Nahmod Law

Ortiz v. Jordan and Sufficiency Challenges

It is important to distinguish interlocutory appeals of denials of qualified immunity summary judgment motions from situations of the sort that arose in Ortiz v. Jordan, 562 U.S. 180, 131 S. Ct. 884, 178 L. Ed. 2d 703 (2011).

Suppose that defendants in a §1983 case raise qualified immunity on summary judgment and lose at the district court level because there are genuine issues of material fact in dispute. The defendants choose not to appeal, the case goes to trial and a jury finds for the plaintiff. Suppose further that defendants never contested the jury’s liability finding under F.R.C.P. 50(b) and also did not request a new trial under Rule 59(a). After the district court enters judgment for the plaintiff, the defendants appeal and argue that the district court should have granted their qualified immunity motion for summary judgment in the first place. May the defendants appeal the denial of their qualified immunity motion for summary judgment after the district court has held a full trial on the merits? The Court in Ortiz resolved a conflict in the circuits and unanimously answered NO.

In Ortiz, the plaintiff, a former inmate in a state reformatory, sued two superintending prison officials alleging that they violated the Eighth and Fourteenth Amendments when they failed to protect her from a second sexual assault (after she reported the first one) and also retaliated against her when she thereafter reported that she had been sexually assaulted twice by the same corrections officer. The defendants’ qualified immunity summary judgment motion was denied by the district court on the ground that there were genuine issues of material fact in dispute. Rather than appeal, the defendants proceeded to trial after unsuccessfully making motions for judgment as a matter of law under F.R.C.P. 50(a). The jury awarded $350,000 in compensatory and punitive damages against one defendant and $275,000 against the other. Defendants then appealed the district court’s order denying their qualified immunity summary judgment motion, and the Sixth Circuit reversed on the ground that the defendants were protected by qualified immunity.

The Opinions in Ortiz

The Supreme Court in turn reversed unanimously in an opinion by Justice Ginsburg. The Court explained: “The order retains its interlocutory character as simply a step along the route to final judgment.” Once there is a trial, the qualified immunity defense must be addressed “in light of the character and quality of the evidence received in court.” Even though the Sixth Circuit in this case apparently reviewed the district court’s pretrial order in light of some evidence submitted at trial, this was impermissible because the defendants’ failure to renew their motion for judgment as a matter of law under Rule 50(b) deprived the Sixth Circuit of any “warrant to reject the appraisal of the evidence” by the district court which had seen and heard the witnesses. Furthermore, the Sixth Circuit’s decision was not based on a purely legal issue pursuant to Johnson v. Jones, 515 U.S. 304, 115 S. Ct. 238 (1995): the relevant Eighth Amendment law was clearly settled at the time of the challenged conduct. Consequently, defendants’ appeal was not properly before the Sixth Circuit because it involved evidentiary sufficiency, which defendants could have raised by post-trial motion under Rule 50(b) but did not. (see generally on Johnson v. Jones, §8:9 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw))

Justice Thomas, joined by Justices Scalia and Kennedy, concurred in the judgment. 131 S. Ct. at 893. They complained that the Court should have limited its decision to the impropriety of appealing a district court’s denial of a qualified immunity summary judgment motion after a trial on the merits without getting into the effect of the defendants’ post-trial failure to renew their motion for judgment as a matter of law under Rule 50(b). In their view, this was a relatively easy case where the Court of Appeals did not have jurisdiction to review, and the Court should not have reached out to address “difficult and far-reaching questions of civil procedure.”

Comments on Ortiz

Several comments about Ortiz are appropriate. First, the Court did not rule that the defendants had waived their qualified immunity defense. Rather, had they properly used Rule 50(b), they could have renewed the question of their entitlement to qualified immunity after trial. Because they did not do so, the Sixth Circuit did not have jurisdiction over their attempt to appeal the district court’s denial of their pretrial qualified immunity summary judgment motion. Second, the Court rejected the defendants’ contention that their appeal only raised issues of law that the Sixth Circuit had jurisdiction to decide. Finally, and despite the misgivings of the concurring Justices, the Court acted appropriately in advising attorneys how to deal with qualified immunity under Rule 50(b) in situations where denials of qualified immunity summary judgment motions are not immediately appealed and §1983 damages claims against state and local government officials go to trial.

Dupree v. Younger and Purely Legal Issues

Thereafter, the Court considered the question whether the preservation requirement of Ortiz—that “a party who wants to preserve a sufficiency challenge for appeal must raise it anew in a post-trial motion”—applies “to a purely legal issue resolved at summary judgment.” In Dupree v. Younger, 143 S. Ct. – (2023), the Court answered in an opinion by Justice Barrett that it does not.

In this § 1983 Fourteenth Amendment excessive force case brought by a pretrial detainee against a corrections officer, the defendant moved for summary judgment on the ground that the plaintiff had failed to exhaust administrative remedies under the Prison Litigation Reform Act—see generally §9:65 of my Treatise.  The district court denied the motion, concluding as a matter of law that there was no factual dispute that the exhaustion requirement had been satisfied. After a jury trial at which the plaintiff prevailed, the defendant did not file a post-trial motion under Rule 50(b). He instead appealed to the Fourth Circuit on one issue: the district court’s rejection of his exhaustion defense on summary judgment. The Fourth Circuit rejected the appeal on the ground that the defendant did not renew the exhaustion issue in a post-trial motion per Ortiz, even though the issue was a purely legal one.

The Opinion in Dupree

The Supreme Court unanimously reversed, ruling that Ortiz was limited to sufficiency of the evidence issues and did not extent to purely legal issues. It explained: “Fact-dependent appeals must be appraised in light of the complete trial record. … From the reviewing court’s perspective, there is no benefit to having a district court reexamine a purely legal issue after trial.” It went on to reject the defendant’s counterargument that the Court’s decision improperly created a two-track system of summary judgment. The Court responded that Rule 56 did not demand “such uniformity”: district courts sometimes deny motions for summary judgment because there are no genuine issues of material fact in dispute, while at other times they do so on purely legal grounds. Therefore, the Court’s approach distinguishing between sufficiency of the evidence issues and purely legal issues made sense. The Court then remanded to the Fourth Circuit to decide whether the exhaustion issue before it was indeed purely legal.

Consider Health & Hospital Corporation of Marion County v. Talevski, 143 S. Ct. — (2023), aff’g, 6 F.4th 713 (7th Cir. 2021), an important case involving Congress’s spending power and the relationship between § 1983 and alleged violations of the Federal Nursing Home Reform Act (FNHRA), 42 U.S.C.A. §§1396r et seq.

In Talevski, the plaintiff sued a state-run nursing home facility and others under § 1983 for violations of the unnecessary-restraint and predischarge-notice provisions of the Act. Reversing the district court which had dismissed for failure to state a claim, the Seventh Circuit agreed with decisions of the Third and Ninth Circuits and ruled that violations of FNHRA are actionable under §1983. According to the Seventh Circuit, the text and structure of the Act “unambiguously reveal that it establishes individual rights for a particular class of beneficiaries.” Further, there was nothing in the Act that impliedly foreclosed §1983 claims.

The Questions Presented On Certiorari

On certiorari review, the Supreme Court addressed the following Questions Presented: “(1) Whether, in light of compelling historical evidence to the contrary, the Court should reexamine its holding that spending clause legislation gives rise to privately enforceable rights under 42 U.S.C. §1983; and (2) whether, assuming spending clause statutes ever give rise to private rights enforceable via Section 1983, the Federal Nursing Home Amendments Act of 1987’s transfer and medication rules do so.” It was the first Question Presented in particular that attracted the Court’s attention and that of many observers, including me.

The Majority Opinion

In an opinion by Justice Jackson, the Supreme Court affirmed the Seventh Circuit. It rejected the broad defense argument that the “laws” language of § 1983 does not include federal statutes such as FNHRA that were enacted pursuant to Congress’s spending power. The Court declared: “’Laws’ means ‘laws,’ and nothing in [defendants’] appeal to Reconstruction-era contract law shows otherwise.” It strongly disagreed with the defense contention that because the FNHRA was enacted under the spending power and bound states through their agreements to participate, it was analogous to a contract “which was not ‘generally’ enforceable by third party beneficiaries at common law.” For one thing, it is not so clear that this was in fact the common law of contracts in 1871. For another, § 1983 claims are analogous to torts, not contracts.  The Court emphasized that it relied on § 1983’s text and history, as well as its precedents, for its conclusion that there is no § 1983  “carve out” for federal legislation enacted under the spending power.

Next, the Court addressed the specifics of FNHRA’s statutory language. It determined that the two relevant provisions of the Act unambiguously created enforceable rights, in “stark contrast to the statutory provisions that failed Gonzaga’s test in Gonzaga itself.”

Finally, the Court concluded that there was no incompatibility between the Act’s remedial scheme and private § 1983 enforcement of the unnecessary-restraint and predischarge-notice.provisions of the Act. The Court, applying the approach of City of Rancho Palos Verdes, then observed that there was nothing in the Act that would indicate “implicit preclusion” of a § 1983 remedy or that would suggest that allowing a § 1983 remedy would “thwart” the Congressional purpose in enacting the Act. Along these lines, it was significant that the Act included a provision that stated that the Act’s remedies were “in addition to those otherwise available under State or Federal law and shall not be construed as limiting such other remedies.”

The Three Concurring Justices: Justices Gorsuch, Barrett and the Chief

Justice Gorsuch concurred, observing that the defendants failed to “develop fully” any arguments revolving around whether federal statutory rights in spending power legislation were “secured consistent with the Constitution’s anti-commandeering principle.”[1] Justice Barratt, joined by Chief Justice Roberts, also concurred, emphasizing that an “actual clash—between one private judicial remedy against another, more expansive remedy—is not required to find that a statute forecloses recourse to § 1983.” 

The Two Dissenting Justices: Justices Thomas and Alito

Justice Thomas dissented at great length. He argued that there was a difference in kind between federal legislation enacted under Congress’s enumerated powers and those enacted under the so-called “spending power.” The latter were not “laws” within the meaning of § 1983’s language. They were contractual in nature and could not “secure rights by law.” Furthermore, to the extent that such federal statutes might by enforced through § 1983, they ran “headlong into the anticommandeering doctrine and long-recognized limitations on the federal spending power.”

Justice Alito, joined by Justice Thomas, also dissented. He argued that while the FNHRA created individual rights, Congress had not indicated its intent to allow § 1983 to be used to enforce the relevant provisions of the Act. To the contrary: “Allowing § 1983 suits will upend [the Act’s] careful balance” of federal and state enforcement that “channels disputes through that regime.”

Comments

In Talevski, § 1983 claims based on violations of federal statutes enacted under the spending power dodged a bullet: these kinds of claims might have been eliminated entirely. Still, even though they are still viable, it is fair to say that going forward, such claims will continue to be viewed from a posture of skepticism by a number of the justices because of concerns with the scope of Congressional power, anti-commandeering and federalism.

It is also worth noting that several justices in Talevski appear to have found a unique way around the broad scope of §1983 by focusing on the word “secured” in the statute and then giving it a crabbed interpretation. This reminds me of the Court’s disingeneous ruling earlier in the Term in Vega v. Tekoh, 142 S. Ct. — (2022), that Miranda rights are not “secured by the Constitution.” I call it “disingenuous” because in my view it can only be explained by an implicit rejection of Miranda. See my post: https://nahmodlaw.com/2022/07/12/miranda-violations-and-section-1983-the-disingenuous-decision-in-vega-v-tekoh/

I discuss “laws” actions, including those based on federal spending power legislation, extensively in Chapter 2 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2022-23 ed.)(West/Westlaw).

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In Peck v. Montoya, 51 F.4^th 877 (9^th Cir. 2022), the five officer defendants responded to a 911 call that decedent was acting erratically and threatening another person with a firearm. Two of those officers in this § 1983 Fourth Amendment excessive force case then shot and killed the decedent.

After affirming the district court’s denial of qualified immunity to the two shooting officers, the Ninth Circuit went on to consider whether the other three officers could also be liable for the killing, and therefore similarly not entitled to qualified immunity, on the ground that they were “integral participants” in the two officers’ use of excessive force.

The court, in an opinion that discussed both cause in fact and proximate cause, rejected the argument that cause in fact involvement is enough to render the three officers “integral participants”: this, without any relation to state of mind, would subject to liability anyone who had a causal relationship with the killing, including the 911 dispatcher and “even the mechanic who fixed [defendants’] cars….”

Instead, there is a kind of proximate cause requirement for integral participation as well: (1) the defendant must know or have acquiesced in the unconstitutional conduct as part of a common plan or (2) the defendant must have set into motion a series of acts by others that the defendant knew or should have known would bring about the constitutional deprivation.

In this case, the evidence was clear that the three officers were not integral participants: the shooting was unplanned and they had no reason to think that their providing of armed backup would enable the later unconstitutional use of force by the two officers. Any other result would not only be inconsistent with the approach rejected by the Supreme Court in County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), but would effectively result in strict liability. “That is not the law.”

But I wonder about the utility of this so-called “integral participant” doctrine and what it adds to the analysis. The result in Peck can be readily justified without recourse to such a doctrine: by simply pointing out that individual liability under § 1983 for a Fourth Amendment violation requires an intent to seize. Here, even though there was a seizure committed by the two shooting officers and proof of a cause in fact connection between the conduct of the three officers and the plaintiff’s Fourth Amendment deprivation, there was apparently no proof of such intent on the part of these three officers. Sometimes less is more.

Recall that I posted on Mendez and proximate cause here: https://nahmodlaw.com/2017/06/16/county-of-los-angeles-v-mendez-supreme-court-rejects-provocation-rule-remands-on-proximate-cause/.

I also discuss Mendez at some length in Chapter 3 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2022-23 ed.; West & Westlaw).

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In a much-read post on statutes of limitation and §1983, I discuss the important principle that §1983 accrual rules are matters of federal law. (See https://nahmodlaw.com/2011/10/27/a-section-1983-primer-5-statutes-of-limitations/).

In related subsequent posts and in my Treatise, I address the special accrual rule of Heck v. Humphrey, 512 U.S. 477 (1994), where the plaintiff has a prior conviction whose validity might be implicated by a successful §1983 action; Wallace v. Kato, 127 S. Ct. 1091 (2007), the accrual of §1983 Fourth Amendment false arrest claims; McDonough v. Smith, 139 S. Ct. 2149 (2019), the accrual of §1983 fabrication of evidence claims; and Thompson v. Clark, 142 S. Ct. 1332 (2022), accrual on favorable termination of §1983 Fourth Amendment “malicious prosecution” claims. See Chapter 9 in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2022-23 ed.)(West/Westlaw).

Now comes Reed v. Goertz, 143 S. Ct. — (April 19, 2023), reversing, 995 F.3d 425 (5th Cir. 2021), where the plaintiff inmate, sentenced to death for murder, sued state officials for prospective relief under §1983 alleging that, in violation of procedural due process, he was denied access to physical evidence that he wanted to test for DNA, Ruling that this claim, filed in August 2019, was time-barred under the applicable two-year Texas personal injury statute of limitations, the Fifth Circuit found that the plaintiff first became aware that his rights were possibly being violated when a trial court denied his motion for post-conviction relief regarding DNA testing in November 2014. At that time, he had all of the relevant information he needed and, moreover, was not required under §1983 to exhaust judicial remedies. Thus, under the discovery rule, he knew or should have known of his alleged injury five years before he sued. The Fifth Circuit rejected the plaintiff’s argument that his cause of action accrued in October 2017 when, following appeal of the trial court’s denial of his motion and the Texas Court of Criminal Appeals’ affirmance of that denial, it denied rehearing in October 2017.

The Supreme Court, agreeing with the plaintiff, reversed in an opinion by Justice Kavanaugh and found the plaintiff’s §1983 claim timely. It determined that because the plaintiff’s §1983 claim sounded in procedural due process, that denial of procedural due process was only complete in October 2017, when the Texas Court of Appeal denied rehearing. It was only at this time that the state court litigation effectively ended.

Justice Thomas dissented, arguing that the district did not have subject matter jurisdiction in the first place, including under the rationale of the Rooker-Feldman doctrine, because the plaintiff was really seeking review of the Texas Court of Appeals decision. Justice Alito, joined by Justice Gorsuch, also dissented, contending that the plaintiff’s §1983 procedural due process claim accrued when the Texas Court of Criminal Appeals affirmed the trial court on April 12, 2017, and not later when it denied plaintiff’s motion for rehearing.

Commentary

It is crucial in §1983 accrual cases to understand just what the question is: when are all the elements of the claim present? Since this claim is federal, it is understandable that accrual of §1983 claims must be a matter of federal law.

It is also essential in §1983 accrual cases to identify just what the constitutional basis for the claim is. Or to put it another way, what precisely is the plaintiff challenging? In Reed it is the denial of procedural due process, and this was determinative for the majority of just when the plaintiff’s claim accrued. In other situations, such as those involving §1983 Fourth Amendment arrest claims, the accrual rule is different. See Wallace. Or in still other situations, such as fabrication of evidence and Fourth Amendment malicious prosecution, the accrual rule is again different. See McDonough and Thompson.

From that perspective, Reed is a narrow decision applicable to the relatively few cases involving §1983 procedural (not substantive) due process prospective relief challenges by convicted persons to government refusals to provide possibly exonerating evidence. But the Court’s general approach is consistent with its approach in other §1983 accrual cases.

One more observation: it is notable how Justice Thomas (gratuitously?) raises a host of subject matter jurisdiction issues–Article III standing and justiciability in general, as well as Rooker-Feldman–that the majority gives such sort shrift to.

In First Midwest Bank Guardian of Estate of LaPorta v. City of Chicago, 988 F.3d 978, 990–91 (7th Cir. 2021), cert. denied, 142 S. Ct. 389, 211 L. Ed. 2d 207 (2021), the Seventh Circuit put DeShaney v. County of Winnebago, 489 U.S. 189 (1989), to unusual use in ruling against the guardian of an individual who was shot by his friend, an off-duty police officer not acting under color of law at the time. (Full disclosure: I played a consulting role for the plaintiff’s law firm)

The guardian claimed that the City of Chicago “had inadequate policies in place to prevent the shooting—or more precisely, that the City’s policy failures caused [the officer] to shoot him.” Specifically, he alleged: the failure to have an “early warning system” for officers likely to engage in misconduct; the failure to investigate and discipline officers for their misconduct; and the “perpetuation” of a code of silence that deterred reporting of such officers. All of this rendered the City liable under Monell v. Dept. of Social Services, 439 U.S. 974 (1978).

Reversing the jury’s compensatory damages award of $44.7 million (!) against the city, the Seventh Circuit declared that the guardian lost on its §1983 substantive due process bodily integrity claim under DeShaney because the guardian was asserting that the city had an affirmative duty to protect the individual from harm. The DeShaney exceptions did not apply. First, there was no special relationship since the individual was not in state custody. And second, the “narrow” state created danger doctrine, which required more than a “generalized risk of indefinite duration and degree,” did not apply because there was no evidence that the city affirmatively placed the individual in danger. Further, according to the Seventh Circuit, the guardian never explicitly raised the state created danger exception, and the jury was never instructed on it.

Finally, the Seventh Circuit rejected the guardian’s argument that DeShaney was inapplicable and that, instead, Monell supported liability inasmuch as the jury found that the city’s policy failures “caused” the officer to shoot the individual. This argument “reflect[ed] a basic misunderstanding of the relationship between Monell and DeShaney. [These cases] are not competing frameworks for liability. The two cases concern fundamentally distinct subjects.” Monell dealt with §1983 interpretation and local government liability, while DeShaney dealt with the constitutional issue of substantive due process. The Seventh Circuit thus concluded that the individual’s constitutional rights were not violated because the city had no affirmative due process duty to protect the individual from the officer’s “private violence.”

Comments

1. Had the police officer here acted under color of law, the DeShaney issue would have disappeared to the extent that DeShaney only applies to the prevention by government of privately caused harm. The issues then would have been, first, whether the police officer’s conduct constituted a substantive due process violation and second, if so, whether the City’s policies caused that substantive due process deprivation. If either question were to be answered in the negative, then the City would not be liable.

2. I have posted regularly about tragic DeShaney cases in the circuits. (You can search “DeShaney” on this blog for many examples) But LaPorta is unusual in that it sharply distinguished between the constitutional interpretation issue posed and the Monell liability issue, a matter of statutory interpretation. This distinction is, of course, sound so far as it goes.

But LaPorta might have come out the other way had the Seventh Circuit found that the challenged conduct–the alleged policies of the City, which were clearly state action–caused the violation of the individual’s substantive due process rights because those policies created the danger to him. The argument is that the City’s policies effectively placed the gun in the off-duty officer’s hand. This the Seventh Circuit did not do because under its approach any state created danger was not sufficiently particularized. The Seventh Circuit also commented that the plaintiff had never explicitly raised the issue. Thus, DeShaney controlled: there was no substantive due process violation.

3. On DeShaney, substantive due process affirmative duties and cases raising those issues, see Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 §§ 3:59-3:61 (2022-23 ed. West/Westlaw).

SAVE THE DATE April 27 – 28, 2023 Chicago-Kent College of Law 565 W. Adams Street Chicago, IL 60661 Eligible for IL MCLE Credit Liability arising out of §1983 claims continues to present challenges for courts across the country, and the Supreme Court has a large impact in this dynamic area of law. Join us for this two-day in-person conference to get up-to-date on the latest cases, trends, and strategies affecting §1983 litigation. You have the opportunity to examine both the law of §1983 as well as the litigation strategies that underlie successful cases. Experts in the field address the most important issues and provide wisdom for you as you tackle this year’s cases, whether you represent plaintiffs or defendants. As always, the conference provides an analytical approach to problems and offers practical advice about how to solve them. SPEAKERS Gerald M. Birnberg, Founding Partner, Williams, Birnberg & Andersen LLP Karen M. Blum, Professor Emerita and Research Professor of Law, Suffolk University Law School Erwin Chemerinsky, Dean and Jesse H. Choper, Distinguished Professor of Law, University of California Berkeley School of Law Jamie S. Franklin, Assistant Clinical Professor of Law and Supervisor of Litigation Clinic, Chicago-Kent College of Law Rosalie B. Levinson, Professor of Law Emerita, Valparaiso University School of Law Sheldon H. Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law (Program Chair) Noah Smith-Drelich, Assistant Professor of Law, Chicago-Kent College of Law This conference is in-person ONLY and will not be live-streamed. UPCOMING CLE CONFERENCES March 3, 2023 The Effect of Dobbs on Work Law Symposium March 28, 2023 44th Annual Kenneth M. Piper Lecture ON DEMAND LIBRARY 40th Annual Federal Sector Labor Relations + Labor Law Conference The Vaccine Injury Compensation Program 43rd Annual Kenneth M. Piper Lecture 38th Annual Section 1983 Civil Rights Litigation Conference Dobbs v. Jackson Women’s Health Organization Panel Never Again? Investigating and Prosecuting War Crimes: Then and Now

Chicago-Kent College of Law, CLE Department 565 W. Adams Street, Chicago, IL 60661 cle@kentlaw.iit.edu  1-312.906.5090

I hope to see many of you in Chicago for this in-person conference, together with our excellent and experienced speakers. If you have any questions, please feel free to contact the CLE department or me personally via email: snahmod@kentlaw.edu.

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I have posted (too?) many times over the years on DeShaney substantive due process affirmative duty cases, emphasizing all the while that the threshold issue in such cases is whether there is an affirmative substantive due process duty to begin with.

Typically, the answer in these tragic cases is “no”–there is generally no constitutional duty to protect citizens from private harm–unless there is a special relationship or the state has created the danger. DeShaney v. Winnebago County, 489 U.S. 189 (1989). See generally on DeShaney and its progeny, NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 secs. 9:59-9:61 (2022-23 ed.)(West/Westlaw).

But even where a section 1983 plaintiff is able to overcome the duty issue by, say, plausibly alleging that the state created the danger, that plaintiff may still lose because of the substantive due process state of mind requirement of at least deliberate indifference. As an example, consider Herrera v. Los Angeles Unified School Dist., 18 F.4th 1156 (9^th Cir. 2021).

In Herrera, an autistic high school student drowned while on a field trip. His parents brought a section1983 substantive due process claim against various school defendants, all of whom were granted summary judgment by the district court. Finding that there was a state-created danger but still affirming, the Ninth Circuit pointed out that a school aide who was generally watching the student in the pool saw the student exit the shallow end of the pool and enter the locker room area, but he did not see the student shortly thereafter return to the pool and then drown.

The Ninth Circuit explained: “’[W]e have continued to apply the subjective standard in all state-created danger claims and in non-detainee failure-to-protect claims like the one presented here.” Because there was no genuine issue of fact in dispute that the school aide was subjectively unaware of any immediate danger to the student, the school aide was not deliberately indifferent, as required for a substantive due process failure to protect claim. Also, because other lifeguards were monitoring the area as well, the school aide did not abandon the student or leave him completely without protection. This too showed that the school aide did not act with deliberate indifference.

Comment

The Ninth Circuit applied a subjective deliberate indifference standard and not an objective one. It rejected the plaintiff’s argument that the student’s situation was analogous to that of the pretrial detainee in Kingsley v. Hendrickson, 576 U.S. 389 (2015), which applied an objective reasonableness standard to the pretrial detainee’s section 1983 substantive due process excessive force claim.

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High-speed police pursuit cases often end in serious bodily harm or death not only to the person pursued but to innocent bystanders as well. In most such cases the Fourth Amendment’s excessive force/reasonableness standard does not apply because there is no intentional seizure. Instead, as the Supreme Court held in the seminal decision in County of Sacramento v. Lewis, 523 U.S. 833 (19098), substantive due process applies and the appropriate standard is ordinarily “purpose to do harm,” and not the usual substantive due process standard of deliberate indifference.

This high standard serves at least two purposes: (1) it reflects the fact that these situations involve split-second decision making with no real opportunity to deliberate and (2) it serves a gatekeeper function in keeping such tort-like cases out of the federal. (This is one example of variable constitutional states of mind. Another is the Eighth Amendment)

The Seventh Circuit’s Flores Decision

Now consider Flores v. City of South Bend, 997 F.3d 725 (7^th Cir. 2021). “Erica Flores’s life came to an untimely end when Officer Justin Gorny of the South Bend, Indiana, police department careened through residential streets and a red light at speeds up to 98 mph to reach a routine traffic stop he was not invited to aid, crashed into Flores’s car, and killed her.”

The Officer’s Potential Liability Under Substantive Due Process

Here, according to the Seventh Circuit, the decedent’s estate plausibly stated a substantive due process claim against the officer individually and the city for failure to train. The court, citing County of Sacramento, observed that “[i]dentical behavior considered reasonable in an emergency situation might be criminally reckless when state actors have time to appreciate the effects of their actions.” Ruling that deliberate indifference applied here, and not purpose to do harm, since the officer had the opportunity to deliberate, the court then went on to find that the officer’s “reckless conduct, unjustified by any emergency or even an order to assist in a routine traffic stop that five officers had under control, allows the inference that he subjectively knew about the risk he created and consciously disregarded it.” This constituted the requisite criminal recklessness for his liability. “The law does not provide a shield against constitutional violations for state actors who consciously take extreme and obvious risks.”

The City’s Potential Liability for Failure to Train

As to the city’s liability under a failure to train theory–see City of Canton v. Harris, 489 U.S. 378 (1989)–the decedent’s estate also plausibly alleged that the city acted with deliberate indifference because it failed to address the “known recklessness” of its police officers as a group and of the officer here. This was not a “one-free- bite” situation just because the defendant had never killed anyone before. The Seventh Circuit observed: “Notably, failure-to-train liability does not require proof of widespread constitutional violations before that failure becomes actionable; a single violation can suffice where a violation occurs and the plaintiff asserts a recurring, obvious risk.” According to the Seventh Circuit, this principle was not inconsistent with Supreme Court failure to train precedent even though the Court had not yet expressly so held.

Comments

Flores demonstrates the importance of determining at the outset in a substantive due process case like this one whether the high-speed pursuit involved the need for quick decision making by police. If it did, then the purpose to do harm standard, virtually impossible to meet in most cases, applies. In this case, though, the officer deliberately insinuated himself into the situation which turned tragic because of his involvement, thereby triggering, according to the Seventh Circuit, the deliberate indifference standard for individual liability, a much easier standard to meet. See, on substantive due process, ch. 3 of Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2022-23 Ed)(West/Westlaw)

As to the city’s potential liability for failure to train, note that the Seventh Circuit acknowledged that in its view–not yet approved by the Supreme Court, and the subject of disagreement in the circuits–a single violation is enough for such liability where there is a recurring and obvious risk even in the absence of a showing of widespread constitutional violations. See, on failure to train liability, ch. 6 of my Treatise.

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Happy New Year to you and your family.

The Contracts Clause

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

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

As I noted in previous posts, there is a split in the circuits on whether Contracts Clause violations are actionable under section 1983. See https://nahmodlaw.com/2021/09/14/the-third-circuit-punts-on-whether-contracts-clause-violations-are-actionable-under-section-1983/

The Second Circuit has now joined those circuits–the Seventh and Ninth–ruling that the answer is yes. (The Fourth and Sixth Circuits have ruled the other way).

The Melendez Decision

In Melendez v. City of New York, 16 F.4th 992 (2nd Cir. 2021), the plaintiff landlords sued a city and city officials under section 1983 for prospective relief alleging, among other claims, violations of the Contracts Clause arising out of the city’s enactment during the Covid-19 pandemic of the Guaranty Law (the “Law”) rendering permanently unenforceable personal liability guarantees of commercial lease obligations arising between March 7, 2020 and June 30, 2021.

Reversing the district court, the Second Circuit ruled in a thoughtful and lengthy opinion evaluating Supreme Court precedent that this claim was improperly dismissed. It agreed with the district court that the Law substantially impaired plaintiffs’ commercial leases but disagreed that the Law was appropriate and reasonable to advance a significant and legitimate public purpose. Among other considerations, the Law did not merely defer guaranty obligations but permanently and entirely extinguished them. In addition, the Law did not “condition the relief it affords on guarantors owning shuttered businesses or, even if they do, on their ever reopening those businesses.” .

Judge Carney concurred in the result in part and dissented in part in an equally thoughtful and lengthy opinion, disagreeing with the majority on the Contracts Clause claim and arguing for a more deferential standard.

Comment

As I have argued, the better view is that Contracts Clause violations are indeed actionable under section 1983.

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By its terms, section 1983 creates damages and prospective relief remedies for deprivations by state and local government officials, and by local governments themselves, of rights, privileges and immunities secured by the Constitution and laws. But what constitutional violations are covered?

It might be thought that, inasmuch as section 1983 was enacted in 1871 by Congress under its Fourteenth Amendment section 5 powers, only violations of the Fourteenth Amendment (equal protection and due process) and incorporated provisions (the First, Second, Fourth, Fifth, Sixth and Eighth Amendments) of the Bill of Rights are covered. However, that turns out not to be the case.

Violations of Article I, §10, prohibiting Bills of Attainder, may also be actionable. See Zilich v. Longo, 34 F.3d 359 (6th Cir. 1994), where the plaintiff, a former city council member, sued a mayor and other officials under section 1983, alleging that a city council resolution denouncing him was, among other things, a Bill of Attainder prohibited by Article I, §10 of the Constitution. After canvassing Supreme Court case law which set out the three elements of a Bill of Attainder–specificity, punishment and lack of a judicial trial–the Sixth Circuit found that the element of punishment was missing. All the ordinance did was authorize the law director of the city to go to court to seek recovery of amounts considered illegally obtained by the plaintiff. There was no confiscation of plaintiff’s property. The fact that the resolution criticized the plaintiff by name and accused him of improper behavior was not sufficient. “Plaintiff has not cited, and our research has not disclosed, a single case in which a court has held that judging a member’s qualifications constitutes a bill of attainder.” 34 F.3d at 362. The court thus reversed the district court’s denial of summary judgment to the defendants on this issue.

Compare, though, Reynolds v. Quiros, 990 F.3d 286 (2^nd Cir. 2021), where the plaintiff state prisoner, who was serving a life sentence for murder, sought prospective relief under section 1983 against corrections officials. He alleged, among other claims, that they violated Article I, §10 through his placement in a special circumstances unit pursuant to a Connecticut statute governing his conditions of confinement that was enacted after his offense, trial and conviction. The Second Circuit did not expressly address the question whether Bill of Attainder violations are actionable under section 1983 but assumed that they were and went on to affirm the district court’s grant of prospective relief. It found that the defendants’ challenged conduct per the Connecticut statute satisfied the requirements of an unconstitutional Bill of Attainder: specification of the affected persons, punishment and the lack of a judicial trial.

Comment

Not only may Bill of Attainder violations be actionable under section 1983, but so too may violations of the Ex Post Facto Clause and the Contracts Clause. See Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 sec. 3:3 (2022-23 Edition)(West/Westlaw).

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