She’s not having it with the dismissal of Constable Alan Rosen as a defendant from the lawsuit.
Constable Alan Rosen
The booze-fueled undercover hotel operations were bad. Felecia McKinney’s worst moment at the Precinct 1 Constable’s Office, however, came two years ago, during an undercover sting at a Massage Heights near the Texas Medical Center.
Another Precinct 1 employee had been assaulted at the business. Her bosses wanted her to pose as a customer, wait to see if he acted again, and then give a signal to bust him and take him down.
When she emerged from the spa, a superior told her to drive herself to the hospital to get a sexual assault examination while Constable Alan Rosen held a celebratory news conference in the business’ parking lot, she said at a press conference Friday.
[…]
After the spa sting, McKinney and Erica Davis — the Precinct 1 employee whose assault led to the investigation of Massage Heights — sued the establishment, saying the budget spa chain, its employee, owner and franchisor were negligent in training and supervision. Davis agreed to a monetary settlement in the case but McKinney’s complaint is still pending. Criminal charges against Wenjin Zhu, the massage therapist accused of sexually assaulting Davis and McKinney on the massage table two days apart, are also still pending. Zhu is detained in the county jail.
Though her lawyers have described her experience in court filings, McKinney had never addressed the public about her sexual assault in August 2019 until her brief remarks to reporters at her attorney’s office Friday morning.
“He knows what happened to me,” McKinney said of Rosen. “He intended it. He ordered it. And to hear him claim victory — and that he wouldn’t be held personally accountable for something he’s admitted to doing makes me feel attacked, unheard, and very alone.”
What angered her the most, she said, was reading comments from Rosen’s defenders that the constable should never have been included in the lawsuit in the first place.
“This case was never about money for me. It was about exposing the truth and holding people accountable,” she said, her voice catching. “When I read his comments and his attorney’s comments, I felt really victimized in ways I never expected. …When I saw the claim that he never should have been in the lawsuit, after ordering an operation that I go in to be sexually assaulted, I broke down.”
See here for the previous entry. I don’t know if the decision to remove Rosen as a defendant was a good one or not – I presume it can be appealed, but regardless of that the lawsuit itself if still ongoing. The allegations still refer to things that happened under Constable Rosen’s watch. I’m still far from convinced that any of the undercover actions were a good use of law enforcement resources, whether or not the deputies in question were put in needless danger. I don’t know what will come of this case, but we need to hear what Ms. McKinney and her fellow plaintiffs have to say.
PLEADING SUFFICIENCY VS. STIRRING THE PASSIONS OF THE PUBLIC
RE: “I don’t know if the decision to remove Rosen as a defendant was a good one or not.”
Comment: It doesn’t work that way. Trial judges are at the lowest rung of the judicial hierarchy and have to apply the governing law (procedural and substantive) to the case, including the relevant case law, here from the Fifth Circuit more specifically in addition to SCOTUS precedent, the latter being the law throughout the union. District judges don’t get to decide willy-nilly what seems like a good idea to them or not.
A plaintiff (in consultation with her attorney) gets to make the decision about who to name and not name as a defendant in the first place, and could remove one so selected voluntarily later (in state court even without court consent, given the more liberal rules for the amendment of pleadings and unilateral nonsuit), but the “removal” here was a judicial decision in the form of a dismissal for failure to state a claim against the specific defendant. That’s no commentary about the propriety of what happened, just of the sufficiency of what was alleged as to the specific defendant, and whether it supported the elements of a Section 1983 claim.
In this specific situation, it’s almost impossible to form an educated opinion about the propriety of Rosen’s dismissal from the case because the judge really provided no analysis of the relationship of the specific facts and the applicable law as to Alan Rosen’s involvement. One would have to look at the complaint and the motion papers and then try to make inferences based on that. It’s difficult to second-guess the judge when the judge only states a conclusion and doesn’t explain how he arrived at it.
That said, in state courts, judges routinely issue rulings – such as granting or denying motions for summary judgment or dismissal without any explanation at all, i.e., not even a recitation of the applicable law. So, in that sense, the media and the public gets more information about the court’s decisionmaking process in federal district courts (akin to appellate opinions), but not much here in this particular instance.
Re: “This case was never about money for me.”
At first blush, this disclaimer is disingenuous because when you sue in federal court, you have to demonstrate legal standing and how the court can redress your grievance, which must be actionable. You can’t make what happened (such as a sexual assault) unhappen by judicial action, so the only available remedy is compensatory damages. Now, if someone in her position had been unlawfully fired for refusing to perform an unlawful act, or something like that, that would be a different type of claim, and reinstatement to the job might be an appropriate remedy in lieu of — or in addition to — money damages.
On second thoughts, however, her claim that it wasn’t about money (not even a nominal $1) would actually support the judge’s decision to dismiss the case, or part of it.
The disavowal of an intent to collect damages goes to redressability. If you are not seeking a money judgment for an alleged injury you have suffered, and if reinstatement after being fired is not an issue, what are you in court for?
You are not supposed to use a court filing merely to air grievances in public and as a way to taint the reputation of the defendant, though no doubt that often happens. Federal courts are courts of limited jurisdiction pursuant to Article III and require the plaintiff to present a proper case or controversy. A federal court is not a general publishing platform or proverbial town square, and not a forum to exact political or moral accountability. That’s what elections are for in a case where the culprit is an elected official.
That said, the dismissal of Rosen is being covered by the press, so to the extent that the decision to name Rosen as one of the defendants was for extra-legal or otherwise ulterior purposes, we could conclude that it worked.
If there is no viable legal cause of action against him (at least not under Section 1983), and if there is no realistic way to get the Fifth Circuit to countermand the judge (or not promptly enough), there is always the court of public opinion. And, of course, in a press conference, you can appeal to the emotions and sympathy of the audience, trusting that the vast majority of such audience has no understanding of the law as applied by federal district judges, or of the various subparts of rule 12 of the Federal Rules of Civil Procedure, including Rule 12(b)(6) – Failure to State a Claim Upon Which Relief Can Be Granted.
For a primer of FRCP 12 and relevant case law, see here:
http://nofba.org/wp-content/uploads/Fundamentals-of-Rule-12.pdf
To the extent that can be done in federal court at all — appealing to the sympathy and passions of the plebes — a pretrial motion to dismiss doesn’t provide an occasion to do so. It is after all, not a trial, not to mention a jury trial, and if there is a court hearing at all, it’s merely for argument by the attorneys.