Younger Abstention and Amended Complaints
It’s not easy being a section 1983 plaintiff in federal court. There are many procedural hurdles facing such a section 1983 plaintiff who seeks damages and/or declaratory and injunctive relief.
Among these hurdles are justiciability doctrines such as standing and ripeness, various statutory bars such as the Tax Injunction Act, statutes of limitations, claim and issue preclusion, the Eleventh Amendment and various abstention doctrines that amount to an exhaustion of judicial remedies requirement. See generally Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 chs. 5 & 9 (2018)(West).
Among those abstention doctrines, typically applied to section 1983 claims for declaratory and injunctive relief, is what is called Younger abstention, based on Younger v. Harris, 401 U.S. 37 (1971), which is in turn based on considerations of federalism and comity. In its simplest terms, this is the rule: when state criminal judicial proceedings are already pending, a federal plaintiff seeking declaratory or injunctive relief against their continuation will typically be barred from the federal forum.
The Younger rule has been extended by the Supreme Court to include equitable relief against certain pending state judicial proceedings that are civil in nature where state interests are particularly weighty. Pennzoil Co. V. Texaco, Inc., 481 U.S. 1 (1987). The Court has even applied Younger to certain pending state administrative proceedings. Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619 (1986).
With this as background, consider the interesting (and somewhat technical) question of whether the filing of an amended complaint can require a federal court to reexamine whether Younger abstention, previously rejected, is now appropriate.
Hill v. Snyder, 878 F.3d 193 (6th Cir. 2017), involved section 1983 constitutional challenges by juvenile offenders, convicted of first-degree murder and sentenced to life in prison without possibility of parole, to the state’s no-parole eligibility. The lawsuit was brought in 2010. Thereafter, the Supreme Court in different cases ruled that such a policy was unconstitutional (in 2012) and that its ruling was to be applied retroactively (in 2016). The plaintiffs then filed a supplemental amended complaint (SAC).
The Sixth Circuit found Younger absention inappropriate for the SAC for several reasons. First, the lawsuit was initiated long ago and Younger abstention is “bound up with beginnings.” The SAC was not a new case and defendants offered no authority for the proposition that the filing of an amended complaint requires a reexamination of Younger’s application.
Second, even if Younger analysis were now appropriate, the result would be the same: no abstention. “Plaintiffs should not be punished because the novel position they championed in 2010 was subsequently given a voice by the Supreme Court, a development that necessitated updates to the complaint in 2016. To do so would create perverse incentives that would punish Plaintiffs’ prescience in understanding the direction in which the Supreme Court was heading.”
Comment
The Sixth Circuit’s decision was rather clearly based on Hill‘s unique facts–including the Supreme Court’s subsequent decisions supporting the plaintiffs’ position–and its procedural history. Hill did not purport to set out a general rule precluding the applicability of Younger to amended complaints.
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36th Annual Section 1983 Conference on April 11-12, 2019: Save the Date
What follows is a link to the Save-the-Date announcement for the forthcoming 36th Annual Section 1983 Conference to be held in Chicago on April 11-12, 2019. This announcement includes registration information.
Featured speakers include Karen Blum, Rosalie Levinson, Erwin Chemerinsky, Kimberly Bailey, John Murphey, Gerry Birnberg and me.
Click to access 2018Dec21-3937-sec83%20-%20save%20the%20date%20flyer%202019.pdf
If you have any questions, please contact either me at snahmod@kentlaw.edu or our CLE department at CLE@kentlaw.iit.edu.
Thanks.
Substantive Due Process Privacy Violations and Section 1983 Claims
Section 1983 makes actionable violations of “rights, privileges, or immunities secured by the Constitution.” This includes not only violations of incorporated provisions of the Bill of Rights such as the First, Second, Fourth and Eighth Amendments but also the Fourteenth Amendment’s stand-alone provisions, the Due Process and Equal Protection Clauses.
As a result of Supreme Court contraceptive, abortion and homosexual sodomy decisions–see Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992); Lawrence v. Texas, 123 S. Ct. 2472 (2003)–a constitutional right of privacy is now recognized under the Due Process Clause. This right essentially protects procreations, marriage, family matters and sexual autonomy.
See generally my earlier post on substantive due process and the right of privacy here: https://nahmodlaw.com/2014/09/29/know-your-constitution-7-what-is-subtantive-due-processright-of-privacy/
A good recent example of a section 1983 damages action arising out of a substantive due process violation is Perez v. City of Roseville, 2018 WL 797453, *2 (9th Cir. 2018). This Ninth Circuit case involved a former probationary police officer who was discharged after an internal investigation into her romantic relationship with a fellow police officer She alleged under section 1983 that this violated her due process rights to privacy and intimate association because it was based in part on disapproval of her private, off-duty sexual conduct.
Reversing the district court which had granted summary judgment to the defendants, the Ninth Circuit observed that it had “long held that the constitutional guarantees of privacy and free association prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation.” In this case, a genuine issue of material fact existed as to whether the plaintiff was terminated at least in part because of her extramarital affair.
The Ninth Circuit went on to rule that the defendants were not entitled to qualified immunity because the relevant due process law was clearly settled long ago in Thorne v. City of El Segundo, 726 F.3d 459 (9th Cir. 1983). Judge Tashima concurred, 2018 WL 797453, *14, disagreeing with the majority’s reasoning on this issue.
Comment
The broader the scope of the right of privacy, the broader the potential scope of section 1983 damages liability. This is true, of course, for other constitutional violations that are actionable under section 1983.
It is also important to note that the contours of the right of privacy are for the most part clearly established for qualified immunity purposes.
I discuss many other section 1983 substantive due process privacy cases in my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2018)(West) at sec. 3:78.
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Manuel v. City of Joliet and Accrual: The Plaintiff Wins in the Seventh Circuit
Background
I posted several times previously on Manuel v. City of Joliet, 137 S. Ct. 911 (2017), an important section 1983 malicious prosecution case that came out of Seventh Circuit and made it to the Supreme Court, which reversed and remanded. My most recent post on Manuel, which can serve as background, is here:
Recall that after the plaintiff in Manuel was arrested on March 18, 2011, and charged with possessing unlawful drugs, he was held in jail pending trial pursuant to a judge’s decision. Forty-seven days later, all charges were dismissed against him because the drugs he was carrying were apparently legal, and he was released the next day. On April 22, 2013, the plaintiff sued for damages under section 1983 and the Fourth Amendment, alleging that his detention without probable cause was unconstitutional. Reversing the Seventh Circuit and remanding, the Supreme Court ruled that the plaintiff was entitled to seek damages under the Fourth Amendment but remanded to determine whether his complaint was timely under the applicable two-year Illinois statute of limitations.
On Remand to the Seventh Circuit
In Manuel v. City of Joliet, 2018 WL 4292913 (7th Cir. 2018), the particular issue before the Seventh Circuit, in light of the Supreme Court’s decision and remand, was when his section 1983 Fourth Amendment cause of action accrued? Was it March 18, when the plaintiff was arrested and ordered by the judge to remain in custody, in which case the suit would not be timely? Was it May 4, 2011, when the prosecutor dismissed the charge, in which case his suit would be timely? Or was it on May 5, 2011, when the plaintiff was released, in which case his suit would also be timely? The Seventh Circuit ruled that the plaintiff’s section 1983 Fourth Amendment cause of action accrued on May 5, 2011, when he was released; thus, his suit was timely.
The Defense Argument Based on Wallace v. Kato Rejected
In an opinion by Judge Easterbrook, the Seventh Circuit rejected the defense argument that the cause of action accrued when the plaintiff was brought before the judge and held pursuant to legal process, per Wallace v. Kato, 549 U.S. 384 (2007). First, here, unlike in Wallace, the plaintiff challenged his custody, and not just his arrest. Second, and more important, the Seventh Circuit asserted: “[T]he line that the Justices drew in Wallace–in which a claim accrues no later than the moment a person is bound over by a magistrate or arraigned on charges … and [that] all Fourth Amendment claims are to be treated alike–did not survive Manuel.” The Seventh Circuit reasoned that because the Court held in Manuel that wrongful pretrial custody violates the Fourth Amendment even when it follows the start of legal process in a criminal case, “[w] hen a wrong is ongoing rather than discrete, the period of limitations does not commence until the wrong ends.”
The Plaintiff’s Argument Based on the Tort of Malicious Prosecution Also Rejected
The Seventh Circuit also rejected the plaintiff’s analogy to the tort of malicious prosecution, under which favorable termination–here, May 4, 2011, when the prosecutor dismissed the charge–would be determinative. Characterizing the plaintiff’s claim as a Fourth Amendment malicious prosecution claim was “wrong” after Manuel. The Seventh Circuit explained:
The problem is the wrongful custody. … But there is a constitutional right not to be held in custody without probable cause. Because the wrong is the detention rather than the existence of criminal charges, the period of limitations also should depend on the dates of the detention.
Finally, the Seventh Circuit observed that its conclusion was supported by the accrual principle that the “existence of detention forbids a suit for damages contesting that detention’s validity.” It commented that in light of Supreme Court precedent, section 1983 “cannot be used to contest ongoing custody that has been properly authorized.”
Comment
Once the Seventh Circuit determined that Wallace v. Kato was inapplicable in light of the Court’s decision in Manuel, an accrual decision favoring the plaintiff readily followed, even though not based on the plaintiff’s malicious prosecution analogy. Indeed, the Seventh Circuit expressly, and correctly, declared that malicious prosecution doctrine was irrelevant to what was a straightforward section 1983 Fourth Amendment claim challenging illegal custody.
In so stating, the Seventh Circuit was not only consistent with its own prior case law but also with my long-standing position (discussed in earlier posts and in my section 1983 treatise) that malicious prosecution doctrine should play no direct role in the elements of section 1983 claims. In this view, what is crucial is the particular constitutional claim, here the Fourth Amendment. Indeed, the Seventh Circuit went on to observe that malice was irrelevant to a claim like Manuel‘s: “[T]his is a plain-vanilla Fourth Amendment claim, and under that provision is objective.”
Thus, it bears repeating the Seventh Circuit’s accrual decision was based on the particular Fourth Amendment claim directed against plaintiff’s custody.
Quere: Is the Seventh Circuit’s decision certworthy in light of the Seventh Circuit’s take on the adverse, if not overruling, effect of Manuel on Wallace?
See generally, on section 1983 malicious prosecution, my treatise: CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 3 (2018)(West & Westlaw).
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Video of Lecture on the Religion Clauses, RFRA and RLUIPA
I lectured on the Religion Clauses, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA) at the New Mexico State Bar Convention in Ruidoso, New Mexico, in August, 2017.
The lecture lasted an hour and nine minutes. It is a good overview and summary and can also serve as a useful introduction, even for non-lawyers, to those who want to become knowledgeable quickly about these topics.
Below is the link to the Youtube video of this lecture. I hope you find it of interest.
If you want a copy of the accompanying outline, please email me at snahmod@kentlaw.edu and I’ll send it to you.
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Local Governments Can Be Liable for Failure to Supervise Police in Excessive Force Cases, But Not in This Second Circuit Decision
Local Government Liability Under Section 1983 for Failure to Train or Supervise Police in Excessive Force Cases
The Supreme Court ruled almost thirty years ago in City of Canton v. Harris, 489 U.S. 378 (1989), that local governments can be liable under section 1983 for damages for their deliberately indifferent failures to train or supervise their employees who, as a result, commit constitutional violations.
Under this standard, there must be a close connection–both in terms of cause in fact and proximate cause–between the deliberate indifference (the required state of mind) and the particular constitutional violation. See generally ch. 6 in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2018)(West & Westlaw).
However, proving deliberate indifference and its connection to the particular constitutional violation can be a difficult hurdle for section 1983 plaintiffs to overcome, as witness Outlaw v. City of Hartford, 884 F.3d 351 (2nd Cir. 2018).
Outlaw v. City of Hartford (2nd Cir. 2018)
In Outlaw, the Second Circuit dealt with a plaintiff’s Fourth Amendment excessive force claim against a city that alleged an official policy or custom of deliberate indifference in supervising police officers in the use of force. The defendant police officer had allegedly used excessive force against the plaintiff in arresting him, thereby violating his Fourth Amendment rights.
Affirming the district court’s grant of summary judgment to the city, the Second Circuit found that the evidence submitted by the plaintiff was insufficient to permit an inference of deliberate indifference by the city regarding supervision and the use of excessive force. The plaintiff’s reliance on proceedings in other police misconduct litigation was misplaced because that litigation focused on systemic discrimination against racial minorities.
Also, there had only been two prior excessive force complaints against this police officer: one was filed after the incident here and could not have been a proximate cause of plaintiff’s injuries; the other complaint, which was filed after the incident here–although it related to an incident that occurred prior to it–was not deliberately ignored by the city but demonstrated no more than negligence.
Further, excessive force lawsuits against other officers and the claims sent to the city’s insurers might have provided a basis for a finding of deliberate indifference. But there was no evidence of the underlying facts or how thoroughly they were investigated. Some of these cases did not even involve excessive force.
Finally, it was “incumbent” on the plaintiff to “utilize procedures provided by the Federal Rules of Civil Procedure to compel responses to his request that sought necessary information and that were appropriate.”
Substantial Section 1983 Compensatory and Punitive Damages Awarded for False Arrest on Sexual Abuse Charges
Sexual abuse charges are obviously very serious for all concerned. So when police officers investigate, arrest and charge sexual abuse, especially when the charges involve minors, they must be very careful. The following Sixth Circuit decision serves as a cautionary tale.
Wesley v. Campbell, 864 F.3d 433 (6th Cir. 2017)
Wesley dealt with the false arrest of the plaintiff for sexual abuse of students. In this case, the Sixth Circuit upheld, as not excessive, a jury’s $589,000 compensatory and $500,000 punitive damages awards against the defendant police officer for Fourth Amendment violations.
Compensatory Damages of $589,000 Upheld
The compensatory damages award was for lost wages, past pain and suffering and future pain and suffering (plaintiff was diagnosed with PTSD because of the arrest). As to the disputed $132,000 awarded for lost wages, the district court observed that even though plaintiff’s termination as a school counselor had occurred before his arrest, nevertheless the “red flags caused by his false arrest, and the resulting unemployment period, were detrimental to [plaintiff’s] ability to be rehired in any position, but especially in one working with children.” In addition, there was testimony about plaintiff’s inability, despite his background and qualifications, to obtain a job working with children. The district court thus did not err in refusing to remit the compensatory damages award.
Punitive Damages of $500,000 Upheld
In addition, the Sixth Circuit upheld the jury’s $500,000 punitive damages award. First, there was sufficient evidence of defendant’s reckless and callous disregard of plaintiff’s Fourth Amendment rights to justify a punitive damages award. Further, the award was not excessive: plaintiff suffered fear and uncertainty for over three months; he was depressed and irritable; he suffered significant economic harm; the threat of physical force directed at him was apparent; the stigma was significant; the defendant’s conduct was particularly reprehensible, especially in light of the plaintiff’s career of counseling children; the ratio between the compensatory and punitive damages awards was in single digits with the punitive damages award even being less than the compensatory damages award; and finally, the punitive damages award here was comparable to awards for similar violations.
Comments
1. Compensatory damages are available under section 1983, and federal common law rules of compensatory damages govern. These damages can consist of special damages, or out-of-pocket expenses such as lost wages and medical costs. They can also include general damages, or damages for past and future pain, suffering and humiliation. In Wesley, there were substantial special and and general damages proved that accounted for the large compensatory damages award.
2. Punitive damages are available under section 1983 against individuals, although not against local governments. Before a section 1983 plaintiff can get a punitive damages instruction to the jury, there must be sufficient evidence of the defendant’s reckless or callous indifference to the section 1983 plaintiff’s federally protected rights. Malice or ill will is not required. Smith v. Wade, 461 U.S. 30 (1983). Note that the state of mind required for a punitive damages instruction is not the same as the state of mind required for the constitutional violation in the first place. This is the case even if that state of mind is, say, purposeful discrimination for an equal protection violation or deliberate indifference for an Eighth Amendment violation. The higher punitive damages state of mind must be separately proved. In Wesley, the defendant’s conduct not only satisfied the punitive damages standard but it was found to be particularly reprehensible. The jury’s punitive damages award was thus upheld.
See generally on section 1983 damages, Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 4 (4th ed. 2018)(West & Westlaw).
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A DeShaney Danger Creation Case that Survived Summary Judgment
Over the years I have posted many times about the difficulty plaintiffs have in surmounting the no-affirmative duty substantive due process rule of DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989). This case declared that government has no affirmative duty to protect or rescue individuals from private harm. See Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 secs. 3:59-3:61 (4th ed. 2017)(West).
As noted in the voluminous case law, there are two possible end-runs around this no-duty rule. First, where there is special relationship between the government and the plaintiff, a very limited category of cases in which the plaintiff is dependent on government and cannot act on his or her own behalf. And second, danger creation, where government itself is not neutral but rather creates the danger to the plaintiff.
But even where an affirmative substantive due process duty has been shown, the plaintiff must go on to show a breach of that duty, or a violation of substantive due process.
Irish v. Maine, 849 F.3d 521 (1st Cir. 2017), and danger creation.
In Irish v. Maine, the former boyfriend of the one of two plaintiffs (the other plaintiff was her mother) broke into her parents’ home, fatally shot her boyfriend, shot her mother, abducted her and engaged in a shootout with police during which another individual was shot fatally. The plaintiff alleged that the rampage began after a police officer left the former boyfriend a voice message notifying him that the plaintiff had made a complaint to police about the former boyfriend’s serious violent crimes against her earlier, and asking him to come in for an interview. This was despite the plaintiff’s explicit request that the former boyfriend not be notified by police because of her concern that such notice would incite further violence against her, which turned out to be true.
Reversing the district court which had dismissed plaintiff’s danger creation substantive due process claim, and had also granted defendants’ qualified immunity motion, the First Circuit remanded for further fact finding. It observed that there was no evidence as to whether the police decision to leave a voice message was in line with police protocol and training. There was also no evidence on exactly what the officers knew about the veracity of plaintiff’s allegations against the former boyfriend, about his propensity for violence and about whether he would likely act on that propensity. According to the First Circuit, these facts were relevant to both the viability of the due process claim and qualified immunity.
Comment
The first question is whether there was a general substantive due process duty imposed on the police to protect the plaintiff from her former boyfriend. The short answer under DeShaney is no. The second question is whether the police in this case had any kind of special relationship with the plaintiff, and here too the short answer is no. The crucial question, then, is whether the police violated substantive due process in creating the danger to the plaintiff by leaving a voice message for the former boyfriend despite the plaintiff’s explicit request that the police not notify him because that would incite him to further violence.
Note that the issue in the First Circuit was not whether the voice message actually caused the former boyfriend’s violent acts; this seems to have been shown. Rather, having thus shown the existence of an affirmative due process duty to protect or rescue though the police creation of the danger, did the plaintiff also show a breach of that duty, namely, a violation of substantive due process? And the constitutionally required state of mind for such a substantive due process violation is deliberate indifference.
This is why the First Circuit remanded. If leaving a voice message was not in line with protocol, this would tend to show deliberate indifference. Similarly, if the police knew about the truthfulness of the plaintiff’s description of her former boyfriend and that he would likely engage in violence against her, that too would tend to show deliberate indifference.
(For more discussions of recent circuit court decisions addressing DeShaney issues, search this blog for “DeShaney”)
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Remarks On Receiving the American Constitution Society Abner Mikva Award (with Some Comments about Section 1983)
Please indulge me with this post of my remarks on receiving the Abner Mikva Award on July 24, 2018, from the Chicago Lawyers’ Chapter of the American Constitution Society.
Thanks, Geoff [Geoffry Stone is Professor of Law at University of Chicago Law School]. It is indeed an honor to be introduced by one of the premier constitutional law and First Amendment scholars of this generation, a worthy successor to the great Harry Kalven at U of C Law school, and a national leader in promoting the values of ACS.
It is especially an honor for me, a first-generation American, to receive the Abner Mikva award. Judge Mikva was one of the great public servants in my lifetime. I still remember, when I was a college student at U of C, hearing about an outstanding civil rights and liberties law firm in Chicago called Devoe, Shadur, Mikva and Plotkin. Although I never had the pleasure of meeting Judge Mikva personally, I did meet his law firm colleague, Judge Milton Shadur, also a great public servant, when we spoke at several Federal Judicial Center programs for federal judges.
I want to thank the ACS Board in Chicago for giving me this award, and particularly appreciate the support of Erwin Chemerinsky; my superstar student, Anthony Joseph (at this very moment taking the Illinois Bar Exam); and Dana Pownall.
Thanks to all of you for being here to honor us. I’d like to acknowledge my colleagues from Chicago-Kent, several of my favorite former students and my close friends who are sitting at their special table. And I would be remiss (and perhaps divorced) if I did not acknowledge my ultimate supporter—my wife Sonia, whom I was exceedingly fortunate to meet and marry way back in the last century.
Since I love to teach, I would like to teach you a little about section 1983, a topic that I have taught, written about and litigated in the Supreme Court and various federal courts over the past forty years. Section 1983 is a federal statute enacted by the 42ndCongress in 1871 and signed into law by President Grant. It is one of several Reconstruction Era statutes enacted under the then-new 13thand 14thAmendments so as to protect former slaves and their supporters and to go after the KKK. I like to think of section 1983 as covenental, as codifying an agreement between citizens and their local and state governments.
This superstatute creates a 14thAmendment damages action against state and local government officials and employees, and against local governments themselves, that violate our constitutional rights and cause damage. It is pro-plaintiff all the way, and its resurrection in 1961 in Monroe v. Pape initially gave rise to expansive interpretations in the Supreme Court. However, in the last decade-and-a-half in particular, the Supreme Court unfortunately (but perhaps not surprisingly) has cut back on the scope of section 1983 liability by limiting constitutional protections (especially the Fourth Amendment), by expanding what’s called absolute immunity from damages liabiltiy and, more to the present point, by providing law enforcement officers with overbroad and often unjustifiable qualified immunity protection from damages liability in excessive force and false arrest cases. As currently articulated by the Supreme Court, qualified immunity protection in my view provides too big a margin for error to too many law enforcement officers and effectively renders them unaccountable. These decisions constitute a kind of Supreme Court signalling to law enforcement that is very troubling and inconsistent with the grand purposes of section 1983.
What can be done? I do not hold out much hope for change in the Supreme Court in the near future. After all, Justice Kennedy (who recently resigned) typically joined with four other conservative justices in expanding qualified immunity protection to law enforcement officers, and his likely replacement, Judge Kavanaugh, will surely do no less. So any changes to section 1983 that might restore it to its prior status as a powerful civil rights and liberties sword will have to come from a politically accountable Congress.
Here are my suggestions for Congressional legislation: (1) statutorily overule the Will decision and declare that section 1983 abrogates 11thAmendment immunity, so that states can be sued directly for damages, and (2) impose respondeat superior liabilty on state and local governments for the constitutional violations of their officials and employees (no more arcane official policy or custom requirement for governmental liability). These two changes would render qualified immunity protection for individual law enforcement officers and others less important because deep pocket state and local governments would be liable under respondeat superior.
Anyway, those are my section 1983 recommendations in a nutshell. Thank you all again for being here. I am truly fortunate to be in a position to promote civil rights and liberties by my teaching, my writing, my appellate advocacy and, yes, even my blogging.
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Lozman v. City of Riviera Beach and First Amendment Retaliatory Arrest Damages Claims: The Court Again Sidesteps the Probable Cause Issue
Lozman v. City of Riviera Beach
In Lozman v. City of Riviera Beach, 138 S. Ct. — (2018), the Supreme Court once again avoided ruling generally on the question whether a section 1983 plaintiff who alleges a retaliatory arrest in violation of the First Amendment must allege and prove the absence of probable cause in addition to impermissible First Amendment motive. Or, to put it another way, whether probable cause to arrest is a defense to a First Amendment retaliatory arrest damages claim. Instead, it ruled narrowly for the plaintiff based on the particular facts of his case.
In Lozman, the plaintiff alleged that a city (through its policymakers) had him arrested in retaliation for the exercise of his First Amendment rights. He claimed that he was arrested at a city council meeting when he got up to speak because he previously had criticized the city’s eminent domain redevelopment efforts and had also sued the city for violating the state’s Sunshine Act. He was never prosecuted. However, the plaintiff conceded that there was probable cause for his arrest for violating a Florida statute prohibiting interruptions or disturbances at certain public assemblies, because he had refused to leave the podium after receiving a lawful order to do so.
Ordinarily, such a plaintiff, in order to make out a section 1983 First Amendment retaliatory arrest claim, would only have to allege and prove that this impermissible retaliatory motive caused him harm, and the defendant would have the burden of disproving the absence of but-for causation in order to escape liability. Mt. Healthy Bd. of Education v. Doyle, 429 U.S. 274 (1977). But here the city argued that even if its motive was impermissible under the First Amendment, there was probable cause–an objective Fourth Amendment standard–to arrest the plaintiff anyway, and that this constituted a defense to the plaintiff’s First Amendment retaliation claim.
In Lozman, the Eleventh Circuit had ruled that probable cause was indeed a defense to a section 1983 First Amendment retaliatory arrest claim. Specifically, it determined that a section 1983 retaliatory arrest plaintiff must allege and prove not only the retaliatory motive but the absence of probable cause as well. In other words, the absence of probable cause was an element of the section 1983 plaintiff’s retaliatory arrest claim.
The Eleventh Circuit’s Reliance on Hartman v. Moore
The Eleventh Circuit’s decision was based on the Supreme Court’s decision in Hartman v. Moore, 547 U.S. 250 (2006), which held that for section 1983 retaliatory prosecution claims against law enforcement officers (prosecutors themselves are absolutely immune from damages liability for their decision to prosecute), the plaintiff must allege and prove not only the impermissible motive but the absence of probable cause as well. The Court reasoned that there was a presumption of prosecutorial regularity that the section 1983 plaintiff must overcome as an element of his retaliatory prosecution case. Accordingly, as a matter of section 1983 statutory interpretation and policy (but not of constitutional law), the plaintiff should have this twin burden in retaliatory prosecution cases.
The Court in Hartman explained that a retaliatory prosecution case was very different from the usual First Amendment retaliation case that involved a relatively clear causal connection between the defendant’s impermissible motivation and the resulting injury to the plaintiff. It was appropriate in such cases to apply the Mt. Healthy burden-shift rule under which the defendant has the burden of disproving but-for causation in order to prevail.
As discussed in a prior post, the Court previously had a similar First Amendment retaliatory arrest issue before it in Reichle v. Howards, 566 U.S. 658 (2012). But it avoided addressing the merits by ruling for the individual defendants on qualified immunity grounds.
In my view, as I have argued previously, the Court’s decision in Hartman should not be applied to First Amendment retaliatory arrest cases. The express reason for the Hartman rule is that First Amendment retaliatory prosecution cases involve a presumption of prosecutorial regularity. But this reason is clearly inapplicable where there is no prosecution and the constitutional challenge is to the arrest itself.
Moreover, First Amendment retaliatory arrest claims involve the impermissible motivation (a subjective inquiry) of law enforcement officers irrespective of probable cause, which is an objective (could have arrested) inquiry. Under this objective inquiry, the existence of probable cause precludes a Fourth Amendment violation based on an arrest even where that arrest is grounded on an offense different from the offense for which probable cause is deemed to be present. This provides a great deal of protection for police officers who allegedly make arrests in violation of the Fourth Amendment.
However, if a police officer arrests a person for racial reasons, and the claimed injury is grounded on those racial reasons, it should not matter for the Equal Protection claim–-even if it would for a Fourth Amendment claim–-that the officer had probable cause to do so, namely, that the officer could have arrested the plaintiff. This reasoning should apply as well to §1983 First Amendment retaliatory arrest claims.
It was always questionable whether the Court in Hartman should have allowed policy considerations to change the usual section 1983 causation rules in First Amendment retaliatory prosecution cases. Regardless, that reasoning should most definitely not be extended to First Amendment retaliatory arrest cases. Such policy considerations as are discussed in Hartman are most appropriately addressed, if they are to be addressed at all, as part of the qualified immunity inquiry, not the elements of the section 1983 retaliatory arrest claim.
The Supreme Court’s Narrow Decision in Lozman
In any event, in Lozman, the Court, in an opinion by Justice Kennedy, reversed the Eleventh Circuit and ruled that in this particular case the plaintiff did not have to allege and prove the absence of probable cause, and probable cause was not a defense to his First Amendment retaliatory arrest claim.
Emphasizing the narrowness of its decision, the Court pointed out that the plaintiff only challenged the lawfulness of his arrest under the First Amendment; he did not make an equal protection claim. Further, he conceded there was probable cause for his arrest, namely, that he could have been arrested for violating the Florida statute. Thus, the only question was whether the existence of probable cause barred his First Amendment retaliation claim in this case.
The Court went on to observe that the issue in First Amendment retaliatory arrest cases was whether Mt. Healthy or Hartman applied. It addressed what it considered to be the strong policy arguments on both sides of the issue. The Court then determined that resolution of the matter would have to wait for another case: “For Lozman’s claim is far afield from the typical retaliatory arrest claims, and the difficulties that might arise if Mt. Healthy is applied to the same mine run of arrests made by police officers are not present here.” For one thing, the plaintiff did not sue the officer who made the arrest. For another, since he sued the city, he had to allege and prove an official policy or custom, which “separates Lozman’s claim from the typical retaliatory arrest claim.” Moreover, the causation issues here were relatively straightforward because the plaintiff’s allegations of an official policy or custom of retaliation were unrelated to the criminal offense for which the arrest was made but rather to prior, protected speech. In short, the causal connection between the alleged animus and the injury would not be “weakened by [an official’s] legitimate consideration of speech.”(quoting Reichle, 566 U.S. at 668).
This did not mean that the Lozman plaintiff would necessarily win on remand. A jury might find that the city did not have a retaliatory motive. Or, under Mt. Healthy, the city might show that it would have had the plaintiff arrested anyway regardless of any retaliatory motive.
Justice Thomas was the sole dissenter. He maintained that the Court had simply made up a narrow rule to fit this case. Instead, he argued that plaintiffs in First Amendment retaliatory arrest cases have the burden of pleading and proving the absence of probable cause. That is, probable cause “necessarily defeats First Amendment retaliatory-arrest claims.” Accordingly, the plaintiff should lose here.
Comments
The better approach, as indicated above, is to apply Mt. Healthy in all retaliatory arrest cases. Hartman should be limited to retaliatory prosecution cases. Nevertheless, after Lozman the question is still open in the Supreme Court. This means, among other things, the retaliatory arrest individual defendants will continue to have a powerful qualified immunity argument, namely, that the law is not clearly settled even now, per Reichle v. Howards.
Note, however, that the Court may yet resolve this question in its forthcoming 2018 Term. On June 28, 2018, it granted certiorari in Nieves v. Bartlett, 712 Fed.Appx. 613 (9th Cir. 2017)(No.17-1174), to address once again whether probable cause is a defense to a section 1983 First Amendment retaliatory arrest claim. In this unreported decision, the Ninth Circuit ruled that probable cause is not a defense to First Amendment retaliatory arrest damages claims.
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