Nahmod Law

It took a virus to cancel the previously scheduled 37th Conference on Section 1983 in Chicago, and to stop our streak at 36 consecutive years.

This Conference, with an outstanding group of speakers, was to be held on April 23-24, 2020, at Chicago-Kent College of Law. Regrettably, we had no choice but to cancel because of the corona-virus pandemic.

We fully expect the 37th annual conference to be held in April 2021 (the precise dates have not yet been determined). All of our dedicated speakers have already committed to participate next year. So I can promise you that the 2021 Conference will be better than ever.

If you have any questions, you may contact either our CLE department at cle.kentlaw.iit.edu or me at snahmod@kentlaw.edu.

In the meantime, stay safe.

I invite you to follow me on Twitter @NahmodLaw.

I am pleased to announce that the 37th consecutive Conference on Section 1983 will be held at Chicago-Kent College of Law on Thursday and Friday, April 23-24, 2020.

As always, the Conference features outstanding and experienced scholars and practitioners addressing virtually all aspects of section 1983 and related constitutional provisions. The Conference also includes updates on important recent and forthcoming Supreme Court cases and on attorney’s fees and related ethical issues. In addition, this year we have new presentations on due process, immigration and takings law after Knick.

Here is the registration link: https://cle.kentlaw.edu/conference-detail.asp?productId=426.

Please call our CLE office, 312-906-5090, or connect with the office via email, cle@kentlaw.iit.edu, if you have any questions.

Or, you may email me directly at snahmod@kentlaw.edu.

Here is a chronological listing of each day’s presentations.

Day 1: Thursday, April 23, 2020

Sheldon Nahmod on the basics of the section 1983 claim

Erwin Chemerinsky on individual immunities

Karen Blum on municipal liability

Rosalie Levinson on due process

Erwin Chemerinsky on the Supreme Court’s current and forthcoming Terms

Day 2: Friday, April 24, 2020

John Murphy on practical considerations in section 1983 litigation

Kimberly Bailey on the Fourth Amendment

John Murphy on takings after Knick (concurrent session)

Victoria Carmona on immigration law and section 1983 (concurrent session)

Gerry Birnberg on attorney’s fees and ethical issues

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I hope to see you there. And if you do attend, please say hello.

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The Background

I have posted previously about absolute immunity, including legislative and judicial immunity. As discussed in those posts, absolute immunity from section 1983 damages liability is intended to protect certain persons who engage in allegedly unconstitutional legislative, judicial and prosecutorial conduct from not only liability but from the very costs of defending.

(see https://nahmodlaw.com/2012/10/25/a-section-1983-primer-7-introduction-to-absolute-individual-immunity/; https://nahmodlaw.com/2013/02/20/a-section-1983-primer-8-absolute-legislative-immunity/; https://nahmodlaw.com/2013/03/14/a-section-1983-primer-9-absolute-judicial-immunity/)

In contrast, qualified immunity from section 1983 damages liability (which covers state and local government officials who are not protected by absolute immunity) is intended primarily to protect these officials from liability itself. However, over the years the Supreme Court has increasingly broadened the scope of qualified immunity so that it often functions like absolute immunity to protect state and local government officials even from the costs of defending.

The Basics

Qualified immunity is an affirmative defense and so it must be raised by the defense. It becomes relevant when state or local government officials are sued in their individual capacities for damages. It once had both a subjective component–actual knowledge– and an objective component–the duty to know clearly settled law. See Wood v. Strickland, 420 U.S. 308 (1975). However, in a game-changing decision, the Supreme Court eliminated the subjective part, with the result that qualified immunity is now objective in nature. Harlow v. Fitzgerald,  457 U.S. 800 (1982).

In Harlow and other cases, the Court has emphasized that the qualified immunity determination is for the district court and should be made as quickly as possible, even before discovery. This change was intended by the Court, as a matter of policy, to protect government officials from “insubstantial” claims and thereby minimize the costs of defending.

The qualified immunity inquiry is as follows: as of the time of the challenged conduct, and under the circumstances facing the defendant, would a reasonable official have believed that he or she was violating clearly settled law.

This inquiry is, as noted, made as of the time of the challenged conduct (and is therefore backward-looking), while the constitutional merits of the section 1983 claim itself are decided under current constitutional standards. The Court has since emphasized that the clearly settled law inquiry should be made at a fairly fact-specific level because “fair notice” is what is required. Anderson v. Creighton, 107 S. Ct. 3034 (1987).

However, a case on all fours is not required for a finding of a violation of clearly settled law. Some conduct can be so obviously unconstitutional when it occurred that even without a comparable precedent, the government official violated clearly settled law. Hope v. Pelzer, 122 S. Ct. 2508 (2002). On the other hand, in the past decade and a half, the Court, particularly in law enforcement cases, has taken a much more pro-defendant position on qualified immunity, instructing courts not to make the clearly settled law inquiry at too general a level. For example, see: https://nahmodlaw.com/2019/03/04/city-of-escondido-v-emmons-another-scotus-summary-reversal-in-a-qualified-immunity-excessive-force-case/.

Whose decisions constitute clearly settled law? At the top of the list is a relevant Supreme Court decision. Next is a relevant decision of the particular circuit court of appeals (district court decisions are not clearly settled law although they may be evidence of it). Next is a strong consensus in the circuits. And although I have never seen this, it is even possible that a state Supreme Court decision on the relevant federal constitutional issue could constitute clearly settled law as well.

The qualified immunity inquiry is primarily for the trial judge. The jury should not be instructed about qualified immunity, although the jury’s findings of fact may be relevant to the qualified immunity outcome. Hunter v. Bryant, 112 S. Ct. 534 (1992). And while it is better for the development of constitutional law that the trial judge decide the constitutional merits before deciding qualified immunity, that is not mandatory. Pearson v. Callahan, 129 S. Ct. 534 (1992).

Finally, district court denials of qualified immunity based on the clearly settled law determination (and not on factual disputes) may be appealed immediately by government officials to the circuit court of appeals. See Mitchell v. Forsyth, 105 S. Ct. 2806 (1985) and Johnson v. Jones, 115 S. Ct. 2151 (1995).

On qualified immunity generally, see ch. 8 in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019)(West & Westlaw). You might also want to search “qualified immunity” on this blog for additional discussions of qualified immunity decisions.

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What is the relation between allegedly false grand jury testimony by a police officer (protected by absolute witness immunity) followed by an indictment (thereby establishing probable cause) and a section 1983 malicious prosecution claim, one of whose elements is the absence of probable cause?

(see generally, Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019), ch. 3 on section 1983 malicious prosecution and ch. 7 on witness immunity).

The Sixth Circuit has worked through, and clarified, this relation is a series of such cases.

Sanders v. Jones

The first such case, Sanders v. Jones, 845 F.3d 721 (6th Cir. 2017), as amended on denial of reh’g, en banc (Mar. 20, 2017), involved a claim against a police officer who allegedly gave false grand jury testimony identifying the plaintiff as the person who sold illegal drugs to a confidential informant. The officer moved for summary judgment based in part on absolute immunity.

Ruling in the officer’s favor on this issue, the Sixth Circuit observed that this “defense presents a question of first impression about how the Supreme Court’s provision of absolute immunity for grand jury witnesses in Rehberg v. Paulk, 566 U.S. 356 (2012), intersects with the Sixth Circuit’s requirements for malicious prosecution claims where a grand jury indicted the plaintiff.” The court concluded that Rehberg’s absolute immunity for grand jury testimony precluded the plaintiff’s claim because “she cannot rebut the indictment’s presumption of probable cause without using [defendant]’s grand jury testimony.”

King v. Harwood

Thereafter, the Sixth Circuit, in King v. Harwood, 852 F.3d 568 (6^th Cir. 2017), somewhat more narrowly described the intersection of Rehberg and Sanders as follows:

Thus, while Sanders may control the outcome of many [section 1983] malicious-prosecution cases in which the sole or primary act of the defendant law-enforcement officer is delivering grand-jury testimony, Sanders does not control our decision here. … Rehberg does not afford [defendant] absolute immunity for his actions that are prior to, and independent of, his grand-jury testimony. And because [plaintiff] has alleged that [defendant] set her prosecution in motion [by seeking warrants “despite the absence of probable cause and making knowing or reckless false statements implicating plaintiff in his investigative report”] … [plaintiff] may properly base her malicious-prosecution claim on those actions by [defendant] without triggering the absolute immunity established by Rehberg.

Miller v. Maddox

Following King, the Sixth Circuit reversed the district court’s grant of summary judgment against the plaintiff who had filed a section 1983 Fourth Amendment malicious prosecution claim against an officer. The officer allegedly made false statements that resulted in plaintiff’s arrest, charges and indictment for reckless driving and resisting arrest. The court ruled that the plaintiff could establish an exception to the general rule that the issuance of an indictment conclusively establishes probable cause. First, the officer initiated the criminal prosecution because, even though he did not speak directly with the prosecutor, he swore out a warrant affidavit submitted to the night commissioner and was the only witness to testify in the preliminary hearing. Second, the King exception to the general rule applied to create a “mere rebuttable presumption of probable cause.” So the plaintiff was entitled to rebut that presumption: the false statements were material to plaintiff’s prosecution because there was no other evidence that would have allowed the charges to proceed to the grand jury otherwise, and the defendant’s false statements were apparently not used during the grand jury proceedings. Miller v. Maddox, 866 F.3d 386 (6^th Cir. 2017).

Mills v. Barnard

Finally, in Mills v. Barnard, 869 F.3d 473, 480 (6^th Cir. 2017), reh’g en banc denied, 10-12-17, the Sixth Circuit used King to point out that “[t]he existence of an indictment is thus not a talisman that always wards off a malicious-prosecution claim.” Here, a post-indictment DNA report that could have exculpated the plaintiff was the “linchpin of the prosecution’s probable cause” for the continuing detention of the plaintiff. Judge Griffin dissented, 869 F.3d at 487, arguing on various grounds that the district court properly dismissed the plaintiff’s section 1983 Fourth Amendment malicious prosecution claim.

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We all know that a local government can be held liable for damages under section 1983 when its official policy or custom brings about a constitutional deprivation. Monell v. Dept. of Social Services,  436 U.S. 658 (1978). See generally on local government liability, Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019)(West, Westlaw).

Now consider the Seventh Circuit’s decision in Glisson v. Indiana Dept. of Corrections, 849 F.3d 372 (7^th Cir. 2017)(en banc).

In Glisson, the representative of a prisoner’s estate sued a private medical services provider under contract with the state department of corrections for the prisoner’s death in violation of the Eighth Amendment. The Seventh Circuit said the following in reversing the district court’s grant of summary judgment to the corporate defendant:

It is somewhat unusual to see an Eighth Amendment case relating to medical care in a prison in which the plaintiff does not argue that the individual medical provider was deliberately indifferent to a serious medical need. But unusual does not mean impossible, and this case well illustrates why an organization might be liable even if its individual agents are not. Without the full picture, each person might think that her decisions were an appropriate response to a problem; her failure to situate the care within a broader context could be at worst negligent, or even grossly negligent, but not deliberately indifferent. But if institutional policies are themselves deliberately indifferent to the quality of care provided, institutional liability is possible.

In this case, the Seventh Circuit reasoned, there was sufficient evidence of a conscious policy choice by the defendant not to coordinate medical care either within an institution or across institutions for prisoners who were transferred, and there was also sufficient evidence that it was this policy choice not to require any kind of formal coordination that led to the prisoner’s death. In the course of its opinion, the Seventh Circuit observed that it was breaking no new ground in ruling that the conscious failure to make policy can itself be an actionable policy.

The Seventh Circuit explained:

The central question is always whether an official policy, however expressed (and we have no reason to think that the list in Monell is exclusive), caused the constitutional deprivation. It does not matter if the policy was duly enacted or written down, nor does it matter if the policy counsels aggressive intervention into a particular matter or a hands-off approach. One could easily imagine either kind of strategy for a police department: one department might follow a policy of zero-tolerance for low-level drug activity in a particular area, arresting every small-time seller; while another department might follow a policy of by-passing the lower-level actors in favor of a focus on the kingpins. The hands-off policy is just as much a “policy” as the 100% enforcement policy is.

Judge Sykes dissented, joined by Judges Bauer, Flaum and Kanne. They argued that the majority endorsed Monell liability “without evidence of corporate fault or causation. … The court rests its decision on the conceptual idea that a gap in official policy can sometimes be treated as an actual policy for purposes of municipal liability….” They maintained that in a case like this, a plaintiff must show a pattern of constitutional injuries traceable to the challenged policy or custom. Without such evidence, the defendant was not on notice that protocols were needed.

Comment

The majority has the better of the argument. It has long been clear that a local government (or in this case, a private medical services provider acting under color of law) can be held liable for a failure to act which in turn can constitute an official policy or custom so long as the requisite state of mind (ordinarily deliberate indifference) is proved. It is the entity’s deliberate indifference that determines its section 1983 liability, not necessarily the state of mind of individual employees or officials, although the latter may sometimes be relevant, especially in a policymaker situation. But in this case, the corporate defendant could be held liable for its official policy or custom even if its individual employees or officials might not have committed constitutional violations.

McDonough v. Smith and Accrual of Section 1983 Due Process Fabrication of Evidence Claims

The Supreme Court, on June 20, 2019, handed down an important section 1983 accrual decision in McDonough v. Smith (No. 18-485). Reversing the Second Circuit, it ruled (6-3) in an opinion by Justice Sotomayor that a section 1983 due process claim of fabrication of evidence accrues when criminal proceedings against the section 1983 plaintiff are terminated in his or her favor, not earlier when the plaintiff discovered the use of such fabricated evidence. Justice Thomas, joined by Justices Kagan and Gorsuch, dissented, arguing that certiorari was improvidently granted, and the case should be dismissed, for failure of the plaintiff to identify with any specificity the particular constitutional violation alleged.

(For useful background on section 1983, statutes of limitation and accrual, consult my earlier posts. On section 1983 and statutes of limitation generally: https://nahmodlaw.com/2011/10/27/a-section-1983-primer-5-statutes-of-limitations/. On statutes of limitation and accrual after Heck v. Humphrey: https://nahmodlaw.com/2013/06/17/a-section-1983-primer-10-statutes-of-limitations-and-accrual-after-heck-v-humphrey/. And on statutes of limitation and continuing violations: https://nahmodlaw.com/2014/06/09/a-section-1983-primer-11-statutes-of-limitation-and-continuing-violations/)

The Lower Courts

In McDonough, the plaintiff, a former commissioner of a county board of elections, processed forged absentee ballots submitted in a primary election. He alleged that he had done so not knowing they were forged. The defendant, a special prosecutor, allegedly “scapegoated” the plaintiff because of a political grudge and, despite evidence of plaintiff’s innocence, falsified affidavits, coached witnesses to lie and orchestrated a DNA analysis in order to incriminate the plaintiff. The defendant obtained a grand jury indictment against the plaintiff who was arrested, arraigned and released with restricted travel allowed. The plaintiff was then tried criminally by the defendant, ending in a mistrial in January 2012. He was then again tried criminally by the defendant, this time ending in plaintiff’s acquittal on all charges on December 21, 2012. He filed his section 1983 lawsuit on December 18, 2015, alleging fabrication of evidence based on due process as well as malicious prosecution. The latter claim was dismissed by the district court on absolute immunity grounds, while the former was dismissed because it was untimely under the applicable New York three year limitations period. The Second Circuit affirmed the district court’s reasoning that the plaintiff’s section 1983 fabrication of evidence claim accrued by January 2012 when the plaintiff discovered the use of the allegedly fabricated evidence against him, and was therefore time-barred. It rejected the plaintiff’s argument that his fabrication of evidence claim accrued on December 21, 2012, when he was acquitted on all charges.

The Supreme Court’s Opinion

In turn reversing, the Supreme Court held that the plaintiff’s section 1983 due process fabrication of evidence claim was timely because it indeed accrued when the plaintiff was acquitted on all charges on December 21, 2012. His claim was therefore timely (within three days to go).

After observing that section 1983 accrual is a question of federal law, the Court had little difficulty, in reliance on Heck v. Humphrey, 512 U.S. 477 (1994), in analogizing the plaintiff’s due process fabrication of evidence claim to the common law tort of malicious prosecution. As in malicious prosecution, the plaintiff here alleged that he was deprived of his liberty because of the defendant’s “malfeasance” in fabricating evidence. “At bottom, both claims challenge the integrity of criminal prosecutions undertaken ‘pursuant to legal process.'” (citing Heck). For that reason, the plaintiff’s section 1983 fabrication of evidence claim accrued when his prosecution was favorably terminated, and not before. Applying  the discovery accrual rule here would give rise to Heck‘s concerns with parallel litigation (in the state criminal proceeding and in federal court) and conflicting judgments, even though the plaintiff in Heck was convicted and the plaintiff here was acquitted. Prosecutions often lasted nearly as long as the civil limitations period, with the result that criminal defendants would have to choose whether to let their claims expire or to sue the person who was prosecuting them. Stays and abstention were not a good solution. For all these reasons, the plaintiff’s due process fabrication of evidence claim accrued when he was acquitted.

Comments

1. The Court’s decision is a sound one. It made clear that the Second Circuit’s use of the discovery rule in a section 1983 case where a plaintiff alleges a due process fabrication of evidence claim that challenges the fairness of a criminal proceeding itself, was not only contrary to what most other circuits had decided but was wrong. It makes sense that such a claim is only complete, and accrues, when the criminal proceeding terminates in the plaintiff’s favor, whether through an overturned conviction as required by Heck, or through an acquittal as in McDonough itself. Furthermore, the Court emphasized, this federal accrual rule “respects the autonomy of state courts and avoids these costs to litigants and federal courts.”

The Court’s approach in McDonough is consistent with Wallace v. Kato, 549 U.S. 384 (2007), which explained that the accrual question, a question of federal law, should conform in general to common law principles. Wallace went on to rule that the section 1983 plaintiff there challenged the constitutionality of his arrest under the Fourth Amendment, and this was analogous to the common law tort of false imprisonment. Thus, his claim accrued at the time of his arrest even though custody followed.

2. It is therefore crucial that a section 1983 plaintiff identify with some specificity just what is challenged as unconstitutional and under what constitutional provision. Is it an arrest? Is it a conviction? Is it custody or a deprivation of liberty? Is the claim brought under the Fourth Amendment or due process or both (or perhaps another constitutional provision)? This is an important lesson that the dissenters (and the Court’s section 1983 cases) teach. I listened to the oral argument in McDonough some time ago and heard for myself how the justices tried to get a specific sense of the constitutional provision on which the plaintiff relied, and how frustrated several of them were at the responses (or lack thereof) to their questions.

3. On remand, the plaintiff in McDonough will face the defense of absolute prosecutorial immunity, which raises the question of what aspects of the defendant’s alleged conduct are investigative (and protected by qualified immunity) and advocative (and protected by absolute immunity). See generally chapters 7 and 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2018)(West).

4. For those of us interested in section 1983 malicious prosecution claims (and isn’t everyone?), it is worth mentioning footnote 4 of the Court’s opinion in which it expressed no view on the Second Circuit’s borrowing of common law elements of malicious prosecution to govern the McDonough plaintiff’s dismissed section 1983 malicious prosecution claim. Such borrowing is just plain wrong, as I have argued repeatedly. See my Amicus Brief in Manuel v. City of Joliet, 137 S. Ct. 911 (2017): https://nahmodlaw.com/2016/08/16/my-amicus-in-manuel-v-city-of-joliet-no-14-9496-section-1983-malicious-prosecution/

5. Finally, the real world implications of McDonough are profound. Regardless of whether wrongful prosecutions lead to convictions that are eventually overturned (per Heck), to acquittals (per McDonough) or to dismissal of all charges wrongfully brought, the accrual rule is now appropriately the same where the section 1983 challenge is to the constitutionality of the criminal proceeding itself (always subject, of course, to the possible application of absolute prosecutorial immunity).

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For qualified immunity purposes, we know that constitutional law can be clearly settled by Supreme Court precedent. If there is no applicable Supreme Court precedent, then the Circuit Court of Appeals in which the forum state is located can establish clearly settled law. If that Circuit Court of Appeals has no applicable case law, then we look to see whether there is a clear consensus in the circuits. If there is none, then the result is that the defendant is protected by qualified immunity because of the absence of clearly settled law (unless it is the rare case in which the challenged conduct was “obviously” unconstitutional even without applicable precedent on point). See generally Chapter 8 of my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed. 2018)(West & Westlaw).

But what of unpublished circuit court opinions that are not intended to be precedent? Can they establish clearly settled law? In an extensive discussion, the Tenth Circuit, in Grissom v. Roberts, 2018 WL 4102891, *2, *3 (10^th Cir. 2018), said no but with an interesting twist. It explained:

“The role of an unpublished nonprecedential opinion in this [clearly settled law] enterprise depends on      whether the opinion is being used to show that the plaintiff’s proffered proposition is clearly established law or to show that the proposition is unsettled. We have held that “[a]n unpublished opinion … provides little support for the notion that the law is clearly established on [a] point.” But an unpublished opinion can be quite relevant in showing that the law was not clearly established. If we make the collegial, and quite legitimate, assumption that panels of this court render reasonable decisions, we would be hard pressed to say that a proposition of law was clearly established at a time when an unpublished opinion by a panel of this court said the opposite.

… Could we properly say that an official was plainly incompetent for taking guidance from an unpublished appellate opinion?”

Grissom involved an inmate’s claim that his placement in solitary confinement for almost twenty years (ending in 2016) violated his due process and Eighth Amendment rights. As to the due process claim, the Tenth Circuit found that the various defendants did not violate clearly settled law because there was a relevant unpublished Tenth Circuit decision rejecting an inmate’s due process claim based on his solitary confinement from June 2005 on: this decision held that his solitary confinement did not abridge a liberty interest. Moreover, the plaintiff did not point to any subsequent Supreme Court or Tenth Circuit precedent clearly establishing relevant due process law.

And as to the Eighth Amendment claim, the result was the same: no clearly settled Eighth Amendment law. “[T]he most recent relevant decision by this court is an unpublished opinion rejecting an Eighth Amendment claim brought by a prisoner who had been in solitary confinement for 30 years under conditions not markedly different from those here.” Thus, the defendants were entitled to qualified immunity on both claims. Judge Lucero concurred in the judgment, 2018 WL 4102891, *8, arguing that it was “important” to rule that the plaintiff’s lengthy solitary confinement violated due process.

So there you have it. According to the Tenth Circuit, unpublished opinions can only help defendants on the clearly settled law question because they can demonstrate that there is no applicable clearly settled law in the circuit. But they cannot help plaintiffs to show clearly settled law because they are not intended to have precedential value. In effect, the Tenth Circuit is saying that defendants have no duty to know what unpublished circuit court opinions say about the law.