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Archive for the ‘Civil Rights – Section 1983’ Category

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

Background

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.

Comments

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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Written by snahmod

May 15, 2017 at 10:05 am

County of Los Angeles v. Mendez (pending): Section 1983, Proximate Cause and the Fourth Amendment

County of Los Angeles v. Mendez, No. 16-369 (argued March 22, 2017)

The Factual Background

Suppose that police officers, looking for a felony parolee-at-large with an outstanding arrest warrant, engage in a warrantless entry into a home without exigent circumstances (they should have secured a search warrant), and without knocking and announcing, in violation of the Fourth Amendment. They thereby allegedly “provoke” the plaintiff resident’s grabbing a gun (it turns out to be a BB gun), which in turn leads to a police officer’s shooting and seriously injuring the plaintiff.

The Proximate Cause Questions

Does the plaintiff have a section 1983 Fourth Amendment claim against the officer for damages resulting from the use of deadly force?  The theories underlying such liability are that the warrantless entry into the home either (1) “provoked” the subsequent events or (2)  was the proximate cause of 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?

These are the questions raised by Mendez v. County of Los Angeles, 815 F.3d 1178 (9th Cir. 2016), a Ninth Circuit decision that ruled for the resident, and as to which the Supreme Court has granted certiorari.

Specifically, in addition to the propriety of the Ninth Circuit’s questionable “provocation” rule, another aspect of the Question Presented is “whether, in an action brought under Section 1983, an incident giving rise to a reasonable use of force is an intervening, superseding event which breaks the chain of causation from a prior, unlawful entry in violation of the Fourth Amendment.”

Comments

There have been other section 1983 proximate cause cases before the Supreme Court, but this one is different because it raises reasonable foreseeability (and superseding cause) as the proximate cause test in a split-second decision making setting. Compare Malley v. Briggs, 475 U.S. 335 (1986), and Martinez v. California, 444 U.S. 277 (1980), both of which are discussed in sections 3:106-107 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016).

There is a critical complication in Mendez, however, that must be noted. The Ninth Circuit ruled in Mendez that the defendants did not violate clearly settled Fourth Amendment law in failing to knock and announce, even though they did violate the Fourth Amendment. That is, the defendants were protected by qualified immunity from damages liability-see Chapter 8 of my treatise–for their failure to knock and announce in violation of the Fourth Amendment, meaning that the proximate cause issue related to knock and announce may well disappear.

This is significant because it may weaken the plaintiff’s proximate cause argument. After all, isn’t the failure to knock and announce closely related in time and space to the plaintiff’s reaching for his BB gun? And isn’t this rather clearly reasonably foreseeable? On the other hand, how closely related in time and space is the defendants’ failure to obtain a search warrant to what happened later? Is this as clearly reasonably foreseeable?

The oral argument in Mendez focused on this issue, with various justices wondering about both the cause in fact and proximate cause relationship between the failure to get a search warrant and the resulting use of (constitutional) deadly force. They asked–cause in fact–whether the failure to get the search warrant made a difference in the plaintiff’s reaching for a gun (albeit a BB gun) that resulted in the use of deadly force. Several also skeptically asked–proximate cause–whether the plaintiff’s reaching for a gun was within the scope of the risk created by the failure to get a search warrant.

I suspect that a majority of the justices will rule for the defendants on this proximate cause issue. But going forward, much will depend on how the proximate cause opinion is written.

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Written by snahmod

May 10, 2017 at 10:22 am

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