I blogged on Sept. 11, 2009, about the basic elements of so-called section 1983 “malicious prosecution” claims. I then blogged on 9-8-11, 9-26-11 and 8-7-13 about section 1983 malicious prosecution cases in the circuits.
What follows are three relatively recent circuit decisions dealing with such claims, decisions that I ran across in preparing the 2014 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(CIVLIBLIT on Westlaw). Two of these decisions are from the Seventh Circuit; the third is from the Tenth Circuit.
Julian v. Hanna (7th Cir. 2013)
In Julian v. Hanna, 732 F.3d 842 (7th Cir. 2013), the Seventh Circuit, in an opinion by Judge Posner, addressed the plaintiff’s due process malicious prosecution claim arising out of the law enforcement officers’ allegedly coercing another suspect in a burglary-fire to accuse plaintiff in the course of fabricating charges against him, leading to plaintiff’s prosecution, conviction and sentence of 15 years. He was thereafter successful in obtaining post-conviction relief and all charges were dismissed after he had served about three years but more than nine years after he was arrested. The Seventh Circuit, relying on the concurring opinions of Justices Kennedy and Thomas in Albright as well as on Parratt, rejected the defendants’ argument that they could not be sued for malicious prosecution under due process because Indiana provided an adequate remedy. This purported Indiana remedy was inadequate here for several reasons: the absolute immunity of police officers under state law and the fact that Indiana damages remedies for false arrest or false imprisonment would be far less than for malicious prosecution since they would cover only the week or so he was detained before being formally charged. In contrast, the period for which malicious prosecution damages might be recovered began with his arrest and ended only over nine years later when charges were dismissed.
Serino v. Hensley (7th Cir. 2013)
Compare Serino v. Hensley, 2013 WL 5878463 (7th Cir. 2013), where the Seventh Circuit dealt with the plaintiff’s allegation of a § 1983 due process malicious prosecution claim arising out of his being charged with trespass and resisting law enforcement. In the course of its opinion affirming the district court’s dismissal of the complaint, the Seventh Circuit reaffirmed that its decision in Julian had made clear that Indiana state law does not provide an adequate remedy for malicious prosecution. However, it determined that the plaintiff still had to allege a constitutional right separate from false arrest under the Fourth Amendment and he did not do so here. Specifically, he did not allege that the chief of police made recommendations that were knowingly false, that he withheld exculpatory evidence from the prosecutor or that he took steps to further what he knew was a baseless prosecution. Nor did plaintiff allege actual malice. Finally, he did not allege that he had suffered a post-arraignment liberty deprivation. His complaint alleged only harm resulting from his arrest. For these reasons the complaint did not state a constitutional violation for § 1983 malicious prosecution purposes.
Myers v. Koopman (10th Cir. 2013)
Myers v. Koopman, 2013 WL 6698102 (10th Cir. 2013), involved a plaintiff’s § 1983 malicious prosecution claims arising out of the defendant detective’s allegedly obtaining an arrest warrant by fabricating facts to create the illusion of probable cause, resulting in plaintiff’s spending three days in custody. The Tenth Circuit affirmed the district court’s dismissal of plaintiff’s § 1983 malicious prosecution due process claim because an adequate Colorado remedy existed. This alleged conduct could not be anticipated and hence an adequate post-deprivation remedy satisfied due process requirements. However, it reversed the district court’s dismissal of his § 1983 Fourth Amendment malicious prosecution claim because he was indeed seized after the institution of legal process. This differentiated the plaintiff’s § 1983 Fourth Amendment malicious prosecution claim from a Fourth Amendment false imprisonment claim. The Tenth Circuit relied for this point on its decision in Wilkins v. DeReyes.
1. All three of these cases speak about the availability of state post-deprivation remedies in connection with section 1983 (procedural?) due process malicious prosecution claims. The Seventh Circuit in particular emphasizes that such a remedy must be adequate and determines that the Indiana remedy for malicious prosecution is in fact inadequate.
2. As the Seventh Circuit points out, section 1983 malicious prosecution claims, whatever their constitutional basis, must be sharply distinguished from Fourth Amendment false arrest claims.
3. As the Tenth Circuit points out, section 1983 malicious prosecution claims based on due process must be sharply distinguished from section 1983 Fourth Amendment malicious prosecution claims.
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I would like to invite readers to attend my 31st Annual Conference on Section 1983 Litigation, to be held at Chicago-Kent on Thursday and Friday, April 24-25, 2014.
This national two-day conference, heading into its fourth decade, features expert academic speakers including Erwin Chemerinsky on immunities as well as his Supreme Court review, Karen Blum on local government liability, Rosalie Levinson on equal protection and Sheldon Nahmod on the section 1983 claim as well as the Second Amendment.
It also features outstanding practitioners from around the country, including Gerry Birnberg (Texas) on fees and ethical issues, John Murphey (Illinois) on practical considerations in section 1983 litigation and Brendan Egan (New Mexico) on immigration related issues.
The link to the brochure is here:
For further information, please contact Chicago-Kent’s CLE department via email at email@example.com or via phone at 312-906-5090.
Thanks. I hope to see you there. And please be sure to say hello.
I blogged on January 20, 2014, about the Supreme Court’s grant of certiorari in Lane v. Franks, a potentially significant First Amendment public employee free speech case in which a public employee was allegedly terminated because of his truthful subpoenaed testimony in a federal fraud trial. My post provides relevant background on the case.
I recently co-authored a Law Professors’ Amicus Brief in Support of Petitioner in Lane. It was posted, and can be accessed, at SSRN. The other co-authors are Scott R. Bauries of University of Kentucky College of Law and Paul M. Secunda of Marquette University Law School.
“This brief, submitted on behalf of more than 65 law professors who teach and write in the areas of employment law and constitutional law, argues that the Court should reverse the 11th Circuit’s decision denying First Amendment protection to a public employee who was allegedly terminated in retaliation for his testimonial speech in a criminal trial.”
I think you will find it interesting reading.
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My new article, entitled Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe, has just been published in 17 Lewis & Clark L. Rev. 1019 (2013).
Here is the link to the complete article.
This is the abstract:
“In 1951 the Supreme Court interpreted Section 1983’s language for the first time in Tenney v. Brandhove. This case, which arose against the background of the Cold War, involved the First Amendment and legislative immunity. The majority opinion, authored by Felix Frankfurter, took a strong federalism stance, while Justice William Douglas wrote the sole dissent in favor of civil rights. Ten years later, in Monroe v. Pape, the Court handed down a second important Section 1983 decision. This time, seven years after Brown v. Board of Education, the Court stood strong for civil rights in a police brutality case. Justices Douglas and Frankfurter were pitted against each other once again, but this time Douglas authored the majority opinion and Frankfurter wrote a strong partial dissent on federalism grounds.
This is another in a series of posts written about the Constitution in everyday language, with a minimum of legal jargon. Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution, addressed the Equal Protection Clause and considered free speech and hate speech.
The Fifth Amendment’s Due Process Clause applies to the federal government (“No person … shall …be deprived of life, liberty, or property, without due process of law”).
The Fourteenth Amendment’s Due Process Clause applies to state and local governments (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).
Distinguishing Between Procedural Due Process and Substantive Due Process
This post deals with procedural due process which focuses on fair and timely procedures. It is far less complicated and controversial than substantive due process which focuses on government regulation of conduct such as abortion, sexual conduct and certain family matters.
Life, Liberty and Property Interests
Procedural due process may be implicated whenever the government threatens to take a life, liberty or property interest from an individual.
The meaning of a “life” interest is self evident. The meaning of property and liberty interests is more tricky. As a general matter, both are brought into existence by state and local law. However, whether they constitute property and liberty interests for procedural due process purposes is a matter of federal constitutional law.
For example, a mere expectation of continued employment by a terminable-at-will public employee is not a property interest because there is no “legitimate claim of entitlement.” In contrast, if that public employee has a contract and is terminated in the middle of that contract period without any kind of a hearing, then that may constitute a property interest triggering procedural due process protections.
Although it is too complicated to get into here, liberty interests may include an individual’s interest in not being imprisoned (from the tort of false imprisonment), in not having his or her physical integrity interfered with (from the tort of battery) and in not having his or her privacy invaded (from the tort of privacy)
What Kind of Hearing and When?
Once it is shown that government threatens to deprive a person of a life, liberty or property interest, then certain procedural protections may kick in.
Ordinarily (except when there is a true emergency), a pre-deprivation hearing of some kind is required. Moreover, that pre-deprivation hearing must have minimal procedural protections: the government must provide notice of the accusations against the individual, it must present evidence against him or her and the individual must have an opportunity to respond. Not surprisingly, procedural due process requires an impartial decision-maker at some point in the proceedings.
The best example of a pre-deprivation hearing with maximum procedural protections is a criminal trial. In contrast, pre-deprivation hearings directed at property interests do not necessarily have to be conducted by judges. Very often administrative proceedings are sufficient for procedural due process purposes so long as they provide the minimum protections described above: notice, the government’s evidence, the opportunity to respond and an impartial decision-maker.
Next: Substantive Due Process
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In early December 2013, I delivered a one and one-half hour presentation on section 1983 to the New Mexico Defense Lawyers Association (NMDLA).
This presentation covers the elements of the section 1983 claim, individual immunities (absolute and qualified) and local government liability. It also includes Tenth Circuit cases of relevance to this particular audience.
I refer during the presentation to an outline I provided to the NMDLA audience, but that outline is not necessary in order to learn from my video.
I hope you will find it of interest and useful.
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Certiorari Granted in Lane v. Franks
The Supreme Court granted certiorari on January 17, 2014, in a potentially significant public employee free speech case. The case, Lane v. Franks, No. 13-483, arises out of an unpublished Eleventh Circuit decision, Lane v. Central Alabama Community College, 523 Fed. Appx. 709 (11th Cir. 2013).
In Lane, the plaintiff, the probationary director of a community college’s training program for at-risk youth, discovered that a state representative was getting paid to work for the program he ran even though she had performed no work. He raised these concerns internally but was warned that terminating her would cause problems. He terminated her nonetheless. Thereafter the FBI investigated the state representative with the result that the plaintiff testified before a federal grand jury and, pursuant to a subpoena, testified at the representative’s federal criminal trial for fraud. Subsequently, the plaintiff was terminated by Franks, the president of the community college.
Plaintiff filed a First Amendment retaliation claim under section 1983 against Franks in his individual and official capacities, alleging that plaintiff was fired because of his testimony. The district court ruled for the defendant, and this decision was affirmed by the Eleventh Circuit on the ground that the plaintiff’s speech was made pursuant to his official duties within the meaning of Garcetti v. Ceballos, 547 U.S. 410 (2006), or at least owed its existence to his professional responsibilities. The speech was thus not the speech of a citizen on a matter of public concern: rather, the plaintiff was acting pursuant to his official duties when he discovered that the state representative was not doing work, when he terminated her employment and when he testified pursuant to subpoena. Accordingly, the First Amendment did not apply to protect the plaintiff.
1. Is the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities?
2. Does qualified immunity preclude a claim for damages in such an action?
If you are familiar with my highly critical article on Garcetti, you will recall I argued that Garcetti was unsound and that, at the very least, the “pursuant to official duties” criterion should be narrowly interpreted so as to give as much breathing space as possible to whistleblowers. See my post of December 8, 2009 entitled Public Employee Free Speech: The New Regime.
Note that Lane does not deal with alleged retaliation arising out of the plaintiff’s internal report about the state representative, which is rather clearly speech pursuant to his official duties under Garcetti. Instead it deals with the plaintiff’s subpoenaed testimony, which should be considered the speech of a citizen on a matter of public concern.
Lane will be argued and decided this Term.
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