Nahmod Law

As promised in the preceding post, here are recent section 1983 malicious prosecution cases from the Seventh Circuit and the Supreme Court of Utah.

Seventh Circuit

In Ray v. City of Chicago, 629 F.3d 660, 664 (7^th Cir. 2010), the Seventh Circuit dealt with the plaintiff’s § 1983 Fourth and Fourteenth Amendment malicious prosecution claims against a law enforcement officer arising out of the plaintiff’s being charged with possession of a controlled substance. Ruling against the plaintiff, the court, quoting Tully v. Barada, 599 F.3d 591, 594 (7^th Cir. 2010), declared that individuals do not have a “federal right not to be summoned into court and prosecuted without probable cause, under either the Fourth or the Fourteenth Amendment’s Procedural Due Process Clause.” The Seventh Circuit, relying on its decision in Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001),  added that the plaintiff also did not state § 1983 malicious prosecution causes of action because Illinois law recognized tort claims for malicious prosecution.

See also, with regard to the relevance of state tort claims for malicious prosecution, Parish v. City of Chicago, 594 F.3d 551, 552 (7^th Cir. 2009), where the Seventh Circuit, again relying on Newsome , observed that “Seventh Circuit precedent does not permit an action for malicious prosecution under § 1983 if a state remedy exists. … And Illinois law provides a state remedy for malicious prosecution.” The court in Ray then went on to declare that it would not revisit, much less overrule, Newsome despite footnote 2 in Wallace v. Kato, 549 U.S. 384, 390 n.2 (2007), that the Supreme Court “has never explored the contours of a Fourth Amendment malicious prosecution suit under § 1983 … and we do not do so here.”

Supreme Court of Utah

The Utah Supreme Court in Peak Alarm Company, Inc., v Salt Lake City Corporation, 2010 UT 22 (S. Ct. Utah 2010), addressed the plaintiff’s § 1983 Fourth Amendment malicious prosecution claim against several law enforcement officials arising out of his prosecution for violating a state statute criminalizing the making of a false alarm, a charge resulting in a directed verdict in his favor. Ruling against the plaintiff, the Supreme Court of Utah first observed that the plaintiff’s brief detention occurred before the initiation of any legal process, namely, the issuance of a citation. It was not enough that one of the defendants retained the plaintiff’s driver’s license after the citation was issued. The court next discussed the issue of continuing seizure as it had been dealt with in the federal courts, and went on to conclude that even if it recognized the doctrine, the facts of this case did not show such a seizure: plaintiff was detained for forty minutes but not arrested, he did not have to post bail or communicate with pretrial services, and he had no travel restrictions imposed. Thus, there was neither a continuing seizure nor a seizure pursuant to legal process that would support the plaintiff’s Fourth Amendment malicious prosecution claim.

Comment

As you can see from these two posts, only the Seventh Circuit appears skeptical about the existence of section 1983 malicious prosecution claims.

Introduction

I blogged on Sept. 11, 2009, about so-called section 1983 “malicious prosecution” claims. What follows, in two parts, are several recent decisions dealing with such claims, decisions that I ran across in preparing the 2011 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(CIVLIBLIT  on Westlaw).

A caveat: this area is very dynamic, so there may be even newer decisions out there.

Second Circuit

In Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010), the Second Circuit upheld a jury’s verdict and judgment (including $1.426 million in compensatory damages) against the defendant former detective charged with § 1983 Fourth Amendment malicious prosecution of the plaintiff who was prosecuted for murder but acquitted. The defendant argued that he should have been granted judgment as a matter of law because probable cause existed, or should be presumed to have existed by virtue of a grand jury indictment of the plaintiff for murder. Rejecting the argument, the Second Circuit observed that the presumption of probable cause from a grand jury indictment could be rebutted by evidence that the indictment was procured by fraud, perjury or the suppression of evidence by the police officer. In this case there was ample evidence to support the jury’s findings that the defendant engaged in at least one of these kinds of misconduct: the defendant refrained from making inquiries into other possible suspects, ignored evidence that the plaintiff was not guilty, declined to inform the prosecutor of possibly exculpatory evidence, secured an inculpatory statement from a witness by promising not to disclose that witness’s known criminal activities and included in some of his own reports statements adverse to the plaintiff that were contradicted by persons with first-hand knowledge of the facts. Furthermore, it was clear that the defendant caused the initiation or continuation of the criminal proceedings against the plaintiff. Finally, there was sufficient evidence of malice in the sense that the defendant acted with “something other than a desire to see the ends of justice served.” 612 F.3d at 164.

Sixth Circuit

In Sykes v. Anderson, 625 F.3d 294, 308-09 (6^th Cir. 2010), the Sixth Circuit listed four requirements for a § 1983 Fourth Amendment malicious prosecution claim:  (1) initiation of a criminal prosecution against the plaintiff that was made, influenced or participated in by the defendant; (2) a lack of probable cause; (3) the plaintiff must have consequently suffered a deprivation of liberty apart from the initial seizure; and (4) the criminal proceeding must have been resolved in favor of the plaintiff. The court in Sykes went on to agree specifically with the Fourth Circuit in Brooks v. City of Winston-Salem, 85 F.3d 178 (4^th Cir. 1996) that malice was not required: “The circuits that require malice [the Second, Third, Ninth, Tenth and Eleventh Circuits] have imported elements from the common law without reflecting on their consistency with the overriding constitutional nature of § 1983 claims.” 449 F.3d at 309 (emphasis in original). The Sixth Circuit then commented soundly (and wryly) that calling such claims “malicious prosecution” was unfortunate and confusing but that it was “stuck with that label.” 449 F.3d at 310.  Finally, the Sixth Circuit affirmed the § 1983 malicious Fourth Amendment malicious prosecution judgment against the defendants because all of these requirements were met, although it remanded for the purpose of having the district court explain why it had denied the defendant’s motion for remittitur.

Eleventh Circuit

The Eleventh Circuit applied the Fourth Amendment and common law torts elements of malicious prosecution in favor of the plaintiff who alleged that a police officer fabricated a bribery charge against him, lacked probable cause to do so and had a malicious intent. According to the Eleventh Circuit, the district court did not err in denying summary judgment to the defendant. Grider v. City of Auburn, 618 F.3d 1240 (11^th Cir. 2010).

Next: Decisions of the Seventh Circuit and the Supreme Court of Utah.

Background

My very first post, on August 19, 2009, dealt with the implications for supervisory liability of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). This was followed by my post on October 16, 2009, setting out my view that Iqbal got it right on supervisory liability. Readers should consult these posts for relevant background.

Here are two important (and somewhat lengthy) 2010 supervisory liability cases from the Third and Tenth Circuits that I want to share with you.

(A caveat: these are 2010 decisions; since this area is so dynamic, there may be more recent decisions in these two circuits)

The Third Circuit: Santiago v. Warminster Township

In Santiago v. Warminster Township, 629 F.3d 121 (3d Cir. 2010), the plaintiff sued three senior police officers, alleging that they planned or acquiesced in the use of excessive force against her by police officers during a raid on her home (her daughter and various grandchildren were present in her home) conducted in order to apprehend her grandson, thereby causing her to suffer a heart attack. Applying Iqbal, the Third Circuit found that the plaintiff had failed to plead adequate facts to state plausible claims for supervisory liability against the defendants.

According to the Third Circuit, there were three steps that a court must take after Iqbal: (1) note the elements required to state a cause of action; (2) identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth; and (3) assume the veracity of well-pleaded allegations and then determine whether they plausibly give rise to an entitlement to relief.

In the case before it, the Third Circuit commented that it did not have to decide whether Iqbal changed its prior supervisory liability approach because, even under its prior approach–did the supervisor either direct others to violate a plaintiff’s constitutional rights or know of unconstitutional conduct and acquiesce in it?–the plaintiff did not state a plausible claim for relief.

As to two of the senior police officers accused of directing other police officers to violate plaintiff’s constitutional rights, it was not enough to say that they “specifically sought” to have happen what allegedly happened: this was “fundamentally conclusory” and was analogous to the allegations against the defendants in Iqbal that were rejected by the Supreme Court. Similarly, as to the third senior police officer, it was not enough to say that he “permitted the use of excessive force,” a conclusory allegation that he acquiesced in his subordinates’ constitutional violations. Read the rest of this entry »

Introduction

For background on attorney’s fees to prevailing plaintiffs in civil rights cases, please see my post of June 17, 2010.

I also address all aspects of attorney’s fees in Chapter 10 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2010)(CIVLIBLIT on Westlaw).

This post deals with attorney’s fees to prevailing defendants.

Fox v. Vice: How to Compute Fees for Prevailing Defendants

On June 6, 2011, the Supreme Court handed down Fox v. Vice, 131 S. Ct. — (2011),  a unanimous decision dealing with the question of how to compute fees awarded to a prevailing defendant where “the plaintiff asserted both frivolous and non-frivolous claims.”

The plaintiff, a challenger to the defendant, the former police chief whom plaintiff beat in an election, originally filed his § 1983 and state law claims in state court. Alleging dirty election tricks, the plaintiff’s § 1983 claims included interfering with the right to seek office, and the state claims included defamation. The defendant removed to federal court, where the district court, on summary judgment, dismissed the federal claims as frivolous and remanded the state law claims to the state court.

However, before the state law claims were adjudicated in state court, the prevailing defendant filed a § 1988 fees petition in federal court that did not distinguish between time spent on the frivolous (and dismissed) federal claims and time spend on the non-frivolous state law claims. The district court went on to award fees to the defendant without separating out the time spent on the federal and state law claims, and without reflecting the surviving state law claims. Thereafter, the Fifth Circuit affirmed.

Granting certiorari to address a circuit split, Justice Kagan, writing for the Court, declared: “We hold today that a court may grant reasonable fees to the defendant in this circumstance, but only for costs that the defendant would not have incurred but for the frivolous claims.” It then reversed because the district court and Fifth Circuit had used a different and incorrect standard for awarding fees to the defendant. Read the rest of this entry »

Introduction

In recent Terms the Supreme Court has shown considerable interest in individual immunity doctrine involving qualified immunity–about which I blogged on January 25, 2011 and may 31, 2011–and absolute immunity–about which I blogged on August 21, 2009. See generally on individual immunities, my treatise CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 chapters 7 & 8 (4th ed. 2010)(CIVLIBLIT on Westlaw).

The Court’s interest in immunity doctrine will continue into the 2011 Term because, on March 21, 2011, the Court granted certiorari in Rehberg v. Paulk, No. 10-788, to review 611 F. 3d 828 (11^th Cir. 2010), which conferred absolute witness immunity on a district attorney’s chief investigator who had testified as a complaining witness before a grand jury.

(In connection with understanding Rehberg, note that the Supreme Court has consistently used a functional approach to individual immunities, meaning that immunity does not depend on job title but rather on the nature of the challenged conduct. Buckley v. Fitzsimmons, 509 U.S. 259 (1993)).

Rehberg v. Paulk and Witness Immunity

Rehberg involved a § 1983 Fourth and Fourteenth Amendment-based malicious prosecution damages action against, among others, a chief investigator in a district attorney’s office who, as a complaining witness, allegedly testified falsely before three different grand juries, each of which separately indicted the plaintiff on various charges subsequently dismissed. The Eleventh Circuit held that the chief investigator was absolutely immune from damages liability for his allegedly false testimony before the grand jury.

It also ruled that the chief investigator, together with the prosecutor who presented to the grand jury, was absolutely immune from damages liability for allegedly conspiring, pre-indictment, to make up and present the chief investigator’s false testimony to the grand jury.

In this latter regard, though, the Eleventh Circuit was careful to note that there was no allegation here that either of these defendants fabricated or planted any evidence to create probable cause. If there had been, the defendants would not receive absolute immunity, according to the court, because such conduct—investigating and gathering evidence—fell outside the prosecutor’s role as advocate. Read the rest of this entry »

Introduction

I blogged on February 16, 2011, about the Supreme Court‘s grant of certiorari in Camreta v. Greene (PDF), a case from the Ninth Circuit raising not only Fourth Amendment issues but also questions related to the Supreme Court’s appellate jurisdiction over the petition for certiorari of individual defendants who had prevailed in the Ninth Circuit on qualified immunity but had lost on the Fourth Amendment merits.

In that post I also discussed the potential implications of Camreta for the appellate jurisdiction of Circuit Courts of Appeals asked to review district court decisions finding constitutional violations by individual defendants but conferring qualified immunity on them.

Readers should consult the prior post for background on the Supreme Court’s recent decision in Camreta v. Greene, 131 S. Ct. – (2011), vacating in part, Greene v. Camreta, 588 F.3d 1011 (9^th Cir. 2009), which is the subject of this post.

(Camreta is the second decision this Term dealing with qualified immunity appellate procedure; the first was Ortiz v. Jordan, 131 S. Ct. — (2011), which I blogged about on January 25, 2011).

Camreta v. Greene

On May 26, 2011, the Supreme Court handed down Camreta v. Greene, which involved the question whether the Fourth Amendment was violated in connection with the temporary seizure and interview in a public school of a child who authorities suspected was being sexually assaulted by her father. Here, the district court ruled that the individual defendants did not violate the child’s Fourth Amendment rights but, even if they did, they were protected by qualified immunity. On plaintiff’s appeal, the Ninth Circuit affirmed on qualified immunity but also found, contrary to the district court, that the individual defendants violated the plaintiff’s constitutional rights. In so doing, the Ninth Circuit made new Fourth Amendment law.

The individual defendants thereafter petitioned for certiorari on the Fourth Amendment issue, which was granted by the Supreme Court. The plaintiff’s brief to the Court addressed the important Fourth Amendment merits, as did the individual defendants’ brief and a number of amici briefs. But the plaintiff also argued that the Court did not have appellate jurisdiction because (1) the defendants had prevailed in the Ninth Circuit; (2) the determination by the Ninth Circuit that the individual defendants violated the Fourth Amendment was not part of its judgment; and (3) the case between the plaintiff and the individual defendants was moot.

In an opinion by Justice Kagan, the Supreme Court vacated the Ninth Circuit’s decision in part and remanded. The Court first determined that it could review the Ninth Circuit’s decision under the relevant federal statute, 28 U.S.C. § 1254(1), which conferred power on it to grant certiorari “upon the petition of any party,” which included petitions brought by prevailing litigants in the court below, not only losing litigants. Next, the Court rejected the plaintiff’s argument that the petition submitted by the prevailing defendants did not present an Article III case or controversy. The defendants had a personal stake in the case because the Ninth Circuit had ruled that the defendants violated the plaintiff’s Fourth Amendment rights and this judgment had a prospective effect on the parties: these defendants, and other defendants in this situation, either have to change the way they perform their jobs or risk future damages liability. Similarly, in most such cases plaintiffs will ordinarily retain a stake in the outcome (although, as it turned out here, the plaintiff did not retain a personal stake). Read the rest of this entry »

Introduction

As is well known by now, several years ago the Supreme Court announced 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, 129 S. Ct. 1937 (2009)(Bivens action vs. federal officials). Precisely what this means in real-world terms is not entirely clear, and federal courts and litigants have  since struggled with the plausibility standard and its relation to notice pleading in federal courts.

As I was preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2010; West Group)(CIVLIBLIT on WESTLAW), I came across three important post-Iqbal circuit court decisions from the Seventh, Tenth and Eleventh Circuits. I want to share them with you in advance of publication this fall of the 2011 Update.

The Seventh Circuit: Cooney v. Rossiter, 583 F.3d 967, 971 (7^th Cir. 2009)(§ 1983 conspiracy complaint)

The Seventh Circuit, in a thoughtful opinion by Judge Posner, addressed the effect of the plausibility standard of Twombly and Iqbal on § 1983 conspiracy claims against an attorney and therapist accused of conspiring with state actors in connection with the plaintiff mother’s loss of custody of her two children after she was diagnosed with “Munchausen syndrom by proxy.”  After analyzing these two Supreme Court decisions, Judge Posner summarized:

In other words, the height of the pleading requirement is relative to the circumstances. We have noted the circumstances (complexity [Twombly] and immunity [Iqbal]) that raised the bar in the two Supreme Court cases. This case is not a complex litigation, and the two remaining defendants do not claim any immunity. But it may be paranoid pro se litigation, arising out of a bitter custody fight and alleging, as it does, a vast encompassing conspiracy; and before defendants in such a case become entangled in discovery proceedings, the plaintiff must meet a high standard of plausibility.

Judge Posner went on to point out that even before this new plausibility requirement, conspiracy allegations were held to a higher standard and that “mere suspicion that persons adverse to the plaintiff had joined a conspiracy against him or her were not enough.” Here, the plaintiff’s allegations of a conspiracy between government officials and the two private defendants were not sufficient to survive a motion to dismiss, even before Twombly and Iqbal, because they were bare of specifics and vague. Read the rest of this entry »