Bits and pieces...1983 law suits, Qualified Immunity, Constitutional rights

1983 lawsuits

42 U.S.C. § 1983

Generally, courts have recognized the need to protect government employees from unduly burdensome and baseless litigation that may interfere with the exercise of lawful discretion in their official functions. Under 42 U.S.C. § 1983, any person may bring a civil action against an individual who acted under color of any law (with the exception of judges, who are generally immune such suits when concerning official action) who caused a deprivation of any Constitutional right or federal law.[i] Thus, in order to state a claim under § 1983, a plaintiff must allege that the defendant was an employee of a state, and their action deprived him/her of a Constitutional right or other right protected by federal law.

When suits have been brought against social workers under §1983 for violations of Constitutional rights, the most common claims are based on unreasonable search and seizure (Fourth Amendment), and due process (Fourteenth Amendment). Typically, social workers seek dismissal on the basis that the claim is barred by the doctrine of qualified immunity, on the basis that the plaintiffs have failed to allege a constitutional depravation, and that even if they adequately asserted a violations of a constitutional right, the right was not clearly established. However, in each case where this is asserted and the qualified immunity claim fails, it is because the facts alleged are always read in a light most favorable to the plaintiff, and the actions of the social worker would have been illegal or unreasonable taking the facts as presented as true.

                                     

constitutional violations should be evaluated in one of three ways:

1-as rights of the parent, the child, or both the parent and child. First, CPS action can be challenged as intruding upon the parents’ liberty interest in an autonomous family relationship guaranteed by the fourteenth Amendment.

In § 1983 lawsuits that allege constitutional violations by CPS, the Fourteenth Amendment may be implicated in child abuse investigation lawsuits because a parent’s right to care, custody, and control of a child has been violated

Public official defendants are immune from § 1983 lawsuits “[u]nless the plaintiff’s allegations

state a claim of violation of clearly established law.”

Attorneys representing families harmed by CPS should frame the allegations in a § 1983 complaint in a manner that most persuasively shows that a reasonable official would understand that the conduct violated a “clearly established” right

A. The Civil Statute42 U.S.C. $1983 civil rights, contains the following language: Section

1983,15’ which provides civil remedies for the deprivation of Every person[159] who, under color

~fl’~’] any statute, ordinance, regulation, custom, or usage,[16’] of any State or Territory or the District of

subjects, or causes to be subjected,[’63] any citizen of the United States or other person within the jurisdiction

there~fl’~~] to the deprivation[165] of any rights, privileges, or immu- nitie~[’~~] secured by the Constitution

and laws,[167] shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding

for redress[’68] . . . Section 1983 contains ten parts: (A) it imposes liability “in an action at law, suit

in equity or other proceeding,” (B) upon “every person,” (C) who “under color of,” (D) “any statute, ordinance, regulation, custom, or usage,” (E) “of any State or Territory or the District of

Columbia,” (F) “subjects or causes to be subjected,” (G) “any citizen of the United States or other person within the jurisdiction thereof,” (H) “to the deprivation of,’’ (I) “any rights, privileges, or immunities,” and (J) “secured by the Constitution and laws.”17o 1. “In an Action at Law, Suit in Equity or Other Pr~ceeding”’~~ Equitable relief, in the form of a mandatory injunction to register people of African descent as voters, was denied on the ground that “[tlhe traditional limits of proceedings in equity have not embraced a remedy for political Section 1983 cannot be used to enjoin certain objectionable operations of a municipal police force when no allegation of deprivation of constitutional rights exists.173 An injunction seeking the cancellation of a private club’s liquor license was denied when the petitioner failed to prove “state action.”174 2. “Upon ‘Every Person”’ a. The United States is not a “person” within the statute,175 but persons employed by the federal government as “federal officers” may be sued for violation of another’s constitutional rights.176 Private entities which employ people to act “under color of” federal law may not be sued

b. A state is not a “person” within § 1983,17’ nor do its officials act in their official capacities when

the suit is brought as an “official capacity” a~ti0n.l~’ Such officials are “persons” when the suit is

brought as a “personal liability” action.”’ c. In 1961 the Supreme Court stated that a municipality

was not a “person” under 42 U.S.C. 0 1983.lS1 In 1978 the Supreme Court reversed itself and

decided that a municipality is a “person”182 within 0 1983, and hence, can be sued.ls3 Before a

municipality may be held liable under 0 1983, however, one must prove not only that the agent

of the municipality was untrained or improperly trained, but that the efficiencies in training rose to the level of a policy.’s4 This does not require an overt policy of training improperly but a training program, if one exists, which is so faulty that it reflects a “deliberately indifferent” attitude toward the proper preparation of the municipality’s employees or agents.ls5 d. Guam is not a “person.” The Court stated that Congress was not concerned with territories when it enacted the Civil Rights Act of 187 1. la6 e. A Native American tribe is not a “person” within Q 1983.1s7 The “every person” wording of the statute was not intended to include those with common law immunities.ls8 3. “Who Under Color Of‘ “Under color of law” is only a shibboleth1sg for the longer recitation of “under color of any law, statute, ordinance, regulation, or custom” contained in the present criminal statute against discrimination, 18 U.S.C. Q 242, and the “under color of any statute, ordinance, regulation, custom, or usage” contained in the present statute affording civil penalties for discrimination, 42 U.S.C. 0 1983.’” Section 1983 of the United States Code title 42 and Q 242 of title 18, United States Code, trace their origin to the Civil Rights Act of 1866,1g1 in which “under color of” was used, but that statute was not the first to use the phrase.

1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in Q 198lZ4’

by state governmental units . . . .”250 Thus, the actionable rights must not be vague and amorphous.251 b. “Any . . . privileges or immunities.” Section 2 of Article IV of the Constitution

provides that “[tlhe citizens of each State shall be entitled to all Privileges and Immunities of Citizens

in the several States.”252 It has been opined that this constitutional provision does not import that a

citizen of one state carries with him into another state fundamental privileges and immunities that come to him necessarily by the mere fact of his citizenship in his state. If a citizen of state A enters state B, then state B may not deprive the citizen of state A of those privileges and immunities enjoyed

by the citizens of state B.253 10. “Secured by the Constitution and Laws”a. The Due Process Clause. It has been opined that the most familiar office of the Due Process Clause is to provide a guarantee of fair procedure in connection with the deprivation of life, liberty, or property ya state.254 The Court has often proclaimed the substantive rights the Clause does not protect, such as private rights of contract obtained under a state statute.255 Nor does the Clause, under certain condi-tions, prevent a person from being held in custody upon orders of the governor of a state in ns~rrection.’~~ A man arrested, but later released due to a mistaken identity, was not deprived of his due process rights because that type of tort does not give rise to an action under 0 1983, and the state had provided the prisoner with means of redress- ing his depri~ation.’~~ “Liberty,”deprivation of which the Due Process Clause prevents, has given rise to “liberty interests,” defined by the Supreme Court as confinement, without more, of “a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”258 “Liberty interests,” howev- er, include more than the right not to be unnecessarily confined.259 The Fourteenth Amendment’s right to practice one’s calling is a “liberty interest” but is subject to some governmental regulation.260 The Supreme Court has proclaimed that damages to one’s reputation is not a “liberty interest.”261 An unlawful denial of a state right to hold a state political office is not a right to property or liberty secured by the Due Process Clause.26

Section 1983 of title 42 and Q 242 of title 18 are mechanisms of enforcement. They do not forbid deprivation of constitutional or other rights. They simply offer one who has been deprived of such rights a mechanism by which that deprivation may be addressed-§ 1983 by civil action and 242 by criminal prosecution.273 It has been opined that a section 1983 claim may be brought directly to federal court even though an adequate state remedy exists and . .  state remedies need not first be exhausted . . . . [Slection 1983 does not, in and of itself, provide any substantive basis for a claim or for relief. Rather, it is a procedural device by which a plaintiff may bring a claim for relief based on the deprivation of, or infringement on, a federal constitutional right or statutory right.274

There are other mechanisms that offer redress for deprivation, for example, ordinary complaints, answers, motions in limine, even appellate briefs. When a deprived person uses 0 1983, it must be alleged and proved that the wrongdoer acted “under color of any statute, ordinance, regulation, custom, or usage.”275 When the sovereign uses 0 242, it must be alleged and proved that the wrongdoer willfully acted “under color of any law, statute, ordinance, regulation, or If 0 1983 or 0 242 are not used, it must be alleged and proved that the wrongdoer’s acts of deprivation constituted “state action.

1983 action, seeking money damages for a raid and subsequent arrest made without a

warrant, was brought against the Commissioner of the Kentucky State Police, individually and

as an official of the state, under the Fourth, Fifth, Sixth, Eleventh, and Fourteenth Amendments. The State was not sued for damages, but an assessment of attorney fees was sought should plaintiffs eventually Based upon the precedent of Brandon u. HoZ~,~~~ which made clear the distinction between “official capacity” and “personal liability” actions, the Supreme Court held that it was error to award fees against the governmental entity that employed the “state actor” because this was a “personal liability” and not an ‘‘official capacity” action. When one seeks recovery against a sovereign, there is a greater burden than when one seeks recovery merely against an official of the sovereign. Writing the unanimous opinion,

Justice Thurgood Marshall stated: In Kentucky u. [Tlo establish personal liability in a 0 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right. More is required in an official-capacity action, however, for a governmental entity is liable under 5 1983 only when the entity itself is a “moving force” behind the deprivation.356

                                                                                                                                        

In Hafer u. Me10,~~~the Supreme Court permitted discharged employees of the Commonwealth of

Pennsylvania to bring a rj 1983 action for damages against the State’s Auditor General in her personal capacity. Justice O’Connor, writing the Court’s unanimous opin- ion and expanding

on Graham, made it clear that in an “official capacity” case the real party in interest is the governmental unit, even if it is not made a party defendant. Even though a suit against a state for official acts performed by state officials is an action against the state itself, the Court held that damages may be recovered in a 1983 action against those officials who deprived others of their federal rights simply because those officials performed their duties as authorized by the governmental entity that employed them. The rationale for that proposition was that when it was said in Will u. Department of State that those officials were not “persons” within 1983, what was intended was that such officials were not covered by 1983 in an “official capacity” action; they “fit

comfortably,” however, within the statutory term “person” when named in a “personal liability” action.363 The second reason for the Court’s decision is that “[sltate executive officials are not entitled to absolute immunity for their official action~.”~~~ Hence, it appears that when there is no deviation from the official dictates of the authority, both the state official and the state may be sued under  1983.36

Justice Murphy dissented because he believed that the judgment of conviction should be Justice Roberts, joined by Justices Frankfurter and Jackson, wrote a dissenting opinion.413

They thought that the judgment should have been reversed absolutely rather than sending the case back for a new trial In their view “under color of’ does not cover the situation of a deprivation of rights by police officers who misuse or abuse their authority.415 In Williams u. United States,416 a private detective, who held a special police officer’s card issued by the Miami, Florida Police Department, was prosecuted under Section 20 of the Federal Criminal Code.417 He, along with a police officer,

obtained a confession from a suspected thief by beating, threats, and “unmerciful” punishment for several hours Based primarily on and Screws,42o the Court determined that defendant was acting “under color of state law.”421 Justice William 0. Douglas, writing for a five-member major- ity,422 said: this was an investigation conducted under the aegis of the State, as evidenced by the fact that a regular police officer was detailed to attend it . . . . [Pletitioner was no mere interloper but had a semblance of policeman’s power from Florida. There was, therefore, evidence that he acted under authority of Florida law; and the manner of his conduct

The private police officer, being a “state actor,” was convicted under the criminal statute 18 U.S.C. 0 242, and the conviction was affirmed by five members of the In Monroe u. P~pe,~~~ at 545 on the morning of October 29, 1958, thirteen members of the Chicago police force, without a search

warrant, broke into the Monroes’ apartment, subjected them to a series of racial indignities because of their African descent, ransacked their residence,

and took Mr. Monroe into custody for several hours. He sued under 0 1983.426 The Supreme Court held that the officers violated Mr. Monroe’s Fourth Amendment rights based upon the law proclaimed by the Court in the Classic,427 Screws,42s and cases.43o Echoing his opinion in Screws, Justice Douglas wrote for the majority: There can be no doubt at least since Ex parte Virginia, that Congress has the power to enforce provisions of the Fourteenth Amendment against those wh carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it . . . . The question with which we now deal is the narrower one of whether Congress, in enacting [the precursor to 0 19831, meant to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position . . . . We conclude that it did so intend.4

Another example of a denial of qualified immunity under 42 U.S.C. § 1983 for individual social workers based on a different aspect of substantive due process, is where the complaint alleged that the family services individuals must have known they were placing the minor in a sequence of foster homes that were detrimental to her mental health. The court held that the Due Process Clause requires that state officials take steps to prevent children in state custody from deteriorating physically or psychologically. [xxviii] This case cites to one of the “negative liberties” under the due process clause -- to be free from governmental oppression. [xxix] The court concluded that while there is no constitutional right to governmental protection against physical abuse by parents or other private persons not acting under the direction of the state, the state, having removed a child from the custody of parent can not place her in a position of danger without violating her rights under the due process clause of the Fourteenth Amendment. “[O]nce the state assumes custody of a person, it owes him a rudimentary duty of safekeeping no matter how perilous his circumstances when he was free.” [xxx]

immunity, as the facts indicated that the defendants knowingly made false accusations of abuse and neglect. Since the facts as presented did not establish an objectively reasonable suspicion of imminent danger, and the protection of family integrity was well established, the social workers (or, at least a reasonable person) would have known that their actions were unconstitutional. Thus, the motion to dismiss based on qualified immunity was denied.

                Parties to section 1983 suits are generally entitled only to immunities that existed at common law. We have therefore granted state actors absolute immunity only for those functions that were critical to the judicial process itself, such as initiating a prosecution. It follows that social workers have absolute immunity when they make discretionary, quasiprosecutorial decisions to institute court dependency proceedings to take custody away from parents. But they are not entitled to absolute immunity from claims that they fabricated evidence during an investigation or made false statements in a dependency petition affidavit that they signed under penalty of perjury, because such actions aren't similar to discretionary decisions about whether to prosecute. A prosecutor doesn't have absolute immunity if he fabricates evidence during a preliminary investigation, before he could properly claim to be acting as an advocate, or makes false statements in a sworn affidavit in support of an application for an arrest warrant. Furthermore, as prosecutors and others investigating criminal matters have no absolute immunity for their investigatory conduct, a fortiori, social workers conducting investigations have no such immunity.

"To support a § 1983 claim of judicial deception, a plaintiff must show that the defendant deliberately or recklessly made false statements or omissions that were material to the finding of probable cause." KRL v. Moore,384 F.3d 1105, 1117 (9th Cir.2004), citing Galbraith v. County of Santa Clara,307 F.3d 1119, 1126 (9th Cir.2002). Whether a false statement was "material" to the finding of probable cause is a question of law for the reviewing court. KRL, 384 F.3d at 1117; Butler, 281 F.3d at 1024.

More specifically, the right to be free from deception in the presentation of evidence during a protective custody proceeding was clearly established at the time Camreta filed his affidavit with the Juvenile Court. In Devereaux v. Perez,218 F.3d 1045 (9th Cir.2000), for example, we held in the context of a child abuse proceeding that "the constitutional right to be free from the knowing presentation of false or perjured evidence" is clearly established. Id. at 1055-56. Even earlier, we stated emphatically that "if an officer submitted an affidavit that contained statements he knew to be false or would have known were false

had he not recklessly disregarded the truth, ... he cannot be said to have acted in an objectively reasonable manner, and the shield of qualified immunity is LOST." Hervey v. Estes,65 F.3d 784, 788 (9th Cir.1995) (internal quotations and citation omitted); see also Butler, 281 F.3d at 1024; Whitaker, 486 F.3d at 582 (concluding that "the contours of the Fourth Amendment right against judicial deception" were clearly established by 1996). See also Snell v. Tunnell,920 F.2d 673 (10th Cir.1990) (holding social workers who deliberately fabricated evidence of child sexual abuse to secure a removal order not entitled to qualified immunity).

Sarah filed this action on behalf of herself, S.G., and K.G. under 42 U.S.C. § 1983, alleging that: (1) Camreta and Alford's in-school seizure of S.G. without a warrant, parental consent, probable cause, or exigent circumstances violated the Fourth Amendment; (2) Camreta violated the Greenes' rights under the Fourteenth Amendment by intentionally presenting false information to the Juvenile Court to obtain an order to remove the children from Sarah's custody and by removing the children from Sarah's care; and (3) Camreta and the KIDS Center violated the Greenes' Fourteenth Amendment rights by unreasonably interfering with Sarah's right to be with her children and with the children's right to have their mother present during an intrusive medical examination.⁴

In evaluating a §1983 claim against an officer, we generally proceed in a two-part analysis. The

“threshold question” is“[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?”

Saucier v. Katz, 533U.S. 194, 201 (2001) (abrogated in part on other grounds by

Pearson v. Callahan, 129 S.Ct. 808, 818 (2009)). If the Constitution was not violated, that is the end of the inquiry. If there was a violation, however, we proceed to the question of qualified immunity. Officers are protected by qualified immunity, which is “an immunity from suit rather than a mere defense to liability,” Pearson129 S.Ct. at 815. When an officer asserts immunity, the court dismisses the case unless the officer knew that his conduct was “clearly unlawful,” that is, unless the officer understood or should have understood that his actions violated a clearly established right. Saucier, 533U.S. at 202. Although we have flexibility in deciding which part of the analysis to address first, we think it important in this case to determine first whether a constitutional violation occurred. See Pearson, 129 S.Ct. at 818 (holding that “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory”).

Social workers (and other government employees) may be sued for deprivation of civil rights under 42 U.S.C. § 1983 if they are named in their ‘official and individual capacity’.  Hafer v. Melo, (S.Ct. 1991)

State law cannot provide immunity from suit for Federal civil rights violations.  State law providing immunity from suit for child abuse investigators has no application to suits under § 1983.  Wallis v. Spencer, (9^th Cir. 1999)

Immunity is defeated if the official took the complained of action with malicious intention to cause a deprivation of rights, or the official violated clearly established statutory or constitutional rights of which a reasonable person would have known.  McCord v. Maggio, (5^th Cir. 1991)

A defendant in a civil rights case is not entitled to any immunity if he or she gave false information either in support of an application for a search warrant or in presenting evidence to a prosecutor on which the prosecutor based his or her charge against the plaintiff.  Young v. Biggers, (5^th Cir. 1991)

Individuals aren’t immune for the results of their official conduct simply because they were enforcing policies or orders.  Where a statute authorizes official conduct which is patently violation of fundamental constitutional principles, an officer who enforces that statute is not entitled to qualified immunity.  Grossman v. City of Portland, (9^th Cir. (1994)

Hervey vs Estes

Section 1983 applies to the actions of “persons” acting under color of state law.   It is beyond dispute that a local governmental unit or municipality can be sued as a “person” under section 1983.  Monell v. Department of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978).   Governmental units may not assert the good faith of their officers or employees as a defense to liability under section 1983.  Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980).   The district court therefore erred by granting summary judgment to TNET on grounds of qualified immunity.