Nahmod Law

Clearly Settled Law and Municipal Liability for Failure to Train: Erroneous Circuit Decisions

Quere: what is the relationship, if any, between the deliberate indifference required for failure to train liability and qualified immunity with its clearly settled law in inquiry? To be specific: suppose a local government and individual government officials or employees are sued in connection with a plaintiff’s constitutional deprivations. Suppose further that the individuals escape liability not because they did not violate the plaintiff’s constitutional rights (they did) but because they did not violate clearly settled constitutional law at the time of the challenged conduct. Can the local government nevertheless be held liable for deliberate indifference to the plaintiff’s constitutional rights? Interestingly, several circuits seem to take the erroneous position that the answer is no.

For example, in Bustillos v. El Paso County Hospital District, 2018 WL 2338812, *5 (5th Cir. 2018), the plaintiff sued a county hospital district and various medical personnel and law enforcement officers, alleging, among other things, that they violated her Fourth Amendment rights by subjecting her to intrusive body searches. After ruling that the individual medical personnel were protected by qualified immunity because there was no violation of clearly settled Fourth Amendment law, the Fifth Circuit went on also to hold that the county hospital district could not be liable for deliberate indifference for its failure to train medical personnel in how to handle government requests to do body cavity searches. It simply quoted from a Sixth Circuit decision declaring that a “policymaker cannot exhibit fault rising to the level of deliberate indifference to a constitutional right when that right has not yet been clearly established.” Hagans v. Franklin County Sheriff’s Office, 695 F.3d 505, 511 (6th Cir. 2012)(emphasis in original)(in turn quoting Szabla v. City of Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007)(en banc).

This reasoning is seriously off-base. For one thing, it conflates deliberate indifference to constitutional rights with clearly settled law: the relevant constitutional law may not be clearly settled at the time of the challenged conduct for individual liability purposes but a local government can still be deliberately indifferent to whether its officials or employees could violate that not-yet-clearly-settled constitutional right. There is no specific intent requirement for local government failure to train liability (or for individual liability either, for that matter). For another thing, introducing the clearly settled law inquiry into local government failure to train liability effectively confers qualified immunity protection on local governments, contrary to the Supreme Court’s decision in Owen v. City of Independence, 445 U.S. 622 (1980).

I cover local government liability in detail in Chapter 6 my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2018)(West, Westlaw). I cover qualified immunity in Chapter 8.

(A personal note: the delay between the immediately preceding post on Excessive Fines and this post is attributable to my deep dive into preparing the 2019 Update to my section 1983 treatise).

I invite you to follow me on Twitter @NahmodLaw.

Written by snahmod

May 6, 2019 at 11:08 am

The Excessive Fines Clause, Timbs v. Indiana and Section 1983 Implications

The Eighth Amendment

The Eighth Amendment declares: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Although the Eighth Amendment on its face applies only to the federal government, the Excessive Bail and Cruel and Unusual Punishment Clauses, like many other provisions of the Bill of Rights, have gradually been incorporated and applied to the states and local governments through the 14th Amendment’s Due Process Clause. But what of the Excessive Fines Clause?

Timbs v. Indiana and the Excessive Fines Clause

On February 20, 2019, the Supreme Court held in Timbs v. Indiana, No. 17-1091, reversing the Indiana Supreme Court, that the Excessive Fines Clause is similarly incorporated and applies to states and local governments. The Court, in an opinion by Justice Ginsburg, found that the Excessive Fines Clause is fundamental to our scheme of ordered liberty with deep roots in history and our tradition. The Court further rejected Indiana’s argument that the Clause does not apply to the use of civil in rem forfeitures, reasoning that the proper incorporation inquiry is whether the right guaranteed in fundamental and deeply rooted, not whether each and every particular application of that right is fundamental or deeply rooted. The Supreme Court then remanded to the Indiana Supreme Court to determine whether the attempted civil in rem forfeiture in Timbs violated the Excessive Fines Clause.

What does this have to do with section 1983? A great deal, it turns out.

Civil In Rem Forfeiture Proceedings

In Timbs itself, the criminal defendant pleaded guilty to state charges of dealing in a controlled substance and conspiracy to commit theft, and had already been sentenced to one-year home detention and five-years probation, with fees and costs totaling $1203.

But this did not satisfy Indiana. It also engaged a private law firm–a not unusual tactic in such cases–to bring a civil suit on behalf of the state for forfeiture of the criminal defendant’s recently purchased $42,000 Land Rover. The suit charged that the vehicle had been used to transport heroin. Notably, the maximum monetary fine for a drug conviction under Indiana law is $10,000, less than one-quarter of the value of the Land Rover. In addition, the Land Rover was purchased by the defendant with money from an insurance policy when his father died.

Section 1983 Implications

Here’s where section 1983 may come into the picture. The criminal defendant in Timbs, and others like him, can now use the Excessive Fines Clause as an affirmative Eighth Amendment defense to a civil in rem forfeiture proceeding. Going even further, the criminal defendant in Timbs, and others like him, can raise the Excessive Force argument as the basis of a section 1983 counterclaim for damages. Since the civil in rem forfeiture proceeding is brought on behalf of the state, albeit by a private law firm, there would still be state action.

It is true that the state itself is not a suable person for damages under section 1983 (in contrast, local governments can indeed be sued for damages under section 1983). Nevertheless responsible state officials (and local government officials as well) could be sued for damages in their individual capacities. Timbs has now clearly established relevant Eighth Amendment Excessive Fines Clause law for qualified immunity purposes, although what is excessive or not was not addressed by the Court.

Note also that a possible hurdle for criminal defendants who want to bring section 1983 claims against state and local government officials based on the Excessive Fines Clause could be absolute prosecutorial immunity.

(See chs. 7 & 8, Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (West 2018), on absolute and qualified immunity).

But I am getting ahead of myself here. Despite these qualifications, Timbs is an Eighth Amendment game-changer.

Written by snahmod

March 20, 2019 at 10:55 am

City of Escondido v. Emmons: Another SCOTUS Summary Reversal in a Qualified Immunity Excessive Force Case

The Supreme Court handed down City of Escondido v. Emmons, No. 17-1660 (per curiam), on January 7, 2019. In this qualified immunity excessive force case, the Court summarily reversed and once more chastised the Ninth Circuit for making the clearly settled law inquiry at too high a level of generality. What courts must instead do, the Court emphasized, is focus on the particular circumstances of the case and make the clearly settled law inquiry accordingly.

In Emmons, police officers had previously arrested a man after his wife called them to her apartment complaining of domestic violence. Thereafter, in the present case, police received a 911 call from the woman’s mother about another possible domestic violence incident at the apartment: the mother had heard yelling and screaming over the phone. When police arrived, they could not enter the apartment in order to make a welfare check (two children may have been in the apartment). After a few minutes of conversation between the police (from outside of the apartment) and the woman and an unidentified man, the plaintiff–who turned out to be the woman’s father–came out of the apartment and tried to brush past the officers. One of the officers then took him quickly to the ground and arrested him for the misdemeanor offense of resisting or delaying a police officer. The officer did not hit the plaintiff or display his weapon, and the police body camera video showed that the plaintiff was not in any pain.

The Ninth Circuit found that even though there was probable cause for the arrest, the officer may have violated clearly settled Fourth Amendment excessive force law and thus was not entitled to qualified immunity. It cited one of its own 2013 precedents, saying only that the right to be free of excessive force was clearly established in May 2013, when the events occurred.

The Supreme Court’s Summary Reversal

The Supreme Court summarily reversed, criticizing the Ninth Circuit for making the clearly settled law inquiry at too general a level. It also observed that the circuit precedent relied on by the Ninth Circuit involved the police use of force against individuals engaged in passive resistance, unlike this case. The Court thus remanded for a proper application of qualified immunity.

The result in Emmons is no surprise to those following the Supreme Court’s increasingly blunt warnings to the courts to apply qualified immunity with a good deal of specificity. Indeed, the Court in Emmons itself cited four of its recent qualified immunity decisions to that effect. (See, for example, my post on May 22, 2018, on Kisela v. Hughes, 138 S. Ct. — (2018)(per curiam): https://nahmodlaw.com/2018/05/22/kisela-v-hughes-another-predictable-supreme-court-excessive-force-qualified-immunity-decision/)

A Hidden and Disturbing Implication?

But what may be a bit of a shocker is what the Court tucked into its per curiam opinion almost in passing: it said that it assumed without deciding that a Court of Appeals decision can constitute clearly settled law for qualified immunity purposes. This is a rather remarkable statement to toss off so casually, since it has been assumed by courts and litigators for decades that in the absence of relevant Supreme Court case law (perhaps also in the absence of a clear circuit consensus to the contrary), a Court of Appeals decision can indeed constitute clearly settled law.

Consider the extreme implications of the Court’s statement: there can be no clearly settled law unless the Supreme Court has weighed in on the specific issue in comparable factual circumstances. Where the Supreme Court has not done so, qualified immunity must always be granted to defendants, thereby undermining individual section 1983 liability except in the most egregious cases. This cannot be correct.

I invite you to follow me on Twitter @NahmodLaw.

Written by snahmod

March 4, 2019 at 1:22 pm

Brochure for 36th Annual Section 1983 Conference on April 11-12, 2019

As I mentioned in an earlier save-the-date post, the 36th Annual Conference on Section 1983 will be held at Chicago-Kent College on Law on Thursday and Friday, April 11-12, 2019. This Conference is an outstanding value and is suitable for both newcomers to the field and experienced attorneys.

Many aspects of section 1983 doctrine and practice will be expertly covered, including attorney’s fees, together with Equal Protection, the Religion Clauses and pending Supreme Court cases.

The Conference’s nationally known speakers are Kimberly Bailey, Gerald Birnberg, Karen Blum, Erwin Chemerinsky, Rosalie Levinson, John Murphey and Sheldon Nahmod.

If you have any questions, please feel free to email me directly: snahmod@kentlaw.edu

Here is the link to the brochure, with relevant registration details: . https://cle.kentlaw.edu/database/brochures/sec83%20brochure%20201970554751.pdf

Written by snahmod

February 20, 2019 at 1:17 pm

Flint, Michigan, the Safe Drinking Water Act and Section 1983 Constitutional Claims

Boler v. Earley, 865 F.3d 391 (6th Cir. 2017), is a significant Sixth Circuit case involving the Safe Drinking Water Act, 42 U.S.C. secs. 300g-1 et seq (SDWA). It arose out of the disturbing and infamous events involving the contaminated drinking water of residents of Flint, Michigan.

The plaintiffs were residents of Flint, Michigan, who were adversely affected by water contamination. They sued various state and local officials and entities under section 1983 alleging substantive due process and equal protection violations, together with various state law claims. The defendants argued that the SDWA showed that Congress intended to  preclude the plaintiff’s constitutional claims, thus limiting the plaintiffs to whatever SDWA remedies they had.

Rejecting this argument and ruling that the SDWA did not preclude the plaintiff’s section 1983 constitutional claims, the Sixth Circuit relied on the SDWA’s text and legislative history, as well as its remedial scheme, for its conclusion. The court also mentioned the SDWA’s savings clause and examined the divergence of the rights protected by the SWDA and the constitutional provisions raised by plaintiffs. All of these considerations demonstrated that Congress did not intend to preclude section 1983 constitutional claims when it enacted the SDWA. Thus, the plaintiffs were entitled to go ahead with their substantive due process and equal protection claims.

Comments

1. The precise issue presented in Boler was whether the plaintiffs could even proceed with their section 1983 constitutional claims in light of the SDWA. I discuss this preclusion issue generally in sec 2:46 of my treatise, NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2018)(West). See also Fitzgerald v. Barnstable School Committee, 129 S. Ct. 788 (2009), unanimously holding that Title IX did not preclude section 1983 equal protection sex discrimination claims against school districts and officials.

2. This preclusion issue is different from what I have called the “laws issue,” namely, whether the violation of a federal statute by a state or local government official, or by a local government, can be the basis of a section 1983 claim. See sections 2:27-2:47 of my treatise.

3. Allowing the plaintiff’s section 1983 claims to go forward in Boler resulted in a subsequent (and very recent) landmark decision in which the Sixth Circuit held that the plaintiffs pleaded plausible substantive due process claims against various individual defendants, and also that these individual defendants were not protected by qualified immunity because the relevant substantive due process law was clearly settled at the time. See Guertin v. State of Michigan, Nos. 17-1698, 1699, 1745, 1752 & 1759 (6th Cir., January 4, 2019).

I invite you to follow me on Twitter @NahmodLaw.

 

 

Written by snahmod

January 18, 2019 at 11:35 am

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.

I invite you to follow me on Twitter @NahmodLaw.

Written by snahmod

January 16, 2019 at 11:04 am

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.

https://cle.kentlaw.edu/database/PDF/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.

 

Written by snahmod

January 7, 2019 at 1:56 pm

Posted in Uncategorized