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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.

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September 29, 2014 at 4:29 pm

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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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

DeShaney in the Circuits (VII): Another Disturbing Affirmative Duty Case Lost by Plaintiffs

I have blogged previously about how the Supreme Court’s controversial DeShaney decision has fared in the circuits. DeShaney held that as a general matter governments have no affirmative substantive due process duty to protect persons from private harm (of course, it’s more complicated than that). The first post was on 8-22-11; the second was on 6-1-12; the third was on 5-20-13; the fourth was on 6-6-13; the fifth was on August 27, 2014, and the most recent was on April 10, 2015.

Here is a particularly disturbing DeShaney-related decision from the Fourth Circuit. I came across it when preparing the now-published 2016 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).

Doe 2 v. Rosa, 759 F.3d  429 (4th Cir. 2015)

In Doe 2, two brothers sued the president of a public military college under section 1983 and substantive due process, alleging that he failed to protect them from being sexually molested by a camp counselor, a former cadet, while at summer camp on campus.

Affirming the district court’s grant of summary judgment to the president, the Fourth Circuit found no liability under the state-created danger approach. Relying on its decision in Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995), the Fourth Circuit determined that the president did not create or substantially enhance the danger that the boys faced.

The Fourth Circuit observed that the counselor began abusing the boys in 2005 and 2006, two years before the president could have been aware (through a complaint) that the counselor was a pedophile. Thus the president could not have created a danger that already existed.

Nor did he increase the risk to the boys: there was nothing that the counselor did to the boys during the early summer in 2007 that was not ongoing for two years, and this was all unrelated to any action by the president.

DeShaney had established that continued exposure to an existing danger by failure to intervene was not the equivalent of creating or increasing that danger.

Moreover, even if the boys did face a new or increased risk of abuse, this was not the result of any affirmative acts of the president: his inaction was solely his failure to alert the authorities about the counselor’s past conduct.

Comment

In these kinds of cases plaintiffs have the heavy initial burden of showing the existence of an affirmative due process duty to act in some manner. In order to get around the DeShaney no affirmative duty rule, plaintiffs typically attempt to use one or both of two exceptions: (1) special relationship and (2) danger creation. In Doe 2, there was no special relationship because the president did not himself place the brothers in a situation where they could not protect themselves. The circuits have typically held that even public school officials have no affirmative duty under a special relationship theory to protect their students from sexual abuse by teachers or other students.

That left the plaintiffs with the danger creation theory based on the allegation that he failed to alert the authorities about the counselor’s past conduct. But even that did not work for them because, according to the Fourth Circuit, the president did not play an affirmative causal role in creating or increasing the danger of sexual abuse to them. In other words, he did nothing that changed the situation in which they found themselves. This was determinative of the no-duty outcome in Doe 2, even though the president’s failure to notify authorities was plausibly related as a causal matter to the brothers’ continuing victimization.

Doe 2 is yet another example of the effectiveness of the DeShaney no-duty rule as a gatekeeper in keeping such section 1983 cases out of the federal (and state) courts. All that the plaintiffs alleged was the president’s failure to alert authorities about the counselor’s past conduct; they were not seeking any other form of affirmative protection from him. And still DeShaney applied.

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October 4, 2016 at 8:53 am

Section 1983 Police Officer Liability for Driving Recklessly

Protecting Police Officers from Section 1983 Damages Liability

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

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

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

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

High-Speed Police Chases and Substantive Due Process

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

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

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

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

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

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

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

Comment

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

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

 

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Written by snahmod

August 2, 2016 at 2:00 pm

What Does It Take to “Shock the Conscience” in the Classroom?

Substantive Due Process and the “Shocks the Conscience” Test

Many of us know of the substantive due process test of “shocks the conscience” and the very high hurdle it presents for section 1983 plaintiffs in cases in which it applies.

In Domingo v. Kowalski, 810 F.3d 403 (6th Cir. 2016), the Sixth Circuit appears to have made it close to impossible for students to successfully sue their teachers for violating substantive due process in the classroom.

The Domingo Facts and Ruling

In this case, parents of special education students sued their teacher, alleging substantive due process violations for the following, all of which occurred in the classroom: “abus[ing] her students … by, among other things, gagging one student with a bandana to stop him from spitting, strapping another to a toilet to keep her from falling from the toilet, and forcing yet another to sit with her pants down on a training toilet in full view of her classmates to assist her with toilet-training.”

The Sixth Circuit affirmed the district court’s grant of summary judgment for the teacher on the ground that the teacher’s conduct did not shock the conscience and thus did not violate substantive due process. It applied the four-part test of the Third Circuit in Gottlieb v. Laurel Highlands School Dist., 272 F.3d 168 (3rd Cir. 2001): (1) though the techniques used by the teacher were inappropriate, they were done for a legitimate pedagogical purpose; (2) the force used was not excessive; (3) the teacher did not act with malicious or sadistic intent; and (4) there was no evidence of any serious physical or psychological injury.

Judge Batchelder concurred in part and concurred in the judgment, 810 F.3d 403, *416, while Judge Boggs dissented in part, 810 F.3d 403, *417, arguing that one student’s claim arising out of the teacher’s binding and gagging him because he was disruptive and spitting should have gone to the jury: this particular discipline was never repeated even though the student’s conduct occurred several other times; the teacher’s conduct was the subject of severe criticism by a teacher’s aide; there may well have been no legitimate pedagogical justification for the teacher’s conduct; and the degree of force used could be understood as malicious or sadistic.

Comment

What to me is particularly troublesome about Domingo is the third part of the test, borrowed from the Third Circuit, that the teacher must have acted with malicious or sadistic intent. That is such a high standard and is so protective of section 1983 defendants that it is ordinarily reserved for prison guards enforcing prison security, Wilson v. Seiter, 501 U.S. 294 (1991)(malicious and sadistic intent), and for police officers engaged in high speed car chases, County of Sacramento v. Lewis, 523 U.S. 833 (1998)(purpose to do harm). In both these kinds of cases, split-second decision-making involving physical well-being is required and, as a matter of policy, we don’t want to chill such decision-making unduly.

But this consideration–providing a margin for error for split-second decision-making–does not apply with the same force in the classroom. Furthermore, the classroom contains minors who are particularly vulnerable to abuse by their teachers.

I agree that we should not ordinarily constitutionalize teacher error. However, we should not immunize it from meaningful judicial review and section 1983 accountability in egregious cases such as Domingo.

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July 6, 2016 at 2:30 pm

Certiorari Granted in Important Section 1983 Malicious Prosecution Case: Manuel v. City of Joliet

The Supreme Court granted certiorari on January 15, 2016, in Manuel v. City of Joliet, 136 S. Ct. 890 (2016), an unreported Seventh Circuit section 1983 malicious prosecution decision handed down on January 28, 2015.

Manuel, which will be argued in the Supreme Court’s 2016 Term, has the potential to be a blockbuster section 1983 decision that radically transforms the section 1983 malicious prosecution landscape. Such a transformation would have a dramatic impact on section 1983 claims brought for wrongful conviction and incarceration.

Here is the Question Presented: “Whether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment.”

According to the Petition for Writ of Certiorari, the First, Second, Third, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh and D.C. Circuits have all answered this question in the affirmative, while only the Seventh Circuit, in Newsome v. McCabe, 256  F.3d 747 (7th Cir. 2001), has answered in the negative.

In Manuel, the Seventh Circuit affirmed the decision of the district court dismissing the plaintiff’s section 1983 Fourth Amendment claim that police officers maliciously prosecuted him when they falsified the results of drug tests and thereafter arrested him for possession with intent to distribute ecstasy. The district court relied on Newsome and the Seventh Circuit panel found no compelling reason to reconsider that precedent. The Seventh Circuit explained: “Newsome held that federal claims of malicious prosecution are founded on the right to due process, not the Fourth Amendment, and thus there is no malicious prosecution claim under federal law if, as here, state law provides a similar cause of action.”

The issues raised in Manuel  have been a matter of great interest to me for some time. See my post of Sept. 11, 2009, about the basic elements of so-called section 1983 “malicious prosecution” claims. In that post I called for the virtual elimination of most of the tort-like terminology used for such purposes and for a renewed focus on the constitutional bases for such claims.

Manuel now provides the Court with its first opportunity in over twenty years– see Albright v. Oliver, 510 U.S. 266 (1994)–to consider the elements of such claims.

Recall that Albright was a splintered decision in which a plurality held that substantive due process could not be used as the basis for section 1983 malicious prosecution claims. See sections 3:65-3:66 of my treatise,  CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2015 West).

In the course of considering Manuel, the Supreme Court will likely address the relevance of available state remedies. It will likely also discuss the Fourth Amendment “continuing seizure” theory that Justice Ginsburg articulated in Albright, a theory that the Seventh Circuit has rejected.

Written by snahmod

March 24, 2016 at 1:26 pm