Constitutional Civil Law - Albert Sidney Johnson

• Publication year: 1995

Constitutional Civil Lawby Albert Sidney Johnson^*

During the 1994 survey period, the United States Court of Appeals for the Eleventh Circuit experienced a period of consolidation and clarification in constitutional civil law. The application of the clearly established law test in qualified immunity determinations has become more consistent, favoring a fact-specific, circuit-based precedent rather than the more generalized test sometime applied by individual panels.

Several cases with constitutional implications were revisited en banc during the survey period producing a variety of results. In public employment cases and land use cases involving state created property rights, the Eleventh Circuit has retrenched and virtually abandoned any recognition of the Substantive Due Process Clause of the Fourteenth Amendment. Fourth Amendment seizure issues continued to be refined during the survey period. The output of the court in terms of civil constitutional law appeared to be less voluminous compared to other survey periods, however, that result is partially attributable to the consolidation process which 1994 represented.

I. Preliminary Issues

A. Immunity

Qualified Immunity. A government official has immunity to an action for civil damages unless the plaintiff can establish that the official "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff]."¹ In Anderson v. Creighton,² the Supreme Court determined that the constitutional right alleged to be violated must be sufficiently established to inform the official that his conduct violated the law, when viewed in light of the information available to a reasonable official.³ The Court in Anderson warned that the viability of an "objective reasonableness" standard in preserving immunity depended on the "level of generality at which the relevant 'legal rule' is to be identified."⁴ The Eleventh Circuit has moved toward a more consistent application of the bright line test resulting in greater specificity of the underlying clearly established law.

The Eleventh Circuit made a prompt decision to revisit Swint v. City ofWadley.⁵ The case presented a complex factual situation compounded by a complex legal analysis of claims arising under the Fourth and Fourteenth Amendments. This action resulted from two raids on a nightclub suspected of harboring illegal drug activity.⁶ The raids were the culmination of a preliminary investigation⁷ and commenced upon the signal of an undercover officer who purchased drugs from a patron of the club.⁸ Based on the state of the record, the court of appeals held that the contours of the Fourth Amendment claim and the Fourteenth Amendment equal protection claim were clearly established, preventing the qualified immunity defense.⁹ On the other hand, the law was not clearly established that excessive force in connection with a search violated not only the Fourth Amendment but also the Due Process Clause.¹⁰ The modified opinion refined the factual analysis of the several defendants' participation in the raid reversing the denial of summary judgment for all defendants on the due process claims,¹¹ and for the sheriff on the equal protection claims.¹²

The court also revisited Harris v. Coweta County.¹³ The case considered whether a county sheriff was entitled to qualified immunity under Eighth and Fourteenth Amendment claims alleging denial of proper medical treatment. Acknowledging that there was no question that a prisoner's right to medical treatment was clearly established at the time of the sheriff's conduct,¹⁴ the court of appeals affirmed the district court's denial of immunity because there existed a factual dispute as to precisely what the sheriff knew and when, and how this caused delay in the plaintiffs medical treatment.¹⁵ On rehearing, the panel made a more critical analysis of the clearly established law and concluded that at the time of Harris' incarceration it was clearly established that knowledge of the need for medical care and intentional refusal to provide that care constituted deliberate indifference,¹⁶ that delay in treatment of serious and painful injuries was clearly recognized as rising to the level of a constitutional claim,¹⁷ that pre-existing law clearly gives officials a sense of what amount of time constitutes actionable delay,¹⁸ and that it was clearly established that the right to medical care may include diagnostic tests known to be necessary.¹⁹ The court concluded there was no factual issues on the qualified immunity issue and the sheriff was not entitled to qualified immunity. The court did point out that a finding of no immunity under the circumstances did not render the sheriff liable for deliberate indifference a fortiori, that issue remaining for the jury.²⁰

The question of clearly established law in a factual setting arose where a county Department of Family and Children Services took custody of a child whose condition officials deemed to be life threatening.²¹ Against competing principles of clearly established law, that is, a parent's interest in the custody of a child²² and the state's right to temporarily deprive a parent of custody where there is an objectively reasonable basis to believe the child's life, safety or welfare are threatened,²³ the district court submitted special interrogatories to the jury to determine whether a reasonable basis for temporary deprivation of custody existed.²⁴ The Eleventh Circuit approved this procedure, observing that prior precedent suggests that submission of the factual component of a qualified immunity defense to the jury through a special interrogatory, without mentioning the term "qualified immunity," is proper.²⁵

Hansen v. Soldenwagner²⁶ applied the bright line test to an action alleging a First Amendment violation where disciplinary action was taken against a police officer whose deposition in a criminal case was crude, obscene and critical of the police department.²⁷ The court upheld qualified immunity in that it was not clearly established that it was unconstitutional for police officials to investigate and suspend an officer for making vulgar, insulting and defiant criticisms of the department while giving deposition testimony pursuant to subpoena.²⁸

In a Fourth Amendment seizure context, Mendel v. City of Atlanta²⁹ presented a fact intense analysis of seizure vel non. In reversing the district court's denial of qualified immunity, the court found no precedent which requires officers to use all feasible alternatives to avoid a situation where deadly force can justifiably be used.³⁰

A bright line issue found the Court divided en banc in Lassiter v. Alabama A & M University Board of Trustees.³¹ The case arose when a vice president of the university was fired without being offered a hearing.³² A seven judge majority found that the district court properly upheld the individual defendants' qualified immunity defense³³ since it was not clearly established in Alabama law that the vice president's contract nor the University policy manual supported employment property right for the vice president³⁴ or that he was due a hearing.³⁵ Taking an opportunity to reinforce the specificity of the clearly established component of qualified immunity, the court said for qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about) the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.³⁶

Spivey v. Elliott³⁷ involved the qualified immunity defense asserted by officials of a state-run school for deaf children.³⁸ An eight year old residential student was sexually assaulted by a thirteen year old schoolmate.³⁹ Alleging the existence of a special relationship, the mother of the student brought action based on violation of his Fifth and Fourteenth Amendment substantive due process rights to liberty, privacy, and personal security.⁴⁰ Again, the court found that there was no clearly established law that a special relationship was created by enrollment at a voluntary residential state-run school,⁴¹ notwithstanding its speculation that the claim was probably sufficient to allege a violation of a constitutional right which was not clearly established at the time.⁴²

In an Eighth Amendment claim arising from a jail suicide, Belcher v. City of Foley,⁴³ based the complaint against a chief of police on deliberate indifference because of his failure to provide sufficient written policies to deal with potential suicides⁴⁴ and failure to train staff in management of potential suicides.⁴⁵ Additional allegations against the chief's employees raised the issue of deliberate indifference to the victim's medical and psychiatric needs and to his safety from self-harm.⁴⁶ Again the plaintiff failed the bright line test, the court holding that it was not clearly established that a police chief's failure to have a written policy for handling suicidal inmates constituted deliberate indifference⁴⁷ nor was it clearly established that a police chief's failure to training his officers in the handling of suicidal inmates amounted to deliberate indifference.⁴⁸ As to the claims against the chief's employees, the court analyzed the authorities advanced by the plaintiff and concluded that all the authorities were insufficient or distinguishable.⁴⁹ The court clarified that non-legally enforceable standards are not the law and cannot clearly establish it.⁵⁰

In Jordan v. Doe,⁵¹ a Bivens⁵² action was filed by a pretrial detainee against officials of the United States Marshals Service alleging that he was placed in local "contract" jails where the marshals knew unconstitutional conditions existed.⁵³ The court agreed that the complaint was sufficient to raise a constitutional claim.⁵⁴ However, the court upheld the qualified immunity defense...