Aggregation and constitutional rights.

• Author: Garrett, Brandon L.
• Position: II. Individualized and Aggregated Constitutional Rights through Conclusion, with footnotes, p. 616-648

1. Individualized Constitutional Rights

   A series of constitutional rights remain highly individualized and therefore difficult to assert in damages class actions that require commonality and predominance. The Supreme Court individualizes rights in a variety of ways: regarding the definition of the right violation itself, or regarding other elements of the right such as causation, or regarding defenses that the government might raise to rebut presumptions of a violation. The Court may do so to simply make it difficult to obtain a remedy for a violation of a right except in egregious cases. The Court may view the right as requiring a case-specific inquiry, based on text or purpose or other interpretative methods. The Court may view a brighter-line rule as unduly burdensome on government. In contrast, the Court may seek to create brighter-line to give notice to government. As Fred Schauer has prominently developed, general rules may be advantageous for a host of reasons. (101) They more readily protect the interests of the broader public. They may be more difficult to evade and may simplify proof. They provided clearer notice. On the other hand, they may be less adaptable and flexible. Difficult substantive choices all impact the scaling of a right and therefore the ability to pursue aggregate remedies. It would be far beyond the scope of this piece to comprehensively describe differences as to the individualized or aggregated definitions of various constitutional rights. Instead, I provide a set of particularly illustrative examples to show differences in the Court's approach to the substance of the constitutional right and the impact on aggregate litigation.

   1. The Eighth Amendment

      Requirements that a plaintiff satisfy a showing of subjective government intent to violate the constitution render the inquiry a highly individualized one. In Eighth Amendment cases involving prison conditions, the Court has ruled that plaintiff must satisfy both an objective prong and a subjective prong that the government official (usually a prison guard) acted with "deliberate indifference," under the circumstances. (102) Eighth Amendment claims by prisoners commonly involve allegations concerning prison conditions such as provision of adequate medical care, (103) personal security from violence by other inmates, excessive force by corrections officers (which requires a showing of an "unnecessary and wanton infliction of pain'), (104) and punitive measures taken against prisoners.

      The Court in Wilson v. Seiter (105) specifically rejected the argument advanced by the plaintiffs that there should be a different showing in a case alleging systemic violations and not a single act. The plaintiffs had hoped to avoid the need to show that officials acted with a particular malicious mental state, but rather to rely on evidence of systemic violations. The Court held that there was no difference between the need to show an individual official's state of mind in a "one-time" versus a "systemic" violation, arguing that the word "punishment" in the Eighth Amendment implies a mental state that must be present to make out a claim. (106) However, the Court also cited to policy reasons supporting individualization of the inquiry, where in particular cases there may be "composite conditions" that resist "pigeonholing." (107) The Court explained that

      [u]ndoubtedly deprivations inflicted upon all prisoners are, as a policy matter, of greater concern than deprivations inflicted upon particular prisoners, but we see no basis whatever for saying that the one is a "condition of confinement" and the other is not--much less that the one constitutes "punishment" and the other does not. (108) As a result, plaintiffs attempting to bring a class action concerning prison conditions must show that officials engaged in "deliberate indifference," both showing that the conditions are objectively unconstitutionally inadequate and subjectively manifesting deliberate indifference through an "unnecessary and wanton infliction of pain." (109) Those requirements pose problems where prisoners would need to show that policymakers possessed "deliberate indifference" towards the entire class. (110) Those objective and subjective requirements both pose obstacles to aggregate handling of cases involving medical treatment of prisoners, although many prisons have special mental health or medical needs. (111) As one court explained in denying class certification in a case alleging inadequate prison dental care:

      Cases involving personal injury and inadequate medical care are particularly fact specific.... In order to prove the objective element of an Eighth Amendment claim, a plaintiff must first show that he had a condition that required dental care; second, that he did not receive adequate dental care; third, that he suffered significant injury or harm; and fourth that the injury or harm was causally related to the inadequate care. Each plaintiffs case would necessarily be different. (112) Similarly, litigation regarding prison discipline or use of force or security from self-harm or harm by other inmates may require "examination of the unique circumstances surrounding each incident alleged to constitute a constitutional deprivation." (113) In addition, the Prison Litigation Reform Act (PLRA) (114) imposes limitations on the ability to obtain injunctive remedies to correct systemic prison conditions deficiencies. (115)

      More generalized claims regarding prison policies may be more readily litigated through class actions, or for that matter, in individual suits seeking injunctions. The Court has cautioned that remedies should be narrowly tailored to any constitutional violation and Congress has limited access to such remedies in the PLRA. (116) However, some violations may even, according to the Court, be considered "'in combination' ... when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise--for example, a low cell temperature at night combined with a failure to issue blankets." (117) Such an inquiry is more easily conducted in the aggregate under substantive due process decisions.

      Perhaps due to the dramatic evidence of systemic deficiencies compiled in the record by the lower court, and perhaps because the state itself "conceded that deficiencies in prison medical care violated prisoners' Eighth Amendment rights," the Supreme Court in the October 2010 term in Brown v. Plata upheld a remarkable injunctive order in a class action for the release of thousands of California prisoners. (118)

      Thus, class actions premised on prison conditions may be pursued and aggregate proof may be relevant. However, in contrast to suits based on general conditions such as overcrowding, food, and sanitation premised on a highly deferential "reasonably safe conditions" standard, class actions based on conditions that the courts have considered more individual in nature, such as personal safety or adequate medical care, do not as readily receive class treatment (with extreme cases like Brown v. Plata as perhaps the exception). Settlements or consent decrees could potentially encompass such additional issues, but aggregate relief may be far more difficult to pursue for such theories standing alone.

   2. The Fourth Amendment

      The Fourth Amendment establishes a series of rights commonly the subject of [section] 1983 litigation, including the requirement that arrests may be made only if police have probable cause, the prohibition on unreasonable searches and seizures, the Court's rule that a "stop and frisk" must be supported by "reasonable suspicion," (119) and regulation of police use of force, including deadly force. (120) As to some of these rights, the constitutional text arguably calls for an individualized inquiry. For example, the concept of "probable cause" implies an individualized question whether a particular search or seizure was reasonable under the circumstances. Perhaps to obtain damages for a violation, an individual inquiry must be conducted, which would tend to frustrate aggregate treatment. Courts have denied class certification for classes of individuals alleging false arrest, for that very reason. (121) Alternatively, however, courts could define classes of searches and seizures that are per se unreasonable, which could then support aggregate litigation. The Court has adopted both approaches depending on the context, making some Fourth Amendment class action litigation common and most quite rare.

      For example, the Court has reaffirmed that in the context of police use of deadly force the inquiry is context-specific and does not forbid the use of particular police practices; a court must examine the totality of the "facts and circumstances of each particular case." (122) Class actions may be easier to bring in the situation where a large group of people, say at a political demonstration, were subjected to, say, common "command decisions to disperse the crowd." (123) Otherwise, however, each individual use of force must be evaluated on its own terms. Class actions regarding the use of excessive force, therefore, are quite rare; as one court explained, "[c]laims of excessive physical force require a case-by-case analysis of the circumstances in order to determine whether the amount of force used in each scenario was commensurate with the perceived need for force." (124) One would have to show that police behaved in the same unconstitutionally excessive way in similar-enough circumstances so as to justify classwide relief. As a result, the bread and butter of [section] 1983 practice, litigation of claims of excessive police force, focuses on individual incidents and individual compensation, and rarely on issues raised in class actions, regarding systemic police policy or practices.

      For other Fourth Amendment rights, the constitutional text does not speak to whether individual fact-specific...