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

October 20, 2005

Suing Social Workers Under Section 1983: Prosecutorial Immunity?

Mike

Are social workers entitled to absolute immunity when they decide to initiate custodial termination proceedings against a parent?  This is a fascinating question, and it's an issue the Supreme Court has not squarely addressed.  Today the Eighth Circuit joined several other circuits in holding that social workers, when they seek to terminate custodial rights, are acting like prosecutors, and therefore are entitled to absolute immunity.  Wrote the court:

[T]he district court correctly applied absolute immunity to shield the defendants from liability for initiating or maintaining judicial proceedings.  To the extent a state authorized child welfare agency and its worker are sued for initiating judicial proceedings, the welfare worker’s role was functionally comparable to that of a prosecutor.  Accordingly the decision to file charges is protected, even in the face of accusations of: vindictive prosecution, or reckless prosecution without jurisdiction, or conspiracy to prosecute for a crime that never occurred.

Abdouch v. Burger, No. 04-3966, slip op. at 10 (8th Cir. Oct. 20, 2005). UPDATE:  In his briefs, Abdouch's lawyer wrote: plaintiff "does not question the initiation of the abuse and neglect proceeding."  The panel, although ultimately deciding for the social worker because the plaintiff did not state a prima facie case, thus inserted the quoted language to clarify the law.  (It's dicta, but it's dicta that will remain.)  Although the briefs for the plaintiff were generally excellent, they missed the important issue of social worker immunity, and they do not argue for a historical inquiry under Justice Thomas' theory noted below.  Indeed, in two briefs (appellant, reply) the plaintiffs only spent 2 pages discussing absolute immunity at all, and even those two pages only peripherally touch the issue.  Whether the social worker would have been entitled to absolute immunity is an issue that someone well versed in this area of law would have immediately spotted.  This is yet another example where even very good lawyers (and the plaintiff's lawyers, judging by their writing abilities, were excellent) miss issues in Section 1983 cases.

I'm not sure any members of the Supreme Court care to hear the case, so I'm not filing this under "Cert. Watch," but over ten years ago Justices Thomas and Scalia had this to say about absolute immunity for social workers:

Consideration of the function performed by an official seeking absolute immunity plays an important role in our immunity analysis. Function, however, becomes significant only when evaluated in historical context. A related inquiry precedes the functional analysis: Our initial inquiry is whether an official claiming immunity under § 1983 can point to a common-law counterpart to the privilege he asserts. Although § 1983 on its face admits of no defense of official immunity, certain immunities were so well established in 1871, when § 1983 was enacted, that 'we presume that Congress would have specifically so provided had it wished to abolish' them.  We therefore have held that some officials are, under certain circumstances, entitled to absolute immunity. An official seeking such immunity, however, must at the outset show that a counterpart to the privilege he asserts was recognized at common law in 1871, for where we have found that a tradition of absolute immunity did not exist as of 1871, we have refused to grant such immunity under § 1983.

The courts that have accorded absolute immunity to social workers appear to have overlooked the necessary historical inquiry; none has seriously considered whether social workers enjoyed absolute immunity for their official duties in 1871. If they did not, absolute immunity is unavailable to social workers under § 1983.  This all assumes, of course, that "social workers" (at least as we now understand the term) even existed in 1871. If that assumption is false, the argument for granting absolute immunity becomes (at least) more difficult to maintain.

Hoffman v. Harris, 114 S. Ct. 1631 (1994) (Thomas, J., dissenting from denial of cert.)

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

September 15, 2005

Prosecutorial Immunity in the Second Circuit

Mike

If you want to learn more about prosecutorial immunity generally, or to learn about some specific Second Circuit cases, you can download this summary I wrote.

Download prosecutorial_immunity_in_the_second_circuit.pdf

September 15, 2005 in 42 U.S.C. 1983 (Immunities) | Permalink | Comments (0) | TrackBack

Second Circuit Prosecutorial Immunity Decision

Mike

The indispensible (seriously, who else covers the Second Circuit this well?) "Happy Fun Lawyer" has an excellent summary of a recent prosecutorial immunity decision.  Read it here.

September 15, 2005 in 42 U.S.C. 1983 (Immunities) | Permalink | Comments (0) | TrackBack

September 07, 2005

Land Use and Legislative Immunity

Mike

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

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

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

September 7, 2005 in 42 U.S.C. 1983 (Immunities) | Permalink | Comments (0) | TrackBack

September 01, 2005

Bozeman v. Orum

Norm Pattis

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

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

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

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

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

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

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

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

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

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

September 1, 2005 in 42 U.S.C. 1983 (Immunities) | Permalink | Comments (0) | TrackBack

August 19, 2005

Beating Up Litigant is Not a Judicial Act

Mike

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

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

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

August 19, 2005 in 42 U.S.C. 1983 (Immunities) | Permalink | Comments (1) | TrackBack

August 10, 2005

Prosecutorial Immunity and the "Functional Approach"

Mike

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

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

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

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

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

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

August 10, 2005 in 42 U.S.C. 1983 (Immunities), 42 U.S.C. 1983 (Theory, Tips, Resources) | Permalink | Comments (0) | TrackBack

July 21, 2005

Right to Not be Arrested for Onlooking Clearly Established

Mike

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

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

***

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

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

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

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

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

July 21, 2005 in 42 U.S.C. 1983 (Immunities) | Permalink | Comments (4) | TrackBack

July 06, 2005

Qualified Immunity and Jury Instructions

Mike

Steve Minor has an interesting post on jury instructions and qualified immunity here.

July 6, 2005 in 42 U.S.C. 1983 (Immunities) | Permalink | Comments (3) | TrackBack

April 11, 2005

Notice, Deliberate Indifference, and Supervisory Liability

Mike

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

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

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

The uncontradicted evidence regarding Allen Hill's conduct included:

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

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

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

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

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

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

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

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

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

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

April 11, 2005 in 42 U.S.C. 1983 (Immunities), Cert. Watch, Deliberate Indifference | Permalink | Comments (2) | TrackBack

April 06, 2005

Expansive Reading of Tennessee v. Lane

Mike

Today CA11 answered, "No," to this question: "[W]hether the Eleventh Amendment prevents a disabled person from suing a state university under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. ('Title II of the ADA')."  The decision is available here.

(Hat tip: How Appealing).

April 6, 2005 in 42 U.S.C. 1983 (Immunities), Cert. Watch, Federal Powers | Permalink | Comments (0) | TrackBack

March 13, 2005

Ninth Circuit Reversals

Mike

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

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

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

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

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

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

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

March 13, 2005 in 42 U.S.C. 1983 (Immunities), Ninth Circuit Activism (Real and Imagined) | Permalink | Comments (0) | TrackBack

October 08, 2004

Sheriffs in Vermont

Mike

A sheriff in Vermont acts as a state official, and thus is not suable under section 1983. Huminski v. Corsones, 2004 WL 2248175 (2d Cir., Oct. 7, 2004) (slip opinion here).

October 8, 2004 in 42 U.S.C. 1983 (Immunities) | Permalink | Comments (0) | TrackBack

October 05, 2004

Parole Officers' immunity in the Ninth Circuit

Mike

Are parole officers entitled to absolute (quasi-judicial immunity) for all acts taken in their official capacities?

No - Quasi-judicial immunity only covers a parole officer's acts that are intimately related to the decision to grant, deny, or revoke parole.

Michael Swift was sentenced to 16 months in a California prison for passing a forged check. After his prison term was over, he went to Iowa to serve his parole, pursuant to the Interstate Parole Compact. This means that Swift was potentially under the supervision of 3 bodies: California parole officials; Iowa parole officials; and the Interstate Parole Supervision Unit.

Soon enough, Swift was arrested for committing domestic violence. Since committing domestic violence is grounds for termination of parole, the IPSU suspended his parole; issued a warrant for his arrest; and reported him to NCIC. [Ed's note: The National Crime Information Center is a national database that allows law enforcement officials anywhere in the country to determine if there is a warrant out for your arrest.]

After Swift was acquitted, Iowa parole officials conducted a Morrisey hearing. [Ed's note: A parolee can be put back into jail for violating his parole even if he is acquitted of the criminal charges that gave rise to his parole violation. In other words, violating the terms of your parole is separate and distinct from violating a criminal law.] The magistrate at Swift's Morrisey hearing found only trivial parole violations that did not warrant revocation of his parole. In 1998, Swift satisfactorily finished his term of supervised release.

Iowa parole officials told the IPSU that Swift was off parole and that he was not found in violation of his parole. However, the IPSU did not tell California officials, nor recall the arrest warrant.

Fast forward to April 11, 2001: Swift has been off parole for about 3 years. He calls California's parole department (CDC) and to tell them about the invalid warrant. He speaks with an agent who releases Swift pending verification of his story.

A couple of days later, Martiza Rodriguez and Steve Christian - who both worked for CDC - decided to arrest Swift for violating his parole. [Ed's note: I know, I know. How could Swift violate the terms of parole when he was off parole? The answer is, he could not, and that's why he's suing them.]

Swift is called back into the office, arrested, sent to the San Diego County jail, and then transferred to prison - where he sat until June 7, 2001. Swift alleges that while he was in prison, Christian suppressed exculpatory material relating to Swift's satisfactory completion of parole.

At the parole revocation hearing, the hearing officer cleared Swift, saying that he had been off parole since November 16, 1997.

Swift rightfully filed a section 1983 action. Rodriguez and Christian asserted absolute immunity. In an opinion joined by Judges Nelson and Fisher, Judge Tashima wrote:

The Supreme Court has reserved deciding whether members of state parole boards have absolute quasi-judicial immunity for their official actions. We have held, however, that parole board members are entitled to absolute immunity when they perform quasi-judicial functions. Thus, parole board officials of the BPT are entitled to absolute quasi-judicial immunity for decisions to grant, deny, or revoke parole because these tasks are functionally comparable to tasks performed by judges. Absolute immunity has also been extended to parole officials for the imposition of parole conditions and the execution of parole revocation procedures, tasks integrally related to an official’s decision to grant or revoke parole.

We have also explained, however, that parole officials are not entitled to absolute immunity for conduct not requiring the exercise of quasi-judicial discretion. There is no reason to clothe actions taken outside an official’s adjudicatory role with the absolute immunity tailored to the demands of that role. Thus, while parole officials may claim absolute immunity for those actions relating to their responsibility to determine whether to revoke parole, their immunity for conduct arising from their duty to supervise parolees is qualified. [U]nder a functional analysis, parole officials may be accorded one degree of immunity for one type of activity and a different degree for a discrete function.


Slip opinion at 7-8 (citations and quotation marks omitted).

The panel found that Rodriguez and Christian were acting more like police officers than judges, and thus, were not entitled to absolute immunity.

Christian and Rodriguez’s actions requesting that the BPT initiate revocation proceedings, were more akin to a police officer seeking an arrest warrant, than to a prosecutor exercising quasi-judicial discretion to initiate criminal proceedings.
Id. at 15.

October 5, 2004 in 42 U.S.C. 1983 (Immunities) | Permalink | Comments (1) | TrackBack

September 27, 2004

Genzler v. Longanbach

Mike

A 1983 case from the Ninth Circuit today thoroughly explicates prosecutorial immunity and is a worthy read. I'm finishing it up now and will blog about it soon. Genzler v. Longanbach

September 27, 2004 in 42 U.S.C. 1983 (Immunities) | Permalink | Comments (0) | TrackBack

September 07, 2004

Sovereign Immunity in Takings Cases

Mike

I just came across DLX, Inc. v. Commonwealth of Kentucky, 2004 WL1899871 (6th Cir. 2004), which seems to say that state courts must hear takings cases brought against the states, sovereign immunity notwithstanding. I am posting the relevant language now but will blog about it soon.

But closer examination of each of these authorities reveals that they are concerned not with abrogating the states' Eleventh Amendmentimmunity in federal court, but with noting that the Fifth Amendment'srequirement of just compensation forces the states to provide ajudicial remedy in their own courts. "[T]he Constitution mandates theavailability of effective remedies for 'takings' and for the coercivecollection of taxes, and accordingly requires courts to provide those remedies, 'the sovereign immunity States traditionally enjoy in theirown courts notwithstanding.'" Hart & Wechsler, supra, at 379 (quoting Reich v. Collins, 513 U.S. 106, 110 (1994)). Reich explicitly holds that the requirement of a remedy for unconstitutional taxes does not trump "the sovereign immunity States enjoy in federal court, under theEleventh Amendment." 523 U.S. at 110. First English makes clear thatthe Fifth Amendment Takings Clause is a self-executing remedy, notwithstanding sovereign immunity. See 482 U.S. at 316 n.9.Therefore, had DLX brought a federal claim with its state claim instate court, the Kentucky courts would have had to hear that federal claim, and likely could not have required exhaustion as a prerequisiteto hearing the federal claim, see Felder v. Casey, 487 U.S 131, 146-47(1988), but this court is powerless to hear it.

(Hat tip: ACS Blog)

September 7, 2004 in 42 U.S.C. 1983 (Immunities) | Permalink | Comments (0) | TrackBack