Entries categorized "42 U.S.C. Section 1983 (Immunities)"

Land Use and Legislative Immunity

Thornton v. City of St. Helens, slip op. at 12454, has an interesting discussion of legislative immunity:

Baker and Little are not entitled to legislative immunity. Baker is the city manager and Little is the city planner. Their jobs are administrative in nature and they were sued for performing an administrative act. Specifically, the Thorntons' amended complaint named Baker and Little as the persons "responsible for processing the annual renewal application[ s]."  Processing an individual application pursuant to an established policy is not a legislative function. See Haskell v. Washington Township, 864 F.2d 1266, 1278 (6th Cir. 1988); Scott v. Greenville County, 716 F.2d 1409, 1423 (4th Cir. 1983). Because Baker and Little are not legislators and were not sued for performing a legislative act, legislative immunity does not shield them from suit. See Chappell v. Robbins, 73 F.3d 918, 920-21 (9th Cir. 1996). The district court erred in concluding otherwise.

The rest of the case is depressing.  Each year the city would delay issuing the scrap yard owner's a salvage license, which caused it to shut down for weeks or months each year.  The plaintiffs ultimately lose their procedural due process claim, though on issue preclusion grounds (they had filed an earlier state court action, though under a different theory).  And the opinion is tortured.  (Few judges or lawyers understand land use cases, which in my opinion, are the most complicated type of Section 1983 cases to maintain.)  So don't read it unless you study or practice in this area - unless you want a headache, or a sleeping pill.


Bozeman v. Orum

Some times the bad guys do lose, even in this world of qualified immunity. The case of Bozeman v. Orum, 2005 WL 2088362 (11th Cir., 2005) illustrates why.

Seventeen year old Mario Haggard died while in custody at the Montgomery County Detention Facility in Alabama, an apparent victim of the sort of "jailhouse justice" often hidden from public scrutiny. His estate sued his jailers, claiming unreasonable force and deliberate indifference to his medical needs.

This was not a Fourth Amendment claim. The Circuits struggle with what standard to apply to an incarcerated person who is victimized by jailers. A sentenced inmate can bring an Eighth Amendment claim contending cruel and unusual pubishment. In the Eleventh Circuit, a pretrial detainee, such as Mr. Haggard, must bring a due process claim. This later claim is governed by Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973). Was the guard's use of force "applied in [a] good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm?"

It has never been obvious to me why pretrial detainees, cloaked as they are in the presumption of innocence, are required to make out such a high standard when they are abused by guards. Assault a man on the street, who has, let's say, made bond, and a more liberal Fourth Amendment standard of objective reasonableness applies. Why do we throw those presumed innocent to the wolves?

In any case, Haggard went berzerk one night. He flooded his cell, refused to comply with officers trying to subdue him, spat toilet water at guards and sang out such prayers of despair as "Jesus I am coming to see you." After a tense standoff, guards moved in to take control.

Before the guards went in, one was overheard by a prisoner to threaten Haggard with an "ass" kicking. Haggard was told he'd be in for a "rude awakening" if guards had to enter the cell. Once the officers subdued him he was held face down while one guard pushed his face into a mattress. And, Haggard was overheard to have given up, to which a guard responded: "Oh, we don't think you've had enough." Haggard died of asphyxia.

The defendants moved for summary judgment, and when it was denied, filed an interlocutory appeal. They were brazen, or is it foolish?, enough to ask for qualified immunity.

The cirucit agreed that the facts here were sufficient to support an inference of malice or sadism. The court then held what should have been obvious by now: Malicious and sadistic use of force against prisoners is against clearly established law -- even in Alabama.

The court also concluded that when the guards dragged the apparently lifeless body of Haggard from his cell and waited 14 minutes to call for medical help they were deliberately indifferent to Haggard's serious medical needs. Again, not even a close call.

Read the case carefully to discern what careful discovery made possible the withstanding of summary judgment. Without the statements from prisoner witnesses, the case would undoubtedly have been dismissed as the officers would contend that they saw, heard and did no evil.


Beating Up Litigant is Not a Judicial Act

On Wednesday a California appellate court held that beating up a litigant was not a judicial act, and thus, the judge (actually, an attorney appointed to act as a discovery referee) who allegedly beat up the litigant was not entitled to absolute immunity from suit.  Regan v. Price.  The money quote:

A judge’s robe is not a king’s crown. The object of judicial immunity is to ensure that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of civil liability.  It was never intended to protect acts of thuggery against litigants merely because the assailant happens to be a judge.

Slip op. at 12 (citation omitted).  Mike McKee of The Recorder provides excellent coverage of the story here.


Prosecutorial Immunity and the "Functional Approach"

One of the most challenging aspects of dealing with absolute immunity is answering this question: What's the function?  For example, prosecutorial immunity does not apply to all prosecutorial conduct.  Rather, the reviewing court looks to "the nature of the function performed, not the identity of the actor who performed it."  Forrester v. White.  In Imbler v. Pachtman, the Court noted the significant difference between "those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate [ ]."  In practice, courts really mean is Ms. Prosecutor is participating in the investigative phase of the proceeding. 

This is called the "functional test" to immunities.  And like all common law rules, it seems simple enough.  But things get hazy. 

Determing when someone is an "administrator" is pretty easy.  Hiring and firing decisions, for example, easily fit the definition of "administrative" ("of or relating to administration or an administration.")   Forrester v. White

But what about giving legal advice to police officers?  That's not advocative, since one isn't an advocate until, by definition, there's an adversarial proceeding.  Is it administraive?

What about testifying as a complaining witness?  Kalina v. Fletcher.  That's not administrative, but it's also not investigative.  A witness doesn't investigate crimes, but rather, provides relevant information.

I think the better approach is to not look at the supposed function performed, but instead, to look at the phase of the proceeding.  If charges haven't been filed, or if there is not yet probable cause to charge, then the case is in its investigative phase.  Under this view, every act understand before probable cause has been establishment would be protected by qualified, not absolute, immunity.


Right to Not be Arrested for Onlooking Clearly Established

The irony would be comical if Pine Bluff, Arkansas police officer Terry Grace didn't seem to be borderline threatening a black man with a lynching.  Walker v. City of Pine Bluff, No. 04-1969 (8th Cir. July 21, 2005).

When John W. Walker, an African-American civil rights attorney, stopped to watch a traffic stop of young black men being conducted by white Pine Bluff police officers, Officer Terry Grace arrested Walker for obstructing governmental operations in violation of section 5-54-102(a)(1) of the Arkansas Code.

***

Walker testified that he was driving his van through Pine Bluff, accompanied by his daughter and two grandchildren, when he saw two white police officers standing with two young black men near a car in a driveway. Walker parked his van behind one police car and walked across the street to observe the encounter. Walker stood with his arms folded some forty to fifty feet from the conversation between the police and the young men. Walker could not hear what was being said, nor did he speak to anyone. One officer, Grace’s back-up, Stephanie Sheets, approached Walker and asked if she could help him. Walker said no. Sheets asked what he was doing. Walker responded with a smile that he was watching “Pine Bluff’s finest in action.” Sheets went back and appeared to say something to the other officer, Grace, who broke off his conversation with the young men and came over to ask Walker what he was doing. Walker repeated that he was watching “Pine Bluff’s finest in action.” Grace stepped away, appeared to say something to Sheets, and then returned and asked Walker who he was. Walker asked if he had committed a crime. Grace asked again who he was. Walker identified himself as a lawyer and carefully got out his driver’s license and offered it to Grace. Grace instead handcuffed Walker, picked up Walker’s license which had fallen to the ground, and put Walker in the back of Grace’s hot police car for some twenty minutes.

Slip op. at 1-3.  Now, here's where it gets scary: 

Grace drove Walker at varying speeds over dark wooded roads to the police station, looking at Walker’s license for the first time during the drive while Walker’s daughter tried to follow in his van.

Id. at 3 (emphasis added).  I wonder what Terry Grace of Pine Bluff, Arkansas was trying to communicate to Mr. Walker?  Something tells me Mr. Grace was not reciting Dr. King's "I Have a Dream" speech.  Anyhow, Walker sued, and the Eighth Circuit held that you can't arrest someone for "silently watching the encounter from across the street with his arms folded in a disapproving manner," id. at 4, since "public officials have no general privilege to avoid publicity and embarrassment by preventing public scrutiny of their actions."

UPDATE:  I'm reading the briefs.  I am very impressed with Mr. Walker's attorneys.  If I am ever in trouble in Arkansas, I would call these guys.  That sounds condescending, as if I'm only saying they're good enough for Arkansas.  No.  Judging by the brief and oral argument, I say they are excellent lawyers - among the best in any jurisdiction.  Anyhow, they are: Ted Boswell and John Andrew Ellis of The Boswell Law Firm.


Notice, Deliberate Indifference, and Supervisory Liability

Davis v. City of North Richland Hills, No. 04-10036 (5th Cir. Apr. 11, 2005) (via AL&P) is a significant section 1983 decision.  If the Court does not grant certiorari and reverse, Richland Hills will spell the end of supervisory liability in the Fifth Circuit.

While executing a no-knock warrant, Allen Hill shot Troy Davis within two seconds of entering Mr. Davis' home.  According the Davis' Estate, which brought a section 1983 action against Hill and his supervisors, Mr. Davis was unarmed and standing with this arms out, indicating that he would willingly surrender. 

The suit alleged that Allen Hill's supervisors were on notice that he was a violent and degenerate man who should never have been trusted to execute a no-knock warrant.  In allowing Hill to execute a warrant that would require discretion and care, the Hill's supervisors were deliberately indifferent to the rights of Mr. Hill.

The uncontradicted evidence regarding Allen Hill's conduct included:

(1) testimony [regarding SWAT team training exercises] from Ann Shelton, a former NRHPD SWAT team member, indicating that Shockley and Wallace knew or should have known that Hill was likely to fire his weapon inappropriately or illegally;
(2) Shelton’s testimony that prior to the shooting of Troy Davis, when Hill intentionally exposed himself during the snapping of a team photograph at SWAT training exercise . . . Shockley and Wallace failed to take adequate disciplinary action against Hill . . .;
(3) evidence that Hill frequently exposed himself to other members of the NRHPD and, as a result, had acquired the nickname “Penie”;
(4) evidence in Hill’s background investigation showing Hill had a propensity for violence; [and]
(5) testimony that Shockley and Wallace failed to take any action after receiving a complaint from Randy Cole, a citizen who had been pulled over by Hill for a traffic violation prior to the shooting death of Troy Davis, [in the course of which Cole claimed to Shockley and Wallace that] Hill was a "rogue" cop, behaved "like a psycho" and was "going to kill somebody"

Slip op. at 11-12.  Despite this evidence, the panel held that Hill's supervisors were not deliberately indifferent to the rights of others when they allowed Hill to execute sensitive missions.  Id. at *12 ("Even accepted as true and taken as a whole, the above evidence is legally insufficient ... to support a finding of deliberate indifference.")  The panel wrote that "[p]rior indications cannot simply be for any and all 'bad' or unwise acts, but rather must point to the specific violation in question."  Id. at *14.  Thus,

while Hill’s over-“exposed” photography stunt and his earned nickname collectively demonstrate lack of judgment, crudity, and, perhaps illegalities, they do not point to past use of excessive force. Similarly, the traffic stop, while perhaps improper in its own right, did not involve excessive force with a deadly weapon resulting in harm to a citizen in a context similar to the present case.

Id. at *15 (emphasis added).  The court cited favorably an earlier decision, where the Fifth Circuit held that "a habit of displaying a firearm during traffic stops does not constitute a relevant pattern with respect to using deadly force during a traffic stop."  Roberts v. City of Shreveport, 397 F.3d 287, 291 (5th Cir. 2005).  In sum, a supervisor is on notice that his subordinate has a tendancy to violate the rights of others only if the prior rights violations were identical to the ones allged in a supervisory suit. 

For example, a supervisor would be liable under a failure to train or supervise suit against his subordinate police officer who shoots a motorists only if the officer had previously shot a motorist.  If the officer had previously "merely" pointed his gun or threatened motorists, then the supervisor would not be on notice that the officer might someday actually shoot someone.  Does that sound like a proper notice analysis?

Imagine a company, sued under a negligent hiring claim, argued that they weren't on notice that an employee might go postal because the employee's prior conviction was for armed robbery with a knife.  Would any court hold that the company wasn't on notice that the employee might use a firearm when going postal?

If this notice discussion sounds familiar, that's because it is, and thus, Hope v. Pelzer is instructive.  In Pelzer, Alabama prison guards tied a prisoner's hands to a hitching post, where he was hung for nearly eight hours.  The guards mocked the prisoner as he moaned in pain.  They denied him a restroom break.  When the prisoner requested water, the guards laughed and poured a ladle of water on the guard dogs near the prisoner's feet.

The guards argued that they were entitled to qualified immunity, since no case held that it was cruel and unusual punishment to treat a prisoner in this way.  In other words, there was no notice that this conduct was unconstitutional.  A 6-3 Court rejected this argument, and noted that a state actor can be denied qualified immunity in even novel fact situations where the "obvious cruelty inherent in [a] practice" put the actors on "some notice that their alleged conduct violated Hope’s constitutional protection against cruel and unusual punishment." 

The Fifth Circuit should have employed a similar analysis and held that for purposes of deliberate indifference, a supervisor is on notice of a subordinates potential to engage in rights violations when the subordinate has shown a reckless disregard for civil rights in related contexts.  That is, evidence of prior rights violations and indiscrete or illegal behavior puts the supervisor on notice that his or her subordinate is likely to violate rights in other contexts.

This case has cert.-worthy written all over it.  Like Hope v. Pelzer, it involves an issue of broad application, namely, whether a supervisor is on notice that his subordinate is likely to violate the rights of others. I don't know for sure, but I suspect there is a circuit split on this issue of how similar prior conduct must be before a supervisor is on notice that his subordinate might unreasonably use deadly force.


Ninth Circuit Reversals

[Ed's note: I just found this post in my files, so I'm publishing it, even though it might not remain timely.]

The Supreme Court reversed the Ninth Circuit twice today [12/13/04].  I'm sure that everyone will have a good chuckle.  Haha.    Now that we're finished laughing, let's see what the Court did today.

In Devenpeck v. Alford the Court held that a police officer can arrest you, even if he doesn't know you're breaking any laws.  Applying Whren (the "your lightbulb in your license plate holder is out and it just so happens that you're also a black male so I'll pull you over case"), the Court wrote that "if, given the facts known to the officer, there is probable cause to believe that a crime has been or is being committed" then there is no Fourth Amendment violation if the cop arrests you.  It does not matter whether the police officer knows if you're breaking any laws.  All that matters is that, post hoc, the courts can find probable cause for the arrest.

Call me crazy, but I think that an arrest is unreasonable when the police officer does not know why he's arresting you.  I suspect that that most Americans - who themselves are required to know every law or face prison - would think that a police officer should know the law before arresting a citizen.

In Brosseau v. Haugen, the Court held that a cop may shoot you in the back even if you aren't threatening him or her.  Quoting Garner, the Court reminded us that “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”

A jury can't kill you unless your guilt is proved beyond a reasonable doubt.  But a police officer - whom we can't burden by requiring him to know the law, see Devenpeck, above - can kill you based on probable cause.  The Court's technical holding was that a "reasonable officer" would not have known that shooting someone in the back - instead of, say, shooting the tire out - as he's sitting in his car was excessive force. 

Granted, if the guy in Haugen was going to harm a child, I'd rather see him stopped quickly.  But I also don't sanction summary executions, which is what an on-the-street shooting is.  The Court should have required a bit more quantum of proof that the suspect was really dangerous instead of giving officers a blank check to open fire.