Archive for the ‘Civil Rights – Section 1983’ Category
Clearly Settled Law and Municipal Liability for Failure to Train: Erroneous Circuit Decisions
Quere: what is the relationship, if any, between the deliberate indifference required for failure to train liability and qualified immunity with its clearly settled law in inquiry? To be specific: suppose a local government and individual government officials or employees are sued in connection with a plaintiff’s constitutional deprivations. Suppose further that the individuals escape liability not because they did not violate the plaintiff’s constitutional rights (they did) but because they did not violate clearly settled constitutional law at the time of the challenged conduct. Can the local government nevertheless be held liable for deliberate indifference to the plaintiff’s constitutional rights? Interestingly, several circuits seem to take the erroneous position that the answer is no.
For example, in Bustillos v. El Paso County Hospital District, 2018 WL 2338812, *5 (5th Cir. 2018), the plaintiff sued a county hospital district and various medical personnel and law enforcement officers, alleging, among other things, that they violated her Fourth Amendment rights by subjecting her to intrusive body searches. After ruling that the individual medical personnel were protected by qualified immunity because there was no violation of clearly settled Fourth Amendment law, the Fifth Circuit went on also to hold that the county hospital district could not be liable for deliberate indifference for its failure to train medical personnel in how to handle government requests to do body cavity searches. It simply quoted from a Sixth Circuit decision declaring that a “policymaker cannot exhibit fault rising to the level of deliberate indifference to a constitutional right when that right has not yet been clearly established.” Hagans v. Franklin County Sheriff’s Office, 695 F.3d 505, 511 (6th Cir. 2012)(emphasis in original)(in turn quoting Szabla v. City of Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007)(en banc).
This reasoning is seriously off-base. For one thing, it conflates deliberate indifference to constitutional rights with clearly settled law: the relevant constitutional law may not be clearly settled at the time of the challenged conduct for individual liability purposes but a local government can still be deliberately indifferent to whether its officials or employees could violate that not-yet-clearly-settled constitutional right. There is no specific intent requirement for local government failure to train liability (or for individual liability either, for that matter). For another thing, introducing the clearly settled law inquiry into local government failure to train liability effectively confers qualified immunity protection on local governments, contrary to the Supreme Court’s decision in Owen v. City of Independence, 445 U.S. 622 (1980).
I cover local government liability in detail in Chapter 6 my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2018)(West, Westlaw). I cover qualified immunity in Chapter 8.
(A personal note: the delay between the immediately preceding post on Excessive Fines and this post is attributable to my deep dive into preparing the 2019 Update to my section 1983 treatise).
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The Excessive Fines Clause, Timbs v. Indiana and Section 1983 Implications
The Eighth Amendment
The Eighth Amendment declares: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Although the Eighth Amendment on its face applies only to the federal government, the Excessive Bail and Cruel and Unusual Punishment Clauses, like many other provisions of the Bill of Rights, have gradually been incorporated and applied to the states and local governments through the 14th Amendment’s Due Process Clause. But what of the Excessive Fines Clause?
Timbs v. Indiana and the Excessive Fines Clause
On February 20, 2019, the Supreme Court held in Timbs v. Indiana, No. 17-1091, reversing the Indiana Supreme Court, that the Excessive Fines Clause is similarly incorporated and applies to states and local governments. The Court, in an opinion by Justice Ginsburg, found that the Excessive Fines Clause is fundamental to our scheme of ordered liberty with deep roots in history and our tradition. The Court further rejected Indiana’s argument that the Clause does not apply to the use of civil in rem forfeitures, reasoning that the proper incorporation inquiry is whether the right guaranteed in fundamental and deeply rooted, not whether each and every particular application of that right is fundamental or deeply rooted. The Supreme Court then remanded to the Indiana Supreme Court to determine whether the attempted civil in rem forfeiture in Timbs violated the Excessive Fines Clause.
What does this have to do with section 1983? A great deal, it turns out.
Civil In Rem Forfeiture Proceedings
In Timbs itself, the criminal defendant pleaded guilty to state charges of dealing in a controlled substance and conspiracy to commit theft, and had already been sentenced to one-year home detention and five-years probation, with fees and costs totaling $1203.
But this did not satisfy Indiana. It also engaged a private law firm–a not unusual tactic in such cases–to bring a civil suit on behalf of the state for forfeiture of the criminal defendant’s recently purchased $42,000 Land Rover. The suit charged that the vehicle had been used to transport heroin. Notably, the maximum monetary fine for a drug conviction under Indiana law is $10,000, less than one-quarter of the value of the Land Rover. In addition, the Land Rover was purchased by the defendant with money from an insurance policy when his father died.
Section 1983 Implications
Here’s where section 1983 may come into the picture. The criminal defendant in Timbs, and others like him, can now use the Excessive Fines Clause as an affirmative Eighth Amendment defense to a civil in rem forfeiture proceeding. Going even further, the criminal defendant in Timbs, and others like him, can raise the Excessive Force argument as the basis of a section 1983 counterclaim for damages. Since the civil in rem forfeiture proceeding is brought on behalf of the state, albeit by a private law firm, there would still be state action.
It is true that the state itself is not a suable person for damages under section 1983 (in contrast, local governments can indeed be sued for damages under section 1983). Nevertheless responsible state officials (and local government officials as well) could be sued for damages in their individual capacities. Timbs has now clearly established relevant Eighth Amendment Excessive Fines Clause law for qualified immunity purposes, although what is excessive or not was not addressed by the Court.
Note also that a possible hurdle for criminal defendants who want to bring section 1983 claims against state and local government officials based on the Excessive Fines Clause could be absolute prosecutorial immunity.
(See chs. 7 & 8, Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (West 2018), on absolute and qualified immunity).
But I am getting ahead of myself here. Despite these qualifications, Timbs is an Eighth Amendment game-changer.
City of Escondido v. Emmons: Another SCOTUS Summary Reversal in a Qualified Immunity Excessive Force Case
The Supreme Court handed down City of Escondido v. Emmons, No. 17-1660 (per curiam), on January 7, 2019. In this qualified immunity excessive force case, the Court summarily reversed and once more chastised the Ninth Circuit for making the clearly settled law inquiry at too high a level of generality. What courts must instead do, the Court emphasized, is focus on the particular circumstances of the case and make the clearly settled law inquiry accordingly.
In Emmons, police officers had previously arrested a man after his wife called them to her apartment complaining of domestic violence. Thereafter, in the present case, police received a 911 call from the woman’s mother about another possible domestic violence incident at the apartment: the mother had heard yelling and screaming over the phone. When police arrived, they could not enter the apartment in order to make a welfare check (two children may have been in the apartment). After a few minutes of conversation between the police (from outside of the apartment) and the woman and an unidentified man, the plaintiff–who turned out to be the woman’s father–came out of the apartment and tried to brush past the officers. One of the officers then took him quickly to the ground and arrested him for the misdemeanor offense of resisting or delaying a police officer. The officer did not hit the plaintiff or display his weapon, and the police body camera video showed that the plaintiff was not in any pain.
The Ninth Circuit found that even though there was probable cause for the arrest, the officer may have violated clearly settled Fourth Amendment excessive force law and thus was not entitled to qualified immunity. It cited one of its own 2013 precedents, saying only that the right to be free of excessive force was clearly established in May 2013, when the events occurred.
The Supreme Court’s Summary Reversal
The Supreme Court summarily reversed, criticizing the Ninth Circuit for making the clearly settled law inquiry at too general a level. It also observed that the circuit precedent relied on by the Ninth Circuit involved the police use of force against individuals engaged in passive resistance, unlike this case. The Court thus remanded for a proper application of qualified immunity.
The result in Emmons is no surprise to those following the Supreme Court’s increasingly blunt warnings to the courts to apply qualified immunity with a good deal of specificity. Indeed, the Court in Emmons itself cited four of its recent qualified immunity decisions to that effect. (See, for example, my post on May 22, 2018, on Kisela v. Hughes, 138 S. Ct. — (2018)(per curiam): https://nahmodlaw.com/2018/05/22/kisela-v-hughes-another-predictable-supreme-court-excessive-force-qualified-immunity-decision/)
A Hidden and Disturbing Implication?
But what may be a bit of a shocker is what the Court tucked into its per curiam opinion almost in passing: it said that it assumed without deciding that a Court of Appeals decision can constitute clearly settled law for qualified immunity purposes. This is a rather remarkable statement to toss off so casually, since it has been assumed by courts and litigators for decades that in the absence of relevant Supreme Court case law (perhaps also in the absence of a clear circuit consensus to the contrary), a Court of Appeals decision can indeed constitute clearly settled law.
Consider the extreme implications of the Court’s statement: there can be no clearly settled law unless the Supreme Court has weighed in on the specific issue in comparable factual circumstances. Where the Supreme Court has not done so, qualified immunity must always be granted to defendants, thereby undermining individual section 1983 liability except in the most egregious cases. This cannot be correct.
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Brochure for 36th Annual Section 1983 Conference on April 11-12, 2019
As I mentioned in an earlier save-the-date post, the 36th Annual Conference on Section 1983 will be held at Chicago-Kent College on Law on Thursday and Friday, April 11-12, 2019. This Conference is an outstanding value and is suitable for both newcomers to the field and experienced attorneys.
Many aspects of section 1983 doctrine and practice will be expertly covered, including attorney’s fees, together with Equal Protection, the Religion Clauses and pending Supreme Court cases.
The Conference’s nationally known speakers are Kimberly Bailey, Gerald Birnberg, Karen Blum, Erwin Chemerinsky, Rosalie Levinson, John Murphey and Sheldon Nahmod.
If you have any questions, please feel free to email me directly: snahmod@kentlaw.edu
Here is the link to the brochure, with relevant registration details: . https://cle.kentlaw.edu/database/brochures/sec83%20brochure%20201970554751.pdf
Flint, Michigan, the Safe Drinking Water Act and Section 1983 Constitutional Claims
Boler v. Earley, 865 F.3d 391 (6th Cir. 2017), is a significant Sixth Circuit case involving the Safe Drinking Water Act, 42 U.S.C. secs. 300g-1 et seq (SDWA). It arose out of the disturbing and infamous events involving the contaminated drinking water of residents of Flint, Michigan.
The plaintiffs were residents of Flint, Michigan, who were adversely affected by water contamination. They sued various state and local officials and entities under section 1983 alleging substantive due process and equal protection violations, together with various state law claims. The defendants argued that the SDWA showed that Congress intended to preclude the plaintiff’s constitutional claims, thus limiting the plaintiffs to whatever SDWA remedies they had.
Rejecting this argument and ruling that the SDWA did not preclude the plaintiff’s section 1983 constitutional claims, the Sixth Circuit relied on the SDWA’s text and legislative history, as well as its remedial scheme, for its conclusion. The court also mentioned the SDWA’s savings clause and examined the divergence of the rights protected by the SWDA and the constitutional provisions raised by plaintiffs. All of these considerations demonstrated that Congress did not intend to preclude section 1983 constitutional claims when it enacted the SDWA. Thus, the plaintiffs were entitled to go ahead with their substantive due process and equal protection claims.
Comments
1. The precise issue presented in Boler was whether the plaintiffs could even proceed with their section 1983 constitutional claims in light of the SDWA. I discuss this preclusion issue generally in sec 2:46 of my treatise, NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2018)(West). See also Fitzgerald v. Barnstable School Committee, 129 S. Ct. 788 (2009), unanimously holding that Title IX did not preclude section 1983 equal protection sex discrimination claims against school districts and officials.
2. This preclusion issue is different from what I have called the “laws issue,” namely, whether the violation of a federal statute by a state or local government official, or by a local government, can be the basis of a section 1983 claim. See sections 2:27-2:47 of my treatise.
3. Allowing the plaintiff’s section 1983 claims to go forward in Boler resulted in a subsequent (and very recent) landmark decision in which the Sixth Circuit held that the plaintiffs pleaded plausible substantive due process claims against various individual defendants, and also that these individual defendants were not protected by qualified immunity because the relevant substantive due process law was clearly settled at the time. See Guertin v. State of Michigan, Nos. 17-1698, 1699, 1745, 1752 & 1759 (6th Cir., January 4, 2019).
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Younger Abstention and Amended Complaints
It’s not easy being a section 1983 plaintiff in federal court. There are many procedural hurdles facing such a section 1983 plaintiff who seeks damages and/or declaratory and injunctive relief.
Among these hurdles are justiciability doctrines such as standing and ripeness, various statutory bars such as the Tax Injunction Act, statutes of limitations, claim and issue preclusion, the Eleventh Amendment and various abstention doctrines that amount to an exhaustion of judicial remedies requirement. See generally Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 chs. 5 & 9 (2018)(West).
Among those abstention doctrines, typically applied to section 1983 claims for declaratory and injunctive relief, is what is called Younger abstention, based on Younger v. Harris, 401 U.S. 37 (1971), which is in turn based on considerations of federalism and comity. In its simplest terms, this is the rule: when state criminal judicial proceedings are already pending, a federal plaintiff seeking declaratory or injunctive relief against their continuation will typically be barred from the federal forum.
The Younger rule has been extended by the Supreme Court to include equitable relief against certain pending state judicial proceedings that are civil in nature where state interests are particularly weighty. Pennzoil Co. V. Texaco, Inc., 481 U.S. 1 (1987). The Court has even applied Younger to certain pending state administrative proceedings. Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619 (1986).
With this as background, consider the interesting (and somewhat technical) question of whether the filing of an amended complaint can require a federal court to reexamine whether Younger abstention, previously rejected, is now appropriate.
Hill v. Snyder, 878 F.3d 193 (6th Cir. 2017), involved section 1983 constitutional challenges by juvenile offenders, convicted of first-degree murder and sentenced to life in prison without possibility of parole, to the state’s no-parole eligibility. The lawsuit was brought in 2010. Thereafter, the Supreme Court in different cases ruled that such a policy was unconstitutional (in 2012) and that its ruling was to be applied retroactively (in 2016). The plaintiffs then filed a supplemental amended complaint (SAC).
The Sixth Circuit found Younger absention inappropriate for the SAC for several reasons. First, the lawsuit was initiated long ago and Younger abstention is “bound up with beginnings.” The SAC was not a new case and defendants offered no authority for the proposition that the filing of an amended complaint requires a reexamination of Younger’s application.
Second, even if Younger analysis were now appropriate, the result would be the same: no abstention. “Plaintiffs should not be punished because the novel position they championed in 2010 was subsequently given a voice by the Supreme Court, a development that necessitated updates to the complaint in 2016. To do so would create perverse incentives that would punish Plaintiffs’ prescience in understanding the direction in which the Supreme Court was heading.”
Comment
The Sixth Circuit’s decision was rather clearly based on Hill‘s unique facts–including the Supreme Court’s subsequent decisions supporting the plaintiffs’ position–and its procedural history. Hill did not purport to set out a general rule precluding the applicability of Younger to amended complaints.
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Substantive Due Process Privacy Violations and Section 1983 Claims
Section 1983 makes actionable violations of “rights, privileges, or immunities secured by the Constitution.” This includes not only violations of incorporated provisions of the Bill of Rights such as the First, Second, Fourth and Eighth Amendments but also the Fourteenth Amendment’s stand-alone provisions, the Due Process and Equal Protection Clauses.
As a result of Supreme Court contraceptive, abortion and homosexual sodomy decisions–see Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992); Lawrence v. Texas, 123 S. Ct. 2472 (2003)–a constitutional right of privacy is now recognized under the Due Process Clause. This right essentially protects procreations, marriage, family matters and sexual autonomy.
See generally my earlier post on substantive due process and the right of privacy here: https://nahmodlaw.com/2014/09/29/know-your-constitution-7-what-is-subtantive-due-processright-of-privacy/
A good recent example of a section 1983 damages action arising out of a substantive due process violation is Perez v. City of Roseville, 2018 WL 797453, *2 (9th Cir. 2018). This Ninth Circuit case involved a former probationary police officer who was discharged after an internal investigation into her romantic relationship with a fellow police officer She alleged under section 1983 that this violated her due process rights to privacy and intimate association because it was based in part on disapproval of her private, off-duty sexual conduct.
Reversing the district court which had granted summary judgment to the defendants, the Ninth Circuit observed that it had “long held that the constitutional guarantees of privacy and free association prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation.” In this case, a genuine issue of material fact existed as to whether the plaintiff was terminated at least in part because of her extramarital affair.
The Ninth Circuit went on to rule that the defendants were not entitled to qualified immunity because the relevant due process law was clearly settled long ago in Thorne v. City of El Segundo, 726 F.3d 459 (9th Cir. 1983). Judge Tashima concurred, 2018 WL 797453, *14, disagreeing with the majority’s reasoning on this issue.
Comment
The broader the scope of the right of privacy, the broader the potential scope of section 1983 damages liability. This is true, of course, for other constitutional violations that are actionable under section 1983.
It is also important to note that the contours of the right of privacy are for the most part clearly established for qualified immunity purposes.
I discuss many other section 1983 substantive due process privacy cases in my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2018)(West) at sec. 3:78.
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Manuel v. City of Joliet and Accrual: The Plaintiff Wins in the Seventh Circuit
Background
I posted several times previously on Manuel v. City of Joliet, 137 S. Ct. 911 (2017), an important section 1983 malicious prosecution case that came out of Seventh Circuit and made it to the Supreme Court, which reversed and remanded. My most recent post on Manuel, which can serve as background, is here:
Recall that after the plaintiff in Manuel was arrested on March 18, 2011, and charged with possessing unlawful drugs, he was held in jail pending trial pursuant to a judge’s decision. Forty-seven days later, all charges were dismissed against him because the drugs he was carrying were apparently legal, and he was released the next day. On April 22, 2013, the plaintiff sued for damages under section 1983 and the Fourth Amendment, alleging that his detention without probable cause was unconstitutional. Reversing the Seventh Circuit and remanding, the Supreme Court ruled that the plaintiff was entitled to seek damages under the Fourth Amendment but remanded to determine whether his complaint was timely under the applicable two-year Illinois statute of limitations.
On Remand to the Seventh Circuit
In Manuel v. City of Joliet, 2018 WL 4292913 (7th Cir. 2018), the particular issue before the Seventh Circuit, in light of the Supreme Court’s decision and remand, was when his section 1983 Fourth Amendment cause of action accrued? Was it March 18, when the plaintiff was arrested and ordered by the judge to remain in custody, in which case the suit would not be timely? Was it May 4, 2011, when the prosecutor dismissed the charge, in which case his suit would be timely? Or was it on May 5, 2011, when the plaintiff was released, in which case his suit would also be timely? The Seventh Circuit ruled that the plaintiff’s section 1983 Fourth Amendment cause of action accrued on May 5, 2011, when he was released; thus, his suit was timely.
The Defense Argument Based on Wallace v. Kato Rejected
In an opinion by Judge Easterbrook, the Seventh Circuit rejected the defense argument that the cause of action accrued when the plaintiff was brought before the judge and held pursuant to legal process, per Wallace v. Kato, 549 U.S. 384 (2007). First, here, unlike in Wallace, the plaintiff challenged his custody, and not just his arrest. Second, and more important, the Seventh Circuit asserted: “[T]he line that the Justices drew in Wallace–in which a claim accrues no later than the moment a person is bound over by a magistrate or arraigned on charges … and [that] all Fourth Amendment claims are to be treated alike–did not survive Manuel.” The Seventh Circuit reasoned that because the Court held in Manuel that wrongful pretrial custody violates the Fourth Amendment even when it follows the start of legal process in a criminal case, “[w] hen a wrong is ongoing rather than discrete, the period of limitations does not commence until the wrong ends.”
The Plaintiff’s Argument Based on the Tort of Malicious Prosecution Also Rejected
The Seventh Circuit also rejected the plaintiff’s analogy to the tort of malicious prosecution, under which favorable termination–here, May 4, 2011, when the prosecutor dismissed the charge–would be determinative. Characterizing the plaintiff’s claim as a Fourth Amendment malicious prosecution claim was “wrong” after Manuel. The Seventh Circuit explained:
The problem is the wrongful custody. … But there is a constitutional right not to be held in custody without probable cause. Because the wrong is the detention rather than the existence of criminal charges, the period of limitations also should depend on the dates of the detention.
Finally, the Seventh Circuit observed that its conclusion was supported by the accrual principle that the “existence of detention forbids a suit for damages contesting that detention’s validity.” It commented that in light of Supreme Court precedent, section 1983 “cannot be used to contest ongoing custody that has been properly authorized.”
Comment
Once the Seventh Circuit determined that Wallace v. Kato was inapplicable in light of the Court’s decision in Manuel, an accrual decision favoring the plaintiff readily followed, even though not based on the plaintiff’s malicious prosecution analogy. Indeed, the Seventh Circuit expressly, and correctly, declared that malicious prosecution doctrine was irrelevant to what was a straightforward section 1983 Fourth Amendment claim challenging illegal custody.
In so stating, the Seventh Circuit was not only consistent with its own prior case law but also with my long-standing position (discussed in earlier posts and in my section 1983 treatise) that malicious prosecution doctrine should play no direct role in the elements of section 1983 claims. In this view, what is crucial is the particular constitutional claim, here the Fourth Amendment. Indeed, the Seventh Circuit went on to observe that malice was irrelevant to a claim like Manuel‘s: “[T]his is a plain-vanilla Fourth Amendment claim, and under that provision is objective.”
Thus, it bears repeating the Seventh Circuit’s accrual decision was based on the particular Fourth Amendment claim directed against plaintiff’s custody.
Quere: Is the Seventh Circuit’s decision certworthy in light of the Seventh Circuit’s take on the adverse, if not overruling, effect of Manuel on Wallace?
See generally, on section 1983 malicious prosecution, my treatise: CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 3 (2018)(West & Westlaw).
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Local Governments Can Be Liable for Failure to Supervise Police in Excessive Force Cases, But Not in This Second Circuit Decision
Local Government Liability Under Section 1983 for Failure to Train or Supervise Police in Excessive Force Cases
The Supreme Court ruled almost thirty years ago in City of Canton v. Harris, 489 U.S. 378 (1989), that local governments can be liable under section 1983 for damages for their deliberately indifferent failures to train or supervise their employees who, as a result, commit constitutional violations.
Under this standard, there must be a close connection–both in terms of cause in fact and proximate cause–between the deliberate indifference (the required state of mind) and the particular constitutional violation. See generally ch. 6 in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2018)(West & Westlaw).
However, proving deliberate indifference and its connection to the particular constitutional violation can be a difficult hurdle for section 1983 plaintiffs to overcome, as witness Outlaw v. City of Hartford, 884 F.3d 351 (2nd Cir. 2018).
Outlaw v. City of Hartford (2nd Cir. 2018)
In Outlaw, the Second Circuit dealt with a plaintiff’s Fourth Amendment excessive force claim against a city that alleged an official policy or custom of deliberate indifference in supervising police officers in the use of force. The defendant police officer had allegedly used excessive force against the plaintiff in arresting him, thereby violating his Fourth Amendment rights.
Affirming the district court’s grant of summary judgment to the city, the Second Circuit found that the evidence submitted by the plaintiff was insufficient to permit an inference of deliberate indifference by the city regarding supervision and the use of excessive force. The plaintiff’s reliance on proceedings in other police misconduct litigation was misplaced because that litigation focused on systemic discrimination against racial minorities.
Also, there had only been two prior excessive force complaints against this police officer: one was filed after the incident here and could not have been a proximate cause of plaintiff’s injuries; the other complaint, which was filed after the incident here–although it related to an incident that occurred prior to it–was not deliberately ignored by the city but demonstrated no more than negligence.
Further, excessive force lawsuits against other officers and the claims sent to the city’s insurers might have provided a basis for a finding of deliberate indifference. But there was no evidence of the underlying facts or how thoroughly they were investigated. Some of these cases did not even involve excessive force.
Finally, it was “incumbent” on the plaintiff to “utilize procedures provided by the Federal Rules of Civil Procedure to compel responses to his request that sought necessary information and that were appropriate.”
Substantial Section 1983 Compensatory and Punitive Damages Awarded for False Arrest on Sexual Abuse Charges
Sexual abuse charges are obviously very serious for all concerned. So when police officers investigate, arrest and charge sexual abuse, especially when the charges involve minors, they must be very careful. The following Sixth Circuit decision serves as a cautionary tale.
Wesley v. Campbell, 864 F.3d 433 (6th Cir. 2017)
Wesley dealt with the false arrest of the plaintiff for sexual abuse of students. In this case, the Sixth Circuit upheld, as not excessive, a jury’s $589,000 compensatory and $500,000 punitive damages awards against the defendant police officer for Fourth Amendment violations.
Compensatory Damages of $589,000 Upheld
The compensatory damages award was for lost wages, past pain and suffering and future pain and suffering (plaintiff was diagnosed with PTSD because of the arrest). As to the disputed $132,000 awarded for lost wages, the district court observed that even though plaintiff’s termination as a school counselor had occurred before his arrest, nevertheless the “red flags caused by his false arrest, and the resulting unemployment period, were detrimental to [plaintiff’s] ability to be rehired in any position, but especially in one working with children.” In addition, there was testimony about plaintiff’s inability, despite his background and qualifications, to obtain a job working with children. The district court thus did not err in refusing to remit the compensatory damages award.
Punitive Damages of $500,000 Upheld
In addition, the Sixth Circuit upheld the jury’s $500,000 punitive damages award. First, there was sufficient evidence of defendant’s reckless and callous disregard of plaintiff’s Fourth Amendment rights to justify a punitive damages award. Further, the award was not excessive: plaintiff suffered fear and uncertainty for over three months; he was depressed and irritable; he suffered significant economic harm; the threat of physical force directed at him was apparent; the stigma was significant; the defendant’s conduct was particularly reprehensible, especially in light of the plaintiff’s career of counseling children; the ratio between the compensatory and punitive damages awards was in single digits with the punitive damages award even being less than the compensatory damages award; and finally, the punitive damages award here was comparable to awards for similar violations.
Comments
1. Compensatory damages are available under section 1983, and federal common law rules of compensatory damages govern. These damages can consist of special damages, or out-of-pocket expenses such as lost wages and medical costs. They can also include general damages, or damages for past and future pain, suffering and humiliation. In Wesley, there were substantial special and and general damages proved that accounted for the large compensatory damages award.
2. Punitive damages are available under section 1983 against individuals, although not against local governments. Before a section 1983 plaintiff can get a punitive damages instruction to the jury, there must be sufficient evidence of the defendant’s reckless or callous indifference to the section 1983 plaintiff’s federally protected rights. Malice or ill will is not required. Smith v. Wade, 461 U.S. 30 (1983). Note that the state of mind required for a punitive damages instruction is not the same as the state of mind required for the constitutional violation in the first place. This is the case even if that state of mind is, say, purposeful discrimination for an equal protection violation or deliberate indifference for an Eighth Amendment violation. The higher punitive damages state of mind must be separately proved. In Wesley, the defendant’s conduct not only satisfied the punitive damages standard but it was found to be particularly reprehensible. The jury’s punitive damages award was thus upheld.
See generally on section 1983 damages, Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 4 (4th ed. 2018)(West & Westlaw).
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