Posts Tagged ‘supreme-court’
An Updated Section 1983 Primer (5): Statutes of Limitation, Accrual and Tolling
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 fifth–and one of the most widely viewed–of these posts. I hope you find it to be informative.
Introduction
This is the fifth of my section 1983 primers. This post addresses the important, and threshold, question of statutes of limitations, accrual and tolling in section 1983 cases.
The Basics
Because section 1983 does not have its own statute of limitations, it is “deficient” within the meaning of 42 U.S.C. section 1988. Under the provisions of that statute, where federal law is deficient, federal courts are to apply the relevant law of the forum state, unless the relevant law of the forum state is inconsistent with federal law or policy or discriminates against federal claims.
As a consequence of section 1988, statutes of limitations issues arising in section 1983 cases constitute an unusual amalgam of federal and state law regarding the choice of the proper limitations period, accrual and tolling.
Choosing the proper limitations period
The leading case is Wilson v. Garcia, 471 U.S. 261 (1985), which held that the forum state’s personal injury statute of limitations governs. This means that there is no national uniformity.
If the forum state has more than one possibly applicable personal injury statute of limitations, then the state’s residual or general statute of limitations governs. Owens v. Okure, 488 U.S. 235 (1989).
Accrual
When a section 1983 claim accrues–when all of the elements of the claim are present–is a matter of federal law. The governing accrual rule for section 1983 is the medical malpractice discovery accrual rule, meaning that the statute of limitations for a section 1983 claim begins to run when the plaintiff knew or had reason to know of the injury. See United States v. Kubrick, 444 U.S. 111 (1979).
In the employment setting, it is the date of the challenged conduct, such as the alleged racial or sex discrimination, that begins the running of the applicable limitations period, not necessarily when the employee is no longer employed. Delaware State College v. Ricks, 449 U.S. 250 (1980).
There is a special, and quite complicated, accrual rule, set out in Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action. In such cases, the section 1983 claim does not accrue until the underlying conviction is overturned or vacated. See also the important 2007 decision in Wallace v. Kato, 549 U.S. 384 (2007), dealing with Heck, accrual and section 1983 false arrest/imprisonment claims.
More recently, in McDonough v. Smith, 139 S. Ct. 2149 (2019), the Supreme Court ruled that a section 1983 due process claim of fabrication of evidence claim resulting in criminal prosecution and trial accrues when the plaintiff is acquitted on all charges. And in 2022, the Supreme Court held that a plaintiff’s section 1983 Fourth Amendment malicious prosecution claim accrues when there is a favorable termination of the criminal charges against the plaintiff, even if that termination does not affirmatively demonstrate the plaintiff’s innocence. Thompson v. Clark, 142 S. Ct. 1332 (2022).
Tolling
In contrast to accrual, whether a section 1983 claim is tolled is a matter of state law. The Court so held in Board of Regents v. Tomanio, 446 U.S. 478 (1980), with respect to individual actions, and in Chardon v. Fumero Soto, 462 U.S. 650 (1983), with respect to class actions, a case that I argued in the Supreme Court on behalf of the victorious plaintiffs.
A state savings statute is a particular kind of tolling statute that stops the running of the applicable limitations period for claims timely filed but subsequently dismissed for improper venue, for want of jurisdiction or for other reasons not related to the merits.
Comment
There is so much about statutes of limitations that cannot even be hinted at here. For a comprehensive discussion of this technical subject, see NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 9 (2023-24 edition)(CIVLIBLIT on Westlaw).
Know Your Constitution (4)(Updated): Equal Protection
(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.)
This is the fourth in a series of posts about the Constitution that is intended for a general audience. Previous posts introduced the Constitution and then rebutted some commonly held myths about the Constitution.
Background
The equal protection clause of the Fourteenth Amendment prohibits states and local governments from denying persons the equal protection of the laws: similarly situated persons must be treated in the same way, which is a kind of justice principle. The equal protection clause also applies to the federal government through the Fifth Amendment‘s due process clause.
The equal protection clause was originally intended to protect newly freed blacks from being treated disadvantageously because of the their race. However, it is written in broader terms and covers discrimination against persons in general. But this does not mean that whenever government discriminates or classifies, it violates equal protection. Governments could not function if they could not draw lines or classify when they legislate.
The Four Equal Protection Tests
Over the years, the Supreme Court has developed four different tests that it uses, depending on the kind of government discrimination or classification involved.
Strict Scrutiny. When government discriminates or classifies on grounds of race or ethnic origin, the Court uses “strict scrutiny.” This means that in order for the challenged discrimination to be upheld, the government must overcome a heavy burden. It must show that the discrimination promotes a compelling government interest and is narrowly tailored to achieve that interest. Under this test, racial classifications that disadvantage racial minorities never pass strict scrutiny, while those that advantaged racial minorities and disadvantaged a racial majority (as in affirmative action) previously survived strict scrutiny, but after the Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 143 S. Ct. 2141 (2023), this is no longer the case for college admissions.
Intermediate Level Scrutiny. When government discriminates or classifies on the basis of sex or gender, the Court uses “intermediate level scrutiny.” This is not as burdensome on government as strict scrutiny but it does have “bite”: Here, the government must show that the discrimination promotes an important government interest and is substantially related to achieving that interest. In these cases, the Court is sensitive to the improper use of sexual stereotypes.
Rational Basis Review. When government discriminates or classifies in connection with economic regulation and business, then the Court uses “rational basis review.” This kind of equal protection review is very deferential to government. When applied, rational basis review almost invariably results in a determination that the government classification is constitutional.
Actual Purpose Review. This kind of review is a relatively recent arrival on the scene. The Supreme Court announced several decades ago that the equal protection clause prohibits government from discriminating against persons just because of who they are. The Court used this principle some years ago, in Romer v. Evans, to strike down a Colorado constitutional amendment that disadvantaged homosexuals: it found that the amendment was actually motivated by animus toward them.
Thus far, actual purpose review has been used sparingly by the Supreme Court. However, it played a role in Obergefell v. Hodges, 576 U.S. 644 (2015), the blockbuster same-sex marriage decision.
When Public Officials Post or Block on Social Media: The Supreme Court Weighs In on State Action
A variation of what I call the converse of the typical state action question arises when public officials post or block on social media. The Supreme Court recently addressed this issue in two cases in which it granted certiorari and vacated and remanded.
In one, Lindke v. Freed, 143 S. Ct. 1780 (2023), granting certiorari in Lindke v. Freed, 37 F.4th 1199 (6th Cir. 2022), vacating and remanding, 144 S. Ct. – (2024), the Question Presented was: “Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.”
In the other, O’Connor-Ratcliff v. Garnier, 143 S. Ct. 1779 (2023), granting certiorari in Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 405 Ed. Law Rep. 715 (9th Cir. 2022), vacating and remanding, 144 S. Ct. – (2024)(per curiam, the Question Presented was: “Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social-media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.”
In Lindke, the Sixth Circuit ruled that a city manager who used his Facebook page for administrative directives and for explaining his Covid-19 policies, but who also posted as a father and husband, was not a state actor when he deleted the plaintiff’s critical comments from his page and “blocked” him as well, thereby keeping the plaintiff from commenting on the page and its posts. The Sixth Circuit found that the city manager maintained the Facebook page in his personal capacity: under its “state-official” test, which it said was a version of the Supreme Court’s nexus test, the Facebook page did not derive from defendant’s duties as city manager—it did not belong to the office of city manager. Further, it did not depend on his state authority. The Sixth Circuit observed that its approach was different from that of some other circuits which focused on a page’s appearance or purpose: “we focus on the actor’s official duties and use of government resources or state employees.”
The Supreme Court, in a unanimous opinion by Justice Barrett, vacated in Lindke and remanded. Observing that in cases like this it is often difficult to tell whether speech is official or private, it emphasized that the plaintiff must show that the city manager (1) had actual authority to speak for the city and (2) purported to exercise that authority in the relevant posts. It is the source of the power that controls, and this must be ascertained on a case-by-case basis. In addition, the Court cautioned that a public official might post job-related information for personal reasons. “[I]t is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” After noting the difference between deleting and blocking, and warning about the dangers of “mixed use” social media accounts, the Court concluded: “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”
In O’Connor-Ratcliff, members of a school district’s board of trustees, who used social media to communicate with constituents and parents about public issues and board matters, blocked the plaintiff parents entirely from defendants’ social media pages because of the plaintiffs’ repeated criticisms of the trustees and the board. The Ninth Circuit ruled that they acted under color of law. It declared: “[A] state official violates the First Amendment by creating a publicly accessible social media page related to his or her official duties and then blocking certain members of the public from that page because of the nature of their comments.” There was a clear nexus between the trustees’ use of social media and their official positions. The Ninth Circuit observed that it was following the analysis of the Second, Fourth and Eighth Circuits in emphasizing the defendants’ use of social media as “an organ of official business.”
Again, the Supreme Court vacated and remanded. In a per curiam opinion, it explained that on remand the Ninth Circuit should apply the Court’s approach in Lindke: (1) did the trustees have actual authority to speak for the school district and (2) did they purport to exercise that authority in their posts.
Note that the Court in Lindke and O-Connor-Ratcliff did not itself apply its two-part approach to the cases before it, as it could (and perhaps should) have done to provide guidance to the circuits, but instead remanded. Note also that the Court indicated that the inquiry into actual authority should be based not only on formal statutory law but also on “custom” and “usage” per the color of law language of § 1983.
On state action, the converse of the typical state action question and color of law generally, see Ch. 2 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).
Schedule for 40th Annual Section 1983 Conference: April 18-19, 2024
Here is the schedule for the upcoming in-person Section 1983 Conference. We hope to see you there.
Any questions? Contact either CLE@kentlaw.iit.edu or snahmod@kentlaw.iit.edu.
Day One – April 18, 2024
| 8:45 – 9:00 AM | Welcome and Introduction |
| 9:00 – 10:15 AM | The Section 1983 Claim: Basics |
| Section 1983 and Fourteenth Amendment violations State action and color of law First Amendment retaliatory arrest claims The Second Amendment The Fifth Amendment and Miranda claims The Eighth Amendment Cause in fact and proximate cause “Laws” actions Heck v. Humphrey and existing convictions Due Process Section 1983 malicious prosecution claims A quick look at accrual | |
| Sheldon H. Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law (Program Chair) | |
| 10:15 – 10:30 AM | BREAK |
| 10:30 – 11:45 AM | Municipal Liability |
| Methods of Establishing Monell Liability What’s an Official Policy and Whose Policy is it? Municipal Liability Claims Post-Connick Municipal Liability Absent Individual Liability Impact of Qualified Immunity on Municipal Liability | |
| Karen M. Blum, Professor Emerita and Research Professor of Law,Suffolk University Law School | |
| 11:45 – 1:00 PM | LUNCH (on your own) |
| 1:00 – 2:00 PM | The Fourth Amendment |
| Raff Donelson, Associate Professor of Law, Chicago-Kent College of Law | |
| 2:00 – 3:15 PM | Substantive Due Process |
| Selective Incorporation of the Bill of Rights Protection of Non-Textual Rights from Laws That Interfere with Procreation and Parental Rights Section 1983 Substantive Due Process Claims Brought by Pretrial Detainees, Students, Landowners, and Government Employees | |
| Rosalie B. Levinson, Professor of Law Emerita, Valparaiso University School of Law | |
| 3:15 – 3:30 PM | BREAK |
| 3:30 – 4:45 PM | Attorney’s Fees and Related Ethical Issues |
| Issues in recently decided Supreme Court attorney’s fees cases (changes in law regarding nominal damages and impact on availability of fees; standards controlling awards to prevailing defendants; fees for modest injunctive relief without money damages; how reasonable fee is determined (lodestar) Ethics issues in §1983 cases (including Rule 68 issues, conflicts of interest, frivolous claims) Ethics Learning Objectives: 1) Duty of lawyer to represent unpopular clients and causes, even for little or no fee 2) Duty of lawyer to put client’s interest in seeking largest recovery above risk to attorney of reduction of court-awarded fees if merits result obtained is substantially less than outcome sought 3) The importance of a detailed written fee agreement in order to minimize ethics dilemmas in representing clients in civil rights cases | |
| Gerald M. Birnberg, Founding Partner, Williams, Birnberg & Andersen LLP | |
| 4:45 – 5:45 PM | RECEPTION |
Day Two – April 19, 2024
| 9:00 – 10:15 AM | Section 1983 Remedies: Damages and Prospective Relief |
| Section 1983 litigation has given rise to a number of interesting questions associated with remedies. In this session, we will discuss compensatory and punitive damages, as well as issues related to injunctive relief. | |
| Noah Smith-Drelich, Assistant Professor of Law, Chicago-Kent College of Law | |
| 10:15 – 10:30 AM | BREAK |
| 10:30 – 11:45 AM | Individual Immunities |
| A review of the current law and cutting-edge issues with regard to absolute and qualified immunity, including who possesses absolute immunity and for what tasks, what is the standard for qualified immunity, and what are the issues most frequently litigated with regard to immunities. | |
| Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law University of California Berkeley School of Law | |
| 11:45 – 1:00 PM | LUNCH (on your own) |
| 1:00 – 2:15 PM | The Religion Clauses and Section 1983 |
| History and purposes of the Religion Clauses The Establishment Clause:prayer, religious displays and financial support for private religious education The move to a “history and tradition” test in Establishment Clause cases: Kennedy v. Bremerton School Dist. The Free Exercise Clause: the all-important Smith (peyote) decision, the return to strict scrutiny, the Covid-19 cases and beyond, including Carson v. Makin Congressional response to Smith: RLUIPA | |
| Sheldon H. Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law (Program Chair) | |
| 2:15 – 3:30 PM | The Supreme Court’s Current and Forthcoming Terms |
| A review of the major decisions from October 2022 (including on affirmative action, religious accommodations in employment, and freedom of speech), and October Term 2023 (including on retaliation claims under the Fourth Amendment, freedom of speech, and gun regulation). | |
| Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law University of California Berkeley School of Law |
Know Your Constitution (2): Myths About the Constitution
(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.)
My preceding post, on the structure of our government, was the first in a series called “Know Your Constitution.” This series is intended to educate citizens, law students and attorneys about the Constitution and the Supreme Court with a minimum of legal jargon.
This post, the second in the series, addresses two commonly and erroneously held beliefs, or myths, about the Constitution.
The First Myth The Constitution is a sacred document or is at least divinely inspired.
Reality The Constitution was written by human beings (all men at the time) and is a product of Enlightenment thinking. The Constitution exemplifies the application of reason to self-government. The divine right of kings is emphatically rejected by the Constitution.
Notice that there is no reference whatever in the Constitution to a divine being. Religion is mentioned only in several places. One place is the First Amendment with its Establishment and Free Exercise Clauses. Another place is the prohibition against religious tests for political office. In other words, religion has its role, but that role is not in government.
Along these lines, to characterize the Constitution as deeply influenced by Judaism and/or Christianity, as many like to do, is simply incorrect historically. Traditional Judaism and Christianity had nothing to say about democracy. Also, many of the Framers were deists who believed that a divine being created the universe and nature with its “laws” but then bowed out of human affairs. In contrast, theists believe that a divine being revealed itself and remains concerned with, and involved in, human affairs.
However, it should be noted that a majority of the current Court approaches religion from a very different perspective and has reinvigorated the Free Exercise Clause at the expense of the Establishment Clause.
The Second Myth The Constitution, even if not divinely inspired, comes as close to being as perfect a document for self-government as is humanly possible.
Reality The Constitution is far from a perfect document.
The Framers were only human beings, although we are fortunate that they were very well educated, far-sighted and obsessed with forming a new kind of government that the world had never seen before. But they made mistakes. This is obvious if only because of the number of Constitutional Amendments that have been ratified—twenty-seven–including the Bill of Rights two years after the Constitution.
More seriously, the Constitution was almost fatally flawed from the beginning because of slavery. This word was never used in the Constitution—embarrassment, perhaps?–although there were three indirect references to it. I say “almost fatally flawed” because, as everyone knows, slavery led to the temporary breakup of the United States. It took an horrific Civil War and the Thirteenth, Fourteenth and Fifteenth Amendments to amend the Constitution and eliminate slavery once and for all. In a very real sense, the Civil War and these three Constitutional amendments finally brought the Constitution into line with the Declaration of Independence.
Next in the Series: Myths about the Supreme Court
Nahmod Law 