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

No. 23-1332

lNTHE

~upreme QCourt of tbe mntteb ~tate~

JARIUS BROWN,

Petitioner,

us.

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 ORLEANS PUBLIC DEFENDERS

AS AMICUS CURIAE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

CYNTHIA M. OHLENFORST

Counsel of Record

K&L GATES LLP

1717 Main St. Ste. 2800

Dallas, TX 75201

(2 14) 939-5512

Cindy. Ohlen/orst@klgates.com

LINDA C. ODOM

JEREMY M. McLAUGHLIN

AsHLEY LEE HOGEWOOD , III

RODERICK P. HATCH

JOSHUAL. DURHAM

K&L GATES LLP

1

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ....................... l

SUMMARY OF ARGUMENT ................................ 2

ARGUMENT .......................................................... 3

I.

II .

Louisiana's one-year limitations period is

inconsistent with federal interests ............. 3

A.

Short limitations periods are

particularly onerous when litigating

Section 1983 claims .......................... 3

B.

Application of short limitations

periods to Section 1983 claims

u ndermines Congress' purpose in

enacting the statute .......................... 8

C.

Louisiana's recent amendment to its

law u nderscores the importance of

this limitations issue ........................ 9

28 U.S.C. § 1658 provides a suitable federal

statute of limitations consistent with

Section 1983's purpose .............................. 10

A.

The Court's prior decisions illustrate

the need to provide a statute of

limitations for Section 1983 that is

consistent with federal law ............ 11

B.

Section 1658 provides a statute of

limitations for Section 1983 cases

that is consistent with federal law. 13

CONCLUSION ............................ .... ..................... 15

11

TABLE OF AUTHORITIES

Page(s)

Cases

Burnett v. Grattan,

468 U.S . 42 (1984) ....................................... passim

Hardin v. Straub,

490 U.S . 536 (1989) ........ .... ... ............................ 8, 9

Jones v. R.R. Donnelley,

541 U.S . 369 (200 4) ....... .......... ....................... .4, 15

Mitchum v. Foster,

407 U.S . 225 (1972) ....... ................ ...................... 10

Monroe v. Pape,

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

Occidental Life Ins. Co. v. EEOC,

432 U.S . 355 (1977) ......................... ............... 4

Owens v. Okure,

488 U.S . 235 (1989) ...... ......... ........................ 2, 7, 9

Robertson v. Wegmann,

436 U.S . 584 (1978) ...... ............... ...................... 8, 9

Wallace v. Kato,

549 U.S . 384 (2007) ............................................... 6

Wilson v. Garcia,

4 71 U.S . 261 (1985) ................................ 12, 13

Statutes

28 U.S.C. § 1658 ............................................... passim

42 U.S.C. § 1983 ................................................ passim

2024 La. Sess. Law Serv. 423 ..... .............................. 10

1

INTEREST OF AMICUS CURIAE

Orleans Public Defenders ("OPD") is a not-forprofit organization created in the wake of the criminal

justice system failure following Hurricane Katrina.

OPD serves thousands of individuals unable to afford

an attorney-approximately 85 to 90 percent of all

criminal defendants in Orleans Parish. Congress

enacted 42 U.S.C. § 1983 to provide vulnerable

individuals, such as OPD's clients, a valuable

mechanism to protect their constitutional and

statutory rights. Allowing jurisdictions to apply an

unreasonably short statute of limitations, such as the

one-year statute at issue here, circumvents this

important protection and is therefore inconsistent

with Congress' intent. To safeguard the rights of the

substantial community that OPD serves, OPD

submits this a,micus brief in support of Petitioner. 1, 2

Amicus certifies that no counsel for any party authored this

brief in whole or in part, no party or its counsel made any

monetary contribution intended to fund the preparation or

submission of this brief, and that no person or entity other than

amicus or its counsel made such a contribution.

2 Amicus certifies that counsel for the respondent was provided

with 10-day notice as required by the rules of this Court.

1

2

SUMMARY OF ARGUMENT

42 U.S.C. § 1983 provides a federal remedy for

certain violations of individuals' constitutional rights,

including for the type of police misconduct at issue in

this case. Section 1983 does not include an express

statute of limitations, which has triggered decades of

litigation with widely inconsistent results. Litigants

with identical claims may enjoy a limitations period

as long as six years, or face a limitations period as

brief as one year, depending on their jurisdiction.

This amicus brief focuses on two key issues; each

one merits granting certiorari in this case. First, this

case presents the Court with a perfect opportunity to

address the question it left open 35 years ago:

whether "applying a 1-year limitations period to §

1983 actions would be inconsistent with federal

interests." Owens v. Okure, 488 U.S. 235, 251 n.13

(1989). Second, this case presents an opportunity for

the Court to examine the suitability of a federal

statute of limitations enacted to preserve litigants'

remedies for constitutional violations as a more

appropriate rule.

These issues are important not only to preserve

Jarius Brown's federal rights , but also to provide a

remedy for thousands of criminal defendants and

other individuals, in and outside of Louisiana, who

have suffered police misconduct and other significant

violations of their constitutional rights. Amicus urges

the Court to address these critical issues and ensure

that Section 1983 serves its intended purpose: to offer

a meaningful remedy to, and a neutral, federal forum

for, individuals whose constitutional rights have been

violated.

3

This Court should grant Petitioner's request for

certiorari, find the one-year limitations period is too

short for Section 1983 actions, and adopt 42 U.S.C. §

1658's four-year limitations period as the proper

analogue for Section 1983 claims.

ARGUMENT

I. Louisiana's one-year limitations period is

inconsistent with federal interests.

As this Court has instructed (and as further

explained in the petition for certiorari), if no suitable

federal rule exists, courts borrow the statute of

limitations of the applicable state or territory.

However, because of "the predominance of the federal

interest," courts apply state law "only if it is not

inconsistent with the Constitution and laws of the

United States." Burnett v. Grattan, 468 U.S. 42, 48

(1984) (internal quotations marks omitted) (emphasis

added).

The "central objective of§ 1983" is "ensur[ing] that

individuals whose federal constitutional or statutory

rights are abridged may recover damages or secure

injunctive relief." Id. at 55. Short limitations periods,

such as the one-year period at issue here, frustrat e

that

primary

objective.

Accordingly,

the

predominance of the federal interests at the heart of

Section 1983 precludes the application of such

harshly brief limitations periods.

A.

Short limitations periods are particularly

onerous when litigating S ection 1983

claims.

This Court has cautioned that supplement ing

Section 1983 with state law is inappropriate "if it fails

4

to take into account practicalities that are involved in

litigating" the federal claim. Id. at 50. Louisiana's law

does just that.

Such practicalities, based in federal law, are not

considered by state legislatures when "devis [ing] their

[own] limitations periods." Occidental Life Ins. Co. v.

EEOC, 432 U. S. 355, 367 (1977) . The Court has

therefore concluded that "it is the duty of the federal

courts to assure that the importation of state law will

not frustrate or interfere with the implementation of

national policies." Id. In bringing substance to the

"dominant" national policy underpinning Section

1983-that civil rights actions "belong in court"-the

Court in Burnett recognized the unique difficulties of

litigating these claims. 468 U.S. at 50. Injured

persons must:

(1) recognize the constitutional nature of their

lilJUry;

(2)

find and retain specialized counsel; and

(3)

conduct investigations, determine damages,

and execute legal documents and filings.

S ee id. at 50-51. A residual one-year limitations

period fails to consider such complexities at each step

of developing a potential Section 1983 claim.

First, harmed individuals often may not recognize

the constitutional nature of their injury absent the

assistance of counsel. In many instances, however,

they may not be able to obtain representation,

whether civil or criminal, until well after the

limitations period has run. Indeed, OPD is, in some

cases, appointed over two years after the incident

5

giving rise to a Section 1983 claim. 3 In other cases,

criminal representation may be too limited in

duration or scope. Again, OPD's experience is

instructive: even when a defendant is timely

represented by OPD at time of arrest and initial bond

setting, in most instances, by judicial order, that

representation terminates upon pretrial release from

custody and until possible reappointment at a later

arraignment date-often months, if not years , after

the incident giving rise to the Section 1983 claim.

Thus, short limitations periods, such as the one-year

limitations period applied by the Fifth Circuit in this

case, are exceedingly impractical, especially for

litigants who cannot afford private counsel.

Second, it is impractical to require Section 1983

claimants to find and retain counsel for their civil

OPD-appointed clients may go many months with gaps in

representation. For example, the court minutes for an OPD

client arrested on May 20, 2020 read: ''The appointment will last

as long as the defendant is incarcerated. If the defendant is

released they must obtain private counsel or apply for

representation at the OPD office." The client posted bond on May

22, 2020 and OPD was not appointed again until arraignment

on July 27, 2022. The court minutes for another client arrested

on April 7, 2021 read: "[T]his appointment will last as long as

the defendant is incarcerated-if the defendant makes bond and

is released they must obtain private counsel or apply for

representation at the public defenders office." The client posted

bond on April 9, 2021 and was unrepresented until OPD was reappointed on May 22, 2022. The com-t minutes for a third client

arrested on January 17, 2021 read: "[T]his appointment will last

as long as the defendant is incarcerated-if t he defendant makes

bond and is released they must obtain private counsel or apply

for representation at the public defender's office." The client

posted bond on January 19, 2021 and was unrepresented until

June 1, 2022.

3

6

claims while also simultaneously confronting their

own criminal charges. Not only do Section 1983

claims operate in a highly specialized area oflaw, but

they can often arise in the context of parallel criminal

charges, which exacerbate the practical and legal

limitations upon an injured party's time and

resources to obtain competent counsel. Victims of civil

rights abuses must also determine whether their

Section 1983 claim calls into question the validity of

a conviction or criminal proceeding. See 3 ahmod,

Civil Rights & Civil Liberties Litigation: The Law of

Section 1983, § 9:59. As a result, the practical effect of

the one-year period is that every Section 1983 litigant

charged with a crime must pursue parallel civil

litigation during her prosecution, or else risk a court

barring the claim based on the expired prescriptive

period. See Wallace v. Kato, 549 U.S. 384, 394 (2007).

A one-year statute of limitations is thus impractical

and unfair because it requires potential Section 1983

claimants to face concurrent criminal charges (and

the accompanying risks of retribution in the form of

added charges, thwarted plea negotiations, or

increased sentence recommendations) thereby

exhausting the time and resources they need to seek

and retain specialized counsel for their civil claim.

Third, conducting investigations, determining

damages , and executing legal documents and filings

within one year is exceedingly difficult due to the

violence or other abuse of power that often underlies

Section 1983 claims and the complexity of such

claims. Indeed, the Court has acknowledged that

Section 1983 injuries to personal rights are not

immediately apparent because the "'constitutional

dimensions of the tort may not be"' readily

7

understood. Owens, 488 U.S. at 238 (quoting Okure v.

Owens, 816 F.2d 45, 48 (2d Cir. 1987)). Exploring such

constitutional dimensions requires intensive initial

investigations. In addition to standard pretrial

practices, such as determining damages and

executing various filings, Section 1983 claimants

must conduct complex constitutional analyses and

navigate issues such as qualified immunity. For the

many Section 1983 claims that arise in the context of

police brutality, a victim's first priority is physical

recovery. For OPD's clients, the added mental toll of

such violence and incarceration is often combined

with arduous pretrial release conditions, such as

curfew, use of an ankle monitor, frequent status

hearings, as well as recurring financial obligations,

such as routine payments toward exorbitant bail

amounts, ankle monitor fees, drug testing, courtordered classes, and frequent transportation to and

from court. Often, OPD's clients lose their jobs in the

wake of their destabilizing arrests; sometimes, they

lose their homes.

Both individually and in tandem, these realities

present serious obstacles to individuals' ability to

pursue civil rights claims within one year. Indeed, the

added need to recover from their injuries, including

hospital stays, physical therapy, and other

treatments often preclude victims' meaningful

participation in the investigation for extended periods

of time. The underlying violence and complexity of

these claims render victims incapable of pursuing

their claims within one year. Accordingly, such a

short limitations period is clearly counter to the

federal interests underpinning Section 1983.

8

For all these reasons, short limitations periods,

such as the one-year period here, present difficult,

practical challenges for indigent litigants with

otherwise valid Section 1983 claims and should be

addressed by this Court.

B.

Application of short limitations periods to

Section 1983 claims undermines Congress'

purpose in enacting the statute.

To determine if a state law is inconsistent with

federal law, "courts must look not only at particular

federal statutes and constitutional provisions, but

also at 'the policies expressed in [them]."' Robertson v.

Wegmann, 436 U.S. 584, 590 (1978) (quoting Sullivan

v. Little Hunting Park, Inc. , 396 U.S. 229, 240 (1969)).

The goal of Section 1983 is to "give a remedy to parties

deprived of constitutional rights , privileges and

immunities by an official's abuse of his position."

Monroe v. Pape, 365 U.S. 167, 172 (1961). That policy

is accomplished by providing a remedy for

persons whose civil rights have been violated, and by

deterring the abuse of state power. See Burnett, 468

U.S. at 53.

Achieving these important goals depends, of

course, on having a realistic opportunity to seek

redress through the courts. Mr. Brown's experiencealong with that of many other OPD clients and other

indigent litigants, discussed in the previous sectiondemonstrates that bringing suit within a short period

of time can be a hurdle so high that it is "manifestly

inconsistent with [Section 1983's] central objective" of

providing compensation to injured parties. Id. at 55;

see also Hardin v. Straub , 490 U.S. 536, 543 (1989)

(tolling a statute of limitations serves "§ 1983's

9

compensation goal" because it enhances the "ability to

bring suit and recover damages for injuries").

Section 1983 actions also provide important

deterrents to abuses of power by state actors. Indeed,

the risk of an award of compensatory damages

against state actors is intended not only to

compensate victims, but also to serve as a formidable

deterrent to unconstitutional conduct. As this Court

has recognized, if a person has a realistic ability to file

suit, then "[a] state official contemplating illegal

activity must always be prepared to face the prospect

of a§ 1983 action being filed against him." Robertson,

436 U.S. at 592. Conversely, where a limitations

period is too short, bad actors have "knowledge that

he or she might escape a challenge to [bad] conduct

within a brief period of time." Hardin, 490 U.S. at 543.

In light of these concerns, this Court has left open

the question of whether a statute of limitations as

short as one year may be too short to permit pursuit

of Section 1983 claims. See Owens, 488 U.S. at 251

n.13. As discussed above , short limitations periods

create numerous obstacles for OPD's clients and

similarly situated litigants nationwide. For all these

reasons, Louisiana's one-year limitations period is

inconsistent with Section 1983.

C.

Louisiana's recent amendment to its law

underscores the importance of this

limitations issue.

When enacting Section 1983, Congress "was

concerned that state instrumentalities could not

protect [federal] rights; it realized that state officers

might, in fact, be antipathetic to the vindication of

those rights; and it believed that these failings

10

extended to the state courts." Mitchum v. Foster, 407

U.S. 225, 242 (1972). Louisiana recently lengthened

the applicable statute of limitations from one year to

two years. See 2024 La. Sess. Law Serv. Act 423.

While the state's recognition that a longer statute of

limitations was needed, the change in the law

demonstrates that Section 1983 litigants' federal

rights are subject to the changing views of state

legislatures dealing with state issues. At least three

other jurisdictions still have one-year limitations

periods, and many more could adopt the same

limitations period (or an even shorter one) at any

time. This reliance on states and territories to provide

adequate statutes of limitations is at odds with

Congress' concern that states and territories could

not, or would not, protect federal rights.

II. 28 U.S.C. § 1658 provides a suitable federal

statute of limitations consistent with Section

1983's purpose.

This Court should grant certiorari to address

whether the federal four-year statute of limitations in

28 U.S.C. § 1658, which was enacted after the Court

turned to state statutes as guideposts, is more

appropriate for Section 1983 claims than the existing

patchwork of inconsistent state statutes and court

decisions applying them.

Statutes of limitations can provide a measure of

predictability and consistency to litigants, but not

when the limitations periods are neither predictable

nor consistent. As the Court's prior Section 1983

decisions illustrate, the quest to determine an

appropriate Section 1983 statute of limitations by

referencing state limitations periods has been

11

frustrating for both courts and litigants. Adopting

Section 1658's four-year limitations period would

conclusively resolve the issue presented by this case.

Doing so would also provide a clear rule entirely

consistent with the Court's long-standing focus on the

meaning and intent of Section 1983.

A.

The Court's prior decisions illustrate the

need to provide a statute of limitations for

Section 1983 that is consistent with federal

fow.

The trio of Section 1983 opinions the Court issued

in the 1980s-well before enactment of Section

1658-emphasized the need to "ensure that

individuals whose federal constitutional or statutory

rights are abridged may recover damages or secure

injunctive relief." Burnett, 468 U.S. at 55. To that

end, this Court instructed: "First, courts are to look to

the laws of the United States so far as such laws are

suitable to carry [the civil and criminal civil rights

statutes] into effect." Id. at 4 7-48 (cleaned u p). Thus,

Congress directed courts to adopt a suitable federal

statute of limitations, if one exists. Id. at 48.

At the time Burnett was decided (prior to

enactment of Section 1658), the Court determined

that, in the absence of a suitable federal law, courts

should consider the relevant state's common law .

However, the Court cautioned that state law should

be applied only if consistent with the U.S.

Constitution and laws. See id. Burnett thus laid the

groundwork for applying a state standard, but only if

(1) there is no suitable federal law, and (2) the state

law is consistent with t he federal Constitution and

12

laws. Prior to Section 1658, there was no such suitable

federal law. Now there is.

Reliance on state law raised additional issues,

including which specific state statut es of limit a tion

and t olling provisions should apply. Litigation

regarding these questions and t he resulting

uncertainty and inconsistency across the United

St ates have continued for forty years. In additional

guidance only one year after Burnett, the Court

confirmed in Wilson u. Garcia that the correct Section

1983 statute of limitations is a federal question and

actions under the statute should be categorized as

personal injury actions for limitations purposes. See

471 U.S. 261 (1985). This additional guidance, though

helpful, left the door open for cont inuing uncertainty

in states with multiple tort limitations periods.

The Court's subsequent 1989 decision in Owens

only partially resolved the issue. There, the Court

affirmed t hat application of a three-year st atute of

limit a tions was not inconsistent with the federal

interests underlying Section 1983. However, the

Court expressly declined to rule on whether a oneyear statute of limitat ions would be too short to

survive the three-part Burnett t est. Again, as in

Burnett and Wilson, the Court affirmed the

importance of state limit ations periods being

consist ent with federal interests and Section 1983.

The Louisiana st atute of limitations a t issue fails

to meet any of the conditions articulat ed by this trio

of cases. It does not satisfy the Burnett three-step

analysis, nor does it satisfy the insistence of Wilson

and Owens (consistent with Burnett) t hat a st ate's

13

limitations period can apply only when it is consistent

with the federal interests underlying Section 1983.

B.

Section 1658 provides a statute of

limitations for Section 1983 cases that is

consistent with federal law.

Notably, Burnett, Wilson, and Owens were all

decided prior to the enactment of Section 1658. Thus,

in all three cases, the Court did not have any federal

law providing a "suitable" statute of limitations to

meet the first step of the Burnett test. With the

enactment of Section 1658, the Court now has a viable

path to end its inquiry at that first step and avoid

complex analyses of state-law limitations periods

altogether. At a minimum, the Court has the

opportunity to confirm that the Section 1658

limitations period is appropriate for cases in which

state limitations are too short to be consistent with

the federal interests underlying Section 1983.

Section 1658, which provides a federal four-year

statute of limitations for actions arising under an Act

of Congress enacted after December 1, 1990, offers the

Court a strong federal statute of limitations analogue

for Section 1983 actions. The federal statute offers a

point of reference that was not available when the

1980s trio of cases was decided. Now the Court can

resolve the untenable situation facing Mr. Brown and

many others by providing them a reasonable amount

of time to pursue their federal claims. Without action

by the Court, a state (like Louisiana in this case) can

effectively deny Mr. Brown (and many others) the

federal rights provided by Section 1983.

The Court addressed Section 1658 in Jones v. R.R.

Donnelley, where it traced the history and the

14

challenges created by Congress' failure to enact a

uniform statute of limitations, including "a vast

amount of litigation" and "a host of issues that

required resolution on a statute-by-statute basis." 541

U .S. 369, 377-78 (2004). Even when courts were able

to identify the appropriate state statute, borrowing

state limitations periods resulted in uncertainty for

both plaintiffs and defendants, as a plaintiff alleging

a federal claim in State A would find herself barred

by the local statute of limitations while a plaintiff

raising the same claim in State B would be permitted

to proceed.

In Jones , this Court adopted a broad reading of

Section 1658, concluding that it applied on its face "if

the plaintiff's claim against the defendant was made

possible by a post-1990 enactment." Id. at 382. In so

holding, the Court emphasized that Congress' goal in

enacting Section 1658 was to cure the numerous

problems arising from borrowing local jurisdictions'

statutes of limitations. The Court further noted that

the prospective nature of Section 1658 was not a

departure from this underlying goal; instead, it was a

concession made to preserve settled expectations .

Thus, Section 1658 "spares federal judges and

litigants the need to identify the appropriate state

statute of limitations to apply to new claims but

leaves in place the 'borrowed' limitations periods for

pre-existing causes of action, with respect to which

the difficult work already has been done." Id. For

Section 1983 claims, however, that work is not yet

done. Owens explained that a court may adopt a

statute of limitations of at least three years. But this

Court has never articulated a rule for limitations

periods shorter than three years. Simply put, no one

15

knows how brief is too brief for a limitations period to

apply to Section 1983 claims. Thus, the concern for

settled expectations in Jones is not present here.

Even if Section 1658 does not apply on its face to

Mr. Brown's claims, it nevertheless provides a

"suitable" federal standard, at least when the

alternative state law period is less that the three -year

minimum established in Owens . Relying on the

Section 1658 limitations period in this circumstance

both preserves settled expectations and fidelity to

Burnett's instruction that courts should first look to

federal analogues for a suitable rule.

Applying the Section 1658 standard to Mr.

Brown's case and to others in states whose statutes of

limitations unreasonably restrict individuals' access

to federally-granted rights also serves this Court's

well-articulated directive that state statutes of

limitations may apply to Section 1983 claims only if

(1) there is no suitable federal law, and (2) state law

is consistent with the federal Constitution and laws.

CONCLUSION

Amicus curiae Orleans Public Defenders

respectfully requests that the Court grant Mr. Jarius

Brown's Petition for Writ of Certiorari and confirm

that a one-year state statute of limitations should not

apply to an individual's Section 1983 federal claims,

and that the Section 1658 federal, four -year statute of

limitations is the more appropriate limitations period

for Mr. Brown-and for others who, in the absence of

this Court's guidance, will be denied their Section

1983 rights.

16

Respectfully submitted,

CYNTHIA M. OHLENFORST

Counsel of R ecord

K&L GATES LLP

1717 Main St. Ste. 2800

Dallas, TX 75201

(214) 939-5512

Cindy .Ohlen/orst@klga,tes.com

LINDA C. ODOM

JEREMY M. M c LAUGHLIN

AsHLEY LEE H OGEWOOD, Ill

RODERICK P . HATCH

JOSHUA L. DURHAM

K&L Gates LL P

Counsel for Amicus Curiae

J uly 22, 2024

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