Nahmod Law

Search Results

All My Constitutional Law Posts to 10-12-15

This is Part II of the All My Posts Series to 10-12-15. Part I, also posted today, deals with Section 1983.

Please search within the post for any cases, topics and the like that you are interested in.

PART II: CONSTITUTIONAL LAW

All My Videos: Constitutional Law, Section 1983 and SCOTUS

Know Your Constitution (1): The Structure of Government

Know Your Constitution (2): Myths About the Constitution

Know Your Constitution (3): Myths About the Supreme Court

Know Your Constitution (4): What Is Equal Protection?

Know Your Constitution (5): Free Speech and Hate

Know Your Constitution (6): What Is Procedural Due Process?

Know Your Constitution (7): What Is Substantive Due Process/Right of Privacy?

Know Your Constitution (8): What is State Action?

A Short Video on Equal Protection Basics

Class-of-One Equal Protection Claims: Uncertainty in the Seventh Circuit

Marbury v. Madison: Some Additional Lessons

McCulloch v. Maryland: Exegesis and Constitutional Education

The Commerce Clause

The Dormant Commerce Clause

Brown v. Board of Education

Affirmative Action

Affirmative Action and Fisher v. University of Texas: A Video Discussion

The Fisher Case on Affirmative Action and the Shelby County Case on Voting Rights: Two of a Kind

The Equal Protection Clause and Fundamental Interests

Supreme Court Decisions, 2007-2008: A Video Presentation

Supreme Court Review: 2009 Term (video)

Anti-SLAPP Statutes in Federal Courts

The Patient Protection and Affordable Care Act: The Commerce Clause and Constitutional Trust

Individual Mandate Upheld–Medicaid Expansion Upheld (Mostly)

The Health Care Act Decision: A Video Discussion

The Constitutionality of the Patient Protection and Affordable Care Act: A Video Presentation

Gun Control, the Second Amendment and Section 1983 After McDonald v. Chicago

The Second Amendment and Gun Control: Unanswered Questions

DeShaney in the Circuits: Affirmative Duties and Danger-Creation

DeShaney in the Circuits (II): Affirmative Duties and Danger-Creation

DeShaney in the Circuits (III): The Fifth Circuit En Banc Holds the Line

DeShaney in the Circuits (IV): The Seventh Circuit’s Reformulation

DeShaney in the Circuits (V): The Third and Tenth Circuits Weigh In

DeShaney in the Circuits (VI): Some Recent Decisions

Oyez’s Fourth Amendment Deep Dive

Kingsley v. Hendrickson: New Supreme Court Pretrial Detainee Excessive Force Decision

Written by snahmod

October 12, 2015 at 2:50 pm

Posted in Constitutional Law

“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.

I invite you to follow me on Twitter: @NahmodLaw

 

Written by snahmod

June 21, 2018 at 2:25 pm

My Lecture on the Supreme Court, Free Speech and Hate Speech (Audio)

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.

View or Download file via Google Drive, open on Panopto or listen here (no video):

Written by snahmod

December 14, 2016 at 2:35 pm

Freedom of Speech (4): Internet Threats and Elonis v. United States

Prior Related First Amendment Posts

I previously blogged about some of the basics of free speech doctrine.

I addressed its three primary rationales–marketplace of ideas, self-government and individual autonomy–on January 19, 2010. I next considered the roles of content, medium and forum in free speech jurisprudence on January 29, 2010. I then discussed the early years of free speech doctrine–the clear and present danger years–on February 14, 2010. Finally, in an internationally popular post for non-lawyers, as part of my Know Your Constitution series, I addressed hate speech on December 4, 2013.

In 2015, the Supreme Court will decide Elonis v. United States, No. 13-983 (argued 12-1-14), a case involving internet threats. So I’d like to say some things about the relevant free speech jurisprudence as well as the case itself.

Free Speech Background: The “Multi-Tier” Approach and True Threats

There is,  it may surprise some to know, a hierarchy of speech that receives greater or lesser protection depending on its content.  Political speech receives the highest First Amendment protection; commercial speech typically receives intermediate level protection; and obscenity, fighting words, child pornography and “true threats” receive no First Amendment protection at all. These last kinds of speech are in a kind of First Amendment hell, so to speak, because each of them is considered to have little or no First Amendment value. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Once it is determined that the relevant speech fits into this last group, then it is not covered by the First Amendment.

The Supreme Court defined a true threat in Virginia v. Black, 538 U.S. 343 (2oo3), a case involving cross-burning, in the following way: the speaker means to communicate a serious expression of  intent to commit an act of unlawful violence against an individual or group of individuals. The essence of a true threat is intimidation because it places the victim in fear of bodily harm or death, although the speaker need not necessarily intend to carry out the threat. In Black itself, the statute required an intent to intimidate and various persons testified that they were in fact intimidated.

The theory is that this kind of threatening speech–assuming that one considers it “speech” rather than “conduct”–deserves no First Amendment protection because it silences speech by placing victims in fear of bodily harm or death.

The Issue in Elonis: Must the Defendant Subjectively Intend to Intimidate?

Elonis was convicted under 18 U.S.C. § 875(c) for “transmit[ting] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another….” More specifically, he was convicted of using the internet over a period of time to threaten his wife,  employees of the Pennsylvania State Police and Berks County Sheriff’s Department, a kindergarten class, and an FBI agent. The defendant contended the trial court incorrectly instructed the jury on the standard of a true threat. The court gave the following jury instruction:

A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.

Elonis contended that the Supreme Court in Black had effectively required, as part of a valid true threat conviction, that a defendant must subjectively intend to intimidate, that he did not subjectively intend to intimidate, and that it was not sufficient that he could reasonably foresee (a negligence standard) that his or her statement would be interpreted as expressing an intention to commit bodily harm or cause death. The Third Circuit rejected Elonis’s argument, and the Supreme Court granted certiorari.

Comments

1. The Court could model the true threat doctrine on the incitement doctrine of Brandenburg v. Ohio, 395 U.S. 44 (1969), and rule that a true threat defendant (1) must subjectively intend to intimidate and (2) the statement must reasonably be so understood by its targets. This would provide the maximum breathing space for free speech, but at a major cost to those who were targets of a “clever threat-maker” as Elonis himself may have been.

2. The Court could model the true threat doctrine on the fighting words doctrine which, as Justice Kagan pointed out in oral argument, only requires an inquiry into the content of the speech–do the words amount to in-your-face epithets or personal abuse likely to provoke the average person to retaliate?–and not the subjective intent of the speaker. This position seems close to that of the Third Circuit in Elonis.

3. The Court could find a middle-ground state of mind requirement such as recklessness, by analogy to the knowing or reckless falsehood defamation standard of New York Times v. Sullivan, 376 U.S. 254 (1964). This would minimize the problem of the clever threat-maker but also provide a bit more free speech breathing space on the internet and elsewhere than the Third Circuit’s negligence approach. Moreover, it would preclude the criminalizing of statements on the internet and elsewhere that were not intended to intimidate but did so innocently in fact even if later determined to have been negligent.

Although predicting Supreme Court outcomes is not for the faint of heart, I expect that the Court will go with a variation of #3.

 

I invite you to follow me on Twitter @NahmodLaw

 

 

 

 

 

Written by snahmod

December 15, 2014 at 4:53 pm

All My Posts Through 4-10-13

It has been a while since I reorganized all of my posts (including several videos and podcasts) in order to provide greater and more efficient accessibility for readers. There are now more than 100 posts.

I consider this reorganization important, and I hope it is also useful to you, because my posts are not intended to be of short-term utility.

Instead, they are intended to serve the continuing educational needs of  lawyers, law students, academics and the public at large.

I thank all of you for your growing support of this blog.

Sheldon Nahmod (snahmod@kentlaw.edu)

 

What follows is a list comprising all of my posts (with links) divided into the following four parts: PART I: SECTION 1983; PART II: CONSTITUTIONAL LAW; PART III: FIRST AMENDMENT; PART IV: EDUCATION

PART I: SECTION 1983

Section 1983 Supreme Court Decisions–2009: A Video Presentation

A Section 1983 Podcast: Damages and Procedural Defenses

From Monroe to Connick: Video

From Monroe to Connick: Podcast

Article: The Long and Winding Road from Monroe to Connick

“Section 1983 Is Born”: A Working Paper

A Section 1983 Primer (1): History, Purposes and Scope

A Section 1983 Primer (2): The Seminal Decision of Monroe v. Pape

A Section 1983 Primer (3): Constitutional States of Mind

A Section 1983 Primer (4): Causation and the Mt. Healthy Burden-Shift Rule

A Section 1983 Primer (5): Statutes of Limitations

A Section 1983 Primer (6): Claim and Issue Preclusion

A Section 1983 Primer (7): Introduction to Absolute Individual Immunity

A Section 1983 Primer (8): Absolute Legislative Immunity

A Section 1983 Primer (9): Absolute Judicial Immunity

Read the rest of this entry »

Written by snahmod

April 10, 2013 at 2:30 pm

Posted in Uncategorized

A Short Video on Equal Protection Basics

I blogged on January 31, 2013, as part of my series on the Constitution: Know Your Constitution (4): What Is Equal Protection?

The following is a link to a five-minute video I made for Chicago-Kent’s Oyez Project on this same topic.

http://www.youtube.com/watch?v=NrClJxXg7EE

I hope you find it informative.

Written by snahmod

March 23, 2013 at 12:23 am

Posted in Constitutional Law

Finally! A State’s Highest Court Creates Clearly Settled Law

Whose Decisions Determine Clearly Settled Federal Constitutional Law?

We all know that in order for a state or local government official to be liable for damages in his or her individual (not official) capacity under section 1983, that official must have violated clearly settled federal constitutional law as of the time of the challenged conduct. Otherwise, that official is protected by qualified immunity and is not liable for damages.

The conventional, oft-repeated approach is that in making the clearly settled law inquiry, we look first for apposite Supreme Court decisions. If there are none, then we look to the particular circuit’s decisions to determine whether clearly settled law existed at the time. If there are no such apposite decisions in the particular circuit, we look to the other circuits to determine whether there is an overwhelming consensus that the relevant law was clearly settled.

It is often said as well that a state’s highest court can establish clearly settled federal constitutional law even where there is otherwise no such clearly settled law. Yet, in all of the decades that I have been working in the section 1983 area, I do not recall ever encountering a situation where this has happened. Until now!

The Second Circuit’s Stoley Decision and the Court of Appeals of New York’s Hall Decision

In Stoley v. Vanbramer, 2019 WL 6765762 (2nd Cir. 2019), the defendant New York State troopers allegedly violated the plaintiff’s Fourth Amendment rights by subjecting him in 2013 to a visual body cavity search incident to his arrest on felony charges without reasonable suspicion that drugs were concealed within his body. Affirming the district court’s denial of qualified immunity to the defendants, the Second Circuit relied on a 2008 Court of Appeals of New York decision, People v. Hall, 10 NY3d 303 (N.Y. 2008), holding that individualized reasonable suspicion that an arrestee (whether for misdemeanor or felony) is concealing weapons or other contraband within his body is required by the Fourth Amendment for a visual body cavity search incident to an arrest. The Second Circuit explained that it saw no problem in requiring that New York law enforcement officers know Fourth Amendment law from decisions of federal courts and the Court of Appeals of New York.

Judge Newman concurred, 2019 WL 676562, *12, arguing that the majority relied not only on the Court of Appeals of New York decision for its finding of clearly settled law but also on the decisions of other circuits, decisions of the New York Appellate Division and decisions of district courts in the Second Circuit. The “combination of these circumstances,” together with Hall, supported the majority’s determination.

Judge Jacobs dissented, 2019 WL 67652, *15, contending that relevant Second Circuit Fourth Amendment law regarding body cavity searches incident to felony (as distinct from misdemeanor) arrests was not clearly settled in 2013.

The lesson for attorneys in section 1983 litigation involving qualified immunity and clearly settled law: however rare it is, don’t ignore your highest state court decisions setting out federal constitutional law.

For additional posts on qualified immunity, search “qualified immunity” on this blog.

For much more on qualified immunity, see Ch 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019) (West/Westlaw).

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

 

 

Written by snahmod

May 14, 2020 at 9:50 am

Substantive Due Process Privacy Violations and Section 1983 Claims

Section 1983 makes actionable violations of “rights, privileges, or immunities secured by the Constitution.” This includes not only violations of incorporated provisions of the Bill of Rights such as the First, Second, Fourth and Eighth Amendments but also the Fourteenth Amendment’s stand-alone provisions, the Due Process and Equal Protection Clauses.

As a result of Supreme Court contraceptive, abortion and homosexual sodomy decisions–see Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992); Lawrence v. Texas, 123 S. Ct. 2472 (2003)–a constitutional right of privacy is now recognized under the Due Process Clause. This right essentially protects procreations, marriage, family matters and sexual autonomy.

See generally my earlier post on substantive due process and the right of privacy here: https://nahmodlaw.com/2014/09/29/know-your-constitution-7-what-is-subtantive-due-processright-of-privacy/

A good recent example of a section 1983 damages action arising out of a substantive due process violation is Perez v. City of Roseville, 2018 WL 797453, *2 (9th Cir. 2018). This Ninth Circuit case involved a former probationary police officer who was discharged after an internal investigation into her romantic relationship with a fellow police officer She alleged under section 1983 that this violated her due process rights to privacy and intimate association because it was based in part on disapproval of her private, off-duty sexual conduct.

Reversing the district court which had granted summary judgment to the defendants, the Ninth Circuit observed that it had “long held that the constitutional guarantees of privacy and free association prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation.” In this case, a genuine issue of material fact existed as to whether the plaintiff was terminated at least in part because of her extramarital affair.

The Ninth Circuit went on to rule that the defendants were not entitled to qualified immunity because the relevant due process law was clearly settled long ago in Thorne v. City of El Segundo, 726 F.3d 459 (9th Cir. 1983). Judge Tashima concurred, 2018 WL 797453, *14, disagreeing with the majority’s reasoning on this issue.

Comment

The broader the scope of the right of privacy, the broader the potential scope of section 1983 damages liability. This is true, of course, for other constitutional violations that are actionable under section 1983.

It is also important to note that the contours of the right of privacy are for the most part clearly established for qualified immunity purposes.

I discuss many other section 1983 substantive due process privacy cases in my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2018)(West) at sec. 3:78.

I invite you to follow me on Twitter @NahmodLaw.

Written by snahmod

January 7, 2019 at 12:43 pm

State Action, Color of Law and Section 1983

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.”

Comments

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.

I invite you to follow me on Twitter @NahmodLaw.

Written by snahmod

November 21, 2016 at 8:38 am

Shotgun Pleadings and Section 1983: The Eleventh Circuit Speaks Out

Background

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.

Comment

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.

 

Follow me on Twitter @NahmodLaw

Written by snahmod

June 7, 2016 at 2:47 pm