Nahmod Law

While much attention has been paid recently to section 1983 qualified immunity, it may be useful to spend a little time on absolute immunity as well. Among other things, absolute immunity is even more potent for defendants than qualified immunity, even though the gap has narrowed in the past few decades. Defendants protected by absolute immunity are able to have section 1983 suits dismissed regardless of the constitutional merits (which are not reached). In addition, the doctrinal underpinnings of qualified immunity, including the “background to tort liability,” may be found in an earlier Supreme Court decision about absolute immunity, Tenney v. Brandhove, 341 U.S. 367 (1951), about which I have previously written at some length.

I was recently interviewed by John Ross of the Institute for Justice about the origins of, and justifications for, absolute immunity. Other scholars were interviewed as well.

The podcast lasts for about one hour and it can be accessed here: https://ij.org/sc_long_podcast/season-2-ep-8/

For much more about absolute immunity, check out Chapter 7 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (West 2020) and various law review articles, including my own, referred to in the podcast. You might also want to search “absolute immunity” on this blog.

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Years ago, I argued a section 1983 case for the plaintiff before the Seventh Circuit (Richman v. Sheahan, 270 F.3d 430 (7th Cir. 2001)), where the primary issue on appeal was whether the defendant deputy sheriffs who allegedly used excessive force against the decedent in court were protected by absolute quasi-judicial immunity or instead only by qualified immunity. As I was in the middle of arguing that the deputy sheriffs were not protected by absolute immunity, Judge Posner asked me this question (and I paraphrase): “Mr. Nahmod, even if you’re correct that only qualified immunity applies, why can’t the defendants argue that because the scope of immunity issue on appeal here is not clearly settled, then they win regardless because they are thereby protected by qualified immunity?”

My answer was that the clearly settled law inquiry focused on the applicable constitutional norm, and not on whether it was unclear to the defendant at the time he acted that he might be protected by absolute immunity. After all, wasn’t qualified immunity concerned with a defendant’s duty to know clearly constitutional law in the course of deciding how to act? Other section 1983 considerations should be irrelevant to this particular inquiry, I argued. My answer seemed to satisfy Judge Posner because he leaned back in his chair and did not pursue the matter further.

I think my answer was correct then and it is still correct now. And that is what the Sixth Circuit soundly ruled in Jackson v. City of Cleveland, 925 F.3d 793 (6^th Cir. 2019), cert denied, 140 S. Ct. 855 (2020), an important and under-appreciated qualified immunity decision.

In Jackson, exonerated plaintiffs, former convicts, alleged that a police officer who in 1975 fabricated evidence and withheld exculpatory information from the prosecution, but did not testify for the prosecution, was liable for section 1983 malicious prosecution. The Sixth Circuit ruled that the defendant was not protected by qualified immunity. It rejected the officer’s argument that section 1983 malicious prosecution law was in a state of flux and not clearly settled in 1975, and that therefore he was entitled to qualified immunity.

The Sixth Circuit responded: “Whether a defendant is protected by qualified immunity turns not on whether the defendant was on notice that his actions satisfied the elements of a particular cause of action, but instead on whether the defendant was on notice that his actions violated the laws of the United States.” The clearly settled law focus was thus on whether a reasonable officer was on fair notice that his conduct was unconstitutional because it violated due process.

Along these lines, the Sixth Circuit observed, the defendant had cited no case indicating that for due process purposes, an officer who fabricates evidence must also have testified for the prosecution and thereby influenced the decision to prosecute. Consequently, the defendant was not protected by qualified immunity: his conduct in fabricating evidence violated clearly established due process law. It did not matter “what name we give to the claim.”

(Judge Keith concurred, suggesting that a jury instruction on immunity could have resolved the qualified immunity issue at trial because this case was so fact intensive and depended on whose view of the facts was believed by the jury.)

Comment

The Sixth Circuit got it right. There are various elements of any section 1983 claim that do not go to the particular constitutional norm whose violation is alleged. Causation in fact, proximate cause, damages and the scope of immunity are examples. So that even if the law regarding these elements was not clearly settled at the time of the allegedly unconstitutional conduct, a defendant who has violated the relevant clearly settled constitutional law norm is not protected by qualified immunity.

In short, it is not a defendant’s uncertainty about potential liability that is determinative of the clearly settled law inquiry, and therefore of qualified immunity protection. Rather, it is the defendant’s uncertainty about the relevant constitutional norm that is determinative of qualified immunity protection.

And just in case you’re wondering, the Seventh Circuit in Richman untlmately held in the plaintiff’s favor that the deputy sheriffs were not protected by absolute quasi-judicial immunity.

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By virtue of 28 U.S.C. § 1738, federal courts addressing § 1983 claims must apply the claim preclusion law (res judicata) and issue preclusion law (collateral estoppel) of the forum state where there are relevant prior state judicial proceedings. This means that § 1983 litigators must know their state’s preclusion law or suffer the consequences. See generally, Chapter 9 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West/Westlaw).

What follows are recent examples from the Fourth, Sixth and Eleventh Circuits.

The Fourth Circuit’s Gilliam Decision: Collateral Estoppel Not Applicable Under North Carolina Law Where Criminal Convictions Vacated

According to the Fourth Circuit, which applied North Carolina preclusion law, the plaintiffs, two brothers with severe intellectual disabilities who had served 31 years before being conclusively exonerated by DNA evidence and a governer’s pardon, were not collaterally estopped from relitigating their § 1983 claims of lack of probable cause and the voluntariness of their  confessions. Their criminal convictions, later vacated, did not conclusively establish that probable cause existed because the North Carolina “fraud exception” applied: the convictions were obtained improperly.

As to the voluntariness of the plaintiffs’ confessions: collateral estoppel did not apply here either because, even though the state court judges presiding over the criminal trials had ruled the confessions were voluntary, those criminal convictions were vacated. Under North Carolina law, a judgment must be valid in order to have preclusive effect. Gilliam v. Sealey, 932 F.3d 216 (4^th Cir. 2019).

The Sixth Circuit’s Peterson Decision: Collateral Estoppel Not Applicable Under Michigan Law Where Criminal Convictions Vacated

Where the plaintiff’s rape and murder convictions were vacated and he sued various county and state law enforcement officers for violating his constitutional rights, the Sixth Circuit found that collateral estoppel did not preclude plaintiff’s claim that his confession was coerced. Even though a state trial court had found that the confession was not coerced at a so-called “Walker hearing,” the criminal judgment was eventually vacated, with the result that the trial court’s interlocutory rulings were vacated as well. “And vacated rulings have no preclusive effect under Michigan law.” Peterson v. Heymes, 931 F.3d 546 (6^th Cir. 2019).

The Eleventh Circuit’s Hunter Decision: A Mixed Result Under Alabama Law For Guilty Plea

The plaintiff sued police officers under §1983 alleging that they used excessive force when they shot him after a four-car police chase. Applying Alabama preclusion law, the Eleventh Circuit ruled that the plaintiff’s guilty plea to menacing precluded him from relitigating the question of whether he pointed his gun at one of the officers: the defendant officers shared an identity of interest with the state in the criminal proceeding, the issue of pointing his gun at an officer was identical in both proceedings and was actually decided in the criminal proceeding and, by pleading guilty, the plaintiff necessarily admitting to pointing his gun at the officer. However, he was not precluded from contesting the officer’s statements regarding the number of times he allegedly pointed his gun. His guilty plea could not be fairly construed as an admission that he pointed his gun at the officer three times: this was not necessarily decided. Hunter v. City of Leeds, 941 F.3d 1265 (11^th Cir. 2019). Judge Gilman concurred, briefly noting a qualified immunity issue.

Comment

All three of the above cases deal with the defensive use of collateral estoppel by § 1983 defendants against § 1983 plaintiffs where there were prior state criminal proceedings. However, there can be circumstances in which § 1983 plaintiffs attempt to use prior state criminal proceedings in their favor. This is offensive collateral estoppel.

In addition, while these three cases deal with prior state criminal proceedings, a state’s preclusion law may also be applicable by virtue of § 1738 to prior state civil proceedings. Moreover, this includes claim preclusion as well, not only issue preclusion.

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Suppose a state court judge allows a municipal court clerk to issue arrest warrants and to set bonds using the judge’s signature stamp, as well as to set a schedule requiring cash-only bonds regardless of an arrestee’s ability to pay. Suppose further that doing so is unconstitutional because these acts of the clerk are not performed by a neutral and detached magistrate. Can the judge be held liable for damages under § 1983? The Eighth Circuit answered in the negative in Hamilton v. City of Hayti, 948 F.3d 921 (8^th Cir. 2020).

It determined that judicial immunity from damages liability applied to the state court judge’s delegation of authority to the clerk to issue an arrest warrant using the judge’s signature stamp against the plaintiff even though this “likely [sic]” made the warrant invalid because it was not issued by a detached and neutral magistrate who made a probable cause finding. The Eighth Circuit reasoned that judges in Missouri have original jurisdiction to issue arrest warrants and thus the judge here did not act in the clear absence of all jurisdiction with respect to this challenged conduct.

Judicial immunity also applied to the plaintiff’s claim that the arrest warrant required him to post a cash-only bond in an amount established by the judge’s unconstitutional bond schedule: this too was a judicial act within the judge’s jurisdiction.

Finally, the Eighth Circuit went on to apply judicial immunity to the municipal clerk as well under a functional approach because, even though the judge did not expressly direct the clerk to issue the arrest warrant against the plaintiff, the judge had nevertheless authorized the clerk to issue and set warrants with bond conditions. This was a judicial function protected by (quasi) judicial immunity.

Comment

It has long been § 1983 black letter law that judges lose their absolute immunity from damages liability only where (1) they have acted in the clear absence of all jurisdiction, and not just in excess of jurisdiction, or (2) where their challenged acts are not judicial in nature. See generally, Chapter 7 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West/Westlaw).

In Hamilton, the Eighth Circuit had little difficulty in finding that the state court judge did not act in the clear absence of all jurisdiction in light of the original jurisdiction of Missouri judges to issue arrest warrants and to require arrestees to post cash-only bonds. Only if, say, Missouri law had expressly and unambiguously stated that state court judges did not have subject matter jurisdiction to engage in such conduct could it have plausibly been argued that the state court judge here acted in the clear absence of all jurisdiction. Hamilton is thus far different from a case in which a state civil court judge, for example, “convicts” a § 1983 plaintiff and has him put in jail!

Moreover, these were clearly judicial acts: Missouri judges of general jurisdiction engaged in issuing arrest warrants and requiring arrestees to post cash-only bonds, and the parties expected such conduct from judges. Again, this is far different from a case in which, for example, a state court judge comes off the bench during a trial and punches a litigant in the face!

Hamilton is yet another example (of so many) in which state court judges who acted in a clearly unconstitutional manner and caused harm to § 1983 plaintiffs still escape damages liability. Such judicial immunity, like legislative and prosecutorial immunity, is designed to protect decision making processes important to a democracy and the rule of law, even at the cost of constitutional harms to § 1983 plaintiffs. That is, it protects absolute immune defendants not only against the costs of liability but also, more significantly, against the costs of even defending. And judicial immunity in particular is a virtually insurmountable burden for § 1983 plaintiffs.

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The Issue

We know that in both tort law litigation and section 1983 litigation a plaintiff must allege and prove by a preponderance of the evidence that the defendant’s conduct was a but-for cause of the plaintiff’s injury.

What happens in a section 1983 Fourth Amendment excessive force case where the plaintiff knows that one of several police officers used excessive force against him but he cannot identify the particular officer who did?

Can that plaintiff sue all of the officers jointly and severally, arguing that they are all liable except to the extent that any of them can prove the absence of but-for causation by a preponderance of the evidence? Is there an analogy to the famous tort case, Summers v. Tice, 33 Cal. 2d 80 (1948)?

The Sixth Circuit’s Answer

The Sixth Circuit answered “no” in Pineda v. Hamilton County, 2020 WL 5868402 (6^th Cir. 2020). The plaintiff alleged that one of three off-duty sheriff’s deputies providing security at a night club hit him on the back of his head and caused brain damage. However, he sued all three of them under section 1983 and the Fourth Amendment jointly and severally because he could not identify the deputy who hit him. Distinguishing Summers v. Tice as involving defendants both of whom were negligent, the Sixth Circuit emphasized that here only one deputy had allegedly used excessive force. It therefore affirmed the district court’s grant of summary judgment to all three deputies. The court also observed that that plaintiff did not indicate any circumstances keeping him from identifying the deputy who allegedly struck him.

Judge Posner’s Primer on Joint and Several Liability

Consider in this connection Richman v. Sheahan, 512 F.3d 876, 884-85 (7th Cir. 2008)(citations omitted), where Judge Posner, discussing the joint and several liability issues that might arise in cases dealing with multiple defendants, explained :

 “There are four possibilities in a tort case with multiple defendants, such as this. The first is that each defendant’s act makes the injury to the plaintiff a little worse and it is the combination of the acts of separate defendants that does him in. Then each defendant is liable only for the increment in harm that he caused.”

 “Second, each defendant might by his own act have inflicted the entire injury, in the sense that, had he not committed the act, the injury would have been no less grave than it was, as when two persons shoot a third and each wound would have been fatal by itself. Again, both would be liable, but this time jointly and severally.”

“Third, as in Summers v. Tice, each defendant might have committed an act that is a tort when injury results (for there is no tort without an injury), but it is unclear which defendant’s act was the one that inflicted the injury–both shot at the plaintiff, one missed, but we do not know which one missed. Again both are jointly and severally liable.”

“And fourth, one defendant might commit the act that causes the harm yet the other be sued as well because he could have prevented the harm but did not. … If [the defendants who just stood around looking while Richman was being swarmed] should have realized that their colleagues were using excessive force they had a duty to intervene, for they were part of the arresting force, awaiting a call to join the swarm should it become necessary.”

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The Noerr-Pennington Doctine and Section 1983

Under the Noerr-Pennington doctrine, which is informed by the First Amendment’s Petition Clause, “parties who petition the government for governmental action favorable to them cannot be prosecuted under the antitrust laws even though their petitions are motivated by anticompetitive intent.” Video Intern. Production, Inc. v. Warner-Amex Cable Communications, Inc., 858 F.2d 1075, 1084 (5th Cir. 1988). In the antitrust setting, this doctrine is based on two cases: Eastern R. R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers of America v. Pennington, 381 U.S. 657 (1965).

Perhaps surprisingly, there may also be absolute immunity from section 1983 liability for private parties who petition governments for favorable treatment which is anticompetitive, just as there is Noerr-Pennington1 immunity from prosecution under the antitrust laws. As the Second Circuit explained in Hirschfeld v. Spanakos, 104 F.3d 16, 19 (2d Cir. 1997): “The Noerr immunity doctrine protects plaintiffs from damage claims based on the institution of a suit in certain situations. The doctrine originated in the antitrust area, but it has been extended to provide immunity from liability for bringing other suits.”

An Example from the Seventh Circuit

For example, the Seventh Circuit inTarpley v. Keistler, 188 F.3d 788 (7th Cir. 1999), applied Noerr-Pennington immunity in a case where the plaintiff, an unsuccessful candidate for a permanent position at a state hospital, sued state officials and officials of a political party alleging that they conspired against him to deny him the position (as well as a temporary position leading to the permanent one) because of his political affiliation and instead to give it to another, all in violation of the First Amendment. Ruling against the plaintiff on Noerr-Pennington grounds in connection with his claim against party officials regarding the temporary position, the Seventh Circuit determined that they were exercising their First Amendment right to petition the government to recommend one of their own party for the temporary position. “Making suggestions about whom to hire is a traditional form of political activity.”

Asserting that it was balancing plaintiff’s First Amendment rights against those of the party officials, the Seventh Circuit went on to say that it would not vindicate plaintiff’s First Amendment rights at the expense of the party officials who recommended that a party member be hired for the temporary position. It affirmed the district court’s grant of summary judgment for the party officials, distinguishing between plaintiff’s constitutional right not to be excluded from a public job because of his political affiliation under Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990) and the right of a citizen to recommend another for public employment.

Judge Ripple dissented, 188 F.3d at 797. He argued that based on the evidence before the court, this was not a case in which party officials simply advocated the hiring of someone other than plaintiff, but rather one in which they conspired with state officials to define and limit the pool of candidates for the temporary vacancy on party affiliation grounds. He also contended that the majority had no basis for preferring the alleged First Amendment right of the party officials to the well-established First Amendment right of the plaintiff.

The Sham Exception to Noerr-Pennington Immunity

However, there is a “sham” exception to Noerr-Pennington immunity. In an antitrust case with implications for section 1983 as well, the Supreme Court defined this “sham” exception when it declared in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, 508 U.S. 49, 113 S. Ct. 1920 (1993), that antitrust litigation will not be deprived of Noerr-Pennington immunity unless that litigation is objectively baseless. The Court elaborated:

“We now outline a two-part definition of ‘sham’ litigation. First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals ‘an attempt to interfere directly with the business relationship of a competitor’ … through the ‘use of the governmental process–as opposed to the outcome of that process–as an anticompetitive weapon.’ This two-tiered process requires the plaintiff to disprove the challenged lawsuit’s legal viability before the court will entertain evidence of the suit’s economic viability.”

After Professional Real Estate Investors, Inc, then, a plaintiff who alleges that the defendant instituted litigation violative of the antitrust laws and section 1983 will be confronted by the Noerr-Pennington immunity of the defendant unless the plaintiff can demonstrate that the defendant’s litigation was a sham within the meaning of the Court’s two-part test.

The “Sham” Exception Applied by the Ninth Circuit

For example, In Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 643 (9th Cir. 2009), the plaintiff, formerly a landowner, sued a representative of a school district and the law firm that represented it in an earlier eminent domain proceeding involving her property, alleging that they violated her constitutional rights by their acts that led to a much lower valuation of her property than was awarded her. Dismissing the plaintiff’s section 1983 claims, the district court found Noerr-Pennington immunity applicable because the challenged conduct was “incidental to First Amendment-protected petitioning activity.” It also found that plaintiff’s complaint did not fall within the sham exception to Noerr-Pennington “because [plaintiff] had not supported her position that defendants’ alleged intentional misrepresentations to the court ‘depriv[ed] the condemnation proceeding of its legitimacy.’” Reversing on this issue, the Ninth Circuit ruled that the sham exception to Noerr-Pennington immunity applied in this case. The plaintiff’s allegations as to intentional misrepresentations to the court through suppression of evidence were sufficient, and the district court erred in requiring “support” at the motion to dismiss stage.

Comment

Noerr-Pennington immunity may apply to protect section 1983 defendants whose challenged anticompetitive conduct is potentially protected by the Petition Clause of the First Amendment. Neverthless, this immunity may be lost if the defendants’ litigation was a sham with the meaning of the Supreme Court’s decision in Professional Real Estate Investors, Inc.

All in all, this can be quite arcane and unfamiliar to attorneys.

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Registration is now open!

3-day Webinar Series | April 21 – 23, 2021 Eligible for 12.5 hours of general CLE credit, including 1.25 hours of ethics  Liability arising out of §1983 claims continues to present challenges for courts across the country, and the Supreme Court has a large impact in this dynamic area of law. Join us for this 10-part webinar series, held over three days, to get up-to-date on the latest cases, trends, and strategies affecting §1983 litigation. You have the opportunity to examine both the law of §1983 as well as the litigation strategies that underlie successful cases. Experts in the field address the most important issues and provide wisdom for you as you tackle this year’s cases, whether you represent plaintiffs or defendants. As always, the conference provides an analytical approach to problems and offers practical advice about how to solve them.  REGISTRATION NOW OPEN Sign-up today and save $50 on the cost of registration! Pay the early bird rate through April 7. Special discount available for attending this conference for 10 or more years, consecutively. Register at this link: https://ckcle.ce21.com/item/37th-annual-section-1983-civil-rights-litigation-conference-403127 PROGRAM HIGHLIGHTS• The Section 1983 Claim: The Basics • Individual Immunities • Municipal Liability • Practical Considerations in §1983 Litigation • Immigration Law and §1983 • The 4th Amendment: Overview and Update • Attorney’s Fees & Related Ethical Issues • The Supreme Court’s Term: Recent and Forthcoming Decisions • Substantive Due Process: The Constitutional Guaranty that Multitasks New this year! • Takings after Knick New this year! All sessions are pre-recorded video content along with real-time speaker interaction available via live chat room throughout each session.   PROGRAM FACULTY Kimberly D. Bailey | Associate Professor of Law | Chicago-Kent College of Law Gerald M. Birnberg | Founding Partner | Williams, Birnberg & Andersen LLP Karen M. Blum | Professor of Law Emerita | Suffolk University Law School Victoria Carmona | Assistant Clinical Professor and Supervisory Attorney, Immigration Clinic | Chicago-Kent College of Law Erwin Chemerinsky | Dean & Jesse H. Choper Distinguished Professor of Law | University of California, Berkeley School of Law Rosalie B. Levinson |  Professor of Law Emerita | Valparaiso University School of Law John B. Murphey | Senior Partner | Odelson Sterk Murphey Frazier McGrath, Ltd. Sheldon H. Nahmod | University Distinguished Professor of Law Emeritus | Chicago-Kent College of Law DOWNLOAD THE COMPLETE BROCHURE HERE: https://d31hzlhk6di2h5.cloudfront.net/20210308/2e/9d/06/14/bd734451d3c88ee79de6b1c5/sec83_-_brochure_2021_FINAL.pdf

The Basics of Younger v. Harris

Younger abstention is among the more important abstention doctrines that are typically applied to federal court section 1983 claims for declaratory and injunctive relief. This doctrine, based on Younger v. Harris, 401 U.S. 37 (1971), is grounded on considerations of federalism and comity. In its simplest terms, this is the rule: when state criminal judicial proceedings are already pending, a federal plaintiff seeking declaratory or injunctive relief against their continuation will typically be barred from the federal forum.

The Younger rule has been extended by the Supreme Court to include equitable relief against certain pending state judicial proceedings that are civil in nature where state interests are particularly weighty. Pennzoil Co. V. Texaco, Inc., 481 U.S. 1 (1987). The Court has even applied Younger to certain pending state administrative proceedings. Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619 (1986).

When Younger abstention is successfully asserted, it results in the outright dismissal of the section 1983 claims for prospective relief. So the doctrine is of great practical significance, and attorneys must be sensitive to its possible application where related state judicial or administrative proceedings are pending when section claims for prospective relief are filed in federal court.

For Your Reading Pleasure: Three Circuit Cases Addressing the Applicability of Younger

1. Consider Tokyo Gwinnett v. Gwinnett County, 940 F.3d 1254 (11^th Cir. 2019), where the plaintiff owner of an adult entertainment business sought section 1983 declaratory relief against a county challenging certain licensing and adult entertainment ordinances. The Eleventh Circuit reversed the district court which had dismissed on Younger grounds because of the county’s pending state court enforcement proceeding initiated while an earlier appeal was pending in the circuit. Although Younger might apply to a civil enforcement proceeding like this one that was technically pending and although the proceeding implicated important state interests and the plaintiff could raise its federal claims there, that proceeding was not “ongoing” at the time of the federal action. “[Eleventh Circuit] precedent tells us to look to the start and progression of the federal litigation as compared to the start and progression of the state litigation.” The plaintiff here filed its federal action on July 22, 2015, while the county did not file its state court enforcement action until July 8, 2016. It was irrelevant that the plaintiff amended its complaint in December 2015 to add newer claims relating to the same controversy. Judge Carnes concurred in part and dissented in part, arguing that the district court got it right on Younger because the state proceedings were ongoing with respect to the plaintiff’s newer claims.

Lesson: timing is everything. The state proceeding was not pending when the section 1983 action for prospective relief was filed in federal court, so Younger did not apply. Note that the Younger doctrine can therefore lead to a race to the courthouse.

 2. In Zadeh v. Robinson, 928 F.3d 457 (5^th Cir. 2019), the plaintiff doctor, claiming that state medical board members violated his constitutional rights by a warrantless search of his office and medical records, sought section 1983 declaratory relief against the board which was then investigating him. He challenged several laws implicating the board. The Fifth Circuit found Younger applicable because the plaintiff  was subject to an ongoing state administrative proceeding which was a judicial proceeding for Younger purposes. Further, Texas had a strong interest in regulating the practice of medicine. Moreover, Texas law permitted judicial review by either party of an administrative decision).

Lesson: a relatively straightforward Younger abstention case involving pending state administrative proceedings that were apparently directly challenged by the plaintiff.

3. Consider Citizens for Free Speech v. County of Alameda, 953 F.3d 655, 657-58 (9^th Cir. 2019), where, after a county instituted an abatement proceeding against a property owner who wanted to display billboards in violation of a local zoning scheme, the property owner filed a section1983 action alleging constitutional violations and seeking damages and prospective relief against the county. The Ninth Circuit found Younger applicable: the abatement proceeding was ongoing, it was quasi-criminal, it implicated an important state interest, it allowed the plaintiff adequate opportunity to raise its federal challenges and the federal action “could substantially delay the abatement proceeding, thus having the practical effect of enjoining it.” The Ninth Circuit also rejected the plaintiff’s argument that the district court improperly raised Younger sua sponte: “the court may raise abstention of its own accord at any stage of the litigation.”

Lesson: Younger may apply even though the section 1983 plaintiff does not explicitly challenge ongoing state proceedings. The federal courts ask what the effect of the section 1983 prospective relief action will be on the pending state proceedings. In addition, a district court may raise Younger even if the parties do not.

For much much more on Younger, check out Chapter 5 of my Treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2020)(West & Westlaw).

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The Rule of Heck v. Humphrey: An Existing Conviction

Suppose a section 1983 plaintiff has been convicted of a crime and wants to sue law enforcement officers for damages arising out of his arrest, prosecution, imprisonment or conviction. An initial hurdle is the seminal decision of Heck v. Humphrey, 512 U.S. 477 (1994), which governs those situations in which the section 1983 plaintiff has a existing conviction whose validity might be implicated by a successful damages action as, for example, where the plaintiff alleges that he was prosecuted and convicted because the defendants fabricated evidence. In such cases, the section 1983 claim does not accrue until the underlying conviction is reversed, expunged or otherwise declared invalid by a state tribunal or called into question by a federal court’s issuance of a writ of habeas corpus. According to the Supreme Court, this accrual rule stems from the “intersection” of section 1983 and habeas corpus and is analogous to the common law tort of malicious prosecution where a favorable termination is a required element of a plaintiff’s claim (together with absence of probable cause and malice).

In contrast, where the section 1983 damages action, if successful, would not implicate the validity of the underlying conviction–as, for example, where the plaintiff, convicted of arson, alleges that excessive force was used against him when he was arrested–the section 1983 excessive force claim accrues at the time of the challenged conduct, here, the time of arrest.

(See generally on Heck: https://nahmodlaw.com/2013/06/17/a-section-1983-primer-10-statutes-of-limitations-and-accrual-after-heck-v-humphrey/)

What If There Is No Conviction? The Certiorari Petition in Thompson v. Clark

So far so good. Suppose now that a section 1983 plaintiff who was never convicted alleges that he was arrested and/or prosecuted in violation of his constitutional rights. More specifically, he alleges that he was unlawfully seized pursuant to legal process in violation of the Fourth Amendment and held in jail pending trial pursuant to a judge’s decision. Thereafter, all charges are dismissed and he is released. (Compare Manuel v. City of Joliet, 137 S. Ct. 911 (2017) about which I posted here: https://nahmodlaw.com/2017/05/15/manuel-v-city-of-joliet-the-court-rules-section-1983-malicious-prosecution-claims-can-be-based-on-the-fourth-amendment-but-otherwise-punts/).

When does such a plaintiff’s cause of action accrue? More specifically, if favorable termination is required by analogy to malicious prosecution, must that favorable termination affirmatively show that the section 1983 plaintiff was innocent or is it enough for the plaintiff to show that the favorable termination was not inconsistent with his innocence?

A petition for certiorari in Thompson v. Clark, No. 20-659 (filed 11-6-20), out of the Second Circuit, raises that issue. In this case, “the prosecution dismissed the charges against petitioner without any plea or compromise. Petitioner’s case was called at a hearing, and the prosecution simply stated: ‘People are dismissing the case in the interest of justice.'” Under Second Circuit precedent, this was insufficient to show favorable termination because the dismissal did not demonstrate the plaintiff’s innocence.

Hence the Question Presented in the petition: “Whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has “formally ended in a manner not inconsistent with his innocence,” as the U.S. Court of Appeals for the 11th Circuit decided in Laskar v. Hurd, or that the proceeding “ended in a manner that affirmatively indicates his innocence,” as the U.S. Court of Appeals for the 2nd Circuit decided in Lanning v. City of Glens Falls.”

Among other things, the petitioner maintains that the First, Third, Fourth, Sixth, Ninth and Tenth Circuits incorrectly take the same position as the Second Circuit where there is no conviction, thus giving rise to a circuit conflict between the Eleventh Circuit and these others that merits a grant of certiorari.

Comments

1. Regardless of whether the Court grants certiorari in Thompson, the preferable favorable termination rule is one that does not require an affirmative indication of innocence. Among other considerations, a contrary rule would encourage prosecutors to offer potential section 1983 plaintiffs a dismissal or its equivalent–an offer many litigants and their attorneys would find difficult to resist in the face of a threatened criminal trial–and thereby undermine any future section 1983 claims challenging the unreasonable seizure pursuant to legal process.
2. Requiring an affirmative indication of innocence would place those never convicted in a worse position for section 1983 purposes than those who were in fact convicted. Heck does not appear to require an affirmative indication of innocence as a condition precedent to going forward with a section 1983 damages claim; it requires only that the conviction be invalidated where the damages action, if successful, would call the conviction into question.
3. As nicely pointed out in one of the Amicus briefs, requiring an affirmative indication of innocence is inconsistent with the presumption of innocence.
4. Note that another important accrual decision based on an analogy to malicious prosecution, McDonough v. Smith, 139 S. Ct. 2149 (2019), involving a due process fabrication of evidence claim, dealt with an acquittal as a favorable termination. (See generally https://nahmodlaw.com/2019/06/21/mcdonough-v-smith-the-supreme-court-answers-an-important-section-1983-fabrication-of-evidence-accrual-question/). So far as I know, no one has argued that an actual acquittal is not a favorable termination.
5. Whatever “favorable termination” turns out to mean, it will be a matter of federal law since we are dealing with the accrual of a section 1983 cause of action. It will therefore apply nationally.

IMPORTANT UPDATE: THE SUPREME COURT GRANTED CERTIORARI ON MARCH 8, 2021.

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Proximate Cause and Section 1983

It is generally agreed that federal common law principles of proximate cause govern section 1983 as a matter of statutory interpretation because they are part of the “background of tort liability.” The Supreme Court weighed in on these principles in its 2017 decision in County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), Mendez involved a warrantless entry by officers in violation of the Fourth Amendment, followed by the use of deadly force that did not violate the Fourth Amendment. The plaintiff in Mendez sought damages under section 1983 for the use of deadly force on the ground that those damages were proximately caused by the warrantless entry.

In Mendez, the Court rejected the Ninth Circuit’s provocation rule of proximate cause and remanded. In its opinion, though, it discussed the various approaches to proximate cause in the section 1983 setting: reasonable foreseeability and the somewhat narrower-in-scope risk rule. See my post on Mendez: https://nahmodlaw.com/2017/06/16/county-of-los-angeles-v-mendez-supreme-court-rejects-provocation-rule-remands-on-proximate-cause/

Now consider Martin v. Marinez, 934 F.3d 594 (7^th Cir. 2019), a proximate cause damages decision of the Seventh Circuit.

Martin v. Marinez

In Martin v. Marinez, the plaintiff’s Fourth Amendment rights were violated because the defendant police officers did not have reasonable suspicion or probable cause to detain him when they stopped him, forced him from his car, conducted a pat-down search, handcuffed him and put him into a police vehicle. This was an unlawful seizure that violated the Fourth Amendment. However, when they searched his car they found a semiautomatic handgun with a defaced serial number and crack cocaine. They then took the plaintiff, who they discovered was a convicted felon, into custody, which was in turn followed by sixty-five days of incarceration for felony charges resulting from the traffic stop. The charges were thereafter dropped and dismissed through a nolle prosequi motion when a state court granted the plaintiff’s motion to suppress.

However, in contrast to the unlawful stop which did violate the Fourth Amendment, the jury found that the police officers did not violate the Fourth Amendment (for false arrest and unlawful search) once they discovered the gun and the crack cocaine and arrested him—there was probable cause for the arrest and search irrespective of the initial unlawful stop. The plaintiff sought damages totaling $110,000 for his incarceration and lost business income, but was awarded only $1 by the jury for the unlawful stop. Judgment was then entered against him by the district court which had instructed the jury that it could not award any damages for time spent in custody after the officers found the handgun.

Affirming the district court in Martin, the Seventh Circuit ruled against the section 1983 plaintiff on the scope of recoverable damages in this Fourth Amendment case. The court first commented:

“We have not resolved the specific question whether a plaintiff may recover damages for post-arrest incarceration following a Fourth Amendment violation when probable cause supported the ultimate arrest and initiation of criminal proceedings, but the application of the exclusionary rule spared the plaintiff from the criminal prosecution. As Martin notes, there is a split of authority on the question of whether a defendant whose Fourth or Fifth Amendment rights have been violated can recover damages.”

The Seventh Circuit then ruled that the plaintiff could recover damages only for the unlawful stop and not for his incarceration and lost business income. There was probable cause for his arrest even though the initial stop was unlawful: this foreclosed the plaintiff’s false arrest and unlawful search claims. The Seventh Circuit rejected the plaintiff’s argument that the unlawful stop proximately caused the resulting damages for incarceration and lost business income. According to the court, such an approach to damages recovery was not only inconsistent with common law proximate cause principles but also with section 1983 policy because the potential liability would be disproportionate to the underlying constitutional violation. “[Plaintiff’s] damages award was thus properly limited to the harm arising from his unconstitutional detention before his lawful arrest.”

Comments

The Seventh Circuit appears to have adopted a risk rule approach to proximate cause in Martin–an approach that I have previously criticized–and not the broader reasonable foreseeability approach. In this connection, the Seventh Circuit said it was following the proximate cause approach of the Second Circuit in Townes v. City of New York, 176 F.3d 138 (2nd Cir. 1999), and of the Third Circuit in Hector v. Watt, 235 F.3d 154 (3^rd Cir. 2000), both of which it cited.

Interestingly, the Seventh Circuit did not explicitly deal with the case before it in intervening-superseding cause terms, as it might have.

For much more on proximate cause and section 1983, see Ch. 3 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West & Westlaw).

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