A Section 1983 Primer (4): Causation and the Mt. Healthy Burden-Shift Rule
Introduction
As in ordinary tort law, a person who is sued under section 1983 for damages must be shown to be responsible in order to held liable. In other words, that person must have caused the plaintiff’s constitutional deprivation. But in certain section 1983 cases involving impermissible motivation, such as public employee equal protection and First Amendment cases, there are complications arising out of the burden-shift rule of Mt. Healthy Bd. of Education v. Doyle, 429 U.S. 274 (1977).
Typical Fact Pattern
Suppose a public employee is discharged and believes the discharge was impermissibly motivated either because of race (equal protection) or because what he or she said (First Amendment). It turns out that even if the plaintiff can prove this, he or she will not necessarily win on the merits and recover damages because of the Mt. Healthy burden-shift rule.
How the Mt. Healthy Burden-Shift Rule Works
Under Mt. Healthy, (1) the plaintiff has the burden of proving by a preponderance of the evidence that the impermissible motive was a substantial factor (not the but-for cause or the sole cause) for the discharge. Once the plaintiff does this, the plaintiff has made out a prima facie case and will prevail on the merits (2) unless the defendant can prove by a preponderance of the evidence that there was a permissible factor–such as insubordination, incompetence or the like–that also played a role in the discharge and–here’s the key– (3) the plaintiff would have been discharged anyway even in the absence of the impermissible motive. Read the rest of this entry »
Justice Stevens and Section 1983
Introduction
By now, all of us know that Justice Stevens has announced that he will step down immediately after the last day of the 2009 Term (in late June or early July 2010). In this post, I want to call attention to Justice Stevens’s unheralded position advocating respondeat superior liability for section 1983 local government liability.
Justice Stevens and Local Government Liability
This position was articulated by Justice Stevens, dissenting in Oklahoma City v. Tuttle, 471 U.S. 808, 834-844 (1985), and concurring in part and concurring in the judgment in Pembaur v. Cincinnati, 475 U.S. 469, 489-491 (1986). Essentially, he argued that the Court got it wrong in the seminal decision in Monell v. Dept. of Social Services, 436 U.S. 658 (1978), where the Court held, rejecting respondeat superior liability, that a local government could only be liable for damages under section 1983 when a plaintiff’s constitutional deprivation was brought about by an official policy or custom of the local government.
In his view, respondeat superior liability was an appropriate basis for local government liability for several reasons. First, in 1871 when section 1983 was enacted, local governments were indeed vicariously liable for many of their employees’ acts. And second, section 1983’s “subjects, or causes to be subjected” language was not inconsistent with respondeat superior liability.
His Position Exhumed
In Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997), Justice Breyer, joined by Justices Stevens and Ginsburg, argued that in light of the increasing complexities of section 1983 local government liability, it was time to reexamine Monell‘s rejection of respondeat superior liability and its embrace of the official policy or custom requirement.
Justice Breyer maintained that Justice Stevens’s position was looking increasingly attractive because Monell had “produced an highly complex body of interpretive law.” He argued that “the legal prerequisites for reexamination of an important statute are present here.” Among other things, the soundness of the original principle distinguishing respondeat superior liability from the official policy or custom requirement was doubtful. Also, this requirement had created a body of law that was “neither readily understandable nor easy to apply.”
Furthermore, these complexities had made it difficult for local governments to predict just when they would be held liable. Finally, many local government indemnification statutes provided for payments to victims of constitutional violations that were similar to those that would be provided in a respondeat superior regime.
Observations
Not surprisingly, Justice Breyer’s call in Bryan County for a reexamination of Monell fell on deaf ears in 1997. It is even less likely in 2010 that the Court will ease the requirements for section 1983 local government liability given its continuing, almost obsessive, concern with avoiding section 1983 respondeat superior liability. See, for example, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), which has been the subject of several posts, where the Court on its own changed the requirements for constitutional tort supervisory liability because of this concern.
Nevertheless, I wonder what the world of section 1983 local government liability would have looked like had the Court in Monell not rejected respondeat superior liability but instead adopted Justice Steven’s position.
Certiorari Granted in Connick v. Thompson: A Prosecutorial Failure to Train Local Government Liability Case
Introduction
Readers of this blog will recall that, as discussed in a prior post, the Court last Term held in Van De Kamp v. Goldstein, 129 S. Ct. 855 (2009), that supervisory prosecutors charged with failing to train prosecutors in connection with the proper use in criminal trials of jailhouse informants were absolutely immune from damages liability in their individual capacities, despite the fact that this function was administrative in nature. And they will also recall, as discussed in a different post, that the Court granted certiorari in another prosecutorial immunity case, Pottawattamie County v. McGhee, 129 S. Ct. 2002 (2009), only to dismiss when the case was settled after oral argument.
The Supreme Court recently granted certiorari in a third case involving prosecutors and § 1983 liability. Connick v.Thompson, No. 09-571, granting cert in Thompson v. Connick, 578 F.3d 293 (2009), deals with the liability of a prosecutor’s office for an alleged failure to train prosecutors in connection with their responsibilities under Brady v. Maryland, 373 U.S. 83 (1963), to turn over possibly exculpatory evidence to a criminal defendant. Connick raises issues of local government liability for failure to train arising out of Court’s seminal failure to train decision in City of Canton v. Harris, 489 U.S. 378 (1989) and the related decision in Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997).
The Claim and Issues in Connick
The § 1983 plaintiff was convicted of murder and spent fourteen years on death row for a crime that he did not commit, allegedly 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, and a jury awarded him $14 million. The district court affirmed and 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, the district attorney in his official capacity (meaning the prosecutor’s office) 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]? Read the rest of this entry »
Section 1983 Supreme Court Decisions–2009: A Video Presentation
Introduction
In December, 2009, I spoke to the New Mexico Defense Lawyers Association about the very important Supreme Court section 1983 decisions handed down in 2009. This presentation was videotaped professionally and I am posting it here. Each of these decisions was previously the subject of separate written posts.
Cases Included
1. Haywood v. Drown, 129 S. Ct. 2108 (2009)(state court jurisdiction over section 1983 claims)
2. Fitzgerald v. Barnstable School Committee, 129 S. Ct. 788 (2009)(Title IX and preemption of section 1983 equal protection claims)
3. Pearson v. Callahan, 129 S. Ct. 808 (2009)(qualified immunity “order of battle” revisited)
4. Van De Kamp v. Goldstein, 129 S. Ct. 855 (2009)(absolute immunity of supervisory prosecutors)
5. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)(pleading and supervisory liability)
My presentation also includes discussion of another prosecutorial immunity case, Pottawattamie County v. McGhee, 547 F.3d 922 (8th Cir. 2008), cert. granted, 129 S. Ct. 2002 (2009), dismissed, 129 S. Ct. — (2010), as well as of supervisory liability after Iqbal.
video link (Requires Real Player)
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Supreme Court Decisions, 2007-2008: A Video Presentation
Introduction
In February 2009, I spoke at Chicago-Kent to our law students and others about important decisions handed down in the Supreme Court’s 2007 Term (October 2007–June 2008), and also addressed several pending, and since decided, cases in the 2008 Term which ended in June 2009.
As an experiment, I’m putting the video of this presentation on my blog in the hope that some of you might find it of interest. Please let me know through your comments or via email (snahmod@kentlaw.edu) what you think.
The video link appears below (the video is slightly choppy but it still works just fine and the audio is good).
Coverage of Presentation
The presentation includes the following:
United States v. Williams, 128 S. Ct. 1830 (2008)(child pornography)
District of Columbia v. Heller, 128 S. Ct. 2783 (2008)(Second Amendment protects an individual’s right to bear arms for the purpose of self-defense in the home)
Engquist v. Oregon Dept. of Agriculture, 128 S. Ct. 2146 (2008)(public employment and class-of-one Equal Protection claims)
Crawford v. Marion County Election Bd., 128 S. Ct. 1610 (2008)(requiring voters to show government-issued photo)
Medellin v. Texas, 128 S. Ct. 1346 (2008)(state criminal procedure, treaties and consular notification)
Boumediene v. Bush, 128 S. Ct. 2229 (2008)(habeas corpus and the war against terrorism)
Pleasant Grove v. Summum (description and assessment of difficult government speech, public forum and Establishment Clause issues before decision handed down subsequently at 129 S. Ct. 1125 (2009))
video link (Requires Real Player)
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From Buckley to Citizens United (Part Two of Two)
Introduction
This is the second of two posts on the Supreme Court‘s controversial decision dealing with corporate expenditures and campaign finance reform in Citizens United v. FEC, No. 08-205 (1-21-10). The immediately preceding post, which should be consulted, sets out the relevant case law, from Buckley to Wisconsin Right to Life, leading up to that decision. This post comments on Citizens United.
The thoughtful comments of my colleague, Steve Heyman, on Citizens United are accessible through the following link: http://blogs.kentlaw.edu/faculty/2010/03/the-public-vs-the-supreme-court-a-comment-on-the-citizens-united-case.html
Citizens United: The Decision.
All of this finally brings us to Citizens United. Here, the Court, after oral argument, decided not to deal with the narrow question of the constitutionality of BCRA’s application to a not for profit’s documentary about Hillary Clinton that it wanted to make available through video on demand within 30 days of primary elections for President (an “electioneering communication” under BCRA). Instead, the Court ordered reargument, asking the parties to address and argue the broader issue of the facial validity of BCRA with regard to profit and not for profit corporations and labor unions. This latter issue was not really raised by the parties.
The Court ultimately found the electioneering communications provisions unconstitutional, and more. In the course of a 57 page opinion by Justice Kennedy, Austin and McConnell (in part) were overruled. Applying strict scrutiny, the Court determined that corporations have the same First Amendment rights as individuals. According to the Court, corporations could make unlimited independent expenditures for candidates for federal office from their general treasury funds; there was no constitutional need to create PACs.
The Court reached this conclusion for the following reasons:
1. It was only in 1947, in the Labor Management Relations Act, that Congress prohibited independent expenditures by corporations and labor unions.
2. Buckley did not address the issue of corporate campaign expenditures.
3. The rationale of Bellotti was clear and covered this case directly.
4. Austin, a 1990 decision, was the first case that allowed the imposition of a direct restriction on independent corporate expenditures for political speech. Thus, there was a conflict between the pre-Austin and post-Austin line of cases.
5. The anti-distortion, anti-corruption and shareholder protection rationales relied on in Austin did not justify restrictions on corporate speech for political purposes. Political speech may not be limited based on a speaker’s wealth, and no meaningful distinction between media corporations and others existed. Also, independent corporate expenditures don’t give rise to concerns with quid quo pro corruption and the appearance of corruption. Finally, the shareholder protection rationale also applied to media corporations and this proved too much under the First Amendment.
6. Stare decisis was not controlling here: Austin had been undermined by experience (evasion) and rapid changes in technology, and there also were no serious reliance interests.
Justice Stevens, joined by Justices Ginsburg, Breyer and Sotomayor, dissented in a 90 page opinion, disagreeing with the Court in virtually every respect.
Observations Read the rest of this entry »
From Buckley to Citizens United (Part One of Two)
This is the first of two posts on the Supreme Court‘s controversial First Amendment corporate expenditure decision dealing with campaign financing of federal elections, Citizens United v. FEC, No. 08-205 (1-21-10). This post, by way of background, sets out the important Supreme Court campaign finance decisions that led up to Citizens United, a 5-4 decision whose majority opinion was authored by Justice Kennedy (over 50 pages) and whose dissenting opinion was authored by Justice Stevens (over 80 pages).
The next post will directly address Citizens United.
Buckley. The story begins in 1976 with Buckley v. Valeo, 424 U.S. 1 (1976), a case involving the constitutionality under the First Amendment of various provisions of the Federal Election Campaign Act of 1971, together with related provisions of the Internal Revenue Code of 1954, as amended in 1974. These campaign finance reform provisions were enacted largely in response to the Watergate era campaign scandals of the Nixon administration. What is of primary concern for our purposes are those provisions limiting individual political contributions and expenditures relative to a clearly identified candidate for federal office, as well as those limiting campaign spending by candidates for federal office. The Act set out an individual contribution cap of $1,000 per candidate, an individual expenditure cap of $1,000 per candidate and an overall individual contribution cap of $25,000 in a single year. Expenditures coordinated with candidates counted as contributions. Other provisions restricted a candidate’s use of personal and family resources and limited the overall amount that a candidate could spend in campaigning for federal office.
In a bifurcated decision, the Court upheld the contribution limits but invalidated the expenditure limits. Applying strict scrutiny or something very close to it, the Court found that the contribution limits were constitutional. On the free speech side, there were associational and symbolic speech considerations, albeit with the mitigating factor that the contributor was not speaking directly so much as giving money to a “mouthpiece.” On the government side, there was the powerful interest in avoiding quid pro quo corruption and the appearance of corruption, and the danger of public loss of faith in the political process. This interest outweighed the free speech interest.
However, the expenditure limits violated the First Amendment because they directly limited the quantity of high value political speech of individuals and candidates. The government interest in avoiding corruption and its appearance was inadequate to justify the expenditure caps, particularly in light of the expenditure coordination rules and the fact that individuals and groups could avoid expenditure caps simply by not referring to a specific candidate. “[T]he concept that government may restrict the speech of some [in] order to enhance the relative voice of others is wholly foreign to the First Amendment.”
Bellotti. Two years later, in 1978, came First National Bank of Boston v. Bellotti, 435 U.S. 765 (978), where the Court struck down a state statute prohibiting contributions and expenditures by corporations for the purpose of affecting referendum votes unless the referendum materially affected the property, business or assets of the corporation. The Court declared that the issue was not whether corporations had First Amendment rights, but rather that the statute was directed at speech indispensable to democratic decision-making. The First Amendment rights of the potential audience to receive information were also adversely affected. The Court rejected the arguments that the statute was necessary to protect the integrity of the electoral process, to avoid unduly influencing the outcome and to avoid adversely affecting confidence in democracy. It also disagreed with the contention that corporations would otherwise drown out differing points of view.
The dissenters (White, Brennan and Marshall) maintained that the self-fulfillment rationale of the First Amendment was clearly not pertinent. Also, even though corporations were governed by the statute, individuals, shareholders, officers and customers could still express their views. The statute was not directed at equalizing voices but instead was designed to prevent advantaged corporations, permitted by the state to amass wealth for certain economic purposes, from using their wealth unfairly in the political process. “[The] State need not permit its own creation to consume it.” Read the rest of this entry »
Freedom of Speech (3): The Clear and Present Danger Years
Introduction
Perhaps surprisingly, free speech jurisprudence in the Supreme Court began in earnest only in the second decade of the 20th century. The subject that caught the Court’s and the nation’s attention during that period was advocacy of illegal conduct and, more specifically, subversive advocacy. Did the First Amendment protect the speech of those advocating interference with the efforts of the United States during the First World War? Did it even protect the speech of those advocating the use of force to overthrown the government of the United States? In answering these questions, Justices Holmes and Brandeis, dissenting, made First Amendment history with their clear and present danger test for punishing speech: did the speech present a clear danger of imminent and serious illegal conduct?
The Problem
When I teach First Amendment, I frame the issue this way: if speech advocating illegal conduct to an audience is at one end of the spectrum, and the illegal conduct of the audience (which is clearly punishable) is at the other end, at what point can the government intervene to arrest the speaker?
The least speech-protective approach would ask whether the speech advocating illegal conduct could possibly cause illegal conduct, even if it did not do so in fact. If the speech met this test, the speaker could be arrested at that point. This was pretty much the approach of the Supreme Court, with Holmes and Brandeis dissenting in the 10’s and 20’s. A good early example is Abrams v. United States, 250 U.S. 616 (1919).
The most speech-protective approach would never allow government to arrest the speaker. Government could arrest only those who acted illegally.
The Supreme Court never adopted this extreme speech-protective position but the Holmes-Brandeis clear and present danger test came close. This test was designed to keep the government’s hands off the speaker until the danger, i.e., the illegal conduct, was both imminent and serious. The powerful Enlightenment assumption of rationality underlying this test was that requiring government to wait until the last minute before intervening provided an opportunity for counter-speech that might, and hopefully would, prevent the illegal conduct. Holmes grounded the clear and present danger test on the marketplace of ideas rationale, while Brandeis grounded the test on the self-government and self-fulfillment rationales.
The Outcome
After almost a half-century’s experience by the nation and the Court with the political doctrines of anarchy, radicalism, syndicalism, socialism and Communism (see Dennis v. United States, 341 U. S. 494 (1951) on the last), the Court in 1969 finally came up with the test set out in Brandenburg v. Ohio, 395 U.S. 444 (1969). This speech-protective test was based in large measure on the clear and present danger test, although it did not use the Holmes-Brandeis language.
Brandenburg essentially held that speech advocating illegal conduct could not be punished unless two conditions were met. The first was subjective: did the defendant intend to bring about imminent illegal conduct? The second was objective and predictive in nature: was imminent illegal conduct likely to occur as a result of the speaker’s advocacy of illegal conduct? If the answers were yes, then the speaker could be punished for the speech.
In a very real sense, this test demonstrates that the Supreme Court had learned over the years that government inevitably and quite naturally tends to over-predict danger.
Comments
As it turns out, the Brandenburg test is not universally applicable to many First Amendment issues beyond advocacy of illegal conduct. But it set the stage for what was to come in the remainder of the 20th century and beyond by emphasizing the importance of providing breathing space for free speech, particularly high-value political speech. It also reflected the Court’s suspicion of government motives when punishing speech.
The Brandenburg test can be understood as a kind of strict scrutiny test for speech because it places a very heavy burden of justification on government.
A Section 1983 Primer (3): Constitutional States of Mind
Introduction
Are there state of mind requirements for the section 1983 cause of action? The answer is NO as a statutory matter and YES as a constitutional matter.
The Background
Recall that the Supreme Court stated in Monroe v. Pape, 365 U.S. 167 (1961), that section 1983 is to be interpreted against “the background of tort liability.” What does that mean? One possibility is that there is some sort of state of mind requirement, stemming from section 1983 itself, for the 1983 cause of action. If so, is it negligence, deliberate indifference, intent or something else?
After some confusion in the circuits, the Supreme Court finally put the matter to rest in Parratt v. Taylor, 451 U.S. 527 (1981),when it declared as a statutory matter that there is no state of mind requirement for the section 1983 cause of action.
However, it turns out that there are state of mind requirements for the section 1983 cause of action that are based on the underlying constitutional claim.
Constitutional States of Mind, Variable and Otherwise
Simply put, different constitutional provisions have their own state of mind requirements. Thus, it has been the rule since Washington v. Davis, 426 U.S. 229 (1976), that equal protection violations require purposeful discrimination. There is therefore no such thing as a negligent or deliberately indifferent equal protection violation. Similarly, the Supreme Court declared in Daniels v. Williams, 474 U.S. 327 (1986), that due process violations require an abuse of government power, so that negligence is not sufficient. And Eighth Amendment violations require at least deliberate indifference, according to the Court in Farmer v. Brennan, 511 U.S. 825 (1994).
However, it is a bit more complicated than that: different states of mind may be required under the same constitutional provision where the circumstances are different. I call these variable state of mind requirements. For example, while the general rule in substantive due process cases is that deliberate indifference is required, in high speed police pursuit cases where police have little or no time to deliberate, the state of mind required, as ratcheted up by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833 (1998), is “purpose to cause harm.” Similarly, while the general rule in prison condition of confinement cases is that the Eighth Amendment requires deliberate indifference in the sense of subjective criminal recklessness, in prison security cases the state of mind required, as ratcheted up by the Supreme Court in Whitley v. Albers, 475 U.S. 312 (1986), is conduct engaged in “maliciously and sadistically for the very purpose of causing harm.”
Why Different Constitutional States of Mind?
At the most superficial level, the Court engaged in constitutional interpretation when it ruled that equal protection requires purposeful discrimination, that due process requires at least deliberate indifference and that the Eighth Amendment requires at least deliberate indifference in the sense of subjective criminal recklessness. In reality, there is considerably more going on.
First, these state of mind requirements are fault or culpability requirements. The particular constitutional provision implicated in a section 1983 case, which includes its state of mind requirement, constitutes the constitutional norm applicable to the defendant’s conduct. Without fault, there can be no section 1983 cause of action.
Second, these state of mind requirements can serve functions other than setting out the applicable fault or constitutional norm. Notice how the scope of section 1983 liability decreases the higher or more culpable the applicable state of mind requirement. Proving purpose to do harm in a high speed police pursuit case, for example, is much more difficult for plaintiffs than proving deliberate indifference. In this way, the need to compensate for harm caused is reduced .
Perhaps more important, higher state of mind requirements reduce what the Supreme Court increasingly views as the improper chilling effect of potential damages liability on independent decision-making by government officials. Put differently, the Supreme Court is increasingly concerned with over-deterrence.
While this concern with over-deterrence is most obvious in the individual immunities context, it plays a major role in determining applicable constitutional states of mind and is therefore frequently determinative of the scope of the section 1983 cause of action as well.
Freedom of Speech (2): Content, Medium and Forum
Introduction
The last post dealt with the three major rationales of freedom of speech. This one addresses the important factors to which attention must be paid in every free speech case: content, medium and forum.
Content
The threshold consideration in free speech cases typically revolves around the content (the WHAT) of what is communicated. It turns out that, despite the power of the marketplace of ideas rationale, there is a free speech hierarchy consisting of several tiers, each of which receives a different level of First Amendment protection. At the top of the hierarchy is political speech (recall the self-government rationale), followed closely by artistic and scientific expression. At the bottom is speech that is not protected at all: for example, fighting words, true threats and obscenity. Commercial speech is in the middle.
Medium
It is also important to be sensitive to the particular medium of communication (the HOW) involved in a free speech case. The traditional media of oral speech and writing are ordinarily accorded the maximum protection, all things being equal. In contrast, electronic media such as radio and television are sometimes accorded less than that. Significantly, to this point the Internet has been treated by the Court for the most part as if it were a traditional medium.
Consider also that different media have different physical characteristics that sometimes play a determinative role in First Amendment analysis. For example, a sound truck with blaring announcements that are difficult to ignore is quite different from a person handing out leaflets who can be ignored or otherwise avoided.
Forum
The last important factor in free speech cases is the forum (the WHERE) in which the communication takes place. Thus, different kinds of public property to which speakers desire access are accompanied by different levels of protection. Maximum First Amendment protection is given in traditional public forums such as streets and parks, as well as in voluntary public forums created by government. At the other extreme is public property having a special purpose incompatible with free speech access. A public library’s reading room is one example of the latter.
Conclusion
I realize that the above is quite general. Still, these three factors, which I have found helpful for law students in understanding the First Amendment, must always be taken into account in free speech cases.
This brief explanation of these factors may also be useful for non-lawyers.
Nahmod Law 