Archive for the ‘Constitutional Law’ Category
New Supreme Court Decision: Reichle v. Howards and First Amendment Retaliatory Arrests
Reichle v. Howards, 132 S. Ct. — (2012), decided on June 4, 2012
I blogged on March 29, 2012, about the Supreme Court‘s grant of certiorari in Reichle v. Howards, a case arising out of the Tenth Circuit. As noted there, the Supreme Court had granted certiorari to deal with the important question of whether there should be a probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech.
(See that post for relevant background, including the important decision in Hartman v. Moore, 547 U.S. 250 (2006).)
On June 4, 2012, the Court, in an opinion by Justice Thomas, avoided the merits and ruled instead that the defendants were protected by qualified immunity.
The Tenth Circuit Decision
The defendants were two Secret Service Agents who were on protective detail for Vice President Cheney when they arrested the plaintiff after his encounter with the Vice President: probable cause was provided by the fact that the plaintiff lied to the defendants about touching the Vice President, a violation of federal law. The plaintiff alleged, though, that he was actually arrested in violation of the First Amendment because he was overheard saying he wanted to ask the Vice President personally “how many kids he had killed.”
The Tenth Circuit held on the merits that there was no such probable cause defense to the First Amendment retaliatory arrest claim, although it noted the split in the circuits on this issue. The Tenth Circuit also found that the defendants were not entitled to qualified immunity on this claim: they violated clearly settled First Amendment circuit law when they arrested the plaintiff because of his speech, even though they had independent Fourth Amendment probable cause grounds to arrest him. Howards v. McCaughlin, 634 F.3d 1131 (10th Cir. 2011), with Judge Kelly concurring in part and dissenting in part.
The Supreme Court Decision
The Supreme Court reversed in an opinion by Justice Thomas. The Court avoided deciding whether probable cause was a defense to a First Amendment retaliatory arrest claim. Instead, it ruled that the defendants were protected by qualified immunity because they did not violate clearly settled First Amendment law: “This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly settled at the time of Howards’ arrest.” Read the rest of this entry »
DeShaney in the Circuits (II): Affirmative Duties and Danger-Creation
I blogged on August 22, 2011, about the Supreme Court’s controversial no-affirmative due process duty decision in DeShaney v. County of Winnebago, 489 U.S. 189 (1989). I also set out several then-current circuit court decisions dealing with DeShaney issues. Please see that post for background.
I came across the following more recent decisions from the First, Fifth, Seventh and Eighth Circuits in the course of preparing the 2012 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012)(forthcoming in September).
Coscia v. Town of Pembroke, 659 F.3d 37 (1st Cir. 2011)
The decedent’s mother, representing the estate, sued police officer and others, alleging that they failed to provide medical services to her 21 year-old son who threatened suicide while in police custody following a one-car accident, and who in fact committed suicide about fourteen hours after his release by stepping in front of a train. During the time he was in custody he attempted to engage in self-destructive behavior and was deemed a high suicide risk. Nevertheless, he was not examined by a doctor but was released on his own recognizance. Reversing the district court and dismissing the complaint, the First Circuit stated: “We … hold that in the absence of a risk of harm created or intensified by state action there is no due process liability for harm suffered by a prior detainee after release from custody in circumstances that do not effectively extend any state impediment to exercising self-help or to receiving whatever aid by others may normally be available.”
Comment: Note the proximate cause/remoteness problem for the plaintiff here in addition to the danger creation issue. Read the rest of this entry »
Certiorari Granted in Reichle v. Howards: A First Amendment Retaliatory Arrest Case
The First Amendment Retaliatory Arrest Question
Suppose a police officer arrests a person with objective probable cause to arrest but with the subjective motivation to arrest him because of something he said, in violation of the First Amendment? Does the Fourth Amendment probable cause determination have any bearing on the section 1983 First Amendment claim for damages?
One would think that the answer should be “no” because these are separate constitutional violations. After all, if the police officer had instead subjectively arrested the plaintiff because of his race, wouldn’t there still be an equal protection violation and therefore a section 1983 equal protection damages claim?
The Supreme Court’s decision in Hartman v. Moore, a Retaliatory Prosecution Case
However, the answer to the First Amendment retaliatory arrest question may not be so simple after Hartman v. Moore, 547 U.S. 250 (2006), discussed in my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION:THE LAW OF SECTION 1983 (4th ed. 2011), at section 3:13. In this section 1983 case, the Court held that a plaintiff, who sued law enforcement officers contending that he was prosecuted because of his protected speech, had to allege and prove the absence of probable cause as part of his claim.
The Court reached this conclusion because, unlike in ordinary retaliation cases that involved a relatively clear causal connection between the impermissible motivation and resulting injury to the plaintiff, the causal link was far more attenuated in retaliatory prosecution cases: the plaintiff had to show that the impermissible motivation of the law enforcement officer caused the prosecutor to prosecute, a decision that was entitled to a “presumption of regularity.” Thus, according to the Court, it made sense in retaliatory prosecution cases to impose on plaintiffs this additional burden of pleading and proving the absence of probable cause. (Recall that prosecutors are absolutely immune from damages liability for their decisions to prosecute).
Certiorari Granted in Reichle v. Howards
Does Hartman‘s rationale apply equally to retaliatory arrest cases? Or is Hartman very different because of difficulty that retaliatory prosecution plaintiffs typically have in showing the causal link between the law enforcement officer’s impermissible motivation and the prosecutor’s decision to prosecute?
This is the issue now before the Court in Reichle v. Howards, No. 11-262, a case arising out of the Tenth Circuit. On Dec.5, 2011, the Supreme Court granted certiorari in Reichle to deal with the important question of whether there should be a Fourth Amendment probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech. Read the rest of this entry »
The Constitutionality of the Patient Protection and Affordable Care Act: A Video Presentation
On January 18, 2012, I blogged about the Patient Protection and Affordable Care Act (PDF) whose constitutionality is currently before the Supreme Court.
In that post, I focused on the Commerce Clause challenge to the individual mandate.
On February 10, 2012, I participated in an hour-long discussion of the overall constitutionality of the Act at a program sponsored by the Shriver Center and held in Chicago.
This discussion, which was videotaped, covered the Commerce Clause, the Taxing Power, the expansion of Medicaid and even the federal Tax Injunction Act.
Clarification: the penalty for non-compliance with the individual mandate must be included in an individual’s tax return and may be used by the IRS as an offset to a tax refund.
Below is the YouTube link to this discussion. I hope you find it of interest.
Messerschmidt v. Millender: A New Qualified Immunity Search Warrant Decision
Certiorari Granted in Messerschmidt v. Millender (updated: see below for decision handed down 2-22-12)
This Term the Supreme Court will decide Messerschmidt v. Millender, 131 S. Ct. — (2011)(No. 10-704), granting certiorari in Millender v. County of Los Angeles, 620 F.3d 1016 (9th Cir. 2009)(en banc), which deals with the following Questions Presented:
(1) Whether police officers are entitled to qualified immunity when they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her? (2) Whether United States v. Leon, 468 U.S. 897 (1984) and Malley v. Briggs, 475 U.S. 335 (1986), should be reconsidered?
In Messerschmidt, the Ninth Circuit en banc held, with three judges dissenting, that the warrant to search the residence of the plaintiff, the suspect’s foster mother, was overbroad and violated the Fourth Amendment because (1) it covered all firearms, not just the sawed-off shotgun as to which there was probable cause to search the residence, and (2) it covered all articles related to gang membership even though the incidents in question were not gang-related.
Moreover, the defendant police officers were not protected by qualified immunity: the warrant was so facially overbroad and thus invalid that no officer could reasonably rely on it even though the officers had submitted the affidavit to their supervisors and to a deputy district attorney for review, and even though a magistrate had approved the search warrant.
The Issues
One of the issues in the case is whether the search warrant was indeed facially invalid under the Fourth Amendment, as the Ninth Circuit ruled.
A second issue–and this issue is what probably attracted the Court’s attention–is whether, even if the search warrant was facially invalid under the Fourth Amendment, the police officers were protected by qualified immunity on the ground that a reasonable police officer could have believed that the search warrant was valid.
The Court likely will consider the relevance to qualified immunity of the officers’ submission of the affidavit to their supervisors and to the deputy district attorney as well as the magistrate’s approval of the search warrant. And while “good faith,” apparently as a subjective inquiry, was addressed briefly in the oral argument (PDF), held on December 5, 2011, it is highly unlikely that anything other than the objective qualified immunity test will govern in Messerschmidt.
THIS JUST IN: The Supreme Court, in a 6-3 decision (PDF) handed down on February 22, 2012, only one day after the above was posted, not unexpectedly ruled that the defendants were protected by qualified immunity.
Chief Justice Roberts wrote the opinion in which the Court did not address the validity of the search warrant but nevertheless held that the defendants were not liable for damages under section 1983 because of qualified immunity. The police officers acted objectively reasonably and not in a plainly incompetent manner in light of both the magistrate’s approval of the search warrant and the deputy district attorney’s review of the validity of that warrant.
Justice Sotomayor, joined by Justice Ginsburg, dissented, while Justice Kagan, concurring in part and dissenting in part, agreed with the Court on qualified immunity for the search warrant for firearms but disagreed on qualified immunity for the search warrant for gang-related articles. Justice Breyer briefly concurred.
New Supreme Court Religion Decision: Hosanna-Tabor Evangelical Lutheran Church and School
A Rare Unanimous Religion Clauses Decision by the Supreme Court
It is rare for the Justices of the Supreme Court to hand down a unanimous decision in a Religion Clauses case. But it happened on January 11, 2012, in Hosanna-Tabor Evangelical Church and School v. EEOC, 132 S. Ct. — (2012). This case involved the so-called “ministerial exception” to otherwise generally applicable federal law.
Perich, formerly a “called teacher” for the Hosanna-Tabor Evangelical Church and School (a member of the Lutheran Church-Missouri Synod), had filed a claim with the EEOC contending that she was terminated in violation of the Americans with Disabilities Act. Thereafter, the EEOC filed suit against Hosanna-Tabor (Perich intervened in this EEOC lawsuit) alleging that Perich had been fired in retaliation for previously threatening to file an ADA lawsuit. According to the Church, this threat contravened Church law.
Hosanna-Tabor countered that it was protected by a ministerial exception under the First Amendment’s Religion Clauses because the EEOC’s and Perich’s claims involved the employment relationship between a church and a minister.
The Decision
Reversing the Sixth Circuit, which had determined that Perich did not qualify as a minister, the Supreme Court in an unanimous decision written by Chief Justice Roberts, found that she did indeed qualify as a minister and that Hosanna-Tabor was protected by the ministerial exception from suit for retaliation. Read the rest of this entry »
The Patient Protection and Affordable Care Act: The Commerce Clause and Constitutional Trust
I blogged over two years ago on the Commerce Clause–see post of September 26, 2009–where I provided a doctrinal and historical perspective that readers might want to consult for background.
The Florida Case and the Patient Protection and Affordable Care Act
In this post I want to say some things about the high-profile case currently pending before the Supreme Court from the Eleventh Circuit, Florida v. U.S. Dept of Health and Human Services, 648 F.3d 1235 (11th Cir. 2011), cert granted, 132 S. Ct. — (2011). As I discuss below, this case in essentially about constitutional trust regarding the limits of Congressional power under the Commerce Clause. And it is, in my view, a rather easy Commerce Clause case!
In this very lengthy decision, a divided panel of the Eleventh Circuit held unconstitutional the individual mandate to purchase health care insurance set out in the politically controversial Patient Protection and Affordable Care Act (PDF). According to the panel, this provision, which requires the purchase of health care insurance–a requirement enforced by a monetary penalty for non-compliance to be included on the person’s federal tax return–exceeded Congress’s power under the Commerce Clause.
(Other aspects of this decision (a) upheld the Act’s Medicaid expansion provisions against a Spending Power challenge, (b) held that the individual mandate was a penalty, not a tax, and thus Congress could not use the Taxing power to enact it, (c) held that the individual mandate was not a valid exercise of Congress’s power under the Necessary and Proper Clause and (d) held that the (unconstitutional) individual mandate could be severed from the rest of the Act.)
The panel, obviously aware of the importance and high-visibility of its decision, extensively canvassed the relevant Supreme Court Commerce Clause jurisprudence. It reached as far back as Chief Justice Marshall in Gibbons v. Ogden in the early 19th century. It went through the Court’s New Deal decisions which began to defer increasingly to Congressional exercises of the Commerce Clause power. It then continued with an analysis of the Court’s more recent decisions, including Lopez (gun-possession-near-schools) Morrison (The Violence Against Women Act) and Raich (growing marijuana for personal medical use). The Eleventh Circuit concluded that in light of these decisions, Congress had exceeded its power under the Commerce Clause. Read the rest of this entry »
DeShaney in the Circuits (I): Affirmative Duties and Danger-Creation
THE BLOG IS BACK!
Introduction: The DeShaney case
In DeShaney v. Winnebago County, 489 U.S. 189 (1989), a tragic case involving an attempt under section 1983 and substantive due process to hold social service officials personally liable in damages for their failure to prevent a father from physically abusing his infant son, the Supreme Court ruled that the Due Process Clause does not impose affirmative duties on governments and their officials to prevent private harm. Put another way, the Constitution is a “charter of negative liberties.” This decision gave rise to dissenting Justice Blackmun‘s famous lament about “Poor Joshua.”
However, the Court in DeShaney did go on to suggest that there were two ways in which this no-duty rule could be end-run. The first was where the government or its officials had a special relationship with the injured person, such that the injured person was disabled by government from protecting himself or herself. The second was where the government or its officials created the danger to the injured person.
These exceptions, though, are quite difficult for plaintiffs to satisfy, as the following three circuit court decisions illustrate. In addition, qualified immunity often protects a individual defendant from damages liability regardless of the possible existence of an affirmative duty.
Kovacic v. Villarreal, 628 F.3d 209 (5th Cir. 2010)
Police officers handcuffed a very intoxicated man at 1:33 a.m. after being called by employees of a bar, placed him in a squad car, told friends and relatives of the man that they would take him to his hotel but, instead, at 2:08 a.m., released him at his insistence at a gas station parking lot five or six miles from the hotel. About a half hour later the man was struck by a hit-and-run driver while walking to the hotel and subsequently died. Thereafter, the plaintiffs, on behalf of the decedent, filed a § 1983 substantive due process damages action against the officers. Reversing the district court’s denial to the defendants of summary judgment based on qualified immunity, the Fifth Circuit avoided deciding whether the decedent and the defendants had a special relationship, or had created the decedent’s danger, such that the defendants may have violated the decedent’s substantive due process rights. Instead, it held that in August 2007 the claimed right was not clearly established and that the defendants were therefore protected by qualified immunity. There was no case law on point at the time indicating that a special relationship could be created when a person was released from police custody. In addition, the Fifth Circuit, unlike other circuits, had not adopted the state-created danger theory in DeShaney cases. Read the rest of this entry »
Borough of Duryea v. Guarnieri: New Supreme Court § 1983 Public Employee Petition Clause Case
Borough of Duryea v. Guarnieri: § 1983, Public Employees and the Petition Clause
The Supreme Court in 2011 handed down Borough of Duryea v. Guarnieri, 131 S. Ct. — (2011), which expressly rejected the minority position of the Third Circuit–see San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)–and adopted that of the other circuits. Specifically, the Court held that a public employee who claims government employer retaliation in violation of the Petition Clause must demonstrate that his or her petition raises a matter of public concern and is not just a private grievance. Otherwise, the public employee may not rely on the Petition Clause.
The Decision
In the case before the Court, the § 1983 plaintiff, a former police chief, alleged retaliation because he had both filed a grievance and brought his § 1983 action against the defendant borough. A jury awarded compensatory damages to the plaintiff and the Third Circuit affirmed, relying on its position that the Petition Clause may be used in public employee retaliation cases even if grievances and lawsuits giving rise to the alleged retaliation involved matters of private concern.
The Court, in an opinion by Justice Kennedy, reversed. It assumed that both grievances and lawsuits were generally protected by the Petition Clause but emphasized that its decision in this case related only to Petition Clause claims by public employees against their government employers. It then went on to rule that in the public employment setting, the Petition Clause was no broader in scope than the Free Speech Clause which had long had a public concern requirement. See Connick v. Myers, 461 U.S. 138 (1983).
(See also Pickering v. Board of Educ., 391 U.S. 563 (1968), dealing with balancing where public employee speech involves a matter of public concern, and Garcetti v. Ceballos, 547 U.S. 410 (2006), which excluded Free Speech Clause protection from government employer retaliation for public employee speech that is part of the employee’s job responsibilities; I extensively criticize Garcetti in my post of December 8, 2009).
Like speech, the Court argued, petitions could interfere with the efficient and effective operation of government; indeed, lawsuits were often even more disruptive than speech because they called for a government response. Further, judicial second-guessing and intervention imposed significant costs on government employers. Where a petition such as a grievance raised only an issue of private concern, the public employee was not acting as a citizen but was rather complaining to the government as employer, not as sovereign. Such a public employee should accordingly not be protected by the Petition Clause any more than a public employee raising an issue of private concern was protected by the Free Speech Clause under Connick. Read the rest of this entry »
Article: Justice Souter on Government Speech
Since August 27, 2010, I have published nine posts dealing with the First Amendment topic of government speech and now-retired Justice David Souter‘s engagement with the topic.
The government speech doctrine began in the Supreme Court with Rust v. Sullivan, 500 U.S. 173 (1991)–see post of September 7, 2010–handed down in Justice Souter’s first term, and continued through Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009)–see post of December 30, 2010–handed down in Justice Souter’s last term.
My posts, which have separately addressed all of the Supreme Court’s government speech cases, were based on drafts of a then-forthcoming Brigham Young University Law Review article.
The article, now published, is entitled Justice Souter on Government Speech and its cite is 2010 Brigham Young Univ. L. Rev. 2097.
It is now available for downloading through the link below. I hope you find it informative.
Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1795624.
Nahmod Law 