Constitutional Civil Law - Albert Sidney Johnson

• Publication year: 1996

Constitutional Civil Lawby Albert Sidney Johnson^*

During the 1995 survey period, the United States Court of Appeals for the Eleventh Circuit ("Eleventh Circuit" or "Court") was influenced by the Supreme Court of the United States (the "Supreme Court"), application of the effect of its earlier decisions, and a number of cases of first impression. The Court was required to modify its long-standing practices of pendent appellate jurisdiction¹ and scope of review² in cases involving qualified immunity defenses. The Supreme Court's refinement of the definition of "deliberate indifference"³ influenced several of the Court decisions relating to the Cruel and Unusual Punishments Clause of the Eighth Amendment. The Court considered several cases of first impression relating to consent searches, constitutionality of anti-nepotism policies, and the relationship of substantive due process considerations to involuntary resignations. One of the Court's major cases⁴ of the 1994 survey period was applied in a variety of settings during the 1995 survey period.

I. Preliminary Issues

A. Immunity

Qualified Immunity. Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.⁵ The Eleventh Circuit uses a two step analysis to determine whether qualified immunity is available. First, the defendant must show that he acted within the scope of his discretionary authority.⁶ Once the defendant has made such a showing, the plaintiff must show that the defendant violated the plaintiff's clearly established statutory or constitutional rights.⁷ A government official acts within his discretionary authority if the actions were (1) undertaken pursuant to the performance of his duties and (2) within the scope of his authority.⁸

Clearly Established Law. The majority of cases decided by the Eleventh Circuit under the qualified immunity doctrine focus on a determination of whether the plaintiff has shown that a defendant's conduct violated clearly established law. In Anderson v. Creighton,⁹ 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.¹⁰ The Court in Anderson established that the viability of an "objective reasonable" standard in preserving immunity depended on the "level of generality at which the relevant legal rule' is to be identified."¹¹ The Anderson rule has been expressed by the Court in terms that "[fjor 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."¹²

In Flint Electric Membership Corp. v. Whitworth,¹³ the Court had occasion to consider the clearly established law issue in the law of the case context. The Court had previously held that the individual defendants were not entitled to qualified immunity.¹⁴ Thus, the prior decision denying qualified immunity would be binding as the law of the case unless "(1) new and substantially different evidence material to the issue has been presented; (2) controlling authority has been rendered which is contrary to the law of the previous decision; or (3) the earlier ruling was clearly erroneous and would work a manifest injustice if implemented."¹⁵ In this contract bid and award case, the Court found that the state contracting procedures vested the plaintiff electric membership corporations with a property right.¹⁶ However, in light of new law¹⁷ and a ruling of the Georgia Supreme Court which had provided procedural relief in similar contract cases, the Court found the law of the case no longer binding and qualified immunity applicable.¹⁸ D'Aguanno v. Gallagher¹⁹ involved four homeless persons who lived in shelters they had built in a homeless campsite on undeveloped private property.²⁰ They were visited at least once a month by sheriff's deputies who routinely requested identification from them.²¹ At the request of the property owner, the deputies entered the campsite and removed the squatters' shelters and personal property.²² The squatters brought a section 1983 action for damages against the sheriff and the deputies alleging First, Fourth, and Fifth Amendment violations, as well as an action for injunctive and declaratory relief and violations of state law.²³ The Court reviewed the district court's grant of defendants' motion for summary judgment on all of the plaintiffs' causes of action²⁴ and held that the district court erred in concluding that the defendants were entitled to qualified immunity on the claims for violation of state law.²⁵ ° Furthermore, the district court erred in granting summary judgment on plaintiffs' claims for injunctive and declaratory relief because qualified immunity is a defense only to claims for monetary relief.²⁶ Addressing the constitutional claims, the defendants were entitled to qualified immunity on plaintiff's First Amendment associa-tional and peaceable assembly claims because it was not clearly established that people have a right to pursue such rights on the property of another without the owner's permission;²⁷ there was no clearly established Fourth Amendment law that society recognized plaintiffs' expectation of privacy under the facts of this case;²⁸ nor was there any clearly established Fifth Amendment due process law that states circumstances in which homeless persons retain a property interest in the shelters they erect or whether homeless persons retain a property interest in shelters erected and property stored without permission on private property.²⁹

Rogers v. Miller³⁰ arose from a retaliation claim for First Amendment political speech in a sheriff's re-election campaign. Several deputies (the plaintiffs) supported the unsuccessful campaign of the sheriff's opponent.³¹ Other deputies sought to persuade them to support the incumbent.³² These efforts at persuasion were interpreted by the plaintiffs as threats and intimidation.³³ Following the election, the plaintiffs were transferred to positions in which they would not be under the direct supervision of the deputies who supported the sheriff.³⁴ The transfers did not involve demotions in pay or rank for the plaintiffs, although they claimed hardship or loss of supervisory responsibilities.³⁵ The plaintiffs claimed the new assignments were retaliatory and constituted constructive discharges from their former positions.³⁶

The Circuit reversed the plaintiffs' appeal from denial of the qualified immunity defenses on two points: (1) there was no clearly established law that a plaintiff in a section 1983 lawsuit may not be transferred to a position involving no loss of pay or rank, in order to relieve the concerns of defendant-supervisors, who reasonably believe that their ability to effectively direct and discipline a subordinate plaintiff was compromised as a result of the underlying litigation;³⁷ and (2) there was no clearly established law in which warnings of the type involved here or attempts to sway a government coworker's political views have been held actionable under section 1983.³⁸

In Hartsfield v. Lemacks,³⁹ a deputy sheriff was not entitled to qualified immunity from a homeowner's section 1983 claim when a search warrant was executed at the wrong house.⁴⁰ Clearly established law required the deputy to make a reasonable effort to identify the property to be searched.⁴¹

Lenz v. Winburn⁴² involved a rare instance where a defendant failed to show that she was acting within her discretionary authority. The guardian ad litem for a minor participated in a search of the minor's residence in attempting to obtain the minor's clothing and other belongings when she was removed from her father's custody.⁴³ Although the guardian is expected to be a monitor and protector, the defined scope of her duties excluded nonjudicial functions.⁴⁴ Under these circumstances, it was not necessary to determine whether the underlying Fourth Amendment search issue was clearly established.⁴⁵

In another case, a jail visitor was arrested when a routine computer search revealed outstanding warrants on bad check charges.⁴⁶ She advised the deputies that she had reported the check stolen.⁴⁷ The deputies were also aware that the underlying charges were possibly time barred under the statute of limitations.⁴⁸ In granting the deputies qualified immunity, the Court held that, when the case arose in 1992, the law was not clearly established that the Fourth Amendment forbade an arrest based upon an otherwise valid warrant if the arresting officers knew the statute of limitations period had run.⁴⁹

Williamson v. Mills⁵⁰ also involved a qualified immunity determination where an arrestee contended he was falsely arrested in violation of the Fourth Amendment.⁵¹ Finding the circumstances of arrest to be without even arguable probable cause,⁵² the Court denied qualified immunity.⁵³

In Haygood v. Johnson,⁵⁴ the issue was whether a search was illegal because the deputy sheriff who procured the warrant intentionally and recklessly omitted material facts from the application.⁵⁵ The Court acknowledged that clearly established law holds a search invalid when facts deliberately omitted from the warrant would have negated probable cause.⁵⁶ However, in analyzing the facts omitted from the application, the Court concluded that the facts omitted were not so clearly material that every reasonable law officer would have known that their omission would lead to a search in violation of federal law.⁵⁷

Probable cause incident to arrests was the focal issue in L.S.T., Inc. v. Crow.⁵⁸ An examination of the facts involved in...