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Quayle Accuser's Lawsuit Gets New Life


February 1995

The U.S. Supreme Court agreed on Jan. 20 to hear a case involving a former federal inmate's suit that he was denied his First Amendment rights when federal prison officials put him in solitary confinement just before the 1988 presidential elections, preventing him from contacting the media about his claims to have sold drugs to Dan Quayle in the 1970s (Kimberlin v. Quinlan, No. 93-2068; David G. Savage, "Quayle Accuser's Lawsuit Gets New Life," Los Angeles Times, Jan. 21, 1995, p. A24; for background information, see Kimberlin v. Quinlan, No. 91-5315, 6 F.3d 789 (D.C. Cir. 1993)).

The events are not in dispute by any of the parties. Brett C. Kimberlin was incarcerated in the El Reno Federal Correctional Institution in El Reno, Oklahoma. In 1988, Kimberlin's friend contacted journalist Nina Totenberg with a story about then-Vice Presidential candidate Dan Quayle that Kimberlin had sold marijuana to Quayle when Quayle was a law student in the 1970s. Totenberg arranged to interview Kimberlin, obtained an affidavit from Kimberlin about his story, and contacted the Bush-Quayle campaign.

NBC News interviewed Kimberlin on Friday, Nov. 4, 1988. Although NBC did not broadcast the story, media soon flocked to El Reno to interview Kimberlin. The warden of the prison suggested a "joint interview" or a "press conference" to ease the burden on the prison officials. R.C. Benefiel, executive assistant to the warden, told Kimberlin that a press conference would be held on Nov. 4 at 7:00 pm.

Mark Goodin, deputy press secretary for the Bush/Quayle campaign, called Loye W. Miller, Jr., director of Public Affairs at the Department of Justice, that day to say he was "amazed" that Kimberlin was going to hold a press conference. Miller told Goodin: "Well, amazed or not, he's going to have one. It's within his rights to have one according to the rules and regulations."

Late in the afternoon of Nov. 4, Michael Quinlan, director of the Bureau of Prisons, cancelled the press conference, saying that the Bureau of Prison's policy on inmate contacts with media allows for individual interviews but not press conferences. At 11:30 pm, Kimberlin was placed in "administrative detention." According to the detention order written by Benefiel, Kimberlin told the news media that his life was in danger and one of the watch lieutenants reported hearing other inmates making threatening statements about Kimberlin.

On Nov. 5, Goodin called Miller and said: "The closer to the Tuesday election that the story were to break, the more attention it was likely to get, and the better the chance that it could have at least some adverse effect on the Bush-Quayle chances." Miller said that Goodin did not try, however, to influence the Bureau of Prison's handling of the case. At 7:30 pm Kimberlin was released from detention.

On Nov. 7 at 9:00 am, Kimberlin was placed in detention again. Prison officials said Kimberlin was being punished for violating a rule against "third-party phone calls." Prison officials claim Kimberlin made the call in question on Nov. 4 to a friend who patched him through to Susan Estrich, the manager of the Dukakis campaign. Kimberlin said that he made the call, but did not know that it was against the prison rules. He was in detention for seven days, including election eve, when he had scheduled numerous press interviews, and election day, Nov. 8.

Kimberlin sued Quinlan, Miller, and the United States. His suit claimed that Quinlan and Miller conspired to violate and subsequently violated his Constitutional rights under the First and Fifth Amendments by denying him access to press and due process of law. Further, he charged Quinlan and the United States with assault and battery.

A dstrict court dismissed all but the First Amendment claims (774 F.Supp. 1 (D.D.C. 1991). Quinlan and Miller then sought dismissal of the First Amendment claims, arguing that they were immune from liability because they were acting in compliance with their duties. The U.S. Court of Appeals for the District of Columbia Circuit did dismiss that charge, finding that the facts of the case show that Quinlan and Miller were acting on objectively reasonable beliefs that Kimberlin's life was in danger and that Kimberlin had violated the third-party call rule.

Circuit Judge Harry T. Edwards dissented in the case on a number of points. He objected to the application of the "heightened pleading" standard, which requires a defendant to meet a higher standard of proof in municipal civil rights liability cases. Although Kimberlin's case was based on circumstantial evidence (the timing of the detentions coincided with the scheduled press conference and election-eve), Edwards wrote that Kimberlin's evidence was "ample." Edwards wrote that he is suspicious of the fact that Quinlan and Miller, two high-level Department of Justice officials, were highly involved in the case and had close contact with the Bush-Quayle campaign. Edwards took issue with numerous inconsistencies in the statements and memos by Quinlan and Miller about their roles in and intentions for Kimberlin's detention (No. 91-5315, 6 F.3d 789 (D.C. Cir. 1993)).

Kimberlin appealed the decision to dismiss the First Amendment claims. The Supreme Court is expected to hear the case in April and decide in the case in July.

At the time of the incidents in question, Kimberlin was serving time for placing and detonating a series of explosive devices in Sept. 1978 in Speedway, Indiana. In the most serious incident, Kimberlin left a gym bag in the parking lot of the Speedway High School. Carl Delong picked up the bag and the explosives detonated, tearing off his lower right leg and two fingers. Delong's wife also suffered serious injury from bomb fragments. Kimberlin is also serving time for other offenses, including impersonating a federal officer, illegal use of the Department of Defense insignia, illegal use of the Presidential seal, receipt of explosives, and conspiracy to distribute marijuana.