Nahmod Law

Introduction

By now, all of us know that Justice Stevens has announced that he will step down immediately after the last day of the 2009 Term (in late June or early July 2010). In this post, I want to call attention to Justice Stevens’s unheralded position advocating respondeat superior liability for section 1983 local government liability.

Justice Stevens and Local Government Liability

This position was articulated by Justice Stevens, dissenting in Oklahoma City v. Tuttle, 471 U.S. 808, 834-844 (1985), and concurring in part and concurring in the judgment in Pembaur v. Cincinnati, 475 U.S. 469, 489-491 (1986). Essentially, he argued that the Court got it wrong in the seminal decision in Monell v. Dept. of Social Services, 436 U.S. 658 (1978), where the Court held, rejecting respondeat superior liability, that a local government could only be liable for damages under section 1983 when a plaintiff’s constitutional deprivation was brought about by an official policy or custom of the local government.

In his view, respondeat superior liability was an appropriate basis for local government liability for several reasons. First, in 1871 when section 1983 was enacted, local governments were indeed vicariously liable for many of their employees’ acts. And second, section 1983’s “subjects, or causes to be subjected” language was not inconsistent with respondeat superior liability.

His Position Exhumed

In Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997), Justice Breyer, joined by Justices Stevens and Ginsburg, argued that in light of the increasing complexities of section 1983 local government liability, it was time to reexamine Monell‘s rejection of respondeat superior liability and its embrace of the official policy or custom requirement.

Justice Breyer maintained that Justice Stevens’s position was looking increasingly attractive because Monell had “produced an highly complex body of interpretive law.”  He argued that “the legal prerequisites for reexamination of an important statute are present here.” Among other things, the soundness of the original principle distinguishing respondeat superior liability from the official policy or custom requirement was doubtful. Also, this requirement had created a body of law that was “neither readily understandable nor easy to apply.”

Furthermore, these complexities had made it difficult for local governments to predict just when they would be held liable. Finally, many local government indemnification statutes provided for payments to victims of constitutional violations that were similar to those that would be provided in a respondeat superior regime.

Observations

Not surprisingly, Justice Breyer’s call in Bryan County for a reexamination of Monell fell on deaf ears in 1997. It is even less likely in 2010  that the Court will ease the requirements for section 1983 local government liability given its continuing, almost obsessive, concern with avoiding section 1983  respondeat superior liability. See, for example, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), which has been the subject of several posts, where the Court on its own changed the requirements for constitutional tort supervisory liability because of this concern.

Nevertheless, I wonder what the world of section 1983 local government liability would have looked like had the Court in Monell not rejected respondeat superior liability but instead adopted Justice Steven’s position.

Introduction

Readers of this blog will recall that, as discussed in a prior post, the Court last Term held in Van De Kamp v. Goldstein, 129 S. Ct. 855 (2009), that supervisory prosecutors charged with failing to train prosecutors in connection with the proper use in criminal trials of jailhouse informants were absolutely immune from damages liability in their individual capacities, despite the fact that this function was administrative in nature.  And they will also recall, as discussed in a different post, that the Court granted certiorari in another prosecutorial immunity case, Pottawattamie County v. McGhee, 129 S. Ct. 2002 (2009), only to dismiss when the case was settled after oral argument.

The Supreme Court recently granted certiorari in a third case involving prosecutors and § 1983 liability. Connick v.Thompson, No. 09-571, granting cert in Thompson v. Connick,  578 F.3d 293 (2009), deals with the liability of a prosecutor’s office for an alleged failure to train prosecutors in connection with their responsibilities under Brady v. Maryland, 373 U.S. 83 (1963), to turn over possibly exculpatory evidence to a criminal defendant. Connick raises issues of local government liability for failure to train arising out of Court’s seminal failure to train decision in City of Canton v. Harris, 489 U.S. 378 (1989) and the related decision in Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997).

The Claim and Issues in Connick

The § 1983 plaintiff was convicted of murder and spent fourteen years on death row for a crime that he did not commit, allegedly because prosecutors did  not turn over to his attorney a lab report in a related case in which he had previously been convicted of attempted aggravated armed robbery. This lab report indicated that the perpetrator of the attempted armed robbery had type B blood, while the plaintiff had type O blood. Because of that conviction, the plaintiff did not testify in his own defense at his murder trial, where he was convicted. Many years later, the lab report that the prosecutors had failed to turn over was discovered, with the result that, in 1999, plaintiff’s attempted armed robbery conviction was vacated and, in 2002, his murder conviction was overturned. A subsequent murder retrial in 2003, at which plaintiff testified in his defense, resulted in a not guilty verdict.

He then sued the prosecutor’s office for damages under § 1983, in essence making a local government liability failure to train claim regarding proper training under Brady, and a jury awarded him $14 million. The district court affirmed and a panel of the Fifth Circuit affirmed in a decision later vacated by the Fifth Circuit when it granted en banc review. However, since the en banc Fifth Circuit (in three opinions) was evenly divided, the district court’s decision was affirmed.

The basis of the jury verdict and district court judgment was twofold. First, the district attorney in his official capacity (meaning the prosecutor’s office) was deliberately indifferent to an obvious need to train prosecutors regarding their obligations under Brady.  And second, the lack of Brady training was the moving force behind plaintiff’s constitutional injury. The en banc Fifth Circuit divided evenly on each of these findings.

The Court granted certiorari to decide the following Question Presented: “Does imposing failure-to-train liability on a district attorney’s office for a single Brady violation contravene the rigorous culpability and causation standards of Canton and Bryan County [where there is no history of similar Brady violations]? Read the rest of this entry »

Introduction

Are there state of mind requirements for the section 1983 cause of action? The answer is NO as a statutory matter and YES as a constitutional matter.

The Background

Recall that the Supreme Court stated in Monroe v. Pape, 365 U.S. 167 (1961), that section 1983 is to be interpreted against “the background of tort liability.” What does that mean? One possibility is that there is some sort of state of mind requirement, stemming from section 1983 itself, for the 1983 cause of action. If so, is it negligence, deliberate indifference, intent or something else?

After some confusion in the circuits, the Supreme Court finally put the matter to rest in Parratt v. Taylor, 451 U.S. 527 (1981),when it declared as a statutory matter that there is no state of mind requirement for the section 1983 cause of action.

However, it turns out that there are state of mind requirements for the section 1983 cause of action that are based on the underlying constitutional claim.

Constitutional States of Mind, Variable and Otherwise

Simply put, different constitutional provisions have their own state of mind requirements. Thus, it has been the rule since Washington v. Davis, 426 U.S. 229 (1976), that equal protection violations require purposeful discrimination. There is therefore no such thing as a negligent or deliberately indifferent equal protection violation. Similarly, the Supreme Court declared in Daniels v. Williams, 474 U.S. 327 (1986), that due process violations require an abuse of government power, so that negligence is not sufficient. And Eighth Amendment violations require at least deliberate indifference, according to the Court in Farmer v. Brennan, 511 U.S. 825 (1994).

However, it is a bit more complicated than that: different states of mind may be required under the same constitutional provision where the circumstances are different. I call these variable state of mind requirements. For example, while the general rule in substantive due process cases is that deliberate indifference is required, in high speed police pursuit cases where police have little or no time to deliberate, the state of mind required, as ratcheted up by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833 (1998), is “purpose to cause harm.” Similarly, while the general rule in prison condition of confinement cases is that the Eighth Amendment requires deliberate indifference in the sense of subjective criminal recklessness, in prison security cases the state of mind required, as ratcheted up by the Supreme Court in Whitley v. Albers, 475 U.S. 312 (1986), is conduct engaged in “maliciously and sadistically for the very purpose of causing harm.”

Why Different Constitutional States of Mind?

At the most superficial level, the Court engaged in constitutional interpretation when it ruled that equal protection requires purposeful discrimination, that due process requires at least deliberate indifference and that the Eighth Amendment requires at least deliberate indifference in the sense of subjective criminal recklessness. In reality, there is considerably more going on.

First, these state of mind requirements are fault or culpability requirements. The particular constitutional provision implicated in a section 1983 case, which includes its state of mind requirement, constitutes the constitutional norm applicable to the defendant’s conduct. Without fault, there can be no section 1983 cause of action.

Second, these state of mind requirements can serve functions other than setting out the applicable fault or constitutional norm. Notice how the scope of  section 1983 liability decreases the higher or more culpable the applicable state of mind requirement. Proving  purpose to do harm in a high speed police pursuit case, for example, is much more difficult for plaintiffs than proving deliberate indifference. In this way, the need to compensate for harm caused is reduced .

Perhaps more important, higher state of mind requirements reduce what the Supreme Court increasingly views as the improper chilling effect of potential damages liability on independent decision-making by government officials. Put differently, the Supreme Court is increasingly concerned with over-deterrence.

While this concern with over-deterrence is most obvious in the individual immunities context, it plays a major role in determining applicable constitutional states of mind and is therefore frequently determinative of the scope of the section 1983 cause of action as well.

Pottawattamie County Case in Supreme Court: Argued November 4, 2009

The Supreme Court heard argument in Pottawattamie County v. McGhee, 129 S. Ct. 2002 (2009)(granting certiorari), on November 4, 2009. What follows is a description of the important section 1983 prosecutorial immunity issues raised.

[Full disclosure: I consulted with defense counsel and my name appears on their merits brief in the Supreme Court].

IMPORTANT UPDATE: AFTER ORAL ARGUMENT THE PARTIES SETTLED THE CASE AND MOVED TO DISMISS THE PETITION FOR CERTIORARI. THE PETITION WAS DISMISSED PURSUANT TO RULE 46 ON JANUARY 4, 2010.

Doctrinal Background

The Supreme Court held some time ago in Imbler v. Pachtman , 424 U.S. 409 (1976), that prosecutors are absolutely immune from damages liability for their advocative conduct in connection with trials. This immunity was based on the common law immunity background in 1871 (when section 1983 was enacted) and the important policy consideration of promoting  independent decision-making by prosecutors. The Court later elaborated on prosecutorial immunity doctrine in Buckley v. Fitzsimmons , 509 U.S. 259 (1993), where it held that such immunity does not extend to a prosecutor’s conduct that is investigative in nature and that precedes the existence of probable cause; such conduct is protected only by qualified immunity. In so ruling, the Court applied what has come to be known as the functional approach to immunities under which it is not the person who is protected by absolute or qualified immunity but rather the function performed.

The Pottawattamie County Case

In this case, prosecutors were accused of manufacturing evidence in a murder case in order to falsely arrest, prosecute, try and convict the plaintiffs. The evidence allegedly manufactured included providing a coerced witness with false information, with the result that the witness’s testimony was later used at trial to convict the plaintiffs who were consequently imprisoned for several decades. Their convictions were eventually overturned because they were not informed about a possible alternate suspect. Plaintiffs then sued the prosecutors for damages under section 1983, alleging that their due process (and not Fourth Amendment) rights were violated in connection with their arrest, prosecution, conviction and imprisonment. Read the rest of this entry »

Coming Full Circle

My very first post–on August 19–involved the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and its implications for supervisory liability under section 1983. I have since worked through the relevant issues and conclude that the Court got supervisory liability right, even though its reasoning was seriously deficient.

What follows is an abstract of an article setting out my position that will be published in March 2010 in an Iqbal symposium issue of Lewis & Clark Law Review. The entire article is currently available for downloading on the Legal Research Network of SSRN and also on this link: http://works.bepress.com/sheldon_nahmod/

Read the rest of this entry »

Background

It may surprise some readers to learn that there can be cases in which a federal statute is found to preclude § 1983 constitutional claims. This kind of case is different from those cases in which the issue is whether the violation of a federal statute is actionable under § 1983 as a “laws” claim. But one thing these two kinds of cases have in common is that express Congressional intent is dispositive. However–and this unfortunately is often the case–where Congress has not expressly stated its intent, it is left to the courts to discern from Congressional silence whether, in the one case, Congress intended to preclude § 1983 constitutional claims and, in the other case, whether Congress intended to allow a § 1983 “laws” claim for the violation of a particular federal statute.

A major Supreme Court decision addressing preclusion of § 1983 constitutional claims is Smith v. Robinson, 468 U.S. 992 (1984), which held that Congress, when it enacted the Education of the Handicapped Act (EHA), intended to preclude § 1983 equal protection claims identical to statutory EHA claims. Congress responded to Smith in 1986 by amending the EHA to provide explicitly that parallel equal protection and other constitutional claims are not precluded by the EHA. In contrast to Smith, the Supreme Court in Fitzgerald v. Barnstable School Comm., 129 S. Ct. 788 (2009), addressed a similar preclusion issue in connection with the effect of Title IX on § 1983 equal protection claims, but it ruled against preclusion. [Note that Fitzgerald is the last of the five major 2008 Term Supreme Court § 1983 cases that I have blogged about]

Read the rest of this entry »

In Pearson v. Callahan, 129 S. Ct. 808 (2009), the Supreme Court modified its earlier approach to the order in which the two parts of the qualified immunity test are to be addressed by district courts.

Background

The qualified immunity test currently has two parts. The first part focuses on whether the plaintiff states a cause of action. The second part focuses on whether, at the time of the allegedly unconstitutional conduct, the defendant violated clearly established law. About a decade ago the Court instructed that the inquiry into whether the section 1983 plaintiff states a cause of action must always be made before the inquiry into whether the defendant violated clearly settled law (a mandatory “order of battle” ). The primary rationale of this mandatory approach was to promote the development of clearly established constitutional law. However, a major downside–one that bothered many district courts–was the elimination of any flexibility to avoid difficult constitutional issues by ruling in favor of the defendant on the ground that the defendant did not violate clearly established law. Recently, however, several Justices, including Justices Breyer and Scalia, began to express doubts about this mandatory order of battle.

The Decision

The Supreme Court finally resolved the matter in Pearson and held that the order of battle procedure was no longer to be regarded as an inflexible requirement. Pearson was a Tenth  Circuit case involving an alleged violation of the Fourth Amendment and “consent once removed.” In this case, where the defendant police officers conducted a raid in March 2002 on the plaintiff’s home without a warrant on the basis of a confidential informant’s invitation to the defendants to enter, the Tenth Circuit found that they had violated the Fourth Amendment and were not entitled to qualified immunity. The court reasoned that the Supreme Court and its circuit had clearly established that there were only two exceptions to the warrant requirement for entry into a home, consent and exigent circumstances, neither of which was present here. On review, the Supreme Court asked the parties to argue the question of whether the mandatory “order of battle” should be modified. Read the rest of this entry »