Upload
others
View
1
Download
0
Embed Size (px)
Citation preview
The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
Presenting a live 90-minute webinar with interactive Q&A
Navigating Section 1983 Liability for
Municipalities: Individual/Official Capacity,
Qualified Immunity and Monell Claims
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
TUESDAY, APRIL 4, 2017
Samuel C. Hall, Jr., Shareholder, Crivello Carlson, Milwaukee
Sara C. Mills, Attorney, Crivello Carlson, Milwaukee
Rhonda R. Stowers, Senior Attorney, Plunkett Cooney, Flint, Mich.
Tips for Optimal Quality
Sound Quality
If you are listening via your computer speakers, please note that the quality
of your sound will vary depending on the speed and quality of your internet
connection.
If the sound quality is not satisfactory, you may listen via the phone: dial
1-866-961-9091 and enter your PIN when prompted. Otherwise, please
send us a chat or e-mail [email protected] immediately so we can
address the problem.
If you dialed in and have any difficulties during the call, press *0 for assistance.
Viewing Quality
To maximize your screen, press the F11 key on your keyboard. To exit full screen,
press the F11 key again.
FOR LIVE EVENT ONLY
Continuing Education Credits
In order for us to process your continuing education credit, you must confirm your
participation in this webinar by completing and submitting the Attendance
Affirmation/Evaluation after the webinar.
A link to the Attendance Affirmation/Evaluation will be in the thank you email
that you will receive immediately following the program.
For additional information about continuing education, call us at 1-800-926-7926
ext. 35.
FOR LIVE EVENT ONLY
Program Materials
If you have not printed the conference materials for this program, please
complete the following steps:
• Click on the ^ symbol next to “Conference Materials” in the middle of the left-
hand column on your screen.
• Click on the tab labeled “Handouts” that appears, and there you will see a
PDF of the slides for today's program.
• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.
FOR LIVE EVENT ONLY
Navigating Section 1983 Liability
for Municipalities:
Introduction of Claims
ATTORNEY SARA C. MILLS
Crivello Carlson, S.C.
710 North Plankinton Avenue
Milwaukee, Wisconsin 53203
414. 271.7722
Introduction:
Liability under 42 U.S.C. § 1983
• Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or
other proper proceeding for redress …
6
Distilled:
For violations by people acting “under color of
law” who deprive a person of a right, privilege,
or immunity secured by the constitution or a
federal law.
Municipal employees and the municipal
corporate entity may be sued.
7
Frequently Invoked Constitutional
Provisions and Federal Laws
In § 1983 Claims: • First Amendment (free speech, retaliation)
• Fourth Amendment (search and seizure)
• Eighth Amendment (cruel and unusual punishment)
• Fourteenth Amendment (procedural and substantive due
process, equal protection);
• The Civil Rights Acts of 1964 and 1991
• The Americans with Disabilities Act and the Rehabilitation
Act (§ 504) (ADA)
• Individuals with Disabilities Education Act (IDEA)
• CERCLA
• Prison Litigation Reform Act, 42 U.S.C. § 1997e(e).
8
• Racketeer Influenced and Corrupt Organizations Act
(RICO)
• Civil Rights for Women
• Fair Housing Act
• Family Educational Rights and Privacy Act (FERPA)
• Claims under the Telecommunications Act of 1996
• Religious Land Use & Institutionalized Persons Act
(RLUIPA)
• Fair Labor Standards Act, 29 U.S.C. § 203.
9
The plaintiff must allege 1) a deprivation of a
federal right; and 2) that the person who deprived
him of that right acted under color of state law.
See Gomez v. Toledo, 446 U.S. 635, 640 (1980).
A more nuanced reading of the elements: 1) the act in
question was taken by a “pesron”; 2) the person acted
under color of state law; 3) the act was a proximate cause
of 4) a deprivation of a federally protected right.
§ 1983 ELEMENTS:
10
“Under Color of State Law”
• Misuse of power, possessed by virtue of state law and
made possible only because the wrongdoer is clothed
with the authority of state law, is action taken “under
color of” state law.
• See Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 102
S. Ct. 2744 (1982).
• “Color of Law” is similar to “Scope of Employment.”
For example, an alderman who physically attacked a
man over illegally parked cars was not “under color
of law.”
– See Wilson v. Price, 624 F. 3d 389 (7th Cir. 2010).
11
• Fourteenth Amendment imposes limitations
only on state action. It does not reach conduct
of federal officials or private parties, no matter
how discriminatory or harmful.
• Court may need to determine whether state
official acted as a private individual (e.g. an
irate spouse or an off-duty police officer).
12
Was the defendant acting in an individual or
official capacity?
– This question is relevant to the elements to be
proven and defenses available.
– Officials may be sued in both their official capacity
and personal capacity. An official may be held
liable personally for damages under § 1983 based
on actions taken in his or her official capacity as
long as the official is sued in his or her individual
capacity.
• See Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358 (1991).
13
• “Individual capacity” and “personal capacity” are
used interchangeably. See, e.g., Hafer v. Melo, 502
U.S. 21. What is relevant is that the officer is being
sued personally/individually for damages that
allegedly arose from his or her official acts.
• Such liability is not limited to acts “taken under color
of state law” that are outside the official’s authority or
not essential to the operation of municipal
government. A municipal official can be personally
liable under § 1983 for acts that are both within
official’s authority and necessary to performance of
government functions. See Hafer v. Melo.
14
Individual/Personal Capacity
• The plaintiff need not establish a connection to
a governmental “policy or custom” in order to
prevail against an official being sued in his
individual/personal capacity.
• Officials sued in their individual/personal
capacities may assert qualified immunity
defense of reasonable reliance on existing law;
this defense may be unavailable to those sued
in their official capacity.
15
Personal Capacity
• In order to prevail on a personal capacity claim under
§ 1983, the plaintiff must generally show that the
official was personally involved in the acts that
resulted in the constitutional deprivation, and the
inquiry into causation must focus on the duties and
responsibilities of each of the individual officials
whose acts or omissions are alleged to have resulted
in a constitutional deprivation.
• See Berry v. Leslie, 767 F.3d 1144 (11th Cir. 2014).
16
Official Capacity
• The word “person” in § 1983 does not include
the states or state officials acting in their
official capacities.
• A § 1983 suit against a government official in
his official capacity generally represents only
another way of pleading an action against the
entity of which an officer is an agent– the real
party in interest is the municipal entity.
17
Official Capacity and the
Eleventh Amendment
• A § 1983 action against a state official in his or
her official capacity should be regarded as a
suit against the State itself and is therefore
usually barred by the Eleventh Amendment’s
grant of sovereign immunity.
18
Ex parte Young Doctrine
• Section 1983 permits—and the Eleventh
Amendment does not bar—official-capacity
suits that seek prospective injunctive relief
against state officials. – See Ex parte Young, 209 U.S. 123 (1908); see also
Williams v. Wisconsin, 336 F.3d 576, 581 (7th Cir. 2003).
• To come within the Young doctrine, plaintiff must
establish ongoing violations of federal law and seek
prospective relief.
19
Young Doctrine, Cont.
• Plaintiff must name as defendant the state official
who is responsible for enforcing the contested statute
in her official capacity; a claim for prospective relief
against the state itself, or a state agency, will be
barred by the Eleventh Amendment.
• Young doctrine does not apply to state law claims that
are pendent (“supplemental”) to the § 1983 claim.
Supplemental state law claim that seeks to compel the
state to comply with state law is barred by Eleventh
Amendment.
– See Pennhurst v. Halderman, 465 U.S. 89 (1984).
20
Official Capacity
• The Young Doctrine has enabled Monell actions.
• A plaintiff may recover damages from a governmental entity
under § 1983 only where his or her constitutional injuries are
caused by execution of the entity’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy. See Monell v. Dept.
of Social Services of City of New York, 436 U.S. 658, 98 S.Ct.
2018 (1978).
• Different than vicarious liability. A governmental entity
cannot be held vicariously liable under § 1983 for
constitutional violations committed by its agents or employees.
21
QUALIFIED IMMUNITY
Available to officials sued in their individual
capacities when they are able to demonstrate that
the complained of act did not violate a clearly
established constitutional or federal statutory right
of which a reasonable person would have known.
• Immunity not just from liability but from suit.
– See Mitchell v. Forsyth, 472 U.S. 511 (1985).
– That the official may have violated a clearly
established state law is generally irrelevant. See Davis
v. Scherer, 468 U.S. 183 (1984).
22
OBJECTIVE TEST
• Qualified immunity is available to an official who
acted in an objectively reasonable manner.
• Supreme Court has described the qualified immunity
test as “fair warning” standard: if federal law is
clearly established, official is on notice that violation
may lead to personal monetary liability. See Hope v.
Pelzer, 536 U.S. 730 (2002).
• Public officials “are not liable for bad guesses in grey
areas; they are liable for transgressing bright lines.”
– Maciariello v. Sunner, 973 F.2d 295, 298 (4th Cir. 1992).
23
• There is no federal statute of limitations for §
1983 claims.
• 42 U.S.C. § 1988(a) requires federal courts to
borrow a state’s limitations period for personal
injury actions.
• The governing limitations period for federal
court § 1983 actions may differ from state to
state.
STATUTE OF LIMITATIONS
24
• Accrual is question of federal law.
• § 1983 claims generally accrue when plaintiff
knows or has reason to know of the injury that
is the basis of her claim.
• Courts seek to determine “what event should
have alerted the typical lay person to protect
his or her rights.” See, e.g., Chardon v.
Fernandez, 454 U.S. 6 (1981).
25
SOL and Relation Back
• Most courts hold that amendment of a
complaint substituting a John Doe defendant
with names of actual municipal officers does
not relate back to the filing of the original
complaint.
• Lack of knowledge about the names of alleged
wrongdoer is not a “mistake” under FRCP
15(c).
26
Defenses
• Vast range of defenses available depending on
the specific constitutional right or federal law
asserted as basis of claim.
• Defenses applicable to most or all § 1983
claims include statutes of limitation, qualified
immunity, absolute immunity
– Absolute immunity available to judges,
prosecutors, witnesses, legislators but not
executive or administrative officials
27
• Exhaustion of remedies:
– State administrative and judicial remedies
generally need not be exhausted in order to bring
suit under § 1983.
• BUT, Prison Litigation Reform Act requires prisoners to
exhaust administrative remedies before bringing suit to
challenge conditions of confinement.
– Heck Doctrine: in order to seek damages on a §
1983 claim that necessarily implicates the
constitutionality of claimant's conviction or
sentence, claimant must show that conviction or
sentence has been overturned.
28
• Preclusion: Under the full faith and credit
statute, 28 U.S.C. § 1738, federal courts in §
1983 actions must give state court judgments
the same preclusive effect they would receive
in state court under state law. See San Remo
Hotel v. San Francisco, 545 U.S. 323(2005).
– applies even as to claims that could have been, but
were not, litigated in the state court proceeding, if
state preclusion law encompasses the doctrine of
claim preclusion. See Migra v. Warren City Sch.
Dist., 465 U.S. 75 (1984).
29
• Notice of claim rules generally do not apply to
§ 1983 claims. See Felder v. Casey, 487 U.S.
131 (1988).
30
Causation
• Proximate cause is required in § 1983 claims. – Martinez v. California, 444 U.S. 277 (1980).
• Often a substantial issue in claims based upon
inadequate training, supervision, or hiring.
– the municipal policy or practice must be the
“moving force,” “closely related,” “direct causal
link,” or “affirmatively linked” to the deprivation
– See Board of County Commissioners of Bryan
County v. Brown, 520 U.S. 397 (1997)
31
• A § 1983 defendant may be held liable for
“reasonably foreseeable consequences attributable to
intervening forces, including acts of third parties.”
– See Warner v. Orange County Dep't of Probation, 115 F.3d
1068, 1071 (2d Cir. 1996).
• A § 1983 defendant may not be held liable when an
intervening cause was not reasonably foreseeable, or
when the link between the defendant's conduct and
the plaintiff's injuries is too remote, tenuous, or
speculative. Martinez v. California, 444 U.S. 277 (1980).
32
State of Mind
• § 1983 has no state-of-mind requirement.
• § 1983 is vehicle by which federal rights are
enforced in the courts system, but it does not
create the federal right and is not source of any
substantive law shaping contours of those
federal rights.
– See Daniels v. Williams, 474 U.S. 327 (1986).
– Specific state of mind requirement may be
imposed by the specific constitutional claim that
plaintiff seeks to vindicate in § 1983 action.
33
“[Section]1983, unlike its criminal counterpart,
18 U.S.C.A. § 242, contains no state-of-mind
requirement independent of that necessary to
state a violation of the underlying constitutional
right. We adhere to that conclusion. But in any
given § 1983 suit, the plaintiff must still prove a
violation of the underlying constitutional right;
and depending on the right, merely negligent
conduct may not be enough to state a claim.”
– Daniels v. Williams, 474 U.S. 327, 329–30 (1986).
34
Questions will be addressed at the
conclusion of the presentation.
Thank you.
35
Latest Cases and Trends in
Section 1983 Litigation
Attorney Samuel C. Hall, Jr.
OVERVIEW
• Use of Force in the Jails
• Deadly Force Developments
• Use of Electronic Control Devices
• Qualified Immunity
• Body Camera Implications
37
Use of Force in the Jails
• Kingsley v. Hendrickson, 576 U.S. ---,
135 S.Ct. 2466 (2015).
38
Use of Force in the Jails
• The scope of an individual’s right to be free from
punishment and the basis for an excessive force
claim hinges on his status within the criminal
justice system.
• The Fourteenth Amendment Due Process
clause provides protection against “punishment”
of pretrial detainees.
39
Use of Force in the Jails
• Kingsley was arrested in 2010 on a drug charge and detained at the
Monroe County Jail.
• During a routine cell check, an officer noticed a piece of paper
covering the light fixture. The officer told Kingsley to remove the
piece of paper – Kingsley refused. During the course of the
evening, other officers also ordered Kingsley to remove the paper –
Kingsley refused.
• Ultimately, the Jail Administrator also ordered that Kingsley remove
the piece of paper. When Kingsley refused, the Jail Administrator
informed Kingsley that the piece of paper would be removed and
that Kingsley would have to be transferred to a receiving cell while
this occurred.
40
Use of Force in the Jails
• Four officers approached Kingsley’s cell, ordered him to stand up
and back up to the cell door with his hands behind him. Ultimately,
Kingsley refused to comply and he was handcuffed and forcibly
removed from his cell. The officers allegedly carried Kingsley with
his arms handcuffed behind his back and placed him face down on a
bunk in the receiving cell.
• At some point in the process of attempting to remove Kingsley’s
handcuffs, Kingsley resisted to at least some degree and ultimately
a TASER® was applied to Kingsley’s back for approximately five
seconds. Kingsley alleges that after the TASER® deployment, he
was left alone, face down in handcuffs, for 15 minutes.
41
Use of Force in the Jails Kingsley brought several claims, including an excessive force claim in
violation of the Fourteenth Amendment’s Due Process Clause.
Summary judgment on the excessive force claim was denied based on
material factual disputes.
The case proceeded to a jury trial on the excessive force claim. At the
conclusion of the trial, the judge instructed the jury that a Fourteenth
Amendment excessive force claim required proving that the force was
applied “recklessly.” Thus, the judge instructed that there was an intent
requirement that the officers “knew that using force presented a risk of
harm to the plaintiff, but they recklessly disregarded the plaintiff’s
safety.”
The jury returned a verdict in favor of the officers.
42
Use of Force in the Jails • On appeal, through a 2-1 divided panel, the Seventh Circuit Court of
Appeals affirmed the jury’s finding and concluded that the lower
court’s instructions to the jury were consistent with Seventh Circuit
precedent, while acknowledging that a split in the circuits existed on
this issue.
• The Supreme Court of the United States accepted review of the
case and reversed the Seventh Circuit Court of Appeals by a 5-4
vote.
• The Court’s focused on the question of whether a Fourteenth
Amendment use of force case should be judged based on an
objective or subjective standard.
• The Court reiterated that all Fourteenth Amendment use of force
cases should be evaluated through an objective standard.
43
Deadly Force Developments
• County of Los Angeles v. Mendez
– U.S. Supreme Court Case No. 16-369
– Argued March 22, 2017
• Ninth Circuit Citation: 815 F.3d 1178 (9th Cir. 2016)
• Ninth Circuit’s “Provocation Rule”
44
Deadly Force Developments • In October of 2010, officers responded to a sighting of a
wanted parolee who was believed to be armed and
dangerous.
• The manhunt took officers to a 7 x 7 shack outside of a
home.
• Officers saw a silhouette of a man holding a gun (later
found to be a BB gun) through a blanket that was
hanging to provide insulation for the shack.
• Officers opened fire – shooting 15 times. Both Mr. and
Mrs. Mendez were hit by the gunfire. 45
Deadly Force Developments • The district court concluded that the gun was pointed in
the direction of officers, such that the use of deadly force
was justified as a matter of law.
• However, the district court found that the officers were
nonetheless liable under the Ninth Circuit’s “Provocation
Rule” due to the unlawful entry and failure to follow the
“knock and announce” rule. The court awarded $4
million in damages.
• On appeal, the Ninth Circuit affirmed in key parts and
denied qualified immunity.
46
Electronic Control Devices
Estate of Armstrong v. Village of Pinehurst, 810 F.3d
892 (4th Cir. 2016), cert. denied, 137 S.Ct. 61 (Oct. 3,
2016).
Plaintiff alleged Fourth Amendment excessive force claim
against officers and also named Taser International as a
Defendant.
47
Electronic Control Devices Arrestee allegedly suffered from bipolar
disorder and paranoid schizophrenia.
Armstrong resisted by holding onto a pole, so
officers deployed ECD in drive-stun mode 5
times within two-minutes.
Armstrong was eventually removed from pole,
but continued to struggle while being
handcuffed.
48
Electronic Control Devices After handcuffing and leg shackles were applied,
Armstrong stopped moving and eventually died.
Applicable Fourth Circuit Standards:
Police may only use an ECD when an objectively
reasonable officer would conclude that the
circumstances present a risk of immediate danger that
could be mitigated by the use of the ECD.
“’Physical resistance’ is not synonymous with ‘risk of
immediate danger.’”
49
Electronic Control Devices Unique scenario where a successful party in the
Court of Appeals, sought certiorari in the
Supreme Court.
Supreme Court denied certiorari on October 3,
2016.
50
Qualified Immunity Developments
• The Supreme Court of the United States recently held:
In the last five years, this Court has issued a number of
opinions reversing federal courts in qualified immunity cases. The
Court has found this necessary both because qualified immunity is
important to society as a whole and because as an immunity from suit,
qualified immunity is effectively lost if a case is erroneously permitted
to go to trial.
White v. Pauly, 580 U.S. ---, 137 S.Ct. 548, 551-552 (Jan. 9, 2017) (internal
quotations and citations omitted) (per curiam).
51
Qualified Immunity Developments
• City and County of San Francisco v. Sheehan, 135
S.Ct. 1765 (2015).
• Johnson v. Jones, 515 U.S. 304 (1995)
vs.
• Behrens v. Pelletier, 516 U.S. 299, 312-313 (1996)
(“[d]enial of summary judgment often includes a
determination that there are controverted issues of
material fact and Johnson surely does not mean that
every such denial of summary judgment is non-
appealable.”).
52
Body Cameras
• Issues and Solutions:
– Legal
– Administrative
– Operational
– Labor
• Concerns with:
– Collecting
– Storing
– Using
– Disseminating
53
Body Cameras Some Items to Consider: •Citizen Privacy Concerns
•Obtaining grants for body-worn cameras
•Location of camera(s)
•Developing policy (i.e., activation, downloading, disciplinary issues)
•Identifying collective bargaining/labor concerns
•Identifying First Amendment concerns (what can be recorded and then released?)
•Handling Freedom of Information Act (FOIA) or Wisconsin Open Records requests
•Maintaining evidence credibility (spoliation, retention, redaction issues)
•Recording concerns (witnesses, juveniles, bathroom breaks, domestic situations, etc.)
•Storage concerns (1st and 2nd tier storage, hybrid) / Hacking Concerns
•Discipline concerns/Collective Bargaining Concerns
•Report writing concerns (view the video before or after writing reports)
•Training and performance-based testing
•Internal Affairs use of camera-based video and recordings
•How body-worn cameras can inhibit investigations
•Harassment and stalking issues
•Cameras and their impact on officer productivity
•Cameras and the need for specialized training
54
Municipal Liability Under 42 U.S.C. § 1983
Presented by
Rhonda R. Stowers
Seminal Decision
Monell v. Department of Social Services,
436 U.S. 658 (1978)
Held: that
Congress intended
municipalities to be
“persons” to whom
§ 1983 applies
58
Application
Does not apply to states and state entities
(11th Amendment immunity)
Primary question: Is the state
or a state entity being sued?
– Answer varies by state
Requires the deprivation of a federally
protected right
Continued
59
Application
If municipal official/employee is dismissed
because no violation occurred, no liability
If municipal official/employee was dismissed
because law was not clearly established,
liability is possible
No respondeat superior – cannot be held liable
solely because municipality employed a
tortfeasor, municipality must have caused the
constitutional violation through its own
policy/custom.
60
Policy / Custom
Official written policy or procedure causes
deprivation
Policymaker directs particular action causing
the deprivation
There is an omission of an obvious need
(i.e., failure to train/supervise).
There is obvious pattern/course of
(mis)conduct that is ignored (i.e., failure to
discipline).
61
Failure to Train /
Supervise / Discipline
Need for more/different
training, supervision,
and discipline so
obvious that failure to
do so constitutes
“deliberate
indifference:”
Continued
62
Failure to Train /
Supervise / Discipline
– requires pattern of behavior –single incident
will not establish liability unless actor was
policymaker
– question is whether failure rendered violation
inevitable, not whether there could have
been more/better training, supervision or
discipline
Continued
63
Failure to Train /
Supervise / Discipline
Is there a clear and persistent pattern of
unconstitutional conduct?
Did municipality have notice/constructive
notice?
Did municipality expressly/tacitly approve of
conduct?
Was it the cause of the violation?
64
Deliberate Indifference
Stringent standard of
fault
Sloppy/reckless is
insufficient
Mere negligence is insufficient
Must disregard a known/obvious
consequence
65
Note: Supervisory Liability
Individual liability possible for failure to
train/supervise
Supervisor not liable simply
because he/she is
a supervisor.
Continued
66
Note: Supervisory Liability
Mere awareness of conduct/failure to act is
not sufficient
Must have encouraged the specific
misconduct or directly participated
Standard of liability even higher than
municipal liability – personal involvement
67
Tips for Successful Defense
Document training/discipline
Investigate allegations of
misconduct – refer to outside
agency if appropriate
Encourage good report writing
Be aware of potential patterns of misconduct
Make good use of statistics
68
69