What It’s Like to Appear Before the Sixth Circuit En Banc

I didn’t know it, but the Sixth Circuit has a special rule, a “heightened pleading requirement”, in civil rights cases. If you file a civil rights case against a police officer you have to “set forth clearly” the fact that you are suing him in his individual capacity. Otherwise they assume that you are suing him only in his official capacity, that is, they assume you are just suing the city. They made up the rule in a case called Wells v. Brown. It’s a circuit split – only in the Sixth Circuit and maybe one other circuit is there a “heightened pleading requirement.”

Of course there is another rule which says that ordinarily you can’t sue the city at all, at least not in Federal Court. So if somehow you don’t “set forth clearly” that you are suing the officer in his individual capacity, you don’t have a lawsuit. And that is exactly the situation I found myself in when I got the letter from the District Court Judge. He said that I hadn’t set forth clearly that I was suing the police officers in their individual capacity and he dismissed my case. Just like that. Even after I resigned myself to the idea that there was such a thing as a “heightened pleading requirement” I was still puzzled, because my complaint had said the officers were “individual defendants” a number of times, it had said they were “acting for themselves and for the City,” it had listed them in the caption by their individual names and it had said they were the “defendants.” And it asked for damages against “each of the defendants.”

But, according to the District Court Judge, they were not “clearly notified” that they were getting sued. So I had to appeal to the Sixth Circuit. We went to Cincinnati and argued before a three judge panel. And it turns out that they agree with me. I had satisfied the heightened pleading requirement. I had set forth clearly that I was suing the officers in their individual capacities. I was very pleased with things for about thirty days. Then I got the Motion for Rehearing En Banc. And even then I just laughed. After all, why on earth would the Sixth Circuit grant an en banc rehearing in this case? Just another factual permutation of Wells v. Brown. But then I got the Order. The motion was granted! We were going to the en banc Sixth Circuit.

So I end up in back in Cincinnati just a few days before Christmas. I’m sitting there waiting for Court to get started. There are two other cases on the docket besides ours. All the other attorneys are busily reading cases and briefs and what not. Not me. I figure at this stage of the game what’s the point? I’m just taking in the scene and trying to remain calm.

I never expected this kind of crowd. It’s obviously going to be standing room only. You had your supplemental lawyers for each case and the legal assistants. But mainly it was the Court’s law clerks. There were supposed to be 13 judges and each one had about a half dozen law clerks. They were gathered in small groups all over the courtroom. Basically, it looked like a big crowd of college students. The place was buzzing like a beehive. Except for the distinct edge of tension in the air, it could have been Rump Court. And then you had your reporters. After all it was en banc day.

I need to break the tension so I go outside. If I had known then that midway through my argument the entire 13 judge court would be giving me an ovation, I wouldn’t have been so uptight. That’s right, all 13 judges clapping their hands in sustained applause. For me. I should add right here that it was not for brilliant argument. Anyway, I get outside and I spot the chief court officer. He’s watching the crowd gather. “How often do they sit en banc?” I ask him. “Hardly ever”, he says. “But when they do…” He left it hanging. Then he added, “Its real impressive! All the judges sitting up there together. You won’t believe it.” So much for breaking the tension.

Back in the courtroom, it was just like he said. The judges file in. There is only one word that describes the scene - solemn. Very solemn. Every seat taken and people standing in every space around the edges. The first case gets underway. It has to do with the state motto of Ohio: “With God, all things are possible.” The ACLU is saying it’s unconstitutional. If it was just promoting religion in general the motto would evidently be OK. But the ACLU guy says these are the specific words of Jesus. He says that’s promoting a particular religion, which is a problem. I thought he could have made the point better by holding up a red letter edition, but he didn’t have one.

Then the first case is over and they call the second case. That’s us. I get up to the podium and the Chief Justice gives me the nod. Of course, I have a plan. Each judge has in his hands a copy of the complaint that I have personally highlighted. It’s highlighted every time it says the officers are “individual defendants.” It’s highlighted where it says the officers were “acting for themselves and for the City.” And so on.

So we get started. You have to realize that the judges are sitting on a raised bench in a kind of semi-circle, with the podium in the middle. It’s a perfect setup for an ambush or a crossfire. I’m up there trying to show them the complaint. I’m telling them things like “Where I come from this is the way we sue people.” And they are shooting questions fast and furious. They think nothing of interrupting each other or of interrupting your answer while you are answering another judge’s questions. Once they see what your answer is going to be they just butt in and ask another question. They sit in order of seniority. Senior people in the middle, junior people at the edges. So most of the questions come from the middle.

And that’s where the question came from that brought the thing to a halt – from the dead center, the Chief Justice. He says, “Well counselor, I understand where you come from and all that, but tell me this: when you filed this case did you know about Wells v. Brown?” At that moment I had been answering a question from another judge. Actually, the judge who wrote the panel decision, sitting at the edge, had thrown me a fish, and I was using a meaningful gesture to reinforce my answer. All I could do was drop both hands to my sides and look at the Chief Justice. There was this moment of dead silence. Then I said, “I had absolutely no idea.”

Maybe they didn’t expect that kind of an answer. The Chief Justice looks to the judges on his right and then on his left. He starts nodding his head and this kind of grin starts to spread over his face. And he starts clapping his hands. And all the others join in. Laughing and clapping. I am a very popular fellow. I was able to coast home from there.

So then the other attorney gets up. It was Nathan Rowell and he did a really good job. But what happened to him was even crazier than what happened to me. He was explaining how vitally important it was to clearly notify individual police officers that you are suing them in their individual capacity and how invaluable Wells v. Brown has been to the field of jurisprudence. That’s when it happened. Again, it came from the center. From Judge Merritt, the author of Wells v. Brown. Right beside the Chief Justice. He says, “Well, you keep talking about Wells v. Brown. Truth of the matter is we’re kind of out here all by ourselves on this thing. We’ve staked out this position and nobody much has come with us. Would it be such a bad thing if we had the same rule as everybody else?” Then he put the cap on it: “You need to realize something: we’re sitting en banc today and we can change Wells v. Brown.”

Well, that cleared up the mystery of why they had agreed to hear the case en banc. And it made rebuttal pretty easy. I got up, smiled appreciatively, and said, “Yes, I think it would be a fine thing if we had one rule for the whole country.” The Chief Justice just laughed. He said, “A uniform rule? In this country? That could never happen.” Once again it came from the center. From Judge Nelson, on the other side of the Chief Justice. He said, “I don’t know. With God, all things are possible.”

Of course it brought down the house. And ended the argument.

At this writing, the case is under advisement. I have my fingers crossed.

[As mentioned in main article, the Court did change Wells v. Brown and we did win the case!!]