Nahmod Law

Introduction

I blogged on February 16, 2011, about the Supreme Court‘s grant of certiorari in Camreta v. Greene (PDF), a case from the Ninth Circuit raising not only Fourth Amendment issues but also questions related to the Supreme Court’s appellate jurisdiction over the petition for certiorari of individual defendants who had prevailed in the Ninth Circuit on qualified immunity but had lost on the Fourth Amendment merits.

In that post I also discussed the potential implications of Camreta for the appellate jurisdiction of Circuit Courts of Appeals asked to review district court decisions finding constitutional violations by individual defendants but conferring qualified immunity on them.

Readers should consult the prior post for background on the Supreme Court’s recent decision in Camreta v. Greene, 131 S. Ct. – (2011), vacating in part, Greene v. Camreta, 588 F.3d 1011 (9^th Cir. 2009), which is the subject of this post.

(Camreta is the second decision this Term dealing with qualified immunity appellate procedure; the first was Ortiz v. Jordan, 131 S. Ct. — (2011), which I blogged about on January 25, 2011).

Camreta v. Greene

On May 26, 2011, the Supreme Court handed down Camreta v. Greene, which involved the question whether the Fourth Amendment was violated in connection with the temporary seizure and interview in a public school of a child who authorities suspected was being sexually assaulted by her father. Here, the district court ruled that the individual defendants did not violate the child’s Fourth Amendment rights but, even if they did, they were protected by qualified immunity. On plaintiff’s appeal, the Ninth Circuit affirmed on qualified immunity but also found, contrary to the district court, that the individual defendants violated the plaintiff’s constitutional rights. In so doing, the Ninth Circuit made new Fourth Amendment law.

The individual defendants thereafter petitioned for certiorari on the Fourth Amendment issue, which was granted by the Supreme Court. The plaintiff’s brief to the Court addressed the important Fourth Amendment merits, as did the individual defendants’ brief and a number of amici briefs. But the plaintiff also argued that the Court did not have appellate jurisdiction because (1) the defendants had prevailed in the Ninth Circuit; (2) the determination by the Ninth Circuit that the individual defendants violated the Fourth Amendment was not part of its judgment; and (3) the case between the plaintiff and the individual defendants was moot.

In an opinion by Justice Kagan, the Supreme Court vacated the Ninth Circuit’s decision in part and remanded. The Court first determined that it could review the Ninth Circuit’s decision under the relevant federal statute, 28 U.S.C. § 1254(1), which conferred power on it to grant certiorari “upon the petition of any party,” which included petitions brought by prevailing litigants in the court below, not only losing litigants. Next, the Court rejected the plaintiff’s argument that the petition submitted by the prevailing defendants did not present an Article III case or controversy. The defendants had a personal stake in the case because the Ninth Circuit had ruled that the defendants violated the plaintiff’s Fourth Amendment rights and this judgment had a prospective effect on the parties: these defendants, and other defendants in this situation, either have to change the way they perform their jobs or risk future damages liability. Similarly, in most such cases plaintiffs will ordinarily retain a stake in the outcome (although, as it turned out here, the plaintiff did not retain a personal stake). Read the rest of this entry »

Introduction

As is well known by now, several years ago the Supreme Court announced what it termed a plausibility standard for pleading in federal courts. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(antitrust) and, especially, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)(Bivens action vs. federal officials). Precisely what this means in real-world terms is not entirely clear, and federal courts and litigants have  since struggled with the plausibility standard and its relation to notice pleading in federal courts.

As I was preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2010; West Group)(CIVLIBLIT on WESTLAW), I came across three important post-Iqbal circuit court decisions from the Seventh, Tenth and Eleventh Circuits. I want to share them with you in advance of publication this fall of the 2011 Update.

The Seventh Circuit: Cooney v. Rossiter, 583 F.3d 967, 971 (7^th Cir. 2009)(§ 1983 conspiracy complaint)

The Seventh Circuit, in a thoughtful opinion by Judge Posner, addressed the effect of the plausibility standard of Twombly and Iqbal on § 1983 conspiracy claims against an attorney and therapist accused of conspiring with state actors in connection with the plaintiff mother’s loss of custody of her two children after she was diagnosed with “Munchausen syndrom by proxy.”  After analyzing these two Supreme Court decisions, Judge Posner summarized:

In other words, the height of the pleading requirement is relative to the circumstances. We have noted the circumstances (complexity [Twombly] and immunity [Iqbal]) that raised the bar in the two Supreme Court cases. This case is not a complex litigation, and the two remaining defendants do not claim any immunity. But it may be paranoid pro se litigation, arising out of a bitter custody fight and alleging, as it does, a vast encompassing conspiracy; and before defendants in such a case become entangled in discovery proceedings, the plaintiff must meet a high standard of plausibility.

Judge Posner went on to point out that even before this new plausibility requirement, conspiracy allegations were held to a higher standard and that “mere suspicion that persons adverse to the plaintiff had joined a conspiracy against him or her were not enough.” Here, the plaintiff’s allegations of a conspiracy between government officials and the two private defendants were not sufficient to survive a motion to dismiss, even before Twombly and Iqbal, because they were bare of specifics and vague. Read the rest of this entry »