Discussing news and court opinions, crime, federalism, and Section 1983.

October 20, 2005

Suing Social Workers Under Section 1983: Prima Facie Case


A parent has a substantive due process right to the enjoyment and upbringing of his child.  The state can violate this right when it removes the child from the parent.  But what must a parent show in order to state a case?  Today the Eighth Circuit squarely addressed that question, though it's answer is clumsy: and it will ensure that malicious social workers escape liability.  Thus spoke the court in this wind-up:

We have previously recognized that parents have an important but limited substantive due process right in the care and custody of their children.  The right is limited because the state has a potentially conflicting, compelling interest in the safety and welfare of the children. The liberty interest in familial relations is limited by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.  The right is important because of the need to curb overzealous suspicion and intervention on the part of health care professionals and government officials, particularly where the effect of such overzealousness may have the effect of discouraging parents or caretakers from communicating with doctors or seeking appropriate medical attention for children with real or potentially life-threatening conditions.

Abdouch, slip op. at 7.  The panel continued:

The net result of these competing interests is that we must weigh the interests of the state and child against those of the parents to determine whether a constitutional violation has occurred. Under this balancing test, the officials’ actions must have been based on a reasonable suspicion of abuse and must not have been disproportionate under the circumstances.  The difficulty in the present case is not whether such a reasonable suspicion can be found, but rather, whether the actions taken by the defendants and the resulting disruption to plaintiffs’ familial relations with the child were so disproportionate under the circumstances as to rise to the level of a constitutional deprivation.

Id. at 8.  That's a tough case to make.  And because it's so squishy, a social worker can always argue that his conduct was ever so different from conduct held to be unconstitutional in another case, and thus will almost always be able to argue for qualified immunity.  The panel recognized this, but didn't seem to care: 

The need to continually subject the assertion of this abstract substantive due process right to a balancing test which weighs the interest of the parent against the interests of the child and the state makes the qualified immunity defense difficult to overcome.  Even where this balancing reveals a constitutional violation, qualified immunity still applies unless the constitutional violation was so clear that an objectively reasonable official under the circumstances would have recognized the disproportionality or lack of reasonable suspicion.   

Id.  This is qualified immunity in theory, absolute immunity in fact.

October 20, 2005 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (0) | TrackBack

September 23, 2005

Prison Warden Can be Fired for Not Being a Political Hack


So said Judge Posner in Riley v. Blagoevich, No. 04-3085.  There's a nifty chart on pages 3 and 4 of the slip that I encourage free speech wonks to read.

September 23, 2005 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (1) | TrackBack

September 22, 2005

RICO and 1983 From the Seventh Circuit


    * Roger Whitmore's Auto v. Del Re (RICO and section 1983 claims).  This is one of the most interesting cases I've read all year.  Consider it a C&F's must-read case of the year.
    * Racine Charter One v. Racine Unified School Dist (alleging equal protection violation where busing service is provided for some, but not all, charter schools).

September 22, 2005 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (0) | TrackBack

September 20, 2005

Important Class-of-One Case


Today a unanimous three-judge panel of the Seventh Circuit handed down an important class-of-one opinion, Lauth v. McCollum, No. 04-3782.  Under the Equal Protection Clause, no person can be denied equal protection of the laws.  Generally, the Equal Protection Clause only applies where a person can show that he is a) part of a protected class, and b) is being discriminated against because of his class membership.  A couple of years ago the Supreme Court held that a person not belonging to a protected class could sue under the Equal Protection Clause if a government actor treated him irrationally and differently.  The person being mistreated belongs to a "class of one." In other words, under the "class of one" theory, it violates the Equal Protection Clause for a government actor to treat you differently than others similarly situated, just because the government official doesn't like you.

Let's say "George" wants to build a deck.  His permit application is denied because someone at city hall hates his guts, but George's neighbor's permit application is granted.  George can sue under a class-of-one theory since he has been treated differently from others similarly situated (in this case, homeowners), and because his disparate treatment was irrational.

At issue in Lauth was whether an employee can sue under a class of one Equal Protection theory.  The panel virtually eliminated class-of-one cases brought by government employees.  It's a short opinion, so click here to read the panel's reasoning.

September 20, 2005 in 42 U.S.C. 1983 (Elements), Equal Protection | Permalink | Comments (1) | TrackBack

September 09, 2005

Prison Conditions


In affirming a 1983/SDP jury verdict in favor of a pretrial detainee, the panel recounts these facts:

[I]nmates on three-day rotation were subjected to as many as five in-cell strip searches each day. The process required the inmate to manipulate several unclean areas of his body in order to show officers that those areas did not conceal contraband. The inmate then had to place his fingers in his mouth for the same purpose. The evidence indicated that the strip searchers often orchestrated these steps so that an inmate would have to manipulate his armpits, groin, and buttocks before manipulating his cheeks and tongue. Because of the in-cell water restrictions, an inmate ordinarily could not wash his hands prior to such a search. Not infrequently, a strip-searched inmate would have to eat his meals with the same unclean hands.

Surprenant v. Rivas, No. 04-2285 slip op. at 5 (1st Cir. Sept. 9, 2005) (Thanks S.Cotus).

September 9, 2005 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (0) | TrackBack

August 24, 2005

Failure to "Knock and Announce" is Per Se Fourth Amendment Violation


"In sum, a reasonable officer would not believe that a parolee’s consent to submit to search on demand eliminates the need to make such a demand, absent an exigency or demonstrated futility."  Green v. Butler, No. 04-2993, slip op. at 17 (7th Cir. Aug. 24, 2005).  In Butler, agents went to search a parolee's residence.  The parolee was renting from friends, though, and thus when the police barged into the house without knocking or announcing, the family sued.  The language in the case is much broader, though, and provides not just that someone with an expectation of privacy in his home be given notice before police officers barge in, but that parolees (who have no expectation of privacy) must also be warned before the police enter.

In explaining the importance of the knock and announce rule, Judge Ripple wrote:

More importantly, the entry alleged presented significant dangers for the officers, who, in entering unannounced, exposed themselves to the risk that an occupant would mistake their entry for an invasion and reasonably would take defensive measures to protect himself from the perceived, though mistaken, threat.

In the same vein, observance of the knock and announce rule is a significant safeguard to the occupants of the home, including innocent third parties for whom the surprise of an unannounced entry by law enforcement officers might elicit panic or other forms of irrational conduct—action that easily can be misapprehended by law enforcement officers and result in deadly defensive measures on their part. Specific to the facts of this case, notice of impending entry might have given the occupants a chance to control the dog, reducing the risk to the agents of an accidental attack or of the need to “shoot” the animal.  [Fortunately, their beloved family dog wasn't shot.]

That's exactly right.  Imagine if the homeowner's had thought the plain clothes officers had been burglars?  Someone might have been killed.  The knock and announce rule should be required to keep everyone safe.  That is, a search can't be reasonable absent knock and announce.

As an aside, the opinion is somewhat amusing given this introduction:

The named Illinois parole agents ... entered the residence to search Belter, prompting Mr. Green and Ms. Poulsen to file this § 1983 action for violations of their rights under the Fourth Amendment.

Section 1983 actions are apparently so common that courts needn't bother with a full citation. 

August 24, 2005 in 42 U.S.C. 1983 (Elements), Fourth Amendment (Searches and Seizures) | Permalink | Comments (0) | TrackBack

August 12, 2005

Eighth Circuit and Parental Rights


Departing from the Seventh Circuit's approach - which I covered here - today the Eighth Circuit held that non-custodial parents have a liberty interest in the care and upbrining of their children under two theories.  First, they have a liberty interest under the Yoder line of cases; second, they have one where state law affords visitation.  Here's the money languge:

The due process clause of the fourteenth amendment says, in relevant part, that no state shall "deprive any person of ... liberty ... without due process of law." U.S. Const. amend. XIV, § 1. To establish a procedural due process violation under this provision, a plaintiff must first show that the state infringed on a cognizable liberty interest. Cf. Clark v. Kansas City Mo. Sch. Dist., 375 F.3d 698, 701 (8th Cir. 2004). As a general matter, parents have a liberty interest in the "care, custody, and management of their children." Manzano v. South Dakota Dep't of Soc. Svcs., 60 F.3d 505, 509-10 (8th Cir. 1995). That said, in the past we have hedged on the question of whether non-custodial parents possess such an interest, and we have noted that the interest is subject to a de minimis exception: "Although we have recognized the possibility that visitation and placement decisions may be subject to due process scrutiny, as such decisions may infringe upon a parent's interest in the 'care, custody, and management of [his or her] child,' we have not yet found a case where the right to visitation was infringed in a manner that rose to the level of a constitutional violation."

Deputy Kofka draws on both strands of this statement from Zakrzewski. He contends that the Constitution did not protect Mr. Swipies's right to visit his daughter and that even if Mr. Swipies had a cognizable right to visitation, any infringement was so brief as not to be actionable. ...

We reject Deputy Kofka's initial argument and conclude that Mr. Swipies had a protected liberty interest. Though in Zakrzewski we did not rule on the question of whether a non-custodial parent has a liberty interest in the care, custody, and management of his or her child, we held in an earlier appeal in this case that Mr. Swipies possessed such an interest. Swipies v. Kofka, 348 F.3d 701, 703-04 (8th Cir. 2003). We are bound to follow this holding. It is not only the law of the case, see, e.g., Popp Telecom, Inc. v. American Sharecom, Inc., 361 F.3d 482, 490 (8th Cir. 2004), but the law of the circuit, i.e., a decision of another panel which only the court en banc may overturn, see United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005).

Even if our decision were not controlled by our previous holding, we would reach the same conclusion. If a state court affords a non-custodial parent visitation rights, we believe that the parent possesses, at least in some form, the liberty interest recognized in Manzano. A parent with visitation rights takes part in raising the child by making decisions about care, custody, and management during the period of the visitation, and thus he or she has the sort of parental role that deserves to be protected as a liberty interest.

Swipies v. Kofka, No. 04-3244, slip op. at 3-5 (8th Cir. Aug. 12, 2005). You can read the opinion here.

August 12, 2005 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (5) | TrackBack

August 11, 2005

Deliberate Indifference and Negligent Hiring Practices


For a city to be liable under Sec. 1983, it must be deliberately indifferent to a citizens' constitutional rights.  In other words, the city must not care about your rights.  When a city hires someone with an assault and battery conviction to be a police officer, is the city deliberately indifferent to your constitutional rights?

That issue arouse in Crete v. City of Lowell: there, a unanimous three judge panel of the First Circuit held that it did not.* Here's what happened:

Steve Ciavola was hired as a police officer with the City in the fall of 1995. In March 1999, Ciavola arrested Crete and Ciavola filed for bankruptcy and the claims against him were stayed. The excessive use of force by Ciavola was part of the claim against the City for negligent hiring, and this evidence was heard by the jury. The plaintiff voluntarily dismissed the claims against Ciavola after this trial. during the course of the arrest Ciavola "threw [Crete] down onto the pavement" and "pushed [his] head onto the sidewalk three or more times." Crete alleged that he never "threatened or physically resisted" Ciavola in any way, so as to justify Ciavola's response.

Slip op. at 2-3.  The court held that although Ciavola had an assault and battery conviction, the city would not be held liable.

In this case, the City's hiring decision was itself legal, and the City did not authorize Ciavola to use excessive force. The process used to investigate the background of Ciavola was reasonable: it revealed the past conduct which Crete asserts links the hiring of Ciavola with his use of excessive force. The department made its hiring decision with knowledge of Ciavola's background and assurances from Ciavola's probation officer that Ciavola would "make an excellent police officer" despite his assault and battery conviction. But "[e]ven when an applicant's background contains complaints of physical violence, including acts of aggression and assault, this may still be insufficient to make a City liable for inadequate screening of an officer who then uses excessive force." And such is the case here: Crete simply cannot meet his heavy burden. There was insufficient evidence on which a jury could base a finding that a "plainly obvious consequence" of the City's decision to hire Ciavola was the violation of Crete's constitutional rights. 

Id. at 26-27.  This is a tough case for me.  One one hand, it's important that cities hire people unlikely to violate citizens' rights.  Police officers should be intelligent, responsible, law-abiding people. Here, Ciavola pled guilty to misdemanor assault. 

On the other hand, this is a pretty minor offense.  Indeed, I've seen lots of people charged with bogus assault counts.  An assault conviction is nothing close to a scarlet letter.

* The First Circuit applies a heightened (and incorrect) standard that is overly charitable to cities.  In the First Circuit, a city can be liable under 1983 for the acts of its employees only if a civil rights violation is a "plainly obvious consequence" of the city's decision.

August 11, 2005 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (0) | TrackBack

August 01, 2005

More State Bar Nonsense


This appeal arises from two consolidated actions filed by nonimmigrant aliens whose status, according to Louisiana Supreme Court Rule XVII, § 3(B), renders them ineligible to sit for the Louisiana Bar. The district courts disagreed whether the Louisiana rule impermissibly discriminates against the plaintiffs in violation of the Equal Protection Clause. Because the level of constitutional protection afforded nonimmigrant aliens is different from that possessed by permanent resident aliens, we hold that the Louisiana rule survives rational basis review.

Wallace vs. Calogero, No. 03-30752 (5th Cir. Aug. 1, 2005).

August 1, 2005 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (1) | TrackBack

July 25, 2005

Right to Earn a Living in the Fifth Circuit


I'll have more to say after work.  Until then, here's the money quote:

We are persuaded that, for the purposes of overcoming qualified immunity, Stidham has properly demonstrated the violation of a clearly established right by showing that the defendants deprived him of his liberty interest without due process of law. The Supreme Court has said that “the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure.” Truax v. Raich, 239 U.S. 33, 41 (1915). We have confirmed the principle that one has a constitutionally protected liberty interest in pursuing a chosen occupation. See Ferrell v. Dallas Independent School District, 392 F.2d 697, 707 (5th Cir. 1968) (noting that the right of professional musicians to follow their chosen occupation free from unreasonable governmental interference comes within the liberty concept of the Fifth Amendment); Shaw v. Hospital Authority, 507 F.2d 625, 628 (5th Cir. 1975) (holding that a podiatrist's application for staff privileges at a public hospital for purposes of engaging in his occupation as a podiatrist involved a liberty interest protected by the Fourteenth Amendment); San Jacinto Savings & Loan v. Kacal, 928 F.2d 627, 704 (5th Cir. 1991) (finding that the owner of an arcade had a protectible liberty interest in operating her business). Thus we find that Stidham has identified a protectible liberty interest in pursuing an occupation of his choice.

Stidham v. Texas on Private Security, No. 04-50775, Slip op. at 11-12 (5th Cir., July 22, 2005) (Hat tip: Southern Appeal).

July 25, 2005 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (1) | TrackBack

July 07, 2005

Cars and Excessive Force


If you're a drug dealer with a federal agent pointing his gun at you and your stopped car, don't start driving your car towards the agent.  You will get shot.  And even suckers like me won't have any sympathy.  See Robinson v. Arrugueta, No. 04-10856 (11th Cir. July 7, 2005).

However, Robinson also indicates that the law of excessive force is moving in a dangerous direction.  In Brosseau v. Haugen, 125 S.Ct. 597 (2004), the Supreme Court suggested that a car might be a deadly weapon.  In Robinson, the Eleventh Circuit (though looking to state law) held that a car was a deadly weapon.  One implication of this holding is that a police officer can use deadly force every time a person flees via car.  As I blogged in March:

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 - 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.

Certainly, we would not object to a police officer's shooting someone speeding through a school zone.  But given the way qualified immunity doctrine evolves, a few more people who present no harm to anyone will be shot, and a few police officers will escape liability, before this question, "When can you kill a fleeing motorist?" is answered.  The problem with qualified immunity is that it encourages police officers to cross the line separating lawful from unlawful conduct.  Which sometimes means, the line between life and death.

July 7, 2005 in 42 U.S.C. 1983 (Elements), Excessive Force | Permalink | Comments (0) | TrackBack

June 29, 2005

Speed Limits and Substantive Due Process


Plaintiffs brought a substantive due process/1983 claim against a city for failing to lower the speed limit in a residential neighborhood from 25 to 15 mph.  Schroder v. City of Fort Thomas, No. 04-5216 (6th Cir. June 29, 2005).  They lost.  As they should have, since the claim was frivolous.  Still, Schroder's worth reading for its discussion of the two DeShaney exceptions to the "no duty" rule.  Slip op. at 3-5.

June 29, 2005 in 42 U.S.C. 1983 (Elements), Substantive Due Process | Permalink | Comments (0) | TrackBack

Workplace Speech


Today the Eleventh Circuit handed down an interesting - though not groundbreaking - case analyzing the right of a government employee to be free from speech-related retaliation.  Cook v. Gwinnett, No. 04-12914 (11th Cir. June 29, 2005).

June 29, 2005 in 42 U.S.C. 1983 (Elements), Free Speech | Permalink | Comments (0) | TrackBack

June 28, 2005

Danger Creation in Kennedy v. City of Ridgefield


Keep an eye on this recent Section 1983 action - Kennedy v. City of Ridgefield, No. 03-35333 (9th Cir. June 23, 2005).  It's cert. worthy, to be sure. 

Michael Burns, a 13-year old, allegedly molested Kimberly Kennedy's daughter.  Burns had a history of violent behavior: he regularly tormented his family and he once lit a cat on fire.

Kennedy reported the crime to the police.  But because of Burn's violent history, Mrs. Kennedy begged the police to warn her before they told Burns he was being investigated.  Their plan was to leave town, to, in a word, hide out.  The police promised not to tell Burns without first warning the Kennedys.

Then, for some stupid reason, officer Noel Shields told Burns about the allegations.  When Mrs. Kennedy found out that Burns knew, she was terrified.  Noel Shields promised Mrs. Kennedy that the police would patrol the area.  It should not surprise anyone that he lied.

Enraged, Burns broke into Mrs. Kennedy's house, shot and killed her husband, and wounded her.  Mrs. Kennedy sued under Section 1983.  The issue was whether Shields was liable because, in informing Burns of the allegations and promising police protection, Shields created or increased the danger the Kennedys faced .

A 2-1 panel, in a Judge Browning opinion, said, Yes:

Shields’s affirmative actions placed the Kennedy family in a situation of danger greater than they would have faced had he not acted at all. Shields does not dispute that the revelation to Michael Burns’s mother of the allegations of sexual abuse against Michael Burns triggered his actions against Plaintiff and her husband. In revealing the existence of allegations against Michael to Angela Burns after having promised Kennedy that he would notify her first, Shields created a situation of heightened danger. It was inevitable that Michael Burns would eventually learn of the allegations made against him, and he would likely infer who had made them. If Kennedy had received the prior warning officer Shields promised her, she and her family could have taken additional precautions. Instead, they relied on Shields’s promise of advance notification and so considered additional precautions unnecessary.

Moreover, Shields further augmented this danger by offering false assurances that the police would patrol the Kennedy’s neighborhood the night of the shooting. Misrepresentation of the risk faced by a plaintiff can contribute to a finding of state-created danger. See Grubbs, 974 F.2d at 121 (“The Defendants also enhanced L.W.’s vulnerability to attack by misrepresenting to her the risks attending her work.”). Plaintiff alleges that she and her husband based their decision to remain at home that night and leave in the morning in reliance on Shields’s assurances that the neighborhood would be patrolled. Defendant’s affirmative promise of a police patrol thus influenced Plaintiff’s assessment of the risk she and her family faced.

Slip op. at 7484-7485.  The panel held that the contours of right to be free from state-created danger were clear.  Shields can be sued!

This case is cert. worthy (assuming it's not first heard en banc) for a lot of reasons.  But local governments have enough people working for them.  I'm keeping my mouth shut, and my fingers crossed.

June 28, 2005 in 42 U.S.C. 1983 (Elements), Affirmative Duty (Danger Creation and Custodial Settings), Cert. Watch | Permalink | Comments (0) | TrackBack

June 27, 2005

Danger Creation in the Ninth


In Kennedy v. Ridgefiled, No. 04-278 (9th Cir. June 23, 2005), a split panel held liable a city under a danger creation theory of liability.  I'm not quite sure what to make of the opinion, and I need to read Castle Rock v. Gonzales.  But I'll blog more later.

June 27, 2005 in 42 U.S.C. 1983 (Elements), Affirmative Duty (Danger Creation and Custodial Settings) | Permalink | Comments (0) | TrackBack

May 09, 2005

Strip Search Case


This case is about an arresting officer’s investigatory strip search for the purpose of discovering drugs on persons who had been arrested lawfully but had been arrested for offenses that were not drug crimes.


We mainly must decide two issues. Whether the strip searches performed on Plaintiffs violated their rights under the United States Constitution and, if so, whether that right -- given the circumstances facing Officer Stephens -- was already so clearly established that every objectively reasonable officer would have known that Defendant was violating federal law at the time. We conclude that the strip search here violated two rights of Plaintiffs, both arising under the Fourth Amendment. First, the strip searches -- as a post-arrest criminal investigation -- were unreasonable, because they were not supported by a reasonable suspicion of the existence of drug evidence. Second, even if some strip search might have been lawful, the manner in which these strip searches were performed was also unreasonable as a matter of federal law. In addition, we conclude that the right to be free altogether of a strip search was, under the circumstances, not already clearly established at the time of the incident, but that the Fourth Amendment itself provided, at the time, sufficient notice that the manner of these particular searches was “unreasonable” in the constitutional sense.

Evans v. City of Zebulon, Georgia, No. 02-16424 (11th Cir. May 9, 2005) (en banc).

More later...

May 9, 2005 in 42 U.S.C. 1983 (Elements), Fourth Amendment (Searches and Seizures) | Permalink | Comments (0) | TrackBack

April 26, 2005

Interesting 1983 Case from CA1


This civil rights case requires us to decide whether police officers of the Town of Walpole and the Commonwealth of Massachusetts Department of State Police ("Massachusetts State Police" or "MSP") were entitled to summary judgment on Plaintiff-Appellant Edmund F. Burke's claim that they violated his Fourth Amendment rights when they arrested him for a brutal murder he did not commit. We must also decide whether forensic dentists/odontologists who assisted in the murder investigation were entitled to summary judgment on Burke's claims that they fabricated or exaggerated inculpatory bite mark evidence in support of probable cause. Finally, we must decide whether the Chief of Police of the Town of Walpole was entitled to summary judgment on Burke's claim that he defamed Burke after his arrest.

This is a long one (62-pages). Burke v. Town of Walpole.  Here are the holdings.

• viewing the evidence as we must on summary judgment, Burke has proffered evidence sufficient to support a finding that he was arrested without probable cause, and hence in violation of his Fourth Amendment right;
• Trooper McDonald's defense of qualified immunity fails because the record contains evidence, sufficient to create a jury question, that he intentionally or recklessly withheld exculpatory DNA evidence from the magistrate who issued the warrant to arrest Burke, and a reasonable officer would know that such conduct violated a clearly established Fourth Amendment right;
• Det. Dolan had a reasonable basis for seeking an arrest warrant and is entitled to summary judgment on the ground of qualified immunity;
• Det. Bausch and Sgt. Shea reasonably relied on a facially valid arrest warrant and are entitled to summary judgment on the ground of qualified immunity;
• the record fails to support Burke's allegation that Dr. Levine or Dr. Crowley intentionally or recklessly fabricated or exaggerated inculpatory bite mark opinions, and they are entitled to summary judgment on the ground of qualified immunity;
• Chief Betro's public statements made in the exercise of his official duties are conditionally privileged, and he is entitled to summary judgment on Burke's defamation claim.

Slip op. at 4-5 (footnotes omitted)

April 26, 2005 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (0) | TrackBack

April 22, 2005

Commerce Clause Wonks


Walgreen Co., Walgreen of San Patricio, and Walgreen of Puerto Rico (collectively, Walgreen) sued John V. Rullan, the Secretary of the Puerto Rico Health Department (Secretary), under 42 U.S.C. § 1983, challenging the constitutionality of a Commonwealth of Puerto Rico statute requiring that all pharmacies seeking to open or relocate within the Commonwealth obtain a "certificate of necessity and convenience." 24 L.P.R.A. § 334 et. seq. Walgreen asserts that this statute is unconstitutional because it impermissibly discriminates against or excessively burdens interstate commerce and violates due process. The district court rejected these arguments. Because we conclude that the statute impermissibly discriminates against interstate commerce, we reverse.

(Hat tip: AL&P.)

April 22, 2005 in 42 U.S.C. 1983 (Elements), Dormant Commerce Clause | Permalink | Comments (0) | TrackBack

April 06, 2005

Speech and Association Hybrid Claims


This civil rights case stems from a community college instructor’s claim that the college retaliated against her after she attended WTO protests with some of her students. Her claim is a hybrid one—it involves both speech and associational rights under the First Amendment. We are presented with an issue of first impression, namely the appropriate test for benchmarking this hybrid right. We conclude that this case should be evaluated under the balancing test established in Pickering v. Board of Education, 391 U.S. 563, 568 (1968), and that under Pickering, the college’s legitimate safety and pedagogical concerns outweighed the instructor’s rights. We affirm the district court’s grant of summary judgment in favor of the college.

Hudson v. Carven, No. 03-35408 (9th Cir. Apr. 6, 2005).


April 6, 2005 in 42 U.S.C. 1983 (Elements), Free Speech | Permalink | Comments (0) | TrackBack

April 05, 2005

Post-Chavez v. Martinez, There is no Civil Remedy for a Self-Incrimination Clause Violation


In Chavez v. Martinez, the Court held that a violation of the Self-Incrimination Clause, if any, occurs only after the compelled statements are admitted.  In practice, this means that no civil remedy may lie for a violation of the Self-Incrimination Clause.  Why?

Because causation is an element of any 1983 claim.  42 U.S.C. 1983 (requiring that a defendant "subjects, or causes [the plaintiff] to be subjected" to a rights violation).  When a judge admits the statements into evidence, he or she acts as a superceding intervening cause.  Thus, the police officer is not liable for any damages resulting from the compelled statement. 

A recent Fifth Circuit case - correctly decided - illustrates the intersection of causation and compelled confessions.  In  Murray v. Earle, No. 03-51379 (5th Cir. Mar. 31, 2005), police officers coerced an 11-year old into confessing to a crime.  Her statement was admitted against her and she was convicted.  Years later, her conviction was overturned by the Texas Criminal Court of Appeals. (!)  When she sued, her section 1983 claim against the officers was dismissed because the judge, by admitting the evidence, was the proximate cause of her conviction.

A very sad, but legally proper, result.

April 5, 2005 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (3) | TrackBack

April 04, 2005

Legal Win for Hells Angels


In this civil rights action under 42 U.S.C. § 1983, Defendants-Appellants, seven San Jose City Police Officers (“SJPOs”)1 and Deputy Sheriff Linderman, appeal from an order of the district court denying in part their motions for qualified immunity. This action arises out of the simultaneous execution of search warrants at the residences of members of the Hells Angels, and at the Hells Angels clubhouse on January 21, 1998. While executing one of the search warrants at the residence of plaintiffs Lori and Robert Vieira, the officers shot two of the Vieiras’ dogs. While searching plaintiff James Souza’s property, the officers shot and killed one of Souza’s dogs. During the course of the searches at all of the locations, the officers seized literally “truckloads” of personal property for the sole purpose of showing in a murder prosecution that the Hells Angels had common symbols, which in turn would qualify it as a criminal street gang and therefore support a sentencing enhancement under California Penal Code § 186.22 against the defendant in that case. In seizing this “indicia” evidence, the officers seized numerous expensive Harley-Davidson motorcycles, a concrete slab, and a refrigerator door and in so doing, caused significant damage to the items seized as well as to other property.


We affirm the district court’s order denying the SJPOs and Linderman qualified immunity. We hold that Linderman’s instruction to seize “truckloads” of personal property, including numerous motorcycles and a piece of concrete, for the sole purpose of proving that the Hells Angels was a gang was an unreasonable execution of the search warrants in violation of the Fourth Amendment. We further hold that at the time the searches were carried out the law was sufficiently clear to put a reasonable officer on fair notice that this conduct was unlawful.

We also hold that the shooting of the dogs at the Vieira and Souza residences was an unreasonable seizure, and an unreasonable execution of the search warrants, in violation of the Fourth Amendment. Exigent circumstances did not exist at either residence, as the SJPOs had a week to consider the options and tactics available for an encounter with the dogs. Nonetheless, the officers failed to develop a realistic plan for incapacitating the dogs other than shooting them. Finally, we hold that the unlawfulness of the officers’ conduct would have been apparent to a reasonable officer at the time the officers planned for serving the search warrants.

San Jose Chater of the Hells Angels Motorcycle Club v. City of San Jose, No. 02-16329 (9th Cir. Apr. 4, 2005).

More later...

April 4, 2005 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (0) | TrackBack

Cert. Denied in City of Evanston v. Franklin


Congratulations to Tom Goldstein's and Pam Karlan's Supreme Court litigation clinic for successfully opposing cert. in City of Evanston v. Franklin.  In Franklin v. City of Evanston, a unanimous three-judge panel of the Seventh Circuit Court of Appeals found a violation of Franklin's procedural due process rights when, after being arrested for a minor and non-violent crime, he was fired for asserting his privilege against compelled self-incrimination at a job termination hearing.  I summarized Franklin here.

April 4, 2005 in 42 U.S.C. 1983 (Elements), Cert. Watch, Good News | Permalink | Comments (0) | TrackBack

March 31, 2005

Due Process and Police Investigations


One of the joys of reading and working on section 1983 cases is the high creativity factor.  The smartest lawyers I've ever met either had a broad anti-trust or 1983 practice.  (A lot of bozos take 1983 cases, screw them up, and make bad law, but that's a topic for another day).  Anyhow, here's the latest example of a creative effort to hold a city liable.  It was a sure loser from the outset (in my opinion), but it was a damned good try.  Affirming dismissal, Judge Heaney wrote for a unanimous three-judge panel:

Delroy C. and Rhonda L. Scheeler (the Scheelers) brought a claim pursuant to 42 U.S.C. § 1983 against the City of St. Cloud, Stearns County, and various city and county officials (the defendants) after the death of their son, Craig Scheeler. Craig Scheeler died after suffering a gunshot wound to his head. The police investigation concluded that the wound was accidentally self-inflicted when Craig Scheeler was playing Russian Roulette. The Scheelers maintain that someone else shot Craig, and that the defendants’ failure to properly investigate the circumstances of Craig’s death impeded their ability to bring a wrongful death claim against the assailant, denying them their constitutional right to access the courts.

Scheeler v. City of St. Cloud, No. 04-2800 (8th Cir. Mar. 31, 2005).  Pages 5-10 have an excellent discussion of what standards will govern 1983 actions brought under a denial of access to the courts theory.

March 31, 2005 in 42 U.S.C. 1983 (Elements), Substantive Due Process | Permalink | Comments (0) | TrackBack

March 29, 2005

Speaking Through the Wall of Silence


A prison guard broke the wall of silence, he was harassed, and then constructively discharged.  He brought a section 1983 action, alleging that he was fired in retaliation for engaging in protected speech.  As a public employee, should his speech be balanced under Pickering and Connick?  No. Baron v. Suffolk County Sheriff's Department, No. 03-2718 (1st Cir. Mar. 29, 2005).

The distict court determined at summary judgment that "the internal workings of the Sheriff's Department" were a matter of inherent public concern, and thus found that Baron's speech was protected without engaging in an extended analysis of its form and context. The Department takes issue with this conclusion, arguing that the content of Baron's expression was not a matter of inherent public concern because it dealt exclusively with internal working conditions at the House of Correction. We disagree.

Slip op. at *12-13.  The panel distinguished Connick, writing:

Retaliation against officers who breach a code of silence among their colleagues at a county House of Correction implicates the public interest in a way that morale among Assistant District Attorneys does not.

Id. at *15.  Thus, the plaintiff's free speech rights need not be balanced against the state's interest in maintaing order and discipline.

(Hat tip: AL&P).

March 29, 2005 in 42 U.S.C. 1983 (Elements), Free Speech | Permalink | Comments (0) | TrackBack

March 22, 2005

No 1983 Recovery for Murdered Witness


Despite police promises of protection, there was no affirmative duty under the 14A to protect witness in criminal proceeding against criminal defendant.  Rivera v. Rhode Island, No. 04-1568 (1st Cir. Mar. 22, 2005).  In Rivera, a 15-year old witness to a police shooting said she was too scared to testify.  The police promised that they would protect her.  They broke that promise, and as a result, she was murdered.

This case is timely, as I've spent the past couple of days drafting a post touching these issues.  More later...

(Hat tip: Appellate Law & Practice)

March 22, 2005 in 42 U.S.C. 1983 (Elements), Affirmative Duty (Danger Creation and Custodial Settings) | Permalink | Comments (0) | TrackBack

March 11, 2005

Non-Custodial Parents' Rights


What liberty interest, if any, do non-custodial parents have in the care, upbringing, and education of their children? Today a 2-1 panel handed down an interesting decision interpreting - and perhaps narrowing - the due process rights of non-custodial parents.  Crowley v. McKinney, No. 02-3741 (7th Cir. Mar. 11, 2005).

In Crowley, a non-custodial parent sued school officials for, among other things, not providing him access to his childrens' educational records.  He sued under the parents' rights line of cases (Meyer, Pierce, Yoder), arguing that the schools' denying him access to his childrens' school records and refusing to allow parent-teacher conferences violated his substantive due process right to raise his children.  In dismissing the father's claim, the panel distinguished the parents' rights line of cases:

But those cases are remote from the present case in two pertinent respects. They are about a state’s right to deny, in effect, the option of private education, a denial that is a greater intrusion on parental control of their children than limiting parents’ involvement in the activities of the public school that their children attend. And they concern the rights of parents acting together rather than about the rights retained by a divorced parent whose ex-spouse has sole custody of the children and has not joined in the noncustodial parent’s claim. In both respects the parental claim in this case is weaker. It is weaker because the challenge is to only one parent’s control, the other’s remaining unimpaired. It is also weaker because the state interest is stronger. Nebraska’s interest in forbidding private schools to teach foreign languages was tenuous to the point of weirdness, while Oregon’s project of forcing all children to attend public schools implied a hostility to private education that had no footing in American traditions or educational policy. Quite apart from parental interests, the statist character and conformist consequences of giving the state a monopoly of education sapped Oregon’s policy of constitutional weight.

Id. at *5.  Moreover, the panel suggested that the rights, if any, of non-custodial parents are more analagous to to those of grandparents:

The distinction is illuminated by cases that discuss other aspects of parents’ constitutional rights. Troxel v. Granville, 530 U.S. 57, 65-73 (2000), invalidated a state law that conferred broad discretion on the state’s courts to override a custodial parent’s wish to limit (not eliminate) visits by her children’s grandparents. The case has a dual significance for the present case. First, it recognizes that one aspect of the parental right is a right against other relatives—a right to prevent a tug of war over the children—in this case Mrs. Crowley’s right to decide what school the children shall attend. Second, it suggests the strength that the parental interest must attain to achieve constitutional status. At stake in Troxel was Mrs. Granville’s control of her children, contested by the grandparents and the court that sided with them. At stake in Santosky v. Kramer, 455 U.S. 745 (1982), another case in which a state law was invalidated as an infringement of parental liberty, was the parental right itself. See also Stanley v. Illinois, 405 U.S. 645, 646-52 (1972). At stake in the present case is the slighter interest of Mr. Crowley in micromanaging his children’s education at the school properly chosen for them.

Id. at *10.  Although the case was rather intersting, it had the strangest holding (?) I've seen:

So we greatly doubt that a noncustodial divorced parent has a federal constitutional right to participate in his children’s education at the level of detail claimed by the plaintiff.

Id.  What's to doubt?  It's the fricking panel, and thus what it says what the law is.  So, does Crowley have the rights claimed, or not?  Under Saucier v. Katz, it's not appropriate for the panel to determine whether the right was clearly established at the time of its violation without first telling us if a right was violated.  Writing, "we greatly doubt" is not only confusing, it's doctrinally unsound.

Judge Wood dissented:

This case is about a father’s constitutional right to participate meaningfully in the upbringing of his children. The question, as I see it, is whether the state (in this case through the agency of a local school district and its principal) may effectively terminate a noncustodial father’s parental rights, through measures that deprive him altogether from the most important activity in which children under the age of eighteen engage: their education. The majority sees no federal constitutional dimension in the deprivations that the school district has imposed upon Daniel Crowley, notwithstanding the existence of Supreme Court cases directly recognizing these kinds of parental rights and notwithstanding the fact that its assumptions about the degree to which his parental rights have been circumscribed by virtue of his divorce decree are exaggerated at best, mistaken at worst. Unless we are to create a new exception to cases brought under 42 U.S.C. § 1983 for actions like this that conceivably could be addressed by state family law courts— an action that I believe to be beyond this court’s authority, even if the Supreme Court might choose to take this step some day—Crowley is entitled to proceed on his liberty claims. To the extent that the majority opinion holds otherwise, I dissent. I concur in the majority’s conclusion that Crowley has stated an equal protection claim and a First Amendment claim that must be reinstated, along with his supplemental state claims.

Id. at *14.

Crowley would make an excellent student note.  It raises a lot of issues, including standing after Newdow.  Let's say mom had said that ex-husband/dad must butt out.  What effect, if any, would that have on dad's ability to sue for violations of his liberty interest in raising his children?  Remember, here, dad was not suing because he disagreed with the school's curriculum rather, he was suing because the school was not providing him information he needed to care for and raise his child.  Also, do the parental rights trio (Meyer, Pierce, Yoder) protect a non-custodial parent's liberty interest?  Is a non-custodial parent similar to a grandparent, and thus, under Troxel, can be told - absent a divorce agreement to the contrary - to leave the children's upbrining to the custodial parent?

March 11, 2005 in 42 U.S.C. 1983 (Elements), Substantive Due Process | Permalink | Comments (2) | TrackBack

Procedural Due Process in CA2


In the finest tradition of the common law judge serving as explicator of the law, a unanimous three-judge panel has given us Velez v. Levy, No. 03-7875 (2d Cir. Mar. 11, 2005).  It's a lengthy exposition of section 1983 actions premised on violations of procedural due process.  Though long, it's worth reading.

Judge Calabresi tells us:

We are faced today with the question of whether plaintiff, an elected New York City community school board member, may properly state a claim under the United States Constitution for injuries suffered in connection with her forced removal from office based on allegedly trumped15 charges of criminal behavior. Plaintiff-appellant Amy Velez, a member of Community School District Board #1, has filed a suit pursuant to 42 U.S.C. § 1983 asserting constitutional and state law causes of action against seven defendants.

First, she alleges that three fellow board members – defendants-appellees Jacob Goldman, Nancy Ortiz, and Joyce Early – conspired to fabricate, and to disseminate publicly, accusations that she had sprinkled a powdery substance in front of the office door of another school official. These defendants, Velez asserts, did this out of political animus and in an effort to cause her removal. Second, she contends that three individuals in the Chancellor’s Office of Special Investigations – defendants-appellees Deputy Director Thomas Hyland, Confidential Investigator Anthony DeLeo, and Investigator Robert Colon – conducted an “irrational” and “illogical” investigation that resulted in a politically motivated report recommending Velez’s removal. Third, she claims that the then-Chancellor of the City School District of the City of New York, Harold O. Levy, arbitrarily and capriciously ordered her removal in punishment for her political positions.

On the basis of these allegations, 1 ons, Velez proffers several potential constitutional causes of action. She asserts: (1) that her removal constituted the denial of a property right in violation of the procedural requirements of the due process clause of the Fourteenth Amendment; (2) that her removal and the attendant stigma also deprived her of liberty without due process of law; (3) that the actions of the various defendants constituted violations of substantive due process; (4) that her removal was in retaliation for her stated political views and consequently in violation of the First Amendment; and (5) that her removal constituted an unlawful “seizure” under the Fourth Amendment. The district court, finding no colorable constitutional claim and declining to exercise supplemental jurisdiction over Velez’s various state law claims, dismissed her complaint pursuant to Fed. R. Civ. P. 12(b)(6). Velez v. Levy, 274 F. Supp. 2d 444 (S.D.N.Y. 2003).

While we agree with the lower court that Velez lacks a constitutional property interest, and that her allegations are insufficient to make out a Fourth Amendment violation or a substantive due process violation, we conclude that her First Amendment and procedural due process liberty interest claims are viable, though not against all of the defendants. We further find that qualified immunity cannot, at this stage, bar these claims. We therefore affirm in part and vacate in part the judgment of the district court and remand the case for further proceedings.

We find that the behavior alleged in Velez’s complaint – an intentional effort, born of political animus, to deprive an elected officeholder of her good reputation and her right to represent her constituents – gives rise to two causes of action under the Constitution. The district court properly dismissed, for failure to state a claim, the plaintiff’s due process property interest, substantive due process, and Fourth Amendment claims. It also properly dismissed all claims against the investigators and the board members. But the court erred in dismissing Velez’s stigma-plus liberty interest and First Amendment claims against Chancellor Levy, and in finding that Levy was entitled to qualified immunity on these claims. Since federal causes of action remain sub judice, it follows that any dismissal of Velez’s state law claims for want of supplemental jurisdiction is at the least premature, and these claims must be reinstated. The judgment below is therefore AFFIRMED in part, and VACATED in part, and the case is REMANDED for further proceedings consistent with this opinion. Costs will abide the ultimate result.

I'll blog more about this later.

March 11, 2005 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (0) | TrackBack

March 02, 2005

Private Acts Under Color of Law


The Dossett case has a beautiful rule statement addressing when a private actor acts under color of law.  I'm going to include it here for future reference.

“The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). At the same time, however, the Supreme Court has made clear that even the “[m]isuse of power” possessed by virtue of state law is action taken “under color of state law.” Classic, 313 U.S. at 326. Thus, “under ‘color’ of law” means “under ‘pretense’ of law,” and “[a]cts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it.” Screws v. United States, 325 U.S. 91, 111 (1945) (plurality opinion) (emphasis added); accord id. at 115-16 (Rutledge, J., concurring in the result). Applying these principles, the Supreme Court in Adickes held that the involvement of a police officer in a conspiracy to deprive a citizen of equal protection of the laws “plainly provides the state action essential to show a direct violation of petitioner’s Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful.” 398 U.S. at 152 (emphasis added). That is not to say that every action of a school official is under color of law simply because the official is a public employee. “[A]cts of officers in the ambit of their personal pursuits are plainly excluded,” Screws, 325 U.S. at 111, so exhortations or agreements by a bank customer who also happens to be a school official do not necessarily constitute actions under color of law. But on the other hand, the mere fact that a school official also has a personal account at the Bank does not mean that the official’s interactions with the Bank are exempt from scrutiny under § 1983. “[G]enerally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.” West, 487 U.S. at 50. Hence, as noted, one of the fighting issues in this case has been whether school officials acted in their personal or official capacities when communicating with the Bank about Dossett.

The challenged jury instruction unduly narrowed the official capacity or “under color of law” side of this equation. If the jury believed that a school official, purporting to act in the performance of official duties, sought an agreement with the Bank to terminate Dossett in retaliation for the exercise of her First Amendment rights, but the jury believed that the school official’s actions were both unauthorized and beyond those the Bank reasonably believed were authorized by the School District, then the jury was directed to find that the school official was not acting under color of law. This is not a correct application of the law. Just as a police officer conspiring to obtain a search warrant based on false evidence, see Mark v. Furay, 769 F.2d 1266, 1273-74 (7th Cir. 1985), or a judge agreeing to issue an injunction in exchange for a bribe, Sparks, 449 U.S. at 26-28 & n.5, may act under color of law despite exceeding his actual and apparent authority as defined in these instructions, a school official reaching a mutual understanding with a private actor to retaliate against a private citizen for questioning the work of the school board may do the same.

March 2, 2005 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (1) | TrackBack

February 26, 2005

Poor Betty Lou


If a private employer fires an at-will employee at the behest of a government official, is the employer liable under 1983?  Pending before the Eighth Circuit Court of Appeals is a fascinating case raisings that question.  Betty Lou Dossett vs. First State Bank (No. 03-2624).

Betty Dossett worked for a bank in Nebraska.  After she spoke out at a school board meeting, the president of the school board complained to her boss.  He told Dossett's boss that if she wasn't fired, then he would pull the school's account from the bank.  The bank manager complied and fired Dossett.

Since Dossett was an at-will employee, she did not have a traditional lawsuit against the bank.  But plaintiffs' attorney Maren Lynn Chaloupka creatively thought to sue the bank under section 1983.  Although a 1983 action requires acts done under color of state law, a private party who conspires with a state actor to deprive someone of her rights is, for purposes of 1983, a state actor. 

Since the bank agreed with a state actor to fire a Dossett for protected speech, the bank became a state actor.  A jury agreed and awarded Dossett $1.56 million.  [The cases gets really interesting here, but prudence cautions me to stick to the legal issues.  All I'll say is that the trial transcript indicates that the trial judge, on his own motion, kills the verdict and orders a re-trial.  He does not offer the plaintiff a remittur.  Then he re-writes the jury instruction, even though he relied upon the Eighth Circuit's Model Jury Instructions during the first trial.]

Anyhow, the case has been perfected.  Dossett's appellate brief is here, her reply brief is here, and bank's brief is here.

The policy issue raised in Dossett is also fascinating.  Should a private employer face liablity for doing nothing other than please his (government) customer?  There's a strong policy that employers can fire employees for any reason, or no reason.  And one of the beauties of the Constitution is that is does not encumber private decisions with constitutional procedures.  It's a good thing that you are not required to give notice and an opportunity to be heard to someone you decide to summarily delete you from your friends list.

On the other hand, few of us would have a problem with holding liable under 1983 a private actor who helps a police officer brutalize a citizen.  Why then should we tolerate a bank's helping a school board official violate the First Amendment rights of a citizen?

Full disclosure: I offered research and writing support for the appellant's brief, although Ms. Chaloupka did the lion's share of the work.  (I only helped with the joint action theory of the brief).

UPDATE: Victory!

February 26, 2005 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (0) | TrackBack

February 06, 2005

Special Treatment and a Class of One


I don't have time to elaborate, but I'd like to hear from the section 1983 gurus.  Here's a legal theory I've been toying with for about six months.  What do you think?

Can a private citizen sue a government agency or actor under a class of one equal protection theory where the government office gives special treatment to one of its own - treatment that it denies private citizens.

We know that to state a claim under a class of one theory a plaintiff has to show that someone similarly situated was given special treatment.  What if a police officer or prosecutor is not prosecuted for a DUI, e.g., but a private citizen, in an identical fact pattern, is.  Or, what if a city official is able to obtain a zoning permit where as everyone else is denied those permits.  Hasn't the citizen - our class of one - been denied equal treatment under the law?

Could a criminal defendant move to have the charges dismissed because he was denied equal protection?  Could a plaintiff state a 1983 claim?

I realize there are a lot of obvious problems with this theory -- That's why I'm still experimenting with it.  Once I'm done with the bar, I'll share my research.  In the meantime, e-mail me or leave a comment.

February 6, 2005 in 42 U.S.C. 1983 (Elements), Equal Protection | Permalink | Comments (4) | TrackBack

December 06, 2004

Masturbation, Civil Servants, and Speech


Today the Court issued one opinion. 
San Diego v. Roe
, No. 03-1669 (per curiam).

A police officer videotaped himself in uniform masturbating.  The officer then sold these images on eBay.  In his eBay user profile, Doe took measures to affirmatively identify himself as a police officer.  Namely, his eBay monkier was a play on a police radio call; he sold official San Diego Police Department uniforms; and his profile identified him as a law enforcement agent.

He was fired.  The officer then sued the city alleging violations of his free speech rights. 

The lower court denied the city's MSJ, reasoning that "Roe’s conduct fell within the protected category of citizen commentary on matters of public concern. Central to the Court of Appeals’ conclusion was that Roe’s expression was not an internal workplace grievance, took place while he was off-duty and away from his employer’s premises, and was unrelated to his employment."  Id. at *3.

A per curiam Court reversed.

Although the government may impose speech restrictions on its employees that would be unconstitutional if applied to a non-employee, the "Court has recognized the right of employees to speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment."  Id. at *3. 

Thus, the Court applies the Pickering balancing test that "requires a court evaluating restraints on a public employee’s speech to balance “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."  Id. at *5.  But "a public employee’'s speech is entitled to Pickering balancing only when the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest."  Id. at *6-7.

Here, "Roe’s activities did nothing to inform the public about any aspect of the SDPD’s functioning or operation. Nor were Roe’s activities anything like the private remarks at issue in Rankin, where one coworker commented to another co-worker on an item of political news. Roe’s expression was widely broadcast, linked to his official status as a police officer, and designed to exploit his employer’s image."  Id. at *7. 

Rather, Roe's "speech" was a matter of pubic, not public concern.

December 6, 2004 in 42 U.S.C. 1983 (Elements), Free Speech | Permalink | Comments (1) | TrackBack

November 04, 2004

Jail suicide


Wever v. Carmen
No. 03-2976 (8th Cir., Nov. 4, 2004) (Magill, for Arnold and Murphy, J.J.)

Facts:  Wever called 911.  He was depressed and crying.  He said that he was going to kill himself.  Several police officers went to his home.  Wever lived with his mom and dad.  Wever's father arrive and tried to help the police officers calm Wever.  Wever was not doing anything illegal, but agreed to go to the hospital.

Without any apparent legal justification, the police officers decided to arrest Wever.  Wever consented on the condition that they not handcuff him.  They threw him to the ground, cuffed him, and put him the police car.  Wever said if the put him in jail, he would kill himself.

While in the car, Wever kicked out the back window.  The officers then subdued him and put him in leg chains.  Wever's mom saw the police officers start kicking Wever after he was cuffed, but the police deny this. 

After a medical examination, the nurse cleared Wever for incarceration.  The on-duty jailer was told Wever was suicidal, but nonetheless gave him a blanket.  Seventeen minutes later, Wever was found hanging from the blanket.  Wever was dead.

Issues:  In pre-trial custodial settings, the government owes an affirmative duty under the Due Process Clause to protect the detainee from harm, including self-inflicted harm.  The jailers knew that Wever said he was going to kill himself if jailed, yet they did not provide him medical treatment and they even gave him an instrumentality of suicide.  Are the jailers liable? [Ed's note: Although the issue on appeal was whether Carmen, the jailer's supervisor, was entitled to QI, we must first establish that the jailers acted unconstitutionally because, by definition, a supervisor can not be held liable under 1983 unless his subordinates violate someone's rights].

A supervisor is liable for the unconstitutional acts of his subordinates if he is has notice that they are violating the rights of others.  Carmen's jail had seen one previous suicide during the supervisor's tenure, and one during his tenure.  Is the supervisor on notice that his subordinates are violating the rights of others?

Holding: Wever's jailers violated his due process rights by not taking reasonable measures to protect him from himself, and this right was clearly established.  Carmen is liable because he was on notice that suicides had happened in his jail, but he did not train his subordinates on how to spot and prevent suicides.

Reasoning:  There is an inverse relationship between the number of events that will put a supervisor on notice of rights violations, and the severity of the rights violations.  One or two prior unconstitutional acts do not generally put a supervisor on notice (and thus subject him to liablity), but "this calculus is not rigid, and must change depending on the seriousness of the incident and its likelihood of discovery."  Id. at *9.  Thus, "[i]n some circumstances, one or two suicides may be sufficient to put a sheriff on notice that his suicide prevention training needs revision. In the present case, Wever has alleged that Carmen was placed on notice by two previous suicides, and we cannot say this is insufficient as a matter of law."  Id.

November 4, 2004 in 42 U.S.C. 1983 (Elements), Affirmative Duty (Danger Creation and Custodial Settings) | Permalink | Comments (0) | TrackBack

November 03, 2004

Free speech rights of government employees


A police officer who is demoted for testifying in a hearing that another police officer did not take care of or properly maintain his car can not state a First Amendment retaliation claim.  Kirby v. City of Elizabeth City, No. 03-2035 (4th Cir., Nov. 3, 2004).  Per Judge Wilkins (for Williams, J. and Hansen, S.J.):

It is well settled that citizens do not relinquish all of their First Amendment rights by virtue of accepting public employment. Nevertheless, the government, as an employer, clearly possesses greater authority to restrict the speech of its employees than it has as sovereign to restrict the speech of the citizenry. A determination of whether a restriction imposed on a public employee’s speech violates the First Amendment requires a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. This balancing begins with an inquiry into whether the speech at issue was that of a private citizen speaking on a matter of public concern. If so, the court must next consider whether the employee’s interest in his First Amendment expression outweighs the employer’s interest in what it has determined to be the appropriate operation of the workplace.

To determine whether speech involves a matter of public concern, we examine the content, form, and context of the speech at issue in light of the entire record. Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community.  The public-concern inquiry centers on whether the public or the community is likely to be truly concerned with or interested in the particular expression. Whether speech addresses a matter of public concern is a question of law for the court, and thus we review the matter de novo.

Id. at *6-7.

Just because an opinion is given in a public hearing does not mean it is a matter of public concern.

[A] police officer did not address a matter of public concern when he stated during a coworker’s employment hearing that he did not know whether marijuana found in his van belonged to the coworker. In so doing, we held that it was irrelevant for first amendment purposes that the statement was made in the course of an official hearing because the statement was made not to further any public debate, but only to further the interests of the two officers involved.

Id. at *7.

November 3, 2004 in 42 U.S.C. 1983 (Elements), Free Speech | Permalink | Comments (0) | TrackBack

Bail bondsman's license


A bail bondsman's property interest in his license is not deprived under the Fourteenth Amendment when a judge sets a cash bond and disallows a surety bond.  Smith v. City of Hammond, No. 04-1260 (7th Cir., Nov. 3, 2004).

Wrote Judge Posner (for Flaum and Rovner, J.J.):

A provider of services to a court has no standing to challenge judicial rulings that reduce the demand for his services and hence his income. He is injured but he is not within the protected class. If a judge who is “soft” on crime releases arrested persons on their own recognizance, a bail bondsman cannot challenge the judge’s ruling on the ground that it will reduce the bondsman’s business. Manufacturers of shackles cannot sue when a judge decides that criminal defendants shall not be shackled in his courtroom. Smith could not sue the prosecutor for not bringing enough charges for violent crime (the sort that lead to surety bonds), or for charging too many poor defendants on the theory that the public fisc does not pay as handsomely as solvent defendants do. When the Federal Reserve juices up the economy, pawnbrokers cannot head to court to stop the undermining of their livelihoods.

As if this weren’t enough to demonstrate the frivolous nature of this suit, Smith is claiming a violation of the Fourteenth Amendment, which requires that he show an entitlement that can be characterized as property or liberty to issue surety bonds, and we saw earlier that he cannot show that.

November 3, 2004 in 42 U.S.C. 1983 (Elements), Procedural Due Process | Permalink | Comments (0) | TrackBack

November 02, 2004

Excessive Force Rule Statement


I found this very helpful rule statement for excessive force cases in the Eighth Circuit:

We analyze excessive force claims related to arrests under the Fourth Amendment. E.g., Graham v. Connor, 490 U.S. 386, 395 (1989). To establish a constitutional violation under the Fourth Amendment’s right to be free from excessive force, “the test is whether the amount of force used was objectively reasonable under the particular circumstances.” Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir. 1994). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. The Supreme Court has instructed, “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396-97. “Circumstances such as the severity of the crime, whether the suspect posed a threat to the safety of the officers or others, and whether the suspect was resisting arrest are all relevant to the reasonableness of the officer’s conduct.” Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1081 (8th Cir. 1990). “In addition to the circumstances surrounding the use of force, we may also consider the result of the force.” Crumley v. City of St. Paul, Minn., 324 F.3d 1003, 1007 (8th Cir. 2003); Patzner v. Burkett, 779 F.2d 1363, 1371 (8th Cir. 1985) (stating that, in considering the reasonableness of force used, the extent of any resulting injuries is relevant).

Littrell v. Franklin, Nos. 03-2534 & 03-2790, *7 (8th Cir. Nov. 2, 2004).

November 2, 2004 in 42 U.S.C. 1983 (Elements), Excessive Force | Permalink | Comments (0) | TrackBack

October 31, 2004

Pre-arraignment detention


Hayes v. Faulkner County, Arkansas, No. 03-3787 (8th Cir., Oct. 29, 2004) (Benton, for Murphy and McMillian,).

A citizen is arrested and held in jail for 38-days.  He was never given a court appearance, although he requested that his jailers schedule him one, and even cited the relevant court rule putting the jailers on notice that he was required one.  Does the detainee have a cause of action under Sec. 1983/Substantive Due Process?  If so, under what circumstances are the relevant state actors liable?

A pre-appearance detainee has a claim under 1983/SDP.

First, the Due Process Clause forbids an extended detention, without a first appearance, following arrest by warrant.  *** Second, this Court considers whether the defendants' conduct offends the standards of substantive due process. Deliberate indifference to prisoner welfare may sufficiently shock the conscience to amount to a substantive due process violation. *** The third and final step in this substantive due process analysis is determining whether, in the totality of circumstances, the defendants' conduct in depriving Hayes of a constitutional right shocks the conscience.  This is a question of law. [Ed's note: Yeah, I know - How can a standard based on a judge's "conscience" be law?]

Id. at *4-6.

The County.

The County's policy was to submit the names of confinees to the court and then wait for the court to schedule a hearing. That policy attempts to delegate the responsibility of taking arrestees promptly before a court.  *** Because the County's policy here attempts to delegate the responsibility of bringing detainees to court for a first appearance and ignores the jail's authority for long-term confinement, the policy is deliberately indifferent to detainees' due process rights.

Id. at *5.

The Jailer.

Kelley helped promulgate and enforce the deliberately indifferent policy. Receiving Hayes's specific appearance grievance, Kelley made a conscious decision to do nothing. Kelley testified that he would have followed the same course of conduct even if Hayes were held for 99 days. While Hayes sat in the Center for 38 days, Kelley consciously disregarded the violation of his constitutional rights. That conscious disregard is deliberate indifference violating the standards of due process.

Id. at *5 (citation omitted).

The author of this opinion obviously knew what he or she was talking about and quickly disposed of the issues.  It is a nice refresher on the issues in a 1983 case, though.  Namely, prima facie case against individual; prima facie case against county; qualified immunity; attorneys' fees.

October 31, 2004 in 42 U.S.C. 1983 (Elements), Affirmative Duty (Danger Creation and Custodial Settings) | Permalink | Comments (0) | TrackBack

October 25, 2004

Why we need more police on the street


Is a conversation "private" under Washington's Privacy Act when the speaker talks with his windows rolled even though he sees someone is beside his car, listening to him?

[Ed's note: This case does not add much to our understanding of section 1983. Since its facts are illustrative of modern law enforcement, I present the facts for you.]

From Johnson v. City of Sequim:

The undisputed facts show that on January 28, 2000, Johnson was videotaping several of his friends at Sequim’s public skateboard park when he noticed Chief Nelson drive up to the park in his patrol vehicle. Chief Nelson, who was on duty and had come to the park to look for a missing juvenile, stopped his patrol car in the park’s parking lot about seventy-five feet away from where Johnson was standing on an elevated cement ramp. From this distance, Chief Nelson observed Johnson videotaping him as he sat in his vehicle with his driver’s side window rolled down. After a short time, Johnson stopped recording Chief Nelson and approached the car. As Johnson approached, Chief Nelson’s police radio “was operating” and he was “dialing [his] cellular phone” to contact dispatch to obtain a description of the runaway he was attempting to locate. Johnson resumed videotaping when he reached the rear of the car. As Johnson came around to the passenger side of the car, Chief Nelson rolled down the passenger window, deactivated his cellular phone, and asked Johnson “What do you think you’re doing?” Although Johnson stopped recording Chief Nelson, he continued to point his video camera at Chief Nelson, who twice told Johnson to stop because Johnson “did not have [ ] permission to record [him] and . . . it was a violation of the law to record conversations without consent.” After the second warning, Chief Nelson got out of his car and “contacted” with Johnson, physically struggling with him to obtain the video camera. With the assistance of another officer, whom he had called for backup, Chief Nelson placed Johnson under arrest and transported him to the Clallam County Jail in Port Angeles.

After Johnson had spent three days in county jail, prosecutors filed a criminal complaint against him, charging one count of recording communication without permission, in violation of the Privacy Act, and one count of resisting arrest. Prosecutors also moved for a determination of probable cause, based solely upon a declaration from Chief Nelson that Johnson videotaped him “while [he] was making telephone contact with dispatch in an attempt to verify juvenile runaway information.” Although the state court found probable cause for the arrest, Johnson was released and the charges were dropped. Nearly two months later, prosecutors again filed charges against Johnson, this time for “attempted recording communication without permission” and for resisting arrest. On May 10, 2000, Judge Coughenour of the Clallam County District Court dismissed the charges against Johnson. Judge Coughenour found that Chief Nelson was not engaged, by cellular phone or police radio, in any conversation or communication with anyone while Johnson was recording him, and that Johnson therefore could not have “inten[ded] to record a conversation that [was not] occurring.” Moreover, Judge Coughenour found that even if Chief Nelson had been involved in a communication in his vehicle, there was no expectation of privacy because he had voluntarily exposed any such communication to the public by parking his vehicle in a public place with the windows rolled down.

October 25, 2004 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (1) | TrackBack

October 06, 2004

Appointed counsel is only nexus to courts required under the Due Process Clause


Bourdon v. Loughren, No. 03-196, (2d Cir., Oct. 5, 2004).

Plaintiff, a state pretrial detainee at the time relevant to the complaint, contends that he was denied access to the courts principally through defendants’ denial of materials that he requested from the jail’s law library.

We hold that the appointment of counsel is a valid means of fully satisfying a state’s constitutional obligation to provide prisoners, including pretrial detainees, with access to the courts in conformity with the requirements of the Due Process Clauses of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth Amendment. We further hold that constitutionally acceptable access to the courts through appointed counsel is not measured by reference to the Sixth Amendment’s guarantee of effective assistance of counsel. Finally, we hold that, in the circumstances of this case, the provision of appointed counsel fully satisfied the state’s obligation to provide plaintiff with access to the courts.

This case didn't teach anything new, so I'm not sure why it was selected for publication. There is a line of cases holding that if you proceed pro se in your criminal case, that the jail does not have to give you special accomodations as to law library hours, etc. Thus, a pro se defendant who is in court all day can not demand access to to law library when he gets back from court.

It is bothersome, though, that "access to the courts through appointed counsel is not measured by reference to [ ] effective assistance of counsel." In other words, if your lawyer sucks, too bad. You'll have to lose at trial, go to prison, and then appeal your conviction under the Sixth Amendment. Disturbing.

You can read Judge Oakes' concurrence, which fully develops this criticism.

October 6, 2004 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (0) | TrackBack

October 05, 2004

Sixth Circuit says no Due Process right to sleep with student


Flaskamp v. Dearborn Pub. Schools, No. 02-2435, (6th Cir., Oct. 5, 2004).

Laura Flaskamp taught physical education in the Dearborn Public Schools. In April 2001, the board of education for the school system denied her tenure after learning that Flaskamp had a sexual or otherwise-intimate relationship with a former student within nine months of the student’s high school graduation. In acting upon the school principal’s recommendation that her tenure application be denied, the board relied in part on the view that the relationship had begun before graduation and in part on the view that Flaskamp had failed to be candid in addressing the school system’s concerns about the relationship.

Flaskamp sued the school system and the individual board members, claiming that they had violated her right to intimate association, her right to privacy and her right to be free of arbitrary state action—all in violation of the Due Process Clause of the Fourteenth Amendment. The district court granted summary judgment to the defendants on each claim. Because the board in our view did not violate the Due Process Clause in any of these respects in denying Flaskamp’s tenure application, we affirm the district court’s judgment in favor of the board, its members and the school system.

October 5, 2004 in 42 U.S.C. 1983 (Elements), Substantive Due Process | Permalink | Comments (1) | TrackBack

October 01, 2004

Your Fifth or Your Job?


Does a city violate its employee's procedural due process rights when it requires him to choose between asserting his right against compelled self-incrimination, or continuing his employment with the city?  Yes, held a unanimous three-judge panel in Franklin v. City of Evanston, No. 99 C 8252, (7th Cir., Sept. 27, 2004) Applying Atwell v. Lisle Park Dist., 286 F.3d 987 (7th Cir. 2002), the panel held that a city cannot compel one of its employees to answer questions regarding a pending criminal case unless it both gives the employee use immunity and tells him that because he is being granted use immunity, a failure to answer questions will be held against him.

Edward Franklin was arrested for possession of a small amount of marijuana (a misdemeanor offense).  He was a city employee, but the arrest occured while he was off-duty.  The small hick newspaper, having nothing better to cover, put the arrest in "The Police Blotter."  A busybody co-worker, who is probably a big loser with no life prospects or any friends, showed the newspaper to Franklin's boss.

Boss called Franklin into a meeting and asked him whether the charges were true.  Franklin said he would not talk about his situation while the criminal charges were pending.  The city suspended Franklin without pay, pending its own investigation.

City officials then held an ex parte meeting where they determined that Franklin should have his ability to earn a living jeopardized because he was arrested for non-violent offense.  Pursuant to a collective bargaining agreement, Franklin was accompanied by a union representative for a full pre-termination hearing. 

City officials questioned him about his arrest.  Franklin said he would not answer any questions that could jeopardize his criminal case, but that if they continued the meeting, he would answer any questions after his criminal case was resolved.  The city said "No," and fired him. 

Franklin sued the city under section 1983, alleging, among other things, a violation of his procedural due process rights. [His other claims were very weak and thus promptly rejected by the court].  He alleged that since a formal review board fired him, it was a final policymaker for the city on this issue.  As such, it was liable under Monnell.

The court quickly disposed of the city's argument that it did not violate Franklin's PDP rights.  Since Franklin " was [ ] effectively forced to choose between his job and his Fifth Amendment rights, and this was an impermissible violation of his Fourteenth Amendment right to procedural due process."  Slip op. at *8.

Our concern is that in determining that Franklin had violated a City policy, the City did not provide him with a meaningful opportunity, as required by Atwell, to present his side of the story without fear of impairing his criminal defense. This was a violation of Franklin’s right to procedural due process. Because it occurred pursuant to an express City policy that skirted the need for Atwell warnings, the City is liable for a violation of § 1983.

Id. at *15-16.

(Panel: Cudahy, writing for Posner and Rovner).

October 1, 2004 in 42 U.S.C. 1983 (Elements) | Permalink | Comments (0) | TrackBack

September 26, 2004

Motley v. Gates


I was finally able to read Motley v. Gates in full.  It's a very long opinion, so I am going to summarize its legal questions and answers.  Then I will provide the court language relevant to those propositions.  Although my version is lenghty, it takes up 75% less ink than full opinion.

To entice you to read my summary, I'll give you a teaser: A police officer in this case pointed his gun at a 5-week-old baby.

1. Is it unconstitutional to conduct a warrantless search of a woman's home when her boyfriend (a parolee) has been in jail for over six weeks?  Yes - the woman told the police her boyfriend has been taken into custody six weeks prior to the search.  All the police officers had to do was call his parole officer to verify this information.  Since there were no exigent circumstances, and the officers did not have a search warrant, they should have errored on the side of verification.

2. Do a police officer use excessive force during the course of a when he pointed a gun at a five-week-old baby while he's laying in his crib?  Yes - how the trial court judge found otherwise really bothers me.

3. Do police officers who allow a their colleague to point a gun at a baby behave unreasonably?  Yes - officers are under an affirmative duty to intervene when a colleague is violating a citizen's constitutional rights.

4. Is the person who left the parolee's address information remain stale, and then provided this information to the search officers, the "moving force" behind a rights violation.  Yes - the officer sent his subordinates out to conduct warrantless searches of parolees' homes.  Since the only basis for the search was to "clean up" the neighborhood, he should have ensured that the addresses were fresh.

5. Would a reasonable officer have known that the answer to Questions 1, 2, 3, & 4 is, "Yes."  Yes - the caselaw established at the time of the search sufficiently established the above propositions.

Janae Jameson was a gang member, Darla Motley was his girlfriend, and together they had a baby - Juan Jameson. 

Father was release from prison in February 1998.  The next February he was taken back into custody.

Six weeks after father was taken into custody, members of the LAPD and ATF decided to conduct a search of his (and others parolees') homes.

At 10 or 10:30 a.m., Motley heard a knock at her door.  It was Officer Kading.  Kading said that he and father's parole officer had a search warrant and wanted to search her apartment.  Kading was lying. 

Mother said that father was taken back into jail 6 weeks ago and that he was still in custody.  One of the police officers told mother that father had been released from jail 3 days earlier, but mother knew that he was lying.  Mother said that she would not consent to a search.

Kading said that he would arrest mother and take baby into foster care if she did not get out of his way.  Mother opened the gate to her house, Kading entered, and promptly shoved his forearm into her face. 

All four officers - with guns drawn - entered mom's apartment.  Officers took turns pointing their guns and rummaging through mom's property.

As Kading approached the bedroom, mom told him that baby was back there.  A few moments later, mom heard baby screaming.  When she goes into baby's bedroom, she sees Kading pointing his gun at the baby. 

One of the officers asked mom to whom baby belonged.  When she told them, they laughed at her and mocked her.  Kading also insinuated that he was going to steal mom's ping pong table.

As the officers left, Kading said, "Let them know that Newton Street had been there."
A few weeks later, mom moved away.  She felt terrorized and was afraid the officers would come back for her.  Then she sued.

Was the search unconstitutional?

The officers in this case set out to conduct a parole search.  Instead, assuming that Motley’s account is true, the officers used duress to gain access to the home of an innocent mother and her baby and conducted a warrantless search in a harassing manner. It is clear that if no parolee lived at Motley’s residence at the time of the search, the search violated Motley’s Fourth Amendment right to be free from warrantless searches.

The less stringent Fourth Amendment requirements for a parole search are the only justification the officers here have offered for why this search was constitutional. However, Jamerson had been incarcerated for six weeks at the time of the search, and Motley testified that her apartment was no longer Jamerson’s residence. Without requiring a close temporal connection between a parolee and the residence to be searched, officers would have carte blanche to search, without probable cause, any place where a parolee used to live. Eventually, as in this case, these searches would not affect the incarcerated “parolee” at all, only violate the privacy of the people he left behind.


Finally, the purpose of allowing parole searches without a warrant is to assure that the parole serves as a period of genuine rehabilitation and that the community is not harmed by the parolee’s being at large. When the parolee is no longer “at large” and the search no longer affects his interests, both of these justifications are absent. Construing the facts in her favor, Motley has established that the officers violated her Fourth Amendment right to be free of warrantless searches.

Merely relying on information that father lived at the apartment was insufficient in light of contrary evidence.

It is incumbent on the officer[s] executing a search warrant to ensure the search is lawfully authorized and lawfully conducted.  The Groh Court emphasized that unless there are exigent circumstances, officers are required to carefully ensure that  constitutional requirements are met when searching a person’s residence, and are not entitled to qualified immunity when they do not. Id. at 1294 n.9. The same care, if not more, must be taken when the officers are searching without a warrant, under an exception to the warrant requirement.

The searching officers’ responsibilities include a duty to conduct a reasonable investigation: Although a police officer is entitled to rely on information obtained from fellow law enforcement officers, . . . this in no way negates a police officer’s duty to reasonably inquire or investigate these reported facts.  Furthermore, the fact that the officer relied on information received from another law enforcement officer does not ipso facto mean that he was not reckless.


We recognize that law enforcement officers cannot always believe what citizens tell them. However, here, there were no exigent circumstances, the officers had no reasonable suspicion that Jamerson was involved in criminal activity, and Motley told them unequivocally that Jamerson was in custody, even in the face of the officers’ lies. The officers had only been given Jamerson’s name and last known address and they knew the information might not be current because of the transient nature of parolees. Once Motley informed them that Jamerson did not live there, all the officers would have had to do is make one phone call to determine whether Jamerson was in custody. They did not. If Motley’s testimony is true, it was not reasonable for the searching officers to believe that Jamerson lived in Motley’s home.

The court denied the officers' qualified immunity defense because there was no good reason to believe that father lived there (he'd been in jail for 6 weeks and the officers could easily have confirmed this).  And, in 1999, the law in the Ninth Circuit was sufficiently clear that a reasonable officer would have know that you can't search even a parolee's home unless you have probable cause to believe that he lives there.

Failure to update parolee information.

Just as a warrant must be supported by probable cause, in March 1999 it was clearly established that officers must have reason to believe that a parolee lives at a certain address; without the requisite cause, the officers cannot constitutionally conduct a parole search. As the supervisor in charge of the search, Ruegg was responsible for ensuring that the searching officers had that substantial evidence. Instead, Ruegg delegated the task of checking Jamerson’s parole status to some unnamed person at least six weeks before the search took place.  Ruegg then relied on the stale information, without using any of three easily available methods of checking Jamerson’s parole status on or anytime near the day of the search.7 Ruegg admitted he knew that parolees did not always live at the addresses they listed when they were first released, yet he did not even contact Jamerson’s parole officer to obtain any current information about where Jamerson actually lived. In short, Ruegg dispatched officers to conduct a parole search without any evidence that Jamerson was connected to a specific criminal activity and without sufficient evidence to support probable cause, let alone a reasonable suspicion that Jamerson lived at the given address at the time of the search.

Under these circumstances, as the supervisor of the Unit and the search in question, it was not reasonable for Ruegg to simply assume that the information about Jamerson was accurate. We therefore reverse the district court’s determination that Ruegg was entitled to qualified immunity for his role in the search.

Did Kading use excessive force when he pointed the gun at baby?
Use of a weapon against someone who is helpless constitutes excessive force. Pointing a gun at a person’s head can constitute excessive force. Most importantly, in 1999, no reasonable officer could have believed that pointing a gun at a child, particularly a five-week-old baby, was reasonable during the course of a non-exigent (and unconstitutional) search.  Officer Kading is not entitled to qualified immunity for pointing a deadly weapon at a tiny infant.

Was it unreasonable for the other officers to fail to intervene?

Even if the officers had substantial reason to believe that Jamerson lived in Motley’s home, Kading, Sanchez, and Black would be liable for violating Motley’s Fourth Amendment rights, because they conducted — or allowed the search to be conducted — in an unconstitutional manner. It has long been clear that a parole search is unreasonable under the Fourth Amendment if it is conducted in a harassing manner.


Of the four officers who went to Motley’s apartment, only Webster never entered the home. Each of the other officers either participated in harassing and intimidating Motley and her child during the search, or failed to intervene to stop the harassment. An officer who failed to intercede when his colleagues were depriving a victim of his Fourth Amendment right to be free from unreasonable force in the course of an arrest would, like his colleagues, be responsible for subjecting the victim to a deprivation of his Fourth Amendment rights.  A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers. If Motley’s testimony is true, any reasonable officer would have known that this search was harassing and unreasonable under the Fourth Amendment. Kading, Black, and Sanchez are not entitled to qualified immunity for the unconstitutional search of Motley’s home.

September 26, 2004 in 42 U.S.C. 1983 (Elements), Excessive Force | Permalink | Comments (0) | TrackBack

September 13, 2004

A Case to Watch


From the Eighth Circuit comes this unpublished order:

These facts, viewed in the light most favorable to McDermott, demonstrate the following: During the early morning hours of January 23, 1998, police officers from the City of Springfield, Missouri, arrived at McDermott’s residence for the purpose of arresting her son on charges of driving while intoxicated. When McDermott became aware of the arrest, she stepped onto her front porch and began to harass or otherwise annoy the police, telling them that they had no right to search her son’s vehicle without a warrant and that they should leave her private property. At no point did she offer any force or violence, or threat thereof, nor did she seek to close the distance between herself and the police. The police informed McDermott that if she did not quiet down and go back inside her residence, she would be arrested and taken to jail. When McDermott refused to relent, the police made good on their threat: McDermott was subsequently arrested and charged with a violation of § 26-17 of the Springfield, Missouri, City Code. McDermott was ultimately acquitted on all charges against her stemming from this altercation.

Under these circumstances, we believe that McDermott has raised a viable (if not ultimately successful) claim that her First Amendment rights were violated insofar as she was arrested, charged, and prosecuted for the mere verbal harassment of the Defendant police officers. See City of Houston v. Hill, 482 U.S. 451, 455 (1987) (striking down as unconstitutionally overbroad a municipal ordinance prohibiting an individual from “oppos[ing], molest[ing], abus[ing] or interrupt[ing] any policeman in the execution of his duty”) (quoting HOUSTON, TEX., ORDINANCES 34-11(a) (1984)); id. at 462-63 (“The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”); see also City of Columbia v. Hardin, 963 S.W.2d 6, 10 (Mo. Ct. App. 1998) (noting that a conviction for an analogous offense of obstructing government operations under the municipal code of Columbia, Missouri, requires proof of physical interference).

McDermott v. Thomas Dean Royal, No. 03-3690 (8th Cir., Sept. 10, 2004) (unpublished order).

September 13, 2004 in 42 U.S.C. 1983 (Elements), Free Speech | Permalink | Comments (0) | TrackBack

August 08, 2004

Deliberate Indifference


Does Harris County, Texas have a policy or custom in place that shows deliberate indifference for a citizen's constitutional rights? You decide.

Landscape contractor Blair Davis was in his northwest Harris County home around 2 p.m. Tuesday when there was a knock at his door.

Davis said he hadn't even gotten his hand on the doorknob when it flew open and he was looking at the barrel of a pistol.

Behind the gun were about 10 members of the Harris County Organized Crime and Narcotics Task Force, who burst into the home, guns drawn, and began shouting at him to get down on the floor.

There on the floor, Davis said, it took a while to figure out that what had caused the swarm of lawmen to descend upon him was the hibiscus in his front yard.

That's right, hibiscus.
Evidently, some well-meaning but horticulturally challenged citizen turned Davis in. Davis said the team of narcotics officers combed his house for about an hour, at one point discussing whether red and gold bamboo growing in his window might be marijuana. They also asked what he did with the watermelons and cantaloupes growing in his back yard.

"What would I do with them?" Davis said.

Finally the officers gave up and left, leaving Davis only a "citizen's information card" with "closed-report" written on it.

"No apology, no nothing," Davis said. "I realize they have a job to do, but this seems a little bizarre."

CrimLaw shows us the difference between a hibiscus and marijuana plant here.

August 8, 2004 in 42 U.S.C. 1983 (Elements), Deliberate Indifference | Permalink | Comments (0) | TrackBack