Nahmod Law

DeShaney’s No-Affirmative Duty Rule, Section 1983 and Danger-Creation: Three Recent Decisions

Almost everyone knows by now that in a still-controversial decision, DeShaney v. County of Winnebago, 489 U.S. 189 (1989), the Supreme Court ruled that the due process clause does not create an affirmative substantive due process duty on the part of government to protect citizens from private harm. The Court in DeShaney suggested two exceptions to this general rule: (1) when the government or its officials or employees themselves created the danger in which the plaintiff found himself or herself, and (2) when the plaintiff is in the government’s custody and is thereby prevented from protecting himself or herself. Many, if not most, DeShaney-type cases involve the danger-creation exception and the section 1983 plaintiffs typically lose.

(I’ve posted about DeShaney over the years on this blog. All you need to do to find these posts is to search “DeShaney.” Also, for much more, see ch. 3 in my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West).)

What follows are three recent decisions that rejected the state-created danger exception to DeShaney.

A Fourth Circuit Case: Graves v. Lioi

The decedent’s estate filed a section 1983 substantive due process suit against two police officers claiming that they were responsible for the stabbing death of the decedent, the assailant’s pregnant wife, outside a courthouse where she had just obtained a protective order against him. The officers allegedly enabled the assailant to postpone his self-surrender on a misdemeanor arrest warrant, thereby providing him with the opportunity to murder his wife. Affirming the district court’s grant of summary judgment to the officers, the Fourth Circuit determined that the record did not show that they committed affirmative acts that would render them liable under the state created danger doctrine. These acts included the letters and texts of one of the officers to the assailant, the conduct of the second officer relating to the arrest warrant against the assailant and their decisions to allow the assailant to leave a police department district office and self-surrender. There was also little or no evidence of a causal link between the alleged affirmative acts and the decedent’s harm. Further, the defendants were protected by qualified immunity. Graves v. Lioi, 930 F.3d 307 (4th Cir. 2019).

Judge Gregory dissented, arguing that the majority improperly construed the evidence which, in fact, showed that the defendants engaged in actionable affirmative acts to allow the assailant to evade arrest until a date considered convenient to him, when he was finally able to stab his pregnant wife.

A Seventh Circuit Case: Estate of Her v. Hoeppner

A child’s estate filed a section 1983 suit against a parks director, seven lifeguards and a city after the six-year-old child was found unresponsive on the bottom of a man-made swimming pond operated by the city. She died several days later. The Seventh Circuit affirmed the district court’s grant of summary judgment to the defendants, rejecting the plaintiff’s state danger-created theories. “No reasonable jury could find that the defendants created a danger just by operating a public swimming pond or that they did anything to increase the danger to [the child[ before she drowned. Nor was their conduct so egregious and culpable that it ‘shocks the conscience,’ a necessary predicate for a court to find that an injury from a state-created danger amounts to a due process violation.” There was no evidence that the swimming pond was “distinctively dangerous.” There was also no evidence that the lifeguards disregarded their training: the child slipped below the surface without being noticed by anyone. At most, this was a negligence claim. Estate of Her v. Hoeppner, 939 F.3d 872 (7th Cir. 2019).

An Arkansas Supreme Court Case: Yang v. City of Little Rock

Where the plaintiff  filed a section 1983 damages action against a city and others in connection with the alleged mishandling of a 911 call requesting rescue services for his deceased son, the Supreme Court of Arkansas affirmed the lower court’s grant of summary judgment to the defendants. As to the plaintiff’s claim that the city failed to provide competent emergency services, thereby causing his son’s death, the court declared that under DeShaney, the city had no constitutional duty to provide rescue services for the son. And as to the plaintiff’s claim that the city was liable under a state-created-danger exception because its water rescue operations prevented rescue attempts by others, there was no evidence that the city arbitrarily prohibited rescue attempts by anyone: indeed, there were no reasonable alternative avenues of rescue here. In short, there was no evidence that the city affirmatively placed the plaintiff’s son in a position of danger that he would not otherwise have faced. Dayong Yang v. City of Little Rock, 2019 Ark. 169 (2019).

Comments

  1. I consider the strongest of these three cases for the state-created danger exception to DeShaney to be the Fourth Circuit’s Graves decision. Even here, though, an alternative ground for the decision in favor of defendants was qualified immunity. So the police officers escaped section 1983 damages liability in any event.

2. Even where section 1983 plaintiffs confronting DeShaney can surmount the affirmative duty issue, they still have to show a highly culpable state of mind, often put somewhat confusingly by the circuits in “conscience shocking” terms. What is really required is at least deliberate indifference which is still not all that easy to show. More than negligence or gross negligence is required.

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Written by snahmod

November 17, 2020 at 11:56 am

Posted in Uncategorized

My Son Interviews His Father About Section 1983, Constitutional Law and Arguing in the Supreme Court

My talented singer-songwriter son, Daniel Nahmod, recently interviewed me and posted the interview on his website. The interview appears with a separate election-eve patriotic program that you may also want to check out.

In the interview, my son asks me about section 1983, the Fourteenth Amendment and my successful argument in the Supreme Court in an important section 1983 case involving over 100 Puerto Rico teachers terminated in violation of the First Amendment. We also talked about my education, how I became interested in section 1983 and wrote my section 1983 treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West).

The link to the website, and to the interview and to Daniel’s patriotic program, is below.

https://conta.cc/3eDx2BU

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

Written by snahmod

November 13, 2020 at 9:44 am

Posted in Uncategorized

Will Bush v. Gore Return to Haunt Us?

I posted the following very highly critical comments on Bush v. Gore some years ago. In view of President Trump’s apparent determination to retain the presidency through the Supreme Court, I thought you might be interested in reading this post in case you missed it the first time.

——————————————————————————————————————–

It is one of the worst Supreme Court decisions in history.

No, I’m not referring to Dred Scott v. Sanford, which held that blacks could never be U.S. citizens, thereby making the Civil War all but inevitable.

I’m also not referring to Plessy v. Ferguson, which upheld separate but equal and ushered in Jim Crow.

I’m not referring to Lochner v. New York, where a laissez faire Supreme Court struck down pro-labor progressive legislation.

And I’m not referring to U.S. v. Korematsu, which upheld the internment of loyal Japanese-American citizens during World War II.

All four of these decisions are morally repugnant, and several are even evil.

No, I’m referring to the infamous and much more recent 2000 decision in Bush v. Gore, where the Court called a halt to the Florida recount and effectively selected George Bush as President of the United States.

This is, in my opinion, perhaps the most overtly politically partisan decision in Supreme Court history. Five Republican-appointed Justices voted for the Republican candidate, while the four dissenters, including two Democrat-appointed Justices and two Republican-appointed Justices, maintained that the Court should not have become involved or at least should not have stopped the recount.

Bush v. Gore blatantly violated the most basic principles of federalism, comity and judicial restraint. The five Justices in the majority, even if they thought they acted in good faith, fooled themselves into thinking that they were simply interpreting the Constitution rather than voting their own partisan political preferences. Justice Scalia was, of course, one of those.

Why do I bring up Bush v. Gore? Because Justice Scalia repeatedly admonished those who criticized the Court’s decision to “get over it.”

But Justice Scalia himself never could get over Roe v. Wade, the 1973 landmark abortion decision. He contended that Roe was incorrect and should be overruled, regardless of the consequences. He repeatedly and heatedly accused his colleagues of intellectual dishonesty and of supplanting the political process.

He could never get over the Court’s decision in Romer v. Evans, dealing with sexual orientation discrimination. He accused the majority of taking sides in the culture wars and of signing on to the “homosexual agenda.”

He angrily attacked the Court’s decision in U.S. v. Windsor, striking down the Defense of Marriage Act, and commented bitterly (and correctly, as it turned out), that Windsor would directly lead to constitutionalizing same-sex marriage. Then came Obergefell v. Hodges, the blockbuster 2015 decision finding a due process right to same-sex marriage.

I fully understand Justice Scalia’s anger and frustration regarding abortion and same-sex marriage, even though I disagree with his views on the merits. And I even understand why he could never “get over” those decisions.

But his calls for others to “get over” Bush v. Gore always rang hollow to me and smacked of disingenuousness or even hypocrisy.

I continue to teach Bush v. Gore as the last case in my constitutional law course because it is the best example of a wrongheaded and politically partisan Supreme Court decision handed down by a triumphalist Court.

I still cannot get over it.

Written by snahmod

November 4, 2020 at 6:33 pm

Posted in Uncategorized

Is There a Fourth Amendment Seizure When a Person Flees?

The en banc Eighth Circuit was sharply divided about the existence of a Fourth Amendment seizure in a case where, among other things, a person fled after an officer in a police car stopped directly in front of him and his friend, one Michael Brown (yes, that Michael Brown, who was subsequently shot and killed by the police officer while also fleeing) and where the police officer yelled at them to “Get the f*ck on the sidewalk.” And because the Supreme subsequently denied certiorari, it did not decide the matter. Johnson v. City of Ferguson, Missouri, 864 F.3d 866, 873 (8th Cir. 2017), as corrected (July 31, 2017) and reh’g en banc granted, opinion vacated (Sept. 12, 2017) and on reh’g en banc, 926 F.3d 504 (8th Cir. 2019)(en banc), cert. denied, 2019 WL 6257423 (U.S. 2019)

In Johnson, the Eighth Circuit panel had initially found a seizure where “[the plaintiff] Johnson’s complaint alleged that Officer Wilson stopped his car at an angle, directly in front of Johnson and Brown, so as to block their path after yelling at them to ‘Get the f*ck on the sidewalk.’” For one thing, the plaintiff actually stopped when the defendant blocked his path. This was a submission to authority. For another, the stop was more than momentary even though the plaintiff fled after the defendant later shot the plaintiff’s companion.

Thereafter, however, the Eighth Circuit en banc disagreed with the panel and found that there was no seizure of the plaintiff under the circumstances. Among other considerations, the plaintiff conceded in the complaint that he and Brown were not ordered by the officer to stop. Also, the police vehicle did not prevent Johnson from crossing the sidewalk. Moreover, any physical contact by the officer was directed toward Brown in the first instance. “In a word, then, because Johnson himself was neither physically restrained nor prevented from proceeding to the sidewalk in compliance with [the officer’s] directive rather than fleeing as he did,” there was no seizure since Johnson did not submit to a show of authority.

Judge Melloy, joined by Chief Judge Smith and Judges Kelly and Erickson, dissented at length, arguing that there was indeed a Fourth Amendment seizure. 926 F.3d at 507. Judge Melloy explained in the following excerpt from his opinion (citations omitted):

“Here, I believe that Officer Wilson made a show of authority communicating that Johnson ‘was not at liberty to ignore the police presence and go about his business.’ As stated above, the only facts relevant at this procedural posture are those alleged in the complaint. And the Court must accept those facts as true and view them in the light most favorable to Johnson. To recap, Johnson’s complaint alleged the following facts relevant to this issue:

• As Johnson and Brown walked peacefully and ‘lawfully’ down the road, Officer Wilson, operating a marked police vehicle, approached Johnson and Brown, slowed his vehicle to a stop, and ordered them to ‘Get the f*ck on the sidewalk.’

• Officer Wilson continued to drive his vehicle several yards, then abruptly put his vehicle into reverse and parked his vehicle at an angle so as to block the paths of Johnson and Brown.

• Officer Wilson stopped his vehicle just inches from Brown and forcefully opened his door, striking Brown. Officer Wilson then reached through his window and grabbed Brown, who was closer to Officer Wilson than Johnson. Officer Wilson thereafter threatened to shoot his weapon. As Brown struggled to break free, Officer Wilson discharged his weapon twice, striking Brown in the arm. Surprised by Officer Wilson’s use of ‘excessive’ force and fearing for his life, Plaintiff Johnson ran away from Officer Wilson simultaneously with Brown.

By crudely ordering Johnson to move and then abruptly reversing his vehicle and stopping it inches away and directly in Johnson’s path, Officer Wilson communicated an intent to use a roadblock to stop Johnson’s movement. Despite Defendants’ (and amicus curiae’s) argument that the roadblock did not foreclose all of Johnson’s avenues of travel, a reasonable person would understand the roadblock’s purpose was to serve as a ‘physical obstacle’ conveying an order to stop—not an order to go around the vehicle and continue on one’s way. Officer Wilson’s actions thus would convey to the ‘reasonable person that he was not at liberty to ignore the police presence and go about his business.'”

Comment

I have nothing to add except to say that the dissenters have the better of the argument.

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

October 19, 2020 at 11:38 am

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).

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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