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DeShaney in the Circuits (VII): Another Disturbing Affirmative Duty Case Lost by Plaintiffs

I have blogged previously about how the Supreme Court’s controversial DeShaney decision has fared in the circuits. DeShaney held that as a general matter governments have no affirmative substantive due process duty to protect persons from private harm (of course, it’s more complicated than that). The first post was on 8-22-11; the second was on 6-1-12; the third was on 5-20-13; the fourth was on 6-6-13; the fifth was on August 27, 2014, and the most recent was on April 10, 2015.

Here is a particularly disturbing DeShaney-related decision from the Fourth Circuit. I came across it when preparing the now-published 2016 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).

Doe 2 v. Rosa, 759 F.3d  429 (4th Cir. 2015)

In Doe 2, two brothers sued the president of a public military college under section 1983 and substantive due process, alleging that he failed to protect them from being sexually molested by a camp counselor, a former cadet, while at summer camp on campus.

Affirming the district court’s grant of summary judgment to the president, the Fourth Circuit found no liability under the state-created danger approach. Relying on its decision in Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995), the Fourth Circuit determined that the president did not create or substantially enhance the danger that the boys faced.

The Fourth Circuit observed that the counselor began abusing the boys in 2005 and 2006, two years before the president could have been aware (through a complaint) that the counselor was a pedophile. Thus the president could not have created a danger that already existed.

Nor did he increase the risk to the boys: there was nothing that the counselor did to the boys during the early summer in 2007 that was not ongoing for two years, and this was all unrelated to any action by the president.

DeShaney had established that continued exposure to an existing danger by failure to intervene was not the equivalent of creating or increasing that danger.

Moreover, even if the boys did face a new or increased risk of abuse, this was not the result of any affirmative acts of the president: his inaction was solely his failure to alert the authorities about the counselor’s past conduct.


In these kinds of cases plaintiffs have the heavy initial burden of showing the existence of an affirmative due process duty to act in some manner. In order to get around the DeShaney no affirmative duty rule, plaintiffs typically attempt to use one or both of two exceptions: (1) special relationship and (2) danger creation. In Doe 2, there was no special relationship because the president did not himself place the brothers in a situation where they could not protect themselves. The circuits have typically held that even public school officials have no affirmative duty under a special relationship theory to protect their students from sexual abuse by teachers or other students.

That left the plaintiffs with the danger creation theory based on the allegation that he failed to alert the authorities about the counselor’s past conduct. But even that did not work for them because, according to the Fourth Circuit, the president did not play an affirmative causal role in creating or increasing the danger of sexual abuse to them. In other words, he did nothing that changed the situation in which they found themselves. This was determinative of the no-duty outcome in Doe 2, even though the president’s failure to notify authorities was plausibly related as a causal matter to the brothers’ continuing victimization.

Doe 2 is yet another example of the effectiveness of the DeShaney no-duty rule as a gatekeeper in keeping such section 1983 cases out of the federal (and state) courts. All that the plaintiffs alleged was the president’s failure to alert authorities about the counselor’s past conduct; they were not seeking any other form of affirmative protection from him. And still DeShaney applied.

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Written by snahmod

October 4, 2016 at 8:53 am

My Amicus in Manuel v. City of Joliet, No. 14-9496: Section 1983 “Malicious Prosecution”

As some of you know, I have been arguing for quite some time that the scope of section 1983 should not be governed by tort law. See Nahmod, Section 1983 and the “Background” of Tort Liability, 50 Ind. L.J. 5 (1974).

Along the same lines, I have consistently maintained that the elements of the tort of malicious prosecution should play no meaningful role in section 1983 statutory interpretation–see my post of Sept. 11, 2009. The only exception is where section 1983 damages actions challenge existing convictions. Heck v. Humphrey, 512 U.S. 477 (1994).

As noted in my post of March 24, 2016, the Supreme Court granted the plaintiff Petitioner’s petition for writ of certiorari in Manuel v. City of Joliet to address the question whether the Fourth Amendment can serve as the basis of a section 1983 “malicious prosecution” claim. Counsel for Respondents asked me to submit an amicus brief in support of affirming the Seventh Circuit‘s judgment for Respondents.

I filed my amicus brief on August 10, 2016, with the able assistance of Joshua Yount, Charles Woodworth and Michael Downey of Mayer Brown LLP, Chicago, Illinois.

The entire amicus brief is available here.

For those who do not want to read the entire brief, what follows is the full Introduction and Summary of Argument:


Over twenty years ago, this Court acknowledged “an embarrassing diversity of judicial opinion” on “the extent to which a claim of malicious prosecution is actionable under § 1983.” Albright v. Oliver, 510 U.S. 266, 270 n.4 (1994) (plurality opinion). This embarrassment continues, seriously impeding the vindication of the Fourteenth Amendment and other constitutional rights. The time has come to answer the fundamental issues raised by the Question Presented, which as the certiorari petition recognized (at 10-11, 21, 25-26), necessarily include whether the elements of the common law malicious prosecution tort—and the favorable termination element in particular— apply to Petitioner’s § 1983 claim.

The only defensible answer to that crucial statutory interpretation question is that the common law elements of malicious prosecution should play no independent role in determining the scope of claims under 42 U.S.C. § 1983. Section 1983 created a federal statutory remedy for constitutional violations perpetrated by state actors, whereas malicious prosecution is a common law tort. To describe a § 1983 claim as “malicious prosecution” is a misnomer that directs attention away from the real inquiry—the elements of the constitutional provision underlying the particular § 1983 claim—and improperly focuses instead on the elements of the malicious prosecution tort. In this respect the Seventh Circuit gets it right while other circuits do not: “[I]f a plaintiff can establish a violation of the fourth (or any other) amendment there is nothing but confusion to be gained by calling the legal theory ‘malicious prosecution.’” Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001).

Attempts to analogize between so-called § 1983 “malicious prosecution” claims and the common law elements of malicious prosecution have caused a great deal of confusion in the lower courts. The en banc Fifth Circuit described its own “precedent governing § 1983 malicious prosecution claims” as “a mix of misstatements and omissions” that has led to “inconsistencies and difficulties.” Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc). And the Fifth Circuit acknowledged that it is “not alone in this drift. Other circuits have traveled uneven paths as well, and numerous approaches have developed after Albright.” Ibid.; see generally Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 §§ 3:66-3:67 (4th ed. 2015) (collecting and analyzing post-Albright cases in the circuits, and arguing that malicious prosecution law should not dictate scope of § 1983).

Petitioner tries to take advantage of this confusion to save his § 1983 “malicious prosecution” claim from dismissal on statute of limitations grounds. He maintains that § 1983 imports the “favorable termination” element of common law malicious prosecution, which would have prevented accrual of his claim until he was released and the charges against him dropped. Such a maneuver cannot be squared with § 1983 or this Court’s precedents.

1. Contrary to the rule that Petitioner needs to prevail, the elements of common law torts like malicious prosecution do not dictate the elements of a § 1983 claim. Nothing in the text of § 1983, its legislative history, or its purposes indicates that Congress intended to merely duplicate common law torts. Section 1983 by its own language was enacted to enforce the “rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. Regardless of any superficial similarity between particular § 1983 actions and particular tort actions, the vital constitutional interests served by § 1983 are distinct from and independent of the principles that animate tort law.

The Court has consistently reaffirmed that constitutional deprivations are central to § 1983 claims. Thus, the statutory cause of action may be interpreted against the “background of tort liability,” but only to implement § 1983, not to define its scope. Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled on other grounds by Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978). At most, common law principles can fill gaps as necessary to effectuate a damages remedy for constitutional violations.

2. Importing the common law elements of malicious prosecution into § 1983 would be particularly ill-advised. The last two decades have demonstrated that attempts to do so result only in confusion. Indeed, the fundamental disconnect between the elements of a § 1983 claim and the elements of a common law malicious prosecution claim virtually guarantees confusion. In addition, the entire enterprise of attempting to interpret a supposedly uniform federal cause of action based on tort law that varies not only from one state to another, but from the time of § 1983’s enactment in 1871 to the present day, is just not workable.

Finally, as a matter of § 1983 law and policy, there is no good reason to make any of the traditional elements of malicious prosecution into elements of Petitioner’s § 1983 claim for unlawful pretrial detention. Several of the malicious prosecution elements (including the favorable termination requirement) contradict established § 1983 precedents. And others (such as the absence of probable cause) make sense only to the extent that the underlying constitutional right requires their consideration. In short, this Court’s interpretation of § 1983 should not be governed by the common law tort of malicious prosecution.

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Written by snahmod

August 16, 2016 at 8:58 am

Section 1983 Police Officer Liability for Driving Recklessly

Protecting Police Officers from Section 1983 Damages Liability

By now, many of us know that section 1983 doctrines are highly protective of police officers sued for violating citizens’ constitutional rights. Fourth Amendment law itself has become more officer-protective with its emphasis in excessive force cases on the perspective of the officer at the time of the occurrence. Graham v. Connor, 490 U.S.386 (1989).  And the added layer of protection for officers, qualified immunity, has repeatedly been described by the Supreme Court as protecting “all but the plainly incompetent” from damages liability. See generally on qualified immunity, ch. 8 of my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed. 2015).

High-Speed Police Chases, the Fourth Amendment and Qualified Immunity

In high-speed police chases that involve a seizure and therefore implicate the Fourth Amendment, the pro-officer approach of the Supreme Court is particularly obvious. For example, the Supreme Court handed down Mullinex v. Luna, 136 S. Ct. 305 (2015), which ruled on qualified immunity grounds in favor of a police officer who allegedly used deadly force in violation of the Fourth Amendment in a high-speed police chase situation. See my post of February 12, 2016. A prior decision, Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), had ruled on the Fourth Amendment merits in favor of pursuing police officers who shot the driver and a passenger. See my post of May 28, 2014.

Both Plumhoff and Mullinex derived from the Court’s decision in Scott v. Harris, 550 U.S. 372 (2007), which ruled that a police officer did not violate the Fourth Amendment when he attempted to stop a fleeing driver from continuing his “public-endangering flight” by ramming the driver’s car from behind even though the officer’s actions created the risk of serious injury or death to the driver. According to the Court in Scott, a video of the chase made clear that the officer’s ramming of the car was objectively reasonable.

High-Speed Police Chases and Substantive Due Process

Furthermore, even in cases that don’t involve a Fourth Amendment seizure but instead implicate substantive due process, the Supreme Court has required a very high standard of culpability–a purpose to do harm–that is incredibly difficult for a plaintiff to surmount. County of Sacramento v. Lewis, 523 U.S. 833 (1998).

A Rare Case of Section 1983 Police Officer Liability: Browder v. City of Albuquerque, 2015 WL 3462180 (10th Cir. 2015)

Now consider a substantive due process case where, because it did not involve a high-speed chase that was legitimate from a law enforcement perspective, the result was dramatically different.

The Tenth Circuit in Browder set out the facts this way:

“[The defendant] was going nowhere fast. After finishing his shift at the Albuquerque police department and on no one’s business but his own, he got into his police cruiser, flipped on the emergency lights, and drove off at an average of about 66 miles an hour on city surface streets through ten different intersections over a stretch of 8.8 miles. Then he reached an eleventh intersection. The light was red. He pressed the gas pedal, ignored the light, and the result was a terrible crash. “

A woman died and her sister was seriously injured. Their representative sued the police officer under section 1983 alleging a substantive due process violation.

Affirming the district court which denied the defendant’s motion for summary judgment based on qualified immunity, the Tenth Circuit pointed out that this was not a case involving a possibly legitimate government objective. Further, there was sufficient evidence of reckless indifference to the lives of others, a kind of mens rea, because the defendant was not responding to any emergency or on any official business at all. Moreover, the defendant violated clearly settled law in 2013, the time of the accident, and thus was not entitled to qualified immunity.


Notice that the Tenth Circuit did not use the pro-defendant County of Sacramento test with its very high standard of culpability–purpose to do harm– because the officer was not engaged in a high-speed chase of a suspect. Instead, it used the somewhat lower standard of reckless indifference, although this was accompanied by a reference to County of Sacramento and the alleged mens rea of the officer.

Also observe that while there is an interesting question whether the police officer in Browder acted under color of law, the parties accepted that there was state action and the Tenth Circuit agreed without deciding the question.


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Written by snahmod

August 2, 2016 at 2:00 pm

What Does It Take to “Shock the Conscience” in the Classroom?

Substantive Due Process and the “Shocks the Conscience” Test

Many of us know of the substantive due process test of “shocks the conscience” and the very high hurdle it presents for section 1983 plaintiffs in cases in which it applies.

In Domingo v. Kowalski, 810 F.3d 403 (6th Cir. 2016), the Sixth Circuit appears to have made it close to impossible for students to successfully sue their teachers for violating substantive due process in the classroom.

The Domingo Facts and Ruling

In this case, parents of special education students sued their teacher, alleging substantive due process violations for the following, all of which occurred in the classroom: “abus[ing] her students … by, among other things, gagging one student with a bandana to stop him from spitting, strapping another to a toilet to keep her from falling from the toilet, and forcing yet another to sit with her pants down on a training toilet in full view of her classmates to assist her with toilet-training.”

The Sixth Circuit affirmed the district court’s grant of summary judgment for the teacher on the ground that the teacher’s conduct did not shock the conscience and thus did not violate substantive due process. It applied the four-part test of the Third Circuit in Gottlieb v. Laurel Highlands School Dist., 272 F.3d 168 (3rd Cir. 2001): (1) though the techniques used by the teacher were inappropriate, they were done for a legitimate pedagogical purpose; (2) the force used was not excessive; (3) the teacher did not act with malicious or sadistic intent; and (4) there was no evidence of any serious physical or psychological injury.

Judge Batchelder concurred in part and concurred in the judgment, 810 F.3d 403, *416, while Judge Boggs dissented in part, 810 F.3d 403, *417, arguing that one student’s claim arising out of the teacher’s binding and gagging him because he was disruptive and spitting should have gone to the jury: this particular discipline was never repeated even though the student’s conduct occurred several other times; the teacher’s conduct was the subject of severe criticism by a teacher’s aide; there may well have been no legitimate pedagogical justification for the teacher’s conduct; and the degree of force used could be understood as malicious or sadistic.


What to me is particularly troublesome about Domingo is the third part of the test, borrowed from the Third Circuit, that the teacher must have acted with malicious or sadistic intent. That is such a high standard and is so protective of section 1983 defendants that it is ordinarily reserved for prison guards enforcing prison security, Wilson v. Seiter, 501 U.S. 294 (1991)(malicious and sadistic intent), and for police officers engaged in high speed car chases, County of Sacramento v. Lewis, 523 U.S. 833 (1998)(purpose to do harm). In both these kinds of cases, split-second decision-making involving physical well-being is required and, as a matter of policy, we don’t want to chill such decision-making unduly.

But this consideration–providing a margin for error for split-second decision-making–does not apply with the same force in the classroom. Furthermore, the classroom contains minors who are particularly vulnerable to abuse by their teachers.

I agree that we should not ordinarily constitutionalize teacher error. However, we should not immunize it from meaningful judicial review and section 1983 accountability in egregious cases such as Domingo.

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Written by snahmod

July 6, 2016 at 2:30 pm

“Get Over It”: Justice Scalia and Bush v. Gore, Roe v. Wade and Obergefell v. Hodges

It is one of the worst Supreme Court decisions in history.

No, I’m not referring to Dred Scott v. Sanford, which held that blacks could never be U.S. citizens, thereby making the Civil War all but inevitable.

I’m also not referring to Plessy v. Ferguson, which upheld separate but equal and ushered in Jim Crow.

I’m not referring to Lochner v. New York, where a laissez faire Supreme Court struck down pro-labor progressive legislation.

And I’m not referring to U.S. v. Korematsu, which upheld the internment of loyal Japanese-American citizens during World War II.

All four of these decisions are morally repugnant, and several are even evil.

No, I’m referring to the infamous and much more recent 2000 decision in Bush v. Gore, where the Court called a halt to the Florida recount and effectively selected George Bush as President of the United States.

This is, in my opinion, perhaps the most overtly politically partisan decision in Supreme Court history. Five Republican-appointed Justices voted for the Republican candidate, while the four dissenters, including two Democrat-appointed Justices and two Republican-appointed Justices, maintained that the Court should not have become involved or at least should not have stopped the recount.

Bush v. Gore blatantly violated the most basic principles of federalism, comity and judicial restraint. The five Justices in the majority, even if they thought they acted in good faith, fooled themselves into thinking that they were simply interpreting the Constitution rather than voting their own partisan political preferences. Justice Scalia was, of course, one of those.

Why do I bring up Bush v. Gore? Because Justice Scalia repeatedly admonished those who criticized the Court’s decision to “get over it.”

But Justice Scalia himself never could get over Roe v. Wade, the 1973 landmark abortion decision. He contended that Roe was incorrect and should be overruled, regardless of the consequences. He repeatedly and heatedly accused his colleagues of intellectual dishonesty and of supplanting the political process.

He could never get over the Court’s decision in Romer v. Evans, dealing with sexual orientation discrimination. He accused the majority of taking sides in the culture wars and of signing on to the “homosexual agenda.”

He angrily attacked the Court’s decision in U.S. v. Windsor, striking down the Defense of Marriage Act, and commented bitterly (and correctly, as it turned out), that Windsor would directly lead to constitutionalizing same-sex marriage. Then came Obergefell v. Hodges, the blockbuster 2015 decision finding a due process right to same-sex marriage.

I fully understand Justice Scalia’s anger and frustration regarding abortion and same-sex marriage, even though I disagree with his views on the merits. And I even understand why he could never “get over” those decisions.

But his calls for others to “get over” Bush v. Gore always rang hollow to me and smacked of disingenuousness or even hypocrisy.

I continue to teach Bush v. Gore as the last case in my constitutional law course because it is the best example of a wrongheaded and politically partisan Supreme Court decision handed down by a triumphalist Court.

I still cannot get over it.


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Written by snahmod

February 22, 2016 at 2:02 pm

Posted in Constitutional Law

Federal Attorney’s Fees Statute Means What SCOTUS Says It Means: Slapping Down the Idaho Supreme Court

It is hard to believe in this day and age that a state Supreme Court thinks it can advance its own interpretation of federal law contrary to an interpretation by the United States Supreme Court. But that’s exactly what happened in James v. Boise (No. 15-493), handed down on January 25, 2016.

In a terse per curiam decision, the Supreme Court slapped down the Idaho Supreme Court and declared that its interpretation of 42 U.S.C. section 1988, the Civil Rights Attorney’s Fees Awards Act, governed.

Recall that section 1988 provides that “a reasonable attorney’s fee” should be awarded to “the prevailing party” in a section 1983 suit. In Hughes v. Rowe, 449 U.S. 5 (1980)(per curiam), the Supreme Court, relying on the clear legislative history, interpreted this language as creating a double standard: a prevailing plaintiff is ordinarily entitled to fees but a prevailing defendant is only entitled to fees where the plaintiff’s suit was “frivolous, unreasonable, or without foundation.” See chapter 10 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2015)(West).

However, in the James case, which arose in the Idaho courts, the Idaho Supreme Court expressly rejected this interpretation of section 1988 as applied to prevailing defendants when section 1983 claims are brought in state courts.

Unsurprisingly, the Supreme Court reversed. Giving the Idaho Supreme Court a lesson from the basic course in constitutional law, the Supreme Court cited Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816), for the proposition that Supreme Court interpretations of federal law are the supreme law of the land. They trump any contrary state court interpretations.

It quoted Rivers v. Roadway Express, Inc., 511 U.S. 298, 314 (1994): “It is this Court’s responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.”

There is no need to comment on this decision. Res ipsa loquitor.


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Written by snahmod

February 12, 2016 at 11:53 am

My Class on Race, Dred Scott and Korematsu (Audio)

On October 21, 2015, I audio-taped a 55-minute makeup class on racial discrimination that covered two major (and infamous) Supreme Court cases, Dred Scott and Korematsu.

I hope you find it of interest.

Here it is:


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Written by snahmod

January 4, 2016 at 10:54 am

Posted in Constitutional Law