On Wednesday, the Seventh Circuit held that officers who detained a police sergeant without a warrant were entitled to qualified immunity. In Mucha v. Jackson, No. 14-3619, 2015 WL 3397026 (7th Cir. May 27, 2015), at the request of a public retirement system, a psychiatrist examined a police sergeant who had not reported to duty for seven months. In a report three weeks later, the psychiatrist stated that the sergeant was threatening to shoot police commanders and could not be sent back to work. The police department received the report a couple weeks after that. Two officers then went to the sergeant’s home, handcuffed him without an arrest warrant, drove him to a mental health facility, and signed an emergency detention form. The facility held the sergeant for three days. 

The sergeant sued, alleging in part that two officers who detained him did so without warrant or other justification in violation of the Fourth Amendment. The district court denied these officers’ motion for judgment on the pleadings with respect to their claim for qualified immunity but the Seventh Circuit reversed. It dismissed the two officers, finding they were not violating clearly established law. 

The Seventh Circuit held that a state law cannot preempt the Fourth Amendment, but it can establish a standard of conduct consistent with the amendment but particularized to a specific situation. The sergeant’s statements to the psychiatrist, the psychiatrist’s report, and the sergeant’s access to guns gave the arresting officers probable cause to believe he was mentally ill and posed a danger to himself and other officers, consistent with their state’s emergency detention statute. And though the sergeant had made these statements to the psychiatrist a month before the police acted, they were recent enough for the statute’s requirement of showing recent threats or attempts. The Seventh Circuit did not decide whether the police would have been deemed reasonable without the state detention statute, but, it wrote, “we imagine that they would have been.”

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On Thursday, the Seventh Circuit held that 42 U.S.C. 1981 does not protect against religious discrimination. In Lubavitch-Chabad of Ill., Inc. v. Nw. Univ., No. 14-1055, 2014 WL 5762937 (7th Cir. Nov. 6, 2014), Northwestern University conducted an investigation into underage alcohol consumption at a religious house that was presided over by a rabbi and was affiliated with the university. Following this investigation, the university (1) terminated its affiliation with the religious house and (2) ended the rabbi’s role as kosher food consultant to the university’s food service provider. The rabbi and his religious organization sued the university and two of its officials, claiming these acts were motivated by anti-Semitism and violated two federal antidiscrimination statutes, 42 U.S.C. 1981 and 42 U.S.C. 2000d.

The district court granted summary judgment in favor of the defendants. On appeal, the plaintiffs dropped their challenge to the dismissal of the Section 2000d claim. As to the Section 1981 claim, the plaintiffs argued that the disaffiliation was motivated by hostility against the plaintiffs’ Jewish sect, not by hostility to ethnic Jews. The Seventh Circuit affirmed.

The Seventh Circuit found that both the university’s affiliation with the religious house and the rabbi’s food consulting were contractual. But it observed that there is no mention of religious discrimination in Section 1981, which provides that all persons “shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” The Seventh Circuit wrote that the only difference between 42 U.S.C. 1981 and 1982 is that one deals with contracts and the other with property—neither refers to discrimination on the basis of religious identity, beliefs, or observances. Therefore, it wrote, the Supreme Court’s ruling in Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987), that Section 1982 protects only groups defined by “their ancestry or ethnic characteristics” applies equally to Section 1981. Accordingly, the Seventh Circuit held that Section 1981 does not protect against discrimination based on religion.

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The Seventh Circuit has issued an opinion in City of Greenville, Illinois, v. Syngenta Crop Protection LLC, which limits the presumption of public access to non-privileged documents filed with a court to only those documents that influenced or underpinned a judicial decision. 

In City of Greenville, environmental groups intervened to seek access to the defendant's internal emails and business deliberations that plaintiffs had filed in opposition to a motion to dismiss. A protective order entered by the district court did not apply to materials filed in connection with a dispositive motion. The Seventh Circuit refused to permit access to uncited documents that were not considered by the district court in ruling on the motion to dismiss explaining "the presumption of public access turns on what the judge did, not on what the parties filed."  Because the documents did not affect the district court's decision, the Seventh Circuit held they need not be disclosed to the public. 

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On Monday, the Seventh Circuit affirmed two jury-selection decisions in a Section 1983 wrongful arrest lawsuit. In Marshall v. City of Chicago, No. 13-2771, 2014 WL 3892562 (7th Cir. Aug. 11, 2014), officers placed the plaintiff under arrest and took him into custody for constructively possessing a firearm while it was unlawful for him to do so. The plaintiff then sued for damages on the theory that the arrest was not supported by probable cause. The civil jury returned a defense verdict, and the plaintiff appealed. The decision is available here

On appeal, the plaintiff argued that the district court abused its discretion by denying his motion to excuse a prospective juror for cause on the grounds that she held a prior belief concerning the possession of firearms by convicted felons which made her unfit to serve. The Seventh Circuit wrote that a district court must apply a two-step process in determining which prior beliefs warrant for-cause dismissal: (1) does the prospective juror manifest a prior belief that is both material and “contestable,” meaning a rational person could question its accuracy and (2) if so, can the juror suspend that belief for the duration of the trial? The Seventh Circuit found that the bias alleged by the plaintiff was immaterial and that the juror’s exchanges with the trial court judge confirmed her ability to disregard her own prior experience and judge the case on the basis of the evidence brought before her.

Second, the plaintiff argued that the district court erred by refusing to agree to an ad hoc alteration of the parties’ agreed-upon jury selection procedures for the express purpose of ensuring that the petit jury would include jurors of a certain race. The parties had agreed, prior to trial, to try the case to a jury of eight, which would be selected from a venire of twenty. The order in which veniremen were called for voir dire was randomly assigned, with no knowledge of race, by the clerk’s office. Of the first fourteen veniremen called, none of the twelve whom were not excused for cause were black. At that point, a petit jury of eight (non-black) jurors had been selected. Counsel for the plaintiff, who is black, noticed that three of the six remaining veniremen were also black, and moved the court to expand the size of the petit jury to ten “in the hope of getting one of the persons of color on the jury.” The defendants objected and the court denied the plaintiff’s request. The Seventh Circuit wrote that it is established that a litigant has no right to a petit jury which contains members of his race or which fairly represents a cross-section of the community. It further wrote that a litigant does have a right to a jury venire composed of a fair cross-section of the community, but the plaintiff did not challenge the composition of the venire. And it wrote that the plaintiff also had a right to see that no state actor intentionally excluded any person from the petit jury on account of their race, but he did not claim that any state actor acted in such a way.

The Seventh Circuit affirmed the district court on both issues, finding the plaintiff’s arguments meritless and finding no abuse of discretion.

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An attorney's fees award to prevailing defendants under 42 U.S.C. 1988 is relatively uncommon, at least more uncommon than fee awards to prevailing plaintiffs.  But this week in Carter v. Inc. Village of Ocean Beach, the Second Circuit affirmed a fee award to certain defendants where the plaintiffs' claims were frivolous.

Plaintiffs are five former seasonal and part-time police officers who were employed - and terminated - by a village in New York State.  They filed suit against numerous village and county defendants, alleging a variety of federal constitutional claims as well as state law claims pertaining to their termination.  The plaintiffs voluntarily dismissed some claims, the district court dismissed other claims on summary judgment, and the court declined to exercise supplemental jurisdiction over the remaining claims, which were state law claims.  The plaintiffs re-filed their state claims in state court, which dismissed all claims against the county defendants.

In the federal action, the county defendants moved for, and were awarded, attorney's fees pursuant to section 1988, to the tune of almost $64,000.  Under fee shifting statutes like section 1988, prevailing plaintiffs are ordinarily awarded attorney's fees.  But prevailing defendants are awarded fees only if the action was frivolous.  At issue on this appeal was whether the action was frivolous, and whether the defendants could be considered prevailing parties given that the claims were disposed of in various ways.

The Second Circuit had no problem finding the action frivolous, making it abundantly clear to the plaintiffs that they never should have filed suit against the county defendants because the county had nothing to do with the village's hiring or firing practices.  As for the prevailing party aspect of the analysis, to prevail for purposes of attorney's fees, a party must have gained through the litigation a material alteration of the parties' legal relationship.  A voluntary dismissal with prejudice is such an alteration because the action cannot be filed again.  Here, the plaintiffs voluntarily dismissed some claims, had other claims dismissed on summary judgment by the district court, and had the remaining claims dismissed by the state court.  Since there was no chance for any of the claims to be relitigated, there was indeed a material alteration of the parties' legal relationship and thus the defendants were properly considered prevailing parties.

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Yesterday, the Seventh Circuit ruled that Indiana’s statute regarding who may solemnize a marriage violates the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment, reversing the lower court’s decision. In Center for Inquiry, Inc. v. Marion Circuit Court Clerk, No. 12-3751, 2014 WL 3397217 (7th Cir. July 14, 2014), the Center for Inquiry filed suit under 42 U.S.C. § 1983 contending that Indiana’s marriage-solemnization statute violates the Constitution’s First Amendment, applied to the states through the Fourteenth Amendment, by giving some religions a privileged role. The statute specifies who may perform the final steps that unite persons who hold marriage licenses. The list includes religious officials designated by religious groups, but it omits equivalent officials of secular groups such as humanist societies. 

The Seventh Circuit wrote that three states (Florida, Maine, and South Carolina) authorize humanists to solemnize marriages by becoming notaries public, but Indiana does not (notaries cannot perform marriages in Indiana)—nor does it provide any other way for private secular groups to exercise this authority. Four states (Alaska, Massachusetts, Vermont, and Virginia) allow anyone to solemnize a marriage, and another six (Colorado, Kansas, Montana, Pennsylvania, New York, and Wisconsin) allow the couple to solemnize their own marriage, but neither option is available in Indiana. For hundreds of years, in the legal tradition that we inherited from England, the persons who could solemnize marriages included clergy, public officials, sea captains, notaries public, and the celebrants themselves. When Indiana codified the list in 1857 it left off captains, notaries, and the marrying couple, though it included some religious groups (and added some other religious groups later). 

The Center for Inquiry is a nonprofit corporation that describes itself as a humanist group that promotes ethical living without belief in a deity. The Center seeks to show, among other things, that it is possible to have strong ethical values based on critical reason and scientific inquiry rather than theism and faith. The Center maintains that its methods and values play the same role in its members’ lives as religious methods and values play in the lives of adherents. The Center would be satisfied if notaries were added to the list; nothing in humanism makes it inappropriate for a leader (or any other member) to be a notary public.

In the lawsuit, Indiana stated that a humanist group could call itself a religion, which would be good enough for the state. It also noted that a humanist celebrant could conduct an extra-legal ceremony, which the not-yet-married couple could follow up with a trip to the local court to have the clerk perform a legally effective solemnization. The Center and its Indiana leader, who is also a plaintiff, find these options unacceptable; they are unwilling to pretend to be something they are not or pretend to believe something they do not; they are shut out as long as they are sincere in following an ethical system that does not worship any god, adopt any theology, or accept a religious label.

The Seventh Circuit observed that the Supreme Court has forbidden distinctions between religious and secular beliefs that hold the same place in adherents’ lives. It also observed its own past holding that when making accommodations in prisons, states must treat atheism as favorably as theistic religion. What is true of atheism is equally true of humanism, it wrote, and as true in daily life as in prison.

The Seventh Circuit noted that the Supreme Court has addressed the long-established practice of opening legislative meetings with prayer, most recently in this year’s Greece v. Galloway, 134 S.Ct. 1811 (2014). But while these cases concern what a chosen agent of the government says as part of the government’s own operation, they do not concern how a state regulates private conduct. The Indiana marriage statute, by contrast, is regulatory. So although a government may, consistent with the First Amendment, open legislative sessions with Christian prayers while not inviting leaders of other religions, a state cannot limit the solemnization of weddings to Christians, while excluding Judaism, Islam, Buddhism, and—humanism.

Reversing the lower court decision, the Seventh Circuit remanded with instructions to issue an injunction allowing certified secular humanist celebrants to solemnize marriages in Indiana—to do this with legal effect, and without risk of criminal penalties. It wrote, however, that if Indiana amends its statute to allow notaries to solemnize marriages, the district court should be receptive to a motion to modify the injunction to minimize the extent to which a federal decree supersedes the state’s own solution to the problems the Seventh Circuit has identified.

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On June 27, 2014, the Seventh Circuit found that two Fourth Amendment excessive force claims were compatible with Heck v. Humphrey, 512 U.S. 477 (1994), reversing the court below on this issue. In Green v. Chvala, No. 13-3568, 2014 WL 2925182 (7th Cir. June 30, 2014), the plaintiff sued two law enforcement departments and several of their officers for excessive force in violation of the Fourth Amendment. The district court concluded that the plaintiff’s principal claims against two officers using force were barred by Heck, relying on the plaintiff’s conviction for recklessly endangering safety, which stemmed from the same course of events underlying his civil suit. But finding these claims to be compatible with Heck, the Seventh Circuit vacated the lower decision in part and remanded.

Under Heck, to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a Section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. Heck states that an example of a Section 1983 action that does not seek damages directly attributable to conviction or confinement but whose successful prosecution would necessarily imply that the plaintiff’s criminal conviction was wrongful would be the following: A state defendant is convicted of and sentenced for the crime of resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest. He then brings a Section 1983 action against the arresting officer, seeking damages for violation of his Fourth Amendment right to be free from unreasonable seizures. To prevail in this Section 1983 action, he would have to negate an element of the offense of which he has been convicted. Regardless of the state law concerning res judicata, the Section 1983 action will not lie.

Because Heck can be an important Section 1983 defense, it is important to be aware of the Seventh Circuit’s limitation of Heck as a claims bar in Chvala.

In Chvala, the facts assumed true on appeal were that the plaintiff was pulling away from a stop sign when a defendant officer approached in a squad car and activated its lights. The plaintiff pulled into a nearby lot, promptly backed out of it, and slowly drove past the squad car. The officer responded by opening fire on the plaintiff’s car, and bullets shattered the passenger and back windows. Fearing for his life, the plaintiff then sped away. Later that day, two officers apprehended the plaintiff, now on foot, at gunpoint. While the plaintiff was lying motionless and handcuffed on the ground, a defendant officer came over and kneed him in the ribs as the other officers watched. Several months later the plaintiff pleaded no contest and was convicted of a Wisconsin statute for “second degree recklessly endangering safety” for conduct committed on the date of his arrest.

The plaintiff sued based upon the shooting, the kneeing, other officers’ failure to stop the kneeing, and departmental failure to train on proper force. At screening the district court dismissed each of the plaintiff’s claims for failing to state a claim for relief under Section 1983. First, the district court concluded that the plaintiff’s excessive-force claim against the shooting officer was barred by Heck because the plaintiff’s allegation that he posed no immediate safety threat (thus making the use of deadly force unreasonable) could not be reconciled with the plaintiff’s conviction for recklessly endangering others. Concerning the plaintiff’s claim against the kneeing officer, and against the other officers for not stopping the kneeing, the district court concluded that the force was justified. It reasoned that the officers could anticipate further resistance from the plaintiff given his recent flight, which Heck prevented the plaintiff from denying. Lastly, the district court concluded that the plaintiff’s claims against two law enforcement departments must be dismissed because neither had the legal capacity to be sued.

On appeal, the plaintiff first argued that his excessive-force claim against the shooting officer was compatible with his conviction for two reasons. First: the shooting officer shot at his car before he sped off in a manner that, according to the conviction, was reckless. Second: because he pleaded no contest under North Carolina v. Alford, 400 U.S. 25 (1970), he did not admit to reckless driving.

The Seventh Circuit observed that the plaintiff’s Alford plea did not nullify the Heck bar or its application to reckless driving. Like any plea, an Alford plea resulted in a conviction to which Heck applies. Moreover, under Heck, the plaintiff could not pursue any claim that would necessarily imply the invalidity of his conviction. The plaintiff was convicted of recklessly endangering others by speeding away from the officer, and an officer may reasonably use deadly force when a suspect poses a threat of serious physical harm, either to the officer or to others. Thus, Heck would bar any allegation that the shooting officer used excessive force after the plaintiff began driving recklessly under the state statute of his conviction.

But the Seventh Circuit found that Heck did not bar the plaintiff’s claim against the shooting officer because, construing his allegations liberally, he was alleging that the shooting officer used deadly force before the reckless driving that led to his conviction. The plaintiff alleged that the shooting officer fired at him as he slowly drove past the shooting officer, before he sped away. The Seventh Circuit ruled that Heck does not bar that claim because, if it did, then resistance that did not jeopardize safety, such as the low-speed driving that the plaintiff described, would invite the police to inflict any reaction or retribution they choose. The Seventh Circuit cautioned, though, that the plaintiff survived Heck only if, as his complaint implied, the conviction was for conduct that occurred after the shooting.

In any case, the Seventh Circuit found there had been no seizure under the Fourth Amendment because if, as the plaintiff contended, he sped away after the officer fired the second shot, then he was not seized by that force because he was not stopped by the very instrumentality set in motion or put in place to achieve that result. However, because the plaintiff alleged that the officer shot at his slowly moving car, not to enforce a government interest, but to kill him, the Seventh Circuit found that the allegations stated a Fourteenth Amendment claim.

Regarding the plaintiff’s claim against the kneeing officer, the Seventh Circuit found that the plaintiff stated a claim for relief against the kneeing officer because he had alleged that the kneeing officer applied significant force after he was unable to resist arrest. 

As to the other defendants, the Seventh Circuit found that the officers who watched the plaintiff get kneed in the ribs were not liable because the plaintiff asserted that he was kneed just once, so there was no chance for other officers to step in and no need to warn the kneeing officer to stop. And the Seventh Circuit affirmed the lower decision that the named law enforcement departments could not be sued under Section 1983 because they were departments of government units.

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Harris v. Quinn

Posted on July 2, 2014 08:52 by Tim Coates

In Harris v. Quinn, 11-681, the United States Supreme Court, by a 5-4 vote, struck down an Illinois law requiring home healthcare workers paid with Medicaid funds to belong to a public employee union or pay an agency fee equivalent to union dues to support the union. The court held that requiring the home healthcare workers to belong to, or support a public employee union violated their rights of free association and expression under the First Amendment in that it required them to fund and support union activities, including lobbying activities with which they might not agree. 

In so holding, the court distinguished its prior decision in Abood v. Detroit Board of Education, 431 US 209 (1977) where the court had held that public employees could be required to pay union dues, even if not union members, so long as they were provided with a refund of the union dues reflecting an amount that had been expended by the union of for lobbying activity, as opposed to activities that benefit all workers, such as negotiation of wages and working conditions. In Harris, the court emphasized that unlike in Abood, the home healthcare workers at issue were essentially not public employees at all, with the state merely providing their wages via Medicaid, but with individual employers supervising their work and determining their working conditions on a day-to-day basis. The court concluded that the state could not demonstrate a compelling interest served by the mandatory union fee provision sufficient to offset the significant imposition on the home healthcare workers’ rights to free speech and association under the First Amendment. Since the union provided little more than wage and benefit negotiation, with the balance of work-related conditions left to individual employers of the home healthcare workers, the state was unable to show that dues paid by willing union members were insufficient to fund the relatively limited union activities that benefitted all home healthcare workers. As a result, there was no justification to impinge on the First Amendment rights of non-union members by requiring them to fund the union and its activities.

Harris is significant for two reasons. First, it may spawn challenges to similar mandatory agency fees paid by non-member public employees to unions, with the success of any challenge likely centering on the degree to which the government employer actually controls the day to day activities of the individual employee, and hence the degree to which the unions activities actually benefit the non-member employees. Second, the majority all but overrules Abood, making it clear that its prior decision rests on shaky grounds, thus inviting an outright challenge to Abood which would jeopardize the ability of public employee unions to compel non-members to fund any aspect of union activity, including collective bargaining and other measures that directly concern working conditions and wages. If Abood is eventually overruled, it would be a substantial blow to public employee unions.

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At Thursday's weekly conference, SCOTUS will discuss the petition for writ of certiorari in Myers v. Koopman. The issue raised in this case has two parts: "(1) whether a malicious prosecution claim under § 1983 exists under the Fourth Amendment against an investigating detective; and (2) whether Wallace v. Kato applies to a § 1983 malicious prosecution claim under the Fourth Amendment not involving a conviction so that the applicable statute of limitations begins running when the claimant was detained pursuant to the arrest warrant."

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In a recent unpublished[1] opinion from the Seventh Circuit Court of Appeals (decided on May 21, 2014), the court relied on video evidence in affirming summary judgment for the defendant in a Section 1983 case.  In Rivera v. Jimenez, 2014 WL 2111145, the plaintiff, a Wisconsin inmate, alleged that a prison guard violated his constitutional rights by using excessive force and parading him naked in front of other inmates. The video, recorded by another guard, captured the entire series of events which begins with guards demanding that the plaintiff remove a towel draped over the window in his cell door.  Rather than comply, the plaintiff yelled profanities and threatened to fight anyone who entered the cell.  The guards shot pepper spray into the cell which prompted the plaintiff to remove the towel.  Plaintiff was strip searched and removed from the cell naked and taken to the shower to wash off the spray. The same guards returned the plaintiff (still naked) to a new cell. Each trip took about a minute.  The plaintiff then used the mattress to block the window again and refused to comply with orders  to uncover the window. In the process of removing plaintiff to a third cell, the plaintiff resisted by refusing to stand and walk. The guards pushed him into the third cell with their knees.

On summary judgment, the defense introduced a copy of the video along with affidavits from the guards involved. The district court held that the video foreclosed any possible claim against the guards.  On appeal, the plaintiff objected to the district court’s reliance on the video arguing it was “doctored” pointing out alleged discrepancies in the recording. The Seventh Circuit rejected the plaintiff’s accusation stating that the “video shows exactly what the district court said it does” and held that summary judgment “is appropriate when a video discredits the plaintiff’s version of events” relying on Scott v. Harris, 550 U.S. 372 (2007); Poole v. City of Shreveport, 691 F. 3d 624 (5th Cir. 2012); Thomas v. Durastanti, 607 F. 3d 655 (10th Cir. 2010) and Wallingford v. Olson, 592 F. 3d 888 (8th Cir. 2010).

The Seventh Circuit’s holding in Rivera demonstrates the power of video evidence and how it can be effectively used by the defense.

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