaware Dеfendants-Ap GIBSON, Before JOHN R. Judge, Circuit pellees. BRIGHT, Judge, Senior Circuit No. 92-3276. MORRIS SHEPPARD Circuit Judge. United Appeals, States Court of

Eighth Circuit. GIBSON, JOHN R. Circuit Judge. Submitted June Public appeals Adams School District from Decided Oct. 1993. summary judgment holding its claims against Asbestos Corporation, Ltd. and six Rehearing Suggestion for Rehearing other companies asbestos are time-barred. En Banc Denied Nov. argues school district district

court erred applying the statute of limita- tions because the partic- school district’s ipation in a national district school class ac- tion its tolled claims. We and re- reverse mand proceedings. for further

Case Details

Case Name: Charles Dewey Latimore v. George Widseth, Assistant Hennepin County Attorney

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Oct 12, 1993

Citation: 7 F.3d 709

Docket Number: 92-1641

Court Abbreviation: 8th Cir.