For reasons that are not entirely clear to me, Judge Shedd in the case of Henry v. Purnell decided to hold forth on a number of the oddities of the law of qualified immunity, in the Fourth Circuit.
The Supreme Court requires the two-parts of the qualified immunity to be addressed in a particular sequence, for reasons that are not entirely satisfactory. The initial inquiry is whether the plaintiff has stated or proven sufficient facts to show a constitutional violation - in other words, does the plaintiff have a case on the merits? If the trial court decides this first inquiry against the plaintiff, is it a decision based on qualified immunity, or not? And, does it matter?
Judge Shedd notes:
"When resolving cases on the first Saucier question, courts sometimes state that the absence of a constitutional violation entitles the defendant to qualified immunity. At least one circuit court has specifically rejected this approach, noting that a defendant in that instance prevails not because of qualified immunity but, instead, because the plaintiff "did not prove an essential element of the § 1983 claim." Ambrose v. Young, 474 F.3d 1070, 1077 n.3 (8th Cir. 2007). In several recent opinions, the Supreme Court appears to have segregated the initial Saucier inquiry of whether a constitutional violation occurred from the second inquiry of whether the defendant is entitled to qualified immunity. See, e.g., Morse v. Frederick, ___ U.S. ___, 127 S. Ct. 2618, 2624 & n.1 (2007) (expressly declining to decide the case on qualified immunity grounds based on the conclusion that no constitutional violation occurred); Groh v. Ramirez, 540 U.S. 551, 563 (2004) ("Having concluded that a constitutional violation occurred, we turn to the question whether petitioner is entitled to qualified immunity despite that violation."); Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (expressing "no view as to the correctness of the Court of Appeals’ decision on the constitutional question" because, in any event, "the Court of Appeals was wrong on the issue of qualified immunity"); see also id. at 601 (Breyer, J., concurring) (noting that Saucier "requires lower courts to decide (1) the constitutional question prior to deciding (2) the qualified immunity question")."
Of course, the characterization makes some practical difference when the defendant's motion for summary judgment is denied, because an ordinary denial of summary judgment on the merits is not immediately appealable, but denial of a motion for summary judgment based on qualified immunity is immediately appealable.
The second point is how does the burden of proof apply to a motion for summary judgment based on qualified immunity. This opinion, for the first time that I can recall, undertakes a thorough survey of the language from the Fourth Circuit precedents on this point, which are contradictory and inconsistent with the explanations from some other circuits. Qualified immunity is an affirmative defense, that the defendant must raise, but the burden of proving the claim on the merits is always on the plaintiff.
Judge Shedd explained:
"The plaintiff bears the burden of proof on the first question — i.e., whether a constitutional violation occurred."
He goes on to say:
"The defendant bears the burden of proof on the second question — i.e., entitlement to qualified immunity."
In making this statement, the judge noted that other circuits and some of the Fourth Circuits take the opposite view. I'm not sure that even makes sense to say the defendant has the burden of proof on what is essentially a legal question - was the constitutional right violated by the defendant clearly established?
Showing posts sorted by relevance for query qualified immunity. Sort by date Show all posts
Showing posts sorted by relevance for query qualified immunity. Sort by date Show all posts
Saturday, September 22, 2007
Wednesday, July 06, 2005
On jury instructions and qualified immunity
In Willingham v. Crooke, the Fourth Circuit in an interesting opinion by Chief Judge Wilkins held that the trial court erred in instructing the jury on the legal question of whether, on the facts found by the jury, the defendant was entitled to qualified immunity in a case brought under 42 U.S.C. § 1983.
Earlier, the District Court had granted the defendant's motion for summary judgment based on qualified immunity, and the court of appeals reversed, concluding that there was a question of fact as to whether the plaintiff had obstructed the defendant officers in their search. The plaintiff was charged with obstruction of justice, which is sometimes the catch-all statute in the Commonwealth for being a wise guy to the police. On remand, the trial court in its instructions gave the entirety of the qualified immunity issue to the jury, asking not only for the jury to determine what happened, but also for the jury to determine under those facts whether the defendants' conduct was reasonable "in light of the legal rules clearly established at the time of the incident."
On appeal, the Court first rejected the plaintiff's argument that the defendants had no qualified immunity defense after the earlier decision on appeal. The Court explained that the jury was not required to view the facts in the light most favorable to the plaintiff, and the Court in its earlier decision had not decided whether a reasonable officer would have known that his actions were unlawful under any and all versions of the facts.
Secondly, the Court agreed with the plaintiff's argument that the trial court went to far in presenting the issue to the jury. The Court explained that the existence of factual disputes does not mean that the jury gets to decide the essentially legal question of qualified immunity. Rather, the task of the jury is to resolve the factual disputes, leaving to the trial court the decision as to whether on the facts found by the jury the defendant is entitled to qualified immunity.
Several years ago, in article on qualified immunity, I wrote: "Qualified immunity ought to be determined long before trial, but where it is not, it remains an issue at trial. The court must define what is the clearly-established law. The jury with proper instructions and interrogatories should do no more than to decide the necessary facts. After the jury has determined disputed facts, qualified immunity remains an issue of law for the court to decide."
Citing many cases, the Court wrote: "The issue having now come before us, we hold that the legal question of a defendant’s entitlement to qualified immunity under a particular set of facts should be decided by the court, not by the jury. See Littrell v. Franklin, 388 F.3d 578, 584-86 (8th Cir. 2004); Swain v. Spinney, 17 F.3d 1, 9-10 & n.3 (1st Cir. 1997); Cottrell v. Caldwell, 85 F.3d 1480, 1487-88 (11th Cir. 1996); Warlick v. Cross, 969 F.2d 303, 305 (7th Cir. 1992). But see Oliveira v. Mayer, 23 F.3d 642, 649-50 (2d Cir. 1994) (holding that the district court erred in failing to submit the question of reasonableness to the jury); but cf. Curley v. Klem, 298 F.3d 271, 278-79 (3d Cir. 2002) (holding that once disputed factual questions are resolved, the question of the reasonableness of an officer’s actions may be decided either by the jury or by the court); but cf. also Maestas v. Lujan, 351 F.3d 1001, 1008-10 (10th Cir. 2003) (holding that the jury may decide the question of reasonableness if disputed facts are dispositive of that question); Fisher v. City of Memphis, 234 F.3d 312, 317 (6th Cir. 2000) (similar); Snyder v. Trepagnier, 142 F.3d 791, 799-800 (5th Cir. 1998) (similar), cert. granted, 525 U.S. 1098 (1999), cert. dismissed, 526 U.S. 1083 (1999)."
An interesting question not discussed in this case is - who has the burden of proof as to what happened. The instruction given by the trial court seemed to indicate that the burden was on the plaintiff to show facts that would prove the defendants were not entitled to qualified immunity. The instruction read in part: "If after considering the scope of discretion and responsibility generally given to police officers in the performance of their duties and after considering all of the surrounding circumstances of the case as they would have reasonably appeared at the time of the arrest you find from a preponderance of the evidence that Ms. Willingham has proved that [Sergeant] Crooke knowingly violated the law regarding Ms. Willingham’s constitutional rights, you must find for Ms. Willingham."
I still think, notwithstanding the language of a number of Fourth Circuit opinions, that it is at least an open question as to whether the plaintiff and not the defendant has the burden of proof, as a number of other circuits have so held, at different times. See Garretson v. City of Madison Heights, 407 F.3d 789, 798 (6th Cir. 2005) ("Garretson bears the ultimate burden of proof to show that the individual officers are not entitled to qualified immunity"); Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) ("Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate"); Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) ("The defendant official must initially plead his good faith and establish that he was acting within the scope of his discretionary authority. Once the defendant has done so, the burden shifts to the plaintiff to rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law."); Erwin v. Daley, 92 F.3d 521, 525 (7th Cir. 1996) (“Once a public official raises the defense of qualified immunity, the plaintiff bears the burden of proof on the issue”); Lenz v. Dewey, 64 F.3d 547, 550 (10th Cir. 1995) (“Once a defendant asserts qualified immunity, the plaintiff bears the burden of proving that the defendants violated a law that was clearly established”).
The last time I checked, the Supreme Court had not squarely addressed the issue. See Gomez v. Toledo, 446 U.S. 635, 642 (1980) (Justice Rehnquist reads the opinion “to leave open the issue of the burden of persuasion, as opposed to the burden of pleading”); see also Davis v. Scherer, 468 U.S. 183, 190 (1984) (“defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard”).
Earlier, the District Court had granted the defendant's motion for summary judgment based on qualified immunity, and the court of appeals reversed, concluding that there was a question of fact as to whether the plaintiff had obstructed the defendant officers in their search. The plaintiff was charged with obstruction of justice, which is sometimes the catch-all statute in the Commonwealth for being a wise guy to the police. On remand, the trial court in its instructions gave the entirety of the qualified immunity issue to the jury, asking not only for the jury to determine what happened, but also for the jury to determine under those facts whether the defendants' conduct was reasonable "in light of the legal rules clearly established at the time of the incident."
On appeal, the Court first rejected the plaintiff's argument that the defendants had no qualified immunity defense after the earlier decision on appeal. The Court explained that the jury was not required to view the facts in the light most favorable to the plaintiff, and the Court in its earlier decision had not decided whether a reasonable officer would have known that his actions were unlawful under any and all versions of the facts.
Secondly, the Court agreed with the plaintiff's argument that the trial court went to far in presenting the issue to the jury. The Court explained that the existence of factual disputes does not mean that the jury gets to decide the essentially legal question of qualified immunity. Rather, the task of the jury is to resolve the factual disputes, leaving to the trial court the decision as to whether on the facts found by the jury the defendant is entitled to qualified immunity.
Several years ago, in article on qualified immunity, I wrote: "Qualified immunity ought to be determined long before trial, but where it is not, it remains an issue at trial. The court must define what is the clearly-established law. The jury with proper instructions and interrogatories should do no more than to decide the necessary facts. After the jury has determined disputed facts, qualified immunity remains an issue of law for the court to decide."
Citing many cases, the Court wrote: "The issue having now come before us, we hold that the legal question of a defendant’s entitlement to qualified immunity under a particular set of facts should be decided by the court, not by the jury. See Littrell v. Franklin, 388 F.3d 578, 584-86 (8th Cir. 2004); Swain v. Spinney, 17 F.3d 1, 9-10 & n.3 (1st Cir. 1997); Cottrell v. Caldwell, 85 F.3d 1480, 1487-88 (11th Cir. 1996); Warlick v. Cross, 969 F.2d 303, 305 (7th Cir. 1992). But see Oliveira v. Mayer, 23 F.3d 642, 649-50 (2d Cir. 1994) (holding that the district court erred in failing to submit the question of reasonableness to the jury); but cf. Curley v. Klem, 298 F.3d 271, 278-79 (3d Cir. 2002) (holding that once disputed factual questions are resolved, the question of the reasonableness of an officer’s actions may be decided either by the jury or by the court); but cf. also Maestas v. Lujan, 351 F.3d 1001, 1008-10 (10th Cir. 2003) (holding that the jury may decide the question of reasonableness if disputed facts are dispositive of that question); Fisher v. City of Memphis, 234 F.3d 312, 317 (6th Cir. 2000) (similar); Snyder v. Trepagnier, 142 F.3d 791, 799-800 (5th Cir. 1998) (similar), cert. granted, 525 U.S. 1098 (1999), cert. dismissed, 526 U.S. 1083 (1999)."
An interesting question not discussed in this case is - who has the burden of proof as to what happened. The instruction given by the trial court seemed to indicate that the burden was on the plaintiff to show facts that would prove the defendants were not entitled to qualified immunity. The instruction read in part: "If after considering the scope of discretion and responsibility generally given to police officers in the performance of their duties and after considering all of the surrounding circumstances of the case as they would have reasonably appeared at the time of the arrest you find from a preponderance of the evidence that Ms. Willingham has proved that [Sergeant] Crooke knowingly violated the law regarding Ms. Willingham’s constitutional rights, you must find for Ms. Willingham."
I still think, notwithstanding the language of a number of Fourth Circuit opinions, that it is at least an open question as to whether the plaintiff and not the defendant has the burden of proof, as a number of other circuits have so held, at different times. See Garretson v. City of Madison Heights, 407 F.3d 789, 798 (6th Cir. 2005) ("Garretson bears the ultimate burden of proof to show that the individual officers are not entitled to qualified immunity"); Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) ("Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate"); Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) ("The defendant official must initially plead his good faith and establish that he was acting within the scope of his discretionary authority. Once the defendant has done so, the burden shifts to the plaintiff to rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law."); Erwin v. Daley, 92 F.3d 521, 525 (7th Cir. 1996) (“Once a public official raises the defense of qualified immunity, the plaintiff bears the burden of proof on the issue”); Lenz v. Dewey, 64 F.3d 547, 550 (10th Cir. 1995) (“Once a defendant asserts qualified immunity, the plaintiff bears the burden of proving that the defendants violated a law that was clearly established”).
The last time I checked, the Supreme Court had not squarely addressed the issue. See Gomez v. Toledo, 446 U.S. 635, 642 (1980) (Justice Rehnquist reads the opinion “to leave open the issue of the burden of persuasion, as opposed to the burden of pleading”); see also Davis v. Scherer, 468 U.S. 183, 190 (1984) (“defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard”).
Friday, November 04, 2005
The criminal defense lawyer's perspective from the Ninth Circuit on last year's Supreme Court term
Here is an excellent report on the last U.S. Supreme Court term, prepared by the public defenders in the Ninth Circuit.
The introduction says:
"In going through the opinions to look for hidden gems, three major themes emerge. First, the protection of core constitutional rights has solidified in a surprising number of cases. Second, the Doctrine of Constitutional Avoidance continues to provide a key analytical framework for federal litigation. Lastly, the Court’s devotion of so much time to the rules of statutory construction emphasizes the need for federal defense attorneys to incorporate them into our litigation vocabulary. The overall message is to hit constitutional issues hard, but layer them with statutory arguments that avoid the necessity of resolving the constitutional questions."
The report says this about the latest qualified immunity case:
"Brosseau v. Haugen, 125 S. Ct. 596 (2004): Separate from the constitutionality of an officer’s use of deadly force against an unarmed felony suspect, the courts had not “clearly established” the right in question, in a particularized sense, to the facts presented to foreclose qualified immunity for the officer.
In another reversal of a Ninth Circuit civil rights case, the Court per curiam found an officer to be protected by qualified immunity. Officer Rochelle Brosseau went to the home of Kenneth Haugen, who was suspected of selling drugs and stealing the tools of a co-worker. When Haugen saw Officer Brosseau approach, he jumped in his Jeep, and ignored the officer’s warnings to stop, even when she smashed a hole in the window of his Jeep. Brosseau shot Haugen in the back as he drove away, and Haugen subsequently filed a suit for damages under 42 U.S.C. § 1983. The Court of Appeals held that Brosseau violated Haugen’s Fourth Amendment rights and also that she was not entitled to qualified immunity.
The Supreme Court reversed only on the qualified immunity question because the law of when an officer may shoot a fleeing suspect was not clearly established with the particularization necessary to apply it to this set of facts. The Court’s holding in Brosseau substantially extends qualified immunity by encompassing excessive force cases where the law has not been previously applied to particular facts. Here, even though past cases had clearly established that officers may only shoot a fleeing suspect who presents a risk to others, the Court held that in this case, “Brosseau’s actions fell in the ‘hazy border between excessive and acceptable force.’” (Quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)). This case includes an echo of the Doctrine of Constitutional Avoidance. In footnote 3, the majority finds no reason to reconsider Saucier’s order of proceeding: 1) first decide
the constitutional question; 2) then decide the qualified immunity question. Justice Breyer, joined by Justices Ginsburg and Scalia, concurred to say that Saucier should be reconsidered because, if the question is iffy enough for qualified immunity, why reach the “difficult constitutional questions when there is available an easier basis for the decision”?"
Why indeed? Because if the difficult constitutional questions never get answered, then the defendants will keep winning every case on qualified immunity.
This report is chock full of good stuff and worth reading even if like me, you have nothing to do with federal criminal practice.
The introduction says:
"In going through the opinions to look for hidden gems, three major themes emerge. First, the protection of core constitutional rights has solidified in a surprising number of cases. Second, the Doctrine of Constitutional Avoidance continues to provide a key analytical framework for federal litigation. Lastly, the Court’s devotion of so much time to the rules of statutory construction emphasizes the need for federal defense attorneys to incorporate them into our litigation vocabulary. The overall message is to hit constitutional issues hard, but layer them with statutory arguments that avoid the necessity of resolving the constitutional questions."
The report says this about the latest qualified immunity case:
"Brosseau v. Haugen, 125 S. Ct. 596 (2004): Separate from the constitutionality of an officer’s use of deadly force against an unarmed felony suspect, the courts had not “clearly established” the right in question, in a particularized sense, to the facts presented to foreclose qualified immunity for the officer.
In another reversal of a Ninth Circuit civil rights case, the Court per curiam found an officer to be protected by qualified immunity. Officer Rochelle Brosseau went to the home of Kenneth Haugen, who was suspected of selling drugs and stealing the tools of a co-worker. When Haugen saw Officer Brosseau approach, he jumped in his Jeep, and ignored the officer’s warnings to stop, even when she smashed a hole in the window of his Jeep. Brosseau shot Haugen in the back as he drove away, and Haugen subsequently filed a suit for damages under 42 U.S.C. § 1983. The Court of Appeals held that Brosseau violated Haugen’s Fourth Amendment rights and also that she was not entitled to qualified immunity.
The Supreme Court reversed only on the qualified immunity question because the law of when an officer may shoot a fleeing suspect was not clearly established with the particularization necessary to apply it to this set of facts. The Court’s holding in Brosseau substantially extends qualified immunity by encompassing excessive force cases where the law has not been previously applied to particular facts. Here, even though past cases had clearly established that officers may only shoot a fleeing suspect who presents a risk to others, the Court held that in this case, “Brosseau’s actions fell in the ‘hazy border between excessive and acceptable force.’” (Quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)). This case includes an echo of the Doctrine of Constitutional Avoidance. In footnote 3, the majority finds no reason to reconsider Saucier’s order of proceeding: 1) first decide
the constitutional question; 2) then decide the qualified immunity question. Justice Breyer, joined by Justices Ginsburg and Scalia, concurred to say that Saucier should be reconsidered because, if the question is iffy enough for qualified immunity, why reach the “difficult constitutional questions when there is available an easier basis for the decision”?"
Why indeed? Because if the difficult constitutional questions never get answered, then the defendants will keep winning every case on qualified immunity.
This report is chock full of good stuff and worth reading even if like me, you have nothing to do with federal criminal practice.
Saturday, May 13, 2006
On qualified immunity
I read with great interest the Fourth Circuit's opinion in the case of Ridpath v. Board of Governors, and find much noteworthy within it.
For one thing, the Court splits 2-1 on the issue of whether the plaintiff has stated a due process/liberty claim. If three Fourth Circuit judges cannot agree, that's pretty good evidence to me that the constitutional right asserted by the plaintiff is not clearly established. If it's not clear to Judge Widener that the plaintiff has a claim, how could the defendants have known any better?
The case is about some guy suing a football coach and Marshall University administrators for throwing the blame on him for an NCAA rules violation, with the result that the NCAA ruled that part of the "corrective action" the University should take was to correct the plaintiff out of his job, which in turn made him untouchable in the NCAA compliance racket. That "liberty interest" area of the law seems like murky territory to me - I've never seen one get past a motion to dismiss. Judge Widener might be right in his dissent when he focuses on the case law that says defamation is not a constitutional violation. There is something fuzzy about this claim, to my mind, and it has to do with the interaction between the University and the NCAA. Fuzzy claims, one would hope, are the ones on which the defendants are entitled to qualfied immunity.
Second, there is a footnote bashing citation to unpublished case law. I have always believed that qualified immunity is one sub-issue where the unpublished law frequently ought to be considered, not for the purpose of considering what the law is, but for the secondary and sometimes historical issue of whether the right at issue was not clearly established. The Court says in footnote 15: "On this issue and others, the Administrators extensively rely on unpublished decisions of this Court. Of course, under Local Rule 36(c), citations to unpublished decisions are disfavored. These citations might be warranted if, for example, there were no published decision on point. Because such circumstances are not present here, however, we do not address the unpublished decisions cited by the Administrators." Now, I don't know what the lawyers were doing in this case, but I know what I was trying to do when I have cited unpublished case when litigating qualified immunity in the past. I suspect, however, that Local Rule 36(c) will not present the same obstacle on this point as it has in the past, once the rules change takes effect on citation to unpublished opinions.
Third, on the First Amendment question, the panel refers to "the McVey rule." I was the lawyer for the defendants in the McVey case. It seemed to me at the time like a very good case for determination on the pleadings, because the plaintiff's First Amendment claim was based entirely on an innocuous writing that was made a part of the complaint. The majority notes in its footnotes that its decision does not preclude the individuals from relitigating qualified immunity on summary judgment. And, so we did in McVey, and won the case, which judgment was affirmed on appeal. 44 Fed.Appx. 630 (4th Cir. 2002). In McVey, the original panel agreed 3-0 that the denial of the motion to dismiss should be affirmed, but otherwise was split 1-1-1 in a curious sort of way. Judge Niemeyer wrote that if the facts turn out one way, the defendants would win; Judge Murnaghan wrote that if the facts turn out another way, the defendants would lose; and Judge Michael wrote in the manner of that fellow in the movie Oh, Brother, Where Art Thou?, who said "I'm for yours truly, too." Actually, what he wrote was this: "I concur in Judge Niemeyer's opinion for the court, except to the extent it is qualified by Judge Murnaghan's separate opinion. In addition, I concur in the judgment." McVey v. Stacy, 157 F.3d 271, 282 (4th Cir. 1998) (Michael, J., concurring in part and concurring in judgment).
And so it is that I will be unable to hit the lecture circuit explaining the McVey rule, when it has puzzled me like a Rubik's cube in some aspects for almost a decade.
Fourth, the majority variously cites Jenkins v. Medford. Jenkins is the poster child for qualified immunity appeals of motions to dismiss. Judge Ervin in his dissent in Jenkins bemoaned the way the majority had taken the issue of qualified immunity and come out with an opinion that said the plaintiff could not state a claim, when there were all kinds of facts that remained unknown. I suspect that the Jenkins case has done in the political firing claims of road deputies in four states.
Finally, the lawyers for the defendants do not seem to have done themselves any favors, as they have boogered up some of the procedure. One appellant was booted out for lack of standing because he had not raised qualified immunity at all in the district court. As to the others, the official capacity appellants were booted because qualified immunity has nothing to do with official capacity defendants. As to the remaining individuals, the Court had to consider whether it could consider their qualified immunity claims, when they were not raised in the answers or any motions to dismiss, but instead in the third round of briefing motions to dismiss.
For one thing, the Court splits 2-1 on the issue of whether the plaintiff has stated a due process/liberty claim. If three Fourth Circuit judges cannot agree, that's pretty good evidence to me that the constitutional right asserted by the plaintiff is not clearly established. If it's not clear to Judge Widener that the plaintiff has a claim, how could the defendants have known any better?
The case is about some guy suing a football coach and Marshall University administrators for throwing the blame on him for an NCAA rules violation, with the result that the NCAA ruled that part of the "corrective action" the University should take was to correct the plaintiff out of his job, which in turn made him untouchable in the NCAA compliance racket. That "liberty interest" area of the law seems like murky territory to me - I've never seen one get past a motion to dismiss. Judge Widener might be right in his dissent when he focuses on the case law that says defamation is not a constitutional violation. There is something fuzzy about this claim, to my mind, and it has to do with the interaction between the University and the NCAA. Fuzzy claims, one would hope, are the ones on which the defendants are entitled to qualfied immunity.
Second, there is a footnote bashing citation to unpublished case law. I have always believed that qualified immunity is one sub-issue where the unpublished law frequently ought to be considered, not for the purpose of considering what the law is, but for the secondary and sometimes historical issue of whether the right at issue was not clearly established. The Court says in footnote 15: "On this issue and others, the Administrators extensively rely on unpublished decisions of this Court. Of course, under Local Rule 36(c), citations to unpublished decisions are disfavored. These citations might be warranted if, for example, there were no published decision on point. Because such circumstances are not present here, however, we do not address the unpublished decisions cited by the Administrators." Now, I don't know what the lawyers were doing in this case, but I know what I was trying to do when I have cited unpublished case when litigating qualified immunity in the past. I suspect, however, that Local Rule 36(c) will not present the same obstacle on this point as it has in the past, once the rules change takes effect on citation to unpublished opinions.
Third, on the First Amendment question, the panel refers to "the McVey rule." I was the lawyer for the defendants in the McVey case. It seemed to me at the time like a very good case for determination on the pleadings, because the plaintiff's First Amendment claim was based entirely on an innocuous writing that was made a part of the complaint. The majority notes in its footnotes that its decision does not preclude the individuals from relitigating qualified immunity on summary judgment. And, so we did in McVey, and won the case, which judgment was affirmed on appeal. 44 Fed.Appx. 630 (4th Cir. 2002). In McVey, the original panel agreed 3-0 that the denial of the motion to dismiss should be affirmed, but otherwise was split 1-1-1 in a curious sort of way. Judge Niemeyer wrote that if the facts turn out one way, the defendants would win; Judge Murnaghan wrote that if the facts turn out another way, the defendants would lose; and Judge Michael wrote in the manner of that fellow in the movie Oh, Brother, Where Art Thou?, who said "I'm for yours truly, too." Actually, what he wrote was this: "I concur in Judge Niemeyer's opinion for the court, except to the extent it is qualified by Judge Murnaghan's separate opinion. In addition, I concur in the judgment." McVey v. Stacy, 157 F.3d 271, 282 (4th Cir. 1998) (Michael, J., concurring in part and concurring in judgment).
And so it is that I will be unable to hit the lecture circuit explaining the McVey rule, when it has puzzled me like a Rubik's cube in some aspects for almost a decade.
Fourth, the majority variously cites Jenkins v. Medford. Jenkins is the poster child for qualified immunity appeals of motions to dismiss. Judge Ervin in his dissent in Jenkins bemoaned the way the majority had taken the issue of qualified immunity and come out with an opinion that said the plaintiff could not state a claim, when there were all kinds of facts that remained unknown. I suspect that the Jenkins case has done in the political firing claims of road deputies in four states.
Finally, the lawyers for the defendants do not seem to have done themselves any favors, as they have boogered up some of the procedure. One appellant was booted out for lack of standing because he had not raised qualified immunity at all in the district court. As to the others, the official capacity appellants were booted because qualified immunity has nothing to do with official capacity defendants. As to the remaining individuals, the Court had to consider whether it could consider their qualified immunity claims, when they were not raised in the answers or any motions to dismiss, but instead in the third round of briefing motions to dismiss.
Monday, April 30, 2007
Today's qualified immunity opinion
In Scott v. Harris, the Supreme Court of the United States, by a vote of 8-1, concluded that a Georgia law enforcement officer was entitled to qualified immunity with respect to the section 1983 claim brought against him by a driver who was left paralyzed after the deputy ran him off the road to end a high-speed chase.
The case is interesting in part because the Court concluded that the video of the chase shows that the appeals court opinion is unsupportable, and the video is accessible on the court's website with the opinion. (Wonder what they'll do with that in the U.S. reports?)
And, there is some talk about the chicken and egg problem of qualified immunity. Justice Breyer in his concurring opinion says it should not be necessary for the courts addressing qualified immunity to always answer first the question of whether or not the defendant has violated the plaintiff's constitutional rights, before proceeding to the question of whether the plaintiff's rights were clearly established. Norm Pattis mentions this issue in this post, from his attendance earlier in April at the Georgetown University Law Center's section 1983 litigation conference, which I have attended a few times in the past. Norm said that Professor Chemerinsky had suggested that "The case of Morse v. Frederick, as yet undecided, could shed new light on qualified immunity. In this case, a student was suspended for posting a sign that read 'Bong Hits 4 Jesus' along a parade route. Chemerinsky wonders whether this case will yield a more aggressive qualified immunity standard which encourages courts to decide the immunity issues without reaching the underlying merits of the claims."
The case is interesting in part because the Court concluded that the video of the chase shows that the appeals court opinion is unsupportable, and the video is accessible on the court's website with the opinion. (Wonder what they'll do with that in the U.S. reports?)
And, there is some talk about the chicken and egg problem of qualified immunity. Justice Breyer in his concurring opinion says it should not be necessary for the courts addressing qualified immunity to always answer first the question of whether or not the defendant has violated the plaintiff's constitutional rights, before proceeding to the question of whether the plaintiff's rights were clearly established. Norm Pattis mentions this issue in this post, from his attendance earlier in April at the Georgetown University Law Center's section 1983 litigation conference, which I have attended a few times in the past. Norm said that Professor Chemerinsky had suggested that "The case of Morse v. Frederick, as yet undecided, could shed new light on qualified immunity. In this case, a student was suspended for posting a sign that read 'Bong Hits 4 Jesus' along a parade route. Chemerinsky wonders whether this case will yield a more aggressive qualified immunity standard which encourages courts to decide the immunity issues without reaching the underlying merits of the claims."
Sunday, August 14, 2005
Former town treasurer suing Culpeper
One of the Culpeper papers reports here on a First Amendment claim brought against the town by its former treasurer.
For a while, the Fourth Circuit found that qualified immunity was appropriate in a quite a lot of First Amendment cases. See Gillen v. Huggins, 127 F.3d 1099 (4th Cir. 1997) (unpublished) (denial of immunity reversed); Davis v. Carteret County, 121 F.3d 697 (4th Cir. 1997) (unpublished) (immunity affirmed); Scallet v. Rosenblum, 106 F.3d 391 (4th Cir. 1997) (unpublished) (immunity affirmed); Carrington v. Hunt, 105 F.3d 646 (4th Cir. 1997) (unpublished) (immunity affirmed); Conner v. McGraw, 104 F.3d 358 (4th Cir. 1996) (unpublished) (denial of immunity reversed) (“We hold today just as in the area of the Elrod/Branti line of cases, the Pickering/Connick line of cases was, and today is, not much clearer when applied to particularities;” defendant immune); Bishop v. City of Suffolk, 86 F.3d 1148 (4th Cir. 1996) (unpublished) (immunity affirmed); Gamache v. Cavanaugh, 82 F.3d 410 (4th Cir. 1996) (unpublished) (denial of immunity reversed); Dabbs v. Amos, 70 F.3d 1261 (4th Cir. 1995) (unpublished) (denial of immunity reversed); Orga v. Williams, 68 F.3d 460 (4th Cir. 1995) (unpublished) (immunity affirmed); Sizemore v. Aliff, 64 F.3d 659 (4th Cir. 1995) (denial of immunity reversed); Olivo v. Mapp, 57 F.3d 1067 (4th Cir. 1995) (unpublished) (denial of immunity reversed); DiMeglio, 45 F.3d at 793 (denial of immunity reversed); Maciarello v. Sumner, 973 F.2d 295 (4th Cir. 1992) (denial of immunity reversed); but see Robinson v. Balog, 1998 WL 786885 (4th Cir. 1998) (immunity reversed); McVey v. Stacy, 1998 WL 598444 (4th Cir. 1998) (affirming denial of immunity); Myers v. Town of Landis, 107 F.3d 867 (4th Cir. 1997) (unpublished) (affirming denial of immunity); Phillips v. Nielsen, 99 F.3d 1130 (4th Cir. 1996) (unpublished) (immunity reversed).
Even in cases where immunity was denied, the court would sometimes note that this conclusion is rare or that the defendant might yet succeed if it would later present evidence on some element of the defense. See Cromer v. Brown, 88 F.3d 1315, 1326, 1330 n.11 (4th Cir. 1996) (“We believe that Cromer’s is one of the ‘infrequent cases where an employee’s right to speak on a matter of public concern was clearly established. . . [O]ur holding is a narrow one. It is the infrequent Connick claim that will survive a qualified immunity defense”).
For a while, the Fourth Circuit found that qualified immunity was appropriate in a quite a lot of First Amendment cases. See Gillen v. Huggins, 127 F.3d 1099 (4th Cir. 1997) (unpublished) (denial of immunity reversed); Davis v. Carteret County, 121 F.3d 697 (4th Cir. 1997) (unpublished) (immunity affirmed); Scallet v. Rosenblum, 106 F.3d 391 (4th Cir. 1997) (unpublished) (immunity affirmed); Carrington v. Hunt, 105 F.3d 646 (4th Cir. 1997) (unpublished) (immunity affirmed); Conner v. McGraw, 104 F.3d 358 (4th Cir. 1996) (unpublished) (denial of immunity reversed) (“We hold today just as in the area of the Elrod/Branti line of cases, the Pickering/Connick line of cases was, and today is, not much clearer when applied to particularities;” defendant immune); Bishop v. City of Suffolk, 86 F.3d 1148 (4th Cir. 1996) (unpublished) (immunity affirmed); Gamache v. Cavanaugh, 82 F.3d 410 (4th Cir. 1996) (unpublished) (denial of immunity reversed); Dabbs v. Amos, 70 F.3d 1261 (4th Cir. 1995) (unpublished) (denial of immunity reversed); Orga v. Williams, 68 F.3d 460 (4th Cir. 1995) (unpublished) (immunity affirmed); Sizemore v. Aliff, 64 F.3d 659 (4th Cir. 1995) (denial of immunity reversed); Olivo v. Mapp, 57 F.3d 1067 (4th Cir. 1995) (unpublished) (denial of immunity reversed); DiMeglio, 45 F.3d at 793 (denial of immunity reversed); Maciarello v. Sumner, 973 F.2d 295 (4th Cir. 1992) (denial of immunity reversed); but see Robinson v. Balog, 1998 WL 786885 (4th Cir. 1998) (immunity reversed); McVey v. Stacy, 1998 WL 598444 (4th Cir. 1998) (affirming denial of immunity); Myers v. Town of Landis, 107 F.3d 867 (4th Cir. 1997) (unpublished) (affirming denial of immunity); Phillips v. Nielsen, 99 F.3d 1130 (4th Cir. 1996) (unpublished) (immunity reversed).
Even in cases where immunity was denied, the court would sometimes note that this conclusion is rare or that the defendant might yet succeed if it would later present evidence on some element of the defense. See Cromer v. Brown, 88 F.3d 1315, 1326, 1330 n.11 (4th Cir. 1996) (“We believe that Cromer’s is one of the ‘infrequent cases where an employee’s right to speak on a matter of public concern was clearly established. . . [O]ur holding is a narrow one. It is the infrequent Connick claim that will survive a qualified immunity defense”).
Wednesday, April 23, 2003
Yesterday's Fourth Circuit opinions
On April 22, a panel of the Fourth Circuit reversed the E.D. Va. in an employment case called Peters v. Jenney. The opinion was by Judge Karen Williams, joined by Judge Motz, with Judge Widener dissenting. On the Title VI claim, the majority concluded that there is a private right of action for retaliation in accordance with regulations implementing Title VI. The opinion instructs the trial court on remand to consider these elements: "To make a claim for Title VI retaliation, Peters must show (1) that she engaged in protected activity; (2) that Appellees took a material adverse employment action against her, and (3) that a causal connection existed between the protected activity and the adverse action," and "to show 'protected activity,' the plaintiff in a Title VI retaliation case need 'only . . . prove that he opposed an unlawful employment practice which he reasonably believed had occurred or was occurring.'" On the First Amendment claim, the district court had held that no such claim was in the complaint, and there was no proof of causation.
The majority opinion strikes me as too much, too much in the way of advisory opinions. The appellees and the district court ought to be able to go back and start over on the evidence, since the first ruling was essentially that there were no claims stated. There might be some other and better issues on which to litigate these claims, in particular the First Amendment claim. I don't see how the director of the gifted program has a whole lot of latitude to argue about whether the gifted program should be doing this, that, or the other thing - that sounds like the kind of policy differences that even Judge Murnaghan said were not protected in McVey v. Stacy. The Pickering balance of the disruptive effect versus the value of the speech has yet to be weighed. It's not all that clear to me to what the speech is, and whether it can be separated from the plaintiff's own employment, as opposed to a matter of public concern under the Connick test. In other words, there's a lot left unsaid on the defense side of this case, and it appears it was not said because the trial court felt there was no First Amendment claim in the complaint.
In Wade v. Robinson, the Fourth Circuit affirmed Judge Turk of the W.D. Va. in a habeas corpus case, where the issues were whether the one-year limitations period of 28 U.S.C. 2244 applied, and if so, when did it begin to run. The court concluded that the petition was untimely, although they did not agree with how Judge Turk arrived at that conclusion. Judge Gregory wrote a concurring opinion explaining why he had signed off on a certificate of appealability in the case, without which the panel would not have taken on the merits of the appeal.
In Williams v. Hansen, the defendant Hansen had brought a collateral order appeal on the issue of qualified immunity in a section 1983 case where the plaintiffs claimed defendants had violated their rights under the Equal Protection clause. By 2-1 vote, the panel decided that the defendant is entitled to qualified immunity, because there was no clearly established law against him. Judge King dissented, concluding that the law was clearly established against what the defendant is alleged to have done.
I don't know what to make of this case, it seems like some elements of what the defendant did were pretty obviously wrong, but I can't quite get my mind around what is the nature of the claim. There were complaints of racism in the police department. The defendant ordered interviews of all the black officers to get information about discrimination, but did not order interviews of any white officers. That seems like an odd thing to do, and the district court ruled that even if the defendant's stated purpose was his real purpose, he had made a racial classification which could not be justified. But then, somehow race has to be considered in an investigation of racism, or as the court noted, "until such time as the black officers were questioned Hansen could not know which officers felt that there was a discrimination problem."
The majority opinion describes the issue as this: "whether when there are allegations that a discrete racial group has been subjected to discrimination, it is lawful to conduct interviews in the first instance only of members of that group to ascertain their experiences and perceptions with respect to the discrimination." The issue, so defined, is not one that has been litigated over and over. The majority concluded that there was no claim, and even if there was a claim, it was not clearly established and so the defendant was entitled to qualified immunity. Ambiguity in the law weighs in favor of qualified immunity, so if the precise nature of the claim is a bit muddled, then qualified immunity is probably the right result.
The opinion is chock full of interesting and important issues - how does qualified immunity apply when motive is at issue, how does a government official avoid discrimination in investigating claims of discrimination. The employer has to investigate claims of discrimination or risk strict liability and/or punitive damages under Title VII. It is a troubling case, perhaps it will be reheard, and even more conflicting opinions generated.
The majority opinion strikes me as too much, too much in the way of advisory opinions. The appellees and the district court ought to be able to go back and start over on the evidence, since the first ruling was essentially that there were no claims stated. There might be some other and better issues on which to litigate these claims, in particular the First Amendment claim. I don't see how the director of the gifted program has a whole lot of latitude to argue about whether the gifted program should be doing this, that, or the other thing - that sounds like the kind of policy differences that even Judge Murnaghan said were not protected in McVey v. Stacy. The Pickering balance of the disruptive effect versus the value of the speech has yet to be weighed. It's not all that clear to me to what the speech is, and whether it can be separated from the plaintiff's own employment, as opposed to a matter of public concern under the Connick test. In other words, there's a lot left unsaid on the defense side of this case, and it appears it was not said because the trial court felt there was no First Amendment claim in the complaint.
In Wade v. Robinson, the Fourth Circuit affirmed Judge Turk of the W.D. Va. in a habeas corpus case, where the issues were whether the one-year limitations period of 28 U.S.C. 2244 applied, and if so, when did it begin to run. The court concluded that the petition was untimely, although they did not agree with how Judge Turk arrived at that conclusion. Judge Gregory wrote a concurring opinion explaining why he had signed off on a certificate of appealability in the case, without which the panel would not have taken on the merits of the appeal.
In Williams v. Hansen, the defendant Hansen had brought a collateral order appeal on the issue of qualified immunity in a section 1983 case where the plaintiffs claimed defendants had violated their rights under the Equal Protection clause. By 2-1 vote, the panel decided that the defendant is entitled to qualified immunity, because there was no clearly established law against him. Judge King dissented, concluding that the law was clearly established against what the defendant is alleged to have done.
I don't know what to make of this case, it seems like some elements of what the defendant did were pretty obviously wrong, but I can't quite get my mind around what is the nature of the claim. There were complaints of racism in the police department. The defendant ordered interviews of all the black officers to get information about discrimination, but did not order interviews of any white officers. That seems like an odd thing to do, and the district court ruled that even if the defendant's stated purpose was his real purpose, he had made a racial classification which could not be justified. But then, somehow race has to be considered in an investigation of racism, or as the court noted, "until such time as the black officers were questioned Hansen could not know which officers felt that there was a discrimination problem."
The majority opinion describes the issue as this: "whether when there are allegations that a discrete racial group has been subjected to discrimination, it is lawful to conduct interviews in the first instance only of members of that group to ascertain their experiences and perceptions with respect to the discrimination." The issue, so defined, is not one that has been litigated over and over. The majority concluded that there was no claim, and even if there was a claim, it was not clearly established and so the defendant was entitled to qualified immunity. Ambiguity in the law weighs in favor of qualified immunity, so if the precise nature of the claim is a bit muddled, then qualified immunity is probably the right result.
The opinion is chock full of interesting and important issues - how does qualified immunity apply when motive is at issue, how does a government official avoid discrimination in investigating claims of discrimination. The employer has to investigate claims of discrimination or risk strict liability and/or punitive damages under Title VII. It is a troubling case, perhaps it will be reheard, and even more conflicting opinions generated.
Friday, June 18, 2004
Denial of qualified immunity reversed for officers in case of detainee who suffocated
In Parish v. Cleveland, the Fourth Circuit reversed the district court's denial of the individual defendants' motion for summary judgment based on qualified immunity.
The panel included Judge Williams, Judge King, and Judge Luttig, each of whom wrote separately, with Judge Luttig dissenting. Judge King, in his concurrence, opined that the case was a close one, but he felt the evidence did not show deliberate indifference, only negligence.
In his dissent, Judge Luttig began with his view that the Circuit's qualified immunity cases have become erratic:
"With today’s decision, this court completes the turn of both the deliberate indifference and qualified immunity doctrines on their heads, so confounding these two important doctrines that it is literally impossible in the first instance to make principled predictions as to what conduct will and will not be considered to constitute "deliberate
indifference," and, upon a finding of such, to make like predictions as to the availability of qualified immunity."
Judge Williams' opinion, commenting on the dissent, notes that Judge Luttig's discontent with some of these precedents has been expressed more than once in his earlier dissents.
The panel included Judge Williams, Judge King, and Judge Luttig, each of whom wrote separately, with Judge Luttig dissenting. Judge King, in his concurrence, opined that the case was a close one, but he felt the evidence did not show deliberate indifference, only negligence.
In his dissent, Judge Luttig began with his view that the Circuit's qualified immunity cases have become erratic:
"With today’s decision, this court completes the turn of both the deliberate indifference and qualified immunity doctrines on their heads, so confounding these two important doctrines that it is literally impossible in the first instance to make principled predictions as to what conduct will and will not be considered to constitute "deliberate
indifference," and, upon a finding of such, to make like predictions as to the availability of qualified immunity."
Judge Williams' opinion, commenting on the dissent, notes that Judge Luttig's discontent with some of these precedents has been expressed more than once in his earlier dissents.
Saturday, December 30, 2006
Fourth Circuit and RLUIPA
Loblaw has this post titled "Fourth Circuit Knocks the Teeth out of RLUIPA."
In Madison v. Virginia, on appeal from the W.D. Va., the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Michael and Duncan, held that the Religious Land Use and Institutionalized Persons Act is constitutional as applied to the Commonwealth of Virginia except to the extent that it authorizes awards of money damages.
On the Spending Clause issue, the Court rejected Virginia's arguments, including the claim that the Supreme Court's decision in Rumsfeld v. FAIR somehow restricted the authority of Congress - since after all, that case "rejected a Spending Clause challenge."
On the money damages issue, the Court concluded "that RLUIPA's 'appropriate relief against a government' language falls short of the unequivocal textual expression necessary to waive State immunity from suits for damages." The Court went on to conclude that the Civil Rights Remedies Equalization Act was inapplicable to RLUIPA.
This outcome sounds like one of those Rehnquist-era federalism decisions, but since the panel included Judge Michael it seems unlikely that there would be a different outcome on rehearing by the en banc court.
In Lovelace v. Lee, Judges Michael and Wilkinson disagreed on the claims of a Muslim inmate at Keen Mountain against prison officials under RLUIPA and the First Amendment. Judge Kiser for the W.D. Va. granted summary judgment for all defendants on all claims.
Judge Michael, joined by Judge Motz, vacated summary judgment against a correctional officer in his individual capacity on the plaintiff's Free Exercise and RLUIPA claims, and vacated summary judgment against the warden in his official capacity. Judge Wilkinson agreed the claims against the individual officer should go forward, but dissented as to the official capacity claims against the warden.
In response to Judge Wilkinson's strongly-worded dissent, Judge Michael explained: "Today's remand provides nothing akin to a license for courts to plunge into prison policymaking or prison management. We merely require that the prison itself explain in a responsive fashion why the Ramadan policy's burdens on religious exercise are justified under RLUIPA's standard. It is our dissenting colleague who delves into prison policymaking by coming up with his own reasons as to why the policy's restrictions are necessary to insure safety and security. If a court could, as the dissent would have it, offer explanations on its own, then prisons would be effectively relieved of their responsibilities under RLUIPA. Or what is more fundamental, court-generated explanations would cut severely against Congress's intent to provide inmates with greater protections in the area of religious exercise."
Of the claim against the warden, Judge Wilkinson wrote: "Thus the majority's remand must be seen for precisely what it is: an invitation to finetune prison policy from the judicial perch. While a prison policy may well be called into question where it imposes a substantial burden on religious freedom, this is not such a case. It is plaintiff Lovelace who must prove under the statute that the policy, as opposed to Lester's violation of it, somehow imposed a substantial burden upon his religious exercise, and he has not even begun to do so. To enlarge a case involving an essentially individual act into a wholesale attack upon a sound prison policy, on no fewer than three different grounds, not only makes a mountain out of a molehill but also reinforces the old adage that no good deed goes unpunished. Under the majority's view, the most progressive and enlightened prison policy imaginable, a policy that accomodates every religion in every way, would be called into question by a single policy violation. Forcing prison officials to pay for their own progressive steps to protect religious liberty runs counter to the precise statutory and constitutional provisions that the majority purports to enforce. I therefore concur in the judgment remanding the case for further proceedings against defendant Lester, but I respectfully dissent from the majority's RLUIPA, free exercise, and due process determinations as to the prison policy itself."
Somewhat obscured by these fireworks, the Court's discussion about qualified immunity strikes me as wrong. Judge Kiser held that the individual was entitled to qualified immunity because the constitutionality of RLUIPA was clearly established. Judge Michael rejected this conclusion, because at the time of the events in question, no court had yet ruled one way or the other on the constitutionality of the new statute. RLUIPA was passed by Congress after the Supreme Court held that its predecessor was unconstitutional. To say that its constitutionality was clearly established in 2002, when it was an open and difficult question for the appeals courts when they made their decisions in 2003 and later, seems to turn the qualified immunity analysis upside down. RLUIPA was born of constitutional uncertainty, which is the very stuff of which the qualified immunity defense is made.
In Madison v. Virginia, on appeal from the W.D. Va., the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Michael and Duncan, held that the Religious Land Use and Institutionalized Persons Act is constitutional as applied to the Commonwealth of Virginia except to the extent that it authorizes awards of money damages.
On the Spending Clause issue, the Court rejected Virginia's arguments, including the claim that the Supreme Court's decision in Rumsfeld v. FAIR somehow restricted the authority of Congress - since after all, that case "rejected a Spending Clause challenge."
On the money damages issue, the Court concluded "that RLUIPA's 'appropriate relief against a government' language falls short of the unequivocal textual expression necessary to waive State immunity from suits for damages." The Court went on to conclude that the Civil Rights Remedies Equalization Act was inapplicable to RLUIPA.
This outcome sounds like one of those Rehnquist-era federalism decisions, but since the panel included Judge Michael it seems unlikely that there would be a different outcome on rehearing by the en banc court.
In Lovelace v. Lee, Judges Michael and Wilkinson disagreed on the claims of a Muslim inmate at Keen Mountain against prison officials under RLUIPA and the First Amendment. Judge Kiser for the W.D. Va. granted summary judgment for all defendants on all claims.
Judge Michael, joined by Judge Motz, vacated summary judgment against a correctional officer in his individual capacity on the plaintiff's Free Exercise and RLUIPA claims, and vacated summary judgment against the warden in his official capacity. Judge Wilkinson agreed the claims against the individual officer should go forward, but dissented as to the official capacity claims against the warden.
In response to Judge Wilkinson's strongly-worded dissent, Judge Michael explained: "Today's remand provides nothing akin to a license for courts to plunge into prison policymaking or prison management. We merely require that the prison itself explain in a responsive fashion why the Ramadan policy's burdens on religious exercise are justified under RLUIPA's standard. It is our dissenting colleague who delves into prison policymaking by coming up with his own reasons as to why the policy's restrictions are necessary to insure safety and security. If a court could, as the dissent would have it, offer explanations on its own, then prisons would be effectively relieved of their responsibilities under RLUIPA. Or what is more fundamental, court-generated explanations would cut severely against Congress's intent to provide inmates with greater protections in the area of religious exercise."
Of the claim against the warden, Judge Wilkinson wrote: "Thus the majority's remand must be seen for precisely what it is: an invitation to finetune prison policy from the judicial perch. While a prison policy may well be called into question where it imposes a substantial burden on religious freedom, this is not such a case. It is plaintiff Lovelace who must prove under the statute that the policy, as opposed to Lester's violation of it, somehow imposed a substantial burden upon his religious exercise, and he has not even begun to do so. To enlarge a case involving an essentially individual act into a wholesale attack upon a sound prison policy, on no fewer than three different grounds, not only makes a mountain out of a molehill but also reinforces the old adage that no good deed goes unpunished. Under the majority's view, the most progressive and enlightened prison policy imaginable, a policy that accomodates every religion in every way, would be called into question by a single policy violation. Forcing prison officials to pay for their own progressive steps to protect religious liberty runs counter to the precise statutory and constitutional provisions that the majority purports to enforce. I therefore concur in the judgment remanding the case for further proceedings against defendant Lester, but I respectfully dissent from the majority's RLUIPA, free exercise, and due process determinations as to the prison policy itself."
Somewhat obscured by these fireworks, the Court's discussion about qualified immunity strikes me as wrong. Judge Kiser held that the individual was entitled to qualified immunity because the constitutionality of RLUIPA was clearly established. Judge Michael rejected this conclusion, because at the time of the events in question, no court had yet ruled one way or the other on the constitutionality of the new statute. RLUIPA was passed by Congress after the Supreme Court held that its predecessor was unconstitutional. To say that its constitutionality was clearly established in 2002, when it was an open and difficult question for the appeals courts when they made their decisions in 2003 and later, seems to turn the qualified immunity analysis upside down. RLUIPA was born of constitutional uncertainty, which is the very stuff of which the qualified immunity defense is made.
Tuesday, May 22, 2007
Latest qualified immunity opinion from Supreme Court
Yesterday, in Los Angeles County v. Rettele, the Supreme Court reversed the denial of qualified immunity by the Ninth Circuit to law enforcement officers sued for unreasonableness in the conduct of a search where they were looking for African-Americans in a house where everyone there was Caucasian.
The Court concluded there was no constitutional violation.
In a concurring opinion, Justice Stevens suggested three items of interest: (1) he bashed the Ninth Circuit for deciding the case in an unpublished opinion, and (2) he thought it was obvious that the rights at issue were not clearly established, not even on the authorities the Ninth Circuit cited, and (3) he continues to object to the idea that qualified immunity should be decided by always going first to the merits question.
On the latter point, I think that some opponents of qualified immunity would disagree, that the law never gets clearly established unless somebody rules on the merits every now and then.
The Court concluded there was no constitutional violation.
In a concurring opinion, Justice Stevens suggested three items of interest: (1) he bashed the Ninth Circuit for deciding the case in an unpublished opinion, and (2) he thought it was obvious that the rights at issue were not clearly established, not even on the authorities the Ninth Circuit cited, and (3) he continues to object to the idea that qualified immunity should be decided by always going first to the merits question.
On the latter point, I think that some opponents of qualified immunity would disagree, that the law never gets clearly established unless somebody rules on the merits every now and then.
Sunday, October 24, 2004
Litigating qualified immunity by means of a motion to dismiss
In McKenna v. Wright, a panel of the Second Circuit discussed the interesting question of whether the issue of qualified immunity can be raised on a motion to dismiss. Their answer was yes, which is surely the right answer, even though I disagree with many things they said.
The Supreme Court precedents emphasize that qualified immunity should be considered at the earliest possible stage. Even where the trial court is convinced that the plaintiff has not failed to state a claim, qualified immunity also involves the issue of whether the plaintiff's rights were clearly established at the time of the defendant's actions. If the law was unclear, as it often is, then the defendant should win, even on a motion to dismiss.
I certainly agree, however, with the point made in the McKenna opinion that only on a motion for summary judgment can the issue be litigated without encumbrance from unsupportable allegations in the Complaint, which must be taken as true on a motion to dismiss.
The Supreme Court precedents emphasize that qualified immunity should be considered at the earliest possible stage. Even where the trial court is convinced that the plaintiff has not failed to state a claim, qualified immunity also involves the issue of whether the plaintiff's rights were clearly established at the time of the defendant's actions. If the law was unclear, as it often is, then the defendant should win, even on a motion to dismiss.
I certainly agree, however, with the point made in the McKenna opinion that only on a motion for summary judgment can the issue be litigated without encumbrance from unsupportable allegations in the Complaint, which must be taken as true on a motion to dismiss.
Thursday, January 22, 2004
School official denied qualified immunity in speech case about race
In Love-Lane v. Martin, a split panel of the Fourth Circuit concluded that a school superintendent was not entitled to qualified immunity on claims that he retaliated against an assistant principal for her speech on a matter of public concern involving racism in the public schools. Judge Michael joined by Judge Gregory wrote the opinion for the majority, and Judge Wilkinson dissented on the qualified immunity issue.
Well, the dissent gets my vote on this one. The dissent makes the point that the effect of the denial of qualified immunity in another race case is to make life too hard for government officials charged with maintaining employee discipline. In Cromer, and now again in Love-Lane, the Court has declared that matters of race are so taboo that no reasonable official would think he could take adverse action against an employee who speaks out on racial matters - without ironclad proof that the speech was not the reason. The result may be that sensible administrators will make their disciplinary decisions regarding such individuals based on the availability of courtroom evidence to prove employee misconduct, rather than their best judgment about what is the right thing to do.
Also, there is a strange reliance in the majority's opinion about the significance of the plaintiff's own characterization of the manner of her speech. I would not have thought from other cases that this kind of self-assessment evidence would be insufficient to create a genuine dispute of material fact. Compare Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 135 (4th Cir. 2002) (evidence that amount[s] to no more than subjective belief[] . . . is insufficient to create a genuine issue of material fact as to any discriminatory conduct); DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (the plaintiff's perception of [her]self . . . is not relevant).
Well, the dissent gets my vote on this one. The dissent makes the point that the effect of the denial of qualified immunity in another race case is to make life too hard for government officials charged with maintaining employee discipline. In Cromer, and now again in Love-Lane, the Court has declared that matters of race are so taboo that no reasonable official would think he could take adverse action against an employee who speaks out on racial matters - without ironclad proof that the speech was not the reason. The result may be that sensible administrators will make their disciplinary decisions regarding such individuals based on the availability of courtroom evidence to prove employee misconduct, rather than their best judgment about what is the right thing to do.
Also, there is a strange reliance in the majority's opinion about the significance of the plaintiff's own characterization of the manner of her speech. I would not have thought from other cases that this kind of self-assessment evidence would be insufficient to create a genuine dispute of material fact. Compare Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 135 (4th Cir. 2002) (evidence that amount[s] to no more than subjective belief[] . . . is insufficient to create a genuine issue of material fact as to any discriminatory conduct); DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (the plaintiff's perception of [her]self . . . is not relevant).
Wednesday, May 14, 2003
Fourth Circuit affirms summary judgment on Virginia Tech public radio station manager's First Amendment and due process claims
In Mills v. Steger, the Fourth Circuit in an per curiam opinion for a panel including Judge Blaine Michael, Judge Karen Williams, and Judge Greenberg from the Third Circuit, affirmed the summary judgment entered by Judge Wilson of the W.D. Va. on the First Amendment and due process claims of the former station manager of WVTF, the public radio station that is a part of Virginia Tech. Monica Taylor Monday from Gentry Locke argued for the appellant (which is no surprise, since Monica is one of the appellate gurus and Gentry Locke is the firm that ex-Tech presidents, coaches, and the like always hire).
On the due process claim, the Court notes that Mills was not a tenured employee, that his "tenure" was at most a year, under the terms of his employment contract. The Court rejected Mills' claim that his transfer from WVTF to another position with an AM station was a deprivation of his property interest in his continued employment, citing Huang v. UNC, among other cases. The Court concluded that the procedure by which Mills was terminated did not fall below the level of process that Mills was due under the Constitution.
On the First Amendment claim, Judge Wilson for the district court had concluded in this opinion that the defendants did not violate Mills' First Amendment rights, because "Mills’ interest in speaking out on the programming decisions at WVTF is outweighed by Virginia Tech’s interest, as an employer, in promoting the efficiency of the public services it performs through its employees." The Fourth Circuit disagreed on the merits, concluding that under Connick the programming of the radio station was a matter of public concern and under Pickering the University's interest in avoiding the disruption caused by Mills' speech was slight, however, the individual defendants were protected by qualified immunity, because the outcome of the First Amendment analysis is almost never clear.
I think Judge Wilson had it right - the guy was in a high visibility position, he was in the news and on the radio all the time, he was calling some of the listeners "Opera Nazis," and it seems to me that the Court underestimated the disruptive impact of having the operator of what was literally the voice of the university out of sync with the administration. Probably Judge Wilson got a sense of this just reading his morning newspaper there in Roanoke. Not long ago I posted here a decision from the First Circuit about the First Amendment claims of the director of the PEG channels for a local government - the cases strike me as quite similar. For that matter, I think this case is similar to the Dixie McVey case, which defendants won ultimately after the first appeal, which was cited at some length in this Mills opinion. (Judge Michael was on the two panels in the McVey case and he voted in the last appeal the same way as he did in Mills, that there was a First Amendment violation but qualified immunity.) The government employee with a high level of public contact should not be able to claim broad free speech rights when there is substantial likelihood because of his public content of confusion about whether he speaks for his employer.
I don't disagree with the qualified immunity analysis. The Fourth Circuit has fairly consistently found qualified immunity in speech cases, the notable exception being in the Cromer case, in which the Court took some pains to explain that it was the exception.
On the due process claim, the Court notes that Mills was not a tenured employee, that his "tenure" was at most a year, under the terms of his employment contract. The Court rejected Mills' claim that his transfer from WVTF to another position with an AM station was a deprivation of his property interest in his continued employment, citing Huang v. UNC, among other cases. The Court concluded that the procedure by which Mills was terminated did not fall below the level of process that Mills was due under the Constitution.
On the First Amendment claim, Judge Wilson for the district court had concluded in this opinion that the defendants did not violate Mills' First Amendment rights, because "Mills’ interest in speaking out on the programming decisions at WVTF is outweighed by Virginia Tech’s interest, as an employer, in promoting the efficiency of the public services it performs through its employees." The Fourth Circuit disagreed on the merits, concluding that under Connick the programming of the radio station was a matter of public concern and under Pickering the University's interest in avoiding the disruption caused by Mills' speech was slight, however, the individual defendants were protected by qualified immunity, because the outcome of the First Amendment analysis is almost never clear.
I think Judge Wilson had it right - the guy was in a high visibility position, he was in the news and on the radio all the time, he was calling some of the listeners "Opera Nazis," and it seems to me that the Court underestimated the disruptive impact of having the operator of what was literally the voice of the university out of sync with the administration. Probably Judge Wilson got a sense of this just reading his morning newspaper there in Roanoke. Not long ago I posted here a decision from the First Circuit about the First Amendment claims of the director of the PEG channels for a local government - the cases strike me as quite similar. For that matter, I think this case is similar to the Dixie McVey case, which defendants won ultimately after the first appeal, which was cited at some length in this Mills opinion. (Judge Michael was on the two panels in the McVey case and he voted in the last appeal the same way as he did in Mills, that there was a First Amendment violation but qualified immunity.) The government employee with a high level of public contact should not be able to claim broad free speech rights when there is substantial likelihood because of his public content of confusion about whether he speaks for his employer.
I don't disagree with the qualified immunity analysis. The Fourth Circuit has fairly consistently found qualified immunity in speech cases, the notable exception being in the Cromer case, in which the Court took some pains to explain that it was the exception.
Sunday, February 05, 2006
Split decision for jailers on qualified immunity in suicide case
In Short v. Smoot, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by the E.D. Va.'s Judge Kelley, with Judge Gregory concurring in part and dissenting in part, reversed the denial of qualified immunity as to one group of jailers while affirming the denial of qualified immunity as to the jailer who sat watching the video monitors while the plaintiff's decedent rehearsed and implemented his suicide in a jail cell. The majority concluded that under Fourth Circuit law, the other jailers could have believed that their constitutional obligations were satisfied when the decedent was placed in a cell with video monitoring. Judge Gregory disagreed, and would have affirmed Judge Wilson's opinion as to all of the defendants. The videotape left the defendant in charge of watching the video monitor with no immunity defense.
The AP had this somewhat garbled account of the decision.
The AP had this somewhat garbled account of the decision.
Wednesday, January 21, 2009
For qualified immunity fans
Today, the Supreme Court zigged in another direction on an issue where it has both zigged and zagged, and that is the order of answering the two questions that make up the question of qualified immunity. One question is, does the plaintiff have a claim under the Constitution? The other question is, did the defendant violate the clearly-established constitutional rights of the plaintiff, of which a reasonable government official in his or her position should have known?
If the courts have to answer the merits question first, then a bunch of advisory opinions about constitutional issues get generated. If the courts can answer the "clearly-established" question first, then the law never gets any clearer, and more defendants win.
The conclusion in Pearson v. Callahan is that the courts can go whichever way works best.
You can click here to see some of what I have written in the past on qualified immunity - one of my favorite topics, and the subject of an article I wrote for the VADA some years ago.
If the courts have to answer the merits question first, then a bunch of advisory opinions about constitutional issues get generated. If the courts can answer the "clearly-established" question first, then the law never gets any clearer, and more defendants win.
The conclusion in Pearson v. Callahan is that the courts can go whichever way works best.
You can click here to see some of what I have written in the past on qualified immunity - one of my favorite topics, and the subject of an article I wrote for the VADA some years ago.
Wednesday, January 05, 2005
Denial of qualified immunity in deadly force case reversed
In Waterman v. Batton, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by District Judge Hudson with Judge Motz dissenting, reversed the denial by District Judge Blake in Maryland of summary judgment to the individual defendants based on qualified immunity, in a case where the defendants were accused of using deadly force in violation of the decedent's constitutional rights.
Interestingly, part of the summary of the facts includes the appeals court's interpretation of a video recording of the events in question: "the video leaves no doubt that at the moment of acceleration, there were officers positioned close enough to the vehicle that Waterman could have run them over in approximately one second."
The Court also noted, with respect to the District Court's conclusion of unreasonableness: "While we may not question the circumstances that the district court assumed in analyzing the reasonableness of Appellants’ actions, the reasonableness itself—and specifically the question of what a reasonable jury could determine regarding reasonableness—is an issue that we consider de novo."
The majority concluded that the officers were justified in shooting at the decedent's car as they perceived it to be headed towards them, and that they were entitled to qualified immunity for continuing to shoot at the car as it drove past because the case law did not show that this violated the decedent's clearly established rights at the time of the shooting.
Judge Motz, in dissent, said Judge Blake had the case figured rightly.
Interestingly, part of the summary of the facts includes the appeals court's interpretation of a video recording of the events in question: "the video leaves no doubt that at the moment of acceleration, there were officers positioned close enough to the vehicle that Waterman could have run them over in approximately one second."
The Court also noted, with respect to the District Court's conclusion of unreasonableness: "While we may not question the circumstances that the district court assumed in analyzing the reasonableness of Appellants’ actions, the reasonableness itself—and specifically the question of what a reasonable jury could determine regarding reasonableness—is an issue that we consider de novo."
The majority concluded that the officers were justified in shooting at the decedent's car as they perceived it to be headed towards them, and that they were entitled to qualified immunity for continuing to shoot at the car as it drove past because the case law did not show that this violated the decedent's clearly established rights at the time of the shooting.
Judge Motz, in dissent, said Judge Blake had the case figured rightly.
Thursday, December 16, 2004
Good new qualified immunity case
A while back, I wrote an article about qualified immunity in section 1983 cases, and the law continued on, and my few points of understanding about this area of the law continue have been sometimes reaffirmed in the case law in subsequent cases, including Brosseau v. Haugen, a per curiam opinion from the U.S. Supreme Court issued on December 13, an excessive force case in which the Court overturned the denial of qualified immunity by the Ninth Circuit.
Wednesday, July 14, 2004
Fourth go-round on qualified immunity ends in favor of deputy in shooting case
In Martin v. Bushong, the Fourth Circuit in a per curiam decision for the panel of Chief Judge Wilkins, Judge Motz, and Judge Beam sitting by designation, held that a deputy sheriff was entitled to qualified immunity in a section 1983 case related to a fatal shooting. The case had been argued twice in the District Court on motions for summary judgment and this was the second appeal to the Fourth Circuit on qualified immunity, all before trial on the merits.
Thursday, June 17, 2004
Various state appeals court opinions used to show law not clear for purposes of qualified immunity
In Owens v. Lott, earlier this week, the Fourth Circuit in an opinion by Judge Traxler, joined by Judges Michael and Shedd, concluded that the conduct of the defendants in a case under 42 U.S.C. 1983 violated the Fourth Amendment but that the defendants were entitled to qualified immunity.
One thing that is interesting about the case is how the Court went about the analysis of figuring whether the plaintiff's constitutional rights were clearly established. The Court took into account appellate court decisions from a number of state courts, noting that "these decisions provide no clear view, let alone a consensus, regarding what factors are most significant in deciding whether sufficient probable cause exists to support the search of 'all persons' found in a private residence being searched for drugs."
I think this is an interesting and useful opinion for defendants asserting the qualified immunity defense.
One thing that is interesting about the case is how the Court went about the analysis of figuring whether the plaintiff's constitutional rights were clearly established. The Court took into account appellate court decisions from a number of state courts, noting that "these decisions provide no clear view, let alone a consensus, regarding what factors are most significant in deciding whether sufficient probable cause exists to support the search of 'all persons' found in a private residence being searched for drugs."
I think this is an interesting and useful opinion for defendants asserting the qualified immunity defense.
Monday, April 26, 2004
U.S. Supreme Court takes a pass on VMI dinner prayer case
Via this post from TalkLeft, the U.S. Supreme Court has denied certiorari in the case of the VMI dinner prayer, which the Fourth Circuit held was unconstitutional. This How Appealing post includes a link to the dissenting opinion by Justice Scalia, joined by Chief Justice Rehnquist.
The dissent talks about the merits-first order of dealing with qualified immunity issues in section 1983 cases. In such cases, the courts are supposed to first decide whether plaintiff has alleged a constitutional violation, before proceeding to the question of whether the plaintiff's constitutional right was clearly established at the time the defendant acted. The Fourth Circuit affirmed qualified immunity for the superintendent of VMI in the dinner prayer case. So, since he was the winner on the money damages issue, it was not so easy for him to be the appellant before the Supreme Court, but Justice Scalia tried to explain that this was not an insurmountable obstacle in qualified immunity cases. Otherwise, the merits determination would not make it to the Supreme Court, which outcome would more or less be the opposite of what was intended the merit-first rule, to prevent the defendants from winning over and over on the "clearly established" element because the law never would be made clear.
The dissent talks about the merits-first order of dealing with qualified immunity issues in section 1983 cases. In such cases, the courts are supposed to first decide whether plaintiff has alleged a constitutional violation, before proceeding to the question of whether the plaintiff's constitutional right was clearly established at the time the defendant acted. The Fourth Circuit affirmed qualified immunity for the superintendent of VMI in the dinner prayer case. So, since he was the winner on the money damages issue, it was not so easy for him to be the appellant before the Supreme Court, but Justice Scalia tried to explain that this was not an insurmountable obstacle in qualified immunity cases. Otherwise, the merits determination would not make it to the Supreme Court, which outcome would more or less be the opposite of what was intended the merit-first rule, to prevent the defendants from winning over and over on the "clearly established" element because the law never would be made clear.
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