Amicus Curiae Brief — Jarius Brown, Petitioner v. Javarrea Pouncy, et al.

No. 23-1332

In The

Supreme Court of the United States

JARIUS BROWN,

Petitioner,

v.

JAVARREA POUNCY, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE INSTITUTE FOR JUSTICE

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Katrin Marquez

INSTITUTE FOR JUSTICE

2 S. Biscayne Blvd.

Ste. 3180

Miami, FL 33131

(305) 721-1600

Anya Bidwell

Counsel of Record

Patrick Jaicomo

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.

Ste. 900

Arlington, VA 22203

(703) 682-9320

abidwell@ij.org

Counsel for Amicus Curiae

i

Table of Contents

Interest of Amicus Curiae .......................................... 1

Summary of Argument .............................................. 2

Argument.................................................................... 6

I.

II.

Congress Enacted Section 1983 to

Ensure Government Accountability,

but the Judiciary’s Subsequent

Imposition of Procedural Barriers

Makes Bringing Claims Within One

Year Much Harder. .................................... 6

A.

Judicially imposed procedural

barriers contradict Section 1983’s

broad remedial purpose. ....................... 6

B.

Overlapping procedural barriers

make bringing claims within a

one-year

limitations

period

extremely difficult................................. 9

Clarifying that a One-Year Statute of

Limitations is Too Short Won’t

Create Additional Unmeritorious

Litigation. ................................................. 23

Conclusion ................................................................ 25

ii

Table of Authorities

Page(s)

Cases

Anderson v. Creighton,

483 U.S. 635 (1987)..............................................18

The Apollon,

22 U.S. (9 Wheat.) 362 (1824) .............................17

Baxter v. Bracey,

140 S. Ct. 1862 (2020)..........................................15

Boyd v. McNamara,

74 F.4th 662 (5th Cir. 2023) ................................18

Burnett v. Grattan,

468 U.S. 42 (1984)............................................9, 10

Bustillos v. El Paso Cnty. Hosp. Dist.,

891 F.3d 214 (5th Cir. 2018)............................4, 21

Connick v. Thompson,

563 U.S. 51 (2011)...................................... 4, 19, 20

District of Columbia v. Carter,

409 U.S. 418 (1973)................................................7

District of Columbia v. Wesby,

583 U.S. 48 (2018)............................................4, 18

Gonzalez v. City of Castle Hills,

2021 WL 4046758 (W.D. Tex. Mar. 12,

2021) .....................................................................11

iii

Gonzalez v. Trevino,

602 U.S. ___, 144 S. Ct. 1663 (2024) ...............3, 10

Hagans v. Frankling Cnty. Sheriff’s Off.,

695 F.3d 505 (6th Cir. 2012)................................21

Harlow v. Fitzgerald,

457 U.S. 800 (1982)..........................................4, 18

Johnson v. Mosely,

790 F.3d 649 (6th Cir. 2015)................................15

Joyce v. Town of Tewksbury,

112 F.3d 19 (1st Cir. 1997) ..................................21

Kisela v. Hughes,

584 U.S. 100 (2018)..............................................15

Lake Country Ests., Inc. v. Tahoe Reg’l

Plan. Agency,

440 U.S. 391 (1979)..........................................7, 16

Little v. Barreme,

6 U.S. (2 Cranch) 170 (1804) ...............................17

M’Cluny v. Silliman,

28 U.S. (3 Pet.) 270 (1830) ...................................14

Mitchum v. Foster,

407 U.S. 225 (1972)................................................8

Mohamud v. Weyker,

2024 WL 1125536 (D. Minn. Mar. 25,

2024) .....................................................................12

Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1978)..............................................19

iv

Monroe v. Pape,

365 U.S. 167 (1961)................................................8

Mullenix v. Luna,

577 U.S. 7 (2015)..................................................18

Nieves v. Bartlett,

587 U.S. 391 (2019)..............................................10

Owen v. City of Independence,

445 U.S. 622 (1980)..............................................21

Pierson v. Ray,

386 U.S. 547 (1967)..............................................17

Plowright v. Miami-Dade County,

102 F.4th 1358 (2024) ..........................................21

R.A. v. City of New York,

206 F. Supp. 3d 799 (E.D.N.Y. 2016) ..............4, 21

Szabla v. City of Brooklyn Park,

486 F.3d 385 (8th Cir. 2017)................................21

Tanzin v. Tanvir,

592 U.S. 43 (2020)................................................17

Wilson v. Garcia,

471 U.S. 261 (1985)................................................8

Wilson v. Layne,

526 U.S. 603 (1999)..............................................18

Wilson v. Midland County,

92 F.4th 1150 (2024) ............................................12

v

Wood v. Strickland,

420 U.S. 308 (1975)..........................................3, 17

Ziglar v. Abbasi,

582 U.S. 120 (2017)..............................................15

Statutes

42 U.S.C. § 1983 ......................................................6, 7

Ky. Rev. Stat. Ann. § 413.140 ...................................22

Me. Stat. tit. 14, § 752 ...............................................24

P.R. Laws Ann. tit. 31, § 5298(2) ..............................22

Tenn. Code Ann. § 28-3-104 ......................................22

Tex. Civ. Prac. & Rem. Code § 16.003 ......................10

Other Authorities

Alexander A. Reinert, Does Qualified

Immunity Matter?, 8 U. St. Thomas L.J.

477 (2011) .............................................................24

Alexander A. Reinert, Qualified Immunity’s

Flawed Foundation, 111 Calif. L. Rev.

201 (2023) .............................................................15

Complaint, Taylor v. Nocco, No. 8:21-cv00555 (M.D. Fla. filed Mar. 10, 2021) .................12

Cong. Globe, 42nd Cong., 1st Sess., App. 68

(1871) ......................................................................7

vi

Eric Foner, Reconstruction: America’s

Unfinished Revolution, 1863–1877

(1988) ......................................................................7

Jason Tiezzi et al., Unaccountable: How

Qualified Immunity Shields a Wide

Range of Government Abuses,

Arbitrarily Thwarts Civil Rights, and

Fails to Fulfill Its Promises, Inst. for

Just. (Feb. 7, 2024) ........................................13, 15

Jay Schweikert, Qualified Immunity: A

Legal, Practical, and Moral Failure,

Cato Inst. (Sept. 14, 2020) ...................................15

Joanna C. Schwartz, The Case Against

Qualified Immunity, 93 Notre Dame L.

Rev. 1797 (2018) ..................................................15

Joanna C. Schwartz, Qualified Immunity’s

Boldest Lie, 88 U. Chi. L. Rev 605 (2021) ...........15

Joanna Schwartz, Shielded: How the Police

Became Untouchable (2023) ................................20

Robert J. Kaczorowski, Federal

Enforcement of Civil Rights During the

First Reconstruction, 23 Fordham Urb.

L.J. 155 (1995) .......................................................7

Theodore Eisenberg & Stewart Schwab,

The Reality of Constitutional Tort

Litigation, 72 Cornell L. Rev. 641 (1987)..............5

vii

Tyler T. Ochoa & Andrew J. Wistrich, The

Puzzling Purposes of Statutes of

Limitations, 28 Pac. L.J. 453 (1997) ...................14

William Baude, Is Qualified Immunity

Unlawful?, 106 Calif. L. Rev. 45 (2018) ..............14

1

Interest of Amicus Curiae 1

The Institute for Justice (IJ) is a nonprofit public

interest law firm committed to defending the

essential foundations of a free society by securing

greater protection for individual liberty. Central to

that mission is promoting government accountability

for constitutional violations by government actors.

The Institute for Justice pursues these goals in part

through its Project on Immunity and Accountability,

which seeks to decrease procedural barriers that

insulate government defendants that violate

individuals’ rights from lawsuit. IJ also pursues these

goals through affirmative litigation on behalf of

individuals whose constitutional rights have been

violated by government officials at all levels.

The Project on Immunity and Accountability is

founded on a simple idea: If we the people must follow

the law, our government must follow the

Constitution. But a tangled web of legal doctrines

effectively places government officials above the law

by making it nearly impossible for individuals to hold

them accountable for even bad faith violations of

constitutional rights. Too short statutes of limitations

often aggravate this problem. Since often the only

way to enforce the Constitution is through the courts,

these overlapping doctrines make the Constitution an

empty promise by firmly shutting the courthouse

doors. Accordingly, the Project seeks to challenge

1 No counsel for a party authored this brief in whole or in

part, and no person other than amicus curiae or its counsel made

a monetary contribution to fund the preparation or submission

of this brief. Amicus curiae noticed all parties of its intent to file

this brief ten days before its filing.

2

judge-made

procedural

barriers

that

erode

individuals’ constitutional rights through litigation,

legislative advocacy, and public education.

As a civil rights organization that regularly sues

government officials for violating individuals’ federal

constitutional rights, IJ also has an unparalleled

depth of experience working up viable Section 1983

cases. Because our cases often bring cutting-edge

constitutional claims, they often require months-long

case development. And so, we have a practical

understanding of the challenges resulting from too

short limitations periods and overlapping procedural

barriers.

Summary of Argument

The Court should grant certiorari in this case. And

it should hold that a one-year statute of limitations is

too short to vindicate the federal interests expressed

in Section 1983.

Congress enacted Section 1983 as a bulwark

against government abuse. But over the intervening

decades, the Court has imposed increasingly

restrictive procedural barriers on civil rights

plaintiffs. Those barriers make bringing meritorious

claims a more difficult and time-consuming process.

Plaintiffs in jurisdictions with one-year statutes of

limitations for Section 1983 claims face an untenable

choice: invest the requisite time in developing their

claims and risk the limitations period expiring or file

their claims quickly and risk being dismissed for some

other deficiency. Given all the procedural barriers the

Court has imposed since Congress enacted Section

3

1983, one-year statutes of limitations are too short to

fulfill Section 1983’s broad remedial purpose. See

Wood v. Strickland, 420 U.S. 308, 322 (1975).

Section 1983 is the primary mechanism for civil

rights plaintiffs to vindicate their rights. But too short

statutes of limitations compound the difficulties

created by the proliferation of judicially imposed

procedural barriers. In our experience at the Institute

for Justice, perfecting Section 1983 claims requires

extensive pre-filing factual development and legal

research. IJ attorneys regularly spend months

preparing our cases to ensure that our clients’ claims

can survive procedural defenses. That work may

include things like fighting over public records

requests to support our allegations. Our win before

this Court earlier this year illustrates this: To

plausibly allege that municipal officials retaliated

against Sylvia Gonzalez for her political speech, we

spent about six months negotiating with the county to

review arrest records and determine whether others

had been arrested for similar conduct. See generally

Gonzalez v. Trevino, 602 U.S. ___, 144 S. Ct. 1663

(2024) (per curiam). But such difficulties aren’t

unique to Sylvia’s case.

Overlapping procedural barriers imposed by the

Court make bringing claims much harder by

heightening the burden on plaintiffs pre-filing.

Because of their prevalence in Section 1983 litigation,

here we focus on two such barriers: qualified

immunity and municipal liability.

First, qualified immunity. Modern qualified

immunity doctrine displaces the strict liability regime

4

that existed when Section 1983 was enacted,

presenting significant difficulties for plaintiffs faced

with one-year limitations periods. Since the Court

created modern qualified immunity in 1982, see

Harlow v. Fitzgerald, 457 U.S. 800 (1982), it has

increasingly put the burden on civil rights plaintiffs

to show that their rights are clearly established. See

District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)

(“[E]xisting

law

must

have

placed

the

constitutionality of the officer’s conduct beyond

debate.” (quotation omitted)). This atextual and

ahistorical gloss on Section 1983 forces civil rights

plaintiffs to do extensive research before filing in

anticipation of a qualified immunity defense.

Plaintiffs must be prepared to respond to a motion to

dismiss by having developed arguments that the

violation was clearly established in factual

circumstances nearly identical to their own case.

Second, municipal liability. To adequately plead

municipal liability, plaintiffs must often show a policy

or custom of unconstitutional behavior so pervasive as

to constitute deliberate indifference. Connick v.

Thompson, 563 U.S. 51, 61–62 (2011). This is a

daunting standard for a plaintiff to meet before

discovery. Essentially, a plaintiff must prove a policy

or custom just to proceed past a motion to dismiss.

See, e.g., R.A. v. City of New York, 206 F. Supp. 3d

799, 803–804 (E.D.N.Y. 2016) (dismissing municipal

liability claim because of insufficient evidence to

plead a policy or custom). On top of that, some circuits

have begun erroneously importing the clearlyestablished-law

requirement

from

qualified

immunity into municipal liability cases. E.g.,

Bustillos v. El Paso Cnty. Hosp. Dist., 891 F.3d 214,

5

222 (5th Cir. 2018). Because of these requirements,

bringing a municipal liability claim within a one-year

limitations period is nearly impossible. Plaintiffs

must spend months collecting evidence to support

their allegations long before the case has been filed or

any discovery has taken place.

A one-year statute of limitations does not account

for the practical difficulties created by procedural

barriers for civil rights plaintiffs. The overlap of too

short statutes of limitations and such procedural

barriers threatens to defeat otherwise meritorious

claims. And it does so with little justification: The

judiciary is often concerned that increasing access to

courts will cause a deluge of unmeritorious litigation,

but that’s not a realistic concern here. Cf. Theodore

Eisenberg & Stewart Schwab, The Reality of

Constitutional Tort Litigation, 72 Cornell L. Rev. 641,

693–695 (1987) (noting that concerns over exploding

civil rights litigation are refuted by national filing

data). Clarifying that a one-year statute of limitations

is too short will not increase unmeritorious litigation

and may have the opposite effect as diligent attorneys

will have more time to vet out groundless claims. And

experience shows that federal courts in jurisdictions

with statutes of limitations longer than one year are

able to manage their dockets, suggesting concerns

about over-burdened courts are ill-founded.

6

Argument

I.

Congress Enacted Section 1983 to Ensure

Government Accountability, but the

Judiciary’s Subsequent Imposition of

Procedural Barriers Makes Bringing

Claims Within One Year Much Harder.

When a government official violates an

individual’s constitutional rights, the primary remedy

available is a lawsuit under 42 U.S.C. § 1983. Section

1983 was enacted to ensure that victims of rights

violations would have a federal forum available. But

in the intervening decades the Court has imposed

additional procedural barriers that make bringing

claims a more difficult and time-consuming process.

Too short limitations periods for Section 1983 claims

compound the problem: Plaintiffs must prepare

procedurally complicated cases very quickly.

A. Judicially imposed procedural barriers

contradict Section 1983’s broad remedial

purpose.

Statutes of limitations applied to Section 1983

claims must account for its remedial purpose of

ensuring that victims of government abuse have a

federal forum available. To vindicate the federal

interests expressed in Section 1983, limitations

periods must provide sufficient time for plaintiffs to

prepare their claims.

Section 1983 created a mechanism for victims to

recover for federal rights violations. During

Reconstruction, the Ku Klux Klan overwhelmed legal

institutions in the South, terrorizing freedmen and

7

Republicans with impunity. See Robert J.

Kaczorowski, Federal Enforcement of Civil Rights

During the First Reconstruction, 23 Fordham Urb.

L.J. 155, 156–157 (1995). See also Eric Foner,

Reconstruction: America’s Unfinished Revolution,

1863–1877, at 425–444 (1988) (cataloguing Klan

violence). Because local and state law enforcement

officers were often the same Klansmen that carried

out these campaigns of terror, Congress sought to

enact

statutes

providing

federal

remedies.

Kaczorowski, supra, at 157–158 (also discussing the

statute creating the Department of Justice). Section

1983 “was designed primarily in response to the

unwillingness or inability of the state governments to

enforce their own laws against those violating the

civil rights of others.” District of Columbia v. Carter,

409 U.S. 418, 426 (1973). It was “remedial” and

intended to “aid [in] the preservation of human liberty

and human rights.” Lake Country Ests., Inc. v. Tahoe

Reg’l Plan. Agency, 440 U.S. 391, 400 n.17 (1979)

(quoting Cong. Globe, 42nd Cong., 1st Sess., App. 68

(1871)).

Enacted as part of the Civil Rights Act of 1871

(also known as the Ku Klux Klan Act), it created a

private cause of action against any “person who,

under color of any [law] of any State * * * subjects

* * * any * * * person * * * to the deprivation of any

rights, privileges, or immunities secured by the

Constitution.” 42 U.S.C. § 1983. It fundamentally

altered the authority of the federal courts to address

civil rights abuses. Section 1983 “opened the federal

courts to private citizens, offering a unique federal

remedy against incursions under the claimed

authority of state law upon rights secured by the

8

Constitution and laws of the Nation.” Mitchum v.

Foster, 407 U.S. 225, 239 (1972). “The very purpose of

§ 1983 was to interpose the federal courts between the

States and the people, as guardians of the people’s

federal rights—to protect the people from

unconstitutional action under color of state law,

whether the action be executive, legislative, or

judicial.” Id. at 242 (quotation omitted). See also

Monroe v. Pape, 365 U.S. 167, 180 (1961) (“[O]ne

reason [Section 1983] was passed was to afford a

federal right in federal courts because * * *state laws

might not be enforced and claims of citizens to the

enjoyment of rights, privileges, and immunities

guaranteed by the Fourteenth Amendment might be

denied by the state agencies.”).

Section 1983 continues to be the primary

mechanism for victims of government abuse to

vindicate their rights in a federal forum. It’s the basis

of many of this Court’s landmark decisions

vindicating constitutional rights: equal protection in

Brown v. Board of Education and SFFA v. UNC, gun

rights in District of Columbia v. Heller and NYSRPA

v. Bruen, property rights in Fuentes v. Shevin and

Cedar Point Nursery v. Hassid, and free speech in

Tinker v. Des Moines Independent Community School

District and Citizens United v. FEC. Put simply, the

“high purposes of this unique remedy make it

appropriate to accord the statute a sweep as broad as

its language.” Wilson v. Garcia, 471 U.S. 261, 272

(1985) (quotation omitted). But despite this, the Court

has repeatedly imposed greater procedural barriers

on Section 1983 claims—atextually limiting the

statute’s broad remedial reach.

9

In the decades since Congress enacted

Section 1983, the Court has imposed additional

procedural barriers on victims of rights abuses. The

proliferation of these added barriers makes bringing

meritorious claims harder—requiring additional prefiling case development as plaintiffs are forced to

preempt a myriad of potential defenses that

government defendants now have at their disposal.

Cf. Burnett v. Grattan, 468 U.S. 42, 51 (1984) (“[A civil

rights plaintiff] must look ahead to the

responsibilities that immediately follow filing of a

complaint. He must be prepared to withstand various

responses, such as a motion to dismiss, as well as to

undertake additional discovery.”). Bringing a civil

rights lawsuit within a too short limitations period

was already difficult. But these procedural barriers

make it more so.

B. Overlapping procedural barriers make

bringing claims within a one-year

limitations period extremely difficult.

Section 1983 is a bulwark against government

abuse. But over the last six decades the Court has

imposed procedural barriers—all untethered from the

text and history of the statute—that make it harder

for victims of abuse to bring their claims, despite their

merit. Today, these procedural barriers are among

the practicalities that “[a]n appropriate limitations

period must be responsive to.” Id. at 50. These

doctrines overlap in ways that make it extremely

difficult for victims of government officials’ abuse to

prepare their claims within one year.

10

The Court should grant cert in this case because a

one-year statute of limitations is too short to enforce

the federal interests expressed in Section 1983. A oneyear statute of limitations “fails to take into account

practicalities that are involved in litigating federal

civil rights claims.” Ibid. Our experience at the

Institute for Justice confirms this. We often spend

months preparing our Section 1983 cases to ensure

that the claims of our clients—all victims of egregious

government abuse—aren’t dismissed on procedural

grounds. Many of our cases, even ones that are

ultimately successful before this Court, could not be

brought within a one-year limitations period.

Just this term, the Court heard a First

Amendment case that shows how untenable a oneyear limitations period is. This Court recently ruled

for Sylvia Gonzalez, a grandmother that sought to

give back to her community by serving on the City

Council. Gonzalez v. Trevino, 602 U.S. ___, 144 S. Ct.

1663 (2024) (per curiam). But Sylvia’s opposition to

the city manager put her in the crosshairs of the

mayor and others, who conspired to have her arrested

on trumped-up charges. With IJ’s help, Sylvia sued

for First Amendment retaliatory arrest. The case

would have been impossible to bring within one year

of Sylvia’s arrest. 2

Claims for retaliatory arrest when there is

probable cause require plaintiffs to present objective

evidence that others similarly situated were not

arrested for engaging in similar behavior. Nieves v.

2 Texas has a two-year limitations period. Tex. Civ. Prac. &

Rem. Code § 16.003.

11

Bartlett, 587 U.S. 391, 407–408 (2019). Meeting this

threshold requirement required months of work. On

top of the extensive case development and vetting

that IJ usually does, here we also needed to invest

time in making sure we could plausibly allege Sylvia

met Nieves’s standard. That required spending

months negotiating with Bexar County to collect data

about arrests. And because Bexar County only had

paper records, we had to physically go to the records

office to photocopy the relevant documents. This

process alone took around six months.

It would have been impossible to collect this

evidence and adequately prepare other aspects of the

case within a one-year limitations period. On top of

the objective evidence requirement, the complaint

also had to anticipate a myriad of other procedural

barriers that are common in Section 1983 litigation—

things like qualified immunity and municipal

liability. Unsurprisingly, when the defendants moved

to dismiss Sylvia’s claim, they not only argued that

Sylvia couldn’t meet the objective evidence

requirement. They also argued that her claims were

foreclosed by other procedural barriers. See Gonzalez

v. City of Castle Hills, 2021 WL 4046758, at *6–11

(W.D. Tex. Mar. 12, 2021) (addressing qualified

immunity and municipal liability defenses). Bringing

procedurally complicated cases like Sylvia’s requires

time to develop theories and facts, and to research

likely defenses. In this respect, Sylvia’s case is not

unique.

At IJ, we often spend months preparing to respond

to procedural defenses before filing the complaint.

Besides contending with procedural barriers like

12

plausibility pleading that affect all plaintiffs, diligent

attorneys bringing Section 1983 claims must also

anticipate responding to barriers specific to civil

rights litigation. We often have to do things like fight

over public information request productions to

support allegations of patterns of unconstitutional

behavior. See generally, e.g., Complaint, Taylor v.

Nocco, No. 8:21-cv-00555 (M.D. Fla. filed Mar. 10,

2021) (relying on public records request productions

to allege municipal policy of using flawed algorithm to

identify potential future violators and then harass

them out of the county through code enforcement and

other means). Or we may have to establish that

challenged conduct falls within the color-of-law

requirement. See, e.g., Mohamud v. Weyker, 2024 WL

1125536, at *8 (D. Minn. Mar. 25, 2024) (finding

allegation that officer acted under color of both state

and federal law unfounded) (appeal filed). To

overcome these types of barriers, we often spend a lot

of time before filing doing things like legal research or

fact development by reviewing bodycam footage or

interviewing witnesses. For example, in one case that

we expected would involve Heck-bar issues, 3 we

reviewed nearly 500 letters, over 200 pages of

invoices, and over 230 pages of timesheets to support

our allegations that a county prosecutor’s office

allowed an assistant prosecutor to moonlight as a law

clerk to the same judges that heard his cases for

nearly two decades. When bringing procedurally

3 We were right. This case is currently before the en banc

Fifth Circuit on whether Heck’s favorable termination requirement applies to non-custodial plaintiffs without access to a habeas remedy. See Wilson v. Midland County, 92 F.4th 1150

(2024) (granting en banc review).

13

complicated civil rights cases, there is no substitute

for the time spent perfecting claims.

Our experience shows that difficulties imposed on

civil rights plaintiffs by the proliferation of procedural

barriers impact a wide variety of claims. Although the

underlying dispute here arises from an incident of

police brutality, too short statutes of limitations and

other procedural barriers impact a much broader set

of cases. Petitioners are correct to note that claims of

police brutality may involve specific concerns that

make those claims particularly hard. But procedural

barriers to Section 1983 lawsuits shield a much

broader set of claims. Cf. Jason Tiezzi et al.,

Unaccountable: How Qualified Immunity Shields a

Wide Range of Government Abuses, Arbitrarily

Thwarts Civil Rights, and Fails to Fulfill Its

Promises, Inst. for Just. (Feb. 7, 2024), at 23 (“[O]nly

23% of the [federal qualified immunity appeals] we

studied fit the classic mold of police accused of

excessive force, showing that qualified immunity

shields a far broader range of government defendants

and conduct than many people think.”). See also id.

at 16 (non-law enforcement or prison official

defendants in federal qualified immunity appeals

“tended to be mayors or city managers; university or

school officials; prosecutors or judges; and child

protective service workers”).

When Section 1983 was enacted, it was intended

to ensure that victims of abuse could access a federal

forum to vindicate their rights. But the imposition of

judicially created procedural barriers makes it much

harder for plaintiffs to bring their claims within too

short limitations periods. Doctrines like the Nieves

14

objective evidence or Heck favorable termination

requirements

or

plausibility

pleading

for

discrimination or failure-to claims, mean that civil

rights plaintiffs and their attorneys must do months

of work long before suing.

The judicially imposed procedural barriers that

Section 1983 plaintiffs face are many. But two

warrant special attention because of their prevalence

in Section 1983 litigation: qualified immunity and

municipal liability. Neither of these doctrines were

anticipated when Section 1983 was enacted, nor when

statutes of limitations became a prominent feature of

our legal system. Cf. Tyler T. Ochoa & Andrew J.

Wistrich, The Puzzling Purposes of Statutes of

Limitations, 28 Pac. L.J. 453, 454 (1997) (noting the

long history of time limits). See also M’Cluny v.

Silliman, 28 U.S. (3 Pet.) 270 (1830) (first decision

holding forum state’s limitations period applied to

action arising under a federal statute without a

limitations period (applying the Judiciary Act of

1789)). Both doctrines force civil rights plaintiffs and

their attorneys to invest ever-greater resources into

pre-filing case development for fear that their

meritorious claims will be dismissed, all while the

limitations period ticks away.

Qualified

immunity.

Modern

qualified

immunity doctrine places civil rights plaintiffs at a

systematic disadvantage. 4 It protects government

4 Perhaps no doctrine has recently received more criticism

than qualified immunity. See William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45, 48 (2018) (noting qualified immunity has “come under increasing outside criticism”). A

15

officials—even those acting in bad faith with

premeditation—from liability unless a plaintiff can

show that at the time of the violation it was “clearly

established” that those precise actions were

unconstitutional. This forces plaintiffs to draft their

complaints with these concerns in mind. The

resulting difficulties are aggravated by very short

statutes of limitations as plaintiffs are forced to

conduct even more extensive factual and legal

research in anticipation of a qualified immunity

defense.

Under modern qualified immunity doctrine, it is

now not enough for a plaintiff to plead that a

government official violated their constitutional

rights. From the outset of the case, the plaintiff must

also anticipate how to respond to a defense of

qualified immunity. Cf. Johnson v. Mosely, 790 F.3d

649, 653 (6th Cir. 2015) (“[P]laintiff bears the burden

of showing that defendants are not entitled to

comprehensive discussion of the issues with qualified immunity

is beyond the scope of this brief. But suffice it to say, there are

strong arguments that the doctrine cannot be justified in law,

history, or policy. See generally, e.g., Jason Tiezzi et al., Unaccountable: How Qualified Immunity Shields a Wide Range of

Government Abuses, Arbitrarily Thwarts Civil Rights, and Fails

to Fulfill Its Promises, Inst. for Just. (Feb. 7, 2024); Alexander

A. Reinert, Qualified Immunity’s Flawed Foundation, 111 Calif.

L. Rev. 201 (2023); Joanna C. Schwartz, Qualified Immunity’s

Boldest Lie, 88 U. Chi. L. Rev 605 (2021); Jay Schweikert, Qualified Immunity: A Legal, Practical, and Moral Failure, Cato Inst.

(Sept. 14, 2020); Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018); Baxter v.

Bracey, 140 S. Ct. 1862 (2020) (Thomas, J., dissenting from denial of certiorari); Kisela v. Hughes, 584 U.S. 100, 121 (2018) (Sotomayor, J., dissenting); Ziglar v. Abbasi, 582 U.S. 120, 156–160

(2017) (Thomas, J., concurring).

16

qualified immunity.”). This requires extensive

preparation: Complaints must anticipate arguments

that there is no clearly established law in the

jurisdiction or that—even if there is clearly

established law—the facts in the case are not similar

enough to previous cases to put an official on notice

that their conduct was wrongful.

A properly pled complaint anticipating a qualified

immunity defense often requires months of pre-filing

case development and legal research. In jurisdictions

where the statute of limitations is very short, a

plaintiff may not have the luxury of investing that

much time before the limitations period expires—

putting them at risk that their meritorious claims

may be dismissed before any factual development.

Considering that just recognizing the viability of a

claim and developing a productive lawyer-client

relationship take time, also needing to be prepared to

respond to a qualified immunity defense makes

bringing a claim within a year nearly impossible. In

the context of modern qualified immunity doctrine, a

one-year statute of limitations does not reflect the

federal interests expressed in Section 1983. Cf. Lake

Country Ests., 440 U.S. at 399–400 (“[Section] 1983

must be given a liberal construction.”).

Statutes of limitations applied to Section 1983

claims should reflect its remedial purpose, but the

overlap of too short limitations periods and qualified

immunity prevents that by atextually and

ahistorically insulating government officials from

liability. Qualified immunity in no way resembles the

legal landscape when Congress enacted Section 1983.

Before the Court’s creation of qualified immunity in

17

1982, government workers were subject to strict

liability for their unconstitutional acts, even when

those acts were good-faith errors. See Little v.

Barreme, 6 U.S. (2 Cranch) 170 (1804). Historically,

the Court could “only look to the questions, whether

the laws had been violated; and if they were, justice

demand[ed], that the injured party should receive a

suitable redress.” The Apollon, 22 U.S. (9 Wheat.) 362,

367 (1824). As Justice Thomas has noted, “[i]n the

early Republic, an array of writs allowed individuals

to test the legality of government conduct by filing

suit against government officials for money damages

payable by the officer.” Tanzin v. Tanvir, 592 U.S. 43,

49 (2020) (cleaned up). It was against this backdrop

of strict liability that Congress enacted Section 1983.

The Court’s subsequent creation of qualified

immunity has displaced this strict liability regime,

making it increasingly difficult to bring claims

against government officials quickly. Starting in

1967, the Court abandoned strict liability and began

creating broad immunities to official liability,

including qualified immunity. At first, the Court

articulated a defense of “good faith and probable

cause.” Pierson v. Ray, 386 U.S. 547, 556 (1967). The

defense required officers to show they acted in good

faith and reasonably because “[a]ny lesser standard

would deny much of the promise of § 1983,” especially

considering its “categorical remedial language.”

Wood, 420 U.S. at 322. But this changed in 1982 when

the Court decided Harlow v. Fitzgerald, the genesis of

modern qualified immunity.

In Harlow v. Fitzgerald, the Court entitled all

government officials to qualified immunity by default.

18

Setting aside the clear text of Section 1983, the Court

relied on policy concerns—litigation costs—to hold

that “government officials * * * generally are shielded

from liability for civil damages insofar as their

conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person

should have known.” Harlow, 457 U.S. at 818. There

“the Court completely reformulated qualified

immunity along principles not at all embodied in the

common law.” Anderson v. Creighton, 483 U.S. 635,

645 (1987). And this reformulation has continued as

the Court has repeatedly narrowed the contours of

“clearly established” law. Compare id. at 640 (“The

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is

doing violates that right.”), with Wilson v. Layne, 526

U.S. 603, 617 (1999) (requiring “controlling authority

in the[] jurisdiction at the time of the incident” or “a

consensus of cases of persuasive authority”), and

Mullenix v. Luna, 577 U.S. 7, 12 (2015) (“Th[e] inquiry

must be undertaken in light of the specific context of

the case, not as a broad general proposition.” (cleaned

up)). Today, for a plaintiff to prevail, he must show

that it’s “beyond debate” that the violation is clearly

established in the relevant circuit—and some even

question whether circuit precedent is enough. Wesby,

583 U.S. at 63. See also Boyd v. McNamara, 74 F.4th

662, 672 (5th Cir. 2023) (Oldham, J., concurring in

part and dissenting in part) (“But the Supreme Court

has never authorized [relying on circuit precedent to

clearly establish the law].”). This means that

plaintiffs must invest a lot of time conducting legal

research to ensure that they can argue—from the

earliest stages of litigation—that the violation was

clearly established.

19

For civil rights plaintiffs, the practical

consequences of Harlow and its progeny are

significant: They must invest time preparing to

respond to a qualified immunity defense—usually

needing to identify cases with nearly identical facts

(even before there’s been any factual development

through discovery) to meet the atextual and

ahistorical “clearly established” standard. And when

the applicable statute of limitations is only one year,

they must do so quickly or lose their federal forum.

Municipal liability. Municipalities are proper

defendants under Section 1983 when the claims arise

from a “policy or custom” that caused the

constitutional violation, Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 690, 694 (1978), but pleading municipal

liability is a difficult and time-consuming hurdle for

plaintiffs to overcome. Most municipal liability cases

involve claims of unconstitutional “practices so

persistent and widespread as to practically have the

force of law.” Connick, 563 U.S. at 61. That means

that plaintiffs must plausibly allege a persistent

pattern of unconstitutional action before discovery—

something that will usually take months of research

and is untenable within a one-year limitations period.

Municipal liability claims often include things like

negligent hiring or failure to train or supervise. But

because the Court sometimes views such claims as

“tenuous,” it has imposed the “stringent standard” of

“deliberate indifference.” Ibid. (discussing failure to

train). In such cases, the “city’s policy of inaction”

must be so extreme that it “is the functional

equivalent of the decision by the city itself to violate

the Constitution.” Id. at 61–62 (cleaned up). And so,

20

the Court generally requires a “pattern of similar

constitutional violations” because “[w]ithout notice” of

the constitutional deficiency, the “decisionmakers can

hardly be said to have deliberately chosen [the]

program that will cause violations of constitutional

rights.” Id. at 62.

For a plaintiff seeking to bring a Section 1983

claim against a municipality, the Court’s requirement

that a “policy or custom” caused the violation presents

an obvious difficulty:

Before getting to discovery—where a plaintiff

might be able to unearth evidence about prior

misconduct or hiring decisions—they must first

set out sufficient facts that state a ‘plausible’

entitlement to relief * * * . It is not enough to say

that there is an unconstitutional policy, practice,

or custom. The plaintiff also has to include

evidence of a policy on its face, or a decision to hire

someone whose past conduct made it highly likely

that they would violate the Constitution in the

manner that they did, or past incidents of

misconduct so similar that they made the need for

additional training or supervision obvious. But at

the complaint drafting stage, a person who claims

their rights have been violated does not have

access to evidence of internal policies, or hiring

decisions, or past allegations and investigations of

misconduct. That is precisely what discovery is for.

Joanna Schwartz, Shielded: How the Police Became

Untouchable 108 (2023). Plaintiffs often attempt to

plead a pattern of unconstitutional behavior by citing

other evidence, but that may not be enough. See, e.g.,

21

Plowright v. Miami-Dade County, 102 F.4th 1358,

1370–1371 (2024) (affirming dismissal of municipal

liability claim because a newspaper article detailing

five incidents of shooting family pets and quoting a

senior department official on the need to train on

dealing with pets could not establish policy or

custom); R.A., 206 F. Supp. 3d at 803–804 (dismissing

municipal liability claim because neither nine

complaints in a personnel file nor seven newspaper

articles were sufficient to establish a policy or custom

of sexual misconduct). It’s precisely because of these

stringent requirements that IJ attorneys often spend

months fighting over public records requests,

traveling across the country to interview witnesses or

collect physical documents, or even conducting

empirical studies to support our claims. But these

aren’t the only difficulties.

Relying on the text and history of Section 1983,

the Court has rejected the application of qualified

immunity to municipalities. Owen v. City of

Independence, 445 U.S. 622, 650 (1980). But some

circuits import qualified immunity principles into

municipal liability claims, applying a clearlyestablished-law inquiry. See Bustillos, 891 F.3d

at 222; Szabla v. City of Brooklyn Park, 486 F.3d 385,

393 (8th Cir. 2017) (en banc); Hagans v. Frankling

Cnty. Sheriff’s Off., 695 F.3d 505, 511 (6th Cir. 2012);

Joyce v. Town of Tewksbury, 112 F.3d 19, 23 (1st Cir.

1997) (en banc). This means that plaintiffs in some

parts of the country—including in all jurisdictions

with one-year limitations periods for Section 1983

22

claims5—must not only contend with the inherent

difficulties of stating a claim for deliberate

indifference without having gone through discovery.

They must also invest time framing their claims to

overcome a clearly-established-law defense.

Bringing claims of municipal liability within one

year is nearly impossible considering these

requirements. To state a claim that’s likely to survive

a motion to dismiss, the plaintiff needs to conduct

extensive factual and legal research—essentially

proving a pattern of unconstitutionality before

receiving any discovery. In our experience, that often

requires that plaintiffs and their attorneys spend

months collecting evidence through public records

requests, on-the-ground investigation, or other

means. And, like with qualified immunity, the

plaintiff may also need to contend with the clearlyestablished-law standard. For at least some plaintiffs,

one year will not be enough.

*

*

*

Qualified immunity and municipal liability

exemplify how judicially imposed procedural barriers

make bringing Section 1983 claims within one year

nearly impossible, but they are not the only barriers.

Sometimes they overlap with more claim-specific

concerns like the Nieves standard or the Heck bar.

Other times, they aggravate more general litigation

concerns by, for example, effectively heightening the

plausibility pleading standard. When a statute of

limitations is very short, these types of procedural

5 See Ky. Rev. Stat. Ann. § 413.140; Tenn. Code Ann. § 28-3-

104; P.R. Laws Ann. tit. 31, § 5298(2).

23

barriers—none of which reflect Section 1983’s textual

command or were envisioned when the statute was

enacted—interact to foreclose plaintiffs’ meritorious

claims as untimely.

II.

Clarifying that a One-Year Statute of

Limitations is Too Short Won’t Create

Additional Unmeritorious Litigation.

Too short statutes of limitations incentivize

attorneys to move fast, not smart. Very short statutes

of limitations force attorneys to file cases quickly for

fear that, if they do not, then their claims will be

foreclosed. Attorneys have an ethical obligation to

zealously represent their clients, and that includes

the obligation to bring claims before the limitations

period expires. The overlap of too short limitations

periods

and

other

procedural

barriers

disproportionately affects those lawyers most

adamant about satisfying their diligence obligations.

When a statute of limitations is very short, diligent

attorneys are forced to bring cases quickly—before

they’ve had a sufficient opportunity to vet them.

When attorneys have sufficient time to vet and

perfect their cases, everyone wins: Victims of

egregious government abuse have their day in court—

vindicating their constitutional rights and enforcing

the promise of Section 1983. And, at the same time,

weak claims are better vetted and kept out of court.

Anecdotally, it makes sense that too short

limitations periods may lead to more unmeritorious

litigation. Much of litigators’ work takes place prefiling, when they are vetting cases, researching the

issues, and drafting the complaint. Attorneys

24

representing civil rights plaintiffs generally spend a

lot of time vetting cases. And, in fact, diligent civil

rights attorneys account for the many procedural

hurdles that they’ll face when bringing a claim. Cf.

Alexander A. Reinert, Does Qualified Immunity

Matter?, 8 U. St. Thomas L.J. 477, 492 (2011)

(“[Attorneys] confirmed that concerns about the

qualified immunity defense play a substantial role at

the screening stage.”). For more careless attorneys, a

short statute of limitations isn’t a deterrent to filing

an unmeritorious claim because they’d have little

reason to vet the case anyway. Too short limitations

periods create more unmeritorious litigation because

diligent attorneys have insufficient time to screen out

unsubstantiated claims or to resolve claims through

alternative means.

Holding a one-year limitations period is too short

for Section 1983 claims will not cause a deluge of

unmeritorious litigation. Based on our experience, it

seems likely that the opposite will be true: Attorneys

will be better able to screen out unmeritorious cases.

Experience also confirms that there is little reason to

worry holding that a one-year limitations period is too

short would lead to more cases. Most jurisdictions’

residual personal injury limitations periods exceed

one year, sometimes by a lot. See, e.g., Me. Stat. tit.

14, § 752 (six years). But federal courts in those

jurisdictions are just as capable of managing their

dockets as the small minority with one-year

limitations periods.

25

Conclusion

Too short statutes of limitations erode the federal

interests expressed in the text of Section 1983. Worse

still, the proliferation of overlapping judicially

created procedural barriers since Section 1983 was

enacted makes it even harder for plaintiffs to bring

their claims within tight limitations periods. These

difficulties compound, depriving individuals with

meritorious claims—of many kinds—of a federal

forum.

The Court should grant the petition for certiorari.

Respectfully submitted,

Katrin Marquez

INSTITUTE FOR JUSTICE

2 S. Biscayne Blvd.

Ste. 3180

Miami, FL 33131

(305) 721-1600

July 22, 2024

Anya Bidwell

Counsel of Record

Patrick Jaicomo

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.

Ste. 900

Arlington, VA 22203

(703) 682-9320

abidwell@ij.org

Counsel for Amicus Curiae