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Wednesday, January 11, 2012

Retail civil rights enforcement

SCOTUS yesterday decided two cases that together suggest a "retail" approach to constitutional rights and civil enforcement of constitutional rights.

In Minneci v. Pollard (I wrote about the argument here), the Court held that a federal prisoner in a privately run facility could not bring a Bivens action against the employees who allegedly provided constitutionally insufficient medical care. Because the plaintiff could sue the prison employees for various tort claims under state law, there was an "alternative, existing process" for vindicating his rights, making a Bivens claim improper. In Smith v. Cain, the Court reversed a Louisiana murder conviction because prosecutors failed to disclose the police case file, which contained earlier statements from the lone witness to identify the defendant at trial, indicating the witness did not see the faces of the shooters and could not identify them. Smith has been noteworthy (beyond the Chief being the author of a very brief and spare opinion that really makes this look like a one-off/error-correction case) in that it comes out of the New Orleans DA's office. That office long has been notorious for ignoring or disregarding Brady obligations, although the Court last term in Connick v. Thompson rejected a Monell claim against the office for failure to train on Brady.

My idea about a "retail" approach to civil rights enforcement plays out in a couple of ways--at the level of who can be liable and at the level of the vehicle to use to establish liability.

First, despite the easy narrative of the Court changing its views about Brady and the New Orleans DA, Smith and Connick are easily reconciled around the notion that the Court is willing to find constitutional liability by individual actors, but less willing to find constitutional liability by the overarching institution. The Court never denied that there had been a Brady violation in the underlying events of Connick, just as the Court easily found a violation here. But as to both, the Court was comfortable concluding that an individual did violate due process. The Court is far less willing to impose liability on the government, reflecting as it would broader systemic problems demanding remedy rather than a few bad apples.

Second, Minneci basically rejects (or perhaps continues the Court's prior rejection) of an all-or-nothing approach to Bivens in favor of retail consideration of whether and when to recognize a claim. The plaintiff (represented by Richmond Law's Jack Preis) had tried to argue that state law should not be an adequate alternative remedy foreclosing Bivens, because different states have different law and there might be a state where a claim will not be available against the employee of a privately operated prison. The majority was unmoved, declaring "[w]e can decide wheth- er to imply a Bivens action in a case where an Eighth Amendment claim or state law differs significantly from those at issue here when and if such a case arises." In other words, it appears, courts must take each potential Bivens claim individually and consider whether this type of claim (depending on the nature, context, and actors involved in the alleged tort) is subject to a state-law remedy.

This is striking in its departure from § 1983, for which Bivens is supposed to be the federal counterpart. When the Court resuscitated § 1983 in 1961 in Monroe v. Pape, it took a more wholesale approach. As a general matter, Congress in 1871 determined at the wholesale level that state law and state courts were de facto (if not de jure) inadequate to protect federal constitutional interests and therefore a federal claim was available. The majority rejected any inquiry into whether state law and state remedies were available and adequate in each particular case before allowing the federal claim to proceed, which was the approach that the Monroe dissent urged. The federal claim was available because state law might be (or might have been in 1871) inadequate or at least sufficiently different from federal law.

Minneci is not the first case to do this and it is part of a broader pattern of recent cases. In fact, Justice Scalia, joined by Justice Thomas, reiterated the call to limit Bivens to their facts, if not outright overruling them. Still, the amount of additional work the Court is creating seems counter-productive.

Posted by Howard Wasserman on January 11, 2012 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


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Interesting post, Howard. I haven't read Minneci yet, but I would say that your points about that opinion could also be more cynically explained by a simple hostility to civil rights plaintiffs. Plaintiffs are less likely to bring civil rights suits if they can't name the deep-pocket, less sympathetic municipality/office, as opposed to the individual defendant, and they are less likely to bring Bivens claims if they have to overcome the hurdle of an individualized determination whether the claim is viable in each case.....

Posted by: Jessie Hill | Jan 13, 2012 10:14:02 AM

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