Archive for the ‘Constitutional Law’ Category
Is There a Fourth Amendment Seizure When a Person Flees?
The en banc Eighth Circuit was sharply divided about the existence of a Fourth Amendment seizure in a case where, among other things, a person fled after an officer in a police car stopped directly in front of him and his friend, one Michael Brown (yes, that Michael Brown, who was subsequently shot and killed by the police officer while also fleeing) and where the police officer yelled at them to “Get the f*ck on the sidewalk.” And because the Supreme subsequently denied certiorari, it did not decide the matter. Johnson v. City of Ferguson, Missouri, 864 F.3d 866, 873 (8th Cir. 2017), as corrected (July 31, 2017) and reh’g en banc granted, opinion vacated (Sept. 12, 2017) and on reh’g en banc, 926 F.3d 504 (8th Cir. 2019)(en banc), cert. denied, 2019 WL 6257423 (U.S. 2019)
In Johnson, the Eighth Circuit panel had initially found a seizure where “[the plaintiff] Johnson’s complaint alleged that Officer Wilson stopped his car at an angle, directly in front of Johnson and Brown, so as to block their path after yelling at them to ‘Get the f*ck on the sidewalk.’” For one thing, the plaintiff actually stopped when the defendant blocked his path. This was a submission to authority. For another, the stop was more than momentary even though the plaintiff fled after the defendant later shot the plaintiff’s companion.
Thereafter, however, the Eighth Circuit en banc disagreed with the panel and found that there was no seizure of the plaintiff under the circumstances. Among other considerations, the plaintiff conceded in the complaint that he and Brown were not ordered by the officer to stop. Also, the police vehicle did not prevent Johnson from crossing the sidewalk. Moreover, any physical contact by the officer was directed toward Brown in the first instance. “In a word, then, because Johnson himself was neither physically restrained nor prevented from proceeding to the sidewalk in compliance with [the officer’s] directive rather than fleeing as he did,” there was no seizure since Johnson did not submit to a show of authority.
Judge Melloy, joined by Chief Judge Smith and Judges Kelly and Erickson, dissented at length, arguing that there was indeed a Fourth Amendment seizure. 926 F.3d at 507. Judge Melloy explained in the following excerpt from his opinion (citations omitted):
“Here, I believe that Officer Wilson made a show of authority communicating that Johnson ‘was not at liberty to ignore the police presence and go about his business.’ As stated above, the only facts relevant at this procedural posture are those alleged in the complaint. And the Court must accept those facts as true and view them in the light most favorable to Johnson. To recap, Johnson’s complaint alleged the following facts relevant to this issue:
• As Johnson and Brown walked peacefully and ‘lawfully’ down the road, Officer Wilson, operating a marked police vehicle, approached Johnson and Brown, slowed his vehicle to a stop, and ordered them to ‘Get the f*ck on the sidewalk.’
• Officer Wilson continued to drive his vehicle several yards, then abruptly put his vehicle into reverse and parked his vehicle at an angle so as to block the paths of Johnson and Brown.
• Officer Wilson stopped his vehicle just inches from Brown and forcefully opened his door, striking Brown. Officer Wilson then reached through his window and grabbed Brown, who was closer to Officer Wilson than Johnson. Officer Wilson thereafter threatened to shoot his weapon. As Brown struggled to break free, Officer Wilson discharged his weapon twice, striking Brown in the arm. Surprised by Officer Wilson’s use of ‘excessive’ force and fearing for his life, Plaintiff Johnson ran away from Officer Wilson simultaneously with Brown.
By crudely ordering Johnson to move and then abruptly reversing his vehicle and stopping it inches away and directly in Johnson’s path, Officer Wilson communicated an intent to use a roadblock to stop Johnson’s movement. Despite Defendants’ (and amicus curiae’s) argument that the roadblock did not foreclose all of Johnson’s avenues of travel, a reasonable person would understand the roadblock’s purpose was to serve as a ‘physical obstacle’ conveying an order to stop—not an order to go around the vehicle and continue on one’s way. Officer Wilson’s actions thus would convey to the ‘reasonable person that he was not at liberty to ignore the police presence and go about his business.'”
Comment
I have nothing to add except to say that the dissenters have the better of the argument.
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Off-Duty Police Officers, “Private” Conduct and State Action
Section 1983 damages liability for constitutional violations depends on the threshold existence of a defendant’s state action within the meaning of the 14th Amendment and on the related statutory requirement of color of law. Fortunately, the general rule about the relationship between state action and color of law may be simply put: where there is state action under the 14th Amendment, there is color of law under section 1983. But this means that the (sometimes difficult) 14th Amendment state action question must be addressed in every section 1983 case.
Categories of State Action Cases
The relatively easy state action cases are those in which a state or local government official or employee has exercised government power, either pursuant to state law or in violation of state law, and deprived a person of his or her 14th Amendment rights. The harder and more troublesome, but more typical, state action cases are those in which a private person or entity is sued for damages under section 1983. The question in such cases is whether the challenged nominally private conduct can be attributed to the state or local government. The applicable tests in such cases are the nexus test, the symbiotic relationship test, the public function test and the so-called “entwinement” test.
(Search “state action” on this blog for related posts. In addition, I discuss these state action tests at length in ch. 2 of my Treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019)(West/Westlaw)).
The “Converse” of the Typical State Action Case
But there is another category of state action cases that raise what I call the “converse” of the typical state action question. Such cases address the issue of when a state or local government official, one who is ordinarily a state actor, loses that status because he or she has acted as a private person and is consequently not suable under section 1983.
Here are two cases of interest, one from the Seventh Circuit and the other from the Ninth Circuit, finding that the defendant police officers, sued for damages under section 1983 for alleged constitutional violations, were not state actors, and thus could not be liable under section 1983.
(Many other “converse” state action cases from the circuits are collected in ch. 2 of my Treatise).
The Barnes Case from the Seventh Circuit
Barnes v. City of Centralia, 2019 WL 6318087 (7th Cir. 2019), involved a police officer against whom threatening statements were posted on social media by a suspected gang member. The officer submitted a complaint against the suspected gang member who was then arrested. This was followed by a criminal prosecution and the dismissal of charges. The suspected gang member then sued the police officer and the city under section 1983 for violating her constitutional rights.
According to the Seventh Circuit, the officer’s conduct, which was limited to his submitting a complaint, was that of a private citizen, and not that of an investigating officer. Submitting the complaint was the extent of the officer’s participation. He did not arrest the plaintiff and had no role in that arrest; he did not even know what crimes the plaintiff would be charged with. The officer’s report therefore did not involve any exercise by him of state authority.
The Hyun Ju Park Case from the Ninth Circuit
Hyun Ju Park v. City and County of Honolulu, 2020 WL 1225271 (9th Cir. 2020), dealt with two off-duty police officers who watched as their intoxicated off-duty colleague decided to inspect his gun—which the police department authorized him to carry–at a bar to ensure that it was loaded. They also watched as their colleague attempted recklessly to load his already loaded gun, which then accidentally discharged, with a single bullet striking the plaintiff bartender and causing serious physical harm.
The Eighth Circuit found no state action on the part of these two defendants (the third intoxicated defendant had settled separately with the plaintiff) who were sued for violating substantive due process. They were not state actors for a number of reasons. Neither one exercised nor purported to exercise official responsibilities. Both were off-duty, dressed in plain clothes, were drinking as private citizens at a bar and never identified themselves as police officers. Even when they saw the third officer pull out his gun, they did not act or purport to act in the performance of their official duties.
(Judge Smith concurred on the state action issue but dissented on the separate question of whether the city, which was also sued, could be sued for its official policy or custom; the majority held that it could not).
Comments
1. Notice that in both cases, the two circuits soundly addressed the state action question not abstractly but rather in terms of the particular fact patterns they confronted. The state action question must be decided on a case-by-case basis. There are relatively few, if any, bright line rules.
2. The Barnes case is consistent with the many circuit court decisions holding that a private person who merely reports a possible crime to law enforcement authorities does not thereby become a state actor subject to potential section 1983 damages liability.
3. In Barnes, there is a possible alternative, and non-state action, basis for the decision. Even if the officer’s submission of the complaint were state action, it was not the proximate cause of any resulting 14th Amendment violations. Because he purportedly had no role in the arrest, did not know what crimes the plaintiff would be charged with and was not responsible for the prosecution, the conduct of others involved in those post-complaint decisions constituted a superseding cause breaking the chain of causation. (Search “proximate cause” on this blog for related posts. In addition, I discuss proximate cause at length in ch. 3 of my Treatise).
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The George Floyd Case and Section 1983: A Police Officer’s Constitutional Duty to Intervene
The Intervention Question
Suppose a police officer continues to use life-endangering force even after it is obvious that a misdemeanor arrestee (who has no weapon) is under control and not a danger to others, including police officers. As a result of this use of excessive force, the arrestee dies. This is a violation of clearly settled Fourth Amendment law in every circuit and exposes that officer to potential section 1983 damages liability. If these turn out to be the facts in the George Floyd case, as appears likely at the time of this writing, the result would be the same.
Suppose further that other police officers are present, witness this behavior, have a realistic opportunity to stop the first officer’s unconstitutional use of force but do not act to prevent it. Are they also potentially liable for section 1983 damages for the death of the arrestee because they failed to intervene when they could have, and thus failed to prevent what happened?
The Short Answer
The short answer is YES: they have breached their constitutional duty to stop the first police officer from continuing to use life-endangering force against the arrestee, thereby rendering them potentially liable for section 1983 damages. Again, if these turn out to be the facts in the George Floyd case, the result would be the same: these police officers would potentially be liable for damages under section 1983 for their failure to intervene and to prevent what happened. Moreover, they would not be protected by qualified immunity because they would have violated clearly settled law.
The Longer Answer: The Clearly-Established Legal Background
This is not a new issue. In the seminal decision in Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972), the Seventh Circuit held that police officers have a due process duty to protect persons from the unwarranted brutality of their fellow officers that occurs in their presence. According to the court, non-involvement will not do where intervention is possible.
Significantly, this duty to intervene even requires subordinates to protect persons from the unconstitutional conduct of superiors or supervisors. In this regard, Byrd was read broadly by the Eighth Circuit in Putman v. Gerloff, 639 F.2d 415 (8th Cir. 1981), to impose liability on a subordinate police officer for failure to intervene against his superior where the subordinate was present and knew what his superior was doing.
Along the same lines, the Eleventh Circuit declared: “If a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable under Section 1983.” Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986).
In a useful statement of the general rule, the Second Circuit said in Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (citations omitted):
It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence. An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1) that excessive force is being used; (2) that a citizen has been unjustifiably arrested; or (3) that any constitutional violation has been committed by a law enforcement official. In order for liability to attach, there must have been a realistic opportunity to intervene to prevent the harm from occurring. Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.
What is a Realistic Opportunity to Intervene?
Consider Grider v. Bowling, 785 F.3d 1248 (8th Cir. 2015), where the plaintiff sued a police officer—the relevant defendant here—who had arrested and handcuffed him, followed by another police officer who arrived in his vehicle, ran toward the plaintiff and the arresting police officer and kicked the plaintiff in the head, causing serious harm. The arresting officer and the kicking officer did not communicate before the attack and the arresting officer did not stop the attack. Reversing the district court in this regard, the Eighth Circuit found that the arresting officer was not liable for the kicking officer’s use of excessive force on a failure to protect theory: there was no evidence that the defendant was aware of the kick before it occurred or that he had the opportunity to prevent it. The kicking officer said nothing before he attacked the plaintiff and there was only one kick.
Comment
1. While the Seventh Circuit’s seminal Byrd decision put the duty to intervene in due process terms, the Eighth Circuit, in Hicks v. Norwood, 640 F.3d 839 (8th Cir. 2011), put an officer’s duty to intervene to protect an arrestee from the use of excessive force by another officer in Fourth Amendment terms. However, in the case before it, the court found that there was no Fourth Amendment liability for failing to intervene because the other officer did not use excessive force.
2. There are relatively few affirmative federal constitutional duties imposed on state and local governments and their officials and employees. See, for example, DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), which declared that “nothing in the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” The George Floyd case and cases like it are distinguishable because they involve police officers, state actors, who fail to prevent “invasions” by other police officers who are also state actors.
2. I expect that any section 1983 damages claims against the police officers in the George Floyd case will settle. There may even be a viable section 1983 damages claim against the city for failure to train, a topic beyond the scope of this post.
3. I discuss the duty to intervene in much more detail in Chapter 3 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2020; West/Westlaw).
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After Janus, Are Public Employee Unions Subject to Section 1983 Damages Liability?
The Background: The Supreme Court’s Janus Decision
Recall the Supreme Court’s blockbuster decision in Janus v. AFSCME, 138 S. Ct. 2448 (2018)(Janus I), overruling Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), and holding that it now violates the First Amendment rights of union nonmembers for state and local governments, and for public employee unions, to compulsorily withhold fair-share or agency fees from those nonmembers.
Question: after Janus, do union nonmembers have viable section 1983 damages claims against the public employee unions that previously received those fair-share or agency fees, at least for the period of time permitted under the forum state’s statute of limitations?
The Seventh Circuit’s Section 1983 Janus Decision
In Janus v. AFSCME, 2019 WL 5704367 (7th Cir. 2019)(Janus II), petition for certiorari filed, a non-union state employee sued a public employee union under §1983 and the First Amendment for damages to recover the fair-share fees he had previously paid to the union before the Supreme Court’s decision was handed down.
The Seventh Circuit first ruled that the union acted under color of law, and was thus subject to section 1983, because its receipt of fair share fees from the state pursuant to the collective bargaining agreement was attributable to the state. Here, the union was a joint participant in the agency fee arrangement because the state deducted fair share fees from employees’ paychecks and transferred that money to the union which spent it pursuant to the collective bargaining agreement on labor-management issues. The court then went on to determine that Janus I was retroactive.
Finally, the Seventh Circuit found that the union was protected by a good faith defense. After analyzing Wyatt v. Cole, 504 U.S. 158 (1992), a case involving the private use of state attachment procedures, the court reasoned that the good faith defense articulated there applied here as well. It commented that it was “join[ing] its sister circuits in recognizing that, under appropriate circumstances, a private party that acts under color of law for purposes of section 1983 may defend on the ground that it proceeded in good faith.” It declared, relying on Wyatt, that the good faith defense applied to the public union because it had reasonably relied on then-established First Amendment law. The Seventh Circuit relied by analogy on the tort of abuse of process with its good faith “defense,” as well as on the “appropriateness of allowing a good-faith defense on its own terms.” Thus, the plaintiff was not entitled to money damages. Judge Manion concurred, 2019 WL 5704367, *12, pointing out that public unions had received a “windfall.”
Thereafter, the Sixth and Ninth Circuits joined the Seventh Circuit in so holding. Lee v. Ohio Education Assn., 2020 881265 (6th Cir. 2020) and Danielson v. Inslee, 2019 WL 7182203 (9th Cir.2019).
Comment
The decision on which Janus II relied, Wyatt v. Cole, soundly held, in my opinion, that qualified immunity does not protect a private defendant who uses unconstitutional state attachment procedures that violate procedural due process. Under a functional approach, this conduct is not governmental and thus does not merit qualified immunity protection.
On the other hand, a kind of good faith defense, with both subjective (honest belief) and objective (reasonable belief) components, would be appropriate, according to various justices in Wyatt. As a matter of policy, we want private parties to rely on the law rather than act illegally. Also, it would be unfair to subject a private party who guesses wrong about the unconstitutionality of a state attachment statute to section 1983 damages liability.
This good faith defense thus differs from qualified immunity in two ways: an immediate interlocutory appeal from a district court’s denial of the good faith defense on summary judgment or on motion to dismiss is not available, and the private defendant must honestly (and reasonably) believe that he or she acted constitutionally.
Significantly, after Wyatt, the Court handed down two private party immunity decisions that are rather clearly in tension with one another. One, Richardson v. McKnight, 117 S. Ct. 2100 (1997), held in an opinion by Justice Breyer that prison guards who are employed by a private prison management firm are not protected by qualified immunity. He improperly, in my view, focused on history and marketplace incentives rather than on the government function that such private prison guards perform. They should have been protected by qualified immunity.
The other, Filarsky v. Delia, 566 U.S. 377 (2012), unanimously and soundly held that a private attorney retained to work with government employees in conducting an internal affairs investigation was protected by qualified immunity. Note that the Court strained to distinguish Richardson as a “self consciously” narrow decision emphasizing the particular circumstances there.
In this light, the Seventh Circuit’s decision in Janus II appears to be correct. The challenged conduct here is not governmental in nature but still, under Wyatt, it should be protected at least by the good faith defense. Before Janus I was handed down, the law of the land was Abood and it was on this Supreme Court decision that the public employee union relied. This belief was both honest and reasonable at the time.
All of this is not to say, of course, that I support the Court’s current qualified immunity jurisprudence. I do not, as evidenced by a search of this blog for “qualified immunity” and by the analysis of qualified immunity in my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2019)(West/Westlaw).
In any event, since a petition for certiorari in pending in Janus II, we may shortly see whether the Supreme Court weighs in on these good faith defense issues.
I invite you to follow me on Twitter @NahmodLaw.
The Second Amendment and Section 1983 (Podcast): A Section 1983 Conference Encore
As many of you know, Covid-19 prevented Chicago-Kent’s 37th Annual Conference on Section 1983 from taking place, as originally scheduled, on April 23-24, 2020.
Still, in order to celebrate the Conference, several weeks ago I provided an encore podcast presentation on Damages and Procedural Defenses (search for “damages and procedural defenses”).
In order to further celebrate the Conference, I am providing another encore podcast presentation, this one on The Second Amendment and Section 1983, that took place in November 2014.
This presentation covers the basics and is still good Second Amendment law, particularly since the Supreme Court just dismissed as moot a Second Amendment challenge in New York State Rifle & Pistol Assn, Inc. v. City of New York, 139 S. Ct. 939 (2019).
You can readily find the podcast by searching on this blog for “second amendment and section 1983.”
Thanks.
I invite you to follow me on Twitter: @NahmodLaw.
Know Your Constitution (10): The Second Amendment
This is the tenth in a series of posts about the United States Constitution written in everyday language with a minimum of legal jargon. These posts are not intended to provide legal advice and should not be used for that purpose.
(Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution, addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural and substantive due process, as well as state action and, most recently, the free speech rights of public employees).
Overview
The Second Amendment reads as follows: “A well regulated Militia, being necessary to the security of a free state, the right of the People to keep and bear arms, shall not be abridged.”
While most legal scholars previously thought, consistent with then-existing precedent, that the Second Amendment dealt solely with the military, the Supreme Court nevertheless held in 2008 in the blockbuster Heller case that the Second Amendment is not limited to the military context. Rather, it protects an individual’s right to possess a handgun in the home for self-defense. District of Columbia v. Heller, 554 U.S. 570 (2008)(5-4 decision, with the lengthy majority opinion written by Justice Scalia).
Significantly, Heller (and Justice Scalia) expressly did not call into question: (1) prohibitions against the possession of firearms by felons and the mentally deficient; (2) prohibitions against the possession of “unusual” firearms such as machine guns; and (3) prohibitions against carrying firearms in schools and government buildings. In addition, Heller made clear that government regulation of commercial sales and purchases of firearms is not necessarily unconstitutional, and that the same is true for licensing requirements for individuals.
What Heller did not address is whether and to what extent Second Amendment protection extends beyond the home and covers open and concealed carry. Namely, is the self-defense rationale of Heller limited to the home? These questions continue to engage the lower federal courts because the Supreme Court has not addressed them as of this writing. The only post-Heller Supreme Court decision thus far is McDonald, where the Court not surprisingly ruled that the Second Amendment applies to state and local governments as well as to the federal government and the District of Columbia. McDonald v. City of Chicago, 561 U.S. 742 (2010). But it is only a matter of time, now that the Court has a full complement of justices, before the Court considers these questions.
Some Basic Principles Everyone Should Know (Not Just About the Second Amendment)
1. Constitutional rights run against government: private persons cannot violate any of your constitutional rights, including the Second Amendment. (The only possible exception is your Thirteenth Amendment right not to be subject to involuntary servitude). But if a police officer were to arrest you in alleged violation of your Second Amendment rights, or if a government were to deny you a firearm license, that’s different.
2. Constitutional rights are not absolute, whether it’s the Second Amendment, the First Amendment or any of the other individual constitutional rights. All are governed by the appropriate balancing test articulated by the Supreme Court for different constitutional rights. It is not yet clear what the test is for alleged Second Amendment violations.
3. The Second Amendment means whatever the Supreme Court says it means. The Constitution is the Supreme Law of the Land and what is provisions mean is ultimately for the Supreme Court to determine through judicial review (unless there is a constitutional amendment).
4. All constitutional rights have costs. This is crucial to keep in mind. The Second Amendment is a good example since firearms can cause harm. The First Amendment is another good example since protected speech can cause harm as well.
5. One last point: constitutionality and wisdom are not the same. Some gun control legislation, for example, might be wise but still unconstitutional. Conversely, some gun control legislation might be unwise but still constitutional. The Second Amendment sets a constitutional floor or minimum. But so long as legislative regulations of firearms comply with this floor, they are subject only to the political process.
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Takings Claims Against States After Knick: Some Unanswered Questions
The Knick takings decision
The Supreme Court, in Knick v. Township of Scott, 139 S. Ct. 2162 (2019), a game-changing 5-4 takings decision, overruled Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985). In Knick, the district court had dismissed a property owner’s section 1983 takings claim for damages against a local government because she had not pursued an inverse condemnation action in state court against the local government as required by Williamson County. The Court, reversing in an opinion by Chief Justice Roberts, declared:
We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claims when the government takes his property without paying for it. … [This means] that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and may therefore bring his claim in federal court under [section] 1983 at that time.
(Knick, its relation to Williamson County and its implications for section 1983 damages actions claiming takings against local governments are addressed at length in a previous post here: https://nahmodlaw.com/2019/07/25/the-knick-case-takings-and-section-1983-a-somewhat-different-view/).
What are the implications for section 1983 damages actions claiming takings against states?
Even after Knick, a section 1983 takings plaintiff attempting to sue a state for damages in federal court has to confront two obstacles. The first is the Supreme Court’s decision in Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), that a state, unlike a local government, is not a suable “person” within the meaning of section 1983. And second, even apart from Will, the Eleventh Amendment would serve as a bar to such a federal court lawsuit since Will also held that section 1983 did not abrogate Eleventh Amendment immunity.
A section 1983 takings plaintiff who sues a state for damages in state court in order to avoid the Eleventh Amendment bar would fare no better because, as mentioned, a state is not a suable “person” for section 1983 purposes as a matter of statutory interpretation. A state thus cannot be sued for damages under section 1983 anywhere.
The result is that the section 1983 takings plaintiff suing a state in federal court has to forego his or her damages claim and instead seek declaratory and injunctive relief under section 1983 against the relevant state officials alleging an unconstitutional taking. If successful, the plaintiff would be entitled to attorney’s fees in addition to prospective relief.
In addition, the section 1983 plaintiff seeking damages for an unconstitutional taking could sue state officials in their individual capacities for damages. In many such cases, though, these state officials would likely defend on the ground of absolute quasi-judicial immunity and, as a fallback, on the ground of qualified immunity, arguing that they did not violate clearly settled takings law.
Here is where it gets interesting.
Could a takings plaintiff seeking damages against a state in federal court not use section 1983 but instead rely on the Fourteenth Amendment (which incorporates the Fifth) as the basis for his or her claim? Notice that the section 1983 “person” issue drops out. You may say that there is still a potential Eleventh Amendment problem. But could the Fourteenth Amendment takings plaintiff plausibly make two related arguments. First, that the Fourteenth (and Fifth) Amendments are self-executing, per Knick, and give rise on their own to potential damages liability where there has been a taking without just compensation? And second, that the Fourteenth (and Fifth) Amendments, by virtue of their self-executing nature regarding just compensation (this is where Knick comes in again), abrogate Eleventh Amendment immunity? The Fourteenth Amendment, at least insofar as takings are concerned, could be read as modifying the Eleventh Amendment in this respect.
A related question, whose answer might be relevant to the above questions about states, is whether any of this reasoning applies to Fifth Amendment damages taking claims against the federal government. Is the Fifth Amendment self-executing in this respect and does it abrogate federal sovereign immunity? Or has the federal government separately waived its sovereign immunity under the Tucker Act, 28 U.S.C. section 1491(a)(1), thus avoiding the need to answer the abrogation question?
There you have it. Please feel free to email me at snahmod@kentlaw.edu with any thoughts you may have.
I invite you to follow me on Twitter: @NahmodLaw.
Know Your Constitution (9): What Are the Free Speech Rights of Public Employees?
This is the ninth in a series of posts about the United States Constitution written in everyday language with a minimum of legal jargon. These posts are not intended to provide legal advice and should not be used for that purpose.
(Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution, addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural and substantive due process, as well as state action).
What are the free speech rights of public employees with regard to public employer discipline or punishment?
Notice that I refer to public employees: the First Amendment does not apply to private employees with regard to private employer discipline or punishment.
Notice also that this discussion is about public employer discipline or punishment for speech, and does not concern the free speech rights of public employees as against the government generally. So we’re not talking here about criminal punishment for the public employee’s speech.
With these important qualifications, the short answer to the question is that the First Amendment protects the free speech of public employees with regard to public employer discipline or punishment only under the following circumstances (I call it a three-step dance):
(1) where the public employee speaks as a citizen, and not pursuant to her employment duties and obligations (Garcetti v. Ceballos, 547 U.S. 410 (2006)) and
(2) where the speech of the public employee is on a matter of public, not private, concern (Pickering v. Bd. of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 1983)) and
(3) where the free speech interests of the public employee and society outweigh the public employer’s interests as an employer.
Let me explain these three requirements in a non-technical manner.
(1) If a public employee’s job obligations, for example, require her to report criminal or other misconduct by higher-up officials in her department, and the public employee does so and becomes a whistleblower, the public employee is not necessarily protected by the First Amendment from public employer discipline. This result may seem shocking, and it is to many, because it discourages whistleblowing. But this is current First Amendment law under Garcetti. However, keep in mind that state or local law may provide a separate remedy for such whistleblowers.
(2) But even where the public employee’s speech is not part of that employee’s job obligations, she is not yet over the First Amendment hurdle: the speech must also be on a matter of public, not private concern. For example, if the public employee’s speech primarily concerns an employment related grievance specific to her, such as salary or working conditions, then this would be speech on an issue of private concern, and the First Amendment would not be applicable to the public employer’s discipline for this speech.
(3) Finally, if the public employee has made it this far, then her First Amendment claim becomes subject to a balancing test, under which the court weighs the First Amendment interests of the public employee and society against the interests of the public employer in, say, discipline, morale, work relationships and the like. Most public employees in this situation typically prevail on the First Amendment merits. Still, it takes a lot for public employees to get to the final step of this three-step dance.
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The Knick Case, Takings and Section 1983: A Somewhat Different View
Section 1983 Takings Claims and Williamson County (1985)
In 1985, the Supreme Court held in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), that a section 1983 takings claim for damages cannot be brought in federal court, and is not ripe, unless the challenged local government conduct is final and the local government has denied compensation. This result was thought to be required by the language of the Fifth Amendment which states that “private property [shall not] be taken for public use, without just compensation.” In effect, Williamson County ruled that the takings claim was not complete until just compensation was denied. This result was also thought to promote the values of federalism and comity.
Accordingly, such a takings plaintiff would first have to go to state court and seek just compensation there–a so-called inverse condemnation action. Only after such a claim failed in state court could the plaintiff proceed in federal court with a “ripe” section 1983 takings claim.
The “Preclusion Trap”
A major problem with Williamson County, which took some years to emerge at the Supreme Court but soon became obvious to takings litigators, was preclusion. Pursuant to 28 U.S.C. sec. 1738, the preclusive effect of a state court decision on a subsequent federal court action is determined by the law of the forum state. And in San Remo Hotel v. City and County of San Francisco, 545 U.S. 323 (2005), the Court indeed held that the resolution of a claim for just compensation by a state court can have preclusive effect on a subsequent federal court action alleging a takings claim. Consequently, where the property owner lost in state court, issue preclusion under state law would typically sound the death knell for the federal court takings claim, or at the very least make it extremely difficult for the federal plaintiff to prevail. Indeed, several justices (Rehnquist, O’Connor, Kennedy and Thomas) questioned Williamson County because of this “preclusion trap.”
The Knick Decision (2019): Williamson County Overruled
On June 21, 2019, the Supreme Court, in Knick v. Township of Scott, No. 17-647, overruled Williamson County. Dealing with a case in which the district court had dismissed a property owner’s section 1983 takings claim against a local government because she had not pursued an inverse condemnation action in state court, the Court, in an opinion by Chief Justice Roberts, declared:
We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claims when the government takes his property without paying for it. … [This means] that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and may therefore bring his claim in federal court under [section] 1983 at that time.
Justice Kagan, joined by Justices Ginsburg, Breyer and Sotomayor, dissented. They accused the majority of not only misreading the Court’s takings precedents but also of improperly basing its decision simply on its view that Williamson County was wrong.
Comments
First and foremost, Knick is a game-changer and will likely bring about a revolution in takings litigation. This also includes claims of temporary takings, as in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987). No longer will property owners with takings claims against local governments have to exhaust their state judicial remedies as a condition precedent to filing in federal court. They will thus be able to avoid the “preclusion trap” and, moreover, avoid the duplication of litigation and judicial costs.
Second, by eliminating the requirement that section 1983 takings plaintiffs may go directly to federal court, the Court soundly aligned section 1983 takings claims with the ruling in the seminal decision in Monroe v. Pape, 365 U.S. 167 (1965), that, as a matter of statutory interpretation, section 1983 plaintiffs need not exhaust state judicial remedies before filing section 1983 claims in federal court. Knick reached the same conclusion as a matter of constitutional interpretation.
The Court also aligned section 1983 takings claims with what it asserted was the same rule for Fifth Amendment takings claims against the federal government, namely, that “the right to full compensation arises at the time of the taking, regardless of post-taking remedies that may be available to the property owner.”
Perhaps the Court in now-overruled Williamson County was influenced by the then-recent decision in Parratt v. Taylor, 451 U.S. 527 (1981), holding that the existence of an adequate state post-deprivation remedy could defeat certain section 1983 procedural due process claims. Parratt for a time was viewed as a potentially effective vehicle for promoting federalism and comity by removing many procedural due process cases from federal court and sending them to state court where they belonged. It took a while for the Court to narrow the scope of Parratt and to make clear that the Parratt post-deprivation remedy approach was limited to certain procedural due process cases–where the challenged conduct was random and unauthorized–and that it did not apply to other constitutional provisions. See generally ch 3, Nahmod, CIVIL RIGHT AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2018).
Third, as the Court correctly noted, there was no good reason to treat takings claims as constitutional outliers. Other constitutional violations–the Court used the Fourth Amendment as an example–are complete once the challenged conduct is over. The ability to recover damages is not part of the constitutional violation itself : the constitutional merits are separate from the remedy. The rule should always have be the same for takings claims. Knick therefore does not privilege property owners with section 1983 takings claims over other section 1983 plaintiffs. It treats them the same as other section 1983 plaintiffs with different constitutional claims for damages.
Fourth, in my view the underlying issue in dispute among the justices in Knick was stare decisis. The four dissenting justices were concerned with what they view as the current majority’s predisposition to overrule precedents such as Williamson County just because it doesn’t like those precedents. Knick and other recent decisions that have overruled precedents, and that have been fought over by the justices, may really be a rehearsal for challenges to, and the possible overruling of, Roe v. Wade.
Fifth, coming so soon after the Court’s accrual decision in McDonough v. Smith (No. 18-485), Knick itself may be viewed as a kind of accrual decision. From this perspective, Knick holds that the section 1983 takings claim is complete, and thus accrues, when the taking occurs, and not later when the state or local government denies just compensation.
(See my post on McDonough here: https://nahmodlaw.com/2019/06/21/mcdonough-v-smith-the-supreme-court-answers-an-important-section-1983-fabrication-of-evidence-accrual-question/)
Finally, while I think the Court got Knick right, the Court’s approach–simplifying section 1983 takings claims–is inconsistent with its May 28, 2019, section 1983 First Amendment retaliatory arrest decision in Nieves v. Bartlett, No. 17-1174. In Nieves, the Court unsoundly imposed unduly burdensome procedural and substantive requirements on section 1983 plaintiffs who sue law enforcement officers for damages for allegedly arresting them in violation of the First Amendment. Among other things, the Court ruled that probable cause is a defense to such claims. Why such solicitude for section 1983 takings plaintiffs in Knick and so little concern for section 1983 First Amendment plaintiffs in Nieves? Probable cause should be as irrelevant to the First Amendment as it is to takings.
(See my post criticizing Nieves here: https://nahmodlaw.com/2019/06/04/nieves-v-bartlett-and-retaliatory-arrests-protecting-law-enforcement-at-the-expense-of-the-first-amendment-and-section-1983/)
I invite you to follow me on Twitter: @NahmodLaw.
Freedom of Speech in the University: A Podcast (for Non-Lawyers Especially)
You might want to check this out.
Some weeks ago I participated in a 55 minute podcast on free speech in the university, together with a philosophy colleague at Illinois Tech, Michael Davis. The discussion, organized by Illinois Tech, was animated, far reaching (beyond the university) and personally enjoyable to me.
IMHO, it would be a good companion to listen to while you’re running, biking or exercising (or doing anything else, for that matter). In fact, I plan to listen to it when I go out running this very afternoon.
The full title is: Is There A Dividing Line Within Freedom of Speech on College Campuses? It is part of Illinois Tech’s Curiosity Unplugged Series.
Here’s the link. https://news.iit.edu/podcasts/curiosity-unplugged/episodes/14?_ga=2.45139751.2087334807.1560173892-1260379261.1460564134
I invite you to follow me on Twitter @NahmodLaw.
(Postscript at 5 pm: true to my word, I just returned from a run in the (rare) Chicago sunshine and listened to the podcast. The run went by very quickly.)
Nahmod Law 