A Section 1983 Primer (7): Introduction to Absolute Individual Immunity
Persons Who Are Not “Persons”
The language of section 1983 makes “[e]very person” who deprives another of his or her constitutional rights under color of law potentially liable in damages.
On its face, section 1983 does not provide for any individual immunities. Moreover, the legislative history on this question is almost entirely lacking.
It turns out, nevertheless, that there are individuals who are not “persons” and who are absolutely immune from damages liability when sued in their individual capacities.
Three Categories of Absolutely Immune Individuals
There are three categories of absolutely immune defendants about which I will separately post later: state and local legislators, judges and prosecutors. But for now, I want to make the following introductory comments.
The Supreme Court’s Approach and Policy Considerations
Over the years the Supreme Court has developed the three categories of absolutely immune defendants by asking two questions.
First, what was the common law immunity background in 1871, when section 1983 was enacted? Second, if the 1871 common law provided for absolute immunity, is that consistent with the purposes of section 1983 in general?
The policy considerations specifically underlying absolute individual immunity are several. The core policy, though, is the promotion of independent decision-making without fear of either being sued (the costs of defending) or personal liability (the costs of liability). In other words, absolute immunity provides a wide margin for error for certain government officials whose functions are so very important that they should not be “chilled” at all when they make their legislative, judicial or prosecutorial decisions. Read the rest of this entry »
Affirmative Action and Fisher v. University of Texas: A Video Discussion
As most of you know by now, the Supreme Court has granted certiorari in Fisher v. University of Texas, an affirmative action case that was argued on October 10, 2012.
I previously blogged about affirmative action and the Equal Protection Clause on November 5, 2009. You might want to consult that post for general background: what affirmative action is and is not, the appropriate equal protection test and a survey of the cases.
My colleague, Professor Carolyn Shapiro, and I discussed the issues raised in Fisher on September 24, 2012, and had this discussion videotaped for The Oyez Project. I think you will find it of interest.
This discussion, lasting 20 minutes (each segment is 10 minutes), is accessible through the following links: Case Background and Arguments.
Section 1983 and the Intracorporate Conspiracy Doctrine
The Intracorporate Conspiracy Doctrine
What is the intracorporate conspiracy doctrine and what role, if any, does it play in the § 1983 conspiracy setting?
In the words of the Eleventh Circuit in a § 1985(3) case, “under the doctrine, a corporation cannot conspire with its employees, and its employees, when acting within the scope of their employment, cannot conspire among themselves.”McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000)(en banc).
(Mis?)Applying the Doctrine in a § 1983 Case: The Eleventh Circuit in Grider v. City of Auburn
Subsequently, in another Eleventh Circuit case, Grider v. City of Auburn, 618 F.3d 1240 (11th Cir. 2010), the plaintiff sued various city officials, including law enforcement officers, under § 1983, alleging that they maliciously conspired to prosecute him falsely for bribery. Even though the evidence showed that one of the officers was involved in the other’s bribery charge against the plaintiff, the court ruled that both officers could not be sued for an alleged § 1983 conspiracy because of the intracorporate conspiracy doctrine. Read the rest of this entry »
Two Recent Post-Iqbal Pleading Decisions in the Circuits
Introduction
Several years ago the Supreme Court articulated what it termed a plausibility standard for pleading in federal courts. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(antitrust) and, especially, Ashcroft v. Iqbal, 556 U.S. 662 (2009)(Bivens action vs. federal officials). Precisely what this meant in real-world terms was not entirely clear, and federal courts and litigants have since struggled with the plausibility standard and its relation to notice pleading in federal courts.
Last year, in a post dated 5-13-11, I set out several post-Iqbal decisions from three circuits. This year, as I was again preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2011; West Group)(CIVLIBLIT on WESTLAW), I came across two additional circuit court decisions applying Iqbal. I want to share them with you in advance of publication this fall of the 2012 Update.
One of these decisions is from the First Circuit. The other is from the Seventh and was written by Judge Posner. Read the rest of this entry »
A Section 1983 Primer (6): Claim and Issue Preclusion
This is the sixth of my section 1983 primers. I previously blogged on section 1983’s history and purposes (post of 10-29-09); on Monroe v. Pape (post of 11-29-09); on constitutional states of mind (post of 2-6-10); on causation in fact and the Mt. Healthy burden-shift rule (post of 4-25-10); and on statutes of limitations in section 1983 cases (post of 10-27-11).
Overview of Preclusion
This post addresses the important practical topic of claim preclusion (res judicata, which concerns claims that were or could have been raised), and issue preclusion (collateral estoppel, which concerns issues that were raised and adjudicated) in section 1983 cases. Preclusion concerns arise in section 1983 federal court litigation when there is a prior final state judicial or administrative proceeding that involved the same parties (or their privies) and implicated (or could have implicated) the same issues.
To what extent may those claims or issues be relitigated in a subsequent section 1983 federal court proceeding? As it turns out, the answer in each case depends, as a matter of federal law, on the forum state’s preclusion law.
1. The Relevance of 28 U.S.C. section 1738
Like statute of limitations issues in section 1983 litigation, preclusion issues involve a mixture of federal and state law. This is because 28 U.S.C. section 1738 requires federal courts to give the same effect to prior state judicial decisions as would the courts of the forum state. Section 1738 is based on the Constitution’s Full Faith and Credit Clause, Art. IV, section 1.
2. The Preclusive Effect of Prior State Criminal Proceedings
(a) Suppose that a defendant in a criminal case makes a Fourth Amendment motion to suppress evidence, which the state court denies, and the defendant is acquitted anyway. The defendant then becomes a section 1983 plaintiff seeking damages against the law enforcement defendants for violating his Fourth Amendment rights. What is the preclusive effect, if any, of that state court decision on the plaintiff’s section 1983 Fourth Amendment claim? Read the rest of this entry »
Article: The Long and Winding Road from Monroe to Connick
I spoke on November 3, 2011, at Loyola Law School (New Orleans) at a program entitled “Prosecutorial Immunity: Deconstructing Connick v. Thompson.” The audience included attorneys, law students, professors and members of the public.
I posted this talk as a podcast on December 6, 2011, and as a video on December 19, 2011.
In this post, I provide a link to the resulting article, The Long and Winding Road from Monroe to Connick, recently published in 13 Loyola Journal of Public Interest Law 247 (2012).
The abstract of this article and the link appear below.
In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view of federalism set out in his dissent in Monroe.
Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2118009
I hope you find the article of interest.
The Health Care Act Decision: A Video Discussion
On June 28, 2012, I blogged about the Supreme Court‘s blockbuster health care act decision (PDF), handed down on that same day.
As almost everyone knows by now, this decision upheld the individual mandate, 5-4, under the Taxing Power, in a surprising opinion by Chief Justice Roberts. This decision also upheld, for the most part, the Congressional expansion of Medicaid, under the Spending Power, to include millions of poor uninsured individuals.
My Chicago-Kent colleague, Professor Carolyn Shapiro (director of ISCOTUS), and I recently engaged in a videotaped 15 minute discussion of the Court’s decision and some of its implications.
This discussion is available at oyez.org.
I believe you will find it informative.
Individual Mandate Upheld–Medicaid Expansion Upheld (Mostly)
I blogged on January 18, 2012, about the constitutional challenges to the Patient Protection and Affordable Care Act (“the Act”) , where I expressed the view that the individual mandate was clearly constitutional under the Commerce Clause. Also, on February 24, 2012, I posted a video presentation I made (with others) to the Shriver Center about all aspects of the Act. See these posts for background.
Today, the United States Supreme Court ruled, 5-4, in an opinion (PDF) by Chief Justice Roberts, that the individual mandate was constitutional under the Taxing Power of Congress, albeit not under the Commerce Clause.
The Court also upheld the Act’s significant expansion of Medicaid to include individuals under 65 whose income is under 133% of the federal poverty line, except insofar as the Act provides that states that do not opt into the expansion will lose all of their Medicaid funding.
The Chief Justice’s opinion, Justice Ginsburg‘s concurring in part and dissenting in part opinion (joined by Justices Breyer, Sotomayor and Kagan with regard to the Commerce Clause and the Taxing Power, and by Justice Sotomayor with regard to the Spending Power) and the dissenting opinion of Justices Kennedy, Scalia, Alito and Thomas on every issue except for the Commerce Clause and the Anti-Injunction Act, are available on the Court’s website. They are all quite lengthy.
Here are some points worth noting. Read the rest of this entry »
New Supreme Court Decision: Reichle v. Howards and First Amendment Retaliatory Arrests
Reichle v. Howards, 132 S. Ct. — (2012), decided on June 4, 2012
I blogged on March 29, 2012, about the Supreme Court‘s grant of certiorari in Reichle v. Howards, a case arising out of the Tenth Circuit. As noted there, the Supreme Court had granted certiorari to deal with the important question of whether there should be a probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech.
(See that post for relevant background, including the important decision in Hartman v. Moore, 547 U.S. 250 (2006).)
On June 4, 2012, the Court, in an opinion by Justice Thomas, avoided the merits and ruled instead that the defendants were protected by qualified immunity.
The Tenth Circuit Decision
The defendants were two Secret Service Agents who were on protective detail for Vice President Cheney when they arrested the plaintiff after his encounter with the Vice President: probable cause was provided by the fact that the plaintiff lied to the defendants about touching the Vice President, a violation of federal law. The plaintiff alleged, though, that he was actually arrested in violation of the First Amendment because he was overheard saying he wanted to ask the Vice President personally “how many kids he had killed.”
The Tenth Circuit held on the merits that there was no such probable cause defense to the First Amendment retaliatory arrest claim, although it noted the split in the circuits on this issue. The Tenth Circuit also found that the defendants were not entitled to qualified immunity on this claim: they violated clearly settled First Amendment circuit law when they arrested the plaintiff because of his speech, even though they had independent Fourth Amendment probable cause grounds to arrest him. Howards v. McCaughlin, 634 F.3d 1131 (10th Cir. 2011), with Judge Kelly concurring in part and dissenting in part.
The Supreme Court Decision
The Supreme Court reversed in an opinion by Justice Thomas. The Court avoided deciding whether probable cause was a defense to a First Amendment retaliatory arrest claim. Instead, it ruled that the defendants were protected by qualified immunity because they did not violate clearly settled First Amendment law: “This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly settled at the time of Howards’ arrest.” Read the rest of this entry »
DeShaney in the Circuits (II): Affirmative Duties and Danger-Creation
I blogged on August 22, 2011, about the Supreme Court’s controversial no-affirmative due process duty decision in DeShaney v. County of Winnebago, 489 U.S. 189 (1989). I also set out several then-current circuit court decisions dealing with DeShaney issues. Please see that post for background.
I came across the following more recent decisions from the First, Fifth, Seventh and Eighth Circuits in the course of preparing the 2012 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012)(forthcoming in September).
Coscia v. Town of Pembroke, 659 F.3d 37 (1st Cir. 2011)
The decedent’s mother, representing the estate, sued police officer and others, alleging that they failed to provide medical services to her 21 year-old son who threatened suicide while in police custody following a one-car accident, and who in fact committed suicide about fourteen hours after his release by stepping in front of a train. During the time he was in custody he attempted to engage in self-destructive behavior and was deemed a high suicide risk. Nevertheless, he was not examined by a doctor but was released on his own recognizance. Reversing the district court and dismissing the complaint, the First Circuit stated: “We … hold that in the absence of a risk of harm created or intensified by state action there is no due process liability for harm suffered by a prior detainee after release from custody in circumstances that do not effectively extend any state impediment to exercising self-help or to receiving whatever aid by others may normally be available.”
Comment: Note the proximate cause/remoteness problem for the plaintiff here in addition to the danger creation issue. Read the rest of this entry »
Nahmod Law 