Affirmative Duty Issues After DeShaney v. Winnebago County, 489 U.S. 189 (1989)
DeShaney issues continue to arise in the circuits in all-too-often tragic circumstances. I came across the following Fifth Circuit en banc decision as I was preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012), published by West.
Doe ex rel Magee v. Covington County School Dist.
A panel of the Fifth Circuit addressed this question: “Are there circumstances under which a compulsory-attendance, elementary public school has a ‘special relationship’ with its nine-year-old students such that it has a constitutional ‘duty to protect’ their personal security?” The panel answered in the affirmative as a matter of first impression in the circuit. Doe ex rel Magee v. Covington County School Dist., 649 F.3d 335, 338 (5th Cir. 2011) , reh’g en banc granted and rev’d, 675 F.3d 849 (5th Cir. 2012)(en banc).
The plaintiffs, the father and grandmother of a nine-year-old girl, on whose behalf they acted, sued a county school district, board of education, school officials and others in connection with the repeated release of the girl into the custody of an unauthorized adult for the purpose of facilitating his taking her off school premises, where he raped her. The defendants thereby allegedly acted with deliberate indifference to her safety. The Fifth Circuit panel determined that there was a special relationship in this case between the school and the child because it repeatedly handed her over to the unauthorized adult during school hours, surrendering to him the school’s statutory full and exclusive custody over her. The school isolated her from her teachers and classmates without any school supervision and against her will and that of her grandmother (her legal guardian). It thus failed in its duty “to protect her from such a quintessential and widely known threat to young children as pedophilia.” Accordingly, the plaintiffs’ complaint survived the defense motion to dismiss under Rule 12(b)(6).
However, because this was a case of first impression in the circuit, the individual defendants sued in their individual capacities were protected by qualified immunity: the law was not clearly established when these events occurred in 2007. Indeed, some Fifth Circuit decisions at the time may have suggested that schools could never be in a special relationship with their students.
Judge King dissented, arguing that the panel got the special relationship issue wrong: “Our en banc court, and every other circuit to consider the issue, has unequivocally concluded that public school students do not have such a [protected liberty interest in remaining safe at school] under the Constitution. … The majority’s decision is an unwarranted expansion of the ‘special relationship’ exception to the general rule that state actors are not required to protect individuals from private harm….” Read the rest of this entry »
Class-of-One Equal Protection Claims
It may surprise some of you to know that one can have a successful equal protection claim without being a member of a racial, gender, ethnic or other group.
In Village of Willowbrook v. Olech, 528 U.S. 562 (2000), a zoning case originating in the Seventh Circuit, the Supreme Court held that an equal protection claim can be based on arbitrary and capricious discrimination against an individual. Thereafter, in Engquist v. Oregon Dep’t of Agric., 553 U.S. 591 (2008), the Court excluded public employees from such class-of-one equal protection coverage. Otherwise, however, class-of-one equal protection claims are available.
Unfortunately, the Court in Olech did little to explain what the elements of such a claim are and whether such a plaintiff must allege and prove some sort of impermissible motive in order to state a class-of-one equal protection claim. This has created uncertainty in the circuits, as demonstrated by a recent decision of the Seventh Circuit.
Enter the Seventh Circuit En Banc
In Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir. 2012)(en banc), aff’g dismissal of complaint by equally divided court, the plaintiff sued law enforcement officers alleging that they failed to respond to his complaints that gangs were harassing him and his wife, thus forcing them to sell their home and move to another village “with the gangs in hot pursuit.” Read the rest of this entry »
Certiorari Granted in Madigan v. Levin
The Supreme Court granted certiorari on March 18, 2013, in Levin v. Madigan, 692 F.3d 607 (7th Cir.), cert. granted sub nom. Madigan v. Levin, 132 S. Ct. — (2013), an important section 1983/ADEA preclusion case.
In Levin, the Seventh Circuit held, as a matter of first impression in its circuit, that a terminated Illinois Assistant Attorney General could use section 1983 to sue state law enforcement officials for damages in their individual capacities for an alleged equal protection age discrimination violation. It rejected the defense argument that the existence of a comprehensive regulatory scheme under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. sec. 621 et. seq., demonstrated Congressional intent to limit such claims to the ADEA and thereby to preclude section 1983 equal protection age discrimination claims. Judge Kanne wrote the opinion, joined by Judges Posner and Bauer.
In so ruling, the Seventh Circuit attracted the Supreme Court’s attention because it took a position on this preclusion issue contrary to that of the District of Columbia, First, Fourth, Fifth, Ninth and Tenth Circuits, thus creating a circuit split.
Two Supreme Court Precedents
There are only two directly relevant Supreme Court precedents on this preclusion issue.
The first is Smith v. Robinson, 468 U.S. 992 (1984), where the Court held that Congress intended the Education of the Handicapped Act (EHA), 20 U.S.C. sec. 1400 et. seq., to preclude section 1983 equal protection claims to publicly financed special education. Congress thereafter superseded this decision by enacting the Handicapped Children’s Protection Act of 1986, Pub. L. No. 99-372.
The second is much more recent. In Fitzgerald v. Barnstable School Comm., 555 U.S. 246 (2009), the Court held that Title IX of the Education Amendments of 1972, 20 U.S.C. sec. 1681(a), did not preclude a section 1983 equal protection sex discrimination claim. In reaching this conclusion, the Court focused on the important differences between the scope and elements of Title IX claims and those of section 1983 equal protection sex discrimination claims.
In both cases, the Court was attempting to discern Congressional intent where Congress had not said anything explicit about this preclusion issue. The Supreme Court in Levin will attempt to do the same.
1. If Congress had declared explicitly that the ADEA either did or did not preclude section 1983 equal protection age discrimination claims, that would have been the end of it. The section 1983 equal protection/ADEA issue arose only because Congress was silent on the matter.
2. There are similarities between this preclusion issue and the use of section 1983 to redress certain federal statutory violations–what I call “laws” actions. Still, it should be harder to demonstrate Congressional intent to preclude a section 1983 constitutional claim than to demonstrate that Congress intended that particular federal statutory violations not be actionable for damages under section 1983.
To put this point somewhat differently, the presumption that section 1983 is available should be stronger for constitutional claims than for federal statutory claims in “laws” actions.
3. Levin will be argued and decided in the Court’s 2013 Term.
See generally on “laws” actions and preclusion of section 1983 constitutional claims, chapter 2 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012)(West), also available on WESTLAW and as an ebook.
UPDATE: After I published this post, I discovered that Murray Duncan, a Chicago-Kent student, published a note on this same case. I think you will find it of interest, whatever your view of the merits. It is available here: http://www.kentlaw.iit.edu/Documents/Academic%20Programs/7CR/v8-1/duncan.pdf
It has been a while since I reorganized all of my posts (including several videos and podcasts) in order to provide greater and more efficient accessibility for readers. There are now more than 100 posts.
I consider this reorganization important, and I hope it is also useful to you, because my posts are not intended to be of short-term utility.
Instead, they are intended to serve the continuing educational needs of lawyers, law students, academics and the public at large.
I thank all of you for your growing support of this blog.
Sheldon Nahmod (firstname.lastname@example.org)
What follows is a list comprising all of my posts (with links) divided into the following four parts: PART I: SECTION 1983; PART II: CONSTITUTIONAL LAW; PART III: FIRST AMENDMENT; PART IV: EDUCATION
PART I: SECTION 1983
I blogged on January 31, 2013, as part of my series on the Constitution: Know Your Constitution (4): What Is Equal Protection?
The following is a link to a five-minute video I made for Chicago-Kent’s Oyez Project on this same topic.
I hope you find it informative.
In the seventh in my Section 1983 Primer series, published on October 25, 2012, I blogged about the Supreme Court‘s approach to absolute immunity. I specifically referred to the three categories of absolutely immune defendants–legislators, judges and prosecutors–and also discussed the underlying policy considerations as well as the Court’s functional approach.
In the eighth in this series, published on February 20, 2013, I blogged about absolute legislative immunity.
I discuss absolute judicial immunity in this post.
Pierson v. Ray, 386 U.S. 537 (1967): The Seminal Judicial Immunity Decision
The Supreme Court held in Pierson v. Ray that judges are protected by absolute immunity when they act in a judicial capacity, even if they act unconstitutionally. The Court relied on the background of common law immunity in 1871, when section 1983 was enacted. In Pierson itself, a state court judge was ruled absolutely immune from damages liability under section 1983 even though he had convicted the plaintiff under an unconstitutional statute. For immunity purposes, it did not matter even if the judge did so knowingly.
Purposes of Absolute Judicial Immunity
Absolute judicial immunity is intended to protect the judicial process and not the judges themselves. If judges, who are easy targets, had to be concerned that rulings in civil or criminal cases would generate section 1983 claims against them–after all, someone almost always loses–this could have an adverse effect on their independent decision-making. In addition, section 1983 claims against judges would necessarily involve the relitigation of earlier cases. Further, there is ordinarily a remedy available: an appeal.
The Relevance of Subject Matter Jurisdiction
However, for absolute immunity to apply, the judge must not have acted in the complete absence of all subject matter jurisdiction. If, for example, a probate court judge without any subject matter jurisdiction whatever over criminal cases were to convict a person of a crime unconstitutionally, that judge would not be protected by absolute immunity.
On the other hand, if the existence of subject matter jurisdiction is merely debatable, absolute immunity would still apply, as made clear by the Court in Stump v. Sparkman, 435 U.S. 349 (1978). Read the rest of this entry »
As most everyone knows by now, in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court (5-4, opinion by Justice Scalia) for the first time found an individual Second Amendment right to possess a handgun in one’s home for self-defense. Accordingly, it struck down a District of Columbia prohibition on the possession of usable handguns in the home. Thereafter, and not surprisingly, the Court (again 5-4) held in McDonald v. City of Chicago, 130 S. Ct. 2020 (2010), that the Second Amendment, through incorporation, applies fully to the states and local governments. See my post of November 8, 2010: Gun Control, the Second Amendment and Section 1983 After McDonald v. City of Chicago.
Heller‘s Dicta on Permissible Regulations
In Heller, Justice Scalia asserted that the Court’s decision did not mean that there were no limitations on this Second Amendment right. He listed the following kinds of governmental regulations that were still permissible.
1. Prohibitions on the possession of firearms by felons and the mentally ill
2. Prohibitions on the carrying of firearms in sensitive places such as school and government buildings
3. Imposing conditions and qualifications on the commercial sale of arms
4. Prohibitions, historical in nature, on the carrying of “dangerous and unusual weapons” such as M-16 rifles.
No constitutional right is absolute. So one question in the Second Amendment setting is what the level of scrutiny is. The Court in Heller ducked the issue, pointing out that whatever the standard, the District of Columbia’s prohibition could not stand. On the other hand, the Court stated that the standard is more than rational basis. That’s all we know at this point.
The level of scrutiny is surely relevant to the Court’s dicta on permissible regulations, particularly with regard to restrictions on, and qualifications for, gun ownership and also with regard to those “sensitive places” where the carrying of firearms may be prohibited.
The Court also did not discuss the question whether the Second Amendment right to possess firearms for self-defense applies outside the home. There is already a split in the circuits on this.
A Circuit Split On Carrying
The Seventh Circuit, in an opinion by Judge Posner, held that the Second Amendment does indeed apply outside the home. It therefore struck down an Illinois statute prohibiting carrying a loaded gun, concealed or not. Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)(2-1), petition for en banc rehearing denied. In contrast, the Tenth Circuit, in a concealed weapon decision less than a week old as of this writing, ruled that the carrying of concealed weapons is not protected by the Second Amendment. Peterson v. Martinez, No. 11-1149 (10th Cir. 2-22-13). See also Kachalsky v. County of Westchester, 701 F.3d 81 (2nd Cir. 2012), which upheld a New York statute that required an applicant for a permit to carry a concealed handgun in public to show “proper cause,” such as a need for self-defense greater than that of the general public.
The question whether the Second Amendment applies outside the home may therefore be taken up by the Court in the coming 2013 or 2014 Term.
Comment: An Analogy to Roe v. Wade
In addition to the practical importance of getting answers to these questions, I think it will be fascinating from a jurisprudential and historical perspective to see how the Court goes about articulating the scope of the Second Amendment post-Heller. While not everyone will appreciate the analogy, Heller reminds me of Roe v. Wade, 410 U.S. 113 (1973), another controversial decision where the Court ruled for the first time that a women has a substantive due process right to terminate her pregnancy, a right that some believe the Court “made up.” In the years following Roe, the Court spent a great deal of time and energy attempting to articulate the scope of this right. Indeed, Roe remains a doctrinal battlefield forty years later.
It remains to be seen how much time and energy the Court (and dedicated organizations and litigants) will have to devote to the Second Amendment in order to set out its scope adequately.