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CAMPBELL, JAMES v. MILLER, FRANK (SD Ind., Judge Barker)
Before EASTERBROOK, KANNE, and WILLIAMS, Circuit Judges.WALLACE, DONALD R. v. DAVIS, CECIL (SD Ind., Judge Barker)
EASTERBROOK, Circuit Judge. Police in Indianapolis arrested James Campbell for possessing marijuana. Because the local jail is crowded, Indianapolis does not make a full custodial arrest of each person arrested for a misdemeanor; instead it issues a summons and citation. Before releasing Campbell, however, the police conducted a body-cavity search for drugs. Nothing was found, and no criminal prosecution ensued. Campbell then sued ten officers, the Chief of Police, and the City of Indianapolis, under 42 U.S.C. §1983, contending that the search violated the fourth amendment. He seeks not only damages but also an injunction against this practice. The district court denied Campbell’s request for a preliminary injunction, concluding that he has an adequate remedy at law. He immediately appealed under 28 U.S.C. §1292(a)(1).Campbell supposes that money never is an adequate remedy for a constitutional wrong. That belief is incorrect. * * * Affirmed.
WILLIAMS, Circuit Judge, dissenting. The majority opinion fails to address key testimony in this case—factual allegations which not only require this court to evaluate Campbell’s claim in more detail than the majority opinion provides, but also suggest a different result. While I regard the question of whether Campbell has standing for a preliminary injunction as close, I ultimately conclude that he has satisfied that constitutional requirement and has also demonstrated the inadequacy of money damages. For these reasons, I dissent. [Dissent is 15 pages and includes much about the IPD, majority opinion is 3 pages]
Before FLAUM, Chief Judge, and POSNER, COFFEY, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD, EVANS, and WILLIAMS, Circuit Judges. Petitioner-appellant filed a petition for rehearing and rehearing en banc on April 9, 2004. A majority of the judges on the panel voted to deny rehearing. A judge called for a vote on the petition for rehearing en banc, but a majority of the active judges did not favor rehearing en banc. Accordingly, the petition is denied.Posted by Marcia Oddi at June 28, 2004 01:24 PMRIPPLE, Circuit Judge, with whom ROVNER, DIANE P. WOOD and WILLIAMS, Circuit Judges, join, dissenting from the denial of rehearing en banc. Federal Rule of Appellate Procedure 35 explains that rehearing should be granted when “(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions” or “(2) the proceeding involves a question of exceptional importance.” Both of these disjunctively-stated criteria in Rule 35—uniformity and exceptional importance—justify the court’s rehearing this case en banc. * * *
As to the second criterion for rehearing, exceptional importance, we need only recall that the Supreme Court has calibrated carefully its jurisprudence in the capital punishment arena to ensure reliability in the State’s decision to deprive a human being of life. See Johnson, 486 U.S. at 584 (“The fundamental respect for humanity underlying the Eighth Amendment’s prohibition against cruel and unusual punishment gives rise to a special need for reliability in the determination that death is the appropriate punishment in any capital case.” (internal quotation marks and citations omitted)). The majority opinion in this case rides roughshod over a cornerstone in that jurisprudence—that invalid factors infecting the weighing process must be cured by the State. The panel majority’s deviation from the course set by the Supreme Court is precisely the sort of exceptional error Rule 35 was intended to address. * * *
Also, whatever the correct outcome in this case, we remain under a fundamental obligation to ensure that the capital punishment jurisprudence of this court conforms to that of the Supreme Court. This obligation takes on special meaning when a panel majority speaks on an issue of immense importance in other death cases and does so in a manner that is fundamentally at odds with the Supreme Court’s carefully crafted jurisprudence.