WPI 340.06 Civil Rights—Causation—Comment Only

Under Section 1983, the plaintiff must prove that the defendant subjected (directly caused), or caused the plaintiff to be subjected (indirectly caused), to a deprivation of federal rights. See WPI 340.04 (Civil Rights—“Subjects” and “Causes to Be Subjected”—Definition). The statute does not specify whether the direct or indirect causation involves traditional common law tort concepts of proximate causation. Section 1983 requires that the plaintiff prove two causal links: (1) a causal relationship between the defendant's conduct and the deprivation of the plaintiff's federal rights; and (2) a causal relationship between the deprivation and the plaintiff's injury or damages.

A. Washington appellate opinions. Washington Supreme Court opinions have not specified whether they are addressing the first or second link. See, e.g., Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 964–65, 954 P.2d 250 (1998) (finding that a Section 1983 due process claim was ripe because the harm occurred immediately upon government action); Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 654–55, 935 P.2d 555 (1997) (Sintra II) (discussing the jury's finding as to whether the defendant's conduct was a proximate cause of “harm” to the plaintiff); Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 124–25, 829 P.2d 746 (1992) (substantive due process violation, causation discussed but not analyzed).

The Washington Court of Appeals, in a substantive due process case, relied on Arnold v. I.B.M., 637 F.2d 1350 (9th Cir. 1981), and held that the first link of causation under Section 1983 required proof of cause-in-fact and proximate cause between the defendant's actions and the deprivation of federal rights. Gausvik v. Abbey, 126 Wn.App. 868, 885–87, 107 P.3d 98 (2005); see also, Morinaga v. Vue, 85 Wn.App. 822, 834, 935 P.2d 637 (1997); In re Estate of Hansen, 81 Wn.App. 270, 285–92, 914 P.2d 127 (1996). In Gausvik, the court rejected the substantial factor test. Gausvik v. Abbey, 126 Wn.App. at 887. It is important to consider that Gausvik is a substantive due process case, and the causation analysis is specific to that type of case. For examples of the causal relationship between the defendant's act or omission and the alleged deprivation of a specific federal right, as well as causation under different theories of liability, see examples in Part D of this Comment, infra.

B. United States Supreme Court precedent. The U.S. Supreme Court has expressly declined to answer the question of proximate causation. See Martinez v. California, 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980) (holding that liability may be imposed only if the link between the defendant's conduct and the deprivation of rights is not “too remote,” but declining to address whether the link is one of traditional proximate causation under the common law of torts); see also DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 197 n.4, 201–202, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989).

In Malley v. Briggs, 475 U.S. 335, 344 n.7, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), the Court explained that the element of causation under Section 1983 is not analyzed in lockstep with the common law tort concept of causation. The Court held in Malley that if a police officer who sought an arrest warrant and presented information to the magistrate did not have an objectively reasonable basis for believing there was probable cause to support the warrant, the officer would not be entitled to qualified immunity. Even if a magistrate made a determination of probable cause—an incorrect determination—and issued the arrest warrant to allow police to seize the plaintiff, the magistrate's action would not offer qualified immunity to a police officer if there was no objectively reasonable basis for the officer's warrant application. Malley v. Briggs, 475 U.S. at 345–46; see also Groh v. Ramirez, 540 U.S. 551, 563–64, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (magistrate made a determination of probable cause and issued a search warrant, but the search warrant was defective on its face and the officer who sought the warrant was not entitled to qualified immunity); Bravo v. City of Santa Maria, 665 F.3d 1076, 1083–87 (9th Cir. 2011) (discussing causation in this context); In re Estate of Hansen, 81 Wn.App. 270, 285–92, 914 P.2d 127 (1996) (discussing causation in this context).

Similarly, in Hartman v. Moore, 547 U.S. 250, 258–266, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006), a Bivens case, the Court stated: “[W]e are ready to look at the elements of common-law torts when we think about elements of actions for constitutional violations … but the common law is best understood here more as a source of inspired examples than of prefabricated components of Bivens torts.” Hartman v. Moore, 547 U.S. at 258; Bivens v Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); see also, Flaxman, Note, Proximate Cause in Constitutional Torts: Holding Interrogators Liable for Fifth Amendment Violations At Trial, 105 Mich. L. Rev. 1551 (2007).

A Bivens cause of action is a lawsuit in which the plaintiff does not rely on Section 1983, but sues directly under the authority of the United States Constitution for injuries that are allegedly caused by unconstitutional behavior of federal agents, rather than agents of the state or local government. Case law from Bivens claims is often cross-referenced and applied in a similar fashion as case law from Section 1983 opinions. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 675–77, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

The Court has held that with regard to municipal defendants, the plaintiff must demonstrate a “direct” causal link between the municipal action and the deprivation of federal rights, such that the municipal action was the “moving force” that caused the deprivation. See the Comment to WPI 341.01 (Civil Rights—Municipal and Local Government Liability—General Introductory Instruction); Monell v. Dep't of Soc. Svcs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d. 611 (1978); Bryan County Comm'rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997); see also Serr, Turning § 1983's Protection of Civil Rights into an Attractive Nuisance: Extra-Territorial Barriers to Municipal Liability under Monell, 35 Ga. L. Rev. 881, 884–85 (2001) (noting the inconsistencies that exist between the Supreme Court's holdings that Section 1983 should be interpreted in terms of common law principles—presumably including proximate causation based on foreseeability—and its opinions analyzing causation in terms of obviously known consequences).

Causation is a more nuanced issue when a jury decides an individual defendant who is employed by the municipality is not liable, but nevertheless the jury determines the municipality is liable under a custom, practice, or policy. Compare City of Los Angeles v. Heller, 475 U.S. 796, 797–99, 801, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (no liability for municipality) with Thomas v. Cook County Sheriff's Dept., 604 F.3d 293, 303–05 (7th Cir. 2010) (county could be held liable even if employees were not).

Causation in a Section 1983 case must be interpreted in a manner consistent with federal law. See Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) (state law cannot be used to preclude litigation of a Section 1983 claim in state court if that claim would be allowed to proceed under federal law in federal court). The federal constitution and Section 1983 legislative intent should be considered to determine the source of the legal standard. See generally Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006); Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); CSX Transp., Inc. v. McBride, 564 U.S. 685, 692–704, 131 S.Ct. 2630, 2637–43, 180 L.Ed.2d 637 (2011) (in a case under a federal railroad statute, the Court observed that jurors lack an understanding of the term “proximate cause” and found there was no indication that Congress intended to use the proximate cause standard); but see Staub v. Proctor Hosp., 562 U.S. 411, 131 S.Ct. 1186, 1191, 179 L.Ed.2d 144 (2011) (the Court relied on proximate cause under a different federal statute); Restatement (Third) of Torts: Liability for Physical and Emotional Harm, § 26 “Factual Cause” (2005); Restatement (Third) of Torts, Chapter 6, “Special Note on Proximate Cause” (2005); Restatement (Third) of Torts § 29 Part c—Scope of Liability (2005) (describing the reasons why scope of liability is the appropriate substantive analysis while “proximate cause” is a phrase that stands in for or symbolizes the gist of scope of liability as a concept; also arguing that “proximate cause” is a confusing term, and suggests that cause-in-fact is the better usage).

In two cases, the United States Supreme Court held that a plaintiff cannot recover compensatory damages for unspecified injury or ask the jury to award damages based on a subjective intrinsic value of the particular constitutional right allegedly violated; the plaintiff must prove actual injury in order to justify compensatory damages. See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (jury instructions erroneously allowed jurors to award damages based on intrinsic value of First and Fourteenth Amendment rights); Carey v. Piphus, 435 U.S. 247, 257–67, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (for deprivation of procedural due process, nominal damage award is permissible when deprivation occurred but there is no evidence of compensable injury).

C. Federal circuit courts. Causation is an evolving area of law. Federal pattern instructions published by the United States Courts of Appeals are a good resource for research and patterns. See, e.g., United States Court of Appeals for the Third Circuit, Civ. Jury Instr. 4.6.1 (Section 1983—Liability in Connection with the Actions of Another—Supervisory Officials) (2015) and 4.14 (Section 1983—State-Created Danger) (2015).

The Ninth Circuit requires that the plaintiff establish cause-in-fact and proximate cause in order to satisfy the first link in Section 1983's causation requirement. Harper v. City of Los Angeles, 533 F.3d 1010, 1026–27 (9th Cir. 2008); Arnold v. I.B.M. Corp., 637 F.2d 1350 (9th Cir.1981). Other federal appellate courts have varied in their analysis of causation issues. See, e.g., Cash v. County of Erie, 654 F.3d 324, 341–42 (2nd Cir. 2011) (applying proximate cause standard, but failing to analyze the first and second links of causation); see also Kernodle, Note, Policing the Police: Clarifying the Test for Holding Government Liable under 42 U.S.C. § 1983 and the State Created Danger Theory, 54 Vand. L.Rev. 165, 182–84 (2001); Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275, 302–08 (2008).

In cases in which the plaintiff alleges that the defendant failed to act, an expanded jury instruction about causation is required. See Hunter v. County of Sacramento, 652 F.3d 1225 (9th Cir. 2011); see also Fischer, Causation in Fact in Omission Cases, 1992 Utah Law Rev. 1335, 1336, 1348, 1380 (1992).

Opinions of the federal courts echo some common themes. Causation instructions: (1) should be precise and consistent with the specific federal rights at issue; (2) should be tailored to the specific type of liability in each cause of action (e.g., a defendant who is an individual person, supervised person, direct supervisor, municipality, or other government defendant); (3) should describe the first causal link, between the defendant's conduct and the deprivation of rights, with mens rea and causation elements that are related to the precise constitutional right at issue, and relevant to the theory of liability for each specific cause of action; and (4) in order to establish the second link—between the deprivation of federal rights and the resulting damages—the instruction should require an actual injury before compensatory damages can be awarded; there must also be a cause-in-fact connection between the constitutional deprivation and the actual injury or damage in order to justify compensatory damages, and proximate causation is normally required.

1. First Amendment retaliation cases.

In a cause of action alleging that a public employer retaliated against the plaintiff for his or her exercise of First Amendment rights, a plaintiff is required to establish by a preponderance of the evidence: (1) that the employee engaged in speech that was constitutionally protected; (2) that the employer took an “adverse employment action” against the plaintiff; and (3) that the plaintiff's protected speech was a “substantial or motivating factor” for the defendant's adverse employment action. If the plaintiff makes this three-part showing, then the defendant must establish by a preponderance of the evidence that it would have reached the same adverse employment decision even in the absence of the protected speech. Lakeside-Scott v. Multnomah County, 556 F.3d 797, 803 (9th Cir. 2009) (citing Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)); see also Garcetti v. Ceballow, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 675, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996); White v. State, 131 Wn.2d 1, 11, 16–18, 20, 929 P.2d 396 (1997).

If the plaintiff is an independent contractor, the court ordinarily will determine the nature of the contracting relationship and decide whether the contractor is a private citizen, or an employee, for purposes of First Amendment analysis. Bd. of County Comm'rs v. Umbehr, 518 U.S. at 673–74. If the contractor is considered a public employee, there are “certain restraints that would be unconstitutional if applied to the general public,” but for purposes of public employment, certain restrictions may be valid. City of San Diego v. Roe, 543 U.S. 77, 80, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam); see Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

The test is a five-part inquiry: first, did the plaintiff speak about a matter of public concern?; second, did the plaintiff speak as a private citizen or as a public employee?; third, was plaintiff's protected speech a substantial or motivating factor in the defendant's adverse employment action against the plaintiff?; fourth, did the defendant have adequate justification for treating the employee differently from other members of the public?; and fifth, would the defendant have imposed the adverse employment action even if plaintiff had not engaged in protected speech? If the plaintiff meets the burden of proof for the first three parts of this test, the burden shifts to the defendant to prove the fourth and fifth parts. Clairmont v. Sound Mental Health, 632 F.3d 1091, 1101–03 (9th Cir. 2011).

The analysis of causation in First Amendment retaliation cases may depend on the decision-making process and chain of command within an organization. If the defendant was a lower level manager and took adverse action against the plaintiff because of an unconstitutional motive to retaliate—but the defendant was not the final decision-maker for the adverse employment action—then there are more steps to the causation analysis. See Gilbrook v. City of Westminster, 177 F.3d 839, 854–55 (9th Cir. 1999). If the defendant (who was a subordinate manager with an unconstitutional motive) did not influence the upper level manager (the final decision-maker in the adverse employment decision against the plaintiff), then the defendant may under some circumstances be shielded from liability. This causation analysis is very fact-specific. Compare Ostad v. Oregon Health Sci. Univ., 327 F.3d 876 (9th Cir. 2003) (jury instructions and verdict for plaintiff upheld) with Lakeside-Scott v. Multnomah County, 556 F.3d 797, 803 (9th Cir. 2009).

2. Fourth Amendment.

Causation issues may be particularly complicated in cases in which the plaintiff alleges malicious prosecution or retaliatory arrest. See Hartman v. Moore, 547 U.S. 250, 259–66, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006); Beck v. City of Upland, 527 F.3d 853 (9th Cir. 2008). In such cases, the plaintiff is required to plead and prove the absence of probable cause. Beck v. City of Upland, 527 F.3d 853.

In cases in which the plaintiff alleges that he or she was arrested for communicating in a pointed manner with a police officer, the probable cause inquiry has First Amendment implications. Specific jury instructions may be required to explain the First and Fourth Amendment rights to freedom from being arrested for criticizing or expressing frustration with the law enforcement officer. Gulliford v. Pierce County, 136 F.3d 1345, 1349–50 (9th Cir. 1998); see City of Houston v. Hill, 482 U.S. 451, 459–67, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987).

If the plaintiff was apprehended by one officer who made the initial stop without probable cause, and then a second officer makes a custodial arrest believing the first officer's allegations that there was probable cause, the first officer is not subject to qualified immunity nor can he or she rely on the fact that the second officer ultimately effectuated the arrest. See Whitley v. Warden, Wyoming St. Pen., 401 U.S. 560, 568–69, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) (holding that “an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest”); see also Deville v. Marcantel, 567 F.3d 156, 161–63, 165–67 (5th Cir. 2009) (the second officer to arrive at the scene reasonably believed he had probable cause and made a custodial arrest of the plaintiff, relying on information provided by the first officer at the scene; the court held that the second officer was covered by qualified immunity, but the first officer-who did not have sufficient information to establish probable cause-was not shielded by qualified immunity); see generally Osborne v. Seymour, 164 Wn.App. 820, 265 P.3d 917 (2011) (police officer's uncertainty about whether a civil standby entry and search was permitted did not justify a warrantless search of plaintiff's home).

3. Due process.

The causation instructions will depend on the specific due process challenge and the underlying right for which process is due. See generally, Gausvik v. Abbey, 126 Wn.App. 868, 885–87, 107 P.3d 98 (2005). For situations in which a due process issue may overlap with other constitutional claims, clarifying instructions can be given to guide the jury, so jurors can more clearly identify and match the particular acts or omissions claimed to have caused a particular injury and damage. Acevedo-Garcia v. Monroig, 351 F.3d 547, 567–71 (1st Cir. 2003).

4. Supervisor liability.

In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948–49, 173 L.Ed.2d 868 (2009), which was a Bivens cause of action rather than a Section 1983 case, the Court relied on the Section 1983 concept that respondeat superior liability cannot be imposed against a supervisor. The Court held that the individual supervisor cannot be liable simply because one of his or her subordinates violates the constitutional rights of a person. In a Bivens case, and by implication in a Section 1983 case, there would be no supervisor liability unless the supervisor directly caused a constitutional deprivation. Ashcroft v. Iqbal, 556 U.S. at 677.

The Ninth Circuit considered, in a Section 1983 case involving use of force and conditions of confinement at a jail, whether Iqbal changed the law regarding supervisor liability. Starr v. Baca, 652 F.3d 1202 (9th Cir.), opinion on denial of rehearing en banc, Starr v. County of Los Angeles, 659 F.3d 850 (9th Cir. 2011). The Ninth Circuit held that Section 1983 allows the jury to impose liability for an individual supervisor who indirectly causes a deprivation of constitutional rights by encouraging or directing acts to be committed or omitted by subordinate employees. The court determined that Iqbal did not change the law of mens rea or causation for individual supervisory liability under Section 1983. Before and after Iqbal, the Ninth Circuit requires the plaintiff to produce evidence of an affirmative link between the supervisor's action, or inaction, and the constitutional deprivation. Starr v. Baca, 652 F.3d at 1205–08.

A supervisor causes the plaintiff to be subjected to a deprivation if he or she sets in motion a series of acts by others that result in a constitutional deprivation. Similarly, a supervisor causes the plaintiff to be subjected to a deprivation if he or she knowingly refuses to stop a series of acts by others, which the supervisor actually knows or objectively should know would cause others to inflict a constitutional injury. Starr v. Baca, 652 F.3d at 1207–08.

There is continuing debate on the issue of indirect causation for establishing individual liability of supervisors. See Lacey v. Maricopa County, 649 F.3d 1118 (9th Cir. 2011), rehearing en banc granted, 663 F.3d 1032 (9th Cir. 2011), opinion on rehearing en banc, 693 F.3d 896 (9th Cir. 2012); Comment, Supervisory Liability after Iqbal: Decoupling Bivens from Section 1983, 77 U. Chi. L. Rev. 1401, 1419–21, 1425–31 (2010) (analyzing Iqbal, discussing the federal circuit court opinions and different standards for mens rea and causation concerning supervisor liability, and suggesting that the statutory language “caused to be subjected” in Section 1983 implies that causation includes supervisory liability for both direct and indirect acts and omissions).