U.S. Supreme Court

Chemerinsky: Civil Rights Cases Will Face New Hurdles

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Erwin Chemerinsky

In a term filled with likely blockbuster decisions, two civil rights cases decided in January—one decided by an 8-1 vote and the other unanimous—are unlikely to receive much media attention. Each, though, is likely to make it much more difficult for civil rights plaintiffs to succeed. And each reflects a significant, though unstated, change in the law.

In Minneci v. Pollard, the U.S. Supreme Court held Jan. 10 that prison guards at private prisons contracting with the federal government cannot be sued for constitutional violations where state tort law provides a remedy.

In 1971’s Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court held that federal officers can be sued for money damages based on a cause of action inferred directly from the Constitution. The court emphasized the importance of allowing such a remedy; in the words of Justice John Marshall Harlan II, for those who suffer constitutional violations, it is often money damages or nothing. The court expressly rejected the argument that the availability of state tort remedies against federal officers was a basis for denying a federal cause of action.

In Minneci, though, the court said that no Bivens claim could be brought by a prisoner who suffered physical injuries and claimed an Eighth Amendment violation because state tort law provided some remedy, even though not the same as would be available in a Bivens action.

Justice Stephen G. Breyer, writing for the court, said: “Where, as here, a federal prisoner seeks damages from privately employed personnel working at a privately operated federal prison, where the conduct allegedly amounts to a violation of the Eighth Amendment, and where that conduct is of a kind that typically falls within the scope of traditional state tort law (such as the conduct involving improper medical care at issue here), the prisoner must seek a remedy under state tort law. We cannot imply a Bivens remedy in such a case.” Only Justice Ruth Bader Ginsburg dissented.

Private prisons operating under contracts with the government are increasingly common, and this will make it much more difficult for prisoners in facilities contracting with the federal government to sue.

But the court’s reasoning suggests an even greater significance to the case: for the first time, the court has said that the existence of state remedies can preclude a Bivens cause of action. In a number of cases, the court had said that the existence of a federal statutory remedy could preclude Bivens actions. But in Bivens, the court had rejected the argument that a state tort remedy was a reason to deny a federal cause of action for a constitutional violation.

The other recent case that may escape notice was decided without briefing or oral argument; instead, it was based just on the petition for and opposition to certiorari. In Ryburn v. Huff, decided Jan. 23, the court held that police officers were protected by qualified immunity when they entered a home without a warrant and without the permission of the occupants.

Government officials who are sued for money damages for constitutional violations—whether state and local officers under 42 U.S.C. § 1983, or federal officers in a Bivens action—may assert immunity as a defense. A few officers—such as prosecutors performing prosecutorial actions, judges performing judicial actions, and legislators performing legislative actions—have absolute immunity to suits for money damages.

All other officers have qualified immunity and may be held liable for their discretionary acts only if they violate clearly established law that a reasonable officer should know. The courts, though, have long struggled with how to determine that level.

In 2002’s Hope v. Pelzer, the court held that there does not need to be a case on point in order to overcome qualified immunity. Pelzer involved prison guards who tied a prisoner to a hitching post and left him in the hot sun for seven hours with almost no water and no access to a bathroom. The Atlanta-based 11th U.S. Circuit Court of Appeals ruled that the prison guards had engaged in cruel and unusual punishment in violation of the Eighth Amendment, but held that the guards were protected by qualified immunity because there was no case on point holding that this was unconstitutional.

The Supreme Court reversed and expressly held that a case on point is not necessary so long as officers have “fair warning” that their conduct is unconstitutional. Otherwise, of course, egregious unconstitutional actions would be shielded from liability if they had not been done before and thus had not been specifically disapproved by the courts.

However, in recent cases, without acknowledging it was doing so, the court has backed away from Pelzer and found qualified immunity because there was not a specific case on point.

For example, last term in Ashcroft v. Al-Kidd, the court held that the attorney general was protected by qualified immunity for authorizing a person to be held on a material witness warrant even though there never had been any desire to use the person as a material witness and there was no suspicion that the person had committed any crime.

The San Francisco-based 9th U.S. Circuit Court of Appeals had rejected qualified immunity, stressing that any government officer, let alone the attorney general, should know that detaining a person as a material witness when that was entirely a pretext violates the Fourth Amendment.

The Supreme Court reversed and, in an opinion by Justice Antonin Scalia, emphasized the absence of any case on point, holding that such use of the material witness statute violates the Constitution. Scalia wrote: “At the time of al-Kidd’s arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional.”

Similarly, in the recent Ryburn ruling, the court found qualified immunity based on the absence of a case on point. A rumor circulated in a high school that a student there had threatened violence. The police went to the boy’s home to investigate. The boy and his mother came out of the house and answered the police questions. The officer asked permission to enter the home, and the mother refused. When the mother entered the home, the police officer followed without permission and against her wishes. The officer said that his experience was that parents usually allow officers in their home when asked for consent. The police found no weapons or other contraband and ultimately concluded that the rumors about the boy were unfounded.

The 9th Circuit rejected qualified immunity. The Supreme Court, in a per curiam opinion, reversed. Once more, the court stressed the absence of decisions on point and said: “No decision of this court has found a Fourth Amendment violation on facts even roughly comparable to those present in this case.” The court said that its precedents had allowed police to enter a home when there was a fear of violence.

But those decisions had allowed police to enter when there was reason to believe that there might be violence in the home; here it was a only a rumor and there was no basis for suspicion other than the occupant of the home not wanting the police to enter.

The court, of course, has not overruled Pelzer. But it is notable that in neither of these cases is it cited; nor does the court focus on, what should be the central inquiry under Pelzer: Did the officer have fair notice that the conduct violated the Constitution? Requiring that the plaintiff have a case on point to overcome qualified immunity will create an obstacle for civil rights plaintiffs in many cases.

Perhaps the most important theme of the Roberts Court so far has been in making it harder for plaintiffs to go forward in federal court. From a practical perspective, its most significant ruling may be Ashcroft v. Iqbal, the 2009 ruling that increased the pleading burden on those wishing to sue in federal court. The two decisions from January fit this pattern and will create new obstacles for civil rights plaintiffs.

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

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