Nahmod Law

Some time ago I posted about the need for attorneys to understand the crucial distinction between individual and official capacity claims brought under section 1983. Here is that post: https://nahmodlaw.com/2018/05/31/attorneys-must-at-their-peril-understand-the-official-individual-capacity-distinction-in-section-1983-damages-cases/

This crucial distinction emerged in a somewhat unusual Third Circuit decision involving removal and attorney’s fees, but this time in a non-section 1983 prospective relief situation.

In League of Women Voters of Pennsylvania v. Commonwealth of Pennsylvania, 2019 WL 1782839 (3^rd Cir. 2019), one of the defendants, a senator who was the state senate pro tempore, had been sued for prospective relief in his official capacity by various plaintiffs challenging Pennsylvania’s 2011 redistricting plan under state law only. He improperly removed the plaintiffs’ state suit to federal court under 28 U.S.C. § 1441(b) without an objectively reasonable basis for doing so, because there were no federal claims. On remand, the district court ordered the senator to pay fees and costs personally pursuant to §1447(c).

On appeal, the Third Circuit affirmed the fees and costs award to the plaintiffs, but it reversed the aspect of the district court’s decision that made the senator personally liable. In this case of first impression on the matter, the court reasoned that the senator was a party to the prospective relief lawsuit only in his official capacity, not his individual capacity, and thus he should not be forced to pay personally. Further, the district court made no separate finding of bad faith on the part of the senator as a basis for awarding fees and costs as a sanction. In short, the district court did not have power to sanction a non-party.

The lesson here is, once again, that this distinction is ignored at the attorney’s peril, regardless of whether a lawsuit seeks damages or prospective relief.

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There is a special, and quite complicated, accrual rule, set out in Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the section 1983 plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action. In such cases, the section 1983 claim does not accrue until the underlying conviction is overturned or vacated. This accrual rule arises, according to the Supreme Court, at the “intersection” of section 1983 and habeas corpus.

(For background, you can find earlier posts by searching “Heck”. For much more, you can consult Chapter 9 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2019)(West/Westlaw)).

A “Hypothetical”

But suppose a situation where a section 1983 plaintiff has already served a lengthy sentence for a serious crime he has consistently maintained he never committed (but was framed for). He can no longer get habeas relief, because he is no longer in custody. Suppose further that he is subsequently pardoned by the governor.

When does his section 1983 claim alleging he was framed accrue: when he was released from custody or when he was pardoned by the governor? You may recognize this kind of question from Justice Souter’s concurring opinion in Spencer v. Kemna, 523 U.S. 1 (1998) and from the comments of other justices.

The Seventh Circuit’s Decision in Savory v. Cannon

In Savory v. Cannon, 2020 WL 240447, *9, *17 (7^th Cir. 2020), an important Seventh Circuit decision with a dissent by Judge Easterbrook, the majority declared: “Heck controls the outcome where a section 1983 claim implies the invalidity of the conviction of the sentence, regardless of the availability of habeas relief.”

In Savory, the plaintiff, who spent 30 years in prison for a double murder he insisted he never committed and who was paroled in December 2006, had his sentence commuted in December 2011 and was pardoned by the Illinois governor on January 12, 2015. He then sued a city and certain city police officers on January 11, 2017 (less than two years after the pardon) alleging that he was framed and asserting various constitutional violations. Reversing the district court, the Seventh Circuit, applying Heck, determined that the plaintiff’s claims were timely under the Illinois two-year limitations period. The Heck bar was lifted and his claims did not accrue until he was pardoned by the governor on January 12, 2015, not earlier when his parole had been terminated in December 2011 by the commutation of his sentence and when he could therefore no longer seek habeas relief.

The Seventh Circuit, reasoning that the plaintiff’s claims most resembled the common-law tort of malicious prosecution, relied both on Heck and on the Court’s fabrication of evidence accrual decision in McDonough v. Smith, 139 S. Ct. 2149 (2019)(search this blog for “McDonough”). It expressly rejected the defense argument, based on dicta of several Supreme Court justices (including Justice Souter) in various concurring and dissenting opinions, for an accrual rule tied to the end of custody, namely, December 2011. It also acknowledged that the language and reasoning in several of its prior decisions “ha[d] created confusion regarding the applicability of Heck in cases where habeas relief is not available.”

Judge Easterbook dissented, 2020 WL240447, *18,  arguing that the majority should have adopted a Heck accrual rule tied to the end of custody. He explained that the Seventh Circuit “should be equally concerned about a rule starting the time so late that claims never accrue [as it is ‘about a rule starting the time so early that legitimate claims would be lost.’].”

The Seventh Circuit’s approach to Heck accrual obviously has significant implications for the timeliness of section 1983 litigation where falsely convicted persons have served their sentences, are no longer in custody, are subsequently exonerated and now seek section 1983 damages recourse against those responsible for their convictions.

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Whose Decisions Determine Clearly Settled Federal Constitutional Law?

We all know that in order for a state or local government official to be liable for damages in his or her individual (not official) capacity under section 1983, that official must have violated clearly settled federal constitutional law as of the time of the challenged conduct. Otherwise, that official is protected by qualified immunity and is not liable for damages.

The conventional, oft-repeated approach is that in making the clearly settled law inquiry, we look first for apposite Supreme Court decisions. If there are none, then we look to the particular circuit’s decisions to determine whether clearly settled law existed at the time. If there are no such apposite decisions in the particular circuit, we look to the other circuits to determine whether there is an overwhelming consensus that the relevant law was clearly settled.

It is often said as well that a state’s highest court can establish clearly settled federal constitutional law even where there is otherwise no such clearly settled law. Yet, in all of the decades that I have been working in the section 1983 area, I do not recall ever encountering a situation where this has happened. Until now!

The Second Circuit’s Stoley Decision and the Court of Appeals of New York’s Hall Decision

In Stoley v. Vanbramer, 2019 WL 6765762 (2nd Cir. 2019), the defendant New York State troopers allegedly violated the plaintiff’s Fourth Amendment rights by subjecting him in 2013 to a visual body cavity search incident to his arrest on felony charges without reasonable suspicion that drugs were concealed within his body. Affirming the district court’s denial of qualified immunity to the defendants, the Second Circuit relied on a 2008 Court of Appeals of New York decision, People v. Hall, 10 NY3d 303 (N.Y. 2008), holding that individualized reasonable suspicion that an arrestee (whether for misdemeanor or felony) is concealing weapons or other contraband within his body is required by the Fourth Amendment for a visual body cavity search incident to an arrest. The Second Circuit explained that it saw no problem in requiring that New York law enforcement officers know Fourth Amendment law from decisions of federal courts and the Court of Appeals of New York.

Judge Newman concurred, 2019 WL 676562, *12, arguing that the majority relied not only on the Court of Appeals of New York decision for its finding of clearly settled law but also on the decisions of other circuits, decisions of the New York Appellate Division and decisions of district courts in the Second Circuit. The “combination of these circumstances,” together with Hall, supported the majority’s determination.

Judge Jacobs dissented, 2019 WL 67652, *15, contending that relevant Second Circuit Fourth Amendment law regarding body cavity searches incident to felony (as distinct from misdemeanor) arrests was not clearly settled in 2013.

The lesson for attorneys in section 1983 litigation involving qualified immunity and clearly settled law: however rare it is, don’t ignore your highest state court decisions setting out federal constitutional law.

For additional posts on qualified immunity, search “qualified immunity” on this blog.

For much more on qualified immunity, see Ch 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019) (West/Westlaw).

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