I spoke on November 3, 2011, at Loyola Law School (New Orleans) at a program entitled “Prosecutorial Immunity: Deconstructing Connick v. Thompson.” The audience included attorneys, law students, professors and members of the public.
My talk, “The Long and Winding Road from Monroe to Connick,” is forty minutes long. In it, I discuss the leading section 1983 local government liability cases, beginning with Monroe v. Pape in 1961 and culminating with Connick v. Thompson (about which I blogged several times) in 2011.
I also address the impact of federalism concerns on local government liability for failure to train.
Below are links to the audio version of my talk. I hope you find the talk informative and interesting.
You can listen to the audio alone here on this site or download the mp3 file to play on another device.
If you would like to save the file directly, here is the link: Monroe to Connick
Since nahmodlaw.com began in August 2009, I have published almost 70 posts, including videos and podcasts, on what I consider to be topics of interest and importance going beyond what might be considered “hot” at any particular time.
It is now time to create an updated and inclusive current list of all of my linked posts by category for ease of reference and use. (I did it once before well over a year ago).
This update will, I hope, be useful not only to my regular readers but also, and especially, to those who have only recently discovered this blog, whether through oyez.org or otherwise.
(Note that it is always possible to use the “search function” to look for particular cases or topics among every one of my posts, including those subsequent to this one).
What follows is a list comprising all of my posts divided into the following categories:
SECTION 1983; CONSTITUTIONAL LAW; FIRST AMENDMENT; EDUCATION Read the rest of this entry »
This is the fifth of my section 1983 primers. I previously blogged on section 1983′s history and purposes (post of 10-29-09); on Monroe v. Pape (post of 11-29-09); on constitutional states of mind (post of 2-6-10); and on causation in fact and the Mt. Healthy burden-shift rule (post of 4-25-10).
This post addresses the important, and threshold, question of statutes of limitations in section 1983 cases.
Because section 1983 does not have its own statute of limitations, it is “deficient” within the meaning of 42 U.S.C. section 1988. Under the provisions of that statute, where federal law is deficient, federal courts are to apply the relevant law of the forum state, unless the relevant law of the forum state is inconsistent with federal law or policy or discriminates against federal claims.
As a consequence of section 1988, statutes of limitations issues arising in section 1983 cases constitute an unusual amalgam of federal and state law regarding the choice of the proper limitations period, accrual and tolling.
Choosing the proper limitations period
The leading case is Wilson v. Garcia, 471 U.S. 261 (1985), which held that the forum state’s personal injury statute of limitations governs. This means that there is no national uniformity.
If the forum state has more than one possibly applicable personal injury statute of limitations, then the state’s residual or general statute of limitations governs. Owens v. Okure, 488 U.S. 235 (1989).
When a section 1983 claim accrues–when all of the elements of the claim are present–is a matter of federal law. The governing accrual rule for section 1983 is the medical malpractice discovery accrual rule, meaning that the statute of limitations for a section 1983 claim begins to run when the plaintiff knew or had reason to know of the injury. See United States v. Kubrick, 444 U.S. 111 (1979).
In the employment setting, it is the date of the challenged conduct, such as the alleged racial or sex discrimination, that begins the running of the applicable limitations period, not necessarily when the employee is no longer employed. Delaware State College v. Ricks, 449 U.S. 250 (1980). Read the rest of this entry »
On September 27, 2011, the Supreme Court granted certiorari in Delia v. City of Rialto, 621 F. 3d 1069 (9th Cir. 2011), sub nom Filarsky v. Delia, No. 10-1018, which 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: “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.”
Qualified immunity is a well established affirmative defense to section 1983 damages liability that is afforded to state and local government officials and employees: they are protected, even where they in fact violated a plaintiff’s constitutional rights, so long as they did not violate clearly settled law as of the time of the constitutional violations. See generally NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 8 (4th ed. 2011)(CIVLIBLIT on Westlaw).
The major purpose of qualified immunity is to provide such defendants with a margin for error so that they are not unduly chilled in the exercise of their independent judgment. Indeed, over the past few decades, as I’ve written and blogged about previously, the Supreme Court has to a considerable extent converted qualified immunity into the functional equivalent of absolute immunity, thereby providing even greater protection for state and local government officials and employees.
However, situations occasionally arise where private persons are sued under section 1983 under the theory that they acted jointly, or conspired, with state or local government officials or employees. They accordingly acted under color of law and can be held liable in damages. The question arises: are such private persons, suable under section 1983, entitled to the same qualified immunity? Read the rest of this entry »
In Ray v. City of Chicago, 629 F.3d 660, 664 (7th Cir. 2010), the Seventh Circuit dealt with the plaintiff’s § 1983 Fourth and Fourteenth Amendment malicious prosecution claims against a law enforcement officer arising out of the plaintiff’s being charged with possession of a controlled substance. Ruling against the plaintiff, the court, quoting Tully v. Barada, 599 F.3d 591, 594 (7th Cir. 2010), declared that individuals do not have a “federal right not to be summoned into court and prosecuted without probable cause, under either the Fourth or the Fourteenth Amendment’s Procedural Due Process Clause.” The Seventh Circuit, relying on its decision in Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), added that the plaintiff also did not state § 1983 malicious prosecution causes of action because Illinois law recognized tort claims for malicious prosecution.
See also, with regard to the relevance of state tort claims for malicious prosecution, Parish v. City of Chicago, 594 F.3d 551, 552 (7th Cir. 2009), where the Seventh Circuit, again relying on Newsome , observed that “Seventh Circuit precedent does not permit an action for malicious prosecution under § 1983 if a state remedy exists. … And Illinois law provides a state remedy for malicious prosecution.” The court in Ray then went on to declare that it would not revisit, much less overrule, Newsome despite footnote 2 in Wallace v. Kato, 549 U.S. 384, 390 n.2 (2007), that the Supreme Court “has never explored the contours of a Fourth Amendment malicious prosecution suit under § 1983 … and we do not do so here.”
Supreme Court of Utah
The Utah Supreme Court in Peak Alarm Company, Inc., v Salt Lake City Corporation, 2010 UT 22 (S. Ct. Utah 2010), addressed the plaintiff’s § 1983 Fourth Amendment malicious prosecution claim against several law enforcement officials arising out of his prosecution for violating a state statute criminalizing the making of a false alarm, a charge resulting in a directed verdict in his favor. Ruling against the plaintiff, the Supreme Court of Utah first observed that the plaintiff’s brief detention occurred before the initiation of any legal process, namely, the issuance of a citation. It was not enough that one of the defendants retained the plaintiff’s driver’s license after the citation was issued. The court next discussed the issue of continuing seizure as it had been dealt with in the federal courts, and went on to conclude that even if it recognized the doctrine, the facts of this case did not show such a seizure: plaintiff was detained for forty minutes but not arrested, he did not have to post bail or communicate with pretrial services, and he had no travel restrictions imposed. Thus, there was neither a continuing seizure nor a seizure pursuant to legal process that would support the plaintiff’s Fourth Amendment malicious prosecution claim.
As you can see from these two posts, only the Seventh Circuit appears skeptical about the existence of section 1983 malicious prosecution claims.
I blogged on Sept. 11, 2009, about so-called section 1983 “malicious prosecution” claims. What follows, in two parts, are several recent decisions dealing with such claims, decisions that I ran across in preparing the 2011 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(CIVLIBLIT on Westlaw).
A caveat: this area is very dynamic, so there may be even newer decisions out there.
In Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010), the Second Circuit upheld a jury’s verdict and judgment (including $1.426 million in compensatory damages) against the defendant former detective charged with § 1983 Fourth Amendment malicious prosecution of the plaintiff who was prosecuted for murder but acquitted. The defendant argued that he should have been granted judgment as a matter of law because probable cause existed, or should be presumed to have existed by virtue of a grand jury indictment of the plaintiff for murder. Rejecting the argument, the Second Circuit observed that the presumption of probable cause from a grand jury indictment could be rebutted by evidence that the indictment was procured by fraud, perjury or the suppression of evidence by the police officer. In this case there was ample evidence to support the jury’s findings that the defendant engaged in at least one of these kinds of misconduct: the defendant refrained from making inquiries into other possible suspects, ignored evidence that the plaintiff was not guilty, declined to inform the prosecutor of possibly exculpatory evidence, secured an inculpatory statement from a witness by promising not to disclose that witness’s known criminal activities and included in some of his own reports statements adverse to the plaintiff that were contradicted by persons with first-hand knowledge of the facts. Furthermore, it was clear that the defendant caused the initiation or continuation of the criminal proceedings against the plaintiff. Finally, there was sufficient evidence of malice in the sense that the defendant acted with “something other than a desire to see the ends of justice served.” 612 F.3d at 164.
In Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010), the Sixth Circuit listed four requirements for a § 1983 Fourth Amendment malicious prosecution claim: (1) initiation of a criminal prosecution against the plaintiff that was made, influenced or participated in by the defendant; (2) a lack of probable cause; (3) the plaintiff must have consequently suffered a deprivation of liberty apart from the initial seizure; and (4) the criminal proceeding must have been resolved in favor of the plaintiff. The court in Sykes went on to agree specifically with the Fourth Circuit in Brooks v. City of Winston-Salem, 85 F.3d 178 (4th Cir. 1996) that malice was not required: “The circuits that require malice [the Second, Third, Ninth, Tenth and Eleventh Circuits] have imported elements from the common law without reflecting on their consistency with the overriding constitutional nature of § 1983 claims.” 449 F.3d at 309 (emphasis in original). The Sixth Circuit then commented soundly (and wryly) that calling such claims “malicious prosecution” was unfortunate and confusing but that it was “stuck with that label.” 449 F.3d at 310. Finally, the Sixth Circuit affirmed the § 1983 malicious Fourth Amendment malicious prosecution judgment against the defendants because all of these requirements were met, although it remanded for the purpose of having the district court explain why it had denied the defendant’s motion for remittitur.
The Eleventh Circuit applied the Fourth Amendment and common law torts elements of malicious prosecution in favor of the plaintiff who alleged that a police officer fabricated a bribery charge against him, lacked probable cause to do so and had a malicious intent. According to the Eleventh Circuit, the district court did not err in denying summary judgment to the defendant. Grider v. City of Auburn, 618 F.3d 1240 (11th Cir. 2010).
Next: Decisions of the Seventh Circuit and the Supreme Court of Utah.
THE BLOG IS BACK!
Introduction: The DeShaney case
In DeShaney v. Winnebago County, 489 U.S. 189 (1989), a tragic case involving an attempt under section 1983 and substantive due process to hold social service officials personally liable in damages for their failure to prevent a father from physically abusing his infant son, the Supreme Court ruled that the Due Process Clause does not impose affirmative duties on governments and their officials to prevent private harm. Put another way, the Constitution is a “charter of negative liberties.” This decision gave rise to dissenting Justice Blackmun‘s famous lament about “Poor Joshua.”
However, the Court in DeShaney did go on to suggest that there were two ways in which this no-duty rule could be end-run. The first was where the government or its officials had a special relationship with the injured person, such that the injured person was disabled by government from protecting himself or herself. The second was where the government or its officials created the danger to the injured person.
These exceptions, though, are quite difficult for plaintiffs to satisfy, as the following three circuit court decisions illustrate. In addition, qualified immunity often protects a individual defendant from damages liability regardless of the possible existence of an affirmative duty.
Kovacic v. Villarreal, 628 F.3d 209 (5th Cir. 2010)
Police officers handcuffed a very intoxicated man at 1:33 a.m. after being called by employees of a bar, placed him in a squad car, told friends and relatives of the man that they would take him to his hotel but, instead, at 2:08 a.m., released him at his insistence at a gas station parking lot five or six miles from the hotel. About a half hour later the man was struck by a hit-and-run driver while walking to the hotel and subsequently died. Thereafter, the plaintiffs, on behalf of the decedent, filed a § 1983 substantive due process damages action against the officers. Reversing the district court’s denial to the defendants of summary judgment based on qualified immunity, the Fifth Circuit avoided deciding whether the decedent and the defendants had a special relationship, or had created the decedent’s danger, such that the defendants may have violated the decedent’s substantive due process rights. Instead, it held that in August 2007 the claimed right was not clearly established and that the defendants were therefore protected by qualified immunity. There was no case law on point at the time indicating that a special relationship could be created when a person was released from police custody. In addition, the Fifth Circuit, unlike other circuits, had not adopted the state-created danger theory in DeShaney cases. Read the rest of this entry »