Nahmod Law

In Pearson v. Callahan, 129 S. Ct. 808 (2009), the Supreme Court modified its earlier approach to the order in which the two parts of the qualified immunity test are to be addressed by district courts.

Background

The qualified immunity test currently has two parts. The first part focuses on whether the plaintiff states a cause of action. The second part focuses on whether, at the time of the allegedly unconstitutional conduct, the defendant violated clearly established law. About a decade ago the Court instructed that the inquiry into whether the section 1983 plaintiff states a cause of action must always be made before the inquiry into whether the defendant violated clearly settled law (a mandatory “order of battle” ). The primary rationale of this mandatory approach was to promote the development of clearly established constitutional law. However, a major downside–one that bothered many district courts–was the elimination of any flexibility to avoid difficult constitutional issues by ruling in favor of the defendant on the ground that the defendant did not violate clearly established law. Recently, however, several Justices, including Justices Breyer and Scalia, began to express doubts about this mandatory order of battle.

The Decision

The Supreme Court finally resolved the matter in Pearson and held that the order of battle procedure was no longer to be regarded as an inflexible requirement. Pearson was a Tenth  Circuit case involving an alleged violation of the Fourth Amendment and “consent once removed.” In this case, where the defendant police officers conducted a raid in March 2002 on the plaintiff’s home without a warrant on the basis of a confidential informant’s invitation to the defendants to enter, the Tenth Circuit found that they had violated the Fourth Amendment and were not entitled to qualified immunity. The court reasoned that the Supreme Court and its circuit had clearly established that there were only two exceptions to the warrant requirement for entry into a home, consent and exigent circumstances, neither of which was present here. On review, the Supreme Court asked the parties to argue the question of whether the mandatory “order of battle” should be modified. Read the rest of this entry »

I suggest that malicious prosecution elements and terminology should have little or no place in the analysis of the section 1983 prima facie case. Instead, the primary focus should be on the relevant constitutional violation alleged by a plaintiff.

[Full disclosure: I recently but unsuccessfully made this kind of argument for the defense in Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008), cert denied, 129 S. Ct. 1526 (2009). But I argued long ago–in a 1970’s Indiana Law Journal article and in the second edition of my section 1983 treatise, published in the mid 80’s–that such tort concepts do not belong in the prima facie case analysis.]

The Prima Facie Case, Federal Law and State Law

Over the years the Supreme Court has clarified much of the section 1983 jurisprudence related to the prima facie case. We know of the primacy of the constitutional violation inquiry, the role of causation, the compensatory and punitive damages rules and who is a suable person under section 1983. We also know that by virtue of 42 U.S.C. section 1988 and 28 U.S.C. section 1738, section 1983 borrows extensively from state law with regard to statutes of limitations, wrongful death, survival and preclusion. However, there remains a particularly muddled area of section 1983 jurisprudence that has long cried out for rethinking: section 1983 malicious prosecution claims. Remarkably, such claims in the circuits are governed extensively by tort law, not primarily constitutional law, even though tort law should not determine the scope of section 1983 claims. Section 1983 is, after all, a statute that creates a Fourteenth Amendment action for damages, and constitutional law, not tort law, should be primary. At best, tort law should be used only to fill in statutory gaps. Read the rest of this entry »

The Supreme Court’s 2009 decision in Haywood v. Drown was a surprisingly close decision that pitted the Supremacy Clause against federalism, with the former barely winning.

The Decision

Haywood v. Drown, 129 S. Ct. 2108 (2009), dealt with a New York statute that provided that New York courts did not have jurisdiction to hear any claims for damages against correctional officials sued in their personal capacities for acts committed within the scope of their employment, while allowing the State to be sued under state law in its Court of Claims for such claims. The Court of Appeals of New York had ruled that New York courts lacked jurisdiction to hear the plaintiff inmate’s two § 1983 complaints seeking damages against correctional officers. This did not violate the Supremacy Clause because the relevant New York statute did not discriminate against federal causes of action but covered all such claims, whether based on state or federal law. This provision was “neutral” for Supremacy Clause purposes, according to the Court of Appeals: “New York courts necessarily adjudicate only state claims brought against the state and federal courts adjudicate only federal causes of action brought against individuals.” Read the rest of this entry »