Police Misconduct: Where Do Federal Courts Fit In?

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By Kimberly Strawbridge Robinson

Oct. 11 — The debate over police misconduct, especially when directed at black men, continues to roil the nation.

How the federal civil justice system can address these issues has bedeviled courts, including the U.S. Supreme Court.

On Oct. 5, the high court considered how individuals subject to police misconduct could bring federal civil rights claims—if at all—during oral argument in Manuel v. City of Joliet, U.S., No. 14-9496, argued 10/5/16 .

All parties seemed to agree that there should be some limited federal remedy under 42 U.S.C. §1983, a statute that allows state officials to be sued for constitutional violations. They disagreed, however, over the details.

The specifics of how and when such a claim can be brought could drastically affect the availability of legal relief for victims of police misconduct.

The lack of availability “would only exacerbate the current crisis in policing,” civil rights attorney Anna Benvenutti Hoffmann, of Neufeld Scheck & Brustin LLP in New York, told Bloomberg BNA in an Oct. 6 e-mail.

“Absent a federal remedy under §1983, many victims of this serious police misconduct would not be able to seek recourse, leaving them uncompensated and the misconduct undeterred,” Hoffmann told the Supreme Court in an amicus brief in support of Manuel.

Coming to the Surface

Stories like Elijah Manuel’s are becoming more visible to everyday Americans.

He claims he was harassed and beaten during a traffic stop and that officers knowingly falsified drug tests. Manuel says he was unlawfully jailed for 47 days because of those falsified tests.

Manuel brought a Section 1983 claim, which provides “a federal statutory remedy for constitutional violations perpetrated by state actors,” Professor Sheldon H. Nahmod of the Chicago-Kent College of Law, Chicago, said in his amicus brief in support of the city.

A lower court, however, dismissed Manuel's federal case because Illinois state law already provides a remedy for malicious prosecution.

Borrowing From Tort

The Supreme Court seemed likely during oral argument to reverse that decision, and say that Manuel could sue, Joshua D. Yount, of Mayer Brown LLP, Chicago, told Bloomberg BNA Oct. 6. Yount, who is part of Mayer Brown's Supreme Court and Appellate practice, signed on to Nahmod’s amicus brief in the Manuel case.

Because Section 1983 doesn’t specify the elements of the claim, Yount said the justices struggled over exactly what Manuel would have to prove.

Manuel wants to borrow some elements of the state tort claim malicious prosecution to fill out his Section 1983 claim, in particular the “favorable termination” element.

This would extend the period in which Manuel could bring his claim—namely, to two years after his detention was favorably terminated by his release.

If this element isn’t read into Manuel’s Section 1983 claim, he will have filed his claim too late.

‘Embarrassing Diversity.’

But importing elements of tort law into Section 1983 claims has led to “an embarrassing diversity of judicial opinion” on “the extent to which a claim of malicious prosecution is actionable under § 1983,” Nahmod, who wrote a treatise on Section 1983, said in his amicus brief, quoting Albright v. Oliver, 510 U.S. 266 (1994).

That’s in part because malicious prosecution claims vary widely from state to state, Nahmod said.

Such claims typically require that the plaintiff show that the defendant intentionally and maliciously brought legal proceedings—either criminal or civil—against the plaintiff.

Importing all of those elements of malicious prosecution claims into Section 1983 claims could make it harder for Manuel to make his case in the long run, Nahmod told Bloomberg BNA Oct. 5.

For example, showing “malice” on the part of the officer can be tough to prove, he said.

Manuel’s lawyer attempted to get around that difficulty at the Oct. 5 oral arguments. Manuel only wants to incorporate the favorable termination element in the Section 1983 claim, not the rest, he told the Supreme Court.

Chief Justice John G. Roberts Jr. didn’t seem satisfied with that suggestion.

That seems like “result-oriented cherry picking,” Roberts said.

Evenhanded Approach

Nahmod said you can solve that problem by stripping away tort language from Section 1983 claims, and looking only to the U.S. Constitution to determine the elements of the Section 1983 claim.

For Fourth Amendment violations like Manuel’s, that would mean a showing of the absence of probable cause, followed by a seizure, Nahmod said.

That would be a more evenhanded approach, as the constitutional elements would sometimes benefit plaintiffs, and sometimes benefit defendants, he said.

For example, while the elements of the Fourth Amendment violation discussed above might not be too difficult for plaintiffs to show, proving an equal protection violation under Section 1983 would be substantially more difficult for plaintiffs, Nahmod said. That would require that the plaintiff show that there was “purposeful discrimination.”

Procedural Labyrinth

But Hoffmann said the court should be concerned with making the cases easier for plaintiffs—not defendants.

“Section 1983 claims have to navigate a labyrinth of procedural hurdles to succeed,” Hoffmann said.

This includes not just proper filing dates, like the issue in Manuel’s case, but also “procedural rules about how specifically you have to allege your claim and what evidence you can use to prove it, as well as various judge-created immunities.”

“A great many Section 1983 cases lose based on these procedural rules,” Hoffmann said.

Federal Forums Fairer?

While plaintiffs may also have state law remedies, Hoffmann said those are often unsatisfactory.

“State remedies are subject to the whims of the political process,” he said.

In “various states this can include strict caps on damages, impossibly short time limitations for filing, or even complete elimination of the claims altogether,” Hoffmann said.

“This is a particular problem with claims against municipalities because the defendants in these cases are, in effect, writing the rules in state court.”

Hoffmann said federal courts “often provide a more neutral, fairer forum.”

Disingenuous Argument

The Supreme Court should, therefore, rule in Manuel’s favor, as there “is no question ruling for Manuel here is better for victims of police misconduct,” Hoffmann said.

Yount, however, disagreed.

It’s not clear Manuel’s formulation of the Section 1983 would help all plaintiffs, he said.

In particular, requiring plaintiffs to show a favorable termination could eliminate Section 1983 claims for those whose cases don’t end favorably because, for example, they are eventually convicted despite the police misconduct, Yount explained.

So it’s likely that making the process easier for Manuel could preclude others from bringing their Section 1983 claims, he said.

But Hoffmann said that argument—which was also made by the city during Supreme Court oral argument—was “disingenuous.”

“I’ve been litigating these cases for 10 years and I can’t think of a real world example of a person who would benefit from eliminating the favorable termination requirement,” Hoffmann said.

Still Significant Hurdles

No matter how the Supreme Court comes down on this issue, Section 1983 claims won’t provide a complete answer to the problem, Nahmod said.

There are still significant hurdles for plaintiffs, particularly qualified immunity, he said.

That doctrine protects officials from being sued if their conduct wasn’t clearly established as a constitutional violation at the time the incident took place.

Still, “Section 1983 claims provide one of the only functioning ways to uncover police misconduct and hold officers accountable,” Hoffmann said.

“Preventing officers from having to answer for such blatant misconduct—causing someone to be unlawfully held for weeks or months—would” only make the current situation worse, she said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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