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SAVE THE DATE April 27 – 28, 2023 Chicago-Kent College of Law 565 W. Adams Street Chicago, IL 60661 Eligible for IL MCLE Credit Liability arising out of §1983 claims continues to present challenges for courts across the country, and the Supreme Court has a large impact in this dynamic area of law. Join us for this two-day in-person conference to get up-to-date on the latest cases, trends, and strategies affecting §1983 litigation. You have the opportunity to examine both the law of §1983 as well as the litigation strategies that underlie successful cases. Experts in the field address the most important issues and provide wisdom for you as you tackle this year’s cases, whether you represent plaintiffs or defendants. As always, the conference provides an analytical approach to problems and offers practical advice about how to solve them. SPEAKERS Gerald M. Birnberg, Founding Partner, Williams, Birnberg & Andersen LLP Karen M. Blum, Professor Emerita and Research Professor of Law, Suffolk University Law School Erwin Chemerinsky, Dean and Jesse H. Choper, Distinguished Professor of Law, University of California Berkeley School of Law Jamie S. Franklin, Assistant Clinical Professor of Law and Supervisor of Litigation Clinic, Chicago-Kent College of Law Rosalie B. Levinson, Professor of Law Emerita, Valparaiso University School of Law Sheldon H. Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law (Program Chair) Noah Smith-Drelich, Assistant Professor of Law, Chicago-Kent College of Law This conference is in-person ONLY and will not be live-streamed. UPCOMING CLE CONFERENCES March 3, 2023 The Effect of Dobbs on Work Law Symposium March 28, 2023 44th Annual Kenneth M. Piper Lecture ON DEMAND LIBRARY 40th Annual Federal Sector Labor Relations + Labor Law Conference The Vaccine Injury Compensation Program 43rd Annual Kenneth M. Piper Lecture 38th Annual Section 1983 Civil Rights Litigation Conference Dobbs v. Jackson Women’s Health Organization Panel Never Again? Investigating and Prosecuting War Crimes: Then and Now

Chicago-Kent College of Law, CLE Department 565 W. Adams Street, Chicago, IL 60661 cle@kentlaw.iit.edu  1-312.906.5090

I hope to see many of you in Chicago for this in-person conference, together with our excellent and experienced speakers. If you have any questions, please feel free to contact the CLE department or me personally via email: snahmod@kentlaw.edu.

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I have posted (too?) many times over the years on DeShaney substantive due process affirmative duty cases, emphasizing all the while that the threshold issue in such cases is whether there is an affirmative substantive due process duty to begin with.

Typically, the answer in these tragic cases is “no”–there is generally no constitutional duty to protect citizens from private harm–unless there is a special relationship or the state has created the danger. DeShaney v. Winnebago County, 489 U.S. 189 (1989). See generally on DeShaney and its progeny, NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 secs. 9:59-9:61 (2022-23 ed.)(West/Westlaw).

But even where a section 1983 plaintiff is able to overcome the duty issue by, say, plausibly alleging that the state created the danger, that plaintiff may still lose because of the substantive due process state of mind requirement of at least deliberate indifference. As an example, consider Herrera v. Los Angeles Unified School Dist., 18 F.4th 1156 (9^th Cir. 2021).

In Herrera, an autistic high school student drowned while on a field trip. His parents brought a section1983 substantive due process claim against various school defendants, all of whom were granted summary judgment by the district court. Finding that there was a state-created danger but still affirming, the Ninth Circuit pointed out that a school aide who was generally watching the student in the pool saw the student exit the shallow end of the pool and enter the locker room area, but he did not see the student shortly thereafter return to the pool and then drown.

The Ninth Circuit explained: “’[W]e have continued to apply the subjective standard in all state-created danger claims and in non-detainee failure-to-protect claims like the one presented here.” Because there was no genuine issue of fact in dispute that the school aide was subjectively unaware of any immediate danger to the student, the school aide was not deliberately indifferent, as required for a substantive due process failure to protect claim. Also, because other lifeguards were monitoring the area as well, the school aide did not abandon the student or leave him completely without protection. This too showed that the school aide did not act with deliberate indifference.

Comment

The Ninth Circuit applied a subjective deliberate indifference standard and not an objective one. It rejected the plaintiff’s argument that the student’s situation was analogous to that of the pretrial detainee in Kingsley v. Hendrickson, 576 U.S. 389 (2015), which applied an objective reasonableness standard to the pretrial detainee’s section 1983 substantive due process excessive force claim.

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High-speed police pursuit cases often end in serious bodily harm or death not only to the person pursued but to innocent bystanders as well. In most such cases the Fourth Amendment’s excessive force/reasonableness standard does not apply because there is no intentional seizure. Instead, as the Supreme Court held in the seminal decision in County of Sacramento v. Lewis, 523 U.S. 833 (19098), substantive due process applies and the appropriate standard is ordinarily “purpose to do harm,” and not the usual substantive due process standard of deliberate indifference.

This high standard serves at least two purposes: (1) it reflects the fact that these situations involve split-second decision making with no real opportunity to deliberate and (2) it serves a gatekeeper function in keeping such tort-like cases out of the federal. (This is one example of variable constitutional states of mind. Another is the Eighth Amendment)

The Seventh Circuit’s Flores Decision

Now consider Flores v. City of South Bend, 997 F.3d 725 (7^th Cir. 2021). “Erica Flores’s life came to an untimely end when Officer Justin Gorny of the South Bend, Indiana, police department careened through residential streets and a red light at speeds up to 98 mph to reach a routine traffic stop he was not invited to aid, crashed into Flores’s car, and killed her.”

The Officer’s Potential Liability Under Substantive Due Process

Here, according to the Seventh Circuit, the decedent’s estate plausibly stated a substantive due process claim against the officer individually and the city for failure to train. The court, citing County of Sacramento, observed that “[i]dentical behavior considered reasonable in an emergency situation might be criminally reckless when state actors have time to appreciate the effects of their actions.” Ruling that deliberate indifference applied here, and not purpose to do harm, since the officer had the opportunity to deliberate, the court then went on to find that the officer’s “reckless conduct, unjustified by any emergency or even an order to assist in a routine traffic stop that five officers had under control, allows the inference that he subjectively knew about the risk he created and consciously disregarded it.” This constituted the requisite criminal recklessness for his liability. “The law does not provide a shield against constitutional violations for state actors who consciously take extreme and obvious risks.”

The City’s Potential Liability for Failure to Train

As to the city’s liability under a failure to train theory–see City of Canton v. Harris, 489 U.S. 378 (1989)–the decedent’s estate also plausibly alleged that the city acted with deliberate indifference because it failed to address the “known recklessness” of its police officers as a group and of the officer here. This was not a “one-free- bite” situation just because the defendant had never killed anyone before. The Seventh Circuit observed: “Notably, failure-to-train liability does not require proof of widespread constitutional violations before that failure becomes actionable; a single violation can suffice where a violation occurs and the plaintiff asserts a recurring, obvious risk.” According to the Seventh Circuit, this principle was not inconsistent with Supreme Court failure to train precedent even though the Court had not yet expressly so held.

Comments

Flores demonstrates the importance of determining at the outset in a substantive due process case like this one whether the high-speed pursuit involved the need for quick decision making by police. If it did, then the purpose to do harm standard, virtually impossible to meet in most cases, applies. In this case, though, the officer deliberately insinuated himself into the situation which turned tragic because of his involvement, thereby triggering, according to the Seventh Circuit, the deliberate indifference standard for individual liability, a much easier standard to meet. See, on substantive due process, ch. 3 of Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2022-23 Ed)(West/Westlaw)

As to the city’s potential liability for failure to train, note that the Seventh Circuit acknowledged that in its view–not yet approved by the Supreme Court, and the subject of disagreement in the circuits–a single violation is enough for such liability where there is a recurring and obvious risk even in the absence of a showing of widespread constitutional violations. See, on failure to train liability, ch. 6 of my Treatise.

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Happy New Year to you and your family.

The Contracts Clause

The Contracts Clause, U.S. Const. Art I, § 10, provides: “No State shall … pass any … Law Impairing the Obligation of Contracts.”

The Supreme Court has developed a three-part Contracts Clause test: (1) does the state law operate as a substantial impairment of the contractual relationship; (2) if so, does the state have a significant, legitimate public purpose behind the regulation; and (3), if so, is the adjustment of the rights and responsibilities of the contracting parties based on reasonable conditions and is it appropriate to the public purposes justifying the state regulation? See, generally, Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400 (1983).

As I noted in previous posts, there is a split in the circuits on whether Contracts Clause violations are actionable under section 1983. See https://nahmodlaw.com/2021/09/14/the-third-circuit-punts-on-whether-contracts-clause-violations-are-actionable-under-section-1983/

The Second Circuit has now joined those circuits–the Seventh and Ninth–ruling that the answer is yes. (The Fourth and Sixth Circuits have ruled the other way).

The Melendez Decision

In Melendez v. City of New York, 16 F.4th 992 (2nd Cir. 2021), the plaintiff landlords sued a city and city officials under section 1983 for prospective relief alleging, among other claims, violations of the Contracts Clause arising out of the city’s enactment during the Covid-19 pandemic of the Guaranty Law (the “Law”) rendering permanently unenforceable personal liability guarantees of commercial lease obligations arising between March 7, 2020 and June 30, 2021.

Reversing the district court, the Second Circuit ruled in a thoughtful and lengthy opinion evaluating Supreme Court precedent that this claim was improperly dismissed. It agreed with the district court that the Law substantially impaired plaintiffs’ commercial leases but disagreed that the Law was appropriate and reasonable to advance a significant and legitimate public purpose. Among other considerations, the Law did not merely defer guaranty obligations but permanently and entirely extinguished them. In addition, the Law did not “condition the relief it affords on guarantors owning shuttered businesses or, even if they do, on their ever reopening those businesses.” .

Judge Carney concurred in the result in part and dissented in part in an equally thoughtful and lengthy opinion, disagreeing with the majority on the Contracts Clause claim and arguing for a more deferential standard.

Comment

As I have argued, the better view is that Contracts Clause violations are indeed actionable under section 1983.

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By its terms, section 1983 creates damages and prospective relief remedies for deprivations by state and local government officials, and by local governments themselves, of rights, privileges and immunities secured by the Constitution and laws. But what constitutional violations are covered?

It might be thought that, inasmuch as section 1983 was enacted in 1871 by Congress under its Fourteenth Amendment section 5 powers, only violations of the Fourteenth Amendment (equal protection and due process) and incorporated provisions (the First, Second, Fourth, Fifth, Sixth and Eighth Amendments) of the Bill of Rights are covered. However, that turns out not to be the case.

Violations of Article I, §10, prohibiting Bills of Attainder, may also be actionable. See Zilich v. Longo, 34 F.3d 359 (6th Cir. 1994), where the plaintiff, a former city council member, sued a mayor and other officials under section 1983, alleging that a city council resolution denouncing him was, among other things, a Bill of Attainder prohibited by Article I, §10 of the Constitution. After canvassing Supreme Court case law which set out the three elements of a Bill of Attainder–specificity, punishment and lack of a judicial trial–the Sixth Circuit found that the element of punishment was missing. All the ordinance did was authorize the law director of the city to go to court to seek recovery of amounts considered illegally obtained by the plaintiff. There was no confiscation of plaintiff’s property. The fact that the resolution criticized the plaintiff by name and accused him of improper behavior was not sufficient. “Plaintiff has not cited, and our research has not disclosed, a single case in which a court has held that judging a member’s qualifications constitutes a bill of attainder.” 34 F.3d at 362. The court thus reversed the district court’s denial of summary judgment to the defendants on this issue.

Compare, though, Reynolds v. Quiros, 990 F.3d 286 (2^nd Cir. 2021), where the plaintiff state prisoner, who was serving a life sentence for murder, sought prospective relief under section 1983 against corrections officials. He alleged, among other claims, that they violated Article I, §10 through his placement in a special circumstances unit pursuant to a Connecticut statute governing his conditions of confinement that was enacted after his offense, trial and conviction. The Second Circuit did not expressly address the question whether Bill of Attainder violations are actionable under section 1983 but assumed that they were and went on to affirm the district court’s grant of prospective relief. It found that the defendants’ challenged conduct per the Connecticut statute satisfied the requirements of an unconstitutional Bill of Attainder: specification of the affected persons, punishment and the lack of a judicial trial.

Comment

Not only may Bill of Attainder violations be actionable under section 1983, but so too may violations of the Ex Post Facto Clause and the Contracts Clause. See Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 sec. 3:3 (2022-23 Edition)(West/Westlaw).

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The Decalogue Society of Chicago invited Professors Nicole Garnett of Notre Dame Law School, Michael Helfand of Pepperdine Law School and me to speak about government funding and church-state separation in light of the Supreme Court’s June 2022 decision in Carson v. Makin.

This on-line program, held on September 20, 2022, went for a little over two hours. I spoke first about the Religion Clauses in general, including their history and purposes, and what some of the Founders thought. Professor Garnett spoke next about the complicated relationship between the Establishment and Free Exercise Clauses. She was then followed by Professor Helfand, who spoke about government funding and the Carson case. Each of us spoke for about one-half hour, and there was a question-answer period after that.

Spoiler alert: during the question-answer period, I took a strong strict-separation position and criticized the current Supreme Court majority in several respects. First, in disregarding the historical evidence of the dangers of blurring the lines between government and religion and, consequently, thinking that religious “wars” cannot happen here. And second, in naively (disingenuously?) considering itself “objective” in its Religion Clause decisions and thereby disregarding the “passive” virtue of judicial restraint.

Below is the link. I hope you find the program informative and useful.

https://fb.watch/fHg2w8RUAU/

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Police officers when on the job and exercising government power are state actors subject to the Fourteenth Amendment and incorporated constitutional provisions, including the Fourth Amendment.

(I discuss extensively the various state action tests and Supreme Court and circuit decisions in Ch. 2 of my Treatise, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 (2022-23 Ed.)(West/Westlaw).

But what happens when police officers are off-duty and they engage in conduct that would clearly be unconstitutional if they were on-duty? Or to put this another way, when do police officers who are ordinarily state actors lose that status and no longer act “under color of law” for section 1983 purposes? I call this the “converse” of the typical state action question.

Consider in this connection a 2021 decision of the Fifth Circuit, Gomez v. Galman, 18 f.4th 769 (5^th Cir. 2021)(per curiam). In this case, two off-duty New Orleans police officers drinking in a bar allegedly harassed and beat the plaintiff unconscious. Reversing the district court which had dismissed the complaint, the Fifth Circuit ruled that the plaintiff adequately alleged that the officers acted under color of law. It applied its “nexus” test in reaching this conclusion: “to determine whether an officer acted under color of law, we must consider: (1) ‘whether the officer misused or abused his official power’ and (2) ‘if there is a nexus between the victim, the improper conduct, and the officer’s performance of official duties.’ Bustos v. Martini Club, Inc., 599 F.3d 458, 464–65 (5th Cir. 2010).”

According to the Fifth Circuit, even though the officers were off-duty and in a bar drinking, they used their authority as police officers when one of them gave the plaintiff a direct order to stop and not leave the bar’s patio area, which he obeyed. Then, when plaintiff attempted to drive away after he was beaten, both officers ordered him to stop and get out of his car, which plaintiff did. Also, the officers acted as if the plaintiff was being arrested, they called for backup and they had identified themselves as police officers. For these reasons, there was a sufficient nexus alleged for state action/color of law purposes.

Judge Ho concurred, explaining why this was not an easy state action case:

“As a strictly doctrinal matter, this is a close case. Gomez alleges that he believed his assailants were police officers, and that for that reason, he complied with their orders, rather than flee to avoid further injury. But he never explains why he believed the defendants were police officers. He does not allege that they wore uniforms, displayed their badges, or otherwise presented themselves to him as police officers. And it is not Gomez’s subjective beliefs, but the officers’ conduct, that determines whether the defendants acted “under color of [state law]” as required under 42 U.S.C. § 1983. … So I can see how the district court might have concluded that this case cannot proceed under § 1983.”

Judge Ho thus questioned the relevance of a plaintiff’s subjective beliefs for state action purposes but went on to point out that in this case the fact that the officers later called for backup was objective evidence that state action was present. He also observed that the alleged acts of the officers were “contemptible.”

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After I posted earlier, I realized that I had inadvertently omitted two per curiam excessive force decisions from the 2021 Term in which the Supreme Court ruled in favor of granting qualified immunity to law enforcement officers. So below is the corrected list, with my apologies.

Supreme Court Decisions in the 2021 Term

• Kennedy v. Bremerton School Dist: Free Exercise Clause protection for public on-field prayer of high school football coach (see §3:15)
• Carson v. Makin: Maine prohibition of tuition assistance for parents of school children attending private religious schools in school districts without public high schools violates Free Exercise Clause (see §3:15)
• New York State Rifle & Pistol Assn. v. Bruen: New York statute requiring anyone seeking a license for concealed carry of handgun to show “proper cause” violates Second Amendment (see §3:16)
• Vega v. Tekoh: Miranda violations standing alone not actionable under §1983 (see §3:25)
• Dobbs v. Jackson Women’s Health Organization: overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey (see §§3:37, 3:52 and 3:78)
• Thompson v. Clark: §1983 Fourth Amendment malicious prosecution and meaning of favorable termination (see §§3:66, 3:67, 9:30, 9:58 and 9:64)
• City of Tahlequah v. Bond: per curiam excessive force qualified immunity decision in favor of law enforcement (see §8:63)
• Riva–Villegas v. Cortesluna: per curiam excessive force qualified immunity decision in favor of law enforcement (see §8:63)
• Nance v. Commissioner, Georgia Dept. of Corrections: injunctive relief challenge to method of execution as §1983 claim and not habeas corpus (see §§9:57 and 9:64)

Some of you may be interested in a short list of recent Supreme Court section 1983-related decisions. Here are decisions from the Court’s 2021 Term, together with the current two cert-granted cases for the 2022 Term. I hope you find the list useful.

Please note that section references are to the forthcoming 2022-23 Edition of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (West, Westlaw).

Thanks.

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Supreme Court Decisions in the 2021 Term

• Kennedy v. Bremerton School Dist: Free Exercise Clause protection for public on-field prayer of high school football coach (see §3:15)
• Carson v. Makin: Maine prohibition of tuition assistance for parents of school children attending private religious schools in school districts without public high schools violates Free Exercise Clause (see §3:15)
• New York State Rifle & Pistol Assn. v. Bruen: New York statute requiring anyone seeking a license for concealed carry of handgun to show “proper cause” violates Second Amendment (see §3:16)
• Vega v. Tekoh: Miranda violations standing alone not actionable under section 1983 (see §3:25)
• Dobbs v. Jackson Women’s Health Organization: overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey (see §§3:37, 3:52 and 3:78)
• Thompson v. Clark: section 1983 Fourth Amendment malicious prosecution and meaning of favorable termination (see §§3:66, 3:67, 9:30, 9:58 and 9:64)
• Nance v. Commissioner, Georgia Dept. of Corrections: injunctive relief challenge to method of execution is section 1983 claim and not habeas corpus (see §§9:57 and 9:64)

Certiorari Granted for Decision in the 2022 Term

      • Health and Hospital Corp. of Marion County v. Talevski: does Spending Clause legislation give rise to privately enforceable rights under section 1983? (see §2:38)

• Reed v. Goertz: when does statute of limitations for section 1983 claim seeking DNA testing begin to run? (see §9:58)

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In Chavez v. Martinez, 538 U.S. 760 (2003), a majority of the Supreme Court effectively held that coerced confessions that violate the Fifth Amendment are actionable under section 1983 so long as the confessions are used at criminal trials. See sec. 3:25 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2021-22 Edition)(West/Westlaw) for discussion of this confusing case and its various opinions.    

 After Chavez, suppose a plaintiff sues a police officer for damages under section 1983 alleging that an “un-Mirandized” statement was improperly admitted in a criminal prosecution in which the plaintiff was ultimately found not guilty by a jury. In such a case, the Ninth Circuit had concluded:

“[I]n light of the Supreme Court’s decision in Dickerson v. United States [530 U.S. 428 (2000)], which held that Miranda is a rule of constitutional law that could not be overruled by congressional action, we conclude that where the un-Mirandized statement has been used against the defendant in the prosecution’s case in chief in a prior criminal proceeding, the defendant has been deprived of his Fifth Amendment right against self-incrimination, and he may assert a claim against the state official who deprived him of that right under §1983.”

In Vega v. Tekoh, 142 S. Ct. – (2022), rev’g Tekoh v. County of Los Angeles, 985 F.3d 713 (9^th Cir. 2021), the Supreme Court, in an opinion by Justice Alito, reversed. It held that the Ninth Circuit had improperly extended Miranda’s case law. The Court explained, first, that Miranda itself and subsequent case law made clear that Miranda violations were not necessarily Fifth Amendment violations but were essentially prophylactic. Second, Dickerson, which involved a federal statute that made the admissibility of a statement given during custodial interrogation turn on voluntariness only–a federal statute that the Court held was unconstitutional because inconsistent with Miranda–did not change this. Justice Alito, in a strained reading, understood Dickerson as not equating Miranda violations with “outright” Fifth Amendment violations, even though Dickerson had asserted that Miranda was a “constitutional decision” that adopted a “constitutional rule.”

Finally, the Court addressed the question whether Miranda violations could be considered actionable “laws” violations—see generally Ch 2 of my Treatise. Answering in the negative, the Court engaged in a kind of cost-benefit analysis and concluded that, among other things, allowing the plaintiff’s section 1983 damages claim to proceed would disserve “judicial economy” and could raise “many procedural issues.” Furthermore, Miranda, Dickerson and other decisions provided sufficient protection against self-incrimination in criminal proceedings. In short, there was “no justification” for extending Miranda to section 1983 damages actions.

 Justice Kagan dissented, joined by Justices Breyer and Sotomayor. They read Dickerson  as making explicit that Miranda is a right “secured by the Constitution”: “Dickerson tells us again and again that Miranda is a ‘constitutional rule’ [and] a ‘constitutional decision’ [and is] ‘constitutionally based.’” They also pointed out that even if Miranda extended the Fifth Amendment’s core guarantee, it was still enforceable under section 1983 as a right in the “ordinary” meaning of that term. Finally, they warned: “[S]ometimes, as a result [of an un-Mirandized statement not being suppressed], a defendant will be wrongfully convicted and spend years in prison. He may succeed, on appeal or in habeas, in getting the conviction reversed. But then, what remedy, does he have for all the harm he has suffered?” This is what section 1983 was for, according to the dissenters.

Comment

How to explain Vega? The most plausible explanation, in my opinion, is that the majority simply did not approve of Miranda on the merits and did not want to expand its coverage beyond criminal proceedings themselves. For that reason, and despite the clear indications in Dickerson that Miranda has a kind of constitutional status, the Court engaged in a tortuous, strained and even disingenuous interpretation of Dickerson to reach its conclusion that Miranda violations are not actionable under section 1983. And as to its use of cost-benefit analysis, the 42^nd Congress itself made the cost-benefit analysis way back in 1871: once a state actor deprives a person of a right secured by the Constitution, that person may indeed have a section 1983 damages remedy, subject to the other requirements of section 1983.

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