Nahmod Law

Archive for the ‘Constitutional Law’ Category

Video of Lecture on the Religion Clauses, RFRA and RLUIPA

I lectured on the Religion Clauses, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA) at the New Mexico State Bar Convention in Ruidoso, New Mexico, in August, 2017.

The lecture lasted an hour, and was followed by questions. It is a good overview and summary and can also serve as a useful introduction to those who want to become knowledgeable quickly about these topics. (Law students and non-lawyers, I’m talking to you!)

Below is the link to the Youtube video of this lecture. I hope you find it of interest.

If you want a copy of the accompanying outline, please email me at snahmod@kentlaw.edu and I’ll send it to you.

I can be followed on Twitter @NahmodLaw.

Written by snahmod

October 15, 2018 at 12:57 pm

A DeShaney Danger Creation Case that Survived Summary Judgment

Over the years I have posted many times about the difficulty plaintiffs have in surmounting the no-affirmative duty substantive due process rule of DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989). This case declared that government has no affirmative duty to protect or rescue individuals from private harm. See Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 secs. 3:59-3:61 (4th ed. 2017)(West).

As noted in the voluminous case law, there are two possible end-runs around this no-duty rule. First, where there is special relationship between the government and the plaintiff, a very limited category of cases in which the plaintiff is dependent on government and cannot act on his or her own behalf. And second, danger creation, where government itself is not neutral but rather creates the danger to the plaintiff.

But even where an affirmative substantive due process duty has been shown, the plaintiff must go on to show a breach of that duty, or a violation of substantive due process.

Irish v. Maine,  849 F.3d 521 (1st Cir. 2017), and danger creation.

In Irish v. Maine, the former boyfriend of the one of two plaintiffs (the other plaintiff was her mother) broke into her parents’ home, fatally shot her boyfriend, shot her mother, abducted her and engaged in a shootout with police during which another individual was shot fatally. The plaintiff alleged that the rampage began after a police officer left the former boyfriend a voice message notifying him that the plaintiff had made a complaint to police about the former boyfriend’s serious violent crimes against her earlier, and asking him to come in for an interview. This was despite the plaintiff’s explicit request that the former boyfriend not be notified by police because of her concern that such notice would incite further violence against her, which turned out to be true.

Reversing the district court which had dismissed plaintiff’s danger creation substantive due process claim, and had also granted defendants’ qualified immunity motion, the First Circuit remanded for further fact finding. It observed that there was no evidence as to whether the police decision to leave a voice message was in line with police protocol and training. There was also no evidence on exactly what the officers knew about the veracity of plaintiff’s allegations against the former boyfriend, about his propensity for violence and about whether he would likely act on that propensity. According to the First Circuit, these facts were relevant to both the viability of the due process claim and qualified immunity.

Comment

The first question is whether there was a general substantive due process duty imposed on the police to protect the plaintiff from her former boyfriend. The short answer under DeShaney is no. The second question is whether the police in this case had any kind of special relationship with the plaintiff, and here too the short answer is no. The crucial question, then, is whether the police violated substantive due process in creating the danger to the plaintiff by leaving a voice message for the former boyfriend despite the plaintiff’s explicit request that the police not notify him because that would incite him to further violence.

Note that the issue in the First Circuit was not whether the voice message actually caused the former boyfriend’s violent acts; this seems to have been shown. Rather, having thus shown the existence of an affirmative due process duty to protect or rescue though the police creation of the danger, did the plaintiff also show a breach of that duty, namely, a violation of substantive due process? And the constitutionally required state of mind for such a substantive due process violation is deliberate indifference.

This is why the First Circuit remanded. If leaving a voice message was not in line with protocol, this would tend to show deliberate indifference. Similarly, if the police knew about the truthfulness of the plaintiff’s description of her former boyfriend and that he would likely engage in violence against her, that too would tend to show deliberate indifference.

(For more discussions of recent circuit court decisions addressing DeShaney issues, search this blog for “DeShaney”)

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Written by snahmod

August 21, 2018 at 9:33 am

Lozman v. City of Riviera Beach and First Amendment Retaliatory Arrest Damages Claims: The Court Again Sidesteps the Probable Cause Issue

Lozman v. City of Riviera Beach

In Lozman v. City of Riviera Beach, 138 S. Ct. — (2018), the Supreme Court once again avoided ruling generally on the question whether a section 1983 plaintiff who alleges a retaliatory arrest in violation of the First Amendment must allege and prove the absence of probable cause in addition to impermissible First Amendment motive. Or, to put it another way, whether probable cause to arrest is a defense to a First Amendment retaliatory arrest damages claim. Instead, it ruled narrowly for the plaintiff based on the particular facts of his case.

In Lozman, the plaintiff alleged that a city (through its policymakers) had him arrested in retaliation for the exercise of his First Amendment rights. He claimed that he was arrested at a city council meeting when he got up to speak because he previously had criticized the city’s eminent domain redevelopment efforts and had also sued the city for violating the state’s Sunshine Act. He was never prosecuted. However, the plaintiff conceded that there was probable cause for his arrest for violating a Florida statute prohibiting interruptions or disturbances at certain public assemblies, because he had refused to leave the podium after receiving a lawful order to do so.

Ordinarily, such a plaintiff, in order to make out a section 1983 First Amendment retaliatory arrest claim, would only have to allege and prove that this impermissible retaliatory motive caused him harm, and the defendant would have the burden of disproving the absence of but-for causation in order to escape liability. Mt. Healthy Bd. of Education v. Doyle, 429 U.S. 274 (1977). But here the city argued that even if its motive was impermissible under the First Amendment, there was probable cause–an objective Fourth Amendment standard–to arrest the plaintiff anyway, and that this constituted a defense to the plaintiff’s First Amendment retaliation claim.

In Lozman, the Eleventh Circuit had ruled that probable cause was indeed a defense to a section 1983 First Amendment retaliatory arrest claim. Specifically, it determined that a section 1983 retaliatory arrest plaintiff must allege and prove not only the retaliatory motive but the absence of probable cause as well. In other words, the absence of probable cause was an element of the section 1983 plaintiff’s retaliatory arrest claim.

The Eleventh Circuit’s Reliance on Hartman v. Moore

The Eleventh Circuit’s decision was based on the Supreme Court’s decision in Hartman v. Moore,  547 U.S. 250 (2006), which held that for section 1983 retaliatory prosecution claims against law enforcement officers (prosecutors themselves are absolutely immune from damages liability for their decision to prosecute), the plaintiff must allege and prove not only the impermissible motive but the absence of probable cause as well. The Court reasoned that there was a presumption of prosecutorial regularity that the section 1983 plaintiff must overcome as an element of his retaliatory prosecution case. Accordingly, as a matter of section 1983 statutory interpretation and policy (but not of constitutional law), the plaintiff should have this twin burden in retaliatory prosecution cases.

The Court in Hartman explained that a retaliatory prosecution case was very different from the usual First Amendment retaliation case that involved a relatively clear causal connection between the defendant’s impermissible motivation and the resulting injury to the plaintiff. It was appropriate in such cases to apply the Mt. Healthy burden-shift rule under which the defendant has the burden of disproving but-for causation in order to prevail.

As discussed in a prior post, the Court previously had a similar First Amendment retaliatory arrest issue before it in Reichle v. Howards, 566 U.S. 658 (2012). But it avoided addressing the merits by ruling for the individual defendants on qualified immunity grounds.

In my view, as I have argued previously, the Court’s decision in Hartman should not be applied to First Amendment retaliatory arrest cases. The express reason for the Hartman rule is that First Amendment retaliatory prosecution cases involve a presumption of prosecutorial regularity. But this reason is clearly inapplicable where there is no prosecution and the constitutional challenge is to the arrest itself.

Moreover, First Amendment retaliatory arrest claims involve the impermissible motivation (a subjective inquiry) of law enforcement officers irrespective of probable cause, which is an objective (could have arrested) inquiry. Under this objective inquiry, the existence of probable cause precludes a Fourth Amendment violation based on an arrest even where that arrest is grounded on an offense different from the offense for which probable cause is deemed to be present. This provides a great deal of protection for police officers who allegedly make arrests in violation of the Fourth Amendment.

However, if a police officer arrests a person for racial reasons, and the claimed injury is grounded on those racial reasons, it should not matter for the Equal Protection claim–-even if it would for a Fourth Amendment claim–-that the officer had probable cause to do so, namely, that the officer could have arrested the plaintiff. This reasoning should apply as well to §1983 First Amendment retaliatory arrest claims.

It was always questionable whether the Court in Hartman should have allowed policy considerations to change the usual section 1983 causation rules in First Amendment retaliatory prosecution cases. Regardless, that reasoning should most definitely not be extended to First Amendment retaliatory arrest cases. Such policy considerations as are discussed in Hartman are most appropriately addressed, if they are to be addressed at all, as part of the qualified immunity inquiry, not the elements of the section 1983 retaliatory arrest claim.

The Supreme Court’s Narrow Decision in Lozman

In any event, in Lozman, the Court, in an opinion by Justice Kennedy, reversed the Eleventh Circuit and ruled that in this particular case the plaintiff did not have to allege and prove the absence of probable cause, and probable cause was not a defense to his First Amendment retaliatory arrest claim.

Emphasizing the narrowness of its decision, the Court pointed out that the plaintiff only challenged the lawfulness of his arrest under the First Amendment; he did not make an equal protection claim. Further, he conceded there was probable cause for his arrest, namely, that he could have been arrested for violating the Florida statute. Thus, the only question was whether the existence of probable cause barred his First Amendment retaliation claim in this case.

The Court went on to observe that the issue in First Amendment retaliatory arrest cases was whether Mt. Healthy or Hartman applied. It addressed what it considered to be the strong policy arguments on both sides of the issue. The Court then determined that resolution of the matter would have to wait for another case: “For Lozman’s claim is far afield from the typical retaliatory arrest claims, and the difficulties that might arise if Mt. Healthy is applied to the same mine run of arrests made by police officers are not present here.” For one thing, the plaintiff did not sue the officer who made the arrest. For another, since he sued the city, he had to allege and prove an official policy or custom, which “separates Lozman’s claim from the typical retaliatory arrest claim.” Moreover, the causation issues here were relatively straightforward because the plaintiff’s allegations of an official policy or custom of retaliation were unrelated to the criminal offense for which the arrest was made but rather to prior, protected speech. In short, the causal connection between the alleged animus and the injury would not be “weakened by [an official’s] legitimate consideration of speech.”(quoting Reichle, 566 U.S. at 668).

This did not mean that the Lozman plaintiff would necessarily win on remand. A jury might find that the city did not have a retaliatory motive. Or, under Mt. Healthy, the city might show that it would have had the plaintiff arrested anyway regardless of any retaliatory motive.

Justice Thomas was the sole dissenter. He maintained that the Court had simply made up a narrow rule to fit this case. Instead, he argued that plaintiffs in First Amendment retaliatory arrest cases have the burden of pleading and proving the absence of probable cause. That is, probable cause “necessarily defeats First Amendment retaliatory-arrest claims.” Accordingly, the plaintiff should lose here.

Comments

The better approach, as indicated above, is to apply Mt. Healthy in all retaliatory arrest cases. Hartman should be limited to retaliatory prosecution cases. Nevertheless, after Lozman the question is still open in the Supreme Court. This means, among other things, the retaliatory arrest individual defendants will continue to have a powerful qualified immunity argument, namely, that the law is not clearly settled even now, per Reichle v. Howards.

Note, however, that the Court may yet resolve this question in its forthcoming 2018 Term. On June 28, 2018, it granted certiorari in Nieves v. Bartlett, 712 Fed.Appx. 613 (9th Cir. 2017)(No.17-1174), to address once again whether probable cause is a defense to a section 1983 First Amendment retaliatory arrest claim. In this unreported decision, the Ninth Circuit ruled that probable cause is not a defense to First Amendment retaliatory arrest damages claims.

Written by snahmod

July 19, 2018 at 2:19 pm

What Everyone Should Know About Free Speech, Hate Speech and Political Protests: My New Video

I spoke about free speech, hate speech and political protests at the Chicago Bar Association on March 22, 2018. This was a CLE presentation setting out the basics of free speech and its relation to hate speech and political protests.

Although the audience consisted of lawyers, I deliberately used as little legal jargon as possible, with the result that the video of my presentation is suitable for any non-lawyers who are interested in learning about this always-important topic.

I hope you find it of interest. If you have any comments or thoughts, please feel free to email me at snahmod@kentlaw.edu.

Here is the link to the video (not in HD, unfortunately):

 

I also invite you to follow me on Twitter: @NahmodLaw.

 

Written by snahmod

June 26, 2018 at 10:11 am

“A Lark and a Frolic” and the Public/Private Distinction: When Does a Nominal State Actor Lose That Status?

The Fourteenth Amendment (with its due process, equal protection and incorporated Bill of Rights components) has a constitutional state action requirement, meaning that the Fourteenth Amendment is not applicable to purely private conduct. Rather, it governs the conduct of state and local government officials and employees, as well as states and local governments themselves.

(On state action, see my post, Know Your Constitution (8): What is State Action? which can be found here: https://nahmodlaw.com/2015/02/19/know-your-constitution-8-what-is-state-action/)

In contrast, section 1983 has a statutory color of law requirement. So what is the connection between state action and color of law? The answer, as it turns out: where state action is present, so is color of law.

(On color of law and section 1983, see my post, State Action, Color of Law and Section 1983, which can be found here: https://nahmodlaw.com/2016/11/21/state-action-color-of-law-and-section-1983/)

However, there are situations where a state or local government official whose conduct would ordinarily be considered to be state action for Fourteenth Amendment purposes (and therefore color of law for section 1983 purposes), is not considered to be a state actor and therefore as not having acted under color of law. For instance, off-duty police officers who work as private security guards. I call this the converse of the typical state action question.

(I discuss and collect such cases in sec. 2:13 of my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed. 2017)(West & Westlaw).

To explain: the typical state action question is whether the challenged conduct should be attributed to a state or local government for Fourteenth Amendment and section 1983 purposes. The converse of the typical state action question is whether the challenged conduct of a government official or employee, ordinarily state action and color of law, should not be attributed to a state or local government for Fourteenth Amendment and section 1983 purposes. The following Seventh Circuit decision is an example of the latter.

Luce v. Town of Campbell

In Luce v. Town of Campbell, 872 F.3d 512 (7th Cir. 2017), a police chief “messed” with Tea Party protestors who had criticized the police department for alleged mistreatment by posting the name and address of one of the protestors on websites catering to gay men and consumers of pornography. The police chief also posted comments on the local newspaper’s website falsely accusing the protestor of failing to pay taxes and his debts. The police chief tried to hide his role but he was discovered and thereafter resigned. Affirming the district court, the Seventh Circuit found that the police chief was not a state actor when he “messed” with the protestor: he did not use official information or privileged access. More important, acting like a vigilante was not part of a police officer’s job. Rather, it was “a lark and a frolic.” Accordingly, he could not be subject to section 1983 liability: because his conduct was not state action under the Fourteenth Amendment, he did not act under color of law for section 1983 purposes.

Comment

Both the state action and converse state action inquiries are very fact-specific. There are no real bright line rules: the inquiry focuses on whether the state or local government official exercised governmental power. To put this another way: the ultimate state action and color of law question is whether the state or local government is responsible for the challenged conduct.

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June 21, 2018 at 2:25 pm

Are Contract Clause Violations Actionable Under Section 1983? A Circuit Split

The Contract Clause, U.S. Const. Art I, § 10, provides: “No State shall … pass any … Law Impairing the Obligation of Contracts.”

The Supreme Court has developed a three-part Contract Clause test: (1) does the state law operate as a substantial impairment of the contractual relationship; (2) if so, does the state have a significant, legitimate public purpose behind the regulation; and (3), if so, is the adjustment of the rights and responsibilities of the contracting parties based on reasonable conditions and is it appropriate to the public purposes justifying the state regulation? See, generally, Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400 (1983).

Are Contract Clause violations actionable under §1983? Can a tenured teacher use §1983 to bring an action for violation of the Contract Clause arising out of a statute or ordinance that cuts back on the rights of tenured teachers in layoffs? Or can retirees use §1983 to bring an action for violation of the Contract Clause challenging a statute or ordinance that temporarily replaces their retiree health care benefits with monthly stipends that can be used to purchase individual health care coverage? With financial pressures arising out of public pension debt growing more pressing nationally every day, the answer to these questions may be important.

There is currently a split in the circuits on this issue. The Ninth Circuit has ruled that Contract Clause violations are indeed actionable under §1983. It stated: “The right of a party not to have a State, or a political subdivision thereof, impair its obligations of contract is a right secured by the first article of the United States Constitution. A deprivation of that right may therefore give rise to a cause of action under section 1983.” Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (per curiam).

In contrast, the Fourth and Sixth Circuits have ruled that Contract Clause violations are not actionable under §1983. See Crosby v. City of Gastonia, 635 F. 3d 634 (4th Cir. 2011) and Kaminski v. Coulter, 2017 WL 3138308 (6th Cir. 2017). Among other things, these decisions noted that the only Supreme Court case on point had ruled this way long ago under §1983’s predecessor statute. Carter v. Greenhow, 114 U.S. 317 (1885).

Interestingly, the Seventh Circuit, in Elliott v. Board of School Trustees, 2017 WL 5988226 (7th Cir. 2017), assumed, without having to decide the issue in the case before it, that Contract Clause violations are actionable for damages under §1983. It then went on to find that a new Indiana law that cut back on the rights of tenured teachers in layoffs violated the Contract Clause rights of a teacher who had tenure before the law took effect.

The better view is that Contract Clause violations are actionable under §1983. As the Seventh Circuit pointed out in Elliott, Supreme Court and other opinions have read the 1885 Carter decision “as based more narrowly on the way the particular claim in that case was pled and the failure to satisfy the amount-in-controversy requirement applicable at the time.”

More important, there is no persuasive reason to exclude Contract Clause violations from the “deprivation of any rights … secured by the Constitution” language of §1983 itself.

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Written by snahmod

April 4, 2018 at 10:41 am

Free Speech, Universities and Campus Disruption

[This post is based on my presentation at a symposium on Free Speech and Campus Disruption held January 25, 2018, at Northwestern Law School. The symposium was co-sponsored by the Academic Engagement Network.]

Two propositions

I begin with two fundamental propositions. First, political protests and a free press are the lifeblood of American democracy. Second, the primary purposes of universities are to develop critical intellectual faculties and to advance knowledge: there should be no intellectual “safe spaces” at a university. These two propositions are tied to the self-government and marketplace of ideas functions of the First Amendment.

First Amendment basics

Here are some First Amendment basics. For one thing, when government regulates, it must ordinarily be neutral with respect to the content and, especially, the viewpoint of speech. For another, the First Amendment is not an absolute. Indeed, there are no absolute individual constitutional rights. Further, there are often costs imposed on innocent people, including taxpayers, by the First Amendment. In addition, the First Amendment technically applies only to government regulation; it protects private individuals from the state.

Finally, First Amendment principles, as articulated by the Supreme Court, do not exclusively reflect the exercise of political power, as some assert. These principles have worked well as a general matter to protect diverse viewpoints, and have taken account of political (and economic) inequality to protect the “little guy” and traditional media of communication such as leafleting, demonstrations and the like.

Protests on campus: an all-too-familiar fact pattern

Suppose a controversial and deliberately provocative speaker is invited by students to speak at a facility used for university-wide events. Unless the facility is ordinarily open to non-university events, the invited speaker has no First Amendment right of access to the facility. However, the students who invited him or her have a First Amendment right receive information and hear the speaker’s ideas. (Supreme Court decisions such as Lamont v. Postmaster General, Virginia State Bd. of Pharmacy and Red Lion, all speak of such a right in readers, listeners and viewers in certain circumstances.)

What are the constraints on the speaker? He or she may not engage in speech directed at inciting unlawful conduct, where the speech is likely to lead to such conduct. Such speech is unprotected by the First Amendment, as are true threats and “fighting words,” although the last has been limited to face-to-face confrontations.

Significantly, the university has an affirmative First Amendment duty to use reasonable means to physically protect the speaker from a hostile audience (Justice Black’s famous dissent in Feiner). That is, the university must try to control the audience before shutting down the speaker for his or her protection.

However, those protesting the speaker have First Amendment rights of their own: what are their limits? The protesters can make their views known but they cannot physically disrupt the speaker. So they may stand silently during the talk, or with their backs to the speaker, and they may even hold placards in opposition. But preventing the speaker  from speaking through continued heckling, or by throwing things or through other violent conduct, is not protected by the First Amendment and can be punished either by discipline or criminal sanctions if they are students, or by criminal sanctions if they are outsiders who are not students. Such conduct is neither protected by the First Amendment nor consistent with the primary purposes of universities.

University officials’ responses to disruption

Of course, it does not follow that universities in this situation will discipline their students or that law enforcement will proceed with criminal prosecutions. University officials often want to avoid or at least minimize controversy. They also have various constituencies: students, alumni, faculty, public opinion and, if public universities, legislatures. And in fairness, it is often difficult in the heat of things to know who the disruptors are and whether they are students or outsiders.

Still, when thinking about university administrators confronting these events, I am reminded of something that Justice Frankfurter wrote long ago about legislators: “One must not expect uncommon courage in legislators.” With respect, it is fair to say the same thing about most university administrators who deal with these situations.

Still, university officials should keep this language from the Supreme Court’s 1957 Sweezy decision in mind:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. … Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

 

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Written by snahmod

January 31, 2018 at 9:07 am