I have blogged previously about how the Supreme Court’s controversial DeShaney decision has fared in the circuits. DeShaney held that as a general matter governments have no affirmative substantive due process duty to protect persons from private harm (of course, it’s more complicated than that). The first post was on 8-22-11; the second was on 6-1-12; the third was on 5-20-13; the fourth was on 6-6-13; the fifth was on August 27, 2014, and the most recent was on April 10, 2015.
Here is a particularly disturbing DeShaney-related decision from the Fourth Circuit. I came across it when preparing the now-published 2016 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).
Doe 2 v. Rosa, 759 F.3d 429 (4th Cir. 2015)
In Doe 2, two brothers sued the president of a public military college under section 1983 and substantive due process, alleging that he failed to protect them from being sexually molested by a camp counselor, a former cadet, while at summer camp on campus.
Affirming the district court’s grant of summary judgment to the president, the Fourth Circuit found no liability under the state-created danger approach. Relying on its decision in Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995), the Fourth Circuit determined that the president did not create or substantially enhance the danger that the boys faced.
The Fourth Circuit observed that the counselor began abusing the boys in 2005 and 2006, two years before the president could have been aware (through a complaint) that the counselor was a pedophile. Thus the president could not have created a danger that already existed.
Nor did he increase the risk to the boys: there was nothing that the counselor did to the boys during the early summer in 2007 that was not ongoing for two years, and this was all unrelated to any action by the president.
DeShaney had established that continued exposure to an existing danger by failure to intervene was not the equivalent of creating or increasing that danger.
Moreover, even if the boys did face a new or increased risk of abuse, this was not the result of any affirmative acts of the president: his inaction was solely his failure to alert the authorities about the counselor’s past conduct.
In these kinds of cases plaintiffs have the heavy initial burden of showing the existence of an affirmative due process duty to act in some manner. In order to get around the DeShaney no affirmative duty rule, plaintiffs typically attempt to use one or both of two exceptions: (1) special relationship and (2) danger creation. In Doe 2, there was no special relationship because the president did not himself place the brothers in a situation where they could not protect themselves. The circuits have typically held that even public school officials have no affirmative duty under a special relationship theory to protect their students from sexual abuse by teachers or other students.
That left the plaintiffs with the danger creation theory based on the allegation that he failed to alert the authorities about the counselor’s past conduct. But even that did not work for them because, according to the Fourth Circuit, the president did not play an affirmative causal role in creating or increasing the danger of sexual abuse to them. In other words, he did nothing that changed the situation in which they found themselves. This was determinative of the no-duty outcome in Doe 2, even though the president’s failure to notify authorities was plausibly related as a causal matter to the brothers’ continuing victimization.
Doe 2 is yet another example of the effectiveness of the DeShaney no-duty rule as a gatekeeper in keeping such section 1983 cases out of the federal (and state) courts. All that the plaintiffs alleged was the president’s failure to alert authorities about the counselor’s past conduct; they were not seeking any other form of affirmative protection from him. And still DeShaney applied.
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As some of you know, I have been arguing for quite some time that the scope of section 1983 should not be governed by tort law. See Nahmod, Section 1983 and the “Background” of Tort Liability, 50 Ind. L.J. 5 (1974).
Along the same lines, I have consistently maintained that the elements of the tort of malicious prosecution should play no meaningful role in section 1983 statutory interpretation–see my post of Sept. 11, 2009. The only exception is where section 1983 damages actions challenge existing convictions. Heck v. Humphrey, 512 U.S. 477 (1994).
As noted in my post of March 24, 2016, the Supreme Court granted the plaintiff Petitioner’s petition for writ of certiorari in Manuel v. City of Joliet to address the question whether the Fourth Amendment can serve as the basis of a section 1983 “malicious prosecution” claim. Counsel for Respondents asked me to submit an amicus brief in support of affirming the Seventh Circuit‘s judgment for Respondents.
The entire amicus brief is available here.
For those who do not want to read the entire brief, what follows is the full Introduction and Summary of Argument:
INTRODUCTION AND SUMMARY OF
Over twenty years ago, this Court acknowledged “an embarrassing diversity of judicial opinion” on “the extent to which a claim of malicious prosecution is actionable under § 1983.” Albright v. Oliver, 510 U.S. 266, 270 n.4 (1994) (plurality opinion). This embarrassment continues, seriously impeding the vindication of the Fourteenth Amendment and other constitutional rights. The time has come to answer the fundamental issues raised by the Question Presented, which as the certiorari petition recognized (at 10-11, 21, 25-26), necessarily include whether the elements of the common law malicious prosecution tort—and the favorable termination element in particular— apply to Petitioner’s § 1983 claim.
The only defensible answer to that crucial statutory interpretation question is that the common law elements of malicious prosecution should play no independent role in determining the scope of claims under 42 U.S.C. § 1983. Section 1983 created a federal statutory remedy for constitutional violations perpetrated by state actors, whereas malicious prosecution is a common law tort. To describe a § 1983 claim as “malicious prosecution” is a misnomer that directs attention away from the real inquiry—the elements of the constitutional provision underlying the particular § 1983 claim—and improperly focuses instead on the elements of the malicious prosecution tort. In this respect the Seventh Circuit gets it right while other circuits do not: “[I]f a plaintiff can establish a violation of the fourth (or any other) amendment there is nothing but confusion to be gained by calling the legal theory ‘malicious prosecution.’” Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001).
Attempts to analogize between so-called § 1983 “malicious prosecution” claims and the common law elements of malicious prosecution have caused a great deal of confusion in the lower courts. The en banc Fifth Circuit described its own “precedent governing § 1983 malicious prosecution claims” as “a mix of misstatements and omissions” that has led to “inconsistencies and difficulties.” Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc). And the Fifth Circuit acknowledged that it is “not alone in this drift. Other circuits have traveled uneven paths as well, and numerous approaches have developed after Albright.” Ibid.; see generally Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 §§ 3:66-3:67 (4th ed. 2015) (collecting and analyzing post-Albright cases in the circuits, and arguing that malicious prosecution law should not dictate scope of § 1983).
Petitioner tries to take advantage of this confusion to save his § 1983 “malicious prosecution” claim from dismissal on statute of limitations grounds. He maintains that § 1983 imports the “favorable termination” element of common law malicious prosecution, which would have prevented accrual of his claim until he was released and the charges against him dropped. Such a maneuver cannot be squared with § 1983 or this Court’s precedents.
1. Contrary to the rule that Petitioner needs to prevail, the elements of common law torts like malicious prosecution do not dictate the elements of a § 1983 claim. Nothing in the text of § 1983, its legislative history, or its purposes indicates that Congress intended to merely duplicate common law torts. Section 1983 by its own language was enacted to enforce the “rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. Regardless of any superficial similarity between particular § 1983 actions and particular tort actions, the vital constitutional interests served by § 1983 are distinct from and independent of the principles that animate tort law.
The Court has consistently reaffirmed that constitutional deprivations are central to § 1983 claims. Thus, the statutory cause of action may be interpreted against the “background of tort liability,” but only to implement § 1983, not to define its scope. Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled on other grounds by Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978). At most, common law principles can fill gaps as necessary to effectuate a damages remedy for constitutional violations.
2. Importing the common law elements of malicious prosecution into § 1983 would be particularly ill-advised. The last two decades have demonstrated that attempts to do so result only in confusion. Indeed, the fundamental disconnect between the elements of a § 1983 claim and the elements of a common law malicious prosecution claim virtually guarantees confusion. In addition, the entire enterprise of attempting to interpret a supposedly uniform federal cause of action based on tort law that varies not only from one state to another, but from the time of § 1983’s enactment in 1871 to the present day, is just not workable.
Finally, as a matter of § 1983 law and policy, there is no good reason to make any of the traditional elements of malicious prosecution into elements of Petitioner’s § 1983 claim for unlawful pretrial detention. Several of the malicious prosecution elements (including the favorable termination requirement) contradict established § 1983 precedents. And others (such as the absence of probable cause) make sense only to the extent that the underlying constitutional right requires their consideration. In short, this Court’s interpretation of § 1983 should not be governed by the common law tort of malicious prosecution.
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Protecting Police Officers from Section 1983 Damages Liability
By now, many of us know that section 1983 doctrines are highly protective of police officers sued for violating citizens’ constitutional rights. Fourth Amendment law itself has become more officer-protective with its emphasis in excessive force cases on the perspective of the officer at the time of the occurrence. Graham v. Connor, 490 U.S.386 (1989). And the added layer of protection for officers, qualified immunity, has repeatedly been described by the Supreme Court as protecting “all but the plainly incompetent” from damages liability. See generally on qualified immunity, ch. 8 of my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed. 2015).
High-Speed Police Chases, the Fourth Amendment and Qualified Immunity
In high-speed police chases that involve a seizure and therefore implicate the Fourth Amendment, the pro-officer approach of the Supreme Court is particularly obvious. For example, 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 February 12, 2016. A prior 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 derived 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.
High-Speed Police Chases and Substantive Due Process
Furthermore, even in cases that don’t involve a Fourth Amendment seizure but instead implicate substantive due process, the Supreme Court has required a very high standard of culpability–a purpose to do harm–that is incredibly difficult for a plaintiff to surmount. County of Sacramento v. Lewis, 523 U.S. 833 (1998).
A Rare Case of Section 1983 Police Officer Liability: Browder v. City of Albuquerque, 2015 WL 3462180 (10th Cir. 2015)
Now consider a substantive due process case where, because it did not involve a high-speed chase that was legitimate from a law enforcement perspective, the result was dramatically different.
The Tenth Circuit in Browder set out the facts this way:
“[The defendant] was going nowhere fast. After finishing his shift at the Albuquerque police department and on no one’s business but his own, he got into his police cruiser, flipped on the emergency lights, and drove off at an average of about 66 miles an hour on city surface streets through ten different intersections over a stretch of 8.8 miles. Then he reached an eleventh intersection. The light was red. He pressed the gas pedal, ignored the light, and the result was a terrible crash. “
A woman died and her sister was seriously injured. Their representative sued the police officer under section 1983 alleging a substantive due process violation.
Affirming the district court which denied the defendant’s motion for summary judgment based on qualified immunity, the Tenth Circuit pointed out that this was not a case involving a possibly legitimate government objective. Further, there was sufficient evidence of reckless indifference to the lives of others, a kind of mens rea, because the defendant was not responding to any emergency or on any official business at all. Moreover, the defendant violated clearly settled law in 2013, the time of the accident, and thus was not entitled to qualified immunity.
Notice that the Tenth Circuit did not use the pro-defendant County of Sacramento test with its very high standard of culpability–purpose to do harm– because the officer was not engaged in a high-speed chase of a suspect. Instead, it used the somewhat lower standard of reckless indifference, although this was accompanied by a reference to County of Sacramento and the alleged mens rea of the officer.
Also observe that while there is an interesting question whether the police officer in Browder acted under color of law, the parties accepted that there was state action and the Tenth Circuit agreed without deciding the question.
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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.
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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.
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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.
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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.