Proximate cause in constitutional torts: holding interrogators liable for Fifth Amendment violations at trial.

• Author: Flaxman, Joel

TABLE OF CONTENTS INTRODUCTION I. THE COMMON LAW AS STARTING POINT ONLY FOR CONSTITUTIONAL TORT CAUSATION A. Supreme Court Precedent B. Proximate Causation in the Federal Circuits C. Applying Common Law Rules While Paying Proper Respect to the Constitution II. PROPERLY APPLYING CAUSATION RULES TO FIFTH AMENDMENT VIOLATIONS AT TRIAL A. The Fifth Circuit's Overly Rigid Application of the Common Law B. The Sixth Circuit's Proper Consideration of the Constitutional Rights at Stake CONCLUSION INTRODUCTION

In 1996, a Texas trial court convicted eleven-year-old LaCresha Murray of injury to a child and gave her a twenty-five-year sentence. (1) An appeals court overturned LaCresha's conviction after she had spent three years in custody, finding that her confession should have been suppressed and not used at trial. (2) After her release from custody, LaCresha filed a lawsuit in federal district court under 42 U.S.C. [section] 1983, seeking damages from the officers who, she claimed, had violated her Fifth Amendment right against self-incrimination by eliciting the involuntary confession used at trial to convict her. (3)

LaCresha's lawsuit presented an important question that the Supreme Court left open in Chavez v. Martinez. (4) In Chavez, the Court held that a plaintiff may not obtain damages for a Fifth Amendment violation on the basis of a coercive interrogation that is not introduced at trial, because without such use, the plaintiff's right against self-incrimination has not been violated. (5) The Chavez Court did not, however, address a situation like LaCresha's where the involuntary statements in question were used against her at a trial in which she was convicted. In LaCresha's federal lawsuit, Murray v. Earle, the Fifth Circuit held that such use did violate her Fifth Amendment right against self-incrimination. (6) Despite this violation of LaCresha's constitutional rights, a violation that was not present in Chavez, the Fifth Circuit held that she too was barred from obtaining damages from the officers who had coerced her involuntary confession. (7) The court explained that the officers' wrongdoing had not caused the Fifth Amendment violation because of the intervening act of the trial judge, who, acting as a "neutral intermediary," admitted the confession into evidence. (8) In the language of tort law, the officers were relieved of liability because their acts were not the proximate cause of the constitutional violation--the use of the confession at trial. Moreover, because judges and prosecutors are immune from [section] 1983 lawsuits, (9) the court's ruling effectively relieved all actors of liability and left LaCresha with no remedy whatsoever.

The combination of the Fifth Circuit's holding in Murray and the Supreme Court's decision in Chavez creates a nasty catch-22. If a coerced confession is not introduced at trial, the Fifth Amendment has not been violated and the officer responsible for the coercive interrogation is not liable, but if the confession is used--in violation of the Fifth Amendment--the officer responsible for the coercion is again not liable because she is not the proximate cause of the constitutional violation. (10)

This catch-22 was apparent to the Sixth Circuit in McKinley v. City of Mansfield, in which the court held that an officer whose conduct led to the violation of a criminal defendant's Fifth Amendment rights at trial could not escape liability for that violation by pointing to the intervening act of a prosecutor or judger. (11) The court explained that, because of prosecutorial and judicial immunity, "a rule barfing suits against the police for Fifth Amendment violations is a rule barring any suits for Fifth Amendment violations." (12) The Sixth Circuit's focus on the vindication of the constitutional right in question (13) stands in sharp contrast to the Fifth Circuit's primary focus on intervening cause in tort law. (14) While the Fifth Circuit's opinion expressed regret about the consequences of its holding--the court wrote that it was "constrained to hold" that the interrogating officers were not liable (15)--the Sixth Circuit explicitly relied on the connection between its holding and the constitutional right in question. (16)

This Note argues for the approach taken by the Sixth Circuit in McKinley: a proper understanding of the Fifth Amendment requires holding that an officer who coerces a confession that is used at trial to convict a defendant in violation of the right against self-incrimination should face liability for the harm of conviction and imprisonment. Part I examines how the Supreme Court and the circuits have applied the concept of common law proximate causation to constitutional torts and argues that lower courts are wrong to blindly adopt common law rules without reference to the constitutional rights at stake. It suggests a different approach that is more faithful to Supreme Court precedent and better explains the variety of holdings among lower courts. Part II examines the conflicting opinions of the Fifth and Sixth Circuits in more detail and argues that the analysis of the Sixth Circuit is preferable because it more closely tracks Supreme Court precedent and the framework developed in Part I.

1. THE COMMON LAW AS STARTING POINT ONLY FOR CONSTITUTIONAL TORT CAUSATION

   This Part argues that common law rules of proximate causation are relevant to determining causation in constitutional torts, (17) but that courts should not apply them without reference to the underlying constitutional rights at stake. Section I.A examines Supreme Court precedent applying common law rules to constitutional torts and argues that the Court has refused the wholesale incorporation of common law causation into constitutional torts. Section I.B surveys circuit courts and concludes that, contrary to Supreme Court precedent, the circuits have applied causation rules from the common law to constitutional torts without sufficient consideration of the underlying constitutional questions presented. Section I.C looks to how the Court has instructed lower courts to analyze damages and immunities under [section] 1983 and suggests a similar path for analyzing causation questions.

   1. Supreme Court Precedent

      This Section begins by looking at how the Supreme Court has interpreted 42 U.S.C. [section] 1983, which creates a federal remedy against state actors who cause deprivations of constitutional rights. (18) First, it focuses on the Court's consistent use of the common law as a starting point in crafting rules for constitutional torts. Then, it looks specifically at decisions in which the Court has answered proximate causation questions in constitutional torts with reference to the common law. It demonstrates that for proximate causation, just as for other elements of constitutional torts, common law rules should only be used as a starting point. Although certain passages of dicta in these decisions may seem to suggest a wholesale incorporation of common law rules of proximate causation, this Section argues that this conclusion is wrong and misguided.

      While the purpose of [section] 1983--enforcing constitutional rights--is clear, (19) the statute's silence regarding how federal courts are to achieve that purpose leaves to the courts the development of the elements of [section] 1983 actions. (20) The Court has at times looked to the debates of the Forty-Second Congress, (21) but those debates give support to several different conceptions of the statute. (22) Because the legislative history and the statutory language do not always provide complete answers, the Court often looks to common law rules, both those in place when the statute was passed and more recent developments. (23)

      The Court's use of common law rules in [section] 1983 actions began with Monroe v. Pape, (24) in which the Supreme Court created the modern field of constitutional rights litigation. (25) The Court interpreted [section] 1983 to allow suits against state actors acting in violation of state law (26) and rejected an argument to import a specific intent requirement, writing that [section] 1983 "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." (27) In Monroe, this command meant that plaintiffs could sue the police officers who, without search or arrest warrants, "broke into [their] home in the early morning, routed them from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers," before subjecting one of the plaintiffs to a ten-hour interrogation. (28) Monroe was revolutionary, (29) but it provided only a starting point for later questions of constitutional tort causation. (30)

      Whatever the Monroe Court meant by relying on "the background of tort liability," (31) the Court subsequently made plain that it was not referring to a simplistic incorporation of all common law rules. For example, in Imbler v. Pachtman, the Court, in reading immunities into [section] 1983, described the statute as creating "a species of tort liability." (32) This phrase, like "background of tort liability," indicates that [section] 1983 liability is not identical to common law tort liability. The Court made this interpretation explicit in Carey v. Piphus, when it described the common law as "provid[ing] the appropriate starting point," but not a "complete solution," for determining damages under [section] 1983. (33) In Heck v. Humphrey, the Court again described the common law as a "starting point" (34) before it imported an element from the common law tort of malicious prosecution into a [section] 1983 claim. (35)

      Common law rules have been particularly important in answering questions of causation under [section] 1983. (36) In contrast to concepts like limitations or immunities, causation is mentioned specifically in the statute, which creates liability against any state actor who "subjects...