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An Updated Section 1983 Primer (7): Introduction to Absolute Individual Immunity
In honor of the 40th Annual Conference on Section 1983, which was recently held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.
Persons Who Are Not “Persons”
The language of section 1983 makes “[e]very person” who deprives another of his or her constitutional rights under color of law potentially liable in damages.
On its face, section 1983 does not provide for any individual immunities. Moreover, the legislative history on this question is almost entirely lacking (although others may disagree).
It turns out, nevertheless, that there are individuals who are not “persons” and who are absolutely immune from damages liability when sued in their individual capacities.
Three Categories of Absolutely Immune Individuals
There are three categories of absolutely immune defendants about which I will separately post later: state and local legislators, judges and prosecutors. But for now, I want to make the following introductory comments.
The Supreme Court’s Approach and Policy Considerations
Over the years the Supreme Court has developed the three categories of absolutely immune defendants by asking two questions.
First, what was the common law immunity background in 1871, when section 1983 was enacted? Second, if the 1871 common law provided for absolute immunity, is that consistent with the purposes of section 1983 in general?
The policy considerations specifically underlying absolute individual immunity are several. The core policy, though, is the promotion of independent decision-making without fear of either being sued (the costs of defending) or personal liability (the costs of liability). In other words, absolute immunity provides a wide margin for error for certain government officials whose functions are so very important that they should not be “chilled” at all when they make their legislative, judicial or prosecutorial decisions.
The Procedural Effect of Absolute Individual Immunity
When prosecutorial immunity is successfully asserted, the impact is significant and immediate. Whether through a motion to dismiss, a motion for judgment on the pleadings or a motion for summary judgment, the defendant sued for damages in his or her individual capacity is dismissed from the damages part of the litigation altogether. This is consistent with the primary purpose of absolute immunity: to minimize, if not altogether eliminate, the costs of defending, including inconvenience to the defendant.
As a practical matter, this means that the plaintiff bears the costs of the constitutional deprivation. Those costs are not shifted to the absolutely immune defendant even if he or she violated the plaintiff’s constitutional rights.
The Functional Approach
It is important also to be aware that the Supreme Court has taken a functional approach to individual immunities. It has emphasized that absolute immunity is intended not to protect the individuals themselves but rather the functions they perform. Forrester v. White, 484 U.S. 219 (1988). For example, a legislator who acts in an administrative capacity by allegedly firing an aide unconstitutionally will not be protected by absolute immunity because the challenged conduct is not legislative in nature.
More to Come on Legislative, Judicial and Prosecutorial Immunity
On absolute immunity generally, see Chapter 7 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2023-23 ed.)(West/Westlaw).
Supreme Court Grants Certiorari in Attorney’s Fees/Preliminary Injunction Case: Lackey v. Holcomb
The Supreme Court recently granted certiorari in Lackey v. Holcomb, 145 S. Ct. – (4-22-24)(No. 23-621), to deal with the following Questions Presented:
(1) Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the merits under 42 U.S.C. § 1988; and (2) Whether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under 42 U.S.C. § 1988.
In Lackey, the § 1983 plaintiffs challenged a Virginia statute that required the automatic suspension of driver’s licenses when drivers fail to pay certain court fines and fees. Following an extensive hearing with briefing and argument, the district court granted the plaintiffs a preliminary injunction. This was not appealed by the state defendants but, shortly before bench trial in August 2019, the Virginia legislature suspended the enforcement of the statute for a year, and the defendants got the district court to stay the case until the next legislative session over the plaintiffs’ “strenuous objections”. Thereafter, the legislature repealed the challenged statute, the district court dismissed the action as moot and, applying established Fourth Circuit precedent, it denied plaintiffs’ attorney’s fees.
Reversing with four judges dissenting, the Fourth Circuit en banc vacated the district court’s denial of fees and rejected its earlier “bright-line approach” holding that “a plaintiff who wins a preliminary injunction but—for whatever reason—does not secure a final judgment may never qualify as a prevailing party.” Instead, it announced its test going forward: “When a preliminary injunction provides the plaintiff concrete, irreversible relief on the merits of her claim and becomes moot before final judgment because no further court-ordered assistance proves necessary, the subsequent mootness of the case does not preclude an award of attorney’s fees.”
Lackey will address the unresolved question in Sole v. Wyner, 551 U.S. 74 (2007). Here, the Supreme Court unanimously held that “a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, [does not] qualify as a ‘prevailing party’ within the compass of §1988(b).” The Court in Sole emphasized that prevailing party status requires a material alteration of the legal relationship of the parties pursuant to Texas State Teachers Ass’n v. Garland Independent School Dist., 489 U.S. 782 (1989), and that was not present in this case. It was not sufficient for prevailing party status that the plaintiff obtained a preliminary injunction after a hasty and abbreviated hearing that allowed her to display an antiwar artwork in a Florida state park: the state court had thereafter held after a full hearing that she was not entitled as a First Amendment matter to a permanent injunction against the enforcement of the state statute setting out the “Bathing Suit Rule” applicable to state parks. “Prevailing party status … does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.” 127 S. Ct. at 2188 (footnote omitted). However, the Court went on to observe that it was expressing no view of a case in which a plaintiff obtains a preliminary injunction and there is no final decision on the merits of a claim for permanent injunction. This is the issue Lackey will consider.
Lackey will be argued and decided in the Court’s 2024 Term.
Comment
The Court should affirm the Fourth Circuit under the facts of this case: there was a full hearing with briefing and oral argument that preceded the district court’s grant of the preliminary injunction; this grant was not appealed by the defendants, although it could have been. Furthermore, as a direct result of the preliminary injunction, the Virginia legislature suspended the enforcement of the statute for a year, the case was stayed over plaintiffs’ objections and the statute ultimately repealed, all of which effectively prevented the plaintiffs from proceeding to final judgment and was motivated by the defense’s strategy to create mootness. For these reasons, the legal relationship of the parties was materially altered in favor of the plaintiffs who were thus prevailing parties.
Sole, Texas State Teachers Ass’n and Lackey, and attorney’s fees in general, are all addressed in Chapter 10 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).
Rule 11 Sanctions Against Attorneys for Filing A Frivolous Election Conspiracy Lawsuit and for Persisting in Making Frivolous Arguments in a Section 1983 Case
Two recent circuit court decisions, one from the Sixth Circuit and the other from the Fifth, are examples of the relatively few situations in which attorneys are sanctioned under Rule 11 of the Federal Rules of Civil Procedure..
Rule 11 Sanctions
Recall that Rule 11 imposes sanctions, including expenses and attorney’s fees, on attorneys and clients alike for its violation. In relevant part, Rule 11 requires attorneys to sign all pleadings, motions and other papers and thereby certify that the signer has read the document, has conducted a reasonable inquiry into the facts and the law, is satisfied that the document is well-grounded in both, and is not acting with an improper motive. Specifically, the facts must “have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” The legal position must be “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.”
Election Conspiracy in the Sixth Circuit
In King v. Whitmer, 71 F.4th 511 (6th Cir. 2023), three Michigan voters and three Republican nominees to the electoral college unsuccessfully sued in an attempt to overturn the results of Michigan’s presidential election which went for Joe Biden. The district court, finding the entire complaint sanctionable, awarded sanctions against the plaintiffs’ attorneys jointly and severally under Rule 11 and 28 U.S.C. § 1927.
On appeal, the Sixth Circuit, modifying the district court’s sanctions, upheld only those sanctions relating to allegations respecting a Venezuelan conspiracy and Dominion voting machines: those claims were entirely baseless. The same was true for the allegations regarding the ease with which Dominion’s voting systems could be hacked: plaintiffs’ own exhibits refuted these allegations. Also, a reasonable pre-filing investigation would have shown that other allegations about the use of Dominion in certain counties were baseless. Further, allegations regarding an expert’s report misrepresented that report, and that was sanctionable as well. Finally, “the affidavits cited in the complaint did not afford counsel a credible basis to allege that ‘tens of thousands’ of fraudulent votes were counted…”
The Sixth Circuit then awarded the City of Detroit $132,810.62 in fees and awarded various state defendants $19,639.75 in fees.
Persisting in Frivolous Arguments in the Fifth Circuit
In Cordova v. University Hospital & Clinics, 2024 WL 356464, *5 (5th Cir. 2024), the Fifth Circuit affirmed the district court’s imposition of Rule 11 sanctions of $29,100 against an attorney in a § 1983 case involving the non-renewal of her client’s residency, and rejected her First Amendment contention that she was making novel arguments.
The Fifth Circuit explained:
“[She] was not sanctioned because her novel arguments were frivolous, but because it was frivolous to continue to make the rejected novel arguments. … The [district court] on three separate occasions ruled that the underlying claims were meritless, regardless of who employed [the plaintiff]. Therefore, continuing to argue who was [plaintiff’s] actual employer would not change that.” In addition, the defendants were entitled to damages under Federal App. Rule 38 because this appeal itself was frivolous.
Comment
Sanctions against attorneys under Rule 11 are discussed in §§1:47 and 10:52 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).
An Updated Section 1983 Primer (6): Claim and Issue Preclusion
In honor of the 40th Annual Conference on Section 1983, which was recently held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.
Overview of Preclusion
This post addresses the important practical topic of claim preclusion (res judicata, which concerns claims that were or could have been raised), and issue preclusion (collateral estoppel, which concerns issues that were raised and adjudicated) in section 1983 cases. Preclusion concerns arise in section 1983 federal court litigation when there is a prior final state judicial or administrative proceeding that involved the same parties (or their privies) and implicated (or could have implicated) the same issues.
To what extent may those claims or issues be relitigated in a subsequent section 1983 federal court proceeding? As it turns out, the answer in each case depends, as a matter of federal law, on the forum state’s preclusion law.
1. The Relevance of 28 U.S.C. section 1738
Like statute of limitations issues in section 1983 litigation, preclusion issues involve a mixture of federal and state law. This is because 28 U.S.C. section 1738 requires federal courts to give the same effect to prior state judicial decisions as would the courts of the forum state. Section 1738 is based on the Constitution’s Full Faith and Credit Clause, Art. IV, section 1.
2. The Preclusive Effect of Prior State Criminal Proceedings
(a) Suppose that a defendant in a criminal case makes a Fourth Amendment motion to suppress evidence, which the state court denies, and the defendant is acquitted anyway. The defendant then becomes a section 1983 plaintiff seeking damages against the law enforcement defendants for violating his Fourth Amendment rights. What is the preclusive effect, if any, of that state court decision on the plaintiff’s section 1983 Fourth Amendment claim?
In Allen v. McCurry, 449 U.S. 90 (1980), the seminal section 1983 preclusion case, the Supreme Court declared that section 1738 governed, and that Missouri collateral estoppel law applied to determine the preclusive effect of the state court’s Fourth Amendment decision denying the motion to suppress. I should also note that this would similarly be the case if the state trial court had instead granted the Fourth Amendment-based motion to suppress and the plaintiff sought to use that ruling offensively against the defendants.
(b) What is the preclusive effect, if any, of a criminal defendant’s guilty plea in state court on his subsequent section 1983 Fourth Amendment damages action? In Haring v. Prosise, 462 U.S. 306 (1983), the Court held that the preclusion law of the forum state–here, Virginia–applied, and under that law there was no preclusive effect. In addition, the Court declared that the plaintiff had not waived his Fourth Amendment claim just by pleading guilty.
3. The Preclusive Effect of Prior State Civil Proceedings
Not surprisingly, section 1738 also governs the preclusive effect of a prior state civil proceeding on a subsequent section 1983 federal court proceeding.
(a) Suppose that a discharged employee files a breach of contract action in state court and either wins or loses (it doesn’t matter for present purposes). That employee then files a section 1983 federal court damages action against the same defendants alleging that she was discharged because of her sex or or race. The forum state’s preclusion law would apply, with the result (in most states) that claim preclusion, or res judicata, would altogether bar the section 1983 damages action, because the plaintiff could have raised the section 1983 claim in state court initially. This is the clear import of Migra v. Warren City School District, 465 U.S. 75 (1984).
(b) Suppose now that the same discharged employee first challenged her firing under state law claim in an administrative proceeding, lost there on the ground that the discharge was not impermissibly motivated, and then also lost on judicial appeal from this decision because there was substantial evidence to support the agency’s decision. The employee then files a section 1983 damages action, again alleging a discharge because of her sex or race. May she proceed with her section 1983 damages claim in federal court?
According to the Supreme Court in Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982), the forum state’s preclusion law applies to determine the collateral estoppel effect of the agency determination, upheld on judicial review, that her discharge was not impermissibly motivated. The result (in most states) would be that the federal claim is thereby precluded.
(c) What of a prior state administrative proceeding that has not been judicially reviewed? Does the forum state’s preclusion law similarly apply? After all, section 1738 applies on its face only to prior state court judicial proceedings. Nevertheless, as the Supreme Court, in University of Tennessee v. Elliott, 478 U.S. 788 (1986), held as a matter of federal common law the forum state’s preclusion law applies to administrative findings of fact despite the technical non-applicability of section 1738.
(d) Finally, what of prior unreviewed state arbitration proceedings? In McDonald v. City of West Branch, 466 U.S. 284 (1984), the Supreme Court rejected any preclusive effect of arbitral findings of fact on subsequent section 1983 federal court claims. The Court so ruled as a matter of federal law.
Comment
It should be obvious that the preclusion law of section 1983 litigation varies from state to state and is both quite complicated and very important as a practical matter. But even though there is no national uniformity on preclusion law and section 1983, it is not unfair to expect attorneys to know the preclusion law of their forum state.
I cover this topic much more comprehensively in Chapter 9 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2023-24 ed.)(West/Westlaw).
An Updated Section 1983 Primer (5): Statutes of Limitation, Accrual and Tolling
In honor of the 40th Annual Conference on Section 1983, to be held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.
Below is the fifth–and one of the most widely viewed–of these posts. I hope you find it to be informative.
Introduction
This is the fifth of my section 1983 primers. This post addresses the important, and threshold, question of statutes of limitations, accrual and tolling in section 1983 cases.
The Basics
Because section 1983 does not have its own statute of limitations, it is “deficient” within the meaning of 42 U.S.C. section 1988. Under the provisions of that statute, where federal law is deficient, federal courts are to apply the relevant law of the forum state, unless the relevant law of the forum state is inconsistent with federal law or policy or discriminates against federal claims.
As a consequence of section 1988, statutes of limitations issues arising in section 1983 cases constitute an unusual amalgam of federal and state law regarding the choice of the proper limitations period, accrual and tolling.
Choosing the proper limitations period
The leading case is Wilson v. Garcia, 471 U.S. 261 (1985), which held that the forum state’s personal injury statute of limitations governs. This means that there is no national uniformity.
If the forum state has more than one possibly applicable personal injury statute of limitations, then the state’s residual or general statute of limitations governs. Owens v. Okure, 488 U.S. 235 (1989).
Accrual
When a section 1983 claim accrues–when all of the elements of the claim are present–is a matter of federal law. The governing accrual rule for section 1983 is the medical malpractice discovery accrual rule, meaning that the statute of limitations for a section 1983 claim begins to run when the plaintiff knew or had reason to know of the injury. See United States v. Kubrick, 444 U.S. 111 (1979).
In the employment setting, it is the date of the challenged conduct, such as the alleged racial or sex discrimination, that begins the running of the applicable limitations period, not necessarily when the employee is no longer employed. Delaware State College v. Ricks, 449 U.S. 250 (1980).
There is a special, and quite complicated, accrual rule, set out in Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action. In such cases, the section 1983 claim does not accrue until the underlying conviction is overturned or vacated. See also the important 2007 decision in Wallace v. Kato, 549 U.S. 384 (2007), dealing with Heck, accrual and section 1983 false arrest/imprisonment claims.
More recently, in McDonough v. Smith, 139 S. Ct. 2149 (2019), the Supreme Court ruled that a section 1983 due process claim of fabrication of evidence claim resulting in criminal prosecution and trial accrues when the plaintiff is acquitted on all charges. And in 2022, the Supreme Court held that a plaintiff’s section 1983 Fourth Amendment malicious prosecution claim accrues when there is a favorable termination of the criminal charges against the plaintiff, even if that termination does not affirmatively demonstrate the plaintiff’s innocence. Thompson v. Clark, 142 S. Ct. 1332 (2022).
Tolling
In contrast to accrual, whether a section 1983 claim is tolled is a matter of state law. The Court so held in Board of Regents v. Tomanio, 446 U.S. 478 (1980), with respect to individual actions, and in Chardon v. Fumero Soto, 462 U.S. 650 (1983), with respect to class actions, a case that I argued in the Supreme Court on behalf of the victorious plaintiffs.
A state savings statute is a particular kind of tolling statute that stops the running of the applicable limitations period for claims timely filed but subsequently dismissed for improper venue, for want of jurisdiction or for other reasons not related to the merits.
Comment
There is so much about statutes of limitations that cannot even be hinted at here. For a comprehensive discussion of this technical subject, see NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 9 (2023-24 edition)(CIVLIBLIT on Westlaw).
Know Your Constitution (4)(Updated): Equal Protection
(Author’s note. Over ten years ago I published a series of posts on different constitutional topics entitled “Know Your Constitution.” I believe that this series, intended for the general public, law students and attorneys, merits re-publishing in these perilous and divisive times when constitutional norms are being challenged at every level. So that’s what I’m doing, one post at a time, with revisions and updates where appropriate.)
This is the fourth in a series of posts about the Constitution that is intended for a general audience. Previous posts introduced the Constitution and then rebutted some commonly held myths about the Constitution.
Background
The equal protection clause of the Fourteenth Amendment prohibits states and local governments from denying persons the equal protection of the laws: similarly situated persons must be treated in the same way, which is a kind of justice principle. The equal protection clause also applies to the federal government through the Fifth Amendment‘s due process clause.
The equal protection clause was originally intended to protect newly freed blacks from being treated disadvantageously because of the their race. However, it is written in broader terms and covers discrimination against persons in general. But this does not mean that whenever government discriminates or classifies, it violates equal protection. Governments could not function if they could not draw lines or classify when they legislate.
The Four Equal Protection Tests
Over the years, the Supreme Court has developed four different tests that it uses, depending on the kind of government discrimination or classification involved.
Strict Scrutiny. When government discriminates or classifies on grounds of race or ethnic origin, the Court uses “strict scrutiny.” This means that in order for the challenged discrimination to be upheld, the government must overcome a heavy burden. It must show that the discrimination promotes a compelling government interest and is narrowly tailored to achieve that interest. Under this test, racial classifications that disadvantage racial minorities never pass strict scrutiny, while those that advantaged racial minorities and disadvantaged a racial majority (as in affirmative action) previously survived strict scrutiny, but after the Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 143 S. Ct. 2141 (2023), this is no longer the case for college admissions.
Intermediate Level Scrutiny. When government discriminates or classifies on the basis of sex or gender, the Court uses “intermediate level scrutiny.” This is not as burdensome on government as strict scrutiny but it does have “bite”: Here, the government must show that the discrimination promotes an important government interest and is substantially related to achieving that interest. In these cases, the Court is sensitive to the improper use of sexual stereotypes.
Rational Basis Review. When government discriminates or classifies in connection with economic regulation and business, then the Court uses “rational basis review.” This kind of equal protection review is very deferential to government. When applied, rational basis review almost invariably results in a determination that the government classification is constitutional.
Actual Purpose Review. This kind of review is a relatively recent arrival on the scene. The Supreme Court announced several decades ago that the equal protection clause prohibits government from discriminating against persons just because of who they are. The Court used this principle some years ago, in Romer v. Evans, to strike down a Colorado constitutional amendment that disadvantaged homosexuals: it found that the amendment was actually motivated by animus toward them.
Thus far, actual purpose review has been used sparingly by the Supreme Court. However, it played a role in Obergefell v. Hodges, 576 U.S. 644 (2015), the blockbuster same-sex marriage decision.
An Updated Section 1983 Primer (4): Cause in Fact and the Mt. Healthy Burden-Shift Rule
In honor of the 40th Annual Conference on Section 1983, to be held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.
Below is the fourth of these posts. I hope you find it to be informative.
Introduction
As in ordinary tort law, a person who is sued under section 1983 for damages must be shown to be responsible in order to held liable. In other words, that person must have caused the plaintiff’s constitutional deprivation. But in certain section 1983 cases involving impermissible motivation, such as public employee equal protection and First Amendment cases, there are complications arising out of the burden-shift rule of Mt. Healthy Bd. of Education v. Doyle, 429 U.S. 274 (1977).
Typical Fact Pattern
Suppose a public employee is discharged and believes the discharge was impermissibly motivated either because of race (equal protection) or because what he or she said (First Amendment). It turns out that even if the plaintiff can prove this, he or she will not necessarily win on the merits and recover damages because of the Mt. Healthy burden-shift rule.
How the Mt. Healthy Burden-Shift Rule Works
Under Mt. Healthy, (1) the plaintiff has the burden of proving by a preponderance of the evidence that the impermissible motive was a substantial factor (not the but-for cause or the sole cause) for the discharge. Once the plaintiff does this, the plaintiff has made out a prima facie case and will prevail on the merits (2) unless the defendant can prove by a preponderance of the evidence that there was a permissible factor–such as insubordination, incompetence or the like–that also played a role in the discharge and–here’s the key– (3) the plaintiff would have been discharged anyway even in the absence of the impermissible motive.
This is the Mt. Healthy burden-shift that, if carried, means that the defendant is not liable on the merits: no constitutional violation, no damages and no attorney’s fees. It is a powerful affirmative defense.
The Scope of the Mt. Healthy Burden-Shift Rule
The Mt. Healthy burden-shift applies in mixed-motive cases. It is inapplicable where the plaintiff proves by a preponderance of the evidence that the impermissible motive was the sole cause for the discharge.
Significantly, it is also inapplicable in after-acquired evidence cases. Suppose, for example, that in the course of section 1983 litigation involving allegations of unconstitutional discharge, the defendant discovers that the plaintiff lied on his or her employment application and can demonstrate that the plaintiff would therefore not have been hired in the first place. This is not a Mt. Healthy burden-shift case because it is not a mixed-motive case. The defendant’s liability for the constitutional deprivation is unaffected.
This is not to say, though, that the defendant’s after-acquired evidence is irrelevant: it goes to the extent of recoverable damages. The defendant is liable for the damages–lost pay, for example–resulting from the unconstitutional discharge up to the date of discovery of this evidence but not for any such damages thereafter. The Supreme Court made this clear in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995).
Comment
Note that the generally applicable cause in fact rule in section 1983 cases and most other civil rights cases remains the but-for rule. The Supreme Court made this clear in Comcast Corp. v. National Ass’n of African American-Ownded Media, 139 S. Ct. 2693 (2020), a section 1981 case.
See generally on cause in fact, sections 3:110-3:114 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).
When Public Officials Post or Block on Social Media: The Supreme Court Weighs In on State Action
A variation of what I call the converse of the typical state action question arises when public officials post or block on social media. The Supreme Court recently addressed this issue in two cases in which it granted certiorari and vacated and remanded.
In one, Lindke v. Freed, 143 S. Ct. 1780 (2023), granting certiorari in Lindke v. Freed, 37 F.4th 1199 (6th Cir. 2022), vacating and remanding, 144 S. Ct. – (2024), the Question Presented was: “Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.”
In the other, O’Connor-Ratcliff v. Garnier, 143 S. Ct. 1779 (2023), granting certiorari in Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 405 Ed. Law Rep. 715 (9th Cir. 2022), vacating and remanding, 144 S. Ct. – (2024)(per curiam, the Question Presented was: “Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social-media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.”
In Lindke, the Sixth Circuit ruled that a city manager who used his Facebook page for administrative directives and for explaining his Covid-19 policies, but who also posted as a father and husband, was not a state actor when he deleted the plaintiff’s critical comments from his page and “blocked” him as well, thereby keeping the plaintiff from commenting on the page and its posts. The Sixth Circuit found that the city manager maintained the Facebook page in his personal capacity: under its “state-official” test, which it said was a version of the Supreme Court’s nexus test, the Facebook page did not derive from defendant’s duties as city manager—it did not belong to the office of city manager. Further, it did not depend on his state authority. The Sixth Circuit observed that its approach was different from that of some other circuits which focused on a page’s appearance or purpose: “we focus on the actor’s official duties and use of government resources or state employees.”
The Supreme Court, in a unanimous opinion by Justice Barrett, vacated in Lindke and remanded. Observing that in cases like this it is often difficult to tell whether speech is official or private, it emphasized that the plaintiff must show that the city manager (1) had actual authority to speak for the city and (2) purported to exercise that authority in the relevant posts. It is the source of the power that controls, and this must be ascertained on a case-by-case basis. In addition, the Court cautioned that a public official might post job-related information for personal reasons. “[I]t is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” After noting the difference between deleting and blocking, and warning about the dangers of “mixed use” social media accounts, the Court concluded: “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”
In O’Connor-Ratcliff, members of a school district’s board of trustees, who used social media to communicate with constituents and parents about public issues and board matters, blocked the plaintiff parents entirely from defendants’ social media pages because of the plaintiffs’ repeated criticisms of the trustees and the board. The Ninth Circuit ruled that they acted under color of law. It declared: “[A] state official violates the First Amendment by creating a publicly accessible social media page related to his or her official duties and then blocking certain members of the public from that page because of the nature of their comments.” There was a clear nexus between the trustees’ use of social media and their official positions. The Ninth Circuit observed that it was following the analysis of the Second, Fourth and Eighth Circuits in emphasizing the defendants’ use of social media as “an organ of official business.”
Again, the Supreme Court vacated and remanded. In a per curiam opinion, it explained that on remand the Ninth Circuit should apply the Court’s approach in Lindke: (1) did the trustees have actual authority to speak for the school district and (2) did they purport to exercise that authority in their posts.
Note that the Court in Lindke and O-Connor-Ratcliff did not itself apply its two-part approach to the cases before it, as it could (and perhaps should) have done to provide guidance to the circuits, but instead remanded. Note also that the Court indicated that the inquiry into actual authority should be based not only on formal statutory law but also on “custom” and “usage” per the color of law language of § 1983.
On state action, the converse of the typical state action question and color of law generally, see Ch. 2 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).
Schedule for 40th Annual Section 1983 Conference: April 18-19, 2024
Here is the schedule for the upcoming in-person Section 1983 Conference. We hope to see you there.
Any questions? Contact either CLE@kentlaw.iit.edu or snahmod@kentlaw.iit.edu.
Day One – April 18, 2024
| 8:45 – 9:00 AM | Welcome and Introduction |
| 9:00 – 10:15 AM | The Section 1983 Claim: Basics |
| Section 1983 and Fourteenth Amendment violations State action and color of law First Amendment retaliatory arrest claims The Second Amendment The Fifth Amendment and Miranda claims The Eighth Amendment Cause in fact and proximate cause “Laws” actions Heck v. Humphrey and existing convictions Due Process Section 1983 malicious prosecution claims A quick look at accrual | |
| Sheldon H. Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law (Program Chair) | |
| 10:15 – 10:30 AM | BREAK |
| 10:30 – 11:45 AM | Municipal Liability |
| Methods of Establishing Monell Liability What’s an Official Policy and Whose Policy is it? Municipal Liability Claims Post-Connick Municipal Liability Absent Individual Liability Impact of Qualified Immunity on Municipal Liability | |
| Karen M. Blum, Professor Emerita and Research Professor of Law,Suffolk University Law School | |
| 11:45 – 1:00 PM | LUNCH (on your own) |
| 1:00 – 2:00 PM | The Fourth Amendment |
| Raff Donelson, Associate Professor of Law, Chicago-Kent College of Law | |
| 2:00 – 3:15 PM | Substantive Due Process |
| Selective Incorporation of the Bill of Rights Protection of Non-Textual Rights from Laws That Interfere with Procreation and Parental Rights Section 1983 Substantive Due Process Claims Brought by Pretrial Detainees, Students, Landowners, and Government Employees | |
| Rosalie B. Levinson, Professor of Law Emerita, Valparaiso University School of Law | |
| 3:15 – 3:30 PM | BREAK |
| 3:30 – 4:45 PM | Attorney’s Fees and Related Ethical Issues |
| Issues in recently decided Supreme Court attorney’s fees cases (changes in law regarding nominal damages and impact on availability of fees; standards controlling awards to prevailing defendants; fees for modest injunctive relief without money damages; how reasonable fee is determined (lodestar) Ethics issues in §1983 cases (including Rule 68 issues, conflicts of interest, frivolous claims) Ethics Learning Objectives: 1) Duty of lawyer to represent unpopular clients and causes, even for little or no fee 2) Duty of lawyer to put client’s interest in seeking largest recovery above risk to attorney of reduction of court-awarded fees if merits result obtained is substantially less than outcome sought 3) The importance of a detailed written fee agreement in order to minimize ethics dilemmas in representing clients in civil rights cases | |
| Gerald M. Birnberg, Founding Partner, Williams, Birnberg & Andersen LLP | |
| 4:45 – 5:45 PM | RECEPTION |
Day Two – April 19, 2024
| 9:00 – 10:15 AM | Section 1983 Remedies: Damages and Prospective Relief |
| Section 1983 litigation has given rise to a number of interesting questions associated with remedies. In this session, we will discuss compensatory and punitive damages, as well as issues related to injunctive relief. | |
| Noah Smith-Drelich, Assistant Professor of Law, Chicago-Kent College of Law | |
| 10:15 – 10:30 AM | BREAK |
| 10:30 – 11:45 AM | Individual Immunities |
| A review of the current law and cutting-edge issues with regard to absolute and qualified immunity, including who possesses absolute immunity and for what tasks, what is the standard for qualified immunity, and what are the issues most frequently litigated with regard to immunities. | |
| Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law University of California Berkeley School of Law | |
| 11:45 – 1:00 PM | LUNCH (on your own) |
| 1:00 – 2:15 PM | The Religion Clauses and Section 1983 |
| History and purposes of the Religion Clauses The Establishment Clause:prayer, religious displays and financial support for private religious education The move to a “history and tradition” test in Establishment Clause cases: Kennedy v. Bremerton School Dist. The Free Exercise Clause: the all-important Smith (peyote) decision, the return to strict scrutiny, the Covid-19 cases and beyond, including Carson v. Makin Congressional response to Smith: RLUIPA | |
| Sheldon H. Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law (Program Chair) | |
| 2:15 – 3:30 PM | The Supreme Court’s Current and Forthcoming Terms |
| A review of the major decisions from October 2022 (including on affirmative action, religious accommodations in employment, and freedom of speech), and October Term 2023 (including on retaliation claims under the Fourth Amendment, freedom of speech, and gun regulation). | |
| Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law University of California Berkeley School of Law |
An Updated Section 1983 Primer (3): Constitutional States of Mind
In honor of the 40th Annual Conference on Section 1983, to be held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.
Below is the third of these posts. I hope you find it to be informative. The next post in this series will deal with cause-in-fact and the Mt. Healthy burden-shift
Introduction
Are there state of mind requirements for the section 1983 cause of action? The answer is NO as a statutory matter and YES as a constitutional matter.
The Background
Recall from my previous post that the Supreme Court stated in Monroe v. Pape, 365 U.S. 167 (1961), that section 1983 is to be interpreted against “the background of tort liability.” What does that mean? One possibility is that there is some sort of state of mind requirement, stemming from section 1983 itself, for the 1983 cause of action. If so, is it negligence, deliberate indifference, intent or something else?
After some confusion in the circuits, the Supreme Court finally put the matter to rest in Parratt v. Taylor, 451 U.S. 527 (1981), when it declared as a statutory matter that there is no state of mind requirement for the section 1983 cause of action.
However, it turns out that there are state of mind requirements for the section 1983 cause of action that are based on the underlying constitutional claim.
Constitutional States of Mind, Variable and Otherwise
Simply put, different constitutional provisions have their own state of mind requirements. Thus, it has been the rule since Washington v. Davis, 426 U.S. 229 (1976), that equal protection violations require purposeful discrimination. There is therefore no such thing as a negligent or deliberately indifferent equal protection violation. Similarly, the Supreme Court declared in Daniels v. Williams, 474 U.S. 327 (1986), that due process violations require an abuse of government power, so that negligence is not sufficient. And Eighth Amendment violations require at least deliberate indifference, according to the Court in Farmer v. Brennan, 511 U.S. 825 (1994).
However, it is a bit more complicated than that: different states of mind may be required under the same constitutional provision where the circumstances are different. I call these variable state of mind requirements. For example, while the general rule in substantive due process cases is that deliberate indifference is required, in high speed police pursuit cases where police have little or no time to deliberate, the state of mind required, as ratcheted up by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833 (1998), is “purpose to cause harm.”
Similarly, while the general rule in prison condition of confinement cases is that the Eighth Amendment requires deliberate indifference in the sense of subjective criminal recklessness, in prison security cases the state of mind required, as ratcheted up by the Supreme Court in Whitley v. Albers, 475 U.S. 312 (1986), is conduct engaged in “maliciously and sadistically for the very purpose of causing harm.”
Why Different Constitutional States of Mind?
At the most superficial level, the Court was engaged in constitutional interpretation when it ruled that equal protection requires purposeful discrimination, that due process requires at least deliberate indifference and that the Eighth Amendment requires at least deliberate indifference in the sense of subjective criminal recklessness. In reality, there is considerably more going on.
First, these state of mind requirements are fault or culpability requirements. The particular constitutional provision implicated in a section 1983 case, which includes its state of mind requirement, constitutes the constitutional norm applicable to the defendant’s conduct. Without this kind of fault, there can be no section 1983 cause of action.
Second, these state of mind requirements can serve functions other than setting out the applicable fault or constitutional norm. Notice how the scope of section 1983 liability decreases the higher or more culpable the applicable state of mind requirement. Proving purpose to do harm in a high speed police pursuit case, for example, is much more difficult for plaintiffs than proving deliberate indifference. In this way, the need to compensate for harm caused is reduced .
Perhaps more important, higher state of mind requirements reduce what the Supreme Court increasingly views as the improper chilling effect of potential damages liability on independent decision-making by government officials. Put differently, the Supreme Court is increasingly concerned with over-deterrence.
While this concern with over-deterrence is most obvious in the individual immunities context (about which I have posted a great deal on this blog), it plays a major role in determining applicable constitutional states of mind and is therefore frequently determinative of the scope of the section 1983 cause of action as well.
Nahmod Law 