We're spinning a blog off. All of Crime & Federalism's Section 1983-related posts are going to be posted to a new blog, creatively entitled: Section 1983 Blog. That blog will provide serious legal analysis only. It will be more technical than our postings here.
Baird v. Renbarger, No. 08-2436 (CA7) (denying qualified immunity to police officer who pointed submachgine gun at citizens who posed no threat to officers) provides an outstanding discussion of excessive force within the context of pointing a gun at civilians who poses no threat to the officer. Check it out.
The Eighth Circuit Court of Appeals issued an opinion I'll need to review later. Here is the Clerk's summary:
Although the general rule in cases arising under 42 U.S.C. Section 1983 is that a plaintiff need not exhaust administrative remedies before turning to the Courts for relief, there is an exception in the case of takings claims. The exception makes little sense.
Patsy v. Board of Regents, 457 U.S. 496 (1982) held that exhaustion is not required in 1983 claims. Yet three years after the Patsy holding, the Supreme Court decided Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985). Williamson requires a plaintiff to obtain a final decision about the property in question from the government agency implementing the relevant regulations. A plaintiff must also pursue "reasonable, certain. and adequate" procedures for obtaining just compensation. Id., at 194. In the Second Circuit, that means a plaintiff may well be required to seek a state court remedy even where the remedy remains "unsure and developed." Villager Pond, Inc. v. Darien, 56 F.3d 375, 380 (2d Cir. 1995).
The Williamson court notes that it is not requiring exhaustion at all. It merely holds that a claim is not ripe until these preliminary steps are taken.
A recent Connecticut case illustrates how odd the ripeness doctrine looks in a 1983 claim alleging an unlawful taking. A plaintiff alleged that she was promised credit toward a degree if she did web design for a professor. The student did the work, but the credit wasn't given. She sued, alleging, among other things, a taking. The District Court granted summary judgment after denying a motion to dismiss. The court held that because the plaintiff can state a claim in state court for a taking under the state constitution, the matter was not ripe for federal adjudication. Leone v. Whitford, et al, 3:05cv823 (JCH).
This seems like an unusual application of Williamson. No regulatory provision seems to govern a taking of this sort. Indeed, the taking is akin to common-law theft of services. And in the absence of any claim of such a regulatory scheme, it seems ad hoc to require plaintiffs to first sue in state court. This effectively closes the doors of the federal court house to plaintiffs who lose in a state court action. Should the plaintiff lose in state court her claim will be res judicata in the federal court.
The Leone case is one of mine. I would appreciate comments from 1983 practitioners on law review articles and similar cases as I evaluate the merits of an appeal.
Szabla v. City of Brooklyn Park, No. 04-2538 (8th Cir. Dec. 1, 2005) is a sad tale. In Szabla the plaintiff wanted to work, but he had no place to live. He thus went to sleep at a local park that was across the street from a day-labor company. Mr. Szabla was going to wake up at 5:30 a.m. and look for a job. Unfortunately, he was attacked by a police dog.
While investigating a nearby automobile accident, Steven Baker told
the police dog to "track." A dog told to "track" looks for a person,
and then bites the person without warning. A dog told to "search"
looks for a person, but waits until told to "bite," to bite the person
After being told to "track," the dog pulled the police officer
towards Mr. Szabla, and without provocation, the dog bit him - leaving
23 puncture wounds in Mr. Szabla's legs. Mr. Szabla sued the officers and the city. And who can
blame him. All he wanted to do was work; police officers prevented
that. Mr. Szabla sued under an excessive force theory. (Predicated on the Fourth Amendment, to state a
claim under an excessive force theory, the plaintiff has to show that
the police officer used objectively unreasonable force when searching or
seizing a person.) Recent caselaw supported Szabla's claim.
In Kuha v.
City of Minnetonka, 365 F.3d 590 (8th Cir. 2004),
a three-judge panel of the Eight Circuit held that the police had to
give a warning before sending the dogs after a suspect. Id. at 598 (holding that "a jury could properly find it objectively
unreasonable to use a police dog trained in the bite and hold method without first
giving the suspect a warning and opportunity for peaceful surrender.") Mr. Szabla was injured a couple of years before Kuha was decided, and thus the panel held that the officers had qualified immunity.
The panel properly held that although the officers were entitled to
qualified immunity, the city was not. (Although municipalities are not
entitled to qualified immunity, it is so difficult to state a claim
against them that they have protection almost equal to qualified
immunity.) Here, the panel noted that the in the city's dog-handling
policy manual, there was no mention of the need for officers to give
suspects a warning before siccing a 75-lb. German Shepherd on someone.
A jury could infer from the absence of this warning that the city was
deliberately indifferent to citizens' Fourth Amendment rights.
Judge Colloton dissented because he thought the deliberate-indifference standard the panel applied wasn't strict enough. Whether or not a judge applies the deliberate-indifferent standard used by the majority or the dissent will literally "make or break" a municipal liability case. Someone could write a great law review by analyzing the way in which courts define and apply deliberate indifference in municipal liability cases.
To state a procedural due process claim, the plaintiff must prove not simply that some government act injured her reputation; she must also prove she suffered some additional harm. This is know as the "stima plus" requirement. In Neil v. Fields, No. 04-3743 (8th Cir. Dec. 1, 2005), a nurse sued after her state's nurse-licensing board disclosed to a prospective employer that the nurse was under investigation for misconduct. After learning about the pending investigation (but without having learned about the nature of the allegations), the hospital refused to hire the nurse. The nurse sued the state licensing director under Section 1983, alleging a stigma-plus claim. A unanimous three-judge panel rejected the nurse's claim, and in the process, created a high hurdle for Section 1983 litigants to meet:
Injury to reputation alone is not a liberty interest protected under the Fourteenth Amendment. Accordingly, we have limited this claim to cases in which a public employer terminated an employee and published reasons for the discharge that seriously damaged the employee’s standing in the community or foreclosed other employment opportunities. We further limit this claim to government accusations "so damaging as to make it difficult or impossible for the employee to escape the stigma of those charges." [E.g., where the state makes allegations of "dishonesty, immorality, criminality, racism, and the like."] Here, Neal is not a terminated public employee, nor has she suffered the arguably analogous injury of license revocation. The Board has disclosed only the fact of an investigation, not the allegations being investigated (whether sufficiently stigmatizing or not). Thus, the complaint fails to state a procedural due process liberty interest claim as a matter of law.
Slio op. at 4-5 (citations omitted).
Today the Ninth Circuit held that it was unconstitutional for a police officer to seize a vehicle under the community caretaker doctrine. Miranda v. City of Corneliu (here). The panel's opinion was exactly right, though I would not be surprised if the Court summarily reversed. When one looks at the facts of the case, and the rationale for the community caretaker doctrine, the correctness of the panel's opinion is inescapable.
A husband wanted to teach his wife how to drive. Husband had a license, wife did not have a license. Fifteen-year-old high school students obtain blue slips and regularly learn how to drive from a licensed driver, usually a parent. But because the Mirandas did not speak English well, they did not know about such driver's ed. programs.
The wife drove through their neighborhood at about 10 m.p.h. A police officer saw the car moving slowly and pulled them over just as they were pulling into their driveway. Rather than giving the Mirandas a warning, the police officer ticketed both of them. He also had their car impounded.
Having one's care impounded is a major hassle. During my first year in law school I went to a meet a friend at the Los Angeles courthouse. Because the meter maid did not see my registration sticker that was visible in the back window of my car, he or she had my car impounded.
The impound lot was in a very seedy place - not the type of place for smaller-sized people. They told me it would cost $425 to recover my car. My then-fiance and I - both of us students - did not have $425 laying around. We had to borrow the money from a relative. All said, it took us over 6 hours to recover a car that should never have been impounded.
Why is the impound fee so expensive? Simple: the city shares in the
revenue. Impound fees are basically another way for cities to tax
people. Thus, when the police officer had the Mirandas' car seized from their
drive-way, he was putting them through great fiscal and emotional
stress - all so the city could pick up a few extra bucks, and not so the public could be protected from a road hazard.
With the help of the Oregon Law Center, the Mirandas files a Section 1983 action against the city. They city argued that because the officer seized the car subject to a traffic stop, the seizure was per se constitutional. In other words, under the city's view, any time the police stop you, they can take away your car. This rule would have been a radical departure from existing law. Thankfully the Ninth Circuit rejected this invitation for judicial activism.
When it comes to traffic stops where there is no reason to believe guns, drugs, or other illegal things are hidden in the care, the police only have the power to seize a motorist's car under the "community caretaker" exception to the Fourth Amendment. Under this exception, first articulated in Cady v. Dombroski, the police may seize a motorist's vehicle to protect the public. Having a car hanging out on the side of the road is dangerous. Thus, by removing the car, the police are serving as "community caretakers." (That this exception is regularly abused, and often serves as a pretext to what would otherwise be unconstitutional searches is irrelevant here.)
However, how did the police act as a community caretaker here? The car was parked in the Mirandas' driveway. The car did not present a hazard to others. Thus, the community caretaker-rationale imploded.
Indeed, seizing someone's car when there is a licensed driver in the car has always seemed to me to fall outside the community caretaker exception. Again, the community caretaker exception's rationale is that the police should not leave cars that will serve as road hazards. If there is a licensed driver in the car, then the car will not remain unattended on the side of the road. Here, it's more perverse: Not only was the car not going to be left by the side of the road, but the car was in a driveway.
The Ninth Circuit got this one right, and properly held that a car parked in a driveway that does not contain anything illegal in it cannot be seized under the community caretaker exception.
I. Hope v. Pelzer's Background. (Skip to Part II if you're familiar with the case.)
Under 42 U.S.C. 1983, a state actor is liable for violating the rights of others. Prisoners in state prison have the right under the Eighth and Fourteenth Amendment to be free from "cruel and unusual punishment." In Hope v. Pelzer (here) Larry Hope sued under Section 1983 after prison guards allegedly handcuffed his arms to a metal bar. His arms were cuffed above shoulder level. They had made him take off his shirt, and left him in the Alabama sun for seven hours. They denied him bathroom breaks, and when he asked for water, they mocked him. They then gave some water to the dogs, and kicked over the water cooler.
In Section 1983 actions, government officials can assert the qualified immunity defense. In sum, they won't be held liable even if they violate someone's constitutional rights, if the person's constitutional rights were clearly established. The prison guards argued that the right to not be left in the Alabama sun without water for over seven hours, while perhaps being cruel and unusual punishment, wasn't something a prison guard would have known was cruel and unusual. In other words, pehaps taking a low view of what prison guards are expected to know, they argued that prison guards would have thought they behaved just fine.
The Supreme Court rejected that view in a 6-3 opinion; Larry Hope's case could go to trial. Mr. Hope's lawyers tried his case before a judge instead of a jury. After Hope's lawyers finished their arguments, the judge dismissed the case, writing that Hope's case failed as a matter of law. (Called a "Rule 50 order" after Rule 50 of the Federal Rules of Civil Procedure; the judge's order dismissing the case is here. You can read Scott Simonson's excellent article about the case here.)
II. The trial court's order.
Either the judge or her law clerk didn't fully understand the law, and wrote a confused order. The judge wrote:
To prevail on an Eighth Amendment challenge, a prisoner must satisfy both an objective and subjective test. Chandler v. Crosby, [here] 379 F.3d 1278, 1289-90 (11th Cir. 2004). Under the objective analysis, the "prisoner must prove that the condition he complains of is sufficiently serious to violate the Eighth Amendment." Id. at 1289. Pursuant to the subjective analysis, the prisoner must show that the prison officials acted with "deliberate indifference" with regard to the condition at issue. Id. A prison official acts with "deliberate indifference" when he is "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Id. at 1290.
Rule 50 order. This is a clumsy way of writing things, and someone unfamiliar with this area of law would justifiably be a little confused. But it would be good enough, if didn't get so murky later on:
Although the use of the restraining bar in this case constituted cruel and unusual punishment, as found by the Supreme Court in Hope v. Pelzer, 536 U.S. 730, 737-78 (2002), Plaintiff failed to meet his burden of proof as to the individual liability of the three named defendants. Specifically, Plaintiff offered no evidence to prove that any of the individual defendants acted with deliberate indifference, or were aware of a substantial risk of serious harm. Merely showing that an Eighth Amendment violation occurred, without more, is not sufficient to impose liability on the defendants in this case.
Id. at 1-2 (emphasis added). Yet "showing an Eighth Amendment violation occurred," by definition, means that the the plaintiff proved deliberate indifference. Thus, so best as I can tell, here is what the judge was trying to say:
To prevail in this case, Plaintiff must prove that the condition he complains of constitutes cruel and unusual punishment forbidden by the Eighth Amendment. He must also show that the defendants acted with deliberate indifference with regard to the condition at issue. A prison official acts with deliberate indifference when he, through more than mere negligence, has a (1) subjective knowledge of a risk of serious harm; and (2) he disregards that risk.
In other words, something cruel and unusual must have happened to the prisoner. Cruel and unusual pulishment includes "[t]he unnecessary and wanton infliction of pain," Whitley v. Albers, (here), which are painful things guards to do prisoners "that are
totally without penological justification." Rhodes v. Chapman (here). The Supreme Court noted that, as a matter of law, what happened to Hope was cruel and unusual punishment.
Second, the cruel and unusual punishment must have resulted from a prison guard's deliberate indifference. In other words, when the prisoner says, "Hey, in case you forgot, I've been in the sun for 7 hours. This is Alabama. I haven't had any water. I'm could get heat stroke," the guards must think: "Who cares?" That is, they are indifferent, not because they don't know, or because they're absent-minded professors, but because they do know and don't care. In legalese, here is how the Eleventh Circuit (the law that the trial judge was bound to apply), defines deliberate indifference:
[D]eliberate indifference has three components: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence.
West, 320 F.3d 1235, 1245 (11th Cir. 2003). The prison guards were more than "mere[ly] negligence," since they actually handcuffed the guy to the hitching post. So much for the third factor. Thus, the issue before the trial court was this: Did the prison guards have "(1) [a] subjective knowledge of a risk of serious harm," and did they "(2) disregard ... that risk"?
Since deliberate indifference is basically an evil intent, the plaintiff can prove this using circumstantial evidence: the act itself can prove the mental state. That is, if the act itself is so dangerous or evil, the court can infer that the person doing the act intended to harm the person. If someone hits you with a baseball bat in the head, the court can infer that the person intended to harm you, since people don't hit others in the head with baseball bats unless they want to harm someone. Thus, the Supreme Court wrote in Hope v. Pelzer: "We may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious."
Is leaving someone outside with his arms handcuffed to a metal pole, and denying him water and bahtroom breaks obviously harmful? Does taunting someone who is begging for water wanton and cruel? To use a legal term of art: Well, duh.
Yet here the judge wrote: "Plaintiff offered no evidence to prove that any of the individual defendants acted with deliberate indifference, or were aware of a substantial risk of serious harm." Order at 2. This can't be true. The plaintiff offered "evidence to prove that ... the individual defendants acted with deliberate indifference," by offering evidence that the guards handcuffed him to the hitching post. Here, offering evidence of the underlying act, by definition, meant offering evidence of the defendant's mental state.
Unfortunately, given the way standards of review work, the plaintiff here might well lose his appeal. Then again, a trial court's incorrectly applying the law is subject to de novo review. (That, is the appellate court won't defer to the trial court.) The judge's Rule 50 Order is sufficiently confused that perhaps the plaintiff's lawyer can show that the judge reached her conclusion after misapplying the law.
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.