Civil Rights Law & Policy Blog

"Removing Malice from Federal 'Malicious Prosecution': What Cognitive Science Can Teach Lawyers About Reform"

The title of this post comes from this recent paper by Professor Sofia Yakren, the abstract of which states:

42 U.S.C. § 1983 (“§ 1983”) empowers individuals suffering civil rights abuses at the hands of state actors to seek recourse in federal court. The statute was enacted in response to southern states’ failure to control the Ku Klux Klan, and it has increasingly become a vehicle for federal reform of unconstitutional state and local government practices. Nationwide, state criminal justice systems cry out for such ex-post reform, as they continue to generate wrongful convictions at unacceptable rates with no notable preventative measures in place. 

“Malicious prosecution” claims brought under § 1983 are a common mechanism for redressing state-driven wrongful convictions, but this article asserts that they are not meeting their full reform potential. A plurality of federal courts erroneously requires plaintiffs to prove malice in support of such claims. While, superficially, the requirement comports with the “malicious” prosecution nomenclature, the nomenclature itself is misleading. Federal malicious prosecution claims are based on the Fourth Amendment, the purpose of which is to hold state defendants accountable for objectively unreasonable acts – not intentional, or malicious, ones. 

In abandoning the Fourth Amendment’s purpose, the offending courts have also ignored the real causes of wrongful convictions and, therefore, have failed to further true reform. Research shows that the vast majority of wrongful convictions are driven – not by malice – but by cognitive biases that cause inaccurate perceptions and objectively unreasonable decision-making. Although unintentional and often unconscious, cognitive biases may be ameliorated through education, exposure to divergent views, and reform of systemic factors that trigger and exacerbate bias. Reframing § 1983 relief for wrongful conviction as a question of objective unreasonableness rather than malice would tie liability more closely to: (1) non-malicious cognitive errors that frequently taint state actors’ decisions during criminal proceedings, and (2) states’ failure to implement cognitive error-neutralizing practices. This change to the legal standard, accompanied by close consideration of cognitive science, has the potential to enhance plaintiffs’ access to compensation and to require state reform of the true systemic causes of many wrongful convictions.

'Correctional Officer Excessive Use of Force: Civil Liability Under Section 1983'

The title of this post comes from this intriguing study recently published by the The Prison Journal, the abstract of which states:

Despite recent research demonstrating the impact of inmate perceptions of correctional legitimacy on order maintenance, the extant literature has failed to examine the contextual reality of correctional excessive use of force claims. Utilizing legal cases from the U.S. Court of Appeals and U.S. District Courts, this article examines correctional officer excessive use of non-deadly force and identifies recurring themes in these claims. Findings highlight the common occurrence of retaliatory violence, negative attitudes, failure to listen to inmate concerns, inadequate training, and an inability to decipher reliable threat cues consistently present in correctional officer use of non-deadly force claims. Suggestions for future research and policy implications are offered.

"Qualified Immunity and Statutory Interpretation"

The title of this post comes from this recent paper, the abstract of which states:

Before the 1989 case of Graham v. Connor, excessive force cases were pursued under either state law or the insuperable “shocks the conscience” test of the Fourteenth Amendment. Only after Graham did excessive force cases — now under the Fourth Amendment and 42 U.S.C. § 1983 — inundate the federal courts, which had by then granted far-reaching immunities to officers for their constitutional torts. As a result of federal qualified immunity doctrine, which many states have adopted for themselves, excessive force cases rarely get to trial, plaintiffs often cannot recover, and courts struggle to find principled distinctions from one qualified immunity case to the next.

Part II of this Article describes the evolution of this qualified immunity doctrine and demonstrates how common law immunities were traditionally held to have been incorporated into § 1983 by the Congress of 1871 as a matter of statutory interpretation. It claims that only when the Court began hearing federal Bivens actions and created an immunity doctrine untethered from statutory interpretation, the common-law approach was lost and the modern, nearly insurmountable qualified immunity doctrine was adopted. 

Part II thus establishes the historical importance of common-law interpretation to § 1983 suits. Part III then shows how differently excessive force cases would have to be treated were the court to return to the common law interpretive methods in § 1983 cases. At common law, excessive force actions were quite common and more liberal toward plaintiffs seeking redress; officers were expected to pay damages for any unnecessary force; and it was the province of the jury to determine such questions. Parts IV-V then make the theoretical case under both constitutional and statutory interpretation for replacing modern qualified immunity doctrine with a return to its common law variety in excessive-force actions, an approach that would also be far more judicially workable than the current doctrine.

Qualified Immunity and Statutory Interpretation

The title of this post comes from this recent paper arguing that SCOTUS's decision in Graham v. Connor created a new qualified immunity jurisprudence--a shift from the common-law approach to qualified immunity in excessive force claims to the current federal doctrine, which is substantially less protective of plaintiffs. Specifically, it argues for a return to the former method. Here's the abstract:

Before the 1989 case of Graham v. Connor, excessive force cases were pursued under either state law or the insuperable “shocks the conscience” test of the Fourteenth Amendment. Only after Graham did excessive force cases — now under the Fourth Amendment and 42 U.S.C. § 1983 — inundate the federal courts, which had by then granted far-reaching immunities to officers for their constitutional torts. As a result of federal qualified immunity doctrine, which many states have adopted for themselves, excessive force cases rarely get to trial, plaintiffs often cannot recover, and courts struggle to find principled distinctions from one qualified immunity case to the next.

Part II of this Article describes the evolution of this qualified immunity doctrine and demonstrates how common law immunities were traditionally held to have been incorporated into § 1983 by the Congress of 1871 as a matter of statutory interpretation. It claims that only when the Court began hearing federal Bivens actions and created an immunity doctrine untethered from statutory interpretation, the common-law approach was lost and the modern, nearly insurmountable qualified immunity doctrine was adopted. 

Part II thus establishes the historical importance of common-law interpretation to § 1983 suits. Part III then shows how differently excessive force cases would have to be treated were the court to return to the common law interpretive methods in § 1983 cases. At common law, excessive force actions were quite common and more liberal toward plaintiffs seeking redress; officers were expected to pay damages for any unnecessary force; and it was the province of the jury to determine such questions. Parts IV-V then make the theoretical case under both constitutional and statutory interpretation for replacing modern qualified immunity doctrine with a return to its common law variety in excessive-force actions, an approach that would also be far more judicially workable than the current doctrine.

CRL&P related posts:

• Civil rights groups want Texas schools rid of pepper spray and Tasers
• Excessive force claims under Fourth Amendment less protective when police use tasers?
• Don’t Daze, Phase, or Lase Me, Bro! Fourth Amendment Excessive-Force Claims, Future Nonlethal Weapons, and Why Requiring an Injury Cannot Withstand a Constitutional or Practical Challenge
• Don't tase me, Bro!
• Cop facing criminal charges, embroiled in civil rights lawsuit resigns

Excessive force claims under Fourth Amendment less protective when police use tasers?

In Shocking the Conscience: What Police Tasers and Weapon Technology Reveal about Excessive Force Law, Aaron Sussman argues that excessive force jurisprudence under the Fourth Amendment has tended towards providing less protection for citizens who make excessive force claims against 
police who have used tasers during an arrest. For such cases, Sussman prescribes a re-commitment to "the balancing standard" articulated by the Supreme Court in Graham v. Conner, 490 U.S. 386 (1989); and, (2) a more "reality-based approach" to qualified immunity claims. 

The Fourth Amendment protects "[t]he right of the people to be secure in their persons... against unreasonable searches and seizures[.]" According to the Graham Court, excessive force claims fall under the Fourth Amendment's protection against "unreasonable...seizures." Id. at 395.  Whether the use of a taser is "unreasonable" requires balancing "the nature and quality of the intrusion on the individual's Fourth Amendment interests [on account of being tased] against the countervailing governmental interests at stake." Id. at 396. (Internal quotations omitted). This inquiry "depends not only on when [a seizure] is made, but also on how it is carried out." Importantly, the Graham Court wrote: 

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene...With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced 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.

 

As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. 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. Id. at 396-97. (Internal citations and quotations omitted).

Susmann claims courts have demonstrated little actual fidelity to the Graham balancing test. "Courts are likely to misjudge both the individual’s and the government’s interests in taser cases," he writes, "because these cases involve poorly understood technology and less serious observable injury." He later adds,

Courts do not serve the mandates of Graham when they fail to acquire a sufficient understanding of what tasers actually do or of what is still unknown about what they do. In addition to obtaining an understanding of the use of force before deciding whether its use was reasonable, courts should presume that it would be unreasonable for officers to deploy a weapon without understanding its effects. Similarly, neither Graham nor fundamental Fourth Amendment principles are served by discounting plaintiffs’ experience of pain, emotional distress, and fear. Doing so will effectively turn weapons designed to inflict severe pain while minimizing tissue damage into tools for avoiding legal liability, a role they may already play given developments in qualified immunity doctrine.

Qualified immunity protects individual police officers from lawsuits arising from their actions in furtherance of an unconstitutional law or policy. According to Sussman, "Qualified immunity substantially advantages defendant police officers. The doctrine helps courts justify grants of summary judgment and provides defendants two opportunities to escape liability, both entailing their own pro-defendant" biases.

Here's the abstract to Shocking the Conscience:

Since Graham v. Connor, the U.S. Supreme Court’s 1989 opinion establishing the Fourth Amendment standard for assessing whether a police officer’s use of force was unconstitutionally excessive, the law has slowly developed through a body of narrow and fact-specific precedents that guide judges’ excessive force and qualified immunity analyses. Recently, the Ninth Circuit — the source of many of the most influential excessive force opinions — decided three contentious cases regarding when an officer’s use of a taser is unconstitutional. On one view, these cases raise novel questions about how to apply the Fourth Amendment standard for nontraditional and technologically advanced uses of force. In this Comment, however, I argue that these cases predominantly present issues that pervade all excessive force jurisprudence and illuminate judicial trends and tendencies disadvantaging plaintiffs while advantaging defendant officers. In light of this understanding, my proposal is not for new rules or standards in taser cases. Rather, I suggest that courts, first, faithfully apply Graham’s standard of balancing the nature and quality of the Fourth Amendment intrusion against the government’s interest in the officer’s use of force and, second, employ a reality-based approach in deciding whether the officer is entitled to qualified immunity. For courts to do this, excessive force jurisprudence must evolve to match the development of police weapons technology. That evolution includes fully understanding and considering the distinctive effects and risks posed by tasers and presuming that a reasonable police officer would have done the same.

Relatedly on CRL&P: 

• Don't tase me, Bro!
• Don’t Daze, Phase, or Lase Me, Bro! Fourth Amendment Excessive-Force Claims, Future Nonlethal Weapons, and Why Requiring an Injury Cannot Withstand a Constitutional or Practical Challenge 

Don’t Daze, Phase, or Lase Me, Bro! Fourth Amendment Excessive-Force Claims, Future Nonlethal Weapons, and Why Requiring an Injury Cannot Withstand a Constitutional or Practical Challenge

The title of this post comes from this paper by Professor Douglas McKechnie discussing excessive force under the Fourth Amendment. Here's the abstract:

This article suggests that requiring an injury in a Fourth Amendment excessive force claim is neither constitutional nor practical. The article has two components. First, it examines the requirement that an arrestee allege an injury to have a valid Fourth Amendment excessive force claim. The article explores the de minimis injury exception’s genesis in Fourth Amendment jurisprudence and discusses whether and how the circuit and district courts have implemented an injury requirement. The article demonstrates that an injury requirement in some circuits has created contradictory and confusing tests and exceptions. It then argues why an injury requirement is not supported by the Supreme Court’s seminal Fourth Amendment excessive force case. Second, the article discusses the technology of future non-lethal weapons as well as the physical and psychological impact on the weapons’ targets. The article posits that a de minimis injury exception to Fourth Amendment excessive force claims is impractical in light of the deceptively minimal harm these non-lethal weapons will cause.

Qualified Immunity and the First Amendment Right to Record Police

The title of this post comes from this article arguing that judges in First Amendment civil rights cases in which the plaintiff recorded public police activities should first determine the merits of the plaintif's claim. Only after the court has considered the merits should it proceed with defendants' claims to qualified immunity. Here's the abstract:

This draft article explores Pearson v. Callahan, 129 S. Ct. 808 (2009), in the context of recent nationwide litigation over the First Amendment right to record police officers in public. Pearson v. Callahan gives judges considering a qualified immunity defense to a civil rights lawsuit the discretion to never reach the merits of the lawsuit, deciding only that the right is not “clearly established.” The Court’s opinion in Pearson uprooted Saucier v. Katz, 533 U.S. 194 (2001), which required courts to address the merits before deciding whether a defendant is entitled to qualified immunity.

The doctrinal shift from Saucier to Pearson coincides with an increase in civil rights litigation nationwide concerning the First Amendment right to record police officers in public. Two recent Circuit Court cases, Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012) cert. denied, 133 S. Ct. 651 (U.S. 2012), and Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), have affirmed such a right. While the First and Seventh Circuits have laudably addressed the merits of whether the right exists, all other circuits to address the issue have decided only on immunity grounds, i.e. whether the right is “clearly established.” The focus on immunity has a chilling effect on free speech, in particular the role of citizens to oversee law enforcement officials. The article calls for a return to Saucier's merits-first adjudicatory model in First Amendment civil rights cases to avoid chilling such protected speech.

CRL&P related posts:

• The New Speech
• Occupiers file civil rights claim against Philadelphia PD
• Malicious Prosecution Claims in Section 1983 Lawsuits
• "Limbo is not as bad as hell, but it's sufficiently bad that it can't be written off completely."
• Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe
• Remembering Tinker: The right to vote as expressive conduct

 

Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe

The title of this post comes from this paper examining the Supreme Court's early interpretations of Section 1983 and how changed social circumstances influenced the outcomes of these cases. Here's the abstract:

Section 1983, enacted in 1871, famously provides a damages remedy against state and local government officials and local governments for violations of constitutional rights. But it was only in 1951, in the seminal decision of Tenney v. Brandhove, a legislative immunity case involving an admitted Communist, that the Supreme Court for the first time expressly interpreted the language of section 1983. Ten years later, in 1961, the Court handed down another seminalsection 1983 decision: Monroe v. Pape involved a section 1983 claim brought by an African-American alleging police misconduct. Both cases pitted two influential Supreme Court justices and FDR appointees, Felix Frankfurter and William Douglas, against one another in majority and dissenting opinions. Justice Frankfurter was an unremitting advocate of federalism, deference to politically accountable bodies, and judicial restraint. In contrast, Justice Douglas was an ardent proponent of individual rights who had relatively little concern for federalism.

I tell of the birth of section 1983 jurisprudence through the stories of these two cases. Their stories are contained in the papers of Justices Frankfurter and Douglas and in their majority and dissenting opinions. They are also contained in the parties’ petitions for certiorari and briefs and in Monroe’s oral argument. Finally, these stories can only be understood against the background of the political and social settings in which Tenney and Monroe arose. The Cold War and anti-Communist sentiment situate Tenney while the Civil Rights movement and the post-Brown era situate Monroe.

These stories are of interest both to section 1983 scholars and to historians of civil rights and constitutional law. First, Justice Frankfurter played an outsized role in both decisions. Second, these decisions demonstrate that the early and deep tension between individual rights and federalism — a tension that began with the Fourteenth Amendment and continues to this day — was present at the very beginning of the development of the Supreme Court’s section 1983j urisprudence. The certiorari petitions and briefs in these cases and the oral argument in Monroe also articulate this tension. Finally, the different political and social contexts in which Tenney and Monroe were decided illuminate the decisions themselves.

 

Malicious Prosecution Claims in Section 1983 Lawsuits

The title of this post comes from this note arguing that the Supreme Court wrongly decided in Albright v. Oliver, 510 U.S. 266 (1994), that malicious prosecution claims in Section 1983 actions are properly considered under the Fourth Amendment. Here is the abstract:

There is little certainty among the federal courts as to how the tort of malicious prosecution and 42 U.S.C. § 1983 interact. In Albright v. Oliver, the Supreme Court suggested that the Fourth Amendment was the proper vehicle for analyzing malicious prosecution claims in Section 1983 actions. But the continuing confusion among the lower courts is some evidence that the Court’s answer was unsatisfactory. This Note hopes to provide some clarity to this muddied area of the law and explain why the Court’s decision in Albright was wrong. Part I surveys the history of malicious prosecution and Section 1983, as well as the Supreme Court’s opinion in Albright and the subsequent circuit split among the Courts of Appeals. Part II then proceeds to explain why the Court’s decision to use the Fourth Amendment to incorporate malicious prosecution made little sense, and why the Fifth and Fourteenth Amendments provide better alternatives. It also examines the implications of using the different amendments, and whether it matters if these questions are resolved by federal courts. Finally, Part III analyzes two distinct claims made in the literature which rest on the premise that Albright was correct, and explains why there are critical flaws in each of these arguments.

 

CRL&P Morning Reads: Nov. 8, 2013

Although not charged, the Cleveland PD continue to hold a man's gun pursuant to a city ordinance that permits police to seize an arrestee's guns until a court orders their return.

House Republicans say they're worried about ENDA's effect on small businesses, and gay-rights advocates turn to President Obama urging him to sign an workplace anti-discrimination order. Crotia prepares to vote on whether to allow gay-marriage.

Secure email system used by Snowden now will work to create a new system that is immune from government surveillance.

LAPD arrests 54 Walmart protesters as more than 500 workers and community leaders gathered to protest the store's low wages.

Mother files suit against local school district alleging it ignored reports that an assistant principle repeatedly snuck her daughter out of her home for sex.

 

Charges filed against Skokie officer in videotaped jail cell incident

Earlier this month, CRL&P noted that a woman from Illinois had filed a civil rights lawsuit after a Skokie police officer shoved her face-first into a jailcell bench, causing serious injuries. Today, The Chicago Tribune reports that the police officer has been charged with aggravated battery and official misconduct. The title of this post comes from the article, which begins:

A Skokie police officer caught on video shoving a woman into a cell bench had become irate after she wouldn't look into the camera for her booking photo, according to prosecutors who have charged the officer with aggravated battery and official misconduct.

Officer Michael Hart pushed Cassandra Feuerstein so hard that it broke her eye socket, cut her cheek and loosened her teeth, prosecutors said. She needed reconstructive surgery to place a titanium plate in her cheek and still suffers vision problems and numbness in her face, her attorney said.

The charges came after Feuerstein's attorney, Torri Hamilton, filed a federal lawsuit this month alleging police brutality in the case and released a police video of the incident that attracted widespread attention on the Internet.

Cook County State's Attorney Anita Alvarez announced the charges Wednesday, saying her office takes the case "very seriously."

"It's pretty clear that he stepped over the line," Alvarez said. "Obviously (police officers) are there because of the public trust. ... It's a sad day when we have to announce charges against a police officer."

"Limbo is not as bad as hell, but it's sufficiently bad that it can't be written off completely."

Earlier this week, the Seventh Circuit Court of Appeals announced its decision in Billy Julian v. Sam Hanna, et. al., in which it reversed the district court's ruling that the plaintiff's 42 U.S.C. 1983 claim for malicious prosecution was not actionable because Indiana law provided adequate alternative remedies. Most circuits allow 1983 claims for malicious prosecution whether or not an available remedy exists under state law, but the Seventh Circuit is unique in this respect. Writing for majority, Judge Richard Posner explains: "We've held that a federal claim for malicious prosecution is actionable only if the state fails to provide an adequate alternative, whether called a claim of malicious prosecution or somethings else." The defendants claimed that tort remedies for false arrest and false imprisonment supplied adequate alternative remedies to those offered for malicious prosecution. Thus, the question was whether such alternatives were "adequate."

In this case, the plaintiff had been charged with arson, burglary, and attempted theft following a fire at a local public high school. He was sentenced to 15 years in prison. More than three years later, he was released after defense counsel presented evidence that one of the witnesses who had placed him at the crime scene had actually been at home on house arrest. But, he was not acquitted, and a retrial was scheduled in 2007. After repeated postponements, the charges were eventually dropped in 2010.

The plaintiff filed a lawsuit alleging malicious prosecution in violation of his right to due process under the Fourteenth Amendment against three Indiana police officers, the county sheriff, and the Town of Frankton, Ind. Specifically, one officer investigated the plaintiff "without lawful reason[.] Also, police officers coerced witnesses into accusing the plaintiff of starting the fire. According to the court, "The defendant officers knew the accusations were false--the officers had fabricated them and fed them to the witnesses."

The district court dismissed the plaintiff's claim on the grounds that state law provided an adequate alternative remedy, which foreclosed the plaintiff's section 1983 claim. 

The Seventh Circuit reversed. The court held that available tort remedies for false arrest and false imprisonment are not adequate alternatives for malicious prosecutions claims. According to the court,

[Plaintiff] would be able to recover for those torts on the damages he sustained during the week or so that he was detained before being formally charged. These damages would be only a fraction of the total damages attributable to his malicious prosecution, for those damages accumulated over the entire period that began with his arrest and ended only when the charges against him were dismissed--a period of 9 years and 3 months. Throughout this period, when he was not actually in prison he was (or so he alleges, and quite plausibly) tormented by fear of being imprisoned or re-imprisoned and unable to obtain employment. (Internal citations omitted).

The court rejected the defendant's claim that Indiana law provides "no remedy for malicious prosecution by Indiana public officers, leaving the defendant remediless if he manages to avoid jail or prison for any of the time during which he's being maliciously prosecuted." According to the court: "Limbo is not as bad as hell, but it's sufficiently bad that it can't be written off completely." Because there was no adequate alternative remedy for the alleged civil rights violations, the plaintiff's section 1983 claim was actionable; the lower court decision was reversed.

The court remanded the case for further proceedings.

CRL&P Daily Reads: Oct. 23, 2013

Law professor claims he was retaliated against for reporting sexual harassment of students and staff

Ohio S.Ct. rules that governor's pardon does not automatically seal records of the crime

Chicago Tribune editorial calls for state lawmakers to vote on legalizing same-sex marriage

NYPD face civil rights lawsuits in shootings of three emotionally disturbed people