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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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Written by snahmod

January 7, 2019 at 12:43 pm

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.

Written by snahmod

September 29, 2014 at 4:29 pm

The Shot Suspect Who Escapes & The Seizure Question: Torres v. Madrid (2021)

Background At the outset, note that intent is a condition precedent for a Fourth Amendment violation. The Supreme Court put it this way:

It is clear . . . that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement. . ., nor even whenever there is a governmentally caused and governmentally desired termination of an individual’s freedom of movement . . . but only when there is a governmental termination of freedom of movement through means intentionally applied.

Brower v. County of Inyo, 489 U.S. 593 (1989)(emphasis in original), a Fourth Amendment roadblock case.

Seizures In Fourth Amendment cases involving an officer’s use of force where intent is present, it is crucial to distinguish between two additional Fourth Amendment questions: whether there was a seizure and, if there was, whether the seizure violated the Fourth Amendment. Thus, the seizure question serves an important gatekeeper function.

For example, in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), the Court held that where police make a show of authority but the subject does not yield, there is no seizure for Fourth Amendment purposes. In Hodari, police chased a person who, in the course of fleeing from them but before he was physically stopped by a tackle, discarded what turned out to be cocaine. Ruling that this evidence could be introduced in the criminal proceeding, the Court ruled that there was no seizure. The Court observed that a seizure required either the application of physical force or submission to the assertion of authority, neither of which was present here at the time the cocaine was discarded.

The Shot Suspect Who Escapes What of a situation in which there was an application of physical force because the suspect was shot but there was no apparent submission to the assertion of authority? Does this still constitute a seizure? The Supreme Court, resolving a split in the circuits and following the common law, answered this question in the affirmative.

Torres v. Madrid, 141 S. Ct. 989 (2021), involved a section 1983 Fourth Amendment excessive force claim brought by a plaintiff who was fired at by police officers 13 times in an attempt to stop her, a suspected carjacker. Although she was struck twice, she escaped and drove 75 miles to a hospital, but was arrested the following day. The Court, in an opinion by Chief Justice Roberts, ruled that she was seized when she was shot: this was an intentional application of physical force to her body with the intent to subdue, even though she did not submit and was not subdued at the time. There were important differences at common law between seizures by control and seizures by force, with the common law considering a touching to be a seizure. The majority also reasoned that requiring the taking of control for a seizure would be difficult to apply in cases involving the application of force. It thus rejected the defense argument that a seizure be defined as the acquisition of control: this theory was inconsistent with the history of the Fourth Amendment and precedent.

Justice Gorsuch, dissented, joined by Justices Alito and Thomas, arguing that a seizure requires “taking possession of someone or something.” Justice Barrett did not participate in the decision.

Comments

The reasoning in Torres applies equally to intentional shootings, tasings and beatings. These are all seizures, triggering Fourth Amendment analysis, because they all implicate personal security, the core of the Fourth Amendment.

If Torres had come out the other way, not only would the Fourth Amendment’s exclusionary rule not be timely implicated in many such cases, but claims of excessive use of force by police officers against those who escape would be governed by substantive due process under which the applicable standard is “purpose to do harm,” County of Sacramento v. Lewis, 523 U.S. 833 (1998), a much heavier burden than unreasonableness under the Fourth Amendment. See Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 §3:52 (2021-22)(West/Westlaw).

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Written by snahmod

October 25, 2021 at 10:20 am

Posted in Uncategorized

37th Annual Conference on Section 1983: 4/21-23/2021

Registration is now open!

https://d31hzlhk6di2h5.cloudfront.net/20210308/2a/e8/e2/2f/3b8dc3b8298924690fb37cdd_1280x348.jpg
3-day Webinar Series | April 21 – 23, 2021

Eligible for 12.5 hours of general CLE credit, including 1.25 hours of ethics
  Liability arising out of §1983 claims continues to present challenges for courts across the country, and the Supreme Court has a large impact in this dynamic area of law. Join us for this 10-part webinar series, held over three days, to get up-to-date on the latest cases, trends, and strategies affecting §1983 litigation. You have the opportunity to examine both the law of §1983 as well as the litigation strategies that underlie successful cases. Experts in the field address the most important issues and provide wisdom for you as you tackle this year’s cases, whether you represent plaintiffs or defendants. As always, the conference provides an analytical approach to problems and offers practical advice about how to solve them. 

REGISTRATION NOW OPEN Sign-up today and save $50 on the cost of registration! Pay the early bird rate through April 7. Special discount available for attending this conference for 10 or more years, consecutively.
Register at this link: https://ckcle.ce21.com/item/37th-annual-section-1983-civil-rights-litigation-conference-403127

PROGRAM HIGHLIGHTS• The Section 1983 Claim: The Basics
• Individual Immunities
• Municipal Liability
• Practical Considerations in §1983 Litigation
• Immigration Law and §1983
• The 4th Amendment: Overview and Update
• Attorney’s Fees & Related Ethical Issues
• The Supreme Court’s Term: Recent and Forthcoming Decisions
• Substantive Due Process: The Constitutional Guaranty that Multitasks New this year!
• Takings after Knick New this year!
All sessions are pre-recorded video content along with real-time speaker interaction available via live chat room throughout each session.  

PROGRAM FACULTY
Kimberly D. Bailey | Associate Professor of Law | Chicago-Kent College of Law
Gerald M. Birnberg | Founding Partner | Williams, Birnberg & Andersen LLP
Karen M. Blum | Professor of Law Emerita | Suffolk University Law School
Victoria Carmona | Assistant Clinical Professor and Supervisory Attorney, Immigration Clinic | Chicago-Kent College of Law
Erwin Chemerinsky | Dean & Jesse H. Choper Distinguished Professor of Law | University of California, Berkeley School of Law
Rosalie B. Levinson |  Professor of Law Emerita | Valparaiso University School of Law
John B. Murphey | Senior Partner | Odelson Sterk Murphey Frazier McGrath, Ltd.
Sheldon H. Nahmod | University Distinguished Professor of Law Emeritus | Chicago-Kent College of Law

DOWNLOAD THE COMPLETE BROCHURE HERE: https://d31hzlhk6di2h5.cloudfront.net/20210308/2e/9d/06/14/bd734451d3c88ee79de6b1c5/sec83_-_brochure_2021_FINAL.pdf

Written by snahmod

March 8, 2021 at 5:41 pm

Posted in Uncategorized

DeShaney’s No-Affirmative Duty Rule, Section 1983 and Danger-Creation: Three Recent Decisions

Almost everyone knows by now that in a still-controversial decision, DeShaney v. County of Winnebago, 489 U.S. 189 (1989), the Supreme Court ruled that the due process clause does not create an affirmative substantive due process duty on the part of government to protect citizens from private harm. The Court in DeShaney suggested two exceptions to this general rule: (1) when the government or its officials or employees themselves created the danger in which the plaintiff found himself or herself, and (2) when the plaintiff is in the government’s custody and is thereby prevented from protecting himself or herself. Many, if not most, DeShaney-type cases involve the danger-creation exception and the section 1983 plaintiffs typically lose.

(I’ve posted about DeShaney over the years on this blog. All you need to do to find these posts is to search “DeShaney.” Also, for much more, see ch. 3 in my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West).)

What follows are three recent decisions that rejected the state-created danger exception to DeShaney.

A Fourth Circuit Case: Graves v. Lioi

The decedent’s estate filed a section 1983 substantive due process suit against two police officers claiming that they were responsible for the stabbing death of the decedent, the assailant’s pregnant wife, outside a courthouse where she had just obtained a protective order against him. The officers allegedly enabled the assailant to postpone his self-surrender on a misdemeanor arrest warrant, thereby providing him with the opportunity to murder his wife. Affirming the district court’s grant of summary judgment to the officers, the Fourth Circuit determined that the record did not show that they committed affirmative acts that would render them liable under the state created danger doctrine. These acts included the letters and texts of one of the officers to the assailant, the conduct of the second officer relating to the arrest warrant against the assailant and their decisions to allow the assailant to leave a police department district office and self-surrender. There was also little or no evidence of a causal link between the alleged affirmative acts and the decedent’s harm. Further, the defendants were protected by qualified immunity. Graves v. Lioi, 930 F.3d 307 (4th Cir. 2019).

Judge Gregory dissented, arguing that the majority improperly construed the evidence which, in fact, showed that the defendants engaged in actionable affirmative acts to allow the assailant to evade arrest until a date considered convenient to him, when he was finally able to stab his pregnant wife.

A Seventh Circuit Case: Estate of Her v. Hoeppner

A child’s estate filed a section 1983 suit against a parks director, seven lifeguards and a city after the six-year-old child was found unresponsive on the bottom of a man-made swimming pond operated by the city. She died several days later. The Seventh Circuit affirmed the district court’s grant of summary judgment to the defendants, rejecting the plaintiff’s state danger-created theories. “No reasonable jury could find that the defendants created a danger just by operating a public swimming pond or that they did anything to increase the danger to [the child[ before she drowned. Nor was their conduct so egregious and culpable that it ‘shocks the conscience,’ a necessary predicate for a court to find that an injury from a state-created danger amounts to a due process violation.” There was no evidence that the swimming pond was “distinctively dangerous.” There was also no evidence that the lifeguards disregarded their training: the child slipped below the surface without being noticed by anyone. At most, this was a negligence claim. Estate of Her v. Hoeppner, 939 F.3d 872 (7th Cir. 2019).

An Arkansas Supreme Court Case: Yang v. City of Little Rock

Where the plaintiff  filed a section 1983 damages action against a city and others in connection with the alleged mishandling of a 911 call requesting rescue services for his deceased son, the Supreme Court of Arkansas affirmed the lower court’s grant of summary judgment to the defendants. As to the plaintiff’s claim that the city failed to provide competent emergency services, thereby causing his son’s death, the court declared that under DeShaney, the city had no constitutional duty to provide rescue services for the son. And as to the plaintiff’s claim that the city was liable under a state-created-danger exception because its water rescue operations prevented rescue attempts by others, there was no evidence that the city arbitrarily prohibited rescue attempts by anyone: indeed, there were no reasonable alternative avenues of rescue here. In short, there was no evidence that the city affirmatively placed the plaintiff’s son in a position of danger that he would not otherwise have faced. Dayong Yang v. City of Little Rock, 2019 Ark. 169 (2019).

Comments

  1. I consider the strongest of these three cases for the state-created danger exception to DeShaney to be the Fourth Circuit’s Graves decision. Even here, though, an alternative ground for the decision in favor of defendants was qualified immunity. So the police officers escaped section 1983 damages liability in any event.

2. Even where section 1983 plaintiffs confronting DeShaney can surmount the affirmative duty issue, they still have to show a highly culpable state of mind, often put somewhat confusingly by the circuits in “conscience shocking” terms. What is really required is at least deliberate indifference which is still not all that easy to show. More than negligence or gross negligence is required.

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Written by snahmod

November 17, 2020 at 11:56 am

Posted in Uncategorized

Off-Duty Police Officers, “Private” Conduct and State Action

Section 1983 damages liability for constitutional violations depends on the threshold existence of a defendant’s state action within the meaning of the 14th Amendment and on the related statutory requirement of color of law. Fortunately, the general rule about the relationship between state action and color of law may be simply put: where there is state action under the 14th Amendment, there is color of law under section 1983. But this means that the (sometimes difficult) 14th Amendment state action question must be addressed in every section 1983 case.

Categories of State Action Cases

The relatively easy state action cases are those in which a state or local government official or employee has exercised government power, either pursuant to state law or in violation of state law, and deprived a person of his or her 14th Amendment rights. The harder and more troublesome, but more typical, state action cases are those in which a private person or entity is sued for damages under section 1983. The question in such cases is whether the challenged nominally private conduct can be attributed to the state or local government. The applicable tests in such cases are the nexus test, the symbiotic relationship test, the public function test and the so-called “entwinement” test.

(Search “state action” on this blog for related posts. In addition, I discuss these state action tests at length in ch. 2 of my Treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019)(West/Westlaw)).

 

The “Converse” of the Typical State Action Case

But there is another category of state action cases that raise what I call the “converse” of the typical state action question. Such cases address the issue of when a state or local government official, one who is ordinarily a state actor, loses that status because he or she has acted as a private person and is consequently not suable under section 1983.

Here are two cases of interest, one from the Seventh Circuit and the other from the Ninth Circuit, finding that the defendant police officers, sued for damages under section 1983 for alleged constitutional violations, were not state actors, and thus could not be liable under section 1983.

(Many other “converse” state action cases from the circuits are collected in ch. 2 of my Treatise).

The Barnes Case from the Seventh Circuit

Barnes v. City of Centralia, 2019 WL 6318087 (7th Cir. 2019), involved a police officer against whom threatening statements were posted on social media by a suspected gang member. The officer submitted a complaint against the suspected gang member who was then arrested. This was followed by a criminal prosecution and the dismissal of charges. The suspected gang member then sued the police officer and the city under section 1983 for violating her constitutional rights.

According to the Seventh Circuit, the officer’s conduct, which was limited to his submitting a complaint, was that of a private citizen, and not that of an investigating officer. Submitting the complaint was the extent of the officer’s participation. He did not arrest the plaintiff and had no role in that arrest; he did not even know what crimes the plaintiff would be charged with. The officer’s report therefore did not involve any exercise by him of state authority.

The Hyun Ju Park Case from the Ninth Circuit

Hyun Ju Park v. City and County of Honolulu, 2020 WL 1225271 (9th Cir. 2020), dealt with two off-duty police officers who watched as their intoxicated off-duty colleague decided to inspect his gun—which the police department authorized him to carry–at a bar to ensure that it was loaded. They also watched as their colleague attempted recklessly to  load his already loaded gun, which then accidentally discharged, with a single bullet striking the plaintiff bartender and causing serious physical harm.

The Eighth Circuit found no state action on the part of these two defendants (the third intoxicated defendant had settled separately with the plaintiff) who were sued for violating substantive due process. They were not state actors for a number of reasons. Neither one exercised nor purported to exercise official responsibilities. Both were off-duty, dressed in plain clothes, were drinking as private citizens at a bar and never identified themselves as police officers. Even when they saw the third officer pull out his gun, they did not act or purport to act in the performance of their official duties.

(Judge Smith concurred on the state action issue but dissented on the separate question of whether the city, which was also sued, could be sued for its official policy or custom; the majority held that it could not).

Comments

1. Notice that in both cases, the two circuits soundly addressed the state action question not abstractly but rather in terms of the particular fact patterns they confronted. The state action question must be decided on a case-by-case basis. There are relatively few, if any, bright line rules.

2. The Barnes case is consistent with the many circuit court decisions holding that a private person who merely reports a possible crime to law enforcement authorities does not thereby become a state actor subject to potential section 1983 damages liability.

3. In Barnes, there is a possible alternative, and non-state action, basis for the decision. Even if the officer’s submission of the complaint were state action, it was not the proximate cause of any resulting 14th Amendment violations. Because he purportedly had no role in the arrest, did not know what crimes the plaintiff would be charged with and was not responsible for the prosecution, the conduct of others involved in those post-complaint decisions constituted a superseding cause breaking the chain of causation. (Search “proximate cause” on this blog for related posts. In addition, I discuss proximate cause at length in ch. 3 of my Treatise).

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Written by snahmod

July 16, 2020 at 11:07 am

Flint, Michigan, the Safe Drinking Water Act and Section 1983 Constitutional Claims

Boler v. Earley, 865 F.3d 391 (6th Cir. 2017), is a significant Sixth Circuit case involving the Safe Drinking Water Act, 42 U.S.C. secs. 300g-1 et seq (SDWA). It arose out of the disturbing and infamous events involving the contaminated drinking water of residents of Flint, Michigan.

The plaintiffs were residents of Flint, Michigan, who were adversely affected by water contamination. They sued various state and local officials and entities under section 1983 alleging substantive due process and equal protection violations, together with various state law claims. The defendants argued that the SDWA showed that Congress intended to  preclude the plaintiff’s constitutional claims, thus limiting the plaintiffs to whatever SDWA remedies they had.

Rejecting this argument and ruling that the SDWA did not preclude the plaintiff’s section 1983 constitutional claims, the Sixth Circuit relied on the SDWA’s text and legislative history, as well as its remedial scheme, for its conclusion. The court also mentioned the SDWA’s savings clause and examined the divergence of the rights protected by the SWDA and the constitutional provisions raised by plaintiffs. All of these considerations demonstrated that Congress did not intend to preclude section 1983 constitutional claims when it enacted the SDWA. Thus, the plaintiffs were entitled to go ahead with their substantive due process and equal protection claims.

Comments

1. The precise issue presented in Boler was whether the plaintiffs could even proceed with their section 1983 constitutional claims in light of the SDWA. I discuss this preclusion issue generally in sec 2:46 of my treatise, NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2018)(West). See also Fitzgerald v. Barnstable School Committee, 129 S. Ct. 788 (2009), unanimously holding that Title IX did not preclude section 1983 equal protection sex discrimination claims against school districts and officials.

2. This preclusion issue is different from what I have called the “laws issue,” namely, whether the violation of a federal statute by a state or local government official, or by a local government, can be the basis of a section 1983 claim. See sections 2:27-2:47 of my treatise.

3. Allowing the plaintiff’s section 1983 claims to go forward in Boler resulted in a subsequent (and very recent) landmark decision in which the Sixth Circuit held that the plaintiffs pleaded plausible substantive due process claims against various individual defendants, and also that these individual defendants were not protected by qualified immunity because the relevant substantive due process law was clearly settled at the time. See Guertin v. State of Michigan, Nos. 17-1698, 1699, 1745, 1752 & 1759 (6th Cir., January 4, 2019).

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Written by snahmod

January 18, 2019 at 11:35 am

A DeShaney Danger Creation Case that Survived Summary Judgment

Over the years I have posted many times about the difficulty plaintiffs have in surmounting the no-affirmative duty substantive due process rule of DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989). This case declared that government has no affirmative duty to protect or rescue individuals from private harm. See Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 secs. 3:59-3:61 (4th ed. 2017)(West).

As noted in the voluminous case law, there are two possible end-runs around this no-duty rule. First, where there is special relationship between the government and the plaintiff, a very limited category of cases in which the plaintiff is dependent on government and cannot act on his or her own behalf. And second, danger creation, where government itself is not neutral but rather creates the danger to the plaintiff.

But even where an affirmative substantive due process duty has been shown, the plaintiff must go on to show a breach of that duty, or a violation of substantive due process.

Irish v. Maine,  849 F.3d 521 (1st Cir. 2017), and danger creation.

In Irish v. Maine, the former boyfriend of the one of two plaintiffs (the other plaintiff was her mother) broke into her parents’ home, fatally shot her boyfriend, shot her mother, abducted her and engaged in a shootout with police during which another individual was shot fatally. The plaintiff alleged that the rampage began after a police officer left the former boyfriend a voice message notifying him that the plaintiff had made a complaint to police about the former boyfriend’s serious violent crimes against her earlier, and asking him to come in for an interview. This was despite the plaintiff’s explicit request that the former boyfriend not be notified by police because of her concern that such notice would incite further violence against her, which turned out to be true.

Reversing the district court which had dismissed plaintiff’s danger creation substantive due process claim, and had also granted defendants’ qualified immunity motion, the First Circuit remanded for further fact finding. It observed that there was no evidence as to whether the police decision to leave a voice message was in line with police protocol and training. There was also no evidence on exactly what the officers knew about the veracity of plaintiff’s allegations against the former boyfriend, about his propensity for violence and about whether he would likely act on that propensity. According to the First Circuit, these facts were relevant to both the viability of the due process claim and qualified immunity.

Comment

The first question is whether there was a general substantive due process duty imposed on the police to protect the plaintiff from her former boyfriend. The short answer under DeShaney is no. The second question is whether the police in this case had any kind of special relationship with the plaintiff, and here too the short answer is no. The crucial question, then, is whether the police violated substantive due process in creating the danger to the plaintiff by leaving a voice message for the former boyfriend despite the plaintiff’s explicit request that the police not notify him because that would incite him to further violence.

Note that the issue in the First Circuit was not whether the voice message actually caused the former boyfriend’s violent acts; this seems to have been shown. Rather, having thus shown the existence of an affirmative due process duty to protect or rescue though the police creation of the danger, did the plaintiff also show a breach of that duty, namely, a violation of substantive due process? And the constitutionally required state of mind for such a substantive due process violation is deliberate indifference.

This is why the First Circuit remanded. If leaving a voice message was not in line with protocol, this would tend to show deliberate indifference. Similarly, if the police knew about the truthfulness of the plaintiff’s description of her former boyfriend and that he would likely engage in violence against her, that too would tend to show deliberate indifference.

(For more discussions of recent circuit court decisions addressing DeShaney issues, search this blog for “DeShaney”)

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Written by snahmod

August 21, 2018 at 9:33 am

An Unusual Section 1983 Second Amendment Lawsuit Brought by Police Officers(!)

Section 1983 Second Amendment lawsuits are typically brought by citizens who argue that their Second Amendment rights have been, or will be, violated by state and local governments through legislation imposing gun controls of one kind or another.

(For background, see three earlier posts on the Second Amendment: (1) https://nahmodlaw.com/2010/08/08/the-second-amendment-and-section-1983-after-mcdonald/ & (2) https://nahmodlaw.com/2013/02/28/the-second-amendment-and-gun-control-unanswered-questions/ & (3) https://nahmodlaw.com/2014/11/11/the-second-amendment-and-section-1983-a-podcast/)

The Ninth Circuit’s Decision in Mahoney v. Sessions

So consider Mahoney v. Sessions, 2017 WL 4126943 (9th Cir. 2017), an unusual Ninth Circuit case that involved Second Amendment claims brought under section 1983 by police officers challenging the City of Seattle’s use of force policy on the ground that this policy violated their right to use firearms for the core lawful purpose of self-defense. The policy stated that police officers must use objectively reasonable force “proportional to the threat or urgency of the situation, when necessary, to achieve a law-enforcement objective.” It also required officers to use de-escalation tactics to reduce the need for force but only when safe and feasible “under the totality of circumstance[s].”

Affirming the district court, the Ninth Circuit ruled that the policy did not violate the Second Amendment. The court assumed that the policy was subject to Second Amendment analysis. However, applying intermediate level scrutiny, the court went on to determine that the city’s interest in the policy was substantial because it was intended for  the safety of the public and police officers. Further, there was a reasonable fit between this purpose and the policy which assured that the interest would be furthered. It was also significant that this was a regulation of department-issued firearms.

Comment

Apart from the unusual plaintiffs in Mahoney, the result was not surprising. For one thing, the circuits as a general matter have coalesced around intermediate level scrutiny in Second Amendment cases. Mahoney appears to have applied this standard appropriately: Seattle’s policy was a sensible way of trying to constrain police officers when they contemplate the use of deadly force. Put another way, the policy was a means of enforcing the Fourth Amendment’s limits on the use by police officers of deadly force.

For another, state and local governments have no affirmative substantive due process duty to protect their officials or employees from private harm. Collins v. City of Harker Heights, 503 U.S. 115 (1992), discussed in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 sec. 3:58 (2017; West). Police officers in particular know full well that their job exposes them to the risk of serious harm on a regular basis.

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Written by snahmod

July 10, 2018 at 8:08 am

Posted in Uncategorized

An Injured Public Employee Gets Past DeShaney and Collins v. City of Harker Heights

The DeShaney and Collins Obstacles for Injured Public Employees Seeking Section 1983 Damages

A public employee who has been injured and thereby deprived of his or her constitutional rights by the employer’s failure to prevent the injury has two major section 1983 affirmative duty hurdles to overcome.

One is the familiar hurdle presented by DeShaney v. County of Winnebago, 489 U.S. 189 (1989), which held that due process does not impose an affirmative duty on state and local governments to protect individuals from private harm. I have blogged about DeShaney and its application in the circuits numerous times. I also analyze it in sections 3:59-61 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2016).

But even if the DeShaney hurdle can be overcome by showing a special relationship or danger-creation by government, there is the addition hurdle presented by Collins v. City of Harker Heights, 503 U.S. 115 (1992), which held that section 1983 provides no due process remedy “for a municipal employee who is fatally injured in the course of his employment because the city customarily failed  to train or warn its employees about known hazards in the workplace.” Put another way, there is no affirmative due process duty to provide a safe workplace for a public employee. See section 3:58 of my treatise for analysis of Collins.

These two significant hurdles demonstrate why overcoming them both in the same case is highly unusual.

Pauluk v. Savage, 836 F.3d 1117 (9th Cir. 2016)

In Pauluk v. Savage, a potentially significant case, the Ninth Circuit held that the injured public employee surmounted both hurdles, even though he ultimately lost on qualified immunity grounds. See chapter 8 of my treatise on qualified immunity.

Decedent’s legal representative sued a county health district and two employees, alleging that their deliberately indifferent exposure of decedent to a workplace environment known to be infested with toxic mold caused his death, thereby violating substantive due process. The Ninth Circuit noted that this case was at the intersection of the state-created danger doctrine on the one hand and Collins v. City of Harker Heights on the other.

Ultimately reversing the district court’s denial of summary judgment to the defendant employees, the court first found that a substantive due process claim was stated under the state-created danger doctrine even though the case involved a physical condition in the workplace. Under the state-created danger doctrine the plaintiff properly alleged and introduced evidence of a violation of substantive due process in that the defendants knowingly created, and continued to create, the danger to the decedent. But it still ruled that the substantive due process right asserted was not clearly established between 2003 and 2005, when the decedent worked despite his protests, with the result that the defendant employees were protected by qualified immunity.

In addition, and more to the present point, the Ninth Circuit went on to rule that the state-created danger doctrine was not foreclosed in this case by Collins. The court observed that Collins did not involve a claim under the state-created danger doctrine, as here, but rather the claim of a general due process right to a safe workplace. This distinction was significant and cut in favor of the decedent. However, there was no violation of clearly settled law because, unlike existing circuit precedent, this case involved harm by a physical condition where decedent worked. Thus, the defendant employees were entitled to qualified immunity on this ground as well.

Judge Murguia concurred in part and dissented in part, arguing that the plaintiff did not present a substantive due process claim of affirmative acts with deliberate indifference. 836 F.3d 1117 at 126.  Judge Noonan dissented, contending that the defendant employees in fact violated clearly settled substantive due process law in the Ninth Circuit. 836 F.3d 1117 at 1132.

Comments

1. The Ninth Circuit’s qualified immunity decision applies only to the defendant employees sued in their individual capacities for damages. But there still remains a possible section 1983 remedy against the county health district that was also sued by the decedent’s legal representative but was not technically a party to the defendant employees’ interlocutory appeal.

2. Even though the Ninth Circuit resolved the case in favor of the defendant employees on qualified immunity grounds, Pauluk still established clearly settled due process law going forward.

3. The result on the due process merits in Pauluk is the consequence of good lawyering and a careful reading of Collins. Plaintiff’s attorneys persuaded the Ninth Circuit that once the danger-creation doctrine was available, Collins did not apply where a very specific affirmative act regarding the workplace allegedly violated due process.

4. DeShaney and Collins kinds of cases often present tragic circumstances. Still, plaintiffs in such cases typically lose. Pauluk stands out.

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Written by snahmod

March 29, 2017 at 9:38 am