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A Student Drowns While On A Field Trip: The Separate State of Mind Hurdle in Substantive Due Process Affirmative Duty Cases
I have posted (too?) many times over the years on DeShaney substantive due process affirmative duty cases, emphasizing all the while that the threshold issue in such cases is whether there is an affirmative substantive due process duty to begin with.
Typically, the answer in these tragic cases is “no”–there is generally no constitutional duty to protect citizens from private harm–unless there is a special relationship or the state has created the danger. DeShaney v. Winnebago County, 489 U.S. 189 (1989). See generally on DeShaney and its progeny, NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 secs. 9:59-9:61 (2022-23 ed.)(West/Westlaw).
But even where a section 1983 plaintiff is able to overcome the duty issue by, say, plausibly alleging that the state created the danger, that plaintiff may still lose because of the substantive due process state of mind requirement of at least deliberate indifference. As an example, consider Herrera v. Los Angeles Unified School Dist., 18 F.4th 1156 (9th Cir. 2021).
In Herrera, an autistic high school student drowned while on a field trip. His parents brought a section1983 substantive due process claim against various school defendants, all of whom were granted summary judgment by the district court. Finding that there was a state-created danger but still affirming, the Ninth Circuit pointed out that a school aide who was generally watching the student in the pool saw the student exit the shallow end of the pool and enter the locker room area, but he did not see the student shortly thereafter return to the pool and then drown.
The Ninth Circuit explained: “’[W]e have continued to apply the subjective standard in all state-created danger claims and in non-detainee failure-to-protect claims like the one presented here.” Because there was no genuine issue of fact in dispute that the school aide was subjectively unaware of any immediate danger to the student, the school aide was not deliberately indifferent, as required for a substantive due process failure to protect claim. Also, because other lifeguards were monitoring the area as well, the school aide did not abandon the student or leave him completely without protection. This too showed that the school aide did not act with deliberate indifference.
Comment
The Ninth Circuit applied a subjective deliberate indifference standard and not an objective one. It rejected the plaintiff’s argument that the student’s situation was analogous to that of the pretrial detainee in Kingsley v. Hendrickson, 576 U.S. 389 (2015), which applied an objective reasonableness standard to the pretrial detainee’s section 1983 substantive due process excessive force claim.
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Substantive Due Process Privacy Violations and Section 1983 Claims
Section 1983 makes actionable violations of “rights, privileges, or immunities secured by the Constitution.” This includes not only violations of incorporated provisions of the Bill of Rights such as the First, Second, Fourth and Eighth Amendments but also the Fourteenth Amendment’s stand-alone provisions, the Due Process and Equal Protection Clauses.
As a result of Supreme Court contraceptive, abortion and homosexual sodomy decisions–see Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992); Lawrence v. Texas, 123 S. Ct. 2472 (2003)–a constitutional right of privacy is now recognized under the Due Process Clause. This right essentially protects procreations, marriage, family matters and sexual autonomy.
See generally my earlier post on substantive due process and the right of privacy here: https://nahmodlaw.com/2014/09/29/know-your-constitution-7-what-is-subtantive-due-processright-of-privacy/
A good recent example of a section 1983 damages action arising out of a substantive due process violation is Perez v. City of Roseville, 2018 WL 797453, *2 (9th Cir. 2018). This Ninth Circuit case involved a former probationary police officer who was discharged after an internal investigation into her romantic relationship with a fellow police officer She alleged under section 1983 that this violated her due process rights to privacy and intimate association because it was based in part on disapproval of her private, off-duty sexual conduct.
Reversing the district court which had granted summary judgment to the defendants, the Ninth Circuit observed that it had “long held that the constitutional guarantees of privacy and free association prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation.” In this case, a genuine issue of material fact existed as to whether the plaintiff was terminated at least in part because of her extramarital affair.
The Ninth Circuit went on to rule that the defendants were not entitled to qualified immunity because the relevant due process law was clearly settled long ago in Thorne v. City of El Segundo, 726 F.3d 459 (9th Cir. 1983). Judge Tashima concurred, 2018 WL 797453, *14, disagreeing with the majority’s reasoning on this issue.
Comment
The broader the scope of the right of privacy, the broader the potential scope of section 1983 damages liability. This is true, of course, for other constitutional violations that are actionable under section 1983.
It is also important to note that the contours of the right of privacy are for the most part clearly established for qualified immunity purposes.
I discuss many other section 1983 substantive due process privacy cases in my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2018)(West) at sec. 3:78.
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Know Your Constitution (7): What Is Substantive Due Process/Right of Privacy?
This is another in a series of posts written about the Constitution in everyday language, with a minimum of legal jargon. Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution, addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural due process.
The immediately preceding post and this post deal with the meaning of the Due Process Clauses that appear in the Fifth and Fourteenth Amendments. These have virtually identical language.
The Fifth Amendment’s Due Process Clause applies to the federal government (“No person … shall …be deprived of life, liberty, or property, without due process of law”).
The Fourteenth Amendment’s Due Process Clause applies to state and local governments (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).
Distinguishing Between Procedural Due Process and Substantive Due Process
The immediately preceding post deals with procedural due process which focuses on fair and timely procedures.
It is far less complicated and controversial than substantive due process, the subject of this post, which focuses on government regulation of conduct such as abortion, sexual conduct and certain family matters.
One reason that substantive due process is so controversial is that it is not explicitly based in the text of the Constitution, thereby suggesting to some that the Supreme Court has acted improperly and has simply (or not so simply) made it up.
The History of Substantive Due Process: Economic Regulation/Family
The term “substantive due process” is a bit of an oxymoron since “due process” suggests procedure in contrast to substance. Nevertheless, the Supreme Court, beginning in the late 19th century and ending in the mid-1930’s, used substantive due process to strike down many state regulations dealing with economic matters such as employment relationships, work conditions and other attempts to regulate business interests.
Interestingly, perhaps the first use of substantive due process by the Supreme Court was in the infamous Dred Scott case in antebellum America. Here, the Court held that the Missouri Compromise was unconstitutional because it took away the property of slaveholders and thus violated substantive due process.
Even though substantive due process was typically identified with economic regulation, there was an important component that dealt with liberty in family matters. For example, in the 1920’s the Supreme Court ruled (in Meyer v. Nebraska and Pierce v. Society of Sisters) that states violated substantive due process when they prohibited parents from arranging to have their children learn the German language and also when they required all children to attend a public school while prohibiting them from attending religious private schools. These decisions thus address the non-economic, family related liberty component of substantive due process.
The Retreat from Substantive Due Process in Economic Matters
The high-water mark of substantive due process in economic regulation matters may have been reached in the early part of the 20th century in the (in)famous Lochner v. New York case. Here the Court struck down a New York statute that regulated the maximum hours that bakers could work as a violation of the liberty of contract of employers and employees to negotiate hours and working conditions in general without government interference.
But starting in the mid-1930’s, the Court retreated dramatically from intervening judicially in such matters (one aspect of what some have called “the switch in time that saved nine” in response to President Roosevelt‘s court-packing plan). Eventually the Court became incredibly deferential to state (and federal) regulation of economic matters, using in most such cases what lawyers call a “conceivable rational basis” test. In other words, so long as an economic regulation could be considered to have a rational basis, it did not violate substantive due process.
Current Substantive Due Process/Privacy Doctrine
Even though meaningful substantive due process review is now effectively dead in economic regulation matters, it has survived and subsequently thrived as applied to liberty in family and sexual matters.
There were hints of what was to come in Skinner v. Oklahoma, a 1942 equal protection decision that struck down sterilization as criminal punishment. Here, Justice Douglas famously said: “Marriage and procreation are fundamental to the very existence and survival of the [human] race.” But it was only in Griswold v. Connecticut, a 1965 decision invalidating a criminal prohibition against the use of contraceptives by married persons, that the Court expressly recognized a constitutional right of marital privacy, though there remained some question of its source in the text.
Thereafter, the Court expanded this right of privacy beyond marriage to include the right of a woman to terminate a pregnancy in certain circumstances, largely on family/personal autonomy grounds. Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which modified Roe, are the leading cases so ruling on the basis of substantive due process. However, the Court in 2007 cut back somewhat on the scope of the right in Gonzalez v. Carhart, at least in cases dealing with statutes prohibiting so-called “partial birth abortions.”
Finally, in Lawrence v. Texas, a blockbuster 2003 decision, the Court held, in an opinion by Justice Kennedy, that states may not criminalize intimate homosexual conduct. The ground here was expressly personal autonomy: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
As things now stand, Roe, as modified by Casey and Carhart, is still good law. Lawrence remains good law as well.
The hot issue regarding homosexual conduct that is currently percolating in the circuits is the substantive due process question whether the right to marry someone of your own sex is a fundamental right
protected by substantive due process.
Schedule for 40th Annual Section 1983 Conference: April 18-19, 2024
Here is the schedule for the upcoming in-person Section 1983 Conference. We hope to see you there.
Any questions? Contact either CLE@kentlaw.iit.edu or snahmod@kentlaw.iit.edu.
Day One – April 18, 2024
| 8:45 – 9:00 AM | Welcome and Introduction |
| 9:00 – 10:15 AM | The Section 1983 Claim: Basics |
| Section 1983 and Fourteenth Amendment violations State action and color of law First Amendment retaliatory arrest claims The Second Amendment The Fifth Amendment and Miranda claims The Eighth Amendment Cause in fact and proximate cause “Laws” actions Heck v. Humphrey and existing convictions Due Process Section 1983 malicious prosecution claims A quick look at accrual | |
| Sheldon H. Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law (Program Chair) | |
| 10:15 – 10:30 AM | BREAK |
| 10:30 – 11:45 AM | Municipal Liability |
| Methods of Establishing Monell Liability What’s an Official Policy and Whose Policy is it? Municipal Liability Claims Post-Connick Municipal Liability Absent Individual Liability Impact of Qualified Immunity on Municipal Liability | |
| Karen M. Blum, Professor Emerita and Research Professor of Law,Suffolk University Law School | |
| 11:45 – 1:00 PM | LUNCH (on your own) |
| 1:00 – 2:00 PM | The Fourth Amendment |
| Raff Donelson, Associate Professor of Law, Chicago-Kent College of Law | |
| 2:00 – 3:15 PM | Substantive Due Process |
| Selective Incorporation of the Bill of Rights Protection of Non-Textual Rights from Laws That Interfere with Procreation and Parental Rights Section 1983 Substantive Due Process Claims Brought by Pretrial Detainees, Students, Landowners, and Government Employees | |
| Rosalie B. Levinson, Professor of Law Emerita, Valparaiso University School of Law | |
| 3:15 – 3:30 PM | BREAK |
| 3:30 – 4:45 PM | Attorney’s Fees and Related Ethical Issues |
| Issues in recently decided Supreme Court attorney’s fees cases (changes in law regarding nominal damages and impact on availability of fees; standards controlling awards to prevailing defendants; fees for modest injunctive relief without money damages; how reasonable fee is determined (lodestar) Ethics issues in §1983 cases (including Rule 68 issues, conflicts of interest, frivolous claims) Ethics Learning Objectives: 1) Duty of lawyer to represent unpopular clients and causes, even for little or no fee 2) Duty of lawyer to put client’s interest in seeking largest recovery above risk to attorney of reduction of court-awarded fees if merits result obtained is substantially less than outcome sought 3) The importance of a detailed written fee agreement in order to minimize ethics dilemmas in representing clients in civil rights cases | |
| Gerald M. Birnberg, Founding Partner, Williams, Birnberg & Andersen LLP | |
| 4:45 – 5:45 PM | RECEPTION |
Day Two – April 19, 2024
| 9:00 – 10:15 AM | Section 1983 Remedies: Damages and Prospective Relief |
| Section 1983 litigation has given rise to a number of interesting questions associated with remedies. In this session, we will discuss compensatory and punitive damages, as well as issues related to injunctive relief. | |
| Noah Smith-Drelich, Assistant Professor of Law, Chicago-Kent College of Law | |
| 10:15 – 10:30 AM | BREAK |
| 10:30 – 11:45 AM | Individual Immunities |
| A review of the current law and cutting-edge issues with regard to absolute and qualified immunity, including who possesses absolute immunity and for what tasks, what is the standard for qualified immunity, and what are the issues most frequently litigated with regard to immunities. | |
| Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law University of California Berkeley School of Law | |
| 11:45 – 1:00 PM | LUNCH (on your own) |
| 1:00 – 2:15 PM | The Religion Clauses and Section 1983 |
| History and purposes of the Religion Clauses The Establishment Clause:prayer, religious displays and financial support for private religious education The move to a “history and tradition” test in Establishment Clause cases: Kennedy v. Bremerton School Dist. The Free Exercise Clause: the all-important Smith (peyote) decision, the return to strict scrutiny, the Covid-19 cases and beyond, including Carson v. Makin Congressional response to Smith: RLUIPA | |
| Sheldon H. Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law (Program Chair) | |
| 2:15 – 3:30 PM | The Supreme Court’s Current and Forthcoming Terms |
| A review of the major decisions from October 2022 (including on affirmative action, religious accommodations in employment, and freedom of speech), and October Term 2023 (including on retaliation claims under the Fourth Amendment, freedom of speech, and gun regulation). | |
| Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law University of California Berkeley School of Law |
An Updated Section 1983 Primer (3): Constitutional States of Mind
In honor of the 40th Annual Conference on Section 1983, to be 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.
Below is the third of these posts. I hope you find it to be informative. The next post in this series will deal with cause-in-fact and the Mt. Healthy burden-shift
Introduction
Are there state of mind requirements for the section 1983 cause of action? The answer is NO as a statutory matter and YES as a constitutional matter.
The Background
Recall from my previous post that the Supreme Court stated in Monroe v. Pape, 365 U.S. 167 (1961), that section 1983 is to be interpreted against “the background of tort liability.” What does that mean? One possibility is that there is some sort of state of mind requirement, stemming from section 1983 itself, for the 1983 cause of action. If so, is it negligence, deliberate indifference, intent or something else?
After some confusion in the circuits, the Supreme Court finally put the matter to rest in Parratt v. Taylor, 451 U.S. 527 (1981), when it declared as a statutory matter that there is no state of mind requirement for the section 1983 cause of action.
However, it turns out that there are state of mind requirements for the section 1983 cause of action that are based on the underlying constitutional claim.
Constitutional States of Mind, Variable and Otherwise
Simply put, different constitutional provisions have their own state of mind requirements. Thus, it has been the rule since Washington v. Davis, 426 U.S. 229 (1976), that equal protection violations require purposeful discrimination. There is therefore no such thing as a negligent or deliberately indifferent equal protection violation. Similarly, the Supreme Court declared in Daniels v. Williams, 474 U.S. 327 (1986), that due process violations require an abuse of government power, so that negligence is not sufficient. And Eighth Amendment violations require at least deliberate indifference, according to the Court in Farmer v. Brennan, 511 U.S. 825 (1994).
However, it is a bit more complicated than that: different states of mind may be required under the same constitutional provision where the circumstances are different. I call these variable state of mind requirements. For example, while the general rule in substantive due process cases is that deliberate indifference is required, in high speed police pursuit cases where police have little or no time to deliberate, the state of mind required, as ratcheted up by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833 (1998), is “purpose to cause harm.”
Similarly, while the general rule in prison condition of confinement cases is that the Eighth Amendment requires deliberate indifference in the sense of subjective criminal recklessness, in prison security cases the state of mind required, as ratcheted up by the Supreme Court in Whitley v. Albers, 475 U.S. 312 (1986), is conduct engaged in “maliciously and sadistically for the very purpose of causing harm.”
Why Different Constitutional States of Mind?
At the most superficial level, the Court was engaged in constitutional interpretation when it ruled that equal protection requires purposeful discrimination, that due process requires at least deliberate indifference and that the Eighth Amendment requires at least deliberate indifference in the sense of subjective criminal recklessness. In reality, there is considerably more going on.
First, these state of mind requirements are fault or culpability requirements. The particular constitutional provision implicated in a section 1983 case, which includes its state of mind requirement, constitutes the constitutional norm applicable to the defendant’s conduct. Without this kind of fault, there can be no section 1983 cause of action.
Second, these state of mind requirements can serve functions other than setting out the applicable fault or constitutional norm. Notice how the scope of section 1983 liability decreases the higher or more culpable the applicable state of mind requirement. Proving purpose to do harm in a high speed police pursuit case, for example, is much more difficult for plaintiffs than proving deliberate indifference. In this way, the need to compensate for harm caused is reduced .
Perhaps more important, higher state of mind requirements reduce what the Supreme Court increasingly views as the improper chilling effect of potential damages liability on independent decision-making by government officials. Put differently, the Supreme Court is increasingly concerned with over-deterrence.
While this concern with over-deterrence is most obvious in the individual immunities context (about which I have posted a great deal on this blog), it plays a major role in determining applicable constitutional states of mind and is therefore frequently determinative of the scope of the section 1983 cause of action as well.
You’re Invited to the 40th Annual Section 1983 Conference on April 18-19, 2024
Variable Constitutional States of Mind and Section 1983: Recent Examples
Different constitutional provisions have their own state of mind requirements. Even the same constitutional provision can have variable state of mind requirements depending on context. For example, in some situations the state of mind requirement for a due process violation is deliberate indifference, and in other situations it is purpose to do harm. Similarly, in some situations the state of mind requirement for an Eighth Amendment violation is deliberate indifference, and in other situations it is willful and wanton infliction of pain. On all of this and more, see generally chapter 3 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).
In these cases and others, the state of mind requirement serves an important gatekeeper function that determines whether a plaintiff’s §1983 constitutional claim can go forward. It is therefore crucial for plaintiffs to argue for the lower or less culpable state of mind, while defendants will argue for the higher or more culpable state of mind.
Here are two examples, one from the Ninth Circuit where the defendants were successful, and the other from the Minnesota Supreme Court where the plaintiff was successful.
The Ninth Circuit’s Substantive Due Process Ochoa Decision
In Ochoa v. City of Mesa, 26 F.3d 1050 (9th Cir. 2022), the plaintiffs, who were relatives of an arrestee shot and killed by police officers during a standoff, alleged that their substantive due process rights protecting companionship and familial association were violated by the officers’ conduct.
Affirming the district court which ruled in favor of the defendants, the Ninth Circuit determined that the appropriate shocks the conscience test in this case was the purpose to do harm test—not deliberate indifference–because the officers did not have time to deliberate before they shot the decedent. This was an escalating situation involving a domestic dispute, possibly a gun, knives, erratic driving and a home invasion.
The Minnesota Supreme Court’s Eighth Amendment Welters Decision
In Welters v. Minnesota Dept. of Corrections, 982 N.W.2d 457, 472 (S. Ct. Minn. 2022), the plaintiff inmate sued corrections officers for violating his Eighth Amendment rights when, despite his continuing complaints, they allegedly improperly applied over-tightened handcuffs to him for over 3 ½ hours while transporting him for an endoscopy, and thereby caused him significant pain and permanent damage.
The Minnesota Supreme Court, reversing the trial court, ruled that the applicable Eighth Amendment standard here was deliberate indifference and not the malicious and sadistic standard: this case did not involve resolving a prison disturbance but rather implicated conditions of confinement and medical care. The court rejected the defendants’ argument that the malicious and sadistic standard applied “to any act taken to maintain general security [because it] would swallow even the day-to-day security measures taken as part of the conditions of confinement of prison life.” The Minnesota Supreme Court then concluded that as of July 31, 2017, a reasonable corrections officer would have known that such conduct violated the Eighth Amendment, so that the defendants here violated clearly settled law and were not entitled to qualified immunity.
Judge Gildea dissented, arguing that the proper Eighth Amendment standard in this case was the malicious and sadistic one which, when applied here, meant that the trial court’s decision granting summary judgment to the defendants should be affirmed. 982 N.W.2d 457, 485.
The Intriguing Intersection of DeShaney and Monell Liability: The Seventh Circuit’s LaPorta Decision
In First Midwest Bank Guardian of Estate of LaPorta v. City of Chicago, 988 F.3d 978, 990–91 (7th Cir. 2021), cert. denied, 142 S. Ct. 389, 211 L. Ed. 2d 207 (2021), the Seventh Circuit put DeShaney v. County of Winnebago, 489 U.S. 189 (1989), to unusual use in ruling against the guardian of an individual who was shot by his friend, an off-duty police officer not acting under color of law at the time. (Full disclosure: I played a consulting role for the plaintiff’s law firm)
The guardian claimed that the City of Chicago “had inadequate policies in place to prevent the shooting—or more precisely, that the City’s policy failures caused [the officer] to shoot him.” Specifically, he alleged: the failure to have an “early warning system” for officers likely to engage in misconduct; the failure to investigate and discipline officers for their misconduct; and the “perpetuation” of a code of silence that deterred reporting of such officers. All of this rendered the City liable under Monell v. Dept. of Social Services, 439 U.S. 974 (1978).
Reversing the jury’s compensatory damages award of $44.7 million (!) against the city, the Seventh Circuit declared that the guardian lost on its §1983 substantive due process bodily integrity claim under DeShaney because the guardian was asserting that the city had an affirmative duty to protect the individual from harm. The DeShaney exceptions did not apply. First, there was no special relationship since the individual was not in state custody. And second, the “narrow” state created danger doctrine, which required more than a “generalized risk of indefinite duration and degree,” did not apply because there was no evidence that the city affirmatively placed the individual in danger. Further, according to the Seventh Circuit, the guardian never explicitly raised the state created danger exception, and the jury was never instructed on it.
Finally, the Seventh Circuit rejected the guardian’s argument that DeShaney was inapplicable and that, instead, Monell supported liability inasmuch as the jury found that the city’s policy failures “caused” the officer to shoot the individual. This argument “reflect[ed] a basic misunderstanding of the relationship between Monell and DeShaney. [These cases] are not competing frameworks for liability. The two cases concern fundamentally distinct subjects.” Monell dealt with §1983 interpretation and local government liability, while DeShaney dealt with the constitutional issue of substantive due process. The Seventh Circuit thus concluded that the individual’s constitutional rights were not violated because the city had no affirmative due process duty to protect the individual from the officer’s “private violence.”
Comments
1. Had the police officer here acted under color of law, the DeShaney issue would have disappeared to the extent that DeShaney only applies to the prevention by government of privately caused harm. The issues then would have been, first, whether the police officer’s conduct constituted a substantive due process violation and second, if so, whether the City’s policies caused that substantive due process deprivation. If either question were to be answered in the negative, then the City would not be liable.
2. I have posted regularly about tragic DeShaney cases in the circuits. (You can search “DeShaney” on this blog for many examples) But LaPorta is unusual in that it sharply distinguished between the constitutional interpretation issue posed and the Monell liability issue, a matter of statutory interpretation. This distinction is, of course, sound so far as it goes.
But LaPorta might have come out the other way had the Seventh Circuit found that the challenged conduct–the alleged policies of the City, which were clearly state action–caused the violation of the individual’s substantive due process rights because those policies created the danger to him. The argument is that the City’s policies effectively placed the gun in the off-duty officer’s hand. This the Seventh Circuit did not do because under its approach any state created danger was not sufficiently particularized. The Seventh Circuit also commented that the plaintiff had never explicitly raised the issue. Thus, DeShaney controlled: there was no substantive due process violation.
3. On DeShaney, substantive due process affirmative duties and cases raising those issues, see Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 §§ 3:59-3:61 (2022-23 ed. West/Westlaw).
A Unique High-Speed Police Pursuit Case: The Plaintiff Might Win Against The Officer And City
High-speed police pursuit cases often end in serious bodily harm or death not only to the person pursued but to innocent bystanders as well. In most such cases the Fourth Amendment’s excessive force/reasonableness standard does not apply because there is no intentional seizure. Instead, as the Supreme Court held in the seminal decision in County of Sacramento v. Lewis, 523 U.S. 833 (19098), substantive due process applies and the appropriate standard is ordinarily “purpose to do harm,” and not the usual substantive due process standard of deliberate indifference.
This high standard serves at least two purposes: (1) it reflects the fact that these situations involve split-second decision making with no real opportunity to deliberate and (2) it serves a gatekeeper function in keeping such tort-like cases out of the federal. (This is one example of variable constitutional states of mind. Another is the Eighth Amendment)
The Seventh Circuit’s Flores Decision
Now consider Flores v. City of South Bend, 997 F.3d 725 (7th Cir. 2021). “Erica Flores’s life came to an untimely end when Officer Justin Gorny of the South Bend, Indiana, police department careened through residential streets and a red light at speeds up to 98 mph to reach a routine traffic stop he was not invited to aid, crashed into Flores’s car, and killed her.”
The Officer’s Potential Liability Under Substantive Due Process
Here, according to the Seventh Circuit, the decedent’s estate plausibly stated a substantive due process claim against the officer individually and the city for failure to train. The court, citing County of Sacramento, observed that “[i]dentical behavior considered reasonable in an emergency situation might be criminally reckless when state actors have time to appreciate the effects of their actions.” Ruling that deliberate indifference applied here, and not purpose to do harm, since the officer had the opportunity to deliberate, the court then went on to find that the officer’s “reckless conduct, unjustified by any emergency or even an order to assist in a routine traffic stop that five officers had under control, allows the inference that he subjectively knew about the risk he created and consciously disregarded it.” This constituted the requisite criminal recklessness for his liability. “The law does not provide a shield against constitutional violations for state actors who consciously take extreme and obvious risks.”
The City’s Potential Liability for Failure to Train
As to the city’s liability under a failure to train theory–see City of Canton v. Harris, 489 U.S. 378 (1989)–the decedent’s estate also plausibly alleged that the city acted with deliberate indifference because it failed to address the “known recklessness” of its police officers as a group and of the officer here. This was not a “one-free- bite” situation just because the defendant had never killed anyone before. The Seventh Circuit observed: “Notably, failure-to-train liability does not require proof of widespread constitutional violations before that failure becomes actionable; a single violation can suffice where a violation occurs and the plaintiff asserts a recurring, obvious risk.” According to the Seventh Circuit, this principle was not inconsistent with Supreme Court failure to train precedent even though the Court had not yet expressly so held.
Comments
Flores demonstrates the importance of determining at the outset in a substantive due process case like this one whether the high-speed pursuit involved the need for quick decision making by police. If it did, then the purpose to do harm standard, virtually impossible to meet in most cases, applies. In this case, though, the officer deliberately insinuated himself into the situation which turned tragic because of his involvement, thereby triggering, according to the Seventh Circuit, the deliberate indifference standard for individual liability, a much easier standard to meet. See, on substantive due process, ch. 3 of Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2022-23 Ed)(West/Westlaw)
As to the city’s potential liability for failure to train, note that the Seventh Circuit acknowledged that in its view–not yet approved by the Supreme Court, and the subject of disagreement in the circuits–a single violation is enough for such liability where there is a recurring and obvious risk even in the absence of a showing of widespread constitutional violations. See, on failure to train liability, ch. 6 of my Treatise.
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Happy New Year to you and your family.
38th Annual Conference on Section 1983: April 20-21, 2022
I’m very pleased to announce the forthcoming 38th Annual Chicago-Kent Conference on Section 1983 that will be held as a streaming webinar on Wednesday and Thursday, April 20-21, 2022.
This two day conference covers the Basics of Section 1983 Claims (Sheldon Nahmod), Individual Immunities (Erwin Chemerinsky), Municipal Liability (Karen Blum), Substantive Due Process (Rosalie Levinson), Supreme Court Review and Preview (Erwin Chemerinsky), the Religion Clauses, RFRA and RLUIPA (Sheldon Nahmod), Practical Issues in Section 1983 Litigation (John Murphey) Employment Law (Jamie Franklin) and Attorney’s Fees and Ethical Issues (Gerry Birnberg).
The speakers are (as many of you already know) prominent scholars and attorneys with great expertise in their areas and considerable experience in speaking to attorneys and judges throughout the country. I might add that the Annual Conference on Section 1983 is considered by many to be the premier program on section 1983.
The schedule and registration information can be accessed through the following link: https://ckcle.ce21.com/sales/early-bird-rate-section-1983-554885
If you have any questions, please feel free to contact me personally at snahmod@kentlaw.edu. Otherwise, Chicago-Kent’s CLE staff may be reached through the above link.
I hope you are able to attend.
I invite you to follow me on Twitter: @NahmodLaw.
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