Crime & Federalism

Here's something that happens too frequently: The police stop a driver who is behaving erratically.  They tell the driver to get out of his car.  The driver is disoriented.  The police handcuff the driver, and ignore his pleas for medical help.  The driver then goes into diabetic shock.

When the driver sues under Section 1983, the police officers have a good chance at being granted qualified immunity.  "But, a reasonable officer, observing the driver's behavior, would have thought he was drunk.  Thus, our actions were reasonable."  It's unconscionable that police officers aren't trained to recognize symptoms of diabetic shock, but courts seem reluctant to hold that when a municipality fails to train someone how to recognize diabetic shock, or when a police officer fails to learn this crucial information, that they should be held liable under Section 1983.  Is there a solution to this problem?

A recent student article offers a provocative solution.  You can read about it here. 

In Lund v. Hennepin County, the civil rights plaintiff was arrested for a drunk-driving offense.  At his post-arrest court hearing, the trial court ordered him released immediately, and did not require him to post bail.  Because of delays in processing his paperwork, the plaintiff was released 12 hours later.  He filed a substantive due process/1983 claim against the county.

Since this was an action against the county, the plaintiff had to prove two things.  First, that his substantive due process rights were violated.  To establish this, he has to show that the government caused something "conscience shocking" to happen to the plaintiff.  Second, since he sued the county, the had to prove that a county policy or custom was the moving force behind this conscience-shocking result.  In other words: The county caused this really bad thing to happen to me.

The unanimous three judge panel denied Lund relief.  Tracing the case law governing unlawful detentions, the court held that a 12-hour delay in release would not ordinarily shock the conscience.  So far, so good.  You and I might disagree over whether this result is, in some Platonic sense, correct.  Regardless, it's consistent with the case law and is therefore a proper conclusion.  But the panel does take a wrong course.

Under Monell v. Dept. of Social Servs., a city is liable for the unconstitutional acts of its employees if the city has a "policy or custom" that was the "moving force" behind the rights violation.  Got that?  Three elements: (1) policy or custom; (2) moving force; (3) rights violation.  The panel, however, endorsed previous efforts that de facto added a new element to Monell actions.  Watch carefully:

[In a Monell action, the plaintiff must] show that the moving force behind plaintiff's detention was a county policy whose inadequacy was "both obvious and likely to result in the alleged deprivation of constitutional rights" or that there was a widespread informal custom having substantially the same effect.

***

Because Lund has not alleged facts sufficient to show that his due process rights were violated or that the County was deliberately indifferent to such a violation, the district court did not err by granting summary judgment.

In other words, the panel seems to be suggesting that a policy or custom that was the moving force behind a rights violation is insufficient to state a Monell claim in the Eight Circuit. Rather, the policy or custom must also be deliberately indifferent to a citizens' constitutional rights.  The Eight Circuit (and, in fairness, most federal circuits) has added a new element to Section 1983/Monell claims.

Each and every day in almost each and every courthouse in the United States, we lie to juries. We look them right in the eye and play act. We lead them to believe that a defendant in a civil case is on the hook for whatever damages are awarded in a civil case. We lie because we know that the defendant himself won't ante up; his insurance company will.

We say justice requires this white lie. The fear is that if we did not tell it, verdicts would skyrocket. Juries would pick the deep pockets actually paying the judgments.   

In cases arising under 42 U.S.C. Section 1983 this lie arguably has grave social consequences. We permit muncipalities and insurance companies to underwrite damages for the violation of core constitutional rights, even of punitive damages. The very purpose of punitive damages is frustrated in such a case. How is anyone ever deterred from misconduct if they never feel the consequences?

Consider the strange case of Lee v. Edwards, 101 F.3d 805 (2d.Cir.1996), a case of mine that haunts me still.

My client was arrested after colliding with a parked car. He'd been drinking. The arresting officer clocked my client with a nightstick, claiming the force was necessary as the officer had been assaulted. My client, a corrections officer, was charged with a serious felony, assault on a police officer.

The police officer lied, and witnesses said so. We sued for malicious prosecution, and asked for punitive damages.

At trial, the defendant's lawyer stipulated to municipal indemnification for damages. Why? I was trying to put on evidence that the city would pay for the damages, and that the cop had no exposure whatsoever. If a defendant has a right to put on evidence of his assets to keep damages down, why didn't a plaintiff have the right to say otherwise? Armed with the stipulation, I got to argue deep pockets.

The stipulation cost my adversary plenty. Theu jury assessed nominal damages of $1 and punitive damages of $200,000. A remitittur motion was denied and off we went to the Second Circuit.

The Circuit remitted to $75,000. Why? Two hundred thousand was too much for a cop; they don't make that much. But the officer put on no evidence of net worth. There was nothing in the record about whether he had money in the bank or not. I still believe the decision was lawless.

Needless to say, I have never had someone stipulate to indemnification again.

Plaintiffs lawyers don't do enough in discovery to determine whether damages will be indemnified. Just the other day, I spoke to someone who has the right idea: She is doing discovery of a city's policy and practice of paying damages in 1983 claims. Why? She intends to bring a Monell claim contending that the practice of underwriting wrongdoing encourages future torts. That seems to me an intelligent way to proceed, but I suspect it will be torpedoed along the way by a judiciary eager to endorse the lie that keeps from jurors the facts about who really pays for police misconduct.

Via Talkleft comes this interesting article about an ex-prisoner's lawsuit against prison officials for failing to protect him from prison rape.  (Prison guards are required to protect prisoners from prison rape, though suing them when they fail to is a tough case to maintain.) Jurors sided with the guards, and provided these insights into their decisionmaking:

*  Some jurors believed that Johnson was sexually abused but didn't believe that the guards knew about it. Actually, Johnson told the guards he was being raped, but since he was homosexual and often "flirted" with other prisoners and guards, they considered it a lovers quarrel.  A common assumption in prison rape cases is that a homosexual can't be raped.  I hope trail blazing lawyers start suing under Equal Protection Clause, arguing that the bias and resultant inaction is itself actionable.
 
  *  One juror "felt like every one of [the guards] followed their policy," adding that prison officials are "doing the best that they can."  The Nuremberg defense prevails.
 
  *  Another juror voted for the guards even while noting that Johnson was likely raped.  The juror could not vote for Johnson because he didn't present any scientific evidence to support his claim.  This is a valuable lesson civil rights lawyers can learn from prosecutors. Many jurors are requiring that in criminal cases where physical evidence is (or should be) available, that prosecutors and investigators obtain it.  It's known as the CSI Effect. People - and jurors are people, after all - find it bizarre that someone so willing to sue for rape (and thus re-live the torment) would not submit to a rape exam.  Why would you not re-live the experience in order to obtain valuable evidence while being willing to re-live the experience to obtain money damages?  There are solid answers to this question, but I'm trying to think of what questions other people might ask.

*  A few other jurors, after Johnson was caught in a few lies, didn't take any part of his story seriously.  It's textbook in any rape case where there's a reasonable consent defense that the one claiming rape not lie.  Here, Johnson wasn't suing his attackers, he was suing prison guards.  If Johnson lied to the jury, might he not also have lied to the prison guards?  If so, then how can the prison guards be held liable for essentially not believing him?

Anyhow, some are proclaiming that the defense verdict results from biases against African Americans or homosexuals.  While I think the guards' inaction was due to an irrational belief that homosexuals can't be raped (and they should be held liable for this denial of equal protection),  I think the jury decision was reasonable.  This was a case where someone who claimed to be raped never presented any physical evidence, and got caught up in a couple of misrepresentations.  In a case where credibility is everything, jurors are looking for reasons to believe the cops over the criminals.

When a police officer get tagged with a civil verdict in a case arising under 42 U.S.C. Section 1983, who really pays?

I've won dozens of these cases and I have never seen a case in which the tortfeasor himself or herself pays. But I have seen a lot of game playing.

A dozen years ago I won a case against two Connecticut State Troopers. They gave a man a gratuitous kick to the, er, hm, family jewels. No permanent injuries. But the jury awarded compensatory and punitive damages in the amount of $50,000. I was thrilled; so was the client.

Then came the remittitur motion. The defendants' lawyer claimed that the sum was excessive, given the officers' income and assets. Of course, no such evidence had been presented.

Smelling a rat, I subpoenaed the governor, the head of the state police, the head of the state police union, and everyone else with a high-powered pulse I could think of to a hearing. That yielded a motion to quash by the Attorney General's office. What took place at the hearing on that motion taught me bundles.

The State provided the troopers a defense under a reservation of right to decline coverage. (A.k.a. free legal defense.) The State's practice at the time was to evaluate coverage decisions post verdict -- long after a judgment had entered. A committee would evaluate the verdict to determine whether the conduct was so egregious as to decline to step in and pay the bill.

When pressed by the judge, the Assistant Attorney General bringing the motion to quash could not think of a case in which coverage was ever declined. No decision had yet been made on whether to provide coverage in the case I had just won.

I argued that the remittitur motion was little more than a shell game. The State was apparently trying to hide behind the meager assets of the defendants in an effort to reduce a judgment it fully intended to pay. The judge ordered the AG to report back with a decision on coverage, and deferred ruling on the remittitur motion.

Several weeks later, the State reported it would underwrite the constitutional tort, effectively serving as a silent insurer of the unlawful conduct of its troopers. The remittitur motion was denied as moot, and the judgment was paid, with attorney's fees and interest.

Lesson? Things are rarely what they appear in terms of damages in 1983 actions. In Part II of this post, I will tell the strange tale of Lee v. Edwards, a case in which the United States Court of Appeals for the Second Circuit went out of its way to reduce a damages award, even when the defendant's lawyer stipulated that the municpal employer would pay the damages.

Stay tuned ...

I placed numerous 1983-related posts into categories.  Happy reading:

Section 1983 (Elements)
Section 1983 (Immunities)
Section 1983 (Procedure)
Section 1983 (Theory, Tips, Resources)

This is a totally unscientific list (and I'm providing minimal citations, which means, be skeptical), so I'd love to hear your comments.  But after having read at least a thousand Section 1983 cases (and having worked on quite a few), I've formed a few opinions.  I would broadly describe the federal circuits* as such:

1st - relatively pro-government, but not in an activist way.  Some pretty interesting cases, since there are a couple of prominent civil rights firms in this circuit.

2d - tends to be pro-individual, but not in an activist way.  Its civil rights docket is not nearly as exciting as its criminal docket (lots of interesting RICO and other complex cases against mobsters).

3rd - similar to 1st Cir., but it's a pretty boring circuit for civil rights cases.

4th - activistly pro-government.  Sign should read: "You're entering the Fourth Circuit.  Please do not bring in any foreign plants, or American civil rights."  Luttig isn't as bad as most people would assume, but watch out for Wilkinson.

5th - activistly pro-government, but not as activist as the 4th Cir. 

6th - pro-individual, somewhere between the 9th and 2d Cirs.  It usually has some interesting civil rights cases, since there are a couple of excellent civil rights firms in Ohio.

7th - pro-government, but not as pro-government as the 11th Cir.  A lot of prisoner cases - perhaps the most of any circuit.  Judge Rovner seems to know her caselaw best of all judges in this circuit, but for some reason, she gets no props.  The juvenile curfew case illustrates her mad skills.

8th- neither pro-government nor pro-invidual, i.e., most often applies "the law" as it should be applied without regard to who wins.  If this were a spectrum, the 8th Cir. would be in the middle.  Judge Morris Arnold is especially knowledable judge, as is Judge Bye.  (RIP Judge Richard S. Arnold, of course).  Second-most "exciting" civil rights docket.  (Why is that?)

9th - activistly pro-individual, e.g., Devenpeck (rev'd by SCt).  (I generally love their outcomes, but as a judicial conservative, I don't often approve of the 9th's methodology.)  Oddly, even though a "liberal" circuit, it is the best forum for property rights litigants.  See, e.g., Lingle v. Chevron (rev'd by SCt).  Kozinski's are the funnest to read, since he has an anti-government streak, and it shows.  His Ruby Ridge case (whether Supremacy Clause bars prosecution of federal actor under state law) is my all-time favorite opinion.

10th - similar to 3d Cir.  Blase.

11th - pro-government, but less so than the 4th and 5th Cirs., and not pro-government in an activist way.  Has some outliers, e.g., the first Evans panel (unanimous reversal en banc) and Pelzer (rev'd SCt).  Pryor is a righteous dude on 1983 cases (e.g., the prison AIDS case), despite liberal screaming about his nomination.  It has the most "exciting" civil rights docket, and I check the court's website every lunch hour.

I'd love to have your thoughts.  One rule: No smart-ass comments unless you can actually cite cases.  I'll argue or retreat from my position as necessary, but I'm not going to argue with someone who lacks a demonstrable fluency in 1983 law.

*By quirk, I rarely read D.C. Cir. cases, and thus haven't form an opinion.  (Though I did read the Hedgepath: anyone who disagrees with the legal reasoning - as opposed to wishing the outcome were different - doesn't know 1983 from a frency fry.)

Behrens v. Regier, 2005 WL 2085656, (11th Cir., 2005) presents an all too common problem for plaintiffs bringing actions arising under 42 U.S.C. Section 1983. State actors under color of law have erred, egregiously so, and yet there is nothing to be done as a matter of constitutional law.

The facts are simple. Behrens and his wife have both a natural and an adopted child. They would like to adopt a third. Trouble is that years ago an accident at the family home led to the injury of their adopted child. Florida's Department of Children and Families investigated, as did the state's attorney. No criminal charges were brought and a Florida circuit court dismissed the allegations of abuse as they were not proven by a preponderance of the evidnce.

So why is Behrens still listed in as a "verified" child abuser in DCF records?

Behrens sued contending that he had not been given a name-clearing hearing in violation of his right to procedural due process. He further contended that his right to substantive due process had been abridged.

The 11th Circuit applied the stigma-plus test of Paul v. Davis, 424 U.S. 693 (1976), to these facts and granted a motion to dismiss. While the plaintiff had made out a claim that the DCF workers had stigmatized him, the plaintiff failed to establish that he had been deprived some more tangible Constitutional interest. Put another way, he had no liberty interest or property interest in the desire to once again become a foster parent. It is a harsh, but correct, ruling. The desire to become a foster parent once again looks an awful lot like a mere expectancy, although the 11th Circuit did not use that term.

Behrens raised an interesting argument that his legal right to become a foster parent had previously been recognized, given his prior adoption. However, the court held that this did not create a prospective right to adopt again.

The court then made short work of the  substantive due process claim observing that there is no fundamental right to apply for adoption. The court's refusal to even consider the possibility that a government official who recklessly maintains records of false information about a citizen might undermine the rights implicit in the concept of ordered liberty is disturbing. Have we created a government of laggards capable of any reckless incompetence, but beyond the reach of law?

Behrens appears never to have raised an equal protection claim. Arguably, that may have been his best shot at a jury. Why not argue that he was treated different than other similarly situated persons? Of course, discovering the necessary facts to withstand summary judgment on this theory would be costly. But it is hard to believe that Florida never expunges the records of those once accused of neglect and refuses ever to cease calling people "verified" child abusers once courts have dismissed actions claiming abuse.

The import of the case? It establishes no new legal principle, and is not cert. worthy. It reminds once again that mere defamatory acts cannot support a constitutional claim. But it does illustrate the degree to which the due process clause can be eviscerated to shield the truly incompetent from the consequences of their errors.

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.

Conyers v. Abitz, No. 04-1630 perfectly illustrates the legal gamesmanship involved in  unpredictability of a Sec. 1983 qualified immunity analysis.  In Conyers, a prison inmate was not notified that a deadline to participate in the Ramadan Fast was approaching.  Before Ramadan, but after the deadline, Conyers requested that his meals be modified per Ramadan's requirements.  Prison officials denied his request (even though they could have accomodated it with ease), and he sued.

The state officials argued that they were entitled to qualified immunity since they "could not have been expected to know that not providing [Conyers] with advance written notice of the sign-up deadline would violate his freedom of religion."  Slip op. at 8.  In other words: Is there a case on point requiring a prison officials to notify prisoners that Ramadan is upcoming?  If the court had analyzed the case with this degree of specificity, then officers would always be entitled to qualified immunity. Even the most vicious dog would get one free bite.

The court, on the other hand, framed the issue more broadly: "The relevant inquiry is whether, at the time the defendants refused Conyers's request, the law was clearly established that prison officials must have a legitimate penological interest before imposing a substantial burden on the free exercise of an inmate’s religion, even when that inmate is in disciplinary segregation."  Id.  With the issue framed more reasonably,* the panel easily denied qualified immunity.  Id. at 8-9. 

The challenge for lawyers and judges is finding the "right" way to frame the issue.  (In truth, the "right" way is the one the court decides.)  This, of course, comes as no surprise to civil rights lawyers.  But it does illustrate why ever Section 1983 case is unusually challenging: even with great facts, the court can sink the case with one question.

*The panel took a middle approach in framing the issue. It could have said (unfairly broadly): Is the right to be free from substantial burdens on religious exercise clearly established?  Another (unfair) issue-framing would have been: Must prison administrators given written notice of upcoming religious holidays?  The panel instead focused on "the specific context of Muslim inmates who were denied pork-free meals while confined in disciplinary segregation," and noted that those decisions put prison officials on fair notice that they "must demonstrate a legitimate penological objective for decisions that impede religious exercise."