Nahmod Law

As some of you know, I have been arguing for quite some time that the scope of section 1983 should not be governed by tort law. See Nahmod, Section 1983 and the “Background” of Tort Liability, 50 Ind. L.J. 5 (1974).

Along the same lines, I have consistently maintained that the elements of the tort of malicious prosecution should play no meaningful role in section 1983 statutory interpretation–see my post of Sept. 11, 2009. The only exception is where section 1983 damages actions challenge existing convictions. Heck v. Humphrey, 512 U.S. 477 (1994).

As noted in my post of March 24, 2016, the Supreme Court granted the plaintiff Petitioner’s petition for writ of certiorari in Manuel v. City of Joliet to address the question whether the Fourth Amendment can serve as the basis of a section 1983 “malicious prosecution” claim. Counsel for Respondents asked me to submit an amicus brief in support of affirming the Seventh Circuit‘s judgment for Respondents.

I filed my amicus brief on August 10, 2016, with the able assistance of Joshua Yount, Charles Woodworth and Michael Downey of Mayer Brown LLP, Chicago, Illinois.

The entire amicus brief is available here.

For those who do not want to read the entire brief, what follows is the full Introduction and Summary of Argument:

INTRODUCTION AND SUMMARY OF
ARGUMENT

Over twenty years ago, this Court acknowledged “an embarrassing diversity of judicial opinion” on “the extent to which a claim of malicious prosecution is actionable under § 1983.” Albright v. Oliver, 510 U.S. 266, 270 n.4 (1994) (plurality opinion). This embarrassment continues, seriously impeding the vindication of the Fourteenth Amendment and other constitutional rights. The time has come to answer the fundamental issues raised by the Question Presented, which as the certiorari petition recognized (at 10-11, 21, 25-26), necessarily include whether the elements of the common law malicious prosecution tort—and the favorable termination element in particular— apply to Petitioner’s § 1983 claim.

The only defensible answer to that crucial statutory interpretation question is that the common law elements of malicious prosecution should play no independent role in determining the scope of claims under 42 U.S.C. § 1983. Section 1983 created a federal statutory remedy for constitutional violations perpetrated by state actors, whereas malicious prosecution is a common law tort. To describe a § 1983 claim as “malicious prosecution” is a misnomer that directs attention away from the real inquiry—the elements of the constitutional provision underlying the particular § 1983 claim—and improperly focuses instead on the elements of the malicious prosecution tort. In this respect the Seventh Circuit gets it right while other circuits do not: “[I]f a plaintiff can establish a violation of the fourth (or any other) amendment there is nothing but confusion to be gained by calling the legal theory ‘malicious prosecution.’” Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001).

Attempts to analogize between so-called § 1983 “malicious prosecution” claims and the common law elements of malicious prosecution have caused a great deal of confusion in the lower courts. The en banc Fifth Circuit described its own “precedent governing § 1983 malicious prosecution claims” as “a mix of misstatements and omissions” that has led to “inconsistencies and difficulties.” Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc). And the Fifth Circuit acknowledged that it is “not alone in this drift. Other circuits have traveled uneven paths as well, and numerous approaches have developed after Albright.” Ibid.; see generally Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 §§ 3:66-3:67 (4th ed. 2015) (collecting and analyzing post-Albright cases in the circuits, and arguing that malicious prosecution law should not dictate scope of § 1983).

Petitioner tries to take advantage of this confusion to save his § 1983 “malicious prosecution” claim from dismissal on statute of limitations grounds. He maintains that § 1983 imports the “favorable termination” element of common law malicious prosecution, which would have prevented accrual of his claim until he was released and the charges against him dropped. Such a maneuver cannot be squared with § 1983 or this Court’s precedents.

1. Contrary to the rule that Petitioner needs to prevail, the elements of common law torts like malicious prosecution do not dictate the elements of a § 1983 claim. Nothing in the text of § 1983, its legislative history, or its purposes indicates that Congress intended to merely duplicate common law torts. Section 1983 by its own language was enacted to enforce the “rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. Regardless of any superficial similarity between particular § 1983 actions and particular tort actions, the vital constitutional interests served by § 1983 are distinct from and independent of the principles that animate tort law.

The Court has consistently reaffirmed that constitutional deprivations are central to § 1983 claims. Thus, the statutory cause of action may be interpreted against the “background of tort liability,” but only to implement § 1983, not to define its scope. Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled on other grounds by Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978). At most, common law principles can fill gaps as necessary to effectuate a damages remedy for constitutional violations.

2. Importing the common law elements of malicious prosecution into § 1983 would be particularly ill-advised. The last two decades have demonstrated that attempts to do so result only in confusion. Indeed, the fundamental disconnect between the elements of a § 1983 claim and the elements of a common law malicious prosecution claim virtually guarantees confusion. In addition, the entire enterprise of attempting to interpret a supposedly uniform federal cause of action based on tort law that varies not only from one state to another, but from the time of § 1983’s enactment in 1871 to the present day, is just not workable.

Finally, as a matter of § 1983 law and policy, there is no good reason to make any of the traditional elements of malicious prosecution into elements of Petitioner’s § 1983 claim for unlawful pretrial detention. Several of the malicious prosecution elements (including the favorable termination requirement) contradict established § 1983 precedents. And others (such as the absence of probable cause) make sense only to the extent that the underlying constitutional right requires their consideration. In short, this Court’s interpretation of § 1983 should not be governed by the common law tort of malicious prosecution.

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Protecting Police Officers from Section 1983 Damages Liability

By now, many of us know that section 1983 doctrines are highly protective of police officers sued for violating citizens’ constitutional rights. Fourth Amendment law itself has become more officer-protective with its emphasis in excessive force cases on the perspective of the officer at the time of the occurrence. Graham v. Connor, 490 U.S.386 (1989).  And the added layer of protection for officers, qualified immunity, has repeatedly been described by the Supreme Court as protecting “all but the plainly incompetent” from damages liability. See generally on qualified immunity, ch. 8 of my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed. 2015).

High-Speed Police Chases, the Fourth Amendment and Qualified Immunity

In high-speed police chases that involve a seizure and therefore implicate the Fourth Amendment, the pro-officer approach of the Supreme Court is particularly obvious. For example, the Supreme Court handed down Mullinex v. Luna, 136 S. Ct. 305 (2015), which ruled on qualified immunity grounds in favor of a police officer who allegedly used deadly force in violation of the Fourth Amendment in a high-speed police chase situation. See my post of February 12, 2016. A prior decision, Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), had ruled on the Fourth Amendment merits in favor of pursuing police officers who shot the driver and a passenger. See my post of May 28, 2014.

Both Plumhoff and Mullinex derived from the Court’s decision in Scott v. Harris, 550 U.S. 372 (2007), which ruled that a police officer did not violate the Fourth Amendment when he attempted to stop a fleeing driver from continuing his “public-endangering flight” by ramming the driver’s car from behind even though the officer’s actions created the risk of serious injury or death to the driver. According to the Court in Scott, a video of the chase made clear that the officer’s ramming of the car was objectively reasonable.

High-Speed Police Chases and Substantive Due Process

Furthermore, even in cases that don’t involve a Fourth Amendment seizure but instead implicate substantive due process, the Supreme Court has required a very high standard of culpability–a purpose to do harm–that is incredibly difficult for a plaintiff to surmount. County of Sacramento v. Lewis, 523 U.S. 833 (1998).

A Rare Case of Section 1983 Police Officer Liability: Browder v. City of Albuquerque, 2015 WL 3462180 (10^th Cir. 2015)

Now consider a substantive due process case where, because it did not involve a high-speed chase that was legitimate from a law enforcement perspective, the result was dramatically different.

The Tenth Circuit in Browder set out the facts this way:

“[The defendant] was going nowhere fast. After finishing his shift at the Albuquerque police department and on no one’s business but his own, he got into his police cruiser, flipped on the emergency lights, and drove off at an average of about 66 miles an hour on city surface streets through ten different intersections over a stretch of 8.8 miles. Then he reached an eleventh intersection. The light was red. He pressed the gas pedal, ignored the light, and the result was a terrible crash. “

A woman died and her sister was seriously injured. Their representative sued the police officer under section 1983 alleging a substantive due process violation.

Affirming the district court which denied the defendant’s motion for summary judgment based on qualified immunity, the Tenth Circuit pointed out that this was not a case involving a possibly legitimate government objective. Further, there was sufficient evidence of reckless indifference to the lives of others, a kind of mens rea, because the defendant was not responding to any emergency or on any official business at all. Moreover, the defendant violated clearly settled law in 2013, the time of the accident, and thus was not entitled to qualified immunity.

Comment

Notice that the Tenth Circuit did not use the pro-defendant County of Sacramento test with its very high standard of culpability–purpose to do harm– because the officer was not engaged in a high-speed chase of a suspect. Instead, it used the somewhat lower standard of reckless indifference, although this was accompanied by a reference to County of Sacramento and the alleged mens rea of the officer.

Also observe that while there is an interesting question whether the police officer in Browder acted under color of law, the parties accepted that there was state action and the Tenth Circuit agreed without deciding the question.

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