Section 1983 Litigation/Constitutional Rights Enforceable Under § 1983

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Section 1983 Litigation
Table of Contents
Introduction to § 1983 Litigation
The Statute
Historical Background
Nature of § 1983 Litigation
Discovery
Right to Trial by Jury
Jury Instructions
Constitutional Claims Against Federal Officials: The Bivens Doctrine
Section 1983 Does Not Encompass Claims Against Federal Officials
The Bivens Claim for Relief
Law Governing Bivens Claims
Elements of Claim, Functional Role, Pleading, and Jurisdiction
Elements of the § 1983 Claim
Functional Role of § 1983
Pleading § 1983 Claims
Federal Court Jurisdiction
State Court Jurisdiction
Section 1983 Plaintiffs
Persons Entitled to Bring Suit Under § 1983
Standing
Constitutional Rights Enforceable Under § 1983
Generally
Due Process Rights: In General
Procedural Due Process
Substantive Due Process Claims
Use of Force by Government Officials: Sources of Constitutional Protection
Arrests and Searches
Malicious Prosecution Claims Under Fourth Amendment
Conditions-of-Confinement Claims Under Eighth Amendment
First Amendment Claims
Equal Protection “Class-of-One” Claims
Enforcement of Federal Statutes Under § 1983
Enforcement of Federal “Rights”
Specific Comprehensive Scheme Demonstrating Congressional Intent to Foreclose § 1983 Remedy
Current Supreme Court Approach
Enforcement of Federal Regulations Under § 1983
Color of State Law and State Action
State and Local Officials
State Action Tests
Section 1983 Defendants
State Defendants
Interplay of “Person” and Eleventh Amendment Issues
Municipal Defendants
State Versus Municipal Policy Maker
Departments, Offices, and Commissions
Causation
Capacity of Claim: Individual Versus Official Capacity
Municipal Liability
Fundamental Principles of § 1983 Municipal Liability
Officially Promulgated Policy
Municipal Policy Makers
Custom or Practice
Inadequate Training
Inadequate Hiring
Pleading Municipal Liability Claims
Liability of Supervisors
Relationship Between Individual and Municipal Liability
Bifurcation
Los Angeles v. Heller
If Plaintiff Prevails on Personal-Capacity Claim
“Cost Allocation Scheme”
State Liability: The Eleventh Amendment
Relationship Between Suable § 1983 “Person” and Eleventh Amendment Immunity
Eleventh Amendment Protects State Even When Sued by Citizen of Defendant State
State Liability in § 1983 Actions
Personal-Capacity Claims
Municipal Liability; the Hybrid Entity Problem
Eleventh Amendment Waivers
Eleventh Amendment Appeals
Personal-Capacity Claims: Absolute Immunities
Absolute Versus Qualified Immunity: The Functional Approach
Judicial Immunity
Prosecutorial Immunity
Witness Immunity
Legislative Immunity
Personal Liability: Qualified Immunity
Generally
Who May Assert Qualified Immunity? Private Party State Actors
Clearly Established Federal Law
Procedural Aspects of Qualified Immunity
Appeals
Exhaustion of State Remedies
State Judicial Remedies: Parratt-Hudson Doctrine
Preiser, Heck, and Beyond
State Administrative Remedies; PLRA
Notice of Claim
Ripeness
Preclusion Defenses
State Court Judgments
Administrative Res Judicata
Arbitration Decisions
Statute of Limitations
Limitations Period
Relation Back
Accrual
Tolling
Survivorship and Wrongful Death
Survivorship
Wrongful Death
Abstention Doctrines
Pullman Abstention; State Certification Procedure
Younger Abstention
Colorado River Abstention
Burford Abstention
Domestic Relations Doctrine
Tax Injunction Act
Monetary Relief
Nominal and Compensatory Damages
Punitive Damages
Release-Dismissal Agreements
Indemnification
Prison Litigation Reform Act
Attorneys’ Fees
Section 1988 Fee Litigation
Prevailing Parties
Computation of Fee Award: Lodestar Adjustment Method
Other Fee Issues
Model Instructions
Model Instruction 1: Section 1983—Elements of Claim—Action Under Color of State Law
Model Instruction 2: Fourth Amendment Excessive Force Claim
Model Instruction 3: Eighth Amendment Prisoner Excessive Force Claim
Model Instruction 4: Fourth Amendment False Arrest Claim
Model Instruction 5: Municipal Liability—General Instruction
Model Instruction 6: Municipal Liability—Inadequate Training or Supervision
Model Instruction 7: Compensatory Damages
Model Instruction 8: Punitive Damages

Generally[edit | edit source]

Introduction[edit | edit source]

An essential element of a § 1983 claim for relief is the establishment of a violation of a federally protected right (discussed supra Chapter 3, § I). This chapter analyzes federal constitutional rights enforceable under § 1983. The enforcement of federal statutory rights under § 1983 is analyzed infra Section 1983 Litigation/Enforcement of Federal Statutes Under § 1983. The other essential element of the § 1983 claim, action under color of state law, is covered infra Section 1983 Litigation/Color of State Law and State Action.

Fourteenth Amendment Rights[edit | edit source]

Plaintiffs may enforce a wide range of federal constitutional rights under § 1983 against defendants who acted under color of state law.[1] The Fourteenth Amendment creates numerous rights enforceable under § 1983, namely substantive and procedural due process, the equal protection of the laws, and those rights in the Bill of Rights incorporated by the Due Process Clause of the Fourteenth Amendment. These incorporated rights include rights protected by the First Amendment, including the free speech and religion clauses (the free exercise and establishment clauses), the Second Amendment right to bear arms,[2] the Fourth Amendment protection against unreasonable searches and seizures, and the Eighth Amendment protection against cruel and unusual punishment.

Dormant Commerce Clause; Supremacy Clause[edit | edit source]

Section 1983 is not limited to the enforcement of Fourteenth Amendment rights, and provides a remedy for the enforcement of some other constitutional rights. In Dennis v. Higgins,[3] the Supreme Court held that the Dormant Commerce Clause, also referred to as the “negative implications” of the Commerce Clause, which imposes constitutional limitations on the power of the states to regulate interstate commerce, is enforceable under § 1983.[4] The Court in Dennis made clear that § 1983 is not limited to the enforcement of Fourteenth Amendment rights. In Golden State Transit Corp. v. City of Los Angeles,[5] however, the Supreme Court held that the Supremacy Clause does not create rights that are enforceable under § 1983. Rather, the Supremacy Clause governs the relationship between state and federal law, and dictates that state and local laws in conflict with federal statutes are unenforceable.[6] When state action is alleged to violate a federal statute, the pertinent issue is whether the particular federal statutory provision creates rights enforceable under § 1983.[7]

Congress’s Power to Preclude Constitutional Claims Under § 1983[edit | edit source]

Congress has authority to exclude the assertion of specific constitutional claims under § 1983. Although there is extensive Supreme Court decisional law concerning the enforcement of federal statutes under § 1983, there is relatively little Supreme Court decisional law on whether a federal statute can operate to preclude the assertion of a federal constitutional claim. In fact, the Supreme Court has held in only one case that a federal statute precluded the assertion of § 1983 constitutional claims. In Smith v. Robinson,[8] the Court held that in enacting the Education of the Handicapped Act (EHA) Congress intended to preclude the assertion of constitutional claims under § 1983 that parallel, i.e., are analogous, to statutory claims that can be asserted under the EHA.[9]

More recently, the Supreme Court, in Fitzgerald v. Barnstable School Committee,[10] held that Title IX of the Education Amendments of 1972, which prohibits gender discrimination in federally funded education institutions, does not prohibit the assertion of § 1983 gender discrimination claims under the Equal Protection Clause of the Fourteenth Amendment. Fitzgerald made clear that the Court will “not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for a substantial equal protection claim,”[11] or, for that matter, as a remedy for any constitutional claim.

The Court in Fitzgerald stated that when a § 1983 claim is based upon a federal statutory right, evidence of a congressional intent to preclude enforcement of § 1983 “may be found directly in the statute creating the right, or inferred from the statute’s creation of a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.”[12] By contrast, when

the § 1983 claim alleges a constitutional violation, lack of congressional intent [to preclude enforcement under § 1983] may be inferred from a comparison of the rights and protections of the statute and those existing under the Constitution. Where the contours of such rights and protections diverge in significant ways, it is not likely that Congress intended to displace § 1983 suits enforcing constitutional rights.[13]

The Court pointed out that in the three cases in which it held that the specific federal statute precluded the § 1983 remedy, the federal statute “required plaintiffs to comply with particular procedures and/ or to exhaust particular administrative remedies prior to filing suit.”[14] In these circumstances, allowing plaintiffs to use the § 1983 remedy would enable them to circumvent the specific procedural requisites in the federal statute and/or obtain relief under § 1983 that is not available under the particular federal statute. Title IX, however, does not contain specific procedures individuals must pursue that would be circumvented by allowing § 1983 constitutional claims.

In addition, Title IX does not contain an express private claim for relief. The Court in Fitzgerald explained,

“[t]he provision of an express, private means of redress in the statute itself” is a key consideration in determining congressional intent. . . . [The Supreme] Court has never held that an implied right of action had the effect of precluding suit under § 1983, likely because of the difficulty of discerning congressional intent in such a situation. Mindful that [the Court] should “not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for a substantial equal protection claim,” [it saw] no basis for doing so here.[15]

Lastly, as explained in the endnote, Title IX protections are narrower in some respects and broader in other respects than the § 1983 remedy.[16] The Court in Fitzgerald concluded that

[i]n light of the divergent coverage of Title IX and the Equal Protection Clause, as well as the absence of a comprehensive remedial scheme . . ., Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for § 1983 suits as a means of enforcing constitutional rights. Accordingly, we hold that § 1983 suits based on the Equal Protection Clause remain available to plaintiffs alleging unconstitutional gender discrimination in schools.[17]

Whether Plaintiff Has Alleged Constitutional Claim Under § 1983 Requires Interpretation of Constitution, Not § 1983[edit | edit source]

Whether the plaintiff has alleged a proper constitutional claim under § 1983 depends on the meaning of the particular constitutional provision at issue, not on an interpretation of § 1983. For example, in Graham v. Connor,[18] the Supreme Court held that all claims of excessive force during an arrest, investigatory stop, or other seizure are evaluated under a Fourth Amendment objective reasonableness standard.[19] The Court in Graham rejected the existence of “a generic ‘right’ to be free from excessive force, grounded . . . in ‘basic principles of § 1983 jurisprudence.’”[20] “In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.”[21]

Federal § 1983 complaints also frequently assert Fourth Amendment challenges to warrantless arrests. The key issue in these cases is whether the arresting officer had probable cause to arrest.[22] Large numbers of § 1983 complaints allege free speech retaliation claims. These claims frequently give rise to difficult legal issues and sharply contested factual issues.[23] The majority of these claims are asserted by present and former public employees. The key issues in these cases are whether the plaintiff’s speech was pursuant to her official duties; whether the plaintiff’s speech was a matter of public concern; whether the defendant took adverse action against the plaintiff for engaging in protected speech; and whether the governmental interest outweighs the plaintiff’s free speech interests.[24] First Amendment retaliation claims are also asserted by government contractors, individuals subject to criminal prosecution, prisoners, and landowners, among others.

Conspiracies[edit | edit source]

An allegation of a conspiracy does not itself state a claim for relief under § 1983; the plaintiff must also allege a constitutional deprivation.[25] In other words, without a deprivation of a constitutional right, conspiracy allegations do not give rise to a § 1983 claim.

State Law Rights Not Enforceable Under § 1983[edit | edit source]

State law rights are not enforceable under § 1983.[26] When governmental conduct is not proscribed by a textually explicit provision of the Bill of Rights, the Supreme Court has generally rejected substantive due process protection and left the plaintiff to available state tort remedies.[27] For example, in Estelle v. Gamble,[28] the Supreme Court held that “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.”[29] In Baker v. McCollan,[30] the Court held that “[f]alse imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official.”[31] Similarly, in Paul v. Davis,[32] the Court held that defamation by a government official does not itself violate the Constitution.[33] It stated that § 1983 is not a “font of tort law to be superimposed upon whatever systems may already be administered by the States.”[34]

In Collins v. City of Harker Heights,[35] the Supreme Court held that a claim that the city breached its duty of care to its employees by failing to provide a safe working environment was “analogous to a fairly typical state law tort claim” and was not cognizable under § 1983.[36] The Court stated:

Because the Due Process Clause “does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society” . . . we [reject] claims that the Due Process Clause should be interpreted to impose federal duties that are analogous to those traditionally imposed by state tort law.[37]

In some cases, however, state law may have a significant, even decisive, impact on a federal constitutional right. Whether the plaintiff has a protected property interest for the purpose of the Due Process Clause of the Fourteenth Amendment depends on whether state law creates a reasonable expectation in the particular interest. In Board of Regents v. Roth,[38] the Supreme Court held that “[p]roperty interests . . . are not created by the Constitution” but by sources of state law “that support claims of entitlement to” state-created benefits and interests.[39] Further, Supreme Court decisional law holds that when the deprivation of property or liberty results from “random and unauthorized” governmental action, the availability of an adequate state postdeprivation judicial remedy will satisfy procedural due process.[40]

The following sections contain discussions of selected constitutional rights asserted on a fairly recurring basis in federal court § 1983 actions.

Due Process Rights: In General[edit | edit source]

The Due Process Clause of the Fourteenth Amendment encompasses three kinds of federal claims enforceable under 42 U.S.C. § 1983: (1) claims for the deprivation of those rights in the Bill of Rights made applicable to the states through incorporation; (2) claims under the substantive component of the Due Process Clause, which “bars certain arbitrary, wrongful government actions, ‘regardless of the fairness of the procedures used to implement them’”;[41] and (3) claims under the procedural component of the Due Process Clause, which prohibits the deprivation of life, liberty, or property without fair procedure.[42]

When a plaintiff asserts a violation of an incorporated right or a right protected under the substantive component of the Due Process Clause, the violation is complete at the time of the challenged conduct, and the § 1983 remedy is available, regardless of remedies provided under state law.[43] In contrast, when the plaintiff asserts a violation of procedural due process, an available state remedy may provide adequate process, and serve to defeat the procedural due process claim.

Procedural Due Process[edit | edit source]

A § 1983 claim based on denial of procedural due process challenges the constitutional adequacy of state law procedural protections accompanying an alleged deprivation of a constitutionally protected interest in life, liberty, or property. The deprivation of life, liberty, or property alone is a necessary, but not sufficient, condition; to be actionable, the deprivation must have been without adequate process.

Two-Step Approach[edit | edit source]

A procedural due process analysis addresses two questions. The “first asks whether there exists a [life,] liberty or property interest which has been interfered with by the state; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.”[44] A court encountering a procedural due process claim must first determine whether the plaintiff has been deprived of a life, liberty, or property interest that is protected by the Due Process Clause.[45] While liberty interests may be either derived directly from the Due Process Clause of the Constitution,[46] or created by state law,[47] property interests “are created from an independent source such as state law.”[48]

Property[edit | edit source]

In Board of Regents v. Roth,[49] the Supreme Court provided the following guidance for determining when a party has a property interest safeguarded by procedural due process:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

. . .

Property interests . . . are not created by the [federal] Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.[50]

An individual has a “legitimate claim of entitlement” to a government dispensed commodity when the state establishes fairly objective standards of eligibility for receiving the commodity. The Supreme Court has found protected property interests in a variety of government dispensed commodities made available to those who satisfy objective eligibility standards, including public assistance,[51] Social Security disability benefits,[52] driver’s licenses,[53] public school education,[54] municipal furnished utility services,[55] and public employment.[56] On the other hand, the Supreme Court held that there was no property interest in police enforcement of a domestic abuse restraining order, even though the order and a state statute were couched in mandatory terms requiring police enforcement.[57] The Court determined that the mandatory language had to be read together with the tradition of broad discretion afforded law enforcement officers.[58] In addition, except in the area of public employment, federal courts have been reluctant to find that a private party’s contract with a state or municipality creates a protected property interest, because doing so runs the risk that routine breach-of-contract claims could be converted into § 1983 due process claims.[59]

Liberty: Prisoners’ Rights Cases[edit | edit source]

Prisoners’ rights cases frequently require a determination of whether the plaintiff has suffered a deprivation of liberty. In Sandin v. Conner,[60] an inmate placed in disciplinary segregation for thirty days asserted a violation of procedural due process. The Supreme Court held that, despite the mandatory language of the applicable prison regulation, a prisoner’s constitutionally protected liberty interest will generally be “limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”[61] Courts must also look to the substance of the deprivation and assess the hardship imposed on the inmate relative to the ordinary incidents of prison life.[62]

Courts normally decide whether the discipline imposed “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” as a matter of law. However, some decisions recognize that the issue can involve factual determinations.[63] But even when there are factual issues, “the ultimate issue of atypicality is one of law.”[64]

Sandin did not disturb the Court’s decision in Wolff v. McDonnell,[65] which held that a state may create a liberty interest on the part of inmates in the accumulation of good-conduct time credits.[66] Thus, if disciplinary action would inevitably affect the duration of the inmate’s confinement, a liberty interest would be recognized under Wolff.[67] Likewise, prisoners’ claims not based on procedural due process, such as First Amendment retaliatory transfer or retaliatory discipline claims, are not affected by Sandin.[68]

In Wilkinson v. Austin,[69] the Supreme Court acknowledged that “[i]n Sandin’s wake the Courts of Appeals have not reached consistent conclusions for identifying the baseline from which to measure what is atypical and significant in any particular prison system.”[70] The Court found it unnecessary to resolve that issue because it found that placement of the plaintiff prisoner in a “supermax facility” imposed “atypical and significant hardship under any plausible baseline.”[71]

Liberty: “Stigma Plus” Claims[edit | edit source]

In Paul v. Davis,[72] the Supreme Court held that mere government injury to an individual’s reputation is not a deprivation of liberty. However, a deprivation of liberty arises if the injury to reputation occurs in conjunction with the deprivation of some tangible interest, even if the tangible interest is not itself a protected property interest, such as “at will” public employment.[73] This is known as the “stigma-plus” doctrine. Under this doctrine, to establish a deprivation of liberty for the purpose of a procedural due process claim, the plaintiff must demonstrate government publication of the stigma in conjunction with the deprivation of a tangible interest. In this context, procedural due process requires that the stigmatized individual be afforded a name-clearing hearing, i.e., an opportunity to clear her good name and reputation. The “stigma-plus” doctrine has been the subject of extensive lower court decisional law.[74]

Procedural Safeguards[edit | edit source]

Once a protected due process property or liberty interest has been identified, a court must examine the process that accompanies the deprivation of that protected interest and decide whether the available procedural safeguards are constitutionally adequate.[75] The procedural safeguards that must accompany a state’s deprivation of a constitutionally protected interest is a matter of federal law.[76]

Eldridge Balancing[edit | edit source]

When the procedural due process claim contests the adequacy of notice, the court must determine whether the § 1983 plaintiff was given “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the [proceeding] and afford them an opportunity to present their objections.”[77] When the procedural due process claim concerns some aspect of the opportunity to be heard, the courts employ the Mathews v. Eldridge[78] balancing formula to determine the procedures required by the Due Process Clause.

In Eldridge, the Court set forth three factors to be weighed in determining the sufficiency of procedural safeguards accompanying deprivations caused by the government:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.[79]

Federal courts normally determine the procedures required by Eldridge balancing as a matter of law. As a general rule, due process requires some type of notice and an opportunity to be heard prior to the deprivation of a protected interest.[80] In certain circumstances, however, an adequate postdeprivation remedy satisfies procedural due process. The Supreme Court held that a state did not violate the Due Process Clause of the Fourteenth Amendment by failing to provide notice and a hearing before suspending without pay a university police officer who had been arrested and charged with drug possession.[81] Although due process normally requires the government to provide an informal opportunity to be heard before discharging an employee,[82] the Court found that the arrest of the plaintiff-employee; the filing of charges by a third party; and the employer’s need to expeditiously dismiss employees in a position of “great public trust” strongly weighed against granting a predeprivation hearing.[83]

Parratt-Hudson Doctrine[edit | edit source]

A due process claim may be based on a deprivation of life, liberty, or property by state officials acting pursuant to an established state procedure that failed to provide for predeprivation process.[84] In this situation, procedural due process generally requires a predeprivation hearing if the challenged conduct was “authorized,” the erroneous deprivation foreseeable, and predeprivation process was practicable.[85]

In contrast, under the Parratt-Hudson doctrine,[86] there is no procedural due process violation where the deprivation was unforeseeable, random, and unauthorized, and where the state provided an adequate postdeprivation remedy.[87] This doctrine represents a “special case of the general Mathews analysis, in which adequate post-deprivation tort remedies are all the process that is due, simply because they are the only remedies that the state could be expected to provide.”[88] In other words, when the deprivation is the result of random and unauthorized action by a state official, it is not normally possible for the state to provide predeprivation process because the state cannot predict when the deprivation will occur.[89]

Although the Supreme Court has distinguished between claims contesting the established state procedure and claims challenging random and unauthorized acts, it is not always easy to determine whether an official’s conduct is “random and unauthorized.”[90] In Zinermon v. Burch,[91] the plaintiff, Darrell Burch, was admitted to a state mental hospital as a “voluntary” patient under circumstances that clearly indicated he was incapable of informed consent. Burch alleged that his five-month hospitalization deprived him of liberty without due process of law. In holding that Burch’s complaint did not allege random and unauthorized conduct, and was sufficient to state a procedural due process claim, the Supreme Court stated:

Burch’s suit is neither an action challenging the facial adequacy of a State’s statutory procedures, nor an action based only on state officials’ random and unauthorized violation of state laws. Burch is not simply attempting to blame the State for misconduct by its employees. He seeks to hold state officials accountable for their abuse of their broadly delegated, uncircumscribed power to effect the deprivation at issue.[92]

The Court in Zinermon found that the Parratt-Hudson doctrine did not apply because the officials had authority to deprive individuals of their liberty; the deprivations were, therefore, not unpredictable; and it was not impossible for the state to provide predeprivation process.[93]

Actions by High-Ranking Officials. There is a split in the circuits as to whether the Parratt-Hudson doctrine applies to actions by “high-ranking” officials. The First, Fifth, and Seventh Circuits hold that the actions of high-ranking officials may be “random and unauthorized,” and thus subject to the Parratt-Hudson doctrine.[94] The Second Circuit, however, holds that the decisions of high-ranking officials “more closely resemble established state procedures than the haphazard acts of individual state actors.”[95]

Substantive Due Process Claims[edit | edit source]

In addition to providing procedural due process protection, the Due Process Clause imposes certain substantive limitations on the power of state and local government to deprive individuals of life, liberty or property.

In other words, substantive due process bars “‘certain government actions regardless of the fairness of the procedures used to implement them.’”[96]

Substantive due process has been employed by the Supreme Court in two different manners. It has been the basis for implying some fundamental constitutional rights. It has also afforded protection against especially egregious, arbitrary governmental action.

In some cases the Supreme Court has invoked substantive due process as the basis for implying fundamental constitutional rights and invoking heightened judicial scrutiny. These fundamental protections afforded by the substantive component of the Due Process Clause have generally been limited to personal autonomy and privacy “matters relating to marriage, family, procreation, and the right to bodily integrity.”[97] Because “the guideposts for responsible decision making in this [uncharted] area [of substantive due process] are scarce and open-ended,”[98] the Supreme Court has expressed a reluctance to expand the scope of substantive due process protection.[99] Whenever “an explicit textual source of constitutional protection” addresses particular governmental behavior, courts must rely on the more explicit source of protection to analyze the claim, rather than the more general and open-ended concept of substantive due process.[100]

However, substantive due process may also provide protection when egregious governmental conduct is not forbidden by either the explicit provisions of the Bill of Rights or by an implied fundamental constitutional right (such as the right to privacy, to the extent it has been recognized). For example, substantive due process protects individuals who have been subjected to excessive force in a nonseizure, nonprisoner context because neither the Fourth Amendment nor Eighth Amendment applies.[101] Substantive due process may thus be viewed as affording individuals a type of residual protection against egregious governmental wrongdoing.

Shocks the Conscience[edit | edit source]

The Supreme Court, in County of Sacramento v. Lewis,[102] ruled that the substantive due process standard depends on whether the plaintiff is challenging legislative action or executive action and, if the challenge is to executive action, the type of executive action. When the challenge is to legislative action and the legislative policy does not infringe upon a fundamental constitutional right, the test is whether the legislative policy is reasonably related to a legitimate governmental interest.[103] When, as in County of Sacramento, the challenge is to executive action, the question is whether the government action is shocking to the judicial conscience.[104]

County of Sacramento divided executive actions into two categories. When the executive official had time to deliberate, but the official was nevertheless deliberately indifferent, the deliberate indifference “shocks the conscience” and thus violates substantive due process. The Court gave, as an example of executive action with time to deliberate, the provision of medical care to detainees.[105] On the other hand, when executive officers did not have time to deliberate, their actions shock the conscience only if they acted with a purpose to cause harm that is unrelated to a legitimate law enforcement interest. The officers in County of Sacramento were involved in a high-speed police pursuit and did not have a realistic opportunity to deliberate. The Court held that their actions did not violate substantive due process because the officers did not act with a purpose to cause harm unrelated to a legitimate law enforcement interest.

The “shocks the conscience” test governs all substantive due process challenges to executive action not implicating a fundamental, constitutionally protected right.[106] The standard is extremely demanding, and challenges to executive action under it rarely succeed.[107] Negligence is “never sufficient” to show that official conduct shocks-the-conscience.[108] Further, the mere fact that a state or local official violated state law does not mean that the official violated substantive due process. The Supreme Court stated that “errors of state law do not automatically become violations of due process.”[109] Moreover, “[n]ot all arbitrary and capricious state action amounts to a violation of substantive due process; ‘otherwise judicial review for compliance with substantive due process would become the equivalent’” of a typical state law judicial review claim.[110]

In 2009, after a decade of police pursuit litigation under the County of Sacramento’s substantive due process standard, the Sixth Circuit was unable to find any federal court decision “in which an officer’s actions in a police chase have ultimately been found to shock the conscience. . . .”[111]

In some cases the district judge may be able to decide that, as a matter of law, the contested conduct does not violate substantive due process because a reasonable jury could not find that the conduct shocks the conscience.[112] In County of Sacramento, the Court held that the complaint allegations did not state a substantive due process claim. However, in cases where the complaint allegations satisfy the shockthe-conscience standard, and the evidence allows a reasonable jury to find that the contested conduct was conscience shocking, the issue should be submitted to the jury under instructions incorporating the County of Sacramento standards.

District Attorney’s Office v. Osborne[edit | edit source]

In District Attorney’s Office v. Osborne,[113] the Supreme Court rendered an important decision rejecting a criminal defendant’s claims that the state’s denial of access to evidence for the purpose of postconviction DNA testing violated his substantive and procedural due process rights. In rejecting these due process claims, the Court relied heavily on the pervasive legislative enactments governing postconviction DNA, reasoning that recognizing a due process right to postconviction DNA testing “would take the development of rules and procedures in this area out of the hands of legislatures and state courts shaping policy in a focused manner and turn it over to federal courts applying the broad parameters of the Due Process Clause,”[114] thereby, “short-circuit[ing] what looks to be a prompt and considered legislative response.”[115]

In rejecting Osborne’s procedural due process claim, the Court held that the prosecutor’s due process obligation, under Brady v. Maryland,[116] to disclose exculpatory material to the defense is a fair trial right that does not apply postconviction. Further, the Court ruled that although “noncapital defendants do not have a liberty interest in traditional state executive clemency, to which no particular claimant is entitled as a matter of state law,”[117] Osborne did have a state-created liberty interest in demonstrating his innocence.[118] However, because a convicted defendant found guilty after a fair trial has a significantly diminished liberty interest compared to a presumptively innocent person, “[t]he State accordingly has more flexibility in deciding what procedures are needed in the context of postconviction relief.”[119] “Federal courts may upset a State’s postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided.”[120] The Court found that Alaska’s postconviction procedures were facially adequate to obtain access to evidence for DNA testing, and that Osborne did not demonstrate that Alaska’s postconviction procedures were inadequate in operation. It stated:

This is not to say that Osborne must exhaust state-law remedies. See Patsy v. Board of Regents of Fla., 457 U.S. 496, 500–501 . . . (1982). But it is Osborne’s burden to demonstrate the inadequacy of the state-law procedures available to him in state postconviction relief. These procedures are adequate on their face, and without trying them, Osborne can hardly complain that they do not work in practice.[121]

This aspect of the analysis in Osborne is consistent with the position of numerous lower federal courts that § 1983 claimants who allege procedural due process claims must pursue the available procedures and demonstrate their inadequacy.[122] This is not considered an exhaustion requirement, but is in effect an element of a procedural due process claim.

The Court also rejected Osborne’s claimed substantive due process right to postconviction DNA testing. Reiterating its strong reluctance to expand substantive due process rights, the Court found “no long history of … a right [to postconviction DNA testing], and ‘[t]he mere novelty of such a claim is reason enough to doubt that “substantive due process” sustains it.’”[123]

Professional Judgment[edit | edit source]

The federal courts have applied a “professional judgment” standard to certain substantive due process claims. The Supreme Court articulated this standard in Youngberg v. Romeo,[124] holding that state officials are liable for treatment decisions concerning involuntarily committed mental patients only if the officials’ decisions were “such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.”[125] Some courts have applied the professional judgment standard to due process claims asserted on behalf of involuntarily placed foster children.[126] Most courts, however, have applied the deliberate indifference standard to these claims.[127]

DeShaney and Affirmative Duty Cases[edit | edit source]

In DeShaney v. Winnebago County Department of Social Services,[128] the Supreme Court held that the Due Process Clause of the Fourteenth Amendment generally does not create an affirmative duty on the part of the state to “protect the life, liberty, and property of its citizens against invasion by private actors.”[129] The Court concluded that “[a]s a general matter . . . a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.”[130] In other words, the Due Process Clause prohibits the state from engaging in certain conduct that deprives individuals of life, liberty, or property, but it does not generally require the state to engage in affirmative actions to protect individuals from being harmed by third parties, even when the state is aware of the risk of harm and may have the ability to prevent it. Nor does the Due Process Clause generally impose an obligation on the State to provide individuals with essential services such as police and fire protection, or other necessities. Thus, the Court in DeShaney held that the state did not have a due process duty to protect Joshua DeShaney from being abused by his father, even though the state at one point took Joshua into its custody, and state officials were aware of the risk of harm.

However, DeShaney recognized that the state has an affirmative “duty to protect” a person whom the state has incarcerated or involuntarily institutionalized.[131] Plaintiffs who have not been incarcerated or involuntarily institutionalized may assert substantive due process duty-to-protect claims based on allegations that: (1) the plaintiff was in the “functional custody” of the state when harmed, or (2) the state created or increased the danger to which the plaintiff was exposed. The Supreme Court’s decision in DeShaney has generated a tremendous amount of lower court decisional law.[132]

Functional Custody: Foster Care; Public School[edit | edit source]

When a § 1983 plaintiff asserts a violation of the state’s “affirmative due process” duty to protect, grounded in the concept of state “custody,” a number of courts have taken the position that the plaintiff must have been involuntarily in the state’s custody when harmed.[133] In DeShaney, the Court acknowledged that a situation in which the state removes a child from “free society” and places him or her in a foster home might be “sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect.”[134] The federal circuit courts since DeShaney have consistently recognized that the states have a due process duty to protect foster children involuntarily placed by the state in foster care.[135]

On the other hand, the circuits have consistently rejected arguments that public schoolchildren, by virtue of compulsory attendance laws, are in the “functional custody” of the state during school hours.[136] These decisions hold that the state does not have a duty to protect students from harm inflicted by fellow students or other private actors.[137] The dominant rationale of these decisions is that even while in public school, the student remains in her parents’ custody. Courts have likewise rejected the notion that individuals in public housing[138] or employees of a public entity[139] are in the “functional custody” of the state and thus owed an affirmative duty of protection. In Collins v. City of Harker Heights,[140] the Supreme Court unanimously held that “the Due Process Clause does not impose an independent federal obligation upon municipalities to provide certain minimal levels of safety and security in the workplace.”[141]

State-Created Danger[edit | edit source]

In holding that the state had not deprived Joshua DeShaney of any constitutionally protected rights, the Supreme Court suggested that the result might have been different if the state had played a role in creating the dangers to which Joshua was exposed, or if it had increased his vulnerability to these dangers.[142] While DeShaney makes clear that the state’s mere awareness of a risk of harm to an individual will not suffice to impose an affirmative duty to provide protection,[143] most courts of appeals hold that if the state creates the danger confronting the individual, it may then have a corresponding duty to protect.[144] Moreover, the Supreme Court’s decision in Collins— that there is no substantive due process right to a safe work environment[145]—does not necessarily preclude the imposition of constitutional liability on state officials who deliberately or intentionally place public employees in a dangerous situation without adequate protection.[146]

Use of Force by Government Officials: Sources of Constitutional Protection[edit | edit source]

Government officials may be subject to § 1983 lawsuits when they use unjustified force to control criminal suspects, pretrial detainees, and convicted prisoners. The source of the right for claims against these officials depends on the plaintiff’s status at the time the officials used force: the Fourth Amendment[147] applies to arrestees and other “seized” individuals and prohibits the use of unreasonable force;[148] the Due Process Clause applies to pretrial detainees and protects them against “excessive force that amounts to punishment”;[149] and the Eighth Amendment[150] applies to convicted prisoners and prohibits cruel and unusual punishment.[151] Because the Fourth and Eighth Amendment rights have been incorporated by the Due Process Clause of the Fourteenth Amendment, state and local officials are subject to § 1983 lawsuits under these amendments.

Under the substantive due process component of the Fourteenth Amendment, use-of-force claims are actionable if they constitute a deprivation of “liberty . . . without due process of law.”[152] A substantive due process claim challenging the use of force may lie only if neither the Fourth nor the Eighth Amendment applies.[153] For example, if the use of force constituted a “seizure” within the meaning of the Fourth Amendment, the claim must be analyzed only under the Fourth Amendment objective “reasonableness” standard.[154] In other words, the textually explicit Fourth Amendment protection preempts the more generalized substantive due process protection. In fact the Fourth Amendment “objective reasonableness” standard for evaluating excessive force claims is less demanding than the substantive due process “shock the conscience” standard.[155] In contrast, if officers engaged in a high-speed pursuit did not “seize” the § 1983 claimant, the Fourth Amendment would not apply, and the use-of-force claim may be actionable only under the substantive due process component of the Fourteenth Amendment.[156]

Although the “Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment,”[157] the Supreme Court has “not resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive physical force beyond the point at which arrest ends and pretrial detention begins . . . .”[158] The courts of appeals are in conflict over whether the Fourth Amendment or due process provides protection against force used after an arrest and before pretrial detention.[159]

Unreasonable Force Claims Under the Fourth Amendment[edit | edit source]

Whether a police officer’s use of force violated the Fourth Amendment depends on the resolution of two issues: (1) In using force, did the official “seize” the suspect within the meaning of the Fourth Amendment?;[160] and, if so, (2) Was the force objectively unreasonable?[161] If an officer both seized the plaintiff and used objectively unreasonable force, then the plaintiff has established a Fourth Amendment violation. If no seizure occurred, then the use of force is not actionable under the Fourth Amendment. The force, however, might be actionable under the substantive due process protection of the Fourteenth Amendment.[162] Resolving these two issues requires scrutiny of the Supreme Court’s definition of a “seizure” and of “objectively unreasonable” force.

The Supreme Court has articulated the following tests for determining when officers have seized an individual:

  1. Whether “the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.”[163]
  2. Whether, as a result of an official show of authority, a “reasonable person would have believed that he was not free to leave,” and the person in fact submitted to the assertion of authority.[164]
  3. Whether there was “a governmental termination of freedom of movement through means intentionally applied.”[165]

These definitions focus on the assertion of governmental authority and the use of physical force. When officers use physical force, the first and third definitions of seizure are applicable. The first definition simply states that the use of physical force can effectuate a seizure; the third definition requires that the application of force be “intentional.” Thus, if a police officer accidentally hits someone with his vehicle, the officer used physical force, but no seizure occurred because the force was not intentional.[166] Most § 1983 Fourth Amendment excessive force claims arise out of use of force by police during arrests or stops, which are clearly “seizures.” On the other hand, not all intentional uses of force by law enforcement officials are “seizures.” For example, the Tenth Circuit held that a suspect who was shot by a deputy sheriff, but continued his flight by climbing over a fence and fleeing the scene, was not seized within the meaning of the Fourth Amendment.[167] A seizure requires termination of an individual’s freedom of movement or acquisition of physical control.

As discussed in the following subsections, assuming that there has been a seizure, the issue becomes whether the officer’s use of force in effectuating the seizure was objectively reasonable. A model jury instruction for a Fourth Amendment excessive force claim is in the Appendix (see infra Model Instruction 2).

Tennessee v. Garner[edit | edit source]

Determining whether officers used unreasonable force under the Fourth Amendment when they seized a suspect is a fact-specific inquiry. In Tennessee v. Garner,[168] the Supreme Court held that the use of deadly force was objectively unreasonable where a police officer, who had reason to believe that a suspect had just burglarized a home, commanded the fleeing suspect to stop, and shot and killed him when he did not obey the officer’s command.[169] The Court held that a governmental policy that allows the use of deadly force against all fleeing felons violates the Fourth Amendment; the use of deadly force is reasonable only if the officer has probable cause to believe that the suspect poses a risk of serious harm to the officer or others.[170] The Court stated that “if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”[171] Because burglary does not necessarily involve the infliction of “serious physical harm and because the suspect posed no danger to the officer or the community, the officer’s use of deadly force violated the Fourth Amendment.”[172]

The courts of appeals have prescribed caution in relying on the officer’s version of a deadly force encounter when the victim is not available to counter it. For example, in Scott v. Henrich,[173] the Ninth Circuit stated:

Deadly force cases pose a particularly difficult problem under this regime because the officer defendant is often the only surviving eyewitness. Therefore, the judge must ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story—the person shot dead—is unable to testify. The judge must carefully examine all the evidence in the record, such as medical reports, contemporaneous statements by the officer and the available physical evidence, as well as any expert testimony proffered by the plaintiff, to determine whether the officer’s story is internally consistent and consistent with other known facts. In other words, the court may not simply accept what may be a self-serving account by the police officer. It must also look at the circumstantial evidence that, if believed, would tend to discredit the police officer’s story, and consider whether this evidence could convince a rational factfinder that the officer acted unreasonably.[174]

Graham v. Connor[edit | edit source]

In Graham v. Connor,[175] the Supreme Court extended Garner’s “objective reasonableness” standard to any use of force by a law enforcement officer during an arrest, investigatory stop, or other seizure. The Court held “that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.”[176] To determine the reasonableness of the force employed, courts must consider “the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”[177] The Court did not intend that these be the exclusive factors that may be relevant to the reasonableness inquiry. Courts must afford the officers some deference because they often have to make “split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”[178] This reasonableness inquiry is an objective one: “An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.”[179] Although plaintiffs need not prove that officers acted in bad faith in order to demonstrate that the use of force violated the Fourth Amendment,[180] such evidence may be admissible to impeach the officers’ credibility, or on the question of punitive damages.[181]

When multiple officers are sued on a Fourth Amendment excessive force claim, the district court must evaluate each officer’s liability separately.[182] Where possible, courts should parse different or multiple uses of force.[183] Lower federal courts commonly exclude evidence of police department directives on appropriate use of force on the rationale that the pertinent issue is whether the officer acted in an objectively reasonable manner under the Fourth Amendment, not whether officer complied with police department directives.[184]

Scott v. Harris[edit | edit source]

In Scott v. Harris,[185] the Supreme Court applied the Fourth Amendment “objective reasonableness” standard to a police officer’s use of force to end a high-speed police pursuit. The Court held that the defendant “police officer’s attempt to terminate a dangerous highspeed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”[186]

The plaintiff, Victor Harris, was traveling seventy-three miles per hour in a fifty-five-mile-per-hour zone. The defendant, Deputy Sheriff Timothy Scott, activated his blue lights and siren, but Harris failed to pull over, instead accelerating his speed. The videotape of the chase made from the pursuing police cruiser showed Harris’s

vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. . . . Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.[187]

Deputy Scott had initially decided to terminate the encounter by employing a “Precision Intervention Technique” (PIT) maneuver, which causes a fleeing vehicle to spin to a stop, but instead “applied his push bumper to the rear of [Harris’s] vehicle. As a result, [Harris] lost control of his vehicle, which left the roadway, ran down an embankment, overturned, and crashed. [Harris] was badly injured and was rendered quadriplegic.”[188]

The majority of the Court, in an opinion by Justice Antonin Scalia, found that Deputy Scott’s actions constituted a seizure because the officer terminated Harris’s freedom of movement through the means intentionally applied, namely, ramming his car from behind.[189] The Court held, however, that the seizure did not violate the Fourth Amendment because it was objectively reasonable. Significantly, the summary judgment evidence included the videotape of the chase made from the pursuing police cruiser; the Court posted the video on its website. In his concurring opinion, Justice Stephen G. Breyer, found that the videotape made a difference, and urged the reader to view it.

Excessive force cases often present genuine disputed issues of material facts that make resolution on summary judgment inappropriate. In Scott, however, the Court held that the videotape enabled resolution of the case in favor of the defendant on summary judgment. There were no allegations or indications that the videotape was doctored or altered, or that it distorted the incident.[190] The plaintiff’s version of the incident was “so utterly discredited” by the videotape “that no reasonable jury could have believed him.”[191] The Court ruled that when, as in Scott, the material facts are not in dispute, the reasonableness of the use of force “is a pure question of law.”[192] Even so, it had to “slosh . . . through the factbound morass of ‘reasonableness.’”[193]

The Court distinguished Tennessee v. Garner,[194] in which the Court had held that it was unreasonable for the police

to kill a “young, slight, and unarmed” burglary suspect, by shooting him ‘in the back of the head’ while he was running away on foot, and when the officer “could not reasonably have believed that [the suspect] . . . posed any threat,” and “never attempted to justify his actions on any basis other than the need to prevent an escape.”[195]

Scott stressed that the “necessity” for using deadly force referred to in Garner was not the necessity of preventing escape, but the necessity of preventing serious physical harm to the officers or others.[196] Scott did not involve a police officer’s shooting of an unarmed, nonthreatening suspect, but an officer’s bumping a fleeing motorist whose flight posed an extreme danger to innocent individuals.

The Court in Scott said that “Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’ Garner was simply an application of the Fourth Amendment’s ‘reasonableness’ test to the use of a particular type of force in a particular situation.”[197] The Scott Court further ruled that, in assessing the reasonableness of the officer’s use of force, it is appropriate to consider the relative culpability of the parties. It was significant that Harris

intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately produced the choice between two evils that Scott confronted. Multiple police cars, with blue lights flashing and sirens blaring, had been chasing [Harris] for nearly 10 miles, but he ignored their warning to stop. By contrast, those who might have been harmed had Scott not taken the action he did were entirely innocent.[198]

The Court also ruled that the police were not required to take the chance of calling off the pursuit and hoping for the best: “Whereas Scott’s action—ramming [Harris] off the road—was certain to eliminate the risk that [Harris] posed to the public, ceasing pursuit was not. . . . [T]here would have been no way to convey convincingly to [Harris] that the chase was off, and that he was free to go.”[199] Furthermore, the Court said that it was

loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger. It is obvious the perverse incentives such a rule would create: Every fleeing motorist would know that escape is within his grasp, if only he accelerates to 90 miles per hour, crosses the double-yellow line a few times, and runs a few red lights. . . . Instead, we lay down a more sensible rule: A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.[200]

The Court thus held that, because the car chase that Harris initiated posed substantial and immediate risk of serious physical injury to others, Deputy Scott’s attempt to terminate the chase by forcing Harris off the road was reasonable. Since no reasonable jury could find otherwise, Scott was entitled to summary judgment.

Justice Ruth Bader Ginsburg, concurring, did not read the Court’s opinion as creating a mechanical per se rule, but rather as based on a fact-specific evaluation of reasonableness.[201] By contrast, Justice Breyer read the Court’s decision as articulating a per se rule, namely, “‘[a] police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.’”[202] Breyer found that this statement by the majority “is too absolute,” and that “whether a high-speed chase violates the Fourth Amendment may well depend upon more circumstances than the majority’s rule reflects.”[203] Justice John Paul Stevens, the sole dissenter, opined that “[w]hether a person’s actions have risen to a level warranting deadly force is a question of fact best reserved for a jury,”[204] and that the Court in this case usurped the function of the jury by adopting a “per se rule that presumes its own version of the facts.”[205]

The most significant aspect of the Supreme Court’s decision in Scott is the ruling that an accurate videotape depicting the encounter between the plaintiff and the officer may provide the basis for resolving the § 1983 excessive force claim on summary judgment. Numerous lower court decisions have applied this aspect of Scott.[206]

Specific Types of Force[edit | edit source]

Federal appellate court case law adjudicating § 1983 Fourth Amendment excessive force claims is so extensive that decisions can be grouped according to specific types of force—for example, handcuffing,[207] pepper spray,[208] canine force,[209] and Tasers. Recent years have seen a large increase in § 1983 excessive force Taser cases.[210] A Taser or stun gun is “a non-lethal device commonly used to subdue individuals resisting arrest. It sends an electric pulse through the body of the victim causing immobilization, disorientation, loss of balance and weakness. It leaves few, if any, marks on the victim.”[211] As discussed in the next subsection, the lower court decisional law has generated an array of issues yet to be resolved by the Supreme Court.

Other Fourth Amendment Excessive Force Issues[edit | edit source]

Officer’s Conduct Prior to Use of Force[edit | edit source]

The circuit courts have taken different positions on whether an officer’s conduct prior to the use of force should be considered in evaluating the objective reasonableness of his actions.[212] Some courts “freeze the time frame” and consider only actions immediately before force was used, holding that the officer’s preshooting conduct is “not relevant and inadmissible.”[213] In the Second Circuit the “[shooting officer’s] actions leading up to the shooting are irrelevant to the objective reasonableness of his conduct at the moment he decided to employ deadly force.”[214] The Second Circuit considers only “the officer’s knowledge of circumstances immediately prior to and at the moment that he made the split-second decision to employ deadly force.”[215] By contrast, the First Circuit considers “the actions of the government officials leading up to the seizure,” not just at the moment of the shooting.[216]

The Third Circuit holds that the circumstances considered in evaluating the objective reasonableness of the force used should not automatically exclude “all context and causes prior to the moment” force is employed because, after all, “[h]ow is the reasonableness of a bullet striking someone to be assessed if not by examining the preceding events?”[217] As a slight variation, the Tenth Circuit holds that consideration may be given to the police officer’s conduct in the moments leading up to the suspect’s threat to use force if the officer’s conduct was so “immediately connected” to the suspect’s threat that it should be considered in evaluating the reasonableness of the officer’s forceful response.[218] The Sixth

Circuit takes a similar approach.[219]

Officer’s Mistake of Fact[edit | edit source]

Two recent courts of appeals decisions analyze how an officer’s mistake of fact should be evaluated when a Fourth Amendment, excessive force claim is subject to qualified immunity. In Henry v. Purnell,[220] the Fourth Circuit held that a police officer’s shooting of a nonthreatening individual suspected of a misdemeanor, where the officer intended to use his Taser rather than his gun, violated clearly established Fourth Amendment law. The officer was thus not entitled to summary judgment on the basis of qualified immunity. It was not objectively reasonable for the officer to believe he had drawn his Taser rather than his Glock. The Taser was “a foot lower” than the Glock, half its weight, and “had a thumb safety that had to be flipped to arm” it.[221] The court concluded:

In the end, this may be a case where an officer committed a constitutionally unreasonable seizure as the result of an unreasonable factual mistake. If he did, he is no more protected [by qualified immunity] from civil liability than are the well-meaning officers who make unreasonable legal mistakes regarding the constitutionality of their conduct.[222]

In Torres v. City of Madera,[223] the complaint alleged that the defendant, Officer Marcy Noriega, fatally shot Everardo Torres in the chest with her Glock semiautomatic pistol, “believing it at the time to be her Taser M26 stun gun.”[224] Following Purnell, the Ninth Circuit held that Officer Noriega was not entitled to summary judgment either under the Fourth Amendment or on the basis of qualified immunity. The court ruled that where an officer’s use of force is based on a mistake of fact, the pertinent Fourth Amendment question is whether the mistake was objectively reasonable, i.e., “whether a reasonable officer would have or should have accurately perceived that fact.”[225] Under the circumstances, a reasonable jury could find that the officer’s

mistake was unreasonable because her own prior incidents of weapon confusion put her on notice of the risk of repetition, her daily practice drawing weapons at her sergeant’s instruction equipped her with the training to avoid such incidents, and the non-exigent circumstances surrounding Everardo’s deadly shooting [i.e., he was sitting handcuffed in back of the patrol car when he was shot] did not warrant such hasty conduct heightening the risk of weapon error.[226]

Therefore, a reasonable jury could find that the use of deadly force was excessive and thus in violation of the Fourth Amendment.

Nor was Noriega entitled to qualified immunity on summary judgment. The Ninth Circuit ruled that while the Fourth Amendment analysis considers the reasonableness of an officer’s mistake of fact, qualified immunity is concerned only with the reasonableness of the officer’s mistake of law. Officer Noriega was not protected by qualified immunity because it was clearly established that unreasonably mistaken use of deadly force against an unarmed, non-dangerous suspect violated the Fourth Amendment.

Need for Deadly Force Instruction?[edit | edit source]

The federal courts generally define “deadly force” for Fourth Amendment purposes as force carrying a “substantial risk of causing death or serious bodily injury.”[227] Prior to the Supreme Court’s decision in Harris, some courts held that when “deadly force” is used, the district court’s instructions should not merely articulate the general Graham standard of objective reasonableness, but should include the more specific “detailed” and “demanding” Garner standard.[228] In deadly force cases, these decisions reasoned, the Graham standard does not adequately inform the jury about when a police officer may constitutionally use deadly force.[229] However, the Harris decision—that Garner was simply an application of the generally applicable Fourth Amendment “objective reasonableness” standard—has created uncertainty as to whether a special instruction on deadly force is required.[230]

Is Summary Judgment Appropriate?[edit | edit source]

Whether an officer used excessive force in violation of the Fourth Amendment is normally a factual issue for the jury, and “summary judgment . . . in excessive force cases should be granted sparingly.”[231] However, some Fourth Amendment excessive force cases can be decided on summary judgment,[232] especially when qualified immunity is asserted as a defense.[233] Further, as discussed earlier, summary judgment may be appropriate when there is a videotape of the incident that was not doctored or altered, and that accurately depicts the incident.[234]

Duty to Prevent Use of Excessive Force[edit | edit source]

An “on-looking” officer who has a realistic opportunity to prevent a fellow officer from inflicting deadly harm has a constitutional obligation to take reasonable steps to do so. The Seventh Circuit stated that “a defendant police officer may be held to account both for his own use of excessive force . . . as well as his failure to take reasonable steps to attempt to stop the use of excessive force used by his fellow officers.”[235]

Right to Medical Treatment[edit | edit source]

Fourth Amendment excessive force claims are often accompanied by due process claims of failure to provide medical treatment. In City of Revere v. Massachusetts General Hospital,[236] the Supreme Court held that due process requires the state “to provide medical care to persons . . . who have been injured while being apprehended by the police.”[237] The Court did not articulate a particular due process standard, but stated that “the due process rights of [detainees] are at least as great as the Eighth Amendment protections available to a convicted prisoner.”[238] To prove an Eighth Amendment violation, a convicted prisoner must demonstrate deliberate indifference to a serious medical need.[239] Many circuits apply the Eighth Amendment “deliberate indifference” standard for detainee medical care cases.[240]

Prisoner Excessive Force Claims Under Eighth Amendment[edit | edit source]

Unlike excessive force claims brought under the Fourth Amendment, in which the officer’s subjective motive or intent is irrelevant and the constitutionality of the use of force is evaluated under an objective reasonableness standard, malice is the central inquiry under the Eighth Amendment for a prisoner’s claim alleging the use of excessive force by prison guards. The Eighth Amendment standard is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”[241] In two decisions, the Supreme Court held that this standard applies to the use of force by prison officers to control prisoners, whether to diffuse a riot[242] or to impose discipline.[243] A model jury instruction for an Eighth Amendment prisoner excessive force claim is in the Appendix (see infra Model Instruction 3).

In Whitley v. Albers,[244] the Supreme Court held that five factors are relevant in determining whether officers acted maliciously when they used force to quell a prison riot: (1) the need for force; (2) “the relationship between the need and the amount of force that was used”; (3) “the extent of injury inflicted”; (4) “the extent of the threat to the safety of staff and inmates”; and (5) “any efforts made to temper the severity of a forceful response.”[245] The Court in Whitley said that courts should defer to the judgment of prison officials, who typically have to make decisions regarding the use of force in pressured, tense circumstances.[246]

The Supreme Court later applied the Whitley standards in Hudson v. McMillian,[247] where officials did not face the exigencies of a prison riot. Hudson held that prisoners who assert Eighth Amendment excessive force claims are not required to establish “significant injury.”[248] However, plaintiffs must allege something more than a de minimis injury unless the force used was “repugnant to the conscience of mankind.”[249] Thus, the extent of an injury is just one factor in determining whether the official acted with malice.

Relying on Hudson, the Supreme Court, in Wilkins v. Gaddy,[250] held that a prisoner’s § 1983 Eighth Amendment excessive force claim should not be dismissed solely because the prisoner’s injuries were de minimis. The Court acknowledged that the extent of injury may be a relevant indicator of the amount of force used, and of whether “force could plausibly have been thought necessary.”[251] The degree of injury may also be relevant on the issue of damages.[252] “Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts. An inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.”[253]

The district judge must determine whether there is sufficient evidence for a prisoner excessive force claim to be submitted to a jury, or whether it should be decided as a matter of law on summary judgment or a motion to dismiss. In Whitley, the Supreme Court stated that “[u]nless it appears that the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonness in the infliction of pain under the [Eighth Amendment] standard we have described, the case should not go to the jury.”[254]

Pretrial Detainee Excessive Force Claims Under Fourteenth Amendment[edit | edit source]

In Graham v. Connor,[255] the Supreme Court, citing Bell v. Wolfish,[256] stated that “the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.”[257] Later, however, the Court held, in County of Sacramento v. Lewis,[258] that to violate the substantive due process component of the Fourteenth Amendment, an official’s actions must “shock the conscience.”[259] Officials commit conscience-shocking actions when they use force with an intent to harm that is “unrelated to the legitimate object of arrest.”[260] The Court derived this malice standard by likening a police officer’s actions during a high-speed pursuit to a prison guard’s actions during a riot:[261] both must act quickly with little time for reflection. However, the Court in Lewis did not state that the “shocks-the-conscience” standard applies specifically to excessive force claims raised by pretrial detainees. It is thus unclear whether the Supreme Court in Lewis intended to modify the holding in Wolfish.

There is a conflict among the circuits concerning the appropriate due process standard for detainee excessive force claims.[262] For example, the First Circuit applies the Bell punishment standard,[263] while the Third, Fourth, Fifth and Eleventh Circuits have adopted a malice standard, i.e., whether the force was applied in a good-faith effort to restore discipline or maliciously and sadistically to cause harm.[264] The Seventh Circuit holds that the Bell standard applies to detainee due process challenges to general practices, rules, and restrictions on pretrial confinement, but that detainee challenges to specific acts or failures to act by government officials are governed by the deliberate indifference test.[265] A federal district judge faced with a detainee excessive force claim must apply the controlling circuit decisional law.[266] If such decisional law does not exist, the author recommends application of the Bell standard.

Analyzing the substantive due process rights of pretrial detention in detail, the Supreme Court stated in Bell:

In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. For under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.… A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on “whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it and whether it appears excessive in relation to the alternative purpose….” Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.[267]

In the author’s view, the Supreme Court decisions in Graham and Bell strongly support the application of the due process punishment standard to detainee excessive force claims.[268]

Arrests and Searches[edit | edit source]

Section 1983 complaints challenging law enforcement arrests, stops, frisks, searches, and seizures of property require the federal district court to determine the Fourth Amendment limitations on these law-enforcement actions.[269] Given that the Supreme Court has decided more than three hundred Fourth Amendment cases since its decision in Boyd v. United States[270]—the first Supreme Court decision seriously considering the Fourth Amendment—comprehensive coverage of this voluminous subject is beyond the scope of this monograph.

Arrests[edit | edit source]

The critical issue in most § 1983 unconstitutional arrest cases is whether the officer had probable cause to arrest. Probable cause is a complete defense to a § 1983 unconstitutional arrest claim brought under the Fourth Amendment.[271] Probable cause exists when the “facts and circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.”[272] An officer cannot close her eyes to potentially exculpatory evidence, but once she has evidence from a reasonably credible source, she has “no constitutional obligation to conduct any further investigation before making an arrest.”[273] Because probable cause is a wholly objective standard, viewed from the perspective of a “reasonable officer,” the officer’s subjective motivation is irrelevant.[274] A model jury instruction for a Fourth Amendment false arrest claim is in the Appendix (see infra Model Instruction 4).

A warrantless arrest in a public place comports with the Fourth Amendment so long as there was probable cause to arrest the suspect for some crime—the probable cause need not be for the crime articulated by the arresting officer, or even for a “closely related” crime.[275] Further, an arrest in a public place supported by probable cause comports with the Fourth Amendment even if the arrest violates a state law which authorizes only a citation for the particular offense.[276] In sharp contrast to arrests in public places, an arrest in the arrestee’s home generally requires an arrest warrant and reason to believe the suspect is in the home.[277]

There is a conflict among the circuits as to who bears the burden of proof in a § 1983 claim based on unconstitutional arrest.[278] Some courts hold that the plaintiff has the burden of proving that the arrest violated the Fourth Amendment.[279] The Ninth Circuit, for instance, held that a § 1983 plaintiff “at all times had the ultimate burden of proving to the jury that she had been seized unreasonably in violation of the Fourth Amendment.”[280] In a subsequent decision, the Ninth Circuit explained that

[a]lthough the plaintiff bears the burden of proof on the issue of unlawful arrest, she can make a prima facie case simply by showing that the arrest was conducted without a valid warrant. At that point, the burden shifts to the defendant to provide some evidence that the arresting officers had probable cause for a warrantless arrest. The plaintiff still has the ultimate burden of proof, but the burden of production falls on the defendant.[281]

The Tenth Circuit ruled that when a § 1983 plaintiff alleges arrest without probable cause, the defendant has the burden of proving probable cause.[282] The position finds support in the common-law principle that probable cause is a defense to a false arrest claim—a principle that has been held to apply to § 1983 unconstitutional arrest claims.[283]

Stop and Frisk[edit | edit source]

Many § 1983 actions contest police stops and frisks.[284] In the Supreme Court’s landmark decision in Terry v. Ohio,[285] the Court held that a stop is a “seizure” and a frisk is a “search” within the meaning of the Fourth Amendment. However, because a “stop” is a lesser intrusion than an arrest, and a “frisk” is not a full-blown search, a “stop and frisk” is governed by a lesser standard than probable cause, namely reasonable suspicion. The Court in Terry said that the police officer must “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.”[286] There must be reasonable suspicion to justify both the stop and the frisk. To justify a stop, the officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.”[287]

When a person is lawfully stopped, the officer may frisk him if the officer has a particularized and objective basis for concluding that the suspect is armed and dangerous.[288] Like probable cause, reasonable suspicion is an objective, “reasonable person” test under which the officer’s subjective belief is irrelevant.[289] Leading Supreme Court decisions applying the reasonable suspicion standard are cited here.[290]

Searches[edit | edit source]

Large numbers of § 1983 actions allege that law enforcement officers conducted a “search” in violation of the Fourth Amendment. The alleged search may have occurred in conjunction with an arrest of the plaintiff, or independent of any arrest.[291] Supreme Court decisional law governing searches is complex and extensive.[292] Leading Supreme Court cases for particular Fourth Amendment search issues especially likely to be relevant in § 1983 litigations are cited in the footnote.[293]

The cases are in conflict concerning the burden in § 1983 actions challenging warrantless searches.[294] Courts of appeals decisions consistently state that probable cause normally presents a question of fact for the jury “unless there is only one reasonable determination possible.”[295] Therefore, “a district court may conclude ‘that probable cause did exist as a matter of law if the evidence, viewed most favorably to Plaintiff, reasonably would not support a contrary factual finding,’ and may enter summary judgment accordingly.”[296] It seems that federal courts are able to resolve a large percentage of probable cause issues as a matter of law. Further, Fourth Amendment challenges to arrests and searches are subject to qualified immunity.[297]

Separate Analysis of Different Aspects of Officer’s Conduct (Muehler v. Mena)[edit | edit source]

In many § 1983 Fourth Amendment cases it is necessary to analyze the different components of the law enforcement officer’s actions separately. The Supreme Court’s decision in Muehler v. Mena[298] provides a valuable illustration. In that case, the plaintiff, an occupant of the premises being searched, was detained, handcuffed, and questioned while the officers executed the search warrant; the Court analyzed each of these actions separately and found no violation of the Fourth Amendment.[299] On the detention issue, the Court held that its decision in Michigan v. Summers[300] established that police officers who execute a search warrant may detain any individuals on the premises.[301] An officer’s authority to detain incident to a search supported by probable cause is “implicit”; it does not depend on the “quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure.”[302] On the handcuffing claim, Muehler held that, under the particular circumstances, the plaintiff’s “detention in handcuffs for the length of the search was consistent with . . . Summers.”[303] The handcuffing was reasonable because “this was no ordinary search” but “a search for weapons and a wanted gang member reside[d] on the premises.”[304] Justice Kennedy, concurring, pointed out that excessively tight or prolonged handcuffing may give rise to a § 1983 Fourth Amendment excessive force claim.[305] Finally, the Court held that police questioning of a person detained during the execution of a search warrant does not require independent probable cause because “‘mere police questioning does not constitute a seizure.’”[306]

Malicious Prosecution Claims Under Fourth Amendment[edit | edit source]

The federal courts have had difficulty determining whether a § 1983 complaint states a proper constitutional claim for “malicious prosecution.” Prior to the Supreme Court’s 1994 decision in Albright v. Oliver,[307] some lower courts used the common-law elements of a malicious prosecution tort to establish a substantive due process malicious prosecution claim. These elements are (1) institution of a criminal prosecution; (2) without probable cause; (3) with malice; and (4) termination in favor of the accused.[308] It is now established, however, that state law malicious prosecution claims do not constitute constitutional claims simply because they are “garbed in the regalia of § 1983.”[309]

In Albright the justices wrote six separate opinions reflecting a variety of views about whether a claim that a criminal prosecution was undertaken without probable cause could be premised on substantive due process.

Because there was no majority opinion, it is difficult to determine what the Court resolved.

The plurality opinion, written by Chief Justice Rehnquist (joined by Justices O’Connor, Scalia, and Ginsburg), found that an individual who has been arrested cannot premise a claim that he was prosecuted without probable cause upon substantive due process, but may be able to premise such a claim on the Fourth Amendment. However, because the plaintiff did not present a Fourth Amendment claim, the Court did not decide whether he actually had a valid Fourth Amendment claim. In fact, the Court has “never explored the contours of a Fourth Amendment malicious-prosecution suit under § 1983.”[310] Arguably the concurrences of Justices Kennedy (joined by Justice Thomas) and Souter can be read as agreeing with the plurality’s rejection of substantive due process as the basis for the claim, and as leaving open the possibility of the claim being premised on the Fourth Amendment.[311]

It is worthwhile to highlight some of the other positions of the justices in Albright. Justice Ginsburg, in her concurring opinion, found that the Fourth Amendment did apply to the facts of Albright’s case because the restraint imposed on a person arrested on a criminal charge does not end upon release from official custody and continues throughout the criminal trial.[312] For example, he must appear in court when ordered to do so, and may need permission to travel beyond the court’s jurisdiction. The arrestee is thus subject to a “continuing seizure” throughout the criminal proceeding that requires ongoing compliance with the Fourth Amendment. She found, however, that Albright abandoned his Fourth Amendment claim.

Justice Kennedy, joined by Justice Thomas, concurred in the judgment, asserting that a malicious prosecution claim is actually a procedural due process claim.[313] He acknowledged that the Due Process Clause protects more than the liberty interests specified in the Bill of Rights. However, “the due process requirements for criminal proceedings do not include a standard for the initiation of a criminal prosecution.”[314] Kennedy stated that, in some circumstances, the challenged governmental actions alleging “malicious prosecution” may state a violation of procedural due process, but found such a claim was not viable in this case because state law provided the plaintiff with a remedy.[315]

Justice Souter, concurring, rejected the substantive due process claim for two reasons. First, he opined that a substantive due process claim is available only when the textually explicit provisions of the Bill of Rights do not apply, and the plaintiff’s substantive due process claim is “substantial.”[316] Second, the types of injuries alleged were compensable under the Fourth Amendment, yet the plaintiff, Albright, had not relied on it.[317] Souter recognized that sometimes injuries may occur before there is a Fourth Amendment seizure; whether these injuries are actionable under substantive due process, he stated, was not presented by the facts of this case.[318]

In his dissent, Justice Stevens, joined by Justice Blackmun, concluded that the plaintiff stated a violation of substantive due process.[319]

Given the variety of views articulated by the justices, it is not surprising that Albright “spawned controversy and confusion in the lower courts.”[320] The courts of appeals disagree, inter alia, over whether there are circumstances in which an alleged malicious prosecution may violate the Fourth Amendment.[321] Some decisions hold that a § 1983 claim may be premised upon an unreasonable seizure under the Fourth Amendment combined with the common-law elements of malicious prosecution, raising questions of, inter alia, probable cause to prosecute, malice, and favorable termination,[322] while other circuits have taken a purely Fourth Amendment approach.[323] The Third Circuit held, 2–1, that the § 1983 claim may lie when some, though not all, criminal charges are terminated in favor of the criminal defendant.[324] Illustrative courts of appeals decisions are cited in the note, below.[325]

Clearly, referring to the § 1983 claim as a “malicious prosecution” claim clouds rather than clarifies the analysis because, when all is said and done, the plaintiff must establish a violation of a specific, constitutionally protected right.[326]

Conditions-of-Confinement Claims Under Eighth Amendment[edit | edit source]

When challenging their conditions of confinement, prisoners must prove that the conditions constituted “cruel and unusual punishment” within the meaning of the Eighth Amendment. The Eighth Amendment does not require comfortable prisons, but forbids inhumane conditions.[327] The Supreme Court has defined the Eighth Amendment standard as containing both subjective and objective components.[328] The subjective component requires proof that prison officials acted with subjective deliberate indifference,[329] while the objective component requires proof that the deprivation was “sufficiently serious.”[330] Several Supreme Court decisions shed light on the meaning of these two components.

In Estelle v. Gamble,[331] a case involving medical care of prisoners, the Supreme Court held that to state a claim for medical treatment under the Eighth Amendment, a prisoner must prove that prison officials were deliberately indifferent to the prisoner’s “serious medical needs.”[332] The Court determined that the Eighth Amendment was not violated by negligent medical care. Thus, medical malpractice is not a constitutional violation simply because the plaintiff is a prisoner.[333]

In an important decision, Cotts v. Osafo,[334] the Seventh Circuit held that, because prison medical treatment claims require the plaintiff to prove deliberate indifference to a serious medical need, the jury instructions should not require him to prove “cruel and unusual punishment.”[335] The court reasoned that “cruel and unusual punishment language” in the instructions may mislead the jury into concluding that the plaintiff has to prove “that the defendants affirmatively ‘punished’ him.”[336] The court in Cotts also ruled that the jury instructions on a prisoner medical treatment claim should not require the plaintiff to prove damages at the liability stage because “[d]amages are not an element of liability in a deliberate indifference claim.”[337]

In Wilson v. Seiter,[338] the Supreme Court interpreted Estelle to govern all claims challenging prison conditions.[339] Wilson narrowly defined both the subjective and objective components, holding that the subjective deliberate indifference component is a necessary element of all prison condition claims.[340] Inhumane prison conditions alone do not constitute an Eighth Amendment violation.[341] The Court also held that the objective component requires proof that the deprivation was “serious,” that is, one addressing a specific, basic human need like “food, warmth, or exercise.”[342] “Nothing so amorphous as ‘overall conditions’ can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists.”[343] The Court left open whether inadequate funding was a defense to a finding of subjective deliberate indifference.[344] The concurrence in Wilson, however, noted that the courts of appeals have rejected such a “cost” defense.[345]

Subsequently, the Supreme Court held, in Helling v. McKinney,[346] that a prisoner stated an Eighth Amendment claim in challenging his confinement with a cell mate who smoked five packs of cigarettes a day.[347] The Court found that this case was similar to Estelle because the challenge concerned a prisoner’s health. Further, it explained, the Eighth Amendment applies equally to claims that prison conditions are causing current physical harm, and claims that prison conditions may cause future harm.[348]

In Farmer v. Brennan,[349] the Court defined the term “deliberate indifference.”[350] Recognizing an Eighth Amendment duty on the part of prison officials to protect prisoners from harming each other, the Court explained that the “deliberate indifference” standard in this context is subjective, not objective. Deliberate indifference requires proof that the official actually knew of a substantial risk of serious harm and failed to act.[351] The Court flatly rejected objective deliberate indifference—a showing that officials knew or should have known of the harm, regardless of their actual state of mind—as the correct standard in “inhumane conditions of confinement” cases.[352] Because deliberate indifference “describes a state of mind more blameworthy than negligence,”[353] the Court adopted the subjective definition of deliberate indifference. This subjective standard protects the prison officials who either were not aware of the facts giving rise to the risk of harm, or who failed to deduce the risk of serious harm.[354] The jury, however, can infer that the official actually knew of the risk based on the same type of circumstantial evidence that is used to prove objective deliberate indifference, i.e., a risk of harm sufficiently apparent that the officer should have known of it.[355] The Court said that this issue of fact can be demonstrated “in the usual ways, including inference from circumstantial evidence, . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”[356]

The subjective and objective components analyzed in conditions-of-confinement claims under the Eighth Amendment are also part of the Court’s analysis of prisoner excessive force claims under the Eighth Amendment.[357]

The Supreme Court has thus recognized two different subjective components under the Eighth Amendment—deliberate indifference and malice.[358] The Court derived these different states of mind by balancing a prisoner’s interest in bodily integrity against the need for institutional order.[359] Malice is the proper standard in prisoner excessive force cases, because in the prison discipline or riot contexts exigencies exist. However, in general prison condition litigation, where prison officials do not encounter these difficult circumstances, deliberate indifference is the proper standard.[360]

First Amendment Claims[edit | edit source]

Two frequently raised § 1983 claims by government employees involve the First Amendment right to free speech. The first type of claim contests adverse employment decisions allegedly based on an employee’s affiliations with political parties. The second type contests an adverse employment decision allegedly based on an employee’s speech.

Public Employee Political Affiliation Claims[edit | edit source]

A plurality of the Supreme Court first held, in Elrod v. Burns,[361] that dismissals of public employees because of their political affiliations generally violate the First Amendment and must be limited to “policy-making positions.” Four years later, however, the Court, in Branti v. Finkel,[362] modified the Elrod rule, stating that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position,” but whether the hiring authority can demonstrate that party affiliation is “an appropriate requirement for the effective performance of the public office involved.”[363] The Branti Court indicated that the plaintiff makes out a prima facie case by showing that she was discharged because of her political affiliation.[364] In Rutan v. Republican Party of Illinois,[365] the Supreme Court held that the First Amendment prohibits political patronage as the sole basis for decisions concerning “promotions, transfers, and recalls after layoffs.”[366] It explained that the government’s right to take action against deficient performance effectively protects the government’s interests when addressing the employment of staff members. However, when evaluating high-level employees, the government may consider “who will loyally implement its policies.”[367] Although the Court recognized two classes of employees—staff members and high-level employees—it nevertheless explained that performance is the central issue, with political affiliation being a permissible factor with respect only to the higher-level employees. The lower federal courts frequently experience difficulties in determining whether political affiliation is an “appropriate” consideration for particular public employment positions.[368]

A defendant who is sued on a public employment, political affiliation claim can prevail under Mt. Healthy’s[369] dual motive doctrine, by demonstrating that even conceding that he considered the plaintiff’s political affiliation, he would have taken the same adverse action anyway for permissible reasons. As the First Circuit put it, “even if a plaintiff shows an impermissible political motive, he cannot win if the employer shows that it would have taken the same action anyway, say, as part of a bona fide reorganization.”[370]

Courts have properly stressed that public employee claims that employment decisions were made on the basis of political affiliation must be distinguished from claims that employment decisions were motivated by “cronyism” and the like.[371] “‘Back-scratching, log-rolling, horse-trading, institutional politics, envy, nepotism, [and] spite’ are not illegal motivations for employment decisions.”[372] There is thus an important First Amendment

distinction between a public official who chooses to hire friends, relatives, neighbors or college buddies, and one who refuses to hire those who failed to make campaign contributions, join her political party or attend political rallies. Although the first public official may be practicing bad policy, she is not practicing political affiliation discrimination that violates First Amendment rights.[373]

The Court, in O’Hare Truck Service, Inc. v. City of Northlake,[374] held that government contractors have First Amendment protection against adverse action because of their political affiliation. O’Hare rejected drawing a distinction between independent contractors and public employees, because contractors are not less dependent on income than are employees.[375]

Public Employee Free-Speech Retaliation Claims[edit | edit source]

When a public employee claims that her employer made an adverse employment decision because of the employee’s speech, three legal issues are central: (1) whether the speech was pursuant to the employee’s official duties;[376] (2) whether the speech was a “matter of public concern”; and, if the speech was not pursuant to official duties and was a matter of public concern;[377] (3) whether the employee’s speech interest outweigh the government’s interest in effective governmental operations.[378]

A public employee’s speech is protected by the Free Speech Clause only if it is of public concern.[379] In determining what constitutes a matter of public concern, courts should consider “the content, form and context” of the statement.[380] An employee’s mere personal grievance is not a matter of public concern; the speech must have broader social or political interest.[381] The employee must speak on “matters in which the public might be interested as distinct from wholly personal grievances.”[382] Most courts hold that the employee’s motive is relevant, though not necessarily dispositive, in determining whether her speech was of public concern.[383] Whether the speech was a matter of public concern is an issue of law for the court.[384]

Employers need not determine what the employee actually said;[385] they must only reasonably investigate the nature of the employee’s speech.[386] If there was a substantial likelihood that the employee engaged in protected speech, a supervisor must investigate before making an adverse employment decision regarding the employee.[387] Only procedures outside the range of what a reasonable supervisor would use will be found unreasonable. The reasonableness standard is objective; the subjective good faith of the employer is not controlling.[388]

Under the Supreme Court’s decision in Garcetti v. Ceballos,[389] speech on a matter of public concern will nevertheless be unprotected under the First Amendment if it was pursuant to the employee’s official responsibilities.[390] The employee’s official job description may not be dispositive of whether the employee’s speech was pursuant to her official duties. The Court stated that the

proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee is actually expected to perform and the listing of a given task in an employee’s job description is neither necessary nor sufficient to demonstrate that conducting the task is within the employee’s professional duties for First Amendment purposes.[391]

In Lane v. Franks,[392] the § 1983 plaintiff, a public employee, claimed that he was fired in violation of the First Amendment for giving truthful testimony pursuant to subpoena in a criminal case. The Supreme Court held that a public employee’s truthful testimony on a matter of public concern, given pursuant to subpoena and outside of his ordinary job responsibilities, is protected First Amendment speech. The Court reasoned that anyone who testifies in court is obligated to give truthful testimony, and that this obligation is distinct and independent from the employee’s employment obligations. “Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment.”[393] The Court thus clarified that “[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”[394] Justice Thomas’s concurring opinion stressed that the Court in Lane did not address whether public employees, such as police officers, crime scene technicians, and laboratory analysts, who testify as a routine part of their job responsibilities, are engaged in protected First Amendment activity.

The lower federal courts have disagreed over whether the “pursuant to official duties” issue is an issue of law for the court,[395] an issue of fact for the jury,[396] or a mixed question of law and fact.[397] In the author’s view, when the scope of the employee’s duties is clearly defined in a written policy, whether the employee’s speech was pursuant to her official duties will normally be an issue of law for the court. On the other hand, when an issue is raised whether the employee’s duties in practice differ from the written policy, the scope of the employee’s authority will likely present an issue of fact. The Garcetti issue of whether employee speech was pursuant to official duties has generated a tremendous amount of lower court decisional law.[398]

Under the balancing test established in Pickering v. Board of Education,[399] even if an employee’s speech was of public concern and not pursuant to her official duties, the employee’s speech will not be protected if the employee’s speech interests are outweighed by the government’s interest in efficient operations. Government interests are likely to prevail when the employment relationship requires confidentiality or personal loyalty, or when the speech threatens the maintenance of employment discipline or harmony.[400] In evaluating the disruptive impact of the employee’s speech, courts are to show “a wide degree of deference to the employer’s judgment” when “a close working relationship [is] essential to fulfilling public responsibilities.”[401] If, however, an employee does not have a “confidential, policymaking, or public contact role,” the level of disruptiveness would probably be “minimal.”[402] Pickering balancing is an issue of law for the court.[403] Because Pickering balancing entails an intense ad hoc evaluation based on the facts of the particular case, courts often find that the law was not clearly established, and the defendant thus protected by qualified immunity.[404]

Of course, if the plaintiff succeeds on the issues of public concern, official duties, and Pickering balancing, the factual issue whether the employee’s speech was a motivating factor in the adverse employment decision still needs to be resolved.[405]

Prisoner Retaliation Claims[edit | edit source]

Prisoners frequently allege that prison officials retaliated against them for engaging in constitutionally protected activity, such as the filing of a judicial proceeding or prison grievance.[406] To establish a First Amendment retaliation claim, the prisoner must show that (1) he engaged in constitutionally protected speech or conduct, (2) the defendant took adverse action against the plaintiff, and (3) there was a causal connection between the protected activity and the adverse action.[407] The adverse action must be “sufficient to deter a person of ordinary firmness” from exercising his constitutional rights.[408] The causal connection requires the plaintiff to prove that his protected First Amendment activity was a “motivating factor” for the retaliatory adverse action.[409] The inmate need not prove that his speech was a matter of public concern.[410] An inmate alleging a First Amendment retaliation claim need not prove that he had an independent liberty interest in the privilege he was denied.[411]

Federal courts approach prisoner First Amendment retaliation claims “with skepticism and particular care” because “virtually any adverse action taken against a prisoner by a prison official—even those otherwise not rising to the level of a constitutional violation—can be characterized as a constitutionally proscribed retaliatory act.”[412] In other words, prisoner retaliation claims are “prone to abuse since prisoners can claim retaliation for every decision they dislike.”[413] On the other hand, the prisoner is not necessarily required to produce direct evidence to establish retaliatory motive.[414] “[C]ircumstantial evidence may be . . . sufficient to raise a genuine issue of material fact [regarding the prison official’s retaliatory motives] precluding the grant of summary judgment.”[415]

Retaliatory Prosecution and Retaliatory Arrest[edit | edit source]

In Hartman v. Moore,[416] the Supreme Court held that a plaintiff who asserts a First Amendment claim of retaliatory prosecution against a law enforcement officer must plead and demonstrate an absence of probable cause. The Court reasoned that when there is probable cause for the prosecution, the causal relationship between the law enforcement officer’s conduct and the prosecutor’s decision to prosecute is too uncertain to allow the claim for relief against the law enforcement officer to proceed. The claim against the prosecutor based on her decision to prosecute would be barred by absolute prosecutorial immunity.[417]

It is unclear whether Hartman extends to a First Amendment claim of retaliatory arrest. Some circuits applied Hartman to a retaliatory arrest claim and held that the plaintiff must establish an absence of probable cause.[418] The Tenth Circuit, however, distinguished Hartman and held that a First Amendment retaliatory arrest claim may be asserted even when the arrest is supported by probable cause.[419]

In Reichle v. Howards,[420] the Supreme Court held that given the uncertainty in the law of First Amendment retaliatory arrest claims, the defendants/officers were protected by qualified immunity. The Court acknowledged that Hartman’s rationale for retaliatory prosecution claims does not fully apply to retaliatory arrest claims because, while the former necessarily involve the animus of one official, the law enforcement officer, and the injurious action of the other, the prosecutor, “in many retaliatory arrest cases, it is the officer bearing the alleged animus who makes the injurious arrest.”[421] On the other hand, like retaliatory prosecution claims,

retaliatory arrest cases also present a tenuous causal connection between the defendant’s alleged animus and the plaintiff’s injury. An officer might bear animus toward the content of a suspect’s speech. But the officer may decide to arrest the suspect because his speech provides evidence of a crime or suggests a potential threat.[422]

The Supreme Court, however, did not resolve whether Hartman applied to a retaliatory arrest claim, holding that only because the law on the issue was not clearly established were the defending officers protected by qualified immunity.[423]

Equal Protection “Class-of-One” Claims[edit | edit source]

The federal district courts are faced with a steady stream of so-called “class-of-one” equal protection claims filed under § 1983. In Village of Willowbrook v. Olech,[424] the Supreme Court recognized a “class-of-one” claim under the Equal Protection Clause. The plaintiff stated a proper § 1983 claim based on her allegations that the Village “intentionally treated [her] differently from others similarly situated and there was [no] rational basis for the difference in treatment.”[425] The Court ruled that these allegations stated an equal protection claim “quite apart from the Village’s subjective motivation . . . .”[426]

In Engquist v. Oregon Department of Agriculture,[427] the Court held that public employees are categorically barred from asserting class-of-one equal protection claims, no matter how arbitrarily an employee may have been singled out for disadvantageous treatment. Government employers typically have great discretion in dealing with their employees, and this discretion would be undermined if employees were permitted to assert “class-of-one” claims.[428] The Court said that its decision rejecting public employee “class-of-one” equal protection claims comported with the principle “that government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.”[429]

The federal courts have been struggling to determine the contours of the class-of-one doctrine in order to prevent every mistake by a government officer and “every claim for improper provision of municipal services or for improper conduct of an investigation” from being turned into a § 1983 constitutional suit.[430] The law in this area is in a state of flux, and it is important that the district court apply the most recent decisional law of the governing circuit.[431]

References[edit | edit source]

  1. See infra Section 1983 Litigation/Color of State Law and State Action.
  2. McDonald v. City of Chi., 130 S. Ct. 3020 (2010). See also District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment guarantees individual right to possess gun for personal safety, not just for military service). Since McDonald and Heller there has been an increase in § 1983 actions challenging state and local gun control legislation. See, e.g., Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2d Cir. 2012).
  3. 498 U.S. 439 (1991).
  4. Id. at 446–47.
  5. 493 U.S. 103 (1989).
  6. Id. at 107.
  7. See Loyal Tire & Auto Center, Inc. v. Town of Woodbury, 445 F.3d 136, 149 (2d Cir. 2006) (Sotomayor, J.) (“‘A claim under the Supremacy Clause that federal law preempts a state regulation is distinct from a claim for enforcement of that federal law.’”) (quoting W. Airlines, Inc. v. Port Auth. of N.Y. & N.J., 817 F.2d 222, 225 (2d Cir. 1987)). See also infra Section 1983 Litigation/Enforcement of Federal Statutes Under § 1983
  8. 468 U.S. 992 (1984).
  9. The EHA was subsequently renamed the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 (2004).
  10. 555 U.S. 246 (2009).
  11. Id. at 256 (quoting Smith v. Robinson, 468 U.S. 992, 1012 (1984)).
  12. Id. at 252 (quoting Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120 (2005)).
  13. Id. at 252–53.
  14. Id. at 254 (citing Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 6 (1981); Smith, 468 U.S. at 1011–12; Rancho Palos Verdes, 544 U.S. at 122)). Of these three decisions, only Smith raised the issue of whether the particular federal statutory scheme precluded constitutional (as opposed to federal statutory) claims under § 1983.
  15. Fitzgerald, 555 U.S. at 256 (quoting Rancho Palos Verdes, 544 U.S. at 121 and Smith, 468 U.S. at 1012) (citations omitted).
  16. Whereas Title IX only reaches federally funded schools, § 1983 is not so limited. Title IX covers private schools, which are generally not suable under § 1983, which reaches only state action. Title IX does not authorize suit against individual officials, while § 1983 allows claims against individual officials and municipal entities. Title IX has several exemptions not applicable in § 1983 actions. “For example, Title IX exempts elementary and secondary schools from its prohibition against discrimination in admissions; it exempts military service schools and traditionally single-sex public colleges from all of its provisions. Some exempted activities may form the basis of equal protection claims.” Fitzgerald, 555 U.S. at 257 (citations omitted). The standards of

    liability may not be wholly congruent. . . . [A] Title IX plaintiff can establish school district liability by showing that a single school administrator with authority to take corrective action responded to harassment with deliberate indifference. Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 290 (1998). A plaintiff stating a similar claim via § 1983 for violation of the Equal Protection Clause by a school district or other municipal entity must show that the harassment was the result of municipal custom, policy, or practice. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694 (1978).

    Id. at 257–58.

  17. Id. at 258. The Court found that “[t]his conclusion is consistent with Title IX’s context and history.” Id. Title IX authorizes the Attorney General to intervene in private suits alleging gender discrimination under the Equal Protection Clause. This authorization implicitly acknowledges the availability of the § 1983 constitutional remedy. Moreover, Congress modeled Title IX after Title VI, which was routinely interpreted by the courts of appeals “to allow for parallel and concurrent § 1983 claims” (citations omitted). Id. Fitzgerald did not decide whether the plaintiffs alleged an actionable § 1983 equal protection claim against the school superintendent and the school committee. ADEA: Prior to the Supreme Court’s decision in Fitzgerald, most lower federal courts held that the comprehensive remedial scheme of the Age Discrimination in Employment Act substantiates that Congress intended to preclude § 1983 Equal Protection Clause age-discrimination claims. Migneault v. Peck, 204 F.3d 1003 (10th Cir. 2000); Lafleur v. Tex. Dep’t of Health, 126 F.3d 758 (5th Cir. 1997); Zombro v. Balt. Police Dep’t, 868 F.3d 1364 (4th Cir.), cert. denied, 493 U.S. 850 (1989). See also Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051 (9th Cir. 2009) (decided shortly after Fitzgerald but not citing it). However, post-Fitzgerald, the Seventh Circuit reached the opposite result, holding that the ADEA does not preclude assertion of § 1983 age-discrimination-in-employment constitutional claims. Levin v. Madigan, 692 F.3d 607, 611–22 (7th Cir. 2012), cert. dismissed, 134 S. Ct. 2 (2013). Levin acknowledged that the ADEA itself is not enforceable under § 1983. Id. at 620.
  18. 490 U.S. 386 (1989).
  19. Graham held that “all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest . . . should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham, 490 U.S. at 395. See also Tennessee v. Garner, 471 U.S. 1, 7 (1985) (deadly force); Graham, 490 U.S. at 396–97. Fourth Amendment excessive force claims are subject to qualified immunity. Saucier v. Katz, 533 U.S. 194, 203 (2001) (see infra Section 1983 Litigation/Personal Liability: Qualified Immunity).
  20. Graham, 490 U.S. at 393.
  21. Id. at 394. Excessive force claims asserted by convicted prisoners are governed by the Eighth Amendment prohibition against cruel and unusual punishment. To establish an Eighth Amendment violation, the plaintiff must show that the force was applied “maliciously and sadistically to cause harm” rather than “in a good-faith effort to maintain or restore discipline.” Hudson v. McMillian, 503 U.S. 1, 6–7 (1992); Whitley v. Albers, 475 U.S. 312, 320–21 (1986). Excessive force claims asserted by pretrial detainees are governed by the due process prohibition against the infliction of “punishment” on pretrial detainees. See generally Bell v. Wolfish, 441 U.S. 520, 535 (1979), discussed infra Pretrial Detainee Excessive Force Claims Under Fourteenth Amendment.
  22. See infra Arrests and Searches.
  23. See 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 3.12 (4th ed. 2014).
  24. See id.
  25. Thore v. Howe, 466 F.3d 173, 179 (1st Cir. 2006) (complaint must allege conspiracy to violate constitutional right); Cefau v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000); Young v. Cnty. of Fulton, 160 F.3d 899, 904 (2d Cir. 1998).
  26. See, e.g., Baker v. McCollan, 443 U.S. 137, 146 (1979); Estelle v. Gamble, 429 U.S. 97, 106 (1976); Voyticky v. Vill. of Timberlake, 412 F.3d 669, 678 (6th Cir. 2005) (intentional infliction of emotional distress does not itself give rise to § 1983 constitutional claim). Violations of state constitutional rights are not enforceable under § 1983. See, e.g., Armstrong v. Asselin, 734 F.3d 984, 989 (9th Cir. 2013); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 314 (6th Cir. 2005) (“[A] claimed violation of a state constitutional right is not cognizable under § 1983.”); Bookman v. Shubzda, 945 F. Supp. 999, 1009 (N.D. Tex. 1996).
  27. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 129–30 (1992) (safe working conditions); DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 201–02 (1989) (protection of children from parental abuse); Paul v. Davis, 424 U.S. 693, 711–12 (1976) (defamation). The Supreme Court recognized substantive due process protection in high-speed police pursuit cases, but imposed a demanding burden on plaintiffs. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 853–54 (1998) (passengers killed or injured as result of high-speed police pursuit may assert substantive due process claim under “shocks-theconscience standard” and must show pursuing officer acted with intent to cause harm).
  28. Estelle, 429 U.S. at 106.
  29. The Court in Estelle held that to establish a violation of the Eighth Amendment a prisoner must prove that prison officials were deliberately indifferent to the prisoner’s “serious medical needs.” Estelle, 429 U.S. at 106.
  30. 443 U.S. 137 (1979).
  31. Id. at 146.
  32. 424 U.S. 693 (1976).
  33. Id. at 711–12. The plaintiff in Paul asserted a procedural due process claim. See infra notes 295–97 and accompanying text.
  34. Id. at 701.
  35. 503 U.S. 115 (1992).
  36. Id. at 128–30.
  37. Id. at 128 (citing Daniels v. Williams, 474 U.S. 327, 332–33 (1986); Baker v. McCollan, 443 U.S. 137, 146 (1979); Paul v. Davis, 424 U.S. 693, 701 (1976)).
  38. 408 U.S. 564 (1972).
  39. Id. at 577.
  40. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 538 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). See also Zinermon v. Burch, 494 U.S. 113, 129–38 (1990) (demonstrating difficulty of determining whether conduct was “random and unauthorized”; majority held conduct not random and unauthorized, but four justices dissented).
  41. Zinermon, 494 U.S. at 125 (quoting Daniels, 474 U.S. at 331).
  42. Id.
  43. Id.
  44. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted). See also Swarthout v. Cooke, 131 S. Ct. 859, 860–62 (2011).
  45. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). See, e.g., Paul v. Davis, 424 U.S. 693, 712 (1976) (holding that “the interest in reputation asserted in this case is neither ‘liberty’ nor ‘property’ guaranteed against state deprivation without due process of law”).
  46. See, e.g., Washington v. Harper, 494 U.S. 210, 221–22 (1990) (Due Process Clause confers on prisoners liberty interest in being free from involuntary administration of psychotropic drugs); Vitek v. Jones, 445 U.S. 480, 493–94 (1980) (Due Process Clause confers on prisoners liberty interest in not being involuntarily committed to state mental hospital).
  47. Wolff v. McDonnell, 418 U.S. 539, 557 (1974) (state law created liberty interest in “shortened prison sentence” that resulted from good time credits). See also Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011); Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
  48. Cleveland Bd. of Educ., 470 U.S. at 538 (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)).
  49. 408 U.S. 564 (1972).
  50. Id. at 577.
  51. Goldberg v. Kelly, 397 U.S. 254, 264 (1970).
  52. Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
  53. Bell v. Burson, 402 U.S. 535, 539 (1971).
  54. Goss v. Lopez, 419 U.S. 565, 573–74 (1975).
  55. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11 (1978).
  56. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538–39 (1985).
  57. Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).
  58. Id. at 760–62.
  59. Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 196 (2001) (state’s breach of contract did not give rise to procedural due process claim because state law provided “ordinary breach-of-contract suit”); Ramirez v. Arlequin, 447 F.3d 19, 25 (1st Cir. 2006) (without allegation state would refuse to remedy breach, claim that state actor breached contract does not state procedural due process claim); Redondo-Borges v. United States Dep’t of Hous. & Urban Dev., 421 F.3d 1, 10 (1st Cir. 2005) (“the existence of a state contract, simpliciter, does not confer upon the contracting parties a constitutionally protected property interest”); Dover Elevator Co. v. Ark. State Univ., 64 F.3d 442, 446 (8th Cir. 1995) (“It is well established that ‘a simple breach of contract does not give rise to the level of a constitutional deprivation.’” (quoting Med. Laundry Servs. v. Bd. of Trs. of Univ. of Ala., 906 F.2d 571, 573 (11th Cir. 1990)).
  60. 515 U.S. 472 (1995).
  61. Id. at 484. Although under Sandin, mandatory language of a state prison regulation remains a necessary, though not sufficient, prerequisite for finding a liberty interest, post-Sandin the courts have routinely proceeded directly to the question of whether the sanction imposed “atypical and significant hardship” on the inmate. See decisions in 1 Schwartz, supra note 246, § 3.05[c][4][b]. Before Sandin, the Supreme Court held that convicted prisoners only have a liberty interest in parole release if a state statute or regulation creates a reasonable expectation, rather than a mere possibility, of being granted parole. Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 11–12 (1979). See also Swarthout v. Cooke, 131 S. Ct. 859, 861–62 (2011).
  62. See, e.g., Hernandez v. Velasquez, 522 F.3d 556, 562–64 (5th Cir. 2008) (placement of prisoner serving life sentence for murder on lockdown status for thirteen months to prevent gang-related violence not “atypical and significant hardship” but “ordinary incident of prison life.”); Townsend v. Fuchs, 522 F.3d 765, 771 (7th Cir. 2008) (discretionary placement of inmate in nonpunitive temporary lock-up segregation while officials investigated his possible role in prison riot not deprivation of liberty); Hanrahan v. Doling, 331 F.3d 93, 97– 99 (2d Cir. 2003) (120 months solitary confinement is deprivation of liberty); Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999) (deprivation of “yard time” to inmate in solitary confinement is “atypical and significant hardship”); Jones v. Baker, 155 F.3d 810, 814–16 (6th Cir. 1998) (over two-and-one-half years administrative segregation for prisoner implicated in killing of prison guard during prison riot not “atypical and significant hardship”); Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (“Exposure to the conditions of administrative custody for periods as long as 15 months ‘falls within the expected parameters of the sentence imposed [on him] by a court of law.’”); Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997) (“After Sandin, in order to determine whether a prisoner has a liberty interest in avoiding disciplinary confinement, a court must examine the specific circumstances of the punishment.”); Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997) (“Sandin did not create a per se blanket rule that disciplinary confinement may never implicate a liberty interest. Courts of appeals in other circuits have apparently come to the same conclusion, recognizing that district courts must examine the circumstances of a confinement to determine whether that confinement affected a liberty interest.”); Dominique v. Weld, 73 F.3d 1156, 1160 (1st Cir. 1996) (finding no liberty interest in work release status); Bulger v. United States Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995) (holding no liberty interest in job assignment); Orellana v. Kyle, 65 F.3d 29, 31–32 (5th Cir. 1995) (suggesting that only deprivations “that clearly impinge on the duration of confinement, will henceforth qualify for constitutional ‘liberty’ status”), cert. denied, 516 U.S. 1059 (1996); Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995) (observing “Sandin implies that states may grant prisoners liberty interests in being in the general population only if the conditions of confinement in segregation are significantly more restrictive than those in the general population”).
  63. Teller v. Fields, 280 F.3d 69, 80 (2d Cir. 2000). See also Davis v. Barrett, 576 F.3d 129, 134–35 (2d Cir. 2009); Marion v. Columbia Corr. Inst., 559 F.3d 693, 699 (7th Cir. 2009).
  64. Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999).
  65. 418 U.S. 539 (1974).
  66. Id. at 557. See Madison v. Parker, 104 F.3d 765, 769 (5th Cir. 1997). Before being deprived of good-time credits, an inmate must be afforded (1) twenty-four-hour advance written notice of the alleged violations; (2) the opportunity to be heard before an impartial decision maker; (3) the opportunity to call witnesses and present documentary evidence (when such presentation is consistent with institutional safety); and (4) a written decision by the fact finder stating the evidence relied on and the reasons for the disciplinary action. Wolff, 418 U.S. at 563–71.
  67. See, e.g., Whitford v. Boglino, 63 F.3d 527, 532 n.5 (7th Cir. 1995). Note, however, that “the mere opportunity to earn good-time credits” has been held not to “constitute a constitutionally cognizable liberty interest sufficient to trigger the protection of the Due Process Clause.” Luken v. Scott, 71 F.3d 192, 193–94 (5th Cir. 1995) (per curiam). The Supreme Court held that Oklahoma’s Preparole Conditional Supervision Program, “a program employed by the State of Oklahoma to reduce the overcrowding of its prisons[,] was sufficiently like parole that a person in the program was entitled to the procedural protections set forth in Morrissey v. Brewer, 408 U.S. 471 . . . (1972), before he could be removed from it.” Young v. Harper, 520 U.S. 143, 144–45 (1997).
  68. See, e.g., Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997); Cornell v. Woods, 69 F.3d 1383, 1388 n.4 (8th Cir. 1995); Pratt v. Rowland, 65 F.3d 802, 806–07 (9th Cir. 1995).
  69. 545 U.S. 209 (2005).
  70. Id. at 223.
  71. Id.
  72. 424 U.S. 693 (1976).
  73. The Court in Davis, 424 U.S. at 709, cited Board of Regents v. Roth, 408 U.S. 564 (1972), to illustrate this point. See Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004) (internal quotation marks, citations, and footnotes omitted):

    In order to fulfill the requirements of a stigma-plus claim arising from the termination from government employment, a plaintiff must first show that the government made stigmatizing statements about him—statements that call into question plaintiff’s good name, reputation, honor, or integrity. Statements that denigrate the employee’s competence as a professional and impugn the employee’s professional reputation in such a fashion as to effectively put a significant roadblock in that employee’s continued ability to practice his or her profession may also fulfill this requirement. A plaintiff generally is required only to raise the falsity of these stigmatizing statements as an issue, not prove they are false.

    See also Segal v. City of N.Y., 459 F.3d 207, 212–13 (2d Cir. 2006).

  74. See 1 Schwartz, supra note 246, § 3.05[c].
  75. Zinermon v. Burch, 494 U.S. 113, 126 (1990).
  76. Vitek v. Jones, 445 U.S. 480, 491 (1980).
  77. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). See Jones v. Flowers, 547 U.S. 164 (2006); Tulsa Prof’l Collection Servs., Inc. v. Pope, 485 U.S. 478 (1988); Menonite Bd. of Missions v. Adams, 462 U.S. 791 (1983); Greene v. Lindsey, 456 U.S. 444 (1982); Armstrong v. Manzo, 380 U.S. 545 (1965).
  78. 424 U.S. 319 (1976).
  79. Id. at 335. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 228 (2005) (applying Eldridge balancing formula, finding Ohio’s procedures for placement of prisoners in supermax facility satisfied procedural due process because inmate was guaranteed multiple levels of review, notice of factual basis for placement, and fair opportunity for rebuttal; given strong security interest in prison security, fact Ohio did not allow inmate to call witnesses “or provide other attributes of an adversary hearing” did not violate procedural due process because to do so might jeopardize control of prisoner and prison); Washington v. Harper, 494 U.S. 210, 229–33 (1990) (mentally ill state prisoner challenged prison’s administering antipsychotic drugs to him against his will without judicial hearing to determine appropriateness of such treatment, and prison policy required treatment decision to be made by hearing committee consisting of psychiatrist, psychologist, and prison facility’s associate superintendent; Court applied Eldridge balancing test and found established procedure constitutionally sufficient).
  80. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
  81. Gilbert v. Homar, 520 U.S. 924 (1997).
  82. Loudermill, 470 U.S. at 545.
  83. Gilbert, 520 U.S. at 932.
  84. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982).
  85. Zinermon v. Burch, 494 U.S. 113, 136 (1990). A strong state interest in acting quickly may justify dispensing with predeprivation process, in which case a post-deprivation opportunity to be heard will satisfy procedural due process. See Gilbert, 520 U.S. at 930; Barry v. Barchi, 443 U.S. 55, 64–65 (1979).
  86. Hudson v. Palmer, 468 U.S. 517, 531–33 (1984); Parratt v. Taylor, 451 U.S. 527, 543 (1981), overruled in part, Daniels v. Williams, 474 U.S. 327 (1986). In Daniels, the Court overruled Parratt to the extent that Parratt had held that a deprivation within the meaning of the Fourteenth Amendment Due Process Clause could be effected by mere negligent conduct. Daniels, 474 U.S. at 330–31.
  87. Compare, e.g., Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 536–37 (1st Cir. 1995) (concluding that officials’ failure to adhere to sex-education policy was “random and unauthorized” within meaning of Parratt–Hudson doctrine), cert. denied, 516 U.S. 1159 (1996), with Alexander v. Ieyoub, 62 F.3d 709, 712 (5th Cir. 1995) (finding defendants’ conduct—delaying forfeiture proceeding for nearly three years—was authorized under state law where defendants had discretion to institute proceedings whenever they wanted).
  88. Zinermon, 494 U.S. at 128.
  89. Parratt, 451 U.S. at 541.
  90. See Rivera-Powell v. N.Y. City Board of Elections, 470 F.3d 458, 465 (2d Cir. 2006) (“distinction between random and unauthorized conduct and established state procedures . . . is not clear-cut”).
  91. 494 U.S. 113 (1990). Zinermon has been interpreted as creating a category of procedural due process claims that falls outside “two clearly delineated categories; those involving a direct challenge to an established state procedure or those challenging random and unauthorized acts.” Mertik v. Blalock, 983 F.2d 1353, 1365 (6th Cir. 1993).
  92. Zinermon, 494 U.S. at 136.
  93. Id. at 136–38.
  94. San Geronimo Caribe Project, Inc. v. Acevedo-Vila, 687 F.3d 465, 493–94 (1st Cir. 2012) (en banc), cert. denied, 133 S. Ct. 1580 (2013); Johnson v. La. Dep’t of Agric., 18 F.3d 318, 322 (5th Cir. 1994); Easter House v. Felder, 910 F.2d 1387, 1410 (7th Cir. 1990) (en banc).
  95. Velez v. Levy, 401 F.3d 75, 92 (2d Cir. 2005). See also Rivera-Powell, 470 F.3d at 465; DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003).
  96. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).
  97. Albright v. Oliver, 510 U.S. 266, 272 (1994) (plurality opinion). See, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978) (right to marry); Moore v. City of E. Cleveland, 431 U.S. 494 (1977) (right of close relatives to reside together).
  98. Albright, 510 U.S. at 272 (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)). Accord District Attorney’s Office v. Osborne, 557 U.S. 52, 72 (2009).
  99. See Osborne, 557 U.S. at 72; Cnty. of Sacramento, 523 U.S. at 842; Washington v. Glucksberg, 521 U.S. 702, 720 (1997); Albright, 510 U.S. at 271; Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). But see BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) (holding Due Process Clause prohibits state from imposing “grossly excessive” punishment on tortfeasor).
  100. Albright, 510 U.S. at 273 (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). Accord Cnty. of Sacramento, 523 U.S. at 843.
  101. See Cnty. of Sacramento, 523 U.S. at 843 (stating “[s]ubstantive due process analysis is therefore inappropriate . . . only if [the] claim is ‘covered by’ the Fourth Amendment”).
  102. 523 U.S. 833 (1998).
  103. County of Sacramento cited as an example of a substantive due process challenge to a state legislative policy, Washington v. Glucksberg, 521 U.S. 702, 719 (1997) (rejecting substantive due process challenge to state criminalization of physician-assisted suicide). Cnty. of Sacramento, 523 U.S. at 840.
  104. See also Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992).
  105. Cnty. of Sacramento, 523 U.S. at 834 (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
  106. See, e.g., Folkerts v. City of Waverly, 707 F.3d 975, 981 (8th Cir. 2013) (police investigator’s modified interrogation technique for suspect with IQ of fifty didn’t “shock conscience”); Martinez v. Cui, 608 F.3d 54, 63–65 (1st Cir. 2010) (“shocks the conscience” test governs alleged sexual assault by government officer).
  107. Gonzales-Fuentes v. Molina, 607 F.3d 864, 880–85 (1st Cir. 2010), cert. denied, 131 S. Ct. 1568 (2011).
  108. Terrell v. Larson, 396 F.3d 975, 978 (8th Cir. 2005) (en banc).
  109. Rivera v. Illinois, 556 U.S. 148, 160 (2009). Accord Mills v. City of Grand Rapids, 614 F.3d 495, 500 (8th Cir. 2010).
  110. Hussein v. City of Perrysburg, 617 F.3d 828, 832–33 (6th Cir. 2010) (quoting Bell v. Ohio State Univ., 351 F.3d 240, 250 (6th Cir. 2003)).
  111. Jones v. Byrnes, 585 F.3d 971, 978 (6th Cir. 2009); ibid. at 978–79 (concurring opinion). For examples of recent high-speed pursuit decisions rejecting substantive due process claims, see Bingue v. Prunchak, 512 F.3d 1169 (9th Cir. 2008); Sitzes v. City of W. Memphis, 606 F.3d 461 (8th Cir.), cert. denied, 131 S. Ct. 828 (2010); Ellis v. Ogden City, 589 F.3d 1099 (10th Cir. 2009); Green v. Post, 574 F.3d 1294 (10th Cir. 2009); Helseth v. Burch, 258 F.3d 867 (8th Cir. 2001), cert. denied, 534 F.3d 1115 (2002).
  112. See, e.g., McConkie v. Nichols, 446 F.3d 258 (1st Cir. 2006); Moore v. Nelson, 394 F. Supp. 2d 1365 (M.D. Ga. 2005).
  113. 557 U.S. 52 (2009).
  114. Id. at 56.
  115. Id. at 73. The Court in Osborne analogized to Washington v. Glucksberg, 521 U.S. 702 (1997), where the Court, in rejecting a claimed substantive due process right to physician-assisted suicide, relied partly on the fact that the states were “engaged in serious thoughtful examinations” of the issue, id. at 719, and that constitutionalizing the issue would “to a great extent [have placed] the matter outside the arena of public debate and legislative action.” Id. at 720.
  116. 373 U.S. 83 (1963).
  117. Osborne, 557 U.S. at 67–68 (citing Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981)).
  118. The state-created liberty interest was based upon Alaska law, which “provides that those who use ‘newly discovered evidence’ to ‘establis[h] by clear and convincing evidence that [they are] innocent’ may obtain ‘vacation of [their] conviction or sentence in the interest of justice.’ Alaska Stat. §§ 12.72.020(b)(2), 12.72.010(4).” Osborne, 557 U.S. at 68.
  119. Osborne, 557 U.S. at 69.
  120. Id.
  121. Id. at 71 (citations omitted). Although Osborne asserted an “actual innocence” claim, he conceded that such a claim would have to be asserted in a federal habeas corpus proceeding. Id. at 71–72.
  122. See 1 Schwartz, supra note 246, § 10.03.
  123. Osborne, 557 U.S. at 72 (quoting Reno v. Flores, 507 U.S. 292, 303 (1993)). See also Skinner v. Switzer, 131 S. Ct. 1289, 1293 (2011) (interpreting Osborne as rejecting substantive due process right of postconviction access to evidence for DNA testing, and leaving “slim room” for as-applied procedural due process claim).
  124. 457 U.S. 307 (1982).
  125. Id. at 323.
  126. See, e.g., J.W. v. Utah, 647 F.3d 1006, 1011 (10th Cir. 2011); Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 893–94 (10th Cir. 1992) (adopting professional judgment standard, rather than deliberate indifference, in foster care setting).
  127. See, e.g., Doe v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 172–75 (4th Cir. 2010); Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 880–883 (5th Cir. 2004); Nicini v. Morra, 212 F.3d 798, 810–12 (3d Cir. 2000) (en banc); Lintz v. Skipski, 25 F.3d 304, 306 (6th Cir.), cert. denied, 513 U.S. 988 (1994).
  128. 489 U.S. 189 (1989).
  129. Id. at 195.
  130. Id. at 197. Joshua DeShaney, a four-year-old boy, had been repeatedly beaten by his father. The county child protection agency had monitored Joshua’s case through social workers and at one point took custody of him, but failed to protect him from his father’s last beating, which left the child permanently brain damaged. Id. at 192–93.
  131. Id. at 199–200; see, e.g., Farmer v. Brennan, 511 U.S. 825, 833–34 (1994) (state has constitutional duty to protect prisoners from attacks by fellow prisoners) (see infra Ch. 5, § VIII); Youngberg v. Romeo, 457 U.S. 307 (1982) (holding substantive due process component of Fourteenth Amendment Due Process Clause imposes duty on state to provide for safety and medical needs of involuntarily committed mental patients); Estelle v. Gamble, 429 U.S. 97 (1976) (state has constitutional duty to provide adequate medical care to incarcerated prisoners).
  132. See 1 Schwartz, supra note 246, § 3.09.
  133. See, e.g., Walton v. Alexander, 44 F.3d 1297, 1304 (5th Cir. 1995) (en banc) (“[I]f the person claiming the right of state protection is voluntarily within the care or custody of a state agency, he has no substantive due process right to the state’s protection from harm inflicted by third party non-state actors. We thus conclude that DeShaney stands for the proposition that the state creates a ‘special relationship’ with a person only when the person is involuntarily taken into state custody and held against his will through the affirmative power of the state; otherwise, the state has no duty arising under the Constitution to protect its citizens against harm by private actors.”). At least one circuit has suggested that the concept of “in custody” for triggering an affirmative duty to protect under DeShaney entails more than a “simple criminal arrest.” See Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1175 (7th Cir. 1997) (“The Supreme Court’s express rationale in DeShaney for recognizing a constitutional duty does not match the circumstances of a simple criminal arrest. . . . This rationale on its face requires more than a person riding in the back seat of an unlocked police car for a few minutes.”).
  134. DeShaney, 489 U.S. at 201 n.9.
  135. See, e.g., Xiong v. Wagner, 700 F.3d 282, 293 (7th Cir. 2012) (holding child has due process right to be placed by state safe and secure foster home); J.W. v. Utah, 647 F.3d 1006, 1011 (10th Cir. 2011) (holding failure to exercise professional judgment violated process duty); Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 842–46 (9th Cir. 2010) (deliberate indifference is governing due process standard); Doe v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 175 (4th Cir. 2010) (same); Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000) (en banc) (holding “state has certain affirmative duties” in foster care situation). See also Schwartz v. Booker, 702 F.3d 573 (10th Cir. 2012); Camp v. Gregory, 67 F.3d 1286, 1297 (7th Cir. 1995); Lintz v. Skipski, 25 F.3d 304, 305 (6th Cir. 1994); Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d 289, 293 (8th Cir. 1993); Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 893 (10th Cir. 1992). But see D.W. v. Rogers, 113 F.3d 1214, 1218 (11th Cir. 1997) (“the state’s affirmative obligation to render services to an individual depends not on whether the state has legal custody of that person, but on whether the state has physically confined or restrained the person”); White v. Chambliss, 112 F.3d 731, 738 (4th Cir. 1997) (“Given the state of this circuit’s law on the issue and the absence of controlling Supreme Court authority, we cannot say that a right to affirmative state protection for children placed in foster care was clearly established at the time of [child’s] death.”); Wooten v. Campbell, 49 F.3d 696, 699–701 (11th Cir. 1995) (finding no “substantive due process right is implicated where a public agency is awarded legal custody of a child, but does not control that child’s physical custody except to arrange court-ordered visitation with the non-custodial parent”).
  136. See, e.g., Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 1001 (5th Cir. 2014); Morrow v. Balaski, 719 F.3d 160, 165, 179 (3d Cir. 2013) (en banc); Doe v. Covington Sch. Dist., 675 F.3d 849, 856–63 (5th Cir. 2012); Patel v. Kent Sch. Dist., 648 F.3d 965, 973–74 (9th Cir. 2011); McQueen v. Beecher Cmty. Schools, 433 F.3d 460, 464 n.4 (6th Cir. 2006); Hasenfus v. LaJeunesse, 175 F.3d 68, 73–74 (1st Cir. 1999); Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1415 (5th Cir. 1997) (en banc); Doe v. Claiborne Cnty., 103 F.3d 495, 510 (6th Cir. 1996); Nabozny v. Podlesny, 92 F.3d 446, 458–59 (7th Cir. 1996); Walton v. Alexander, 44 F.3d 1297, 1305 (5th Cir. 1995) (en banc); Wright v. Lovin, 32 F.3d 538, 540 (11th Cir. 1994); D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1371–72 (3d Cir. 1992) (en banc); J.O. v. Alton Sch. Dist., 909 F.2d 267, 272–73 (7th Cir. 1990). See also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995).
  137. Schoolchildren, however, have a liberty interest in their bodily integrity that is protected by the Due Process Clause against deprivation by the state. See Ingraham v. Wright, 430 U.S. 651, 673–74 (1977). Therefore, DeShaney does not apply where the alleged harm is attributed to a state actor, generally a teacher or other school official. See, e.g., Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 724 (3d Cir. 1989) (distinguishing this situation from DeShaney because injury here—sexual molestation—resulted from conduct of state employee, not private actor), cert. denied, 493 U.S. 1044 (1990).
  138. See, e.g., Dawson v. Milwaukee Hous. Auth., 930 F.2d 1283, 1285 (7th Cir. 1991) (holding presence in publicly subsidized housing not functional equivalent of being “in custody”).
  139. See, e.g., Wallace v. Adkins, 115 F.3d 427, 430 (7th Cir. 1997) (“[P]rison guards ordered to stay at their posts are not in the kind of custodial setting required to create a special relationship for 14th Amendment substantive due process purposes.”); Liebson v. N.M. Corr. Dep’t, 73 F.3d 274, 276 (10th Cir. 1996) (holding librarian assigned to provide library services to inmates housed in maximum security unit of state penitentiary was not in state’s custody or held against her will; employment relationship was “completely voluntary”); Lewellen v. Metro. Gov’t of Nashville, 34 F.3d 345, 348–52 (6th Cir. 1994) (workman accidentally injured on school construction project has no substantive due process claim).
  140. 503 U.S. 115 (1992).
  141. Id. at 130. See also Kaucher v. Cnty. of Bucks, 455 F.3d 418, 424–30 (3d Cir. 2006); Estate of Phillips v. District of Columbia, 455 F.3d 397, 406–08 (D.C. Cir. 2006); Walker v. Rowe, 791 F.2d 507, 510–11 (7th Cir. 1986).
  142. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 201 (1989). However, “the line between action and inaction, between inflicting and failing to prevent the infliction of harm,” is not always clear. D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1374 (3d Cir. 1992) (quoting Bowers v. Vito, 686 F.2d 616, 618 (1st Cir. 1982)).
  143. DeShaney, 489 U.S. at 200 (“The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him.”). See also Pinder v. Johnson, 54 F.3d 1169, 1175 (4th Cir.) (en banc) (“By requiring a custodial context as the condition for an affirmative duty, DeShaney rejected the idea that such a duty can arise solely from an official’s awareness of a specific risk or from promises of aid.”), cert. denied, 516 U.S. 994 (1995).
  144. See, e.g., Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 427–31 (2d Cir. 2009) (issue of fact whether village police implicitly encouraged domestic violence inflicted by boyfriend upon plaintiff); Phillips v. Cnty. of Allegheny, 515 F.3d 224, 235–40 (3d Cir. 2008) (using four-part “enhance danger” test: § 1983 complaint alleged proper “enhance the danger” claims against some defendants though not against others); Rost v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1126 (10th Cir. 2008) (articulating sixpart state-created danger test, including that defendant engaged in conscience-shocking conduct that put plaintiff at substantial risk of serious, immediate harm); King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 817–19 (7th Cir. 2007) (recognizing state-created-danger doctrine, though rejecting its application in particular circumstances); McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 464, 469 (6th Cir. 2006) (relying on Kallstrom v. City of Columbus, 136 F.3d 1055, 1063 (6th Cir. 1998) (state-created-danger doctrine requires showing of “an affirmative act that creates or increases the risk, a special danger to the victim as distinguished from the public at large, and the requisite degree of state culpability”—namely, “deliberate indifference,” which means “subjective recklessness”); Pena v. DePrisco, 432 F.3d 98, 108 (2d Cir. 2005) (adopting state-created danger doctrine); Hart v. City of Little Rock, 432 F.3d 801, 805 (8th Cir. 2005) (“Under the state-created danger theory, [plaintiffs] must prove 1) they were members of a limited, precisely definable group, 2) [city’s] conduct put them at significant risk of serious, immediate, and proximate harm, 3) the risk was obvious or known to [city], 4) [city] acted recklessly in conscious disregard of the risk, and 5) in total, [city’s] conduct shocks the conscience.” (citations omitted)); Estate of Smith v. Marasco, 430 F.3d 140, 153 (3d Cir. 2005) (“In order to prevail on a state-created danger claim, a plaintiff must prove ‘(1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the [harm] to occur.’” (citation omitted)); Estate of Amos v. City of Page, 257 F.3d 1086, 1091 (9th Cir. 2001) (“cognizable section 1983 claim under the ‘danger creation’ exception [requires] an affirmative act by the police that leaves the plaintiff ‘in a more dangerous position than the one in which they found him’” (emphasis added)). See also Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1177 (7th Cir. 1997); Seamons v. Snow, 84 F.3d 1226, 1236 (10th Cir. 1996); Pinder v. Johnson, 54 F.3d 1169, 1177 (4th Cir. 1995) (en banc); Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993); Dwares v. City of N.Y., 985 F.2d 94, 99 (2d Cir. 1993); Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990); Wood v. Ostrander, 879 F.2d 583, 589–90 (9th Cir. 1989). But see Bustos v. Martini Club, Inc., 599 F.3d 458, 465 (5th Cir. 2010) (stating Fifth Circuit hasn’t adopted state-created-danger theory). Courts of appeals that have adopted the state-created-danger doctrine have not agreed about the test that should govern the claim; for a breakdown by circuit of state-created danger decisions, see 1 Schwartz, supra note 246, § 3.09[E].
  145. Collins v. City of Harker Heights, 503 U.S. 115, 130 (1992).
  146. See, e.g., Kallstrom v. City of Columbus, 136 F.3d 1055, 1066–67 (6th Cir. 1998) (city officials’ release of personal information about plaintiffs—undercover officers— increased risk of danger to them); L.W. v. Grubbs, 974 F.2d 119, 120–21 (9th Cir. 1992) (concluding plaintiff, a registered nurse, stated constitutional claim against defendant-correctional officers, who knew inmate was violent sex offender, likely to assault plaintiff if alone with her, and yet intentionally assigned inmate to work alone with plaintiff in clinic); Cornelius v. Town of Highland Lake, 880 F.2d 348, 359 (11th Cir. 1989) (holding that where defendants had put plaintiff, a town clerk, in a “unique position of danger” by causing inmates who were inadequately supervised to be present in town hall, then “under the special danger approach as well as the special relationship approach . . . the defendants owed [the plaintiff] a duty to protect her from the harm they created”). But see Mitchell v. Duval Cnty. Sch. Bd., 107 F.3d 837, 839–40 (11th Cir. 1997) (per curiam) (noting “Cornelius may not have survived Collins v. City of Harker Heights, where the Supreme Court held that a voluntary employment relationship does not impose a constitutional duty on government employers to provide a reasonably safe work environment,” but holding that even if Cornelius has not been undermined, plaintiff did not make out state-created danger claim where “the school neither placed [plaintiff] in a dangerous location nor placed the assailants in the place where [plaintiff] was”).
  147. U.S. Const. amend. IV (stating “the right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated”).
  148. See Graham v. Connor, 490 U.S. 386, 388–95 (1989).
  149. Id. at 395 (citing Bell v. Wolfish, 441 U.S. 520, 535–39 (1979)).
  150. U.S. Const. amend. VIII (stating “cruel and unusual punishments [shall not be] inflicted”).
  151. See Hudson v. McMillian, 503 U.S. 1, 6–7 (1992); Whitley v. Albers, 475 U.S. 312, 318–19 (1986).
  152. U.S. Const. amend. XIV § 1 (stating that “[n]o State shall . . . deprive any person of life, liberty . . . without due process of law”).
  153. Graham v. Connor, 490 U.S. 386, 395 (1989). See also Cnty. of Sacramento v. Lewis, 523 U.S. 833, 842–43 (1998); United States v. Lanier, 520 U.S. 259, 272 n.7 (1997); Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion).
  154. Graham, 490 U.S. at 395 n.10.
  155. “[W]hile force found to shock the conscience under the Fourth Amendment will necessarily violate the Fourth Amendment’s reasonableness test, force that does not shock the conscience may nevertheless be unreasonable under the Fourth Amendment.” Aldini v. Johnson, 609 F.3d 858, 867 (6th Cir. 2010).
  156. Cnty. of Sacramento, 523 U.S. at 842–45. Cf. Scott v. Harris, 550 U.S. 372, 381 (2007) (termination of high-speed pursuit by ramming pursued vehicle from behind constituted Fourth Amendment “seizure”).
  157. Graham, 490 U.S. at 395 n.10.
  158. Id.
  159. See, e.g., Fontana v. Haskin, 262 F.3d 871, 878–81 (9th Cir. 2011) (applying Fourth Amendment under “continuing seizure” theory); Aldini, 609 F.3d at 864–67 (Fourth Amendment’s objective reasonableness standard governs, rather than substantive due process shocks-the-conscience test); Lopez v. City of Chi., 464 F.3d 711, 718–20 (7th Cir. 2006) (holding Fourth Amendment applicable); Wilson v. Spain, 209 F.3d 713, 715 & n.2 (8th Cir. 2000) (describing conflict in circuits, and holding Fourth Amendment applicable). Compare Riley v. Dorton, 115 F.3d 1159, 1163–64 (4th Cir. 1997) (detailing circuit conflict, and holding Fourth Amendment not applicable to “alleged mistreatment of arrestees or pretrial detainees in custody”). See generally Albright v. Oliver, 510 U.S. 266, 279 (1994) (Ginsburg, J., concurring) (stating person had been “seized” within meaning of Fourth Amendment by his arrest and conditional release after posting bail). See also 1 Schwartz, supra note 246, § 3.12[D][4][b]. As the cases cited in this note show, the trend of appellate court cases is to apply the Fourth Amendment to force used during the period after arrest and before detention.
  160. See Graham, 490 U.S. at 395–96; see also Brower v. Cnty. of Inyo, 489 U.S. 593, 595–600 (1989) (determining use of blind roadblock was Fourth Amendment seizure, and remanding to determine, inter alia, if seizure was reasonable).
  161. See Graham, 490 U.S. at 395–96; Brower, 489 U.S. at 595–600.
  162. See generally Cnty. of Sacramento v. Lewis, 523 U.S. 833, 842–43 (1998) (stating if police officer’s use of force during high-speed pursuit did not result in seizure, substantive due process analysis is appropriate).
  163. Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968).
  164. California v. Hodari D., 499 U.S. 621, 628 (1991); see also INS v. Delgado, 466 U.S. 210, 215 (1984); United States v. Mendenhall, 446 U.S. 544, 554–55 (1980) (Stewart & Rehnquist, JJ.).
  165. Brower, 489 U.S. at 597–99 (use of roadblock to stop fleeing motorist constituted seizure; whether act was intentional is objective inquiry—question is whether reasonable officer would have believed that means used would have caused suspect to stop). Accord Brendelin v. California, 551 U.S. 249, 254 (2007); Scott v. Harris, 550 U.S. 372, 381 (2007). The Court in Brendelin, stated that the relevant issue is “the intent of the police objectively manifested.” Brendelin, 551 U.S. at 261.
  166. Cnty. of Sacramento, 523 U.S. at 843–44 (stating no seizure occurred when officer accidentally hit passenger of pursued motorcyclist). Most excessive force claims under the Fourth Amendment involve the infliction of physical injury. However, claims involving psychological injury are also actionable. See, e.g., McDonald v. Haskins, 966 F.2d 292, 294–95 (7th Cir. 1992) (holding nine-year-old child stated valid unreasonable force claim under Fourth Amendment by alleging that officer held a gun to child’s head while executing search warrant, even though child posed no threat to officer and did not attempt to flee); see generally Hudson v. McMillian, 503 U.S. 1, 16 (1992) (Blackmun, J., concurring) (psychological harm can constitute “cruel and unusual punishment”) (citing Wisniewski v. Kennard, 901 F.2d 1276, 1277 (5th Cir. 1990)) (“guard placing a revolver in inmate’s mouth and threatening to blow prisoner’s head off”).
  167. Brooks v. Gaenzle, 614 F.3d 1213, 1219–24 (10th Cir. 2010), cert. denied, 131 S. Ct. 1045 (2011).
  168. 471 U.S. 1 (1985).
  169. Id. at 3–4, 9–11. The courts commonly define deadly force pursuant to the Model Penal Code definition of force: carrying a substantial risk of causing death or serious harm. See, e.g., Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1313–14 and 1313 n.1 (10th Cir. 2009).
  170. Garner, 471 U.S. at 11. Cf. Scott v. Harris, 550 U.S. 372 (2007), discussed infra, Scott v. Harris.
  171. Garner, 471 U.S. at 11.
  172. Id. at 21–22.
  173. 39 F.3d 912 (9th Cir. 1994).
  174. Id. at 915. See also Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en banc) (principle that summary judgment should be granted sparingly in deadly force cases applies with particular force where officer killed suspect and officers involved in shooting are only remaining witnesses); Cyrus v. Town of Mukwonago, 624 F.3d 856, 862 (7th Cir. 2010) (principle that “summary judgment is often inappropriate in excessive-force cases because the evidence surrounding the officer’s use of force is often susceptible of different interpretations” is “particularly relevant where, as here, the one against whom force was used had died, because the witness most likely to contradict the officer’s testimony-the victim-cannot testify”) (citations omitted); Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (noting that because deceased suspect not available to contradict police officer’s version of events, courts must critically assess all other evidence in case, and “may not simply accept what may be a self-serving account by the police officer”); O’Bert v. Vargo, 331 F.3d 29, 37– 38 (2d Cir. 2003) (holding summary judgment should not be granted to defendant officer in deadly force case based solely on what may be officer’s self-serving account of incident; court must “consider ‘circumstantial evidence that, if believed, would tend to discredit the police officer’s story, and consider whether this evidence would convince rational factfinder that officer acted unreasonably’” (quoting Scott, 39 F.3d at 915)); Abraham v. Raso, 183 F.3d 279, 294 (3d Cir. 1999) (because victim of deadly force unable to testify, courts must be cautious on summary judgment to ensure officer not taking advantage of fact victim can’t contradict his story).
  175. 490 U.S. 386 (1989).
  176. Id. at 395. The Court in Graham acknowledged that the Fourth Amendment “has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Id. at 396.
  177. Id. at 396. See also George v. Morris, 736 F.3d 829, 839 (9th Cir. 2013) (fact officers responded to domestic disturbance call is pertinent consideration) (citing Mattos v. Agarano, 661 F.3d 433, 450 (9th Cir. 2011) (en banc)).
  178. Graham, 490 U.S. at 396–97. Accord Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014). In Plumhoff, the Court ruled that “if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” Id. at 2022. Fourth Amendment excessive force claims are subject to qualified immunity. See Saucier v. Katz, 533 U.S. 194 (2001). Accord Plumhoff, 134 S. Ct. 2012.
  179. Graham, 490 U.S. at 397.
  180. Id.
  181. Id. at 399 n.12 (officer’s ill will relevant on credibility); Ricketts v. City of Hartford, 74 F.3d 1397, 1412 (2d Cir.) (officer’s “evil motive or intent” relevant on punitive damages), cert. denied, 519 U.S. 815 (1996).
  182. Bishop v. Hackel, 636 F.3d 757, 767 (6th Cir. 2011); Dorsey v. Barber, 517 F.3d 389, 399 n.4 (6th Cir. 2008).
  183. Brockington v. Boykins, 637 F.3d 503, 507 (4th Cir. 2011).
  184. See, e.g., English v. District of Columbia, 651 F.3d 1, 9–10 (D.C. Cir. 2011) (citing Whren v. United States, 517 U.S. 806, 815 (1996)); McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009); Pasco v. Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009); Thompson v. City of Chi., 472 F.3d 444, 455 (7th Cir. 2006). Contra Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003), cert. denied, 542 U.S. 918 (2004). But see Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979) (due process rights of pretrial detainees: Court stated that correctional standards issued by organizations such as American Correctional Association and National Commission on Correctional Health Care may be instructive, but “do not establish the constitutional minima; rather they establish goals recommended by the organization in question”); Sheehan v. San Francisco, 743 F.3d 1211, 1225 (9th Cir. 2014) (in determining reasonableness of use of force, trier of fact may consider expert testimony of general police practices for dealing with mentally ill or emotionally disturbed persons).
  185. 550 U.S. 372 (2007).
  186. Id. at 386.
  187. Id. at 379–80 (footnotes omitted).
  188. Id. at 375 (footnote omitted).
  189. Id. at 381. When termination of a high-speed pursuit does not culminate in a seizure, the officer’s actions are evaluated under a substantive due process, “shocks the conscience” purpose-to-cause-harm standard. Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998).
  190. A videotape may be considered by the district court only if it has been properly authenticated, which is a condition precedent to admissibility. Fed. R. Evid. 901(a). See, e.g., Snover v. City of Starke, 398 F. App’x 445, 449 (11th Cir. 2010) (§ 1983 excessive force claim: “Because the defendants merely filed the DVD with the court and did not authenticate it, the district court did not abuse its discretion in declining to consider the DVD.”) (citing Asociacion de Periodistas de P.R. v. Mueller, 529 F.3d 52, 56–57 (1st Cir. 2008)).
  191. Scott v. Harris, 550 U.S. 372, 380 (2007).
  192. Id. at 381 n.8.
  193. Id. at 383.
  194. 471 U.S. 1 (1985).
  195. Scott, 550 U.S. at 382–83 (citations omitted) (following Brower v. Cnty. of Inyo, 489 U.S. 593, 596–97 (1989)).
  196. Scott, 550 U.S. at 382 n.9 (Garner “hypothesized that deadly force may be used ‘if necessary to prevent escape’ when the suspect is known to have ‘committed a crime involving the infliction or threatened infliction of serious physical harm,’ so that his mere being at large poses an inherent danger to society.”).
  197. Id. at 382.
  198. Id. at 384.
  199. Id. at 385.
  200. Id. at 385–86. Accord Plumhoff v. Rickard, 134 S. Ct. 2012, 2021 (2014).
  201. Scott, 550 U.S. at 386 (Ginsburg, J., concurring).
  202. Id. at 389 (Breyer, J., concurring) (quoting majority opinion).
  203. Id. (Breyer, J., concurring).
  204. Id. at 395 (Stevens, J., dissenting).
  205. Id. at 395–96 (Stevens, J., dissenting).
  206. See, e.g., Harris v. Serpas, 745 F.3d 767, 770–73 (5th Cir. 2014) (in upholding grant of summary judgment to defendant officers, court relied on “taser video” of incident); Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (relying on facts depicted in videotape, granting summary judgment to defending officers); Thomas v. Durastanti, 607 F.3d 655, 659 (10th Cir. 2010) (same); Wallingford v. Olson, 592 F.3d 888, 892–93 (8th Cir. 2010) (same); Collier v. Montgomery, 569 F.3d 214, 219 (5th Cir. 2009) (same); Dunn v. Matatall, 549 F.3d 348, 354–55 (6th Cir. 2008) (same); Marvin v. City of Taylor, 509 F.3d 234, 238–49 (6th Cir. 2007) (same); Beshers v. Harrison, 495 F.3d 1260, 1263–68 (11th Cir. 2007) (same). But see Witt v. W. Va. State Police, 633 F.3d 272, 276–77 (4th Cir. 2011) (police cruiser videotape that had no sound and was of poor quality did not blatantly contradict plaintiff’s version of facts; officers not entitled to summary judgment; Scott did “not hold that courts should reject a plaintiff’s account on summary judgment whenever documentary evidence, such as a video, offers some support for a governmental officer’s version of events. Rather, Scott merely holds that when documentary evidence ‘blatantly contradict[s]’ a plaintiff’s account, ‘so that no reasonable jury could believe it,’ a court should not credit the plaintiff’s version on summary judgment.”) (citation omitted). For an empirical evaluation of the decision in Scott v. Harris, see Dan M. Kahan, David A. Hoffman & Donald Blasman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 Harv. L. Rev. 837 (2009). See 1 Schwartz, supra note 246, § 3.12[C][D].
  207. See, e.g., Kopec v. Tate, 361 F.3d 772, 777 (3d Cir.) (recognizing excessively tight handcuffing constitutes excessive force), cert. denied, 543 U.S. 956 (2004); Martin v. Heideman, 106 F.3d 1308, 1313 (6th Cir. 1997) (“excessively forceful handcuffing” viewed as excessive force claim).
  208. See, e.g., Moss v. United States Secret Service, 675 F.3d 1213 (9th Cir. 2012) (use of pepper spray against peaceful, obedient protester violated Fourth Amendment) (relying on Headwaters Forest Def. v. Cnty. of Humboldt, 276 F.3d 1125 (9th Cir. 2002)); Tracy v. Freshwater, 623 F.3d 90, 98–99 (2d Cir. 2010) (based on plaintiff’s version of facts, reasonable jury could find use of pepper spray violated Fourth Amendment). See also Kenney v. Floyd, 700 F.3d 604, 610 (1st Cir. 2012); Maxwell v. Cnty. of San Diego, 697 F.3d 941, 953 (9th Cir. 2012).
  209. See, e.g., Campbell v. City of Springboro, 700 F.3d 779, 787–89 (6th Cir. 2012) (based on plaintiffs’ version of facts, reasonable jury could find police officer’s deployment of police dog’s “bite and hold” on two suspects was unreasonable and in violation of clearly established Fourth Amendment law; dog’s training was “questionable,” and suspects lying on ground were not threat to anyone when canine unit called in); Edwards v. Shanley, 666 F.3d 1289, 1296–97 (11th Cir. 2012) (officer’s use of police dog to track and initially subdue fleeing suspect reasonable; but officer’s use of police dog to attack suspect for 5–7 minutes while suspect pleading to surrender, and officer in position to arrest suspect, was unreasonable).
  210. See, e.g., Estate of Levy v. City of Spokane, 534 F. App’x 595 (9th Cir. 2013); Meyers v. Balt. Cnty., 713 F.3d 723 (4th Cir. 2013); Abbott v. Sangamon Cnty., 705 F.3d 706 (7th Cir. 2013); Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012); Hagans v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505 (6th Cir. 2012); Marquez v. City of Phoenix, 693 F.3d 1167 (9th Cir. 2012); Austin v. Redford Twp. Police Dep’t, 690 F.3d 490 (6th Cir. 2012); Carpenter v. Gage, 686 F.3d 644 (8th Cir. 2012); Hoyt v. Cooks, 672 F.3d 972 (11th Cir. 2012); Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en banc), cert. denied, 132 S. Ct. 2682, 2684 (2012); Fils v. City of Aventura, 647 F.3d 1272 (11th Cir. 2011); McKenney v. Harrison, 635 F.3d 354 (8th Cir. 2011); Cavanaugh v. Woods Cross City, 625 F.3d 661 (10th Cir. 2010); Cyrus & Town of Mukwonago, 624 F.3d 856 (7th Cir. 2010); Bryan v. McPherson, 630 F.3d 805 (9th Cir. 2010); Mann v. Taser Int’l, 588 F.3d 1291 (11th Cir. 2009); Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009); Cook v. City of BellaVilla, 582 F.3d 840 (8th Cir. 2009); Lewis v. Downey, 581 F.3d 467 (7th Cir. 2009), cert. denied, 130 S. Ct. 1936 (2010); Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir. 2009); Parker v. Gerrish, 547 F.3d 1 (1st Cir. 2008); Zivojinovich v. Barner, 525 F.3d 1059 (11th Cir. 2008).
  211. Matta-Ballestros v. Hennan, 896 F.3d 255, 256 n.2 (7th Cir. 1990).
  212. See Billington v. Smith, 292 F.3d 1177, 1187–88 (9th Cir. 2002) (explaining different circuits’ approaches). See also 1 Schwartz, supra note 246, § 3.12[D].
  213. Harris v. Serpas, 745 F.3d 767, 772–73 (5th Cir. 2014); Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991).
  214. Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996).
  215. Id.
  216. St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir. 1995), cert. denied, 518 U.S. 1017 (1996); accord Young v. City of Providence, 404 F.3d 4, 22 (1st Cir. 2005).
  217. Abraham v. Raso, 183 F.3d 279, 291 (3d Cir. 1999).
  218. Allen v. Muskogee, 119 F.3d 837, 840–41 (10th Cir. 1997).
  219. Bletz v. Gribble, 641 F.3d 743, 751 (6th Cir. 2011) (“Whether events leading up to a shooting are legitimate factors to consider in assessing an excessive force claim depends on the totality of the circumstances in question.”) (citing Livermore v. Lobelan, 476 F.3d 397 (6th Cir. 2007); Dickerson v. McCellan, 101 F.3d 1151 (6th Cir. 1996); Yates v. City of Cleveland, 941 F.3d 444 (6th Cir. 1991)).
  220. 652 F.3d 524 (4th Cir.) (en banc), cert. denied, 132 S. Ct. 781 (2011).
  221. Id. at 532–33.
  222. Id. at 535 (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009) (qualified immunity applies to mistake of law or fact, and to mixed questions of law and fact).
  223. 648 F.3d 1119 (9th Cir. 2011), cert. denied, 132 S. Ct. 1032 (2012).
  224. Id. at 1120.
  225. Id. at 1124.
  226. Id. at 1127.
  227. Gutierrez v. San Antonio, 139 F.3d 441, 446 (5th Cir. 1998). Accord Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1313–14 & 1313 n.1 (10th Cir. 2009); Smith v. City of Hemet, 394 F.3d 689 (9th Cir.) (en banc), cert. denied, 545 U.S. 1128 (2005); Estate of Phillips v. City of Milwaukee, 123 F.3d 586 (7th Cir. 1997), cert. denied, 522 U.S. 1116 (1998).
  228. See, e.g., Rahn v. Hawkins, 464 F.3d 813, 817–18 (8th Cir. 2006); Monroe v. City of Phoenix, 248 F.3d 851, 859–60 (9th Cir. 2001).
  229. Rahn, 464 F.3d at 817–18; Monroe, 248 F.3d at 859–60.
  230. For decisions holding a deadly force instruction not required, see Acosta v. Hill, 504 F.3d 1323 (9th Cir. 2007) (overruling Monroe v. City of Phoenix, 248 F.3d 851 (9th Cir. 2001)); Blake v. City of N.Y., No. 05-Civ. 6652 (BSJ), 2007 U.S. Dist. LEXIS 49160 (S.D.N.Y. July 3, 2007). The Second Circuit, however, held that when force is “highly likely to have deadly effects,” the district court must give a special Garner instruction. Rasanen v. Doe, 723 F.3d 325, 333 (2d Cir. 2013). See also Terranova v. New York, 676 F.3d 305, 309 (2d Cir.), cert. denied, Terranova v. Torres, 184 L. Ed. 2d 156 (2012) (“absent evidence of the use of force highly likely to have deadly effects, as in Garner, a jury instruction regarding justifications for the use of deadly force is inappropriate, and the usual instructions regarding the use of excessive force are adequate”).
  231. Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005); accord Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005). See also Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1252–57 (10th Cir. 2013) (when qualified immunity is not at issue and there are disputed issues of material fact, reasonableness of officer’s use of force is for jury).
  232. See Scott v. Harris, 550 U.S. 372 (2007); Untalan v. City of Lorain, 430 F.3d 312, 314–17 (6th Cir. 2005) (upholding district court’s decision to grant defendant police officer’s summary judgment motion based on qualified immunity because, based on evidence, no reasonable juror could find that officer violated decedent’s Fourth Amendment rights).
  233. Saucier v. Katz, 533 U.S. 194, 200–01 (2001) (stressing “the importance of resolving immunity questions at the earliest possible stage in litigation”). See infra Section 1983 Litigation/Personal Liability: Qualified Immunity.
  234. Scott, 550 U.S. at 378–81.
  235. Sanchez v. City of Chi., 700 F.3d 919, 926 (7th Cir. 2012) (citations omitted). See also Stevenson v. City of Seat Pleasant, 743 F.3d 411, 416–19 (4th Cir. 2014).
  236. 463 U.S. 239 (1983).
  237. Id. at 244.
  238. Id. Regardless of the constitutional standard, the city of Revere “fulfilled its constitutional obligation by seeing that [the arrestee] was taken promptly to a hospital that” treated his injuries. Id. at 245.
  239. Estelle v. Gamble, 429 U.S. 97, 102–05 (1976).
  240. See, e.g., Estate of Moreland v. Dieter, 395 F.3d 747, 758 (7th Cir. 2005); Watkins v. City of Battle Creek, 273 F.3d 682, 685–86 (6th Cir. 2001); Napier v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001); Wagner v. Bay City, 227 F.3d 316, 324 (5th Cir. 2000); Horn v. Madison Cnty. Fiscal Ct., 22 F.3d 653, 660 (6th Cir. 1994).
  241. Hudson v. McMillian, 503 U.S. 1, 7 (1992). Accord Whitley v. Albers, 475 U.S. 312, 320–21 (1986).
  242. Whitley, 475 U.S. at 321–22.
  243. Hudson, 503 U.S. at 6–10.
  244. 475 U.S. 312 (1986).
  245. Id. at 321.
  246. See id. at 320; accord Hudson, 503 U.S. at 6.
  247. 503 U.S. 1 (1992).
  248. Id. at 9.
  249. Id. at 9–10 (citation omitted).
  250. 130 S. Ct. 1175 (2010) (per curiam).
  251. Id. at 1178.
  252. Id. at 1180. “An inmate who complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to state a valid excessive force claim.” Id. at 1178.
  253. Id. at 1178–79.
  254. Whitley v. Albers, 475 U.S. 312, 322 (1986).
  255. 490 U.S. 386 (1989).
  256. 441 U.S. 520 (1979).
  257. Graham, 490 U.S. at 395 n.10 (dictum).
  258. 523 U.S. 833 (1998).
  259. Id. at 846–47 (citing Rochin v. California, 342 U.S. 165, 172–73 (1952)).
  260. Id. at 836.
  261. Id. at 852–53.
  262. See 1 Schwartz, supra note 246, § 3.16[A].
  263. O’Connor v. Huard, 117 F.3d 12 (1st Cir. 1997), cert. denied, 522 U.S. 1047 (1998).
  264. Fennell v. Gilstrap, 559 F.3d 1212 (11th Cir. 2009); Carr v. Deeds, 453 F.3d 593, 605 (4th Cir. 2006); Fuentes v. Wagner, 206 F.3d 335, 347–48 (3d Cir. 2000); Valencia v. Wiggins, 981 F.2d 1440, 1445–46 (5th Cir. 1993). See also United States v. Walsh, 194 F.3d 37, 48 (2d Cir. 1999).
  265. Tesch v. City of Green Lake, 157 F.3d 465 (7th Cir. 1998). See also Kingsley v. Hendrickson, 744 F.3d 443 (7th Cir. 2014).
  266. See compilation of courts of appeals decisions, 1 Schwartz, supra note 246, § 3.16[A][1].
  267. Bell, 441 U.S. at 535–39.
  268. O’Connor, 117 F.3d 12.
  269. Seizure of Property: Although much less common than § 1983 challenges to arrests and searches, a § 1983 Fourth Amendment claim can be based upon a law enforcement officer’s seizure of property. Soldal v. Cook Cnty., 506 U.S. 56, 61, 71 (1992) (holding deputy sheriffs’ removal of trailer from mobile home park was a seizure, which “occurs when ‘there is some meaningful interference with an individual’s possessory interests in that property’”; seizure must be reasonable, requiring “balancing of governmental and private interests”).
  270. 116 U.S. 616 (1886).
  271. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118–19 (2d Cir. 1995).
  272. Michigan v. DeFillippo, 443 U.S. 31, 37 (1979); accord Maryland v. Pringle, 540 U.S. 366, 370–71 (2003).
  273. Woods v. City of Chi., 234 F.3d 979, 997 (7th Cir.), cert. denied, 534 U.S. 955 (2001).
  274. Whren v. United States, 517 U.S. 806, 813 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”). Mass Arrests: When the police arrest a large number of individuals who participated in a mass protest, the police must have “a reasonable belief that the entire crowd is acting as a unit and therefore all members of the crowd violated the law.” Carr v. District of Columbia, 587 F.3d 401, 408 (D.C. Cir. 2009). See also Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir.), cert. denied, 133 S. Ct. 526 (2012).
  275. Devenpeck v. Alford, 543 U.S. 146, 153–54 (2004).
  276. Virginia v. Moore, 553 U.S. 164 (2008). Furthermore, the Court in Moore held that a search incident to such an arrest complies with the Fourth Amendment. Continued Detention of Arrestee: If the state seeks to hold a suspect who was subject to a warrantless arrest, the Fourth Amendment requires a probable cause determination from a magistrate judge within a reasonable time. Gerstein v. Pugh, 420 U.S. 103 (1975). Forty-eight hours is a presumptively reasonable time. County of Riverside v. McLaughlin, 500 U.S. 44 (1991).
  277. Payton v. New York, 445 U.S. 573, 587–88 (1980). See also Steagald v. United States, 451 U.S. 204, 205–06 (1981) (as general rule police cannot lawfully search for subject of arrest warrant in third-party’s home without search warrant). An in-home arrest without a warrant is constitutional only if the officer either gets consent to enter the home or reasonably finds exigent circumstances. Payton, 445 U.S. at 587–88. See also Ryburn v. Huff, 132 S. Ct. 987, 991–92 (2012) (per curiam) (officers who made warrantless entry in home protected by qualified immunity because they had objectively reasonable belief violence was imminent); Michigan v. Fisher, 130 S. Ct. 546, 548–49 (2009) (“exigent circumstances” evaluated on objective basis without regard to officers’ subjective intent; emergency aid exception allows officers to enter home without warrant to render emergency assistance to injured occupant or to protect occupant from imminent injury); Brigham City v. Stuart, 547 U.S. 398, 403–06 (2006) (law enforcement officer may enter home without warrant if officer reasonably believes entry needed to render emergency assistance “to injured occupant or to protect an occupant from imminent injury”).
  278. See Davis v. Rodriguez, 364 F.3d 424, 434 n.8 (2d Cir. 2004) (describing circuit conflict).
  279. See, e.g., Dubner v. San Francisco, 266 F.3d 959, 965 (9th Cir. 2001); Rankin v. Evans, 133 F.3d 1425, 1436 (11th Cir. 1998); Larez v. Holcomb, 16 F.3d 1513, 1517 (9th Cir. 1994).
  280. Larez, 16 F.3d at 1517.
  281. Dubner, 266 F.3d at 965.
  282. Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985).
  283. See, e.g., Raysor v. Port Auth., 768 F.2d 34, 40 (2d Cir. 1985) (“defendant has the burden of proving that the arrest was authorized”).
  284. See, e.g., Sutton v. Metro. Gov’t of Nashville & Davidson Cnty., 700 F.3d 865, 872– 76 (6th Cir. 2012).
  285. 392 U.S. 1 (1968).
  286. Id. at 21.
  287. United States v. Cortez, 449 U.S. 411, 417–18 (1981).
  288. Terry, 392 U.S. at 30.
  289. Whren v. United States, 517 U.S. 806, 810–16 (1996). Section 1983 challenges to stops and frisks are subject to the defense of qualified immunity. See, e.g., Jewett v. Anders, 521 F.3d 818, 823 (7th Cir. 2008).
  290. United States v. Arvizu, 534 U.S. 266 (2002); Florida v. J.L., 529 U.S. 266 (2000); Illinois v. Wardlow, 528 U.S. 119 (2000); Alabama v. White, 496 U.S. 325 (1990); United States v. Sokolow, 490 U.S. 1 (1989).
  291. For a recent example of a case involving strip searches of detainees, see Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012) (holding in routine “strip searches” of detainees charged with minor offenses and placed in general jail populations, Fourth Amendment does not require individualized reasonable suspicion).
  292. For in-depth coverage, see Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment (5th ed. West 2012).
  293. General Definition of “Search”: Florida v. Jardines, 133 S. Ct. 1409 (2013); Jones v. United States, 132 S. Ct. 945 (2012); Katz v. United States, 389 U.S. 347 (1967). Aerial Surveillance: Florida v. Riley, 488 U.S. 445 (1989); Dow Chem. Co. v. United States, 476 U.S. 227 (1986); California v. Ciraolo, 476 U.S. 207 (1986). Automobile Exception: California v. Carney, 471 U.S. 386 (1980); Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925). Bank Records: United States v. Miller, 425 U.S. 435 (1976). Beeper Tracking: Karo v. United States, 468 U.S. 705 (1984); Knotts v. United States, 460 U.S. 276 (1983). Automobile Checkpoints: Illinois v. Lidster, 540 U.S. 419 (2001); City of Indianapolis v. Edmond, 531 U.S. 32 (2000); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990); Delaware v. Prouse, 440 U.S. 648 (1979). Consent Searches: Schneckcloth v. Bustamonte, 412 U.S. 218 (1973). See also Fernandez v. California, 134 S. Ct. 1126 (2014); Georgia v. Randolph, 547 U.S. 103 (2006); Florida v. Jimeno, 500 U.S. 248 (1991); Bumper v. North Carolina, 391 U.S. 543 (1968). Closely Regulated Business: New York v. Burger, 482 U.S. 691 (1987). Curtilege: Oliver v. United States, 466 U.S. 170 (1984); United States v. Dunn, 480 U.S. 294 (1987). Dog Sniffs: Florida v. Jardines, 133 S. Ct. 1409 (2013) (front porch); Illinois v. Caballes, 543 U.S. 405 (2006) (car); United States v. Place, 462 U.S. 696 (1983) (luggage). Drug Testing: Bd. of Educ. of Indep. Sch. Dist. No. 92 Pottawatomie Cnty. v. Earls, 536 U.S. 822 (2002) (students); Ferguson v. City of Charleston, 532 U.S. 67 (2001) (pregnant women); Chandler v. Miller, 520 U.S. 305 (1997) (candidates for public office); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) (students); Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602 (1989) (railway workers); Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989) (U.S. Customs Service employees). Exigent Circumstances: Ryburn v. Huff, 132 S. Ct. 987 (2012) (per curiam); Michigan v. Fisher, 130 S. Ct. 546 (2009); Brigham City v. Stuart, 547 U.S. 398 (2006). See also Kentucky v. King, 131 S. Ct. 1849 (2011). GPS Tracking: Jones v. United States, 132 S. Ct. 945 (2012). Home: Kyllo v. United States, 533 U.S. 27 (2001) (thermal images); Steagald v. United States, 451 U.S. 204 (1981) (search for arrestee in home of another); Payton v. New York, 445 U.S. 573 (1980) (search for arrestee in arrestee’s home). Housing and Building Code Inspections: Camara v. Mun. Court of S.F., 387 U.S. 523 (1987) (housing code); See v. City of Seattle, 387 U.S. 541 (1967) (building code). See also Michigan v. Tyler, 436 U.S. 499 (1978) (fire inspector’s inspection of fire-damaged property). Inventory Searches: Colorado v. Bertine, 479 U.S. 367 (1987); Illinois v. Lafayette, 462 U.S. 640 (1983); South Dakota v. Opperman, 428 U.S. 364 (1976). Luggage: Bond v. United States, 529 U.S. 334 (2000); United States v. Place, 462 U.S. 696 (1983). Open Fields: Oliver v. United States, 466 U.S. 170 (1984). See also United States v. Dunn, 480 U.S. 294 (1987). Parolees and Probationers: Samson v. California, 547 U.S. 843 (2006) (parolees); United States v. Knights, 534 U.S. 112 (2001) (probationers). Pen Register: Smith v. Maryland, 442 U.S. 735 (1979). Probable Cause to Search: Florida v. Harris, 133 S. Ct. 1050 (2013); Illinois v. Gates 462 U.S. 213 (1983). Search Incident to Arrest: Riley v. California, 189 L. Ed.2d 430 (2014) (search of cell phone digital information incident to arrest); Arizona v. Gant, 556 U.S. 332 (2009) (arrest of driver or passenger); United States v. Robinson, 414 U.S. 218 (1973) (arrest in public place); Chimel v. California, 395 U.S. 752 (1969) (arrest in home). Students: Safford Unified Sch. Dist. v. Redding, 557 U.S. 364 (2009); New Jersey v. T.L.O., 469 U.S. 325 (1985). See also decisions cited under “Drug Testing.” Trash Placed at Curb for Collection: California v. Greenwood, 486 U.S. 35 (1988). Workplace: City of Ontario v. Quon, 130 S. Ct. 2619 (2010); O’Connor v. Ortega, 480 U.S. 709 (1987).
  294. Compare, e.g., Der v. Connolly, 666 F.3d 1120, 1126–29 (8th Cir. 2012) (§ 1983 plaintiff challenging warrantless search of home bears burden of showing she did not knowingly and voluntarily consent to entry into home, and objectively unreasonable for officer to believe emergency justified entry into home), and Bogan v. City of Chi., 644 F.3d 563, 568–71 (7th Cir. 2011) (in § 1983 challenge to warrantless search in which defendants alleged exigent circumstances, plaintiff has ultimate burden of persuasion to establish Fourth Amendment violation, including showing search not justified by exigent circumstances), cert. denied, 132 S. Ct. 1538 (2012), with Armijo v. Peterson, 601 F.3d 1065, 1070 (10th Cir. 2010) (per curiam) (burden on defendant-officer to establish exigent circumstances). See also Am. Fed’n of State, Cnty. & Mun. Emps. v. Scott, 717 F.3d 851, 880 (11th Cir. 2013) (plaintiff bears burden of persuasion on every element of § 1983 claim).
  295. Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007), cert. denied, 555 U.S. 811 (2008); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir. 2005). See Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir. 1998).
  296. Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d Cir. 2003) (citation omitted). Accord Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007) (where facts not in dispute, existence of probable cause is issue of law for court).
  297. See infra Section 1983 Litigation/Personal Liability: Qualified Immunity.
  298. 544 U.S. 93 (2005).
  299. Id. at 95, 98–101.
  300. 452 U.S. 692 (1981).
  301. Muehler, 544 U.S. at 98.
  302. Summers, 452 U.S. at 705 & n.19. See also Bailey v. United States, 133 S. Ct. 1031 (2013) (Summers rule applies only to persons in immediate vicinity of premises).
  303. Muehler, 544 U.S. at 95, 98–99.
  304. Id. at 100. When the Muehler safety interests are absent, continued handcuffing during the execution of a search warrant may constitute excessive force. See, e.g., Bletz v. Gribble, 641 F.3d 743, 755 (6th Cir. 2011); Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010).
  305. Muehler, 544 U.S. at 103–04 (Kennedy, J., concurring).
  306. Id. at 100–01.
  307. 510 U.S. 266 (1994).
  308. Id. at 270 n.4. Some courts had also required the challenged governmental conduct to be “egregious.” Id.
  309. Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256 (1st Cir. 1996).
  310. Wallace v. Kato, 549 U.S. 384, 390, n.2 (2007).
  311. See 1 Schwartz, supra note 246, § 3.18. See, e.g., Nieves v. McSweeney, 241 F.3d 46, 53–54 (1st Cir. 2001) (malicious prosecution claim may not be based upon substantive due process).
  312. Albright, 510 U.S. at 276–79 (Ginsburg, J., concurring).
  313. Id. at 285–86 (Kennedy, J., concurring).
  314. Id. at 283.
  315. Id. at 285–86. The Seventh Circuit takes the position that a § 1983 malicious prosecution claim does not lie when state law provides an adequate remedy for pursuing the claim in state court. Fox v. Hayes, 600 F.3d 819, 841 (7th Cir. 2010); Parish v. City of Chi., 594 F.3d 551, 552 (7th Cir. 2009); Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001). But see Julian v. Hanna, 732 F.3d 842, 847–48 (7th Cir. 2013) (Indiana law doesn’t provide adequate state law remedy); see also Nieves, 241 F.3d at 53.
  316. Albright, 510 U.S. at 286–87 (Souter, J., concurring).
  317. Id. at 289.
  318. Id. at 290–91.
  319. Id. at 302–06 (Stevens, J., dissenting).
  320. Kerr v. Lyford, 171 F.3d 330, 342 (5th Cir. 1999) (concurring opinion). See also Wallace v. Kato, 549 U.S. 384, 390, n.2 (2007) (citing 1 Schwartz, Section 1983 Litigation, § 3.18[C], pp. 3-605 to 3-629); Becker v. Kroll, 494 F.3d 904, 913 (10th Cir. 2007) (referring to “murky waters” of § 1983-based malicious prosecution claims).
  321. 1 Schwartz, supra note 246, § 3.18.
  322. See, e.g., Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010); Manganiello v. City of N.Y., 612 F.3d 149, 160–61 (2d Cir. 2010). Probable Cause: Probable cause to prosecute renders a seizure reasonable. Durham v. Horner, 690 F.3d 183, 189 (4th Cir. 2012). Probable cause exists when a reasonable person can conclude that there are “lawful grounds for prosecuting the defendant in the manner complained of.” Rounseville v. Zahl, 13 F.3d 625, 629–30 (2d Cir. 1994). A grand jury indictment is generally considered conclusive evidence of probable cause, but will not “shield a police officer who deliberately supplied misleading information that influenced the [grand jury’s] decision.” Durham, 690 F.3d at 189 (quoting Goodwin v. Metts, 885 F.2d 157, 162 (4th Cir. 1989)). Malice: In Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010), the Sixth Circuit found that a plaintiff asserting such a claim must prove: (1) “that a criminal prosecution was initiated against the plaintiff and” that the defendant made, influenced, or participated in the decision to prosecute; (2) a lack of probable cause for the prosecution; (3) “‘a deprivation of liberty,’ as understood in our Fourth Amendment jurisprudence, apart from the initial seizure”; and (4) resolution of the criminal prosecution in favor of the accused. Id. at 308–09. The court joined the Fourth Circuit in holding that malice is not an element of the claim. See Brooks v. City of Winston-Salem, 85 F.3d 178, 184 n.5 (4th Cir. 1996). The Second, Third, Ninth, Tenth, and Eleventh Circuits have ruled that malice is an element of a § 1983 malicious prosecution claim. See, e.g., Manganiello, 612 F.3d at 160–61; McKenna v. City of Phila., 582 F.3d 447, 461 (3d Cir. 2009); Lassiter v. City of Bremerton, 556 F.3d 1049, 1054 (9th Cir. 2009); Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008), cert. denied, 129 S. Ct. 1526 (2009); Grider, 618 F.3d at 1256 & n.24. The Third Circuit defined malice in the malicious prosecution context as “ill will in the sense of spite, lack of belief by the actor himself in the propriety of the prosecution, or its use for an extraneous improper purpose.” Lee v. Mihalich, 847 F.2d 66, 70 (3d Cir. 1988). “Malice may be inferred from the absence of probable cause.” Lippay v. Christos, 996 F.2d 1490, 1502 (3d Cir. 1993). The court in Sykes reasoned that characterizing the § 1983 claim as one for malicious prosecution is “unfortunate and confusing.” The claim requires a showing of an unreasonable seizure under the Fourth Amendment, a claim not concerned with malice. The court stressed that to distinguish the “malicious prosecution” claim from a false arrest claim, it is necessary to determine whether there was probable cause to initiate the prosecution. Further, an officer may be responsible for commencing a criminal proceeding even if she did not make the decision to prosecute if she influenced or participated in that decision. Favorable Transaction: For a criminal prosecution to terminate in favor of the accused, the final determination must “indicate the innocence of the accused.” Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997), cert. denied, 522 U.S. 1115 (1998). For example, an adjournment in contemplation of dismissal is not considered a “favorable termination.” Id. at 949.
  323. Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99 (1st Cir. 2013) (noting split on which Fourth, Fifth, Sixth, and Tenth Circuits have adopted purely Fourth Amendment approach to § 1983 malicious prosecution claims, while Second, Third, Ninth, and Eleventh Circuits “have adopted a blended constitutional/common law approach, requiring the plaintiff to demonstrate a Fourth Amendment violation and all the elements of a common law malicious prosecution claim”; First Circuit adopted pure Fourth Amendment approach).
  324. Kossler v. Crisanti, 564 F.3d 181 (3d Cir. 2009).
  325. Post-Albright § 1983 malicious prosecution decisions by circuit:
    • First Circuit: Hernandez-Cuevas v. Taylor, 723 F.3d 91 (1st Cir. 2013); Nieves v. McSweeney, 241 F.3d 46 (1st Cir. 2001)
    • Second Circuit: Manganiello v. City of N.Y., 612 F.3d 149 (2d Cir. 2010)
    • Third Circuit: Kossler v. Crisanti, 564 F.3d 181 (3d Cir. 2009)
    • Fourth Circuit: Lambert v. Williams, 223 F.3d 257 (4th Cir. 2000), cert. denied, 531 U.S. 1130 (2001)
    • Fifth Circuit: Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc), cert. denied, 543 U.S. 808 (2004)
    • Sixth Circuit: Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010)
    • Seventh Circuit: Julian v. Hanna, 732 F.3d 842 (7th Cir. 2013); Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001) (en banc)
    • Eighth Circuit: Kurtz v. City of Shrewsbury, 245 F.3d 753 (8th Cir. 2001)
    • Ninth Circuit: Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012) (en banc)
    • Tenth Circuit: Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004)
    • Eleventh Circuit: Kingsland v. City of Miami, 382 F.3d 1220 (11th Cir.), cert. denied, 543 U.S. 919 (2004)
    • D.C. Circuit: Pitt v. District of Columbia, 491 F.3d 494 (D.C. Cir. 2007)
    Malicious Abuse of Civil Process: The prevailing view is that “section 1983 liability . . . may not be predicated on a claim of malicious abuse of … civil process.” Green v. Mattingly, 585 F.3d 97, 104 (2d Cir. 2009). See, e.g., Hickson v. Marina Assocs., 743 F. Supp. 2d 362, 372–73 (D.N.J. 2010):

    A section 1983 claim for malicious abuse of process lies where prosecution is initiated legitimately and thereafter is used for a purpose other than that intended by the law. The crux of this action is the perversion of the legal process to achieve an objective other than its intended purpose. When process is used to effect an extortionate demand, or to cause the surrender of a legal right, . . . a cause of action for abuse of process can be maintained…. [T]here must be some proof of a definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process.

    (quoting Ference v. Twp. of Hamilty, 538 F. Supp. 2d 785, 798 (D.N.J. 2008)).

  326. See Sykes, 625 F.3d at 310 (designating constitutional claim as “malicious prosecution” claim is unfortunate and confusing); Tully v. Barada, 599 F.3d 591, 595 (7th Cir. 2010) (citing Martin A. Schwartz, 1 Section 1983 Litigation § 3.18[a] (2008 Supplement)).
  327. Wilson v. Seiter, 501 U.S. 294, 298–303 (1991).
  328. See, e.g., Farmer v. Brennan, 511 U.S. 825, 834 (1994).
  329. Id.
  330. Id.
  331. 429 U.S. 97 (1976).
  332. Id. at 106. See also De’lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013).
  333. Id. at 105–06. In Brown v. Plata, 131 S. Ct. 1910 (2011), the Supreme Court affirmed an order of a three-judge court convened pursuant to the Prison Litigation Reform Act, 18 U.S.C. § 3626, that found that California prison officials engaged in systemic constitutional denials of medical and mental health care to prisoners, because of severe overcrowding. The order required California to reduce its prison population by as many as 46,000 prisoners.
  334. 692 F.3d 564 (7th Cir. 2012).
  335. Id. at 567–69.
  336. Id. at 568.
  337. Id. at 569. Conversely, a jury should not be instructed on liability in a “damages only” trial. Guzman v. City of Chi., 689 F.3d 740, 746–48 (7th Cir. 2012).
  338. 501 U.S. 294 (1991).
  339. Id. at 302–03.
  340. Id. at 300–03.
  341. Id. at 304–05.
  342. Id.
  343. Id. at 305.
  344. Id. at 301–02.
  345. Id. at 311 & n.2 (White, J., concurring).
  346. 509 U.S. 25 (1993).
  347. Id. at 32–35.
  348. Id.
  349. 511 U.S. 825 (1994).
  350. Id. at 829 (“requiring a showing that the official was subjectively aware of the risk”).
  351. Id. at 832–34.
  352. Id. at 837–38.
  353. Id. at 835.
  354. Id. at 837–38.
  355. Id. at 843 n.8.
  356. Id. at 842.
  357. Hudson v. McMillian, 503 U.S. 1 (1992) (discussed supra Chapter 4, § V.B).
  358. See id. at 5–7.
  359. Id. at 6.
  360. Id. at 5–6.
  361. 427 U.S. 347 (1976).
  362. 445 U.S. 507 (1980).
  363. Id. at 518. Some courts, however, still refer to the “policy-making” exception. See, e.g., Embry v. City of Calumet City, 701 F.3d 231, 235 (7th Cir. 2012) (“exception applies not only when a new political party takes power, but also includes ‘patronage dismissals when one faction of a party replaces another faction of the same party’”) (quoting Tomczak v. City of Chi., 765 F.2d 633, 640 (7th Cir. 1985)).
  364. Id. See Wilhelm v. City of Calumet City, 409 F. Supp. 2d 991, 999 (N.D. Ill. 2006) (citing Lohorn v. Michael, 913 F.2d 327, 334 (9th Cir. 1998)).
  365. 497 U.S. 62 (1990).
  366. Id. at 74–75.
  367. Id. at 74.
  368. For an analysis of these cases, see 1 Schwartz, supra note 246, § 3.11[D].
  369. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), discussed infra text accompanying notes 1069–70.
  370. Soto-Padro v. Public Bldgs. Auth., 675 F.3d 1, 6 (1st Cir. 2012).
  371. Barry v. Moran, 661 F.3d 696, 708 (1st Cir. 2011).
  372. Id. (quoting Stratton v. Dep’t for the Aging for City of N.Y., 132 F.3d 869, 880 (2d Cir. 1997)).
  373. Barry, 661 F.3d at 708.
  374. 518 U.S. 712 (1996).
  375. Id. at 722–23.
  376. Garcetti v. Ceballos, 547 U.S. 410 (2006).
  377. See Connick v. Meyers, 461 U.S. 138 (1983).
  378. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
  379. Connick, 461 U.S. 138. A public employee’s lawsuit or other formal grievance is protected by the First Amendment Petition Clause only if it is a matter of public concern. Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011).
  380. Connick, 461 U.S. at 147–48. See also Lane v. Franks, 189 L. Ed. 2d 312 (2014).
  381. Connick, 461 U.S. at 147–48
  382. Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 194, 197 (7th Cir. 1996). See also Lane, 189 L. Ed. 2d at 325 (to be matter of public concern, speech must be subject of legitimate news interest, that is, of general interest and concern to the public).
  383. See, e.g., Sousa v. Roque, 578 F.3d 164, 170, 174 (2d Cir. 2009); Milwaukee Deputy Sheriff’s Ass’n v. Clarke, 574 F.3d 370, 377 (7th Cir. 2009), cert. denied, 130 S. Ct. 1059 (2010).
  384. Connick, 461 U.S. at 147 n.7. When the public concern issue is close, a court may assume arguendo that the speech was of public concern and proceed directly to “Pickering balancing” (referring to Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)); Blackman v. N.Y. City Transit Auth., 491 F.3d 95, 97, 99–100 (2d Cir. 2007).
  385. Waters v. Churchill, 511 U.S. 661, 678–79 (1994) (O’Connor, J.) (plurality opinion joined by Rehnquist, C.J., Souter & Ginsburg, JJ.).
  386. Id. at 677–79.
  387. Id. at 678 (plurality opinion).
  388. Id.
  389. 547 U.S. 410 (2006).
  390. Id. at 421–25.
  391. Id. at 424–25.
  392. 189 L. Ed. 2d 312 (2014).
  393. Id. at 323.
  394. Id. at 324. The Court in Lane found that the subpoenaed testimony in question was clearly a matter of public concern because it pertained to public corruption from misuse of state funds. Further, Pickering balancing, discussed at pages 71–72, clearly favored the § 1983 plaintiff. Nevertheless, the defendant, who was sued in his personal capacity for money damages, was protected from liability by qualified immunity because the First Amendment law as to whether a public employee’s subpoenaed testimony is protected speech was not clearly established when the defendant fired the plaintiff.
  395. See Fox v. Traverse City Area Pub. Sch. Bd. of Ed., 605 F.3d 345, 350–51 (6th Cir.), cert. denied, 131 S. Ct. 643 (2010); Charles v. Grief, 522 F.3d 508, 513 n.17 (5th Cir. 2008); Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1203 (10th Cir. 2007); Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007).
  396. See Andrew v. Clark, 561 F.3d 261, 266–68 (4th Cir. 2009).
  397. See Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008); Foraker v. Claffinch, 501 F.3d 231, 240 (3d Cir. 2007). The Supreme Court has not determined, and the courts of appeals disagree, about how Pickering balancing should apply to the speech of a policy-making or confidential employee. See Leslie v. Hancock Cnty. Bd. of Educ., 720 F.3d 1338, 1347–49 (11th Cir. 2013) (citing inter alia three lines of appellate authority).
  398. See 1 Schwartz, supra note 246, § 3.11.
  399. 391 U.S. 563 (1968).
  400. Id. at 570 n.3. “[T]o trigger the Pickering balancing test, a public employee must, with specificity, demonstrate the speech at issue created workplace disharmony, impeded the plaintiff’s performance or impaired working relationships.” Lindsey v. City of Orrick, 491 F.3d 892, 900 (8th Cir. 2007).
  401. Connick v. Meyers, 461 U.S. 138, 151–52 (1983).
  402. Rankin v. McPherson, 483 U.S. 378, 390–91 (1987). See also Lane v. Franks, 189 L. Ed. 2d 312, 326 (2014).
  403. Jackson v. Ala., 405 F.3d 1276, 1285–86 (11th Cir. 2005); Lewis v. Cowen, 165 F.3d 154, 164 (2d Cir. 1999). The court in Jackson, 405 F.3d at 1285, acknowledged that Pickering balancing may generate subsidiary issues of fact.
  404. See, e.g., Diaz-Bigio v. Santini, 652 F.3d 45, 53 (1st Cir. 2011); Pike v. Osborne, 301 F.3d 182, 185 (4th Cir. 2002); Brewster v. Bd. of Educ., 149 F.3d 971, 980 (9th Cir. 1998).
  405. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) (in which the Court analyzed the so-called “dual motive” issue).
  406. A prisoner’s filing of a judicial proceeding or prison grievance is constitutionally protected activity. Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996); Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988).
  407. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001); Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001); Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000). See also Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005).
  408. Rauser, 241 F.3d at 333 (quoting Allah, 229 F.3d at 224–25). Accord Rhodes, 408 F.3d at 568–69. See also Santiago v. Blair, 707 F.3d 984, 993–94 (8th Cir. 2013) (First Amendment claim that adverse prison conditions were imposed on prisoner in retaliation for prisoner’s exercise of First Amendment rights is not governed by Sandin v. Conner, 515 U.S. 472 (1995), “atypical and significant hardship” standard; Sandin governs due process liberty interest issue).
  409. Mays v. Springborn, 719 F.3d 631, 633–35 (7th Cir. 2013) (ruling that even if prisoner makes this showing, defendant will prevail if he shows, by preponderance of evidence, that same adverse action would have been taken even if there had been no retaliatory motive). See Moots v. Lombardi, 453 F.3d 1020, 1023 (8th Cir. 2006) (“[A] defendant may successfully defend a [prisoner’s] retaliatory discipline claim by showing ‘some evidence’ that the inmate actually committed a rule violation. . . . The fact that the conduct violation was later expunged does not mean that there was not some evidence for its imposition.”).
  410. See Watkins v. Kasper, 599 F.3d 791, 794–97 (7th Cir. 2010) (prisoner employee who asserts First Amendment retaliation claim need not demonstrate that his speech was of public concern, but must show that speech was consistent with legitimate penological interests); Bridges v. Gilbert, 557 F.3d 541, 550–51 (7th Cir. 2009) (prisoner asserting free speech retaliation claim need not establish speech was of public concern).
  411. Rauser, 241 F.3d at 333.
  412. Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001).
  413. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996); Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983).
  414. “[W]here . . . circumstantial evidence of a retaliatory motive is sufficiently compelling, direct evidence is not invariably required.” Bennett v. Goord, 343 F.3d 133, 139 (2d Cir. 2003).
  415. Gayle v. Gonyea, 313 F.3d 677, 684 (2d Cir. 2002).
  416. 547 U.S. 250 (2006) (Bivens action).
  417. Hartman, 547 U.S. at 261–62. See also infra Chapter 15, § II.C. In a subsequent decision, Hartman v. Moore, the D.C. Circuit Court of Appeals followed unanimous circuit court authority holding that a grand jury indictment is prima facie, not conclusive, evidence of probable cause, which can be rebutted. Moore v. Hartman, 571 F.3d 62, 67 (D.C. Cir. 2009).
  418. Reichle v. Howards, 132 S. Ct. 2088, 2096 (2012) (citing McCabe v. Parker, 608 F.3d 1068, 1075 (8th Cir. 2010); Phillips v. Irvin, 222 F. App’x 928, 929 (11th Cir. 2007) (per curiam); Barnes v. Wright, 449 F.3d 709, 720 (6th Cir. 2006)). See also Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008).
  419. Howards v. McLaughlin, 634 F.3d 1131, 1145–49 (10th Cir. 2011), rev’d on other grounds, Reichle, 132 S. Ct. at 2096. See also Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1233–35 (9th Cir. 2006) (alleged search and seizure of property in retaliation for exercise of First Amendment rights states proper claim even if search and seizure supported by probable cause).
  420. 132 S. Ct. 2088 (2012).
  421. Id. at 2096.
  422. Id. at 2095 (citation omitted).
  423. See Thayer v. Chiczewski, 697 F.3d 514 (7th Cir. 2012). Relying on Reichle, 132 S. Ct. 2095–97, the Seventh Circuit ruled that qualified immunity defeated the retaliatory arrest claim. “Probable cause, if not a complete bar to Thayer’s First Amendment retaliatory arrest claim, provides strong evidence that he would have been arrested regardless of any illegitimate animus.” Thayer, 697 F.3d at 529.
  424. 528 U.S. 562 (2000).
  425. Id. at 564.
  426. Id. at 565. Dismissal of a “class-of-one” claim is proper when the plaintiff offers only conclusory allegations of similarly situated persons. Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1220 (10th Cir. 2011). The Seventh Circuit recognized that whether others are similarly situated could create a genuine issue of material fact, but found, in the case at hand, that the district court properly resolved the issue on summary judgment. Harvey v. Town of Merrillville, 649 F.3d 526, 531–32 (7th Cir. 2011).
  427. 553 U.S. 591 (2008).
  428. Id. at 603.
  429. Id. at 599.
  430. Geinosky v. City of Chi., 675 F.3d 743, 747 (7th Cir. 2012) (quoting McDonald v. Vill. of Winnetka, 371 F.3d 992, 1009 (7th Cir. 2004)). See also Cordi-Allen v. Conlon, 494 F.3d 245, 255 (1st Cir. 2007) (class-of-one claim not “vehicle for federalizing run-of-themine zoning, environmental, and licensing decision”).
  431. Thayer v. Chiczewski, 697 F.3d 514, 532 (7th Cir. 2012). For a breakdown by circuit, see 1 Schwartz, supra note 246, § 3.10[B].