Substantive Due Process and the “Shocks the Conscience” Test
In Domingo v. Kowalski, 810 F.3d 403 (6th Cir. 2016), the Sixth Circuit appears to have made it close to impossible for students to successfully sue their teachers for violating substantive due process in the classroom.
The Domingo Facts and Ruling
In this case, parents of special education students sued their teacher, alleging substantive due process violations for the following, all of which occurred in the classroom: “abus[ing] her students … by, among other things, gagging one student with a bandana to stop him from spitting, strapping another to a toilet to keep her from falling from the toilet, and forcing yet another to sit with her pants down on a training toilet in full view of her classmates to assist her with toilet-training.”
The Sixth Circuit affirmed the district court’s grant of summary judgment for the teacher on the ground that the teacher’s conduct did not shock the conscience and thus did not violate substantive due process. It applied the four-part test of the Third Circuit in Gottlieb v. Laurel Highlands School Dist., 272 F.3d 168 (3rd Cir. 2001): (1) though the techniques used by the teacher were inappropriate, they were done for a legitimate pedagogical purpose; (2) the force used was not excessive; (3) the teacher did not act with malicious or sadistic intent; and (4) there was no evidence of any serious physical or psychological injury.
Judge Batchelder concurred in part and concurred in the judgment, 810 F.3d 403, *416, while Judge Boggs dissented in part, 810 F.3d 403, *417, arguing that one student’s claim arising out of the teacher’s binding and gagging him because he was disruptive and spitting should have gone to the jury: this particular discipline was never repeated even though the student’s conduct occurred several other times; the teacher’s conduct was the subject of severe criticism by a teacher’s aide; there may well have been no legitimate pedagogical justification for the teacher’s conduct; and the degree of force used could be understood as malicious or sadistic.
What to me is particularly troublesome about Domingo is the third part of the test, borrowed from the Third Circuit, that the teacher must have acted with malicious or sadistic intent. That is such a high standard and is so protective of section 1983 defendants that it is ordinarily reserved for prison guards enforcing prison security, Wilson v. Seiter, 501 U.S. 294 (1991)(malicious and sadistic intent), and for police officers engaged in high speed car chases, County of Sacramento v. Lewis, 523 U.S. 833 (1998)(purpose to do harm). In both these kinds of cases, split-second decision-making involving physical well-being is required and, as a matter of policy, we don’t want to chill such decision-making unduly.
But this consideration–providing a margin for error for split-second decision-making–does not apply with the same force in the classroom. Furthermore, the classroom contains minors who are particularly vulnerable to abuse by their teachers.
I agree that we should not ordinarily constitutionalize teacher error. However, we should not immunize it from meaningful judicial review and section 1983 accountability in egregious cases such as Domingo.
Follow me on Twitter @NahmodLaw
Many of us know that the Supreme Court’s decision in Ashcroft v. Iqbal, 566 U.S. 662 (2009), was a game-changer in announcing a heightened pleading requirement of “plausibility” in federal courts.
[It was also a game-changer in connection with supervisory liability about which I’ve written and previously posted].
The Eleventh Circuit’s Weiland Shotgun Pleadings Decision
In Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015), a case dealing with a plaintiff’s allegations of excessive force and malicious prosecution against a sheriff’s office and deputies, the Eleventh Circuit, provided a taxonomy of shotgun pleadings both pre- and post-Iqbal. In so doing, it delivered a warning to section 1983 attorneys of its highly negative view of such pleadings.
A Taxonomy of Shotgun Pleadings
The discussion began with the Eleventh Circuit’s statement that it had examined more than sixty of its published opinions (since 1985) dealing with shotgun pleadings.
Then, and for your reading pleasure, here is what the Eleventh Circuit said (my emphasis added):
Though the groupings cannot be too finely drawn, we have identified four rough types or categories of shotgun pleadings. The most common type—by a long shot—is a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint. The next most common type … is a complaint that does not commit the mortal sin of re-alleging all preceding counts but is guilty of the venal sin of being replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action. The third type of shotgun pleading is one that commits the sin of not separating into a different count each cause of action or claim for relief. Fourth, and finally, there is the relatively rare sin of asserting multiple claims against multiple defendants without specifying which defendant(s) are responsible for which acts or omissions, or which of the defendant(s) the claim is brought against. The unifying characteristic of all types of shotgun pleadings is that they fail to one degree or another, and in one way or another, to give the defendants adequate notice of the claims against them and the ground upon which each claim rests.
The Result in Weiland
Specifically, the plaintiff in Weiland alleged that the sheriff’s office maintained two unconstitutional policies: (1) a policy of not training its deputies in the appropriate use of force when seizing mentally ill persons for transportation to mental health facilities and (2) a policy of using internal affairs investigations to cover up the use of excessive force against the mentally ill.
Affirming the dismissal of both for failure to state a plausible claim, the Eleventh Circuit said that the first was impermissibly based on a single incident involving two deputies: there was no allegation that the need for specialized training for dealing with mentally ill persons was “so obvious” that the failure to provide it was deliberate indifference. As to the second, the complaint did not plausibly allege that the sheriff’s office had such a cover up policy: the plaintiff alleged facts dealing only with this particular internal affairs investigation.
When I consult for plaintiffs’ lawyers in section 1983 cases, I invariably breathe a sigh of relief when they inform me that they have not yet filed a lawsuit. It is often difficult to emerge unscathed from badly drafted complaints.
In contrast, when I consult for defendants’ lawyers in section 1983 cases and I see plaintiffs’ shotgun pleadings, I am pleased, despite the fact that such pleadings initially make it harder for the defense side. Why is that? Because shotgun pleadings make a very bad impression on, and make more work for, judges and their law clerks. In addition, they signal to everyone that the lawyers who drafted the pleadings may not be all that competent.
Follow me on Twitter @NahmodLaw
Section 1983 Malicious Prosecution (VII): Recent Decisions from the Sixth, Seventh and Tenth Circuits
I blogged on March 24, 2016, about the Supreme Court’s recent grant of certiorari in Manuel v. City of Joliet, 136 S. Ct. 890 (2016), arising in the Seventh Circuit, to address whether and when the Fourth Amendment can serve as the basis of a section 1983 malicious prosecution claim.
Before that, and importantly, I blogged on Sept. 11, 2009, about the basic elements of section 1983 malicious prosecution claims and set out my view of such claims.
What follows are recent section 1983 malicious prosecution decisions from the Sixth, Seventh and Tenth Circuits that I came across in preparing the 2016 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).
The Recent Sixth, Seventh and Tenth Circuit Decisions
As you peruse these case summaries, note that the Sixth and Tenth Circuit explicitly allow for section 1983 malicious prosecution claims based on the Fourth Amendment, while the Seventh Circuit adheres to the position it took in Newsome v. McCabe, 256 F. 3d 747 (7th Cir. 2001). Namely, according to the Seventh Circuit, there is no Fourth Amendment right not to be summoned into court and prosecuted without probable cause and, in any event, adequate state post-deprivation remedies must be used where section 1983 malicious prosecution claims are brought.
The Sixth Circuit stated:
Freedom from malicious prosecution is a clearly established Fourth Amendment right. To succeed on a malicious prosecution claim under Bivens or § 1983, a plaintiff must prove the following: (1) the defendant made, influenced, or participated in a decision to prosecute the plaintiff; (2) there was no probable cause for the criminal prosecution; (3) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial arrest; and (4) the criminal proceeding was resolved in the plaintiff’s favor.
Webb v. United States, 789 F.3d 647 (6th Cir. 2015).
In Howlett v. Hack, 794 F.3d 721 (7th Cir. 2015), the plaintiff, who had been arrested, prosecuted and acquitted of charges arising out of an alleged house break-in, sued the arresting police officer and a city under section 1983 alleging malicious prosecution under the Fourth Amendment. Citing Newsome, the Seventh Circuit declared that such a claim, even if it could be made (the court commented that there is no federal right not to be summoned into court and prosecuted without probable cause) is not actionable if there is an adequate state remedy. However, even though Indiana did not provide an adequate remedy because governmental entities and their employees are immunized from state malicious prosecution suits, the plaintiff still lost: not only was there probable cause here, there was also no post-arraignment deprivation of liberty.
In Sanchez v. Hartley, 810 F.3d 750 (10th Cir. 2016), the Tenth Circuit, citing its precedents, reaffirmed that section 1983 allows for recovery for malicious prosecution under the Fourth Amendment. Specifically, it determined that the plaintiff stated a section 1983 malicious prosecution Fourth Amendment claim when he alleged that detectives and an investigator sought legal process against him based on his supposed confession even though they either knew of, or were reckless with regard to, its falsity. “If [plaintiff’s] allegation is credited, it would involve a constitutional violation, for we have held that the Fourth Amendment prohibits officers from knowingly or recklessly relying on false information to institute legal process when that process results in an unreasonable seizure.” Moreover, the defendants were not entitled to qualified immunity because it was clearly established by 2009 that the alleged conduct violated the Fourth Amendment, even if the contours of the section 1983 claim for malicious prosecution were not. What was crucial was the constitutional standard, here the Fourth Amendment.
Follow me on Twitter @NahmodLaw
The Supreme Court granted certiorari on January 15, 2016, in Manuel v. City of Joliet, 136 S. Ct. 890 (2016), an unreported Seventh Circuit section 1983 malicious prosecution decision handed down on January 28, 2015.
Manuel, which will be argued in the Supreme Court’s 2016 Term, has the potential to be a blockbuster section 1983 decision that radically transforms the section 1983 malicious prosecution landscape. Such a transformation would have a dramatic impact on section 1983 claims brought for wrongful conviction and incarceration.
Here is the Question Presented: “Whether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment.”
According to the Petition for Writ of Certiorari, the First, Second, Third, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh and D.C. Circuits have all answered this question in the affirmative, while only the Seventh Circuit, in Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), has answered in the negative.
In Manuel, the Seventh Circuit affirmed the decision of the district court dismissing the plaintiff’s section 1983 Fourth Amendment claim that police officers maliciously prosecuted him when they falsified the results of drug tests and thereafter arrested him for possession with intent to distribute ecstasy. The district court relied on Newsome and the Seventh Circuit panel found no compelling reason to reconsider that precedent. The Seventh Circuit explained: “Newsome held that federal claims of malicious prosecution are founded on the right to due process, not the Fourth Amendment, and thus there is no malicious prosecution claim under federal law if, as here, state law provides a similar cause of action.”
The issues raised in Manuel have been a matter of great interest to me for some time. See my post of Sept. 11, 2009, about the basic elements of so-called section 1983 “malicious prosecution” claims. In that post I called for the virtual elimination of most of the tort-like terminology used for such purposes and for a renewed focus on the constitutional bases for such claims.
Manuel now provides the Court with its first opportunity in over twenty years– see Albright v. Oliver, 510 U.S. 266 (1994)–to consider the elements of such claims.
Recall that Albright was a splintered decision in which a plurality held that substantive due process could not be used as the basis for section 1983 malicious prosecution claims. See sections 3:65-3:66 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2015 West).
In the course of considering Manuel, the Supreme Court will likely address the relevance of available state remedies. It will likely also discuss the Fourth Amendment “continuing seizure” theory that Justice Ginsburg articulated in Albright, a theory that the Seventh Circuit has rejected.
It is one of the worst Supreme Court decisions in history.
No, I’m not referring to Dred Scott v. Sanford, which held that blacks could never be U.S. citizens, thereby making the Civil War all but inevitable.
I’m also not referring to Plessy v. Ferguson, which upheld separate but equal and ushered in Jim Crow.
And I’m not referring to U.S. v. Korematsu, which upheld the internment of loyal Japanese-American citizens during World War II.
All four of these decisions are morally repugnant, and several are even evil.
No, I’m referring to the infamous and much more recent 2000 decision in Bush v. Gore, where the Court called a halt to the Florida recount and effectively selected George Bush as President of the United States.
This is, in my opinion, perhaps the most overtly politically partisan decision in Supreme Court history. Five Republican-appointed Justices voted for the Republican candidate, while the four dissenters, including two Democrat-appointed Justices and two Republican-appointed Justices, maintained that the Court should not have become involved or at least should not have stopped the recount.
Bush v. Gore blatantly violated the most basic principles of federalism, comity and judicial restraint. The five Justices in the majority, even if they thought they acted in good faith, fooled themselves into thinking that they were simply interpreting the Constitution rather than voting their own partisan political preferences. Justice Scalia was, of course, one of those.
Why do I bring up Bush v. Gore? Because Justice Scalia repeatedly admonished those who criticized the Court’s decision to “get over it.”
But Justice Scalia himself never could get over Roe v. Wade, the 1973 landmark abortion decision. He contended that Roe was incorrect and should be overruled, regardless of the consequences. He repeatedly and heatedly accused his colleagues of intellectual dishonesty and of supplanting the political process.
He could never get over the Court’s decision in Romer v. Evans, dealing with sexual orientation discrimination. He accused the majority of taking sides in the culture wars and of signing on to the “homosexual agenda.”
He angrily attacked the Court’s decision in U.S. v. Windsor, striking down the Defense of Marriage Act, and commented bitterly (and correctly, as it turned out), that Windsor would directly lead to constitutionalizing same-sex marriage. Then came Obergefell v. Hodges, the blockbuster 2015 decision finding a due process right to same-sex marriage.
I fully understand Justice Scalia’s anger and frustration regarding abortion and same-sex marriage, even though I disagree with his views on the merits. And I even understand why he could never “get over” those decisions.
But his calls for others to “get over” Bush v. Gore always rang hollow to me and smacked of disingenuousness or even hypocrisy.
I continue to teach Bush v. Gore as the last case in my constitutional law course because it is the best example of a wrongheaded and politically partisan Supreme Court decision handed down by a triumphalist Court.
I still cannot get over it.
Follow me on Twitter @NahmodLaw
Federal Attorney’s Fees Statute Means What SCOTUS Says It Means: Slapping Down the Idaho Supreme Court
It is hard to believe in this day and age that a state Supreme Court thinks it can advance its own interpretation of federal law contrary to an interpretation by the United States Supreme Court. But that’s exactly what happened in James v. Boise (No. 15-493), handed down on January 25, 2016.
In a terse per curiam decision, the Supreme Court slapped down the Idaho Supreme Court and declared that its interpretation of 42 U.S.C. section 1988, the Civil Rights Attorney’s Fees Awards Act, governed.
Recall that section 1988 provides that “a reasonable attorney’s fee” should be awarded to “the prevailing party” in a section 1983 suit. In Hughes v. Rowe, 449 U.S. 5 (1980)(per curiam), the Supreme Court, relying on the clear legislative history, interpreted this language as creating a double standard: a prevailing plaintiff is ordinarily entitled to fees but a prevailing defendant is only entitled to fees where the plaintiff’s suit was “frivolous, unreasonable, or without foundation.” See chapter 10 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2015)(West).
However, in the James case, which arose in the Idaho courts, the Idaho Supreme Court expressly rejected this interpretation of section 1988 as applied to prevailing defendants when section 1983 claims are brought in state courts.
Unsurprisingly, the Supreme Court reversed. Giving the Idaho Supreme Court a lesson from the basic course in constitutional law, the Supreme Court cited Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816), for the proposition that Supreme Court interpretations of federal law are the supreme law of the land. They trump any contrary state court interpretations.
It quoted Rivers v. Roadway Express, Inc., 511 U.S. 298, 314 (1994): “It is this Court’s responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.”
There is no need to comment on this decision. Res ipsa loquitor.
Follow me on Twitter @NahmodLaw.
Mullinex v. Luna: A Supreme Court Qualified Immunity Excessive Force/High-Speed Police Chase Decision
On November 9, 2015, the Supreme Court handed down Mullinex v. Luna, 136 S. Ct. 305 (2015), which ruled on qualified immunity grounds in favor of a police officer who allegedly used deadly force in violation of the Fourth Amendment in a high-speed police chase situation.
An earlier decision, Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), had ruled on the Fourth Amendment merits in favor of pursuing police officers who shot the driver and a passenger. See my post of May 28, 2014.
Both Plumhoff and Mullinex derive from the Court’s decision in Scott v. Harris, 550 U.S. 372 (2007), which ruled that a police officer did not violate the Fourth Amendment when he attempted to stop a fleeing driver from continuing his “public-endangering flight” by ramming the driver’s car from behind even though the officer’s actions created the risk of serious injury or death to the driver. According to the Court in Scott, a video of the chase made clear that the officer’s ramming of the car was objectively reasonable.
Mullinex v. Luna
Mullinex, an 8-1 per curiam decision (with Justice Scalia concurring in the judgment and Justice Sotomayor dissenting) involved a reportedly intoxicated driver who sped off in his car after being informed by a state trooper that he was the subject of an arrest warrant. He led officers on an interstate chase at speeds between 85-110 miles per hour and, during the course of the chase, warned officers by phone that he had a gun and would shoot the pursuing officers if they did not stop chasing him. Several officers set up a spike strip to stop the driver while another trooper, the defendant, considered another tactic: shooting at the car in order to disable it. Although the defendant did not have training in this tactic, he received preliminary approval from his supervisor to make the attempt if necessary.
Shortly after the defendant took up his shooting position, he spotted the car, with a trooper in pursuit, approaching the overpass where he was standing. Another officer was located beneath the underpass as well. Without waiting to see if the spike strip would work, the defendant fired six shots. The car thereafter engaged the spike strip, hit the median and rolled over several times. It became clear later that the driver had been killed by the defendant’s shots and that none of the shots had hit the car’s radiator, hood or engine block.
At trial, the district court denied the defendant’s qualified immunity motion for summary judgment and this was affirmed by the Fifth Circuit on denial of petition for rehearing en banc, seven judges dissenting.
The Supreme Court reversed per curiam, pointing out that it was not reaching the Fourth Amendment merits but instead deciding on qualified immunity grounds. The Court emphasized the need for particularity in the making the qualified immunity determination, warning against too high a level of generality. Specifically, according to the Court, the Fifth Circuit erred in ruling that the defendant violated the clearly settled rule that a police officer may not “use deadly force against a fleeing felon who does not pose a sufficient threat to harm to the officer or others.” This rule, derived from the Fourth Amendment deadly force case of Tennessee v. Garner, 471 U.S. 1 (1985), was not the correct qualified immunity test for excessive force cases.
Rather, as discussed in Brosseau v. Haugen, 543 U.S. 194 (2004)(per curiam), the correct qualified immunity inquiry in excessive force cases was whether it was clearly established that the Fourth Amendment prohibited the officer’s conduct in the particular situation he or she encountered. In Mullinex itself, existing precedent was “hazy” about the situation encountered by the defendant here: “a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road.” The Court maintained that “[t]he general principle that deadly force requires a sufficient threat hardly settles the matter.”
In short, none of the Court’s Fourth Amendment precedents, including Scott and Plumhoff, “squarely govern[ed]” the facts here. Furthermore, the dissent’s emphasis on the availability of spike strips as an alternative means of ending the chase was not persuasive on the qualified immunity issue: no Supreme Court decision had ever denied qualified immunity on this basis. Moreover, the circuit decisions relied on by the Fifth Circuit and the plaintiffs were “simply too factually distinct to speak clearly to the specific circumstances here.”
For these reasons, the defendant was entitled to qualified immunity.
Justice Scalia concurred in the judgment, contending that since the defendant shot at the car’s engine in order to stop the car, it was misleading to describe what happened here as the application of deadly force in effecting an arrest.
Justice Sotomayor dissented, arguing that the defendant’s conduct was “rogue” and it violated clearly established Fourth Amendment law. He should not have fired the shots without any training in the tactic, against the wait order of his superior officer and a second before the car hit spike strips that were intended to stop it.
1. The Court in Mullinex did not address the Fourth Amendment merits, which is the first line of defense in section 1983 cases. Instead, the Court skipped to qualified immunity, the second line of defense which, as seen in Mullinex itself, adds a significant layer of protection for section 1983 defendants.
2. The scope of qualified immunity protection in Fourth Amendment excessive force cases involving high-speed police chases is obviously quite broad. The Court insists on a high degree of factual similarity in the relevant case law for clearly settled law purposes.
3. The qualified immunity clearly settled law inquiry is a question of law for the court. This point is explicitly made by the Court in its discussion of the Fifth Circuit’s decision. This is not new.
4. Mullinex makes clear that the availability of potentially less deadly alternatives does not necessarily strip qualified immunity protection from police officers in high-speed chase situations.
5. Supreme Court decisions often serve to communicate or signal a specific message to affected institutions. Mullinex signals to the law enforcement community that qualified immunity protects all but the plainly incompetent.
For much more on qualified immunity, consult chapter 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION (4th ed. 2015)(West).
Follow me on Twitter @NahmodLaw.