Archive for the ‘Civil Rights – Section 1983’ Category
“Section 1983 Is Born”: A Working Paper
I have written an article about the birth of section 1983 in the Supreme Court that I hope to have published this year.
The article is entitled: Section 1983 Is Born: The Supreme Court Stories of Tenney v. Brandhove and Monroe v. Pape.
It is available as a Working Paper on SSRN and can be downloaded here.
The following is an abstract of this Working Paper:
Section 1983, enacted in 1871, famously provides a damages remedy against state and local government officials and local governments for violations of constitutional rights. But it was only in 1951, in the seminal decision of Tenney v. Brandhove, a legislative immunity case involving an admitted Communist, that the Supreme Court for the first time expressly interpreted the language of section 1983. Ten years later, in 1961, the Court handed down another seminal section 1983 decision: Monroe v. Pape involved a section 1983 claim brought by an African-American alleging police misconduct. Both cases pitted two influential Supreme Court justices and FDR appointees, Felix Frankfurter and William Douglas, against one another in majority and dissenting opinions. Justice Frankfurter was an unremitting advocate of federalism, deference to politically accountable bodies, and judicial restraint. In contrast, Justice Douglas was an ardent proponent of individual rights who had relatively little concern for federalism.
I tell of the birth of section 1983 jurisprudence through the stories of these two cases. Their stories are contained in the papers of Justices Frankfurter and Douglas and in their majority and dissenting opinions. They are also contained in the parties’ petitions for certiorari and briefs and in Monroe’s oral argument. Moreover, these stories must be understood against the background of the political and social settings in which Tenney and Monroe arose. The Cold War and anti-Communist sentiment situate Tenney while the Civil Rights movement and the post-Brown era situate Monroe.
These stories are of interest to section 1983 scholars, to historians of civil rights and constitutional law and to general readers. For one thing, Justice Frankfurter played an outsized role in both decisions. For another, these decisions demonstrate that the early and deep tension between individual rights and federalism — a tension that began with the Fourteenth Amendment and continues to this day — was present at the very beginning of the development of the Supreme Court’s section 1983 jurisprudence. The certiorari petitions and briefs in these cases and the oral argument in Monroe also articulate this tension. Finally, the very different political and social contexts in which Tenney and Monroe were decided illuminate the decisions themselves.
New Supreme Court Attorney’s Fees Decision: Lefemine v. Wideman
Introduction
The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, provides that prevailing plaintiffs in § 1983 and other civil rights cases (excluding prisoners who are separately covered by the Prison Litigation Reform Act of 1995) are ordinarily entitled to a reasonable attorney’s fee unless special circumstances render such an award unjust. So the threshold question is whether the plaintiff has prevailed.
Under § 1988, it has long been clear that a plaintiff who recovers damages or obtains meaningful injunctive relief is a prevailing plaintiff. See §§ 10:4-10:11 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012)(CIVLIBLIT on Westlaw). But every so often federal courts need to be reminded of the obvious.
Lefemine v. Wideman, 81 U.S.L.W. 4005 (11-5-2012)(per curiam)
In this case, the Fourth Circuit held (PDF) that “a plaintiff who secured a permanent injunction but no monetary damages was not a ‘prevailing party’ under 42 U.S.C. § 1988, and so could not receive fees.” Reversing (PDF), the Supreme Court declared: “That was error [b]ecause the injunction ordered the defendant officials to change their behavior in a way that directly benefited the plaintiff.”
The plaintiff, an anti-abortion demonstrator who displayed signs with graphic pictures of aborted fetuses, sued county law enforcement officers under § 1983 and the First Amendment for nominal damages and declaratory and injunctive relief in connection with past and planned future demonstrations. The district court found that the defendants had previously violated the plaintiff’s First Amendment rights. The district court also permanently enjoined the defendants from engaging in content-based discrimination based on the signs with the pictures. But the district court denied nominal damages on the ground that the defendants were protected by qualified immunity. The district court further denied the plaintiff attorney’s fees based on “the totality of the facts,” and the Fourth Circuit affirmed. The Fourth Circuit reasoned that the injunction did not alter the relationship between the parties, as required for prevailing party status. The plaintiff sought certiorari in the Supreme Court.
The Supreme Court granted certiorari, vacated the Fourth Circuit’s judgment and remanded, all without merits briefs and oral argument. According to the Court’s per curiam opinion, the plaintiff was clearly a prevailing party because he wanted to conduct demonstrations with signs that the defendants had told him he could not carry. He had sued in order to protect himself from the defendants’ threats against him, and he was successful. “[T]hat ruling worked the requisite material alteration in the parties’ relationship. … [A]fter the ruling, the police could not prevent him from demonstrating in that manner.”
Comment
Lefemine is an easy case. You have to wonder what the Fourth Circuit was thinking.
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A Section 1983 Primer (7): Introduction to Absolute Individual Immunity
Persons Who Are Not “Persons”
The language of section 1983 makes “[e]very person” who deprives another of his or her constitutional rights under color of law potentially liable in damages.
On its face, section 1983 does not provide for any individual immunities. Moreover, the legislative history on this question is almost entirely lacking.
It turns out, nevertheless, that there are individuals who are not “persons” and who are absolutely immune from damages liability when sued in their individual capacities.
Three Categories of Absolutely Immune Individuals
There are three categories of absolutely immune defendants about which I will separately post later: state and local legislators, judges and prosecutors. But for now, I want to make the following introductory comments.
The Supreme Court’s Approach and Policy Considerations
Over the years the Supreme Court has developed the three categories of absolutely immune defendants by asking two questions.
First, what was the common law immunity background in 1871, when section 1983 was enacted? Second, if the 1871 common law provided for absolute immunity, is that consistent with the purposes of section 1983 in general?
The policy considerations specifically underlying absolute individual immunity are several. The core policy, though, is the promotion of independent decision-making without fear of either being sued (the costs of defending) or personal liability (the costs of liability). In other words, absolute immunity provides a wide margin for error for certain government officials whose functions are so very important that they should not be “chilled” at all when they make their legislative, judicial or prosecutorial decisions. Read the rest of this entry »
Section 1983 and the Intracorporate Conspiracy Doctrine
The Intracorporate Conspiracy Doctrine
What is the intracorporate conspiracy doctrine and what role, if any, does it play in the § 1983 conspiracy setting?
In the words of the Eleventh Circuit in a § 1985(3) case, “under the doctrine, a corporation cannot conspire with its employees, and its employees, when acting within the scope of their employment, cannot conspire among themselves.”McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000)(en banc).
(Mis?)Applying the Doctrine in a § 1983 Case: The Eleventh Circuit in Grider v. City of Auburn
Subsequently, in another Eleventh Circuit case, Grider v. City of Auburn, 618 F.3d 1240 (11th Cir. 2010), the plaintiff sued various city officials, including law enforcement officers, under § 1983, alleging that they maliciously conspired to prosecute him falsely for bribery. Even though the evidence showed that one of the officers was involved in the other’s bribery charge against the plaintiff, the court ruled that both officers could not be sued for an alleged § 1983 conspiracy because of the intracorporate conspiracy doctrine. Read the rest of this entry »
Two Recent Post-Iqbal Pleading Decisions in the Circuits
Introduction
Several years ago the Supreme Court articulated what it termed a plausibility standard for pleading in federal courts. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(antitrust) and, especially, Ashcroft v. Iqbal, 556 U.S. 662 (2009)(Bivens action vs. federal officials). Precisely what this meant in real-world terms was not entirely clear, and federal courts and litigants have since struggled with the plausibility standard and its relation to notice pleading in federal courts.
Last year, in a post dated 5-13-11, I set out several post-Iqbal decisions from three circuits. This year, as I was again preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2011; West Group)(CIVLIBLIT on WESTLAW), I came across two additional circuit court decisions applying Iqbal. I want to share them with you in advance of publication this fall of the 2012 Update.
One of these decisions is from the First Circuit. The other is from the Seventh and was written by Judge Posner. Read the rest of this entry »
A Section 1983 Primer (6): Claim and Issue Preclusion
This is the sixth of my section 1983 primers. I previously blogged on section 1983’s history and purposes (post of 10-29-09); on Monroe v. Pape (post of 11-29-09); on constitutional states of mind (post of 2-6-10); on causation in fact and the Mt. Healthy burden-shift rule (post of 4-25-10); and on statutes of limitations in section 1983 cases (post of 10-27-11).
Overview of Preclusion
This post addresses the important practical topic of claim preclusion (res judicata, which concerns claims that were or could have been raised), and issue preclusion (collateral estoppel, which concerns issues that were raised and adjudicated) in section 1983 cases. Preclusion concerns arise in section 1983 federal court litigation when there is a prior final state judicial or administrative proceeding that involved the same parties (or their privies) and implicated (or could have implicated) the same issues.
To what extent may those claims or issues be relitigated in a subsequent section 1983 federal court proceeding? As it turns out, the answer in each case depends, as a matter of federal law, on the forum state’s preclusion law.
1. The Relevance of 28 U.S.C. section 1738
Like statute of limitations issues in section 1983 litigation, preclusion issues involve a mixture of federal and state law. This is because 28 U.S.C. section 1738 requires federal courts to give the same effect to prior state judicial decisions as would the courts of the forum state. Section 1738 is based on the Constitution’s Full Faith and Credit Clause, Art. IV, section 1.
2. The Preclusive Effect of Prior State Criminal Proceedings
(a) Suppose that a defendant in a criminal case makes a Fourth Amendment motion to suppress evidence, which the state court denies, and the defendant is acquitted anyway. The defendant then becomes a section 1983 plaintiff seeking damages against the law enforcement defendants for violating his Fourth Amendment rights. What is the preclusive effect, if any, of that state court decision on the plaintiff’s section 1983 Fourth Amendment claim? Read the rest of this entry »
Article: The Long and Winding Road from Monroe to Connick
I spoke on November 3, 2011, at Loyola Law School (New Orleans) at a program entitled “Prosecutorial Immunity: Deconstructing Connick v. Thompson.” The audience included attorneys, law students, professors and members of the public.
I posted this talk as a podcast on December 6, 2011, and as a video on December 19, 2011.
In this post, I provide a link to the resulting article, The Long and Winding Road from Monroe to Connick, recently published in 13 Loyola Journal of Public Interest Law 247 (2012).
The abstract of this article and the link appear below.
In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view of federalism set out in his dissent in Monroe.
Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2118009
I hope you find the article of interest.
New Supreme Court Decision: Reichle v. Howards and First Amendment Retaliatory Arrests
Reichle v. Howards, 132 S. Ct. — (2012), decided on June 4, 2012
I blogged on March 29, 2012, about the Supreme Court‘s grant of certiorari in Reichle v. Howards, a case arising out of the Tenth Circuit. As noted there, the Supreme Court had granted certiorari to deal with the important question of whether there should be a probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech.
(See that post for relevant background, including the important decision in Hartman v. Moore, 547 U.S. 250 (2006).)
On June 4, 2012, the Court, in an opinion by Justice Thomas, avoided the merits and ruled instead that the defendants were protected by qualified immunity.
The Tenth Circuit Decision
The defendants were two Secret Service Agents who were on protective detail for Vice President Cheney when they arrested the plaintiff after his encounter with the Vice President: probable cause was provided by the fact that the plaintiff lied to the defendants about touching the Vice President, a violation of federal law. The plaintiff alleged, though, that he was actually arrested in violation of the First Amendment because he was overheard saying he wanted to ask the Vice President personally “how many kids he had killed.”
The Tenth Circuit held on the merits that there was no such probable cause defense to the First Amendment retaliatory arrest claim, although it noted the split in the circuits on this issue. The Tenth Circuit also found that the defendants were not entitled to qualified immunity on this claim: they violated clearly settled First Amendment circuit law when they arrested the plaintiff because of his speech, even though they had independent Fourth Amendment probable cause grounds to arrest him. Howards v. McCaughlin, 634 F.3d 1131 (10th Cir. 2011), with Judge Kelly concurring in part and dissenting in part.
The Supreme Court Decision
The Supreme Court reversed in an opinion by Justice Thomas. The Court avoided deciding whether probable cause was a defense to a First Amendment retaliatory arrest claim. Instead, it ruled that the defendants were protected by qualified immunity because they did not violate clearly settled First Amendment law: “This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly settled at the time of Howards’ arrest.” Read the rest of this entry »
DeShaney in the Circuits (II): Affirmative Duties and Danger-Creation
I blogged on August 22, 2011, about the Supreme Court’s controversial no-affirmative due process duty decision in DeShaney v. County of Winnebago, 489 U.S. 189 (1989). I also set out several then-current circuit court decisions dealing with DeShaney issues. Please see that post for background.
I came across the following more recent decisions from the First, Fifth, Seventh and Eighth Circuits in the course of preparing the 2012 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012)(forthcoming in September).
Coscia v. Town of Pembroke, 659 F.3d 37 (1st Cir. 2011)
The decedent’s mother, representing the estate, sued police officer and others, alleging that they failed to provide medical services to her 21 year-old son who threatened suicide while in police custody following a one-car accident, and who in fact committed suicide about fourteen hours after his release by stepping in front of a train. During the time he was in custody he attempted to engage in self-destructive behavior and was deemed a high suicide risk. Nevertheless, he was not examined by a doctor but was released on his own recognizance. Reversing the district court and dismissing the complaint, the First Circuit stated: “We … hold that in the absence of a risk of harm created or intensified by state action there is no due process liability for harm suffered by a prior detainee after release from custody in circumstances that do not effectively extend any state impediment to exercising self-help or to receiving whatever aid by others may normally be available.”
Comment: Note the proximate cause/remoteness problem for the plaintiff here in addition to the danger creation issue. Read the rest of this entry »
Filarsky v. Delia: A New Supreme Court Private Individual Immunity Decison
Filarsky v. Delia
I blogged on November 10, 2011, about the Supreme Court‘s grant of certiorari in Delia v. City of Rialto, 621 F. 3d 1069 (9th Cir. 2011), sub nom Filarsky v. Delia, No. 10-1018, where the Ninth Circuit held that a private attorney retained by the government was not entitled to qualified immunity, even though all of the government actors involved in the same challenged conduct were so protected because they did not violate clearly settled law.
The Question Presented was the following: “Whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a ‘private’ lawyer rather than a government employee.”
In a unanimous decision handed down on April 17, 2012, and written by Chief Justice Roberts, the Court 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. Filarsky v. Delia, 132 S. Ct. — (2012).
As mentioned in the prior post, the major purpose of qualified immunity, with its emphasis on violations of clearly settled law, is to provide government officials and employees with a margin for error so that they are not unduly chilled in the exercise of their independent judgment. However, situations occasionally arise where private individuals are sued under section 1983 under the theory that they acted jointly, or conspired, with state or local government officials or employees. In such cases, they act under color of law and can be held liable in damages under section 1983. The question arose: are such private individuals entitled to the same qualified immunity as government officials and employees? Read the rest of this entry »
Nahmod Law 