Filarsky v. Delia
I blogged on November 10, 2011, about the Supreme Court‘s grant of certiorari in Delia v. City of Rialto, 621 F. 3d 1069 (9th Cir. 2011), sub nom Filarsky v. Delia, No. 10-1018, where the Ninth Circuit held that a private attorney retained by the government was not entitled to qualified immunity, even though all of the government actors involved in the same challenged conduct were so protected because they did not violate clearly settled law.
The Question Presented was the following: “Whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a ‘private’ lawyer rather than a government employee.”
In a unanimous decision handed down on April 17, 2012, and written by Chief Justice Roberts, the Court ruled that an individual hired by the government to work for it is indeed protected by qualified immunity, even though that individual does not work for the government on a permanent or full-time basis. Filarsky v. Delia, 132 S. Ct. — (2012).
As mentioned in the prior post, the major purpose of qualified immunity, with its emphasis on violations of clearly settled law, is to provide government officials and employees with a margin for error so that they are not unduly chilled in the exercise of their independent judgment. However, situations occasionally arise where private individuals are sued under section 1983 under the theory that they acted jointly, or conspired, with state or local government officials or employees. In such cases, they act under color of law and can be held liable in damages under section 1983. The question arose: are such private individuals entitled to the same qualified immunity as government officials and employees? Read the rest of this entry »
“Whether a government official who acts as a “complaining witness” [in a grand jury proceeding] by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.”
Recall that there was a conflict in the circuits on this question, a conflict that arose from two Supreme Court decisions that seemed to cut in opposite directions on the matter.
In one, Briscoe v. LaHue, 460 U.S. 325 (1983), the Court held that law enforcement officials (and witnesses in general) enjoyed absolute witness immunity from civil liability for perjured testimony that they provided at trial. In the other, Malley v. Briggs, 475 U.S. 335 (1986), the Court held that law enforcement officials were not entitled to absolute immunity when they acted as “complaining witnesses” to initiate a criminal prosecution by submitting a legally invalid arrest warrant.
So which case applied when a “complaining witness” who was a law enforcement officer allegedly testified falsely before a grand jury?
On April 2, 2012, the Supreme Court handed down a unanimous decision in Rehberg, holding that such a “complaining witness” is protected by absolute immunity under Briscoe.
Rehberg v. Paulk, 132 S. Ct. — (2012).
Rehberg involved a § 1983 Fourth and Fourteenth Amendment-based malicious prosecution damages action against a chief investigator in a district attorney’s office who, as a complaining witness, allegedly testified falsely before three different grand juries, each of which separately indicted the plaintiff on various charges subsequently dismissed. The Eleventh Circuit held that the chief investigator was absolutely immune from damages liability for his allegedly false testimony before the grand jury.
It also ruled that the chief investigator, together with the prosecutor who presented to the grand jury, was absolutely immune from damages liability for allegedly conspiring, pre-indictment, to make up and present the chief investigator’s false testimony to the grand jury.
The First Amendment Retaliatory Arrest Question
Suppose a police officer arrests a person with objective probable cause to arrest but with the subjective motivation to arrest him because of something he said, in violation of the First Amendment? Does the Fourth Amendment probable cause determination have any bearing on the section 1983 First Amendment claim for damages?
One would think that the answer should be “no” because these are separate constitutional violations. After all, if the police officer had instead subjectively arrested the plaintiff because of his race, wouldn’t there still be an equal protection violation and therefore a section 1983 equal protection damages claim?
The Supreme Court’s decision in Hartman v. Moore, a Retaliatory Prosecution Case
However, the answer to the First Amendment retaliatory arrest question may not be so simple after Hartman v. Moore, 547 U.S. 250 (2006), discussed in my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION:THE LAW OF SECTION 1983 (4th ed. 2011), at section 3:13. In this section 1983 case, the Court held that a plaintiff, who sued law enforcement officers contending that he was prosecuted because of his protected speech, had to allege and prove the absence of probable cause as part of his claim.
The Court reached this conclusion because, unlike in ordinary retaliation cases that involved a relatively clear causal connection between the impermissible motivation and resulting injury to the plaintiff, the causal link was far more attenuated in retaliatory prosecution cases: the plaintiff had to show that the impermissible motivation of the law enforcement officer caused the prosecutor to prosecute, a decision that was entitled to a “presumption of regularity.” Thus, according to the Court, it made sense in retaliatory prosecution cases to impose on plaintiffs this additional burden of pleading and proving the absence of probable cause. (Recall that prosecutors are absolutely immune from damages liability for their decisions to prosecute).
Certiorari Granted in Reichle v. Howards
Does Hartman‘s rationale apply equally to retaliatory arrest cases? Or is Hartman very different because of difficulty that retaliatory prosecution plaintiffs typically have in showing the causal link between the law enforcement officer’s impermissible motivation and the prosecutor’s decision to prosecute?
This is the issue now before the Court in Reichle v. Howards, No. 11-262, a case arising out of the Tenth Circuit. On Dec.5, 2011, the Supreme Court granted certiorari in Reichle to deal with the important question of whether there should be a Fourth Amendment probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech. Read the rest of this entry »
Ryburn v. Huff: A Ninth Circuit Qualified Immunity Slapdown
In the course of my section 1983 presentations to attorneys and judges, I have occasionally referred to the Ninth Circuit as “the circuit that the Supreme Court loves to hate” because the Court appears to reverse the Ninth Circuit with greater frequency than it does other circuits.
The January 23, 2012, decision in Ryburn v. Huff, 132 S. Ct. — (2012)(per curiam), is a good example of this phenomenon that is made even better by the fact that the Court granted certiorari and summarily reversed the Ninth Circuit solely on the basis of the police officer defendants’ petition for writ of certiorari and the plaintiffs’ response.
The Facts in Ryburn
In Ryburn, four police officers responded to a call from a public high school about a rumor involving a student who allegedly wrote a letter threatening to “shoot up” the school. The officers, through interviews, learned that the student had been bullied by other students, that the student had absences from school and that one of his classmates believed he was capable of carrying out the alleged threat. After going to the student’s home and unsuccessfully trying to interview the student there–no one answered the door–one of the officers called the home phone, but still no one answered. The officer then called the cell phone of the student’s mother who did answer and informed the officer that she was inside the house and that her son was there with her. The officer then told the mother that they were outside and wanted to speak with her but she hung up the phone.
A few minutes later both mother and son walked out of the house. Another officer told them that they were there to talk to the student about the rumors, to which he responded that he was aware of the rumors but could not believe that the officers were there for that purpose. The first officer then asked whether the conversation could continue inside the house, but the mother refused. He then asked the mother whether there were any guns in the house but the mother did not answer. According to the finding of the district court, she immediately turned around and began running into the house. The officer was “scared” because he did not know what was in the house and he had “seen too many officers killed.”
The first officer then entered the home behind the mother, followed by the second officer who said he was concerned about the first officer’s safety and he did not want to leave the first officer alone. Two other officers–not parties to the petition for certiorari because the Ninth Circuit had granted summary judgment in their favor–then entered the home on the assumption that the mother gave her consent. The officers stayed in the home for 5 or 10 minutes, during which time the student’s father challenged their authority to be there. The officers did not search the property, the parents or the student. But they did determine that the rumor was false, and reported their conclusion to the school. Read the rest of this entry »
In that post, I focused on the Commerce Clause challenge to the individual mandate.
On February 10, 2012, I participated in an hour-long discussion of the overall constitutionality of the Act at a program sponsored by the Shriver Center and held in Chicago.
Clarification: the penalty for non-compliance with the individual mandate must be included in an individual’s tax return and may be used by the IRS as an offset to a tax refund.
Below is the YouTube link to this discussion. I hope you find it of interest.
Certiorari Granted in Messerschmidt v. Millender (updated: see below for decision handed down 2-22-12)
This Term the Supreme Court will decide Messerschmidt v. Millender, 131 S. Ct. — (2011)(No. 10-704), granting certiorari in Millender v. County of Los Angeles, 620 F.3d 1016 (9th Cir. 2009)(en banc), which deals with the following Questions Presented:
(1) Whether police officers are entitled to qualified immunity when they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her? (2) Whether United States v. Leon, 468 U.S. 897 (1984) and Malley v. Briggs, 475 U.S. 335 (1986), should be reconsidered?
In Messerschmidt, the Ninth Circuit en banc held, with three judges dissenting, that the warrant to search the residence of the plaintiff, the suspect’s foster mother, was overbroad and violated the Fourth Amendment because (1) it covered all firearms, not just the sawed-off shotgun as to which there was probable cause to search the residence, and (2) it covered all articles related to gang membership even though the incidents in question were not gang-related.
Moreover, the defendant police officers were not protected by qualified immunity: the warrant was so facially overbroad and thus invalid that no officer could reasonably rely on it even though the officers had submitted the affidavit to their supervisors and to a deputy district attorney for review, and even though a magistrate had approved the search warrant.
One of the issues in the case is whether the search warrant was indeed facially invalid under the Fourth Amendment, as the Ninth Circuit ruled.
A second issue–and this issue is what probably attracted the Court’s attention–is whether, even if the search warrant was facially invalid under the Fourth Amendment, the police officers were protected by qualified immunity on the ground that a reasonable police officer could have believed that the search warrant was valid.
The Court likely will consider the relevance to qualified immunity of the officers’ submission of the affidavit to their supervisors and to the deputy district attorney as well as the magistrate’s approval of the search warrant. And while “good faith,” apparently as a subjective inquiry, was addressed briefly in the oral argument (PDF), held on December 5, 2011, it is highly unlikely that anything other than the objective qualified immunity test will govern in Messerschmidt.
THIS JUST IN: The Supreme Court, in a 6-3 decision (PDF) handed down on February 22, 2012, only one day after the above was posted, not unexpectedly ruled that the defendants were protected by qualified immunity.
Chief Justice Roberts wrote the opinion in which the Court did not address the validity of the search warrant but nevertheless held that the defendants were not liable for damages under section 1983 because of qualified immunity. The police officers acted objectively reasonably and not in a plainly incompetent manner in light of both the magistrate’s approval of the search warrant and the deputy district attorney’s review of the validity of that warrant.
Justice Sotomayor, joined by Justice Ginsburg, dissented, while Justice Kagan, concurring in part and dissenting in part, agreed with the Court on qualified immunity for the search warrant for firearms but disagreed on qualified immunity for the search warrant for gang-related articles. Justice Breyer briefly concurred.
A Rare Unanimous Religion Clauses Decision by the Supreme Court
It is rare for the Justices of the Supreme Court to hand down a unanimous decision in a Religion Clauses case. But it happened on January 11, 2012, in Hosanna-Tabor Evangelical Church and School v. EEOC, 132 S. Ct. — (2012). This case involved the so-called “ministerial exception” to otherwise generally applicable federal law.
Perich, formerly a “called teacher” for the Hosanna-Tabor Evangelical Church and School (a member of the Lutheran Church-Missouri Synod), had filed a claim with the EEOC contending that she was terminated in violation of the Americans with Disabilities Act. Thereafter, the EEOC filed suit against Hosanna-Tabor (Perich intervened in this EEOC lawsuit) alleging that Perich had been fired in retaliation for previously threatening to file an ADA lawsuit. According to the Church, this threat contravened Church law.
Hosanna-Tabor countered that it was protected by a ministerial exception under the First Amendment’s Religion Clauses because the EEOC’s and Perich’s claims involved the employment relationship between a church and a minister.
Reversing the Sixth Circuit, which had determined that Perich did not qualify as a minister, the Supreme Court in an unanimous decision written by Chief Justice Roberts, found that she did indeed qualify as a minister and that Hosanna-Tabor was protected by the ministerial exception from suit for retaliation. Read the rest of this entry »