The 2nd Circuit ruling undermined the earlier heightened pleading standard in federal civil rights cases

In 2007 and 2009 the U.S. Supreme Court decided two cases that, as legal commentators said, shook the foundations of civil rights litigation, compromised legitimate claims.

Commentators also pointed out that the Aschroft v Iqbal and Bell Atlantic v Twombly cases gave too much discretion to federal judges to rely upon their own (unknown to the parties) experience and "common sense" in dismissing the cases, and that the number of dismissals of civil rights cases based on the new "plausibility" standard for pleadings actually grew after these two cases were decided.

It is easy to see that invocation of "experience" and "common sense" of the judge awards to the judge fact-finding functions of a jury - at the pleading stage, and overriding, without a legal basis, the parties choice of juries as factfinders in civil rights cases. 


While the Federal Rule of Civil Procedure 8 requires a short pleading describing the essence of the case, not a factual pleading, the U.S. Supreme Court, by the two decisions described in the above link, reverted the pleadings to its ancient form of factual pleadings, putting an insurmountable burden upon civil rights plaintiffs who are supposed to plead out facts before discovery, even if such facts are in the exclusive possession of powerful governmental defendants.

For 8 years after 2007, federal courts merrily tossed civil rights cases for failure to satisfy the heightened pleading standard - even though heightening the pleading standard amounted to amending Rule 8 and Rule 9 (not requiring special pleading of a state of mind in a conspiracy to violated civil rights0, which courts had no right whatsoever to do.

On October 22, 2015, the tide may have started to turn, at least in the U.S. Court of Appeals, 2nd Circuit.

In the case Shamir v New York City Police, the 2nd Circuit has ruled that, even if a certain claim (use of excessive force) was not properly pled, it could be inferred by the court from the general pleading under the 4th Amendment.

Arguably, Shamir overturns the Bell Atlantic and the Iqbal v Twombly cases that required specific pleadings.

It is interesting to see how the reasoning in Shamir will be met by district courts.

 I will report on the issue.

Stay tuned.