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May 13, 2010

A gendered execessive force case of note as we reflect on gendered judging

Perhaps because I am married to a female Princetonian, I am especially focused on how gender issues (as well as elitism issues) are starting to play out in this debate over the nomination of SG Elena Kagan to the Supreme Court. (For some basic back-story, consider this New York Times piece from a few days ago, which is headlined "Reshaping Court’s Culture, a Woman at a Time.")  In other words, I am primed to be thinking about gendered judging: whether and just how women may view legal disputes differently from men.

With this background, I found especially notable some of the gendered realities surrounding this split ruling by the Sixth Circuit today on an Eighth Amendment excessive force 1983 case.  For starters, there is a gendered dynamic to the underlying facts: the plaintiff is a woman, Trudy Griffin, arrested for disorderly conduct suing a male corrections officer, Darrell Hardrick, who sought to control her through a "leg-sweep maneuver" which led to a tumble during which a female corrections officer fell on the Griffin and broke her tibia. 

Right out of the box, I found intriguing that the female plaintiff apparently sued only the male corrections officer.  But that choice may have been greatly influenced by the fact allegation made by plaintiff Griffin that the officer Hardrick told her that "she 'was his bitch.'"

Significantly, the entire incident was captured on video, but a video with no sound (and thus there is no recording to establish or refute whether Hardrick said to Griffin that she "was his bitch").  Relying in part on the video, the male corrections officer sought and was granted summary judgment by the district court which held that "no reasonable jury could find that Hardrick had intended the unnecessary and wanton infliction of pain when he tripped Griffin."  That ruling now is before the Sixth Circuit, with a panel of two men and one woman considering whether this grant of summary judgment to the male corrections officer was appropriate.

With this set-up, I suspect the astute reader can already guess the nature of the split ruling from the Sixth Circuit that prompted this post.  The two male Sixth Circuit judges on the panel both voted to affirm the grant of summary judgment on behalf of corrections officer Hardrick.  Dissenting, the female Sixth Circuit judge on the panel asserts that a "jury viewing the events portrayed in the video in light of the statements Griffin attributes to Hardrick could reasonably conclude that Hardrick could not plausibly have thought that the use of the takedown maneuver, although executed properly, was necessary, and that, in fact, he performed it solely to inflict pain, even if not of the degree that ultimately occurred."

I find it useful and worthwhile not only to notice these gendered realities, but also to speculate whether a Justice Kagan might see this case differently than a Justice Stevens.  (And, if we want to get elitism issues into this conversation, we might also wonder whether Elena Kagan or anyone else on President Obama's SCOTUS short-list has ever been arrested for disorderly conduct or ever worked as a corrections officer.)  

For a last little bit of gender-awareness, I encourage readers to note that, in telling this tale, I have intentionally not reported the gender of the district judge who granted summary judgment and turned this matter into appeal fodder in this posture.  Any reader who is interested to know the gender of the district judge who granted summary judgment in this case is likely someone who thinks that gender may be, at least descriptively, of some pertinence to the craft of judging (dare I say umpiring) in at least some contexts.

May 13, 2010 at 11:28 AM | Permalink


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Are you really suggesting there are two sets of laws given the same facts? Better to prefer the dissent would be the same if the plaintiff were male and the corrections officer was female.

Posted by: George | May 13, 2010 1:11:25 PM

I am absolutely not suggesting there are "two sets of laws" here, George. In fact, all the judges in this case agree on the same applicable legal standard. Rather, I am speculating whether gender might impact how one draws conclusions from the video and other case facts here.

To use the umpire metaphor, I am not saying there there are different legal definitions of the strike zone in this case, only that different gendered umpires might reach different conclusions about whether the plaintiff's pitch here is just barely a strike or just barely a ball.

Posted by: Doug B. | May 13, 2010 1:45:33 PM

Thanks for the clarification, Professor. The strike zone analogy is a good one because every hitter knows it can vary depending on the umpire. I'm reminded of a study that found women police officers were more willing to listen to suspects and mediate to curb violence like resisting arrest but it is very difficult for them. Compare “Who’s the Man?”: Masculinities Studies, Terry Stops, and Police Training." (SSRN abstract *) "Martin says that while the demographics of major police departments have changed significantly, police culture continues to require that female officers act in masculine ways to achieve acceptance." (p 693)

Female judges and justices can be tough on crime and criminals but would not likely be under that pressure because the judicial branch is independent. Maybe a little of that was in play in the dissent.

* Frank Rudy Cooper
Professor of Law, Suffolk University Law School

Posted by: George | May 13, 2010 3:09:14 PM

I have a gendered judgment for the lawyer. The American male has been made the bitch of the rent seeking lawyer and every rent seeking lawyer client, such as the terrorist, the criminal, the government. The American male will have to find the line beyond which he stops being the bitch, and just kicks the ass of his oppressor and traitor to our nation. A male President will get the nerve or be pushed against a wall of national destruction, arrest the hierarchy of the lawyer profession, give it an hour's fair trial, and shoot it in the head, in the basement of the court.

Posted by: Supremacy Claus | May 15, 2010 7:10:22 PM

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