Nahmod Law

Individual Mandate Upheld–Medicaid Expansion Upheld (Mostly)

I blogged on January 18, 2012, about the constitutional challenges to the Patient Protection and Affordable Care Act (“the Act”) , where I expressed the view that the individual mandate was clearly constitutional under the Commerce Clause. Also, on February 24, 2012, I posted a video presentation I made (with others) to the Shriver Center about all aspects of the Act. See these posts for background.

Today, the United States Supreme Court ruled, 5-4, in an opinion (PDF) by Chief Justice Roberts, that the individual mandate was constitutional under the Taxing Power of Congress, albeit not under the Commerce Clause.

The Court also upheld the Act’s significant expansion of Medicaid to include individuals under 65 whose income is under 133% of the federal poverty line, except insofar as the Act provides that states that do not opt into the expansion will lose all of their Medicaid funding.

The Chief Justice’s opinion, Justice Ginsburg‘s concurring in part and dissenting in part opinion (joined by Justices Breyer, Sotomayor and Kagan with regard to the Commerce Clause and the Taxing Power, and by Justice Sotomayor with regard to the Spending Power) and the dissenting opinion of Justices Kennedy, Scalia, Alito and Thomas on every issue except for the Commerce Clause and the Anti-Injunction Act, are available on the Court’s website. They are all quite lengthy.

Here are some points worth noting. Read the rest of this entry »

Written by snahmod

June 28, 2012 at 6:19 pm

Posted in Constitutional Law

New Supreme Court Decision: Reichle v. Howards and First Amendment Retaliatory Arrests

Reichle v. Howards, 132 S. Ct. — (2012), decided on June 4, 2012

I blogged on March 29, 2012, about the Supreme Court‘s grant of certiorari in Reichle v. Howards,  a case arising out of the Tenth Circuit. As noted there, the Supreme Court had granted certiorari to deal with the important question of whether there should be a probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech.

(See that post for relevant background, including the important decision in Hartman v. Moore, 547 U.S. 250 (2006).)

On June 4, 2012, the Court, in an opinion by Justice Thomas, avoided the merits and ruled instead that the defendants were protected by qualified immunity.

The Tenth Circuit Decision

The defendants were two Secret Service Agents who were on protective detail for Vice President Cheney when they arrested the plaintiff after his encounter with the Vice President: probable cause was provided by the fact that the plaintiff lied to the defendants about touching the Vice President, a violation of federal law. The plaintiff alleged, though, that he was actually arrested in violation of the First Amendment because he was overheard saying he wanted to ask the Vice President personally “how many kids he had killed.”

The Tenth Circuit held on the merits that there was no such probable cause defense to the First Amendment retaliatory arrest claim, although it noted the split in the circuits on this issue. The Tenth Circuit also found that the defendants were not entitled to qualified immunity on this claim: they violated clearly settled First Amendment circuit law when they arrested the plaintiff because of his speech, even though they had independent Fourth Amendment probable cause grounds to arrest him. Howards v. McCaughlin, 634 F.3d 1131 (10th Cir. 2011), with Judge Kelly concurring in part and dissenting in part.

The Supreme Court Decision

The Supreme Court reversed in an opinion by Justice Thomas. The Court avoided deciding whether probable cause was a defense to a First Amendment retaliatory arrest claim. Instead, it ruled that the defendants were protected by qualified immunity because they did not violate clearly settled First Amendment law: “This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly settled at the time of Howards’ arrest.” Read the rest of this entry »

Written by snahmod

June 13, 2012 at 9:33 am

DeShaney in the Circuits (II): Affirmative Duties and Danger-Creation

I blogged on August 22, 2011, about the Supreme Court’s controversial no-affirmative due process duty decision in DeShaney v. County of Winnebago, 489 U.S. 189 (1989). I also set out several then-current circuit court decisions dealing with DeShaney issues. Please see that post for background.

I came across the following more recent decisions from the First, Fifth, Seventh and Eighth Circuits in the course of preparing the 2012 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012)(forthcoming in September).

Coscia v. Town of Pembroke, 659 F.3d 37 (1st Cir. 2011)

The decedent’s mother, representing the estate, sued police officer and others, alleging that they failed to provide medical services to her 21 year-old son who threatened suicide while in police custody following a one-car accident, and who in fact committed suicide about fourteen hours after his release by stepping in front of a train. During the time he was in custody he attempted to engage in self-destructive behavior and was deemed a high suicide risk. Nevertheless, he was not examined by a doctor but was released on his own recognizance. Reversing the district court and dismissing the complaint, the First Circuit stated: “We … hold that in the absence of a risk of harm created or intensified by state action there is no due process liability for harm suffered by a prior detainee after release from custody in circumstances that do not effectively extend any state impediment to exercising self-help or to receiving whatever aid by others may normally be available.”

Comment: Note the proximate cause/remoteness problem for the plaintiff here in addition to the danger creation issue. Read the rest of this entry »

Written by snahmod

June 1, 2012 at 9:26 am

Filarsky v. Delia: A New Supreme Court Private Individual Immunity Decison

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 »

Written by snahmod

May 9, 2012 at 3:06 pm

Rehberg v. Paulk: A New Supreme Court Absolute Immunity Decision


I blogged on June 16, 2011, about the Court’s grant of certiorari in Rehberg v. Paulk, No. 10-788, a decision out of the Eleventh Circuit, which raised the following Question Presented:

“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.

On certiorari, the Supreme Court unanimously affirmed the Eleventh Circuit in an opinion by Justice Alito. Read the rest of this entry »

Written by snahmod

April 18, 2012 at 3:08 pm

Certiorari Granted in Reichle v. Howards: A First Amendment Retaliatory Arrest Case

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 »

Written by snahmod

March 29, 2012 at 2:32 pm

Ryburn v. Huff: New Supreme Court Qualified Immunity Decision and a Slapdown of the Ninth Circuit

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 »

Written by snahmod

March 9, 2012 at 3:35 pm


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