Constitutional Civil Law - Albert Sidney Johnson

• Publication year: 1997

Constitutional Civil Law by Albert Sidney Johnson^*

The 1996 survey period was a reasonably quiet year for the United States Court of Appeals for the Eleventh Circuit in terms of dramatic developments in civil constitutional law. The most significant labor of the court of appeals was directed toward accommodation of developing law in the United States Supreme Court surrounding the application of evidentiary sufficiency standards to qualified immunity inquiries.¹ The Eleventh Circuit continued its resolve against exercising pendent appellate jurisdiction in the aftermath of the Supreme Court's directive in Swint v. Chamber County Commission.² The court of appeals had occasion to consider, in three separate contexts,³ the municipal final policymaker issue in advance of the Supreme Court's pending opinion.⁴ Although the Eleventh Circuit continues to hold fast against any proposed erosions of its holding on the availability of substantive due process relief,⁵ it continues to be given opportunities to recede from that position.⁶ As the court of appeals finds its way toward stronger consensus in the civil constitutional arena, the Supreme Court's activity on the subject prevents the court of appeals from becoming clearly focused.

I. Preliminary Issues

A. Immunity

1. 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.⁷ 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.⁸ 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.⁹ 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."¹⁰

The majority of cases decided by the Eleventh Circuit under the qualified immunity doctrine continue to focus on a determination of whether the plaintiff has shown that a defendant's conduct violated clearly established law. In Anderson v. Creighton,¹¹ 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.¹² The Court in Anderson established that the viability of an "objectively reasonable" standard in preserving immunity depended on the "level of generality at which the relevant 'legal rule' is to be identified."¹³ The Anderson rule has been expressed by the Eleventh Circuit as follows: "[F]or qualified immunity to be surrendered, preexisting 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 "¹⁴

2. Qualified Immunity Sustained. In Heggs v. Grant,¹⁵ the Eleventh Circuit sustained qualified immunity for a police chief when it was not clearly established that the policies, procedures, and precautions instituted to prevent inmate suicide were insufficient to protect the inmate from any known suicidal tendencies.¹⁶ Similarly, a shift supervisor was entitled to qualified immunity when he knew the inmate; had prior dealings with her; placed her in a cell from which blankets, sheets, and mattress had been removed; and checked on her every fifteen minutes.¹⁷

The Eleventh Circuit, in Suissa v. Fulton County,¹⁸ sustained a grant of qualified immunity on a finding that the law has not clearly established that an unsuccessful attempt to influence speech violates the First Amendment.¹⁹

In Johnson v. Clifton,²⁰ police officers who testified against the chief of police before a grand jury were disciplined following an internal investigation of their own conduct.²¹ Because the officers claimed that the discipline was in retaliation for exercising their free speech rights by testifying before the grand jury, the court of appeals pointed out that a balancing test must be conducted to determine whether the officer was justified in disciplining the employees.²² The Eleventh Circuit upheld qualified immunity because the law was not clearly established that the police chief could not have taken the disciplinary action indicated by the internal affairs investigation before he knew about the allegedly protected speech.²³

Qualified immunity was also sustained in Tinney v. Shores, because neither plaintiffs' substantive due process claim nor procedural due process claim supported violations of clearly established law.²⁵ Plaintiffs' claims were based on the sheriff's seizure of their mobile home on behalf of their landlord.²⁶

In a case in which deputized employees were discharged from employment by an elected county tax collector for supporting the collector's opponent, the Eleventh Circuit granted qualified immunity to the tax collector because there was no clearly established law which warned the collector that terminating the employees for political reasons violated any rights under the First Amendment.²⁷

In Cofield v. Randolph County Commission,²⁸ which arose from repossession of an automobile, qualified immunity was granted to a deputy sheriff because it was not clearly established that repossession under the existing facts was wrongful.²⁹

Foy v. Holston³⁰ presented a convoluted state of facts involving placement of children in foster care. The Eleventh Circuit upheld qualified immunity against claims of government employees' hostility toward plaintiffs' religious community and contentions of discriminatory intent,³¹ because "the Supreme Court has not instructed us to drop qualified immunity (with its test of objective reasonableness) from cases in which discriminatory intent is an element of the underlying tort."³²

3. Qualified Immunity Denied. Notwithstanding the Eleventh Circuit's substantial findings in support of the qualified immunity defense, the following cases illustrate the circumstances in which qualified immunity may be denied. In Dolihite v. Maughon,³³ the Eleventh Circuit denied qualified immunity to a social worker who was aware of an adolescent's suicidal threats and past behavior but had failed to notify psychiatrists at the hospital to continue protective measures.³⁴ In Cooper v. Smith³⁵ the Eleventh Circuit denied a sheriff qualified immunity and held it was clearly established that a sheriff violated a public employee's free speech rights by taking adverse action against the employee because of the employee's cooperation with a law enforcement investigation involving the sheriff.³⁶

Of an entirely different nature is the case of Anderson v. District Board of Trustees,³⁷ which illustrates the difficulties that occur when counsel become too embroiled in their own fight to remember that an independent decision-making body is also involved. Plaintiff filed a typical shotgun pleading, asserting six claims arising out of his termination by the college.³⁸ Rather than filing a motion for more definite statement, the defendant answered in kind.³⁹ Unable to sort out the pleadings and massive discovery, the court of appeals affirmed the district court's denial of qualified immunity without prejudice to the defendant's right to resubmit the issue once the parties appropriately joined issue on their claims and defenses.⁴⁰

4. Genuine Issues of Material Fact. The place and function of the fact-finding process continues to evolve in the Eleventh Circuit as the court of appeals finds opportunity to apply Johnson v. Jones⁴¹ and Behrens v. Pelletier.⁴² In Johnson, the Supreme Court returned to Mitchell v. Forsyth⁴³ to reconsider the proposition that a claim of immunity by a governmental defendant is conceptually distinct from the merits of the plaintiff's claim that his rights have been violated.⁴⁴ Thus, a defendant who is entitled to invoke the qualified immunity defense may not appeal a district court's denial of immunity insofar as the order determines whether the pretrial record sets forth a "genuine" issue of fact.⁴⁵

Following its established construction of Johnson, the Eleventh Circuit dismissed the appeal in Mastroianni v. Bowers,⁴⁶ in which the district court found that arresting the plaintiff without probable cause violated clearly established law and that genuine issues of material fact existed as to whether the defendants were guilty of the conduct alleged to constitute the violation.⁴⁷ The court of appeals adhered to its earlier applications of Johnson and explained that when the district court finds that genuine issues of material fact exist regarding the conduct alleged to have violated clearly established law, the court of appeals is without appellate jurisdiction.⁴⁸

Closely following the Eleventh Circuit's opinion in Mastroianni v. Bowers, the United States Supreme Court decided Behrens v. Pelle-tier,⁴⁹ in which the Supreme Court clarified its intent in the decision in Johnson. Pointing out that denial of summary judgment often includes a determination that there are controverted issues of material fact, the Supreme Court said that Johnson does not mean that every such denial is nonappealable.⁵⁰ If the issue in the trial court's determination of the sufficiency of evidence is whether the evidence could support a finding that particular conduct occurred, the question decided is not truly separable from the plaintiff's claim and, hence, there is no appealable final decision.⁵¹ Summary judgment determinations are appealable when they resolve a dispute concerning an abstract issue of law relating to qualified immunity.⁵²

The Eleventh Circuit anticipated Behrens i...