Nahmod Law

The Supreme Court Comments on the Intracorporate Conspiracy Doctrine and Indirectly on Section 1983

I blogged about the intracorporate conspiracy doctrine and its relation to section 1983 on October 8, 2012, and that post should be read here for background:

More recently, the Supreme Court weighed in on this doctrine in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017) which involved § 1985(3) civil conspiracy claims (in addition to much-publicized Bivens claims) alleging unconstitutional prisoner abuse and unconstitutional conditions of confinement created by high-ranking federal officials—executives and wardens—after the 9-11 terrorist attacks. The plaintiffs were of Arab or South Asian descent.

The Supreme Court ruled that the defendants were protected by qualified immunity from the § 1985(3) civil conspiracy claims. It stated: “[R]easonable officials in [defendants’] position would not have known, and could not have predicted, that § 1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged.” See, on qualified immunity, chapter 8, NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2017)(West).

What is important for present purposes is that, in reaching its qualified immunity conclusion, the Court emphasized that the alleged conspiracy was between or among officers in the same branch of the federal government (the Executive), and in the same department (the Department of Justice). The Court then commented that it had not approved of the use of the intracorporate conspiracy doctrine in the § 1985(3) setting. In addition, the circuits were divided on this issue.

For these reasons, the defendants were protected by qualified immunity: “When the courts of appeals are divided on an issue so central to the cause of action alleged, a reasonable official lacks the notice required before imposing liability.”

In light of Ziglar, then, it is fair to say that the applicability of the intracorporate conspiracy doctrine in the § 1983 setting is similarly an open question.


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August 22, 2017 at 9:39 am

Does the Fourth Amendment’s Exclusionary Rule Apply in Section 1983 Cases? The Circuits Answer No

In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court held that the exclusionary rule—-under which evidence obtained by law enforcement officers who engage in searches or seizures in violation of the Fourth Amendment may not ordinarily be used against criminal defendants at trial—-applied to the states. This Fourth Amendment exclusionary rule remains the general rule, although the Court has introduced various exceptions to it. For example, in United States v. Leon, 468 U.S. 897 (1984), the Supreme Court created a good-faith exception to the exclusionary rule in criminal cases where a search warrant is obtained from a neutral magistrate.

Does the Fourth Amendment’s exclusionary rule also apply in section 1983 cases where, say, police officer defendants wish to introduce evidence against plaintiffs and in support of their defense position? In Lingo v. City of Salem, 832 F.3d 953 (9th Cir. 2016), the Ninth Circuit said that it was joining the First, Second, Fifth and Eleventh Circuits in holding that the exclusionary rule does not apply in section 1983 cases.

In Lingo, the plaintiff arrestee sued police officers alleging an unconstitutional arrest without probable cause that arose out of a violation of the Fourth Amendment when the officers entered the curtilage of her home to approach the back door. According to the plaintiff,  that initial unconstitutional entry led to the eventual discovery (through smell) of evidence of marijuana use, the “fruit” of the poisonous tree, and thereafter brought about her unconstitutional arrest. In the state court criminal case, the trial court agreed and suppressed this evidence on Fourth Amendment grounds, with the result that criminal charges were dismissed.

In this section 1983 case, the plaintiff argued that the officers should not be permitted to introduce evidence obtained in violation of the Fourth Amendment to show probable cause to arrest her. Rejecting her argument, the Ninth Circuit held that this evidence, even though obtained in violation of the Fourth Amendment, was indeed admissible.

The Ninth Circuit reasoned that, unlike in criminal cases where the purpose of the exclusionary rule is to remove any incentive for police to violate the Fourth Amendment and incriminate a suspect, the need for deterrence was minimal in section 1983 cases. And even if there were some need for deterrence, the costs of the exclusionary rule to police officers would be excessive. Specifically, the court explained:

[Compared to removing the incentive to violate the Fourth Amendment in criminal cases, in section 1983 cases] the need for deterrence is minimal. Here, application of the exclusionary rule would not prevent the State from using illegally obtained evidence against someone, but instead would prevent state actors merely from defending themselves against a claim for monetary damages. Exclusion of evidence in this context would not remove any preexisting incentive that the government might have to seize evidence unlawfully. It would simply increase state actors’ financial exposure in tort cases that happen to involve illegally seized evidence. In effect, section 1983 plaintiffs would receive a windfall allowing them to prevail on tort claims that might otherwise have been defeated if critical evidence had not been suppressed. Even if such application of the rule might in some way deter violative conduct, that deterrence would impose an extreme cost to law enforcement officers that is not generally countenanced by the doctrine.

The Ninth Circuit concluded:

[N]othing within the fruit-of-the-poisonous-tree doctrine suggests that an officer must ignore facts that would give him probable cause to arrest a person merely because those facts were procured through an unlawful search. Indeed, as a general matter, probable cause determinations depend on the substance of the information known to the officer, not whether that information would be admissible in court.


1. The reasoning and result in Lingo come as no surprise. The Supreme Court has not extended the Fourth Amendment’s exclusionary rule beyond criminal trials.

2. Also, as noted above, the four other circuits that have addressed this issue in a section 1983 context all reached the same conclusion.

3. The Ninth Circuit’s cost-benefit analysis in Lingo is worth noting.

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July 18, 2017 at 1:36 pm

County of Los Angeles v. Mendez: Supreme Court Rejects “Provocation Rule,” Remands On Proximate Cause

On May 30, 2017, the Supreme Court handed down a unanimous decision in County of Los Angeles v. Mendez (No. 16-369), vacating and remanding, 815 F.3d 1178 (9th Cir. 2016).

(I blogged about the issues raised by Mendez on May 10, 2017).

As I expected, the Court, in an opinion by Justice Alito (Justice Gorsuch did not participate), rejected the Ninth Circuit’s provocation rule. However, the Court did not decide the alternative proximate cause issue, but instead remanded.


In Mendez, police officers, looking for a felony parolee-at-large with an outstanding arrest warrant, engaged in a warrantless entry into plaintiff’s residence (a shack) without exigent circumstances (they should have secured a search warrant), and without knocking and announcing, both actions in violation of the Fourth Amendment. They thereby allegedly provoked the plaintiff resident’s grabbing a gun (it turned out to be a BB gun that resembled a small caliber rifle), which in turn led to their shooting and seriously injuring the plaintiff.

The question was whether the plaintiff had a section 1983 Fourth Amendment claim against the officers for damages resulting from the use of deadly force.  The two theories underlying such liability were that the warrantless entry into the shack either (1) provoked the subsequent events within the meaning of the Ninth Circuit’s provocation rule, or (2) proximately caused the use of the deadly force which–even if reasonable when viewed in isolation–was the reasonably foreseeable result of the warrantless entry that violated the Fourth Amendment. Or was the reasonable use of deadly force an event that broke the chain of causation under the second theory?

In the posture of case when it arrived at the Supreme Court, the Ninth Circuit had determined that even though the officers violated the Fourth Amendment by not knocking and announcing, they were protected by qualified immunity from damages liability for this constitutional violation. This effectively eliminated that particular Fourth Amendment violation–the failure to knock and announce–from serving as the basis of section 1983 liability for the shooting. (See chapter 8 of NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016) on qualified immunity).

However, and crucial for present purposes, the Ninth Circuit concluded that the warrantless entry into the shack violated the Fourth Amendment and was not protected by qualified immunity. And even though the shooting was reasonable and not excessive under Graham v. Connor, 490 U.S. 386 (1989), the officers were still liable under the circuit’s provocation rule: they had intentionally and recklessly provoked the shooting by entering the shack without a search warrant in violation of the Fourth Amendment. In the alternative, the Ninth Circuit further reasoned that the officers were liable because they proximately caused the shooting of the plaintiff.

The Opinion in County of Los Angeles v. Mendez

The Court unanimously reversed. It rejected the Ninth Circuit’s provocation rule: “The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” It emphasized that Graham v. Connor was the settled and exclusive framework for determining whether force used was excessive. This framework, focusing on the reasonableness of the force used, was objective in nature,  it addressed the facts and circumstances in each particular case and it determined reasonableness from the perspective of a reasonable officer on the scene, rather than with hindsight.

According to the Court, the Ninth Circuit’s provocation rule was inconsistent with Graham because it provided a “novel and unsupported path to liability” where the use of force was reasonable. The rule improperly “conflates distinct Fourth Amendment claims.” In so doing, it “permits excessive force claims that cannot succeed on their own terms.”

The Court then went on to reject the plaintiff’s attempts to limit the provocation rule to cases where (1) the separate constitutional violation creates the situation that led to the use of force and (2) the separate constitutional violation is committed intentionally or recklessly. Neither limitation solved the basic problem: the “unwarranted and illogical expansion of Graham.”

The Court concluded its analysis by reaffirming that the officers might conceivably be liable for damages proximately caused by their Fourth Amendment violation, namely, their warrantless entry into plaintiff’s shack. However, the Court emphasized that the proper proximate cause analysis “required consideration of the ‘forseeeability or the scope of the risk created by the predicate conduct,'” and the Ninth Circuit had not used this analysis in its alternative proximate cause ruling. Accordingly, the Court vacated the Ninth Circuit’s judgment and remanded to deal with the proximate cause issue.


1. The provocation rule was unique to the Ninth Circuit and its rejection in Mendez did not change section 1983 doctrine elsewhere.

2. The oral argument in Mendez focused on causation as well as the provocation rule. Several justices inquired into the proximate cause relationship between the failure to get a search warrant and the resulting (reasonable) use of deadly force. They asked whether the failure to get the search warrant made a difference in the plaintiff’s reaching for his BB gun, which resulted in the use of deadly force. They also asked whether the plaintiff’s reaching for his BB gun–and the officers’ subsequent use of deadly force–was within the scope of the risk created by the officers’ failure to get a search warrant. (This is classic tort law proximate cause talk).

These justices thereby appeared to signal to the lower courts and to the parties (on remand) that they were highly skeptical about the alleged proximate cause link between the failure to obtain a search warrant and the shooting of the plaintiff.

This is in contrast to the plaintiff’s far stronger proximate cause argument with regard to the risk of the plaintiff’s reaching for his BB gun–followed by the officers’ use of deadly force–that was created by the officers’ failure to knock and announce. But this Fourth Amendment violation was removed by the Ninth Circuit from the proximate cause analysis (and potential damages liability) by qualified immunity, as noted above.

3. Mendez did not change the circuits’ (and the Court’s) prevailing approach to proximate cause which focuses on reasonable foreseeability or the scope of the risk created by unconstitutional conduct. The results in individual cases may turn on how broadly or narrowly the scope of the risk created by the constitutional violation is defined. As in tort law, this is a question of policy.

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June 16, 2017 at 9:41 am

Manuel v. City of Joliet: The Court Rules Section 1983 “Malicious Prosecution” Claims Can Be Based on the Fourth Amendment But Otherwise Punts


Recall that 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.

Manuel, which was argued on October 5, 2016, had the potential to be a blockbuster section 1983 decision that transformed the section 1983 malicious prosecution landscape, especially for section 1983 claims brought for wrongful conviction and incarceration.

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 v. McCabe, 256  F.3d 747 (7th Cir. 2001), 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.”

This was the Question Presented in Manuel: “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 had all answered this question in the affirmative, while only the Seventh Circuit had answered in the negative.

Manuel raised two separate but related questions.

1. The first was whether the Fourth Amendment could be used as the basis for a section 1983 malicious prosecution claim, including for the period after so-called legal process began–when a judge determined that probable cause existed to hold the plaintiff.

2. The second, implied by the language of the Question Presented, and addressed by several of the Justices during oral argument, was whether the elements of the tort of malicious prosecution–including favorable termination as well as malice and absence of probable cause–should play any role in section 1983 claims challenging wrongful convictions and incarceration. This question was important under the facts in Manuel itself because, without a favorable termination requirement, the plaintiff’s section 1983 claim would be time-barred under the Illinois two-year statute of limitations even if it could be based on the Fourth Amendment.

The Supreme Court’s Decision: Reversed on the Fourth Amendment But Punting on “Malicious Prosecution”

On March 21, 2017, the Supreme Court reversed the Seventh Circuit’s decision that rejected the applicability of the Fourth Amendment after legal process has begun. In an opinion by Justice Kagan, the Court held that there is indeed a Fourth Amendment right to be free from seizure without probable cause that extends through the pretrial period, even though the seizure is “pursuant to legal process.” Specifically, the seizure occurs both before the onset of legal proceedings, i.e, the arrest, and after the onset of criminal proceedings, i.e., where a judge’s probable cause determination is based solely on a police officer’s false statements, as was allegedly the case in Manuel. The Court’s reasoning was similar to the “continuing seizure” approach of Justice Ginsburg’s concurrence in Albright v. Oliver, 510 U.S. 266 (1994).

However, the Court remanded to the Seventh Circuit on the favorable termination/accrual question after describing the opposing positions on the issue, including the observation that the United States agreed with the plaintiff in Manuel, as did eight of the ten circuits that have favorable termination requirements.

Justice Kagan’s opinion was joined by Chief Justice Roberts and Justices Kennedy, Breyer, Ginsburg and Sotomayor. Justices Thomas and Alito dissented, with Justice Alito, joined by Justice Thomas, arguing both that the Fourth Amendment was not applicable in Manuel and that the plaintiff was not entitled to the benefit of a unique malicious prosecution accrual rule based on a favorable termination requirement.


The Court’s decision on the Fourth Amendment only changes the law in the Seventh Circuit. However, the Court punted on the broader question whether common law malicious prosecution elements, including favorable termination, should play any role in section 1983 jurisprudence outside of situations covered by Heck v. Humphrey, 512 U.S. 477 (1994), where plaintiffs effectively challenge existing convictions.

These issues–raised, briefed and argued in Manuel– have been a matter of importance to me for some time. In fact, I wrote an amicus curia brief (posted previously) in support of the defendants in Manuel that deliberately did not take a position on the Fourth Amendment issue. Instead, the brief urged the Court to eliminate the confusion caused by the use of malicious prosecution terminology in section 1983 cases. The brief also maintained that the elimination of this terminology would be neutral in its effects on plaintiffs and defendants alike. My treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016)(West), has for years 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 provided the Court with its first opportunity in the twenty-three years since Albright v. Oliver to consider the elements of such claims. Regrettably, it did not do so in Manuel. Still, the Court will one day have to deal with these issues, including the favorable termination requirement.

When it does, recently confirmed Justice Gorsuch will be involved in the decision. And it is worth noting that then-Judge Gorsuch concurred in the judgment in Cordova v. City of Albuquerque, 816 F.3d 645 (10th Cir. 2016), where he came out against incorporating the common law tort elements of malicious prosecution, including favorable termination, in section 1983 cases.

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May 15, 2017 at 10:05 am

County of Los Angeles v. Mendez (pending): Section 1983, Proximate Cause and the Fourth Amendment

County of Los Angeles v. Mendez, No. 16-369 (argued March 22, 2017)

The Factual Background

Suppose that police officers, looking for a felony parolee-at-large with an outstanding arrest warrant, engage in a warrantless entry into a home without exigent circumstances (they should have secured a search warrant), and without knocking and announcing, in violation of the Fourth Amendment. They thereby allegedly “provoke” the plaintiff resident’s grabbing a gun (it turns out to be a BB gun), which in turn leads to their shooting and seriously injuring the plaintiff.

The Proximate Cause Questions

Does the plaintiff have a section 1983 Fourth Amendment claim against the officers for damages resulting from the use of deadly force?  The theories underlying such liability are that the warrantless entry into the home either (1) “provoked” the subsequent events or (2)  was the proximate cause of the use of the deadly force which (even if reasonable when viewed in isolation) was the reasonably foreseeable result of the warrantless entry that violated the Fourth Amendment?

These are the questions raised by Mendez v. County of Los Angeles, 815 F.3d 1178 (9th Cir. 2016), a Ninth Circuit decision that ruled for the resident, and as to which the Supreme Court has granted certiorari.

Specifically, in addition to the propriety of the Ninth Circuit’s questionable “provocation” rule, another aspect of the Question Presented is “whether, in an action brought under Section 1983, an incident giving rise to a reasonable use of force is an intervening, superseding event which breaks the chain of causation from a prior, unlawful entry in violation of the Fourth Amendment.”


There have been other section 1983 proximate cause cases before the Supreme Court, but this one is different because it raises reasonable foreseeability (and superseding cause) as the proximate cause test in a split-second decision making setting. Compare Malley v. Briggs, 475 U.S. 335 (1986), and Martinez v. California, 444 U.S. 277 (1980), both of which are discussed in sections 3:106-107 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016).

There is a critical complication in Mendez, however, that must be noted. The Ninth Circuit ruled in Mendez that the defendants did not violate clearly settled Fourth Amendment law in failing to knock and announce, even though they did violate the Fourth Amendment. That is, the defendants were protected by qualified immunity from damages liability-see Chapter 8 of my treatise–for their failure to knock and announce in violation of the Fourth Amendment, meaning that the proximate cause issue related to knock and announce may well disappear.

This is significant because it may weaken the plaintiff’s proximate cause argument. After all, isn’t the failure to knock and announce closely related in time and space to the plaintiff’s reaching for his BB gun? And isn’t this rather clearly reasonably foreseeable? On the other hand, how closely related in time and space is the defendants’ failure to obtain a search warrant to what happened later? Is this as clearly reasonably foreseeable?

The oral argument in Mendez focused on this issue, with various justices wondering about both the cause in fact and proximate cause relationship between the failure to get a search warrant and the resulting use of (constitutional) deadly force. They asked–cause in fact–whether the failure to get the search warrant made a difference in the plaintiff’s reaching for a gun (albeit a BB gun) that resulted in the use of deadly force. Several also skeptically asked–proximate cause–whether the plaintiff’s reaching for a gun was within the scope of the risk created by the failure to get a search warrant.

I suspect that a majority of the justices will rule for the defendants on this proximate cause issue. But going forward, much will depend on how the proximate cause opinion is written.

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May 10, 2017 at 10:22 am

White v. Pauly: Another Supreme Court Signal on Excessive Force and Qualified Immunity

In White v. Pauly,  137 S. Ct. 548 (2017)(per curiam), the Supreme Court once more strongly sent a message that police officers are to be given maximum deference when sued for damages under section 1983 and the Fourth Amendment for using excessive force.


In 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. See my post of Feb. 11, 2016.

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.

White v. Pauly: A Police Officer Receives Qualified Immunity for Use of Deadly Force

In White v. Pauly, yet another excessive force case (this one not involving a high-speed chase), the Supreme Court continued to signal lower federal courts and litigants that the clearly settled law inquiry must be made at a relatively fact specific level. In the Court’s words: “This case addresses the situation of an officer who—having arrived late at an ongoing police action and having witnessed shots being fired by one of several individuals in a house surrounded by other officers—shoots and kills an armed occupant of the house without first giving a warning.” The Court ruled that the officer was protected by qualified immunity.

The plaintiff in White, representing the estate of his deceased brother, alleged that three police officers violated the Fourth Amendment’s prohibition against the use of excessive force. The plaintiff was involved in a road-rage incident with two women who called 911 to report him as “drunk” and “swerving all crazy.” After a brief, nonviolent encounter with the women, the plaintiff drove off to a secluded house where he lived with his brother. Thereafter, two police officers—not including Officer White at the time–drove to the house (it was 11 pm) and were moving around outside. The plaintiff and his brother became aware of persons outside and yelled “Who are you?” and “What do you want?” The plaintiff maintained that he and his brother never heard the two officers identify themselves as police—only that the officers said they were armed and coming in. The brothers then armed themselves and began shooting. At that point Officer White, who had been radioed by the two officers, was walking toward the house when he heard the shots apparently directed at the two officers. Plaintiff’s brother then opened a front window and pointed a handgun in Officer White’s direction. One of the other two officers shot at the brother but missed him, followed immediately by White’s shooting and killing the plaintiff’s brother.

The district court denied all three defendants’ motions for summary judgment, and a divided panel of the Tenth Circuit affirmed. Pauly v. White, 814 F.3d 1060 (10th Cir. 2016). As to the two officers, the Tenth Circuit determined that taking the evidence most favorably to the plaintiff, reasonable officers should have understood that their conduct would cause the brothers to defend their home and might result in the use of deadly force against the deceased brother. As to Officer White, the Tenth Circuit ruled that the rule “that a reasonable officer in White’s position would believe that a warning was required despite the threat of serious harm” was clearly established at the time by statements from the Supreme Court’s case law. Judge Moritz dissented, arguing that the majority impermissibly second-guessed officer White’s quick decision to use deadly force.

The Supreme Court then reversed the Tenth Circuit, vacating the judgment against Officer White on the ground that he did not violate clearly established law on the record before the Tenth Circuit. The Court emphasized that it had regularly and repeatedly declared that clearly established law should not be articulated at a high level of generality. In the Court’s view, the Tenth Circuit “failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment.” Instead the Tenth Circuit improperly relied on general statements from the Supreme Court and circuit court “progeny” that set out excessive force principles “at only a general level.” Furthermore, this case did not present an obvious Fourth Amendment violation: the Tenth Circuit majority did not conclude that the failure to shout a warning was a “run-of-the-mill Fourth Amendment violation.” Finally, the Court expressed no opinion on the question whether the other two officers were protected by qualified immunity. Justice Ginsburg concurred, pointing out her “understanding” that the Court’s opinion did not foreclose denying summary judgment to the two other officers.


The Supreme Court obviously cannot decide all of the excessive force/qualified immunity cases in the circuits. So it does the next best thing by signalling to the federal judiciary and litigants that it demands maximum deference to police involving the use of excessive force, together with providing (to police) a significant margin for error in making the qualified immunity determination. In White, this was accomplished by finding no clearly settled Fourth Amendment law because of the Court’s insistence on finding a similar case.

Notice that the signalling is also directed at those federal circuit judges who disagree with a denial of qualified immunity by their panels. They are encouraged to do the hard work and write dissents that might encourage the losing police officers to seek certiorari in the Supreme Court, as well as catch the eye of some of the Justices.

Finally, White makes clear to section 1983 excessive force plaintiffs that they must do their clearly established law homework (I call it “time-travel” research) in order to have a decent chance of surviving a defense motion for summary judgment based on qualified immunity.


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April 21, 2017 at 8:29 am

An Injured Public Employee Gets Past DeShaney and Collins v. City of Harker Heights

The DeShaney and Collins Obstacles for Injured Public Employees Seeking Section 1983 Damages

A public employee who has been injured and thereby deprived of his or her constitutional rights by the employer’s failure to prevent the injury has two major section 1983 affirmative duty hurdles to overcome.

One is the familiar hurdle presented by DeShaney v. County of Winnebago, 489 U.S. 189 (1989), which held that due process does not impose an affirmative duty on state and local governments to protect individuals from private harm. I have blogged about DeShaney and its application in the circuits numerous times. I also analyze it in sections 3:59-61 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2016).

But even if the DeShaney hurdle can be overcome by showing a special relationship or danger-creation by government, there is the addition hurdle presented by Collins v. City of Harker Heights, 503 U.S. 115 (1992), which held that section 1983 provides no due process remedy “for a municipal employee who is fatally injured in the course of his employment because the city customarily failed  to train or warn its employees about known hazards in the workplace.” Put another way, there is no affirmative due process duty to provide a safe workplace for a public employee. See section 3:58 of my treatise for analysis of Collins.

These two significant hurdles demonstrate why overcoming them both in the same case is highly unusual.

Pauluk v. Savage, 836 F.3d 1117 (9th Cir. 2016)

In Pauluk v. Savage, a potentially significant case, the Ninth Circuit held that the injured public employee surmounted both hurdles, even though he ultimately lost on qualified immunity grounds. See chapter 8 of my treatise on qualified immunity.

Decedent’s legal representative sued a county health district and two employees, alleging that their deliberately indifferent exposure of decedent to a workplace environment known to be infested with toxic mold caused his death, thereby violating substantive due process. The Ninth Circuit noted that this case was at the intersection of the state-created danger doctrine on the one hand and Collins v. City of Harker Heights on the other.

Ultimately reversing the district court’s denial of summary judgment to the defendant employees, the court first found that a substantive due process claim was stated under the state-created danger doctrine even though the case involved a physical condition in the workplace. Under the state-created danger doctrine the plaintiff properly alleged and introduced evidence of a violation of substantive due process in that the defendants knowingly created, and continued to create, the danger to the decedent. But it still ruled that the substantive due process right asserted was not clearly established between 2003 and 2005, when the decedent worked despite his protests, with the result that the defendant employees were protected by qualified immunity.

In addition, and more to the present point, the Ninth Circuit went on to rule that the state-created danger doctrine was not foreclosed in this case by Collins. The court observed that Collins did not involve a claim under the state-created danger doctrine, as here, but rather the claim of a general due process right to a safe workplace. This distinction was significant and cut in favor of the decedent. However, there was no violation of clearly settled law because, unlike existing circuit precedent, this case involved harm by a physical condition where decedent worked. Thus, the defendant employees were entitled to qualified immunity on this ground as well.

Judge Murguia concurred in part and dissented in part, arguing that the plaintiff did not present a substantive due process claim of affirmative acts with deliberate indifference. 836 F.3d 1117 at 126.  Judge Noonan dissented, contending that the defendant employees in fact violated clearly settled substantive due process law in the Ninth Circuit. 836 F.3d 1117 at 1132.


1. The Ninth Circuit’s qualified immunity decision applies only to the defendant employees sued in their individual capacities for damages. But there still remains a possible section 1983 remedy against the county health district that was also sued by the decedent’s legal representative but was not technically a party to the defendant employees’ interlocutory appeal.

2. Even though the Ninth Circuit resolved the case in favor of the defendant employees on qualified immunity grounds, Pauluk still established clearly settled due process law going forward.

3. The result on the due process merits in Pauluk is the consequence of good lawyering and a careful reading of Collins. Plaintiff’s attorneys persuaded the Ninth Circuit that once the danger-creation doctrine was available, Collins did not apply where a very specific affirmative act regarding the workplace allegedly violated due process.

4. DeShaney and Collins kinds of cases often present tragic circumstances. Still, plaintiffs in such cases typically lose. Pauluk stands out.

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March 29, 2017 at 9:38 am