Nahmod Law

The Problem

Suppose a section 1983 plaintiff sues individual police officer defendants and a local government, alleging that they violated his constitutional rights and are liable in damages to him.  The individual defendants move for summary judgment based on qualified immunity, as they are entitled to do under Harlow v. Fitzgerald, 457 U.S. 800 (1982), and its progeny.  According to the Supreme Court in Pearson v. Callahan, 129 S. Ct. 808 (2009), modifying the “order of battle” approach of Saucier v. Katz, 533 U.S. 194 (2001)–see post of 9-17-09— the qualified immunity inquiry may, in the discretion of the district court, include both (1) whether the defendants violated the plaintiff’s constitutional rights (that is, whether the plaintiff asserted a constitutional violation) and (2) if they did, whether the defendants nevertheless are not liable because they did not violate clearly settled law as of the time of the challenged conduct.

Suppose now that the district court rules that the individual defendants did violate the plaintiff’s constitutional rights but that they did not violate clearly settled law and are thus entitled to qualified immunity.  May the defendants interlocutorily appeal the district court’s determination that the defendants did in fact violate the plaintiff’s constitutional rights where the plaintiff does not appeal the grant to the defendants of qualified immunity?

Consider that the defendants prevailed at the district court level; that technically speaking the ruling that the individual defendants violated the plaintiff’s constitutional rights is really not part of the district court’s judgment; and that the dispute between the plaintiff and the individual defendants may now be moot. The plaintiff would prefer a determination that the Circuit Court of Appeals does not have jurisdiction so that the plaintiff’s case against the local government can go forward without any further delay (recall that local governments are not protected by qualified immunity. Owen v. City of Independence, 445 U.S. 622 (1980)).

For the same reason, though, the local government defendant has an interest in a decision by the Court of Appeals on the constitutional merits as soon as possible. Moreover, an argument can be made that the district court’s statement of the applicable constitutional law affects not only the defendants but all other police officers similarly situated in the jurisdiction who would perhaps be governed by the district court’s announced constitutional standard unless and until it is overturned by a Court of Appeals. Read the rest of this entry »

Qualified Immunity Fundamentals

Qualified immunity under section 1983 is a powerful affirmative defense, protecting a state or local government official sued in an individual capacity from damages liability where the official can show that he or she acted with a reasonable belief in the constitutionality of the challenged conduct. To put it somewhat differently: a government official is not liable for damages for violating a person’s constitutional rights where a reasonable official, confronting the circumstances as they appeared to the official at the time of the challenged conduct and in light of then-established law, could have believed his or her conduct was constitutional. If the challenged conduct violated clearly settled law as of the time of the conduct, the official acted unreasonably and loses on qualified immunity. The qualified immunity standard is thus objective in nature. Harlow v. Fitzgerald, 457 U.S. 800 (1982) and Anderson v. Creighton, 483 U.S. 635 (1987). See generally chapter 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2010)(CIVLIBLIT on Westlaw).

However, qualified immunity amounts to even more than this. Over the years it has increasingly begun to function more like absolute immunity: qualified immunity provides significant protection not only from damages liability but from the costs of defending as well. Thus, qualified immunity summary judgment motions should ordinarily be decided before any significant discovery is undertaken. Harlow v. Fitzgerald. In addition, denials of qualified immunity summary judgment motions are immediately appealable on issues of law, although not for evidentiary sufficiency. Johnson v. Jones, 515 U.S. 304 (1995).

The Decision in Ortiz v. Jordan

Suppose that defendants in a section 1983 case raise qualified immunity on summary judgment and lose at the district court level because there are genuine issues of material fact in dispute. The defendants choose not to appeal, the case goes to trial and a jury finds for the plaintiff. Suppose further that defendants never contested the jury’s liability finding under F.R.C.P. 50 (b) and also did not request a new trial under Rule 59(a). After the district court enters judgment for the plaintiff, the defendants appeal and argue that the district court should have granted their qualified immunity motion for summary judgment in the first place.

May the defendants appeal the denial of their qualified immunity motion for summary judgment after the district court has held a full trial on the merits? The Court in Ortiz v. Jordan (PDF), No. 09-737 (1-25-11), resolved a conflict in the circuits and unanimously answered NO. Read the rest of this entry »

Introduction

(It has been a while since I posted on section 1983; what follows is my discussion of a Supreme Court section 1983 decision just handed down on November 30, 2010).

It is section 1983 black letter law after Monell v. Department of Social Services, 436 U.S. 658 (1978), that a local government can only be liable in damages when its official policy or custom was responsible for the plaintiff’s constitutional deprivation. Respondeat superior liability is not a proper basis for local government liability under section 1983.

But suppose that a plaintiff seeks prospective (declaratory and/or injunctive) relief against a local government under section 1983: is the official policy or custom requirement still in play, or is it applicable only to section 1983 damages actions? Further, if the official policy or custom requirement applies to prospective relief actions against local governments as well, does it matter whether the local government is sued for prospective relief in its own name or in the name of an official?

Los Angeles County v. Humphries

In Los Angeles County v. Humphries, 131 S. Ct. — (2010), the Supreme Court held that the official policy or custom requirement does indeed apply to prospective relief actions brought against local governments sued in their own names.

In this case, the plaintiffs, accused but later exonerated of child abuse, sued the attorney general of California, the Los Angeles County sheriff, two detectives in the sheriff’s department and Los Angeles County, and sought damages and prospective relief against all of them. They sought this relief because they were unable to have their names removed from a state-mandated Child Abuse Central Index even after they were exonerated. Ultimately, the Ninth Circuit held that the state was required by procedural due process to provide those included on the Index with notice and some sort of hearing; that the plaintiffs were entitled to declaratory relief against all of the defendants; and that they were prevailing parties entitled to attorney’s fees under 42 U.S.C. section 1988 against all of the defendants, including Los Angeles County. Read the rest of this entry »

Some Questions

What is a SLAPP lawsuit? What is an anti-SLAPP statute? And what, if anything, does section 1983 have to do with anti-SLAPP statutes?

Some Answers

1.  A SLAPP (Strategic Litigation Against Public Participation) lawsuit is one that is filed to chill the exercise of a defendant’s First Amendment rights in order “to obtain a financial advantage over one’s adversary by increasing litigation costs until the adversary’s case is weakened or abandoned.” John v. Douglas County School Dist., 219 P.3d 1276, 1280 (Nev. 2009).

2.  Nevada enacted an anti-SLAPP statute whose primary purpose was to protect the right to petition government for redress of grievances. The Nevada statute, modeled on California’s anti-SLAPP statute, provided that when a plaintiff brings an action “against a person based on a good faith communication in furtherance of the right to petition,” the defendant may file a special motion to dismiss which is treated procedurally as a motion for summary judgment so that the trial court can dismiss only if there are no genuine issues of material fact in dispute. Also, the moving party bears the initial burden of production and persuasion.

3.   May state courts apply such an anti-SLAPP statute to a section 1983 claim despite possible preemption under the Supremacy Clause? According to the Nevada Supreme Court in John, the answer is yes. Read the rest of this entry »

The Case

The Supreme Court has granted certiorari in Skinner v. Switzer,  2010 WL 338018 (Fifth Cir. 2010), cert granted, 130 S. Ct – (May 24, 2010), to deal with the following Question Presented:

May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a civil rights action under 42 U.S.C. § 1983, or is such a claim cognizable only in a petition for writ of habeas corpus?

In the words of the petitioner, Skinner involves the following:

For ten years, Henry W. Skinner has sought access to DNA testing that could prove him innocent of the murders that landed him on Death Row. After the Texas courts arbitrarily turned back his diligent attempts to take advantage of state statutes affording such relief, he sued in federal court under 42 U.S.C. § 1983 to vindicate his due process right to “‘fundamental fairness in [the] operation’” of Texas’s scheme. Dist. Atty’s Office v. Osborne, 129 S. Ct. 2308, 2320 (2009)(citation omitted). The district court dismissed Mr. Skinner’s § 1983 suit solely on the ground that his claim sounded only in habeas corpus, and the Fifth Circuit summarily affirmed. The question presented is the same one the Court granted certiorari in Osborne to decide, but left unresolved. Read the rest of this entry »

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. Typically, and to oversimplify, a reasonable attorney’s fee is based on what is called the “lodestar,” namely, the number of hours worked multiplied by the normal hourly billing rate. This lodestar is then modified to take account of the extent of the plaintiff’s success. See Hensley v. Eckerhart, 461 U.S. 424 (1983), dealing with the extent of success, and Blum v. Stenson, 465 U.S. 886 (1984), addressing prevailing market rates. The Court has declared that enhancements to the lodestar based on the contingency of success are not permissible under other statutory attorney’s fees provisions, City of Burlington v. Dague, 505 U.S. 557 (1992), and therefore are not permissible under § 1988 as well because of similar statutory language.

Question: What about enhancements to the lodestar based on the quality of an attorney’s performance and the results obtained? After Purdue v. Kenny A., 130 S. Ct. — (2010), the short answer is that these are permissible only in truly extraordinary circumstances.

Purdue v. Kenny A.

Purdue v. Kenny A., which involved a consent decree arising out of the plaintiff childrens’ successful class action against Georgia officials alleging structural deficiencies in Georgia’s foster-care system, dealt with the question of whether an attorney’s fees award based on the lodestar can ever be enhanced based solely on the quality of an attorney’s performance and the results obtained. A panel of the Eleventh Circuit had affirmed the district court’s $4.5 million enhancement of the $6 million lodestar figure based on these two factors.

Reversing and remanding, Justice Alito declared for the Court:

“This case presents the question whether the calculation of an attorney’s fee, under federal fee-shifting statutes, based on the “lodestar,” i.e., the number of hours worked multiplied by the prevailing hourly rates, may be increased due to superior performance and results. We have stated in previous cases that such an increase is permitted in extraordinary circumstances, and we reaffirm that rule. But as we have also said in prior cases, there is a strong presumption that the lodestar is sufficient; factors subsumed in the lodestar calculation cannot be used as a ground for increasing an award above the lodestar; and a party seeking fees has the burden of identifying a factor that the lodestar does not adequately take into account and proving with specificity that an enhanced fee is justified. Because the District Court did not apply these standards, we reverse the decision below and remand ….” Read the rest of this entry »

Introduction

As in ordinary tort law, a person who is sued under section 1983 for damages must be shown to be responsible in order to held liable. In other words, that person must have caused the plaintiff’s constitutional deprivation. But in certain section 1983 cases involving impermissible motivation, such as public employee equal protection and First Amendment cases, there are complications arising out of the burden-shift rule of Mt. Healthy Bd. of Education v. Doyle, 429 U.S. 274 (1977).

Typical Fact Pattern

Suppose a public employee is discharged and believes the discharge was impermissibly motivated either because of race (equal protection) or because what he or she said (First Amendment). It turns out that even if the plaintiff can prove this, he or she will not necessarily win on the merits and recover damages because of the Mt. Healthy burden-shift rule.

How the Mt. Healthy Burden-Shift Rule Works

Under Mt. Healthy, (1) the plaintiff has the burden of proving by a preponderance of the evidence that the impermissible motive was a substantial factor (not the but-for cause or the sole cause) for the discharge. Once the plaintiff does this, the plaintiff has made out a prima facie case and will prevail on the merits (2) unless the defendant can prove by a preponderance of the evidence that there was a permissible factor–such as insubordination, incompetence or the like–that also played a role in the discharge and–here’s the key– (3) the plaintiff would have been discharged anyway even in the absence of the impermissible motive. Read the rest of this entry »