Nahmod Law

Archive for the ‘Constitutional Law’ Category

The Free Speech Rights of Condo Owners and Boards: A Video

Some weeks ago I spoke to the Chicago Bar Association’s Real Estate Committee about the free speech rights of condominium associations and condominium owners. There was a spirited discussion with very good questions after I finished my 20-25 minute presentation.

Feel free to skip the first eight minutes of preliminary committee matters and to go right to my talk. I hope you find it of interest.

Here it is. https://www.youtube.com/watch?v=AnnKFGIx6Vk

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Written by snahmod

May 10, 2019 at 1:36 pm

Posted in First Amendment

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.

Written by snahmod

March 20, 2019 at 10:55 am

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

Written by snahmod

February 20, 2019 at 1:17 pm

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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Written by snahmod

January 18, 2019 at 11:35 am

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.

I invite you to follow me on Twitter @NahmodLaw.

Written by snahmod

January 7, 2019 at 12:43 pm

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:

https://nahmodlaw.com/2017/05/15/manuel-v-city-of-joliet-the-court-rules-section-1983-malicious-prosecution-claims-can-be-based-on-the-fourth-amendment-but-otherwise-punts/

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).

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

November 5, 2018 at 10:03 am

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 nine minutes. It is a good overview and summary and can also serve as a useful introduction, even for non-lawyers, to those who want to become knowledgeable quickly about these topics.

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