Archive for November 2013
Certiorari Granted in Plumhoff v. Rickard: Excessive Force, High-Speed Police Pursuits and Scott v. Harris
Plumhoff v. Rickard: Certiorari Granted
The Supreme Court has granted certiorari in Plumhoff v. Rickard, No. 12-1117 (2014), an unpublished decision in Estate of Allen v. City of West Memphis, 509 Fed. App’x 388 (6th Cir. 2012).
Here are the questions presented:
The Background: Scott v. Harris
In 2007, the Supreme Court held in Scott v. Harris that “a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist’s car from behind” even though the officer’s actions “place [the] fleeing motorist at risk of serious injury or death.” In the case before it, the Court reversed the Eleventh Circuit which had affirmed the district court’s denial of officer’s qualifed immunity summary judgment motion. A videotape of the chase made abundantly clear, said the Court, that no jury could find that what the officer did— ramming the plaintiff motorist’s car and thereby seizing it — was objectively unreasonable.
In the course of its opinion the Supreme Court explained the relationship among Tennessee v. Garner, 471 U.S. 1 (1985)(deadly force), Graham v. Connor, 490 U.S. 386 (1989)(excessive force in general) and the Fourth Amendment’s reasonableness requirement. It noted that “Graham did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’ Garner was simply an application of the Fourth Amendment’s ‘reasonableness’ test in a particular type of situation.”
Justices Ginsburg and Breyer concurred, while Justice Stevens dissented, arguing that the Court had usurped the jury’s function.
Comments
1. The Supreme Court will almost certainly reverse the Sixth Circuit and declare that the latter’s approach in this and similar cases is fundamentally inconsistent with Scott.
2. Note that Scott must be sharply distinguished from those high speed police pursuit cases in which there is no seizure, with the result that the substantive due process “purpose to do harm” standard governs, and not Fourth Amendment reasonableness standards. County of Sacramento v. Lewis, 523 U.S. 833 (1998).
More on the Fourth Amendment and excessive force can be found at sections 3:17-3:23 in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2013)(West Group).
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Recent Statutes of Limitation Accrual Decisions in the Circuits
I previously set out some of the basics on statutes of limitation and section 1983 in my post of 10-27-11, A Section 1983 Primer (5): Statutes of Limitation.
What follows are three recent circuit court decisions dealing with accrual. Recall that the section 1983 accrual question is one of federal law.
For a comprehensive discussion of this technical subject, see NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 9 (4th ed. 2013)(CIVLIBLIT on Westlaw).
Fifth Circuit: Accrual and Knowledge of Parental Injury
Where the mother of a thirteen year old arrestee sued law enforcement officers, alleging that they violated her parental due process rights when they interrogated him outside of her presence and over her objections and thereby obtained what turned out to be a false confession, the Fifth Circuit ruled that the claim, filed on March 20, 2009, was time barred under Mississippi’s general or residual personal injury three year limitations period. The court reasoned that the cause of action accrued on May 12, 2003, when the plaintiff immediately became aware of her separation from her son, at which time she believed that it was in his best interest not to answer questions without her. Edmonds v. Oktibbeha County, 675 F.3d 911, 916 (5th Cir. 2012), referring to MISS. CODE ANN. § 15-1-49 (2011).
Seventh Circuit: Knowledge of Medical Injury and Its Cause
According to the Seventh Circuit, “[t]he statute of limitations for a § 1983 deliberate indifference claim brought to redress a medical injury does not begin to run until the plaintiff knows of his injury and its cause.” In this case, plaintiff alleged in his October 2007 lawsuit that prison medical staff improperly delayed ordering a prostate biopsy for him until April 2005, and metastasized prostate cancer was discovered six months later. This delay occurred even though in 2000, when he entered the prison system, he had told the prison medical staff that he had prostate problems and needed to be tested within two to four years, and even though, in February 2004, a PSA test had disclosed highly elevated PSA. Reversing the district court, the Seventh Circuit found the Eighth Amendment claim timely: the plaintiff did not know of his injury in April 2005 when the defendants finally ordered a biopsy but only discovered the injury six months later when he found out he had cancer that might have been diagnosed and treated earlier. It was at that time that his cause of action accrued, and he filed suit shortly before the applicable Indiana two year limitations period expired. The Seventh Circuit emphasized that the plaintiff was suing for his actual physical injury and rejected argument that the limitations period began to run before plaintiff knew he had cancer. Devbrow v. Kalu, 705 F.3d 765 (7th Cir. 2013).
Ninth Circuit: Discrete Act Starting Limitations Period Anew
The plaintiff, a Muslim, sued prison officials on April 29, 2009, under § 1983, alleging that they violated his First Amendment rights when, in 2008, they denied his request for a conjugal visit with his second wife pursuant to a prison regulation that permanently prohibited him from having such visits. Complicating the accrual question—California’s two year personal injury limitations period applied–was the fact that he had previously been denied a conjugal visit with his first wife in 2002 under the same regulation. The defendants argued that the plaintiff had notice of the allegedly wrongful acts in 2002 when he was denied a conjugal visit under the regulation and that his § 1983 claim was therefore untimely. However, the Ninth Circuit rejected this argument and found that the denial of a conjugal visit in 2008 was an independent discrete act that began the running of the two year limitations period all over again. Thus, his § 1983 claim was timely. Pouncil v. Tilton, 704 F.3d 568 (9th Cir. 2012). The plaintiff also brought a claim under the Religious Land Use and Institutionalized Persons Act which was governed by a federal four year limitations period.
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