Nahmod Law

Remarks On Receiving the American Constitution Society Abner Mikva Award (with Some Comments about Section 1983)

Please indulge me with this post of my remarks on receiving the Abner Mikva Award on July 24, 2018, from the Chicago Lawyers’ Chapter of the American Constitution Society.

 

Thanks, Geoff [Geoffry Stone is Professor of Law at University of Chicago Law School]. It is indeed an honor to be introduced by one of the premier constitutional law and First Amendment scholars of this generation, a worthy successor to the great Harry Kalven at U of C Law school, and a national leader in promoting the values of ACS.

It is especially an honor for me, a first-generation American, to receive the Abner Mikva award. Judge Mikva was one of the great public servants in my lifetime. I still remember, when I was a college student at U of C, hearing about an outstanding civil rights and liberties law firm in Chicago called Devoe, Shadur, Mikva and Plotkin. Although I never had the pleasure of meeting Judge Mikva personally, I did meet his law firm colleague, Judge Milton Shadur, also a great public servant, when we spoke at several Federal Judicial Center programs for federal judges.

I want to thank the ACS Board in Chicago for giving me this award, and particularly appreciate the support of Erwin Chemerinsky; my superstar student, Anthony Joseph (at this very moment taking the Illinois Bar Exam); and Dana Pownall.

Thanks to all of you for being here to honor us. I’d like to acknowledge my colleagues from Chicago-Kent, several of my favorite former students and my close friends who are sitting at their special table. And I would be remiss (and perhaps divorced) if I did not acknowledge my ultimate supporter—my wife Sonia, whom I was exceedingly fortunate to meet and marry way back in the last century.

Since I love to teach, I would like to teach you a little about section 1983, a topic that I have taught, written about and litigated in the Supreme Court and various federal courts over the past forty years. Section 1983 is a federal statute enacted by the 42ndCongress in 1871 and signed into law by President Grant. It is one of several Reconstruction Era statutes enacted under the then-new 13thand 14thAmendments so as to protect former slaves and their supporters and to go after the KKK. I like to think of section 1983 as covenental, as codifying an agreement between citizens and their local and state governments.

This superstatute creates a 14thAmendment damages action against state and local government officials and employees, and against local governments themselves, that violate our constitutional rights and cause damage. It is pro-plaintiff all the way, and its resurrection in 1961 in Monroe v. Pape initially gave rise to expansive interpretations in the Supreme Court. However, in the last decade-and-a-half in particular, the Supreme Court unfortunately (but perhaps not surprisingly) has cut back on the scope of section 1983 liability by limiting constitutional protections (especially the Fourth Amendment), by expanding what’s called absolute immunity from damages liabiltiy and, more to the present point, by providing law enforcement officers with overbroad and often unjustifiable qualified immunity protection from damages liability in excessive force and false arrest cases. As currently articulated by the Supreme Court, qualified immunity protection in my view provides too big a margin for error to too many law enforcement officers and effectively renders them unaccountable. These decisions constitute a kind of Supreme Court signalling to law enforcement that is very troubling and inconsistent with the grand purposes of section 1983.

What can be done? I do not hold out much hope for change in the Supreme Court in the near future. After all, Justice Kennedy (who recently resigned) typically joined with four other conservative justices in expanding qualified immunity protection to law enforcement officers, and his likely replacement, Judge Kavanaugh, will surely do no less. So any changes to section 1983 that might restore it to its prior status as a powerful civil rights and liberties sword will have to come from a politically accountable Congress.

Here are my suggestions for Congressional legislation: (1) statutorily overule the Will decision and declare that section 1983 abrogates 11thAmendment immunity, so that states can be sued directly for damages, and (2) impose respondeat superior liabilty on state and local governments for the constitutional violations of their officials and employees (no more arcane official policy or custom requirement for governmental liability). These two changes would render qualified immunity protection for individual law enforcement officers and others less important because deep pocket state and local governments would be liable under respondeat superior.

Anyway, those are my section 1983 recommendations in a nutshell. Thank you all again for being here. I am truly fortunate to be in a position to promote civil rights and liberties by my teaching, my writing, my appellate advocacy and, yes, even my blogging.

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

August 9, 2018 at 10:06 am

Lozman v. City of Riviera Beach and First Amendment Retaliatory Arrest Damages Claims: The Court Again Sidesteps the Probable Cause Issue

Lozman v. City of Riviera Beach

In Lozman v. City of Riviera Beach, 138 S. Ct. — (2018), the Supreme Court once again avoided ruling generally on the question whether a section 1983 plaintiff who alleges a retaliatory arrest in violation of the First Amendment must allege and prove the absence of probable cause in addition to impermissible First Amendment motive. Or, to put it another way, whether probable cause to arrest is a defense to a First Amendment retaliatory arrest damages claim. Instead, it ruled narrowly for the plaintiff based on the particular facts of his case.

In Lozman, the plaintiff alleged that a city (through its policymakers) had him arrested in retaliation for the exercise of his First Amendment rights. He claimed that he was arrested at a city council meeting when he got up to speak because he previously had criticized the city’s eminent domain redevelopment efforts and had also sued the city for violating the state’s Sunshine Act. He was never prosecuted. However, the plaintiff conceded that there was probable cause for his arrest for violating a Florida statute prohibiting interruptions or disturbances at certain public assemblies, because he had refused to leave the podium after receiving a lawful order to do so.

Ordinarily, such a plaintiff, in order to make out a section 1983 First Amendment retaliatory arrest claim, would only have to allege and prove that this impermissible retaliatory motive caused him harm, and the defendant would have the burden of disproving the absence of but-for causation in order to escape liability. Mt. Healthy Bd. of Education v. Doyle, 429 U.S. 274 (1977). But here the city argued that even if its motive was impermissible under the First Amendment, there was probable cause–an objective Fourth Amendment standard–to arrest the plaintiff anyway, and that this constituted a defense to the plaintiff’s First Amendment retaliation claim.

In Lozman, the Eleventh Circuit had ruled that probable cause was indeed a defense to a section 1983 First Amendment retaliatory arrest claim. Specifically, it determined that a section 1983 retaliatory arrest plaintiff must allege and prove not only the retaliatory motive but the absence of probable cause as well. In other words, the absence of probable cause was an element of the section 1983 plaintiff’s retaliatory arrest claim.

The Eleventh Circuit’s Reliance on Hartman v. Moore

The Eleventh Circuit’s decision was based on the Supreme Court’s decision in Hartman v. Moore,  547 U.S. 250 (2006), which held that for section 1983 retaliatory prosecution claims against law enforcement officers (prosecutors themselves are absolutely immune from damages liability for their decision to prosecute), the plaintiff must allege and prove not only the impermissible motive but the absence of probable cause as well. The Court reasoned that there was a presumption of prosecutorial regularity that the section 1983 plaintiff must overcome as an element of his retaliatory prosecution case. Accordingly, as a matter of section 1983 statutory interpretation and policy (but not of constitutional law), the plaintiff should have this twin burden in retaliatory prosecution cases.

The Court in Hartman explained that a retaliatory prosecution case was very different from the usual First Amendment retaliation case that involved a relatively clear causal connection between the defendant’s impermissible motivation and the resulting injury to the plaintiff. It was appropriate in such cases to apply the Mt. Healthy burden-shift rule under which the defendant has the burden of disproving but-for causation in order to prevail.

As discussed in a prior post, the Court previously had a similar First Amendment retaliatory arrest issue before it in Reichle v. Howards, 566 U.S. 658 (2012). But it avoided addressing the merits by ruling for the individual defendants on qualified immunity grounds.

In my view, as I have argued previously, the Court’s decision in Hartman should not be applied to First Amendment retaliatory arrest cases. The express reason for the Hartman rule is that First Amendment retaliatory prosecution cases involve a presumption of prosecutorial regularity. But this reason is clearly inapplicable where there is no prosecution and the constitutional challenge is to the arrest itself.

Moreover, First Amendment retaliatory arrest claims involve the impermissible motivation (a subjective inquiry) of law enforcement officers irrespective of probable cause, which is an objective (could have arrested) inquiry. Under this objective inquiry, the existence of probable cause precludes a Fourth Amendment violation based on an arrest even where that arrest is grounded on an offense different from the offense for which probable cause is deemed to be present. This provides a great deal of protection for police officers who allegedly make arrests in violation of the Fourth Amendment.

However, if a police officer arrests a person for racial reasons, and the claimed injury is grounded on those racial reasons, it should not matter for the Equal Protection claim–-even if it would for a Fourth Amendment claim–-that the officer had probable cause to do so, namely, that the officer could have arrested the plaintiff. This reasoning should apply as well to §1983 First Amendment retaliatory arrest claims.

It was always questionable whether the Court in Hartman should have allowed policy considerations to change the usual section 1983 causation rules in First Amendment retaliatory prosecution cases. Regardless, that reasoning should most definitely not be extended to First Amendment retaliatory arrest cases. Such policy considerations as are discussed in Hartman are most appropriately addressed, if they are to be addressed at all, as part of the qualified immunity inquiry, not the elements of the section 1983 retaliatory arrest claim.

The Supreme Court’s Narrow Decision in Lozman

In any event, in Lozman, the Court, in an opinion by Justice Kennedy, reversed the Eleventh Circuit and ruled that in this particular case the plaintiff did not have to allege and prove the absence of probable cause, and probable cause was not a defense to his First Amendment retaliatory arrest claim.

Emphasizing the narrowness of its decision, the Court pointed out that the plaintiff only challenged the lawfulness of his arrest under the First Amendment; he did not make an equal protection claim. Further, he conceded there was probable cause for his arrest, namely, that he could have been arrested for violating the Florida statute. Thus, the only question was whether the existence of probable cause barred his First Amendment retaliation claim in this case.

The Court went on to observe that the issue in First Amendment retaliatory arrest cases was whether Mt. Healthy or Hartman applied. It addressed what it considered to be the strong policy arguments on both sides of the issue. The Court then determined that resolution of the matter would have to wait for another case: “For Lozman’s claim is far afield from the typical retaliatory arrest claims, and the difficulties that might arise if Mt. Healthy is applied to the same mine run of arrests made by police officers are not present here.” For one thing, the plaintiff did not sue the officer who made the arrest. For another, since he sued the city, he had to allege and prove an official policy or custom, which “separates Lozman’s claim from the typical retaliatory arrest claim.” Moreover, the causation issues here were relatively straightforward because the plaintiff’s allegations of an official policy or custom of retaliation were unrelated to the criminal offense for which the arrest was made but rather to prior, protected speech. In short, the causal connection between the alleged animus and the injury would not be “weakened by [an official’s] legitimate consideration of speech.”(quoting Reichle, 566 U.S. at 668).

This did not mean that the Lozman plaintiff would necessarily win on remand. A jury might find that the city did not have a retaliatory motive. Or, under Mt. Healthy, the city might show that it would have had the plaintiff arrested anyway regardless of any retaliatory motive.

Justice Thomas was the sole dissenter. He maintained that the Court had simply made up a narrow rule to fit this case. Instead, he argued that plaintiffs in First Amendment retaliatory arrest cases have the burden of pleading and proving the absence of probable cause. That is, probable cause “necessarily defeats First Amendment retaliatory-arrest claims.” Accordingly, the plaintiff should lose here.

Comments

The better approach, as indicated above, is to apply Mt. Healthy in all retaliatory arrest cases. Hartman should be limited to retaliatory prosecution cases. Nevertheless, after Lozman the question is still open in the Supreme Court. This means, among other things, the retaliatory arrest individual defendants will continue to have a powerful qualified immunity argument, namely, that the law is not clearly settled even now, per Reichle v. Howards.

Note, however, that the Court may yet resolve this question in its forthcoming 2018 Term. On June 28, 2018, it granted certiorari in Nieves v. Bartlett, 712 Fed.Appx. 613 (9th Cir. 2017)(No.17-1174), to address once again whether probable cause is a defense to a section 1983 First Amendment retaliatory arrest claim. In this unreported decision, the Ninth Circuit ruled that probable cause is not a defense to First Amendment retaliatory arrest damages claims.

Written by snahmod

July 19, 2018 at 2:19 pm

An Unusual Section 1983 Second Amendment Lawsuit Brought by Police Officers(!)

Section 1983 Second Amendment lawsuits are typically brought by citizens who argue that their Second Amendment rights have been, or will be, violated by state and local governments through legislation imposing gun controls of one kind or another.

(For background, see three earlier posts on the Second Amendment: (1) https://nahmodlaw.com/2010/08/08/the-second-amendment-and-section-1983-after-mcdonald/ & (2) https://nahmodlaw.com/2013/02/28/the-second-amendment-and-gun-control-unanswered-questions/ & (3) https://nahmodlaw.com/2014/11/11/the-second-amendment-and-section-1983-a-podcast/)

The Ninth Circuit’s Decision in Mahoney v. Sessions

So consider Mahoney v. Sessions, 2017 WL 4126943 (9th Cir. 2017), an unusual Ninth Circuit case that involved Second Amendment claims brought under section 1983 by police officers challenging the City of Seattle’s use of force policy on the ground that this policy violated their right to use firearms for the core lawful purpose of self-defense. The policy stated that police officers must use objectively reasonable force “proportional to the threat or urgency of the situation, when necessary, to achieve a law-enforcement objective.” It also required officers to use de-escalation tactics to reduce the need for force but only when safe and feasible “under the totality of circumstance[s].”

Affirming the district court, the Ninth Circuit ruled that the policy did not violate the Second Amendment. The court assumed that the policy was subject to Second Amendment analysis. However, applying intermediate level scrutiny, the court went on to determine that the city’s interest in the policy was substantial because it was intended for  the safety of the public and police officers. Further, there was a reasonable fit between this purpose and the policy which assured that the interest would be furthered. It was also significant that this was a regulation of department-issued firearms.

Comment

Apart from the unusual plaintiffs in Mahoney, the result was not surprising. For one thing, the circuits as a general matter have coalesced around intermediate level scrutiny in Second Amendment cases. Mahoney appears to have applied this standard appropriately: Seattle’s policy was a sensible way of trying to constrain police officers when they contemplate the use of deadly force. Put another way, the policy was a means of enforcing the Fourth Amendment’s limits on the use by police officers of deadly force.

For another, state and local governments have no affirmative substantive due process duty to protect their officials or employees from private harm. Collins v. City of Harker Heights, 503 U.S. 115 (1992), discussed in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 sec. 3:58 (2017; West). Police officers in particular know full well that their job exposes them to the risk of serious harm on a regular basis.

I invite you to follow me on Twitter: @NahmodLaw

 

Written by snahmod

July 10, 2018 at 8:08 am

Posted in Uncategorized

What Everyone Should Know About Free Speech, Hate Speech and Political Protests: My New Video

I spoke about free speech, hate speech and political protests at the Chicago Bar Association on March 22, 2018. This was a CLE presentation setting out the basics of free speech and its relation to hate speech and political protests.

Although the audience consisted of lawyers, I deliberately used as little legal jargon as possible, with the result that the video of my presentation is suitable for any non-lawyers who are interested in learning about this always-important topic.

I hope you find it of interest. If you have any comments or thoughts, please feel free to email me at snahmod@kentlaw.edu.

Here is the link to the video (not in HD, unfortunately):

 

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

 

Written by snahmod

June 26, 2018 at 10:11 am

“A Lark and a Frolic” and the Public/Private Distinction: When Does a Nominal State Actor Lose That Status?

The Fourteenth Amendment (with its due process, equal protection and incorporated Bill of Rights components) has a constitutional state action requirement, meaning that the Fourteenth Amendment is not applicable to purely private conduct. Rather, it governs the conduct of state and local government officials and employees, as well as states and local governments themselves.

(On state action, see my post, Know Your Constitution (8): What is State Action? which can be found here: https://nahmodlaw.com/2015/02/19/know-your-constitution-8-what-is-state-action/)

In contrast, section 1983 has a statutory color of law requirement. So what is the connection between state action and color of law? The answer, as it turns out: where state action is present, so is color of law.

(On color of law and section 1983, see my post, State Action, Color of Law and Section 1983, which can be found here: https://nahmodlaw.com/2016/11/21/state-action-color-of-law-and-section-1983/)

However, there are situations where a state or local government official whose conduct would ordinarily be considered to be state action for Fourteenth Amendment purposes (and therefore color of law for section 1983 purposes), is not considered to be a state actor and therefore as not having acted under color of law. For instance, off-duty police officers who work as private security guards. I call this the converse of the typical state action question.

(I discuss and collect such cases in sec. 2:13 of my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed. 2017)(West & Westlaw).

To explain: the typical state action question is whether the challenged conduct should be attributed to a state or local government for Fourteenth Amendment and section 1983 purposes. The converse of the typical state action question is whether the challenged conduct of a government official or employee, ordinarily state action and color of law, should not be attributed to a state or local government for Fourteenth Amendment and section 1983 purposes. The following Seventh Circuit decision is an example of the latter.

Luce v. Town of Campbell

In Luce v. Town of Campbell, 872 F.3d 512 (7th Cir. 2017), a police chief “messed” with Tea Party protestors who had criticized the police department for alleged mistreatment by posting the name and address of one of the protestors on websites catering to gay men and consumers of pornography. The police chief also posted comments on the local newspaper’s website falsely accusing the protestor of failing to pay taxes and his debts. The police chief tried to hide his role but he was discovered and thereafter resigned. Affirming the district court, the Seventh Circuit found that the police chief was not a state actor when he “messed” with the protestor: he did not use official information or privileged access. More important, acting like a vigilante was not part of a police officer’s job. Rather, it was “a lark and a frolic.” Accordingly, he could not be subject to section 1983 liability: because his conduct was not state action under the Fourteenth Amendment, he did not act under color of law for section 1983 purposes.

Comment

Both the state action and converse state action inquiries are very fact-specific. There are no real bright line rules: the inquiry focuses on whether the state or local government official exercised governmental power. To put this another way: the ultimate state action and color of law question is whether the state or local government is responsible for the challenged conduct.

I invite you to follow me on Twitter: @NahmodLaw

 

Written by snahmod

June 21, 2018 at 2:25 pm

Who Decides the Final Policymaker Question in Section 1983 Litigation?

Those involved in section 1983 litigation know that there are three ways for a local government to be liable in damages for an official policy or custom. Monell v. Dept. of Social Services, 436 U.S. 658 (1978).

(1) The first way is where a local government’s official policy brings about the plaintiff’s constitutional deprivation. For example, a municipal ordinance is an official policy.

(2) The second way is where a local government has an established custom of acting in a certain way.  For example, a local government that regularly uses race as an impermissible factor for making personnel decisions (even if not formalized as such) has a custom of racial discrimination. (A failure to train or supervise can sometimes constitute an actionable official policy or custom as well. City of Canton v. Harris, 489 U.S. 378 (1989)).

(3) The third way a local government’s official policy or custom can be shown is by attribution through a local government’s final policymaker (not merely an official or employee) who acts unconstitutionally. As the Court said in Monell, an official policy or custom can be “made  by … lawmakers or by those whose edicts or acts may fairly be said to represent official policy” (emphasis added).

The question whether an official or employee is a local government’s final policymaker is, according to the Supreme Court, a question of state and local law. Jett v. Dallas Independent. School Dist., 491 U.S. 701 (1989). Since the final policymaker question is so important in section 1983 litigation, who decides the question?

The Eighth Circuit’s Decision in Soltesz v. Rushmore Plaza Civic Center

Following the lead of the Supreme Court in Jett, and consistent with the approach of other circuits, the Eighth Circuit has emphatically ruled that a district court is required to identify a final policymaker under state and local law. In Soltesz v. Rushmore Plaza Civic Center, 2017 WL 490407, * 4 (8th Cir. 2017), the plaintiff sued a city under section 1983 after his concession stand lease was terminated and his property seized in alleged violation of due process. He based his claim on the decision of a final policymaker. However, the district court failed to identify a final policymaker and allowed the case to proceed over the city’s objections, and the plaintiff prevailed before a jury. Vacating the jury’s verdict and judgment for the plaintiff, and relying on Supreme Court precedent, the Eighth Circuit declared: ‘[N]o legally sufficient evidentiary basis exists to impose liability on a municipality for the decisions of a final policymaker when the district court fails to identify that policymaker.” This was a legal issue for the district court that must be based on state and local law. The jury has no role in this determination.

Comments

There is little question that the Eighth Circuit got it right. It is only when a final policymaker has been identified by the district court using state and local law–a straightforward legal issue not within the competence of a jury–that the jury has a role in determining whether the decision of the final policymaker caused the plaintiff’s constitutional deprivation.

The final policymaker question, as with other local government liability issues, can be incredibly complicated. Still, it must be mastered because respondeat superior liability is not allowed under section 1983 as a matter of federal law. See generally Chapter 6, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2017)(West and Westlaw).

So it can be important for plaintiffs to find a way to get deep pocket defendants such as local governments to pay damages for their constitutional deprivations, particularly where individual defendants may be protected by absolute or qualified immunity.

Written by snahmod

June 11, 2018 at 3:04 pm

Attorneys Must, At Their Peril, Understand The Official-Individual Capacity Distinction In Section 1983 Damages Cases

It is crucial for a section 1983 plaintiff’s attorney in section 1983 damages actions against state and local government officials to specify whether the plaintiff is suing them in their individual or official capacities, and to understand the important differences. Defense attorneys must also understand these differences.

An individual capacity damages action is an action against the official personally, so that, if the suit is successful, the official is liable personally for damages (although indemnification by the local government is likely). An individual capacity damages action may therefore trigger an absolute or qualified immunity inquiry. Government liability and the official policy or custom requirement are irrelevant.

An official capacity damages action is an action against the official’s government. If the official works for or on behalf of a local government, then the official policy or custom requirement for local government liability is triggered. Absolute and qualified immunity are irrelevant here.

If the official works for or on behalf of a state government, then the section 1983 damages action will be dismissed because the state is not a suable person under section 1983 as a matter of statutory interpretation. This restriction on section 1983 cannot be avoided by suing a state official for damages in his official capacity rather than suing the state in its own name.

The Eighth Circuit’s Decision in Banks v. Slay

As an example of the importance of this distinction for both parties, consider the Eighth Circuit’s decision in Banks v. Slay, 2017 WL 5504388, *1 (8th Cir. 2017).

The Eighth Circuit explained the issue before it:

A core tenet of [§1983] jurisprudence is that an official-capacity suit against an individual is really a suit against that official’s government entity. This case applies that principle, as the primary issue we are called upon to decide is whether—under the facts of this case—a properly served, yet unnamed government entity may evade a judgment obtained solely against an employee is his official capacity. Our answer, flowing from settled precedent, is that it may not.

The plaintiffs here named two city police officers accused of threatening, robbing and falsely arresting one of the plaintiffs in their individual and official capacities. He also named each member of the city’s board of police commissioners in their official capacities, although they were later dismissed by the plaintiffs, as was one of the police officers. The complaint and summons had been previously served on the board defendants. Thereafter, judgment was entered against the remaining police officer defendant in his official capacity. The Eighth Circuit ruled that mandamus to enforce the judgment was properly issued against the city because the plaintiffs had an enforceable judgment against it. The court observed that naming a government entity separately in an official capacity damages action was not necessary.

Comment

1. I can only assume that in Banks the plaintiffs alleged and proved an official policy or custom in order to support the judgment against the remaining police officer defendant in his official capacity. If not, the plaintiff caught a break.

2. A good way for section 1983 plaintiffs’ attorneys to avoid confusing themselves, defendants and courts is to sue the local government for damages in its own name, rather than relying on official capacity damages actions against local government officials. This puts the official policy or custom requirement right up front and eliminates individual immunity concerns (unless, of course, local government officials are also sued in the same case for damages in their individual capacities). See generally ch. 6 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2017).

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

Written by snahmod

May 31, 2018 at 11:31 am