The Seventh Circuit has affirmed the district court’s decision to censure a lawyer who brought a claim that was barred by existing law.
Plaintiff alleged that a state prosecutor violated his civil rights by deciding to charge him with obstructing a police investigation. The prosecutor moved to dismiss on the ground that his decision to charge a defendant was entitled to absolute immunity.Imbler v. Pachtman, 424 U.S. 409, 427 (1976) The lawyer sought leave to amend the complaint. The district court, on its own motion, ordered the lawyer to show cause why he should not be sanctioned:
The district court denied leave to amend, reasoning that the proposed claims against the second prosecutor would be frivolous because the prosecutor would have absolute immunity in her individual capacity, and the Eleventh Amendment would bar any claims against her in her official capacity. The court also ordered Foreman to show cause why the claims against prosecutor Leisten should not be dismissed for the same reasons. Additionally, because in a previous case Foreman’s lawyer, Lawrence Redmond, had raised similar claims against prosecutors that were dismissed because of absolute immunity, the court ordered Redmond to show cause why he should not be sanctioned under Federal Rule of Civil Procedure 11(c).
The district court granted Leisten’s motion for judgment on the pleadings, noting that Foreman had not offered a basis for challenging the existing law of prosecutorial immunity. In addition, the court reasoned that a claim against Leisten in his official capacity would not fall under the exception to the Eleventh Amendment for injunctive relief because Foreman’s complaint did not sufficiently allege an ongoing constitutional violation, as opposed to a claim for damages to remedy a past injury.
After the claims against prosecutor Leisten were dismissed, a magistrate judge issued a report recommending that attorney Redmond be publicly censured under Rule 11(c) for advancing frivolous claims without offering any argument or authority that would support a change in existing law. The magistrate judge concluded that a censure would be an appropriate punishment and deterrent, especially in light of Redmond’s previous censure by the Supreme Court of Illinois in a post-conviction capital appeal.
The Seventh Circuit affirmed the decision to censure the attorney because he failed to raise a non-frivolous argument to change the law.
Comment: the lawyer was sanctioned because he filed a claim against a prosecutor that was barred by existing precedent and he offered no reason to show why his case was different or existing law should be changed. If you wish to change existing law, you need to be upfront with the court and explain why the existing law is unjust or incorrect or does not apply to your case.