by John Midgley
Arecent Supreme Court decision, Crawford-EI v. Britton , 118 S.Ct. 1584 (1998), highlights some issues of importance for prisoners doing pro se cases. Crawford-El , which was summarized in detail in the July 1998 PLN , holds that a federal court cannot make a plaintiff who brings a claim that requires proof of bad motive by the defendant to produce "clear and convincing" evidence of bad motive before the case can go forward. In addition, Crawford-El contains information about the important differences between the elements of a claim and the defense of qualified immunity. This column discusses these differences and what they mean for plaintiffs in federal civil rights cases.
1. Qualified Immunity: Motive Irrelevant
As I discussed in some detail in an earlier column, "qualified immunity" is a defense public employees may raise to a claim for damages ( but not to a claim for injunctive relief) in a § 1983 case. In a nutshell, qualified immunity law holds that a public official is not liable for damages for a constitutional violation unless the law existing at the time the defendant acted "clearly established" that the action was unconstitutional. See Crawford-El, 118 S.Ct. at 1591-92, citing Harlow v. Fitzgerald, 457 U.S. 800 (1982) and Mitchell v. Forsyth, 472 U.S. 511 (1985).
For purposes of this column, the important point about the law of qualified immunity is that proof of what was in the mind of the defendant is completely irrelevant to the question whether the law was "clearly established" at the time the defendant acted. See Crawford-EI, 118 S.Ct. at 1592. Courts decide whether the law was "clearly established" not by asking what the defendant believed the law to be, but by actually looking at the caselaw to see what a reasonable public official would believe about the constitutionality of his or her acts. In other words, in determining whether a defendant is entitled to the defense of qualified immunity, it would not matter if you could show that the defendant did think that his or her actions were unconstitutional. The court would not care what the defendant thought; what matters is what the caselaw said at the time of the act.
2. Many Constitutional Claims: Motive Crucial
In stark contrast to the irrelevance of the defendant's mental state to the defense of qualified immunity, the defendant's mental state is often one of the "essential elements" of a civil rights plaintiffs constitutional claim. This means that if one of the elements of a claim is proof of some kind of evil motive, and if the plaintiff cannot present evidence of whatever bad mental state is required, the plaintiff cannot win the case.
In prison cases, the mental state of the defendant is an essential element of many constitutional claims, such as the retaliation claim the plaintiff raised in Crawford-El. Another important example for prisoners, of course, is the requirement that the plaintiff show in most Eighth Amendment cases that the defendant acted with the mental state of "deliberate indifference" to the safety or health of the plaintiff. See ,for example , Farmer v. Brennan, 511 U.S. 825 (1994).
The Supreme Court in Crawford-El directly addressed what plaintiffs in "bad motive" cases can be required to show in order to move forward with the case and conduct discovery. In the majority opinion, Justice Stevens acknowledges the difficulties that "bad motive" cases present for public officials, such as the potential for abuse through clever pleading by plaintiffs who really don't have solid evidence of bad motive. But the majority decided that it would not require the plaintiff to make a special showing regarding the motive element, such as the "clear and convincing evidence" standard that was applied by the D.C. Circuit in Crawford-El. Instead, the Court determined that, as with all other elements of a constitutional claim, evidence that could lead a jury to find bad motive by a "preponderance of the evidence" is sufficient.
However, the Court in Crawford-EI also made very clear that federal courts have the power to make plaintiffs in "bad motive" cases reveal early on what evidence of bad motive they have, and to refuse the plaintiff the opportunity to conduct full discovery unless there is some proof of bad motive. See 118 S.Ct. at 1596-98, detailing a number of hoops through which plaintiffs can be forced to jump in bad motive cases.
3. What This Means For What You Must Show The Court
There are at least three ideas pro se litigants should take from studying the discussion in Crawford-EI.
First, if the defendant raises a defense of qualified immunity and moves to dismiss on that ground, you must show the court not what the defendant thought, but rather what the "clearly established law" was at the time the defendant acted. Even if you have proof of the defendant's bad motive, you do not need to present it at this stage, because it is irrelevant to the determination of "clearly established law." You must instead research the caselaw as it existed at the time of the act, and show the court that a reasonable public official would have known the act to be unconstitutional at the time. (I discussed in an earlier column how to do this.)
If you cannot show the court that the law condemning the defendant's conduct was clearly established at the time the conduct occurred, you will not be able to proceed further no matter how much evidence of bad intent you have. If you do overcome the defense of qualified immunity, however, and if you are making a claim that requires proof of bad motive, then evidence of bad motive will become very relevant to whether your claim goes further
Second, even though Crawford-El says that a plaintiff whose claim includes bad motive as an essential element cannot be required to show "clear and convincing" proof of this element, this does not excuse the need to have evidence of bad motive. It is not enough to just assert, for example, in your complaint or your testimony that you are sure the defendant had intent to retaliate against you for exercising your constitutional rights. If you don't have more proof than that you should not file a case.
Direct evidence of motive or mental state is obviously best, for example oral or written statements by the defendant that explicitly show the bad mental state. However, because obviously this kind of direct evidence is not available in many cases, circumstantial evidence may be used -- such as how a defendant acted at a particular time -- if it tends to show the mental state you need to demonstrate. But whether it is direct or circumstantial, there must be evidence that could convince a jury by a preponderance of the evidence that the defendant did have the mental state required to make out your claim.
Third, you should try very hard to get as much evidence as possible of the defendant's mental state before you start your lawsuit. Crawford-EI makes abundantly clear that plaintiffs who cannot produce, early in the case, some serious proof regarding mental state are going to have a hard time conducting full discovery and getting to trial.
One important way to attempt to establish a mental state such as "deliberate indifference" to a known danger is to alert prison officials early on, in writing, about the danger. This kind of evidence is very relevant to the "deliberate indifference" question, because it helps to establish that the defendant knew of the danger. See Farmer, 511 U.S. at 842-844. If, after you gave notice, the defendant then failed to remedy the problem, this will assist you in trying to prove by circumstantial evidence that the defendant was "deliberately indifferent."
This column is intended to convey general information and not to provide legal advice about any particular case. You should conduct your own careful research to determine what is best for your case.
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