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The Twelve Most Recent Section 1983-Related Decisions of SCOTUS

If you’re like me, you like (useful) lists. So what follows is a list of the twelve most recent section 1983-related decisions of the Supreme Court. These were handed down in the 2017 and 2018 Terms.

References are to sections in my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed. 2019)(West & Westlaw), and, where available, to this blog.

Supreme Court Decisions in the 2017 Term

  • Artis v. District of Columbia, 138 S. Ct. 594 (2018): tolling under 28 U.S.C. § 1367(d) (See § 1:33)
  • Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018): First Amendment retaliatory arrests and probable cause as a defense (See § 3:13 and this blog [search “Lozman”])
  • District of Columbia v. Wesby, 138 S. Ct. 577 (2018): Fourth Amendment probable cause to arrest and qualified immunity (See§ 8:62 and this blog [search “Wesby”])
  • Kisela v. Hughes,  138 S. Ct. 1148 (2018): Fourth Amendment excessive force and qualified immunity (See § 8:63 and this blog [search “Kisela’])
  • Sause v. Bauer: Free Exercise and qualified immunity (See § 8:72)
  • Murphy v. Smith: Prison Litigation Reform Act limitation on fees for prevailing plaintiff inmates (See § 10:15)

Supreme Court Decisions in the 2018 Term

  • Manhattan Community Access v. Halleck, 139 S. Ct. — (2019): state action and operation of a city’s private access channel (See § 2:10)
  • Nieves v. Bartlett, 139 S. Ct. — (2019): First Amendment retaliatory arrests and probable cause as a defense (See § 3:13 and this blog [search “Nieves”])
  • Timbs v. Indiana, 139 S. Ct. — (2019): Excessive Fines Clause incorporated (See § 3:28 and this blog [search “Timbs”])
  • Knick v. Township of Scott, 139 S. Ct. — (2019): takings and ripeness (See3:71 and this blog [search “Knick”])
  • City of Escondido v. Emmons, 139 S. Ct. — (2019): Fourth Amendment excessive force and qualified immunity (See § 8:63 and this blog [search “Emmons”])
  • McDonough v. Smith, 139 S. Ct. — (2019): accrual of fabrication of evidence claims (See § 9:30 and this blog [search “McDonough”])

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Written by snahmod

September 8, 2019 at 4:04 pm

Posted in Uncategorized

36th Annual Section 1983 Conference on April 11-12, 2019: Save the Date

What follows is a link to the Save-the-Date announcement for the forthcoming 36th Annual Section 1983 Conference to be held in Chicago on April 11-12, 2019. This announcement includes registration information.

Featured speakers include Karen Blum, Rosalie Levinson, Erwin Chemerinsky, Kimberly Bailey, John Murphey, Gerry Birnberg and me.

https://cle.kentlaw.edu/database/PDF/2018Dec21-3937-sec83%20-%20save%20the%20date%20flyer%202019.pdf

If you have any questions, please contact either me at snahmod@kentlaw.edu or our CLE department at CLE@kentlaw.iit.edu.

Thanks.

 

Written by snahmod

January 7, 2019 at 1:56 pm

Posted in Uncategorized

An Unusual Section 1983 Second Amendment Lawsuit Brought by Police Officers(!)

Section 1983 Second Amendment lawsuits are typically brought by citizens who argue that their Second Amendment rights have been, or will be, violated by state and local governments through legislation imposing gun controls of one kind or another.

(For background, see three earlier posts on the Second Amendment: (1) https://nahmodlaw.com/2010/08/08/the-second-amendment-and-section-1983-after-mcdonald/ & (2) https://nahmodlaw.com/2013/02/28/the-second-amendment-and-gun-control-unanswered-questions/ & (3) https://nahmodlaw.com/2014/11/11/the-second-amendment-and-section-1983-a-podcast/)

The Ninth Circuit’s Decision in Mahoney v. Sessions

So consider Mahoney v. Sessions, 2017 WL 4126943 (9th Cir. 2017), an unusual Ninth Circuit case that involved Second Amendment claims brought under section 1983 by police officers challenging the City of Seattle’s use of force policy on the ground that this policy violated their right to use firearms for the core lawful purpose of self-defense. The policy stated that police officers must use objectively reasonable force “proportional to the threat or urgency of the situation, when necessary, to achieve a law-enforcement objective.” It also required officers to use de-escalation tactics to reduce the need for force but only when safe and feasible “under the totality of circumstance[s].”

Affirming the district court, the Ninth Circuit ruled that the policy did not violate the Second Amendment. The court assumed that the policy was subject to Second Amendment analysis. However, applying intermediate level scrutiny, the court went on to determine that the city’s interest in the policy was substantial because it was intended for  the safety of the public and police officers. Further, there was a reasonable fit between this purpose and the policy which assured that the interest would be furthered. It was also significant that this was a regulation of department-issued firearms.

Comment

Apart from the unusual plaintiffs in Mahoney, the result was not surprising. For one thing, the circuits as a general matter have coalesced around intermediate level scrutiny in Second Amendment cases. Mahoney appears to have applied this standard appropriately: Seattle’s policy was a sensible way of trying to constrain police officers when they contemplate the use of deadly force. Put another way, the policy was a means of enforcing the Fourth Amendment’s limits on the use by police officers of deadly force.

For another, state and local governments have no affirmative substantive due process duty to protect their officials or employees from private harm. Collins v. City of Harker Heights, 503 U.S. 115 (1992), discussed in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 sec. 3:58 (2017; West). Police officers in particular know full well that their job exposes them to the risk of serious harm on a regular basis.

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Written by snahmod

July 10, 2018 at 8:08 am

Posted in Uncategorized

A Section 1983 Primer (12B): Survival and Wrongful Death–What Happens When a Section 1983 Plaintiff Dies or Has Been Killed

The immediately preceding post addressed the section 1988 background of survival and wrongful death claims based on section 1983. It included a discussion of Robertson v. Wegmann, the leading Supreme Court decision dealing with survival of section 1983 claims.

This follow-up post primarily deals with wrongful death.

Background 

While both state survival statutes and state wrongful death statutes reverse contrary common law rules, their purposes are different. Survival statutes allow the cause of action to survive regardless of the death of the plaintiff (or defendant). Wrongful death statutes, by contrast, provide for causes of action to arise in and for the benefit of certain designated persons in order to compensate them for pecuniary losses resulting from a decedent’s death. Furthermore, for wrongful death actions the defendant’s conduct must necessarily be the cause of death; this is not required for survival.

The Leading Case of Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961)

In a leading decision on survival and wrongful death, the Fifth Circuit, in Brazier v. Cherry, drew no distinction for section 1983 and section 1988 purposes between the applicability of Georgia’s survival statute and its wrongful death statute. The case concerned allegations that police brutality had caused decedent’s beating and death. In concluding that section 1988 required the application of Georgia law in favor of the plaintiff, who was both the surviving widow and the administratrix of the decedent’s estate, the court treated survival and wrongful death concepts alike. Focusing on the “suitable remedies” language of section 1988, after dealing earlier with the “party injured” language of section 1983, the Fifth Circuit stated:

The term “suitable remedies” … comprehends those facilities available in local state law but unavailable in federal legislation, which will permit the full effectual enforcement of the policy sought to be achieved by the statutes. And in a very real sense the utilization of local death and survival statutes does not do more than create an effective remedy. … To make the policy of the Civil Rights Statutes fully effectual, regard has to be taken of both classes of victims.

Thus far, the Supreme Court has not addressed the issue of wrongful death and section 1983. As noted in the preceding post, it simply commented in Robertson, a survival case, that abatement of a section 1983 cause of action where the defendant’s conduct caused the plaintiff’s death was a different issue from that in case before it where death was not so caused. Still, as a matter of section 1983 policy, Brazier‘s approach to the use of wrongful death statutes seems sound and has been generally followed in the circuits. Consider: if a wrongful death statute could not be used for section 1983 actions, it would follow that where a defendant’s unconstitutional conduct immediately caused the death of the decedent, the typical survival statute would also not be applicable. The absurd result would be no vindication at all of the section 1983 claim. Thus, the Fifth Circuit appropriately observed in Brazier:

“[I]t defies history to conclude that Congress purposely meant to assure to the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death.”

Significantly, Brazier‘s reasoning can apply to the use of state survival law as well. Indeed, because the claim in such cases is for the decedent’s loss of his or her life and related damages,the “fit” between survival law and section 1983 may even be better than that between wrongful death law and section 1983. That may be why some circuit court decisions tend in fact to use state survival law in section 1983 cases and confront the “inconsistency” issue–addressed below–regarding damages limitations head on.

Comment

The general rule is that state wrongful death statutes can be used to vindicate a decedent’s constitutional deprivations caused by the conduct of section 1983 defendants that caused his or her death.

In addition–and this is important–to the extent that state wrongful death statutes (and survival statutes) limit the recovery of compensatory and punitive damages, those limitations have been held to be inconsistent with the policies underlying section 1983 and thus found inapplicable to section 1983 wrongful death claims. See, e.g., Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), overruled in part on other grounds, Russ v. Watts, 414 F.3d 783 (7th Cir. 2005), and Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990). Both of these cases soundly hold that federal damages rules for compensatory and punitive damages govern for both survival and wrongful death claims brought under section 1983.

I discuss these and other cases in section 4:69 of Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016)(West).

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

February 13, 2017 at 10:21 am

Posted in Uncategorized

A Section 1983 Primer (12A): Survival and Wrongful Death–What Happens When a Plaintiff Dies or Has Been Killed?

There are times when a potential section 1983 plaintiff dies for reasons unrelated to his or her claim . There are other times when a potential section 1983 plaintiff may have a claim against the person or entity responsible for his or her death. It is crucial to distinguish between the two situations.

In the first, the question is whether the section 1983 claim survives the decedent‘s death so that the decedent’s legal representative can proceed with the section 1983 lawsuit. This raises a survival issue.  In the second situation, the question is whether the decedent’s legal representative can bring a section 1983 claim for the decedent’s death. This raises a wrongful death issue.

Interestingly, the answers to these questions are based, as a matter of federal law, on the survival and wrongful death law of the forum state.

The Relevance of 42 U.S.C. sec. 1988 and the Silence of Federal Law on Survival and Wrongful Death

Section 1988 provides in relevant part that the jurisdiction of federal district courts must be exercised in conformity with federal law “so far as such laws are suitable to carry the same into effect.” However, section 1988 goes on to say that when federal law is deficient in the provision of suitable remedies, state statutory or common law applies, unless it is inconsistent with the Constitution or federal law, in which case that state statutory or common law is not to be applied.

Because federal law is silent on the questions of survival and wrongful death, and therefore “deficient,” section 1988 requires that the survival and wrongful death law of the forum state must be applied unless it is “inconsistent” with the Constitution or federal law.

Robertson v. Wegmann, 436 U.S. 584 (1978): Survival of Section 1983 Claims

In its only section 1983 survival case, Robertson v. Wegmann, the Supreme Court dealt with the meaning of section 1988’s “inconsistent” language in the course of explaining how survival applies to section 1983 claims.

In Robertson, plaintiff Clay Shaw sued district attorney Jim Garrison and others under section 1983 for their alleged bad faith prosecution attempts against him in connection with the assassination of President Kennedy. Shaw obtained an injunction but, before a trial on damages could be held, he died. The executor of Shaw’s estate was then substituted as plaintiff, prompting defendants’ motion to dismiss on the ground that the section 1983 action had abated. Under Louisiana law, Shaw’s action only survived in favor of certain close relatives, none of whom was alive when Shaw died. The district court refused to apply state law because it was thought to be inconsistent with federal law. Instead, the court created “a federal common law of survival in civil rights actions in favor of the personal representative of the deceased.” The Fifth Circuit affirmed, emphasizing the inconsistency between Louisiana law and the broad remedial policies of section 1983, as well as the need for uniformity in civil rights actions.

However, the Supreme Court reversed. Applying section 1988, it found that Louisiana survival law generally was both reasonable and not inconsistent with the compensation and deterrent purposes of section 1983, despite the fact that the section 1983 action abated in this unusual case. It said:

A state statute cannot be considered “inconsistent” with federal law merely because the statute causes the plaintiff to lose the litigation. . . . § 1988 quite clearly instructs us to refer to state statutes; it does not say that state law is to be accepted or rejected based solely on which side is advantaged thereby.

The Court added that its decision was to be read narrowly because Louisiana law generally was not “inhospitable” to survival of § 1983 actions and the particular result here had “no independent adverse effect on the policies underlying § 1983.” Significantly, it also observed that the case before it was far different from one in which the unconstitutional conduct actually caused the death; that is, this was not a wrongful death action.

Comment

Robertson indicates that state survival law will almost always govern the survival of section 1983 actions except in extreme situations as where, for example, state law significantly discriminates against those types of actions, including section 1983 actions, that do not survive.

The general rule, then,  is that section 1983 damages actions that are intended to redress the constitutional deprivations of the decedent while he or she was alive survive the death of the plaintiff if such survival would be the result under applicable state law.

I collect circuit court decisions dealing with survival in section 4:66 of CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016; West).

Next Post: Section 1983 Wrongful Death Claims

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Written by snahmod

February 1, 2017 at 2:19 pm

Posted in Uncategorized

Nahmodlaw.com Has Been On Break: Will Resume Next Week

I’ve been out of town for over a month but expect to be back next week and to resume blogging on section 1983, constitutional law and other good stuff.

Regards.

Sheldon Nahmod

snahmod@kentlaw.edu

 

Written by snahmod

January 25, 2017 at 10:23 pm

Posted in Uncategorized

Kingsley v. Hendrickson: New Supreme Court Pretrial Detainee Excessive Force Decision

Kinsgley v. Hendrickson: What Standard Governs Pretrial Detainee Due Process Excessive Force Claims?

The Supreme Court granted certiorari and then reversed the Seventh Circuit in Kingsley v. Hendrickson, 135 S. Ct. – (2015)(No. 14-6368), revg Kingsley v. Hendrickson, 744 F.3d 443 (7th Cir. 2014)(Judge Hamilton dissenting), a case involving the proper excessive force standard applicable to pretrial detainee claims brought under substantive due process. In this case, the plaintiff pretrial detainee alleged that the use of a taser against him constituted excessive force in violation of due process.

The Question Presented was “[w]hether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.”

The Court’s Opinion

In an opinion by Justice Breyer, the Court rejected the subjective inquiry used by the district court—that there must be “an actual intent to violate [the plaintiff’s] rights or reckless disregard for his rights”–and affirmed by the Seventh Circuit. Instead, the Court declared that the proper standard in such pretrial detainee substantive due process cases was one of objective reasonableness, the same standard required by the Fourth Amendment for police officers making arrests in Graham v. Connor, 490 U.S. 386 (1989). The Court did not accept the defendant correctional officers’ contention that because this was a prison setting, under Bell v. Wolfish, 441 U.S. 520 (1979), the plaintiff pretrial detainee was required to prove that he was “punished” by them, meaning that at the least the defendants must have been subjectively aware that their use of force was unreasonable.

The Court went on to explain why this objective reasonableness standard would not unduly burden corrections officers. For one thing, the use of force must be determined from the perspective of a reasonable corrections officer at the time. For another, the objective reasonableness standard was workable and consistent with the pattern jury instructions used in several Circuits. For a third, the standard adequately protected corrections officers who acted in good faith because jail circumstances, including security and order, must be taken into account in making the objective reasonableness determination. Finally, the availability of qualified immunity to corrections officers provided an additional margin for error. See Chapter 8 of NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2014)(West).

The Dissents

Justice Scalia, joined by Chief Justice Roberts and Justice Thomas, dissented, arguing that “punishment” was required under due process and that the infliction of objectively unreasonable force, standing alone, was not sufficient for this purpose. They also questioned whether a pretrial detainee had a liberty interest in freedom form objectively unreasonable force. Justice Alito also dissented, maintaining that certiorari was improvidently granted. In his view, the Court should first determine whether a pretrial detainee can bring a Fourth Amendment excessive force claim before reaching the substantive due process claim involved in Kingsley.

Comments

Kingsley is a sound decision. It finally puts to rest the split in the circuits regarding the proper excessive force standard for pretrial detainees, an issue that had been percolating in the circuits for some time.

In addition, so long as relevant security factors are plugged into the objective reasonableness inquiry, pretrial detainees are not being unduly advantaged to the detriment of the need to maintain security and order.

Perhaps most important, it would have been fundamentally unfair for pretrial detainees, who by definition have not been convicted of anything, to be governed by a subjective inquiry of the sort the governs excessive force claims brought under the Eighth Amendment by those already convicted. Kingsley property treats pretrial detainees as free citizens in this context.

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Written by snahmod

June 22, 2015 at 4:39 pm

Posted in Uncategorized