Posts Tagged ‘law’
An Updated Section 1983 Primer (4): Cause in Fact and the Mt. Healthy Burden-Shift Rule
In honor of the 40th Annual Conference on Section 1983, to be held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.
Below is the fourth of these posts. I hope you find it to be informative.
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.
This is the Mt. Healthy burden-shift that, if carried, means that the defendant is not liable on the merits: no constitutional violation, no damages and no attorney’s fees. It is a powerful affirmative defense.
The Scope of the Mt. Healthy Burden-Shift Rule
The Mt. Healthy burden-shift applies in mixed-motive cases. It is inapplicable where the plaintiff proves by a preponderance of the evidence that the impermissible motive was the sole cause for the discharge.
Significantly, it is also inapplicable in after-acquired evidence cases. Suppose, for example, that in the course of section 1983 litigation involving allegations of unconstitutional discharge, the defendant discovers that the plaintiff lied on his or her employment application and can demonstrate that the plaintiff would therefore not have been hired in the first place. This is not a Mt. Healthy burden-shift case because it is not a mixed-motive case. The defendant’s liability for the constitutional deprivation is unaffected.
This is not to say, though, that the defendant’s after-acquired evidence is irrelevant: it goes to the extent of recoverable damages. The defendant is liable for the damages–lost pay, for example–resulting from the unconstitutional discharge up to the date of discovery of this evidence but not for any such damages thereafter. The Supreme Court made this clear in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995).
Comment
Note that the generally applicable cause in fact rule in section 1983 cases and most other civil rights cases remains the but-for rule. The Supreme Court made this clear in Comcast Corp. v. National Ass’n of African American-Ownded Media, 139 S. Ct. 2693 (2020), a section 1981 case.
See generally on cause in fact, sections 3:110-3:114 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).
Cert Alert in Chiaverini v. City of Napoleon: Section 1983 Fourth Amendment Malicious Prosecution Claims and the “Any-Crime” Rule
Suppose a § 1983 plaintiff asserts a Fourth Amendment malicious prosecution claim for damages against law enforcement officers. We know from Manuel v. City of Joliet, 580 U.S. 357 (2017), and Thompson v. Clark, 142 S. Ct. 1332 (2022), that such a claim may be viable where the plaintiff alleges a seizure, the absence of probable cause, malice (presumed by the absence of probable cause) and favorable termination. See generally on § 1983 Fourth Amendment malicious prosecution, §§ 3:63-3:67 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 Ed.)(West/Westlaw))
The Issue in Chiaverini
Suppose now that our §1983 plaintiff was arrested and prosecuted on three criminal charges and that there was a favorable termination of those three charges by way of dismissal. However, it turns out that there was probable cause to arrest and prosecute on two of those charges but not the third. Can the § 1983 Fourth Amendment claim go forward on the third charge? Or is that claim barred because of the presence of probable cause for the other two charges?
In Chiaverini v. City of Napoleon, No. 21-3996 (6th Cir. Jan. 11, 2023), cert granted, S. Ct. Docket No. 23-50 (Dec. 13, 2023), the Supreme Court will address this issue in connection with the following Question Presented:
”To make out a Fourth Amendment malicious prosecution claim under 42 U.S.C. § 1983, a plaintiff must show that legal process was instituted without probable cause. Thompson v. Clark, 142 S. Ct. 1332, 1338 (2022). Under the charge-specific rule, a malicious prosecution claim can proceed as to a baseless criminal charge, even if other charges brought alongside the baseless charge are supported by probable cause. Under the “any-crime” rule, probable cause for even one charge defeats a plaintiff’s malicious prosecution claims as to every other charge, including those lacking probable cause.
The question presented is: Whether Fourth Amendment malicious prosecution claims are governed by the charge-specific rule, as the Second, Third, and Eleventh circuits hold, or by the “any- crime” rule, as the Sixth Circuit holds.”
In Chiaverini, the Sixth Circuit had ruled, based on its circuit precedent supporting the “any-crime” rule, that because probable cause existed to support the plaintiff’s detention and prosecution on two of the criminal charges, receiving stolen property and a license violation (both misdemeanors), the allegedly meritless charge for which probable cause did not exist, money laundering (a felony), did not change the nature of the seizure. For this reason, the Sixth Circuit concluded, the plaintiff’s Fourth Amendment malicious prosecution claim based on the money laundering charge could not go forward.
The Circuit Split
As noted, this issue has divided the circuits, which is likely the reason the Court granted certiorari. The Second Circuit previously held that the “charge-specific” rule should apply, Posr v. Doherty, 944 F.2d 91 (2nd Cir. 1991), as did the Third Circuit in Johnson v. Knorr, 477 F.3d 75 (3rd Cir. 2007) and the Eleventh Circuit in Williams v. Aguirre, 965 F.3d 1147 (11th Cir. 2020). Under this charge-specific approach, a § 1983 Fourth Amendment malicious prosecution can go forward on a baseless criminal charge even though there was probable cause to support other criminal charges brought alongside the baseless criminal charge.
Comments
One question–the background of tort liability question–is what the common law of malicious prosecution was in 1871, when § 1983 was enacted. According to the Eleventh Circuit in Williams, 965 F.3d at 1162, and as set out in the Petition for Certiorari, “Centuries of common-law doctrine urge a charge-specific approach, and bedrock Fourth Amendment principles support applying that approach.” In reaching this conclusion, the Eleventh Circuit relied on nineteen-century treatises, American cases and British cases. This consideration will play a role, perhaps major, in the Court’s ultimate resolution of the case.
A second question is one of policy. The Petitioners maintain that under the “any-crime” rule a police officer can protect himself or herself from a § 1983 Fourth Amendment malicious prosecution claim simply by adding a relatively minor criminal charge for which there was probable cause to a serious criminal charge for there was no probable cause. They therefore argue that the “any crime” rule would undermine police officer accountability.
Third, one might point out that every such § 1983 Fourth Amendment malicious prosecution claim, even brought in the same case with others, raises a separate constitutional violation issue which must be analyzed independently of the others. Along similar lines, every such claim is subject to a separate qualified immunity inquiry into clearly settled law.
Finally, observe that if the Court adopts the “charge-specific” rule and rejects the “any-crime” rule, the plaintiff in a § 1983 Fourth Amendment malicious prosecution case involving more than one criminal charge has the burden of pleading and proving that the baseless charge was the cause in fact and proximate cause of particular damages, and those damages must be separate and distinct from the damages resulting from the criminal charge or charges based on probable cause. In some situations this may prove to be complicated. On the other hand, there is much § 1983 litigation brought involving different constitutional violations alleged in the same cases: sorting out the damages connected to each of the claims has not proved to be insurmountable for judges and juries.
My prediction is that the Court will adopt the “charge-specific” rule, which is the better one.
Know Your Constitution (3): Myths About the Supreme Court
(Author’s note. Over ten years ago I published a series of posts on different constitutional topics entitled “Know Your Constitution.” I believe that this series, intended for the general public, law students and attorneys, merits re-publishing in these perilous and divisive times when constitutional norms are being challenged at every level. So that’s what I’m doing, one post at a time, with revisions and updates where appropriate.)
I recently blogged regarding two myths about the Constitution. That post was the second in my series, “Know Your Constitution,” which is intended for a general audience.
This is the third in the series and it addresses three myths about the Supreme Court with a minimum of legal jargon.
The First Myth. The Supreme Court’s primary function is to do justice.
Reality. The Supreme Court’s primary function is to interpret the Constitution and federal statutes. These interpretations become the supreme law of the land. The Court’s function is not necessarily to do justice in individual cases.
Of course, there are times when interpretations of particular constitutional provisions are considered by many to be just. For example, the equal protection clause of the Fourteenth Amendment, which prohibits racial and other kinds of discrimination by government, is considered to be a just constitutional provision because it is based on the concept of equality.
Another example is the due process clause and its application in criminal cases. Due process has been interpreted to include concepts of justice and fairness so as to protect the rights of criminal defendants to an unbiased court, to confrontation and cross-examination, to be free from self-incrimination, to an attorney, and so on.
What is most important to remember, though, is that Supreme Court decisions are not necessarily just or moral. A Supreme Court decision can uphold an unjust federal or state law as constitutional. For example, the Court in Plessy v. Ferguson unfortunately upheld separate but equal in the racial setting at the end of the 19th century. It thereby perpetuated Jim Crow laws until Brown v. Board of Education was handed down in 1954.
On the other hand, a Supreme Court decision can rule that a wise and just federal or state law is unconstitutional. For example, the Supreme Court struck down the Violence Against Women Act in United States v. Morrison at the beginning of this century.
The Second Myth. The Supreme Court is a political body like Congress and the President.
Reality. The Supreme Court is the only branch of the national government that is not directly politically accountable to the electorate. The justices have lifetime tenure once appointed in order to insulate them from political pressure. To demonstrate how important judicial independence is, consider that the Court’s rulings are typically complied with on a voluntary basis by those affected. Al Gore’s concession to George Bush after the Court’s ruling in Bush v. Gore is an excellent example of such voluntary compliance.
On the other hand, the justices are human beings who cannot help but be influenced by their upbringing and by contemporary political and social values. Consider, for example, the infamous Dred Scott and Plessy v. Ferguson decisions, where the justices could not distance themselves from their support for white supremacy.
Still, because the justices are not directly answerable to the electorate, it is an important part of their judicial function to avoid applying their personal values, to the extent possible, when they interpret the constitution.
The Third Myth. The Supreme Court simply makes up most of its constitutional decisions.
Reality. It’s much more complicated than that. Some constitutional provisions are very easy to apply because they are very specific. For example, the President must be a natural born citizen, over thirty-five years old and a resident of the United States for fourteen years.
Similarly, it is clear from the text of the Constitution that it is Congress that has legislative powers, it is the President who has executive powers and it is the Supreme Court that has judicial powers. There are many such examples.
In contrast, other provisions of the Constitution, because they are less clear inherently, necessarily require a fair amount of interpretation. What do freedom of speech, freedom of the press, freedom of religion, mean anyway? Does the Fourth Amendment prohibiting unreasonable searches and seizures apply to electronic surveillance, to the internet? The text of the Constitution and the history of these provisions often provide no clear answers; obviously the Framers never thought of media such as radio and television, or about electronic surveillance and the internet.
So what does the Court do? Until recently, the short answer was that the Court typically proceeded cautiously and developed the meaning of these and similar textual provisions on a case by case basis. Typically the justices would focus on the values implicit in the constitutional provision they were interpreting. They then asked whether and how to apply those values in the new situation confronting them.
However, a majority of the current Supreme Court has now adopted an approach called “originalism” that focuses on the history and tradition of the particular constitutional provision of concern. The Court has applied this approach (which really has varying meanings) to the Establishment Clause, the Second Amendment and the Due Process Clause (in overruling Roe v. Wade).
Both the earlier approach and the current “originalism” approach constitute what some call judicial restraint, and what others call judicial activism.
It must be acknowledged that both approaches give the justices as individuals, and the Supreme Court as an institution, a good deal of interpretive latitude on difficult constitutional interpretation questions. And it must also be admitted that this often generates a great deal of controversy, often of a politically partisan nature.
However, controversy is one of the inevitable costs of being a citizen in a democracy with a Supreme Court that interprets the Constitution. And it is a cost I’m willing to acknowledge and bear, even when I believe firmly that the Court has gotten it wrong.
Nahmod Law 