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Dean Chemerinsky Highlights New Challenges for Civil Rights Litigants

In a recent ABA Journal article, UC Irvine Law Dean Erwin Chemerinsky argues that two generally overlooked cases this term could have broad implications for civil rights litigants’ access to justice. Chemerinsky discusses Minneci v. Pollard and Ryburn v. Huff, arguing that “each reflects a significant, though unstated, change in the law.”

In Minneci, the Court held that employees of a privately-run federal prison cannot be held liable in federal court for constitutional violations because state tort law provides adequate remedies. Chemerinsky writes, “[F]or the first time, the court has said that the existence of state remedies can preclude a Bivens cause of action. In a number of cases, the court had said that the existence of a federal statutory remedy could preclude Bivens actions. But in Bivens, the court had rejected the argument that a state tort remedy was a reason to deny a federal cause of action for a constitutional violation.”

In Ryburn, decided without argument or briefing on the merits, the Court held that police officers who entered a home without a warrant and without permission from the occupants were shielded from suit by the doctrine of qualified immunity. In the 2002 case of Hope v. Pelzer, the Supreme Court held that qualified immunity can be overcome if an officer’s discretionary actions violate clearly established law that a reasonable officer should know, even if there is not a case directly on point. Chemerinsky notes, “However, in recent cases, without acknowledging it was doing so, the [C]ourt has backed away from Pelzer and found qualified immunity because there was not a specific case on point.” In Ryburn, and last term’s Ashcroft v. Al-Kidd, the Court upheld qualified immunity based on the absence of any case on point.

Chemerinsky writes, “The [C]ourt, of course, has not overruled Pelzer. But it is notable that in neither of these cases is it cited; nor does the court focus on, what should be the central inquiry under Pelzer: Did the officer have fair notice that the conduct violated the Constitution? Requiring that the plaintiff have a case on point to overcome qualified immunity will create an obstacle for civil rights plaintiffs in many cases.”

He concludes, “Perhaps the most important theme of the Roberts Court so far has been in making it harder for plaintiffs to go forward in federal court. From a practical perspective, its most significant ruling may be Ashcroft v. Iqbal, the 2009 ruling that increased the pleading burden on those wishing to sue in federal court. The two decisions from January fit this pattern and will create new obstacles for civil rights plaintiffs.”

AFJ is greatly concerned about the Roberts Court’s hostility to litigation as a means for everyday Americans to receive compensation for past wrongs and to deter future wrongdoing. Learn more about AFJ’s work on civil justice and the Roberts Court’s history of bending the law to favor corporate interests over everyday Americans.

To read the full article by Dean Chemerinsky, click here.