U.S. District Judge Lance Walker could use a good editor.
I say this as someone who occasionally goes a bit overboard and gets reeled in by the level heads in our newsroom who spot pitfalls undermining my choice of this hot-button word or that loaded phrase.
Phrases like, in Walker’s case, “Plaintiff buried his head in the sand.”
Hizzoner, elevated to the federal bench by President Trump last fall, used those words in an order issued Tuesday to describe Matt Lauzon. Now 34, he’s the plaintiff in a long-running legal battle against the city of Biddeford, its police chief and a former officer who Lauzon says sexually abused him when he was a young teenager.
Walker this week granted summary judgment to the city and Police Chief Roger Beaupre. His ruling effectively lets them off the hook against Lauzon’s claim that they knew or should have known then-Biddeford police officer Stephen Dodd had sexually abused other boys in addition to Lauzon for years before he retired in 2003. (Lauzon’s ongoing civil case against Dodd was not affected by the ruling.)
Walker’s rationale: Lauzon waited too long. So long that the six-year statute of limitations for the civil rights claim had long expired by the time Lauzon filed his lawsuit in 2015.
Lauzon’s counter-explanation: He became aware only in 2014 that the city and Beaupre knew about Dodd’s decades-long history of sexually targeting boys, after some of those victims emerged in the wake of Lauzon’s allegations. Thus, the statute of limitations clock should have started ticking only then.
It’s a complex legal fight that likely will now move to the U.S. Court of Appeals for the First Circuit in Boston. There, the judges will be asked to consider Lauzon’s claim, as stated this week by his attorney, Walter McKee, that Judge Walker ruled “a sexual abuse survivor has to know the unknowable, which is troubling.”
Equally troubling is Walker’s choice of words to describe the years between the alleged abuse and Lauzon’s lawsuit.
“Plaintiff did not exercise reasonable diligence in pursuing his claim,” Walker wrote. “The facts underlying his claims against the City of Biddeford and Chief Beaupre were not inherently unknowable and yet, for his own personal and perhaps understandable reasons, Plaintiff buried his head in the sand.”
All due respect, Your Honor, victims of sexual abuse who take years, even decades, to tell their stories are the norm, not the exception. To say Lauzon spent that time with his head buried in the sand not only points an accusatory finger at him but also fails to acknowledge the mental and emotional anguish that haunts each and every victim as they struggle to come to grips with their past.
A close reading of Walker’s 17-page order shows that his poorly chosen words – which he actually uses twice – weren’t originally his. He initially repeats them, without quotation marks, in citing a precedent involving the 2001 murder of a patient in a U.S. Department of Veterans Affairs hospital.
And in that case, the “head in the sand” phrase isn’t even original. It’s resurrected from an earlier precedent involving the 1994 suicide of an inmate in a federal prison.
Three problems here.
First, by failing to put quotation marks around the words “head in the sand” early in his order and then repeating them in his conclusion, Walker now owns them.
Second, by using the phrase in the context of a case alleging sexual abuse, he fails to appreciate that victims in such proceedings aren’t wasters of time but rather prisoners to its passage. Paralyzed by the fear that no one will believe them, or that people will say it was their fault, they’re left to relive their trauma in solitude until someone, or something, finally emboldens them to come forward.
Third, while some may argue that this was a judge talking to the lawyers so what’s the big deal, the Federal Judicial Center’s “Judicial Writing Manual: A Pocket Guide for Judges” advises judges to consider that their audience often extends much further.
“When an opinion addresses an issue of general public interest or is likely to attract media attention, it should be written in a manner that will ensure it cannot be misunderstood,” the manual says.
Did plaintiff Lauzon simply misunderstand when he told Portland Press Herald reporter Megan Gray in an email that he was particularly hurt by Walker’s use of the “head in the sand” imagery?
Or, perish the thought, did Walker mean exactly what the phrase implies – that in the court’s opinion, Lauzon, rather than struggling with how to rise from his trauma, spent all those years simply ignoring it?
“I … felt an overwhelming sense of shame that I was too broken and weak to speak up and help make sure others don’t experience what I did,” Lauzon wrote in his email. “This is an especially dark place for me, because it feels like a decision like this is telling survivors it is their fault they are so broken and wait so long to come forward.”
This is not the first time Walker has knocked himself out with a metaphor.
In a July 3 decision – sidetracked later the same day by an appellate court in San Francisco – Walker upheld the Trump administration’s “gag rule” banning federally funded family planning clinics from making abortion referrals. He also tried to inform “the uninitiated” that his ruling did not adversely affect any right to an abortion previously sanctioned by the U.S. Supreme Court.
Here’s what he wrote:
“To that end, my role is circumscribed by Article III of the United States Constitution, which does not charge federal courts with the duty of judging the wisdom of public policy as the Oracle of Delphi heroically saving the republic from the product of its own democratic process.”
Let’s pause for a moment while the “uninitiated” Google “Oracle of Delphi.”
The point here is that words matter. And nowhere more so than when a judge, having heard and considered a difficult case, sits down at a keyboard and explains his or her ruling to the affected parties, those on the periphery and the community at large.
Walker, by using “head in the sand” to describe a survivor of alleged sexual assault, or the Oracle of Delphi to describe … whatever, seems at this early stage of his career as a federal jurist to be running afoul of the “Judicial Writing Manual’s” caution against going off the rhetorical deep end.
“Judicial writing can be pompous,” the manual notes. “The judge must avoid pompous writing in an opinion, such as arcane or florid language … or expressions of irrelevant erudition.”
My esteemed editors might put it more simply: Think before you write.
Send questions/comments to the editors.
