May 22, 2019

Tenth Circuit: In Sex Discrimination Case, Genuine Issues of Fact Existed as to Plaintiff’s Title VII Claims

The Tenth Circuit Court of Appeals published its opinion in Kramer v. Wasatch County Sheriff’s Office on Tuesday, February 25, 2014.

Camille Kramer worked for the Wasatch County Sheriff’s Department from 2005 to 2007. During that time, she was the victim of repeated sexual harassment, sexual assault and rape at the hands of Sergeant Rick Benson.

Ms. Kramer sued Wasatch County, alleging that the sexual harassment she experienced at the hands of Sergeant Benson constituted sex discrimination prohibited by both Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1), and the Constitution, 42 U.S.C. § 1983. The district court granted summary judgment to Wasatch County. The court held that Sergeant Benson was not Ms. Kramer’s supervisor for Title VII purposes because he did not have the actual authority to unilaterally fire her. It further held that supervisor status could not be premised on apparent authority because no reasonable juror could find Ms. Kramer reasonable in believing Sergeant Benson had the power to fire her. Even assuming Sergeant Benson was Ms. Kramer’s supervisor, the court concluded that Wasatch County was not vicariously liable for his conduct because Ms. Kramer suffered no tangible employment action and, alternatively, because Wasatch County was entitled to prevail on its Faragher/Ellerth affirmative  defense as a matter of law.

Finally, the district court held that Wasatch County was not negligent and thus could not be liable for Sergeant Benson’s harassment under co-worker harassment standards. As to Ms. Kramer’s § 1983 claims, the court determined that Sheriff Van Wagoner was entitled to qualified immunity, and that the County was not liable because it had no pattern, practice, or custom of illegal sex discrimination. Ms. Kramer appealed on all claims.

Sexual harassment in the workplace is a form of sex discrimination prohibited by Title VII. In general, an employer is directly liable for an employee’s unlawful harassment if the employer was negligent with respect to the offensive behavior. If the harasser is a supervisor rather than merely a co-worker, however, the employer may be vicariously liable for the conduct, depending on the circumstances.  If the supervisor’s harassment culminates in a “tangible employment action,” the employer is strictly liable for sex discrimination, with no defense. If no tangible employment action occurs, the employer may still be vicariously liable for the supervisor’s harassment if the plaintiff proves the harassment was severe or pervasive, and the employer is unable to establish the affirmative defense announced in Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). For these reasons, whether the harasser was a “supervisor” within the meaning of Title VII is a critical threshold question in determining whether the employer can be held vicariously liable for the harassment.

The United States Supreme Court has held that a “supervisor” under Title VII is an employee whom the employer has empowered to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Importantly, however, an employee need not be empowered to take such tangible employment actions directly to qualify as a supervisor. A manager who works closely with his or her subordinates and who has the power to recommend or otherwise substantially influence tangible employment actions, and who can thus indirectly effectuate them, also qualifies as a “supervisor” under Title VII.

Sergeant Benson was Ms. Kramer’s direct supervisor. He completed her performance evaluations and made recommendations regarding her employment status. The record established that Ms. Kramer raised a genuine issue of fact as to whether the Wasatch County Sheriff’s Department effectively delegated to Sergeant Benson the power to cause tangible employment actions regarding Ms. Kramer by providing for reliance on recommendations from sergeants such as Benson when making decisions regarding firing, promotion, demotion, and reassignment.

Even if it was determined that Sergeant Benson lacked the actual supervisory authority described above, he could still qualify as a supervisor under apparent authority principles. In the usual case, a supervisor’s harassment involves misuse of actual power, not the false impression of its existence. But in the unusual case, apparent authority can suffice to make the harasser a supervisor for Title VII purposes, so long as the victim’s mistaken conclusion is a reasonable one. Under the circumstances here, given the County’s and the Sheriff’s manuals, there was a genuine issue of fact as to whether Ms. Kramer was reasonable in believing that Sergeant Benson had additional powers – such as the power to transfer, discipline, demote, or fire her. A jury was especially likely to conclude such beliefs were reasonable because Sergeant Benson repeatedly told Ms. Kramer he did in fact possess such powers.

If Sergeant Benson was a supervisor, Wasatch County would be strictly liable for his harassment of Ms. Kramer if it culminated in a tangible employment action. However, the Tenth Circuit held that none of the following actions constituted tangible employment actions: (1) the rape; (2) the bad performance evaluation that was never submitted; (3) Sergeant Benson denying her vacation days; and (4) Sergeant Benson refusing to give her road training and assigning her to the magnetometer full-time. The Tenth Circuit held that no tangible employment action occurred. Because these actions did not constitute “tangible employment action,” the County could not be held strictly liable for sex discrimination.

Even absent a tangible employment action, if Sergeant Benson qualified as a supervisor, the County could be vicariously liable for his severe or pervasive sexual harassment unless it could establish the affirmative defense announced in Faragher and Ellerth. This defense has two elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

The Tenth Circuit held that Wasatch County did not support its summary judgment motion with evidence that entitled it to judgment as a matter of law under either of the affirmative defense’s two prongs. Wasatch County’s evidence did not establish as a matter of law that the County took reasonable means to prevent and promptly correct sexual harassment. The County did not provide any evidence that the Sheriff Department’s interventions were reasonably calculated to end the harassment, deter future harassers, or protect Ms. Kramer. Not only did the investigation here fail to demonstrate that the County employed reasonable means to discharge its Title VII obligations, the Sheriff’s response to Ms. Kramer’s allegations suggested that he did not understand he had a Title VII compliance matter on his hands. There was no evidence the Department sought to improve its sexual harassment prevention program or otherwise reduce the risk of future harassment. On this record, there remained a genuine issue of fact as to whether the County’s response to Ms. Kramer’s sexual harassment complaint fell short of demonstrating that the County took reasonable efforts to discharge its duty under Title VII, as required to establish the affirmative defense.

Under prong two of the affirmative defense, Wasatch County’s evidence did not compel the conclusion that Ms. Kramer was unreasonable. Ms. Kramer did not lodge a formal complaint. However, she testified that on numerous occasions Sergeant Benson sexually assaulted her and subsequently told her to “be quiet” and “not say anything” or it would be “a career ender.” Sergeant Benson also threatened Ms. Kramer with a poor evaluation unless she would keep her mouth shut and not say anything. The court concluded that the record demonstrated a persistent theme: Sergeant Benson was an intimidating person with job-related power over Ms. Kramer who would sexually harass her and then threaten that she would lose her job if she complained.

Ms. Kramer’s fear that Sergeant Benson would make good on his threats was not per se unreasonable given that he did in fact take adverse job actions against her at work – denying her leave time, threatening her with a bad performance evaluation, and giving her long shifts on the magnetometer. Even if these actions did not rise to the level of a tangible employment action, a reasonable employee could well find a combination of threats and actions taken with the design of imposing both economic and psychological harm sufficient to dissuade him or her from making or supporting a charge of discrimination. This evidence raised a genuine issue of fact as to whether Ms. Kramer’s fears of Sergeant Benson were credible and reasonable because they were grounded in concrete reasons to apprehend that complaint would result in affirmative harm to the complainant.

Taken together, the evidence was also sufficient to raise a genuine issue of fact as to whether Ms. Kramer was reasonable in believing it would be futile and potentially detrimental to herself to complain. Accepting Ms. Kramer’s version of the facts, a picture emerged in which Sergeant Benson used his job-related power over Ms. Kramer to compel, pressure, or coerce her to do his bidding. While Ms. Kramer technically could have avoided some of the encounters, the record did not establish that she could have done so without incurring some form of adverse employment action.

Accordingly, the Tenth Circuit reversed summary judgment for Wasatch County on both prongs of the Faragher/Ellerth defense.

However, the court affirmed the district court’s holding that the County’s liability could not be premised on negligence. The record evidence viewed in the light most favorable to Ms. Kramer failed to support an inference that the County had actual or constructive knowledge of Sergeant Benson’s sexual harassment before Ms. Kramer’s car accident.

Finally, the County was not liable for sex discrimination under § 1983. As to institutional liability under § 1983, the County could only be liable for the actions of Sergeant Benson if it had a custom, practice, or policy that encouraged or condoned the unconstitutional behavior – here, workplace sexual harassment. Kramer had to demonstrate a direct causal link between the municipal action and the deprivation of federal rights, and she had to show that the municipal action was taken with deliberate indifference to its known or obvious consequences. Ms. Kramer had to establish that the County failed to prevent sexual harassment with deliberate indifference, that the need for more or different action was so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. The court held that, on the record in this case, no reasonable jury could find that the risk of sergeants sexually assaulting their subordinates was “so obvious” the County’s policymakers should have known about it.

The Tenth Circuit therefore AFFIRMED summary judgment as to the § 1983 claim, but REVERSED on the Title VII claim, which the court REMANDED for trial.

Tenth Circuit: Amended Maliscious Prosecution Decision

The Tenth Circuit Court of Appeals published its opinion in Myers v. Koopman on Wednesday, January 8, 2013.

The court denied the appellee’s Petition for Panel Rehearing but sua sponte amended its December 20, 2013 decision, nunc  pro tunc, by removing a footnote sentence. The former decision was summarized here.

Tenth Circuit: Qualifed Immunity Denial Reversed Because No Constitutional Duty to Release Person Arrested Based on Probable Cause

The Tenth Circuit Court of Appeals published its opinion in Panagoulakos v. Yazzie on Friday, December 20, 2013.

Defendant Officer Patricia Yazzie appealed the district court’s denial of qualified immunity in this § 1983 action alleging wrongful arrest and imprisonment (Count I) and illegal seizure of property (Count II). This is an interlocutory appeal following the district court’s ruling in an action brought by Spero Panagoulakos pursuant to 42 U.S.C. §§ 1983 and 1988, and 28 U.S.C. § 1343.

An Albuquerque police officer pulled over Panagoulakos in a traffic stop. Panagoulakos informed the officer he had a firearm in the vehicle. The officer ran a check and learned Panagoulakos was the subject of a protective order. Officer Yazzie was called to the scene and instructed to take Panagoulakos to the station and confirm the protective order was valid and that it did not contain an exception to the prohibition on firearm possession claimed by Panagoulakos. Yazzie mistakenly believed all orders of protection prohibit firearms possession, but 18 U.S.C. § 922(g) prohibits such possession only when the subject is classified as an “intimate partner.” Yazzie prepared a criminal complaint and had Panagoulakos detained.

The Tenth Circuit stated that to show that Yazzie violated a clearly established constitutional right, Panagoulakos would need to “show that, even though probable cause supported his initial arrest, clearly established law gave fair warning to Officer Yazzie that following her review of the protective order it was her constitutional duty to release him.” Because the majority of courts had never imposed such a duty, the court, in a 2-1 decision, held that Yazzie was entitled to qualified immunity and reversed the district court.

 

Tenth Circuit: § 1983 Malicious Prosecution Claim Partially Reinstated

The Tenth Circuit Court of Appeals published its opinion in Myers v. Koopman on Friday, December 20, 2013.

Jeremy Myers challenged the district court’s dismissal of his § 1983 malicious prosecution claim alleging violations of his Fourth and Fourteenth Amendment rights. In his complaint, he asserted that Detective Brian Koopman obtained an arrest warrant by fabricating facts to create the illusion of probable cause. As a result, Myers spent three days in custody.

The Tenth Circuit held that the district court correctly dismissed Myers’s Fourteenth Amendment claim because Colorado law provided an adequate remedy in the form of a malicious prosecution tort. If a state actor’s harmful conduct is unauthorized and thus could not be anticipated pre-deprivation, as here, then an adequate post-deprivation remedy—such as a state tort claim—will satisfy due process requirements. The fact that Myers’s state tort remedy was now time-barred did not alter the court’s decision as Myers could have brought that claim in time but did not.

The court held that Myers’s Fourth Amendment claim was improperly dismissed because the court used the wrong underlying tort to provide the § 1983 statute of limitations. Myers correctly styled his claim as one for malicious prosecution, rather than false imprisonment, because he was seized after the institution of legal process. His claim accrued when the underlying criminal proceedings resolved in his favor and he filed his § 1983 claim within two years of that accrual.

The court affirmed dismissal of the Fourteenth Amendment claim and reversed and remanded the dismissal of the Fourth Amendment claim.

 

Colorado Court of Appeals: Defendant’s Attorney’s Miscalculation of Deadline Is Not Excusable Neglect

The Colorado Court of Appeals issued its opinion in Sebastian v. Douglas County on Thursday, September 12, 2013.

CRCP 60(b)(1)—K-9 Dog—Intentional Seizure—Excusable Neglect—42 USC § 1983.

Plaintiff Fabian Sebastian appealed from the district court’s order, entered on remand from the Colorado Court of Appeals, denying his CRCP 60(b)(1) motion to set aside the court’s judgment entered in favor of defendants. The order was affirmed.

Deputy Black allowed a K-9 dog to give chase to two other suspects who fled. The dog stopped at a fence that the two suspects had successfully climbed. It returned to the suspect vehicle, where Sebastian remained seated, and proceeded to attack him.

Sebastian asserted that he was entitled to recover damages because the attack violated rights guaranteed him by the Fourth and Fourteenth Amendments to the U.S. Constitution. He claimed that Deputy Black was negligent, and that his conduct was outrageous. Sebastian failed to timely respond to defendants’ motion to dismiss the action for failure to state a claim on which relief could be granted. The court dismissed Sebastian’s complaint and later denied Sebastian’s motion to set aside the judgment of dismissal under CRCP 60(b)(1).

On appeal, Sebastian contended that the district court erred in denying his 60(b)(1) motion. Sebastian’s failure to file a timely response, however, was not excusable based on his attorney’s miscalculation of the deadline. Further, he did not present a meritorious claim. The district court concluded that Sebastian’s allegations would not support a finding of the threshold issue—that is, an intentional seizure—to support his 42 USC § 1983 claim. Although the trial court did not analyze any equitable considerations in favor of granting Sebastian’s 60(b)(1) motion, the district court’s decision refusing to vacate the judgment of dismissal was not manifestly arbitrary, unreasonable, or unfair based on the first two factors. Thus, the court did not abuse its discretion.

Summary and full case available here.

Tenth Circuit: Summary Judgment in Favor of State Trooper and State Based on § 1983 and State Law Claims Reversed in Part

The Tenth Circuit Court of Appeals published its opinion in Courtney v. State of Oklahoma on Monday, July 15, 2013.

On October 25, 2010, Oklahoma State Trooper Smith stopped Jason Courtney for speeding. Smith observed Courtney acting nervous and asked Courtney to answer questions, which Courtney initially declined. Courtney had a gun in the trunk and after questioning was ultimately arrested for possession of a firearm after being formerly convicted of a felony. No charges were filed and Courtney’s gun was not returned to him until almost a year after it was seized.

Courtney brought suit against Smith and the State under 42 U.S.C. § 1983 as well as state law claims. The district court granted summary judgment in favor of the Defendants on all of Courtney’s claims. Regarding Courtney’s § 1983 claims, the court concluded Smith was entitled to qualified immunity. The court concluded the State was immune from Courtney’s state-law claims under the Oklahoma Governmental Tort Claims Act. Courtney appealed.

When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established. In determining whether a right is clearly established, the dispositive inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Based on what the record showed as Courtney’s behavior during the traffic stop, the Tenth Circuit held that the district court did not err in concluding Trooper Smith was entitled to qualified immunity.

However, given the facts known to him at the time of the arrest, the Tenth Circuit held Smith lacked probable cause to arrest Courtney for possession of a firearm by a convicted felon. While Oklahoma law prohibits the possession of firearms by a person previously convicted of a felony, a juvenile adjudication over ten years old does not qualify as an underlying felony. At the time Smith arrested Courtney, Smith knew the report he found on Courtney referred to an incident that occurred when Courtney was a minor and that it was over ten years old.

As to Courtney’s state-law claims, having rejected the district court’s conclusion that Smith had probable cause to arrest Courtney, the Tenth Circuit necessarily rejected its corollary conclusion that the State was entitled to governmental immunity.

For the foregoing reasons, the district court’s order granting summary judgment to Smith and the State is affirmed in part, and reversed in part. The district court’s grant of qualified immunity to Smith as to Courtney’s claims related to the extension of the traffic stop is affirmed. The district court’s grant of qualified immunity to Smith as to Courtney’s claims of unlawful arrest without probable cause is reversed. The district court’s grant of summary judgment to the State on Courtney’s state law claims are reversed.

Tenth Circuit: Grant and Denial of Summary Judgment in § 1983 Action Affirmed

The Tenth Circuit Court of Appeals published its opinion in Fancher v. Barrientos on Friday, July 12, 2013.

Defendant Johnny Barrientos, a deputy of the Doña Ana County Sheriff’s Department, appealed the district court’s denial of his motion for summary judgment in a 28 U.S.C. § 1983 action brought by Lucia Fancher, individually and on behalf of the estate of her son, Nick Dominguez. Fancher alleged Barrientos used excessive force in violation of the Fourth Amendment when he shot Dominguez seven times following a confrontation in Mesquite, New Mexico. Dominguez died as a result of one or more gunshot wounds. Barrientos asserted he was entitled to qualified immunity because his use of deadly force was objectively reasonable and did not violate clearly established law. The district court granted Barrientos’s motion for summary judgment to the extent Fancher’s claim arose from the firing of the initial shot, but denied the motion to the extent the claim arose from the firing of the subsequent six shots.

On appeal, Barrientos made three arguments. First, he asserted the district court erred in analyzing the second through seventh shots separately from the first shot. Next, he argued the district court did not sufficiently consider the risks posed to third parties in analyzing the reasonableness of shots two through seven.

The Tenth Circuit held it lacked jurisdiction to consider the first two arguments. The court has jurisdiction to review all final decisions of the district courts of the United States. Ordinarily, an order denying summary judgment is not a “final decision.” The denial of qualified immunity to a public official is immediately appealable under the collateral order doctrine to the extent it involves abstract issues of law. Barrientos’s argument amounted to nothing more than a request for review of the factual conclusions of the district court, a task which exceeded the scope of the Tenth Circuit’s jurisdiction on interlocutory review of the denial of qualified immunity.

Third, Barrientos argued the law was not clearly established that his actions violated the Fourth Amendment. The Tenth Circuit was not persuaded. Under the circumstances of the case, the Court had no trouble concluding Barrientos lacked probable cause to believe Dominguez posed a threat of serious harm to Barrientos or others at the time he fired shots two through seven. The Tenth Circuit further had no trouble concluding a reasonable officer in Barrientos’s position would have known that firing shots two through seven was unlawful.

Thus, the Tenth Circuit affirmed the denial of summary judgment by the district court.

Tenth Circuit: Denial of F.R.C.P. 12(b)(6) Motion Reversed Because Private Actors Were Not State Actors in § 1983 Case

The Tenth Circuit Court of Appeals published its opinion in Wittner v. Banner Health on Monday, June 24, 2013.

Ian Wittner died at the North Colorado Medical Center after being injected with the drug Haldol during a seventy-two-hour involuntary mental health hold. His parents, Lizbeth Cardenas and George Wittner, brought a § 1983 claim against the Medical Center, the doctor, and the nurse involved in their son’s treatment. The district court granted summary judgment for the defendants and denied the plaintiffs’ F.R.C.P. 59(e) motion to retain jurisdiction over their state law tort claims.

The defendants cross-appealed the district court’s denial of their F.R.C.P. 12(b)(6) motion to dismiss the § 1983 claim for lack of state action. Plaintiffs contended the state of Colorado transformed the private medical facility and its health care employees into state actors by assuming the power to authorize the involuntary commitment of mentally ill persons and delegating that power to designated facilities which the state regulates. Private actors may be considered state actors for constitutional deprivation purposes if the facts meet one of four tests: (1) the nexus test, (2) the public function test, (3) the joint action tests, and (4) the symbiotic relationship test. After applying all four tests, the Tenth Circuit held that the defendants in this case were not state actors and reversed the court’s denial of defendants’ Rule 12(b)(6) motion.

The court affirmed the denial of the plaintiffs’ Rule 59(e) motion because the trial court could not remand state law claims that had never been removed from state court.

Tenth Circuit: Summary Judgment for Defendants Affirmed in Removal From Mediator Appointment Roster Case

The Tenth Circuit Court of Appeals published its opinion in Lopez v. Admin. Office of Courts on Wednesday, June 19, 2013.

Plaintiff-Appellant George Lopez conducts mediations in a program created and managed by the Administrative Office of Courts of the State of Utah (the AO). In 2006 he was removed from the panel of mediators that the AO had created under statutory authority to mediate certain domestic matters. Lopez brought suit in federal district court alleging that his removal from that list of specialized mediators violated his right to due process and his right to equal protection of the laws in violation of 42 U.S.C. § 1983. Mr. Lopez also alleged breach of contract, breach of implied contract, and breach of the implied covenant of good faith and fair dealing. The district court granted summary judgment for the defendants.

Lopez first argued that the district court erred in holding that there was no implied contract between him and the AO. The court disagreed because the Best Practices Manual was not sufficient to show mutual assent to make a bargain with certain terms. Even if the court were to find an implied contract, it could find no breach, given the broad discretion the AO had to terminate the arrangement.

The Tenth Circuit also rejected Lopez’s due process claim. Lopez had no property interest based on contract in remaining on the domestic matters mediator roster because there was no implied contract. Because of the discretion of the AO, he could not claim any entitlement to remaining on the roster and thus has no property interest on that basis. The court affirmed summary judgment.

Tenth Circuit: In § 1983 Action Where Qualified Immunity Is Not at Issue, Excessive Force Question Is For Jury

The Tenth Circuit Court of Appeals published its opinion in Cavanaugh v. Woods Cross City on Wednesday, June 12, 2013.

Shannon Cavanaugh suffered a serious head injury after being tasered by Daniel Davis, a police officer for Woods Cross City, Utah. She filed an excessive force claim under 42 U.S.C. § 1983 against the City and Davis. The jury found for the City and Davis, and the district court entered judgment in their favor.

Cavanaugh argued that the district court’s refusal to exclude testimony from Officer Davis concerning his perceptions and beliefs prior to the tasering incident was error because whether force was excessive is an objective test. The Tenth Circuit held that allowing Davis’s testimony was harmless error because the district court gave a correct jury instruction.

The court also rejected Cavanaugh’s argument that her F.R.C.P. 59 motion for a new trial should have been granted because there was insufficient evidence that she was an immediate threat. Given the testimony that she left the house with a kitchen knife, had been drinking and taken drugs, her refusal to answer Officer Davis’s questions, and rush to get back in the house, sufficient evidence she was an immediate threat was shown.

The district court’s refusal to give Cavanaugh’s proposed jury instruction on resisting arrest was also not error as use of force may be appropriate when a person is actively resisting seizure, not just arrest.

Finally, Cavanaugh argued that the district court erred in submitting to the jury the question whether Officer Davis used excessive force. Cavanaugh contended the court should have given the jury special interrogatories to decide the factual disputes and made the legal determination itself whether Davis’s conduct was reasonable under the circumstances. The court held that because there were disputed issues of material fact, it was proper for the district court to send the question of whether Officer Davis’s use of force was reasonable to the jury. The use of special interrogatories may be appropriate in some cases but was not required here. The court affirmed.

Tenth Circuit: Plaintiff Could Not Show Police Department Caused Her Rape or Were Deliberately Indifferent to the Risk That It Would Happen as Required

The Tenth Circuit Court of Appeals published its opinion in Schneider v. City of Grand Junction on Wednesday, June 5, 2013.

On September 27, 2009, Officer Glenn Coyne of the Grand Junction, Colorado, Police Department (“GJPD”) responded to Misti Lee Schneider’s 911 call about an altercation with her teenage son, who was making and detonating bombs and recording the explosions on his cell phone. The next day, Officer Coyne called Ms. Schneider with some questions for his investigation. He signed off-duty at 11:49 p.m. and went to Ms. Schneider’s house. During that visit late that night, Officer Coyne raped Misti Schneider. Officer Coyne was arrested and his employment with GJPD was terminated. He was released on bond and within days he committed suicide.

The attack on Ms. Schneider was the third incident in which Officer Coyne was alleged to have had improper sexual contact with a woman whom he met while working in law enforcement. One complaint was known to GJPD before the attack on Ms. Schneider, but the other was not. A.L. complained that on January 8, 2007, Officer Coyne sexually abused her during a nighttime drug raid at her house. V.W. complained on December 28, 2008, but Officer Coyne said he had consensual sex with V.W., and V.W.’s report was unreliable.

Ms. Schneider sued Officer Coyne’s supervisors and the GJPD under 42 U.S.C. § 1983, alleging violation of her substantive due process right to bodily integrity. She alleged that inadequate hiring and training of Officer Coyne, inadequate investigation of a prior sexual assault complaint against him, and inadequate discipline and supervision of him caused her to be raped.

In district court, the defendants did not contest Ms. Schneider’s allegations about Officer Coyne’s conduct. They moved for summary judgment on the grounds that Officer Coyne did not act under color of state law and that Ms. Schneider could not prove, as § 1983 law requires, that they caused the rape or were deliberately indifferent to the risk that it would happen.

The district court denied summary judgment on the first ground, but granted summary judgment on the second ground, concluding that Ms. Schneider could not prove essential facts to establish § 1983 liability. She appealed that ruling.

1.  LEGAL STANDARDS FOR INDIVIDUAL AND MUNICIPAL LIABILITY

a.  Individual Liability

The three elements required to establish a successful § 1983 claim against a defendant based on his or her supervisory responsibilities are: (1) personal involvement; (2) causation, and (3) state of mind.

  1. Personal Involvement – The district court’s summary judgment conclusions were based on the second and third elements. The Tenth Circuit therefore assumed without deciding that Ms. Schneider presented sufficient evidence of the individual defendants’ personal involvement.
  2. Causation – “A plaintiff [must] establish the ‘requisite causal connection’ by showing ‘the defendant set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights.” Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010).
  3. State of Mind – Ms. Schneider asserted a violation of her right to bodily integrity, which is a substantive-due-process claim. See Abeyta ex rel. Martinez v. Chama Valley Indep. Sch. Dist., No. 19, 77 F.3d 1253, 1255 (10th Cir. 1996). In the district court, the parties agreed that the applicable state of mind for a substantive due process claim is deliberate indifference.

“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. Of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997). Deliberate indifference can be satisfied by evidence showing that the defendant “knowingly created a substantial risk of constitutional injury.” Dodds, 614 F.3d at 1206. “

b.  Municipal Liability

In order to establish municipal liability, Monell v. Department of Social Services, 436 U.S. 658, 691-92, 694 (1978), held that a plaintiff must identify “a government’s policy or custom” that caused the injury. In later cases, the Supreme Court required a plaintiff to show that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury. See City of Canton v. Harris, 489 U.S. 378, 389 (1989).

2.  ANALYSIS OF MS. SCHNEIDER’S CLAIMS

a.  Hiring

i.  Individual Defendants

Ms. Schneider asserted that Officer Coyne would not have been hired had there been an adequate background investigation into the previous complaints against him.

In Brown, the Supreme Court discussed the standards for evaluating whether a policymaker’s hiring decision reflects deliberate indifference:

A plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision. Only where adequate scrutiny of an applicant’s background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party’s federally protected right can the official’s failure to adequately scrutinize the applicant’s background constitute “deliberate indifference.”

Here, the Tenth Circuit concluded the record did not support a finding that the background investigation of Officer Coyne was inadequate.

ii.   The City

The Supreme Court has emphasized:

Cases involving constitutional injuries allegedly traceable to an ill-considered hiring decision pose the greatest risk that a municipality will be held liable for an injury that it did not cause. In the broadest sense, every injury is traceable to a hiring decision. Where a court fails to adhere to rigorous requirements of culpability and causation, municipal liability collapses into respondeat superior liability.

Brown, 520 U.S. at 415. The Tenth Circuit agreed with the district court that no reasonable jury could find that the City acted with deliberate indifference in its decision to hire Officer Coyne.

b.  Training Claim Against the City

“[T]here are limited circumstances in which an allegation of a ‘failure to train’ can be the basis for [municipal] liability under § 1983.” City of Canton, 489 U.S. at 387. “[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” Id. at 388.

Ms. Schneider failed to show that “the need for more or different training [was] so obvious” that a violation of her constitutional right to bodily integrity was likely to result from not providing it.

c.  Investigation of V.W. Complaint

The Tenth Circuit again agreed with the district court that a rational jury could not find that the individual defendants acted with deliberate indifference in their investigation of a prior complaints against Officer Coyne.

d.  Discipline

i.  Individual Defendants

The Tenth Circuit agreed with the district court that the decision to discipline and not terminate Officer Coyne based on the previous complaint did not reflect deliberate indifference. Chief Gardner took the V.W. complaint seriously. He disciplined Officer Coyne with a pay cut and probation, and the resulting notice of discipline told Officer Coyne that his conduct was unacceptable.

ii.  The City

The discipline claim against the City is based on the Chief’s disciplinary decision. Rarely if ever is “the failure of a police department to discipline in a specific instance . . . an adequate basis for municipal liability under Monell.” Butler v. City of Norman, 992 F.2d 1053, 1056 (10th Cir. 1993).

e.  Supervision

Ms. Schneider objected to GJPD’s policy that Internal Affairs Investigations be kept confidential, and an unwritten custom at GJPD of not holding a Staff Review in matters involving sexual misconduct. Consistent with this practice, a Staff Review was not convened following the investigation of the V.W. complaint. The Tenth Circuit affirmed the summary judgment in favor of the defendants for lack of sufficient evidence of causation

i.  Individual Defendants

To prevail, Ms. Schneider had show that the policy and custom set into motion a series of events that the individual defendants knew or should have known would result in Officer Coyne committing an intentional, criminal assault. The Tenth Circuit could not say that lack of knowledge of the specific details of the V.W. complaint set in motion a series of events that caused the constitutional violation. To establish this, Ms. Schneider would need to show that if the relevant details had been known, specific actions would have been taken that would have prevented Officer Coyne’s attack. The Court held she had not provided such evidence.

ii.   The City

As with the individual defendants, to proceed against the City, Ms. Schneider must present sufficient evidence to create a genuine issue of material fact as to causation. See Monell, 436 U.S. at 692. For the same reasons discussed above, Ms. Schneider failed to satisfy her burden.

AFFIRMED.

Tenth Circuit: Law Enforcement Entitled to Qualified Immunity on Viewpoint Discrimination Claim

The Tenth Circuit Court of Appeals published its opinion in Pahls v. Thomas on Tuesday, June 4, 2013.

President George W. Bush visited Los Ranchos, New Mexico, for a fundraiser in August 2007. The Secret Service was in charge of overall security, and Special Agent Sheehan, as the “site agent,” was tasked with designing and implementing the site security plan. Lt. Thomas of the Bernalillo County Sheriff’s Department (“BCSD”) was in charge of local law enforcement personnel for the event. Among other tasks, he was responsible for making decisions regarding the treatment of demonstrators, including where they would be permitted to stand. Sgt. Mims’s primary responsibility was security of the outer perimeter, which included the area where plaintiffs eventually stood.

For events of this type, BCSD had in place a general policy of directing demonstrators to a designated protest zone. Pursuant to their responsibilities, Lt. Thomas and Sgt. Mims decided that all demonstrators who attended the event should be directed to gather at what was named the “southern checkpoint,” which was approximately 150 yards from where the President would arrive.

As the morning progressed on the day the President was to arrive, many people, including plaintiffs, began arriving at the site to protest. Law enforcement personnel had no reason to believe the protesters posed any threat to the President or the public. Various plaintiffs were subjected to the requirement to gather at the southern perimeter.

At some point prior to President Bush’s arrival, an individual approached Special Agent Sheehan and identified himself as the owner of the property directly opposite the driveway where the President was to arrive. The landowner asked Special Agent Sheehan if he would be allowed to stand on the portion of his property that would allow him to watch the President’s motorcade as it passed. After satisfying himself that the landowner was not a security risk, Special Agent Sheehan told him that security officials would not interfere with his property rights so long as he did not interfere with the motorcade. Soon after, a small group of supporters gathered in this area, which was approximately 15 feet from where the President’s motorcade would pass.

When the President arrived, the motorcade never passed by the protesters at the southern checkpoint, and the President’s view of these protesters was obstructed by distance and a police barricade. The supporters, by contrast, were up close and easily visible to the President.

Plaintiffs filed a complaint in January 2008, asserting claims pursuant to § 1983 and alleging viewpoint discrimination by various government entities and five unnamed officials. Plaintiffs claimed that they received disparate treatment vis-à-vis the Bush supporters in violation of their First and Fourteenth Amendment rights. After extensive discovery, they moved to amend their complaint to include, among others, Special Agent Sheehan, Lt. Thomas, and Sgt. Mims as defendants in their individual capacities. The district court granted the motion. In September 2010, Special Agent Sheehan moved for summary judgment, invoking qualified immunity. Lt. Thomas and Sgt. Mims did the same in November 2010. The district court denied summary judgment to all three officials. Each official appealed.

The Tenth Circuit began its analysis by setting forth the relevant legal standards that govern its decision.

§ 1983 and Bivens Liability

42 U.S.C. § 1983 provides a cause of action against state officials who violate constitutional or other federally protected rights. A second avenue is a Bivens action—the federal analog to a § 1983 suit—which provides a “private action for damages against federal officers” who violate certain constitutional rights. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).  Common to all § 1983 and Bivens claims is the requirement that liability be predicated on a violation traceable to a defendant-official’s own individual actions.

Qualified Immunity

The Supreme Court has recognized that public officials enjoy qualified immunity in civil actions that are brought against them in their individual capacities and that arise out of the performance of their duties. A plaintiff seeking to overcome that presumption must make a two-part showing: first, that a public official violated the plaintiff’s constitutional (or, in the case of a § 1983 action, more generally, federally protected) rights; and second, that these rights were clearly established at the time of the alleged violation.

First Amendment Viewpoint-Discrimination Claim

At the core of the First Amendment is the idea that “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972). In traditional public forums, such as sidewalks and streets, a content-based regulation of speech must meet strict scrutiny. A content-neutral regulation, by contrast, must meet intermediate scrutiny. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Viewpoint discrimination is a subset—and a particularly “egregious form”—of content discrimination. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). In § 1983 and Bivens actions, a claim of viewpoint discrimination in contravention of the First Amendment requires a plaintiff to show that the defendant acted with a viewpoint-discriminatory purpose.

In light of these principles, the Tenth Circuit held the district court improperly denied qualified immunity to Special Agent Sheehan, Lt. Thomas, and Sgt. Mims on plaintiffs’ viewpoint-discrimination claim.

The Tenth Circuit held that the district court’s mode of analysis ran afoul of the standards that must be met if plaintiffs were to make out viable § 1983 and Bivens claims and overcome defendants’ assertions of qualified immunity. Liability under  § 1983 and Bivens requires personal involvement. Plaintiffs had to have established that each defendant caused plaintiffs to be subjected to viewpoint discrimination and acted with a viewpoint-discriminatory purpose.

The first decisionmaker was Special Agent Sheehan. On the day of the President’s visit, Special Agent Sheehan’s primary responsibility was the security of the inner perimeter. The second set of decisionmakers consisted of Lt. Thomas and Sgt. Mims of BCSD. Their primary responsibility on the day in question was outer-perimeter security, including operation of the southern checkpoint.

The Court noted that neither the Secret Service’s policy nor BCSD’s policy was itself a content- or viewpoint-based restriction on speech. The rub of this case was that these two viewpoint-neutral policies came together and were implemented in such a way as to produce a viewpoint-discriminatory effect.

However, disparate impact alone is not enough to render a speech restriction content- or viewpoint-based. For a discrimination claim rooted in the First Amendment, a plaintiff must show that a government official acted with discriminatory purpose. Where, as here, the government policies are themselves viewpoint-neutral but in tandem create a disparate impact, plaintiffs must show that the policies were brought together for the purpose of discriminating against or in favor of a particular viewpoint. See Hoye v. City of Oakland, 653 F.3d 835, 854 (9th Cir. 2011).

Even taking all of the district court’s factual determinations as true and granting plaintiffs all reasonable inferences in their favor, they do not demonstrate a constitutional violation—i.e., that any defendant acted, or implemented his agency’s policy, for the purpose of discriminating against plaintiffs’ anti-Bush message or in favor of the supporters’ pro-Bush message.

The most that the evidence showed with respect to Special Agent Sheehan was that he knew his actions, though consistent with Secret Service policy, would, in conjunction with the independent actions of BCSD officials, result in disparate treatment of supporters and protesters. This was legally insufficient to establish viewpoint discrimination.

Turning to Lt. Thomas, there was no evidence that he had any hand in Special Agent Sheehan’s decision to allow Bush supporters to remain on private property. The only activity that connected Lt. Thomas to that decision was his knowledge of and acquiescence in it. That, however, was plainly insufficient to allow a reasonable jury to infer a discriminatory purpose.

The facts with respect to Sgt. Mims were identical in all material respects to the facts with respect to Lt. Thomas. The district court predicated Sgt. Mims’s personal liability for viewpoint discrimination on the fact that he possessed responsibility for Sheehan’s policy and that he knew of and did not interfere with the pro-Bush supporters’ demonstration. But Sgt. Mims did not personally participate in Special Agent Sheehan’s decision and was not responsible for it in a supervisory capacity. His mere knowledge of and acquiescence in that decision were insufficient as a matter of law to amount to a viewpoint discriminatory purpose.

The Court therefore reversed the district court’s denial of qualified immunity to Special Agent Sheehan, Lt. Thomas and Sgt. Mims.

REVERSED.