This past year, I was, as usual, preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2014; West Group), when I came across three additional recent circuit court decisions applying Iqbal to supervisory liability.
The Second Circuit decision addresses personal involvement, the Ninth Circuit decision deals with causation and the Eleventh Circuit decision discusses deliberate indifference.
The Second Circuit dealt with a post-Iqbal case involving a pretrial detainee’s pro se individual capacity claim against a warden in connection with allegations of denial of visitation rights, telephone usage, access to a law library and deprivation of temperature control, ventilation and various amenities. The district court dismissed on the ground that the complaint contained no allegations from which the warden’s personal involvement could be determined and further ruled against the plaintiff’s request for leave to amend. Reversing, the Second Circuit held that the plaintiff should at least have been allowed to amend his complaint in order to allege plausibly that the warden had been informed of the alleged denials and deprivations by a letter that the plaintiff had previously sent to him. The Second Circuit observed that in response to the defendant’s motion to dismiss, the plaintiff referred to such a letter informing the warden of the conditions of his confinement. If such a letter had been sent, a court could infer that the warden was in fact aware of the alleged conditions of which the plaintiff complained, thus constituting the requisite personal involvement. Grullon v. City of New Haven, 720 F.3d 133 (2d Cir. 2013)(quoting Hansen v. Black, 885 F.3d 642, 645-46 (9th Cir. 1989).
The Ninth Circuit, in a post-Iqbal supervisory liability case involving allegations of deliberate indifference against a prison medical director and others in connection with the plaintiff prisoner’s medical care, said the following: “[Under § 1983 a] supervisor may be liable only if (1) he or she is personally involved in the constitutional deprivation, or (2) there is a ‘sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’” Here, there was no evidence that the defendant’s policy of changing dosages of Lithium from three to two, without increasing the total amount prescribed, could have caused plaintiff’s Lithium toxicity. Crowley v. Bannister, 764 F.3d 967 (9th Cir. 2013).
In a post-Iqbal case involving a pretrial detainee’s allegations against various supervisory prison officials that they did not protect her from a corrections officer who sexually assaulted her, the Eleventh Circuit reversed the district court and held that she did not plausibly allege the requisite deliberate indifference. It was not enough that she repeatedly alleged deliberate indifference and that the defendants knew or should have known of the risk to her. There were only a few properly pleaded facts—that the corrections officer verbally harassed the plaintiff and told her there was nothing she could do, that he sexually assaulted her, that he had previously sexually assaulted another pretrial detainee and that he had previously had sexual relations with a third detainee. These were insufficient to state a plausible claim against the defendants that each was subjectively aware of the risk and knowingly disregarded it. Indeed, and to the contrary, the plaintiff’s allegations suggested that the jail’s policy was to promptly investigate claims of sexual harassment. Franklin v. Curry, 738 F.3d 1246 (11th Cir. 2013).
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Lane v. Franks: New Public Employee Free Speech Decision
The Supreme Court, on June 19, 2014, handed down an important public employee free speech decision in Lane v. Franks (PDF), No. 13-483. The Court unanimously held, in an opinion by Justice Sotomayor, that a public employee who testifies truthfully at trial, pursuant to a subpoena, is protected by the First Amendment from employer discipline, at least where the testimony is not pursuant to his/her duties as an employee. However, the Court also ruled that the employee’s superior, who fired him, was not liable in damages because of qualified immunity.
Previous Posts on Lane v. Franks
I previously blogged about this case when certiorari was granted, see post of January 20, 2014; when (full disclosure here) I co-authored a Law Professors’ Amicus Brief in Support of Petitioner, see post of March 13, 2014; and when I did a short video on the case, see post of April 25, 2014. Those posts set out the background and facts.
The Opinion: The First Amendment Merits
Justice Sotomayor initially set out the basics of public employee free speech jurisprudence stemming from Pickering v. Bd. of Education and Garcetti v. Ceballos. She observed that where a public employee is disciplined for his or her speech and asserts First Amendment protection, the first question was whether the speech engaged in–here, Lane’s testimony at two federal criminal trials– was pursuant to the employee’s job duties. In this case, it was clear– even undisputed–that Lane’s testimony, pursuant to subpoena, at trial, was not part of his ordinary job duties. Moreover, it was every citizen’s duty under subpoena to testify truthfully at trial. The Court emphatically rejected the misguided position of the Eleventh Circuit in this case that Lane’s speech was not that of a citizen but that of an employee because he testified about information arising out of his employment.
The second question–whether the speech dealt with a matter of public concern–was also easy to answer: Lane’s testimony dealt with the malfeasance of a state legislator in connection with the misuse of public funds. According to the Court, this was a classic case of whistle-blowing about public corruption. This was surely a matter of public concern. Consequently, the First Amendment was implicated here.
Finally, as to the Pickering balancing test, the Court observed that the various defendants never seriously argued that the balance should tip in favor of allowing Lane to be disciplined. There was no countervailing governmental interest whatever that would justify his firing.
Consequently, the First Amendment protected Lane from discipline for his truthful testimony.
The Opinion: Qualified Immunity
The defendant Franks was sued for damages under 42 U.S.C. section 1983, which provides a damages remedy against state and local government officials who violate a person’s constitutional rights. See generally Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES: THE LAW OF SECTION 1983 (4th ed. 2013). However, qualified immunity is a defense to damages liability where the defendant can show that the relevant constitutional law was not clearly settled at the time of the unconstitutional conduct, thereby not providing fair notice to the defendant that his or her conduct was unconstitutional.
Here, the Court agreed with defendant Franks’ argument that the relevant First Amendment law was not clearly settled in the Eleventh Circuit in January 2009 because, at best, there were Eleventh Circuit opinions going in different directions as to the applicability of the First Amendment to a public employee’s subpoenaed testimony at trial. And Garcetti itself did not address that question.
1. Lane is a major decision because of its unanimous ruling on the First Amendment issue. It is also significant because it’s the first Supreme Court decision to consider the implications of Garcetti, handed down in 2006. The Court soundly treated Lane’s testimony as citizen speech, even though it arose out of Lane’s employment.
2. The opinion expressly did not address the question whether the First Amendment should protect the truthful testimony of a public employee where that testimony is part of the employee’s job responsibilities. Nevertheless, I would argue that Garcetti should not preclude First Amendment application even here because the obligation of a public employee to testify truthfully arises from his or her status as a citizen, and this should trump the fact that the subpoenaed testimony is part of the employee’s job duties. This is where I would part company with the concurring opinion of Justice Thomas, joined by Justices Scalia and Alito.
On the other hand, if the employee testifies falsely or misleadingly in such a situation, employer discipline should not be barred by the First Amendment.
3. Finally, the defendant in this case, Franks, was protected by qualified immunity because the relevant First Amendment law was not clearly settled at the time he terminated Lane, namely, January 2009. The Court therefore rejected Lane’s contention that, regardless of the Eleventh Circuit’s confusion on the matter, Garcetti itself established clearly settled law. However, since the Court unanimously read its opinion in Garcetti in favor of Lane’s position, I wonder why that did not, in 2006, establish clearly settled First Amendment law for the nation regardless of the Eleventh Circuit’s own precedents. One possible answer is that the Court still did not consider this fair notice to Franks because the Garcetti itself did not address the precise issue in Lane. Still that seems like an overly narrow application of the clearly settled law requirement.
Nevertheless, Lane declares that as of June 19, 2014, the relevant First Amendment law regarding the truthful testimony of a public employee on a matter of public concern, which is not part of his or her job duties, is indeed protected from governmental discipline by the First Amendment. All public employers are now on notice of this clearly established law in the future.
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In a much-read post of October 27, 2011, entitled A Section 1983 Primer (5): Statutes of Limitations, I blogged about statutes of limitations in section 1983 cases. There I briefly discussed the complicated issues of (1) choosing the right state statute of limitations, (2) accrual of section 1983 claims and (3) when section 1983 claims are tolled.
Subsequently, in my post of June 17, 2013, entitled A Section 1983 Primer (10): Statutes of Limitations and Accrual After Heck v. Humphrey, I discussed the special accrual rule of Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action.
This post addresses accrual and the continuing violation doctrine.
The Continuing Violation Doctrine
Under the continuing violation doctrine, certain plaintiffs can overcome a statute of limitations defense by arguing that the allegedly unconstitutional acts were parts of a continuing violation amounting to a single wrong occurring within the limitations period. See United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), and Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162 (2007).
The continuing violation doctrine is not magic: it is not sufficient under this doctrine that the effects of a defendant’s constitutional violation have continued during the limitations period. Rather, it is ordinarily necessary that the defendant have acted unconstitutionally during the limitations period.
Judge Posner Explains the Continuing Violation Doctrine
Consider the following helpful discussion of the continuing violation doctrine by the Seventh Circuit‘s Judge Posner in Limestone Dev. v. Village of Lemont, 520 F.3d 797, 801 (7th Cir. 2008)(citations omitted), a RICO case:
“Like too many legal doctrines, the ‘continuing violation’ doctrine is misnamed. Suppose that year after year, for ten years, your employer pays you less than the minimum wage. That is a continuing violation. But it does not entitle you to wait until year 15 (assuming for the sake of illustration that the statute of limitations is five years) and then sue not only for the wages you should have received in year 10 but also for the wages you should have received in years 1 through 9. The statute of limitations begins to run upon injury (or, as is standardly [sic] the case with federal claims, upon discovery of the injury) and is not tolled by subsequent injuries.
“The office of the misnamed doctrine is to allow suit to be delayed until a series of wrongful acts blossoms into an injury on which suit can be brought. It is thus a doctrine not about a continuing, but about a cumulative, violation. A typical case is workplace harassment on grounds of sex. The first instance of a coworker’s offensive words or actions may be too trivial to count as an actionable harassment, but if they continue they may eventually reach that level and then the entire series is actionable. If each harassing act had to be considered in isolation, there would be no claim even when by virtue of the cumulative effect of the acts it was plain that the plaintiff had suffered actionable harassment.”
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Wood v. Moss: New Supreme Court First Amendment Qualified Immunity Decision Involving Presidential Security
On May 27, 2014, the Supreme Court handed down Wood v. Moss (PDF), 572 U.S. — (2014)(No. 13-115), dealing with the qualified immunity of Secret Service agents sued by protesters for damages under the First Amendment in connection with protecting the President.
The Protestors’ Claim
Wood dealt with a Bivens First Amendment damages action against Secret Service agents who allegedly engaged in impermissible viewpoint discrimination when they moved the plaintiff protesters of President Bush farther away from him when he was dining. Specifically, two groups of demonstrators, protesters and supporters, were initially situated across from one another during the President’s motorcade, but the President made a quick decision to have dinner at the outdoor patio of a restaurant. The protesters then moved to an area in front of the restaurant but were soon thereafter moved by the agents about two blocks away and outside of weapons range of the President. However, the supporters remained in their original location near a building that kept them outside of weapons range of the President. When the President left the restaurant, he passed his supporters but the protesters were beyond his hearing and sight.
The Court’s Unanimous Qualified Immunity Decision
Writing for a unanimous Court that reversed the Ninth Circuit and ruled that the agents were protected by qualified immunity, Justice Ginsburg at the outset emphasized the gravity of the specter of Presidential assassination and the need for the agents to make quick decisions. Assuming arguendo that the plaintiffs stated a Bivens First Amendment claim, she then went on to determine that the agents did not violate clearly settled First Amendment law on October 14, 2004, when the event occurred. In other words, “it [should] not have been clear to the agents that the security perimeter they established violated the First Amendment.”
No Clearly Established First Amendment Duty Under the Circumstances
According to Justice Ginsburg, while it was clearly established at a general level that governmental viewpoint discrimination violated the First Amendment, it was not clearly established in a situation involving Presidential security that the agents were under a First Amendment obligation to make sure that groups with opposing viewpoints were at comparable locations at all times. Moreover, this would not have made sense under the circumstances since the protesters’ location in front of the restaurant put the President within weapons range and gave them a “largely unobstructed view” while the supporters were never within weapons range of the President. Furthermore, there was no First Amendment obligation to move the supporters away from the President’s motorcade after he left the restaurant.
Finally, the plaintiffs’ allegations of viewpoint discrimination as the agents’ sole motivation were undermined by a showing that the protesters were a security risk because of their location. Thus, the officers had valid security reasons to move the plaintiffs.
As noted, Wood was a unanimous decision whose reasoning and result clearly reflected the Court’s overriding concern with avoiding the second-guessing of Secret Service agents when engaged in protecting the President of the United States.
It is also important to note that the protesters of the President and his supporters were treated the same way initially. It was only when the President unexpectedly changed his plans that the agents had to act quickly and, above all else, make sure the President was out of weapons range.
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Deadly Force (Firing Shots) and High Speed Police Chases
On May 27, 2014, the Supreme Court handed down Plumhoff v. Rickard (PDF), 572 U.S. – (2014) (No. 12-1117), a new Fourth Amendment/qualified immunity decision involving the use of deadly force–firing shots–and high speech chases.
The Plaintiff’s Claim in Plumhoff
Plumhoff involved a high speed chase—it began when an officer pulled over a driver because his car had only one operating headlight–in which police officers shot the driver and a passenger, both of whom died as a result of the shots and the consequent crash. The driver, on whose behalf his daughter filed a § 1983 claim alleging excessive force, made several arguments. First, the police officers who fired at the driver’s car in an attempt to terminate the chase violated the Fourth Amendment. Second, the police officers who fired a total of fifteen shots at the car violated the Fourth Amendment because this was excessive. Finally, the defendants violated clearly settled Fourth Amendment law.
The Court’s Opinion on the Fourth Amendment Merits
In an opinion by Justice Alito, the Supreme Court reversed the Sixth Circuit that had ruled for the daughter. The Court found that the police officers did not violate the Fourth Amendment just because they used deadly force to terminate the chase. Relying on Scott v. Harris, the Court pointed out that here, as in Scott, the officers did not violate the Fourth Amendment in terminating a high speed chase posing a grave public safety risk through the use deadly force. The chase lasted over five minutes with speeds exceeding 100 miles per hour; the driver’s outrageously reckless driving put many other vehicles at risk; and even though the driver’s car had come to a temporary halt, that did not end the chase because he continued pushing down on the accelerator in an attempt to escape. At that point an officer fired three shots but the driver continued to drive away. This was followed by an additional twelve shots, with the driver never abandoning his attempt to flee until the crash. The Court emphasized that the officers did not need to stop shooting until it was clear to them that the threat to public safety had ended.
As to the presence of a passenger in the front seat of the car, this was largely irrelevant to the Fourth Amendment issue posed by this case: it was not the passenger’s Fourth Amendment rights that were implicated, it was those of the driver. “[The passenger’s] presence in the car cannot enhance [the driver’s] Fourth Amendment rights.” In this connection, the Court observed in passing that there was disagreement in the circuits as to whether a passenger in this situation even had a Fourth Amendment claim. In addition, if such a passenger pursued a substantive due process claim, he or she would have to prove that the officer had a purpose to cause harm unrelated to the legitimate object of arrest, per County of Sacramento v. Lewis.
Finally, the Court ruled that in any event, the officers did not violate clearly settled Fourth Amendment law as of July 18, 2004, the date of the events in question. The Court’s decision in Brosseau v. Haugen, 543 U.S. 194 (2004), had ruled that a police officer did not violate clearly settled Fourth Amendment law when she fired at a fleeing vehicle to prevent harm to officers she believed were nearby and to protect other citizens. The events in Brosseau occurred in February 1999 and there were no intervening decisions that constituted controlling or persuasive authority that changed this qualified immunity determination.
Plumhoff was not a surprising decision. It followed from Scott v. Harris, but expanded that decision to expressly include shooting a fleeing driver who poses a grave risk to officers or public safety. In other words, there is no Fourth Amendment obligation on the part of police officers in these situations to refrain from firing shots, at least while the chase and the danger to others are ongoing.
Plumhoff also emphasized the need for judges doing Fourth Amendment analysis to put themselves in the place of police officers making split second decisions.
It is further worth noting the Court’s insistence that the clearly settled law inquiry not be conducted at too high a level of generality but rather at a fairly fact specific level in Fourth Amendment excessive force cases especially.
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When one thinks of guns and section 1983, the Second Amendment immediately comes to mind. Indeed, I previously blogged about this developing connection. See The Second Amendment and Gun Control: Unanswered Questions and Gun Control, the Second Amendment and Section 1983 After McDonald v. Chicago.
However, in the course of preparing the 2014 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.), I came across an interesting Third Circuit case involving potential liability under section 1983 and the Child Safety Lock Act of 2005 (PDF, see § 5).
Estate of Arrington v. Michael, 738 F.3d 599 (3rd Cir. 2013)
In this case, the estate of a young woman, shot eight times and killed by the defendant police officer’s son who had used his father’s service-issued Smith & Wesson handgun, sued the police officer under section 1983 alleging a substantive due process violation. The decedent had obtained a temporary protection from abuse order against the officer’s son, which the officer knew about and discussed with his son.
Without reaching the merits, the Third Circuit reversed the district court and dismissed the complaint. It ruled that the officer was protected from all civil liability resulting from the use of a gun, including section 1983 liability, by the Child Safety Lock Act of 2005 (CSLA), 18 U.S.C. § 922(z)(3). Under its terms, the unlawful use of a gun by a third person does not result in civil liability for the owner where “access was gained by the person not so authorized [to have access to it and] the handgun had been made inoperable by use of a secure gun storage or safety device….”
Here, the officer took reasonable precautions to ensure that nobody, including his son, would have access to his gun within the meaning of the CSLA. Indeed, the son had great difficulty in eventually accessing the gun. Among other things, the officer had locked the gun with a police department issued gun lock, had hidden the key and had kept the magazine and ammunition separate from the gun, which was itself hidden. Thus, he was fully protected from liability.
Had the substantive due process merits been reached, the officer likely would still have prevailed on any one of several grounds.
1. The officer’s conduct may not have constituted state action. He was not required as a police officer to take his weapon home; it was only “preferred.”
2. Even if there was state action, the officer may not have been deliberately indifferent to the physical safety of the decedent, the state of mind required for substantive due process violations.
3. His conduct may not have been the proximate cause of the decedent’s death because of the intervening criminal act of his son and the officer’s own conduct which made it very difficult for his son even to access his gun.
4. There is the threshold question in this case of the very existence of an affirmative due process duty. Unless the officer somehow created the danger to the decedent, he may have had no duty to her.
In any event, the effect of the CSLA, according to this Third Circuit decision, is to amend section 1983 by providing a new statutory defense in such cases going beyond absolute and qualified immunity.
Here is a five-minute video on the case: http://youtu.be/3bKstfw0jRM
I hope you find it informative.
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