Archive for the ‘Uncategorized’ Category
Supreme Court Rules Homelessness Not Protected By Eighth Amendment: City of Grants Pass v. Johnson
Suppose §1983 Eighth Amendment actions are brought by non-prisoners such as the homeless who allege that they are punished either because of their status–see Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), or because of their involuntary acts–see Powell v. Texas., 392 U.S. 514, 88 S. Ct. 2145, 20 L. Ed. 2d 1254 (1968)?
After an extensive analysis of these and other decisions, the Ninth Circuit held almost twenty years ago that the Eighth Amendment prohibits the enforcement of an ordinance criminalizing sitting, lying, or sleeping on public streets at all times and in all places within the city limits of Los Angeles, as applied to homeless persons between 9 p.m. and 6:30 a.m., given the unavailability of shelters in the city. The court characterized the prohibited conduct as “an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.” Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), opinion vacated, 505 F.3d 1006 (9th Cir. 2007). Judge Rymer dissented, 444 F.3d at 1138, arguing, among other things, that the Los Angeles ordinance punished conduct, not status.
Subsequently, the Ninth Circuit, quoting Jones, reaffirmed in Martin v. City of Boise, 920 F.3d 584, 616 (9th Cir. 2019), that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” But Martin also clarified that a city is not required to provide “sufficient shelter for the homeless.” Then, in Johnson v. City of Grants Pass, 50 F.4th 787, 113 Fed. R. Serv. 3d 1716 (9th Cir. 2022), amended and superseded on denial of reh’g en banc, 2023 WL 4382635 (9th Cir. 2023), rev’d sub nom, City of Grants Pass v. Johnson, 144 S. Ct. – (2024), the Ninth Circuit followed and applied Martin to a putative class action suit brought by homeless persons challenging the constitutionality of certain city ordinances, including no-camping provisions.
Judge Collins dissented, 50 F.4th at 814, arguing that the majority’s decision was “egregiously wrong” because, even assuming Martin was still good law, the majority misread and misapplied Martin. Further, the majority disregarded class-certification principles. Thereafter, as noted, the Ninth Circuit amended the majority’s opinion when it denied rehearing en banc. This denial was accompanied by a dissent by Judge Collins, statements of various judges respecting the denial of rehearing en banc and opinions dissenting from the denial of rehearing en banc, including one by Judge Bress, joined by eleven other judges.
Finally, as indicated above, the Supreme Court granted certiorari, reversed the Ninth Circuit and answered in the negative the following Question Presented: “Whether the enforcement of generally applicable laws regulating camping on public property constitutes ‘cruel and unusual punishment.’” prohibited by the Eighth Amendment.”
In an opinion by Justice Gorsuch, the Court, after noting the complexity of the homelessness crisis, emphasized that the Eighth Amendment was directed at the method or kind of punishment imposed by government for the violation of criminal statutes, which made it a “poor foundation” for the plaintiffs in this case. The criminal punishments imposed for violating the no-camping provisions were relatively mild. The Court also distinguished Robinson v. California as dealing with status and what a state may criminalize in the first place, unlike this case which involved conduct—such as camping on public property. Further, the Court refused to extend Robinson to this situation on the rationale that the criminalized acts were involuntary: Powell v. Texas, involving drunkenness, had already rejected this argument. In essence, homelessness was a problem to be addressed by politically accountable governments, not by the judiciary using the Eighth Amendment.
Justice Thomas concurred, 144 S. Ct. at –. Justice Sotomayor, joined by Justices Kagan and Jackson, dissented. 144 S. Ct. at –. They contended that the rationale of Robinson squarely applied here because Grants Pass had criminalized the status of being homeless in violation of the Eighth Amendment. The Court’s reasoning—that Grants Pass had criminalized conduct, not “pure status”—was unpersuasive because sleeping is an essential bodily function.
Comment
The deep issue here is whether and to what extent §1983 Eighth Amendment litigation of this kind can realistically bring about any meaningful reforms regarding homelessness. Ultimately, the Supreme Court decided–soundly in my view–that the remedies are political in nature, not judicial. The Eighth Amendment is simply not a good fit, as the Court put it. In essence, the plaintiffs’ Eighth Amendment claims are DeShaney affirmative duty claims in disguise.
See generally, on §1983 Eighth Amendment claims, §§ 3:28-3:36 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 edition)(West/Westlaw)
Supreme Court Adopts Charge-Specific Rule for Section 1983 Fourth Amendment Malicious Prosecution Claims: Chiaverini v. City of Napoleon
Where a § 1983 plaintiff asserts a Fourth Amendment malicious prosecution claim for damages against law enforcement officers, such a claim may be viable where the plaintiff alleges a seizure, the absence of probable cause, malice (presumed by the absence of probable cause) and favorable termination. See Manuel v. City of Joliet, 580 U.S. 357 (2017), and Thompson v. Clark, 142 S. Ct. 1332 (2022).
The Issues
Suppose, though, that a §1983 plaintiff was arrested and prosecuted on three criminal charges and that there was a favorable termination of those three charges by way of dismissal. However, it turns out that there was probable cause to arrest and prosecute on two of those charges but not the third. Can the § 1983 Fourth Amendment claim go forward on the third charge under the “charge-specific” rule? Or is that claim barred under the “any-crime” rule because of the presence of probable cause for the other two charges?
The Chiaverini Decision
In Chiaverini v. City of Napolelon, 144 S. Ct. — (2024), the Supreme Court, reversing the Sixth Circuit, answered that the § 1983 Fourth Amendment malicious prosecution claim can go forward on the third charge. In adopting the charge-specific rule, it resolved a split in the circuits because the Second, Third and Eleventh Circuits, unlike the Sixth Circuit, had previously adopted the charge-specific rule.
In Chiaverini, the Sixth Circuit ruled, based on its circuit precedent supporting the any-crime rule, that because probable cause existed to support the plaintiff’s detention and prosecution on two of the criminal charges, receiving stolen property and a license violation (both misdemeanors), the allegedly meritless charge for which probable cause did not exist, money laundering (a felony), did not change the nature of the seizure. For this reason, the Sixth Circuit concluded, the plaintiff’s Fourth Amendment malicious prosecution claim based on the money laundering charge could not go forward.
The Supreme Court reversed in an opinion by Justice Kagan. She noted that the parties now agreed on appeal that there was no “flat bar,” contrary to what the Sixth Circuit had wrongfully decided. Instead, the charge-specific rule was the correct one for several reasons. First, it followed from established Fourth Amendment law: an invalid charge can cause a detention either to start or continue, even where a valid charge has also been brought. And second, it also followed from the common law principles of malicious prosecution in 1871 when § 1983 was enacted, as demonstrated by cases and treatises from that period.
The Court then went on to address what the parties currently disagreed on: the appropriate causation test under the charge-specific rule. The plaintiff in Chiaverini argued for a broad causation test under which the warrant that a judge issues where both valid and invalid charges are brought is “irretrievably tainted; so any detention depending on the warrant is the result of the invalid charge.” The United States as amicus curiae argued for a stricter but-for causation test to determine whether the invalid charge would have caused the detention, even apart from the valid charge. The defendants in Chiaverini argued for an even stricter test: whether the judge could have legally authorized the detention, regardless of whether he would have. Ultimately, the Court did not decide on the appropriate causation test, instead remanding to the lower courts.
The Dissents
Justice Thomas, joined by Justice Alito, dissented. They rejected the Court’s decision in Thompson v. Clark which declared that the appropriate analog for a § 1983 Fourth Amendment claim of this kind is malicious prosecution. More specifically, they forthrightly argued that “a malicious prosecution claim may not be brought under the Fourth Amendment.” Justice Gorsuch also dissented, accusing the Court of “doubling down on a new tort of its own invention–what it calls a ‘Fourth Amendment malicious-prosecution’ cause of action.” He suggested that the Fourteenth Amendment could provide the “constitutional hook” for § 1983 claims based on malicious use of process, even though such a procedural due process approach would generate its own set of problems.
Comments
The Court’s decision in Chiaverini is sound with regard to § 1983 statutory interpretation and the “background of tort liability.” As the Court observed, the common law of malicious prosecution in 1871 (when § 1983 was enacted), as set out in the case law and treatises of that period, demonstrated that the charge-specific approach was the correct one.
The Court’s decision is also sound as a matter of policy. Under the any-crime rule a police officer could protect himself or herself from a § 1983 Fourth Amendment malicious prosecution claim simply by adding a relatively minor criminal charge for which there was probable cause to a serious criminal charge for there was no probable cause. This would undermine police officer accountability.
Moreover, in support of the charge-specific rule, one might point out that every § 1983 Fourth Amendment malicious prosecution claim, even one brought in the same case with other § 1983 malicious prosecution claims, raises a separate constitutional violation issue which is ordinarily analyzed independently of the others. Along similar lines, every such claim is subject to a separate qualified immunity inquiry into clearly settled law.
Finally, consider the proper causation test, discussed but not resolved by the Court in Chiaverini. In my view, the but-for causation test is the proper test. Thus, under the charge-specific rule, the plaintiff in a § 1983 Fourth Amendment malicious prosecution case involving more than one criminal charge has the burden of pleading and proving that the baseless charge was the cause in fact (and proximate cause) of particular damages, and those damages must be separate and distinct from the damages resulting from the criminal charge or charges based on probable cause. In some situations this may prove to be complicated. On the other hand, there is much § 1983 litigation brought involving different constitutional violations alleged in the same cases: sorting out the damages connected to each of the claims in such situations has not proved to be insurmountable for judges and juries.
Despite the three dissents in Chiaverini, it is fair to say that § 1983 Fourth Amendment malicious prosecution claims are here to stay.
The Supreme Court Rejects a Too-Narrow Nieves First Amendment Retaliation Claims Exception: Gonzalez v. Trevino
On June 20, 2024, the Supreme Court handed down Gonzalez v. Trevino, 144 S. Ct. — (2024), reversing 42 F.4th 487 (5th Cir. 2022), a § 1983 First Amendment retaliatory arrest case involving the meaning of the “objective evidence” exception of Nieves v. Bartlett, 139 S. Ct. 1715 (2019). Under this “narrow” exception, a First Amendment retaliatory arrest plaintiff has the opportunity to show that, even where there was probable cause to arrest (ordinarily a complete defense to such a claim), this is not a defense if the plaintiff can show through objective evidence that he or she was arrested when other similarly situated persons who did not engage in protected speech were not.
In Gonzalez, the plaintiff, a former city council member, alleged that the individual defendants arrested her for illegally removing a government record in retaliation for the exercise of her First Amendment rights. Because the plaintiff conceded there was probable cause for the arrest, and because the plaintiff (according to the Fifth Circuit) did not introduce comparative objective evidence showing that otherwise similarly situated persons who did not engage in the same protected speech were not arrested, the Fifth Circuit affirmed the dismissal of her § 1983 First Amendment retaliation claim. She did not fit within the exception set out in Nieves even though, after reviewing “the past decade’s misdemeanor and felony data for [the county, where the city was located] … her review had found that the Texas anti-tampering statute had never been used in the county ‘to criminally charge someone for trying to steal a nonbinding or expressive document. … [Her] search turned up 215 felony indictments, and she characterized the typical indictment as involving ‘accusations or either using or making fake government identification documents.'” 144 S. Ct. at –.
Judge Oldham dissented in the Fifth Circuit, 42 F.4th at 495, arguing that the plaintiff stated a § 1983 First Amendment retaliation claim after Nieves even though there was probable cause: Nieves did not require comparative evidence (often difficult if not impossible to obtain), only objective evidence.
The Supreme Court reversed and remanded in a per curiam opinion, ruling that the Fifth Circuit did not properly apply the principles of Nieves. It declared that the Fifth Circuit took “an overly cramped view of Nieves. … [T]he demand for virtually identical and indentifiable comparators goes too far.” The Court observed that the plaintiff’s evidence “that no one has ever been arrested to engaging in a certain kind of conduct … makes it more likely that an officer has declined to arrest someone for engaging in such conduct in the past.”
The Court in Gonzaelz expressly declined to decide the plaintiff’s other contention that the Nieves no-probable cause rule applies only to First Amendment retaliatory arrest claims based on split-second arrests, and not based on deliberative arrests.
Justice Alito concurred in a lengthy opinion. 144 S. Ct. –. He agreed that strict comparator evidence was not required in this case. But he also went on to address and reject the plaintiff’s argument regarding the applicability of Nieves only to split-second arrests and not to deliberative ones. Justice Kavanaugh also concurred, noting that in his view this case was not about the Nieves exception but instead about probable cause as to mens rea rather than conduct-based comparisons. 144 S. Ct. –.
Justice Jackson, joined by Justice Sotomayor, concurring, pointed out that other types of objective evidence such as onerous arrest procedures, timing and false documentation may be used, in addition to surveys, to show impermissible First Amendment retaliation. Finally, Justice Thomas dissented, 144 S. Ct. –, arguing that the Court improperly expanded the Nieves exception. “I would adhere to the only rule grounded in history: Probable cause defeats a retaliatory arrest claim.”
Comments
Nieves, as noted earlier, held that a §1983 plaintiff alleging that he or she was arrested because of the exercise of First Amendment rights has the burden of pleading and proving the absence of probable cause for the arrest. I criticized Nieves in an earlier post for mangling §1983 and the First Amendment in order to protect law enforcement. See https://nahmodlaw.com/2019/06/04/nieves-v-bartlett-and-retaliatory-arrests-protecting-law-enforcement-at-the-expense-of-the-first-amendment-and-section-1983/. I also, severely criticize Nieves and its reasoning at §3:13 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/ Westlaw).
However, I confess error because I incorrectly predicted that the Court in Gonzalez would continue to make it quite difficult for §1983 plaintiffs in such cases to prevail. Specifically, I predicted that the Court would affirm the Fifth Circuit in Gonzalez and insist on the need for comparative evidence, just as the Court and the circuits do in class-of-one equal protection cases. Instead, to my surprise the Court soundly articulated the evidentiary flexibility necessary to allow § 1983 First Amendment retaliation plaintiffs to carry their difficult burden of overcoming the “narrow” Nieves exception.
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).
Nahmod Law 