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National Dysfunction and the Impeachment Process

Like families, nations can be dysfunctional. And indeed, the United States, this great Republic, now appears to be dysfunctional. Political parties, as well as individuals, speak past one another, neither trusting nor even listening to the other. This ideological polarization both reflects, and adversely affects, the politically accountable branches of government, the House, the Senate and the Presidency. It even taints the federal judiciary, including the Supreme Court. The President in particular is polarizing: many individuals either love him or hate him, with no in-between. The electronic media—TV, radio, cable –don’t seem to help very much: to the contrary, there are far too many conspiracy theories and far too many attacks on so-called “fake news.” There is far too much opinionating and there are far too few facts discussed by the talking heads on MSNBC, CNN, Fox News and other platforms. Indeed, some of the most misguided, and perhaps most dangerous, talking heads even question whether there can be facts independent of politics. Don’t believe them. Objective reality exists.

Some Historical Background

We have been dysfunctional before. The most extreme example of national political dysfunction was the Civil War, which was preceded by vicious political battles over slavery and states’ rights, and culminated in hundreds of thousands of deaths and much destruction. But I want to suggest that Presidential impeachment proceedings are also an indication of a dysfunctional United States, although thankfully they are less extreme examples of such dysfunction than the Civil War was. For example, President Andrew Johnson (Johnson was the assassinated President Lincoln’s Vice President and was a racist as well as a drunk)  was impeached by the House in 1868 but he escaped removal from office in the Senate by one vote. His impeachment reflected a profound national political split over the recently freed slaves and Reconstruction, as well as deep Congressional distrust of him. In 1999, President Clinton’s impeachment by the House, controlled by Republicans, similarly reflected national political dysfunction (Democrats v. Republicans) as well as deep-seated personal hostility toward the President. He escaped removal on political party lines in the Senate because there was not a 2/3 vote to remove him.

President Nixon’s impeachment proceedings resulted in a vote by the House Judiciary Committee in 1974 to adopt three Articles of impeachment. But there was never a formal vote to impeach by the House itself (with a Democrat majority) because the President resigned shortly after he made the Watergate Tapes transcript available to the public and was told by Republican leaders that he would not survive impeachment. Fortunately for the nation, the Nixon proceedings were accompanied by the desire of many members of Congress of both parties to get at the facts about the President’s alleged obstruction of justice, abuse of power and willful disobedience of subpoenas issued by the House Judiciary Committee. This is not to say that there was not political polarization at that time as well, both in Congress and among individuals. There was, as many of us remember. But there also seemed to be an emerging national bipartisan consensus to discover the truth.

With this as historical background, I want to say some things about the current House hearings about impeachment involving President Trump, and about impeachment in general. I do not plan to get to the substantive merits of possible charges against the President. It is too  soon to do that because (as I write this)  there has not as yet been an official report from the House Intelligence Committee.

But I would like to set out some legal background in plain English so that we as Americans can better understand the process. I firmly believe that as citizens we have an individual and collective responsibility to do so independently of all of the rabid opinionating surrounding us that threatens to overwhelm us and to distort our thinking. My takeaway message: respect the process regardless of your political views.

The Impeachment Process

It starts with the Constitution which provides as follows in Art II, sec 4 of the Constitution: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” In 1970, then House Minority Leader Gerald Ford said that this means whatever a majority of the House of Representatives says it means at a given moment in history. But this is simply not correct: the historical and legal consensus is that this means an abuse of the power of the office that violates the public trust and runs counter to the national interest. So impeachment is not a criminal trial: criminal conduct is not required, although certain criminal conduct may amount to Treason, Bribery or other High Crimes and Misdemeanors.

Is impeachment political in nature? You bet it is, although not necessarily in the partisan sense. It was intended by the Founders to be the political equivalent of a grand jury indictment. It is definitely not illegitimate. Is it to be taken seriously? You bet it is. It was intended by the Founders to be taken very seriously as a vital component of Separation of Powers and Checks and Balances. It is an extreme means of removing from the Presidency any President who is a despot. At the Constitutional Convention in Philadelphia, the Founders made clear that a President should not be impeached merely for incompetence or because of merely personal or political hostility. It is the purpose of Presidential elections, not impeachment, to deal with these problems.

The Constitution provides for a two-part impeachment proceeding. The first part, in Art. I, section 2,  is investigative and takes place in the House of Representatives pursuant to whatever rules the House puts into place. The House is the sole entity in charge of impeachment and its decisions cannot be reviewed by any federal court, including the Supreme Court. The recently televised investigative proceeding was run by the House Intelligence Committee, with questioning of witnesses first by Democratic Representatives (the majority) and their attorneys, followed by questioning by Republican Representative and their attorneys. Thereafter, the members of the House Intelligence Committee, together with any other House committees investigating Presidential behavior, will issue its report to the Judiciary Committee which will then decide whether or not to recommend Articles of Impeachment to the full House. The full House will then consider whether any of the Articles of Impeachment charge a “High Crime and Misdemeanor” and, if so, will vote on any such Articles. As I mentioned earlier, a President’s refusal to comply with the House’s subpoenas or other requests for information has historically been considered by the House to be an appropriate basis for an Article of Impeachment for obstruction of justice.  If a majority of the House votes in favor of one or more Articles of Impeachment, these go to the Senate for trial: this is the second part of an impeachment proceeding: trial and possible removal.

Senate trials are exceedingly rare. Over the past 230 years there have apparently been only eighteen impeachment trials (including for federal judges) in the Senate, and only two of a President, Andrew Johnson (1868) and Bill Clinton (1999).  Procedurally, after the House impeaches a President, the matter proceeds to trial in the Senate, with the Chief Justice presiding as set out in Art. I, sec 3. The Senate has the sole constitutional responsibility for such a trial. Just as is true for impeachment in the House, the federal courts, including the Supreme Court, play no role whatever except insofar as the Chief Justice of the United States presides. But the Chief Justice does not run a criminal trial in the Perry Mason sense: what he does instead is ensure that the Senate trial properly follows its own Senate rules and procedures. There is thus is no trial by jury. Rather, a two-thirds majority of those Senators present is required to convict and thereby remove the President. Once a President is removed, he is disqualified from any other federal office. And if his conduct was illegal, he can thereafter be sued or prosecuted.

This process was enshrined in the Constitution by the Founders and is a crucial part of Separation of Powers and Checks and Balances under which each branch of the federal government has its own constitutional responsibilities. It deserves our respect and attention, whatever our politics and whatever our view of the political motivations involved. It is not entertainment. Instead, it is a national teachable moment. The impeachment process is never pleasant for anyone, regardless of the result.

Our Responsibility as Citizens

At the very least, each of us should make up his or her mind based on the facts as developed by the overall impeachment process, and not based on what the talking heads have to say about it. And certainly not based on Facebook, Twitter or any of the other social platforms with their personal attacks and their conspiracy theories that influence far too many Americans and cloud their thinking. If we didn’t  watch any part of the House Intelligence hearing itself, let’s try to get our facts from respected print media such as the Wall Street Journal and the New York Times (but not necessarily from their editorial or op-ed pages). This is our minimum obligation as citizens of the United States.

The great Supreme Court Justice Louis Brandeis said 100 years ago: “Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. [They were] courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government….”

The United States will recover from its current national dysfunction when we Americans engage in “free and fearless reasoning.”

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Written by snahmod

December 4, 2019 at 10:18 am

Posted in Uncategorized

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”])

I invite you to follow me on Twitter @NahmodLaw.

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.

I invite you to follow me on Twitter: @NahmodLaw

 

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