Local Government Immunity Defense: Litigation Challenges Navigating - PowerPoint PPT Presentation

Weakening Municipal Immunity • Sovereign Immunity does not cross state lines. – Supreme Court held State of Nevada could not claim immunity from suit in action brought in California court by California residents to recover for injuries sustained in automobile collision on California highway involving vehicle owned by State of Nevada. – Full faith and credit clause did not require California to limit recovery to the $25,000 maximum limitation in Nevada's statutory waiver of its immunity from suit in its own courts. – Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182 (U.S.Cal.,1979). • But see: – Reed v. University of North Dakota, 543 N.W.2d 106, 107 (Minn.App.,1996) (Unlike the facts in Nevada v. Hall, here we have plaintiffs suing North Dakota in a Minnesota court for actions that occurred in North Dakota). 24

Judicial Abrogation of Municipal Immunity • The first court to abrogate common law municipal immunity was Florida: Hargrove v. Town of Cocoa Beach, 96 So.2d 130, 131 (Fla.1957). • Others soon followed: – “We are satisfied that the governmental immunity doctrine has judicial origins. Upon careful consideration, we are now of the opinion that it is appropriate for this court to abolish this immunity notwithstanding the legislature's failure to adopt corrective enactments.” Holytz v. City of Milwaukee , 17 Wis.2d 26, 37, 115 N.W.2d 618, 623 (Wis.1962). – “In Ohio, there is no doubt that the municipal immunity doctrine was judicially created. Inasmuch as it is a judicially created doctrine, it may be judicially abolished .” Enghauser Mfg. Co. v. Eriksson Engineering Ltd . 6 Ohio St.3d 31, 33, 451 N.E.2d 228, 230 (Ohio,1983). – “…this court overrules Dayton v. Pease (1854), 4 Ohio St. 80, wherein the sovereign immunity doctrine was extended to encompass local governmental units, and all other decisions which support this doctrine, and holds that immunity from tort liability heretofore judicially conferred upon local governmental units is hereby abrogated. Henceforth, so far as municipal governmental responsibility for torts is concerned, the rule is liability-the exception is immunity.” Enghauser Mfg. Co. v. Eriksson Engineering Ltd . 6 Ohio St.3d 31, 32-33, 451 N.E.2d 228, 230 (Ohio,1983). 25

Legislative Response re Governmental Immunity and Liability • Two Approaches – Immune with exceptions for liability – Liability with exceptions for immunity. 26

Consent to Jurisdiction • Whether or not a king can do no wrong, it is clear that even a king may consent to suit. “In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.” Marbury v. Madison, 5 U.S. 137, 163 (1803). 27

Statutory Immunity/Liability • Wisconsin (waiver with exceptions and limits) – 893.80 Claims against governmental bodies or officers, agents or employees; notice of injury; limitation of damages and suits. Wisconsin Statutes . – 50,000 cap – Retains immunity for intentional torts, legislative & quasi legislative, judicial and quasi judicial, proprietary and discretionary exemptions. 28

Statutory Immunity/Liability • Florida (waiver with exceptions and limits) – 768.28. “Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs.” Florida Statutes – 200,000 cap (300,000 all claims same incident) – Retains immunity for intentional torts, legislative & quasi legislative, judicial and quasi judicial, proprietary and discretionary exemptions. 29

Statutory Immunity/Liability • Pennsylvania (Immunity with exceptions and limits). – “Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa.C.S.A. § 8541. – 8542. Exceptions to governmental immunity – 8553. $500,000 cap. 30

Procedural Hoops, Notice of Claim & Indemnification • Administrative Remedies must be followed if available (e.g. open meetings law may require mandamus action or filing with D.A. prior to individual action). • Some states have instituted notice of injury and claim procedures and shortened statutes of limitations. • Must provide local government opportunity to evaluate claim prior to filing suit. • Some states have required indemnification of public officials and employees. 31

General Types of Immunities • Discretionary vs. Ministerial – Separation of Powers (court won‟t substitute its judgment for that of legislative/executive branch), but where no judgment is involved immunity is waived. • Governmental vs. Proprietary activities • Absolute (with exceptions) for Legislative and Judicial and Prosecutorial actions. • Qualified Immunity under 1983 • Statutory 32

Common Specific Statutory Immunities • Varies Greatly State to State – Recreational Immunity – Granting license (e.g. liquor license) – Highway Maintenance – Snow and ice removal – Release of Information on sex offenders – GAL activities 33

Governmental v. Proprietary • Police • Cemetery • Hospital • Fire • Garbage • Sanitation • Housing • Cemetery • Natural Gas & • Tax collection Electric • Airport Utilities • Hospital • Swimming Pools • EMS • Garbage 34

Governmental v. Proprietary • Expressly or • Normally performed Impliedly Authorized by private parties by law • Benefits are distinct • Planning and Policy to specific interests Making • Profit motive (even if • No Profit just additional • No Private Interest revenue to general fund) • Benefits Public as a whole • Historically performed as a government service 35

Common Exceptions • Nuisance Actions (for creating and maintaining nuisance). – “We have recognized that a municipality may be liable for a nuisance it creates and maintains. The municipality is only liable in the event that, if the condition constituted a nuisance, it was created by some positive act of the municipality.” Lukas v. City of New Haven, 184 Conn. 205, 209, 439 A.2d 949, 952 (Conn., 1981). (icy street not a nuisance). – Nestle v. City of Santa Monica, 6 Cal.3d 920, 936 (Cal.1972). (airport may cause a nuisance, remanded). – Leaking sewage – Burning waste caused blackout on freeway 36

Common Exceptions • Bad Actors: Crime, actual fraud, actual malice or willful misconduct • Ministerial Duty • Serious Known and Present Danger 37

A Note on Contracts • Generally no immunity to remedies available for breach of a valid contract. • But: • Failure of municipality may render contract unenforceable: • Failure to follow mandatory procedures (re bidding requirements) • Ultra Vires (contract outside of governmental authority) 38

A Note on Contracts • Local Government can‟t contract away certain fundamental duties: – Can‟t agree to vote for or against any given action at some future date. – E.g. can‟t agree to rezone or not rezone. – Can‟t agree to enforce or not enforce any specific ordinance. 39

Qualified Immunity C. David Dietz Assistant Ramsey County Attorney cdaviddietz@comcast.net

• 42 U.S.C.A. § 1983: Every person who, under color of [ law] … causes … any citizen … the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law … 41

• The Supreme Court long ago decided that Congress could not have intended to abrogate immunities “well grounded in history and reason.” Lomaz v. Hennosy 151 F.3d 493, 497 (6th Cir. 1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)). • 42 U.S.C. § 1983, is limited by two recognized exceptions: qualified immunity and absolute immunity. Id. ( citing Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). 42

• If parties seeking immunity were shielded from tort liability when Congress enacted the Civil Rights Act of 1871-§ 1 of which is codified at 42 U.S.C. § 1983-we infer from legislative silence that Congress did not intend to abrogate such immunities when it imposed liability for actions taken under color of state law. Wyatt v. Cole, 504 U.S. 158, 164 (1992). 43

• For officials whose special functions or constitutional status requires complete protection from suit, we have recognized the defense of “absolute immunity.” Harlow v. Fitzgerald 457 U.S. 800, 807, 102 S.Ct. 2727, 2732 (U.S.Dist.Col.,1982) • Legislators, See , e.g., Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975). • Judges , See, Stump v. Sparkman, 435 U.S. 349, (1978). • Certain officials of the executive branch , including prosecutors and similar officials , See Butz v. Economou, 438 U.S. 478, 508- 512 , (1978). • Executive officers engaged in adjudicative functions (trial witnesses, etc.), id ., at 513-517. 44

• The recognition of a qualified immunity defense for high executives reflected an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens but also “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald 457 U.S. 800, 808 (1982). 45

• “We therefore hold that 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.” Harlow v. Fitzgerald , 457 U.S. 800, 818 ((1981). • “The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent of those who knowingly violate the law.” Hunter v. Bryant , 502 U.S. 224, 229 (1991). 46

• Two-Step approach: – Was a constitutional right violated – Was the right “clearly established”? Saucier v. Katz, 533 U.S. 194, 201 (2001). • Two-Steps are not mandatory. The courts should determine which of the two prongs to address first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). 47

• A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is “clearly established” at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all. • Siegert v. Gilley, 500 U.S. 226, 232 (1991). 48

• The Due Process Clause of the 14th Amendment and § 1983 do not create claims for wrongs inflicted by government employees that usually give rise only to state-law tort claims. • Paul v. Davis, 424 U.S. 693, 699 (1976); 49

• The right alleged to be violated must be “clearly established” at the time of the violation. Butz v. Economou, 438 U.S. 478, 498 (1978). • The right cannot be defined at an abstract or generalized level. The question must be considered “in light of the specific context of the case.” Saucier , 533 U.S. at 201. 50

• To be clearly established, the “contours” of the right allegedly violated must be sufficiently clear that a reasonable official would understand that what he or she is doing violates that right. Anderson v. Creighton , 483 U.S. 635, 640 (1987). • The relevant, dispositive inquiry … is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier , 533 U.S. at 202. 51

• As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law. Malley v. Briggs, 475 U.S. 335, 341 (1986). 52

• Chaining a prisoner to a post • Reasonable officials in the ADOC should have realized that the use of the hitching post under the circumstances alleged by Hope violated the Eighth Amendment prohibition against cruel and unusual punishment. Hope v. Pelzer, 536 U.S. 730, 745 (2002). 53

• Shooting an unarmed fleeing suspect in the back? • “The cases by no means “clearly establish” that Brosseau's conduct violated the Fourth Amendment.” Brosseau v. Haugen, 543 U.S. 194, 201 (2004). 54

• Warrantless search of a home? • No reasonable officer could claim to be unaware of the basic rule, well established by our cases, that, absent consent or exigency, a warrantless search of the home is presumptively unconstitutional. Groh v. Ramirez, 540 U.S. 551, 565 (2004). 55

• We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common- law action for false arrest and imprisonment, is also available to them in the action under s 1983. Pierson v. Ray, 386 U.S. 547, 557 (1967). 56

• Can you have good faith if you violate “clearly established” law? • The immunity defense would be unavailing to petitioners if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right, and if they knew or should have known that their conduct violated the constitutional norm. Procunier v. Navarette, 434 U.S. 555, 562, (1978). 57

• Under that standard, a defense of qualified immunity may not be rebutted by evidence that the defendant's conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant's subjective intent is simply irrelevant to that defense. Crawford-El v. Britton 523 U.S. 574, 588 (1998). 58

• Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). 59

• If the actions Anderson claims he took are different from those the Creightons allege … then discovery may be necessary before Anderson's motion for summary judgment on qualified immunity grounds can be resolved. Anderson v. Creighton, 483 U.S. 635, 646 (1987). 60

• The District Court's determination that the summary judgment record in this case raised a genuine issue of fact concerning petitioners' involvement in the alleged beating of respondent was not a “final decision” and, thus, not appealable. Johnson v. Jones, 515 U.S. 304, 313 (1995). 61

• May a party … appeal an order denying summary judgment after a full trial on the merits? Our answer is no. Ortiz v. Jordan, 131 S.Ct. 884, 889 (U.S.,2011) 62

• Section 1983 actions can be brought in state court. • But any immunity claim is a question of federal law. Martinez v. State of Cal., 444 U.S. 277, 284 (1980). 63

• Defendants in a state-court § 1983 action do not have a federal right to an interlocutory appeal from a denial of qualified immunity. • Johnson v. Fankell, 520 U.S. 911, 914 – 923 (1997). 64

STATUTORY CONSTRUCTION Robin A. Melvin Graves, Dougherty, Hearon & Moody, P.C. Austin, Texas 512.480.5688 rmelvin@gdhm.com

66 Why Is Statutory Construction Relevant?

67 Common-law immunity rejected • Many state courts abolished common- law immunity for cities in whole or part. • Legislatures responded with statutes: • Granting immunity with exceptions. • See, e.g. , California, Michigan • Waiving immunity with exceptions. • See, e.g., Indiana, Nevada

68 • Some state constitutions abolished common-law immunity, but authorized the legislature to impose immunity by statute. • See, e.g., Illinois, Montana • Some state legislatures abolished common-law immunity and replaced it with a statutory scheme. • See, e.g., Washington

69 Statutory exceptions to immunity • In other states, common-law sovereign immunity still exists, but the state constitutions or the courts recognize that the legislature may adopt exceptions to that immunity. • See, e.g. , Delaware, Florida, Kentucky, Maryland, South Dakota, Texas, Virginia

70 Statutory Construction Principles

71 Statutory Waivers must be clear and unambiguous.

72 Clear and unambiguous language • Any waiver of immunity must be “clear and unequivocal.” • Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp. , 908 So.2d 459, 472 (Fla. 2005) • Waiver of immunity must be “by clear and unambiguous language.” • T EXAS G OV ‟ T C ODE § 311.034

73 Statutes with „magic words‟ • A “clear and unambiguous” finding is easy when a statute expressly says that “sovereign immunity is waived.” • Many states have adopted tort claims acts and other statutes that expressly waive immunity from liability and suit.

74 Statutes without “magic words” • But a statute may also waive immunity without using the “magic words” “waive” or “immunity.” • Some statutes have been held to be an express waiver of immunity, even without the magic words. • Statute requiring refund of improperly paid taxes held to be an express waiver.

75 Implied waiver • Statute may waive immunity: • by necessary implication • by necessary & compelling implication • by “overwhelming implication … as will allow no other reasonable construction” • if statute would be meaningless or senseless without waiver • by reasonable implication

76 No ambiguous waivers • Ambiguities are generally resolved by retaining immunity. • “We must interpret any uncertainty as to the existence of a waiver as preserving sovereign immunity.” • Connecticut • Statute held “too internally inconsistent” to waive immunity. • Texas

77 Common rules/inconsistent results • Some courts have held inclusion of a city in a statutory definition of “person” or “employer” is a clear and unambiguous waiver of immunity under that statute. • Texas statute says that the use of “person” to include governmental entity does not waive immunity unless there is no other reasonable construction.

78 • Some courts have held that general enabling statutes allowing cities to “sue and be sued” waive immunity from non - tort actions. • See, e.g., Maryland, Missouri, South Dakota • But other courts have held that “sue and be sued” standing alone does not waive immunity from non-tort actions. • See, e.g. , , Georgia, Texas

79 Statutory Waivers must be narrowly construed.

80 Waivers strictly construed • A waiver of immunity will be strictly construed, as to its scope, in favor of sovereign immunity. • Statutes in derogation of common law must be strictly construed. • Ambiguities will be resolved in favor of immunity.

81 Immunity strictly construed • Where waiver of immunity is the rule, then exceptions must be strictly construed. • Nevada • Where common-law immunity was abolished, statute granting immunity is in derogation of common law, so immunity must be strictly construed and waivers must be broadly construed. • Colorado

82 Waivers liberally construed • Courts should defer to the expressed intention of the legislature that a waiver be liberally construed where statutory language is ambiguous. • Tennessee

83 Regular rules of construction • Statutory construction must start with the plain language. • Words are to be given their ordinary meaning. • Statutes must be read in context, not in isolation. • Statutes must be construed to avoid surplusage.

84 Summary • Most state courts require a waiver to be clearly and unequivocally expressed. • Most state courts require a statute that waives immunity to be strictly construed. • Some states have statutory rules of construction relating to waiver.

Recent Immunity Cases Supreme Court (Selected Circuit Cases) 85

Some Cases of Note • Martha ("Molly") Otis Scheer v. City of Hayward, et al, Case #: 3:10-cv-00447-slc (Western District of Wisconsin) • Town of Clayton v. Cardinal Const. Co., Inc., 317 Wis.2d 424, 428, 767 N.W.2d 605, 607 (Wis.App.,2009) (ultra vires) • Neuendorf v. City of West Bend, 2011 WL 4596128, (Wis.App.,2011) (discretionary v. ministerial duty).

Question on Statutory Grant • Does a statutory grant of a specific immunity create a kind of inverse liability? The following debate has arisen in Wisconsin around an immunity provision recently enacted in Wisconsin's concealed carry law: • Wisconsin Statute sec. 175.60(21)(b) grants a person who does not prohibit an individual from carrying a concealed weapon on property that the person owns or occupies immunity from any liability arising from that decision. Similarly, sec. 175.60(21)(c) grants an employer that does not prohibit one or more of its employees from carrying a concealed weapon immunity from any liability arising from that decision. • Does this mean that a city that prohibits concealed weapons in city hall or that prohibits employees from carrying concealed weapons in the course of employment do not have immunity from any liability arising from those decisions?

Ashcroft v. al-Kidd • The federal material-witness statute authorizes judges to “order the arrest of [a] person” whose testimony “is material in a criminal proceeding ... if it is shown that it may become impracticable to secure the presence of the person by subpoena. ” • The complaint alleges that, after 9-11 Attorney General John Ashcroft authorized federal officials to use the statute to detain individuals with suspected ties to terrorist organizations, even though the officials had no intention to call them as witnesses. 88

Ashcroft v. al-Kidd • FBI agents apprehended al-Kidd, a native-born United States citizen in March 2003 as he checked in for a flight to Saudi Arabia. Two days earlier, federal officials had informed a Magistrate Judge that, if al-Kidd boarded his flight, they believed information “crucial” to the prosecution of Sami Omar al-Hussayen would be lost. Al – Kidd remained in custody for 16 days and on supervised release until al-Hussayen's trial concluded 14 months later. Prosecutors never called him as a witness. 89

Ashcroft v. al-Kidd • Complaint failed to allege the violation of a constitutional right. • Ashcroft’s conduct was not the violation of a clearly established right. • Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011) 90

Camreta v. Greene • The United Stated States Supreme Court held in Camreta v. Greene , 131 S. Ct. 2020 (2011), that it could review, at the request of government officials who had been granted qualified immunity in a § 1983 action based on the absence of clearly established law, the Ninth Circuit's ruling that the officials had violated the Fourth Amendment by failing to obtain a warrant or parental consent before interviewing an elementary-school student regarding allegations that her father had sexually abused her. 91

Ortiz v. Jordan • Defendant may not appeal order denying summary judgment on qualified immunity grounds after full trial on merits. • Ortiz v. Jordan, 131 S.Ct. 884 (2011). 92

Lebron v. Rumsfeld • Padilla claims that, as a citizen captured within the U. S., he was unconstitutionally designated as an enemy combatant, and the ensuing military detention violated his right to: counsel — 1st, 5th, and 6th Amendments; access to courts — Article III, the 1st and 5th Amendments, & the Habeas Corpus Suspension Clause; non-cruel conditions of confinement — 5th and 8th Amendments; non- coercive interrogations — 5th and 8th Amendments; freedom of religion under the 1st Amendment and the Religious Freedom Restoration Act; access to information and freedom of association under the 1st Amendment; and due process protected by the 5th Amendment. 93

Lebron v. Rumsfeld • Preserving the constitutionally prescribed balance of powers is thus the first special factor counseling hesitation in the recognition of Padilla's Bivens claim. • A second factor causing hesitation in the Bivens context is the departure from core areas of judicial competence that such a civil action might entail. • Lebron v. Rumsfeld 2012 WL 213352 (4th Cir. 2012). 94

Lebron v. Rumsfeld • Before recognizing a Bivens action, courts must not only consider special factors that would counsel hesitation, but also “whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. ” • Cumulative concerns lead to no remedy. • Lebron v. Rumsfeld 2012 WL 213352 (4th Cir. 2012). 95

Ryburn v. Huff • Police officers investigating a rumor that a high school student had threatened to “shoot up” the school had reasonable basis for fearing that violence was imminent, entitling them to qualified immunity in action based on their warrantless entry into student's home • After some delay, student’s mother answered the knock but ran back inside when asked if there were guns. • Ryburn v. Huff, 2012 WL 171121 (2012). — Good faith? 96

Bernini v. City of St. Paul • Republican National Convention riot in St. Paul. Crowd of 400; 200 released; 160 arrested and booked. • Police use non-lethal munitions, including smoke, blast balls, and chemical irritants. • Thirty two plaintiffs v. five officers 97

Bernini v. City of St. Paul • Claims of false arrest, excessive force, and violation of 1 st Amendment Rights. • Qualified Immunity on all claims. • Bernini v. City of St. Paul, 2012 WL 96461 (8th Cir. 2012) 98

• No constitutional violation in warrantless searches of mining facility under state statute. Lesueur-Richmond Slate Corp. v. Fehrer, 2012 WL 104914 (4th Cir. 2012). • No immunity for a correctional officer who ordered the forcible shearing of the plaintiff's dreadlocks. Grayson v. Schuler, 2012 WL 130454 (7th Cir. 2012) 99

Federal Circuits • Ordering a five – to seven-minute dog attack against a compliant suspect who is pleading to surrender violates the Fourth Amendment. Edwards v. Shanley, 2012 WL 89193 (11th Cir. 2012). • Sheriff is immune for inducing a guilty plea by a legally incompetent person. Hayden v. Nevada County, 2012 WL 43642 , ( 8th Cir. 2012). 100