Section 1983Litigation:

Case Law and Trends

Presented by:Michael D. BersaniHervas, Condon & Bersani, P.C.630-773-4774mbersani@hcbattorneys.comwww.hcbattorneys.com

Illinois Local Government LawyersAssociation

21st Annual ConferenceFebruary 17, 2014Naperville, Illinois

Fourth Amendment – WarrantlessBlood TestMissouri v. McNeely, 133 S. Ct. 1552 (2013)

Upon being arrested for speedingand suspicion of driving under theinfluence, McNeely was taken to anearby hospital for blood testing.The officer directed a labtechnician to take a non-consensual blood sample forMcNeely’s blood alcoholconcentration.

The state argued that the officerhad probable cause to arrest, andthat the blood test was justifiedbecause McNeely’s blood alcoholconcentration was dissipating astime went on, establishing anexception for preventing thedestruction of evidence.

USSC disagreed: A warrantless blood test

to determine bloodalcohol concentrationviolated the FourthAmendment. The naturaldissipation of McNeely’sblood alcoholconcentration does notconstitute an exigency tosatisfy warrantless bloodtests.

Fourth Amendment – WarrantlessDNA SwabbingMaryland v. King, 133 S. Ct. 1958 (2013)

The police arrest a suspect fora serious offense and bring thesuspect to the station to bedetained in custody and takeand analyze cheek swab of thesuspect’s DNA.

USSC held that collectingDNA samples, likefingerprinting andphotographing, is a legitimatepolice booking procedure thatis reasonable under the FourthAmendment.

Fourth Amendment and Police CaninesFlorida v. Jardines, 133 S.Ct. 1409 (2013) and Floridav. Harris, 133 S.Ct. 1050 (2013)

Florida v. Jardines - Police broughtcanine onto front porch and dogalerted to narcotics at residence. Thepolice obtained a search warrant andfound drugs. Supreme Courtaffirmed suppression of theevidence, finding that front porch isa classic example of curtilage forwhich the activity of the home lifeextends and to which there is nocustomary invitation to conduct asearch.

Florida v. Harris – Police canine’salert can provide probable cause tosearch a vehicle so long as the Statelays proper foundation as to thedog’s satisfactory performance in acertification or training program.

Fourth Amendment – Qualified Immunity– Warrantless EntryStanton v. Sims, 134 S. Ct. 3 (2013)

Police officer kicked down a backyard gatein hot pursuit of a suspect for misdemeanoroffense. The gate struck and injured thehome owner, who sued for her injuriesunder Section 1983, claiming that thewarrantless entry violated the FourthAmendment.

The Ninth Circuit held that the law wasclearly established that the officer’swarrantless entry was unconstitutional.

The USSC reversed, finding that thelaw was not clearly established. Theofficer was entitled to qualifiedimmunity because he may have beenmistaken in believing his actions werejustified, but he was not “plainlyincompetent.”

FOIA and the ConstitutionMcBurney v. Young, 133 S. Ct. 1709 (2013)

Virginia’s Freedom of Information Act grants accessto public records to Virginia citizens only. Citizens ofother states, including those who own vacationproperties, sued the state under Section 1983, allegingviolations under the Privileges and Immunities Clausesand Dormant Commerce Clause.

The Supreme Court held that Virginia’s citizens-only FOIA provision did not violate the U.S.Constitution. “[T]here is no constitutional right toobtain all the information provided by FOIA laws.”

Workplace Harassment – Supervisor orCo-WorkerVance v. Ball State Univ., 133 S.Ct. 2434 (2013).

Vance sued BSU under Title VII, alleging that a fellowemployee created a racially hostile work environment.The Seventh Circuit held that BSU was not vicariouslyliable for the employee’s actions because the employeewas not a supervisor and could not take tangibleemployment action against Vance.

The USSC agreed and held that an employee is asupervisor for purposes of vicarious liability underTitle VII only if the employee is empowered to taketangible employment actions against the victim.

The USSC drew a sharp distinction under TitleVII between co-workers and supervisors. Anemployer is strictly liable only if a supervisor isgiven the responsibility to take tangibleemployment actions against an allegedlyharassed employee. Otherwise, the employer isliable only if it was negligent in controlling theworking conditions of the company.

Fifth Amendment – TakingsKoontz v. St. Johns River Water Mgmt. Dist., 133 S.Ct.2586 (2013)

Landowner was denied development permit becausehe refused to reduce the size of his development andfinancially contribute to off-site wetlands mitigation.Landowner filed a takings claim. Trial court foundgovernment’s actions unlawful under Nollan andDolan, and state appellate court affirmed. However,state supreme court reversed.

The USSC held that that landowner may bring atakings claim even though he was denied the permit.Court also held that Nollan/Dolan apply even if thegovernment exacts money as a condition ofdevelopment.

Fourth Amendment – Warrantless SeizureHamilton v. Vill. of Oak Lawn, 735 F.3d 967 (7th Cir.2013)

Hamilton claimed that she was hired as an in-homecaretaker of a man dying of Parkinson’s disease. Aftershe worked only 88 hours, she was given a check for$10,000. The man’s family called the police, whodetained Hamilton and questioned her for two hours.

The Seventh Circuit affirmed dismissal of her lawsuit.While the conduct of the police had a custodialdimension, it was not an arrest. Not all detentions needbe classified as a Terry stop or an arrest. A stop toointrusive to be justified under Terry, but still short of acustodial arrest, may still be reasonable under theFourth Amendment.

Fourth Amendment – False Arrest – QualifiedImmunityWilliams v. City of Chi., 733 F.3d 749 (7th Cir. 2013)

Williams was returning home fromwork in the wee hours of themorning when he saw hisneighbor’s house on fire. Hesprinted to the porch to knock onthe door to rouse anyone who maybe inside the home. Two Chicagopolice officers saw Williams on thefront porch and arrested him onsuspicion of arson. The chargeswere later dismissed. Williamssued the two officers under Section1983 for false arrest. The districtcourt granted the officers’ motionfor summary judgment.

The Seventh Circuit reversed.Rejecting the officers’qualified immunity defense,the court held that the officersdid not have probable cause oreven “arguable probable cause”to make the arrest based merelyon the fact that he was foundon the porch.

Fourth Amendment – Search and SeizureBalthazar v. City of Chi., 735 F.3d 634 (7th Cir. 2013)

Balthazar lived in one of twoapartments on the third floor ofa walk-up apartment building.The police had a warrant tosearch the other apartment butmistakenly smashed openBalthazar’s door with abattering ram exposing theinside to view. Balthazar suedunder Section 1983 based uponan illegal search and seizure.

On appeal, the SeventhCircuit affirmed dismissalof the suit. A searchresulting from an innocentmistake is not unreasonableand does not violate theFourth Amendment. Nordoes simply looking insidethe apartment alwaysconstitute a search.

Fourth Amendment – QualifiedImmunityFindlay v. Lendermon, 722 F.3d 895 (7th Cir. 2013)

Clark Howey suspected that hisnephew Jason Findlay wastrespassing on his land. Howey setup a surveillance camera at theproperty line. However, Findlayfound the camera and called thepolice to file a report. OfficerLendermon responded to the call.With the video camera running,Findlay made comments thatsuggested he had trespassed onHowey’s land. Lendermon decidedto confiscate the camera asevidence. At some point, thememory chip separated from thecamera and fell to the floor.Findlay accused Lendermon oftackling him to prevent him frompicking up the chip and sued forexcessive force. The district courtdenied Lendermon’s summaryjudgment motion.

The Seventh Circuit reversed,holding that Findlay failed tomeet his burden of showing theincident violated clearlyestablished law. Tackling asuspect under thesecircumstances was not clearlyestablished. Thus, Lendermonwas entitled to qualifiedimmunity.

Fourth Amendment – Search and Seizure –

Qualified ImmunityRabin v. Flynn, 725 F.3d 628 (7th Cir. 2013)

Police saw Rabin carrying a holstered gun in public.He was handcuffed, searched and detained for 1 ½hours while the officers tried to confirm the validity ofhis carrying license. He sued for illegal detention butthe district court denied summary judgment for theofficers, rejecting their qualified immunity defense.

The Seventh Circuit reversed. It was reasonableunder clearly established law to verify thelegitimacy of the license. Further, the time delaywas caused by the government’s failure to have anefficient system of license verification, not theindividual officer’s response.

Additionally, qualified immunity applied tohandcuffing Rabin because during this case therewas no clearly established law on handcuffingsuspects during Terry stops.

Qualified Immunity – Excessive Force –TasersAbbott v. Sangamon County, 705 F.3d 706 (7th Cir.2013)

Police use Taser on mother of suspect whom theybelieved was trying to help her son escape custody.The mother sued under Section 1983 for excessive useof force. The district court granted summary judgmentin favor of defendants.

The Seventh Circuit reversed. There was aquestion of fact as to whether the use of the Taserwas clearly excessive because of mom’s passivenoncompliance with police orders.

Due Process and Booking FeesMarkadonatos v. Vill. of Woodridge, ___ F.3d ___,2014 WL 60452(7th Cir. 2014)

The Village of Woodridge enacted anordinance requiring arrestee to pay$30.00 booking fee prior to probablecause hearing. The ordinance did notallow the arrestee to appeal or seekreimbursement. Markadonatos filedclass action suit under Section 1983arguing that the fee violated hisprocedural and substantive due processrights.

The Seventh Circuit affirmeddismissal of the action. Inbalancing the interests of theparties under Mathews v. Eldridge,the Court found that thegovernment’s interest, includingthe “fiscal and administrativeburdens that the additional orsubstitute procedural requirementwould entail,” outweighed theprivate citizen’s interest in $30.The plaintiff’s substantive dueprocess claim failed because helacked standing. He was arrestedand found not guilty aftersuccessfully completing a term ofsupervision.

Fourth Amendment and pre-GersteincustodyCurrie v. Chhabra, 728 F.3d 626 (7th Cir. 2013)

Phillip Okoro died in the Williamson County Jail of diabeticketoacidosis. His family sued the jail doctor and nurse forinadequate medical care. He had not yet had a probablecause (Gerstein) hearing. Thus, he was not considered apretrial detainee, and his suit was brought under the“objective reasonableness” standard of the FourthAmendment.

Defendants moved for summary judgment arguing that theFourth Amendment did not apply to the provision of medicalservices to a pre-Gerstein arrestee. The district court deniedthe motion.

The Seventh Circuit held that the claim was properlyanalyzed under the Fourth Amendment. All pre-Gersteinarrestees or detainees, whether in a police lockup or a jailhave protection under the Fourth Amendment, and not theFourteenth Amendment. And, the right to adequate medicalcare under the Fourth Amendment was clearly established.

Fourth Amendment – Strip SearchesBanaei v. Messing, ___ Fed. Appx. ___, 2013 WL 6234599(7th Cir. 2013)

Plaintiff, a 60 year old woman, claims that she wasarrested for misdemeanor battery and strip searched inviolation of her Fourth Amendment rights. At thestation, she was ordered by a female officer to removeher “bulky” sweater thereby exposing her bra andundergarments to snickering male officers who werepresent in the room.

District court granted summary judgment, findingthat the plaintiff was not strip searched and thatthere was no prohibition in male officers watchingthe search. The court found that the bulky sweatercould have interfered with a pat down and plaintiffwas still wearing her pants and bra.

The Seventh Circuit disagreed. The officersoffered no justification for conducting the search inthe manner and place they did. Triable issues offact existed as to whether the search wasreasonable.

Equal Protection of Laws – Police Failure toProtectBond v. Atkinson, 728 F.3d 690 (7th Cir. 2013)

Stephanie Bond was shot by her husband who thenfatally shot himself. She filed suit alleging that thepolice violated her equal protection rights by failing toenforce an order of protection and seize her husband’sweapons. The district court denied the officers’qualified immunity defense.

The Seventh Circuit reversed:

Section 1983 requires intentional discrimination.Disparate impact does not state a claim. The factthat the police were wrong about the risk that thehusband posed did not make them constitutionallyliable. The Constitution does not guaranteemistake-free police work.

First Amendment – Free Speech andRetaliationDiadenko v. Folino, ___ F.3d ___, 2013 WL 6680930 (7thCir. 2013).

Diadenko was an administrator at Schurz High Schoolin Chicago. She wrote a letter to the mayor criticizingcertain practices relating to the school’s specialeducation department. Prior to receiving a response,she was suspended twice for violating school policies.She filed suit claiming that the suspensions wereretaliatory.

The Seventh Circuit affirmed summary judgment forschool and its officials.

Diadenko failed to show that the principal wasaware of her letter to the mayor prior to takingdisciplinary action against her. Absent suchknowledge, she was unable to prove unlawfulmotivation.

First Amendment – Free Speech in a PublicSettingCraig v. Rich Twp. High Sch. Dist., 736 F.3d 1110 (7thCir. 2013)

Craig, a teacher at Rich TownshipHigh School, self published an adultrelationship advice book entitled “It’sHer Fault.” The book was filled withsexually provocative themes, sexuallyexplicit terms, and other sexuallydeviant theories. After the book waspublished, the school terminatedCraig. Craig sued under Section 1983alleging First Amendment retaliation.

The Seventh Circuit affirmeddismissal of the action. AlthoughCraig’s book contained matters ofpublic concern, “the allegationsof Craig’s complaint and thedocuments he relies upon tosupport his claim establish thatthe school district’s interest inensuring effective delivery ofcounseling services outweighedCraig’s speech interest.” Thebook disrupted the learningenvironment at the schoolbecause students learned of the“hyper-sexualized” content of thebook and were reluctant to seekout Craig’s advice.

Fourteenth Amendment – RaceDiscriminationLavalais v. Vill. of Melrose Park, 734 F.3d 629 (7thCir. 2013)

Black police sergeant sued the Chief of Police underTitle VII and Section 1983, alleging racediscrimination and retaliation. The sergeant had beenassigned to the midnight shift. After a year, herequested a different shift or position, which the Chiefdenied. He filed suit alleging that he had suffered amaterially adverse employment action because he wasforced to work “midnights indefinitely.”

The Seventh Circuit reversed dismissal of the suit:

Although the complaint did not provide muchfactual detail, the allegations were sufficient toplead that the denial of a transfer from the midnightshift was adverse enough to state a claim.

First Amendment – Political Retaliation –Qualified ImmunityChrzanowski v. Bianchi, 725 F.3d 734 (7th Cir. 2013)

An assistant state’s attorney, Chrzanowski, was fired aftertestifying against the State’s Attorney who was beinginvestigated for official misconduct. He filed suit underSection 1983. Applying Garcetti v. Caballos, the districtcourt dismissed the suit, finding that the testimony was givenpursuant to his official duties and therefore did not implicatethe First Amendment.

The Seventh Circuit reversed. When Chrzanowski wastestifying, he was speaking outside of his duties ofemployment. The court further determined thatretaliation for providing truthful testimony was a clearlyestablished First Amendment violation.

Watch for Lane v. Franks, 2013 WL 5675531 (U.S. ),certiorari granted – same issue!

First Amendment – RetaliationKristofek v. Vill. of Orland Hills, 712 F.3d 979 (7thCir. 2013)

Part time police officer arresteda driver for traffic violations.The driver turned out to be theson of a former mayor of anearby town. The officer wasordered to let him go. Theofficer disagreed and shared hisbelief of corruption with hissupervisors and the FBI and waslater fired. He sued for FirstAmendment retaliation, and hissuit was dismissed.

The Seventh Circuitreversed. While his speechmay have been motivated bypersonal interests, he allegedthat he spoke up to exposecorruption inside the policedepartment. Thus, hisspeech concerned a matter ofpublic concern.

First Amendment – PoliticalRetaliationPeele v. Burch, 722 F.3d 956 (7th Cir. 2013)

Police detective, who supported mayoral opponent in election, spoketo local reporter about his support and was transferred out ofdetective’s bureau the next day. He sued under Section 1983 forFirst Amendment retaliation. The district court granted summaryjudgment in favor of the defendants.

The Seventh Circuit reversed. A triable issue of fact existed asto the true cause of the transfer based on suspicious timing of thetransfer and the Chief’s comment that the plaintiff had “madethe mayor mad.”

TITLE VII – Race Discrimination – Methodof ProofMorgan v. SVT, LLC, et al., 724 F.3d 990 (7th Cir.2013)

Morgan was hired as a store securityguard. Morgan had severalcorrective write-ups and informaldiscussions with his supervisorsabout poor performance. Morganwas ultimately fired after hereported that his supervisor stole anewspaper. He sued under Title VIIfor retaliation. The district courtgranted summary judgment in favorof the company.

The Seventh Circuit affirmed.Although Morgan stated that thetiming was “suspicious” basedon his reporting of a managerfor stealing a newspaper,suspicious timing alone wasinsufficient to create a genuineissue whether he was fired forfailing to meet legitimate jobexpectations or retaliation.

The court criticized strictlyusing “direct” and “indirect”methods of proof.

First Amendment –RetaliationSwetlik v. Crawford, 738 F.3d 818 (7th Cir.2013)

Police detective sued city, its mayor and city council forfiling termination charges with police commission allegedlyin retaliation for his public criticism of the police chief madein his capacity as a union member supporting the union’sdemand for the chief’s resignation. The district court grantedsummary judgment for the defendants, which the SeventhCircuit affirmed.

Detective’s statements were constitutionally protected bythe First Amendment when he made statements as part ofhis union activities, rejecting Garcetti defense.

However, the mayor and city council genuinely andreasonably relied on an independent investigator’s reportthat the detective had been untruthful in his criticism ofthe chief and thus they were justified in bringingtermination charges against him based on thosestatements.

Due Process – Occupational Liberty UnderSection 1983Blackout Sealcoating, Inc. v. Peterson, 733 F.3d 688 (7thCir. 2013)

Blackout Sealcoating had terminable, at-will contracts withCTA to conduct asphalt paving work. The CTAtemporarily debarred the firm from doing work. Blackoutsued under Section 1983 claiming deprivation of“occupational liberty” without due process of law.

The Seventh Circuit affirmed dismissal of the suit. “[T]otreat being suspended or fired by a single employer as adeprivation of liberty or property would be to override theSupreme Court’s conclusion that public employers need notgive or hold hearings before ending at will contracts.”Blackout failed to show that debarment by the CTAamounted to a blackballing from the industry, especiallysince they were provided a contract from a school districtimmediately after being debarred.

Use of Science and Technology by the LegalProfession Jackson v. Pollion, 733 F.3d 786 (7th Cir.2013)

An Illinois inmate failed toreceive his prescribedhypertension medication forthree weeks. The inmate suedunder Section 1983 claimingdeliberate indifference.

The Seventh Circuit held thatthe correctional counselor, atmost, was negligent, but notdeliberately indifferent to theinmate’s medical needs.

This opinion is notable for JudgePosner’s rant against the judgesand attorneys for theirdiscomfort with science andtechnology. “The legalprofession must get over its fearand loathing of science.”

Claim PreclusionWalczak v. Chi. Bd. of Educ., ___ F.3d ___, 2014 WL92234(7th Cir. 2014)

Harriet Walczak was a teacher in the Chicago PublicSchool system for 30 years when her new principalplaced her in a performance remediation program. At theend of that year, she was facing discharge proceedings.She filed a charge with the EEOC alleging violations ofthe ADEA. While the EEOC charge was pending,Walczak was discharged and filed a complaint in CookCounty challenging the Board’s termination, but theCircuit Court and recently Illinois Appellate Courtaffirmed the judgment of the board.

Shortly after the circuit’s decision, Walczak received aright to sue from the EEOC and sued in federal courtalleging a violation of the ADEA. The district courtdismissed the ADEA suit based on claim preclusion.

The Seventh Circuit affirmed. The doctrine of resjudicata barred her ADEA claim. She could havebrought her ADEA claim in conjunction with her state-court suit for judicial review of the Board’s decision butfailed to do so. She was not allowed to split her claims.

Biography

Michael D. Bersani is a partner with Hervas,Condon & Bersani, P.C., located in Itasca, Illinois.Mike received an undergraduate degree from theUniversity of Illinois, Urbana-Champaign in 1985and a law degree from John Marshall Law School,Chicago, Illinois in 1988. Following law school, heserved two years as a judicial clerk to JudgeEdward T. Barfield, First District Appellate Court,State of Florida. Upon entering private practice in1990, he has concentrated his practice in defendinglocal governments and their officials and employeesin federal civil rights and state court tort litigation.Mike is admitted to practice law in Illinois andFlorida, as well as the U.S. Supreme Court, SeventhCircuit Court of Appeals, and the U.S. DistrictCourts for the Northern and Central Districts ofIllinois.