Archive for the ‘Constitutional Law’ Category
In White v. Pauly, 137 S. Ct. 548 (2017)(per curiam), the Supreme Court once more strongly sent a message that police officers are to be given maximum deference when sued for damages under section 1983 and the Fourth Amendment for using excessive force.
In 2015, 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 Feb. 11, 2016.
An earlier 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 derive 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.
White v. Pauly: A Police Officer Receives Qualified Immunity for Use of Deadly Force
In White v. Pauly, yet another excessive force case (this one not involving a high-speed chase), the Supreme Court continued to signal lower federal courts and litigants that the clearly settled law inquiry must be made at a relatively fact specific level. In the Court’s words: “This case addresses the situation of an officer who—having arrived late at an ongoing police action and having witnessed shots being fired by one of several individuals in a house surrounded by other officers—shoots and kills an armed occupant of the house without first giving a warning.” The Court ruled that the officer was protected by qualified immunity.
The plaintiff in White, representing the estate of his deceased brother, alleged that three police officers violated the Fourth Amendment’s prohibition against the use of excessive force. The plaintiff was involved in a road-rage incident with two women who called 911 to report him as “drunk” and “swerving all crazy.” After a brief, nonviolent encounter with the women, the plaintiff drove off to a secluded house where he lived with his brother. Thereafter, two police officers—not including Officer White at the time–drove to the house (it was 11 pm) and were moving around outside. The plaintiff and his brother became aware of persons outside and yelled “Who are you?” and “What do you want?” The plaintiff maintained that he and his brother never heard the two officers identify themselves as police—only that the officers said they were armed and coming in. The brothers then armed themselves and began shooting. At that point Officer White, who had been radioed by the two officers, was walking toward the house when he heard the shots apparently directed at the two officers. Plaintiff’s brother then opened a front window and pointed a handgun in Officer White’s direction. One of the other two officers shot at the brother but missed him, followed immediately by White’s shooting and killing the plaintiff’s brother.
The district court denied all three defendants’ motions for summary judgment, and a divided panel of the Tenth Circuit affirmed. Pauly v. White, 814 F.3d 1060 (10th Cir. 2016). As to the two officers, the Tenth Circuit determined that taking the evidence most favorably to the plaintiff, reasonable officers should have understood that their conduct would cause the brothers to defend their home and might result in the use of deadly force against the deceased brother. As to Officer White, the Tenth Circuit ruled that the rule “that a reasonable officer in White’s position would believe that a warning was required despite the threat of serious harm” was clearly established at the time by statements from the Supreme Court’s case law. Judge Moritz dissented, arguing that the majority impermissibly second-guessed officer White’s quick decision to use deadly force.
The Supreme Court then reversed the Tenth Circuit, vacating the judgment against Officer White on the ground that he did not violate clearly established law on the record before the Tenth Circuit. The Court emphasized that it had regularly and repeatedly declared that clearly established law should not be articulated at a high level of generality. In the Court’s view, the Tenth Circuit “failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment.” Instead the Tenth Circuit improperly relied on general statements from the Supreme Court and circuit court “progeny” that set out excessive force principles “at only a general level.” Furthermore, this case did not present an obvious Fourth Amendment violation: the Tenth Circuit majority did not conclude that the failure to shout a warning was a “run-of-the-mill Fourth Amendment violation.” Finally, the Court expressed no opinion on the question whether the other two officers were protected by qualified immunity. Justice Ginsburg concurred, pointing out her “understanding” that the Court’s opinion did not foreclose denying summary judgment to the two other officers.
The Supreme Court obviously cannot decide all of the excessive force/qualified immunity cases in the circuits. So it does the next best thing by signalling to the federal judiciary and litigants that it demands maximum deference to police involving the use of excessive force, together with providing (to police) a significant margin for error in making the qualified immunity determination. In White, this was accomplished by finding no clearly settled Fourth Amendment law because of the Court’s insistence on finding a similar case.
Notice that the signalling is also directed at those federal circuit judges who disagree with a denial of qualified immunity by their panels. They are encouraged to do the hard work and write dissents that might encourage the losing police officers to seek certiorari in the Supreme Court, as well as catch the eye of some of the Justices.
Finally, White makes clear to section 1983 excessive force plaintiffs that they must do their clearly established law homework (I call it “time-travel” research) in order to have a decent chance of surviving a defense motion for summary judgment based on qualified immunity.
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The DeShaney and Collins Obstacles for Injured Public Employees Seeking Section 1983 Damages
A public employee who has been injured and thereby deprived of his or her constitutional rights by the employer’s failure to prevent the injury has two major section 1983 affirmative duty hurdles to overcome.
One is the familiar hurdle presented by DeShaney v. County of Winnebago, 489 U.S. 189 (1989), which held that due process does not impose an affirmative duty on state and local governments to protect individuals from private harm. I have blogged about DeShaney and its application in the circuits numerous times. I also analyze it in sections 3:59-61 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2016).
But even if the DeShaney hurdle can be overcome by showing a special relationship or danger-creation by government, there is the addition hurdle presented by Collins v. City of Harker Heights, 503 U.S. 115 (1992), which held that section 1983 provides no due process remedy “for a municipal employee who is fatally injured in the course of his employment because the city customarily failed to train or warn its employees about known hazards in the workplace.” Put another way, there is no affirmative due process duty to provide a safe workplace for a public employee. See section 3:58 of my treatise for analysis of Collins.
These two significant hurdles demonstrate why overcoming them both in the same case is highly unusual.
Pauluk v. Savage, 836 F.3d 1117 (9th Cir. 2016)
In Pauluk v. Savage, a potentially significant case, the Ninth Circuit held that the injured public employee surmounted both hurdles, even though he ultimately lost on qualified immunity grounds. See chapter 8 of my treatise on qualified immunity.
Decedent’s legal representative sued a county health district and two employees, alleging that their deliberately indifferent exposure of decedent to a workplace environment known to be infested with toxic mold caused his death, thereby violating substantive due process. The Ninth Circuit noted that this case was at the intersection of the state-created danger doctrine on the one hand and Collins v. City of Harker Heights on the other.
Ultimately reversing the district court’s denial of summary judgment to the defendant employees, the court first found that a substantive due process claim was stated under the state-created danger doctrine even though the case involved a physical condition in the workplace. Under the state-created danger doctrine the plaintiff properly alleged and introduced evidence of a violation of substantive due process in that the defendants knowingly created, and continued to create, the danger to the decedent. But it still ruled that the substantive due process right asserted was not clearly established between 2003 and 2005, when the decedent worked despite his protests, with the result that the defendant employees were protected by qualified immunity.
In addition, and more to the present point, the Ninth Circuit went on to rule that the state-created danger doctrine was not foreclosed in this case by Collins. The court observed that Collins did not involve a claim under the state-created danger doctrine, as here, but rather the claim of a general due process right to a safe workplace. This distinction was significant and cut in favor of the decedent. However, there was no violation of clearly settled law because, unlike existing circuit precedent, this case involved harm by a physical condition where decedent worked. Thus, the defendant employees were entitled to qualified immunity on this ground as well.
Judge Murguia concurred in part and dissented in part, arguing that the plaintiff did not present a substantive due process claim of affirmative acts with deliberate indifference. 836 F.3d 1117 at 126. Judge Noonan dissented, contending that the defendant employees in fact violated clearly settled substantive due process law in the Ninth Circuit. 836 F.3d 1117 at 1132.
1. The Ninth Circuit’s qualified immunity decision applies only to the defendant employees sued in their individual capacities for damages. But there still remains a possible section 1983 remedy against the county health district that was also sued by the decedent’s legal representative but was not technically a party to the defendant employees’ interlocutory appeal.
2. Even though the Ninth Circuit resolved the case in favor of the defendant employees on qualified immunity grounds, Pauluk still established clearly settled due process law going forward.
3. The result on the due process merits in Pauluk is the consequence of good lawyering and a careful reading of Collins. Plaintiff’s attorneys persuaded the Ninth Circuit that once the danger-creation doctrine was available, Collins did not apply where a very specific affirmative act regarding the workplace allegedly violated due process.
4. DeShaney and Collins kinds of cases often present tragic circumstances. Still, plaintiffs in such cases typically lose. Pauluk stands out.
I invite you to follow me on Twitter: @NahmodLaw
On March 2, 2017, IIT Chicago-Kent College of Law presented a two hour program for both non-lawyers and lawyers on political protests and free speech. This program was prompted by the suddenly developing political protests directed at the President’s restrictive travel ban and his proposed actions against immigrants.
I spoke for the first half hour and provided a First Amendment overview (what I termed a “primer”) as well as concrete suggestions for political protestors.
In the second and third half-hours two highly regarded Chicago attorneys, Molly Armour and Ed Mullen, discussed their experiences with political protests and law enforcement. They also offered advice to protestors.
The final half hour, which was quite dynamic, addressed questions from a very engaged audience.
If you are interested in the dos and don’ts of political protest, then this is the video for you. I recommend it highly.
I invite you to follow me on Twitter: @NahmodLaw
One of my most popular posts is Know Your Constitution (5): Free Speech and Hate Speech, which was published on December 4, 2013, and can be found here: https://nahmodlaw.com/2013/12/04/know-your-constitution-5-free-speech-and-hate-speech/
More recently, I was invited to lecture on this topic to a general audience at Moriah Congregation in Deerfield, IL, on November 30, 2016. The attentive and engaged audience consisted of adults attending a continuing series of lectures on Henry Ford and anti-Semitism, with my lecture coming near the end of the series.
Following a gracious introduction by Bruce Ogron, an attorney and graduate of IIT Chicago-Kent College of Law, I spoke for 45 minutes and then answered some very good questions for another 15 minutes. I enjoyed the experience immensely.
I spoke first about common erroneous assumptions about the Supreme Court. I then moved into the mainstream theories or purposes of free speech, followed by three important considerations in free speech case law, and I concluded with a discussion of hate speech.
I am very pleased to offer this audio of my lecture.
On September 28, 2016, I audio-taped a 55-minute makeup class on Congressional abrogation of 11th Amendment immunity, including Kimel, Garrett and Hibbs. The class concluded with an important treaty power case, Missouri v. Holland.
I hope you find it of interest.
Here it is:
listen online (no video content):
- or download file here
I blogged on February 19, 2015, about the Fourteenth Amendment’s state action requirement. Much earlier, on November 29, 2009, I blogged about the seminal section 1983 decision in Monroe v. Pape and its ruling that, where state action is present, section 1983’s color of law requirement is thereby met. Readers should check these posts for important background.
The following cases, from the First, Third and Ninth Circuits, address state action and color of law. Keep in mind that there are several state action tests, including nexus, symbiotic relationship, public/state function and entwinement, any one of which may lead to a finding of state action.
The First Circuit’s Decision in Jarvis v. Village Gun Shop
In Jarvis v. Village Gun Shop, Inc., 805 F.3d 1 (1st Cir. 2015), gun owners and a nonprofit corporation sued a gun shop as operator of a bonded warehouse alleging violations of due process in connection with the auctioning off of their guns—confiscated by police and transferred to the gun shop– after the owners failed to pay gun shop storage fees. The First Circuit held that the gun shop was not a state actor:
(1) There was no real joint action or interdependence between the activities of the police and the gun shop; it was not sufficient that a state statute authorized police to transfer possession of confiscated firearms to licensed storage facilities.
(2) The public function test was also not satisfied: a licensed storage facility such as the gun shop did not perform a traditionally exclusive government function.
(3) The state compulsion test was similarly not satisfied: nothing in the state statutory scheme required the gun shop, or any licensed private storage company, to provide its services to the police.
The Third Circuit’s Decision in P.R.B.A. Corp. v. HMS Host Toll Roads, Inc.
In P.R.B.A. Corp. v. HMS Host Toll Roads, Inc., 808 F.3d 221, 225 (3rd Cir. 2015), a “gentlemen’s club” operator sued the private company that ran service plazas on state highway, alleging First and Fourteenth Amendment violations for the removal of the plaintiff’s brochures from the common areas of the service plazas.
The Third Circuit found no state action under the entwinement test or any other test: there was no active and pervasive involvement by the state either in the decision to remove the brochures or in the day-to-day operations of the service plazas. The Third Circuit observed: “[T]he presence of government signs and images of state officials in the service plazas—without more—does not constitute entwinement.”
The Ninth Circuit’s Decision in Naffe v. Frey
In Naffe v. Frey, 789 F.3d 1030 (9th Cir. 2015), the plaintiff, a political activist, sued a county deputy district attorney for publishing allegedly derogatory statements about her on his personal Internet blog and on Twitter.
Affirming the district court’s dismissal of her § 1983 claim, the Ninth Circuit determined that the defendant did not act under color of law because he published for purely personal reasons and the communications were unrelated to his work as a county prosecutor. Further, both his blog and his Twitter page had disclaimers that the opinions expressed were the personal opinions of the defendant and did not represent the opinions of his employer.
In short, the defendant did not exercise government power: even though he used his experiences as a deputy district attorney to inform his blog posts and Tweets, he pursued “private goals via private actions.”
Plaintiffs in section 1983 cases sometimes try to sue private parties or entities for Fourteenth Amendment violations as a way of getting into federal court and, if they win, getting attorney’s fees under 42 U.S.C. section 1988. These private parties or entities may also have deeper pockets than some government officials or employees.
The First and Third Circuit cases are relatively straightforward state action cases: these courts marched through the various state actions tests, determined that none of them applied and, as a result, found that the plaintiffs did not state section 1983 claims since the Fourteenth Amendment was not implicated.
In marked contrast, the Ninth Circuit case deals with a different but related question: when does a government official lose his state actor status and act as a private person not subject to the Fourteenth Amendment and section 1983? I call this the “converse of the typical state action question” in chapter 2 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2016; West).
Thus, the Ninth Circuit determined that the deputy district district attorney acted as a private person, and not as a government official or employee, when he published the challenged statements on his personal blog and on Twitter. He did not exercise government power either in reality or apparently.
I invite you to follow me on Twitter @NahmodLaw.