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Saturday, August 22, 2015

The hole in Mireles v. Waco

One of the cases that sets students off in my Civil Rights class is Mireles v. Waco, in which the Court held that a judge enjoyed absolute immunity from a § 1983 suit that he ordered courtroom deputies to use excessive force in bringing a lawyer into the courtroom. They are particularly put off by the suggestion that the judge' absolute immunity means the plaintiff should sue the officers who used excessive force and who are not entitled to absolute immunity (although they likely can succeed on qualified immunity, as they reasonably could have believed their conduct was lawful because ordered by a judge).

That gap leads to Demuth v. County of Los Angeles, in which a Ninth Circuit panel (per Judge Kozinski) held that a deputy sheriff was not entitled to qualified immunity when he arrested an assistant public defender (at her own snarky request) in carrying out a judicial order to bring the attorney into the courtroom. There are a number of distinctions between this case and Mireles, including, as the court emphasized, that the judge did not order the deputy to arrest or otherwise force the attorney into the courtroom (the precise order was to bring the attorney and, if she refused, to bring her supervisor). The implication is that the deputy would have had immunity had the judge ordered the arrested.

Judge Kozinski closes the opinion by insisting that the case was an unfortunate waste of time and money over damages that "seem hardly more than nominal," which could have been resolved by "an admission that the deputy violated Demuth's constitutional rights, followed by mutual apologies and a handshake." (In fact, the deputy conceded that he did violate Demuth's rights in arresting her). The sticky point was qualified immunity, which officers assert even to avoid nominal damages. So while this seems an extreme case, it is a good example supporting Jim Pfander's argument that if a plaintiff explicitly seeks only nominal damages, the action should be treated as one for an injunction and qualified immunity should not be available. This gives us deterrence of this sort of small-scale violations* without imposing the fear of personal liability and chilling effect that justifies qualified immunity.

[*] In the absence of physical injury or wrongful incarceration, many constitutional claims involve small-money injuries for brief-but-unconstitutional detentions or encounters. But those encounters are at the heart of the policing problems in Ferguson and elsewhere, which eventually blow up to something larger. So perhaps making it easier for plaintiffs to prevail on those claims offers a step towards eliminating constitutional violations, large and small.

By the way, I do not want to sound too optimistic about the decision. The court cited no similar case law, instead relying on general, well-understood principles of when an arrest is forbidden to reach the conclusion that no reasonable officer could have believed this arrest was valid. So this case feels like a good candidate for a summary reversal of a denial of qualified immunity.

Posted by Howard Wasserman on August 22, 2015 at 11:08 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


As Larry notes, the sticking point is almost always attorney's fees. From Alyeska to the Civil Rights Attorneys Fee Act of 1996 to the sub silentio overruling of Maine v. Thiboutot to the many cases increasingly converting qualified immunity into all but absolute immunity, to Will and the Eleventh Amendment cases, the driving force behind the Court's trajectory post Thiboutot can be argued to be attorney's fees. For alternate history fans, it's worth speculating on whether the 1976 act turned out to be a net positive for section 1983 litigation. Even if you think it has, it seems fair to ask how it may have affected and continues to affect public interest law case selection. Because there is no empirical data against which to test the speculation, it probably is better reserved for blog posts and legal science fiction rather than law journal pieces. But that said, I think a reasonable argument can be made that the unintended negative consequences of the 1976 act have been substantial.

Posted by: Michael R. Masinter, Nova Southeastern University College of Law | Aug 23, 2015 7:13:31 PM

My sense is that the Pfander proposal is likely to prove problematic because, under Farrar v. Hobby and Hewitt v. Helms, a successful claim for nominal damages ordinarily does not entitle a prevailing plaintiff to attorney's fees. If follows that even if defendants were deprived of qualified immunity in cases seeking nominal damages, I do not see why defendants (or their employers, more realistically) would bother to defend these cases, especially given the high cost of mounting a defense. Confessing liabiliy for nominal damages would seem to be the rational choice. Even if attorney's fees were available, routinely tendering an offer of judgment for nominal damages as soon as the complaint is served would seem equally rational, which would cut off the plaintiff's entitlement to fees. In short, these cases could be routinely disposed of for nuisance value. If that is right, then it is unclear to me what this method of proceeding accomplishes -- it certainly does not produce much in the way of deterrence, much less binding precedents in unsettled areas of law. And, if I am right about the negligible value of these cases, it is equally unclear to me what rational plaintiff's lawyers, who presumably like to earn a decent living, would bother to bring them. If, conversely, the Pfander proposal were somehow amended to make substantial attorney's fees routinely available to plaintiffs in nominal damages cases, the magnitude of the liability would seem to run squarely into the justifications that the Court has to date accepted for recognizing a qualified immunity defense.

Larry Rosenthal
Chapman University Fowler School of Law

Posted by: Larry Rosenthal | Aug 22, 2015 8:45:45 PM

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