Nahmod Law

Section 1983 Malicious Prosecution (V): A Recent Seventh Circuit Decision

I blogged on Sept. 11, 2009, about the basic elements of so-called section 1983malicious prosecution” claims. I then blogged on 9-8-11, 9-26-11, 8-7-13 and 4-8-14 about section 1983 malicious prosecution cases in the circuits.

What follows is an important recent Seventh Circuit decision dealing with such claims, a decision that I ran across in preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).

A subsequent post will address several other recent circuit court decisions dealing with section 1983 malicious prosecution claims. But this Seventh Circuit decision deserves its own post.

Llovet v. City of Chicago (7th Cir. 2014)

In Llovet v. City of Chicago, 761 F.3d 759 (7th Cir. 2014), a decision written by Judge Posner, the plaintiff, acquitted in state court of aggravated battery, then sued police officers and the City of Chicago alleging section 1983 malicious prosecution under both due process and the Fourth Amendment.

The Due Process Claim

Affirming the dismissal of plaintiff’s due process-based claim on the authority of Newsome v. McCabe, 319 F.3d 301 (7th Cir. 2003), the Seventh Circuit, refusing to overrule Newsome, reaffirmed that case’s holding that such a suit, insofar as it is based on due process, is available only where the forum state does not provide an adequate remedy. Here, Illinois provided such a remedy.

The Fourth Amendment Claim

The Seventh Circuit then went on to reject the plaintiff’s additional arguments, premised on a section 1983 Fourth Amendment malicious prosecution theory, that “the Fourth Amendment’s prohibition of seizures of persons without probable cause does not terminate when the person arrested becomes detained pursuant to legal process (normally an arraignment …); and further that a [Fourth Amendment] claim … for malicious prosecution ‘accrues upon the favorable termination of criminal proceedings’ and thus does not have to be filed within the statute of limitations for the unlawful arrest.”

According to the Seventh Circuit in Llovet, a seizure was necessary for a Fourth Amendment-based malicious prosecution claim (the possible existence of which Newsome did not deny). Here, the initial seizure was supported by probable cause because the plaintiff was already in jail on a misdemeanor charge and was unable to make bail. Also, there was no causal relation between the aggravated battery charge and the deprivation of plaintiff’s liberty in being arrested and jailed on the misdemeanor charge. Even if the plaintiff was in jail longer than he would have been had it not been for the defendants’ alleged framing of him for aggravated battery, the initial seizure was still supported by probable cause.

The Continuing Seizure Doctrine

The Seventh Circuit then rejected the continuing seizure doctrine in this case. For one thing, Heck v. Humphrey, 512 U.S. 477 (1994), and Wallace v. Kato, 549 U.S. 384 (2007), implied that the Fourth Amendment falls out of the picture when detention by arrest becomes detention by arraignment. For another, some of the other circuits did not accept the continuing seizure argument. The Seventh Circuit also expressed concern that the continuing seizure doctrine would unduly enlarge the scope of the Fourth Amendment. Finally, the court rejected the plaintiff’s alternative argument that there was a second seizure in this case when the filing of the aggravated battery charge caused the plaintiff to be held in jail longer than he would otherwise have been for the misdemeanor charge. “There is a difference between seizing a person and not letting him go.” In the latter situation, the due process clause becomes applicable.

See also Welton v. Anderson, 770 F.3d 670 (7th Cir. 2014), reaffirming that the continuing seizure doctrine is not the law in the Seventh Circuit.

Comment

Llovet certainly covers a lot of section 1983 malicious prosecution ground: due process, the Fourth Amendment and, especially, continuing seizures.

For those interested in the subject, Llovet is worth reading in its entirety.

 

 

Written by snahmod

May 11, 2015 at 3:01 pm

DeShaney in the Circuits (VI): Some Recent Decisions

I have blogged previously about how the Supreme Court’s controversial DeShaney decision has fared in the circuits. DeShaney held that as a general matter governments have no affirmative substantive due process duty to protect persons from private harm. The first post was on 8-22-11; the second was on 6-1-12; the third was on 5-20-13; the fourth was on 6-6-13 and the most recent was on August 28, 2014.

Here are four 2014 DeShaney-related decisions from the Fifth and Eighth Circuits and the Supreme Court of New Jersey. I came across these cases when preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).

Fifth Circuit: Lance v. Lewisville Independent School District

Where a fourth grade special needs student who had been bullied locked himself inside the school nurse’s bathroom and then took his own life, his parents and his estate sued the school district under § 1983 and substantive due process. The Fifth Circuit affirmed the district court’s grant of summary judgment to the school district. The Fifth Circuit rejected the application of the special relationship theory, the state danger-creation theory and the caused-to-be-subjected theory. No special relationship between the decedent and the school district existed in the case pursuant to the en banc decision of the Fifth Circuit in Doe ex rel Magee, 675 F.3d 849 (5th Cir. 2012)(en banc). Also, there was no genuine issue of material fact in dispute regarding the state-created danger theory even if that theory were to be applied: the school district did not affirmatively place the decedent in danger, there was no evidence that the school district knew that decedent’s suicide was imminent and the plaintiffs did not show that the school district created a dangerous environment for the decedent. Finally, the caused-to-be subject theory has not been adopted by the Fifth Circuit. Lance v. Lewisville Independent School District, 2014 WL 805452 (5th Cir. 2014).

Eighth Circuit: Montgomery v. City of Ames and Gladden v. Richbourg

The plaintiff sued a city, police officers and others alleging a substantive due process violation arising out of the shooting of the plaintiff by a third person who broke into her house and shot her three times. She alleged that the defendants created the danger that the assailant would attack her through their deliberate indifference. Montgomery v. City of Ames, 2014 WL 1387033 (8th Cir. 2014). Ruling for the defendants on this issue, the Eighth Circuit noted that the assailant was subject to a protective order, stemming from his conviction for domestic-abuse assault, which prohibited him from being near the plaintiff and from contacting her. However, it determined that the police officer who spoke with the assailant about the plaintiff’s allegations, but did not arrest him despite plaintiff’s warnings, did not act with the requisite deliberate indifference to her safety. There were conflicting accounts about whether the assailant had in fact violated the protective order, and this meant a reasonable jury could not conclude that the officer acted recklessly or in a conscience shocking manner just because he did not arrest the assailant before an investigation the next day.

In Gladden v. Richbourg, 2014 WL 3608521 (8th Cir. 2014), the decedent died of hypothermia after police officers, who had determined that he was mildly intoxicated, took him from a restaurant in a city to an isolated off-ramp outside the city at the county line even though he had asked the officers to take him to his sister’s house in the next county. The decedent’s due process rights were not violated, according to the Eighth Circuit. There was no special relationship because the harm suffered did not occur in police custody. Also, the officers did not act with the requisite reckless/conscience shocking state of mind under the danger creation theory because, even though it was bitterly cold, decedent was only mildly intoxicated, appeared functional to the officers throughout, and thus appeared able to make his way to a guard shack a short distance from where he was dropped off.

Supreme Court of New Jersey: Gormley v. Wood-El

In Gormley v. Wood-El, 2014 WL 2921824 (S. Ct. N.J. 2014), the plaintiff attorney, assigned to represent an involuntarily committed patient at a psychiatric hospital, was brutally attacked by her client in the hospital’s unsupervised day room, “a place where psychotic patients milled about and where violence frequently erupted.” The Supreme Court of New Jersey, ruling for the attorney in her § 1983 claim against hospital officials and others, held that the plaintiff had a substantive due process right to be free from state created dangers and that this right was clearly established in September 2005, when the attorney was attacked and seriously injured. The plaintiff was a member of a discrete class of victims subject to foreseeable harm in the volatile day room created by the defendants. Also, the defendants exercised total control over the plaintiff and the day room meeting and they knew of the special dangers that the client might pose to the unsuspecting plaintiff. Further, there was sufficient evidence of deliberate indifference constituting conscience shocking conduct. Among other things, expert testimony indicated that the level of violence in this psychiatric hospital was unique. Justice LeVecchia, joined by Justice Patterson, dissented, 2014 WL 2921824, *20, arguing that the plaintiff did not make out a substantive due process claim and that the defendants in any event did not violate clearly established law.

Comment

As I and others have frequently noted, DeShaney issues typically arise in tragic circumstances, and these cases are no exception. Plaintiffs attempt to end-run the DeShaney no affirmative duty rule by using either the special relationship theory or the danger-creation theory or both.

However, it remains difficult for plaintiffs to prevail even on these theories, as the Fifth and Eighth Circuit cases demonstrate. Only in Gormley did the danger-creation theory work in combination with the special relationship theory by virtue of the total control exercised by the hospital officials over the plaintiff attorney, as found by the Supreme Court of New Jersey.

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Written by snahmod

April 10, 2015 at 11:54 am

Come to My Section 1983 Conference April 16-17, 2015

I invite you to join me in Chicago at the 32nd annual Section 1983 Civil Rights Litigation Conference on Thursday and Friday, April 16-17, 2015. This two-day seminar is designed for municipal and state attorneys, plaintiffs’ attorneys and criminal defense attorneys. It is always up to date and is useful for both attorneys new to the subject and experienced attorneys.

Whatever your level of expertise, I believe you will benefit from this program. It is a very good value and features some of the very best academics and litigators around.

If you have any questions about the program itself, please feel free to email me at snahmod@kentlaw.edu.

What follows is relevant information provided by Chicago-Kent’s CLE department.

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Program Speakers

Sheldon H. Nahmod, Distinguished Professor of Law, IIT Chicago-Kent College of Law
Gerald M. Birnberg, Williams, Birnberg, & Andersen LLP
Karen M. Blum, Associate Dean & Professor of Law, Suffolk University Law School
Erwin Chemerinsky, Founding Dean & Distinguished Professor of Law, University of California, Irvine School of Law
Laura Schauer Ives, Kennedy, Kennedy, & Ives LLC 
Rosalie B. Levinson, Phyllis and Richard Duesenberg Professor of Law, Valparaiso University School of Law
John B. Murphey, Rosenthal, Murphey, Coblentz, & Donahue

Program Highlights

  • Elements of the §1983 Claim
  • Individual Immunities
  • Equal Protection: Hot Topics
  • Practical Considerations in §1983 Litigation
  • SCOTUS 2013 Term, plus important forthcoming decisions in the Supreme Court’s 2014 Term
  • Municipal and Supervisory Liability
  • Attorney’s Fees and Related Ethical Issues
  • Immigration-Related Issues in Litigating Civil Rights Claims
  • Procedural Defenses: The Basics

Key Event Information

Date: April 16-17, 2015

Registration, Breakfast: 8:00 am (both days)

Program: 8:50 am–5 pm Thursday; 9:00 am–3:30 pm Friday
Networking Reception: 5:00 pm Thursday

Location: 

IIT Chicago-Kent College of Law
565 W. Adams Street
Chicago, IL 60661

IL MCLE credit:
11.25 hrs, including 1.5 ethics pending approval.

Other state MCLE credit:

Want to know if MCLE credit is available for your state?  Call us at 312.906.5090.

For a complete conference brochure: click here

To learn more or to register now, go to cle.kentlaw.edu or call 312.906-5090.

Written by snahmod

March 23, 2015 at 9:25 am

Know Your Constitution (8): What is State Action?

This is the eighth in a series of posts about the United States Constitution written 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, considered free speech and hate speech and discussed procedural and substantive due process.

This post deals with the important concept of state action. Non-lawyers should understand that private persons as such cannot violate another’s equal protection, due process or, say, 1st or 4th Amendment rights. Only governments can.

The Basics

The term “state action” stems from the language of section 1 of the 14th Amendment which provides in relevant part that states (including local governments) must treat people equally and fairly (equal protection) and must not deprive them of basic rights (due process, which includes most of the provisions of the Bill of Rights through a process called “incorporation”).

This means that I personally, as a private person, cannot violate your constitutional rights, at least those based on the 14th Amendment. Some governmental involvement is required. For example, if I punch you because I disagree with your views, I may have violated state law but not the 1st Amendment. On the other hand, if a police officers arrests you because of what you said, that arrest is state action and may turn out to violate your 1st Amendment rights.

In a very real sense, the state action requirement serves a gatekeeper function: you don’t get to the question of whether 14th Amendment rights have been violated unless there is state action.

Over the years, the Court has developed several technical tests for determining when the conduct of a nominally private person or entity constitutes state action: (1) the public function test, (2) the joint action/symbiotic relationship test and (3) the nexus test. These are beyond the scope of this post.

Why Do We Care About State Action?

The obvious reason is that the 14th Amendment explicitly imposes this requirement. But there are sound policy reasons as well for this public/private distinction.

1. Freedom First is the interest in personal autonomy or freedom. As private persons we do not necessarily want to be subject to constitutional requirements or norms, even if we think some of those norms are good ones. Further, if these norms applied to private persons, then that would invite federal judicial intervention and supervision, thereby interfering with our private choices. Nobody wants to be sued and hauled into federal court.

2. Federalism The second policy reason is a bit more complicated, but it is related to the first. Ours is a federal system in which states should, and do, play a major role in protecting individual rights of all kinds. If private persons are regulated by the 14th Amendment, then the federal judiciary would be monitoring and evaluating private conduct, whereas that is a primary role of the states in our federal system.

This federalism concern also arises in connection with section 5 of the 14th Amendment which gives Congress the power to enforce section 1 of that amendment. If the 14th Amendment covered private conduct, it would follow that Congress could regulate much more private conduct than it can with the state action requirement in place.

Some Caveats

Keep in mind that I’ve been writing about state action and the 14th Amendment only. In contrast, the 13th Amendment, which prohibits involuntary servitude, applies to private persons as well.

In addition, there are other ways for Congress to regulate private conduct irrespective of section 5 of the 14th Amendment. Perhaps the best example is the Commerce Clause. Of course, Congress may not violate our constitutional rights even under the Commerce Clause.

Which brings me to my last point. Though Congress is obviously not a state, it may nevertheless not violate equal protection and due process because of the Fifth Amendment’s due process clause. Similarly, Congress may not violate the provisions of the Bill of Right because its provisions expressly apply to the federal government.

I invite you to follow me on Twitter @NahmodLaw

Written by snahmod

February 19, 2015 at 2:27 pm

Posted in Constitutional Law

Anti-SLAPP Statutes and State-Law Claims: Is a City Protected?

Anti-SLAPP Statutes: Background

I blogged some time ago about anti-SLAPP statutes and section 1983 both in state courts and federal courts. Readers will want to consult both my post of July 23, 2010, and my post of April 27, 2011, for those discussions and relevant background.

SLAPP (Strategic Litigation Against Public Participation) lawsuit is one that is filed by the plaintiff in order to chill the exercise of the defendant’s First Amendment right to petition the government for redress of grievances or for otherwise engaging in speech.

In contrast, an anti-SLAPP statute provides procedural and substantive protection for the defendant in cases where the plaintiff’s lawsuit is grounded on a good faith communication in furtherance of the right to petition or free speech.

Consider the following Washington Supreme Court decision holding that a city was not protected by an anti-SLAPP statute in connection with state-law claims (not section 1983 claims).

Henne v. City of Yakima, No. 89674-7 (Wash. Jan. 22, 2015).

In Henne, a former police officer sued the City of Yakima under state law, alleging that it had created a hostile work environment because of the way it handled an investigation into complaints against the officer. The city moved to dismiss on the ground that it was protected by Washington State’s anti-SLAPP statue, Revised Code of Washington §4.24.525.

Ultimately, the Washington Supreme Court, in opinion by Justice Sheryl Gordon McCloud, ruled against the city on the ground that the plaintiff’s state-law lawsuit was based on communications made by other officers to the city and not communications made by the city itself It declared:

“We hold that a governmental entity like Yakima cannot take advantage of the anti-SLAPP statutes at least where, as here, the challenged lawsuit is not based on the government’s own communicative activity.”

The Washington Supreme Court expressly did not decide whether a city could ever be protected by the anti-SLAPP statute. However, it observed that the statute “protects the ‘right of free speech’ and ‘the constitutional right of petition,’ (RCW 4.24.525(2)), rights that the constitution grants to individuals against the government not to the government against individuals.” (emphasis added).

Justice Mary E. Fairhurst, joined by Justices Charles W. Johnson and Mary I. Yu. Fairhurst, wrote a separate opinion arguing that cities should be able to use the anti-SLAPP statute, but concurred with the majority because she said the underlying suit wasn’t a SLAPP suit.

Comments

1. The unresolved issue in Henne is one of statutory interpretation: does the Washington State anti-SLAPP statute, which refers to “persons,” cover cities?

2. The deeper conceptual issue is whether cities have any petition or free speech rights under the United States Constitution. See my post on government speech of March 28, 2011, and the immediately preceding posts on Justice Souter’s views of government speech.

3. Whatever the answer to the conceptual question, a state can protect cities in an anti-SLAPP statute even if they do not have such petition or free speech rights.

2. If a particular anti-SLAPP statute is interpreted to protect cities, then that, of course, has practical implications for its application to section 1983 claims as well, and not just state-law claims.

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Written by snahmod

February 9, 2015 at 2:02 pm

Laptops in the Socratic Classroom: Part Two

The Adverse Effects of Laptops in the Socratic classroom

I blogged quite some time ago about the adverse effects of student laptop use in the Socratic classroom. The issue arose again recently when a colleague became concerned about this problem and asked the rest of the faculty for their thoughts and experiences.

I. Here is how I responded initially in an email:

“Bravo! It’s getting worse and worse: passive students taking
dictation, no eye contact, and even a half dozen of my con law
students continuing to type while engaged in conversation with me this
past semester. Unbelievable! Virtually impossible to have discussion
and any kind of classroom analysis.

“Please check out my blog post on laptops ( search “laptops”) from
several years ago and feel free to contact me privately about my
experiences with laptop bans.

“Good luck. If you do it, there will be pushback from all quarters.”

There were various responses. One was that laptops are ubiquitous and professors just had to adjust. Another was that banning laptops sends an anti-technology message. Another, especially concerned with internet use during classes, proposed certain rules about such use.

II. Here is how I responded to these arguments in a subsequent email.

“May I make several points of my own, please, which may or may not be responsive?

1. You are not anti-technology just because you are seriously concerned with the adverse effects of laptops in the Socratic classroom. The message we should really be sending is that the education of our students is paramount.

2. If you primarily use the lecture method, then you have no problem with a sea of students taking dictation. If you use the discussion method, then you may.

3. There may be a split on the faculty about educational philosophy. My guess is that if you believe that students should decide whether and to what extent to participate in their education, that’s their decision. A kind of laissez faire approach. If you believe that the discussion method is perhaps the best way for students to learn how to think, and you also believe that professors know better than students about pedagogy and effective learning, then you may decide that limiting laptops makes some sense. A kind of interventionist approach.

4. The misuse of laptops hurts the better students because the classroom discussions are lacking. It hurts the poor students by reinforcing their poor learning habit of passivity. The research that I’ve looked at (admittedly casually) supports these observations.

5. One possible way around these problems is to do what I am told is done at Yale. One student per class meeting is assigned the role of taking dictation and distributing the notes to classmates. The student is chosen either by other students or by the professor from volunteers on a rotating basis.”

III. Academic freedom and bottom-up decision-making

Finally, I believe that a professor’s decision to ban laptops or not is protected by principles of academic freedom. Therefore, a law school as an institution may not either mandate the use of laptops in the classroom or prohibit their use.
This places the responsibility for this kind of educational decision squarely on the professor, which is where it belongs.
I invite you to follow me on Twitter @NahmodLaw

Written by snahmod

January 13, 2015 at 11:04 pm

Posted in Teaching

2014 in review

Happy New Year to all of my readers.

WordPress sent me this summary of 2014 views of nahmodlaw.com.

One thing I found of interest was the fact that many views were of older posts on First Amendment, constitutional law and section 1983. I intended this blog to have educational durability and that seems to be the case, which is gratifying.

I thank you all.

Sheldon Nahmod

The WordPress.com stats helper monkeys prepared a 2014 annual report for this blog.

Here’s an excerpt:

Madison Square Garden can seat 20,000 people for a concert. This blog was viewed about 66,000 times in 2014. If it were a concert at Madison Square Garden, it would take about 3 sold-out performances for that many people to see it.

Click here to see the complete report.

Written by snahmod

January 1, 2015 at 10:32 am

Posted in Uncategorized

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