My Position on Supervisory Liability after Iqbal
Coming Full Circle
My very first post–on August 19–involved the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and its implications for supervisory liability under section 1983. I have since worked through the relevant issues and conclude that the Court got supervisory liability right, even though its reasoning was seriously deficient.
What follows is an abstract of an article setting out my position that will be published in March 2010 in an Iqbal symposium issue of Lewis & Clark Law Review. The entire article is currently available for downloading on the Legal Research Network of SSRN and also on this link: http://works.bepress.com/sheldon_nahmod/
The Dormant Commerce Clause
Background
Dormant Commerce Clause issues arise out of Congressional silence about the particular subject matter being regulated by the state to the possible detriment of interstate commerce. Since the Commerce Clause confers power only on Congress to regulate interstate commerce, one wonders why there should even be a so-called “dormant” Commerce Clause enforceable by the judiciary.
There are two extreme positions possible as to the Court’s role. At one extreme, the Court could stay out of it altogether and leave it to Congress to regulate in the area and possibly preempt. A disadvantage of this position is that Congress may never get around to many state statutes that adversely affect interstate commerce. At the other extreme, the Court could keep the playing field clear for future Congressional regulation by striking down every state statute this is shown to adversely affect interstate commerce, regardless of its merits, on the theory that Congressional power over interstate commerce is exclusive. A disadvantage of this position is that it may amount to federal judicial interference with a state’s legitimate health and safety concerns as well as undermine state experimentation, an important function of federalism.
As it turns out, the Court has staked out a middle position: it reviews challenged state statutes under the dormant Commerce Clause, upholding some and overturning others. This directly raises the question of the justifications for judicial intervention and the related question of what the standards of dormant Commerce Clause review should be. Thus, the dormant Commerce Clause provides an excellent opportunity for the teacher to review the purposes of the Commerce Clause and related federalism concerns, and to introduce in a preliminary way the Equal Protection Clause and its various levels of scrutiny, ranging from strict scrutiny to rational basis review. Read the rest of this entry »
Precluding Section 1983 Constitutional Claims: Fitzgerald v. Barnstable School Comm.
Background
It may surprise some readers to learn that there can be cases in which a federal statute is found to preclude § 1983 constitutional claims. This kind of case is different from those cases in which the issue is whether the violation of a federal statute is actionable under § 1983 as a “laws” claim. But one thing these two kinds of cases have in common is that express Congressional intent is dispositive. However–and this unfortunately is often the case–where Congress has not expressly stated its intent, it is left to the courts to discern from Congressional silence whether, in the one case, Congress intended to preclude § 1983 constitutional claims and, in the other case, whether Congress intended to allow a § 1983 “laws” claim for the violation of a particular federal statute.
A major Supreme Court decision addressing preclusion of § 1983 constitutional claims is Smith v. Robinson, 468 U.S. 992 (1984), which held that Congress, when it enacted the Education of the Handicapped Act (EHA), intended to preclude § 1983 equal protection claims identical to statutory EHA claims. Congress responded to Smith in 1986 by amending the EHA to provide explicitly that parallel equal protection and other constitutional claims are not precluded by the EHA. In contrast to Smith, the Supreme Court in Fitzgerald v. Barnstable School Comm., 129 S. Ct. 788 (2009), addressed a similar preclusion issue in connection with the effect of Title IX on § 1983 equal protection claims, but it ruled against preclusion. [Note that Fitzgerald is the last of the five major 2008 Term Supreme Court § 1983 cases that I have blogged about]
The Commerce Clause
Teaching the Commerce Clause presents challenges and opportunities. What follows are some of them.
Challenges: The Long and Winding Road
What confronts students immediately are the complicated history and changing doctrines of the Commerce Clause in the Supreme Court. One starts off with Gibbons v. Ogden, the seminal decision in this area, in which John Marshall set out a very broad reading of the commerce power: first, it is defined generously as that commerce that concerns more states than one and, second, it is declared plenary in nature. An important assumption underlying Gibbons was that it is the political process that enforces federalism. After that, however, in the late 19th and early 20th centuries, the Court increasingly began to enforce federalism on its own, on the formalist assumption that there are areas of local concern (such as manufacturing, production, the employment relationship and the like) that are immune from commerce power regulation.
Then came the middle 1930’s, during which the Court switched gears dramatically and adopted what might be called a realist approach to the commerce power. Under this approach, the Court looked at what was actually going on in the economy. The Jones & Laughlin, Wickard and Heart of Atlanta/McClung cases are excellent examples of cases in which the Court upheld the regulation of intrastate activities on the ground that those activities had a significant effect on interstate commerce. In a very real sense, there was a return to Gibbons. Read the rest of this entry »
Qualified Immunity “Order of Battle” Modified
In Pearson v. Callahan, 129 S. Ct. 808 (2009), the Supreme Court modified its earlier approach to the order in which the two parts of the qualified immunity test are to be addressed by district courts.
Background
The qualified immunity test currently has two parts. The first part focuses on whether the plaintiff states a cause of action. The second part focuses on whether, at the time of the allegedly unconstitutional conduct, the defendant violated clearly established law. About a decade ago the Court instructed that the inquiry into whether the section 1983 plaintiff states a cause of action must always be made before the inquiry into whether the defendant violated clearly settled law (a mandatory “order of battle” ). The primary rationale of this mandatory approach was to promote the development of clearly established constitutional law. However, a major downside–one that bothered many district courts–was the elimination of any flexibility to avoid difficult constitutional issues by ruling in favor of the defendant on the ground that the defendant did not violate clearly established law. Recently, however, several Justices, including Justices Breyer and Scalia, began to express doubts about this mandatory order of battle.
The Decision
The Supreme Court finally resolved the matter in Pearson and held that the order of battle procedure was no longer to be regarded as an inflexible requirement. Pearson was a Tenth Circuit case involving an alleged violation of the Fourth Amendment and “consent once removed.” In this case, where the defendant police officers conducted a raid in March 2002 on the plaintiff’s home without a warrant on the basis of a confidential informant’s invitation to the defendants to enter, the Tenth Circuit found that they had violated the Fourth Amendment and were not entitled to qualified immunity. The court reasoned that the Supreme Court and its circuit had clearly established that there were only two exceptions to the warrant requirement for entry into a home, consent and exigent circumstances, neither of which was present here. On review, the Supreme Court asked the parties to argue the question of whether the mandatory “order of battle” should be modified. Read the rest of this entry »
Rethinking Section 1983 Malicious Prosecution
I suggest that malicious prosecution elements and terminology should have little or no place in the analysis of the section 1983 prima facie case. Instead, the primary focus should be on the relevant constitutional violation alleged by a plaintiff.
[Full disclosure: I recently but unsuccessfully made this kind of argument for the defense in Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008), cert denied, 129 S. Ct. 1526 (2009). But I argued long ago–in a 1970’s Indiana Law Journal article and in the second edition of my section 1983 treatise, published in the mid 80’s–that such tort concepts do not belong in the prima facie case analysis.]
The Prima Facie Case, Federal Law and State Law
Over the years the Supreme Court has clarified much of the section 1983 jurisprudence related to the prima facie case. We know of the primacy of the constitutional violation inquiry, the role of causation, the compensatory and punitive damages rules and who is a suable person under section 1983. We also know that by virtue of 42 U.S.C. section 1988 and 28 U.S.C. section 1738, section 1983 borrows extensively from state law with regard to statutes of limitations, wrongful death, survival and preclusion. However, there remains a particularly muddled area of section 1983 jurisprudence that has long cried out for rethinking: section 1983 malicious prosecution claims. Remarkably, such claims in the circuits are governed extensively by tort law, not primarily constitutional law, even though tort law should not determine the scope of section 1983 claims. Section 1983 is, after all, a statute that creates a Fourteenth Amendment action for damages, and constitutional law, not tort law, should be primary. At best, tort law should be used only to fill in statutory gaps. Read the rest of this entry »
Haywood v. Drown: Close Call for the Supremacy Clause?
The Supreme Court’s 2009 decision in Haywood v. Drown was a surprisingly close decision that pitted the Supremacy Clause against federalism, with the former barely winning.
The Decision
Haywood v. Drown, 129 S. Ct. 2108 (2009), dealt with a New York statute that provided that New York courts did not have jurisdiction to hear any claims for damages against correctional officials sued in their personal capacities for acts committed within the scope of their employment, while allowing the State to be sued under state law in its Court of Claims for such claims. The Court of Appeals of New York had ruled that New York courts lacked jurisdiction to hear the plaintiff inmate’s two § 1983 complaints seeking damages against correctional officers. This did not violate the Supremacy Clause because the relevant New York statute did not discriminate against federal causes of action but covered all such claims, whether based on state or federal law. This provision was “neutral” for Supremacy Clause purposes, according to the Court of Appeals: “New York courts necessarily adjudicate only state claims brought against the state and federal courts adjudicate only federal causes of action brought against individuals.” Read the rest of this entry »
McCulloch v. Maryland: Exegesis and Constitutional Education
There are two major parts of McCulloch v. Maryland, 17 U.S. 316 (1819): Part I upholds the constitutionality of the federal legislation creating the National Bank, while Part II strikes down (based on structure and representation reinforcement, but without express textual support) the Maryland tax on the National Bank. In this post I want to say a few things about Part I in particular.
Marshall first sets out the history of the National Bank and then argues that general reasoning (from the nature and structure of government) supports the constitutionality of the federal legislation. He next goes on to argue that the Necessary and Proper Clause further supports this conclusion. Read the rest of this entry »
Marbury v. Madison: Some Additional Lessons
Teaching Marbury v. Madison
As those of us who teach constitutional law know very well, there are some conventional lessons to be learned from Marbury v. Madison, 5 U.S. 137 (1803). Among them are the following four.
First: the order in which Marshall analyzed the relevant issues so as to declare the Court’s power of judicial review against the President and Congress, while at the same time avoiding a clash with President Jefferson by ultimately holding that the Court did not have subject matter jurisdiction.
Second: the way in which Marshall could have avoided the power of judicial review issue altogether by holding that physical delivery of Marbury’s commission was required for the appointment to have any legal effect. He could have avoided the issue in another way: by plausibly interpreting the Judiciary Act of 1789 as conferring only appellate mandamus jurisdiction on the Supreme Court. He obviously did not want to do either. Read the rest of this entry »
Van De Kamp and the Shift in Prosecutorial Immunity
The Decision
In 2009, the Court handed down Van De Kamp v. Goldstein, 129 S. Ct. 855 (2009), a significant decision that expanded the scope of prosecutorial immunity to cover supervisory prosecutors in certain circumstances.
Van De Kamp dealt with the applicability of prosecutorial immunity to a former district attorney and a former deputy district attorney who were sued for allegedly failing to develop policies and procedures, and failing to adequately train and supervise their subordinates, as to their constitutional obligation under Brady v. Maryland and Giglio v. United States to ensure that information on jailhouse informants was shared among prosecutors. The plaintiff, after imprisonment for twenty-four years for murder, succeeded in obtaining habeas corpus relief and was released. Thereafter, he claimed that a jailhouse informant testified falsely at his murder trial regarding (1) the plaintiff’s supposed confession to the murder and (2) the informant’s not having received benefits in exchange for his testimony against plaintiff. He further alleged that the fact that this witness was an informant who received benefits in exchange for his testimony was never shared with the deputy district attorneys prosecuting the plaintiff. The Ninth Circuit ruled that the challenged conduct was administrative in nature and not intimately associated with the judicial phase of the criminal process. Rather, it was related only to the management of the district attorney’s office. Hence, it was not protected by prosecutorial immunity. Read the rest of this entry »
Nahmod Law 