Nahmod Law

I suggest that malicious prosecution elements and terminology should have little or no place in the analysis of the section 1983 prima facie case. Instead, the primary focus should be on the relevant constitutional violation alleged by a plaintiff.

[Full disclosure: I recently but unsuccessfully made this kind of argument for the defense in Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008), cert denied, 129 S. Ct. 1526 (2009). But I argued long ago–in a 1970’s Indiana Law Journal article and in the second edition of my section 1983 treatise, published in the mid 80’s–that such tort concepts do not belong in the prima facie case analysis.]

The Prima Facie Case, Federal Law and State Law

Over the years the Supreme Court has clarified much of the section 1983 jurisprudence related to the prima facie case. We know of the primacy of the constitutional violation inquiry, the role of causation, the compensatory and punitive damages rules and who is a suable person under section 1983. We also know that by virtue of 42 U.S.C. section 1988 and 28 U.S.C. section 1738, section 1983 borrows extensively from state law with regard to statutes of limitations, wrongful death, survival and preclusion. However, there remains a particularly muddled area of section 1983 jurisprudence that has long cried out for rethinking: section 1983 malicious prosecution claims. Remarkably, such claims in the circuits are governed extensively by tort law, not primarily constitutional law, even though tort law should not determine the scope of section 1983 claims. Section 1983 is, after all, a statute that creates a Fourteenth Amendment action for damages, and constitutional law, not tort law, should be primary. At best, tort law should be used only to fill in statutory gaps. Read the rest of this entry »

The Supreme Court’s 2009 decision in Haywood v. Drown was a surprisingly close decision that pitted the Supremacy Clause against federalism, with the former barely winning.

The Decision

Haywood v. Drown, 129 S. Ct. 2108 (2009), dealt with a New York statute that provided that New York courts did not have jurisdiction to hear any claims for damages against correctional officials sued in their personal capacities for acts committed within the scope of their employment, while allowing the State to be sued under state law in its Court of Claims for such claims. The Court of Appeals of New York had ruled that New York courts lacked jurisdiction to hear the plaintiff inmate’s two § 1983 complaints seeking damages against correctional officers. This did not violate the Supremacy Clause because the relevant New York statute did not discriminate against federal causes of action but covered all such claims, whether based on state or federal law. This provision was “neutral” for Supremacy Clause purposes, according to the Court of Appeals: “New York courts necessarily adjudicate only state claims brought against the state and federal courts adjudicate only federal causes of action brought against individuals.” Read the rest of this entry »

The Decision

In 2009, the Court handed down Van De Kamp v. Goldstein, 129 S. Ct. 855 (2009), a significant decision that expanded the scope of prosecutorial immunity to cover supervisory prosecutors in certain circumstances.  

Van De Kamp dealt with the applicability of prosecutorial immunity to a former district attorney and a former deputy district attorney who were sued for allegedly failing to develop policies and procedures, and failing to adequately train and supervise their subordinates, as to their constitutional obligation under Brady v. Maryland and Giglio v. United States to ensure that information on jailhouse informants was shared among prosecutors. The plaintiff, after imprisonment for twenty-four years for murder, succeeded in obtaining habeas corpus relief and was released. Thereafter, he claimed that a jailhouse informant testified falsely at his murder trial regarding (1) the plaintiff’s supposed confession to the murder and (2) the informant’s not having received benefits in exchange for his testimony against plaintiff. He further alleged that the fact that this witness was an informant who received benefits in exchange for his testimony was never shared with the deputy district attorneys prosecuting the plaintiff. The Ninth Circuit ruled that the challenged conduct was administrative in nature and not intimately associated with the judicial phase of the criminal process. Rather, it was related only to the management of the district attorney’s office. Hence, it was not protected by prosecutorial immunity. Read the rest of this entry »

The Decision

The Supreme Court’s 2009 decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (5-4 decision, Kennedy writing for the Court), has recently generated a great deal of justified attention in the federal courts and the profession.

However, most of that attention has been directed to the federal pleading aspects of Iqbal. Much less noticed has been the Court’s declaration, without briefing and argument, that supervisory liability under Bivens and section 1983 requires that the supervisor must possess the same state of mind that is required for the underlying constitutional violation by subordinates. In Iqbal itself, this meant that the defendants, Ashcroft and Mueller, accused of violating the plaintiff’s equal protection rights by implementing policies that led to the plaintiff’s harsh treatment by subordinates during confinement because of his race, religion and national origin, would not be liable unless the plaintiff alleged and could prove that Ashcroft and Mueller themselves acted with purposeful discrimination. Defendants’ actual knowledge of a constitutional violation by their subordinates, coupled with their deliberate indifference, was therefore not sufficient to state a claim under Bivens. Significantly, this changed the supervisory liability law in the circuits which had for the most part adopted the deliberate indifference standard. (Four justices dissented, led by Justice Souter in a lengthy dissenting opinion). Read the rest of this entry »