Archive for the ‘Uncategorized’ Category
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.
An Updated Section 1983 Primer(2): The Seminal Decision in Monroe v. Pape
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 second of these posts. I hope you find it to be informative. The next post in this series will deal with the important but somewhat confusing topic of constitutional states of mind.
The Seminal Decision: Monroe v. Pape, 365 U.S. 167 (1961)
This sixty-three year old decision is where section 1983, enacted long ago in 1871, first had life breathed into it. The themes it announced continue to be important to this day.
Monroe involved a plaintiff’s allegations that police officers entered his home without warning and forced the occupants to stand naked while the entire house was ransacked. The plaintiff was thereafter arrested but released without being charged. According to the plaintiff, the police officers violated his Fourth (and Fourteenth) Amendment rights and were personally liable to him for damages under section 1983.
In response, the officers made three arguments, all of which the Court rejected.
The First Defense Argument: “Chutzpa” and Color of Law
The officers’ first argument was one that I have elsewhere characterized as “chutzpa” (meaning “lots of nerve”). Focusing on section 1983’s color of law requirement, they maintained that they did not act under color of law because they allegedly violated the Illinois constitution and much statutory and common law. In their view, section 1983 defendants could only be liable for federal constitutional violations where they acted in a manner consistent with state law. For this reason, the officers did not act under color of law and were not liable for damages under section 1983.
The Court, in an opinion by Justice Douglas, responded by saying that section 1983’s statutory color of law requirement was essentially the same as the Fourteenth Amendment’s state action requirement: once there was state action, there was color of law. (Justice Frankfurter dissented on this issue). And since in this case it was clear that the plaintiff alleged an abuse of state law and power that violated the plaintiff’s Fourth Amendment rights, state action was present. It followed from this that the plaintiff properly alleged acts under color of law. To put it another way, the Court said that the scope of section 1983 was as broad as the scope of the Fourteenth Amendment.
This turned out to be very significant as the scope of the Fourteenth Amendment expanded, by the process of incorporation, to include most of the provisions of the Bill of Rights.
The Second Defense Argument: State of Mind and Specific Intent
The officers next argued that they were not liable under section 1983 because the plaintiff did not allege that they specifically and knowingly intended to violate his Fourth Amendment rights. Disagreeing, the Court interpreted section 1983 against what it called the “background of tort liability” under which a person is responsible for the natural consequences of his or her conduct. Specific intent was not required as a matter of section 1983 statutory interpretation.
Note, though, that different constitutional violations have their own required states of mind (the subject of the next post in this series). For example, equal protection violations require purposeful discrimination, Washington v. Davis, 426 U.S. 229 (1976), and Eighth Amendment violations require at least deliberate indifference, Farmer v. Brennan, 511 U.S. 825 (1994). But these examples are matters of constitutional interpretation, not section 1983 interpretation.
The Third Defense: Exhaustion of State Remedies
Finally, the officers made an express federalism argument, namely, that every section 1983 plaintiff first had to go to state court and seek whatever judicial remedies were available under state law. Only then was he or she permitted to sue under section 1983 in federal court. Again disagreeing, the Court emphasized that the federal section 1983 remedy was supplementary to any available state remedies and, consequently, a section 1983 plaintiff need not first exhaust his or her judicial remedies.
This no-exhaustion rule, a matter of section 1983 statutory interpretation, was thereafter extended to include administrative remedies in Patsy v. Florida Bd. of Regents, 457 U.S. 496 (1982). However, in many prisoner litigation cases, there is now an exhaustion of administrative remedies requirement. See 42 U.S.C. § 1997e, as amended by the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, Title VIII, 110 Stat. 1321-66 (1996).
Observations
Federalism was implicated not only in the exhaustion argument of the officers but in their color of law argument as well. Had the scope of section 1983 been limited in conformity with these arguments, plaintiffs would have to resort to state court, not federal court, and seek redress under available state remedies. Not surprisingly, federalism concerns continue to drive much of section 1983 jurisprudence. After all, section 1983 is a federal statute enforced by federal courts against state and local governments and their officials and employees.
Additionally, the “background of tort liability” approach to section 1983 was to become quite significant in connection with the immunities of state and local government employees and officials sued personally for damages under section 1983. In general, tort law concepts play an important, even if not necesarily dispositive, role in interpreting the statute. This approach, based on the common law of torts in 1871, is broadly consistent with the current’s Court’s originalist approach to statutory interpretation.
An Updated Section 1983 Primer (1): History, Purposes and Scope
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 am updating my popular “Primer” series on section 1983.
Below is the first of these posts. I hope you find it to be informative. The next post in this series will deal with the Supreme Court’s seminal section 1983 decision, Monroe v. Pape.
This post is intended primarily for those lawyers, law students and members of the public who are not very familiar with 42 U.S.C. section 1983.
History and Purposes
At the outset, observe the very close connection between section 1983 and the Fourteenth Amendment.
Section 1 of the Fourteenth Amendment to the Constitution of the United States, ratified in 1868, declares that states may not abridge the privileges or immunities of citizens of the United States and sets out the protections of due process and equal protection for “any person,” none of which states (and local governments) may deprive or deny. Section 5 of the Fourteenth Amendment gives Congress the power to enforce section 1 by appropriate legislation.
Section 1983 was enacted in 1871 by the 42nd Congress pursuant to its section 5 power in order to enforce the Fourteenth Amendment. It effectively creates a Fourteenth Amendment action for damages (and for injunctive relief) against “Every person,” acting under color of state or local law, who deprives a person of his or her Fourteenth Amendment rights and thereby causes damage. As it turns out in Supreme Court case law, “Every person” includes state and local government officials as well as local governments themselves (but not states).
The Broad Scope of Section 1983
The scope of section 1983 is as broad as the scope of the Fourteenth Amendment itself, which includes not only the Due Process and Equal Protection Clauses but also, through a process that judges and lawyers call “incorporation,” many of the provisions of the Bill of Rights which on their face apply only to the federal government. Currently incorporated are the First Amendment, the Fourth Amendment, most of the Fifth, the Sixth and the Eighth. In 2010, the Second Amendment, dealing with the right to bear arms, was also incorporated and applied to states and local governments.
In real world terms, this means that whenever a state or local law enforcement officer makes an arrest, conducts a search or uses force in alleged violation of the Fourth Amendment, section 1983 is potentially implicated. Whenever a public school official punishes a student or teacher for what is said or written on school premises in alleged violation of the First Amendment, section 1983 is potentially implicated. Whenever a prison official imposes conditions of confinement on inmates in alleged violation of the Eighth Amendment, section 1983 is potentially implicated. And whenever a public employer discharges an employee for racial or sex-based reasons in alleged violation of the Equal Protection clause, section 1983 is potentially implicated. Note the obvious: these examples are far from exhaustive.
Complications
On the face of it, section 1983 litigation appears very straightforward. One would think that the major issues in such cases are whether the Fourteenth Amendment was violated by a state or local government official or a local government (the defendant) and whether the person suing (the plaintiff) was injured. If so, liability for damages ought to follow.
However, much section 1983 doctrine has become increasingly technical. For example, the Supreme Court has created a plethora of defenses called “immunities” (absolute and qualified) that may protect individual state and local government officials against liability for damages in certain circumstances. In addition, the Court has progressively made it quite difficult for section 1983 plaintiffs to successfully sue local governments for damages. And not only that: states as states cannot be sued for damages under section 1983.
More about all of this in subsequent posts.
Archives
Cert Alert in Chiaverini v. City of Napoleon: Section 1983 Fourth Amendment Malicious Prosecution Claims and the “Any-Crime” Rule
Suppose a § 1983 plaintiff asserts a Fourth Amendment malicious prosecution claim for damages against law enforcement officers. We know from Manuel v. City of Joliet, 580 U.S. 357 (2017), and Thompson v. Clark, 142 S. Ct. 1332 (2022), that 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 generally on § 1983 Fourth Amendment malicious prosecution, §§ 3:63-3:67 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 Ed.)(West/Westlaw))
The Issue in Chiaverini
Suppose now that our §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? Or is that claim barred because of the presence of probable cause for the other two charges?
In Chiaverini v. City of Napoleon, No. 21-3996 (6th Cir. Jan. 11, 2023), cert granted, S. Ct. Docket No. 23-50 (Dec. 13, 2023), the Supreme Court will address this issue in connection with the following Question Presented:
”To make out a Fourth Amendment malicious prosecution claim under 42 U.S.C. § 1983, a plaintiff must show that legal process was instituted without probable cause. Thompson v. Clark, 142 S. Ct. 1332, 1338 (2022). Under the charge-specific rule, a malicious prosecution claim can proceed as to a baseless criminal charge, even if other charges brought alongside the baseless charge are supported by probable cause. Under the “any-crime” rule, probable cause for even one charge defeats a plaintiff’s malicious prosecution claims as to every other charge, including those lacking probable cause.
The question presented is: Whether Fourth Amendment malicious prosecution claims are governed by the charge-specific rule, as the Second, Third, and Eleventh circuits hold, or by the “any- crime” rule, as the Sixth Circuit holds.”
In Chiaverini, the Sixth Circuit had 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 Circuit Split
As noted, this issue has divided the circuits, which is likely the reason the Court granted certiorari. The Second Circuit previously held that the “charge-specific” rule should apply, Posr v. Doherty, 944 F.2d 91 (2nd Cir. 1991), as did the Third Circuit in Johnson v. Knorr, 477 F.3d 75 (3rd Cir. 2007) and the Eleventh Circuit in Williams v. Aguirre, 965 F.3d 1147 (11th Cir. 2020). Under this charge-specific approach, a § 1983 Fourth Amendment malicious prosecution can go forward on a baseless criminal charge even though there was probable cause to support other criminal charges brought alongside the baseless criminal charge.
Comments
One question–the background of tort liability question–is what the common law of malicious prosecution was in 1871, when § 1983 was enacted. According to the Eleventh Circuit in Williams, 965 F.3d at 1162, and as set out in the Petition for Certiorari, “Centuries of common-law doctrine urge a charge-specific approach, and bedrock Fourth Amendment principles support applying that approach.” In reaching this conclusion, the Eleventh Circuit relied on nineteen-century treatises, American cases and British cases. This consideration will play a role, perhaps major, in the Court’s ultimate resolution of the case.
A second question is one of policy. The Petitioners maintain that under the “any-crime” rule a police officer can 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. They therefore argue that the “any crime” rule would undermine police officer accountability.
Third, one might point out that every such § 1983 Fourth Amendment malicious prosecution claim, even brought in the same case with others, raises a separate constitutional violation issue which must be analyzed independently of the others. Along similar lines, every such claim is subject to a separate qualified immunity inquiry into clearly settled law.
Finally, observe that if the Court adopts the “charge-specific” rule and rejects the “any-crime” 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 has not proved to be insurmountable for judges and juries.
My prediction is that the Court will adopt the “charge-specific” rule, which is the better one.
Know Your Constitution (3): Myths About the Supreme Court
(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.)
I recently blogged regarding two myths about the Constitution. That post was the second in my series, “Know Your Constitution,” which is intended for a general audience.
This is the third in the series and it addresses three myths about the Supreme Court with a minimum of legal jargon.
The First Myth. The Supreme Court’s primary function is to do justice.
Reality. The Supreme Court’s primary function is to interpret the Constitution and federal statutes. These interpretations become the supreme law of the land. The Court’s function is not necessarily to do justice in individual cases.
Of course, there are times when interpretations of particular constitutional provisions are considered by many to be just. For example, the equal protection clause of the Fourteenth Amendment, which prohibits racial and other kinds of discrimination by government, is considered to be a just constitutional provision because it is based on the concept of equality.
Another example is the due process clause and its application in criminal cases. Due process has been interpreted to include concepts of justice and fairness so as to protect the rights of criminal defendants to an unbiased court, to confrontation and cross-examination, to be free from self-incrimination, to an attorney, and so on.
What is most important to remember, though, is that Supreme Court decisions are not necessarily just or moral. A Supreme Court decision can uphold an unjust federal or state law as constitutional. For example, the Court in Plessy v. Ferguson unfortunately upheld separate but equal in the racial setting at the end of the 19th century. It thereby perpetuated Jim Crow laws until Brown v. Board of Education was handed down in 1954.
On the other hand, a Supreme Court decision can rule that a wise and just federal or state law is unconstitutional. For example, the Supreme Court struck down the Violence Against Women Act in United States v. Morrison at the beginning of this century.
The Second Myth. The Supreme Court is a political body like Congress and the President.
Reality. The Supreme Court is the only branch of the national government that is not directly politically accountable to the electorate. The justices have lifetime tenure once appointed in order to insulate them from political pressure. To demonstrate how important judicial independence is, consider that the Court’s rulings are typically complied with on a voluntary basis by those affected. Al Gore’s concession to George Bush after the Court’s ruling in Bush v. Gore is an excellent example of such voluntary compliance.
On the other hand, the justices are human beings who cannot help but be influenced by their upbringing and by contemporary political and social values. Consider, for example, the infamous Dred Scott and Plessy v. Ferguson decisions, where the justices could not distance themselves from their support for white supremacy.
Still, because the justices are not directly answerable to the electorate, it is an important part of their judicial function to avoid applying their personal values, to the extent possible, when they interpret the constitution.
The Third Myth. The Supreme Court simply makes up most of its constitutional decisions.
Reality. It’s much more complicated than that. Some constitutional provisions are very easy to apply because they are very specific. For example, the President must be a natural born citizen, over thirty-five years old and a resident of the United States for fourteen years.
Similarly, it is clear from the text of the Constitution that it is Congress that has legislative powers, it is the President who has executive powers and it is the Supreme Court that has judicial powers. There are many such examples.
In contrast, other provisions of the Constitution, because they are less clear inherently, necessarily require a fair amount of interpretation. What do freedom of speech, freedom of the press, freedom of religion, mean anyway? Does the Fourth Amendment prohibiting unreasonable searches and seizures apply to electronic surveillance, to the internet? The text of the Constitution and the history of these provisions often provide no clear answers; obviously the Framers never thought of media such as radio and television, or about electronic surveillance and the internet.
So what does the Court do? Until recently, the short answer was that the Court typically proceeded cautiously and developed the meaning of these and similar textual provisions on a case by case basis. Typically the justices would focus on the values implicit in the constitutional provision they were interpreting. They then asked whether and how to apply those values in the new situation confronting them.
However, a majority of the current Supreme Court has now adopted an approach called “originalism” that focuses on the history and tradition of the particular constitutional provision of concern. The Court has applied this approach (which really has varying meanings) to the Establishment Clause, the Second Amendment and the Due Process Clause (in overruling Roe v. Wade).
Both the earlier approach and the current “originalism” approach constitute what some call judicial restraint, and what others call judicial activism.
It must be acknowledged that both approaches give the justices as individuals, and the Supreme Court as an institution, a good deal of interpretive latitude on difficult constitutional interpretation questions. And it must also be admitted that this often generates a great deal of controversy, often of a politically partisan nature.
However, controversy is one of the inevitable costs of being a citizen in a democracy with a Supreme Court that interprets the Constitution. And it is a cost I’m willing to acknowledge and bear, even when I believe firmly that the Court has gotten it wrong.
Know Your Constitution (2): Myths About the Constitution
(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.)
My preceding post, on the structure of our government, was the first in a series called “Know Your Constitution.” This series is intended to educate citizens, law students and attorneys about the Constitution and the Supreme Court with a minimum of legal jargon.
This post, the second in the series, addresses two commonly and erroneously held beliefs, or myths, about the Constitution.
The First Myth The Constitution is a sacred document or is at least divinely inspired.
Reality The Constitution was written by human beings (all men at the time) and is a product of Enlightenment thinking. The Constitution exemplifies the application of reason to self-government. The divine right of kings is emphatically rejected by the Constitution.
Notice that there is no reference whatever in the Constitution to a divine being. Religion is mentioned only in several places. One place is the First Amendment with its Establishment and Free Exercise Clauses. Another place is the prohibition against religious tests for political office. In other words, religion has its role, but that role is not in government.
Along these lines, to characterize the Constitution as deeply influenced by Judaism and/or Christianity, as many like to do, is simply incorrect historically. Traditional Judaism and Christianity had nothing to say about democracy. Also, many of the Framers were deists who believed that a divine being created the universe and nature with its “laws” but then bowed out of human affairs. In contrast, theists believe that a divine being revealed itself and remains concerned with, and involved in, human affairs.
However, it should be noted that a majority of the current Court approaches religion from a very different perspective and has reinvigorated the Free Exercise Clause at the expense of the Establishment Clause.
The Second Myth The Constitution, even if not divinely inspired, comes as close to being as perfect a document for self-government as is humanly possible.
Reality The Constitution is far from a perfect document.
The Framers were only human beings, although we are fortunate that they were very well educated, far-sighted and obsessed with forming a new kind of government that the world had never seen before. But they made mistakes. This is obvious if only because of the number of Constitutional Amendments that have been ratified—twenty-seven–including the Bill of Rights two years after the Constitution.
More seriously, the Constitution was almost fatally flawed from the beginning because of slavery. This word was never used in the Constitution—embarrassment, perhaps?–although there were three indirect references to it. I say “almost fatally flawed” because, as everyone knows, slavery led to the temporary breakup of the United States. It took an horrific Civil War and the Thirteenth, Fourteenth and Fifteenth Amendments to amend the Constitution and eliminate slavery once and for all. In a very real sense, the Civil War and these three Constitutional amendments finally brought the Constitution into line with the Declaration of Independence.
Next in the Series: Myths about the Supreme Court
Know Your Constitution (1): The Structure of Government
(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.)
Constitutional Education for Citizens
United States citizens, in my view, have an obligation to understand their government, the Constitution that created it and the Supreme Court‘s role in interpreting the Constitution.
However, I’ve thought for a long time that we in the legal profession and the law schools do a mediocre job, at best, in educating the public about the United States Constitution and the Supreme Court.
What I would like to do in this and in succeeding posts is try to explain, with a minimum of legal jargon, the Constitution and the Supreme Court’s role in interpreting it. Of necessity, these posts will be selective. I cannot cover everything.
This first post addresses the basic structure of our government as created by the Constitution, including separation of powers, checks and balances and federalism.
What is Separation of Powers?
The first three articles of the Constitution create and set out the powers of the three branches of government.
First and foremost, Article I deals with Congress, the lawmaking branch, and its two houses, the Senate and the House of Representatives. All legislation must be passed by both houses in order to become law. Congress may only act pursuant to its enumerated powers.
Second, Article II deals with the President, elected every four years, who enforces the law and thereby exercises executive powers. The President also has primary responsibility for foreign affairs except insofar as Congress is the branch that declares war. All legislation that is passed by both houses must go to the President for his approval.
Third, Article III creates the Supreme Court, the only non-politically accountable branch, in which is vested the judicial power to decide cases and controversies brought before it. Much more about this in later posts.
What Are the Purposes of Separation of Powers?
These three articles thus allocate governmental powers to three branches in order to promote efficiency. But this separation of powers serves another very important purpose: to make it impossible for narrow special interests (called “factions”) to capture the national government. The Framers were concerned, one might say obsessed, with preventing tyranny at the national level.
The political theory was that even if one branch of the national government ever became the captive of a faction, the other branches could step in and stop it. It is for that reason that separation of powers is not absolute: the Framers also provided for checks and balances among the branches. For example, legislation cannot become law without the President’s approval (unless Congress overrides a Presidential veto). Also, legislation must be enforced by the President. Supreme Court justices, and federal judges generally, are nominated by the President and must be approved by the Senate.
When Congress or the President violates separation of powers, it is the Supreme Court that steps in (through litigation) to strike down the unconstitutional conduct. For example, in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)(the famous Steel Seizure Case), the Court struck down the attempt by President Truman to seize the country’s steel mills: this was an unconstitutional exercise by the President of legislative power.
What is Federalism?
The Constitution also sets out the relations between the national government and the States. There are limits to what the federal government can do, and there are limits to what the States can do. In addition, the Tenth Amendment provides that powers not delegated to the national government are reserved to the states or the people.
In the last thirty or so years especially, the Supreme Court has enforced federalism rather aggressively and has, somewhat controversially, several times struck down federal legislation enacted under the Commerce power (one of the enumerated powers) because it encroaches on the States. A good example is United States v. Lopez, 514 U.S. 549 (1995), which held violative of the Commerce Clause the Gun-Free School Zones Act of 1990.
What Are the Purposes of Federalism?
Federalism is intended to promote efficiency, democracy and experimentation. But another very important function, like that of separation of powers, is the prevention of tyranny. Under this theory, States can serve as buffers between individual citizens and a possibly tyrannical national government.
A Controversial Issue
Here is one very important, and controversial, question about federalism: to what extent has it been modified by the Civil War and the Thirteenth, Fourteenth and Fifteenth Amendments?
These Amendments gave Congress the power to enforce their provisions against the States and are based on the assumption that it is now the national government that is charged with protecting individual citizens from the tyranny of the States.
The question is whether this acknowledged change in federalism extends beyond the protections of Thirteenth, Fourteenth and Fifteenth Amendment rights to include the powers of Congress under the Commerce Clause, as well as the taxing and spending powers.
It is fair to say that a majority of the current Supreme Court believes the answer to this question is an emphatic NO. In other words, the Framers’ view of the importance of federalism in these other areas–commerce, taxing and spending–continues to govern despite the Thirteenth, Fourteenth and Fifteenth Amendments.
Cert Alert in City of Grants Pass v. Johnson: The Homeless, the Eighth Amendment and Section 1983
(Note: I originally posted this in November 2023 but am re-posting it with some modifications because the Supreme Court just granted certiorari on Friday, January 12, 2024, in Johnson v. City of Grants Pass, 50 F.4th 787 (9th Cir. 2022), amended and superseded on denial of reh’g en banc, 2023 WL 4382635 (9th Cir. 2023), cert granted, 144 S. Ct. — (2024), discussed below).
It is typically prisoners who bring §1983 Eighth Amendment claims for damages and prospective relief against prison officers and officials. But what of §1983 Eighth Amendment actions 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. State of Tex., 392 U.S. 514, 88 S. Ct. 2145, 20 L. Ed. 2d 1254 (1968)?
The 2006 Jones Decision
After an extensive analysis of these and other Supreme Court decisions, seventeen years ago a panel of the Ninth Circuit held in a subsequently vacated opinion (the case was settled) 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 Ninth Circuit 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 in Jones, 444 F.3d at 1138, arguing, among other things, that the Los Angeles ordinance punished conduct, not status.
The 2019 Martin Decision
Thirteen years later another panel of 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.”
The 2022 Johnson Decision
Then, in 2022, in Johnson v. City of Grants Pass, 50 F.4th 787 (9th Cir. 2022), amended and superseded on denial of reh’g en banc, 2023 WL 4382635 (9th Cir. 2023), yet another panel of the Ninth Circuit followed Martin and applied it to a putative class action suit brought by homeless persons successfully challenging the constitutionality of certain city anti-camping ordinances. Judge Collins dissented, 50 F.4th 787, 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.
Subsequently, the Ninth Circuit amended the majority’s opinion in Johnson when it denied rehearing en banc. This denial was accompanied by a dissent by Judge Collins who argued that both Martin and the decision in Johnson were wrong and should be overturned. It was further accompanied by lengthy statements of various judges defending or criticizing the denial of rehearing en banc, as well as by several opinions dissenting from the denial of rehearing en banc, including one by Judge Bress, joined by eleven other judges, which maintained that there was no Eighth Amendment violation here.
Comments
Many of the opinions in Johnson were quite spirited. This is not surprising given the divisive nature of the homelessness issue, especially in urban areas around the country. The overall flavor of the Ninth Circuit judges who disagreed on the merits with the majority in Johnson is perhaps captured by a part of Judge Bress’s opinion dissenting from denial of rehearing en banc:
“But on top of everything that our localities [including San Francisco] must now contend with, our court has injected itself into the mix by deploying the Eighth Amendment to impose sharp limits on what local governments can do about the pressing problem of homelessness …. With no mooring in the text of the Constitution, our history and traditions, or the precedent of the Supreme Court, we have taken our national founding document and used it to enact judge-made rules governing who can sit and sleep where, rules whose ill effects are felt not merely by the states and not merely by our cities, but block by block, building by building by building, doorway by doorway.”
Notice that the 2019 Martin case soundly determined that the Eighth Amendment on its own does not give rise to an affirmative duty to provide shelter to the homeless. Still, the deep issue here, in my view, is whether and to what extent §1983 Eighth Amendment litigation of this kind can realistically bring about any meaningful reforms. I suspect that, at most, it may prod legislative bodies to respond in some way. But I am skeptical that it can do much more than that. Ultimately, the remedies are political and require political will.
The Supreme Court will, either in this 2023 Term or in the 2024 Term, provide us with some answers to the Eighth Amendment issues raised. The Court has granted certiorari in City of Grants Pass v. Johnson to decide 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.”
Nahmod Law 