Archive for the ‘Civil Rights – Section 1983’ Category
Is There a Fourth Amendment Seizure When a Person Flees?
The en banc Eighth Circuit was sharply divided about the existence of a Fourth Amendment seizure in a case where, among other things, a person fled after an officer in a police car stopped directly in front of him and his friend, one Michael Brown (yes, that Michael Brown, who was subsequently shot and killed by the police officer while also fleeing) and where the police officer yelled at them to “Get the f*ck on the sidewalk.” And because the Supreme subsequently denied certiorari, it did not decide the matter. Johnson v. City of Ferguson, Missouri, 864 F.3d 866, 873 (8th Cir. 2017), as corrected (July 31, 2017) and reh’g en banc granted, opinion vacated (Sept. 12, 2017) and on reh’g en banc, 926 F.3d 504 (8th Cir. 2019)(en banc), cert. denied, 2019 WL 6257423 (U.S. 2019)
In Johnson, the Eighth Circuit panel had initially found a seizure where “[the plaintiff] Johnson’s complaint alleged that Officer Wilson stopped his car at an angle, directly in front of Johnson and Brown, so as to block their path after yelling at them to ‘Get the f*ck on the sidewalk.’” For one thing, the plaintiff actually stopped when the defendant blocked his path. This was a submission to authority. For another, the stop was more than momentary even though the plaintiff fled after the defendant later shot the plaintiff’s companion.
Thereafter, however, the Eighth Circuit en banc disagreed with the panel and found that there was no seizure of the plaintiff under the circumstances. Among other considerations, the plaintiff conceded in the complaint that he and Brown were not ordered by the officer to stop. Also, the police vehicle did not prevent Johnson from crossing the sidewalk. Moreover, any physical contact by the officer was directed toward Brown in the first instance. “In a word, then, because Johnson himself was neither physically restrained nor prevented from proceeding to the sidewalk in compliance with [the officer’s] directive rather than fleeing as he did,” there was no seizure since Johnson did not submit to a show of authority.
Judge Melloy, joined by Chief Judge Smith and Judges Kelly and Erickson, dissented at length, arguing that there was indeed a Fourth Amendment seizure. 926 F.3d at 507. Judge Melloy explained in the following excerpt from his opinion (citations omitted):
“Here, I believe that Officer Wilson made a show of authority communicating that Johnson ‘was not at liberty to ignore the police presence and go about his business.’ As stated above, the only facts relevant at this procedural posture are those alleged in the complaint. And the Court must accept those facts as true and view them in the light most favorable to Johnson. To recap, Johnson’s complaint alleged the following facts relevant to this issue:
• As Johnson and Brown walked peacefully and ‘lawfully’ down the road, Officer Wilson, operating a marked police vehicle, approached Johnson and Brown, slowed his vehicle to a stop, and ordered them to ‘Get the f*ck on the sidewalk.’
• Officer Wilson continued to drive his vehicle several yards, then abruptly put his vehicle into reverse and parked his vehicle at an angle so as to block the paths of Johnson and Brown.
• Officer Wilson stopped his vehicle just inches from Brown and forcefully opened his door, striking Brown. Officer Wilson then reached through his window and grabbed Brown, who was closer to Officer Wilson than Johnson. Officer Wilson thereafter threatened to shoot his weapon. As Brown struggled to break free, Officer Wilson discharged his weapon twice, striking Brown in the arm. Surprised by Officer Wilson’s use of ‘excessive’ force and fearing for his life, Plaintiff Johnson ran away from Officer Wilson simultaneously with Brown.
By crudely ordering Johnson to move and then abruptly reversing his vehicle and stopping it inches away and directly in Johnson’s path, Officer Wilson communicated an intent to use a roadblock to stop Johnson’s movement. Despite Defendants’ (and amicus curiae’s) argument that the roadblock did not foreclose all of Johnson’s avenues of travel, a reasonable person would understand the roadblock’s purpose was to serve as a ‘physical obstacle’ conveying an order to stop—not an order to go around the vehicle and continue on one’s way. Officer Wilson’s actions thus would convey to the ‘reasonable person that he was not at liberty to ignore the police presence and go about his business.'”
Comment
I have nothing to add except to say that the dissenters have the better of the argument.
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Off-Duty Police Officers, “Private” Conduct and State Action
Section 1983 damages liability for constitutional violations depends on the threshold existence of a defendant’s state action within the meaning of the 14th Amendment and on the related statutory requirement of color of law. Fortunately, the general rule about the relationship between state action and color of law may be simply put: where there is state action under the 14th Amendment, there is color of law under section 1983. But this means that the (sometimes difficult) 14th Amendment state action question must be addressed in every section 1983 case.
Categories of State Action Cases
The relatively easy state action cases are those in which a state or local government official or employee has exercised government power, either pursuant to state law or in violation of state law, and deprived a person of his or her 14th Amendment rights. The harder and more troublesome, but more typical, state action cases are those in which a private person or entity is sued for damages under section 1983. The question in such cases is whether the challenged nominally private conduct can be attributed to the state or local government. The applicable tests in such cases are the nexus test, the symbiotic relationship test, the public function test and the so-called “entwinement” test.
(Search “state action” on this blog for related posts. In addition, I discuss these state action tests at length in ch. 2 of my Treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019)(West/Westlaw)).
The “Converse” of the Typical State Action Case
But there is another category of state action cases that raise what I call the “converse” of the typical state action question. Such cases address the issue of when a state or local government official, one who is ordinarily a state actor, loses that status because he or she has acted as a private person and is consequently not suable under section 1983.
Here are two cases of interest, one from the Seventh Circuit and the other from the Ninth Circuit, finding that the defendant police officers, sued for damages under section 1983 for alleged constitutional violations, were not state actors, and thus could not be liable under section 1983.
(Many other “converse” state action cases from the circuits are collected in ch. 2 of my Treatise).
The Barnes Case from the Seventh Circuit
Barnes v. City of Centralia, 2019 WL 6318087 (7th Cir. 2019), involved a police officer against whom threatening statements were posted on social media by a suspected gang member. The officer submitted a complaint against the suspected gang member who was then arrested. This was followed by a criminal prosecution and the dismissal of charges. The suspected gang member then sued the police officer and the city under section 1983 for violating her constitutional rights.
According to the Seventh Circuit, the officer’s conduct, which was limited to his submitting a complaint, was that of a private citizen, and not that of an investigating officer. Submitting the complaint was the extent of the officer’s participation. He did not arrest the plaintiff and had no role in that arrest; he did not even know what crimes the plaintiff would be charged with. The officer’s report therefore did not involve any exercise by him of state authority.
The Hyun Ju Park Case from the Ninth Circuit
Hyun Ju Park v. City and County of Honolulu, 2020 WL 1225271 (9th Cir. 2020), dealt with two off-duty police officers who watched as their intoxicated off-duty colleague decided to inspect his gun—which the police department authorized him to carry–at a bar to ensure that it was loaded. They also watched as their colleague attempted recklessly to load his already loaded gun, which then accidentally discharged, with a single bullet striking the plaintiff bartender and causing serious physical harm.
The Eighth Circuit found no state action on the part of these two defendants (the third intoxicated defendant had settled separately with the plaintiff) who were sued for violating substantive due process. They were not state actors for a number of reasons. Neither one exercised nor purported to exercise official responsibilities. Both were off-duty, dressed in plain clothes, were drinking as private citizens at a bar and never identified themselves as police officers. Even when they saw the third officer pull out his gun, they did not act or purport to act in the performance of their official duties.
(Judge Smith concurred on the state action issue but dissented on the separate question of whether the city, which was also sued, could be sued for its official policy or custom; the majority held that it could not).
Comments
1. Notice that in both cases, the two circuits soundly addressed the state action question not abstractly but rather in terms of the particular fact patterns they confronted. The state action question must be decided on a case-by-case basis. There are relatively few, if any, bright line rules.
2. The Barnes case is consistent with the many circuit court decisions holding that a private person who merely reports a possible crime to law enforcement authorities does not thereby become a state actor subject to potential section 1983 damages liability.
3. In Barnes, there is a possible alternative, and non-state action, basis for the decision. Even if the officer’s submission of the complaint were state action, it was not the proximate cause of any resulting 14th Amendment violations. Because he purportedly had no role in the arrest, did not know what crimes the plaintiff would be charged with and was not responsible for the prosecution, the conduct of others involved in those post-complaint decisions constituted a superseding cause breaking the chain of causation. (Search “proximate cause” on this blog for related posts. In addition, I discuss proximate cause at length in ch. 3 of my Treatise).
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The George Floyd Case and Section 1983: A Police Officer’s Constitutional Duty to Intervene
The Intervention Question
Suppose a police officer continues to use life-endangering force even after it is obvious that a misdemeanor arrestee (who has no weapon) is under control and not a danger to others, including police officers. As a result of this use of excessive force, the arrestee dies. This is a violation of clearly settled Fourth Amendment law in every circuit and exposes that officer to potential section 1983 damages liability. If these turn out to be the facts in the George Floyd case, as appears likely at the time of this writing, the result would be the same.
Suppose further that other police officers are present, witness this behavior, have a realistic opportunity to stop the first officer’s unconstitutional use of force but do not act to prevent it. Are they also potentially liable for section 1983 damages for the death of the arrestee because they failed to intervene when they could have, and thus failed to prevent what happened?
The Short Answer
The short answer is YES: they have breached their constitutional duty to stop the first police officer from continuing to use life-endangering force against the arrestee, thereby rendering them potentially liable for section 1983 damages. Again, if these turn out to be the facts in the George Floyd case, the result would be the same: these police officers would potentially be liable for damages under section 1983 for their failure to intervene and to prevent what happened. Moreover, they would not be protected by qualified immunity because they would have violated clearly settled law.
The Longer Answer: The Clearly-Established Legal Background
This is not a new issue. In the seminal decision in Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972), the Seventh Circuit held that police officers have a due process duty to protect persons from the unwarranted brutality of their fellow officers that occurs in their presence. According to the court, non-involvement will not do where intervention is possible.
Significantly, this duty to intervene even requires subordinates to protect persons from the unconstitutional conduct of superiors or supervisors. In this regard, Byrd was read broadly by the Eighth Circuit in Putman v. Gerloff, 639 F.2d 415 (8th Cir. 1981), to impose liability on a subordinate police officer for failure to intervene against his superior where the subordinate was present and knew what his superior was doing.
Along the same lines, the Eleventh Circuit declared: “If a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable under Section 1983.” Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986).
In a useful statement of the general rule, the Second Circuit said in Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (citations omitted):
It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence. An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1) that excessive force is being used; (2) that a citizen has been unjustifiably arrested; or (3) that any constitutional violation has been committed by a law enforcement official. In order for liability to attach, there must have been a realistic opportunity to intervene to prevent the harm from occurring. Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.
What is a Realistic Opportunity to Intervene?
Consider Grider v. Bowling, 785 F.3d 1248 (8th Cir. 2015), where the plaintiff sued a police officer—the relevant defendant here—who had arrested and handcuffed him, followed by another police officer who arrived in his vehicle, ran toward the plaintiff and the arresting police officer and kicked the plaintiff in the head, causing serious harm. The arresting officer and the kicking officer did not communicate before the attack and the arresting officer did not stop the attack. Reversing the district court in this regard, the Eighth Circuit found that the arresting officer was not liable for the kicking officer’s use of excessive force on a failure to protect theory: there was no evidence that the defendant was aware of the kick before it occurred or that he had the opportunity to prevent it. The kicking officer said nothing before he attacked the plaintiff and there was only one kick.
Comment
1. While the Seventh Circuit’s seminal Byrd decision put the duty to intervene in due process terms, the Eighth Circuit, in Hicks v. Norwood, 640 F.3d 839 (8th Cir. 2011), put an officer’s duty to intervene to protect an arrestee from the use of excessive force by another officer in Fourth Amendment terms. However, in the case before it, the court found that there was no Fourth Amendment liability for failing to intervene because the other officer did not use excessive force.
2. There are relatively few affirmative federal constitutional duties imposed on state and local governments and their officials and employees. See, for example, DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), which declared that “nothing in the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” The George Floyd case and cases like it are distinguishable because they involve police officers, state actors, who fail to prevent “invasions” by other police officers who are also state actors.
2. I expect that any section 1983 damages claims against the police officers in the George Floyd case will settle. There may even be a viable section 1983 damages claim against the city for failure to train, a topic beyond the scope of this post.
3. I discuss the duty to intervene in much more detail in Chapter 3 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2020; West/Westlaw).
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After Janus, Are Public Employee Unions Subject to Section 1983 Damages Liability?
The Background: The Supreme Court’s Janus Decision
Recall the Supreme Court’s blockbuster decision in Janus v. AFSCME, 138 S. Ct. 2448 (2018)(Janus I), overruling Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), and holding that it now violates the First Amendment rights of union nonmembers for state and local governments, and for public employee unions, to compulsorily withhold fair-share or agency fees from those nonmembers.
Question: after Janus, do union nonmembers have viable section 1983 damages claims against the public employee unions that previously received those fair-share or agency fees, at least for the period of time permitted under the forum state’s statute of limitations?
The Seventh Circuit’s Section 1983 Janus Decision
In Janus v. AFSCME, 2019 WL 5704367 (7th Cir. 2019)(Janus II), petition for certiorari filed, a non-union state employee sued a public employee union under §1983 and the First Amendment for damages to recover the fair-share fees he had previously paid to the union before the Supreme Court’s decision was handed down.
The Seventh Circuit first ruled that the union acted under color of law, and was thus subject to section 1983, because its receipt of fair share fees from the state pursuant to the collective bargaining agreement was attributable to the state. Here, the union was a joint participant in the agency fee arrangement because the state deducted fair share fees from employees’ paychecks and transferred that money to the union which spent it pursuant to the collective bargaining agreement on labor-management issues. The court then went on to determine that Janus I was retroactive.
Finally, the Seventh Circuit found that the union was protected by a good faith defense. After analyzing Wyatt v. Cole, 504 U.S. 158 (1992), a case involving the private use of state attachment procedures, the court reasoned that the good faith defense articulated there applied here as well. It commented that it was “join[ing] its sister circuits in recognizing that, under appropriate circumstances, a private party that acts under color of law for purposes of section 1983 may defend on the ground that it proceeded in good faith.” It declared, relying on Wyatt, that the good faith defense applied to the public union because it had reasonably relied on then-established First Amendment law. The Seventh Circuit relied by analogy on the tort of abuse of process with its good faith “defense,” as well as on the “appropriateness of allowing a good-faith defense on its own terms.” Thus, the plaintiff was not entitled to money damages. Judge Manion concurred, 2019 WL 5704367, *12, pointing out that public unions had received a “windfall.”
Thereafter, the Sixth and Ninth Circuits joined the Seventh Circuit in so holding. Lee v. Ohio Education Assn., 2020 881265 (6th Cir. 2020) and Danielson v. Inslee, 2019 WL 7182203 (9th Cir.2019).
Comment
The decision on which Janus II relied, Wyatt v. Cole, soundly held, in my opinion, that qualified immunity does not protect a private defendant who uses unconstitutional state attachment procedures that violate procedural due process. Under a functional approach, this conduct is not governmental and thus does not merit qualified immunity protection.
On the other hand, a kind of good faith defense, with both subjective (honest belief) and objective (reasonable belief) components, would be appropriate, according to various justices in Wyatt. As a matter of policy, we want private parties to rely on the law rather than act illegally. Also, it would be unfair to subject a private party who guesses wrong about the unconstitutionality of a state attachment statute to section 1983 damages liability.
This good faith defense thus differs from qualified immunity in two ways: an immediate interlocutory appeal from a district court’s denial of the good faith defense on summary judgment or on motion to dismiss is not available, and the private defendant must honestly (and reasonably) believe that he or she acted constitutionally.
Significantly, after Wyatt, the Court handed down two private party immunity decisions that are rather clearly in tension with one another. One, Richardson v. McKnight, 117 S. Ct. 2100 (1997), held in an opinion by Justice Breyer that prison guards who are employed by a private prison management firm are not protected by qualified immunity. He improperly, in my view, focused on history and marketplace incentives rather than on the government function that such private prison guards perform. They should have been protected by qualified immunity.
The other, Filarsky v. Delia, 566 U.S. 377 (2012), unanimously and soundly held that a private attorney retained to work with government employees in conducting an internal affairs investigation was protected by qualified immunity. Note that the Court strained to distinguish Richardson as a “self consciously” narrow decision emphasizing the particular circumstances there.
In this light, the Seventh Circuit’s decision in Janus II appears to be correct. The challenged conduct here is not governmental in nature but still, under Wyatt, it should be protected at least by the good faith defense. Before Janus I was handed down, the law of the land was Abood and it was on this Supreme Court decision that the public employee union relied. This belief was both honest and reasonable at the time.
All of this is not to say, of course, that I support the Court’s current qualified immunity jurisprudence. I do not, as evidenced by a search of this blog for “qualified immunity” and by the analysis of qualified immunity in my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2019)(West/Westlaw).
In any event, since a petition for certiorari in pending in Janus II, we may shortly see whether the Supreme Court weighs in on these good faith defense issues.
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Removal, Attorney’s Fees and the Crucial Individual-Official Capacity Distinction
Some time ago I posted about the need for attorneys to understand the crucial distinction between individual and official capacity claims brought under section 1983. Here is that post: https://nahmodlaw.com/2018/05/31/attorneys-must-at-their-peril-understand-the-official-individual-capacity-distinction-in-section-1983-damages-cases/
This crucial distinction emerged in a somewhat unusual Third Circuit decision involving removal and attorney’s fees, but this time in a non-section 1983 prospective relief situation.
In League of Women Voters of Pennsylvania v. Commonwealth of Pennsylvania, 2019 WL 1782839 (3rd Cir. 2019), one of the defendants, a senator who was the state senate pro tempore, had been sued for prospective relief in his official capacity by various plaintiffs challenging Pennsylvania’s 2011 redistricting plan under state law only. He improperly removed the plaintiffs’ state suit to federal court under 28 U.S.C. § 1441(b) without an objectively reasonable basis for doing so, because there were no federal claims. On remand, the district court ordered the senator to pay fees and costs personally pursuant to §1447(c).
On appeal, the Third Circuit affirmed the fees and costs award to the plaintiffs, but it reversed the aspect of the district court’s decision that made the senator personally liable. In this case of first impression on the matter, the court reasoned that the senator was a party to the prospective relief lawsuit only in his official capacity, not his individual capacity, and thus he should not be forced to pay personally. Further, the district court made no separate finding of bad faith on the part of the senator as a basis for awarding fees and costs as a sanction. In short, the district court did not have power to sanction a non-party.
The lesson here is, once again, that this distinction is ignored at the attorney’s peril, regardless of whether a lawsuit seeks damages or prospective relief.
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Heck Accrual, Section 1983 and Custody: An Important 2020 Seventh Circuit Decision
There is a special, and quite complicated, accrual rule, set out in Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the section 1983 plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action. In such cases, the section 1983 claim does not accrue until the underlying conviction is overturned or vacated. This accrual rule arises, according to the Supreme Court, at the “intersection” of section 1983 and habeas corpus.
(For background, you can find earlier posts by searching “Heck”. For much more, you can consult Chapter 9 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2019)(West/Westlaw)).
A “Hypothetical”
But suppose a situation where a section 1983 plaintiff has already served a lengthy sentence for a serious crime he has consistently maintained he never committed (but was framed for). He can no longer get habeas relief, because he is no longer in custody. Suppose further that he is subsequently pardoned by the governor.
When does his section 1983 claim alleging he was framed accrue: when he was released from custody or when he was pardoned by the governor? You may recognize this kind of question from Justice Souter’s concurring opinion in Spencer v. Kemna, 523 U.S. 1 (1998) and from the comments of other justices.
The Seventh Circuit’s Decision in Savory v. Cannon
In Savory v. Cannon, 2020 WL 240447, *9, *17 (7th Cir. 2020), an important Seventh Circuit decision with a dissent by Judge Easterbrook, the majority declared: “Heck controls the outcome where a section 1983 claim implies the invalidity of the conviction of the sentence, regardless of the availability of habeas relief.”
In Savory, the plaintiff, who spent 30 years in prison for a double murder he insisted he never committed and who was paroled in December 2006, had his sentence commuted in December 2011 and was pardoned by the Illinois governor on January 12, 2015. He then sued a city and certain city police officers on January 11, 2017 (less than two years after the pardon) alleging that he was framed and asserting various constitutional violations. Reversing the district court, the Seventh Circuit, applying Heck, determined that the plaintiff’s claims were timely under the Illinois two-year limitations period. The Heck bar was lifted and his claims did not accrue until he was pardoned by the governor on January 12, 2015, not earlier when his parole had been terminated in December 2011 by the commutation of his sentence and when he could therefore no longer seek habeas relief.
The Seventh Circuit, reasoning that the plaintiff’s claims most resembled the common-law tort of malicious prosecution, relied both on Heck and on the Court’s fabrication of evidence accrual decision in McDonough v. Smith, 139 S. Ct. 2149 (2019)(search this blog for “McDonough”). It expressly rejected the defense argument, based on dicta of several Supreme Court justices (including Justice Souter) in various concurring and dissenting opinions, for an accrual rule tied to the end of custody, namely, December 2011. It also acknowledged that the language and reasoning in several of its prior decisions “ha[d] created confusion regarding the applicability of Heck in cases where habeas relief is not available.”
Judge Easterbook dissented, 2020 WL240447, *18, arguing that the majority should have adopted a Heck accrual rule tied to the end of custody. He explained that the Seventh Circuit “should be equally concerned about a rule starting the time so late that claims never accrue [as it is ‘about a rule starting the time so early that legitimate claims would be lost.’].”
The Seventh Circuit’s approach to Heck accrual obviously has significant implications for the timeliness of section 1983 litigation where falsely convicted persons have served their sentences, are no longer in custody, are subsequently exonerated and now seek section 1983 damages recourse against those responsible for their convictions.
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Finally! A State’s Highest Court Creates Clearly Settled Law
Whose Decisions Determine Clearly Settled Federal Constitutional Law?
We all know that in order for a state or local government official to be liable for damages in his or her individual (not official) capacity under section 1983, that official must have violated clearly settled federal constitutional law as of the time of the challenged conduct. Otherwise, that official is protected by qualified immunity and is not liable for damages.
The conventional, oft-repeated approach is that in making the clearly settled law inquiry, we look first for apposite Supreme Court decisions. If there are none, then we look to the particular circuit’s decisions to determine whether clearly settled law existed at the time. If there are no such apposite decisions in the particular circuit, we look to the other circuits to determine whether there is an overwhelming consensus that the relevant law was clearly settled.
It is often said as well that a state’s highest court can establish clearly settled federal constitutional law even where there is otherwise no such clearly settled law. Yet, in all of the decades that I have been working in the section 1983 area, I do not recall ever encountering a situation where this has happened. Until now!
The Second Circuit’s Stoley Decision and the Court of Appeals of New York’s Hall Decision
In Stoley v. Vanbramer, 2019 WL 6765762 (2nd Cir. 2019), the defendant New York State troopers allegedly violated the plaintiff’s Fourth Amendment rights by subjecting him in 2013 to a visual body cavity search incident to his arrest on felony charges without reasonable suspicion that drugs were concealed within his body. Affirming the district court’s denial of qualified immunity to the defendants, the Second Circuit relied on a 2008 Court of Appeals of New York decision, People v. Hall, 10 NY3d 303 (N.Y. 2008), holding that individualized reasonable suspicion that an arrestee (whether for misdemeanor or felony) is concealing weapons or other contraband within his body is required by the Fourth Amendment for a visual body cavity search incident to an arrest. The Second Circuit explained that it saw no problem in requiring that New York law enforcement officers know Fourth Amendment law from decisions of federal courts and the Court of Appeals of New York.
Judge Newman concurred, 2019 WL 676562, *12, arguing that the majority relied not only on the Court of Appeals of New York decision for its finding of clearly settled law but also on the decisions of other circuits, decisions of the New York Appellate Division and decisions of district courts in the Second Circuit. The “combination of these circumstances,” together with Hall, supported the majority’s determination.
Judge Jacobs dissented, 2019 WL 67652, *15, contending that relevant Second Circuit Fourth Amendment law regarding body cavity searches incident to felony (as distinct from misdemeanor) arrests was not clearly settled in 2013.
The lesson for attorneys in section 1983 litigation involving qualified immunity and clearly settled law: however rare it is, don’t ignore your highest state court decisions setting out federal constitutional law.
For additional posts on qualified immunity, search “qualified immunity” on this blog.
For much more on qualified immunity, see Ch 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019) (West/Westlaw).
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The Second Amendment and Section 1983 (Podcast): A Section 1983 Conference Encore
As many of you know, Covid-19 prevented Chicago-Kent’s 37th Annual Conference on Section 1983 from taking place, as originally scheduled, on April 23-24, 2020.
Still, in order to celebrate the Conference, several weeks ago I provided an encore podcast presentation on Damages and Procedural Defenses (search for “damages and procedural defenses”).
In order to further celebrate the Conference, I am providing another encore podcast presentation, this one on The Second Amendment and Section 1983, that took place in November 2014.
This presentation covers the basics and is still good Second Amendment law, particularly since the Supreme Court just dismissed as moot a Second Amendment challenge in New York State Rifle & Pistol Assn, Inc. v. City of New York, 139 S. Ct. 939 (2019).
You can readily find the podcast by searching on this blog for “second amendment and section 1983.”
Thanks.
I invite you to follow me on Twitter: @NahmodLaw.
The Rooker-Feldman Doctrine in the Circuits
Despite the broad grants to federal courts of jurisdiction over section 1983 claims by 28 U.S.C. sections 1331 and 1343, there are circumstances where federal jurisdiction over such claims is absent. Under the Rooker-Feldman doctrine–see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 1983)–federal courts have no appellate jurisdiction over state court judgments with respect to modifying or vacating them.
The Supreme Court explained the proper scope of this doctrine in Exxon Mobil v. Saudi Basic Industries Corp., 125 S. Ct. 1517 (2005)(emphasis added):
The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Rooker-Feldman does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions.
In other words, section 1983 plaintiffs may not seek in federal court to overturn or review state court judgments as such. Rooker-Feldman is jurisdictional and the parties cannot waive it.
Here are recent Eighth and Seventh Circuit decisions fleshing out this doctrine.
1. For Rooker-Feldman to apply, there must be a state court judgment. The Eighth Circuit ruled in Webb v. Smith, 2019 WL 4051000 , *5(8th Cir. 2019), where the plaintiff parents filed section 1983 claims against social workers alleging constitutional violations in connection with emergency protective custody of their children, that Rooker-Feldman did not apply: “The state courts here never issued any judgments; they entered orders in cases that were later voluntarily dismissed, which under Arkansas law is a decision ‘without prejudice and is not an adjudication on the merits.’” In addition, the plaintiffs here were not trying to get out from under a state court judgment.
2. On the other hand, there may be circumstances where Rooker-Feldman applies to interlocutory appeals. The Seventh Circuit observed that it agreed with the circuits holding that “there is a state court ‘judgment’ under Rooker-Feldman, even in the absence of a final appealable order so long as the state-court interlocutory order is “’effectively final.’” In the case before it, the Seventh Circuit determined that a satisfaction of judgment effectively made the foreclosure case against the §1983 plaintiffs final. They had challenged many people and entities involved in the foreclosure proceedings against them, including attorneys, a bank and its employees, a state court clerk, deputy clerks and the judge who presided over the foreclosure proceedings. According to the Seventh Circuit, a ruling in favor of the plaintiffs would require it to contradict the state court’s orders. Bauer v. Koester, 2020 WL 1042629 (7th Cir. 2020).
3. Rooker-Feldman can apply even where the section 1983 plaintiff does not directly attack the relevant state court decision. In Swartz v. Heartland Equine Rescue, 940 F.3d 387 (7th Cir. 2019), the Seventh Circuit found Rooker-Feldman applicable to bar the plaintiff animal owners’ claims that many state and private defendants conspired to deprive them of their goats and horses. Their claims would necessarily call into question various state court decisions dealing with probable cause, placement judgment and a pretrial diversion agreement. Thus, the claims were inextricably intertwined with the federal litigation and the plaintiffs’ alleged injuries were directly caused by the state court’s orders. Moreover, the plaintiffs had a reasonable opportunity to litigate their constitutional claims in state court. Finally, Rooker-Feldman governed even though the plaintiffs did not explicitly challenge the state court decisions and even though neither party had raised the issue in the district court. Rooker-Feldman is jurisdictional and it cannot be waived by the parties.
Those who want to know more about this complicated subject can check out the analysis and collected Rooker-Feldman cases in my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 secs. 1:26-1:30 (2019)(West/Westlaw).
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Damages and Procedural Defenses (Podcast): A Section 1983 Conference Encore
Today, Thursday, April 23, 2020, was scheduled to be the first day of the 37th Annual Section 1983 Conference, held at IIT Chicago-Kent College of Law. But as you all know, Covid-19 forced us to cancel.
Still, in order to commemorate the occasion, I am providing an Encore of my presentation ten years ago (2010) on Damages and Procedural Defenses. There were over 160 attorneys from all over the country in attendance.
Rest assured that this material is still good law, it is basic and it has not been undone by subsequent Supreme Court decisions. In other words, it is not recycling for the sake of recycling.
You can easily find the podcast by searching on this blog for “damages and procedural defenses.”
Thanks.
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