Prosecutorial Immunity Revisited: The Pottawattamie County Case (UPDATED)
Pottawattamie County Case in Supreme Court: Argued November 4, 2009
The Supreme Court heard argument in Pottawattamie County v. McGhee, 129 S. Ct. 2002 (2009)(granting certiorari), on November 4, 2009. What follows is a description of the important section 1983 prosecutorial immunity issues raised.
[Full disclosure: I consulted with defense counsel and my name appears on their merits brief in the Supreme Court].
IMPORTANT UPDATE: AFTER ORAL ARGUMENT THE PARTIES SETTLED THE CASE AND MOVED TO DISMISS THE PETITION FOR CERTIORARI. THE PETITION WAS DISMISSED PURSUANT TO RULE 46 ON JANUARY 4, 2010.
Doctrinal Background
The Supreme Court held some time ago in Imbler v. Pachtman , 424 U.S. 409 (1976), that prosecutors are absolutely immune from damages liability for their advocative conduct in connection with trials. This immunity was based on the common law immunity background in 1871 (when section 1983 was enacted) and the important policy consideration of promoting independent decision-making by prosecutors. The Court later elaborated on prosecutorial immunity doctrine in Buckley v. Fitzsimmons , 509 U.S. 259 (1993), where it held that such immunity does not extend to a prosecutor’s conduct that is investigative in nature and that precedes the existence of probable cause; such conduct is protected only by qualified immunity. In so ruling, the Court applied what has come to be known as the functional approach to immunities under which it is not the person who is protected by absolute or qualified immunity but rather the function performed.
The Pottawattamie County Case
In this case, prosecutors were accused of manufacturing evidence in a murder case in order to falsely arrest, prosecute, try and convict the plaintiffs. The evidence allegedly manufactured included providing a coerced witness with false information, with the result that the witness’s testimony was later used at trial to convict the plaintiffs who were consequently imprisoned for several decades. Their convictions were eventually overturned because they were not informed about a possible alternate suspect. Plaintiffs then sued the prosecutors for damages under section 1983, alleging that their due process (and not Fourth Amendment) rights were violated in connection with their arrest, prosecution, conviction and imprisonment. Read the rest of this entry »
Affirmative Action
Background
Affirmative action involving race is a hot button topic and there may consequently be some student reluctance to engage in meaningful discussion of the issues involved. So I begin class by pointing out the analytical distinction between constitutionality and wisdom. A statute, for example, may be constitutional but still unwise (or immoral). On the other hand, a statute may be unconstitutional but still wise (and moral). The point is that students should feel free either to critique or to agree with the Supreme Court’s current approach to affirmative action as a matter of constitutional interpretation.
Of course, this distinction often breaks down in practice in affirmative action cases inasmuch as strict scrutiny is applied. After all, aren’t the inquiries into whether there is a compelling government interest, and whether the means are narrowly tailored, based in large part on the Court’s view of the wisdom of the particular affirmative action plan in question? Nevertheless, I find the analytical distinction useful pedagogically.
What Affirmative Action Is/Is Not: Getting to “No”
I begin with a series of simple hypotheticals involving claims of racial discrimination arising out of unsuccessful applications for public employment, where various plaintiffs are victorious and the courts order that they be given the jobs they applied for. I ask students whether these are affirmative action cases, to which the short and correct answer is “no.” Rather, these are cases in which constitutional violations are found and judicially remedied. But it takes some time to get to “no.”
In contrast, true equal protection affirmative action cases are those in which a governmental entity voluntarily adopts a plan involving higher education, public employment and the like, under which certain members of a racial minority are given a benefit while certain members of a racial majority are denied that benefit. Read the rest of this entry »
A Section 1983 Primer (1): History, Purposes and Scope
This post is intended primarily for those lawyers, law students and members of the public who are not very familiar with 42 U.S.C. section 1983. It is the first in an introductory series on section 1983 that I will occasionally post.
History and Purposes
At the outset, observe the very close connection between section 1983 and the Fourteenth Amendment.
Section 1 of the Fourteenth Amendment to the Constitution of the United States, ratified in 1868, declares that states may not abridge the privileges or immunities of citizens of the United States and sets out the protections of due process and equal protection for “any person,” none of which states (and local governments) may deprive or deny. Section 5 of the Fourteenth Amendment gives Congress the power to enforce section 1 by appropriate legislation.
Section 1983 was enacted in 1871 by the 42nd Congress pursuant to its section 5 power in order to enforce the Fourteenth Amendment. It effectively creates a Fourteenth Amendment action for damages (and for injunctive relief) against “Every person,” acting under color of state or local law, who deprives a person of his or her Fourteenth Amendment rights and thereby causes damage. As it turns out in Supreme Court case law, “Every person” includes state and local government officials as well as local governments themselves (but not states). Read the rest of this entry »
Brown v. Board of Education
Introduction
Brown v. Board of Education, 347 U.S. 483 (1954), is one of the great constitutional law cases and perhaps the most important Supreme Court decision of the 20th century. I want to describe how I approach the case in class and what I hope students will learn.
History
Brown cannot be understood in isolation from what preceded it: the history of slavery, the Civil War, the 13th, 14th and 15th Amendments and Jim Crow in the South as exemplified by Plessy v. Ferguson, 166 U.S. 537 (1896). In Plessy, the Court, over Justice Harlan’s prescient dissent, had upheld separate but equal for railroad cars, with far-reaching implications for segregation generally.
Similarly, Brown cannot be understood apart from its own specific historical setting: victory over the racist Nazi regime in the Second World War, the rise of the Soviet Union, the integration of the American military, the urgent need for workers after the Second World War and important demographic changes.
Finally, there is an obvious moral dimension to Brown, although the Court did not expressly ground Brown on moral considerations.
In this connection, I raise the question in class whether the Court in Brown was leading the nation, whether it was following the nation or some combination thereof. I also disabuse my students of the notion that the Court as an institution was particularly heroic in Brown, since its own late 19th and 20th century decisions enabled and encouraged the South to continue the segregationist policies that the Court in Brown finally began to dismantle. Read the rest of this entry »
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 »
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