Nahmod Law

Archive for the ‘Civil Rights – Section 1983’ Category

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.

I invite you to follow me on Twitter @NahmodLaw

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.

————————-

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

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.

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

February 9, 2015 at 2:02 pm

The Second Amendment and Section 1983: A Podcast

As many of you may know, Chicago-Kent’s CLE department has presented my two-day Conference on Section 1983 for over thirty years. The next one is scheduled for April  16-17, 2015.

As part of the most recent Conference in April 2014, I spoke in depth about the Second Amendment (Heller, McDonald and circuit case law) and its relation to section 1983.

I am pleased to present the 45 minute podcast of that presentation and hope you find it of interest. It’s a very good way to understand the basics.

Here is the audio:

 

I invite you to follow me on Twitter @NahmodLaw

 

Written by snahmod

November 11, 2014 at 1:14 pm

DeShaney in the Circuits (V): The Third and Tenth Circuits Weigh In

I have blogged previously about how the DeShaney decision has fared in the circuits. The first time was on 8-22-11; the second time was on 6-1-12; the third time was on 5-20-13; and the most recent was on 6-6-13.

Here are two DeShaney-related decisions from the Third and Tenth Circuits, and some comments. I came across these cases when preparing the 2014 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).

Third Circuit: Henry v. City of Erie

The decedents’ estates sued a city’s housing authority and others alleging that they created the danger that led to decedents’ deaths by fire in Section 8 housing through their approval and subsidization of an apartment even though the apartment did not comply with Section 8’s housing standards because it lacked a smoke detector and a fire escape ladder. Henry v. City of Erie, 728 F.3d 275 (3rd Cir. 2013).

Ruling against the estates, the Third Circuit reasoned that they did not plausibly allege that the defendants’ acts were close enough in time and succession to the ultimate harm: there was a lengthy period of time as well as “intervening forces and actions.” Also, the estates did not allege that the defendants caused the fire or increased decedents’ susceptibility to it. Moreover, the defendants were not responsible for installing a smoke detector or fire escape. “[T]here were too many links in the causal chain after defendants acted and before tragedy struck.” The Third Circuit concluded with the observation that it was declining to expand the state-created danger exception.

Comment: Even though the Third Circuit acknowledged the state-created danger exception to DeShaney, it nevertheless ruled on what seem to be proximate cause grounds (with a hint of causation in fact) that the estates did not  state section 1983 substantive due process claims. This was a way of avoiding the need to decide whether an affirmative duty existed in the first place.

Tenth Circuit: Estate of B.I.C. v. Gillen

Grandparents sued a social worker for damages under the substantive due process state danger-creation theory for her deliberate indifference to extensive evidence of abuse that allegedly led to the death of their granddaughter at the hands of the natural father’s girlfriend (later convicted of murdering the granddaughter). The granddaughter was living with the natural father and his girlfriend at the time. The Tenth Circuit found that the plaintiffs satisfied the requisite showing of affirmative conduct and private violence here.

For one thing, the plaintiffs showed that the defendant’s “inaction” was based on her animus; that is, there was a deliberate decision to ignore based on a decade-long animosity to the family. For another, there were affirmative acts such as the defendant’s refusal to return police phone calls, her refusal to accept photos showing injury, her lying about being in the father’s home, her telling the plaintiffs that allegations of abuse were not her issue but rather for law enforcement and her claiming that these allegations were unsubstantiated. Moreover, the defendant’s conduct was conscience-shocking. Finally, the defendant was not entitled to qualified immunity because she violated clearly settled law in fall 2007. Estate of B.I.C. v. Gillen, 702 F.3d 1182 (10th Cir. 2012). Judge Matheson concurred, 702 F.3d, at 1192, arguing that the court should not have addressed the question whether the defendant’s alleged intentional inaction constituted “affirmative conduct.”

Thereafter, the Tenth Circuit granted the defendant’s petition for rehearing in part, denied en banc review, ordered the original opinion to be withdrawn and substituted an amended version that affirmed in part, reversed in part and remanded. Estate of B.I.C. v. Gillen, 710 F.3d 1168 (10th Cir. 2013). In this amended opinion, the Tenth Circuit dealt only with the requirement of conscience shocking conduct and found it here, but remanded to the district court to determine whether other elements on a danger-creation claim, including affirmative conduct, were present.

Comment: The Tenth Circuit was obviously uncomfortable with the broad scope of its prior decision on the state-created danger issue. On rehearing, it therefore addressed only the easier state of mind issue, namely conscience shocking, and had little difficulty finding it here, particularly in light of the defendant’s previously displayed animus. However, in remanding, it wanted to get additional evidence on the affirmative conduct requirement for the state-created danger exception to DeShaney so as to be sure the claim involved more than failure to act.

Follow me on Twitter: @NahmodLaw

Written by snahmod

August 27, 2014 at 11:52 am

Recent Post-Iqbal Supervisory Liability Decisions in the Circuits

I blogged on September 7, 2012, and on July 29, 2013, about post-Iqbal pleading decisions in the circuits.

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.

Second Circuit

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).

Ninth Circuit

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).

Eleventh Circuit

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).

Follow me on Twitter: @NahmodLaw

Written by snahmod

July 11, 2014 at 6:02 pm

Follow

Get every new post delivered to your Inbox.

Join 139 other followers