One of my most popular posts is Know Your Constitution (5): Free Speech and Hate Speech, which was published on December 4, 2013, and can be found here: https://nahmodlaw.com/2013/12/04/know-your-constitution-5-free-speech-and-hate-speech/
More recently, I was invited to lecture on this topic to a general audience at Moriah Congregation in Deerfield, IL, on November 30, 2016. The attentive and engaged audience consisted of adults attending a continuing series of lectures on Henry Ford and anti-Semitism, with my lecture coming near the end of the series.
Following a gracious introduction by Bruce Ogron, an attorney and graduate of IIT Chicago-Kent College of Law, I spoke for 45 minutes and then answered some very good questions for another 15 minutes. I enjoyed the experience immensely.
I spoke first about common erroneous assumptions about the Supreme Court. I then moved into the mainstream theories or purposes of free speech, followed by three important considerations in free speech case law, and I concluded with a discussion of hate speech.
I am very pleased to offer this audio of my lecture.
On September 28, 2016, I audio-taped a 55-minute makeup class on Congressional abrogation of 11th Amendment immunity, including Kimel, Garrett and Hibbs. The class concluded with an important treaty power case, Missouri v. Holland.
I hope you find it of interest.
Here it is:
listen online (no video content):
- or download file here
I blogged on February 19, 2015, about the Fourteenth Amendment’s state action requirement. Much earlier, on November 29, 2009, I blogged about the seminal section 1983 decision in Monroe v. Pape and its ruling that, where state action is present, section 1983’s color of law requirement is thereby met. Readers should check these posts for important background.
The following cases, from the First, Third and Ninth Circuits, address state action and color of law. Keep in mind that there are several state action tests, including nexus, symbiotic relationship, public/state function and entwinement, any one of which may lead to a finding of state action.
The First Circuit’s Decision in Jarvis v. Village Gun Shop
In Jarvis v. Village Gun Shop, Inc., 805 F.3d 1 (1st Cir. 2015), gun owners and a nonprofit corporation sued a gun shop as operator of a bonded warehouse alleging violations of due process in connection with the auctioning off of their guns—confiscated by police and transferred to the gun shop– after the owners failed to pay gun shop storage fees. The First Circuit held that the gun shop was not a state actor:
(1) There was no real joint action or interdependence between the activities of the police and the gun shop; it was not sufficient that a state statute authorized police to transfer possession of confiscated firearms to licensed storage facilities.
(2) The public function test was also not satisfied: a licensed storage facility such as the gun shop did not perform a traditionally exclusive government function.
(3) The state compulsion test was similarly not satisfied: nothing in the state statutory scheme required the gun shop, or any licensed private storage company, to provide its services to the police.
The Third Circuit’s Decision in P.R.B.A. Corp. v. HMS Host Toll Roads, Inc.
In P.R.B.A. Corp. v. HMS Host Toll Roads, Inc., 808 F.3d 221, 225 (3rd Cir. 2015), a “gentlemen’s club” operator sued the private company that ran service plazas on state highway, alleging First and Fourteenth Amendment violations for the removal of the plaintiff’s brochures from the common areas of the service plazas.
The Third Circuit found no state action under the entwinement test or any other test: there was no active and pervasive involvement by the state either in the decision to remove the brochures or in the day-to-day operations of the service plazas. The Third Circuit observed: “[T]he presence of government signs and images of state officials in the service plazas—without more—does not constitute entwinement.”
The Ninth Circuit’s Decision in Naffe v. Frey
In Naffe v. Frey, 789 F.3d 1030 (9th Cir. 2015), the plaintiff, a political activist, sued a county deputy district attorney for publishing allegedly derogatory statements about her on his personal Internet blog and on Twitter.
Affirming the district court’s dismissal of her § 1983 claim, the Ninth Circuit determined that the defendant did not act under color of law because he published for purely personal reasons and the communications were unrelated to his work as a county prosecutor. Further, both his blog and his Twitter page had disclaimers that the opinions expressed were the personal opinions of the defendant and did not represent the opinions of his employer.
In short, the defendant did not exercise government power: even though he used his experiences as a deputy district attorney to inform his blog posts and Tweets, he pursued “private goals via private actions.”
Plaintiffs in section 1983 cases sometimes try to sue private parties or entities for Fourteenth Amendment violations as a way of getting into federal court and, if they win, getting attorney’s fees under 42 U.S.C. section 1988. These private parties or entities may also have deeper pockets than some government officials or employees.
The First and Third Circuit cases are relatively straightforward state action cases: these courts marched through the various state actions tests, determined that none of them applied and, as a result, found that the plaintiffs did not state section 1983 claims since the Fourteenth Amendment was not implicated.
In marked contrast, the Ninth Circuit case deals with a different but related question: when does a government official lose his state actor status and act as a private person not subject to the Fourteenth Amendment and section 1983? I call this the “converse of the typical state action question” in chapter 2 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2016; West).
Thus, the Ninth Circuit determined that the deputy district district attorney acted as a private person, and not as a government official or employee, when he published the challenged statements on his personal blog and on Twitter. He did not exercise government power either in reality or apparently.
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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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