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Archive for the ‘Civil Rights – Section 1983’ Category

“Swatting” and Section 1983: Some Preliminary Thoughts

Suppose, either as some sort of misguided prank or motivated by malice, an individual calls the police anonymously and informs them falsely that a man has killed his father and is holding other persons hostage at a particular address. Members of a police SWAT team arrive at the location in the early evening, surround the location and call on the man inside to come out. They also call out directions to the man–who apparently has no idea of what’s going on–to keep his hands up. However, for whatever reason the man appears to lower his hands and at that point one of the officers shoots and kills him.

This is obviously a real tragedy. But I would like to make some preliminary observations about the section 1983 liability issues potentially arising out of these circumstances.

1. The constitutionality of the reliance on the anonymous tip.

When the SWAT team arrived at the decedent’s location, surrounded it, called on him to come out and to keep his hands up, they seized him for Fourth Amendment purposes. Did they have probable cause to do so in the first place? Were there exigent circumstances? If not, they violated the Fourth Amendment.

2. The constitutionality of the particular use of force here.

Whether they had probable cause to seize him in the first place, did they use excessive force when one of the officers shot and killed him (a second seizure)? If so, they violated the Fourth Amendment.

3. The relation between the two events.

This potentially raises a proximate cause issue. If the officers violated the Fourth Amendment with the initial seizure, then they would be liable in damages for that (assuming no qualified immunity protection). And if this violation was the result of the police department’s failure to train, then the city could also be liable in damages under section 1983 regardless of qualified immunity.

If the officers separately violated the Fourth Amendment when they shot and killed him, then they would be liable in damages for that as well (again, assuming no qualified immunity protection). And if this violation was the result of the police department’s failure to train, then here too the city could also be liable in damages under section 1983.

But if they only violated the Fourth Amendment with the initial seizure and did not violate the Fourth Amendment when they shot and killed him, then the question arises whether the initial Fourth Amendment violation (and the police department’s failure to train) was the proximate cause of the shooting and killing of decedent for which the officers (and possibly the city) would be liable.

This is comparable to the proximate cause issue implicated in the Supreme Court’s decision last Term in  County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), which I blogged about here:

See generally, on proximate cause and section 1983, chapter 3 in NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2017)(West/Westlaw).

4. The caller is not a state actor, although he knowingly provided a false tip to police officers who deal with emergency SWAT situations.

Merely notifying law enforcement officers who thereafter act independently of the caller (and not jointly with him) does not constitute state action. Accordingly, the caller did not violate the Fourth Amendment even if the SWAT team did. He would not be liable for damages under section 1983.

But perhaps tort liability could play a role here. If the caller intended that the police shoot the decedent, or if he knew with substantial certainty that decedent would be shot by them, the caller could be liable for battery. Alternatively, the caller could liable for his negligence in calling the police about an innocent person. After all, the reasonably foreseeable result of his call under these circumstances–falsely informing the police about killing the person’s father and holding hostages–is that the innocent person would be shot.

Of course, to make this remedy available as a practical matter, the caller must not be judgment proof.

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Written by snahmod

February 19, 2018 at 1:09 pm

Cert Granted in Lozman v. City of Riviera Beach: Section 1983 First Amendment Retaliatory Arrest Claims & Probable Cause

Suppose a section 1983 plaintiff alleges that a city had him arrested in retaliation for the exercise of his First Amendment rights. He claims that he was arrested (although never prosecuted) at a city council meeting when he got up to speak because he previously had criticized the city’s eminent domain redevelopment efforts and had also sued the city for violating the state’s Sunshine Act.

Ordinarily, such a plaintiff, in order to make out a section 1983 First Amendment retaliatory arrest claim, would only have to allege and prove that this impermissible retaliatory motive caused him harm, and the defendant would have the burden of disproving the absence of but-for causation in order to escape liability. But here the city argued that even if its motive was impermissible under the First Amendment, there was probable cause–an objective Fourth Amendment standard–to arrest the plaintiff anyway, and that this constituted a defense to the plaintiff’s First Amendment retaliation claim. What result?

The Supreme Court granted certiorari on November 13, 2017, in Lozman v. City of Riviera Beach, No. 17-21, to deal with this very issue. In Lozman, the Eleventh Circuit ruled that probable cause is indeed a defense to a section 1983 First Amendment retaliatory arrest claim. Specifically, that court determined that a section 1983 retaliatory arrest plaintiff must allege and prove not only the retaliatory motive but the absence of probable cause as well. In other words, the absence of probable cause is an element of the section 1983 plaintiff’s retaliatory arrest claim.

This decision was based on the Supreme Court’s decision in Hartman v. Moore,  547 U.S. 250 (2006), which held that for section 1983 retaliatory prosecution claims against law enforcement officers (prosecutors themselves are absolutely immune from damages liability for their decision to prosecute), the plaintiff must allege and prove not only the impermissible motive but the absence of probable cause as well. The Court reasoned that there was a presumption of prosecutorial regularity that the section 1983 plaintiff must overcome as an element of his retaliatory prosecution case. Accordingly, as a matter of section 1983 statutory interpretation and policy (but not of constitutional law), the plaintiff should have this twin burden in retaliatory prosecution cases.

The Court in Hartman explained that a retaliatory prosecution case was very different from the usual First Amendment retaliation case that involves a relatively clear causal connection between the defendant’s impermissible motivation and the resulting injury to the plaintiff. It was appropriate in such cases to apply the Mount Healthy burden-shift rule under which the defendant has the burden of disproving but-for causation in order to prevail.

As discussed in a prior post, the Court had this same First Amendment retaliatory arrest issue before it previously in Reichle v. Howards, 566 U.S. 658 (2012). But it avoided addressing the merits by ruling for the individual defendants on qualified immunity grounds. See

Comment: The Court Should Reverse the Eleventh Circuit

In my view, the Court’s decision in Hartman should not be applied to First Amendment retaliatory arrest cases. The express reason for the Hartman rule is that First Amendment retaliatory prosecution cases involve a presumption of prosecutorial regularity. But this reason is clearly inapplicable where there is no prosecution and the constitutional challenge is to the arrest itself.

Moreover, First Amendment retaliatory arrest claims involve the impermissible motivation (a subjective inquiry) of law enforcement officers irrespective of probable cause, which is an objective inquiry. Under this objective inquiry, the existence of probable cause precludes a Fourth Amendment violation based on an arrest even where that arrest is grounded on an offense different from the offense for which probable cause is deemed to be present. This provides a great deal of protection for police officers who allegedly make arrests in violation of the Fourth Amendment. However, if a police officer arrests a person for racial reasons, and the claimed injury is grounded on those racial reasons, it should not matter for the Equal Protection claim–even if it would for a Fourth Amendment claim–that the officer had probable cause to do so. This reasoning should apply as well to section 1983 First Amendment retaliatory arrest claims.

It was always questionable whether the Court in Hartman should have allowed policy considerations to change the usual section 1983 causation rules in First Amendment retaliatory prosecution cases. Regardless, that reasoning should most definitely not be extended to First Amendment retaliatory arrest cases. Such policy considerations as are discussed in Hartman are most appropriately addressed, if they are to be addressed at all, as part of the qualified immunity inquiry, not the elements of the section 1983 retaliatory arrest claim.

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Written by snahmod

December 4, 2017 at 10:14 am

Proximate Cause and Section 1983 Damages: The Exclusionary Rule’s Attenuation Doctrine and Relating Remedy to Violation

I previously blogged about section 1983 damages actions, proximate cause and the Supreme Court’s decision in County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017). That post and important background can be found here :

This post continues that discussion of proximate cause and section 1983 damages actions but expands it to include the attenuation doctrine for the exclusionary rule as well as the general principle in equity cases that the scope of the constitutional violation determines the scope of the equitable remedy.

County of Los Angeles v. Mendez

Recall that in Mendez, the Court remanded to the Ninth Circuit to determine whether the warrantless entry into the plaintiff’s residence without exigent circumstances–a violation of the Fourth Amendment–was the proximate cause of the reasonable shooting of the plaintiff by police officers when he picked up his BB gun as they entered.

At issue in Mendez will be the proximate cause approach on remand: is it the reasonable foreseeability approach, the scope of the risk approach or some combination? A reasonable forseeability approach is potentially broader, more pro-plaintiff and means the the proximate cause issue is left to the jury where reasonable persons can differ. A scope of the risk approach is potentially narrower and more pro-defendant. It gives the court a bigger role because it implicates the legal question of the purposes of the Fourth Amendment’s warrant requirement–the protection of the home and privacy–and whether what happened to the plaintiff was within the scope of those purposes.

The Exclusionary Rule and the Attenuation Doctrine

A comparable proximate cause issue arises in connection with the Fourth Amendment’s exclusionary rule and the fruit of the poisonous tree. Here, the question is whether the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression. If it is too attenuated, suppression will not promote deterrence and therefore the evidence should be admitted. See Utah v. Streiff, 136 S. Ct. 2056 (2016).

Note that the proximate cause focus in the exclusionary rule setting is deterrence while in the section 1983 setting it is both compensation and deterrence. Interestingly, in Streiff, where the Court admitted the evidence, Justice Kagan dissented, arguing that the correct attenuation doctrine/proximate cause approach there was reasonable foreseeability and that the evidence should therefore not have been admitted.

The Broader Question: Relation Between Constitutional Violation and Remedy

As I see it, these kinds of proximate cause issues are part of a broader question: the relation between the scope of the constitutional violation and the scope of the judicial remedy.  In the famous school desegregation case, Swann v. Charlotte-Mecklenburg School District, 402 U.S. 1 (1971), the Court set out the general equitable rule for judicial desegregation decrees: the scope of the equal protection violation–de jure segregation encompassing every aspect of school operations–permitted district courts to issue similarly broad remedial decrees so as to eliminate every vestige of the de jure segregation.

These proximate cause/attenuation doctrine issues in the section 1983 and exclusionary rule situations therefore implicate attempts to make the remedy coextensive with the constitutional violation. But the proximate cause/attenuation rules are not identical in the two situations, according to a majority of the Supreme Court, because the policy considerations are different.

I personally would reason in a pro-plaintiff and a pro-criminal defendant way in both situations, with the result that the reasonable foreseeability approach should govern. At the very least, it should govern in the section 1983 damages situation because both compensation and deterrence are critical purposes of section 1983 liability.

Thus, I would apply the reasonable foreseeability approach in Mendez on remand.


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Written by snahmod

October 30, 2017 at 9:58 am

The Supreme Court Comments on the Intracorporate Conspiracy Doctrine and Indirectly on Section 1983

I blogged about the intracorporate conspiracy doctrine and its relation to section 1983 on October 8, 2012, and that post should be read here for background:

More recently, the Supreme Court weighed in on this doctrine in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017) which involved § 1985(3) civil conspiracy claims (in addition to much-publicized Bivens claims) alleging unconstitutional prisoner abuse and unconstitutional conditions of confinement created by high-ranking federal officials—executives and wardens—after the 9-11 terrorist attacks. The plaintiffs were of Arab or South Asian descent.

The Supreme Court ruled that the defendants were protected by qualified immunity from the § 1985(3) civil conspiracy claims. It stated: “[R]easonable officials in [defendants’] position would not have known, and could not have predicted, that § 1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged.” See, on qualified immunity, chapter 8, NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2017)(West).

What is important for present purposes is that, in reaching its qualified immunity conclusion, the Court emphasized that the alleged conspiracy was between or among officers in the same branch of the federal government (the Executive), and in the same department (the Department of Justice). The Court then commented that it had not approved of the use of the intracorporate conspiracy doctrine in the § 1985(3) setting. In addition, the circuits were divided on this issue.

For these reasons, the defendants were protected by qualified immunity: “When the courts of appeals are divided on an issue so central to the cause of action alleged, a reasonable official lacks the notice required before imposing liability.”

In light of Ziglar, then, it is fair to say that the applicability of the intracorporate conspiracy doctrine in the § 1983 setting is similarly an open question.


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August 22, 2017 at 9:39 am

Does the Fourth Amendment’s Exclusionary Rule Apply in Section 1983 Cases? The Circuits Answer No

In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court held that the exclusionary rule—-under which evidence obtained by law enforcement officers who engage in searches or seizures in violation of the Fourth Amendment may not ordinarily be used against criminal defendants at trial—-applied to the states. This Fourth Amendment exclusionary rule remains the general rule, although the Court has introduced various exceptions to it. For example, in United States v. Leon, 468 U.S. 897 (1984), the Supreme Court created a good-faith exception to the exclusionary rule in criminal cases where a search warrant is obtained from a neutral magistrate.

Does the Fourth Amendment’s exclusionary rule also apply in section 1983 cases where, say, police officer defendants wish to introduce evidence against plaintiffs and in support of their defense position? In Lingo v. City of Salem, 832 F.3d 953 (9th Cir. 2016), the Ninth Circuit said that it was joining the First, Second, Fifth and Eleventh Circuits in holding that the exclusionary rule does not apply in section 1983 cases.

In Lingo, the plaintiff arrestee sued police officers alleging an unconstitutional arrest without probable cause that arose out of a violation of the Fourth Amendment when the officers entered the curtilage of her home to approach the back door. According to the plaintiff,  that initial unconstitutional entry led to the eventual discovery (through smell) of evidence of marijuana use, the “fruit” of the poisonous tree, and thereafter brought about her unconstitutional arrest. In the state court criminal case, the trial court agreed and suppressed this evidence on Fourth Amendment grounds, with the result that criminal charges were dismissed.

In this section 1983 case, the plaintiff argued that the officers should not be permitted to introduce evidence obtained in violation of the Fourth Amendment to show probable cause to arrest her. Rejecting her argument, the Ninth Circuit held that this evidence, even though obtained in violation of the Fourth Amendment, was indeed admissible.

The Ninth Circuit reasoned that, unlike in criminal cases where the purpose of the exclusionary rule is to remove any incentive for police to violate the Fourth Amendment and incriminate a suspect, the need for deterrence was minimal in section 1983 cases. And even if there were some need for deterrence, the costs of the exclusionary rule to police officers would be excessive. Specifically, the court explained:

[Compared to removing the incentive to violate the Fourth Amendment in criminal cases, in section 1983 cases] the need for deterrence is minimal. Here, application of the exclusionary rule would not prevent the State from using illegally obtained evidence against someone, but instead would prevent state actors merely from defending themselves against a claim for monetary damages. Exclusion of evidence in this context would not remove any preexisting incentive that the government might have to seize evidence unlawfully. It would simply increase state actors’ financial exposure in tort cases that happen to involve illegally seized evidence. In effect, section 1983 plaintiffs would receive a windfall allowing them to prevail on tort claims that might otherwise have been defeated if critical evidence had not been suppressed. Even if such application of the rule might in some way deter violative conduct, that deterrence would impose an extreme cost to law enforcement officers that is not generally countenanced by the doctrine.

The Ninth Circuit concluded:

[N]othing within the fruit-of-the-poisonous-tree doctrine suggests that an officer must ignore facts that would give him probable cause to arrest a person merely because those facts were procured through an unlawful search. Indeed, as a general matter, probable cause determinations depend on the substance of the information known to the officer, not whether that information would be admissible in court.


1. The reasoning and result in Lingo come as no surprise. The Supreme Court has not extended the Fourth Amendment’s exclusionary rule beyond criminal trials.

2. Also, as noted above, the four other circuits that have addressed this issue in a section 1983 context all reached the same conclusion.

3. The Ninth Circuit’s cost-benefit analysis in Lingo is worth noting.

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July 18, 2017 at 1:36 pm

County of Los Angeles v. Mendez: Supreme Court Rejects “Provocation Rule,” Remands On Proximate Cause

On May 30, 2017, the Supreme Court handed down a unanimous decision in County of Los Angeles v. Mendez (No. 16-369), vacating and remanding, 815 F.3d 1178 (9th Cir. 2016).

(I blogged about the issues raised by Mendez on May 10, 2017).

As I expected, the Court, in an opinion by Justice Alito (Justice Gorsuch did not participate), rejected the Ninth Circuit’s provocation rule. However, the Court did not decide the alternative proximate cause issue, but instead remanded.


In Mendez, police officers, looking for a felony parolee-at-large with an outstanding arrest warrant, engaged in a warrantless entry into plaintiff’s residence (a shack) without exigent circumstances (they should have secured a search warrant), and without knocking and announcing, both actions in violation of the Fourth Amendment. They thereby allegedly provoked the plaintiff resident’s grabbing a gun (it turned out to be a BB gun that resembled a small caliber rifle), which in turn led to their shooting and seriously injuring the plaintiff.

The question was whether the plaintiff had a section 1983 Fourth Amendment claim against the officers for damages resulting from the use of deadly force.  The two theories underlying such liability were that the warrantless entry into the shack either (1) provoked the subsequent events within the meaning of the Ninth Circuit’s provocation rule, or (2) proximately caused the use of the deadly force which–even if reasonable when viewed in isolation–was the reasonably foreseeable result of the warrantless entry that violated the Fourth Amendment. Or was the reasonable use of deadly force an event that broke the chain of causation under the second theory?

In the posture of case when it arrived at the Supreme Court, the Ninth Circuit had determined that even though the officers violated the Fourth Amendment by not knocking and announcing, they were protected by qualified immunity from damages liability for this constitutional violation. This effectively eliminated that particular Fourth Amendment violation–the failure to knock and announce–from serving as the basis of section 1983 liability for the shooting. (See chapter 8 of NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016) on qualified immunity).

However, and crucial for present purposes, the Ninth Circuit concluded that the warrantless entry into the shack violated the Fourth Amendment and was not protected by qualified immunity. And even though the shooting was reasonable and not excessive under Graham v. Connor, 490 U.S. 386 (1989), the officers were still liable under the circuit’s provocation rule: they had intentionally and recklessly provoked the shooting by entering the shack without a search warrant in violation of the Fourth Amendment. In the alternative, the Ninth Circuit further reasoned that the officers were liable because they proximately caused the shooting of the plaintiff.

The Opinion in County of Los Angeles v. Mendez

The Court unanimously reversed. It rejected the Ninth Circuit’s provocation rule: “The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” It emphasized that Graham v. Connor was the settled and exclusive framework for determining whether force used was excessive. This framework, focusing on the reasonableness of the force used, was objective in nature,  it addressed the facts and circumstances in each particular case and it determined reasonableness from the perspective of a reasonable officer on the scene, rather than with hindsight.

According to the Court, the Ninth Circuit’s provocation rule was inconsistent with Graham because it provided a “novel and unsupported path to liability” where the use of force was reasonable. The rule improperly “conflates distinct Fourth Amendment claims.” In so doing, it “permits excessive force claims that cannot succeed on their own terms.”

The Court then went on to reject the plaintiff’s attempts to limit the provocation rule to cases where (1) the separate constitutional violation creates the situation that led to the use of force and (2) the separate constitutional violation is committed intentionally or recklessly. Neither limitation solved the basic problem: the “unwarranted and illogical expansion of Graham.”

The Court concluded its analysis by reaffirming that the officers might conceivably be liable for damages proximately caused by their Fourth Amendment violation, namely, their warrantless entry into plaintiff’s shack. However, the Court emphasized that the proper proximate cause analysis “required consideration of the ‘forseeeability or the scope of the risk created by the predicate conduct,'” and the Ninth Circuit had not used this analysis in its alternative proximate cause ruling. Accordingly, the Court vacated the Ninth Circuit’s judgment and remanded to deal with the proximate cause issue.


1. The provocation rule was unique to the Ninth Circuit and its rejection in Mendez did not change section 1983 doctrine elsewhere.

2. The oral argument in Mendez focused on causation as well as the provocation rule. Several justices inquired into the proximate cause relationship between the failure to get a search warrant and the resulting (reasonable) use of deadly force. They asked whether the failure to get the search warrant made a difference in the plaintiff’s reaching for his BB gun, which resulted in the use of deadly force. They also asked whether the plaintiff’s reaching for his BB gun–and the officers’ subsequent use of deadly force–was within the scope of the risk created by the officers’ failure to get a search warrant. (This is classic tort law proximate cause talk).

These justices thereby appeared to signal to the lower courts and to the parties (on remand) that they were highly skeptical about the alleged proximate cause link between the failure to obtain a search warrant and the shooting of the plaintiff.

This is in contrast to the plaintiff’s far stronger proximate cause argument with regard to the risk of the plaintiff’s reaching for his BB gun–followed by the officers’ use of deadly force–that was created by the officers’ failure to knock and announce. But this Fourth Amendment violation was removed by the Ninth Circuit from the proximate cause analysis (and potential damages liability) by qualified immunity, as noted above.

3. Mendez did not change the circuits’ (and the Court’s) prevailing approach to proximate cause which focuses on reasonable foreseeability or the scope of the risk created by unconstitutional conduct. The results in individual cases may turn on how broadly or narrowly the scope of the risk created by the constitutional violation is defined. As in tort law, this is a question of policy.

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June 16, 2017 at 9:41 am

Manuel v. City of Joliet: The Court Rules Section 1983 “Malicious Prosecution” Claims Can Be Based on the Fourth Amendment But Otherwise Punts


Recall that 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.

Manuel, which was argued on October 5, 2016, had the potential to be a blockbuster section 1983 decision that transformed the section 1983 malicious prosecution landscape, especially for section 1983 claims brought for wrongful conviction and incarceration.

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 v. McCabe, 256  F.3d 747 (7th Cir. 2001), 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.”

This was the Question Presented in Manuel: “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 had all answered this question in the affirmative, while only the Seventh Circuit had answered in the negative.

Manuel raised two separate but related questions.

1. The first was whether the Fourth Amendment could be used as the basis for a section 1983 malicious prosecution claim, including for the period after so-called legal process began–when a judge determined that probable cause existed to hold the plaintiff.

2. The second, implied by the language of the Question Presented, and addressed by several of the Justices during oral argument, was whether the elements of the tort of malicious prosecution–including favorable termination as well as malice and absence of probable cause–should play any role in section 1983 claims challenging wrongful convictions and incarceration. This question was important under the facts in Manuel itself because, without a favorable termination requirement, the plaintiff’s section 1983 claim would be time-barred under the Illinois two-year statute of limitations even if it could be based on the Fourth Amendment.

The Supreme Court’s Decision: Reversed on the Fourth Amendment But Punting on “Malicious Prosecution”

On March 21, 2017, the Supreme Court reversed the Seventh Circuit’s decision that rejected the applicability of the Fourth Amendment after legal process has begun. In an opinion by Justice Kagan, the Court held that there is indeed a Fourth Amendment right to be free from seizure without probable cause that extends through the pretrial period, even though the seizure is “pursuant to legal process.” Specifically, the seizure occurs both before the onset of legal proceedings, i.e, the arrest, and after the onset of criminal proceedings, i.e., where a judge’s probable cause determination is based solely on a police officer’s false statements, as was allegedly the case in Manuel. The Court’s reasoning was similar to the “continuing seizure” approach of Justice Ginsburg’s concurrence in Albright v. Oliver, 510 U.S. 266 (1994).

However, the Court remanded to the Seventh Circuit on the favorable termination/accrual question after describing the opposing positions on the issue, including the observation that the United States agreed with the plaintiff in Manuel, as did eight of the ten circuits that have favorable termination requirements.

Justice Kagan’s opinion was joined by Chief Justice Roberts and Justices Kennedy, Breyer, Ginsburg and Sotomayor. Justices Thomas and Alito dissented, with Justice Alito, joined by Justice Thomas, arguing both that the Fourth Amendment was not applicable in Manuel and that the plaintiff was not entitled to the benefit of a unique malicious prosecution accrual rule based on a favorable termination requirement.


The Court’s decision on the Fourth Amendment only changes the law in the Seventh Circuit. However, the Court punted on the broader question whether common law malicious prosecution elements, including favorable termination, should play any role in section 1983 jurisprudence outside of situations covered by Heck v. Humphrey, 512 U.S. 477 (1994), where plaintiffs effectively challenge existing convictions.

These issues–raised, briefed and argued in Manuel– have been a matter of importance to me for some time. In fact, I wrote an amicus curia brief (posted previously) in support of the defendants in Manuel that deliberately did not take a position on the Fourth Amendment issue. Instead, the brief urged the Court to eliminate the confusion caused by the use of malicious prosecution terminology in section 1983 cases. The brief also maintained that the elimination of this terminology would be neutral in its effects on plaintiffs and defendants alike. My treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016)(West), has for years 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 provided the Court with its first opportunity in the twenty-three years since Albright v. Oliver to consider the elements of such claims. Regrettably, it did not do so in Manuel. Still, the Court will one day have to deal with these issues, including the favorable termination requirement.

When it does, recently confirmed Justice Gorsuch will be involved in the decision. And it is worth noting that then-Judge Gorsuch concurred in the judgment in Cordova v. City of Albuquerque, 816 F.3d 645 (10th Cir. 2016), where he came out against incorporating the common law tort elements of malicious prosecution, including favorable termination, in section 1983 cases.

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May 15, 2017 at 10:05 am