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Bon Mots: February 2018

As seasoned attorneys know, the lofty principles that attract aspiring lawyers can quickly be overshadowed by client emergencies, Sisyphean scheduling conundrums, unreasonable opposing counsel, billing targets, intrafirm politics, and understaffed courts. But from time to time, our esteemed judges take an opportunity to remind us of the law’s great written tradition, whether by powerful rhetoric, meticulous reasoning, devastating pithiness, or simple humor. In Bon Mots, VLW captures the month’s most notable, quotable phrasing from Virginia’s state and federal jurists – because if you blink, you’ll miss it.

Judge Norman K. Moon, ACA Fin. Guar. Corp. v. City of Buena Vista, Va. (W.D. Va. Feb. 8, 2018)

Subjected to detailed examination, Plaintiffs’ theory is like a defective Rube Goldberg device—a confounding, complicated web of contractual cross-references that ultimately fails to accomplish its goal. Its confusing framework does not justify a fishing expedition undertaken to establish leverage in negotiations.

Chief Judge Roger L. GregoryE.W. v. Dolgos (4th Cir. Feb. 12, 2018)

While officers’ presence [at school] surely keeps the nation’s children safe, officers should not handcuff young students who may have committed minor offenses but do not pose an immediate threat to safety and will not evade arrest. Unnecessarily handcuffing and criminally punishing young schoolchildren is undoubtedly humiliating, scarring, and emotionally damaging. We must be mindful of the long-lasting impact such actions have on these children and their ability to flourish and lead prosperous lives—an impact that should be a matter of grave concern for us all.

Senior Judge Dennis W. Shedd, E.W. v. Dolgos (4th Cir. Feb. 12, 2018)

Instead of being able to handcuff arrestees for custodial transport as a matter of course for obvious and practical safety reasons, which is the standard procedure in virtually all custodial arrests, officers subject to the majority decision will now have to make on-the-spot predictions about whether every arrestee will peacefully submit to the arrest and transport. Their ad hoc predictions will potentially be subjected to judicial second-guessing based on a variety of factors (both known and unknown to the officers) that should be irrelevant to the handcuffing determination…. Unfortunately, law enforcement officers cannot know how courts will view those or any other factors in litigation, and the majority provides no real guidance to assist them. Thus, despite the Supreme Court’s unequivocal recognition of the inherent dangers associated with all custodial arrests, the majority’s decision will inevitably lead officers who are subject to the decision to avoid using handcuffs during some custodial arrests. This restriction is not compelled by the Fourth Amendment …, and it will further hinder officers’ ability to perform their duties in a safe and effective manner for themselves, the arrestees, and the public.

Judge Paul M. Black, In re Williams (W.D. Va. Bkr. Feb. 12, 2018)

Local attorneys joining multi-jurisdictional law firms as local or limited partners cannot be both tall and short. An attorney cannot claim to be a partner in the firm and file cases with the Court as lead counsel, but yet claim no responsibility for what happens in the main office on the files the attorney decides to take. Attorneys considering joining firms with this business model should understand that, in this Court, while an injury might be initiated elsewhere – there is a real possibility the pain is going to be felt at home.

Panel, Commonwealth v. Duse (Va. Feb. 12, 2018)

The [circuit] court inexplicably stated that Duse had no history of violence, ignoring that he currently was under indictment for the execution-style murder of his work supervisor.

Judge James P. Jones, Doe v. Russell County School Board (W.D. Va. Feb. 13, 2018)

The plaintiff offered evidence of past complaints and investigations of employee-on-student harassment by seven School Board employees, several of whom were repeat offenders…. The plaintiff has [also] pointed to numerous guidance documents … conveying to educators the extent of the sexual harassment problem in schools and the need to provide adequate training, adopt appropriate policies, and conduct thorough and timely investigations. The deposition testimony of many of the school employee witnesses in this case suggests that they received little or no training from the School Defendants on how to identify warning signs of sexual harassment, the steps they should take to prevent sexual harassment, how to investigate complaints, and how to remedy sexual harassment. Based on the record evidence, a jury could reasonably conclude that whatever training the School Defendants provided on these topics was woefully inadequate.

BONUS: January Bon Mots

Panel, Simonds v. Yancey (Newport News Cir. Ct. Jan. 3, 2018)

The right of a citizen to cast a free vote has been secured to us by the blood of patriots shed from Lexington and Concord to Selma, Alabama. The manifest injustice against which we must always guard is the chance that a single vote may not be counted. It matters not the importance of the disposition of a ballot in a given election; it matters the dignity of the citizen, the integrity of the electoral process, and the destiny of our constitutional republic.

Judge J. Harvie Wilkinson III, Greater Baltimore Ctr. for Pregnancy Concerns Inc. v. Mayor and City Council of Baltimore (4th Cir. Jan. 5, 2018)

The abortion debate in our country has a long and bitter history. Vast disagreement on the merits has led both sides to retributive speech restrictions and compulsions. To be sure, states must have room for reasonable regulation. But there is a limit to how much they can dictate core beliefs. This court has in the past struck down attempts to compel speech from abortion providers. And today we do the same with regard to compelling speech from abortion foes. We do so in belief that earnest advocates on all sides of this issue should not be forced by the state into a corner and required essentially to renounce and forswear what they have come as a matter of deepest conviction to believe.
Weaponizing the means of government against ideological foes risks a grave violation of … our nation’s dearest principles…. It may be too much to hope that despite their disagreement, pro-choice and pro-life advocates can respect each other’s dedication and principle. But, at least in this case …, it is not too much to ask that they lay down the arms of compelled speech and wield only the tools of persuasion. The First Amendment requires it.

Judge T.S. Ellis III, Doe v. Roe (E.D. Va. Jan. 31, 2018)

Research indicates that one in four college women have survived rape or attempted rape at some point in their lifetime, and five percent of women on college campuses experience rape or attempted rate every year. These victims face significant barriers to reporting the crimes perpetrated against them. For example, college men and women identified (i) shame, guilt, embarrassment, not wanting friends and family to know; (ii) concerns about confidentiality; and (iii) fear of not being believed as significant barriers to reporting their sexual assaults. Women similarly rated a fear of retaliation by the perpetrator as an important barrier. These fears and concerns would undoubtedly be compounded if victims worried that every report they made would also be the subject of a defamation suit.

At the same time, it is important to recognize a competing policy concern, namely the impact of a false allegation of sexual assault on the life of an alleged perpetrator. Alleged perpetrators of sexual assault in the university context face potentially severe consequences, including suspension, expulsion and possible referral to law enforcement officials. Despite these potentially severe consequences, university proceedings … often provide limited procedural protections which fail to ensure that the alleged perpetrator is afforded a full and fair opportunity to defend him or herself.

These competing concerns suggest that qualified immunity, not absolute immunity, is the appropriate privilege to apply in circumstances like those at issue here.