Archive for June 2024
Supreme Court Adopts Charge-Specific Rule for Section 1983 Fourth Amendment Malicious Prosecution Claims: Chiaverini v. City of Napoleon
Where a § 1983 plaintiff asserts a Fourth Amendment malicious prosecution claim for damages against law enforcement officers, such a claim may be viable where the plaintiff alleges a seizure, the absence of probable cause, malice (presumed by the absence of probable cause) and favorable termination. See Manuel v. City of Joliet, 580 U.S. 357 (2017), and Thompson v. Clark, 142 S. Ct. 1332 (2022).
The Issues
Suppose, though, that a §1983 plaintiff was arrested and prosecuted on three criminal charges and that there was a favorable termination of those three charges by way of dismissal. However, it turns out that there was probable cause to arrest and prosecute on two of those charges but not the third. Can the § 1983 Fourth Amendment claim go forward on the third charge under the “charge-specific” rule? Or is that claim barred under the “any-crime” rule because of the presence of probable cause for the other two charges?
The Chiaverini Decision
In Chiaverini v. City of Napolelon, 144 S. Ct. — (2024), the Supreme Court, reversing the Sixth Circuit, answered that the § 1983 Fourth Amendment malicious prosecution claim can go forward on the third charge. In adopting the charge-specific rule, it resolved a split in the circuits because the Second, Third and Eleventh Circuits, unlike the Sixth Circuit, had previously adopted the charge-specific rule.
In Chiaverini, the Sixth Circuit ruled, based on its circuit precedent supporting the any-crime rule, that because probable cause existed to support the plaintiff’s detention and prosecution on two of the criminal charges, receiving stolen property and a license violation (both misdemeanors), the allegedly meritless charge for which probable cause did not exist, money laundering (a felony), did not change the nature of the seizure. For this reason, the Sixth Circuit concluded, the plaintiff’s Fourth Amendment malicious prosecution claim based on the money laundering charge could not go forward.
The Supreme Court reversed in an opinion by Justice Kagan. She noted that the parties now agreed on appeal that there was no “flat bar,” contrary to what the Sixth Circuit had wrongfully decided. Instead, the charge-specific rule was the correct one for several reasons. First, it followed from established Fourth Amendment law: an invalid charge can cause a detention either to start or continue, even where a valid charge has also been brought. And second, it also followed from the common law principles of malicious prosecution in 1871 when § 1983 was enacted, as demonstrated by cases and treatises from that period.
The Court then went on to address what the parties currently disagreed on: the appropriate causation test under the charge-specific rule. The plaintiff in Chiaverini argued for a broad causation test under which the warrant that a judge issues where both valid and invalid charges are brought is “irretrievably tainted; so any detention depending on the warrant is the result of the invalid charge.” The United States as amicus curiae argued for a stricter but-for causation test to determine whether the invalid charge would have caused the detention, even apart from the valid charge. The defendants in Chiaverini argued for an even stricter test: whether the judge could have legally authorized the detention, regardless of whether he would have. Ultimately, the Court did not decide on the appropriate causation test, instead remanding to the lower courts.
The Dissents
Justice Thomas, joined by Justice Alito, dissented. They rejected the Court’s decision in Thompson v. Clark which declared that the appropriate analog for a § 1983 Fourth Amendment claim of this kind is malicious prosecution. More specifically, they forthrightly argued that “a malicious prosecution claim may not be brought under the Fourth Amendment.” Justice Gorsuch also dissented, accusing the Court of “doubling down on a new tort of its own invention–what it calls a ‘Fourth Amendment malicious-prosecution’ cause of action.” He suggested that the Fourteenth Amendment could provide the “constitutional hook” for § 1983 claims based on malicious use of process, even though such a procedural due process approach would generate its own set of problems.
Comments
The Court’s decision in Chiaverini is sound with regard to § 1983 statutory interpretation and the “background of tort liability.” As the Court observed, the common law of malicious prosecution in 1871 (when § 1983 was enacted), as set out in the case law and treatises of that period, demonstrated that the charge-specific approach was the correct one.
The Court’s decision is also sound as a matter of policy. Under the any-crime rule a police officer could protect himself or herself from a § 1983 Fourth Amendment malicious prosecution claim simply by adding a relatively minor criminal charge for which there was probable cause to a serious criminal charge for there was no probable cause. This would undermine police officer accountability.
Moreover, in support of the charge-specific rule, one might point out that every § 1983 Fourth Amendment malicious prosecution claim, even one brought in the same case with other § 1983 malicious prosecution claims, raises a separate constitutional violation issue which is ordinarily analyzed independently of the others. Along similar lines, every such claim is subject to a separate qualified immunity inquiry into clearly settled law.
Finally, consider the proper causation test, discussed but not resolved by the Court in Chiaverini. In my view, the but-for causation test is the proper test. Thus, under the charge-specific rule, the plaintiff in a § 1983 Fourth Amendment malicious prosecution case involving more than one criminal charge has the burden of pleading and proving that the baseless charge was the cause in fact (and proximate cause) of particular damages, and those damages must be separate and distinct from the damages resulting from the criminal charge or charges based on probable cause. In some situations this may prove to be complicated. On the other hand, there is much § 1983 litigation brought involving different constitutional violations alleged in the same cases: sorting out the damages connected to each of the claims in such situations has not proved to be insurmountable for judges and juries.
Despite the three dissents in Chiaverini, it is fair to say that § 1983 Fourth Amendment malicious prosecution claims are here to stay.
The Supreme Court Rejects a Too-Narrow Nieves First Amendment Retaliation Claims Exception: Gonzalez v. Trevino
On June 20, 2024, the Supreme Court handed down Gonzalez v. Trevino, 144 S. Ct. — (2024), reversing 42 F.4th 487 (5th Cir. 2022), a § 1983 First Amendment retaliatory arrest case involving the meaning of the “objective evidence” exception of Nieves v. Bartlett, 139 S. Ct. 1715 (2019). Under this “narrow” exception, a First Amendment retaliatory arrest plaintiff has the opportunity to show that, even where there was probable cause to arrest (ordinarily a complete defense to such a claim), this is not a defense if the plaintiff can show through objective evidence that he or she was arrested when other similarly situated persons who did not engage in protected speech were not.
In Gonzalez, the plaintiff, a former city council member, alleged that the individual defendants arrested her for illegally removing a government record in retaliation for the exercise of her First Amendment rights. Because the plaintiff conceded there was probable cause for the arrest, and because the plaintiff (according to the Fifth Circuit) did not introduce comparative objective evidence showing that otherwise similarly situated persons who did not engage in the same protected speech were not arrested, the Fifth Circuit affirmed the dismissal of her § 1983 First Amendment retaliation claim. She did not fit within the exception set out in Nieves even though, after reviewing “the past decade’s misdemeanor and felony data for [the county, where the city was located] … her review had found that the Texas anti-tampering statute had never been used in the county ‘to criminally charge someone for trying to steal a nonbinding or expressive document. … [Her] search turned up 215 felony indictments, and she characterized the typical indictment as involving ‘accusations or either using or making fake government identification documents.'” 144 S. Ct. at –.
Judge Oldham dissented in the Fifth Circuit, 42 F.4th at 495, arguing that the plaintiff stated a § 1983 First Amendment retaliation claim after Nieves even though there was probable cause: Nieves did not require comparative evidence (often difficult if not impossible to obtain), only objective evidence.
The Supreme Court reversed and remanded in a per curiam opinion, ruling that the Fifth Circuit did not properly apply the principles of Nieves. It declared that the Fifth Circuit took “an overly cramped view of Nieves. … [T]he demand for virtually identical and indentifiable comparators goes too far.” The Court observed that the plaintiff’s evidence “that no one has ever been arrested to engaging in a certain kind of conduct … makes it more likely that an officer has declined to arrest someone for engaging in such conduct in the past.”
The Court in Gonzaelz expressly declined to decide the plaintiff’s other contention that the Nieves no-probable cause rule applies only to First Amendment retaliatory arrest claims based on split-second arrests, and not based on deliberative arrests.
Justice Alito concurred in a lengthy opinion. 144 S. Ct. –. He agreed that strict comparator evidence was not required in this case. But he also went on to address and reject the plaintiff’s argument regarding the applicability of Nieves only to split-second arrests and not to deliberative ones. Justice Kavanaugh also concurred, noting that in his view this case was not about the Nieves exception but instead about probable cause as to mens rea rather than conduct-based comparisons. 144 S. Ct. –.
Justice Jackson, joined by Justice Sotomayor, concurring, pointed out that other types of objective evidence such as onerous arrest procedures, timing and false documentation may be used, in addition to surveys, to show impermissible First Amendment retaliation. Finally, Justice Thomas dissented, 144 S. Ct. –, arguing that the Court improperly expanded the Nieves exception. “I would adhere to the only rule grounded in history: Probable cause defeats a retaliatory arrest claim.”
Comments
Nieves, as noted earlier, held that a §1983 plaintiff alleging that he or she was arrested because of the exercise of First Amendment rights has the burden of pleading and proving the absence of probable cause for the arrest. I criticized Nieves in an earlier post for mangling §1983 and the First Amendment in order to protect law enforcement. See https://nahmodlaw.com/2019/06/04/nieves-v-bartlett-and-retaliatory-arrests-protecting-law-enforcement-at-the-expense-of-the-first-amendment-and-section-1983/. I also, severely criticize Nieves and its reasoning at §3:13 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/ Westlaw).
However, I confess error because I incorrectly predicted that the Court in Gonzalez would continue to make it quite difficult for §1983 plaintiffs in such cases to prevail. Specifically, I predicted that the Court would affirm the Fifth Circuit in Gonzalez and insist on the need for comparative evidence, just as the Court and the circuits do in class-of-one equal protection cases. Instead, to my surprise the Court soundly articulated the evidentiary flexibility necessary to allow § 1983 First Amendment retaliation plaintiffs to carry their difficult burden of overcoming the “narrow” Nieves exception.
An Updated Section 1983 Primer (7): Introduction to Absolute Individual Immunity
In honor of the 40th Annual Conference on Section 1983, which was recently held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.
Persons Who Are Not “Persons”
The language of section 1983 makes “[e]very person” who deprives another of his or her constitutional rights under color of law potentially liable in damages.
On its face, section 1983 does not provide for any individual immunities. Moreover, the legislative history on this question is almost entirely lacking (although others may disagree).
It turns out, nevertheless, that there are individuals who are not “persons” and who are absolutely immune from damages liability when sued in their individual capacities.
Three Categories of Absolutely Immune Individuals
There are three categories of absolutely immune defendants about which I will separately post later: state and local legislators, judges and prosecutors. But for now, I want to make the following introductory comments.
The Supreme Court’s Approach and Policy Considerations
Over the years the Supreme Court has developed the three categories of absolutely immune defendants by asking two questions.
First, what was the common law immunity background in 1871, when section 1983 was enacted? Second, if the 1871 common law provided for absolute immunity, is that consistent with the purposes of section 1983 in general?
The policy considerations specifically underlying absolute individual immunity are several. The core policy, though, is the promotion of independent decision-making without fear of either being sued (the costs of defending) or personal liability (the costs of liability). In other words, absolute immunity provides a wide margin for error for certain government officials whose functions are so very important that they should not be “chilled” at all when they make their legislative, judicial or prosecutorial decisions.
The Procedural Effect of Absolute Individual Immunity
When prosecutorial immunity is successfully asserted, the impact is significant and immediate. Whether through a motion to dismiss, a motion for judgment on the pleadings or a motion for summary judgment, the defendant sued for damages in his or her individual capacity is dismissed from the damages part of the litigation altogether. This is consistent with the primary purpose of absolute immunity: to minimize, if not altogether eliminate, the costs of defending, including inconvenience to the defendant.
As a practical matter, this means that the plaintiff bears the costs of the constitutional deprivation. Those costs are not shifted to the absolutely immune defendant even if he or she violated the plaintiff’s constitutional rights.
The Functional Approach
It is important also to be aware that the Supreme Court has taken a functional approach to individual immunities. It has emphasized that absolute immunity is intended not to protect the individuals themselves but rather the functions they perform. Forrester v. White, 484 U.S. 219 (1988). For example, a legislator who acts in an administrative capacity by allegedly firing an aide unconstitutionally will not be protected by absolute immunity because the challenged conduct is not legislative in nature.
More to Come on Legislative, Judicial and Prosecutorial Immunity
On absolute immunity generally, see Chapter 7 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2023-23 ed.)(West/Westlaw).
Supreme Court Grants Certiorari in Attorney’s Fees/Preliminary Injunction Case: Lackey v. Holcomb
The Supreme Court recently granted certiorari in Lackey v. Holcomb, 145 S. Ct. – (4-22-24)(No. 23-621), to deal with the following Questions Presented:
(1) Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the merits under 42 U.S.C. § 1988; and (2) Whether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under 42 U.S.C. § 1988.
In Lackey, the § 1983 plaintiffs challenged a Virginia statute that required the automatic suspension of driver’s licenses when drivers fail to pay certain court fines and fees. Following an extensive hearing with briefing and argument, the district court granted the plaintiffs a preliminary injunction. This was not appealed by the state defendants but, shortly before bench trial in August 2019, the Virginia legislature suspended the enforcement of the statute for a year, and the defendants got the district court to stay the case until the next legislative session over the plaintiffs’ “strenuous objections”. Thereafter, the legislature repealed the challenged statute, the district court dismissed the action as moot and, applying established Fourth Circuit precedent, it denied plaintiffs’ attorney’s fees.
Reversing with four judges dissenting, the Fourth Circuit en banc vacated the district court’s denial of fees and rejected its earlier “bright-line approach” holding that “a plaintiff who wins a preliminary injunction but—for whatever reason—does not secure a final judgment may never qualify as a prevailing party.” Instead, it announced its test going forward: “When a preliminary injunction provides the plaintiff concrete, irreversible relief on the merits of her claim and becomes moot before final judgment because no further court-ordered assistance proves necessary, the subsequent mootness of the case does not preclude an award of attorney’s fees.”
Lackey will address the unresolved question in Sole v. Wyner, 551 U.S. 74 (2007). Here, the Supreme Court unanimously held that “a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, [does not] qualify as a ‘prevailing party’ within the compass of §1988(b).” The Court in Sole emphasized that prevailing party status requires a material alteration of the legal relationship of the parties pursuant to Texas State Teachers Ass’n v. Garland Independent School Dist., 489 U.S. 782 (1989), and that was not present in this case. It was not sufficient for prevailing party status that the plaintiff obtained a preliminary injunction after a hasty and abbreviated hearing that allowed her to display an antiwar artwork in a Florida state park: the state court had thereafter held after a full hearing that she was not entitled as a First Amendment matter to a permanent injunction against the enforcement of the state statute setting out the “Bathing Suit Rule” applicable to state parks. “Prevailing party status … does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.” 127 S. Ct. at 2188 (footnote omitted). However, the Court went on to observe that it was expressing no view of a case in which a plaintiff obtains a preliminary injunction and there is no final decision on the merits of a claim for permanent injunction. This is the issue Lackey will consider.
Lackey will be argued and decided in the Court’s 2024 Term.
Comment
The Court should affirm the Fourth Circuit under the facts of this case: there was a full hearing with briefing and oral argument that preceded the district court’s grant of the preliminary injunction; this grant was not appealed by the defendants, although it could have been. Furthermore, as a direct result of the preliminary injunction, the Virginia legislature suspended the enforcement of the statute for a year, the case was stayed over plaintiffs’ objections and the statute ultimately repealed, all of which effectively prevented the plaintiffs from proceeding to final judgment and was motivated by the defense’s strategy to create mootness. For these reasons, the legal relationship of the parties was materially altered in favor of the plaintiffs who were thus prevailing parties.
Sole, Texas State Teachers Ass’n and Lackey, and attorney’s fees in general, are all addressed in Chapter 10 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).
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