Nahmod Law

Takings Claims Against States After Knick: Some Unanswered Questions

The Knick takings decision

The Supreme Court, in Knick v. Township of Scott, 139 S. Ct. 2162 (2019), a game-changing 5-4 takings decision, overruled Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985). In Knick, the district court had dismissed a property owner’s section 1983 takings claim for damages against a local government because she had not pursued an inverse condemnation action in state court against the local government as required by Williamson County. The Court, reversing in an opinion by Chief Justice Roberts, declared:

We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claims when the government takes his property without paying for it. … [This means] that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and may therefore bring his claim in federal court under [section] 1983 at that time.

(Knick, its relation to Williamson County and its implications for section 1983 damages actions claiming takings against local governments are addressed at length in a previous post here: https://nahmodlaw.com/2019/07/25/the-knick-case-takings-and-section-1983-a-somewhat-different-view/).

What are the implications for section 1983 damages actions claiming takings against states?

Even after Knick, a section 1983 takings plaintiff attempting to sue a state for damages in federal court has to confront two obstacles. The first is the Supreme Court’s decision in Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), that a state, unlike a local government, is not a suable “person” within the meaning of section 1983. And second, even apart from Will, the Eleventh Amendment would serve as a bar to such a federal court lawsuit since Will also held that section 1983 did not abrogate Eleventh Amendment immunity.

A section 1983 takings plaintiff who sues a state for damages in state court in order to avoid the Eleventh Amendment bar would fare no better because, as mentioned, a state is not a suable “person” for section 1983 purposes as a matter of statutory interpretation. A state thus cannot be sued for damages under section 1983 anywhere.

The result is that the section 1983 takings plaintiff suing a state in federal court has to forego his or her damages claim and instead seek declaratory and injunctive relief under section 1983 against the relevant state officials alleging an unconstitutional taking. If successful, the plaintiff would be entitled to attorney’s fees in addition to prospective relief.

In addition, the section 1983 plaintiff seeking damages for an unconstitutional taking could sue state officials in their individual capacities for damages. In many such cases, though, these state officials would likely defend on the ground of absolute quasi-judicial immunity and, as a fallback, on the ground of qualified immunity, arguing that they did not violate clearly settled takings law.

Here is where it gets interesting.

Could a takings plaintiff seeking damages against a state in federal court not use section 1983 but instead rely on the Fourteenth Amendment (which incorporates the Fifth) as the basis for his or her claim? Notice that the section 1983 “person” issue drops out. You may say that there is still a potential Eleventh Amendment problem. But could the Fourteenth Amendment takings plaintiff plausibly make two related arguments. First, that the Fourteenth (and Fifth) Amendments are self-executing, per Knick, and give rise on their own to potential damages liability where there has been a taking without just compensation? And second, that the Fourteenth (and Fifth) Amendments, by virtue of their self-executing nature regarding just compensation (this is where Knick comes in again), abrogate Eleventh Amendment immunity? The Fourteenth Amendment, at least insofar as takings are concerned, could be read as modifying the Eleventh Amendment in this respect.

A related question, whose answer might be relevant to the above questions about states, is whether any of this reasoning applies to Fifth Amendment damages taking claims against the federal government. Is the Fifth Amendment self-executing in this respect and does it abrogate federal sovereign immunity? Or has the federal government separately waived its sovereign immunity under the Tucker Act, 28 U.S.C. section 1491(a)(1), thus avoiding the need to answer the abrogation question?

There you have it. Please feel free to email me at snahmod@kentlaw.edu with any thoughts you may have.

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Written by snahmod

January 31, 2020 at 6:24 pm

Upcoming 37th Conference on Section 1983: April 23-24, 2020

I am pleased to announce that the 37th consecutive Conference on Section 1983 will be held at Chicago-Kent College of Law on Thursday and Friday, April 23-24, 2020.

As always, the Conference features outstanding and experienced scholars and practitioners addressing virtually all aspects of section 1983 and related constitutional provisions. The Conference also includes updates on important recent and forthcoming Supreme Court cases and on attorney’s fees and related ethical issues. In addition, this year we have new presentations on due process, immigration and takings law after Knick.

Here is the registration link: https://cle.kentlaw.edu/conference-detail.asp?productId=426.

Please call our CLE office, 312-906-5090, or connect with the office via email, cle@kentlaw.iit.edu, if you have any questions.

Or, you may email me directly at snahmod@kentlaw.edu.

Here is a chronological listing of each day’s presentations.

Day 1: Thursday, April 23, 2020

Sheldon Nahmod on the basics of the section 1983 claim

Erwin Chemerinsky on individual immunities

Karen Blum on municipal liability

Rosalie Levinson on due process

Erwin Chemerinsky on the Supreme Court’s current and forthcoming Terms

Day 2: Friday, April 24, 2020

John Murphy on practical considerations in section 1983 litigation

Kimberly Bailey on the Fourth Amendment

John Murphy on takings after Knick (concurrent session)

Victoria Carmona on immigration law and section 1983 (concurrent session)

Gerry Birnberg on attorney’s fees and ethical issues

——————————————————————————

I hope to see you there. And if you do attend, please say hello.

I invite you to follow me on Twitter: @NahmodLaw

 

Written by snahmod

January 15, 2020 at 9:10 am

National Dysfunction and the Impeachment Process

Like families, nations can be dysfunctional. And indeed, the United States, this great Republic, now appears to be dysfunctional. Political parties, as well as individuals, speak past one another, neither trusting nor even listening to the other. This ideological polarization both reflects, and adversely affects, the politically accountable branches of government, the House, the Senate and the Presidency. It even taints the federal judiciary, including the Supreme Court. The President in particular is polarizing: many individuals either love him or hate him, with no in-between. The electronic media—TV, radio, cable –don’t seem to help very much: to the contrary, there are far too many conspiracy theories and far too many attacks on so-called “fake news.” There is far too much opinionating and there are far too few facts discussed by the talking heads on MSNBC, CNN, Fox News and other platforms. Indeed, some of the most misguided, and perhaps most dangerous, talking heads even question whether there can be facts independent of politics. Don’t believe them. Objective reality exists.

Some Historical Background

We have been dysfunctional before. The most extreme example of national political dysfunction was the Civil War, which was preceded by vicious political battles over slavery and states’ rights, and culminated in hundreds of thousands of deaths and much destruction. But I want to suggest that Presidential impeachment proceedings are also an indication of a dysfunctional United States, although thankfully they are less extreme examples of such dysfunction than the Civil War was. For example, President Andrew Johnson (Johnson was the assassinated President Lincoln’s Vice President and was a racist as well as a drunk)  was impeached by the House in 1868 but he escaped removal from office in the Senate by one vote. His impeachment reflected a profound national political split over the recently freed slaves and Reconstruction, as well as deep Congressional distrust of him. In 1999, President Clinton’s impeachment by the House, controlled by Republicans, similarly reflected national political dysfunction (Democrats v. Republicans) as well as deep-seated personal hostility toward the President. He escaped removal on political party lines in the Senate because there was not a 2/3 vote to remove him.

President Nixon’s impeachment proceedings resulted in a vote by the House Judiciary Committee in 1974 to adopt three Articles of impeachment. But there was never a formal vote to impeach by the House itself (with a Democrat majority) because the President resigned shortly after he made the Watergate Tapes transcript available to the public and was told by Republican leaders that he would not survive impeachment. Fortunately for the nation, the Nixon proceedings were accompanied by the desire of many members of Congress of both parties to get at the facts about the President’s alleged obstruction of justice, abuse of power and willful disobedience of subpoenas issued by the House Judiciary Committee. This is not to say that there was not political polarization at that time as well, both in Congress and among individuals. There was, as many of us remember. But there also seemed to be an emerging national bipartisan consensus to discover the truth.

With this as historical background, I want to say some things about the current House hearings about impeachment involving President Trump, and about impeachment in general. I do not plan to get to the substantive merits of possible charges against the President. It is too  soon to do that because (as I write this)  there has not as yet been an official report from the House Intelligence Committee.

But I would like to set out some legal background in plain English so that we as Americans can better understand the process. I firmly believe that as citizens we have an individual and collective responsibility to do so independently of all of the rabid opinionating surrounding us that threatens to overwhelm us and to distort our thinking. My takeaway message: respect the process regardless of your political views.

The Impeachment Process

It starts with the Constitution which provides as follows in Art II, sec 4 of the Constitution: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” In 1970, then House Minority Leader Gerald Ford said that this means whatever a majority of the House of Representatives says it means at a given moment in history. But this is simply not correct: the historical and legal consensus is that this means an abuse of the power of the office that violates the public trust and runs counter to the national interest. So impeachment is not a criminal trial: criminal conduct is not required, although certain criminal conduct may amount to Treason, Bribery or other High Crimes and Misdemeanors.

Is impeachment political in nature? You bet it is, although not necessarily in the partisan sense. It was intended by the Founders to be the political equivalent of a grand jury indictment. It is definitely not illegitimate. Is it to be taken seriously? You bet it is. It was intended by the Founders to be taken very seriously as a vital component of Separation of Powers and Checks and Balances. It is an extreme means of removing from the Presidency any President who is a despot. At the Constitutional Convention in Philadelphia, the Founders made clear that a President should not be impeached merely for incompetence or because of merely personal or political hostility. It is the purpose of Presidential elections, not impeachment, to deal with these problems.

The Constitution provides for a two-part impeachment proceeding. The first part, in Art. I, section 2,  is investigative and takes place in the House of Representatives pursuant to whatever rules the House puts into place. The House is the sole entity in charge of impeachment and its decisions cannot be reviewed by any federal court, including the Supreme Court. The recently televised investigative proceeding was run by the House Intelligence Committee, with questioning of witnesses first by Democratic Representatives (the majority) and their attorneys, followed by questioning by Republican Representative and their attorneys. Thereafter, the members of the House Intelligence Committee, together with any other House committees investigating Presidential behavior, will issue its report to the Judiciary Committee which will then decide whether or not to recommend Articles of Impeachment to the full House. The full House will then consider whether any of the Articles of Impeachment charge a “High Crime and Misdemeanor” and, if so, will vote on any such Articles. As I mentioned earlier, a President’s refusal to comply with the House’s subpoenas or other requests for information has historically been considered by the House to be an appropriate basis for an Article of Impeachment for obstruction of justice.  If a majority of the House votes in favor of one or more Articles of Impeachment, these go to the Senate for trial: this is the second part of an impeachment proceeding: trial and possible removal.

Senate trials are exceedingly rare. Over the past 230 years there have apparently been only eighteen impeachment trials (including for federal judges) in the Senate, and only two of a President, Andrew Johnson (1868) and Bill Clinton (1999).  Procedurally, after the House impeaches a President, the matter proceeds to trial in the Senate, with the Chief Justice presiding as set out in Art. I, sec 3. The Senate has the sole constitutional responsibility for such a trial. Just as is true for impeachment in the House, the federal courts, including the Supreme Court, play no role whatever except insofar as the Chief Justice of the United States presides. But the Chief Justice does not run a criminal trial in the Perry Mason sense: what he does instead is ensure that the Senate trial properly follows its own Senate rules and procedures. There is thus is no trial by jury. Rather, a two-thirds majority of those Senators present is required to convict and thereby remove the President. Once a President is removed, he is disqualified from any other federal office. And if his conduct was illegal, he can thereafter be sued or prosecuted.

This process was enshrined in the Constitution by the Founders and is a crucial part of Separation of Powers and Checks and Balances under which each branch of the federal government has its own constitutional responsibilities. It deserves our respect and attention, whatever our politics and whatever our view of the political motivations involved. It is not entertainment. Instead, it is a national teachable moment. The impeachment process is never pleasant for anyone, regardless of the result.

Our Responsibility as Citizens

At the very least, each of us should make up his or her mind based on the facts as developed by the overall impeachment process, and not based on what the talking heads have to say about it. And certainly not based on Facebook, Twitter or any of the other social platforms with their personal attacks and their conspiracy theories that influence far too many Americans and cloud their thinking. If we didn’t  watch any part of the House Intelligence hearing itself, let’s try to get our facts from respected print media such as the Wall Street Journal and the New York Times (but not necessarily from their editorial or op-ed pages). This is our minimum obligation as citizens of the United States.

The great Supreme Court Justice Louis Brandeis said 100 years ago: “Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. [They were] courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government….”

The United States will recover from its current national dysfunction when we Americans engage in “free and fearless reasoning.”

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Written by snahmod

December 4, 2019 at 10:18 am

Posted in Uncategorized

Know Your Constitution (9): What Are the Free Speech Rights of Public Employees?

This is the ninth in a series of posts about the United States Constitution written in everyday language with a minimum of legal jargon. These posts are not intended to provide legal advice and should not be used for that purpose.

(Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution,  addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural and substantive due process, as well as state action).

What are the free speech rights of public employees with regard to public employer discipline or punishment?

Notice that I refer to public employees: the First Amendment does not apply to private employees with regard to private employer discipline or punishment.

Notice also that this discussion is about public employer discipline or punishment for speech, and does not concern the free speech rights of public employees as against the government generally. So we’re not talking here about criminal punishment for the public employee’s speech.

With these important qualifications, the short answer to the question is that the First Amendment protects the free speech of public employees with regard to public employer discipline or punishment only under the following circumstances (I call it a three-step dance):

(1) where the public employee speaks as a citizen, and not pursuant to her employment duties and obligations (Garcetti v. Ceballos, 547 U.S. 410 (2006)) and

(2) where the speech of the public employee is on a matter of public, not private, concern (Pickering v. Bd. of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 1983)) and

(3) where the free speech interests of the public employee and society outweigh the public employer’s interests as an employer.

Let me explain these three requirements in a non-technical manner.

(1) If a public employee’s job obligations, for example, require her to report criminal or other misconduct by higher-up officials in her department, and the public employee does so and becomes a whistleblower, the public employee is not necessarily protected by the First Amendment from public employer discipline. This result may seem shocking, and it is to many, because it discourages whistleblowing. But this is current First Amendment law under Garcetti. However, keep in mind that state or local law may provide a separate remedy for such whistleblowers.

(2) But even where the public employee’s speech is not part of that employee’s job obligations, she is not yet over the First Amendment hurdle: the speech must also be on a matter of public, not private concern. For example, if the public employee’s speech primarily concerns an employment related grievance specific to her, such as salary or working conditions, then this would be speech on an issue of private concern, and the First Amendment would not be applicable to the public employer’s discipline for this speech.

(3) Finally, if the public employee has made it this far, then her First Amendment claim becomes subject to a balancing test, under which the court weighs the First Amendment interests of the public employee and society against the interests of the public employer in, say, discipline, morale, work relationships and the like. Most public employees in this situation typically prevail on the First Amendment merits. Still, it takes a lot for public employees to get to the final step of this three-step dance.

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Written by snahmod

October 30, 2019 at 3:38 pm

A Section 1983 Primer (13): Qualified Immunity

The Background

I have posted previously about absolute immunity, including legislative and judicial immunity. As discussed in those posts, absolute immunity from section 1983 damages liability is intended to protect certain persons who engage in allegedly unconstitutional legislative, judicial and prosecutorial conduct from not only liability but from the very costs of defending.

(see https://nahmodlaw.com/2012/10/25/a-section-1983-primer-7-introduction-to-absolute-individual-immunity/; https://nahmodlaw.com/2013/02/20/a-section-1983-primer-8-absolute-legislative-immunity/; https://nahmodlaw.com/2013/03/14/a-section-1983-primer-9-absolute-judicial-immunity/)

In contrast, qualified immunity from section 1983 damages liability (which covers state and local government officials who are not protected by absolute immunity) is intended primarily to protect these officials from liability itself. However, over the years the Supreme Court has increasingly broadened the scope of qualified immunity so that it often functions like absolute immunity to protect state and local government officials even from the costs of defending.

The Basics

Qualified immunity is an affirmative defense and so it must be raised by the defense. It becomes relevant when state or local government officials are sued in their individual capacities for damages. It once had both a subjective component–actual knowledge– and an objective component–the duty to know clearly settled law. See Wood v. Strickland, 420 U.S. 308 (1975). However, in a game-changing decision, the Supreme Court eliminated the subjective part, with the result that qualified immunity is now objective in nature. Harlow v. Fitzgerald,  457 U.S. 800 (1982).

In Harlow and other cases, the Court has emphasized that the qualified immunity determination is for the district court and should be made as quickly as possible, even before discovery. This change was intended by the Court, as a matter of policy, to protect government officials from “insubstantial” claims and thereby minimize the costs of defending.

The qualified immunity inquiry is as follows: as of the time of the challenged conduct, and under the circumstances facing the defendant, would a reasonable official have believed that he or she was violating clearly settled law.

This inquiry is, as noted, made as of the time of the challenged conduct (and is therefore backward-looking), while the constitutional merits of the section 1983 claim itself are decided under current constitutional standards. The Court has since emphasized that the clearly settled law inquiry should be made at a fairly fact-specific level because “fair notice” is what is required. Anderson v. Creighton, 107 S. Ct. 3034 (1987).

However, a case on all fours is not required for a finding of a violation of clearly settled law. Some conduct can be so obviously unconstitutional when it occurred that even without a comparable precedent, the government official violated clearly settled law. Hope v. Pelzer, 122 S. Ct. 2508 (2002). On the other hand, in the past decade and a half, the Court, particularly in law enforcement cases, has taken a much more pro-defendant position on qualified immunity, instructing courts not to make the clearly settled law inquiry at too general a level. For example, see: https://nahmodlaw.com/2019/03/04/city-of-escondido-v-emmons-another-scotus-summary-reversal-in-a-qualified-immunity-excessive-force-case/.

Whose decisions constitute clearly settled law? At the top of the list is a relevant Supreme Court decision. Next is a relevant decision of the particular circuit court of appeals (district court decisions are not clearly settled law although they may be evidence of it). Next is a strong consensus in the circuits. And although I have never seen this, it is even possible that a state Supreme Court decision on the relevant federal constitutional issue could constitute clearly settled law as well.

The qualified immunity inquiry is primarily for the trial judge. The jury should not be instructed about qualified immunity, although the jury’s findings of fact may be relevant to the qualified immunity outcome. Hunter v. Bryant, 112 S. Ct. 534 (1992). And while it is better for the development of constitutional law that the trial judge decide the constitutional merits before deciding qualified immunity, that is not mandatory. Pearson v. Callahan, 129 S. Ct. 534 (1992).

Finally, district court denials of qualified immunity based on the clearly settled law determination (and not on factual disputes) may be appealed immediately by government officials to the circuit court of appeals. See Mitchell v. Forsyth, 105 S. Ct. 2806 (1985) and Johnson v. Jones, 115 S. Ct. 2151 (1995).

On qualified immunity generally, see ch. 8 in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019)(West & Westlaw). You might also want to search “qualified immunity” on this blog for additional discussions of qualified immunity decisions.

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Written by snahmod

October 7, 2019 at 9:35 am

The Intersection of Rehberg (Absolute Witness Immunity) and Section 1983 Malicious Prosecution

What is the relation between allegedly false grand jury testimony by a police officer (protected by absolute witness immunity) followed by an indictment (thereby establishing probable cause) and a section 1983 malicious prosecution claim, one of whose elements is the absence of probable cause?

(see generally, Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019), ch. 3 on section 1983 malicious prosecution and ch. 7 on witness immunity).

The Sixth Circuit has worked through, and clarified, this relation is a series of such cases.

Sanders v. Jones

The first such case, Sanders v. Jones, 845 F.3d 721 (6th Cir. 2017), as amended on denial of reh’g, en banc (Mar. 20, 2017), involved a claim against a police officer who allegedly gave false grand jury testimony identifying the plaintiff as the person who sold illegal drugs to a confidential informant. The officer moved for summary judgment based in part on absolute immunity.

Ruling in the officer’s favor on this issue, the Sixth Circuit observed that this “defense presents a question of first impression about how the Supreme Court’s provision of absolute immunity for grand jury witnesses in Rehberg v. Paulk, 566 U.S. 356 (2012), intersects with the Sixth Circuit’s requirements for malicious prosecution claims where a grand jury indicted the plaintiff.” The court concluded that Rehberg’s absolute immunity for grand jury testimony precluded the plaintiff’s claim because “she cannot rebut the indictment’s presumption of probable cause without using [defendant]’s grand jury testimony.”

King v. Harwood

Thereafter, the Sixth Circuit, in King v. Harwood, 852 F.3d 568 (6th Cir. 2017), somewhat more narrowly described the intersection of Rehberg and Sanders as follows:

Thus, while Sanders may control the outcome of many [section 1983] malicious-prosecution cases in which the sole or primary act of the defendant law-enforcement officer is delivering grand-jury testimony, Sanders does not control our decision here. … Rehberg does not afford [defendant] absolute immunity for his actions that are prior to, and independent of, his grand-jury testimony. And because [plaintiff] has alleged that [defendant] set her prosecution in motion [by seeking warrants “despite the absence of probable cause and making knowing or reckless false statements implicating plaintiff in his investigative report”] … [plaintiff] may properly base her malicious-prosecution claim on those actions by [defendant] without triggering the absolute immunity established by Rehberg.

Miller v. Maddox

Following King, the Sixth Circuit reversed the district court’s grant of summary judgment against the plaintiff who had filed a section 1983 Fourth Amendment malicious prosecution claim against an officer. The officer allegedly made false statements that resulted in plaintiff’s arrest, charges and indictment for reckless driving and resisting arrest. The court ruled that the plaintiff could establish an exception to the general rule that the issuance of an indictment conclusively establishes probable cause. First, the officer initiated the criminal prosecution because, even though he did not speak directly with the prosecutor, he swore out a warrant affidavit submitted to the night commissioner and was the only witness to testify in the preliminary hearing. Second, the King exception to the general rule applied to create a “mere rebuttable presumption of probable cause.” So the plaintiff was entitled to rebut that presumption: the false statements were material to plaintiff’s prosecution because there was no other evidence that would have allowed the charges to proceed to the grand jury otherwise, and the defendant’s false statements were apparently not used during the grand jury proceedings. Miller v. Maddox, 866 F.3d 386 (6th Cir. 2017).

Mills v. Barnard

Finally, in Mills v. Barnard, 869 F.3d 473, 480 (6th Cir. 2017), reh’g en banc denied, 10-12-17, the Sixth Circuit used King to point out that “[t]he existence of an indictment is thus not a talisman that always wards off a malicious-prosecution claim.” Here, a post-indictment DNA report that could have exculpated the plaintiff was the “linchpin of the prosecution’s probable cause” for the continuing detention of the plaintiff. Judge Griffin dissented, 869 F.3d at 487, arguing on various grounds that the district court properly dismissed the plaintiff’s section 1983 Fourth Amendment malicious prosecution claim.

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Written by snahmod

September 23, 2019 at 8:49 am

A Conscious Decision Not To Do Something Can Be An Actionable Official Policy or Custom Under Section 1983

We all know that a local government can be held liable for damages under section 1983 when its official policy or custom brings about a constitutional deprivation. Monell v. Dept. of Social Services,  436 U.S. 658 (1978). See generally on local government liability, Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019)(West, Westlaw).

Now consider the Seventh Circuit’s decision in Glisson v. Indiana Dept. of Corrections, 849 F.3d 372 (7th Cir. 2017)(en banc).

In Glisson, the representative of a prisoner’s estate sued a private medical services provider under contract with the state department of corrections for the prisoner’s death in violation of the Eighth Amendment. The Seventh Circuit said the following in reversing the district court’s grant of summary judgment to the corporate defendant:

It is somewhat unusual to see an Eighth Amendment case relating to medical care in a prison in which the plaintiff does not argue that the individual medical provider was deliberately indifferent to a serious medical need. But unusual does not mean impossible, and this case well illustrates why an organization might be liable even if its individual agents are not. Without the full picture, each person might think that her decisions were an appropriate response to a problem; her failure to situate the care within a broader context could be at worst negligent, or even grossly negligent, but not deliberately indifferent. But if institutional policies are themselves deliberately indifferent to the quality of care provided, institutional liability is possible.

In this case, the Seventh Circuit reasoned, there was sufficient evidence of a conscious policy choice by the defendant not to coordinate medical care either within an institution or across institutions for prisoners who were transferred, and there was also sufficient evidence that it was this policy choice not to require any kind of formal coordination that led to the prisoner’s death. In the course of its opinion, the Seventh Circuit observed that it was breaking no new ground in ruling that the conscious failure to make policy can itself be an actionable policy.

The Seventh Circuit explained:

The central question is always whether an official policy, however expressed (and we have no reason to think that the list in Monell is exclusive), caused the constitutional deprivation. It does not matter if the policy was duly enacted or written down, nor does it matter if the policy counsels aggressive intervention into a particular matter or a hands-off approach. One could easily imagine either kind of strategy for a police department: one department might follow a policy of zero-tolerance for low-level drug activity in a particular area, arresting every small-time seller; while another department might follow a policy of by-passing the lower-level actors in favor of a focus on the kingpins. The hands-off policy is just as much a “policy” as the 100% enforcement policy is.

Judge Sykes dissented, joined by Judges Bauer, Flaum and Kanne. They argued that the majority endorsed Monell liability “without evidence of corporate fault or causation. … The court rests its decision on the conceptual idea that a gap in official policy can sometimes be treated as an actual policy for purposes of municipal liability….” They maintained that in a case like this, a plaintiff must show a pattern of constitutional injuries traceable to the challenged policy or custom. Without such evidence, the defendant was not on notice that protocols were needed.

Comment

The majority has the better of the argument. It has long been clear that a local government (or in this case, a private medical services provider acting under color of law) can be held liable for a failure to act which in turn can constitute an official policy or custom so long as the requisite state of mind (ordinarily deliberate indifference) is proved. It is the entity’s deliberate indifference that determines its section 1983 liability, not necessarily the state of mind of individual employees or officials, although the latter may sometimes be relevant, especially in a policymaker situation. But in this case, the corporate defendant could be held liable for its official policy or custom even if its individual employees or officials might not have committed constitutional violations.

Written by snahmod

September 19, 2019 at 9:04 am

The Twelve Most Recent Section 1983-Related Decisions of SCOTUS

If you’re like me, you like (useful) lists. So what follows is a list of the twelve most recent section 1983-related decisions of the Supreme Court. These were handed down in the 2017 and 2018 Terms.

References are to sections in my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed. 2019)(West & Westlaw), and, where available, to this blog.

Supreme Court Decisions in the 2017 Term

  • Artis v. District of Columbia, 138 S. Ct. 594 (2018): tolling under 28 U.S.C. § 1367(d) (See § 1:33)
  • Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018): First Amendment retaliatory arrests and probable cause as a defense (See § 3:13 and this blog [search “Lozman”])
  • District of Columbia v. Wesby, 138 S. Ct. 577 (2018): Fourth Amendment probable cause to arrest and qualified immunity (See§ 8:62 and this blog [search “Wesby”])
  • Kisela v. Hughes,  138 S. Ct. 1148 (2018): Fourth Amendment excessive force and qualified immunity (See § 8:63 and this blog [search “Kisela’])
  • Sause v. Bauer: Free Exercise and qualified immunity (See § 8:72)
  • Murphy v. Smith: Prison Litigation Reform Act limitation on fees for prevailing plaintiff inmates (See § 10:15)

Supreme Court Decisions in the 2018 Term

  • Manhattan Community Access v. Halleck, 139 S. Ct. — (2019): state action and operation of a city’s private access channel (See § 2:10)
  • Nieves v. Bartlett, 139 S. Ct. — (2019): First Amendment retaliatory arrests and probable cause as a defense (See § 3:13 and this blog [search “Nieves”])
  • Timbs v. Indiana, 139 S. Ct. — (2019): Excessive Fines Clause incorporated (See § 3:28 and this blog [search “Timbs”])
  • Knick v. Township of Scott, 139 S. Ct. — (2019): takings and ripeness (See3:71 and this blog [search “Knick”])
  • City of Escondido v. Emmons, 139 S. Ct. — (2019): Fourth Amendment excessive force and qualified immunity (See § 8:63 and this blog [search “Emmons”])
  • McDonough v. Smith, 139 S. Ct. — (2019): accrual of fabrication of evidence claims (See § 9:30 and this blog [search “McDonough”])

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Written by snahmod

September 8, 2019 at 4:04 pm

Posted in Uncategorized

The Knick Case, Takings and Section 1983: A Somewhat Different View

Section 1983 Takings Claims and Williamson County (1985)

In 1985, the Supreme Court held in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985),  that a section 1983 takings claim for damages cannot be brought in federal court, and is not ripe, unless the challenged local government conduct is final and the local government has denied compensation. This result was thought to be required by the language of the Fifth Amendment which states that “private property [shall not] be taken for public use, without just compensation.” In effect, Williamson County ruled that the takings claim was not complete until just compensation was denied. This result was also thought to promote the values of federalism and comity.

Accordingly, such a takings plaintiff would first have to go to state court and seek just compensation there–a so-called inverse condemnation action. Only after such a claim failed in state court could the plaintiff proceed in federal court with a “ripe” section 1983 takings claim.

The “Preclusion Trap”

A major problem with Williamson County, which took some years to emerge at the Supreme Court but soon became obvious to takings litigators, was preclusion. Pursuant to 28 U.S.C. sec. 1738, the preclusive effect of a state court decision on a subsequent federal court action is determined by the law of the forum state. And in San Remo Hotel v. City and County of San Francisco, 545 U.S. 323 (2005), the Court indeed held that the resolution of a claim for just compensation by a state court can have preclusive effect on a subsequent federal court action alleging a takings claim. Consequently, where the property owner lost in state court, issue preclusion under state law would typically sound the death knell for the federal court takings claim, or at the very least make it extremely difficult for the federal plaintiff to prevail. Indeed, several justices (Rehnquist, O’Connor, Kennedy and Thomas) questioned Williamson County because of this “preclusion trap.”

The Knick Decision (2019): Williamson County Overruled

On June 21, 2019, the Supreme Court, in Knick v. Township of Scott, No. 17-647,  overruled Williamson County. Dealing with a case in which the district court had dismissed a property owner’s section 1983 takings claim against a local government because she had not pursued an inverse condemnation action in state court, the Court, in an opinion by Chief Justice Roberts, declared:

We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claims when the government takes his property without paying for it. … [This means] that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and may therefore bring his claim in federal court under [section] 1983 at that time.

Justice Kagan, joined by Justices Ginsburg, Breyer and Sotomayor, dissented. They accused the majority of not only misreading the Court’s takings precedents but also of improperly basing its decision simply on its view that Williamson County was wrong.

Comments

First and foremost, Knick is a game-changer and will likely bring about a revolution in takings litigation. This also includes claims of temporary takings, as in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987). No longer will property owners with takings claims against local governments have to exhaust their state judicial remedies as a condition precedent to filing in federal court. They will thus be able to avoid the “preclusion trap” and, moreover, avoid the duplication of litigation and judicial costs.

Second, by eliminating the requirement that section 1983 takings plaintiffs may go directly to federal court, the Court soundly aligned section 1983 takings claims with the ruling in the seminal decision in Monroe v. Pape, 365 U.S. 167 (1965), that, as a matter of statutory interpretation, section 1983 plaintiffs need not exhaust state judicial remedies before filing section 1983 claims in federal court. Knick reached the same conclusion as a matter of constitutional interpretation.

The Court also aligned section 1983 takings claims with what it asserted was the same rule for Fifth Amendment takings claims against the federal government, namely, that “the right to full compensation arises at the time of the taking, regardless of post-taking remedies that may be available to the property owner.”

Perhaps the Court in now-overruled Williamson County was influenced by the then-recent decision in Parratt v. Taylor, 451 U.S. 527 (1981), holding that the existence of an adequate state post-deprivation remedy could defeat certain section 1983 procedural due process claims. Parratt for a time was viewed as a potentially effective vehicle for promoting federalism and comity by removing many procedural due process cases from federal court and sending them to state court where they belonged. It took a while for the Court to narrow the scope of Parratt and to make clear that the Parratt post-deprivation remedy approach was limited to certain procedural due process cases–where the challenged conduct was random and unauthorized–and that it did not apply to other constitutional provisions. See generally ch 3, Nahmod,  CIVIL RIGHT AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2018).

Third, as the Court correctly noted, there was no good reason to treat takings claims as constitutional outliers. Other constitutional violations–the Court used the Fourth Amendment as an example–are complete once the challenged conduct is over. The ability to recover damages is not part of the constitutional violation itself : the constitutional merits are separate from the remedy. The rule should always have be the same for takings claims. Knick therefore does not privilege property owners with section 1983 takings claims over other section 1983 plaintiffs. It treats them the same as other section 1983 plaintiffs with different constitutional claims for damages.

Fourth, in my view the underlying issue in dispute among the justices in Knick was stare decisis. The four dissenting justices were concerned with what they view as the current majority’s predisposition to overrule precedents such as Williamson County just because it doesn’t like those precedents. Knick and other recent decisions that have overruled precedents, and that have been fought over by the justices, may really be a rehearsal for challenges to, and the possible overruling of, Roe v. Wade.

Fifth, coming so soon after the Court’s accrual decision in McDonough v. Smith (No. 18-485),  Knick itself may be viewed as a kind of accrual decision. From this perspective, Knick holds that the section 1983 takings claim is complete, and thus accrues, when the taking occurs, and not later when the state or local government denies just compensation.

(See my post on McDonough here: https://nahmodlaw.com/2019/06/21/mcdonough-v-smith-the-supreme-court-answers-an-important-section-1983-fabrication-of-evidence-accrual-question/)

Finally, while I think the Court got Knick right, the Court’s approach–simplifying section 1983 takings claims–is inconsistent with its May 28, 2019, section 1983 First Amendment retaliatory arrest decision in Nieves v. Bartlett, No. 17-1174. In Nieves, the Court unsoundly imposed unduly burdensome procedural and substantive requirements on section 1983 plaintiffs who sue law enforcement officers for damages for allegedly arresting them in violation of the First Amendment. Among other things, the Court ruled that probable cause is a defense to such claims. Why such solicitude for section 1983 takings plaintiffs in Knick and so little concern for section 1983 First Amendment plaintiffs in Nieves? Probable cause should be as irrelevant to the First Amendment as it is to takings.

(See my post criticizing Nieves here:  https://nahmodlaw.com/2019/06/04/nieves-v-bartlett-and-retaliatory-arrests-protecting-law-enforcement-at-the-expense-of-the-first-amendment-and-section-1983/)

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Written by snahmod

July 25, 2019 at 9:04 am

McDonough v. Smith: The Supreme Court Answers an Important Section 1983 Fabrication of Evidence Accrual Question

McDonough v. Smith and Accrual of Section 1983 Due Process Fabrication of Evidence Claims

The Supreme Court, on June 20, 2019, handed down an important section 1983 accrual decision in McDonough v. Smith (No. 18-485). Reversing the Second Circuit, it ruled (6-3) in an opinion by Justice Sotomayor that a section 1983 due process claim of fabrication of evidence accrues when criminal proceedings against the section 1983 plaintiff are terminated in his or her favor, not earlier when the plaintiff discovered the use of such fabricated evidence. Justice Thomas, joined by Justices Kagan and Gorsuch, dissented, arguing that certiorari was improvidently granted, and the case should be dismissed, for failure of the plaintiff to identify with any specificity the particular constitutional violation alleged.

(For useful background on section 1983, statutes of limitation and accrual, consult my earlier posts. On section 1983 and statutes of limitation generally: https://nahmodlaw.com/2011/10/27/a-section-1983-primer-5-statutes-of-limitations/. On statutes of limitation and accrual after Heck v. Humphrey: https://nahmodlaw.com/2013/06/17/a-section-1983-primer-10-statutes-of-limitations-and-accrual-after-heck-v-humphrey/. And on statutes of limitation and continuing violations: https://nahmodlaw.com/2014/06/09/a-section-1983-primer-11-statutes-of-limitation-and-continuing-violations/)

The Lower Courts

In McDonough, the plaintiff, a former commissioner of a county board of elections, processed forged absentee ballots submitted in a primary election. He alleged that he had done so not knowing they were forged. The defendant, a special prosecutor, allegedly “scapegoated” the plaintiff because of a political grudge and, despite evidence of plaintiff’s innocence, falsified affidavits, coached witnesses to lie and orchestrated a DNA analysis in order to incriminate the plaintiff. The defendant obtained a grand jury indictment against the plaintiff who was arrested, arraigned and released with restricted travel allowed. The plaintiff was then tried criminally by the defendant, ending in a mistrial in January 2012. He was then again tried criminally by the defendant, this time ending in plaintiff’s acquittal on all charges on December 21, 2012. He filed his section 1983 lawsuit on December 18, 2015, alleging fabrication of evidence based on due process as well as malicious prosecution. The latter claim was dismissed by the district court on absolute immunity grounds, while the former was dismissed because it was untimely under the applicable New York three year limitations period. The Second Circuit affirmed the district court’s reasoning that the plaintiff’s section 1983 fabrication of evidence claim accrued by January 2012 when the plaintiff discovered the use of the allegedly fabricated evidence against him, and was therefore time-barred. It rejected the plaintiff’s argument that his fabrication of evidence claim accrued on December 21, 2012, when he was acquitted on all charges.

The Supreme Court’s Opinion

In turn reversing, the Supreme Court held that the plaintiff’s section 1983 due process fabrication of evidence claim was timely because it indeed accrued when the plaintiff was acquitted on all charges on December 21, 2012. His claim was therefore timely (within three days to go).

After observing that section 1983 accrual is a question of federal law, the Court had little difficulty, in reliance on Heck v. Humphrey, 512 U.S. 477 (1994), in analogizing the plaintiff’s due process fabrication of evidence claim to the common law tort of malicious prosecution. As in malicious prosecution, the plaintiff here alleged that he was deprived of his liberty because of the defendant’s “malfeasance” in fabricating evidence. “At bottom, both claims challenge the integrity of criminal prosecutions undertaken ‘pursuant to legal process.'” (citing Heck). For that reason, the plaintiff’s section 1983 fabrication of evidence claim accrued when his prosecution was favorably terminated, and not before. Applying  the discovery accrual rule here would give rise to Heck‘s concerns with parallel litigation (in the state criminal proceeding and in federal court) and conflicting judgments, even though the plaintiff in Heck was convicted and the plaintiff here was acquitted. Prosecutions often lasted nearly as long as the civil limitations period, with the result that criminal defendants would have to choose whether to let their claims expire or to sue the person who was prosecuting them. Stays and abstention were not a good solution. For all these reasons, the plaintiff’s due process fabrication of evidence claim accrued when he was acquitted.

Comments

1. The Court’s decision is a sound one. It made clear that the Second Circuit’s use of the discovery rule in a section 1983 case where a plaintiff alleges a due process fabrication of evidence claim that challenges the fairness of a criminal proceeding itself, was not only contrary to what most other circuits had decided but was wrong. It makes sense that such a claim is only complete, and accrues, when the criminal proceeding terminates in the plaintiff’s favor, whether through an overturned conviction as required by Heck, or through an acquittal as in McDonough itself. Furthermore, the Court emphasized, this federal accrual rule “respects the autonomy of state courts and avoids these costs to litigants and federal courts.”

The Court’s approach in McDonough is consistent with Wallace v. Kato, 549 U.S. 384 (2007), which explained that the accrual question, a question of federal law, should conform in general to common law principles. Wallace went on to rule that the section 1983 plaintiff there challenged the constitutionality of his arrest under the Fourth Amendment, and this was analogous to the common law tort of false imprisonment. Thus, his claim accrued at the time of his arrest even though custody followed.

2. It is therefore crucial that a section 1983 plaintiff identify with some specificity just what is challenged as unconstitutional and under what constitutional provision. Is it an arrest? Is it a conviction? Is it custody or a deprivation of liberty? Is the claim brought under the Fourth Amendment or due process or both (or perhaps another constitutional provision)? This is an important lesson that the dissenters (and the Court’s section 1983 cases) teach. I listened to the oral argument in McDonough some time ago and heard for myself how the justices tried to get a specific sense of the constitutional provision on which the plaintiff relied, and how frustrated several of them were at the responses (or lack thereof) to their questions.

3. On remand, the plaintiff in McDonough will face the defense of absolute prosecutorial immunity, which raises the question of what aspects of the defendant’s alleged conduct are investigative (and protected by qualified immunity) and advocative (and protected by absolute immunity). See generally chapters 7 and 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2018)(West).

4. For those of us interested in section 1983 malicious prosecution claims (and isn’t everyone?), it is worth mentioning footnote 4 of the Court’s opinion in which it expressed no view on the Second Circuit’s borrowing of common law elements of malicious prosecution to govern the McDonough plaintiff’s dismissed section 1983 malicious prosecution claim. Such borrowing is just plain wrong, as I have argued repeatedly. See my Amicus Brief in Manuel v. City of Joliet, 137 S. Ct. 911 (2017): https://nahmodlaw.com/2016/08/16/my-amicus-in-manuel-v-city-of-joliet-no-14-9496-section-1983-malicious-prosecution/

5. Finally, the real world implications of McDonough are profound. Regardless of whether wrongful prosecutions lead to convictions that are eventually overturned (per Heck), to acquittals (per McDonough) or to dismissal of all charges wrongfully brought, the accrual rule is now appropriately the same where the section 1983 challenge is to the constitutionality of the criminal proceeding itself (always subject, of course, to the possible application of absolute prosecutorial immunity).

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Written by snahmod

June 21, 2019 at 2:27 pm