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Archive for the ‘Civil Rights – Section 1983’ Category

Are Contract Clause Violations Actionable Under Section 1983? A Circuit Split

The Contract Clause, U.S. Const. Art I, § 10, provides: “No State shall … pass any … Law Impairing the Obligation of Contracts.”

The Supreme Court has developed a three-part Contract Clause test: (1) does the state law operate as a substantial impairment of the contractual relationship; (2) if so, does the state have a significant, legitimate public purpose behind the regulation; and (3), if so, is the adjustment of the rights and responsibilities of the contracting parties based on reasonable conditions and is it appropriate to the public purposes justifying the state regulation? See, generally, Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400 (1983).

Are Contract Clause violations actionable under §1983? Can a tenured teacher use §1983 to bring an action for violation of the Contract Clause arising out of a statute or ordinance that cuts back on the rights of tenured teachers in layoffs? Or can retirees use §1983 to bring an action for violation of the Contract Clause challenging a statute or ordinance that temporarily replaces their retiree health care benefits with monthly stipends that can be used to purchase individual health care coverage? With financial pressures arising out of public pension debt growing more pressing nationally every day, the answer to these questions may be important.

There is currently a split in the circuits on this issue. The Ninth Circuit has ruled that Contract Clause violations are indeed actionable under §1983. It stated: “The right of a party not to have a State, or a political subdivision thereof, impair its obligations of contract is a right secured by the first article of the United States Constitution. A deprivation of that right may therefore give rise to a cause of action under section 1983.” Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (per curiam).

In contrast, the Fourth and Sixth Circuits have ruled that Contract Clause violations are not actionable under §1983. See Crosby v. City of Gastonia, 635 F. 3d 634 (4th Cir. 2011) and Kaminski v. Coulter, 2017 WL 3138308 (6th Cir. 2017). Among other things, these decisions noted that the only Supreme Court case on point had ruled this way long ago under §1983’s predecessor statute. Carter v. Greenhow, 114 U.S. 317 (1885).

Interestingly, the Seventh Circuit, in Elliott v. Board of School Trustees, 2017 WL 5988226 (7th Cir. 2017), assumed, without having to decide the issue in the case before it, that Contract Clause violations are actionable for damages under §1983. It then went on to find that a new Indiana law that cut back on the rights of tenured teachers in layoffs violated the Contract Clause rights of a teacher who had tenure before the law took effect.

The better view is that Contract Clause violations are actionable under §1983. As the Seventh Circuit pointed out in Elliott, Supreme Court and other opinions have read the 1885 Carter decision “as based more narrowly on the way the particular claim in that case was pled and the failure to satisfy the amount-in-controversy requirement applicable at the time.”

More important, there is no persuasive reason to exclude Contract Clause violations from the “deprivation of any rights … secured by the Constitution” language of §1983 itself.

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Written by snahmod

April 4, 2018 at 10:41 am

Come to Our 35th Annual Section 1983 Conference on April 26-27, 2018

I invite all civil rights litigators–whether new to section 1983 or experienced, whether representing plaintiffs or defendants–to attend our forthcoming 35th Annual Section 1983 Conference to be held at Chicago-Kent College of Law on Thursday and Friday, April 26-27, 2018.

I have organized and spoken at this Conference for 35 years, since its beginning in 1983(!). Not surprisingly, I consider it to be the premier program on section 1983 in the United States. Reasonably priced and intelligently structured, it covers virtually all aspects of section 1983 and related constitutional law issues, as well as the Supreme Court’s Term, immigration law and attorney’s fees.

Equally important, it features many of the leading experts in these areas: scholars Erwin Chemerinsky, Karen Blum, Rosalie Levinson and Kimberly Bailey, and practitioners John Murphey, Gerald Birnberg and Donald Kempster. I speak as well.

The brochure for the two-day Conference, together with CLE contact information, can be found here: https://cle.kentlaw.edu/database/PDF/2018Mar5-591-35th%20Annual%20Section%201983%20Civil%20Rights%20Litigation%20Conference%20brochure.pdf

You should feel free to email me with any questions at snahmod@kentlaw.edu. I will respond personally.

I hope to see you there and celebrate our 35th anniversary. Please say hello if you attend.

I also invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

March 7, 2018 at 9:41 am

“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: https://nahmodlaw.com/2017/06/16/county-of-los-angeles-v-mendez-supreme-court-rejects-provocation-rule-remands-on-proximate-cause/

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 https://nahmodlaw.com/2012/06/13/new-supreme-court-decision-reichle-v-howards-and-first-amendment-retaliatory-arrests/

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 : https://nahmodlaw.com/2017/06/16/county-of-los-angeles-v-mendez-supreme-court-rejects-provocation-rule-remands-on-proximate-cause/

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: https://nahmodlaw.com/2012/10/08/section-1983-and-the-intracorporate-conspiracy-doctrine/.

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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Written by snahmod

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.

Comment

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