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Archive for the ‘Civil Rights – Section 1983’ Category

White v. Pauly: Another Supreme Court Signal on Excessive Force and Qualified Immunity

In White v. Pauly,  137 S. Ct. 548 (2017)(per curiam), the Supreme Court once more strongly sent a message that police officers are to be given maximum deference when sued for damages under section 1983 and the Fourth Amendment for using excessive force.

Background

In 2015, 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 Feb. 11, 2016.

An earlier 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 derive 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.

White v. Pauly: A Police Officer Receives Qualified Immunity for Use of Deadly Force

In White v. Pauly, yet another excessive force case (this one not involving a high-speed chase), the Supreme Court continued to signal lower federal courts and litigants that the clearly settled law inquiry must be made at a relatively fact specific level. In the Court’s words: “This case addresses the situation of an officer who—having arrived late at an ongoing police action and having witnessed shots being fired by one of several individuals in a house surrounded by other officers—shoots and kills an armed occupant of the house without first giving a warning.” The Court ruled that the officer was protected by qualified immunity.

The plaintiff in White, representing the estate of his deceased brother, alleged that three police officers violated the Fourth Amendment’s prohibition against the use of excessive force. The plaintiff was involved in a road-rage incident with two women who called 911 to report him as “drunk” and “swerving all crazy.” After a brief, nonviolent encounter with the women, the plaintiff drove off to a secluded house where he lived with his brother. Thereafter, two police officers—not including Officer White at the time–drove to the house (it was 11 pm) and were moving around outside. The plaintiff and his brother became aware of persons outside and yelled “Who are you?” and “What do you want?” The plaintiff maintained that he and his brother never heard the two officers identify themselves as police—only that the officers said they were armed and coming in. The brothers then armed themselves and began shooting. At that point Officer White, who had been radioed by the two officers, was walking toward the house when he heard the shots apparently directed at the two officers. Plaintiff’s brother then opened a front window and pointed a handgun in Officer White’s direction. One of the other two officers shot at the brother but missed him, followed immediately by White’s shooting and killing the plaintiff’s brother.

The district court denied all three defendants’ motions for summary judgment, and a divided panel of the Tenth Circuit affirmed. Pauly v. White, 814 F.3d 1060 (10th Cir. 2016). As to the two officers, the Tenth Circuit determined that taking the evidence most favorably to the plaintiff, reasonable officers should have understood that their conduct would cause the brothers to defend their home and might result in the use of deadly force against the deceased brother. As to Officer White, the Tenth Circuit ruled that the rule “that a reasonable officer in White’s position would believe that a warning was required despite the threat of serious harm” was clearly established at the time by statements from the Supreme Court’s case law. Judge Moritz dissented, arguing that the majority impermissibly second-guessed officer White’s quick decision to use deadly force.

The Supreme Court then reversed the Tenth Circuit, vacating the judgment against Officer White on the ground that he did not violate clearly established law on the record before the Tenth Circuit. The Court emphasized that it had regularly and repeatedly declared that clearly established law should not be articulated at a high level of generality. In the Court’s view, the Tenth Circuit “failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment.” Instead the Tenth Circuit improperly relied on general statements from the Supreme Court and circuit court “progeny” that set out excessive force principles “at only a general level.” Furthermore, this case did not present an obvious Fourth Amendment violation: the Tenth Circuit majority did not conclude that the failure to shout a warning was a “run-of-the-mill Fourth Amendment violation.” Finally, the Court expressed no opinion on the question whether the other two officers were protected by qualified immunity. Justice Ginsburg concurred, pointing out her “understanding” that the Court’s opinion did not foreclose denying summary judgment to the two other officers.

Comments

The Supreme Court obviously cannot decide all of the excessive force/qualified immunity cases in the circuits. So it does the next best thing by signalling to the federal judiciary and litigants that it demands maximum deference to police involving the use of excessive force, together with providing (to police) a significant margin for error in making the qualified immunity determination. In White, this was accomplished by finding no clearly settled Fourth Amendment law because of the Court’s insistence on finding a similar case.

Notice that the signalling is also directed at those federal circuit judges who disagree with a denial of qualified immunity by their panels. They are encouraged to do the hard work and write dissents that might encourage the losing police officers to seek certiorari in the Supreme Court, as well as catch the eye of some of the Justices.

Finally, White makes clear to section 1983 excessive force plaintiffs that they must do their clearly established law homework (I call it “time-travel” research) in order to have a decent chance of surviving a defense motion for summary judgment based on qualified immunity.

 

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Written by snahmod

April 21, 2017 at 8:29 am

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

34th Annual Section 1983 Conference on April 20-21, 2017 in Chicago

I don’t ordinarily advertise on my blog but here comes a commercial.

IIT Chicago-Kent College of Law is hosting the 34th annual Section 1983 Conference in Chicago on April 20-21, 2017. This two-day conference covers all aspects of section 1983 and features the following well-known speakers: Erwin Chemerinsky, Karen Blum, Rosalie Levinson, Kimberly Bailey, John Murphey, Gerry Birnburg and me.

I hope to see you there.

Please check out the brochure, which is below. Note that the early rate expires on April 1, 2017.

http://cle.kentlaw.edu/database/brochures/34th%20Annual%20Section%201983%20Civil%20Rights%20Litigation%20Conference%20Brochure70554751.pdf

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March 20, 2017 at 11:30 am

State Action, Color of Law and Section 1983

I blogged on February 19, 2015, about the Fourteenth Amendment’s state action requirement. Much earlier, on November 29, 2009, I blogged about the seminal section 1983 decision in Monroe v. Pape and its ruling that, where state action is present, section 1983’s color of law requirement is thereby met. Readers should check these posts for important background.

The following cases, from the First, Third and Ninth Circuits, address state action and color of law. Keep in mind that there are several state action tests, including nexus, symbiotic relationship, public/state function and entwinement, any one of which may lead to a finding of state action.

The First Circuit’s Decision in Jarvis v. Village Gun Shop

In Jarvis v. Village Gun Shop, Inc., 805 F.3d 1 (1st Cir. 2015), gun owners and a nonprofit corporation sued a gun shop as operator of a bonded warehouse alleging violations of due process in connection with the auctioning off of their guns—confiscated by police and transferred to the gun shop– after the owners failed to pay gun shop storage fees. The First Circuit held that the gun shop was not a state actor:

(1) There was no real joint action or interdependence between the activities of the police and the gun shop; it was not sufficient that a state statute authorized police to transfer possession of confiscated firearms to licensed storage facilities.

(2) The public function test was also not satisfied: a licensed storage facility such as the gun shop did not perform a traditionally exclusive government function.

(3) The state compulsion test was similarly not satisfied:  nothing in the state statutory scheme required the gun shop, or any licensed private storage company, to provide its services to the police.

The Third Circuit’s Decision in P.R.B.A. Corp. v. HMS Host Toll Roads, Inc.

In P.R.B.A. Corp. v. HMS Host Toll Roads, Inc., 808 F.3d 221, 225 (3rd Cir. 2015), a “gentlemen’s club” operator sued the private company that ran service plazas on state highway, alleging First and Fourteenth Amendment violations for the removal of the plaintiff’s brochures from the common areas of the service plazas.

The Third Circuit found no state action under the entwinement test or any other test: there was no active and pervasive involvement by the state either in the decision to remove the brochures or in the day-to-day operations of the service plazas. The Third Circuit observed: “[T]he presence of government signs and images of state officials in the service plazas—without more—does not constitute entwinement.”

The Ninth Circuit’s Decision in Naffe v. Frey

In Naffe v. Frey, 789 F.3d 1030 (9th Cir. 2015), the plaintiff, a political activist, sued a county deputy district attorney for publishing allegedly derogatory statements about her on his personal Internet blog and on Twitter.

Affirming the district court’s dismissal of her § 1983 claim, the Ninth Circuit determined that the defendant did not act under color of law because he published for purely personal reasons and the communications were unrelated to his work as a county prosecutor. Further, both his blog and his Twitter page had disclaimers that the opinions expressed were the personal opinions of the defendant and did not represent the opinions of his employer.

In short, the defendant did not exercise government power: even though he used his experiences as a deputy district attorney to inform his blog posts and Tweets, he pursued “private goals via private actions.”

Comments

Plaintiffs in section 1983 cases sometimes try to sue private parties or entities for Fourteenth Amendment violations as a way of getting into federal court and, if they win, getting attorney’s fees under 42 U.S.C. section 1988. These private parties or entities may also have deeper pockets than some government officials or employees.

The First and Third Circuit cases are relatively straightforward state action cases: these courts marched through the various state actions tests, determined that none of them applied and, as a result, found that the plaintiffs did not state section 1983 claims since the Fourteenth Amendment was not implicated.

In marked contrast, the Ninth Circuit case deals with a different but related question: when does a government official lose his state actor status and act as a private person not subject to the Fourteenth Amendment and section 1983? I call this the “converse of the typical state action question” in chapter 2 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983  (2016; West).

Thus, the Ninth Circuit determined that the deputy district district attorney acted as a private person, and not as a government official or employee, when he published the challenged statements on his personal blog and on Twitter. He did not exercise government power either in reality or apparently.

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Written by snahmod

November 21, 2016 at 8:38 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

My Amicus in Manuel v. City of Joliet, No. 14-9496: Section 1983 “Malicious Prosecution”

As some of you know, I have been arguing for quite some time that the scope of section 1983 should not be governed by tort law. See Nahmod, Section 1983 and the “Background” of Tort Liability, 50 Ind. L.J. 5 (1974).

Along the same lines, I have consistently maintained that the elements of the tort of malicious prosecution should play no meaningful role in section 1983 statutory interpretation–see my post of Sept. 11, 2009. The only exception is where section 1983 damages actions challenge existing convictions. Heck v. Humphrey, 512 U.S. 477 (1994).

As noted in my post of March 24, 2016, the Supreme Court granted the plaintiff Petitioner’s petition for writ of certiorari in Manuel v. City of Joliet to address the question whether the Fourth Amendment can serve as the basis of a section 1983 “malicious prosecution” claim. Counsel for Respondents asked me to submit an amicus brief in support of affirming the Seventh Circuit‘s judgment for Respondents.

I filed my amicus brief on August 10, 2016, with the able assistance of Joshua Yount, Charles Woodworth and Michael Downey of Mayer Brown LLP, Chicago, Illinois.

The entire amicus brief is available here.

For those who do not want to read the entire brief, what follows is the full Introduction and Summary of Argument:

INTRODUCTION AND SUMMARY OF
ARGUMENT

Over twenty years ago, this Court acknowledged “an embarrassing diversity of judicial opinion” on “the extent to which a claim of malicious prosecution is actionable under § 1983.” Albright v. Oliver, 510 U.S. 266, 270 n.4 (1994) (plurality opinion). This embarrassment continues, seriously impeding the vindication of the Fourteenth Amendment and other constitutional rights. The time has come to answer the fundamental issues raised by the Question Presented, which as the certiorari petition recognized (at 10-11, 21, 25-26), necessarily include whether the elements of the common law malicious prosecution tort—and the favorable termination element in particular— apply to Petitioner’s § 1983 claim.

The only defensible answer to that crucial statutory interpretation question is that the common law elements of malicious prosecution should play no independent role in determining the scope of claims under 42 U.S.C. § 1983. Section 1983 created a federal statutory remedy for constitutional violations perpetrated by state actors, whereas malicious prosecution is a common law tort. To describe a § 1983 claim as “malicious prosecution” is a misnomer that directs attention away from the real inquiry—the elements of the constitutional provision underlying the particular § 1983 claim—and improperly focuses instead on the elements of the malicious prosecution tort. In this respect the Seventh Circuit gets it right while other circuits do not: “[I]f a plaintiff can establish a violation of the fourth (or any other) amendment there is nothing but confusion to be gained by calling the legal theory ‘malicious prosecution.’” Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001).

Attempts to analogize between so-called § 1983 “malicious prosecution” claims and the common law elements of malicious prosecution have caused a great deal of confusion in the lower courts. The en banc Fifth Circuit described its own “precedent governing § 1983 malicious prosecution claims” as “a mix of misstatements and omissions” that has led to “inconsistencies and difficulties.” Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc). And the Fifth Circuit acknowledged that it is “not alone in this drift. Other circuits have traveled uneven paths as well, and numerous approaches have developed after Albright.” Ibid.; see generally Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 §§ 3:66-3:67 (4th ed. 2015) (collecting and analyzing post-Albright cases in the circuits, and arguing that malicious prosecution law should not dictate scope of § 1983).

Petitioner tries to take advantage of this confusion to save his § 1983 “malicious prosecution” claim from dismissal on statute of limitations grounds. He maintains that § 1983 imports the “favorable termination” element of common law malicious prosecution, which would have prevented accrual of his claim until he was released and the charges against him dropped. Such a maneuver cannot be squared with § 1983 or this Court’s precedents.

1. Contrary to the rule that Petitioner needs to prevail, the elements of common law torts like malicious prosecution do not dictate the elements of a § 1983 claim. Nothing in the text of § 1983, its legislative history, or its purposes indicates that Congress intended to merely duplicate common law torts. Section 1983 by its own language was enacted to enforce the “rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. Regardless of any superficial similarity between particular § 1983 actions and particular tort actions, the vital constitutional interests served by § 1983 are distinct from and independent of the principles that animate tort law.

The Court has consistently reaffirmed that constitutional deprivations are central to § 1983 claims. Thus, the statutory cause of action may be interpreted against the “background of tort liability,” but only to implement § 1983, not to define its scope. Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled on other grounds by Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978). At most, common law principles can fill gaps as necessary to effectuate a damages remedy for constitutional violations.

2. Importing the common law elements of malicious prosecution into § 1983 would be particularly ill-advised. The last two decades have demonstrated that attempts to do so result only in confusion. Indeed, the fundamental disconnect between the elements of a § 1983 claim and the elements of a common law malicious prosecution claim virtually guarantees confusion. In addition, the entire enterprise of attempting to interpret a supposedly uniform federal cause of action based on tort law that varies not only from one state to another, but from the time of § 1983’s enactment in 1871 to the present day, is just not workable.

Finally, as a matter of § 1983 law and policy, there is no good reason to make any of the traditional elements of malicious prosecution into elements of Petitioner’s § 1983 claim for unlawful pretrial detention. Several of the malicious prosecution elements (including the favorable termination requirement) contradict established § 1983 precedents. And others (such as the absence of probable cause) make sense only to the extent that the underlying constitutional right requires their consideration. In short, this Court’s interpretation of § 1983 should not be governed by the common law tort of malicious prosecution.

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Written by snahmod

August 16, 2016 at 8:58 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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August 2, 2016 at 2:00 pm