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The Knick Case, Takings and Section 1983: A Somewhat Different View

Section 1983 Takings Claims and Williamson County (1985)

In 1985, the Supreme Court held in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985),  that a section 1983 takings claim for damages cannot be brought in federal court, and is not ripe, unless the challenged local government conduct is final and the local government has denied compensation. This result was thought to be required by the language of the Fifth Amendment which states that “private property [shall not] be taken for public use, without just compensation.” In effect, Williamson County ruled that the takings claim was not complete until just compensation was denied. This result was also thought to promote the values of federalism and comity.

Accordingly, such a takings plaintiff would first have to go to state court and seek just compensation there–a so-called inverse condemnation action. Only after such a claim failed in state court could the plaintiff proceed in federal court with a “ripe” section 1983 takings claim.

The “Preclusion Trap”

A major problem with Williamson County, which took some years to emerge at the Supreme Court but soon became obvious to takings litigators, was preclusion. Pursuant to 28 U.S.C. sec. 1738, the preclusive effect of a state court decision on a subsequent federal court action is determined by the law of the forum state. And in San Remo Hotel v. City and County of San Francisco, 545 U.S. 323 (2005), the Court indeed held that the resolution of a claim for just compensation by a state court can have preclusive effect on a subsequent federal court action alleging a takings claim. Consequently, where the property owner lost in state court, issue preclusion under state law would typically sound the death knell for the federal court takings claim, or at the very least make it extremely difficult for the federal plaintiff to prevail. Indeed, several justices (Rehnquist, O’Connor, Kennedy and Thomas) questioned Williamson County because of this “preclusion trap.”

The Knick Decision (2019): Williamson County Overruled

On June 21, 2019, the Supreme Court, in Knick v. Township of Scott, No. 17-647,  overruled Williamson County. Dealing with a case in which the district court had dismissed a property owner’s section 1983 takings claim against a local government because she had not pursued an inverse condemnation action in state court, the Court, in an opinion by Chief Justice Roberts, declared:

We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claims when the government takes his property without paying for it. … [This means] that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and may therefore bring his claim in federal court under [section] 1983 at that time.

Justice Kagan, joined by Justices Ginsburg, Breyer and Sotomayor, dissented. They accused the majority of not only misreading the Court’s takings precedents but also of improperly basing its decision simply on its view that Williamson County was wrong.

Comments

First and foremost, Knick is a game-changer and will likely bring about a revolution in takings litigation. This also includes claims of temporary takings, as in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987). No longer will property owners with takings claims against local governments have to exhaust their state judicial remedies as a condition precedent to filing in federal court. They will thus be able to avoid the “preclusion trap” and, moreover, avoid the duplication of litigation and judicial costs.

Second, by eliminating the requirement that section 1983 takings plaintiffs may go directly to federal court, the Court soundly aligned section 1983 takings claims with the ruling in the seminal decision in Monroe v. Pape, 365 U.S. 167 (1965), that, as a matter of statutory interpretation, section 1983 plaintiffs need not exhaust state judicial remedies before filing section 1983 claims in federal court. Knick reached the same conclusion as a matter of constitutional interpretation.

The Court also aligned section 1983 takings claims with what it asserted was the same rule for Fifth Amendment takings claims against the federal government, namely, that “the right to full compensation arises at the time of the taking, regardless of post-taking remedies that may be available to the property owner.”

Perhaps the Court in now-overruled Williamson County was influenced by the then-recent decision in Parratt v. Taylor, 451 U.S. 527 (1981), holding that the existence of an adequate state post-deprivation remedy could defeat certain section 1983 procedural due process claims. Parratt for a time was viewed as a potentially effective vehicle for promoting federalism and comity by removing many procedural due process cases from federal court and sending them to state court where they belonged. It took a while for the Court to narrow the scope of Parratt and to make clear that the Parratt post-deprivation remedy approach was limited to certain procedural due process cases–where the challenged conduct was random and unauthorized–and that it did not apply to other constitutional provisions. See generally ch 3, Nahmod,  CIVIL RIGHT AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2018).

Third, as the Court correctly noted, there was no good reason to treat takings claims as constitutional outliers. Other constitutional violations–the Court used the Fourth Amendment as an example–are complete once the challenged conduct is over. The ability to recover damages is not part of the constitutional violation itself : the constitutional merits are separate from the remedy. The rule should always have be the same for takings claims. Knick therefore does not privilege property owners with section 1983 takings claims over other section 1983 plaintiffs. It treats them the same as other section 1983 plaintiffs with different constitutional claims for damages.

Fourth, in my view the underlying issue in dispute among the justices in Knick was stare decisis. The four dissenting justices were concerned with what they view as the current majority’s predisposition to overrule precedents such as Williamson County just because it doesn’t like those precedents. Knick and other recent decisions that have overruled precedents, and that have been fought over by the justices, may really be a rehearsal for challenges to, and the possible overruling of, Roe v. Wade.

Fifth, coming so soon after the Court’s accrual decision in McDonough v. Smith (No. 18-485),  Knick itself may be viewed as a kind of accrual decision. From this perspective, Knick holds that the section 1983 takings claim is complete, and thus accrues, when the taking occurs, and not later when the state or local government denies just compensation.

(See my post on McDonough here: https://nahmodlaw.com/2019/06/21/mcdonough-v-smith-the-supreme-court-answers-an-important-section-1983-fabrication-of-evidence-accrual-question/)

Finally, while I think the Court got Knick right, the Court’s approach–simplifying section 1983 takings claims–is inconsistent with its May 28, 2019, section 1983 First Amendment retaliatory arrest decision in Nieves v. Bartlett, No. 17-1174. In Nieves, the Court unsoundly imposed unduly burdensome procedural and substantive requirements on section 1983 plaintiffs who sue law enforcement officers for damages for allegedly arresting them in violation of the First Amendment. Among other things, the Court ruled that probable cause is a defense to such claims. Why such solicitude for section 1983 takings plaintiffs in Knick and so little concern for section 1983 First Amendment plaintiffs in Nieves? Probable cause should be as irrelevant to the First Amendment as it is to takings.

(See my post criticizing Nieves here:  https://nahmodlaw.com/2019/06/04/nieves-v-bartlett-and-retaliatory-arrests-protecting-law-enforcement-at-the-expense-of-the-first-amendment-and-section-1983/)

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Written by snahmod

July 25, 2019 at 9:04 am

McDonough v. Smith: The Supreme Court Answers an Important Section 1983 Fabrication of Evidence Accrual Question

McDonough v. Smith and Accrual of Section 1983 Due Process Fabrication of Evidence Claims

The Supreme Court, on June 20, 2019, handed down an important section 1983 accrual decision in McDonough v. Smith (No. 18-485). Reversing the Second Circuit, it ruled (6-3) in an opinion by Justice Sotomayor that a section 1983 due process claim of fabrication of evidence accrues when criminal proceedings against the section 1983 plaintiff are terminated in his or her favor, not earlier when the plaintiff discovered the use of such fabricated evidence. Justice Thomas, joined by Justices Kagan and Gorsuch, dissented, arguing that certiorari was improvidently granted, and the case should be dismissed, for failure of the plaintiff to identify with any specificity the particular constitutional violation alleged.

(For useful background on section 1983, statutes of limitation and accrual, consult my earlier posts. On section 1983 and statutes of limitation generally: https://nahmodlaw.com/2011/10/27/a-section-1983-primer-5-statutes-of-limitations/. On statutes of limitation and accrual after Heck v. Humphrey: https://nahmodlaw.com/2013/06/17/a-section-1983-primer-10-statutes-of-limitations-and-accrual-after-heck-v-humphrey/. And on statutes of limitation and continuing violations: https://nahmodlaw.com/2014/06/09/a-section-1983-primer-11-statutes-of-limitation-and-continuing-violations/)

The Lower Courts

In McDonough, the plaintiff, a former commissioner of a county board of elections, processed forged absentee ballots submitted in a primary election. He alleged that he had done so not knowing they were forged. The defendant, a special prosecutor, allegedly “scapegoated” the plaintiff because of a political grudge and, despite evidence of plaintiff’s innocence, falsified affidavits, coached witnesses to lie and orchestrated a DNA analysis in order to incriminate the plaintiff. The defendant obtained a grand jury indictment against the plaintiff who was arrested, arraigned and released with restricted travel allowed. The plaintiff was then tried criminally by the defendant, ending in a mistrial in January 2012. He was then again tried criminally by the defendant, this time ending in plaintiff’s acquittal on all charges on December 21, 2012. He filed his section 1983 lawsuit on December 18, 2015, alleging fabrication of evidence based on due process as well as malicious prosecution. The latter claim was dismissed by the district court on absolute immunity grounds, while the former was dismissed because it was untimely under the applicable New York three year limitations period. The Second Circuit affirmed the district court’s reasoning that the plaintiff’s section 1983 fabrication of evidence claim accrued by January 2012 when the plaintiff discovered the use of the allegedly fabricated evidence against him, and was therefore time-barred. It rejected the plaintiff’s argument that his fabrication of evidence claim accrued on December 21, 2012, when he was acquitted on all charges.

The Supreme Court’s Opinion

In turn reversing, the Supreme Court held that the plaintiff’s section 1983 due process fabrication of evidence claim was timely because it indeed accrued when the plaintiff was acquitted on all charges on December 21, 2012. His claim was therefore timely (within three days to go).

After observing that section 1983 accrual is a question of federal law, the Court had little difficulty, in reliance on Heck v. Humphrey, 512 U.S. 477 (1994), in analogizing the plaintiff’s due process fabrication of evidence claim to the common law tort of malicious prosecution. As in malicious prosecution, the plaintiff here alleged that he was deprived of his liberty because of the defendant’s “malfeasance” in fabricating evidence. “At bottom, both claims challenge the integrity of criminal prosecutions undertaken ‘pursuant to legal process.'” (citing Heck). For that reason, the plaintiff’s section 1983 fabrication of evidence claim accrued when his prosecution was favorably terminated, and not before. Applying  the discovery accrual rule here would give rise to Heck‘s concerns with parallel litigation (in the state criminal proceeding and in federal court) and conflicting judgments, even though the plaintiff in Heck was convicted and the plaintiff here was acquitted. Prosecutions often lasted nearly as long as the civil limitations period, with the result that criminal defendants would have to choose whether to let their claims expire or to sue the person who was prosecuting them. Stays and abstention were not a good solution. For all these reasons, the plaintiff’s due process fabrication of evidence claim accrued when he was acquitted.

Comments

1. The Court’s decision is a sound one. It made clear that the Second Circuit’s use of the discovery rule in a section 1983 case where a plaintiff alleges a due process fabrication of evidence claim that challenges the fairness of a criminal proceeding itself, was not only contrary to what most other circuits had decided but was wrong. It makes sense that such a claim is only complete, and accrues, when the criminal proceeding terminates in the plaintiff’s favor, whether through an overturned conviction as required by Heck, or through an acquittal as in McDonough itself. Furthermore, the Court emphasized, this federal accrual rule “respects the autonomy of state courts and avoids these costs to litigants and federal courts.”

The Court’s approach in McDonough is consistent with Wallace v. Kato, 549 U.S. 384 (2007), which explained that the accrual question, a question of federal law, should conform in general to common law principles. Wallace went on to rule that the section 1983 plaintiff there challenged the constitutionality of his arrest under the Fourth Amendment, and this was analogous to the common law tort of false imprisonment. Thus, his claim accrued at the time of his arrest even though custody followed.

2. It is therefore crucial that a section 1983 plaintiff identify with some specificity just what is challenged as unconstitutional and under what constitutional provision. Is it an arrest? Is it a conviction? Is it custody or a deprivation of liberty? Is the claim brought under the Fourth Amendment or due process or both (or perhaps another constitutional provision)? This is an important lesson that the dissenters (and the Court’s section 1983 cases) teach. I listened to the oral argument in McDonough some time ago and heard for myself how the justices tried to get a specific sense of the constitutional provision on which the plaintiff relied, and how frustrated several of them were at the responses (or lack thereof) to their questions.

3. On remand, the plaintiff in McDonough will face the defense of absolute prosecutorial immunity, which raises the question of what aspects of the defendant’s alleged conduct are investigative (and protected by qualified immunity) and advocative (and protected by absolute immunity). See generally chapters 7 and 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2018)(West).

4. For those of us interested in section 1983 malicious prosecution claims (and isn’t everyone?), it is worth mentioning footnote 4 of the Court’s opinion in which it expressed no view on the Second Circuit’s borrowing of common law elements of malicious prosecution to govern the McDonough plaintiff’s dismissed section 1983 malicious prosecution claim. Such borrowing is just plain wrong, as I have argued repeatedly. See my Amicus Brief in Manuel v. City of Joliet, 137 S. Ct. 911 (2017): https://nahmodlaw.com/2016/08/16/my-amicus-in-manuel-v-city-of-joliet-no-14-9496-section-1983-malicious-prosecution/

5. Finally, the real world implications of McDonough are profound. Regardless of whether wrongful prosecutions lead to convictions that are eventually overturned (per Heck), to acquittals (per McDonough) or to dismissal of all charges wrongfully brought, the accrual rule is now appropriately the same where the section 1983 challenge is to the constitutionality of the criminal proceeding itself (always subject, of course, to the possible application of absolute prosecutorial immunity).

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Written by snahmod

June 21, 2019 at 2:27 pm

Qualified Immunity: Can Unpublished Circuit Court Opinions Establish Clearly Settled Law?

For qualified immunity purposes, we know that constitutional law can be clearly settled by Supreme Court precedent. If there is no applicable Supreme Court precedent, then the Circuit Court of Appeals in which the forum state is located can establish clearly settled law. If that Circuit Court of Appeals has no applicable case law, then we look to see whether there is a clear consensus in the circuits. If there is none, then the result is that the defendant is protected by qualified immunity because of the absence of clearly settled law (unless it is the rare case in which the challenged conduct was “obviously” unconstitutional even without applicable precedent on point). See generally Chapter 8 of my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed. 2018)(West & Westlaw).

But what of unpublished circuit court opinions that are not intended to be precedent? Can they establish clearly settled law? In an extensive discussion, the Tenth Circuit, in Grissom v. Roberts, 2018 WL 4102891, *2, *3 (10th Cir. 2018), said no but with an interesting twist. It explained:

“The role of an unpublished nonprecedential opinion in this [clearly settled law] enterprise depends on      whether the opinion is being used to show that the plaintiff’s proffered proposition is clearly established law or to show that the proposition is unsettled. We have held that “[a]n unpublished opinion … provides little support for the notion that the law is clearly established on [a] point.” But an unpublished opinion can be quite relevant in showing that the law was not clearly established. If we make the collegial, and quite legitimate, assumption that panels of this court render reasonable decisions, we would be hard pressed to say that a proposition of law was clearly established at a time when an unpublished opinion by a panel of this court said the opposite.

… Could we properly say that an official was plainly incompetent for taking guidance from an unpublished appellate opinion?”

Grissom involved an inmate’s claim that his placement in solitary confinement for almost twenty years (ending in 2016) violated his due process and Eighth Amendment rights. As to the due process claim, the Tenth Circuit found that the various defendants did not violate clearly settled law because there was a relevant unpublished Tenth Circuit decision rejecting an inmate’s due process claim based on his solitary confinement from June 2005 on: this decision held that his solitary confinement did not abridge a liberty interest. Moreover, the plaintiff did not point to any subsequent Supreme Court or Tenth Circuit precedent clearly establishing relevant due process law.

And as to the Eighth Amendment claim, the result was the same: no clearly settled Eighth Amendment law. “[T]he most recent relevant decision by this court is an unpublished opinion rejecting an Eighth Amendment claim brought by a prisoner who had been in solitary confinement for 30 years under conditions not markedly different from those here.” Thus, the defendants were entitled to qualified immunity on both claims. Judge Lucero concurred in the judgment, 2018 WL 4102891, *8, arguing that it was “important” to rule that the plaintiff’s lengthy solitary confinement violated due process.

So there you have it. According to the Tenth Circuit, unpublished opinions can only help defendants on the clearly settled law question because they can demonstrate that there is no applicable clearly settled law in the circuit. But they cannot help plaintiffs to show clearly settled law because they are not intended to have precedential value. In effect, the Tenth Circuit is saying that defendants have no duty to know what unpublished circuit court opinions say about the law.

 

 

Written by snahmod

June 11, 2019 at 10:30 am

Nieves v. Bartlett and Retaliatory Arrests: Protecting Law Enforcement at the Expense of the First Amendment and Section 1983

Nieves v. Bartlett: The Court’s First Amendment Retaliatory Arrest Decision

The Supreme Court handed down Nieves v. Bartlett, No. 17-1174, on May 28, 2019. In an opinion by Chief Justice Roberts, the Court, resolving a split in the circuits, held that probable cause is a defense to a section 1983 claim against law enforcement officers accused of arresting a person in retaliation for his or her speech. But the Court provided what it called a “narrow qualification”: because officers have such wide-ranging discretion to make warrantless misdemeanor arrests for minor criminal offenses–with the potential for abuse of First Amendment rights–probable cause is not a defense where the plaintiff presents objective evidence that he or she was arrested when other similarly situated persons not engaged in the same protected conduct were not.

In Nieves, the plaintiff was arrested for disorderly conduct and resisting arrest in the setting of “Arctic Man,” a winter sports festival held in Paxson, Alaska: “During that week, the Arctic Man campground briefly becomes one of the largest and most raucous cities in Alaska.” Criminal charges were eventually dismissed and the plaintiff thereafter filed his section 1983 complaint. The facts were disputed by the parties but the plaintiff alleged in his section 1983 claim that he was arrested in violation of the First Amendment in retaliation for failing to speak to one officer and for intervening in another officer’s discussion with an underage partygoer. The district court determined that there was probable cause to arrest the plaintiff for interfering with an investigation and for initiating a physical confrontation with one of the officers, and thus granted summary judgment in favor of the defendants. The Ninth Circuit reversed on the ground that probable cause is not a defense.  The Supreme Court in turn reversed the Ninth Circuit.

The Majority Opinion by Chief Justice Roberts

Chief Justice Roberts first noted that this issue–whether probable cause is a defense to a First Amendment claim of retaliatory arrest–had been before the Court twice previously (see https://nahmodlaw.com/?s=lozman) but was not resolved on the merits. He then went on to discuss the general requirement in First Amendment retaliation cases of proof by a plaintiff of but-for causation, citing Mt. Healthy Bd. of Education v. Doyle, 429 U.S. 274 (1977). He observed that in many retaliation cases, showing the causal connection between a defendant’s animus and the plaintiff’s injury is “straightforward.” But in situations involving claims of First Amendment retaliatory prosecution, the causal connection is much more attenuated, because an officer’s animus in making an arrest, for example, is not the retaliatory action itself, which is the separate act of a prosecutor in bringing charges. The related presumption of prosecutorial regularity was therefore a major reason that Hartman v. Moore, 547 U.S. 547 U.S. 250 (2006), ruled that a plaintiff bringing a section 1983 claim of First Amendment retaliatory prosecution must allege and prove the absence of probable cause in order to proceed further or, in other words, that the decision to press charges was objectively unreasonable.

Chief Justice Roberts, admitting that the two situations–retaliatory prosecutions and retaliatory arrests–are not identical, nevertheless concluded as a matter of policy that the Hartman requirement imposed on plaintiffs in First Amendment retaliatory prosecution cases should also apply to First Amendment retaliatory arrest cases. It accepted the officers’ contention that retaliatory arrest claims involve factual complexities parallel to those involved in retaliatory prosecution claims. For one thing, police officers made split-second decisions all the time, sometimes based on what was said. For another, the Fourth Amendment is an objective inquiry and a purely subjective approach would tend to undermine Fourth Amendment precedent and might even improperly set off wide-ranging discovery into an officer’s subjective state of mind, contrary to the thrust of qualified immunity and Harlow v. Fitzgerald, 457 U.S. 800 (1982). The Court also analogized retaliatory arrest to the common law tort of malicious prosecution, which has an absence of probable cause requirement imposed on plaintiffs.

Finally, Chief Justice Roberts, perhaps prodded by Justices Breyer and Kagan who might not otherwise have joined the opinion to create a majority, recognized that police officers have wide-ranging discretion to conduct misdemeanor arrests even for minor offenses, and could thereby abuse this discretion in violation of the First Amendment. It was therefore appropriate for a plaintiff in a First Amendment retaliation case to have the opportunity to show that, even where there was probable cause to arrest, this is not a defense where the plaintiff presents objective evidence that he or she was arrested when other similarly situated persons not engaged in the same protected conduct were not. This “narrow qualification” to its holding would protect the First Amendment adequately.

Justices Breyer, Alito, Kagan and Kavanaugh joined the Court’s opinion, as did Justice Thomas except for Part IID and its “narrow qualification.” Justice Thomas argued that the common law was clear that probable cause defeated false imprisonment, malicious arrest and malicious prosecution claims, and so the rule should be the same in section 1983 First Amendment retaliatory arrest cases.

Justice Gorsuch’s Opinion

Justice Gorsuch concurred in part and dissented in part in a thoughtful but rather conflicted opinion, observing that the presence of probable cause should not defeat a First Amendment retaliatory arrest as a matter of First Amendment doctrine. However, as a matter of section 1983 and Fourth Amendment policy, probable cause analysis is not “entirely irrelevant to the analysis.” In addition, probable cause may be relevant not only to causation but also to separation of powers and federalism. Thus, he argued that the Court should not at this time have carved out the “narrow qualification” that it did, apparently based on U.S. v. Armstrong, 517 U.S. 456 (1996), a racial discrimination selective prosecution case. He would have simply held “as the majority does, that the absence of probable cause is not an absolute requirement of such a claim and its presence is not an absolute defense.” He would leave for another day the harder probable cause and First Amendment questions until they were properly raised before the Court.

Justices Ginsburg’s and Sotomayor’s Opinions

Justice Ginsburg concurred in the judgment in part and dissented in part. In her view, Mt. Healthy was applicable: with its burden-shift to the defendant to show that, even without the impermissible motive, the defendant would have do the same thing anyway, Mt. Healthy struck the right balance between protecting free speech and section 1983 law enforcement defendants. “In any event, I would not use this thin case to state a rule that will leave press members and others exercising First Amendment rights with little protection against police suppression of their speech.”

Justice Sotomayor dissented. She agreed with the “eight Justices” majority that probable cause alone does not “always suffice[]” to defeat a section 1983 First Amendment retaliatory arrest claim. However, she strongly disagreed with a “slimmer majority” that a showing of probable cause defeats such a claim unless the person arrested can show that otherwise similarly situated individuals whose speech differed were not arrested (the “narrow qualification”). She commented that the majority did not really try to show how First Amendment or section 1983 doctrine supported this result. In her view, the Court should evaluate section 1983 First Amendment retaliatory arrest claims in the same way they evaluate other First Amendment retaliation claims: under the Mt. Healthy burden-shift test. This test, she pointed out, is not easily satisfied by many plaintiffs even when there is proof of retaliatory animus. Finally, she criticized the majority’s use of comparison-based evidence as “the sole gateway through the probable-cause barrier that it otherwise erects.” This, in her view, will lead to arbitrary results and shield unconstitutional conduct: “a particularly brazen officer could arrest on transparently speech-based grounds and check the statute books later for a potential justification.”

Comments

1. Nieves posed this choice for the Court: protect police officers or protect the First Amendment. The Court chose to protect police officers. It thereby mangled both section 1983 and the First Amendment. Consequently, Justices Ginsburg and Sotomayor got it right: Mt. Healthy should have governed section 1983 First Amendment retaliatory arrest claims.

2. The decision in Nieves stems from the Court’s misguided decision in Hartman involving First Amendment retaliatory prosecutions. In Hartman the Court improperly inserted pro-law enforcement policy into section 1983 statutory interpretation in the course of setting out the proper elements of a section 1983 First Amendment retaliatory prosecution claim. This set the stage for Nieves. As I have argued previously–see the post cited above–to the extent that such policy considerations are relevant, they belong on the qualified immunity side of section 1983 statutory interpretation (indeed, the Court has used qualified immunity with a vengeance to favor law enforcement). In this regard, note that the Court in Nieves explicitly cited Harlow v. Fitzgerald, where the Court eliminated the subjective part of the then-existing qualified immunity test in order to protect defendants from what it considered non-meritorious claims.

The Court in Nieves compounded its mistake by extending Hartman (where the presumption of prosecutorial regularity was the driving consideration) to Nieves and First Amendment retaliatory arrest claims, where this presumption simply does not play any role.

3. The “narrow qualification” somewhat helps plaintiffs bringing section 1983 First Amendment retaliatory arrest claims. But the evidentiary burden of proof on plaintiffs to show similarly situated individuals who did not engage in protected speech and were not arrested, and plaintiffs’ ability thereby to end-run a finding of probable cause, is extremely high. Compare the onerous burden on section 1983 plaintiffs bringing claims of class-of-one equal protection violations.

4. Here are the results in real world terms:

(1) Going forward, the law regarding First Amendment retaliatory arrests is clearly established for qualified immunity purposes;

(2) Probable cause is a defense to section 1983 First Amendment retaliatory arrest claims unless the plaintiff can show that he or she was treated differently from others similarly situated because of his or her speech.

(3) Probable cause is not a defense to a section 1983 First Amendment retaliatory arrest claim brought against a municipality whose official policy or custom brought about the plaintiff’s allegedly unconstitutional arrest. This is the teaching of Lozman v. City of Riviera Beach, decided in 2018 and discussed in the post cited above as well as in Chapter 3 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2018, West).

Written by snahmod

June 4, 2019 at 10:06 am

Clearly Settled Law and Municipal Liability for Failure to Train: Erroneous Circuit Decisions

Quere: what is the relationship, if any, between the deliberate indifference required for failure to train liability and qualified immunity with its clearly settled law in inquiry? To be specific: suppose a local government and individual government officials or employees are sued in connection with a plaintiff’s constitutional deprivations. Suppose further that the individuals escape liability not because they did not violate the plaintiff’s constitutional rights (they did) but because they did not violate clearly settled constitutional law at the time of the challenged conduct. Can the local government nevertheless be held liable for deliberate indifference to the plaintiff’s constitutional rights? Interestingly, several circuits seem to take the erroneous position that the answer is no.

For example, in Bustillos v. El Paso County Hospital District, 2018 WL 2338812, *5 (5th Cir. 2018), the plaintiff sued a county hospital district and various medical personnel and law enforcement officers, alleging, among other things, that they violated her Fourth Amendment rights by subjecting her to intrusive body searches. After ruling that the individual medical personnel were protected by qualified immunity because there was no violation of clearly settled Fourth Amendment law, the Fifth Circuit went on also to hold that the county hospital district could not be liable for deliberate indifference for its failure to train medical personnel in how to handle government requests to do body cavity searches. It simply quoted from a Sixth Circuit decision declaring that a “policymaker cannot exhibit fault rising to the level of deliberate indifference to a constitutional right when that right has not yet been clearly established.” Hagans v. Franklin County Sheriff’s Office, 695 F.3d 505, 511 (6th Cir. 2012)(emphasis in original)(in turn quoting Szabla v. City of Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007)(en banc).

This reasoning is seriously off-base. For one thing, it conflates deliberate indifference to constitutional rights with clearly settled law: the relevant constitutional law may not be clearly settled at the time of the challenged conduct for individual liability purposes but a local government can still be deliberately indifferent to whether its officials or employees could violate that not-yet-clearly-settled constitutional right. There is no specific intent requirement for local government failure to train liability (or for individual liability either, for that matter). For another thing, introducing the clearly settled law inquiry into local government failure to train liability effectively confers qualified immunity protection on local governments, contrary to the Supreme Court’s decision in Owen v. City of Independence, 445 U.S. 622 (1980).

I cover local government liability in detail in Chapter 6 my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2018)(West, Westlaw). I cover qualified immunity in Chapter 8.

(A personal note: the delay between the immediately preceding post on Excessive Fines and this post is attributable to my deep dive into preparing the 2019 Update to my section 1983 treatise).

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Written by snahmod

May 6, 2019 at 11:08 am

The Excessive Fines Clause, Timbs v. Indiana and Section 1983 Implications

The Eighth Amendment

The Eighth Amendment declares: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Although the Eighth Amendment on its face applies only to the federal government, the Excessive Bail and Cruel and Unusual Punishment Clauses, like many other provisions of the Bill of Rights, have gradually been incorporated and applied to the states and local governments through the 14th Amendment’s Due Process Clause. But what of the Excessive Fines Clause?

Timbs v. Indiana and the Excessive Fines Clause

On February 20, 2019, the Supreme Court held in Timbs v. Indiana, No. 17-1091, reversing the Indiana Supreme Court, that the Excessive Fines Clause is similarly incorporated and applies to states and local governments. The Court, in an opinion by Justice Ginsburg, found that the Excessive Fines Clause is fundamental to our scheme of ordered liberty with deep roots in history and our tradition. The Court further rejected Indiana’s argument that the Clause does not apply to the use of civil in rem forfeitures, reasoning that the proper incorporation inquiry is whether the right guaranteed in fundamental and deeply rooted, not whether each and every particular application of that right is fundamental or deeply rooted. The Supreme Court then remanded to the Indiana Supreme Court to determine whether the attempted civil in rem forfeiture in Timbs violated the Excessive Fines Clause.

What does this have to do with section 1983? A great deal, it turns out.

Civil In Rem Forfeiture Proceedings

In Timbs itself, the criminal defendant pleaded guilty to state charges of dealing in a controlled substance and conspiracy to commit theft, and had already been sentenced to one-year home detention and five-years probation, with fees and costs totaling $1203.

But this did not satisfy Indiana. It also engaged a private law firm–a not unusual tactic in such cases–to bring a civil suit on behalf of the state for forfeiture of the criminal defendant’s recently purchased $42,000 Land Rover. The suit charged that the vehicle had been used to transport heroin. Notably, the maximum monetary fine for a drug conviction under Indiana law is $10,000, less than one-quarter of the value of the Land Rover. In addition, the Land Rover was purchased by the defendant with money from an insurance policy when his father died.

Section 1983 Implications

Here’s where section 1983 may come into the picture. The criminal defendant in Timbs, and others like him, can now use the Excessive Fines Clause as an affirmative Eighth Amendment defense to a civil in rem forfeiture proceeding. Going even further, the criminal defendant in Timbs, and others like him, can raise the Excessive Force argument as the basis of a section 1983 counterclaim for damages. Since the civil in rem forfeiture proceeding is brought on behalf of the state, albeit by a private law firm, there would still be state action.

It is true that the state itself is not a suable person for damages under section 1983 (in contrast, local governments can indeed be sued for damages under section 1983). Nevertheless responsible state officials (and local government officials as well) could be sued for damages in their individual capacities. Timbs has now clearly established relevant Eighth Amendment Excessive Fines Clause law for qualified immunity purposes, although what is excessive or not was not addressed by the Court.

Note also that a possible hurdle for criminal defendants who want to bring section 1983 claims against state and local government officials based on the Excessive Fines Clause could be absolute prosecutorial immunity.

(See chs. 7 & 8, Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (West 2018), on absolute and qualified immunity).

But I am getting ahead of myself here. Despite these qualifications, Timbs is an Eighth Amendment game-changer.

Written by snahmod

March 20, 2019 at 10:55 am

City of Escondido v. Emmons: Another SCOTUS Summary Reversal in a Qualified Immunity Excessive Force Case

The Supreme Court handed down City of Escondido v. Emmons, No. 17-1660 (per curiam), on January 7, 2019. In this qualified immunity excessive force case, the Court summarily reversed and once more chastised the Ninth Circuit for making the clearly settled law inquiry at too high a level of generality. What courts must instead do, the Court emphasized, is focus on the particular circumstances of the case and make the clearly settled law inquiry accordingly.

In Emmons, police officers had previously arrested a man after his wife called them to her apartment complaining of domestic violence. Thereafter, in the present case, police received a 911 call from the woman’s mother about another possible domestic violence incident at the apartment: the mother had heard yelling and screaming over the phone. When police arrived, they could not enter the apartment in order to make a welfare check (two children may have been in the apartment). After a few minutes of conversation between the police (from outside of the apartment) and the woman and an unidentified man, the plaintiff–who turned out to be the woman’s father–came out of the apartment and tried to brush past the officers. One of the officers then took him quickly to the ground and arrested him for the misdemeanor offense of resisting or delaying a police officer. The officer did not hit the plaintiff or display his weapon, and the police body camera video showed that the plaintiff was not in any pain.

The Ninth Circuit found that even though there was probable cause for the arrest, the officer may have violated clearly settled Fourth Amendment excessive force law and thus was not entitled to qualified immunity. It cited one of its own 2013 precedents, saying only that the right to be free of excessive force was clearly established in May 2013, when the events occurred.

The Supreme Court’s Summary Reversal

The Supreme Court summarily reversed, criticizing the Ninth Circuit for making the clearly settled law inquiry at too general a level. It also observed that the circuit precedent relied on by the Ninth Circuit involved the police use of force against individuals engaged in passive resistance, unlike this case. The Court thus remanded for a proper application of qualified immunity.

The result in Emmons is no surprise to those following the Supreme Court’s increasingly blunt warnings to the courts to apply qualified immunity with a good deal of specificity. Indeed, the Court in Emmons itself cited four of its recent qualified immunity decisions to that effect. (See, for example, my post on May 22, 2018, on Kisela v. Hughes, 138 S. Ct. — (2018)(per curiam): https://nahmodlaw.com/2018/05/22/kisela-v-hughes-another-predictable-supreme-court-excessive-force-qualified-immunity-decision/)

A Hidden and Disturbing Implication?

But what may be a bit of a shocker is what the Court tucked into its per curiam opinion almost in passing: it said that it assumed without deciding that a Court of Appeals decision can constitute clearly settled law for qualified immunity purposes. This is a rather remarkable statement to toss off so casually, since it has been assumed by courts and litigators for decades that in the absence of relevant Supreme Court case law (perhaps also in the absence of a clear circuit consensus to the contrary), a Court of Appeals decision can indeed constitute clearly settled law.

Consider the extreme implications of the Court’s statement: there can be no clearly settled law unless the Supreme Court has weighed in on the specific issue in comparable factual circumstances. Where the Supreme Court has not done so, qualified immunity must always be granted to defendants, thereby undermining individual section 1983 liability except in the most egregious cases. This cannot be correct.

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Written by snahmod

March 4, 2019 at 1:22 pm