Nahmod Law

I blogged on May 9, 2012, about Filarsky v. Delia, 132 S. Ct. 1657 (2012), the Supreme Court‘s important private individual immunity decision which ruled that an individual hired by the government to work for it is indeed protected by qualified immunity, even though that individual does not work for the government on a permanent or full-time basis.

Here are two post-Filarsky decisions from the Fourth and Sixth Circuits which, contrary to my suggestion in the earlier post that Richardson is now an “outlier,” ruled qualified immunity inapplicable.

I came across these cases in the course of preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West Group) (CIVLIBLIT on Westlaw).

The Fourth Circuit

In Gregg v. Ham, 678 F.3d 333 (4th Cir. 2012), the plaintiff sued a bail bondsman under § 1983 alleging various constitutional violations arising out of the defendant’s efforts to catch a fugitive in and around plaintiff’s home. A jury found for the plaintiff and awarded compensatory and punitive damages, but the defendant on appeal challenged the district court’s qualified immunity instruction to the jury on the ground that this issue was not for the jury. Affirming, the Fourth Circuit held that there was no error because the defendant, as a bail bondsman, was not entitled to qualified immunity.

The court expressly followed the Richardson approach in looking at the history and policy of qualified immunity and finding that neither supported qualified immunity for bail bondsmen. There was no historical evidence demonstrating that bail bondsmen were given immunity or that they were considered as arms of the court performing a public function. Moreover, they were motivated primarily by profit and thus, per Richardson, there was no need for qualified immunity to ensure an adequate number of bail bondsmen.

Finally, Filarsky did not change this result: the defendant here was not an arm of the court, he was not employed by the sheriff’s department, he did not report to law enforcement, he was not asked to assist in apprehending the fugitive and he was in charge of the search. Thus, Filarsky was inapposite.

The Sixth Circuit

McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012), involved a § 1983 Eighth Amendment lawsuit brought by a deceased inmate’s mother against a psychiatrist employed by an independent non-profit organization who was working part-time as a prison psychiatrist at the time he was allegedly deliberately indifferent to the serious medical needs of the inmate.

Ruling that the defendant was not entitled to claim qualified immunity, the Sixth Circuit, looking to history and the common law, found that a private physician working for a public institution in 1871 would not have been immune from damages liability at common law. In addition, the policies underlying § 1983 immunity doctrine—promoting independent decision-making, encouraging persons to go into public service and guarding against distraction—indicated that qualified immunity would not be appropriate here. As was true in Richardson, market forces would accomplish these same goals.

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I blogged on Sept. 11, 2009, about so-called section 1983 “malicious prosecution” claims. I then blogged on 9-8-11 and 9-26-11 about section 1983 malicious prosecution cases in the circuits.

What follows are two relatively recent circuit decisions dealing with such claims, decisions that I ran across in preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(CIVLIBLIT  on Westlaw).

The Second Circuit

The Second Circuit, reversing the district court which had dismissed the plaintiff’s § 1983 malicious prosecution claim, stated that the elements of a § 1983 malicious prosecution claim are “derived” from state law and include (1) commencement of a criminal proceeding, (2), favorable termination, (3) lack of probable cause and (4) actual malice. It went on to declare: “Additionally …, to be actionable under section 1983 there must be a post-arraignment seizure, the claim being grounded ultimately on the Fourth Amendment’s prohibition of unreasonable seizures.” Here there was such a seizure. Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013).

The Eighth Circuit

In Harrington v. City of Council Bluffs, 678 F.3d 676, 680-81 (8^th Cir. 2012), the Eighth Circuit declared:

Assuming a Fourth Amendment right against malicious prosecution exists, such a right was not clearly established when the [plaintiffs] were prosecuted in 1977 and 1978. In 1978, the Supreme Court described in Albright the “‘embarrassing diversity of judicial opinion’ [on] the extent to which a claim of malicious prosecution is actionable under § 1983.”

Moreover, the Eighth Circuit pointed out that in 1976 it had said that whether malicious prosecution violates any constitutional rights was “undecided.”

(I represented the defendants in Harrington in the Eighth Circuit).

Comment

I have long argued, contrary to the Second Circuit’s approach, that section 1983 malicious prosecution claims should be based on the underlying constitutional violations alleged and not on state tort law elements.

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I blogged on September 7, 2012, about post-Iqbal pleading decisions in the circuits.

This year, as I was preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012; West Group)(CIVLIBLIT on WESTLAW), I came across three additional circuit court decisions applying Iqbal. I want to share them with you in advance of publication this fall of the 2013 Update.

Of particular interest is Judge Hamilton’s partially dissenting opinion in the Seventh Circuit’s McCauley decision.

First Circuit

In Grajales v. Puerto Rico Ports Authority, 682 F.3d 40 (1^st Cir. 2012), the district court had granted a motion to dismiss under Rule 12(c) submitted by the defendants in a political discrimination case, even though substantial discovery had been completed. The district court determined that the plaintiff’s claim did not cross Iqbal’s plausibility threshold because it did not allege sufficient facts to show political discrimination.

Reversing, the First Circuit did not have to decide whether the district court abused its discretion in ruling on defendants’ motion after nine months of pretrial discovery. Instead, the First Circuit found that the plaintiff’s complaint plausibly alleged political discrimination in violation of the First Amendment. There was enough alleged regarding the membership in different political parties of the plaintiff and the defendants, the defendants’ knowledge of plaintiff’s membership and the existence of an adverse employment action. Finally, the allegations of a close temporal proximity between the regime change and the beginning of pervasive cross-party harassment, without any legitimate explanation for such conduct,  were sufficient to show political animus.

Seventh Circuit

In McCauley v. City of Chicago, 671 F3d 611 (7^th Cir. 2011), the Seventh Circuit held that the plaintiff did not state an equal protection claim against the City of Chicago in connection with the killing of plaintiff’s decedent by her ex-boyfriend. It found that the plaintiff did not plausibly state a policy or practice equal protection claim under Iqbal  because the complaint contained only generalized allegations that the City failed to have specific policies in effect to protect victims of domestic violence from those who violate their parole or are under court orders for domestic violence.

Judge Hamilton dissented in part in a thoughtful opinion. 671 F.3d at 620. He argued that the plaintiff’s equal protection claim against the City should survive even under Iqbal because the complaint plausibly alleged that the City made a deliberate decision to minimize police protection available to women because of intentional animus against them.

Judge Hamilton then went on to list some of the problems posed by Iqbal to federal judges and litigants: its reasoning conflicted with Rule 9(b), with other recent Supreme Court decisions such as Leatherman and Swierkiewicz and with form complaints approved by the Supreme Court and Congress. He also criticized the Iqbal Court’s reliance on what he called the fact/conclusion dichotomy as highly subjective “and [it] returns courts to the long disapproved methods of analysis under the regime of code pleading.” 671 F.3d at 624. He further criticized that Court’s reliance on “judicial experience and common sense” as inviting highly subjective and inconsistent results. He concluded with two observations. First, under Iqbal it was questionable whether the amended complaint in Brown v. Bd. of Education would have survived. Second, federal courts should “freely” give leave to amend under Rule 15(a) where the interests of justice require.

Eighth Circuit

After removal to federal court, federal pleading rules control. Thus, in Christiansen v. West Branch Community School Dist., 674 F.3d 927 (8^th Cir. 2012), the Eighth Circuit affirmed the dismissal of the plaintiff’s § 1983 claims for failure to state causes of action under the criteria of Iqbal. Plaintiff originally filed in Iowa state court and the defendants had removed to federal court, resulting in the dismissal. The court rejected the plaintiff’s contention that he was at least entitled to a remand to amend his complaint to comply with Iqbal rather than Iowa’s no-set-of-facts pleading. Plaintiff should have been aware of the possibility of removal to federal court and of the application of Iqbal, and he had enough time to amend his complaint if he had wanted to.

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In my post of October 27, 2011,  entitled A Section 1983 Primer (5): Statutes of Limitations, I blogged about statutes of limitations in section 1983 cases. There I briefly discussed the complicated issues of (1) choosing the right state statute of limitations, (2) accrual of section 1983 claims and (3) when section 1983 claims are tolled.

In the course of my discussion of accrual, I wrote the following:

There is a special, and quite complicated, accrual rule, set out in Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the 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. See also the important 2007 decision in Wallace v. Kato, 549 U.S. 384 (2007), dealing with Heck, accrual and section 1983 false arrest/imprisonment claims.

I want to elaborate on this a bit more.

The Basics of Heck v. Humphrey

At the outset, it is crucial to understand the important distinction between federal habeas corpus and section 1983 claims. Federal habeas corpus challenges, brought pursuant to 28 U.S.C. sec. 2254, are challenges to the fact or duration of confinement and exhaustion of state judicial remedies is required .

In contrast, section 1983 claims are directed against conditions of confinement (such as allegedly inadequate medical care that violates the Eighth Amendment), and exhaustion of state judicial remedies is not required. See my post of November 29, 2009, on the seminal decision in Monroe v. Pape, 365 U.S. 167 (1961).

In Heck, the Court dealt with an issue at the “intersection” of habeas corpus and section 1983. The best way to get at this “intersection” is with two hypotheticals. Read the rest of this entry »

In the seventh in my Section 1983 Primer series, published on October 25, 2012, I blogged about the Supreme Court‘s approach to absolute immunity. I specifically referred to the three categories of absolutely immune defendants–legislators, judges and prosecutors–and also discussed the underlying policy considerations as well as the Court’s functional approach.

In the eighth in this series, published on February 20, 2013, I blogged about absolute legislative immunity.

I discuss absolute judicial immunity in this post.

Pierson v. Ray, 386 U.S. 537 (1967): The Seminal Judicial Immunity Decision

The Supreme Court held in Pierson v. Ray that judges are protected by absolute immunity when they act in a judicial capacity, even if they act unconstitutionally. The Court relied on the background of common law immunity in 1871, when section 1983 was enacted. In Pierson itself, a state court judge was ruled absolutely immune from damages liability under section 1983 even though he had convicted the plaintiff under an unconstitutional statute. For immunity purposes, it did not matter even if the judge did so knowingly.

Purposes of Absolute Judicial Immunity

Absolute judicial immunity is intended to protect the judicial process and not the judges themselves. If judges, who are easy targets, had to be concerned that rulings in civil or criminal cases would generate section 1983 claims against them–after all, someone almost always loses–this could have an adverse effect on their independent decision-making. In addition, section 1983 claims against judges would necessarily involve the relitigation of earlier cases. Further, there is ordinarily a remedy available: an appeal.

The Relevance of Subject Matter Jurisdiction

However, for absolute immunity to apply, the judge must not have acted in the complete absence of all subject matter jurisdiction. If, for example, a probate court judge without any subject matter jurisdiction whatever over criminal cases were to convict a person of a crime unconstitutionally, that judge would not be protected by absolute immunity.

On the other hand, if the existence of subject matter jurisdiction is merely debatable, absolute immunity would still apply, as made clear by the Court in Stump v. Sparkman, 435 U.S. 349 (1978). Read the rest of this entry »

In the seventh of my Section 1983 Primer series, published on October 25, 2012, I blogged about the Supreme Court‘s approach to absolute immunity under section 1983. I specifically referred to the three categories of absolutely immune defendants–legislators, judges and prosecutors–and also discussed the underlying policy considerations and the Court’s functional approach. In this post I discuss legislative immunity.

Tenney v. Brandhove, 341 U.S. 367 (1951): The Seminal Decision

Tenney dealt with the potential liability of members of a California legislative sub-committee investigating Communism subversion. The plaintiff, an admitted Communist, sued them personally for damages under section 1983, alleging that they perverted the investigative process and violated his First Amendment rights. Ruling for the defendants in an opinion by Justice Frankfurter (only Justice Douglas dissented), the Court held that they were protected by absolute immunity from damages liability as a matter of section 1983 interpretation.

The Court made several points that continue to be significant to this day. First, even though section 1983 on its face says nothing about absolute immunity for anyone, the statute is to be interpreted against the common law immunity background in 1871, when section 1983 was enacted. According to the Court, if Congress had intended to overturn the well-established immunity of state legislators, it would have said so explicitly. Second, the Court observed that the allegedly unconstitutional conduct took place during a legislative investigation, which was a normal part of the legislative process.

The Impact and Coverage of Legislative Immunity

The point of absolute legislative immunity is to protect the democratic decision-making process from the chilling effect of lawsuits, as well as from liability. Once a legislator successfully asserts absolute immunity (typically by motion to dismiss or for summary judgment), he or she is no longer a defendant in the section 1983 action even if the allegations of the complaint are true. Therefore, it is the plaintiff who bears the costs of the constitutional deprivation.

Absolute immunity extends beyond state legislative conduct to include regional and local legislative conduct as well. Lake County Estates v. Tahoe Regional Planning Authority, 440 U.S. 966 (1979)(regional legislators); Bogan v. Scott-Harris, 523 U.S. 44 (1998)(local legislators).

Recall, however, that the Court takes a functional approach to immunity, so that legislative immunity applies only to legislative acts and not, for example, to administrative acts.

Comments

Absolute legislative immunity is powerful medicine. On balance, though, it is justified by the need to promote independent legislative decision-making by defendants. After all, legislators are highly visible targets of litigation: their decisions will inevitably make many people unhappy. Also, there is a political solution available: the ballot.

Next: Absolute Judicial Immunity