Rocky Mountain Appellate Blog

An Extensive Review on Qualified Immunity but Do We Have a Standard?

On August 7, 2009, the Tenth Circuit handed down its opinion in Green v. Post.  The case deals with a substantive due process claim against a Pueblo deputy sheriff under 42 U.S.C. § 1983 for a death arising from a car crash at an intersection where the deputy was pursuing another car but did not have his lights or siren on at the time of the accident. The district court denied the officer qualified immunity but the Tenth Circuit reversed. The case is a necessary read for lawyers dealing with substantive due process claims given its detailed survey of the law in this area, but a reader may find him-or-herself asking just exactly what standard applies in this circuit in the wake of Green.

As noted in Green, the United States Supreme Court established in Sacramento v. Lewis, 523 U.S. 833 (1998), that cases with “high-speed-chase” facts are properly analyzed under substantive due process. Lewis opined that the “shock the conscience” test was applicable. As noted by the Tenth Circuit in Green, post-Lewis, the cases are pretty consistent that if a plaintiff could establish a deliberate intent to harm, that could qualify as “conscience shocking.” The tougher question arises if the official conduct is not intentional but akin to gross negligence. As noted in Green, some circuits have refused to allow their conscience to be shocked with anything less than intentional conduct. One reads Green as tippy-toeing up to the edge but, in the end, refusing to follow those circuits.

Instead, it is still theoretically possible post-Green to make out a substantive due process claim with something less than intentional-conduct facts.  Per the Green court, the question on what kind of conduct is conscience-shocking hinges on the degree to which the officer in question had time to deliberate –- the more time for deliberation before engaging in the conduct, the greater the likelihood that a plaintiff can make out a prima facie case of conscience-shocking if the plaintiff is injured by the officer’s gross negligence. It’s a hard standard to meet, but it’s easier than some circuits require.

The Camel's Nose: Sotomayor's Swearing-in to Be Televised

In a surprise announcement on Friday afternoon, the U.S. Supreme Court indicated that Justice Sotomayor's swearing-in at the Supreme Court Building will be televised.  Other oaths have been televised recently, but only those held at the White House.  This will be the first time that a swearing-in at the Supreme Court Building has been televised.  Tony Mauro at the National Law Journal has more background here.  As he notes, more camera access to the Supreme Court is unlikely to happen anytime soon, but Friday's announcement is a rare step in that direction.