Skip navigation
CLN bookstore

Section 1983 Litigation, Karen Blum Journal Article, 2015

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
SECTION 1983 LITIGATION: THE MAZE,
THE MUD, AND THE MADNESS
Karen M. Blum*

INTRODUCTION
Some of us were there at the “founding,” and I don’t mean in 1871 when 42 U.S.C.
§ 19831 was originally enacted as the Ku Klux Klan Act,2 but in 1961, when the Court
decided Monroe v. Pape,3 a case that resurrected the statute as a viable remedy for
those whose constitutional rights were violated by officials acting under color of state
law. In Monroe, the Court held that conduct of an official who abused his authority or
even violated state law fell under the umbrella of the statute’s “under color of law”
language.4 Even more of us were there in 1978, when, in Monell v. Department of
Social Services,5 the Court overruled that part of Monroe that prohibited suits against
local government entities, holding that plaintiffs could indeed sue such entities, provided the constitutional wrongs were inflicted pursuant to official policy or custom.6
Monroe and Monell breathed new life into the long dormant statutory remedy and fostered an optimistic outlook for enforcement of civil rights. So, fifty-plus years after
Monroe, many of us are asking, “what went wrong?” There is a growing consensus
among practitioners, scholars, and judges that Section 1983 is no longer serving its
* Professor of Law, Suffolk University Law School.
1
42 U.S.C. § 1983 (2012) provides:
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, except that in any action brought against a judicial
officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated
or declaratory relief was unavailable. For the purposes of this section,
any Act of Congress applicable exclusively to the District of Columbia
shall be considered to be a statute of the District of Columbia.
2
17 Stat. 13 (1871).
3
365 U.S. 167 (1961), overruled on other grounds by Monell v. Dept. of Soc. Servs.,
436 U.S. 658 (1978).
4
Monroe, 365 U.S. at 181–82.
5
436 U.S. 658 (1978).
6
Id. at 690–91. Shortly after Monell, in Owen v. City of Independence, 445 U.S. 622
(1980), the Court clarified that immunities available to individual actors were not available
to local governments.

913

914

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

original and intended function as a vehicle for remedying violations of constitutional
rights, that it is broken in many ways, and that it is sorely in need of repairs.
Professor John C. Jeffries, Jr., someone who has been in the game from the beginning, has recently lamented the unintelligible, incoherent, inconsistent and nonsensical state of constitutional tort law.7 Professor Alan Chen, another long time player
in this area, notes that “[i]n the nearly fifty years that have passed since Monroe, the
Supreme Court has issued a series of decisions that have gradually diminished [Section]
1983 in ways that make damages recovery both costly and difficult.”8 In fact, Professor
Chen concludes that “[i]f the Court, Congress, and the academic community fail to
recognize the valuable role that [Section] 1983 damages claims play in [the broad
scheme of constitutional enforcement], then for many litigants, like their video game
counterparts, it is ‘game over.’”9
Plaintiffs who bring claims under Section 1983 can name as defendants the individual actors who are alleged to have engaged in unconstitutional conduct, whether
as “line” officers or as supervisors, as well as local government entities whose customs
or policies are alleged to have caused the injury.10 In each instance, barriers erected by
the Supreme Court will hinder a plaintiff’s ability to seek redress for harms caused by
even acknowledged violations of constitutional rights.11
The primary focus of this Article is on the befuddled jurisprudence surrounding the
defense of qualified immunity. I begin, however, with some brief observations about
both municipal and supervisory liability, just to underscore the difficulty of making out
those kinds of claims, and thus, assuming the Court’s continued dogged adherence to
the doctrine of no respondeat superior liability, the importance of providing plaintiffs
with a viable damages remedy against non-supervisory officials.
I. THE MAZE: CLAIMS AGAINST GOVERNMENT ENTITIES
While individual officers sued in their individual capacities for damages are
afforded the qualified immunity defense to protect from harassment and liability for
engaging in conduct that was not clearly unconstitutional, local governments may
7

See generally John C. Jeffries, Jr., The Liability Rule for Constitutional Torts, 99 VA. L.
REV. 207 (2013). See also John C. Jeffries, Jr., What’s Wrong with Qualified Immunity?, 62 FLA.
L. REV. 851, 852 (2010) (describing the “clearly established” law aspect of the qualified immunity doctrine as “a mare’s nest of complexity and confusion”).
8
Alan K. Chen, Rosy Pictures and Renegade Officials: The Slow Death of Monroe v. Pape,
78 UMKC L. REV. 889, 910 (2010).
9
Id. at 928–29.
10
See generally COLUM. HUM. RTS. L. REV., A JAILHOUSE LAWYER’S MANUAL 392–98
(9th ed. 2011), http://www3.law.columbia.edu/hrlrl;lm/chapter-16.pdf.
11
As Dean Erwin Chemerinsky noted, “[i]n recent years, the court has made it very difficult,
and often impossible, to hold police officers and the governments that employ them accountable
for civil rights violations.” Erwin Chemerinsky, How the Supreme Court Protects Bad Cops,
N.Y. TIMES (Aug. 26, 2014), http://www.nytimes.com/2014/08/27/opinion/how-the-supreme
-court-protects-bad-cops.html.

2015]

SECTION 1983 LITIGATION

915

be held liable for constitutional harm that can be shown to result from official policy
or custom, even if the right was not clearly established at the time of the challenged
conduct.12 But, the Court has remained steadfast in its rejection of respondeat
superior liability under Section 1983,13 so plaintiffs have to show that the entity itself
has caused the constitutional violation, not simply that the entity employs a constitutional tortfeasor. The Court has recognized basically four different ways a plaintiff
might establish local government liability:
1. Plaintiff may establish that her harm was caused by an application of an officially adopted unconstitutional policy.14
2. Plaintiff may establish that her harm was caused by an unconstitutional custom, usage, or practice.15
3. Plaintiff may attribute a single unconstitutional decision or
act of a final policymaker to the entity, taking caution to distinguish a final policymaker from a final policy-implementing
official or even a final decision maker.16
4. Plaintiff may establish that a failure to train, supervise, discipline, or adequately screen, while not itself unconstitutional,
12

See Erwin Chemerinsky, Chemerinsky: Hurt by a Government Official? SCOTUS is
Making it Harder and Harder to Sue, ABA J. (June 24, 2014, 1:40 PM), http://www.aba
.journal.com/news/article/chemerinsky_its_harder_to_sue_government_officials.
13
The Court in Monell rejected the concept of respondeat superior liability against local government entities under Section 1983. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978).
14
See, e.g., id. at 690 (The Department of Social Services and the Board of Education in
New York had a written, formal policy requiring pregnant employees to stop working at a
certain time, even if it was not medically necessary, and the plaintiff’s harm was clearly caused
by that policy); see also Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) (“A reasonable jury could find that Colwell was denied surgery, not because it wasn’t medically indicated, not because his condition was misdiagnosed, not because the surgery wouldn’t have
helped him, but because the policy of the NDOC is to require an inmate to endure reversible
blindness in one eye if he can still see out of the other.”).
15
While the Supreme Court has not decided a “custom or usage” case, the basis for such liability is recognized in the language of the statute itself. See supra note 1; Monell, 436 U.S.
at 694; see also Okin v. Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 439–40 (2d Cir. 2009)
(finding enough evidence to create an issue of fact as to whether the Village had a pattern or
practice of failing to adequately respond to domestic violence complaints).
16
See generally City of St. Louis v. Praprotnik, 485 U.S. 112 (1988); Pembaur v. City of
Cincinnati, 475 U.S. 469 (1986). See also Gschwind v. Heiden, 692 F.3d 844, 847 (7th Cir.
2012) (“In Illinois the school board is the ultimate policymaking body with regard to personnel
decisions. The school district’s superintendent, although the highest official of the school district,
is not a member of the board and does not have the ultimate responsibility for such decisions.”
(citations omitted)); Zarnow ex rel. Estate of Zarnow v. City Of Wichita Falls, 614 F.3d 161, 167
(5th Cir. 2010) (“There is a fine distinction between a policymaker and a decisionmaker. The
fact that an official’s decisions are final is insufficient to demonstrate policymaker status.”
(citations omitted)).

916

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

is deliberately indifferent to and the cause of a constitutional
violation by a non-policymaker.17
Municipal liability claims have become procedurally more difficult for plaintiffs
to assert since the Court’s imposition of a more stringent pleading standard in Bell
Atlantic Corp. v. Twombly18 and Ashcroft v. Iqbal,19 and even more challenging to
17

To demonstrate the requisite deliberate indifference, a plaintiff will usually be required to
show (1) a pattern of unconstitutional conduct that put policymakers on notice of the problem
and failure to take appropriate steps to redress the problem; or (2) if no pattern exists, a plaintiff
might be able to demonstrate that the need for more or different training was so obvious that
failure to provide such training can be said to be tantamount to deliberate indifference. See, e.g.,
Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997) (“In Canton, we did not foreclose the
possibility that evidence of a single violation of federal rights, accompanied by a showing that
a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation, could trigger municipal liability.”); City of Canton v. Harris,
489 U.S. 378, 390 n.10 (1989) (noting that liability of a municipality for failure to train may
be based on a single incident where the need for training was obvious, or based on a pattern
of constitutional violations that gave notice of a need for more or different training).
18
550 U.S. 544 (2007).
19
556 U.S. 662 (2009). Prior to Twombly and Iqbal, the Supreme Court had rejected a
“heightened pleading” requirement for Monell claims. See Leatherman v. Tarrant Cnty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (holding that a heightened pleading
standard that exceeds the pleading standard in the Federal Rules of Civil Procedure should not
be applied with respect to claims alleging municipal liability in Section 1983 cases). The Court
has recently relied on Leatherman when holding that “no heightened pleading rule requires plaintiffs seeking damages for violations of constitutional rights to invoke § 1983 expressly in order
to state a claim.” Johnson v. City of Shelby, 135 S. Ct. 346, 347 (2014) (per curiam). While
Leatherman has not been overruled by the Court, the majority of lower courts that have addressed the issue have agreed that the “plateau of plausibility which, under Iqbal and
Twombly, is the new normal[,]” applies to the pleading of municipal liability claims. A.G. ex rel.
Maddox v. Elsevier, Inc., 732 F.3d 77, 78-79 (1st Cir. 2013); see, e.g., Owens v. Baltimore City
State’s Attorneys Office, 767 F.3d 379, 403, 404 (4th Cir. 2014) (agreeing with the First Circuit’s analysis in Haley, and concluding that the complaint, though “couched in general terms,”
was sufficiently factual to state a plausible claim under Iqbal); AE ex rel. Hernandez v. Cnty.
of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (holding that the pleading standard announced in
Twombly and Iqbal applies to Monell claims); McCauley v. City of Chicago, 671 F.3d 611,
616 (7th Cir. 2011) (“To state a Monell claim against the City for violation of Mersaides’s right
to equal protection, McCauley was required to ‘plead[ ] factual content that allows the court to
draw the reasonable inference’ that the City maintained a policy, custom, or practice of intentional discrimination against a class of persons to which Mersaides belonged. He did not meet
this burden . . . . We have interpreted Twombly and Iqbal to require the plaintiff to ‘provid[e]
some specific facts’ to support the legal claims asserted in the complaint.” (citations omitted));
Haley v. City of Boston, 657 F.3d 39, 53 (1st Cir. 2011) (“[I]f the detectives intentionally suppressed the discoverable statements even when such activity was condemned by the courts
(as Haley has alleged), it seems entirely plausible that their conduct was encouraged, or at least
tolerated, by the BPD. Although couched in general terms, Haley’s allegations contain sufficient
factual content to survive a motion to dismiss and open a window for pretrial discovery.”).

2015]

SECTION 1983 LITIGATION

917

ultimately prove after the Court’s decision in Connick v. Thompson.20 In Connick, by
a five-to-four decision, the Court overturned a fourteen million dollar verdict for John
Thompson who had brought an official capacity or Monell claim against the Orleans
Parish District Attorney in Louisiana,21 based on a failure to train prosecutors as to
Brady obligations.22
John Thompson had spent eighteen years in prison, including fourteen years on
death row, when a private investigator discovered undisclosed blood-test evidence that
exonerated Thompson of an attempted armed robbery for which he had been convicted.23 Because of the possibility of impeachment from the robbery conviction,
Thompson chose not to testify at his trial for an unrelated murder, which trial also
resulted in conviction.24 When the robbery conviction was vacated and the murder case
was retried, a jury returned a verdict of not guilty.25 As a result, Thompson brought a
wrongful conviction suit against the Office of the District Attorney, claiming that the
failure to train assistant district attorneys as to their obligation to turn over exculpatory
or impeachment evidence caused the Brady violation that injured him. Even though ten
exhibits were disclosed at the retrial that had not been disclosed at the initial murder
trial, and even though, over a twenty-year period, no fewer than five different prosecutors had known about and failed to turn over the exculpatory blood-test evidence,26
the majority viewed this egregious conduct as a “single incident” and held that “[f]ailure to train prosecutors in their Brady obligations does not fall within the narrow
range of Canton’s hypothesized single-incident liability.”27 The majority underscored
that “[a] pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to
20

131 S. Ct. 1350 (2011).
Any possibility of an individual capacity suit for damages against Connick, the District Attorney, had been eliminated by the Court’s decision in Van de Kamp v. Goldstein, 555 U.S. 335
(2009), granting absolute immunity to prosecutors and supervising attorneys in such contexts.
22
See Brady v. Maryland, 373 U.S. 83 (1963).
23
Connick, 131 S. Ct. at 1355.
24
Id.
25
Id. at 1356–57.
26
Id. at 1376, 1378, 1384 (Ginsburg, J., dissenting).
27
Id. at 1361. In Canton, all of the Justices agreed that it would be deliberately indifferent
for city policymakers to provide no training on the constitutional limits of the use of deadly force
to armed police officers who are given authority to arrest fleeing felons. No pattern would be required, and a single constitutional violation caused by the failure to train where the need was so
obvious could result in municipal liability. City of Canton v. Harris, 489 U.S. 378, 390 n.10
(1989). The Court in Connick distinguished prosecutors from police officers in terms of legal education and training needs, concluding that “[a] licensed attorney making legal judgments,
in his capacity as a prosecutor, about Brady material simply does not present the same ‘highly
predictable’ constitutional danger as Canton’s untrained officer.” 131 S. Ct. at 1363. According
to the majority, “[t]he reason why the Canton hypothetical is inapplicable is that attorneys, unlike
police officers, are equipped with the tools to find, interpret, and apply legal principles.” Id.
at 1364.
21

918

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

train,”28 and observed that none of the four convictions that had been overturned due
to Brady violations in the 10-year period prior to Thompson’s robbery trial had “involved failure to disclose blood evidence, a crime lab report, or physical or scientific
evidence of any kind,” and thus, none could have put Connick on notice as to the need
for specific training to avoid the constitutional violation in Thompson’s case.29
Many trees have been destroyed by scholars, myself included,30 trying to parse and
explain the various theories for holding municipalities liable under Section 1983, always cautious about crossing the line the Supreme Court has drawn between vicarious
and direct liability. Justice Breyer’s call for a reexamination of “the legal soundness
of that basic distinction itself,”31 has gained little traction since he first made the
28

Id. at 1360 (citing Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397 (1997)).
Connick, 131 S. Ct. at 1360; see also Kitchen v. Dallas Cnty., 759 F.3d 468, 485 (5th Cir.
2014) (“[T]he record in this case contains no proof, whether in the form of expert evidence or
otherwise, that the extraction of mentally ill inmates from jail cells requires specialized training.”(footnote omitted)); D’Ambrosio v. Marino, 747 F.3d 378, 388 (6th Cir. 2014) (“In Connick,
four previous Brady violations were insufficient to alert the prosecutor’s office that another
Brady violation might occur in the future in the absence of corrective action. Here, the county’s
knowledge of only three prior instances in which only one of its prosecutors had made improper
comments at trial was less.”). But see Smith v. Connick, No. 13-52, 2014 WL 585616, at *4–5
(E.D. La. Feb. 14, 2014) (granting the plaintiff leave to amend his complaint to conform with
Connick, where “the violation of Brady concerned the sharing of exculpatory statements,” and
it was “undisputed that Defendants were aware of prior Brady violations regarding exculpatory
statements in Defendants’ office.”); Williams v. Sch. Town of Munster, No. 2:12-cv-225-APR,
2014 WL 1794565, at *4 (N.D. Ind. May 6, 2014) (“Courts have interpreted Canton and Connick
to hold municipalities liable when they have failed to provide any training, so long as the matter
on which they failed to train was not too nuanced.”); see also Thomas v. Cumberland Cnty., 749
F.3d 217, 225 (3d Cir. 2014) (finding “the case here is more similar to the hypothetical in Canton
than to the situation in Connick,” and concluding a jury could find deliberate indifference in failing to train corrections officers on conflict de-escalation and intervention); Chamberlain v.
City of White Plains, 986 F. Supp. 2d 363, 391 (S.D.N.Y. 2013) (“While some have argued that
the Connick decision so narrowed the single-incident theory as to essentially eliminate it, courts
across the country have continued to apply that theory post-Connick when its strict requirements
have been met.”).
30
See, e.g., Karen M. Blum, From Monroe to Monell: Defining the Scope of Municipal
Liability in Federal Courts, 51 TEMP. L.Q. 409 (1978) [hereinafter Blum, Monroe to Monell];
Karen M. Blum, Local Government Liability for the Enforcement of State Law, 41 MUN.
LAW. 7 (2000); Karen M. Blum, Municipal Liability and Liability of Supervisors: Litigation Significance of Recent Trends and Developments, 29 TOURO L. REV. 93 (2012); Karen M. Blum,
Municipal Liability: Derivative or Direct? Distinguishing the Canton Case from the Collins
Case, 48 DEPAUL L. REV. 687 (1999).
31
Bd. of Cnty. Comm’rs, 520 U.S. at 430 (Breyer, J., dissenting). This author was among
those who first criticized the rejection of respondeat superior liability in Monell. See Blum,
Monroe to Monell, supra note 30 (cited in Pembaur v. City of Cincinnati, 475 U.S. 469, 489–90
n.4 (1986) (Stevens, J., concurring in part and concurring in judgment)); see also Vodak v. City
of Chicago, 639 F.3d 738, 746 (7th Cir. 2011) (“For reasons based on what scholars agree are
historical misreadings (which are not uncommon when judges play historian), the Supreme
Court has held that municipalities are not liable for the torts of their employees under the
29

2015]

SECTION 1983 LITIGATION

919

suggestion.32 The area of municipal or entity liability has become, in the words of
strict-liability doctrine of respondeat superior, as private employers are.” (citations omitted));
Pinter v. City of New York, 976 F. Supp. 2d 539, 550 n.23 (S.D.N.Y. 2013) (“Pinter correctly
notes that questions have been raised about the accuracy of Monell’s analysis of Section 1983.
If it were within the province of a federal district court to question Supreme Court precedent
based on indications of dissension, I might be inclined to do so in this case. But this Court’s task
is to apply Supreme Court and Second Circuit law as it stands. As a result, I am constrained to
apply Monell and its progeny, although I add my voice to the chorus of those who would encourage the Supreme Court to revisit Monell’s analysis.” (citations omitted)).
32
Indeed, the rationale of Monell that Justice Breyer has called into question has been
mechanically applied by lower federal courts to private corporations sued under Section 1983.
See, e.g., Pyles v. Fahim, 771 F.3d 403, 410 n.23 (7th Cir. 2014) (“Although Wexford is a private corporation, we analyze claims against the company as we would a claim of municipal
liability.”); Rouster v. County of Saginaw, 749 F.3d 437, 453 (6th Cir. 2014) (“Private
corporations that ‘perform a traditional state function such as providing medical services to
prison inmates may be sued under § 1983 as one acting under color of state law.’” (quoting
Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996)) (internal quotation marks
omitted)). However, private corporations cannot be held liable on the basis of respondeat superior or vicarious liability. Id. at 818.”); Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th
Cir. 2012) (“Every one of our sister circuits to have considered the issue has concluded that
the requirements of Monell do apply to suits against private entities under § 1983. Like those
circuits, we see no basis in the reasoning underlying Monell to distinguish between municipalities and private entities acting under color of state law.” (citations omitted)).
For a thoughtful and refreshing opinion questioning the application of Monell’s “policy,
practice, or custom” requirement, with its concomitant rejection of respondeat superior liability,
to private corporations, see Shields v. Ill. Dept. of Corr., 746 F.3d 782, 789–92 (7th Cir. 2014)
(Hamilton, J., concurring) (critically examining history, precedent, and policy surrounding application of Monell to private corporations, questioning whether private health care provider for
prisoners should be able to take advantage of Monell, and urging en banc “fresh consideration”
of precedent rejecting respondeat superior liability for private corporations providing essential
governmental services), cert. denied, 2015 WL 132994 (Jan. 12, 2015). See also Shehee v.
Saginaw Cnty., No. 13-13761, 2015 WL 58674, at *7 (E.D. Mich. Jan. 5, 2015) (“Perhaps it is
time to question the rationale for allowing private contractors to avoid liability for the acts of its
employees.”); Horton v. City of Chicago, No. 13-CV-06865, 2014 WL 5473576, at *4 n.2 (N.D.
Ill. Oct. 29, 2014) (“In Shields v. Illinois Dep’t of Corr., 746 F.3d 782 (7th Cir. 2014), the
Seventh Circuit suggested that it may overrule precedents establishing that private corporations
cannot be found liable for § 1983 violations under a theory of respondeat superior. However, as
long as those precedents remain good law, the Court is bound to apply the current rule that respondeat superior liability does not exist under § 1983, even where a corporate defendant acts
under color of state law.”); Herrera v. Santa Fe Pub. Sch., CIV 11-0422 JB/KBM, 2014 WL
4294970, at *120 (D.N.M. Aug. 29, 2014) (noting agreement with Judge Hamilton’s view, but
concluding that “[w]hatever the merits of this argument, . . . Tenth Circuit precedent binds the
Court on this point.”); Revilla v. Glanz, 8 F. Supp. 3d 1336, 1341 (N.D. Okla. 2014) (“The reasoning of Shields, and its thorough analysis of Supreme Court precedent, provides potent
arguments for not extending Monell to private corporations like CHC. However, this Court is
bound to follow Tenth Circuit precedent, and the settled law in all Circuits to have decided the
issue is that Monell extends to private corporations and thus they cannot be held liable on a respondeat superior basis for their employees’ conduct.”); Hutchison v. Brookshire Bros., Ltd.,
284 F. Supp. 2d 459, 473 (E.D. Tex. 2003) (“[N]either Monell nor its progeny can be read

920

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

Justice Breyer, a “highly complex body of interpretive law,”33 indeed, a maze that
judges and litigants must navigate with careful attention to all the twists and turns.
Professor Joanna Schwartz has done an empirical study involving forty-four of the
largest police departments and law enforcement agencies in the country, as well as
thirty-seven small and mid-sized agencies, and concludes that her findings “support the
presumption that officers across the country, in departments large and small, are virtually always indemnified.”34 Based on her findings, one may question both the need
for qualified immunity to protect individual officers and the rejection of respondeat superior liability for government entities. But as Professor Schwartz points out, given
the seemingly widespread indemnification practices, one can also argue that there is no
great need to replace theories of municipal liability with respondeat superior liability.35
It’s happening anyway and there may be some value to playing the Monell game in
terms of “settlement, leverage, fault-fixing, and information gathering.”36 Whatever
its merits and however questionable the foundation on which it has been built, it appears
that the direct/vicarious line drawn in Monell is here to stay for the foreseeable
future. The net result of adherence to the no-respondeat-superior rule is that plaintiffs
will have to work through the maze of complex and stringent criteria for making out
municipal liability claims and courts will be more concerned about strengthening the
immunity defenses available to individual actors.
II. THE MUD: CLAIMS AGAINST SUPERVISORS
Supervisory liability is a form of individual liability and presents no special problems when the supervisor is an active participant in the underlying constitutional
violation.37 It is when the supervisory liability claim is based on a “failure to ____”—
for example, failure to supervise, discipline, train or adequately screen—that matters
have become muddied. The doctrinal change that the Supreme Court announced in
Iqbal,38 with respect to the standard for holding supervisors liable under Section
to shield private corporations from vicarious liability when their employees have committed a
§ 1983 violation while acting within the scope of their employment.”).
33
Bd. Of Cnty. Comm’rs, 117 S. Ct. at 430.
34
Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. REV. 885, 937 (2014).
35
Id. at 945.
36
Id.
37
See, e.g., Terebesi v. Torreso, 764 F.3d 217, 234 (2d Cir. 2014) (“[A] supervisor may be
held liable if he or she was personally a ‘direct participant’ in the constitutional violation. In this
Circuit, a ‘direct participant’ includes a person who authorizes, orders, or helps others to do the
unlawful acts, even if he or she does not commit the acts personally.” (citations omitted)); see
also Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010) (“A plaintiff may therefore
succeed in a § 1983 suit against a defendant-supervisor by demonstrating: (1) the defendant
promulgated, created, implemented or possessed responsibility for the continued operation of a
policy that (2) caused the complained of constitutional harm, and (3) acted with the state of
mind required to establish the alleged constitutional deprivation.”).
38
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (“In a § 1983 suit or a Bivens action—where
masters do not answer for the torts of their servants—the term ‘supervisory liability’ is a

2015]

SECTION 1983 LITIGATION

921

1983, has left a sea of uncertainty, confusion, and disagreement among the lower courts
as to when, if ever, supervisory liability may attach for claims based on inaction, rather
than affirmative acts.39 Post-Iqbal, the majority of Circuits have engaged in avoidance
of the issue whenever possible.40 The most recent excursion into the “muddied waters”41
of supervisory liability has been by the Third Circuit Court of Appeals. In Barkes v.
First Correctional Medical, Inc.,42 the court noted that Iqbal “expressly tied the level
of intent necessary for superintendent liability to the underlying constitutional tort,”43
and further observed that “[t]his aspect of Iqbal has bedeviled the Courts of Appeals
to have considered it, producing varied interpretations of its effect on supervisory
liability.”44 Rejecting the view that Iqbal has “abolished supervisory liability in its entirety,”45 the Third Circuit joined ranks “with those courts that have held that, under
Iqbal, the level of intent necessary to establish supervisory liability will vary with the
underlying constitutional tort alleged.”46 Thus, in the case before the court, where the
claim was based on an Eighth Amendment denial of medical care, the state of mind
required was subjective deliberate indifference.47 The court left “for another day the
misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”).
39
See, e.g., Palmer v. Wexford Med., No. CV 12-08214-PCT-SPL, 2014 WL 5781305, at
*9 (D. Ariz. Nov. 6, 2014) (noting that “under Sixth Circuit law, liability under § 1983 requires
active unconstitutional behavior; failure to act or passive behavior is insufficient. But under
Ninth Circuit law, a defendant can be liable for the failure to act.” (citations omitted) (internal quotation marks omitted)).
40
See, e.g., Raspardo v. Carlone, 770 F.3d 97, 115 (2d Cir. 2014) (noting that the circuit
“ha[s] not yet determined the contours of the supervisory liability test . . . after Iqbal”); Chavez
v. United States, 683 F.3d 1102, 1113 (9th Cir. 2012) (Wallace, J., concurring) (“[A]t least eight
opinions from other circuit courts have explicitly recognized that Iqbal might restrict supervisory liability, but have refused to rule on the extent of the restriction when the question
could be avoided.”).
41
Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014) (quoting Bistrian v.
Levi, 696 F.3d 352, 366 n.5 (3d Cir. 2012)); see also Dodds, 614 F.3d at 1209–10 (Tymkovich,
J., concurring) (“As the majority points out, the Supreme Court recently muddied further these
already cloudy waters. . . . Iqbal unfortunately did not provide a unified theory for the variety of
supervisory liability cases we face.”).
42
766 F.3d 307 (3d Cir. 2014).
43
Id. at 318.
44
Id.
45
Id. at 319. See Ashcroft v. Iqbal, 556 U.S. 662, 693 (2009) (Souter, J., dissenting) (“Lest
there be any mistake, . . . the majority is not narrowing the scope of supervisory liability; it is
eliminating Bivens supervisory liability entirely.”).
46
Barkes, 766 F.3d at 319.
47
Id.; see also Franklin v. Curry, 738 F.3d 1246, 1250, 1251, 1252 n.7 (11th Cir. 2013) (per
curiam) (“The discussion of purposeful intent in Iqbal pertained to claims of invidious discrimination, not deliberate indifference. . . . Nothing in Iqbal suggests that supervisors cannot
be held liable for deliberate indifference toward risks posed by their subordinates or that such
liability requires a higher mens rea than any other deliberate indifference claim. So long as

922

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

question whether and under what circumstances a claim for supervisory liability derived
from a violation of a different constitutional provision remains valid.”48 I,49 as well as
a number of my dear colleagues,50 have examined the question of the liability of supervisors post-Iqbal. Despite the amount of ink invested, the area remains a mess. I stick
to my position on this and recommend a uniform standard for “failure to” claims against
supervisors based on inaction. “Supervisory inaction that is subjectively and deliberately indifferent to continued or future constitutional wrongdoing by subordinates
should be treated as conduct that is itself violative of substantive due process, regardless of the underlying constitutional violation.”51 Thus, whether the underlying
constitutional violation is based on an Eighth Amendment excessive force claim, requiring a malicious and sadistic state of mind, or based on a Fourth Amendment excessive
force claim, requiring only objective unreasonableness, a supervisor who has subjective
knowledge of the wrongful conduct and who condones or acquiesces in such conduct,
should be found to have committed an independent Fourteenth Amendment substantive
due process violation.52
Post-Connick and post-Iqbal plaintiffs will struggle to get past summary judgment
on municipal and supervisory liability claims. Even pleading these claims has become
more onerous. The inability to pursue such claims might be tempered if plaintiffs were
assured a remedy against the “street level” tortfeasors, with the assurance of indemnification in most cases, but to prevail on claims against non-supervisory state actors who
engage in unconstitutional conduct, plaintiffs must first vault the immunities hurdles.
III. THE MADNESS: QUALIFIED IMMUNITY
A. The Basic Terrain of Immunities
Certain functions performed by individual state actors have been afforded absolute
immunity under Section 1983. Thus, if the constitutional-offending conduct involves
a supervisor’s own conduct—and not that of his subordinate—constitutes deliberate indifference, his status as a supervisor changes nothing.” (citations omitted)).
48
Barkes, 766 F.3d at 320.
49
See Karen M. Blum, Supervisory Liability After Iqbal: Misunderstood but Not Misnamed,
43 URB. LAW. 541 (2011) [hereinafter Blum, Supervisory Liability].
50
See, e.g., Rosalie Berger Levinson, Who Will Supervise the Supervisors? Establishing
Liability for Failure to Train, Supervise, or Discipline Subordinates in a Post-Iqbal/Connick
World, 47 HARV. C.R.-C.L. L. REV. 273 (2012); Kit Kinports, Iqbal and Supervisory
Immunity, 114 PENN ST. L. REV. 1291 (2010); Sheldon Nahmod, Constitutional Torts, OverDeterrence and Supervisory Liability After Iqbal, 14 LEWIS & CLARK L. REV. 279 (2010).
51
Blum, Supervisory Liability, supra note 49, at 557.
52
I disagree with the Supreme Court’s view in Iqbal, 556 U.S. at 677, that knowledge of and
acquiescence in a subordinate’s intentional discrimination on the basis of race, sex, religion or
national origin is not enough to hold the supervisor liable for a constitutional violation. While
knowledge and acquiescence may not be enough to establish an equal protection claim against
the supervisor, subjective knowledge and acquiescence in such behavior by a subordinate should
suffice for an independent substantive due process claim.

2015]

SECTION 1983 LITIGATION

923

an official engaged in a judicial,53 legislative,54 prosecutorial,55 or testimonial function,56
plaintiffs will be without a damages remedy under Section 1983. The Court, in essence,
has made a determination that for certain kinds of functions, there will be a categorical
immunity, regardless of the egregiousness of the conduct of the individual actor. Recently, the Court has extended absolute immunity for prosecutorial functions to even
admittedly “administrative” functions of training or supervising when done by a supervisory prosecutor in connection with the prosecution of a particular case in that office.57
More prevalent and problematic have been developments in the area of qualified
immunity, an affirmative defense that, while having its roots at common law,58 is
53
See, e.g., Stump v. Sparkman, 435 U.S. 349 (1978) (providing absolute immunity for
judge acting within jurisdiction). Officials acting in a judicial or quasi-judicial capacity will also
be afforded absolute immunity. See, e.g., Capra v. Cook Cnty. Bd. of Rev., 733 F.3d 705, 709-10
(7th Cir. 2013) (providing individual members of the Cook County Board of Review with absolute quasi-judicial immunity when performing “duties [ ] functionally comparable to judicial
officer[s].”); Engebretson v. Mahoney, 724 F.3d 1034, 1039 (9th Cir. 2013) (“We now join our
sister circuits and hold that prison officials charged with executing facially valid court orders enjoy absolute immunity from § 1983 liability for conduct prescribed by those orders.”); Keystone
Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 101 (3d Cir. 2011) (“In sum, we hold
that the Butz factors, on balance, clearly support quasi-judicial immunity for members of the
Pennsylvania Gaming Control Board.”). But see Burton v. Infinity Capital Mgmt., 753 F.3d 954,
956–61 (9th Cir. 2014) (holding that an attorney who drafts an order at the request of a judge is
not entitled to absolute quasi-judicial immunity).
54
See, e.g., Bogan v. Scott-Harris, 523 U.S. 44 (1998) (providing absolute immunity for local
legislators performing a legislative function); see also Tenney v. Brandhove, 341 U.S. 367 (1951)
(providing absolute immunity for members of state legislature).
55
See, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976) (finding absolute immunity for prosecutors performing prosecutorial acts); see also Burns v. Reed, 500 U.S. 478 (1991) (granting a
prosecutor absolute immunity for functions performed during a probable cause hearing, but only
qualified immunity when giving legal advice to the police).
56
See, e.g., Briscoe v. LaHue, 460 U.S. 325, 342 (1983) (holding that police officers are entitled to absolute immunity for claims brought pursuant to Section 1983, arising out of allegedly
perjured testimony at criminal trials); see also Rehberg v. Paulk, 132 S. Ct. 1497, 1505–08
(2012) (affording grand jury witnesses the same absolute immunity as trial witnesses).
57
See generally Van de Kamp v. Goldstein, 129 S. Ct. 855 (2009). A number of circuits have
also extended absolute immunity to social workers and child welfare workers engaged in the
prosecution of child dependency proceedings. See, e.g., Booker v. S. Carolina Dep’t of Soc.
Servs., 583 F. App’x 147, 148 (4th Cir. 2014) (“[W]e agree with the district court that
Sullivan was entitled to absolute immunity from Booker’s claim that she made intentional
misstatements when preparing and presenting a petition for J.J.’s retention in SCDSS’s
custody.”); B.S. v. Somerset Cnty., 704 F.3d 250, 270 (3d Cir. 2013) (Where the “underlying
function of [a child case worker’s] actions throughout that judicial proceeding—including
during the investigation and composition of the report—was fundamentally prosecutorial in
nature, she is entitled to absolute immunity for this claim.”).
58
See, e.g., Pierson v. Ray, 386 U.S. 547, 557 (1967) (“We hold that the defense of good
faith and probable cause, which the Court of Appeals found available to the officers in the
common-law action for false arrest and imprisonment, is also available to them in the action
under [§] 1983.”).

924

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

acknowledged by most today to be largely a product of policy-driven decisions by the
Supreme Court in the past thirty years or so.59 The modern era of qualified immunity
begins with Harlow v. Fitzgerald.60 In Harlow, qualified immunity was explained as
a doctrine that accommodates the need to balance “the importance of a damages
remedy to protect the rights of citizens” and “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the
vigorous exercise of official authority.”61 The defense is available only to an individual
defendant62 sued in her individual capacity for damages.63 The basic idea is to give
public officials some breathing room for making reasonable mistakes and to have an
officer’s liability for damages turn on whether the officer violated “clearly established”
law.64 The Court has hammered home that the defense is concerned not only about
imposing liability, but also about subjecting officials to the burdens of discovery and
litigation for claims that lack merit.65 Thus, the push has been to resolve the issues surrounding the qualified immunity defense sooner rather than later in the litigation.66
Harlow established the test for qualified immunity as an objective one. Would a reasonable officer have understood that the conduct engaged in violated rights that were
clearly established at the time?
In 1993, while noting agreement “with those who have concluded that the costs
of the defense may outweigh the benefits to such a degree that the defense should be
abandoned as an inefficient allocation of resources,” this author was nevertheless
able to cobble together a plausible “user’s manual” to assist lawyers and judges who
confronted qualified immunity issues on a regular basis.67 Today, such a manual
might better be designed as a travel guide, pointing litigants to plaintiff-friendly or
59
See Anderson v. Creighton, 483 U.S. 635, 644–45 (1987) (acknowledging that the Court
in Harlow “completely reformulated qualified immunity along principles not at all embodied in
the common law . . . .”).
60
457 U.S. 800 (1982).
61
Id. at 807.
62
See, e.g., Benison v. Ross, 765 F.3d 649, 665 (6th Cir. 2014) (“[P]ersonal immunity
defenses, such as absolute immunity or qualified immunity, are not available to government officials defending against suit in their official capacities.”).
63
See, e.g., Hydrick v. Hunter, 669 F.3d 937, 939–40 (9th Cir. 2012) (“Qualified immunity is only an immunity from a suit for money damages, and does not provide immunity
from a suit seeking declaratory or injunctive relief.”).
64
See, e.g., Benison, 765 F.3d at 664.
65
See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (finding immunity to mean
“immunity from suit rather than a mere defense to liability”). Thus, a denial of a pretrial
motion to dismiss based on qualified immunity, to the extent that it turns on an issue of law,
is immediately appealable. Id. at 530; see also Behrens v. Pelletier, 516 U.S. 299, 308, 309
(1996) (holding that defendants may pursue a second interlocutory appeal from a denial of
qualified immunity at the summary judgment stage).
66
See, e.g., Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam) (“Immunity ordinarily
should be decided by the court long before trial.”).
67
Karen M. Blum, Qualified Immunity: A User’s Manual, 26 IND. L. REV. 187, 189 (1993).

2015]

SECTION 1983 LITIGATION

925

defendant-friendly locations.68 One has to work hard to find some doctrinal consistency or predictability in the case law and the circuits are hopelessly conflicted both
within69 and among70 themselves. A short trip through the current landscape of qualified
immunity should suffice to reveal its Alice-in-Wonderland71 quality and explain why
this centerpiece of Section 1983 litigation needs revamping.
B. Down the Rabbit-Hole: Second Step First
For a number of years, the Supreme Court had instructed lower federal courts, that
in resolving qualified immunity, they were required to engage in a two-prong analysis,
68

See generally Charles R. Wilson, “Location, Location, Location”: Recent Developments
in the Qualified Immunity Defense, 57 N.Y.U. ANN. SURV. AM. L. 445 (2000) [hereinafter
Wilson, Location]. As the title suggests, the point of the article was to demonstrate that whether
a right is found to be “clearly established” is very much a function of which circuit (and I would
add, which judge) is asking the question, and how that question is framed. Judge Wilson sits on
the Court of Appeals for the Eleventh Circuit.
69
Compare, e.g., Tobey v. Jones, 706 F.3d 379, 391 & n.6 (4th Cir. 2013) (“Mr. Tobey’s
right to display a peaceful non-disruptive message in protest of a government policy without
recourse was clearly established at the time of his arrest. . . .[E]ven though the dissent purports
to understand factually analogous precedent is not a prerequisite for finding that a right is clearly
established, the entire dissent seemingly hinges on this very premise.”), with id. at 395–97
(Wilkinson, J., dissenting) (“One would think the Supreme Court’s admonitions on the need
for some modicum of specificity in notice to defendants might actually mean something. And
yet, by allowing Tobey’s suit to proceed by enunciating legal principles at the highest and most
nebulous level of generality, the majority deprives the doctrine of its value. . . . Neither
Tobey nor the majority points to a single court decision addressing a situation even remotely
similar in time, place, or manner to the one that occurred here, let alone a decision that would
have made the unlawfulness of defendants’ actions ‘apparent.’ They cite no decision involving the period before scores of passengers board airplanes, no decision involving the securityscreening area of an airport, and no decision involving distracting conduct that poses a potential
security threat. . . . The complete dearth of pertinent precedent should be dispositive of the question whether it was clearly established that defendants’ conduct was unreasonable: it was
not.” (citations omitted)).
70
Compare, e.g., Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) (“In summary, though not
unqualified, a citizen’s right to film government officials, including law enforcement officers,
in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment. Accordingly, we hold that the district court did not err in
denying qualified immunity to the appellants on Glik’s First Amendment claim.”), with True
Blue Auctions v. Foster, 528 F. App’x 190, 193 (3d Cir. 2013) (“[T]he plaintiffs are simply
incorrect in claiming that ‘[e]very court has ruled there is a First Amendment right to videotape
police in non-traffic stops situations in public forums.’ Instead, . . . courts have come to divergent
conclusions on the issue. . . . Thus, our case law does not clearly establish a right to videotape
police officers performing their official duties such that the officers here should have been on
notice that Dreibelbis had a First Amendment right to film them. Accordingly, the District Court
correctly concluded that the officers were entitled to qualified immunity.” (citations omitted)).
71
The reference is, of course, to Alice’s Adventures in Wonderland by Lewis Carroll. See
generally LEWIS CARROLL, ALICE’S ADVENTURES IN WONDERLAND (1865).

926

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

first deciding whether the plaintiff alleged the violation of a constitutional right under
current law before addressing the second prong, whether the law was clearly established
at the time of the challenged conduct.72 The first prong, considered the rights-defining,
standards-establishing step, was mandatory.73 After much criticism of the mandatory
nature of this approach,74 the Court revisited the analysis and, in Pearson v. Callahan,75
made the first step discretionary. The Court highlighted the most common criticisms of
the “rigid order of battle:”76 (1) deciding the constitutional question first often resulted
in substantial expenditures of resources by litigants and courts on “questions that ha[d]
no effect on the outcome of the case;”77 (2) the development of constitutional doctrine
was not furthered by decisions that were often “so factbound that the decision provide[d] little guidance for future cases;”78 (3) it made little sense to force lower courts
to decide a constitutional question that was pending in a higher court or before an en
72

Saucier v. Katz, 533 U.S. 194, 201 (2001) (“A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable
to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? This must be the initial inquiry. . . . [I]f a violation could be made out on a
favorable view of the parties’ submissions, the next, sequential step is to ask whether the right
was clearly established.”).
73
Id.
74
See, e.g., id. at 210 (Ginsburg, J., concurring) (“The two-part test today’s decision imposes
holds large potential to confuse.”); see also Morse v. Frederick, 551 U.S. 393, 425 (2007)
(Breyer, J., concurring in part and dissenting in part) (“This Court need not and should not decide
this difficult First Amendment issue on the merits. Rather, I believe that it should simply hold
that qualified immunity bars the student’s claim for monetary damages and say no more.”);
Wilkie v. Robbins, 551 U.S. 537, 583 n.10 (2007) (Ginsburg, J., concurring in part and
dissenting in part) (“As I have elsewhere indicated, in appropriate cases, I would allow courts to
move directly to the second inquiry.”); Scott v. Harris, 550 U.S. 372, 387 (2007) (Breyer, J., concurring) (“[L]ower courts should be free to decide the two questions in whatever order makes
sense in the context of a particular case.”); Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per
curiam) (Breyer, J., concurring) (expressing concern “that the current rule rigidly requires courts
unnecessarily to decide difficult constitutional questions when there is available an easier basis
for the decision (e.g., qualified immunity) that will satisfactorily resolve the case before the
court”); Bunting v. Mellen, 541 U.S. 1019, 1019 (2004) (Stevens, J., concurring) (noting the
problem posed by an “unwise judge-made rule under which courts must decide whether the
plaintiff has alleged a constitutional violation before addressing the question whether the defendant state actor is entitled to qualified immunity”); id. at 1023 (Scalia, J., dissenting) (urging
that “this general rule [of refusing to entertain a party’s appeal on an issue as to which she prevailed] should not apply where a favorable judgment on qualified-immunity grounds would
deprive a party of an opportunity to appeal the unfavorable (and often more significant) constitutional determination”).
75
555 U.S. 223 (2009). When the Court granted review in Pearson, it sua sponte “required
the parties to address the additional question whether the mandatory procedure set out in Saucier
should be retained.” Id. at 227.
76
Id. at 234.
77
Id. at 237.
78
Id.

2015]

SECTION 1983 LITIGATION

927

banc panel;79 (4) it likewise did little to further the development of constitutional precedent to force a decision that depended on “an uncertain interpretation of state law;”80
(5) requiring a constitutional decision at the pleading stage based on bare or sketchy
allegations of fact, or one at the summary judgment stage resting on “woefully inadequate” briefs, created a risk of “bad decisionmaking;”81 (6) the mandated two-step
analysis often shielded constitutional decisions from appellate review when the defendant lost on the “merits” question but prevailed on the clearly-established-law prong
of the analysis (and such un-reviewed decisions may have “a serious prospective effect”
on conduct);82 and, finally, (7) the approach required unnecessary determinations of
constitutional law and “depart[ed] from the general rule of constitutional avoidance.”83
Despite these criticisms, the Court acknowledged that it is “often beneficial”84 to
address the merits prong of the immunity analysis. Yet, in a number of post-Pearson
cases, the Supreme Court has avoided the benefits of “promot[ing] the development
of constitutional precedent[,]”85 providing little or no guidance or explanation as to why
it has jumped to the second prong where it would have been helpful to set out the constitutional rule for cases going forward. In its most recent second-step-first opinion,86
the Court reversed and remanded a decision from the Court of Appeals for the Third
Circuit, holding only that the court erred in denying qualified immunity to the defendant
state police officer because the rule regarding the “knock and talk” exception87 to the
warrant requirement was not “beyond debate” at the time of the events giving rise to the
civil rights action. Carroll v. Carman88 involved two officers from the Pennsylvania
79

Id. at 238.
Id.
81
Id. at 238, 239.
82
Id. at 240. In Camreta v. Greene, 131 S. Ct. 2020 (2011), the Court concluded that it “generally may review a lower court’s constitutional ruling at the behest of a government official
granted immunity.” Id. at 2026. But see Wheeler v. City of Lansing, 660 F.3d 931, 940 (6th Cir.
2011) (suggesting that such review at the behest of a prevailing party should be limited to the
Supreme Court’s review of an appellate opinion that might be viewed as clearly establishing the
constitutional principle, as opposed to a circuit’s review of a district court decision that does not
serve as binding precedent in the circuit).
83
Pearson, 555 U.S. at 241.
84
Id. at 236.
85
Id.
86
Carroll v. Carman, 135 S. Ct. 348 (2014).
87
When the case went to the jury in the district court, the jury was instructed:
[T]hat the ‘knock and talk’ exception ‘allows officers without a warrant
to knock on a resident’s door or otherwise approach the residence seeking
to speak to the inhabitants, just as any private citizen might.’ The District
Court further explained that ‘officers should restrict their movements to
walkways, driveways, porches and places where visitors could be expected to go.’
The jury then returned a verdict for Carroll.
Id. at 350 (citations omitted).
88
Id. at 348.
80

928

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

State Police who were following up on a report that an armed suspect who had stolen
a car might have fled to the home of the Carmans.89 In approaching the house, the officers knocked on a sliding glass door that opened onto a deck. An angry Mr. Carman
resisted the officers’ requests for information and a scuffle ensued between Officer
Carroll and Mr. Carman.90 In the end, Mrs. Carman appeared and permission was given
for the officers to search the house.91 The suspect was not found and no arrests were
made.92 The Carmans pursued a civil rights action against Officer Carroll, claiming,
among other things, that the officer violated the Fourth Amendment through an unlawful entry when he approached the house from the side deck entrance instead of the front
door.93 In reversing the jury’s verdict for Officer Carroll and entering a judgment for
the Carmans as a matter of law, the Third Circuit held that the “knock and talk” exception required officers to begin their encounter at the front door of a home, and that
the law was clearly established such that Officer Carroll was not entitled to qualified
immunity.94 After explaining why the precedent relied on by the Third Circuit was not
controlling,95 and noting that other circuits had rejected the rule adopted by the Third
Circuit,96 the Court concluded, “[w]e do not decide today whether those cases were
correctly decided or whether a police officer may conduct a ‘knock and talk’ at any entrance that is open to visitors rather than only the front door.”97 Rather, the Court
jumped to the second prong and found that whatever the correct rule may be, it was not
89

Id.
Id.
91
Id.
92
Id. at 349.
93
Id.
94
Id. at 350 (citing Carman v. Carroll, 749 F.3d 192, 199 (3d Cir. 2014)).
95
The Third Circuit relied on Estate of Smith v. Marasco, 318 F.3d 497 (3d Cir. 2003), for
the proposition that the rule regarding the “knock and talk” exception was clearly established.
However, as the Supreme Court notes:
In concluding that Officer Carroll violated clearly established law in this
case, the Third Circuit relied exclusively on Marasco’s statement that
‘entry into the curtilage after not receiving an answer at the front door
might be reasonable.’. . . In the court’s view, that statement clearly established that a ‘knock and talk’ must begin at the front door. But that
conclusion does not follow. Marasco held that an unsuccessful ‘knock and
talk’ at the front door does not automatically allow officers to go onto
other parts of the property. It did not hold, however, that knocking on the
front door is required before officers go onto other parts of the property
that are open to visitors. Thus, Marasco simply did not answer the question whether a ‘knock and talk’ must begin at the front door when visitors may also go to the back door.
Carroll, 135 S. Ct. at 351.
96
Id. at 351–52 (discussing cases from the Second, Seventh, and Ninth Circuits, and one
decision from the Supreme Court of New Jersey).
97
Id. at 352.
90

2015]

SECTION 1983 LITIGATION

929

“beyond debate” and Officer Carroll was entitled to qualified immunity.98 It’s not clear
why the Court chose to avoid the merits question. While the facts will certainly vary
from case to case as to the configuration and layout of home entrances, the basic issue
of whether the “knock and talk” exception to the warrant requirement applies only
when officers approach the front door of a home is not so “factbound” that it would not
be useful to resolve for future cases.
Pearson itself is a case where it would have made sense to address the merits
question. The issue in Pearson was whether the “consent-once-removed” doctrine applied to an entry and search orchestrated with the assistance of a confidential informant, as opposed to an undercover police officer.99 The doctrine normally applies
when a warrantless entry is made by officers who have been alerted by a signal given
by an undercover police officer who was permitted inside the suspect’s home and sees
contraband in plain view.100 The concept is that the consent given to the undercover officer operates as consent as to the remaining officers, even though the defendants
have no knowledge of the undercover officer’s true identity.101 In Pearson, the cue
was given by a confidential informant, rather than an undercover officer, who entered
a home as part of a “sting.”102 The Tenth Circuit decided that the doctrine did not apply,
that a constitutional violation occurred when the consent given was to a confidential
informant, rather than a police officer,103 and that it was clearly established that such an
entry by the police under these circumstances would violate the Fourth Amendment.104
Without addressing or overruling the constitutional holding of the Tenth Circuit, the
Supreme Court reversed on the grounds that the law on the “consent-once-removed”
doctrine was not clearly established at the time of the challenged conduct such that
a reasonable officer would have understood the conduct here to be unlawful.105 Answering the “merits” question in Pearson, whether the “consent-once-removed” doctrine
would provide an exception to the warrant requirement when a confidential informant rather than a police officer was the recipient of the operative consent, would not
result in the kind of “factbound” decision that would “provide little guidance” for cases
in the future. Indeed, as in Carroll, it would be quite helpful for officers and citizens to
have a holding on a Fourth Amendment question that is likely to be an issue in many
cases going forward.
98

Id.
Pearson v. Callahan, 555 U.S. 223, 229 (2009).
100
See id.
101
Id.
102
Id. at 227 (“In 2002, Brian Bartholomew, who became an informant for the task force after
having been charged with the unlawful possession of methamphetamine, informed Officer
Jeffrey Whatcott that respondent Afton Callahan had arranged to sell Bartholomew methamphetamine later that day.”).
103
Id. at 229.
104
Id. at 230.
105
Id. at 243–44.
99

930

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

Similarly, in Reichle v. Howards,106 the Court left unresolved the merits question
presented, “whether a First Amendment retaliatory arrest claim may lie despite the
presence of probable cause to support the arrest,”107 deciding only that at the time
of the events in question, “it was not clearly established that an arrest supported by
probable cause could violate the First Amendment.”108 Mr. Howards was arrested after
Secret Service agents overheard him making comments critical of then-Vice President
Cheney’s policies in Iraq, witnessed him touching the shoulder of the Vice President,
and engaged him in questioning during which he lied about the touching.109 He was
transferred by the Secret Service to the custody of local law enforcement officers and
charged with harassment under state law, which charge was ultimately dismissed.110
Howards brought suit against the Secret Service agents asserting Bivens claims111
under both the Fourth and First Amendments.112 The Tenth Circuit granted the agents
qualified immunity on the Fourth Amendment claim, finding that there was probable
cause to arrest Howards for having lied to federal agents about touching the Vice
President, but denied immunity on the First Amendment claim because there was a
factual dispute as to whether the arrest was motivated by the comments overheard
by the Secret Service, and, according to the court, the law was clearly established in
the Tenth Circuit that a retaliatory arrest violated the First Amendment even if supported by probable cause.113
Electing to jump to the second prong, the Supreme Court concluded that the
“specific right” in question, the “right to be free from a retaliatory arrest that is otherwise supported by probable cause,” had never been recognized by the Supreme Court,
nor clearly established by Tenth Circuit precedent.114 This question, like the question
presented in Pearson, does not seem particularly fact sensitive and is certain to be one
106

132 S. Ct. 2088 (2012).
Id. at 2093.
108
Id. at 2090.
109
Id. at 2091.
110
Id. at 2092.
111
A so-called Bivens action is the federal common law counterpart to a Section 1983 suit,
and may be available when the tortfeasors act under color of federal rather than state law. In
Bivens, the Court held that a cause of action for damages could be brought against federal
agents directly under the Fourth Amendment. Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388, 395–96 (1971).
112
See Howards v. McLaughlin, 634 F.3d 1131, 1135 (10th Cir. 2011).
113
Reichle v. Howards, 132 S. Ct. 2088, 2092 (2012).
114
Id. at 2094. In Hartman v. Moore, 547 U.S. 250 (2006), the Supreme Court held that a
plaintiff must plead and prove the absence of probable cause to state a claim for retaliatory
prosecution. Because precedent relied on by the Tenth Circuit in Reichle to clearly establish the
law was made of cases including claims of both retaliatory arrest and prosecution, with no clear
distinction drawn between the two, the Supreme Court concluded that a reasonable official
could have believed that Hartman’s rationale applied to retaliatory arrest claims. Reichle, 132
S. Ct. at 2095.
107

2015]

SECTION 1983 LITIGATION

931

frequently raised in Section 1983 litigation. The Supreme Court has yet to decide the
merits question presented in Reichle and, unless and until the right to be free from a
retaliatory arrest supported by probable cause is recognized, the likelihood is that the
majority of circuits will continue to grant qualified immunity on such claims without
resolving the merits of this important constitutional question.115
Even more perplexing was the Court’s failure to address the merits question in
Stanton v. Sims.116 In Stanton, the Ninth Circuit Court of Appeals held that an officer’s
warrantless entry into the yard of the plaintiff was unconstitutional where the officer
was in pursuit of a fleeing misdemeanant and no emergency existed to justify the warrantless entry.117 Furthermore, the court held that Officer Stanton was not entitled to
qualified immunity because the law was clearly established that curtilage was entitled
to the same Fourth Amendment protection as a home and “that a warrantless entry
into a home cannot be justified by pursuit of a suspected misdemeanant except in the
rarest of circumstances.”118 In reversing the Ninth Circuit, the Supreme Court observed
that “federal and state courts nationwide are sharply divided on the question whether
115

See, e.g., Abeyta v. City of New York, 588 F. App’x 24, 25 (2d Cir. 2014) (relying on
Reichle to reject the plaintiff’s challenge to the District Court’s dismissal of his First Amendment
retaliation claim where a jury had found probable cause on a Fourth Amendment claim);
Wilson v. Vill. of Los Lunas, 572 F. App’x 635, 643 (10th Cir. 2014) (“We need not decide
whether DeLoach survives Hartman. It is enough to know that in July 2009 it was not clearly
established in this circuit that there is a First Amendment right to be free from retaliatory arrest
when the arrest is supported by probable cause. The officers are entitled to qualified immunity.”);
Ashcraft v. City of Vicksburg, 561 F. App’x 399, 401 (5th Cir. 2014) (“[W]e are hard-pressed
to find that Chief Deputy Dolan’s alleged misconduct violated Ms. Ashcraft’s First Amendment
rights because Ms. Ashcraft has not demonstrated that she had a clearly established ‘right’
to be free from a retaliatory arrest that was otherwise supported by probable cause.”); George v.
Rehiel, 738 F.3d 562, 586 (3d Cir. 2013) (“[B]ecause we have found that the individual Federal
Officials’ search and questioning of George during the screening did not violate George’s Fourth
Amendment rights, we are hard-pressed to find that it could result in a First Amendment retaliation claim on this record. Accordingly, the individual Federal Officials are entitled to qualified
immunity on George’s First Amendment retaliation claim.” (citations omitted)); Thayer v.
Chiczewski, 705 F.3d 237, 253 (7th Cir. 2012) (“As the Supreme Court held in Reichle, the
‘clearly established’ standard is not met in this case because neither our circuit nor the Supreme
Court has ‘recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause.’”). Compare Acosta v. City of Costa Mesa, 718 F.3d 800, 825–26 (9th
Cir. 2013) (“[E]ven assuming that Acosta was arrested in retaliation for his remarks, because
probable cause existed for a violation of § 2-61, the officers are still entitled to qualified
immunity[.]”), with Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013) (“In this Circuit, an individual has a right ‘to be free from police action motivated by retaliatory animus
but for which there was probable cause.’ That right was violated when the officers booked and
jailed Ford in retaliation for his protected speech, even though probable cause existed for his initial arrest.” (citations omitted)).
116
134 S. Ct. 3 (2013) (per curiam).
117
Sims v. Stanton, 706 F.3d 954, 963 (9th Cir. 2012), rev’d per curiam, Stanton v. Sims,
134 S. Ct. 3 (2013).
118
Id. at 964.

932

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

an officer with probable cause to arrest a suspect for a misdemeanor may enter a home
without a warrant while in hot pursuit of that suspect.”119 Despite acknowledgment
of the sharp divide and a framing of the question that would result in an answer not
particularly “factbound” and, as in Pearson, one that would assist law enforcement in
future cases, the Court left the merits question unresolved and reversed on the clearlyestablished-law prong. “We do not express any view on whether Officer Stanton’s entry
into Sims’ yard in pursuit of Patrick was constitutional. But whether or not the constitutional rule applied by the court below was correct, it was not ‘beyond debate.’”120
In Wood v. Moss,121 a case from the 2013 term, the Court unanimously reversed the
Ninth Circuit’s denial of qualified immunity to Secret Service agents who were alleged
to have discriminated against anti-Bush protestors based on their viewpoint, in violation
of the First Amendment.122 Plaintiffs claimed that on a visit by then-President George
W. Bush to Jacksonville, Oregon, the Secret Service responded to an unscheduled presidential lunch stop by relocating the anti-Bush protestors, but not Bush supporters,
such that the anti-Bush group was farther away than the pro-Bush group from the inn
where the President was dining.123 Limiting its decision to the qualified immunity question,124 the Court held that there was no precedent to “alert Secret Service agents engaged in crowd control that they bear a First Amendment obligation” to ensure that all
groups had “equal access” to the President.125 Wood was a perfect case for jumping to
the second prong, as the issue presented was the paradigm of “factbound,” involving
Secret Service agents responding to a situation “unsettled” by a “spur-of-the-moment
decision” by the President.126
In the two other qualified immunity opinions from last term,127 the Court followed
the Saucier order-of-battle approach and addressed the merits question first. In Plumhoff
v. Rickard,128 noting that it “will be ‘beneficial in ‘develop[ing] constitutional precedent’ in an area that courts typically consider in cases in which the defendant asserts
a qualified immunity defense,”129 the Court held that where a high-speed pursuit
119

Stanton, 134 S. Ct. at 3.
Id. at 8.
121
134 S. Ct. 2056 (2014).
122
Because the defendants in the case were federal agents, the suit was a Bivens action. See
supra note 111. The Court assumed, without deciding, that Bivens extends to First Amendment
claims. Wood v. Moss, 134 S. Ct. 2056, 2066 (2014).
123
Id. at 2061.
124
Id. at 2070.
125
Id. at 2067–68.
126
Id. at 2061.
127
Lane v. Franks, 134 S. Ct. 2369 (2014); Plumhoff v. Rickard, 134 S. Ct. 2012 (2014).
For a discussion of Lane see infra notes 299–316 and accompanying text.
128
134 S. Ct. 2012 (2014).
129
Id. at 2020 (quoting Pearson v. Callahan, 555 U.S. 223, 236 (2009) (alteration in
original)). Justice Ginsburg did not join the portion of the Court’s opinion discussing the merits
120

2015]

SECTION 1983 LITIGATION

933

“exceeded 100 miles per hour and lasted over five minutes,” and “passed more than two
dozen other vehicles, several of which were forced to alter course,” it was “beyond
serious dispute that Rickard’s flight posed a grave public safety risk, and here, as in
Scott [v. Harris, 550 U.S. 372 (2007)], the police acted reasonably in using deadly
force to end that risk.”130 While holding that on the undisputed facts in Plumhoff, there
was no Fourth Amendment violation, the Court buttressed its opinion with the backup
position that even if the force used under these circumstances was excessive, the law
was not clearly established at the time of the events in question such that the unlawfulness of the conduct would have been “beyond debate.”131 Fourth Amendment excessive force claims are probably more “factbound” than most other kinds of constitutional claims brought under Section 1983,132 so the default for such cases might likely
be prong two of the qualified analysis,133 but the holding in Plumhoff on the merits does
clarify for both officers and citizens that deadly force will be deemed justified whenever
undisputed facts support a finding that the force was used to terminate an ongoing
serious threat to the safety of the officers or the public.
Encouraged by the Supreme Court to exercise the discretion afforded by
Pearson,134 many lower courts are eschewing tough constitutional questions, instead
disposing of cases on the ground that whether or not a constitutional right has been violated on the facts alleged, the defendant prevails on qualified immunity because the
of the Fourth Amendment claim, but neither dissented nor wrote a separate concurrence. Id.
at 2016 n.*.
130
Id. at 2021–22. Justice Breyer did not join the portion of the Court’s opinion rejecting
the claim that the number of shots was excessive, but neither dissented nor wrote a separate
concurrence. Id. at 2016 n.*.
131
Id. at 2023 (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011)). The Court pointed to its
decision in Brosseau v. Haugen, 543 U.S. 194 (2004) (per curiam), in which qualified immunity was granted to a police officer who shot the driver of a fleeing vehicle, perceived as
a threat to the safety of those in the area. Because the behavior of the driver in Plumhoff was
even more threatening than that of the driver in Brosseau, and because the plaintiff could
point to no intervening case law between the time of the events in Brosseau (1999) and those
in Plumhoff (2004) “that could be said to have clearly established the unconstitutionality of using
lethal force to end a high-speed car chase,” the officers were entitled to qualified immunity.
Plumhoff, 134 S. Ct. at 2023–24.
132
Brosseau, 543 U.S. at 201 (having surveyed the excessive force cases the plaintiff
relied on to argue against qualified immunity, the Court noted that “this area is one in which
the result depends very much on the facts of each case”).
133
Indeed, in Brosseau, a case that preceded Pearson, the Court “express[ed] no view as
to the correctness of the Court of Appeals’ decision on the constitutional question itself,” and
disposed of the case on the basis of qualified immunity, rather than the merits. Id. at 198.
134
See, e.g., Ashcroft, 131 S. Ct. at 2080 (“Courts should think carefully before expending
‘scarce judicial resources’ to resolve difficult and novel questions of constitutional or statutory
interpretation that will ‘have no effect on the outcome of the case.’” (quoting Pearson, 555
U.S. at 236–37)); Camreta v. Greene, 131 S. Ct. 2020, 2032 (2011) (“In general, courts
should think hard, and then think hard again, before turning small cases into large ones.”).

934

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

right was not clearly established at the time.135 Taking this path in West v. Murphy,136
and Cantley v. West Virginia Regional Jail & Correctional Facility Authority,137 two
135

For recent examples of courts doing the second step first, see Fenwick v. Pudimott, No.
15-5130, 2015 WL 590295, at *3 (D.C. Cir. Feb. 13, 2015) (concluding that “the constitutional question is ‘far from obvious,’” the court proceeds “directly to consider whether the
deputies’ use of deadly force violated law that was clearly established at the time of the shooting.”). See also Occupy Nashville v. Haslam, 769 F.3d 434, 442 (6th Cir. 2014) (“To avoid
potentially ‘difficult questions that have no effect on the outcome of the case,’ and being mindful
of the unusual circumstances under which we preside [all of the judges of the Sixth Circuit have
recused themselves in this appeal], we will focus on Saucier’s second step—whether the alleged
constitutional right was clearly established at the time of the Use Policy’s adoption.” (citations
omitted)); Jay v. Hendershott, 579 F. App’x 948, 950 (11th Cir. 2014) (“Here, because we conclude that Plaintiffs’ Fourth Amendment claim is one ‘in which it is plain that a constitutional
right [was] not clearly established,’ we address only the second prong of the qualified-immunity
analysis and do not reach the issue of whether the complaint sufficiently alleges a constitutional
violation.” (citations omitted)); Burgess v. Town of Wallingford, 569 F. App’x 21, 23 (2d Cir.
2014) (“[T]he protection that Burgess claims he deserves under the Second Amendment—the
right to carry a firearm openly outside the home—is not clearly established law.”); De Boise
v. Taser Int’l, Inc., 760 F.3d 892, 896 (8th Cir. 2014) (“Courts have discretion to decide which
part of the inquiry to address first. Here, we begin with second inquiry. Though the outcome
of this encounter was tragic, and even if the reasonableness of the officers’ actions was questionable, Appellants cannot defeat the officers’ defense of qualified immunity unless they are
able to show that a reasonable officer would have been on notice that the officers’ conduct
violated a clearly established right.” (citations omitted)); MacDonald v. Town of Eastham, 745
F.3d 15 (1st Cir. 2014) (“Given the nature of the qualified immunity inquiry, it is sufficient
to hold—as we do in this opinion—that because these questions are not resolved by clearly
established law, the officers who entered and searched the plaintiff’s dwelling are entitled to the
shield of qualified immunity. We need go no further.”); Stauffer v. Gearhart, 741 F.3d 574,
584 (5th Cir. 2014) (“We need not decide whether Stauffer’s rights were actually violated,
because even if they were, Stauffer has not proven that those rights were clearly established
at the time of the alleged violations.”); Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 2013)
(“Pearson v. Callahan, 555 U.S. 223, 242–43 (2009), encouraged courts to begin with the substantive constitutional violation, but we remain free to consider first whether the right is
clearly established if doing so will conserve judicial resources. We find it economical to do
so here and thus consider only whether Findlay has shown that the alleged constitutional
violation—tackling a suspect under the circumstances presented in this case—was clearly
established.”); Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (“In reviewing the
grant of summary judgment to Officer Bateman, we decline to consider whether the district court
erred in concluding no constitutional violation occurred and instead opt to address whether the
rights at issue were clearly established at the time of the alleged violation.”); Padilla v. Yoo,
678 F.3d 748, 768 & n.16 (9th Cir. 2012) (“[A]lthough we hold that the unconstitutionality of
torturing an American citizen was beyond debate in 2001–03, it was not clearly established at
that time that the treatment Padilla alleges he was subjected to amounted to torture. . . . For these
reasons, we hold that Yoo is entitled to qualified immunity on the plaintiffs’ claims. . . . We have
discretion to decide which of the two prongs of qualified immunity analysis to address first.
Here, we consider only the second prong.” (citations omitted)).
136
771 F.3d 209 (4th Cir. 2014).
137
771 F.3d 201 (4th Cir. 2014).

2015]

SECTION 1983 LITIGATION

935

cases raising important questions about the constitutional limits of strip-searching
detainees who are held outside of the general population, the Fourth Circuit Court
of Appeals disposed of both cases on the second prong of the qualified immunity
analysis, leaving for another day the task of much needed “clarification and elaboration”138 of the legal principles applicable in this area. West was brought by two men
representing a class of persons who had been arrested for offenses that did not involve
“weapons, drugs, or felony violence,”139 and strip searched140 at Baltimore Central
Booking and Intake Center (Central Booking) prior to or without being arraigned
before a judicial officer.141 Throughout the booking process, arrestees are placed in
holding rooms with other arrestees, some of whom have been arrested for more serious
offenses and, within twenty-four hours, are brought before a commissioner or released
without charges.142 Roughly one half of all arrestees “were released before or after seeing a court commissioner,” and thus, while they were never placed in the general housing unit of Central Booking, these arrestees did have contact with others who were
placed in general population.143 From the time the litigation commenced in 2005, until
2013, the district court had denied the warden defendants qualified immunity, relying
on three Fourth Circuit precedents for the proposition that it was clearly established that
strip searches conducted without individualized suspicion of persons arrested for offenses that did not involve weapons or contraband violated the Fourth Amendment.144
While West was pending in the district court, however, the Supreme Court rendered
its decision in Florence v. Board of Chosen Freeholders of the County of Burlington,145
holding that suspicionless strip searches of adult detainees were constitutional, regardless of the seriousness of the offense, if the detainees were to be placed in the
general population of a jail or prison.146 In light of Florence, the district court did a
turnabout and held that “Florence not only overruled some aspects of Fourth Circuit
law (on which this court previously relied in denying the motion to dismiss) but in doing so left the contours of any ‘exception’ that would apply to the plaintiffs in this
138

West, 771 F.3d at 217 (Wynn, J., concurring).
Id. at 211.
140
A strip search was defined as “the removal, pulling down, or rearrangement of clothing for
the visual inspection of a person’s genital and/or anal areas, which may also include requiring
the person to squat and cough, in the presence of one or more guards.” Id. (quoting Jones v.
Murphy, 2013 WL 822372, at *3 (D. Md. Mar. 5, 2013)).
141
Id.
142
Id.
143
Id. at 212.
144
Jones v. Murphy, 470 F. Supp. 2d 537, 547 (D. Md. 2007) (citing Amaechi v. West, 237
F.3d 356, 365 (4th Cir. 2001); Abshire v. Walls, 830 F.2d 1277, 1279–80 (4th Cir. 1987); Logan
v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981)). The Fourth Circuit found each of these cases
distinguishable from the facts before the court in West. West, 771 F.3d at 215–16. See infra note
150 and accompanying text.
145
132 S. Ct. 1510 (2012).
146
Id. at 1522–23.
139

936

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

case unclear and open to debate.”147 The Fourth Circuit affirmed, but grounded its
decision on a different rationale. Because Florence was decided after the occurrence
of the events giving rise to the action in West, the Fourth Circuit astutely noted the
temporal irrelevance of the Florence decision to the clearly-established-law question
presented in West.148 Instead, the court affirmed the grant of qualified immunity on
the basis that each Fourth Circuit precedent in existence at the time of the challenged
conduct and relied on by the district court was factually distinguishable from West
and did not suffice to give an official notice that the strip searches conducted at
Central Booking were unlawful.149 As the court explained:
Under the Bell [v. Wolfish] balancing test, the searches in Logan,
Amaechi, and Abshire were unconstitutional because there were
no security reasons strong enough to justify the intrusive and public nature of the searches. The searches allegedly performed at
Central Booking, however, were conducted in a different and
less public setting than those described by our precedents, and
the security justifications for the Central Booking searches were
more compelling.150
Thus, without addressing the constitutional merits of the plaintiffs’ claim, the Fourth
Circuit concluded that the officials were entitled to qualified immunity “because the
law did not clearly establish at the time that the searches were conducted that they
were unlawful.”151
147

Jones v. Murphy, No. CIV. CCB-05-1287, 2013 WL 822372, at *6 (D. Md. Mar. 5, 2013),
aff’d by West v. Murphy, 771 F.3d 209 (4th Cir. 2014). Florence left open the question of
whether exceptions to its rule would be appropriate in cases “where, for example, a detainee will
be held without assignment to the general jail population and without substantial contact with
other detainees.” Florence, 132 S. Ct. at 1522–23.
148
West, 771 F.3d at 214. For a further discussion of this decision, see infra note 328 and
accompanying text.
149
See id. at 215–16.
150
Id. at 216. The plaintiff in Logan was a female attorney who had been arrested for D.W.I.
She claimed to have been stripped searched in a holding room with broken blinds, allowing
others to observe. She was not intermingled with the general population of the jail or held with
any other arrestees. Logan v. Shealy, 660 F.2d 1007, 1009–10, 1013 (4th Cir. 1981). In Abshire,
the plaintiff alleged that he was strip searched in a utility closet after his gun and ammunition had
already been taken away from him and “in front of six to eight police officers—five who were
in the room with him and several others, including a female officer, who witnessed the search
while standing in the adjacent hallway.” Abshire v. Walls, 830 F.2d 1277, 1280 (4th Cir. 1987).
The strip search in Amaechi was conducted on a public street and involved a male officer “actually touching and penetrating the [female] arrestee’s exposed genitalia.” Amaechi v. West, 237
F.3d 356, 364 (4th Cir. 2011).
151
West, 771 F.3d at 216.

2015]

SECTION 1983 LITIGATION

937

Judge Wynn, in a separate concurrence, agreed with the majority opinion, but
underscored “the importance of addressing the legality of strip searching detainees
held outside the general population in the appropriate case.”152 Because the trial court
and the parties in West had focused on only the clearly-established-law prong of immunity, Judge Wynn joined the majority in kicking the constitutional can down the
road, but lamented that the result was to “leave corrections officers adrift in uncharted
waters.”153 It does appear, however, that Judge Wynn’s willingness to forego reaching
the constitutional issue in West rested in part on his belief that the issue was properly
teed up and would be addressed in Cantley.154
In Cantley, the Fourth Circuit reviewed a challenge to the strip search and delousing procedures used in two different jails in West Virginia.155 Cantley, one of the plaintiffs in the case, had been arrested, arraigned, and ordered to be committed to the
general population of the Western Regional Jail before he was strip searched, so with
respect to him, the Fourth Circuit affirmed the district court’s determination that
Florence was controlling on the merits question and the strip search was constitutional.156 The circumstances surrounding the strip search of plaintiff Teter were different. Teter had been arrested for a minor offense and had not yet appeared before
a magistrate when he was strip searched.157 After the strip search and shower, he was
placed in a holding cell with one other arrestee.158 While there is no indication that other
detainees were placed in the cell with Teter and his cellmate, each of the two holding
cells used for detainees at the Tygart Valley facility was capable of holding up to fifteen
detainees.159 The next morning, Teter was escorted through the area that housed the
general population to a video-conferencing room where he appeared via video before
a magistrate judge who ordered him to be released on bond following the conference.160

152

Id. at 217 (Wynn, J., concurring).
Id.
154
In West, Judge Wynn took note of the fact that “pending before this same panel is Cantley
v. West Virginia Regional Jail, [771 F.3d 201 (4th Cir. 2014)], in which the district court held
that the strip search of a detainee held outside the general jail population was constitutional.”
West, 771 F.3d 209, at 217 n.*.
155
Cantley, 771 F.3d at 203. Plaintiffs sought damages and injunctive relief and named as
defendants the West Virginia Regional Jail and Correctional Facility Authority (WVRJA), the
state agency charged with overseeing the regional jails, and three former and current Executive
Directors of the WVRJA. Id.
156
Id. at 203–04. Note that even though Florence was decided after the events in question,
Florence clearly controlled and operated to defeat Cantley’s strip search claim on the merits.
157
Id. at 204. The Tygart Valley jail facility had a blanket strip search policy in effect at
the time. Thus all detainees, regardless of the basis for the arrest and whether pre- or post
-arraignment, were strip searched before being placed in a holding cell. Id. at 205.
158
Id. at 204.
159
Id. at 205.
160
Id. at 204.
153

938

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

As with the strip search of Cantley, the district court had found the strip search of
Teter to be constitutional.161 The Fourth Circuit affirmed the judgment for the individual
defendants, but found it “unnecessary to reach the constitutional merits of the strip
search of Teter.”162 The court distinguished the circumstances surrounding Teter’s
search from those accompanying the strip search of the pre-arraignment detainee in
Logan v. Shealy,163 the case relied on by plaintiff as clearly establishing the unlawfulness of his search. In Logan, a female attorney was arrested for suspected D.W.I. and
claimed to have been strip searched in a room that permitted others to view the search
through a window in the door.164 She was in jail for approximately two-and-a-half hours
and there was no mention of her being intermingled with other arrestees and no credible
security threat presented.165 The Fourth Circuit concluded that “Logan did not clearly
establish that it was unconstitutional for a correctional officer to conduct a visual strip
search in a private room of an arrestee, who was to be held until the next morning in a
holding cell with possibly a dozen or more other arrestees.”166
On the delousing claims, the district court had granted summary judgment for the
defendants, holding that the delousing procedures used were constitutional with respect
to both Cantley and Teter. The Fourth Circuit affirmed, but, as with the strip search
claim of Teter, determined only that the unlawfulness of the conduct was not clearly
established by Supreme Court or Fourth Circuit precedent at the time of the events in
question.167 Amaechi,168 the case relied on by plaintiffs to clearly establish the unlawfulness of the delousing procedures, involved the arrest of a woman for a noise violation and her subjection to a “sexually abusive” search in front of her home with her
husband and children watching.169 As the Fourth Circuit noted, “the delousing of
Cantley and Teter was done in a private room with only one officer, who was of the
same sex, and it did not entail the officer himself touching either plaintiff.”170
Because the district court had held both the searches and the delousing procedures
constitutional, all claims had been resolved on summary judgment.171 The Fourth Circuit’s disposition, resolving Teter’s strip search claim and the delousing claims on the
second prong of the qualified immunity analysis left the status of the claims for injunctive and declaratory relief unresolved. Given that qualified immunity is a defense
161

Id. at 205 (citing Cantley v. W. Va. Reg’l Jail, 2013 WL 5531855, at *10 (S.D.W. Va.
Oct. 4, 2013)).
162
Id.
163
660 F.2d 1007 (4th Cir. 1981).
164
See id. at 1009–10.
165
Cantley, 771 F.3d at 206.
166
Id.
167
Id.
168
237 F.3d 356 (4th Cir. 2001).
169
Cantley, 771 F.3d at 206.
170
Id. at 207.
171
Id.

2015]

SECTION 1983 LITIGATION

939

only as to damages claims asserted against individual defendants,172 the merits of
these claims would have to be addressed before deciding the appropriateness of any
equitable relief that might be ordered against the administrators of the institutional defendant. Noting that “[e]ven before Florence came down, the WVRJA had ordered
Tygart Valley to cease any blanket practice of strip-searching and delousing prearraignment arrestees not designated for the general jail or prison population,”173 and
warning that “Florence made clear that blanket strip searches prior to arraignment
of arrestees not designated for assignment to the detention facility’s general population
are constitutionally suspect in the absence of some particularized justification,”174
the court opted to exercise its discretion in favor of allowing West Virginia officials
an opportunity “to apply their own experience in complying with Florence and the
shifting boundaries of the law in this area.”175
Judge Wynn again concurred, noting that while the majority had not addressed
the merits question raised by Teter’s search, its opinion did raise concerns about “the
legality of similar searches going forward.”176 He made clear that in his view, “strip
searching pre-arraignment detainees who are held outside the general population of a
detention facility is unconstitutional absent reasonable suspicion.”177 The Fourth
Circuit chose not to take a full swing at the merits question so nicely teed up in Cantley,
but left little doubt as to how the panel would view future cases involving pre-arraignment detainees not destined to be placed in the general population of a jail. One can
share the panel’s aspiration that the administrators of the West Virginia jails will make
good faith attempts to conform their policies “to the directives of the [Supreme]
Court”178 in Florence, without sharing the view that it was improvident to establish
more concrete constitutional guidance in these cases.
In a similar context, Judge Rogers has recently criticized the constitutional avoidance approach taken by the Court of Appeals for the District of Columbia. In both
Bame v. Dillard179 and Johnson v. District of Columbia,180 the court refused to address
the merits of the constitutionality of strip searches of arrestees who have been arrested
on minor charges and held outside of the general population, instead granting qualified immunity on the ground that the law was not clearly established.181 As Judge
Rogers reflected:
Not deciding the constitutional question “threatens to leave standards of official conduct permanently in limbo.” By proceeding
172
173
174
175
176
177
178
179
180
181

See supra notes 62–63 and accompanying text.
Cantley, 771 F.3d at 208.
Id.
Id.
Id. at 208 (Wynn, J., concurring).
Id.
Id.
637 F.3d 380 (D.C. Cir. 2011).
734 F.3d 1194 (D.C. Cir. 2013).
See Johnson, 734 F.3d at 1202–04; Bame, 637 F.3d at 384.

940

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

directly to the immunity question, not only do “[c]ourts fail to
clarify uncertain questions, fail to address novel claims, fail to give
guidance to officials about how to comply with legal requirements,” but the failure to decide constitutional questions “may
frustrate ‘the development of constitutional precedent’ and the
promotion of law-abiding behavior[.]”182
The lawfulness of jail strip searches after Florence inevitably will turn to some degree
on the peculiar facts of the arrest, as well as the booking and detainment procedures of
the particular detention facilities implicated. But, until courts address the merits of
strip searches that fall outside the parameters of those held constitutional in Florence
and begin to establish guidelines as to what circumstances qualify as exceptions to the
rule of Florence, the law will remain unclear, corrections officers will remain adrift,
and lower courts will continue to jump to the second prong in resolving these cases.
C. Through Whose “Looking Glass?”183
The Court has told us that qualified immunity is a question of law, “ordinarily”
to be decided by the judge.184 When the Court has made the facts or circumstances
confronting the officer in a particular case an important aspect of framing the qualified
immunity question,185 how can the issue be resolved as a pure question of law when
there are material issues of fact to be resolved?186 A court must take the facts pleaded
at the motion to dismiss stage or supported by the evidence at the summary judgment
stage, in the light most favorable to the non-moving party.187 If, based on those facts as
pleaded or supported, a reasonable official would have understood that the conduct
alleged or supported violated clearly established law, qualified immunity should be
denied.188 When material facts are disputed and summary judgment is denied, jurors
should be the fact-finders and, only once the facts are determined, should the judge
decide whether the conduct as found by the jury violated clearly established law. But
182

Johnson, 734 F.3d at 1206 (Rogers, J., concurring) (alterations in original) (citations
omitted).
183
LEWIS CARROLL, THROUGH THE LOOKING-GLASS (1871). (Strangely, originally published the same year Section 1983 was enacted!).
184
Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam) (“Immunity ordinarily should
be decided by the court long before trial.”).
185
See, e.g., Anderson v. Creighton, 483 U.S. 635, 641 (1987) (“The relevant question in this
case, for example, is the objective (albeit fact-specific) question whether a reasonable officer
could have believed Anderson’s warrantless search to be lawful, in light of clearly established
law and the information the searching officers possessed.”).
186
As Professor Chen has noted, “As any experienced civil rights practitioner or federal trial
judge knows, the primary impediment to expedited termination of constitutional tort suits
through qualified immunity-based summary judgment claims is the existence of material fact
disputes.” Alan K. Chen, The Facts About Qualified Immunity, 55 EMORY L.J. 229, 230 (2006).
187
See id. at 261.
188
See id. at 235.

2015]

SECTION 1983 LITIGATION

941

requiring a jury to resolve the factual disputes would mean that the case would not be
disposed of “long before trial,”189 and for many judges, that delay exposes government
officials to just the kind of harassment and interference that qualified immunity is
intended to prevent. There are more and more cases where, in my opinion, judges
are usurping the role of jurors and deciding facts under the guise of determining the
qualified immunity issue as a matter of law.190 Runaway judges are more common
than runaway jurors.191 But, I am encouraged by a sense that some on the Supreme
Court may be tuned into the problem.
189

Hunter, 502 U.S. at 228.
See, e.g., Poole v. City of Shreveport, 691 F.3d 624, 635 (5th Cir. 2012) (Elrod, J., dissenting) (“The majority opinion’s disagreement about the videotape evidence only underscores
why this case should go to a jury. Nowhere does the majority opinion indicate that Creighton
would be entitled to qualified immunity under my understanding of the facts.”). See also Lopera
v. Town of Coventry, 640 F.3d 388, 396–98, 402, 403 (1st Cir. 2011), where the majority of the
panel granted officers qualified immunity after deciding that reasonable officers could have
believed a coach “consent[ed]” to the search of his team. Judge Thompson dissented, saying the
case should have gone to a jury on facts that raised a question about whether consent was
voluntarily given. Id. at 404–06 (Thompson, J., dissenting in part).
Also troublesome are the cases where the court does send the case to the jury and should be
reserving the qualified immunity determination for itself based on the jury’s determination of the
facts, but instead gives the immunity question to the jurors in the form of a question as to
whether the defendant violated a clearly established right of the plaintiff or whether the defendant’s conduct was objectively reasonable even if excessive under the Fourth Amendment.
These cases usually create problems of inconsistent verdicts and/or unintelligible instructions,
requiring new trials, appeals, reversals, or remands. See, e.g., Gandy v. Robey, 520 F. App’x
134, 145–47 (4th Cir. 2013) (“Unfortunately, special interrogatories [No.] 3 and [No.] 4 permitted the jury to answer these interrelated questions in an inconsistent manner. According to
the jury, Deputy Robey reasonably believed that David posed an imminent threat of serious
harm, yet the jury concluded that Deputy Robey used excessive force in preventing David
from carrying out such a threat of harm. In addition to being inconsistent with each other, of
course, these interrogatory answers are inconsistent with the general verdict awarding Terry
$267,000 in compensatory damages. . . . These inconsistencies implicate Fed. R. Civ. P[.]
49(b)(4) and leave us no choice but to remand for a new trial.”); Stephenson v. Doe, 332 F.3d
68, 79, 80 (2d Cir. 2003) (“[W]e conclude that the qualified immunity verdict is legally inconsistent with the verdict on excessive force and should not stand. . . . We conclude that under
all the circumstances in this case a new trial is warranted. . . . On remand, the district court
should substantially follow the procedure it outlined, and the parties agreed to, during precharge
conferences. The court should charge the jury on excessive force, but not on qualified immunity.
If the jury returns a verdict of excessive force against Dingler, the court should then decide the
issue of qualified immunity.”).
191
Indeed, in Scott v. Harris, 550 U.S. 372 (2007), Justice Stevens chastised his colleagues
as the eight “jurors” on the Court who thought no reasonable person could reach a contrary result,
even when three federal appeals court judges and one federal district court judge had disagreed
with the eight Supreme Court “jurors’” assessment of the evidence. Id. at 389, 390, 395–96
(Stevens, J., dissenting). See generally Dan M. Kahan et al., Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 837, 841–42
190

942

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

In Tolan v. Cotton,192 sending an important signal, the Supreme Court granted certiorari, vacated and remanded a decision of the Court of Appeals for the Fifth Circuit
in which the panel had granted summary judgment for the defendant police officer on
qualified immunity, but had done so by “fail[ing] to view the evidence at summary
judgment in the light most favorable to [the Plaintiff] with respect to the central facts
of th[e] case.”193 In Tolan, the circumstances surrounding the shooting of a young, unarmed, black male on his own front porch were disputed, but the Fifth Circuit gave
the officer the benefit of the doubt based on his version of the facts.194 Due to a mistake
in keying in the numbers on a license plate, officers believed that Robert Tolan was
driving a stolen car when he parked on the street in front of his parents’ home.195
Officer Edwards, with gun drawn, ordered Tolan to lie down on his porch, which
Tolan did.196 When Tolan’s parents appeared and inquired as to the reason their son
was being held at gunpoint, the discussion led to Officer Cotton, who arrived after
Edwards radioed for assistance, using force against Tolan’s mother, precipitating a response from Tolan that resulted in Officer Cotton’s shooting of Tolan.197 In granting
qualified immunity to Officer Cotton, the Fifth Circuit concluded that it was not clearly
established that Cotton’s actions violated Tolan’s Fourth Amendment rights because
an objectively reasonable officer could have perceived Tolan as presenting an immediate threat to the officers’ safety.198 The ruling was premised on the following facts:
that the front porch was dimly lit, that Tolan’s mother had refused the officers’ orders,
that Tolan had delivered a verbal threat, and that Tolan was moving to intervene in the
officers’ treatment of his mother, permitting Cotton reasonably to fear for his life.199
Each of these facts was disputed by Tolan. In vacating and remanding, the Supreme
Court stressed that even in the qualified immunity context, normal rules of summary
judgment apply and reasonable inferences must be drawn in favor of the nonmoving
party.200 While I do not believe the Supreme Court intended to invite petitions for review in the “very large category” of cases that turn on the “utterly routine” question
of the sufficiency of the evidence for summary judgment, I do believe the Court was
(2009) (“[T]he Court in Scott was wrong to privilege its own view. . . . By insisting that a case
like Scott be decided summarily, the Court not only denied those citizens an opportunity, in
the context of jury deliberations, to inform and possibly change the view of citizens endowed
with a different perspective. It also needlessly bound the result in the case to a process of
decision making that deprived the decision of any prospect of legitimacy in the eyes of that
subcommunity whose members saw the facts differently.”).
192
134 S. Ct. 1861 (2014) (per curiam).
193
Id. at 1863, 1866.
194
Id. at 1863–65.
195
Id. at 1863.
196
Id.
197
Id. at 1863–64.
198
Tolan v. Cotton, 713 F.3d 299, 306–07 (5th Cir. 2013), vacated, 134 S. Ct. 1861 (2014).
199
Id. at 307.
200
Tolan, 134 S. Ct. at 1867–68.

2015]

SECTION 1983 LITIGATION

943

noting that the summary judgment practice in the context of qualified immunity had
strayed from the norm and needed correction.
Two weeks after Tolan, the Supreme Court granted certiorari, vacated and remanded another Fifth Circuit case for reconsideration in light of Tolan.201 Robert Tolan
lived to give testimony in his case, and his mother, father, and cousin were all witnesses
to the shooting. In Thomas v. Nugent,202 an arrestee, Baron Pikes, died after being
repeatedly tased by the arresting officer.203 The Fifth Circuit held that an arresting
officer’s use of a stun gun six to eight times on a handcuffed Mr. Pikes to obtain compliance with police commands to cooperate in the effect of his arrest, was not objectively unreasonable in light of clearly established law, and thus the officer’s actions
were protected under qualified immunity from a Section 1983 excessive force suit.204
In a footnote, the panel observed:
Essentially the only evidence in the record about the reasonableness or unreasonableness of the force applied comes from the
arresting and jail officers. Consequently, although there were numerous tasings, which certainly raises suspicion as to the excessiveness of force, none of the evidence shows that the tasings
were an unreasonable response under the circumstances reflected
in the record before us.205
Of course, “the circumstances” were those as related by the officers involved. Even in
the wake of the rather pointed message sent by the Supreme Court in vacating and remanding both Tolan and Thomas, the Fifth Circuit has continued to render seemingly
improper summary judgment rulings on qualified immunity.206
A good case to contrast with the Fifth Circuit’s approach in Tolan and Thomas is
Cruz v. City of Anaheim.207 In Cruz, Anaheim police officers were given information
201

Thomas v. Nugent, 134 S. Ct. 2289 (2014).
539 F. App’x 456 (5th Cir. 2013), cert. granted, 134 S. Ct. 2289 (2014), vacated and
remanded in light of Tolan, 134 S. Ct. 1861.
203
Id. at 458.
204
Id. at 458, 461.
205
Id. at 461 n.35.
206
See, e.g., Dawson v. Anderson Cnty., 566 F. App’x 369, 371–72, 376–79 (5th Cir. 2014)
(Dennis, J., dissenting) (“The majority concludes that Dawson has failed to present a genuine
issue of material fact regarding whether the Defendants . . . violated clearly established Fourth
Amendment law by repeatedly shooting at her with a pepperball gun during a strip search in
which she was undressed, unarmed, and surrounded by multiple officers. The majority fails to
view the evidence in the light most favorable to Dawson and disregards reasonable inferences
that jurors could draw from the record to conclude that under clearly established law, the officers
used excessive force and conducted a strip search in an unreasonable manner in violation of
Dawson’s Fourth Amendment rights. Accordingly, I respectfully dissent and would reverse
and remand for trial.” (footnote omitted), pet. for reh’g and reh’g en banc denied, 769 F.3d 326
(5th Cir.)). But see Luna v. Mullenix, 773 F.3d 712, 720 (5th Cir. 2014).
207
765 F.3d 1076 (9th Cir. 2014).
202

944

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

about Cruz by a confidential informant.208 Told that Cruz was a gang member who sold
drugs and carried a gun, the officers converged on Cruz while he was in his vehicle,
surrounding him in a Walmart parking lot.209 According to the officers, Cruz disobeyed
orders to get on the ground as he exited his vehicle and instead reached for his
waistband, bringing all five officers to fire a total of twenty shots in two to three
seconds.210 As they approached the car, they found Cruz’s body was entangled in his
seatbelt.211 There was no gun found on his body, but a loaded weapon was later
found on the passenger seat of Cruz’s vehicle.212 The district court granted summary
judgment for the officers based on their uncontradicted version of the facts.213 As
Judge Kozinski explained, in reversing the grant of summary judgment, this was a
case of “‘we said, he’s dead,’”214 in which the reasonableness of the use of deadly
force will turn on the jury’s answer to the question of whether Cruz reached for his
waistband.215 For the court deciding the motion for summary judgment, however, the
question is a different one: “Could any reasonable jury find it more likely than not
that Cruz didn’t reach for his waistband?”216 As the court notes, this question should
not be answered by considering only the officers’ self-serving testimony. The court
must consider whatever circumstantial evidence might discredit their story.217 Given
the undisputed fact that no gun was found on Cruz, a jury might question why he
would have been reaching for his waistband.218 This, along with other “material
factual discrepancies,” led the Ninth Circuit panel to reverse the grant of summary
judgment.219 Whether Tolan represents a unique response to a particularly egregious
misapplication of summary judgment rules to an especially horrendous set of facts or
whether it will be invoked to ward off summary judgment on qualified immunity in
a much broader spectrum of cases remains to be seen. Since Tolan, there have been
other decisions recognizing and applying the appropriate standard for summary judgment in the qualified immunity context.220 My guess is that Tolan, while not on the
208

Id. at 1077.
Id. at 1077–78.
210
Id. at 1078.
211
Id.
212
Id.
213
Id.
214
Id. at 1077.
215
Id. at 1079.
216
Id.
217
Id.
218
Id.
219
Id. at 1080.
220
See, e.g., Luna v. Mullenix, 773 F.3d 712, 720 (5th Cir. 2014) (“Mullenix asserts that, as
a matter of law, his use of force was not objectively unreasonable because he acted to protect
other officers, including Officer Ducheneaux beneath the overpass and officers located further
north up the road, as well as any motorists who might have been located further north. However,
accepting plaintiffs’ version of the facts (and reasonable inferences therefrom) as true, these
209

2015]

SECTION 1983 LITIGATION

945

merits of the qualified immunity defense, will be one of the more helpful and significant Supreme Court opinions in terms of process for plaintiffs asserting Section 1983
claims against officials in their individual capacities.
D. Clearly Established Law: “But I Don’t Want to Go Among Mad People.”221
The question of “what makes the law clearly established” is riddled with contradictions and complexities. As Judge Hall of the Second Circuit has recently noted,
“[f]ew issues related to qualified immunity have caused more ink to be spilled than
whether a particular right has been clearly established, mainly because courts must
calibrate, on a case-by-case basis, how generally or specifically to define the right at
issue.”222 Judge Wilson has observed:
[T]he way in which courts frame the question, “was the law
clearly established,” virtually guarantees the outcome of the qualified immunity inquiry. Courts that permit the general principles
facts are sufficient to establish that Mullenix’s use of deadly force was objectively unreasonable.”); Williams v. Holley, 764 F.3d 976, 980 (8th Cir. 2014) (“Holley contends there is insufficient evidence for a reasonable juror to find his decision to use lethal force against Cletis
was unreasonable. Holley, in essence, contends the court is bound to accept his version of events
because he is the only surviving eyewitness of the altercation. Holley, however, overlooks the
circumstantial evidence which shows possible inconsistencies with Holley’s account of the
shooting. As the district court found, the circumstantial evidence raised questions of fact regarding material aspects of Holley’s account of the event. We must view these inconsistencies in the
light most favorable to Roseetta, giving Roseetta the benefit of all reasonable inferences.” (citing
Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014); Edwards v. Byrd, 750 F.3d 728, 731 (8th Cir.
2014)); Miller v. Gonzalez, 761 F.3d 822, 828–29 (7th Cir. 2014) (“The district court’s decision
ultimately rests on the proposition that an accidental use of force cannot be excessive under
the Fourth Amendment. But whether Gonzalez’s use of force was accidental is precisely the
disputed question—a question that cannot be resolved on this record given the competing
versions of the event. . . . If Miller is believed, Gonzalez saw him subdued at gunpoint, lying
motionless and spread-eagled on the ground, and then deliberately brought down his knee on
Miller’s jaw with enough force to break it.” (citations omitted)); Felders ex rel. Smedley v.
Malcom, 755 F.3d 870, 885 (10th Cir. 2014) (“When the district court concludes that a reasonable jury could view the facts a certain way, we take them as true. Thus, at this stage in the
litigation, we cannot rule out the possibility that Bairett caused the car doors to remain open,
Malcom was aware that Bairett caused the car doors to remain open, and Duke [a drug sniffing
dog] failed to properly alert before entering the vehicle. If that is what actually happened, then
Malcom violated clearly established law.” (footnote omitted)), cert. denied, 2015 WL 133498
(Jan. 12, 2015).
221
CARROLL, supra note 71. (“‘But I don’t want to go among mad people,’” Alice remarked.
‘Oh, you can’t help that,’ said the Cat: ‘we’re all mad here. I’m mad. You’re mad.’”).
222
Golodner v. Berliner, 770 F.3d 196, 205 (2d Cir. 2014). Judge Hall recommends application of the “Goldilocks principle,” an approach I have also recommended to judges in training
programs. Id. at 206. Under such a principle, the court should frame the right neither so narrowly
that “government actors will invariably receive qualified immunity,” nor so broadly that “immunity will be available rarely, if ever.” Id.

946

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

enunciated in cases factually distinct from the case at hand to
“clearly establish” the law in a particular area will be much more
likely to deny qualified immunity to government actors in a variety
of contexts. Conversely, those courts that find the law governing
a particular area to be clearly established only in the event that
a factually identical case can be found, will find that government
actors enjoy qualified immunity in nearly every context.223
The source of these different approaches may be traced to the forked tongue with which
the Supreme Court has spoken. In reviewing cases from the Ninth and Eleventh Circuits, the Court has sent out mixed signals.224 Defendants will cite to language from
Saucier v. Katz,225 Brosseau v. Haugen,226 Ashcroft v. al-Kidd,227 Ryburn v. Huff,228 and
Stanton v. Sims,229 all decisions reversing the Ninth Circuit and demanding a more
factually specific framing of the right in question. Plaintiffs will cite to Hope v.
Pelzer,230 an opinion chastising the Eleventh Circuit for its insistence on a case with
“‘materially similar’ facts” in order to have the law clearly established, and stressing
that “fair warning”231 is all that is needed. As I have noted elsewhere, I do not think
there is much Hope left for plaintiffs.232 It has been over ten years since the Court has

223

Wilson, Location, supra note 68, at 475.
Jeffries, Jr., What’s Wrong with Qualified Immunity?, supra note 7, at 852 (commenting on the “conflicting signals” from the Supreme Court).
225
533 U.S. 194, 201 (2001) (explaining that the clearly established law inquiry “must be
undertaken in light of the specific context of the case, not as a broad general proposition”).
226
543 U.S. 194, 200, 201 (2004) (per curiam) (framing the question in a very fact-specific
way—whether it was clearly established that it was unconstitutional “to shoot a disturbed
felon, set on avoiding capture through vehicular flight, when persons in the immediate area are
at risk from that flight,” and noting that none of the cases proffered by the plaintiff to demonstrate
clearly established law “squarely govern[ed] the case here”).
227
131 S. Ct. 2074, 2083 (2011) (“A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates
that right.’ We do not require a case directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate.” (alteration in original)) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
228
132 S. Ct. 987, 990 (2012) (per curiam) (“No decision of this Court has found a Fourth
Amendment violation on facts even roughly comparable to those present in this case.”).
229
134 S. Ct. 3, 7 (2013) (per curiam) (“[W]hether or not the constitutional rule applied by
the court below was correct, it was not ‘beyond debate.’” (quoting al-Kidd, 131 S. Ct. at 2083)).
230
536 U.S. 730 (2002).
231
Id. at 741 (“[T]he salient question that the Court of Appeals ought to have asked is
whether the state of the law in 1995 gave respondents fair warning that their alleged treatment
of Hope was unconstitutional.”).
232
See generally Karen Blum, Erwin Chemerinsky & Martin A. Schwartz, Qualified Immunity Developments: Not Much Hope Left For Plaintiffs, 29 TOURO L. REV. 633 (2013).
224

2015]

SECTION 1983 LITIGATION

947

denied qualified immunity to a state actor,233 and whether that trend will continue
will be tested when the Court renders its opinion in City and County of San Francisco
v. Sheehan,234 a case from the Ninth Circuit granted certiorari as this Article was being
written. In Sheehan, a social worker called the San Francisco Police Department to ask
for assistance in taking into custody, for purposes of treatment and evaluation, a mentally-ill, middle-aged woman who lived in a group home for persons with mental
233

See Groh v. Ramirez, 540 U.S. 551, 563 (2004) (“Given that the particularity requirement
is set forth in the text of the Constitution, no reasonable officer could believe that a warrant that
plainly did not comply with that requirement was valid.”); see also Hope, 536 U.S. at 752–60
(denying qualified immunity to prison guards who attached a prisoner to a hitching post for
seven hours in the hot sun with no shirt, no bathroom breaks and little, if any, water). In the
Court’s last term, it issued three opinions addressing the merits of the qualified immunity
defense, ruling unanimously in each case that the officials were entitled to qualified immunity.
See Lane v. Franks, 134 S. Ct. 2369, 2382–83 (2014) (“At the time of Lane’s termination,
Eleventh Circuit precedent did not provide clear notice that subpoenaed testimony concerning
information acquired through public employment is speech of a citizen entitled to First Amendment protection . . . . There is no doubt that the Eleventh Circuit incorrectly concluded that
Lane’s testimony was not entitled to First Amendment protection. But because the question was
not ‘beyond debate’ at the time Franks acted, Franks is entitled to qualified immunity.” (quoting
al-Kidd, 131 S. Ct. at 2083)); Wood v. Moss, 134 S. Ct. 2056, 2068 (2014) (“No decision of
which we are aware . . . would alert Secret Service agents engaged in crowd control that they
bear a First Amendment obligation ‘to ensure that groups with different viewpoints are at comparable locations at all times.’” (quoting Moss v. U.S. Secret Serv., 711 F.3d 941, 952 (9th Cir.
2013) (O’Scamlain, J., dissenting)); Plumhoff v. Rickard, 134 S. Ct. 2012, 2022, 2023 (2014)
(“We have held that petitioners’ conduct did not violate the Fourth Amendment, but even if
that were not the case, petitioners would still be entitled to summary judgment based on
qualified immunity . . . . ‘[E]xisting precedent must have placed the statutory or constitutional
question’ confronted by the official ‘beyond debate.’ In addition, ‘[w]e have repeatedly told
courts . . . not to define clearly established law at a high level of generality,’ since doing so
avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” (third and fourth alteration in original) (quoting al-Kidd, 131 S. Ct.
at 2074, 2083–84)).
The Supreme Court’s tendency to rarely deny qualified immunity to public officials has not
gone unnoticed by judges and scholars. See, for example, C.B. v. City of Sonora, 769 F.3d 1005
(9th Cir. 2014) (Smith, J., concurring in part and dissenting in part), where Judge Smith notes:
The Supreme Court’s recent case law illustrates the substantial protection
that qualified immunity affords police officers. Although each case is
decided based on its specific facts, the reality is that the Supreme Court in
the recent past has rarely denied qualified immunity to police officers.
As one scholar has observed, before the recent reversal of a grant of qualified immunity in Tolan, 134 S. Ct. 1861, the Court had not ruled against
a police officer in a qualified immunity case since Groh v. Ramirez, 540
U.S. 551 (2004), decided nearly a decade earlier.
Id. at 1038 n.5 (internal citation omitted).
234
Sheehan v. City and Cnty. of San Francisco, 743 F.3d 1211 (9th Cir. 2014), cert.
granted, City and Cnty. of San Francisco v. Sheehan, 135 S. Ct. 702 (2014). Because Justice
Breyer’s brother was the district court judge in the case, he did not participate in the decision
to grant certiorari.

948

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

illness.235 Teresa Sheehan had stopped taking her medications, was not taking care of
herself, and had threatened to kill the social worker with a knife when he tried to enter
her room to perform a welfare check.236 When Officer Holder and Sergeant Reynolds
arrived at the home, they accompanied the social worker to Ms. Sheehan’s room. After
knocking and announcing that they were police, the officers entered the room using
a key. Ms. Sheehan grabbed a knife, walked towards the officers, told them they didn’t
have a search warrant, and threatened to kill them unless they left her alone.237 Following the threat, the officers retreated, closed the door and left Ms. Sheehan in her room.
They called for backup and instructed the social worker to await the back-up officers
and let them in on arrival. So far, so good. Instead of awaiting the backup, however,
Sergeant Reynolds and Officer Holder, with service weapons drawn, forced open
the door to Ms. Sheehan’s room.238 When Sheehan advanced with a knife, Sergeant
Reynolds initially used pepper spray, but to no effect. Both officers then fired, and
Sheehan was hit five or six times.239 Sheehan survived and, after prevailing on the criminal charges brought against her,240 she filed a civil rights action against the officers
as well as the City and County of San Francisco, alleging Fourth Amendment claims
under Section 1983 for unreasonable search and seizure and excessive force.241 The
235

743 F.3d at 1217. The social worker was an “authorized person” who could initiate a
72-hour detention under California Welfare & Institutions Code § 5150. Id. at 1218.
236
Id. at 1217.
237
Id. at 1218–19.
238
Id. at 1219.
239
Id. at 1220.
240
Sheehan was prosecuted:
[F]or two counts of assault with a deadly weapon, two counts of assaulting
a police officer with a deadly weapon and one count of making criminal
threats against Hodge [the social worker]. . . . The jury hung on the four
assault counts and acquitted on the criminal threats count. The city elected
not to retry Sheehan.
Id.
241
Id. Sheehan also asserted a claim under the Americans with Disabilities Act (ADA), as
well as various state law claims. Id. There is disagreement among the circuits as to whether and
to what extent the ADA applies in the context of arrests or other seizures of emotionally disturbed or mentally ill persons. See id. at 1231. In addressing the issue as a matter of first impression, the Ninth Circuit held that the ADA does apply in the context of arrests, and that a jury
could find that the city failed to reasonably accommodate Sheehan’s disability “when the officers
forced their way back into her room without taking her mental illness into account.” Id. at
1232–33. One of the questions on which the Supreme Court has granted certiorari is “[w]hether
Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the
suspect into custody.” Petition for Writ of Certiorari, City and Cnty. Of San Francisco v.
Sheehan, 135 S. Ct. 702 (2014) (No. 13-1412). The extent to which the ADA applies to arrests
or other seizures of mentally ill persons is beyond the scope of this Article, but I expect a majority of the Court may adopt a legal principle that runs close to that of the Fifth Circuit’s
position in Hainze v. Richards, 207 F.3d 795 (5th Cir. 2000). In Hainze, the court held that
Title II does not apply to an officer’s on-the-street responses to reported
disturbances or other similar incidents, whether or not those calls involve

2015]

SECTION 1983 LITIGATION

949

district court granted summary judgment on all claims for the defendants, and Ms.
Sheehan appealed.242
In addressing the issues raised by the Fourth Amendment claims, the Ninth Circuit
panel examined the conduct of the officers at each step of the encounter and was unanimous in concluding that the initial entry into Ms. Sheehan’s room without a warrant
was lawful under the emergency aid exception to the warrant requirement.243 There was
also agreement that the initial entry was conducted in a reasonable manner. The officers
knocked and announced, used a pass key, and entered without weapons drawn.244 As
to the second entry, however, while all agreed that the emergency aid exception still applied and there remained no need for a warrant,245 the majority of the panel refused
to hold, as a matter of law, that the decision to force the second entry was reasonable.246
Taking into consideration the report of Lou Reiter, plaintiff’s expert,247 along with

subjects with mental disabilities, prior to the officer’s securing the
scene and ensuring that there is no threat to human life. Law enforcement
personnel conducting in-the-field investigations already face the onerous
task of frequently having to instantaneously identify, assess, and react
to potentially life-threatening situations. To require the officers to factor
in whether their actions are going to comply with the ADA, in the
presence of exigent circumstances and prior to securing the safety of
themselves, other officers, and any nearby civilians, would pose an
unnecessary risk to innocents.
Id. at 801. If the Court were to embrace a theory that the ADA does apply to arrests, it would not
be unreasonable to limit the reasonable accommodations requirement to situations where officers
have “secur[ed] the scene and ensur[ed] that there is no threat to human life.” Id. There would
still be a question about how that approach might apply to the facts of Sheehan, and resolution
of that question will depend on whether the Court views the undisputed facts as having established that Ms. Sheehan was “secured” and presenting “no threat to human life” at the time
of the second forced entry that precipitated the shooting. Tolan’s admonition that reasonable inferences must be drawn in favor of the non-moving party would lend support to Ms. Sheehan’s
claim that the scene was secured, she had no means of escape, and she presented no threat
to others or herself while confined to her room. She had never threatened to harm herself. See
Sheehan, 743 F.3d at 1226.
242
Sheehan, 743 F.3d at 1220.
243
Id. at 1222. As the court explained, “[T]he emergency aid exception applies when: ‘(1)
considering the totality of the circumstances, law enforcement had an objectively reasonable
basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search’s scope and manner were reasonable to meet the need.’” Id. at
1221 (citing United States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008)).
244
Id. at 1223.
245
Id. at 1224–25.
246
Id. at 1225.
247
The author acknowledges that she knows Mr. Reiter well and respects his professional
opinion as to the “reasonableness” of the officers’ conduct. According to the court, Reiter explained “officers are trained not to unreasonably agitate or excite the [mentally ill] person,
to contain the person, to respect the person’s comfort zone, to use nonthreatening communications and to employ the passage of time to their advantage.” Id. at 1225.

950

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

the training the officers had received,248 and the totality of the circumstances, and
viewing the facts in the light most favorable to the plaintiff,249 the majority concluded that “a reasonable jury could find that the officers’ decision to force a confrontation with Sheehan was objectively unreasonable,”250 and thus violated the
Fourth Amendment.
Having determined that a reasonable jury could find that the second entry constituted a constitutional violation, the majority proceeded to deny qualified immunity
on this Fourth Amendment claim, relying primarily on Graham v. Connor,251 Alexander
v. City and County of San Francisco,252 and Deorle v. Rutherford253 as cases that clearly
248
San Francisco training materials “advise officers to request backup, to calm the situation,
to communicate, to move slowly, to assume a quiet, nonthreatening manner, to take time to
assess the situation and to ‘give the person time to calm down.’” Id. For an excellent article that
makes the case for taking into account how police are trained regarding emotionally disturbed
persons when assessing the constitutionality of the use of force against such persons, see
Michael Avery, Unreasonable Seizures of Unreasonable People: Defining the Totality of Circumstances Relevant to Assessing the Police Use of Force Against Emotionally Disturbed
People, 34 COLUM. HUM. RTS. L. REV. 261 (2003).
249
Viewing the facts favorably to the plaintiff, the officers had been told by the social
worker that there was no avenue of escape from plaintiff’s room other than the door they
were guarding and that all other occupants of the building had been evacuated. Sheehan, 743
F.3d at 1226. Plaintiff was not suicidal. Id. Furthermore, backup was on the way at the time of
the second entry, and trained negotiators with less lethal weapons would be available to defuse
the situation. Id. at 1228. Cf. Aldaba v. Pickens, No. 13-7034, 2015 WL 451227, at *4 (10th Cir.
Feb. 4, 2015) (“When an individual poses a more severe and immediate threat to himself, a
higher level of force may be reasonable in order to seize him for protective custody purposes.”);
Rice v. ReliaStar Life Ins. Co., 770 F.3d 1122, 1131 (5th Cir. 2014) (holding that “the threat an
individual poses to himself may create an exigency that makes the needs of law enforcement so
compelling that a warrantless entry is objectively reasonable under the Fourth Amendment”).
250
Id. at 1226.
251
490 U.S. 386 (1989). Invoking the balancing test of Graham, the majority weighed the
significant intrusion on Ms. Sheehan’s Fourth Amendment rights against the need for an
immediate re-entry of her room, “apparently without warning and with guns drawn, under
conditions that were likely to result in her death” and concluded that “any reasonable officer
would have known that this use of force was excessive.” Sheehan, 743 F.3d at 1228.
252
29 F.3d 1355 (9th Cir. 1994). In Alexander, the plaintiff claimed that officers executing
an administrative warrant for the health inspection of a home “storm[ed] the house of a man
whom they knew to be a mentally ill, elderly, half-blind recluse who had threatened to shoot anybody who entered.” Id. at 1366. The confrontation ended with the elderly man being killed.
Id. at 1358. While the use of deadly force in Alexander may have been justified at the moment
of the shooting, the Ninth Circuit concluded that summary judgment for the officers was inappropriate because if a jury found that the officers entered for the purpose of assisting in a health
inspection, the jury could also find that the use of a SWAT team to make such an entry constituted excessive force under the circumstances. Id. at 1366–67. In Alexander, backup was
summoned and negotiation was attempted before making the forced entry. Id. at 1358.
253
272 F.3d 1272 (9th Cir. 2001). In Deorle, the court denied qualified immunity to an
officer who shot an unarmed mentally ill person with a less lethal weapon (lead-filled beanbag round), where there was no threat presented to the officer, he had a clear line of retreat,

2015]

SECTION 1983 LITIGATION

951

established the law and “would have placed any reasonable, competent officer on notice
that it is unreasonable to forcibly enter the home of an armed, mentally ill subject
who had been acting irrationally and had threatened anyone who entered when there
was no objective need for immediate entry.”254 The majority was careful to emphasize that its conclusions as to the merits of the Fourth Amendment violation and the
denial of qualified immunity were based on its view of the facts and reasonable inferences drawn therefrom in the light most favorable to Ms. Sheehan.255 On facts the
majority considered “disputed,” there was an acknowledgment that at trial, a jury
might find that “Sheehan was not contained, that she presented a flight risk, that officers
or others were in danger, or that the officers reasonably but mistakenly believed that
their entry was necessary to prevent Sheehan’s escape or ensure the safety of themselves or others.”256
Frankly, it is somewhat difficult to discern if there are really any material facts in
dispute in Sheehan or whether the facts are essentially agreed upon and the question
is just one of the reasonableness of the officers’ conduct under the given set of facts.
The one material fact that the panel identifies as apparently disputed is whether Hodge,
the social worker, “told the officers that no one else was in the building.”257 If defendants do not dispute the fact that Hodge informed the officers that he had cleared the
building and if there are no other material facts in dispute, then under Scott v. Harris,258
the question of the reasonableness of the officers’ conduct given the undisputed facts
is a “pure question of law” for the court to decide.259
For plaintiff to prevail in the Supreme Court on the unlawfulness of the second
entry, the Court260 would have to agree that there were disputed material facts that, if
found in favor of plaintiff, would support a jury’s determination that the officers’ decision to make the second entry at the time and in the manner they did, without awaiting backup, was objectively unreasonable. The Court could also conclude that there
are no material facts in dispute and decide the reasonableness of the second entry as a
and where a confrontation could easily have been avoided. Id. at 1282. The court also stated
that “where it is or should be apparent to the officers that the individual involved is emotionally disturbed, that is a factor that must be considered in determining, under Graham, the
reasonableness of the force employed.” Id. at 1283.
254
Sheehan, 743 F.3d at 1229.
255
Id. at 1228–29.
256
Id. at 1229.
257
Id. at 1218 n.1.
258
550 U.S. 372 (2007).
259
Id. at 381 n.8. This author does not agree that the question of “objective reasonableness”
under the Fourth Amendment should always be a question for the court rather than a jury.
In cases where the answer is not obvious, I agree with Justice Stevens’s assessment in Scott that
“[w]hether a person’s actions have risen to a level warranting deadly force is a question of fact
best reserved for a jury.” Id. at 395 (Stevens, J., dissenting).
260
Justice Breyer has recused himself from the case, so the Ninth Circuit opinion as to the
Fourth Amendment issues could be affirmed by a 4–4 split.

952

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

matter of law. If a majority decides (1) that the disputed facts when viewed in the light
most favorable to the plaintiff could not support a jury’s finding of objective unreasonableness as to the second entry, or that there are no disputed facts, and (2) that the
second entry was objectively reasonable as a matter of law, then it’s “game over” for
the plaintiff on the Fourth Amendment unreasonable search and seizure and excessive force claims. The panel was in agreement that “the officers’ use of deadly
force—viewed from the standpoint of the moment of the shooting—was reasonable
as a matter of law.”261 It was only under the Ninth Circuit’s “provocation theory”262
that the shooting could be deemed unreasonable. Thus, the officers could be found liable for the harm caused by the shooting only if the second entry constituted an independent Fourth Amendment violation that recklessly provoked the violent confrontation
with Sheehan. Thus, under the Ninth Circuit’s analysis, the claim of excessive force
will stand or fall with the claim based on the wrongful entry.
A holding against the plaintiff on the merits of the second entry would obviate the
need to address the second prong of the immunity analysis, the clearly-establishedlaw question. But, if the Court were to find in favor of the plaintiff on the unlawfulness
of the second entry, the plaintiff would have to convince the Court that the Ninth Circuit’s clearly-established-law analysis withstands scrutiny. Of course, pursuant to
Pearson and as it did in Stanton, the Court could jump to the second prong and hold
that the officers should be granted qualified immunity because, whether or not their
conduct in making the second entry violated the Fourth Amendment, the unlawfulness
of entering the home of a mentally ill person who, at the moment before entry, could
not escape and posed no imminent threat to herself or others, including the officers,
was not clearly established by Supreme Court or Ninth Circuit precedent and was not
beyond debate. It is clear that there is no Supreme Court precedent that would be controlling with respect to the facts in Sheehan. While Graham clarifies the general
framework to be applied to claims of unreasonable seizures under the Fourth Amendment,263 and “clearly establishes the general proposition that use of force is contrary
to the Fourth Amendment if it is excessive under objective standards of reasonableness,”264 as the Court explained in Saucier, that may not be enough to put an officer on
notice that his or her conduct was “unlawful in the situation he confronted.”265 Deorle
involved the use of a beanbag round against a mentally ill person and an officer who
261

Sheehan, 743 F.3d at 1229.
Id. at 1230 (citing Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002) (“[W]here an
officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use
of deadly force.”)).
263
Graham sets forth factors to be used in determining whether the use of force is excessive
under the Fourth Amendment—factors that include the severity of the crime, whether the
suspect poses a threat to the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight. Graham v. Connor, 490 U.S. 386, 396 (1989).
264
Saucier v. Katz, 533 U.S. 194, 201–02 (2000).
265
Id. at 202.
262

2015]

SECTION 1983 LITIGATION

953

unnecessarily provoked the encounter. Yet, the facts may be distinguished in material ways. Deorle was unarmed, had complied with officers’ demands, and had not
threatened to harm anyone when he was shot.266 Nor did Deorle entail an entry into
a room or home.
Alexander did involve the forcible entry into the home of a man known to be
mentally impaired pursuant to an administrative warrant authorizing a forcible entry
for purposes of conducting a health inspection.267 When Quade, the occupant, refused
to cooperate and threatened to shoot anyone who entered, the sergeant on the scene
called for a tactical team and negotiators to assist. After an hour of fruitless negotiation attempts, the decision was made to forcibly enter the home in order “to take Quade
into custody.”268 Quade responded as promised and was shot and killed in return
fire.269 Plaintiff’s challenge in Alexander, as in Sheehan, was based on the allegedly unlawful entry, not the use of deadly force at the moment the officers were confronted
with an armed and threatening occupant. Plaintiff argued that the administrative warrant did not authorize an entry for the purpose of arresting Quade, and that without exigent circumstances,270 an arrest warrant was required to enter a home for a felony
arrest.271 The Ninth Circuit found that “[a] genuine dispute exist[ed] as to whether
or not defendants ordered the storming of the house primarily for the purpose of arresting Quade,”272 but agreed with plaintiff that if the forcible entry were for the
purpose of arrest, the law was clearly established that an arrest warrant was needed.273
Furthermore, on the amount of force used in effecting the entry, the court concluded
that the jury’s resolution of the disputed fact as to the purpose of the entry would also
266

Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001).
Alexander v. City and Cnty. of San Francisco, 29 F.3d 1355, 1357–58 (9th Cir. 1994).
268
Id. at 1358–59. After the event, a captain on the scene gave the following statement to
the press:
It wasn’t necessarily dangerous but we could have been waiting all day
long. The man was just unresponsive to any of our demands, any of our
requests. And with the hostage negotiators and myself it appeared that he
was not going to respond and uh we felt that rather than keep traffic
blocked up and the streets blocked all day long we would try to go in
and arrest him.
Id.
269
Id.
270
As Judge Kozinski noted in his concurring opinion, “No exigency stood in the way of
seeking a warrant. The suspect was encircled and was no threat to anybody. Keeping the house
blockaded long enough to apply for a warrant would have been a nuisance but, as best the
record discloses, posed no danger to the community.” Id. at 1368 (Kozinski, J., concurring)
(citations omitted).
271
Id. at 1360.
272
Id. at 1364.
273
Id. (“If [arrest] is the purpose, clearly established law requires an arrest warrant, and also
prohibits the conversion of an administrative warrant into an all-purpose tool in the hands of law
enforcement authorities.”).
267

954

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

bear on the jury’s determination of the reasonableness of the means used to make
the entry.274 A reasonable jury might find that “storming the house” was unreasonable
as a means of executing a health inspection warrant, but might be reasonable as a
means of executing the arrest of someone who had threatened to shoot anyone who
entered his home.275 On the clearly-established-law issue, the Ninth Circuit found
Alexander to have much in common with the facts of Sheehan:
In both cases, police officers had a legal right to enter a person’s
home (to render emergency aid in Sheehan’s case and to execute
an administrative warrant in Alexander). In both cases, the subject
was contained and had threatened those who entered. In both, the
officers knew they were dealing with someone who was mentally
ill and acting irrationally. And in both, police officers decided to
force an entry, knowing it was likely to result in a violent confrontation, absent the need to do so.276
In fact, the conduct of the officers in Alexander was arguably more reasonable. They
awaited backup and attempted negotiation before making the forcible entry.277
If the Supreme Court addresses the clearly-established-law prong of the qualified
immunity analysis in Sheehan, we will learn how much Hope is left. While Graham
may be too general and Deorle may be too factually dissimilar, Alexander would seem
to satisfy the “Goldilocks” test278 in giving fair warning of the unlawfulness of forcibly
entering the home of an armed and threatening, mentally-ill person “when there was no
objective need for immediate entry.”279 In my opinion, on the facts of Sheehan, one
could also make a case that the conduct of these officers, one of whom held the rank
of Sergeant, was “plainly incompetent.”280 Both officers had been trained in how to
conduct themselves in encounters with mentally ill persons.281 They had called for
backup which had arrived as they were engaged in the second entry. They were not in
some remote, rural area where backup might take time to arrive. There appeared to be
no urgent need to enter the room before the negotiators and the officers equipped with
less-than-lethal weapons were available. Indeed, to borrow from Alexander Pope, one
might conclude that this was a case of “fools rush[ing] in.”282
274

Id. at 1366–67.
Id. at 1367.
276
Sheehan v. City and Cnty. of San Francisco, 743 F.3d 1211, 1228–29 (9th Cir. 2014).
277
Id. at 1229.
278
See supra note 222 and accompanying text.
279
Sheehan, 743 F.3d at 1229.
280
See Malley v. Briggs, 475 U.S. 335, 341 (1986) (“As the qualified immunity defense has
evolved, it provides ample protection to all but the plainly incompetent or those who knowingly
violate the law.”).
281
See supra notes 241–48 and accompanying text.
282
ALEXANDER POPE, AN ESSAY ON CRITICISM 36 (1711). The full line is “[f]ools rush in
where angels fear to tread.” Id. Having said this, given the Ninth Circuit’s long losing streak in
275

2015]

SECTION 1983 LITIGATION

955

Defining the contours of the right in question is only one aspect of the clearlyestablished-law puzzle. Even if one can agree on what the “right” in question is,
there is lingering uncertainty about where one looks to decide whether the law was
clearly established. What law counts? Note that in both Carroll and Reichle, the
Court assumed arguendo that “a controlling circuit precedent could constitute clearly
established federal law.”283 Despite some Supreme Court guidance on what law counts
in the clearly-established-law analysis, the question of what law controls is itself still
amazingly unclear.284 In Wilson v. Layne,285 the Supreme Court indicated that “cases of
controlling authority in [the] jurisdiction at the time of the incident which clearly established the rule on which [plaintiffs] seek to rely” or “a consensus of cases of persuasive
authority” could serve to clearly establish the law.286 In the absence of controlling
authority from the Supreme Court or the relevant jurisdiction, the majority of circuits
will consider circuit cases from other jurisdictions on the clearly-established-law prong
of the analysis.287
qualified immunity cases and the Court’s clear deference to law enforcement officials, I am not
optimistic about Ms. Sheehan’s chances of prevailing on her Fourth Amendment claims. I
hope I am wrong.
283
Carroll v. Carman, 135 S. Ct. 348, 350 (2014); see also Reichle v. Howards, 132 S. Ct.
2088, 2094 (2012). The tentativeness on the relevance of circuit law made some sense in
Reichle, where the defendants were federal law enforcement agents who operate nationally. In
Ashcroft v. al-Kidd, some members of the Court expressed a willingness to give more deference
to an official who functions on a national level because “[t]he official with responsibilities
in many jurisdictions may face ambiguous and sometimes inconsistent sources of decisional
law.”). 131 S. Ct. 2074, 2086 (2011) (Kennedy, J., concurring). In Carroll, however, the
Court’s hedging on the controlling nature of circuit precedent was not so justified and not explained. The law enforcement officer in Carroll was a local official whose conduct would
be governed by the law of the Ninth Circuit. Perhaps the Court’s hesitation was a reflection
of its general disagreement with Ninth Circuit rulings. See generally Carroll, 135 S. Ct. 348.
284
This subject provided fodder for a fascinating blog discussion. See Richard M. Re, Should
Circuit Precedent Deprive Officers of Qualified Immunity?, RES JUDICATA (Nov. 17, 2014, 6:49
AM), http://richardresjudicata.wordpress.com/2014/11/17/should-circuit-precedent-deprive-of
ficers-of-qualified-immunity/and http://richardresjudicata.wordpress.com/2014/11/14/does
-circuit-precedent-deprive-officers-of-qualified-immunity/more-1757.
285
526 U.S. 603 (1999).
286
Id. at 617.
287
See, e.g., Terebesi v. Torreso, 764 F.3d 217, 231 & n.12 (2d Cir. 2014); Jacobson v.
McCormick, 763 F.3d 914, 918 (8th Cir. 2014); Brent v. Wenk, 555 F. App’x 519, 526–27
(6th Cir. 2014); Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011); Maldonado v.
Fontanes, 568 F.3d 263, 270–71 (1st Cir. 2009); Williams v. Bitner, 455 F.3d 186, 194 (3d Cir.
2006); Owens by and through Owens v. Lott, 372 F.3d 267, 280 (4th Cir. 2004); McClendon v.
City of Columbia (McClendon II), 305 F.3d 314, 329–30 (5th Cir. 2002) (en banc); Roska v.
Peterson, 304 F.3d 982, 998–1000 (10th Cir. 2002); Burgess v. Lowery, 201 F.3d 942, 944–46
(7th Cir. 2000). For the most liberal view of what can serve to clearly establish the law, see
Prison Legal News v. Lehman, 397 F.3d 692, 701–02 (9th Cir. 2005) (“In determining whether
PLN’s rights in this case were clearly established, and whether a reasonable person would
have known his or her actions violated these rights, we may look at unpublished decisions and

956

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

The combination of (1) uncertainty about how precisely or broadly the right may
be defined, (2) the role of Supreme Court, federal circuit and state law cases in establishing the defined right, and (3) the temporal problem of determining what law was
controlling at the time of the challenged conduct for purposes of giving sufficient notice
to public officials of the lawfulness of their conduct, makes for some decisions that
would baffle the best of us. One might say, “here’s where qualified immunity gets ‘curiouser and curiouser.’”288 For example, in 1992, in Hudson v. McMillian,289 the Supreme
Court addressed the question of “whether the use of excessive physical force against a
prisoner may constitute cruel and unusual punishment when the inmate does not suffer
serious injury.”290 The Court answered the question in the affirmative, holding:
When prison officials maliciously and sadistically use force to
cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident.
Otherwise, the Eighth Amendment would permit any physical
punishment, no matter how diabolic or inhuman, inflicting less
than some arbitrary quantity of injury.291
The Fourth292 and Eighth293 Circuits misconstrued the Supreme Court decision for
a number of years, requiring more than de minimis injury to state an excessive force
the law of other circuits, in addition to Ninth Circuit precedent.”). And for the most conservative view on this question, see Vinyard v. Wilson, 311 F.3d 1340, 1348 n.11 (11th Cir. 2002)
(“Although we cite and examine other circuits’ and district courts’ decisions under the first prong
of Saucier, we point out that these decisions are immaterial to whether the law was ‘clearly established’ in this circuit for the second prong of Saucier.”). One might conclude that neither the
Ninth Circuit nor the Eleventh Circuit has yet discovered the “Goldilocks” principle.
For a case where officers were afforded qualified immunity because their conduct was
in conformance with precedent of the Supreme Court of the state even though not consistent
with the law of the relevant circuit, see Sutterfield v. City of Milwaukee, 751 F.3d 542, 573
(7th Cir. 2014) (“In the absence of a controlling decision by the United States Supreme
Court, the Wisconsin cases are thus as relevant as our own precedents in evaluating what a
Milwaukee police officer might have thought the law permitted in responding to a report that
the occupant of a private dwelling was in danger of harming herself.”).
288
CARROLL, supra note 71.
289
503 U.S. 1 (1992).
290
Id. at 4.
291
Id. at 9.
292
See, e.g., Taylor v. McDuffie, 155 F.3d 479, 480 (4th Cir. 1998) (refusing to recognize excessive force claim by prisoner where only de minimis injury alleged); Riley v. Dorton, 115
F.3d 1159, 1160 (4th Cir. 1997) (same); Norman v. Taylor, 25 F.3d 1259, 1260 (4th Cir. 1994)
(en banc) (same).
293
See, e.g., Meehan v. Thompson, 763 F.3d 936, 946, 947 (8th Cir. 2014) (“We recognized
for the first time in Chambers v. Pennycook, 641 F.3d 898 (8th Cir. 2011), that police conduct
that causes only de minimis injury could constitute excessive force.”); Crumley v. City of St.
Paul, 324 F.3d 1003, 1007 (8th Cir. 2003) (“[W]hile this court has stated ‘[i]t remains an open

2015]

SECTION 1983 LITIGATION

957

claim. In 2010, in Wilkins v. Gaddy,294 the Supreme Court finally set them straight in
reversing the Fourth Circuit with the criticism that the Fourth Circuit’s strained reading of Hudson was indefensible.295 Despite the Supreme Court’s holding in Hudson
and Gaddy’s criticism of circuit law ignoring Hudson ’s clear implications, both the
Fourth296 and Eighth297 Circuits have recently issued opinions granting qualified immunity to officers who did not violate the law as it existed in the respective circuits at
the time, even though the circuit law in each instance was clearly inconsistent with
Supreme Court precedent.298 While we might instruct first year law students, as well
as police officers, that Supreme Court opinions trump circuit law, apparently this is not
the case when it comes to qualified immunity. Even the Supreme Court has deferred to
bad circuit law on the qualified immunity issue.
question in this circuit whether an excessive force claim requires some minimum level of injury,’
Hunter v. Namanny, 219 F.3d 825, 831 (8th Cir. 2000), a de minimus use of force or injury
is insufficient to support a finding of a constitutional violation.” (alterations in original)).
294
559 U.S. 34 (2010).
295
Id. at 39.
296
See Hill v. Crum, 727 F.3d 312, 322 (4th Cir. 2013) (acknowledging that the Fourth Circuit
had been applying the incorrect standard, but granting qualified immunity because “[i]n 2007
under Norman, a reasonable correctional officer would have objectively believed that the law in
this circuit was what the Fourth Circuit said it was; that is, a plaintiff could not prevail on an excessive force claim ‘absent the most extraordinary circumstances,’ if he had suffered only de
minimis injury”); Williams v. Calton, 551 F. App’x 50, 51 (4th Cir. 2013) (per curiam) (same).
297
See Peterson v. Kopp, 754 F.3d 594, 601 (8th Cir. 2014) (“[Officer] Kopp could have reasonably believed his actions were constitutionally permissible as long as they did not cause
more than de minimis injury”); Bishop v. Glazier, 723 F.3d 957, 962 (8th Cir. 2013) (“The
amount of force that Glazier allegedly used did not cause more than de minimis injury. Glazier
is thus entitled to qualified immunity, because he did not violate Bishop’s then clearly established
constitutional rights under the Fourth Amendment.” (citations omitted)); LaCross v. City of
Duluth, 713 F.3d 1155, 1158 (8th Cir. 2013) (“In September 2006, when Mark deployed his
Taser, ‘a reasonable officer could have believed that as long as he did not cause more than de
minimis injury to an arrestee, his actions would not run afoul of the Fourth Amendment.’”).
298
As Judge Thacker noted in her dissent in Hill v. Crum:
Under prevailing Supreme Court precedent available at the time of the assault in this case, it was clearly established that an officer could not
maliciously or sadistically impose harm on a custodial, handcuffed, and
completely non-resistant inmate without violating the inmate’s Eighth
Amendment right to be free from cruel and unusual punishment—and any
reasonable officer would have known as much. . . . Appellant Crum
claims that he was entitled to assault Mr. Hill unabated for over two minutes so long as any resulting injury was de minimis. . . . Not so. Under
controlling Supreme Court precedent at the time—not to mention applying
pure common sense—no reasonable officer could have believed such
abuse was lawful. . . .On November 1, 2007, the controlling Supreme
Court authority for excessive force cases in the Eighth Amendment context was Hudson v. McMillian, 503 U.S. 1 (1992).
Hill v. Crum, 727 F.3d 312, 325–26 (4th Cir. 2013) (Thacker, J., dissenting).

958

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

In Lane v. Franks,299 the Court granted certiorari “to resolve discord among the
Courts of Appeals as to whether public employees may be fired—or suffer other
adverse employment consequences—for providing truthful subpoenaed testimony
outside the course of their ordinary job responsibilities.”300 In 2006, Edward Lane was
hired by Central Alabama Community College (CACC) to be the Director of Community Intensive Training for Youth (CITY), a “statewide program for underprivileged
youth.”301 When conducting an audit of the financially struggling program’s expenses,
Lane discovered that Suzanne Schmitz, an Alabama State Representative, had been on
the payroll of the program but was virtually a “no show” employee.302 Though advised
of the possible political repercussions, Lane fired Schmitz, prompting an investigation
by the FBI into Schmitz’s employment with CITY.303 The investigation culminated
with federal criminal charges and ultimately a conviction against Schmitz. Lane gave
truthful testimony under subpoena at the trial resulting in Schmitz’s conviction.304
Shortly thereafter, Steve Franks, then President of CACC, fired Lane, and Lane subsequently brought suit against Franks in his individual capacity for damages, claiming
that Lane’s termination was in retaliation for his protected speech and violated his First
Amendment rights.305 The Eleventh Circuit affirmed the district court’s grant of summary judgment for Franks,306 relying on Garcetti v. Ceballos,307 the Supreme Court
decision in which the Court held “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their communications
from employer discipline.”308 The Eleventh Circuit concluded that Lane’s speech was
based on information he had learned pursuant to his job duties and thus was unprotected, and the fact “[t]hat Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, [did] not bring Lane’s speech
within the protection of the First Amendment.”309 Furthermore, the court noted that
even if Franks’ conduct was found to have violated the First Amendment under these
circumstances, he would have been entitled to qualified immunity because the law was
not clearly established at the time.310
299

134 S. Ct. 2369 (2014).
Id. at 2377.
301
Id. at 2375.
302
Id.
303
Id.
304
Id.
305
Id. at 2376. Lane sued Franks in his official capacity as well for equitable relief, including
reinstatement. Id.
306
Lane v. Cen. Ala. Cmty. Coll., 523 F. App’x 709, 709–10 (11th Cir. 2013) (per curiam).
307
547 U.S. 410 (2006).
308
Id. at 421.
309
Lane, 523 F. App’x at 712.
310
Id. at 711 n.2.
300

2015]

SECTION 1983 LITIGATION

959

The Supreme Court reversed the Eleventh Circuit on the first prong of the immunity analysis, noting that “[i]n holding that Lane did not speak as a citizen when he
testified, the Eleventh Circuit read Garcetti far too broadly.”311 As the Court put it,
“[t]here is no doubt that the Eleventh Circuit incorrectly concluded that Lane’s testimony was not entitled to First Amendment protection.”312 Indeed, it’s fair to say that
the Eleventh Circuit’s strained reading of Garcetti was not defensible.313 Not only did
Garcetti say “nothing about speech that simply relates to public employment or concerns information learned in the course of public employment,”314 but, as the Court
pointed out, “[s]worn testimony in judicial proceedings is a quintessential example of
speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth.”315 Despite there being “no doubt”
that the Eleventh Circuit got it wrong, the Court affirmed the Eleventh Circuit’s grant
of summary judgment for Franks on qualified immunity grounds because “[a]t the time
of Lane’s termination, Eleventh Circuit precedent did not provide clear notice that subpoenaed testimony concerning information acquired through public employment is
speech of a citizen entitled to First Amendment protection.”316
Another bizarre twist in a qualified immunity case can be found in a recent Sixth
Circuit decision. In T.S. v. Doe,317 seven minors were arrested at an underage drinking
party and transported to a juvenile detention facility where they were strip searched and
held in a cell together until the following day.318 The underage drinking charges were
ultimately dropped.319 The parents of two of the children brought suit under Section
1983 on behalf of the juveniles, charging the correctional officers who performed the
311

Lane, 134 S. Ct. at 2378–79.
Id. at 2383.
313
See Wilkins v. Gaddy, 559 U.S. 34, 39 (2010) (“The Fourth Circuit’s strained reading of
Hudson is not defensible.”). As the concurring Justices in Lane noted, the question presented in
the case “require[d] little more than a straightforward application of Garcetti.” Lane, 134 S. Ct.
at 2383; see also Gibson v. Kilpatrick, 773 F.3d 661, 667–69 (5th Cir. 2014) (“Lane seems to
us to be an application of prior Supreme Court precedent. It was, after all, undisputed in Lane
that ‘Lane’s ordinary job responsibilities did not include testifying in court proceedings.’
Lane does not appear to have altered the standard for whether public employees speak
pursuant to their official duties, but appears rather to be an application of Garcetti’s rule.”
(citations omitted)).
314
Lane, 134 S. Ct. at 2379.
315
Id.
316
Id. at 2382–83; see also Moore v. Money, No. 14-3173, 2014 WL 5648156, at *3, *4
(6th Cir. Nov. 4, 2014) (relying on Lane to grant qualified immunity because “at the time of
Moore’s testimony, there was no ‘controlling authority’ or a ‘consensus of cases of persuasive
authority’ that could have put Defendants on notice that Moore’s testimony was protected
by the First Amendment”).
317
742 F.3d 632 (6th Cir. 2014).
318
Id. at 634.
319
Id.
312

960

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

search and other supervisory officials with Fourth Amendment violations.320 In 2009,
at the time of the challenged conduct, controlling law in the Sixth Circuit held that “the
suspicionless strip search of [adult] pretrial detainees held on minor, nonviolent
offenses violated the Fourth Amendment.”321 As common sense might dictate, and
as plaintiffs argued, a prohibition on suspicionless strip searches of adult pretrial detainees under such circumstances would a fortiori make any similar search of juvenile
misdemeanants unlawful.322 The district court in T.S. found Florence to be irrelevant
to the facts of T.S and denied qualified immunity323 based on the law as clearly established by the Sixth Circuit in Masters v. Crouch.324 On interlocutory review, the
Court of Appeals acknowledged that it was “simply not possible to square” its decision
in Masters with Florence and thus, Masters was abrogated.325 But Florence did not
directly control in the context of the facts of T.S. such that the Sixth Circuit could readily dispose of the case by a citation to the Supreme Court opinion.326 Instead of deciding the merits question left open in the wake of Florence, the court chose to dispose
of the case on the “clearly-established-law” prong. The court observed:
We admittedly face a unique situation. If this case involved adult
detainees, Florence clearly holds that there would be no constitutional violation. Here, however, Florence does not squarely
address the constitutional issue, so that we could dispose of the
merits of this case with nothing more than a citation. In the interest
of avoiding an advisory constitutional ruling, we should first look
to whether the rule that the plaintiffs advocate here was clearly
established at the time, so as to trigger liability for any potential
constitutional violation.327
Thus, the court framed the novel question as whether an official may “benefit from
a subsequent Supreme Court case that would cause a reasonable official to have at
least a good-faith doubt that a given practice is prohibited?”328 While acknowledging
320

Id. at 633–34.
Id. at 635 (citing Masters v. Crouch, 872 F.2d 1248, 1250 (6th Cir. 1989)).
322
Id. The court disagreed that this was the “type of common-sense conclusion that we may
draw absent established legal principle.” Id. at 640.
323
Id. at 635.
324
Masters, 872 F.2d at 1248.
325
T.S., 742 F.3d at 637.
326
Id.
327
Id.
328
Id. It is worth comparing the Fourth Circuit’s approach to the same temporal dilemma
posed in West, discussed in supra notes 136–54 and accompanying text. That court, rightly in
my opinion, explained:
Decisions issued after the allegedly unconstitutional conduct do not affect
whether the law was clearly established at the time of the conduct unless,
321

2015]

SECTION 1983 LITIGATION

961

that “[a] ruling after the fact has no bearing on the official’s integrity at the time of the
conduct,”329 the court nevertheless determined that officials here should be afforded
qualified immunity because “[b]y June 2009, a reasonable official could have consulted
the numerous Supreme Court opinions cited [by the court in T.S.], or the more recent
opinions of our sister circuits, and, in objective good faith, concluded that Masters was
no longer good law.”330
So, one might say the “take away” from these cases for public officials is that an
official who violates a constitutional right established by Supreme Court case law might
still be entitled to qualified immunity if she has acted in reasonable reliance on the law
of her circuit, even if the circuit law is clearly wrong. Or, an official might ignore circuit
law and engage in conduct that appears to clearly violate the law as pronounced by the
circuit and yet still be entitled to qualified immunity if a reasonable official could predict, after consulting Supreme Court cases and cases from other circuits, that the circuit law would no longer be good law at the time of the Section 1983 suit. Are we so
far off from “being among mad people?”
of course, the later decision addresses or otherwise illuminates whether the
law was clearly established at the time of the challenged official action. In
some instances, the law may change for the apparent benefit of government officials. But though such a change in law may indicate that there
was no constitutional violation on the merits, it does not affect whether the
law was clearly established because the favorable judicial decision could
not have informed the officials’ understanding of whether their actions
were unlawful. Of course the need for prior notice is a two-way street.
It is just as likely that a later-in-time judicial decision could clearly establish the illegality of the conduct in question. But later-in-time is not at
the time, and prescience is not to be presumed in granting or withholding
the immunity.
West v. Murphy, 771 F.3d 209, 214 (4th Cir. 2014); see also Bame v. Dillard, 637 F.3d 380, 399,
400 (D.C. Cir. 2011) (Rogers, J., dissenting) (“The Supreme Court aimed to protect Constitutional rights by limiting the availability of qualified immunity to those officials who learn the
law as it stands before they act and then act in accordance with that law, not those who apply
their subjective views instead . . . . The majority’s approach means there are no objective
limits to the scope of qualified immunity because a court may one day hold that the settled consensus of persuasive authority misapprehended a Supreme Court opinion on the requirements
of the Constitution.”).
329
T.S., 742 F.3d at 638.
330
Id. at 639–40. The Sixth Circuit’s esteemed view of the ability of officials to devote time
to digesting and analyzing case law is not universal. See, e.g., Gonzalez v. City of Schenectady,
728 F.3d 149, 162 (2d Cir. 2013) (“The policeman is not expected to know all of our precedents
or those of the Supreme Court, or to distinguish holding from dicta, or to put together precedents
for line-drawing, or to discern trends or follow doctrinal trajectories.”); Ganwich v. Knapp, 319
F.3d 1115, 1125 (9th Cir. 2003) (“It may be argued that judges should not expect police officers
to read United States Reports in their spare time, to study arcane constitutional law treatises, or
to analyze Fourth Amendment developments with a law professor’s precision. We do not expect
police officers to do those things.”).

962

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

CONCLUSION: TAKE TWO ASPIRIN
In my forty years of teaching, I have participated in Section 1983 programs for
litigants331 and judges332 all over the country. For twenty years, I have co-authored a
treatise on Police Misconduct Litigation under Section 1983333 and taught a course on
the same subject. It astounds me that so much of the law surrounding Section 1983 litigation remains uncertain, unpredictable, and seemingly dependent upon the “judicial
experience and common sense”334 of the particular judge hearing the case.
In thinking about how this area of the law has developed and the myriad challenges
it presents for civil rights plaintiffs, I reached out to the core group I have been associated with for many years, academics and lawyers who eat, sleep, and breathe Section
1983. I asked for a short answer to the question: “What would be at the top of your list
to change in the jurisprudence of Section 1983 litigation as it now exists?” With permission, I share their responses:
Professor Michael Avery:335 In general the jurisprudence is based
on the culpability of the perpetrator, rather than the nature of the
act performed or the injury to the victim. The need to show intentional discrimination to prove a Fourteenth Amendment equal
protection violation is a perfect example. Too often there is a bad
faith or evil intent requirement, Monroe v. Pape notwithstanding.
The Section 1983 statute merely requires causation, but the courts
require more.
Attorney Gerald Birnberg:336 Reverse Pearson v. Callahan and
modify Saucier v. Katz to require an explanation of a constitutional right where fairly raised in a case and not clearly established
by prior law. Otherwise, constitutional principles can almost never
become “clearly established.”
331

I have presented at programs for attorneys representing both plaintiffs and defendants in
Section 1983 cases.
332
The judicial programs for federal magistrate judges and federal district court judges
are sponsored by the Education Division of the Federal Judicial Center.
333
MICHAEL AVERY, DAVID RUDOVSKY, KAREN BLUM & JENNIFER LAURIN, POLICE MISCONDUCT: LAW AND LITIGATION (3d ed. 2014–15) [hereinafter POLICE MISCONDUCT].
334
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
335
Professor Emeritus, Suffolk University Law School. Professor Avery is a co-author of
POLICE MISCONDUCT, supra note 333. Before teaching, Professor Avery was a civil rights
lawyer for over 25 years.
336
Managing Partner at Williams, Birnberg & Anderson, LLP, Houston, Texas. Attorney
Birnberg has argued or been on the brief in several cases before the United States Supreme
Court, including Farrar v. Hobby, 506 U.S. 103 (1992).

2015]

SECTION 1983 LITIGATION

963

Dean Erwin Chemerinsky:337 Change immunity law: eliminate absolute immunity and have a much more plaintiff-friendly standard for qualified immunity.
Professor Rosalie Levinson:338 The easiest, most dramatic fix
would be to amend the statute or change its interpretation to
recognize respondeat superior liability.
Professor Sheldon Nahmod:339 Change the conversion of qualified
immunity into the equivalent of absolute immunity: the immediate appealability from the denial of immunity plus the elimination
of the subjective part. The law is much too pro-defendant currently.
Attorney David Rudovsky:340 The theory that we incorporate respondeat superior as a basis for relief against the governmental
entity in one elegant move removes all of the difficult and irrelevant issues regarding municipal policy and practice and qualified
immunity.
Professor Martin A. Schwartz:341 Change the no-respondeatsuperior liability rule.
I cast my vote with those who think it is time to revisit Monell and the Court’s mistaken rejection of respondeat superior liability. Adopting respondeat superior liability would not eliminate the need for plaintiffs to plead and prove an underlying
337

Founding Dean and Distinguished Professor of Law, and Raymond Pryke Professor of
First Amendment Law, at the University of California, Irvine School of Law, with a joint appointment in Political Science. Dean Chemerinsky has authored numerous books, treatises,
and articles in the areas of constitutional law, federal jurisdiction, and civil rights. His latest book
is THE CASE AGAINST THE SUPREME COURT (2014).
338
Phyllis and Richard Duesenberg Professor of Law, Valparaiso University School of Law.
In addition to numerous articles, Professor Levinson is co-author of ROSALIE BERGER LEVINSON
& IVAN BODENSTEINER, CIVIL RIGHTS LEGISLATION AND LITIGATION (3d. ed. 2014).
339
Distinguished Professor of Law, IIT Chicago-Kent College of Law. Professor Nahmod has
authored numerous articles involving Section 1983 litigation and is the author of CIVIL RIGHTS
AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2014).
340
Attorney Rudovsky is a founding partner of Kairys, Rudovsky, Messing & Feinberg, LLP,
Philadelphia, Pennsylvania, and, since 1987, he has been a Senior Fellow at the University of
Pennsylvania School of Law. Attorney Rudovsky is a co-author of POLICE MISCONDUCT, supra
note 333 and argued both Mitchell v. Forsythe, 472 U.S. 511 (1985), and City of Canton v.
Harris, 489 U.S. 378 (1989), before the Supreme Court.
341
Professor of Law, Touro College Jacob D. Fuchsberg Law Center. Professor Schwartz is
the author of a multi-volume treatise entitled SECTION 1983 LITIGATION: CLAIMS AND DEFENSES
(4th ed. 2014).

964

WILLIAM & MARY BILL OF RIGHTS JOURNAL

[Vol. 23:913

constitutional violation. The challenges of Iqbal and the need to prove whatever level
of culpability is required for the constitutional tort, as well as the need to prove causation, would still present formidable roadblocks to success in these suits. But, adopting respondeat superior would eliminate the enormous amount of time and resources
spent litigating and adjudicating the qualified immunity defense, as well as the hours
that presently go into establishing or defeating Monell claims. Thirty-seven years after
first criticizing the Court’s interpretation of the statute, I have come full circle to say
it again. While, as Professor Levinson notes, the change could be made legislatively
by simply amending the language of Section 1983 to make clear that respondeat superior liability is authorized, we all know the likelihood of Congress taking such action is virtually nil. In Monell, the Court engaged in self-correction,342 and likewise,
it should not shy away from this much-needed and long overdue reexamination of the
soundness of the decision rendered in that case. As David Rudovsky so succinctly
puts it, “in one elegant move,” the Court could do much to eviscerate what I have characterized as the maze, the mud, and the madness of Section 1983 jurisprudence. From
his lips to the Court’s ears.343

342

In Monell, the Court overturned Monroe to the extent that it had totally rejected local
government liability under Section 1983. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 701
(1978) (“[A]bsent a clear statement in the legislative history supporting the conclusion that
§ 1 was not to apply to the official acts of a municipal corporation—which simply is not
present—there is no justification for excluding municipalities from the ‘persons’ covered
by § 1.”).
343
And, for those of you who remain skeptical, recall the Queen’s words to Alice: “Why,
sometimes I’ve believed as many as six impossible things before breakfast.” CARROLL, supra
note 71.

 

 

Prison Phone Justice Campaign
Advertise Here 3rd Ad
Stop Prison Profiteering Campaign Ad 2