Nahmod Law

What Everyone Should Know About Free Speech, Hate Speech and Political Protests: My New Video

I spoke about free speech, hate speech and political protests at the Chicago Bar Association on March 22, 2018. This was a CLE presentation setting out the basics of free speech and its relation to hate speech and political protests.

Although the audience consisted of lawyers, I deliberately used as little legal jargon as possible, with the result that the video of my presentation is suitable for any non-lawyers who are interested in learning about this always-important topic.

I hope you find it of interest. If you have any comments or thoughts, please feel free to email me at snahmod@kentlaw.edu.

Here is the link to the video (not in HD, unfortunately):

 

I also invite you to follow me on Twitter: @NahmodLaw.

 

Written by snahmod

June 26, 2018 at 10:11 am

“A Lark and a Frolic” and the Public/Private Distinction: When Does a Nominal State Actor Lose That Status?

The Fourteenth Amendment (with its due process, equal protection and incorporated Bill of Rights components) has a constitutional state action requirement, meaning that the Fourteenth Amendment is not applicable to purely private conduct. Rather, it governs the conduct of state and local government officials and employees, as well as states and local governments themselves.

(On state action, see my post, Know Your Constitution (8): What is State Action? which can be found here: https://nahmodlaw.com/2015/02/19/know-your-constitution-8-what-is-state-action/)

In contrast, section 1983 has a statutory color of law requirement. So what is the connection between state action and color of law? The answer, as it turns out: where state action is present, so is color of law.

(On color of law and section 1983, see my post, State Action, Color of Law and Section 1983, which can be found here: https://nahmodlaw.com/2016/11/21/state-action-color-of-law-and-section-1983/)

However, there are situations where a state or local government official whose conduct would ordinarily be considered to be state action for Fourteenth Amendment purposes (and therefore color of law for section 1983 purposes), is not considered to be a state actor and therefore as not having acted under color of law. For instance, off-duty police officers who work as private security guards. I call this the converse of the typical state action question.

(I discuss and collect such cases in sec. 2:13 of my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed. 2017)(West & Westlaw).

To explain: the typical state action question is whether the challenged conduct should be attributed to a state or local government for Fourteenth Amendment and section 1983 purposes. The converse of the typical state action question is whether the challenged conduct of a government official or employee, ordinarily state action and color of law, should not be attributed to a state or local government for Fourteenth Amendment and section 1983 purposes. The following Seventh Circuit decision is an example of the latter.

Luce v. Town of Campbell

In Luce v. Town of Campbell, 872 F.3d 512 (7th Cir. 2017), a police chief “messed” with Tea Party protestors who had criticized the police department for alleged mistreatment by posting the name and address of one of the protestors on websites catering to gay men and consumers of pornography. The police chief also posted comments on the local newspaper’s website falsely accusing the protestor of failing to pay taxes and his debts. The police chief tried to hide his role but he was discovered and thereafter resigned. Affirming the district court, the Seventh Circuit found that the police chief was not a state actor when he “messed” with the protestor: he did not use official information or privileged access. More important, acting like a vigilante was not part of a police officer’s job. Rather, it was “a lark and a frolic.” Accordingly, he could not be subject to section 1983 liability: because his conduct was not state action under the Fourteenth Amendment, he did not act under color of law for section 1983 purposes.

Comment

Both the state action and converse state action inquiries are very fact-specific. There are no real bright line rules: the inquiry focuses on whether the state or local government official exercised governmental power. To put this another way: the ultimate state action and color of law question is whether the state or local government is responsible for the challenged conduct.

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June 21, 2018 at 2:25 pm

Who Decides the Final Policymaker Question in Section 1983 Litigation?

Those involved in section 1983 litigation know that there are three ways for a local government to be liable in damages for an official policy or custom. Monell v. Dept. of Social Services, 436 U.S. 658 (1978).

(1) The first way is where a local government’s official policy brings about the plaintiff’s constitutional deprivation. For example, a municipal ordinance is an official policy.

(2) The second way is where a local government has an established custom of acting in a certain way.  For example, a local government that regularly uses race as an impermissible factor for making personnel decisions (even if not formalized as such) has a custom of racial discrimination. (A failure to train or supervise can sometimes constitute an actionable official policy or custom as well. City of Canton v. Harris, 489 U.S. 378 (1989)).

(3) The third way a local government’s official policy or custom can be shown is by attribution through a local government’s final policymaker (not merely an official or employee) who acts unconstitutionally. As the Court said in Monell, an official policy or custom can be “made  by … lawmakers or by those whose edicts or acts may fairly be said to represent official policy” (emphasis added).

The question whether an official or employee is a local government’s final policymaker is, according to the Supreme Court, a question of state and local law. Jett v. Dallas Independent. School Dist., 491 U.S. 701 (1989). Since the final policymaker question is so important in section 1983 litigation, who decides the question?

The Eighth Circuit’s Decision in Soltesz v. Rushmore Plaza Civic Center

Following the lead of the Supreme Court in Jett, and consistent with the approach of other circuits, the Eighth Circuit has emphatically ruled that a district court is required to identify a final policymaker under state and local law. In Soltesz v. Rushmore Plaza Civic Center, 2017 WL 490407, * 4 (8th Cir. 2017), the plaintiff sued a city under section 1983 after his concession stand lease was terminated and his property seized in alleged violation of due process. He based his claim on the decision of a final policymaker. However, the district court failed to identify a final policymaker and allowed the case to proceed over the city’s objections, and the plaintiff prevailed before a jury. Vacating the jury’s verdict and judgment for the plaintiff, and relying on Supreme Court precedent, the Eighth Circuit declared: ‘[N]o legally sufficient evidentiary basis exists to impose liability on a municipality for the decisions of a final policymaker when the district court fails to identify that policymaker.” This was a legal issue for the district court that must be based on state and local law. The jury has no role in this determination.

Comments

There is little question that the Eighth Circuit got it right. It is only when a final policymaker has been identified by the district court using state and local law–a straightforward legal issue not within the competence of a jury–that the jury has a role in determining whether the decision of the final policymaker caused the plaintiff’s constitutional deprivation.

The final policymaker question, as with other local government liability issues, can be incredibly complicated. Still, it must be mastered because respondeat superior liability is not allowed under section 1983 as a matter of federal law. See generally Chapter 6, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2017)(West and Westlaw).

So it can be important for plaintiffs to find a way to get deep pocket defendants such as local governments to pay damages for their constitutional deprivations, particularly where individual defendants may be protected by absolute or qualified immunity.

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June 11, 2018 at 3:04 pm

Attorneys Must, At Their Peril, Understand The Official-Individual Capacity Distinction In Section 1983 Damages Cases

It is crucial for a section 1983 plaintiff’s attorney in section 1983 damages actions against state and local government officials to specify whether the plaintiff is suing them in their individual or official capacities, and to understand the important differences. Defense attorneys must also understand these differences.

An individual capacity damages action is an action against the official personally, so that, if the suit is successful, the official is liable personally for damages (although indemnification by the local government is likely). An individual capacity damages action may therefore trigger an absolute or qualified immunity inquiry. Government liability and the official policy or custom requirement are irrelevant.

An official capacity damages action is an action against the official’s government. If the official works for or on behalf of a local government, then the official policy or custom requirement for local government liability is triggered. Absolute and qualified immunity are irrelevant here.

If the official works for or on behalf of a state government, then the section 1983 damages action will be dismissed because the state is not a suable person under section 1983 as a matter of statutory interpretation. This restriction on section 1983 cannot be avoided by suing a state official for damages in his official capacity rather than suing the state in its own name.

The Eighth Circuit’s Decision in Banks v. Slay

As an example of the importance of this distinction for both parties, consider the Eighth Circuit’s decision in Banks v. Slay, 2017 WL 5504388, *1 (8th Cir. 2017).

The Eighth Circuit explained the issue before it:

A core tenet of [§1983] jurisprudence is that an official-capacity suit against an individual is really a suit against that official’s government entity. This case applies that principle, as the primary issue we are called upon to decide is whether—under the facts of this case—a properly served, yet unnamed government entity may evade a judgment obtained solely against an employee is his official capacity. Our answer, flowing from settled precedent, is that it may not.

The plaintiffs here named two city police officers accused of threatening, robbing and falsely arresting one of the plaintiffs in their individual and official capacities. He also named each member of the city’s board of police commissioners in their official capacities, although they were later dismissed by the plaintiffs, as was one of the police officers. The complaint and summons had been previously served on the board defendants. Thereafter, judgment was entered against the remaining police officer defendant in his official capacity. The Eighth Circuit ruled that mandamus to enforce the judgment was properly issued against the city because the plaintiffs had an enforceable judgment against it. The court observed that naming a government entity separately in an official capacity damages action was not necessary.

Comment

1. I can only assume that in Banks the plaintiffs alleged and proved an official policy or custom in order to support the judgment against the remaining police officer defendant in his official capacity. If not, the plaintiff caught a break.

2. A good way for section 1983 plaintiffs’ attorneys to avoid confusing themselves, defendants and courts is to sue the local government for damages in its own name, rather than relying on official capacity damages actions against local government officials. This puts the official policy or custom requirement right up front and eliminates individual immunity concerns (unless, of course, local government officials are also sued in the same case for damages in their individual capacities). See generally ch. 6 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2017).

I invite you to follow me on Twitter: @NahmodLaw.

Written by snahmod

May 31, 2018 at 11:31 am

Kisela v. Hughes: Another Predictable Supreme Court Excessive Force Qualified Immunity Decision

Kisela v. Hughes

The Supreme Court did it again. In  Kisela v. Hughes, 138 S. Ct. — (2018)(per curiam), handed down on April 2, 2018, it reached out per curiam to reverse the Ninth Circuit in an excessive force qualified immunity case. The Ninth Circuit had itself reversed the district court’s grant of summary judgment to law enforcement officers on the ground that they violated clearly settled Fourth Amendment law. In the course of its opinion, the Court yet again chastised the Ninth Circuit (and implicitly other federal courts) for making the clearly settled law inquiry at too general a level.

In Kisela, police officers heard on a police report that a woman was engaging in “erratic behavior” with a knife, including hacking at a tree. When three officers arrived at the scene, they saw a woman, the plaintiff, holding a large kitchen knife at her side and moving toward another woman standing nearby, although the plaintiff never got closer than six feet. The other woman told the officers to “take it easy.” The three officers drew their guns but one of them, the defendant, shot her four times  through a chain link fence when she did not acknowledge their presence or drop the knife. She had refused to drop the knife after at least two commands to do so. All of this took place in less than a minute.

The officers later discovered that the plaintiff and the other woman were roommates, that the plaintiff had a history of mental illness and that the plaintiff was upset with her roommate because of a debt. The roommate stated in an affidavit that she never felt threatened, while the officers said that they “subjectively believed” that the plaintiff was a threat to the other woman.

The district court granted summary judgment to the defendant but the Ninth Circuit reversed because of circuit precedent that it considered analogous for clearly settled law purposes. On defendant’s petition for rehearing en banc, seven judges dissented from its denial. The Supreme Court in turn summarily reversed in a per curiam opinion.

The Court  emphasized that it had “repeatedly told courts–and the Ninth Circuit in particular–not to define clearly settled law at a high level of generality.” This was particularly appropriate in the excessive force Fourth Amendment setting where the results are always so fact-dependent. Here, the defendant had to make a split-second decision based on what he saw and knew. This was not an “obvious case” where any competent officer would have known that shooting the plaintiff would violate the Fourth Amendment. In addition, the Ninth Circuit relied on precedents that were distinguishable from this case, including one that was decided after the incident here and another that did not pass the “straight-face test.” Accordingly, the Court summarily reversed the Ninth Circuit and ruled that the defendant was protected by qualified immunity.

The Impassioned Dissent

Justice Sotomayor dissented, joined by Justice Ginsburg. She argued that the defendant violated clearly settled law in shooting the plaintiff. “[Plaintiff] was nowhere near the officers, had committed no illegal act, was suspected of no crime, and did not raise the knife in the direction of [her roommate] or anyone else.” Also, the other officers held their fire, while the defendant shot the plaintiff four times without warning. Thus, the defendant acted unreasonably and violated the Fourth Amendment. She then went on to address the clearly settled law inquiry, with the relevant question being: did the defendant have fair notice that his conduct was unconstitutional? Here, under Ninth Circuit precedent, the answer was yes. In her view, the Court’s attempt to distinguish those precedents was strained. Also, the decisions of other circuits indicated that the defendant violated clearly settled Fourth Amendment law.

Furthermore, Justice Sotomayor, went on, the Court made the mistake of drawing factual inferences in favor of the defendant rather than, as required, in favor of the plaintiff. Finally, she accused the Court of effectively, and improperly, requiring an identical case to establish clearly settled law: the Ninth Circuit had gotten it right. Justice Sotomayor concluded by asserting that the Court’s summary reversal was “symptomatic” of the Court’s “disturbing trend” in qualified immunity cases of intervening where law enforcement officers were perhaps improperly denied qualified immunity by lower courts but not intervening where law enforcement officers were perhaps improper granted qualified immunity. This “one-sided approach” was troubling and “asymetric” and in effect converted qualified immunity into absolute immunity.

Comments

1. Regardless of the particular Fourth Amendment and clearly settled law merits of Kisela, there is little doubt that the dissent was correct as an empirical matter in accusing the Court of asymmetry in the qualified immunity setting. Time and again the Court has reached out, sometimes without briefing and oral argument, as in Kisela itself, to reverse a pro-plaintiff qualified immunity determination.

2. In addition, both the Court and the dissent yet again informed other federal courts and litigants that the Court insists on almost identical precedent (except in obvious cases) as a condition precedent to finding a violation of clearly settled law.

3. Decades ago I predicted in prior editions of CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 8 (4th ed. 2017)(West), that the Court’s qualified immunity decisions in Harlow v. Fitzgerald, 457 U.S. 800 (1982)(eliminating the subjective part of qualified immunity as a matter of policy) and Mitchell v. Forsyth, 472 U.S. 511 (1985)(making denials of qualified immunity motions for summary judgment immediately appealable) would convert qualified immunity into absolute immunity. The Court’s qualified immunity decisions, especially in the last decade but even before then, have borne out this prediction.

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May 22, 2018 at 12:34 pm

Qualified Immunity, False Arrest and District of Columbia v. Wesby

District of Columbia v. Wesby

The Court recently handed down District of Columbia v. Wesby, 2018 WL 491521 (S. Ct. 2018), involving §1983 Fourth Amendment claims against police officers and the District of Columbia arising out of the arrests of plaintiffs in a vacant house in the middle of the night. The officers had responded to a called-in complaint about loud music and various illegal activities, and discovered that the inside of the house was barren and in disarray. The officers smelled marijuana, saw beer bottles and liquor cups on the floor; they found a make-shift strip club, and a woman and several men in an upstairs bedroom. Then then got inconsistent stories about a “Peaches,” supposedly the tenant who gave the partygoers permission for the party. When Peaches was contacted by phone, she eventually admitted that she did not have permission to use the house, and the real owner thereafter confirmed this. The defendants then arrested the plaintiff party-goers for unlawful entry.

After charges were dropped, many the partygoers sued, alleging Fourth Amendment violations for unlawful arrest. The district court found that the officers violated the Fourth Amendment and, moreover, that they were not entitled to qualified immunity because they knew when they entered that they had no evidence the partygoers’ entry was against the will of the owner. A divided panel of the D.C. Circuit affirmed: Peaches’ “invitation” was central to majority’s determination that the officers lacked probable cause to enter: this vitiated the plaintiffs’ intent to enter against the will of the owner.

The Supreme Court Unanimously Reverses

The Supreme Court unanimously reversed in an opinion by Justice Thomas. It found that the officers had probable cause to arrest the plaintiffs. It stated: “Considering the totality of the circumstances, the officers made an ‘entirely reasonable inference’ that the partygoers were knowingly taking advantage of a vacant house as a venue for their late-night party.” The Court chastised the D.C. Circuit majority for viewing each fact in isolation rather than as a factor in the totality of the circumstances. It also criticized the majority for dismissing as relevant circumstances that were “susceptible of innocent explanation.” Here, all of the circumstances suggested criminal activity.

Qualified Immunity and the Need for Specificity in the Clearly Settled Law Inquiry

Because the D.C. Circuit had also ruled against the officers on qualified immunity grounds, the Court in Wesby went on to determine that the officers were protected by qualified immunity as well. It explained: “It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.” Emphasizing the need for specificity in making the clearly settled law determination, the Court “readily” concluded that the officers were protected by qualified immunity:

The officers found a group of people in a house that the neighbors had identified as vacant, that appeared to be vacant, and that the partygoers were treating as vacant. The group scattered, and some hid, at the sight of law enforcement. Their explanations for being at the house were full of holes. The source of their claimed invitation admitted that she had no right to be in the house, and the owner confirmed that fact.

The Court further pointed out that the plaintiffs did not identify a single precedent finding a Fourth Amendment violation in similar circumstances. The D.C. Circuit majority had relied on “only” one of its decisions, from 1971, which “did not say anything about whether the officers here could infer from all the evidence that the partygoers knew that they were trespassing.” In addition, existing District of Columbia precedent “would have given the officers reason to doubt that they had to accept the partygoers’ assertion of a bona fide belief.” Consequently, a reasonable officer would have interpreted the law as permitting the arrests here. “There was no controlling case holding that a bona fide belief of a right to enter defeats probable cause, that officers cannot infer a suspect’s guilty state of mind based on his conduct alone, or that officers must accept a suspect’s innocent explanation at face value.”

Justice Sotomayor concurred in part and concurred in the judgment, agreeing on qualified immunity.  Justice Ginsburg concurred in the judgment in part, arguing that the Court’s Fourth Amendment jurisprudence “sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection.” In her view, the relevant jurisprudence  should sometimes take account of a police officer’s reason for acting.

Comments

Like the Supreme Court’s qualified immunity excessive force cases discussed in an early post–see https://nahmodlaw.com/2017/04/21/white-v-pauly-another-supreme-court-signal-on-excessive-force-and-qualified-immunity/–Wesby signals to federal courts and litigants that it takes qualified immunity very seriously in the false arrest setting as well. It insists on a particularized pro-defendant approach to the clearly settled law inquiry. In a very real sense, the Court’s instruction to federal courts is: Decide qualified immunity summary judgment motions exactly as we would.

It is worth noting in Wesby that the Court commented in footnote 8 that ‘[w]e have not yet decided what precedents—other than our own—qualify as controlling authority for purposes of qualified immunity.” The Court cited Reichle v. Howards, 566 U.S. 658 (2012), a First Amendment qualified immunity retaliatory arrest case, as “reserving the question whether courts of appeals decisions can be ‘a dispositive source of clearly established law’ [and] express[ed] no view on that question here.” The Court went on to explain that it was only addressing how a reasonable official could have interpreted those circuit court decisions.

It’s not entirely clear what this footnote means. One possibility is that it is a justification for the Court’s willingness in so many qualified immunity summary judgment cases to second-guess how the circuits have interpreted their own precedents in making the clearly settled law inquiry. Another possibility is that the Court may be hinting that only Supreme Court decisions can make clearly settled law, with the result that even if the relevant constitutional law is clearly settled in the forum circuit, the law remains unsettled in the absence of a Supreme Court decision. If that is correct, then this footnote has the potential to significantly expand the already broad protections of qualified immunity. But this reading is a stretch, at least at this point.

For more–perhaps too much more–on qualified immunity, see Ch. 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2017).

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May 16, 2018 at 8:40 am

Pleading, Iqbal and the Removal of Section 1983 Claims to Federal Court

Suppose a plaintiff decides to file his or her section 1983 complaint in state court, as permitted by the Supremacy Clause. Suppose further that the state court has a very pro-plaintiff pleading standard, which the plaintiff’s section 1983 complaint satisfies. The defendants choose to remove to federal court under 28 U.S.C. section 1441 (all defendants must agree to removal). After removal, does the plaintiff’s section 1983 complaint have to comply with the heightened federal court pleading standard of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)?

Recall that before Iqbal, federal courts were notice pleading jurisdictions. After Iqbal, however, the pleading standard is plausibility: the complaint must contain enough facts to state a claim that raises the right to relief above the speculative level. Otherwise, the complaint is dismissed.

According to the Fifth Circuit, the hypothetical plaintiff’s section 1983 complaint, now in federal court, must satisfy Iqbal‘s plausibility standard.

In Pena v. City of Rio Grande, 2018 WL 386661 (5th Cir. 2018), the Fifth Circuit addressed  the question of whether and when Iqbal’s plausibility standard applies to section 1983 actions filed initially in state court and then removed to federal court. The plaintiff sued a city and police officers in Texas state court, alleging excessive force. The defendants moved to dismiss and for judgment on the pleadings. After defendants removed to federal court, the plaintiff sought leave to amend to satisfy the federal pleading standard. The district court looked to the plaintiff’s second motion to amend and ruled that the federal pleading standard was not satisfied. It accordingly dismissed the claims against the various defendants.

On appeal, the Fifth Circuit rejected the plaintiff’s argument that F.R.C.P. Rule 8 does not apply to filings before removal. The court observed that where, as in this case, defendants challenge the pleadings in federal court, the federal pleading standard applies. Here, the plaintiff satisfied the allegation of injury prong against the police officers but did not plead facts that plausibly indicated that the officers’ conduct was objectively unreasonable. As to the city, the plaintiff did no more than allege the specific incident in which the plaintiff was involved. Further, the plaintiff did not plausibly allege the policymaker prong for local government liability. The same was true for plaintiff’s failure to train theory.

Comment

Section 1983 plaintiffs have the option for filing initially either in state court or federal court. This decision is based on various strategic considerations such as the choice of judge, the strength of pendent state claims, Eleventh Amendment immunity, the need for a speedy determination, parity, sympathy, hostility and competence. However, if they file in state court, the defendants, for their own strategic reasons, may decide to remove to federal court. If they do so, Pena indicates that they will have the benefit of Iqbal‘s heightened pleading requirement in federal court, even where the plaintiff’s section 1983 complaint satisfied the pleading requirement of the state court where the complaint was initially filed.

For much more on filing section 1983 claims in state court, and on Iqbal in the federal courts, see Chapter 1 in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2017).

I invite you to follow me on Twitter: @NahmodLaw.

Written by snahmod

May 2, 2018 at 9:54 am