Nahmod Law

Introduction

I blogged some time ago about anti-SLAPP statutes in state courts. Readers will want to consult my post of July 23, 2010, for that discussion and relevant background.

As set out in that post, a SLAPP (Strategic Litigation Against Public Participation) lawsuit is one that is filed by the plaintiff in order to chill the exercise of the defendant’s First Amendment right to petition the government for redress of grievances by obtaining a financial advantage over the defendant in litigation.

In contrast, an anti-SLAPP statute provides procedural and substantive protection for the defendant in cases where the plaintiff’s lawsuit is grounded on a good faith communication in furtherance of the right to petition.

Anti-SLAPP statutes in federal courts

An interesting question is whether and to what extent federal courts may or even must enforce anti-SLAPP statutes in federal proceedings. Consider in this regard the First Circuit’s decision in Godin v. Schencks, 629 F.3d 79, 86 (1^st Cir. 2010), a case involving a section 1983 procedural due process claim against various defendants as well as pendent state law claims against three school system employees who had separately said in meetings with school officials that the plaintiff, a former principal, had acted abusively toward students.

In Godin, the First Circuit extensively analyzed the relationship between the Federal Rules of Civil Procedure and a Maine anti-SLAPP statute (Section 556) “that governs both procedure and substance in the state courts. The issue [as to the pendent state law claims] is whether Federal Rules of Civil Procedure 12(b)(6) and 56 preclude application of Section 556 in federal court.”

Confronting this issue of first impression in its circuit, the First Circuit held that Maine’s anti-SLAPP statute must be applied to the plaintiff’s state law claims against these three individual defendants.

In the court’s view, neither of these two Federal Rules was meant to control the issues under Section 556 in federal courts. In addition, the dual purposes of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)—discouraging forum shopping and avoiding inequitable administration of the laws—were best served by enforcement of Section 556. The defendants could therefore defend against the pendent state law claims under the anti-SLAPP statute.

The First Circuit observed that it was joining the Fifth and Ninth Circuits in reaching this conclusion. It cited as support Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164 (5^th Cir. 2009), and United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9^th Cir. 1999).

Note that a state’s anti-SLAPP statute should not be a defense to a section 1983 claim in federal court by virtue of the Supremacy Clause.

Introduction

The Supreme Court finally handed down its decision (PDF) in the important case of Connick v. Thompson, No. 09-571, on March 29, 2011, almost a year after I blogged about Connick in light of the Court’s grant of certiorari.  Readers should consult my post of April 6, 2010, for relevant doctrinal and other background information.

In Connick, a 5-4 decision with an opinion by Justice Thomas, the Court effectively held that local government liability for failure to train cannot be based on a single incident, even in the face of an otherwise persuasive claim of deliberate indifference because the need for training is “obvious.” Instead, the plaintiff must also show a pattern of similar constitutional violations. Justice Scalia, joined by Justice Alito, concurred. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor and Kagan.

The Facts and Issue

The § 1983 plaintiff, Thompson, was convicted of murder and spent fourteen years on death row for a crime that he did not commit because prosecutors did  not turn over to his attorney a lab report in a related case in which he had previously been convicted of attempted aggravated armed robbery. This lab report indicated that the perpetrator of the attempted armed robbery had type B blood, while the plaintiff had type O blood. Because of that conviction, the plaintiff did not testify in his own defense at his murder trial, where he was convicted. Many years later, the lab report that the prosecutors had failed to turn over was discovered, with the result that, in 1999, plaintiff’s attempted armed robbery conviction was vacated and, in 2002, his murder conviction was overturned. A subsequent murder retrial in 2003, at which plaintiff testified in his defense, resulted in a not guilty verdict.

He then sued the prosecutor’s office for damages under § 1983, in essence making a local government liability failure to train claim regarding proper training under Brady v. Maryland, 373 U.S. 83 (1963), and the due process requirement to turn over exculpatory evidence to criminal defendants. A jury awarded him $14 million, which was upheld by the district court. On appeal, a panel of the Fifth Circuit affirmed in a decision later vacated by the Fifth Circuit when it granted en banc review. However, since the en banc Fifth Circuit (in three opinions) was evenly divided, the district court’s decision was affirmed.

The basis of the jury verdict and district court judgment was twofold. First, Connick, the district attorney, was a policymaker (thus representing the prosecutor’s office) who was deliberately indifferent to an obvious need to train prosecutors regarding their obligations under Brady.  And second, the lack of Brady training was the moving force behind plaintiff’s constitutional injury. The en banc Fifth Circuit divided evenly on each of these findings.

The Court granted certiorari to decide the following Question Presented: “Does imposing failure-to-train liability on a district attorney’s office for a single Brady violation contravene the rigorous culpability and causation standards of Canton and Bryan County [where there is no history of similar Brady violations]?” As noted, the Court answered YES. Read the rest of this entry »

Introduction

I blogged on June 24, 2010, about the Supreme Court’s grant of certiorari in Skinner v. Switzer (PDF), No. 09-9000, a case from the Fifth Circuit addressing the relationship between section 1983, habeas corpus and Heck v. Humphrey, 512 U.S. 477 (1994). That post should be consulted for background by those unfamiliar with this case.

On March 7, 2011, the Supreme Court, in an opinion by Justice Ginsburg, handed down its decision in Skinner, with Justice Thomas, joined by Justices Kennedy and Alito, dissenting.

The Opinion

This was the question in Skinner:

“May a convicted state prisoner seeking DNA testing of crime-scene evidence assert that claim in a civil rights action under [section 1983], or is such a claim cognizable in federal court only when asserted in a petition for a writ of habeas corpus?”

The Court’s answer in Skinner is that section 1983 may be used. Read the rest of this entry »

The Problem

Suppose a section 1983 plaintiff sues individual police officer defendants and a local government, alleging that they violated his constitutional rights and are liable in damages to him.  The individual defendants move for summary judgment based on qualified immunity, as they are entitled to do under Harlow v. Fitzgerald, 457 U.S. 800 (1982), and its progeny.  According to the Supreme Court in Pearson v. Callahan, 129 S. Ct. 808 (2009), modifying the “order of battle” approach of Saucier v. Katz, 533 U.S. 194 (2001)–see post of 9-17-09— the qualified immunity inquiry may, in the discretion of the district court, include both (1) whether the defendants violated the plaintiff’s constitutional rights (that is, whether the plaintiff asserted a constitutional violation) and (2) if they did, whether the defendants nevertheless are not liable because they did not violate clearly settled law as of the time of the challenged conduct.

Suppose now that the district court rules that the individual defendants did violate the plaintiff’s constitutional rights but that they did not violate clearly settled law and are thus entitled to qualified immunity.  May the defendants interlocutorily appeal the district court’s determination that the defendants did in fact violate the plaintiff’s constitutional rights where the plaintiff does not appeal the grant to the defendants of qualified immunity?

Consider that the defendants prevailed at the district court level; that technically speaking the ruling that the individual defendants violated the plaintiff’s constitutional rights is really not part of the district court’s judgment; and that the dispute between the plaintiff and the individual defendants may now be moot. The plaintiff would prefer a determination that the Circuit Court of Appeals does not have jurisdiction so that the plaintiff’s case against the local government can go forward without any further delay (recall that local governments are not protected by qualified immunity. Owen v. City of Independence, 445 U.S. 622 (1980)).

For the same reason, though, the local government defendant has an interest in a decision by the Court of Appeals on the constitutional merits as soon as possible. Moreover, an argument can be made that the district court’s statement of the applicable constitutional law affects not only the defendants but all other police officers similarly situated in the jurisdiction who would perhaps be governed by the district court’s announced constitutional standard unless and until it is overturned by a Court of Appeals. Read the rest of this entry »

Qualified Immunity Fundamentals

Qualified immunity under section 1983 is a powerful affirmative defense, protecting a state or local government official sued in an individual capacity from damages liability where the official can show that he or she acted with a reasonable belief in the constitutionality of the challenged conduct. To put it somewhat differently: a government official is not liable for damages for violating a person’s constitutional rights where a reasonable official, confronting the circumstances as they appeared to the official at the time of the challenged conduct and in light of then-established law, could have believed his or her conduct was constitutional. If the challenged conduct violated clearly settled law as of the time of the conduct, the official acted unreasonably and loses on qualified immunity. The qualified immunity standard is thus objective in nature. Harlow v. Fitzgerald, 457 U.S. 800 (1982) and Anderson v. Creighton, 483 U.S. 635 (1987). See generally chapter 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2010)(CIVLIBLIT on Westlaw).

However, qualified immunity amounts to even more than this. Over the years it has increasingly begun to function more like absolute immunity: qualified immunity provides significant protection not only from damages liability but from the costs of defending as well. Thus, qualified immunity summary judgment motions should ordinarily be decided before any significant discovery is undertaken. Harlow v. Fitzgerald. In addition, denials of qualified immunity summary judgment motions are immediately appealable on issues of law, although not for evidentiary sufficiency. Johnson v. Jones, 515 U.S. 304 (1995).

The Decision in Ortiz v. Jordan

Suppose that defendants in a section 1983 case raise qualified immunity on summary judgment and lose at the district court level because there are genuine issues of material fact in dispute. The defendants choose not to appeal, the case goes to trial and a jury finds for the plaintiff. Suppose further that defendants never contested the jury’s liability finding under F.R.C.P. 50 (b) and also did not request a new trial under Rule 59(a). After the district court enters judgment for the plaintiff, the defendants appeal and argue that the district court should have granted their qualified immunity motion for summary judgment in the first place.

May the defendants appeal the denial of their qualified immunity motion for summary judgment after the district court has held a full trial on the merits? The Court in Ortiz v. Jordan (PDF), No. 09-737 (1-25-11), resolved a conflict in the circuits and unanimously answered NO. Read the rest of this entry »

Introduction

(It has been a while since I posted on section 1983; what follows is my discussion of a Supreme Court section 1983 decision just handed down on November 30, 2010).

It is section 1983 black letter law after Monell v. Department of Social Services, 436 U.S. 658 (1978), that a local government can only be liable in damages when its official policy or custom was responsible for the plaintiff’s constitutional deprivation. Respondeat superior liability is not a proper basis for local government liability under section 1983.

But suppose that a plaintiff seeks prospective (declaratory and/or injunctive) relief against a local government under section 1983: is the official policy or custom requirement still in play, or is it applicable only to section 1983 damages actions? Further, if the official policy or custom requirement applies to prospective relief actions against local governments as well, does it matter whether the local government is sued for prospective relief in its own name or in the name of an official?

Los Angeles County v. Humphries

In Los Angeles County v. Humphries, 131 S. Ct. — (2010), the Supreme Court held that the official policy or custom requirement does indeed apply to prospective relief actions brought against local governments sued in their own names.

In this case, the plaintiffs, accused but later exonerated of child abuse, sued the attorney general of California, the Los Angeles County sheriff, two detectives in the sheriff’s department and Los Angeles County, and sought damages and prospective relief against all of them. They sought this relief because they were unable to have their names removed from a state-mandated Child Abuse Central Index even after they were exonerated. Ultimately, the Ninth Circuit held that the state was required by procedural due process to provide those included on the Index with notice and some sort of hearing; that the plaintiffs were entitled to declaratory relief against all of the defendants; and that they were prevailing parties entitled to attorney’s fees under 42 U.S.C. section 1988 against all of the defendants, including Los Angeles County. Read the rest of this entry »