Nahmod Law

The First Amendment and Anti-BDS Legislation: A Video

As some of you may know, the “BDS” movement is a political movement that advocates Boycott, Divestment and Sanctions directed at the State of Israel. In response to the BDS movement, there has been a fair amount of state legislation, including in Illinois. Needless to say, this kind of legislation raises interesting First Amendment questions.

Anti-BDS legislation was the focus of a program co-sponsored by the Decalogue Society of Chicago and Israel Bonds. I spoke about the constitutionality of anti-BDS legislation under the First Amendment, providing both a First Amendment primer and the application of First Amendment principles to anti-BDS legislation. I was the third speaker and followed Richard Goldberg and Congressman Brad Schneider, both of whom are strong supporters of anti-BDS legislation.

The program is 1 1/2 hours long, and the moderator’s introduction of me and my First Amendment presentation begins about 40 minutes in. The link to the Decalogue Society Facebook page is below. Click on “see all” and you will easily find this program.

Here is the Facebook link: https://www.facebook.com/DecalogueSociety

Thanks. I hope you find it of interest.

I invite you to follow me on Twitter: @NahmodLaw.

Written by snahmod

September 17, 2020 at 10:25 am

Posted in Uncategorized

Chalking Tires, Parking Tickets, Community Caretaking and the Fourth Amendment

Do you park your car in public spaces?

The Sixth Circuit’s Fourth Amendment tire-chalking decision in Taylor v. City of Saginow, 922 F.3d 328 (6th Cir. 2019) is an interesting one, especially if you drive a car and sometimes park it in public parking spaces (and who doesn’t?). After Taylor, you may be able to make a federal case out of getting a ticket if your car’s tires were chalked.

The facts and reasoning in Taylor v. City of Saginow

In Taylor, the Sixth Circuit ruled that an officer’s use of chalk to mark the tires of the plaintiff’s parked car (without consent or a valid search warrant) in order to track how long it had been parked (a common parking enforcement practice) was a search subject to the Fourth Amendment. Canvassing Supreme Court reasoning in Fourth Amendment cases, the court first found that tire chalking was not a search under the reasonable expectation of privacy approach.

In contrast, however, the court reasoned that under the approach of U.S. v. Jones, 565 U.S. 400 (2012), chalking was a common law trespass and thus was a search that implicated the Fourth Amendment. It then determined that the two exceptions to the warrant requirement—community caretaking and motor vehicle—did not apply, at least at the pleading stage of this section 1983 Fourth Amendment litigation. Consequently, the chalking of the plaintiff’s car without a warrant, followed by a parking ticket, violated the Fourth Amendment.

The community caretaking exception

The Supreme Court articulated the community caretaking exception to the Fourth Amendment’s warrant requirement in Cady v. Dombrowski, 413 U.S. 433, 441 (1973), where it upheld the warrantless search by police officers of a disabled vehicle when they reasonably believed that the vehicle could be vandalized and that its trunk contained a gun. The Court explained that police officers often engage in such “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” In Taylor, the Sixth Circuit reasoned that tire chalking was indeed related to the detection and acquisition of evidence relating to the violation of a criminal statute, with the result that the exception did not apply.

Comments

Taylor involved section 1983 damages claims against the city and an officer who raised qualified immunity, with the Sixth Circuit reversing the dismissal of plaintiff’s complaint for failure to state a claim. I would guess that the officer will eventually prevail on qualified immunity grounds because of the absence of clearly settled Fourth Amendment law at the time of the challenged conduct. Going forward, of course, Fourth Amendment law on this issue is indeed clearly settled, at least in the Sixth Circuit.

However, qualified immunity will not apply to protect the city, which could be liable if, as it likely, its (or the police department’s) official policy or custom brought about the Fourth Amendment violation. The extent of recoverable damages is another question, though, so I would guess that this case will settle, if it has not already done so.

You may be interested to know that the First Circuit, in Caniglia v. Strom, 953 F.3d 112 (1st Cir. 2010), discussed the scope of the community caretaking exception in a case involving a warrantless entry into the home. It ruled as a matter of first impression in its circuit that the exception “extends to police officers performing community caretaking functions on private premises (including homes).”

I invite you to follow me on Twitter: @NahmodLaw.

Written by snahmod

September 7, 2020 at 5:09 pm

Posted in Uncategorized

Retaliatory Civil Actions and the First Amendment After Nieves

First Amendment Retaliatory Prosecutions, Arrests and Civil Proceedings: The Eleventh Circuit Gets It Wrong

Does the Court’s retaliatory arrest-First Amendment decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), which ruled that such plaintiffs must allege and prove the absence of probable cause as an element of the claim (and that probable cause is therefore a defense to such claims), apply to retaliatory civil actions? Should it? The Eleventh Circuit answered these questions in the affirmative in a recent decision, Demartini v. Town of Gulf Stream, 2019 WL 6207952, *17  (11th Cir. 2019). My view is that the Eleventh Circuit got it wrong.

In Demartini, the Eleventh Circuit considered the effect of Supreme Court retaliatory prosecution and retaliatory arrest decisions on section 1983 First Amendment claims based on a retaliatory civil lawsuit. The plaintiff alleged that a town (and a government contractor) retaliated against her by filing a RICO lawsuit because she associated with a non-profit corporation that had filed multiple public records lawsuits against the town. The Eleventh Circuit, after analyzing the Court’s decisions on retaliatory prosecutions and arrests, addressed the three circuit court decisions dealing with this issue, all of which had been decided long before Hartman v. Moore, 547 U.S. 250(2006), dealing with retaliatory prosecutions, and Nieves. It summarized these circuit decisions by noting that they all considered “whether the underlying civil lawsuit was frivolous before allowing a plaintiff to move forward on a §1983 First Amendment retaliation claim predicated on that civil lawsuit.”

The Eleventh Circuit then determined, first, that the town had probable cause to file its civil RICO lawsuit and, second, that the reasoning of Hartman and Nieves led to the conclusion that “the presence of probable cause will generally defeat a §1983 First Amendment retaliation claim based on a civil lawsuit as a matter of law.” For one thing, the causation landscape was similar to that in Hartman because an attorney filed the underlying civil lawsuit, thereby widening the causal gap between the town’s alleged animus and the plaintiff’s injury. For another, the existence of probable cause meant that the defendant had a legitimate interest in considering the plaintiff’s speech. This too rendered the “causation landscape more complex” as was the case in Nieves as well as in Hartman. Next, the Eleventh Circuit found that the “exceptions” mentioned by the Court in Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018), and Nieves did not apply in this case. Finally, the court maintained that its decision here was consistent with common law doctrines, particularly those dealing with the tort of wrongful civil proceedings as to which the plaintiff has the burden of proving the absence of probable cause. Judge Rosenbaum concurred, 2019 WL 6207952, *26, disagreeing with the majority’s suggestion that there could be no exceptions to the no-probable-cause requirement in prior civil lawsuit situations. “]W]e must always at least evaluate the surrounding circumstances….”

Recall that the Supreme Court handed down Nieves in 2019. In an opinion by Chief Justice Roberts, the Court, resolving a split in the circuits, held that plaintiffs must allege and prove the absence of probable cause, and that the presence of probable cause is therefore a defense, where plaintiffs make section 1983 First Amendment claims against law enforcement officers accused of arresting a person in retaliation for his or her speech. But the Court provided what it called a “narrow qualification”: because officers have such wide-ranging discretion to make warrantless misdemeanor arrests for minor criminal offenses–-with the potential for abuse of First Amendment rights–-probable cause is not a defense where the plaintiff presents objective evidence that he or she was arrested when other similarly situated persons not engaged in the same protected conduct were not.

Comments

I criticized Nieves in an earlier post. See https://nahmodlaw.com/2019/06/04/nieves-v-bartlett-and-retaliatory-arrests-protecting-law-enforcement-at-the-expense-of-the-first-amendment-and-section-1983/. There I argued that Nieves resulted from the Court’s misguided decision in Hartman involving First Amendment retaliatory prosecutions. In Hartman the Court improperly inserted pro-law enforcement policy into section 1983 statutory interpretation in the course of setting out the proper elements of a section 1983 First Amendment retaliatory prosecution claim. This unfortunately set the stage for Nieves. To the extent that such policy considerations related to probable cause are relevant, they belong on the qualified immunity side of section 1983 statutory interpretation (indeed, the Court has used qualified immunity with a vengeance to favor law enforcement). In this regard, I noted in the post that the Court in Nieves explicitly cited Harlow v. Fitzgerald, where the Court eliminated the subjective part of the then-existing qualified immunity test in order to protect defendants from what it considered non-meritorious claims.

I also argued that the Court in Nieves improperly extended Hartman (where the presumption of prosecutorial regularity and arguably complex causation issues were the driving considerations) to Nieves and First Amendment retaliatory arrest claims, where these considerations simply do not play much if any role. And now the Eleventh Circuit in Demartini has inappropriately extended the reasoning of Hartman and Nieves to a non-law-enforcement setting where there simply is no reason to balance the arguable misuse by plaintiffs of section 1983 First Amendment retaliatory claims against the needs of law enforcement. Moreover, the Eleventh Circuit’s contention that the causation landscape is “more complex” in part because an attorney filed the underlying civil lawsuit in Demartini is bizarre.

Finally, the Eleventh Circuit’s misguided approach has the potential to chill all valid section 1983 First Amendment claims brought against state and local governments and their officials for their retaliatory filing of lawsuits against plaintiffs who have the temerity to criticize government in lawsuits or otherwise. Since the inquiry is into a defendant’s improper motivation, the presence of probable cause in such cases should be irrelevant.

 

Written by snahmod

August 19, 2020 at 3:02 pm

Posted in Uncategorized

Off-Duty Police Officers, “Private” Conduct and State Action

Section 1983 damages liability for constitutional violations depends on the threshold existence of a defendant’s state action within the meaning of the 14th Amendment and on the related statutory requirement of color of law. Fortunately, the general rule about the relationship between state action and color of law may be simply put: where there is state action under the 14th Amendment, there is color of law under section 1983. But this means that the (sometimes difficult) 14th Amendment state action question must be addressed in every section 1983 case.

Categories of State Action Cases

The relatively easy state action cases are those in which a state or local government official or employee has exercised government power, either pursuant to state law or in violation of state law, and deprived a person of his or her 14th Amendment rights. The harder and more troublesome, but more typical, state action cases are those in which a private person or entity is sued for damages under section 1983. The question in such cases is whether the challenged nominally private conduct can be attributed to the state or local government. The applicable tests in such cases are the nexus test, the symbiotic relationship test, the public function test and the so-called “entwinement” test.

(Search “state action” on this blog for related posts. In addition, I discuss these state action tests at length in ch. 2 of my Treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019)(West/Westlaw)).

 

The “Converse” of the Typical State Action Case

But there is another category of state action cases that raise what I call the “converse” of the typical state action question. Such cases address the issue of when a state or local government official, one who is ordinarily a state actor, loses that status because he or she has acted as a private person and is consequently not suable under section 1983.

Here are two cases of interest, one from the Seventh Circuit and the other from the Ninth Circuit, finding that the defendant police officers, sued for damages under section 1983 for alleged constitutional violations, were not state actors, and thus could not be liable under section 1983.

(Many other “converse” state action cases from the circuits are collected in ch. 2 of my Treatise).

The Barnes Case from the Seventh Circuit

Barnes v. City of Centralia, 2019 WL 6318087 (7th Cir. 2019), involved a police officer against whom threatening statements were posted on social media by a suspected gang member. The officer submitted a complaint against the suspected gang member who was then arrested. This was followed by a criminal prosecution and the dismissal of charges. The suspected gang member then sued the police officer and the city under section 1983 for violating her constitutional rights.

According to the Seventh Circuit, the officer’s conduct, which was limited to his submitting a complaint, was that of a private citizen, and not that of an investigating officer. Submitting the complaint was the extent of the officer’s participation. He did not arrest the plaintiff and had no role in that arrest; he did not even know what crimes the plaintiff would be charged with. The officer’s report therefore did not involve any exercise by him of state authority.

The Hyun Ju Park Case from the Ninth Circuit

Hyun Ju Park v. City and County of Honolulu, 2020 WL 1225271 (9th Cir. 2020), dealt with two off-duty police officers who watched as their intoxicated off-duty colleague decided to inspect his gun—which the police department authorized him to carry–at a bar to ensure that it was loaded. They also watched as their colleague attempted recklessly to  load his already loaded gun, which then accidentally discharged, with a single bullet striking the plaintiff bartender and causing serious physical harm.

The Eighth Circuit found no state action on the part of these two defendants (the third intoxicated defendant had settled separately with the plaintiff) who were sued for violating substantive due process. They were not state actors for a number of reasons. Neither one exercised nor purported to exercise official responsibilities. Both were off-duty, dressed in plain clothes, were drinking as private citizens at a bar and never identified themselves as police officers. Even when they saw the third officer pull out his gun, they did not act or purport to act in the performance of their official duties.

(Judge Smith concurred on the state action issue but dissented on the separate question of whether the city, which was also sued, could be sued for its official policy or custom; the majority held that it could not).

Comments

1. Notice that in both cases, the two circuits soundly addressed the state action question not abstractly but rather in terms of the particular fact patterns they confronted. The state action question must be decided on a case-by-case basis. There are relatively few, if any, bright line rules.

2. The Barnes case is consistent with the many circuit court decisions holding that a private person who merely reports a possible crime to law enforcement authorities does not thereby become a state actor subject to potential section 1983 damages liability.

3. In Barnes, there is a possible alternative, and non-state action, basis for the decision. Even if the officer’s submission of the complaint were state action, it was not the proximate cause of any resulting 14th Amendment violations. Because he purportedly had no role in the arrest, did not know what crimes the plaintiff would be charged with and was not responsible for the prosecution, the conduct of others involved in those post-complaint decisions constituted a superseding cause breaking the chain of causation. (Search “proximate cause” on this blog for related posts. In addition, I discuss proximate cause at length in ch. 3 of my Treatise).

I invite you to follow me on Twitter: @NahmodLaw.

Written by snahmod

July 16, 2020 at 11:07 am

The George Floyd Case and Section 1983: A Police Officer’s Constitutional Duty to Intervene

The Intervention Question

Suppose a police officer continues to use life-endangering force even after it is obvious that a misdemeanor arrestee (who has no weapon) is under control and not a danger to others, including police officers. As a result of this use of excessive force, the arrestee dies. This is a violation of clearly settled Fourth Amendment law in every circuit and exposes that officer to potential section 1983 damages liability. If these turn out to be the facts in the George Floyd case, as appears likely at the time of this writing, the result would be the same.

Suppose further that other police officers are present, witness this behavior, have a realistic opportunity to stop the first officer’s unconstitutional use of force but do not act to prevent it. Are they also potentially liable for section 1983 damages for the death of the arrestee because they failed to intervene when they could have, and thus failed to prevent what happened?

The Short Answer

The short answer is YES: they have breached their constitutional duty to stop the first police officer from continuing to use life-endangering force against the arrestee, thereby rendering them potentially liable for section 1983 damages. Again, if these turn out to be the facts in the George Floyd case, the result would be the same: these police officers would potentially be liable for damages under section 1983 for their failure to intervene and to prevent what happened. Moreover, they would not be protected by qualified immunity because they would have violated clearly settled law.

The Longer Answer: The Clearly-Established Legal Background

This is not a new issue. In the seminal decision in Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972), the Seventh Circuit held that police officers have a due process duty to protect persons from the unwarranted brutality of their fellow officers that occurs in their presence. According to the court, non-involvement will not do where intervention is possible.

Significantly, this duty to intervene even requires subordinates to protect persons from the unconstitutional conduct of superiors or supervisors. In this regard, Byrd was read broadly by the Eighth Circuit in Putman v. Gerloff, 639 F.2d 415 (8th Cir. 1981), to impose liability on a subordinate police officer for failure to intervene against his superior where the subordinate was present and knew what his superior was doing.

Along the same lines, the Eleventh Circuit declared: “If a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable under Section 1983.” Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986).

In a useful statement of the general rule, the Second Circuit said in Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (citations omitted):

It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence. An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1) that excessive force is being used; (2) that a citizen has been unjustifiably arrested; or (3) that any constitutional violation has been committed by a law enforcement official. In order for liability to attach, there must have been a realistic opportunity to intervene to prevent the harm from occurring. Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.

What is a Realistic Opportunity to Intervene?

Consider Grider v. Bowling, 785 F.3d 1248 (8th Cir. 2015), where the plaintiff sued a police officer—the relevant defendant here—who had arrested and handcuffed him, followed by another police officer who arrived in his vehicle, ran toward the plaintiff and the arresting police officer and kicked the plaintiff in the head, causing serious harm. The arresting officer and the kicking officer did not communicate before the attack and the arresting officer did not stop the attack. Reversing the district court in this regard, the Eighth Circuit found that the arresting officer was not liable for the kicking officer’s use of excessive force on a failure to protect theory: there was no evidence that the defendant was aware of the kick before it occurred or that he had the opportunity to prevent it. The kicking officer said nothing before he attacked the plaintiff and there was only one kick.

Comment

1. While the Seventh Circuit’s seminal Byrd decision put the duty to intervene in due process terms, the Eighth Circuit, in Hicks v. Norwood, 640 F.3d 839 (8th Cir. 2011), put an officer’s duty to intervene to protect an arrestee from the use of excessive force by another officer in Fourth Amendment terms. However, in the case before it, the court found that there was no Fourth Amendment liability for failing to intervene because the other officer did not use excessive force.

2. There are relatively few affirmative federal constitutional duties imposed on state and local governments and their officials and employees. See, for example, DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), which declared that “nothing in the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” The George Floyd case and cases like it are distinguishable because they involve police officers, state actors, who fail to prevent “invasions” by other police officers who are also state actors.

2. I expect that any section 1983 damages claims against the police officers in the George Floyd case will settle. There may even be a viable section 1983 damages claim against the city for failure to train, a topic beyond the scope of this post.

3. I discuss the duty to intervene in much more detail in Chapter 3 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2020; West/Westlaw).

I invite you to follow me on Twitter: @NahmodLaw.

Written by snahmod

June 25, 2020 at 8:55 am

After Janus, Are Public Employee Unions Subject to Section 1983 Damages Liability?

The Background: The Supreme Court’s Janus Decision

Recall the Supreme Court’s blockbuster decision in Janus v. AFSCME, 138 S. Ct. 2448 (2018)(Janus I), overruling Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), and holding that it now violates the First Amendment rights of union nonmembers for state and local governments, and for public employee unions, to compulsorily withhold fair-share or agency fees from those nonmembers.

Question: after Janus, do union nonmembers have viable section 1983 damages claims against the public employee unions that previously received those fair-share or agency fees, at least for the period of time permitted under the forum state’s statute of limitations?

The Seventh Circuit’s Section 1983 Janus Decision

In Janus v. AFSCME, 2019 WL 5704367 (7th Cir. 2019)(Janus II), petition for certiorari filed, a non-union state employee sued a public employee union under §1983 and the First Amendment for damages to recover the fair-share fees he had previously paid to the union before the Supreme Court’s decision was handed down.

The Seventh Circuit first ruled that the union acted under color of law, and was thus subject to section 1983, because its receipt of fair share fees from the state pursuant to the collective bargaining agreement was attributable to the state. Here, the union was a joint participant in the agency fee arrangement because the state deducted fair share fees from employees’ paychecks and transferred that money to the union which spent it pursuant to the collective bargaining agreement on labor-management issues. The court then went on to determine that Janus I was retroactive.

Finally, the Seventh Circuit found that the union was protected by a good faith defense. After analyzing Wyatt v. Cole, 504 U.S. 158 (1992), a case involving the private use of state attachment procedures, the court reasoned that the good faith defense articulated there applied here as well. It commented that it was “join[ing] its sister circuits in recognizing that, under appropriate circumstances, a private party that acts under color of law for purposes of section 1983 may defend on the ground that it proceeded in good faith.” It declared, relying on Wyatt, that the good faith defense applied to the public union because it had reasonably relied on then-established First Amendment law. The Seventh Circuit relied by analogy on the tort of abuse of process with its good faith “defense,” as well as on the “appropriateness of allowing a good-faith defense on its own terms.” Thus, the plaintiff was not entitled to money damages. Judge Manion concurred, 2019 WL 5704367, *12, pointing out that public unions had received a “windfall.”

Thereafter, the Sixth and Ninth Circuits joined the Seventh Circuit in so holding. Lee v. Ohio Education Assn., 2020 881265 (6th Cir. 2020) and Danielson v. Inslee, 2019 WL 7182203 (9th Cir.2019).

Comment

The decision on which Janus II relied, Wyatt v. Cole, soundly held, in my opinion, that qualified immunity does not protect a private defendant who uses unconstitutional state attachment procedures that violate procedural due process. Under a functional approach, this conduct is not governmental and thus does not merit qualified immunity protection.

On the other hand, a kind of good faith defense, with both subjective (honest belief) and objective (reasonable belief) components, would be appropriate, according to various justices in Wyatt. As a matter of policy, we want private parties to rely on the law rather than act illegally. Also, it would be unfair to subject a private party who guesses wrong about the unconstitutionality of a state attachment statute to section 1983 damages liability.

This good faith defense thus differs from qualified immunity in two ways: an immediate interlocutory appeal from a district court’s denial of the good faith defense on summary judgment or on motion to dismiss is not available, and the private defendant must honestly (and reasonably) believe that he or she acted constitutionally.

Significantly, after Wyatt, the Court handed down two private party immunity decisions that are rather clearly in tension with one another. One, Richardson v. McKnight, 117 S. Ct. 2100 (1997), held in an opinion by Justice Breyer that prison guards who are employed by a private prison management firm are not protected by qualified immunity. He improperly, in my view, focused on history and marketplace incentives rather than on the government function that such private prison guards perform. They should have been protected by qualified immunity.

The other, Filarsky v. Delia, 566 U.S. 377 (2012), unanimously and soundly held that a private attorney retained to work with government employees in conducting an internal affairs investigation was protected by qualified immunity. Note that the Court strained to distinguish Richardson as a “self consciously” narrow decision emphasizing the particular circumstances there.

In this light, the Seventh Circuit’s decision in Janus II  appears to be correct. The challenged conduct here is not governmental in nature but still, under Wyatt, it should be protected at least by the good faith defense. Before Janus I was handed down, the law of the land was Abood and it was on this Supreme Court decision that the public employee union relied. This belief was both honest and reasonable at the time.

All of this is not to say, of course, that I support the Court’s current qualified immunity jurisprudence. I do not, as evidenced by a search of this blog for “qualified immunity” and by the analysis of qualified immunity in my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2019)(West/Westlaw).

In any event, since a petition for certiorari in pending in Janus II, we may shortly see whether the Supreme Court weighs in on these good faith defense issues.

I invite you to follow me on Twitter @NahmodLaw.

 

 

Written by snahmod

June 5, 2020 at 11:14 am

Removal, Attorney’s Fees and the Crucial Individual-Official Capacity Distinction

Some time ago I posted about the need for attorneys to understand the crucial distinction between individual and official capacity claims brought under section 1983. Here is that post: https://nahmodlaw.com/2018/05/31/attorneys-must-at-their-peril-understand-the-official-individual-capacity-distinction-in-section-1983-damages-cases/

This crucial distinction emerged in a somewhat unusual Third Circuit decision involving removal and attorney’s fees, but this time in a non-section 1983 prospective relief situation.

In League of Women Voters of Pennsylvania v. Commonwealth of Pennsylvania, 2019 WL 1782839 (3rd Cir. 2019), one of the defendants, a senator who was the state senate pro tempore, had been sued for prospective relief in his official capacity by various plaintiffs challenging Pennsylvania’s 2011 redistricting plan under state law only. He improperly removed the plaintiffs’ state suit to federal court under 28 U.S.C. § 1441(b) without an objectively reasonable basis for doing so, because there were no federal claims. On remand, the district court ordered the senator to pay fees and costs personally pursuant to §1447(c).

On appeal, the Third Circuit affirmed the fees and costs award to the plaintiffs, but it reversed the aspect of the district court’s decision that made the senator personally liable. In this case of first impression on the matter, the court reasoned that the senator was a party to the prospective relief lawsuit only in his official capacity, not his individual capacity, and thus he should not be forced to pay personally. Further, the district court made no separate finding of bad faith on the part of the senator as a basis for awarding fees and costs as a sanction. In short, the district court did not have power to sanction a non-party.

The lesson here is, once again, that this distinction is ignored at the attorney’s peril, regardless of whether a lawsuit seeks damages or prospective relief.

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Written by snahmod

May 29, 2020 at 9:39 am

Heck Accrual, Section 1983 and Custody: An Important 2020 Seventh Circuit Decision

There is a special, and quite complicated, accrual rule, set out in Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the section 1983 plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action. In such cases, the section 1983 claim does not accrue until the underlying conviction is overturned or vacated. This accrual rule arises, according to the Supreme Court, at the “intersection” of section 1983 and habeas corpus.

(For background, you can find earlier posts by searching “Heck”. For much more, you can consult Chapter 9 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2019)(West/Westlaw)).

A “Hypothetical”

But suppose a situation where a section 1983 plaintiff has already served a lengthy sentence for a serious crime he has consistently maintained he never committed (but was framed for). He can no longer get habeas relief, because he is no longer in custody. Suppose further that he is subsequently pardoned by the governor.

When does his section 1983 claim alleging he was framed accrue: when he was released from custody or when he was pardoned by the governor? You may recognize this kind of question from Justice Souter’s concurring opinion in Spencer v. Kemna, 523 U.S. 1 (1998) and from the comments of other justices.

The Seventh Circuit’s Decision in Savory v. Cannon

In Savory v. Cannon, 2020 WL 240447, *9, *17 (7th Cir. 2020), an important Seventh Circuit decision with a dissent by Judge Easterbrook, the majority declared: “Heck controls the outcome where a section 1983 claim implies the invalidity of the conviction of the sentence, regardless of the availability of habeas relief.”

In Savory, the plaintiff, who spent 30 years in prison for a double murder he insisted he never committed and who was paroled in December 2006, had his sentence commuted in December 2011 and was pardoned by the Illinois governor on January 12, 2015. He then sued a city and certain city police officers on January 11, 2017 (less than two years after the pardon) alleging that he was framed and asserting various constitutional violations. Reversing the district court, the Seventh Circuit, applying Heck, determined that the plaintiff’s claims were timely under the Illinois two-year limitations period. The Heck bar was lifted and his claims did not accrue until he was pardoned by the governor on January 12, 2015, not earlier when his parole had been terminated in December 2011 by the commutation of his sentence and when he could therefore no longer seek habeas relief.

The Seventh Circuit, reasoning that the plaintiff’s claims most resembled the common-law tort of malicious prosecution, relied both on Heck and on the Court’s fabrication of evidence accrual decision in McDonough v. Smith, 139 S. Ct. 2149 (2019)(search this blog for “McDonough”). It expressly rejected the defense argument, based on dicta of several Supreme Court justices (including Justice Souter) in various concurring and dissenting opinions, for an accrual rule tied to the end of custody, namely, December 2011. It also acknowledged that the language and reasoning in several of its prior decisions “ha[d] created confusion regarding the applicability of Heck in cases where habeas relief is not available.”

Judge Easterbook dissented, 2020 WL240447, *18,  arguing that the majority should have adopted a Heck accrual rule tied to the end of custody. He explained that the Seventh Circuit “should be equally concerned about a rule starting the time so late that claims never accrue [as it is ‘about a rule starting the time so early that legitimate claims would be lost.’].”

The Seventh Circuit’s approach to Heck accrual obviously has significant implications for the timeliness of section 1983 litigation where falsely convicted persons have served their sentences, are no longer in custody, are subsequently exonerated and now seek section 1983 damages recourse against those responsible for their convictions.

I invite you to follow me on Twitter: @NahmodLaw.

 

 

Written by snahmod

May 18, 2020 at 11:55 am

Finally! A State’s Highest Court Creates Clearly Settled Law

Whose Decisions Determine Clearly Settled Federal Constitutional Law?

We all know that in order for a state or local government official to be liable for damages in his or her individual (not official) capacity under section 1983, that official must have violated clearly settled federal constitutional law as of the time of the challenged conduct. Otherwise, that official is protected by qualified immunity and is not liable for damages.

The conventional, oft-repeated approach is that in making the clearly settled law inquiry, we look first for apposite Supreme Court decisions. If there are none, then we look to the particular circuit’s decisions to determine whether clearly settled law existed at the time. If there are no such apposite decisions in the particular circuit, we look to the other circuits to determine whether there is an overwhelming consensus that the relevant law was clearly settled.

It is often said as well that a state’s highest court can establish clearly settled federal constitutional law even where there is otherwise no such clearly settled law. Yet, in all of the decades that I have been working in the section 1983 area, I do not recall ever encountering a situation where this has happened. Until now!

The Second Circuit’s Stoley Decision and the Court of Appeals of New York’s Hall Decision

In Stoley v. Vanbramer, 2019 WL 6765762 (2nd Cir. 2019), the defendant New York State troopers allegedly violated the plaintiff’s Fourth Amendment rights by subjecting him in 2013 to a visual body cavity search incident to his arrest on felony charges without reasonable suspicion that drugs were concealed within his body. Affirming the district court’s denial of qualified immunity to the defendants, the Second Circuit relied on a 2008 Court of Appeals of New York decision, People v. Hall, 10 NY3d 303 (N.Y. 2008), holding that individualized reasonable suspicion that an arrestee (whether for misdemeanor or felony) is concealing weapons or other contraband within his body is required by the Fourth Amendment for a visual body cavity search incident to an arrest. The Second Circuit explained that it saw no problem in requiring that New York law enforcement officers know Fourth Amendment law from decisions of federal courts and the Court of Appeals of New York.

Judge Newman concurred, 2019 WL 676562, *12, arguing that the majority relied not only on the Court of Appeals of New York decision for its finding of clearly settled law but also on the decisions of other circuits, decisions of the New York Appellate Division and decisions of district courts in the Second Circuit. The “combination of these circumstances,” together with Hall, supported the majority’s determination.

Judge Jacobs dissented, 2019 WL 67652, *15, contending that relevant Second Circuit Fourth Amendment law regarding body cavity searches incident to felony (as distinct from misdemeanor) arrests was not clearly settled in 2013.

The lesson for attorneys in section 1983 litigation involving qualified immunity and clearly settled law: however rare it is, don’t ignore your highest state court decisions setting out federal constitutional law.

For additional posts on qualified immunity, search “qualified immunity” on this blog.

For much more on qualified immunity, see Ch 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019) (West/Westlaw).

I invite you to follow me on Twitter: @NahmodLaw.

 

 

Written by snahmod

May 14, 2020 at 9:50 am

The Second Amendment and Section 1983 (Podcast): A Section 1983 Conference Encore

As many of you know, Covid-19 prevented Chicago-Kent’s 37th Annual Conference on Section 1983 from taking place, as originally scheduled, on April 23-24, 2020.

Still, in order to celebrate the Conference, several weeks ago I provided an encore podcast presentation on Damages and Procedural Defenses (search for “damages and procedural defenses”).

In order to further celebrate the Conference, I am providing another encore podcast presentation, this one on The Second Amendment and Section 1983, that took place in November 2014.

This presentation covers the basics and is still good Second Amendment law, particularly since the Supreme Court just dismissed as moot a Second Amendment challenge in New York State Rifle & Pistol Assn, Inc. v. City of New York, 139 S. Ct. 939 (2019).

You can readily find the podcast by searching on this blog for “second amendment and section 1983.”

Thanks.

I invite you to follow me on Twitter: @NahmodLaw.

 

Written by snahmod

May 12, 2020 at 9:40 am