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The Shot Suspect Who Escapes & The Seizure Question: Torres v. Madrid (2021)

Background At the outset, note that intent is a condition precedent for a Fourth Amendment violation. The Supreme Court put it this way:

It is clear . . . that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement. . ., nor even whenever there is a governmentally caused and governmentally desired termination of an individual’s freedom of movement . . . but only when there is a governmental termination of freedom of movement through means intentionally applied.

Brower v. County of Inyo, 489 U.S. 593 (1989)(emphasis in original), a Fourth Amendment roadblock case.

Seizures In Fourth Amendment cases involving an officer’s use of force where intent is present, it is crucial to distinguish between two additional Fourth Amendment questions: whether there was a seizure and, if there was, whether the seizure violated the Fourth Amendment. Thus, the seizure question serves an important gatekeeper function.

For example, in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), the Court held that where police make a show of authority but the subject does not yield, there is no seizure for Fourth Amendment purposes. In Hodari, police chased a person who, in the course of fleeing from them but before he was physically stopped by a tackle, discarded what turned out to be cocaine. Ruling that this evidence could be introduced in the criminal proceeding, the Court ruled that there was no seizure. The Court observed that a seizure required either the application of physical force or submission to the assertion of authority, neither of which was present here at the time the cocaine was discarded.

The Shot Suspect Who Escapes What of a situation in which there was an application of physical force because the suspect was shot but there was no apparent submission to the assertion of authority? Does this still constitute a seizure? The Supreme Court, resolving a split in the circuits and following the common law, answered this question in the affirmative.

Torres v. Madrid, 141 S. Ct. 989 (2021), involved a section 1983 Fourth Amendment excessive force claim brought by a plaintiff who was fired at by police officers 13 times in an attempt to stop her, a suspected carjacker. Although she was struck twice, she escaped and drove 75 miles to a hospital, but was arrested the following day. The Court, in an opinion by Chief Justice Roberts, ruled that she was seized when she was shot: this was an intentional application of physical force to her body with the intent to subdue, even though she did not submit and was not subdued at the time. There were important differences at common law between seizures by control and seizures by force, with the common law considering a touching to be a seizure. The majority also reasoned that requiring the taking of control for a seizure would be difficult to apply in cases involving the application of force. It thus rejected the defense argument that a seizure be defined as the acquisition of control: this theory was inconsistent with the history of the Fourth Amendment and precedent.

Justice Gorsuch, dissented, joined by Justices Alito and Thomas, arguing that a seizure requires “taking possession of someone or something.” Justice Barrett did not participate in the decision.

Comments

The reasoning in Torres applies equally to intentional shootings, tasings and beatings. These are all seizures, triggering Fourth Amendment analysis, because they all implicate personal security, the core of the Fourth Amendment.

If Torres had come out the other way, not only would the Fourth Amendment’s exclusionary rule not be timely implicated in many such cases, but claims of excessive use of force by police officers against those who escape would be governed by substantive due process under which the applicable standard is “purpose to do harm,” County of Sacramento v. Lewis, 523 U.S. 833 (1998), a much heavier burden than unreasonableness under the Fourth Amendment. See Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 §3:52 (2021-22)(West/Westlaw).

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Written by snahmod

October 25, 2021 at 10:20 am

Posted in Uncategorized

Recent Section 1983 Religion Decisions From The Circuits

The Establishment Clause

In Woodring v. Jackson County, Indiana, 986 F.3d 979 (7th Cir. 2021), the Seventh Circuit, relying on the Supreme Court’s decision in American Legion, noted below, that emphasized “a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas,” upheld a nativity scene on government property against an Establishment Clause challenge. Judge Hamilton dissented, arguing that Supreme Court and Seventh Circuit precedent demanded a contrary result. 

Recall that in American Legion v. American Humanist Ass., 139 S. Ct. 2067 (2019), the Supreme Court upheld, as against an Establishment Clause challenge, a 32-foot Latin cross erected on government property in 1925 as a tribute to soldiers who died in the First World War. Justice Kagan joined parts of Justice Alito’s main opinion for the Court; Justice Gorsuch and Thomas agreed with parts of it, although they did not join any of it; and Justices Ginsburg and Sotomayor dissented.

The Free Exercise Clause 

In Carson as next friend of O.C. v. Makin, 979 F.3d 21 (1st Cir. 2020), cert granted, 2021 WL 2742783 (U.S. 2021), the First Circuit rejected, among other claims, a Free Exercise Clause challenge to Maine’s requirement that a private school, in order to be approved to receive tuition assistance payments, must be a “nonsectarian school in accordance with the First Amendment of the United States Constitution.” It asserted that the Supreme Court’s decisions in Trinity Lutheran Church v. Comer, 137 S. Ct. 2012 (2017) and Espinoza v. Montana Dept. of Revenue, 140 S. Ct. 2246 (2020), did not call for a different result. Carson will be argued in the Court’s October 2021 Term.

The Second Circuit held that an executive order of New York’s governor, issued during the Covid-19 pandemic and limiting the maximum available occupancy in houses of worship in certain zones to 10 to 25 persons, while not restricting other businesses he considered “essential,” violated the Free Exercise Clause. Agudath Israel of America v. Cuomo, 983 F.3d 620 (2d Cir. 2020). The executive order was subject to strict scrutiny because it was not facially neutral and it imposed “greater restrictions on religious activities than on secular ones.” In addition, it did not survive strict scrutiny because it was not narrowly tailored to address the public health concern. See also Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 208 L. Ed. 2d 206 (2020), finding a “strong showing” that the plaintiffs were likely to prevail.

Comments

For related decisions of the Supreme Court, and for many more circuit court decisions, see §3:15 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2021-22 edition)(West).

For Free Exercise Clause fans, check out the various opinions in Fulton v. City of Philadelphia, 593 U.S. – (2021), which struck down under the Free Exercise Clause, and as applied to Catholic Social Services, a provision in Philadelphia’s contracts with foster care providers that said in part that “Provider shall not reject a child or family … based … upon … their sexual orientation.” I wonder how viable Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990), now is. Recall that the Court here held that government need not justify its refusal to exempt religiously motivated drug use from its general prohibition of drug use.

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Written by snahmod

September 28, 2021 at 9:49 am

Posted in Uncategorized

The Third Circuit Punts On Whether Contracts Clause Violations Are Actionable Under Section 1983

The Contract Clause, U.S. Const. Art I, § 10, provides: “No State shall … pass any … Law Impairing the Obligation of Contracts.”

The Supreme Court has developed a three-part Contracts Clause test: (1) does the state law operate as a substantial impairment of the contractual relationship; (2) if so, does the state have a significant, legitimate public purpose behind the regulation; and (3), if so, is the adjustment of the rights and responsibilities of the contracting parties based on reasonable conditions and is it appropriate to the public purposes justifying the state regulation? See, generally, Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400 (1983).

Are Contracts Clause violations actionable under section 1983?

I addressed this in an earlier post setting out the circuit split on this question. See Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (per curiam)(actionable); Crosby v. City of Gastonia, 635 F. 3d 634 (4th Cir. 2011)(not actionable) and Kaminski v. Coulter, 865 F.3d 339 (6th Cir. 2017)(not actionable). See also Elliott v. Board of School Trustees, 876 F.3d 926 (7th Cir. 2017)(assuming without deciding that Contracts Clause violations are actionable for damages under section 1983). I also argued in that post that such violations should indeed be actionable under section 1983.

Here is the post: https://nahmodlaw.com/2018/04/04/are-contract-clause-violations-actionable-under-section-1983-a-circuit-split/

The Third Circuit recently could have decided the issue for its circuit but instead punted.

In Watters v. Board of School Directors, 975 F.3d 406 (3rd Cir. 2020), tenured teachers who were suspended sued under section 1983 and the Contracts Clause alleging that public school directors and a school district thereby violated the Clause. The Third Circuit, affirming their suspension, stated: “We assume for purposes of this appeal that §1983 confers a private right of action on the type of Contracts Clause claim that the teachers bring and that … [the challenged conduct] substantially impaired the teachers’ tenure contract rights.” It ruled against the teachers, however, on the ground that the suspensions were an “appropriate and reasonable way to advance” the school district’s attempt to alleviate its budget problems.

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Written by snahmod

September 14, 2021 at 9:55 am

Posted in Uncategorized

Persons Who Are Not “Persons”: A Podcast on Absolute Immunity

While much attention has been paid recently to section 1983 qualified immunity, it may be useful to spend a little time on absolute immunity as well. Among other things, absolute immunity is even more potent for defendants than qualified immunity, even though the gap has narrowed in the past few decades. Defendants protected by absolute immunity are able to have section 1983 suits dismissed regardless of the constitutional merits (which are not reached). In addition, the doctrinal underpinnings of qualified immunity, including the “background to tort liability,” may be found in an earlier Supreme Court decision about absolute immunity, Tenney v. Brandhove, 341 U.S. 367 (1951), about which I have previously written at some length.

I was recently interviewed by John Ross of the Institute for Justice about the origins of, and justifications for, absolute immunity. Other scholars were interviewed as well.

The podcast lasts for about one hour and it can be accessed here: https://ij.org/sc_long_podcast/season-2-ep-8/

For much more about absolute immunity, check out Chapter 7 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (West 2020) and various law review articles, including my own, referred to in the podcast. You might also want to search “absolute immunity” on this blog.

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Written by snahmod

August 19, 2021 at 8:14 am

Posted in Uncategorized

Clearly Settled Law Deals Only With Constitutional Norms, Not With Other Elements of Section 1983

Years ago, I argued a section 1983 case for the plaintiff before the Seventh Circuit (Richman v. Sheahan, 270 F.3d 430 (7th Cir. 2001)), where the primary issue on appeal was whether the defendant deputy sheriffs who allegedly used excessive force against the decedent in court were protected by absolute quasi-judicial immunity or instead only by qualified immunity. As I was in the middle of arguing that the deputy sheriffs were not protected by absolute immunity, Judge Posner asked me this question (and I paraphrase): “Mr. Nahmod, even if you’re correct that only qualified immunity applies, why can’t the defendants argue that because the scope of immunity issue on appeal here is not clearly settled, then they win regardless because they are thereby protected by qualified immunity?”

My answer was that the clearly settled law inquiry focused on the applicable constitutional norm, and not on whether it was unclear to the defendant at the time he acted that he might be protected by absolute immunity. After all, wasn’t qualified immunity concerned with a defendant’s duty to know clearly constitutional law in the course of deciding how to act? Other section 1983 considerations should be irrelevant to this particular inquiry, I argued. My answer seemed to satisfy Judge Posner because he leaned back in his chair and did not pursue the matter further.

I think my answer was correct then and it is still correct now. And that is what the Sixth Circuit soundly ruled in Jackson v. City of Cleveland, 925 F.3d 793 (6th Cir. 2019), cert denied, 140 S. Ct. 855 (2020), an important and under-appreciated qualified immunity decision.

In Jackson, exonerated plaintiffs, former convicts, alleged that a police officer who in 1975 fabricated evidence and withheld exculpatory information from the prosecution, but did not testify for the prosecution, was liable for section 1983 malicious prosecution. The Sixth Circuit ruled that the defendant was not protected by qualified immunity. It rejected the officer’s argument that section 1983 malicious prosecution law was in a state of flux and not clearly settled in 1975, and that therefore he was entitled to qualified immunity.

The Sixth Circuit responded: “Whether a defendant is protected by qualified immunity turns not on whether the defendant was on notice that his actions satisfied the elements of a particular cause of action, but instead on whether the defendant was on notice that his actions violated the laws of the United States.” The clearly settled law focus was thus on whether a reasonable officer was on fair notice that his conduct was unconstitutional because it violated due process.

Along these lines, the Sixth Circuit observed, the defendant had cited no case indicating that for due process purposes, an officer who fabricates evidence must also have testified for the prosecution and thereby influenced the decision to prosecute. Consequently, the defendant was not protected by qualified immunity: his conduct in fabricating evidence violated clearly established due process law. It did not matter “what name we give to the claim.”

(Judge Keith concurred, suggesting that a jury instruction on immunity could have resolved the qualified immunity issue at trial because this case was so fact intensive and depended on whose view of the facts was believed by the jury.)

Comment

The Sixth Circuit got it right. There are various elements of any section 1983 claim that do not go to the particular constitutional norm whose violation is alleged. Causation in fact, proximate cause, damages and the scope of immunity are examples. So that even if the law regarding these elements was not clearly settled at the time of the allegedly unconstitutional conduct, a defendant who has violated the relevant clearly settled constitutional law norm is not protected by qualified immunity.

In short, it is not a defendant’s uncertainty about potential liability that is determinative of the clearly settled law inquiry, and therefore of qualified immunity protection. Rather, it is the defendant’s uncertainty about the relevant constitutional norm that is determinative of qualified immunity protection.

And just in case you’re wondering, the Seventh Circuit in Richman untlmately held in the plaintiff’s favor that the deputy sheriffs were not protected by absolute quasi-judicial immunity.

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Written by snahmod

July 27, 2021 at 10:18 am

Posted in Uncategorized

Section 1983 Litigators Must Know Their State’s Preclusion Law

By virtue of 28 U.S.C. § 1738, federal courts addressing § 1983 claims must apply the claim preclusion law (res judicata) and issue preclusion law (collateral estoppel) of the forum state where there are relevant prior state judicial proceedings. This means that § 1983 litigators must know their state’s preclusion law or suffer the consequences. See generally, Chapter 9 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West/Westlaw).

What follows are recent examples from the Fourth, Sixth and Eleventh Circuits.

The Fourth Circuit’s Gilliam Decision: Collateral Estoppel Not Applicable Under North Carolina Law Where Criminal Convictions Vacated

According to the Fourth Circuit, which applied North Carolina preclusion law, the plaintiffs, two brothers with severe intellectual disabilities who had served 31 years before being conclusively exonerated by DNA evidence and a governer’s pardon, were not collaterally estopped from relitigating their § 1983 claims of lack of probable cause and the voluntariness of their  confessions. Their criminal convictions, later vacated, did not conclusively establish that probable cause existed because the North Carolina “fraud exception” applied: the convictions were obtained improperly.

As to the voluntariness of the plaintiffs’ confessions: collateral estoppel did not apply here either because, even though the state court judges presiding over the criminal trials had ruled the confessions were voluntary, those criminal convictions were vacated. Under North Carolina law, a judgment must be valid in order to have preclusive effect. Gilliam v. Sealey, 932 F.3d 216 (4th Cir. 2019).

The Sixth Circuit’s Peterson Decision: Collateral Estoppel Not Applicable Under Michigan Law Where Criminal Convictions Vacated

Where the plaintiff’s rape and murder convictions were vacated and he sued various county and state law enforcement officers for violating his constitutional rights, the Sixth Circuit found that collateral estoppel did not preclude plaintiff’s claim that his confession was coerced. Even though a state trial court had found that the confession was not coerced at a so-called “Walker hearing,” the criminal judgment was eventually vacated, with the result that the trial court’s interlocutory rulings were vacated as well. “And vacated rulings have no preclusive effect under Michigan law.” Peterson v. Heymes, 931 F.3d 546 (6th Cir. 2019).

The Eleventh Circuit’s Hunter Decision: A Mixed Result Under Alabama Law For Guilty Plea

The plaintiff sued police officers under §1983 alleging that they used excessive force when they shot him after a four-car police chase. Applying Alabama preclusion law, the Eleventh Circuit ruled that the plaintiff’s guilty plea to menacing precluded him from relitigating the question of whether he pointed his gun at one of the officers: the defendant officers shared an identity of interest with the state in the criminal proceeding, the issue of pointing his gun at an officer was identical in both proceedings and was actually decided in the criminal proceeding and, by pleading guilty, the plaintiff necessarily admitting to pointing his gun at the officer. However, he was not precluded from contesting the officer’s statements regarding the number of times he allegedly pointed his gun. His guilty plea could not be fairly construed as an admission that he pointed his gun at the officer three times: this was not necessarily decided. Hunter v. City of Leeds, 941 F.3d 1265 (11th Cir. 2019). Judge Gilman concurred, briefly noting a qualified immunity issue.

Comment

All three of the above cases deal with the defensive use of collateral estoppel by § 1983 defendants against § 1983 plaintiffs where there were prior state criminal proceedings. However, there can be circumstances in which § 1983 plaintiffs attempt to use prior state criminal proceedings in their favor. This is offensive collateral estoppel.

In addition, while these three cases deal with prior state criminal proceedings, a state’s preclusion law may also be applicable by virtue of § 1738 to prior state civil proceedings. Moreover, this includes claim preclusion as well, not only issue preclusion.

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Written by snahmod

June 22, 2021 at 10:39 am

Posted in Uncategorized

The Broad Scope of Judicial Immunity: An Example from the Eighth Circuit

Suppose a state court judge allows a municipal court clerk to issue arrest warrants and to set bonds using the judge’s signature stamp, as well as to set a schedule requiring cash-only bonds regardless of an arrestee’s ability to pay. Suppose further that doing so is unconstitutional because these acts of the clerk are not performed by a neutral and detached magistrate. Can the judge be held liable for damages under § 1983? The Eighth Circuit answered in the negative in Hamilton v. City of Hayti, 948 F.3d 921 (8th Cir. 2020).

It determined that judicial immunity from damages liability applied to the state court judge’s delegation of authority to the clerk to issue an arrest warrant using the judge’s signature stamp against the plaintiff even though this “likely [sic]” made the warrant invalid because it was not issued by a detached and neutral magistrate who made a probable cause finding. The Eighth Circuit reasoned that judges in Missouri have original jurisdiction to issue arrest warrants and thus the judge here did not act in the clear absence of all jurisdiction with respect to this challenged conduct.

Judicial immunity also applied to the plaintiff’s claim that the arrest warrant required him to post a cash-only bond in an amount established by the judge’s unconstitutional bond schedule: this too was a judicial act within the judge’s jurisdiction.

Finally, the Eighth Circuit went on to apply judicial immunity to the municipal clerk as well under a functional approach because, even though the judge did not expressly direct the clerk to issue the arrest warrant against the plaintiff, the judge had nevertheless authorized the clerk to issue and set warrants with bond conditions. This was a judicial function protected by (quasi) judicial immunity.

Comment

It has long been § 1983 black letter law that judges lose their absolute immunity from damages liability only where (1) they have acted in the clear absence of all jurisdiction, and not just in excess of jurisdiction, or (2) where their challenged acts are not judicial in nature. See generally, Chapter 7 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West/Westlaw).

In Hamilton, the Eighth Circuit had little difficulty in finding that the state court judge did not act in the clear absence of all jurisdiction in light of the original jurisdiction of Missouri judges to issue arrest warrants and to require arrestees to post cash-only bonds. Only if, say, Missouri law had expressly and unambiguously stated that state court judges did not have subject matter jurisdiction to engage in such conduct could it have plausibly been argued that the state court judge here acted in the clear absence of all jurisdiction. Hamilton is thus far different from a case in which a state civil court judge, for example, “convicts” a § 1983 plaintiff and has him put in jail!

Moreover, these were clearly judicial acts: Missouri judges of general jurisdiction engaged in issuing arrest warrants and requiring arrestees to post cash-only bonds, and the parties expected such conduct from judges. Again, this is far different from a case in which, for example, a state court judge comes off the bench during a trial and punches a litigant in the face!

Hamilton is yet another example (of so many) in which state court judges who acted in a clearly unconstitutional manner and caused harm to § 1983 plaintiffs still escape damages liability. Such judicial immunity, like legislative and prosecutorial immunity, is designed to protect decision making processes important to a democracy and the rule of law, even at the cost of constitutional harms to § 1983 plaintiffs. That is, it protects absolute immune defendants not only against the costs of liability but also, more significantly, against the costs of even defending. And judicial immunity in particular is a virtually insurmountable burden for § 1983 plaintiffs.

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Written by snahmod

June 21, 2021 at 10:01 am

Posted in Uncategorized

Identifying Officers in Police Excessive Force Cases: Sixth Circuit Rules that Summers v. Tice Does Not Apply

The Issue

We know that in both tort law litigation and section 1983 litigation a plaintiff must allege and prove by a preponderance of the evidence that the defendant’s conduct was a but-for cause of the plaintiff’s injury.

What happens in a section 1983 Fourth Amendment excessive force case where the plaintiff knows that one of several police officers used excessive force against him but he cannot identify the particular officer who did?

Can that plaintiff sue all of the officers jointly and severally, arguing that they are all liable except to the extent that any of them can prove the absence of but-for causation by a preponderance of the evidence? Is there an analogy to the famous tort case, Summers v. Tice, 33 Cal. 2d 80 (1948)?

The Sixth Circuit’s Answer

The Sixth Circuit answered “no” in Pineda v. Hamilton County, 2020 WL 5868402 (6th Cir. 2020). The plaintiff alleged that one of three off-duty sheriff’s deputies providing security at a night club hit him on the back of his head and caused brain damage. However, he sued all three of them under section 1983 and the Fourth Amendment jointly and severally because he could not identify the deputy who hit him. Distinguishing Summers v. Tice as involving defendants both of whom were negligent, the Sixth Circuit emphasized that here only one deputy had allegedly used excessive force. It therefore affirmed the district court’s grant of summary judgment to all three deputies. The court also observed that that plaintiff did not indicate any circumstances keeping him from identifying the deputy who allegedly struck him.

Judge Posner’s Primer on Joint and Several Liability

Consider in this connection Richman v. Sheahan, 512 F.3d 876, 884-85 (7th Cir. 2008)(citations omitted), where Judge Posner, discussing the joint and several liability issues that might arise in cases dealing with multiple defendants, explained :

 “There are four possibilities in a tort case with multiple defendants, such as this. The first is that each defendant’s act makes the injury to the plaintiff a little worse and it is the combination of the acts of separate defendants that does him in. Then each defendant is liable only for the increment in harm that he caused.”

 “Second, each defendant might by his own act have inflicted the entire injury, in the sense that, had he not committed the act, the injury would have been no less grave than it was, as when two persons shoot a third and each wound would have been fatal by itself. Again, both would be liable, but this time jointly and severally.”

“Third, as in Summers v. Tice, each defendant might have committed an act that is a tort when injury results (for there is no tort without an injury), but it is unclear which defendant’s act was the one that inflicted the injury–both shot at the plaintiff, one missed, but we do not know which one missed. Again both are jointly and severally liable.”

“And fourth, one defendant might commit the act that causes the harm yet the other be sued as well because he could have prevented the harm but did not. … If [the defendants who just stood around looking while Richman was being swarmed] should have realized that their colleagues were using excessive force they had a duty to intervene, for they were part of the arresting force, awaiting a call to join the swarm should it become necessary.”

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Written by snahmod

June 8, 2021 at 3:08 pm

Posted in Uncategorized

What is the Noerr-Pennington Doctrine and What Does It Have to Do with Section 1983?

The Noerr-Pennington Doctine and Section 1983

Under the Noerr-Pennington doctrine, which is informed by the First Amendment’s Petition Clause, “parties who petition the government for governmental action favorable to them cannot be prosecuted under the antitrust laws even though their petitions are motivated by anticompetitive intent.” Video Intern. Production, Inc. v. Warner-Amex Cable Communications, Inc., 858 F.2d 1075, 1084 (5th Cir. 1988). In the antitrust setting, this doctrine is based on two cases: Eastern R. R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers of America v. Pennington, 381 U.S. 657 (1965).

Perhaps surprisingly, there may also be absolute immunity from section 1983 liability for private parties who petition governments for favorable treatment which is anticompetitive, just as there is Noerr-Pennington1 immunity from prosecution under the antitrust laws. As the Second Circuit explained in Hirschfeld v. Spanakos, 104 F.3d 16, 19 (2d Cir. 1997): “The Noerr immunity doctrine protects plaintiffs from damage claims based on the institution of a suit in certain situations. The doctrine originated in the antitrust area, but it has been extended to provide immunity from liability for bringing other suits.”

An Example from the Seventh Circuit

For example, the Seventh Circuit inTarpley v. Keistler, 188 F.3d 788 (7th Cir. 1999), applied Noerr-Pennington immunity in a case where the plaintiff, an unsuccessful candidate for a permanent position at a state hospital, sued state officials and officials of a political party alleging that they conspired against him to deny him the position (as well as a temporary position leading to the permanent one) because of his political affiliation and instead to give it to another, all in violation of the First Amendment. Ruling against the plaintiff on Noerr-Pennington grounds in connection with his claim against party officials regarding the temporary position, the Seventh Circuit determined that they were exercising their First Amendment right to petition the government to recommend one of their own party for the temporary position. “Making suggestions about whom to hire is a traditional form of political activity.”

Asserting that it was balancing plaintiff’s First Amendment rights against those of the party officials, the Seventh Circuit went on to say that it would not vindicate plaintiff’s First Amendment rights at the expense of the party officials who recommended that a party member be hired for the temporary position. It affirmed the district court’s grant of summary judgment for the party officials, distinguishing between plaintiff’s constitutional right not to be excluded from a public job because of his political affiliation under Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990) and the right of a citizen to recommend another for public employment.

Judge Ripple dissented, 188 F.3d at 797. He argued that based on the evidence before the court, this was not a case in which party officials simply advocated the hiring of someone other than plaintiff, but rather one in which they conspired with state officials to define and limit the pool of candidates for the temporary vacancy on party affiliation grounds. He also contended that the majority had no basis for preferring the alleged First Amendment right of the party officials to the well-established First Amendment right of the plaintiff.

The Sham Exception to Noerr-Pennington Immunity

However, there is a “sham” exception to Noerr-Pennington immunity. In an antitrust case with implications for section 1983 as well, the Supreme Court defined this “sham” exception when it declared in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, 508 U.S. 49, 113 S. Ct. 1920 (1993), that antitrust litigation will not be deprived of Noerr-Pennington immunity unless that litigation is objectively baseless. The Court elaborated:

“We now outline a two-part definition of ‘sham’ litigation. First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals ‘an attempt to interfere directly with the business relationship of a competitor’ … through the ‘use of the governmental process–as opposed to the outcome of that process–as an anticompetitive weapon.’ This two-tiered process requires the plaintiff to disprove the challenged lawsuit’s legal viability before the court will entertain evidence of the suit’s economic viability.”

After Professional Real Estate Investors, Inc, then, a plaintiff who alleges that the defendant instituted litigation violative of the antitrust laws and section 1983 will be confronted by the Noerr-Pennington immunity of the defendant unless the plaintiff can demonstrate that the defendant’s litigation was a sham within the meaning of the Court’s two-part test.

The “Sham” Exception Applied by the Ninth Circuit

For example, In Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 643 (9th Cir. 2009), the plaintiff, formerly a landowner, sued a representative of a school district and the law firm that represented it in an earlier eminent domain proceeding involving her property, alleging that they violated her constitutional rights by their acts that led to a much lower valuation of her property than was awarded her. Dismissing the plaintiff’s section 1983 claims, the district court found Noerr-Pennington immunity applicable because the challenged conduct was “incidental to First Amendment-protected petitioning activity.” It also found that plaintiff’s complaint did not fall within the sham exception to Noerr-Pennington “because [plaintiff] had not supported her position that defendants’ alleged intentional misrepresentations to the court ‘depriv[ed] the condemnation proceeding of its legitimacy.’” Reversing on this issue, the Ninth Circuit ruled that the sham exception to Noerr-Pennington immunity applied in this case. The plaintiff’s allegations as to intentional misrepresentations to the court through suppression of evidence were sufficient, and the district court erred in requiring “support” at the motion to dismiss stage.

Comment

Noerr-Pennington immunity may apply to protect section 1983 defendants whose challenged anticompetitive conduct is potentially protected by the Petition Clause of the First Amendment. Neverthless, this immunity may be lost if the defendants’ litigation was a sham with the meaning of the Supreme Court’s decision in Professional Real Estate Investors, Inc.

All in all, this can be quite arcane and unfamiliar to attorneys.

I invite to you to follow me on Twitter @NahmodLaw.


Written by snahmod

April 13, 2021 at 10:01 am

Posted in Uncategorized

37th Annual Conference on Section 1983: 4/21-23/2021

Registration is now open!

https://d31hzlhk6di2h5.cloudfront.net/20210308/2a/e8/e2/2f/3b8dc3b8298924690fb37cdd_1280x348.jpg
3-day Webinar Series | April 21 – 23, 2021

Eligible for 12.5 hours of general CLE credit, including 1.25 hours of ethics
  Liability arising out of §1983 claims continues to present challenges for courts across the country, and the Supreme Court has a large impact in this dynamic area of law. Join us for this 10-part webinar series, held over three days, to get up-to-date on the latest cases, trends, and strategies affecting §1983 litigation. You have the opportunity to examine both the law of §1983 as well as the litigation strategies that underlie successful cases. Experts in the field address the most important issues and provide wisdom for you as you tackle this year’s cases, whether you represent plaintiffs or defendants. As always, the conference provides an analytical approach to problems and offers practical advice about how to solve them. 

REGISTRATION NOW OPEN Sign-up today and save $50 on the cost of registration! Pay the early bird rate through April 7. Special discount available for attending this conference for 10 or more years, consecutively.
Register at this link: https://ckcle.ce21.com/item/37th-annual-section-1983-civil-rights-litigation-conference-403127

PROGRAM HIGHLIGHTS• The Section 1983 Claim: The Basics
• Individual Immunities
• Municipal Liability
• Practical Considerations in §1983 Litigation
• Immigration Law and §1983
• The 4th Amendment: Overview and Update
• Attorney’s Fees & Related Ethical Issues
• The Supreme Court’s Term: Recent and Forthcoming Decisions
• Substantive Due Process: The Constitutional Guaranty that Multitasks New this year!
• Takings after Knick New this year!
All sessions are pre-recorded video content along with real-time speaker interaction available via live chat room throughout each session.  

PROGRAM FACULTY
Kimberly D. Bailey | Associate Professor of Law | Chicago-Kent College of Law
Gerald M. Birnberg | Founding Partner | Williams, Birnberg & Andersen LLP
Karen M. Blum | Professor of Law Emerita | Suffolk University Law School
Victoria Carmona | Assistant Clinical Professor and Supervisory Attorney, Immigration Clinic | Chicago-Kent College of Law
Erwin Chemerinsky | Dean & Jesse H. Choper Distinguished Professor of Law | University of California, Berkeley School of Law
Rosalie B. Levinson |  Professor of Law Emerita | Valparaiso University School of Law
John B. Murphey | Senior Partner | Odelson Sterk Murphey Frazier McGrath, Ltd.
Sheldon H. Nahmod | University Distinguished Professor of Law Emeritus | Chicago-Kent College of Law

DOWNLOAD THE COMPLETE BROCHURE HERE: https://d31hzlhk6di2h5.cloudfront.net/20210308/2e/9d/06/14/bd734451d3c88ee79de6b1c5/sec83_-_brochure_2021_FINAL.pdf

Written by snahmod

March 8, 2021 at 5:41 pm

Posted in Uncategorized