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Monday, May 10, 2021

Twiqbal and accrual

The Eighth Circuit held last week that a claim for retaliation accrues at the time of the retaliatory actions and comments suggesting retaliatory motive. (H/T: Volokh Conspiracy's Short Circuit). The case arises from the 1989 kidnapping and murder of an 11-year-old in central Minnesota, a national-obsession case I had never heard of; I plowed through the In the Dark podcast on the case over two bike rides this weekend.

Daniel Rassier and his mother, Rita, owned the farm at the end of the driveway near which the abduction occurred; the killer turned around and parked in that driveway for a time on the night of the attack. Beginning around 2004, Daniel publicly criticized the new county sheriff, who had begun focusing on Daniel as a possible suspect. In 2009, the sheriff sent the victim's mother into a conversation with Daniel wearing a wire, hoping to catch him saying something incriminating; Daniel instead criticized the sheriff and the investigation. Upon hearing those critical comments on the wire, the sheriff obtained a search warrant for the Rassier home and publicly named Daniel a "person of interest" (a meaningless term that should be retired). During the search, the sheriff allegedly twice told Daniel, "this is what happens when you talk." The sheriff repeated these statements to the podcast reporter, suggesting there are ways a person should not speak about an investigation. Daniel obviously became a social pariah after these accusations, including losing his business giving private music lessons.

The killer, Danny Heinrich, was identified in 2016 and confessed, pleading guilty to one count of possession of child pornography (the podcast discusses the reasons for that). The sheriff never apologized or acknowledged the mistake in suspecting Daniel. This plays into the podcast's theme that the police screwed the case up (they identified the perpetrator within a few days, then failed to put together the necessary information) and that this county sheriff's office has a notorious track record for failing to solve major violent crimes.

Daniel and Rita sued in 2017, less than a year after Heinrich's confession but seven years after the search (the limitations period is six years). Daniel argued that the claim did not accrue until 2016, when two things happened: 1) Heinrich confessed, thus establishing Daniel's innocence of the crime; and 2) Daniel read an unsealed copy of the sheriff's warrant affidavit, which he said was the first time he had written proof of retaliatory motive. (The podcast reports on a the transcript of the warrant hearing, which shows law enforcement making stuff up). The court rejected the argument, holding that 1) there is no requirement of certain innocence before the claim can accrue and 2) the sheriff's oral statements gave Daniel notice and a basis to believe there was a retaliatory motive, starting the clock on the claim.

Had Daniel sued prior to 2016, he would have alleged the sheriff's statements, along with facts describing the search, his criticism of the investigation, the various investigative failures, and his innocence of the crime. The court states that those facts gave Daniel notice of a viable claim. The court implies that this would have been sufficient to state a claim and that he could have found the affidavit in discovery and used it to prove his case.

But would those facts, without the allegations based on the affidavit or the sheriff's later stattements, have survived a 12(b)(6) under Twiqbal? The court might have held that the sheriff's isolated statements are ambiguous or capable of alternative understandings, rendering retaliation a possible-but-not-plausible conclusion from the facts. Other allegations of retaliatory motive, without the evidence of the affidavit or other specific facts showing intent, might have been rejected as conclusory. So might the allegations that Daniel was innocent of the kidnapping/murder. Thinking of what Daniel could have known between 2010 and 2016, it is unlikely he had enough to survive dismissal.

This case places the problem in some relief. A claim is said to accrue when the injured person "can file suit and obtain relief." For a retaliation claim, that is the time of the retaliatory act combined with some basis to believe there was a retaliatory motive. But Twiqbal disconnects filing suit and obtaining relief. The information sufficient for the claim to accrue and to compel suit might not, when reduced to writing, be sufficient to survive a motion to dismiss. That seems problematic.

Posted by Howard Wasserman on May 10, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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