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Archive for the ‘Civil Rights – Section 1983’ Category

Section 1983 Malicious Prosecution: Some Recent Decisions (IV)

I blogged on Sept. 11, 2009, about the basic elements of so-called section 1983malicious prosecution” claims. I then blogged on 9-8-11, 9-26-11 and 8-7-13 about section 1983 malicious prosecution cases in the circuits.

What follows are three relatively recent circuit decisions dealing with such claims, decisions that I ran across in preparing the 2014 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(CIVLIBLIT  on Westlaw). Two of these decisions are from the Seventh Circuit; the third is from the Tenth Circuit.

Julian v. Hanna (7th Cir. 2013)

In Julian v. Hanna, 732 F.3d 842 (7th Cir. 2013), the Seventh Circuit, in an opinion by Judge Posner, addressed the plaintiff’s due process malicious prosecution claim arising out of the law enforcement officers’ allegedly coercing another suspect in a burglary-fire to accuse plaintiff in the course of fabricating charges against him, leading to plaintiff’s prosecution, conviction and sentence of 15 years. He was thereafter successful in obtaining post-conviction relief and all charges were dismissed after he had served about three years but more than nine years after he was arrested. The Seventh Circuit, relying on the concurring opinions of Justices Kennedy and Thomas in Albright as well as on Parratt, rejected the defendants’ argument that they could not be sued for malicious prosecution under due process because Indiana provided an adequate remedy. This purported Indiana remedy was inadequate here for several reasons: the absolute immunity of police officers under state law and the fact that Indiana damages remedies for false arrest or false imprisonment would be far less than for malicious prosecution since they would cover only the week or so he was detained before being formally charged. In contrast, the period for which malicious prosecution damages might be recovered began with his arrest and ended only over nine years later when charges were dismissed.

Serino v. Hensley (7th Cir. 2013)

Compare Serino v. Hensley, 2013 WL 5878463 (7th Cir. 2013), where the Seventh Circuit dealt with the plaintiff’s allegation of a § 1983 due process malicious prosecution claim arising out of his being charged with trespass and resisting law enforcement. In the course of its opinion affirming the district court’s dismissal of the complaint, the Seventh Circuit reaffirmed that its decision in Julian had made clear that Indiana state law does not provide an adequate remedy for malicious prosecution. However, it determined that the plaintiff still had to allege a constitutional right separate from false arrest under the Fourth Amendment and he did not do so here. Specifically, he did not allege that the chief of police made recommendations that were knowingly false, that he withheld exculpatory evidence from the prosecutor or that he took steps to further what he knew was a baseless prosecution. Nor did plaintiff allege actual malice. Finally, he did not allege that he had suffered a post-arraignment liberty deprivation. His complaint alleged only harm resulting from his arrest. For these reasons the complaint did not state a constitutional violation for § 1983 malicious prosecution purposes.

Myers v. Koopman (10th Cir. 2013)

Myers v. Koopman, 2013 WL 6698102 (10th Cir. 2013), involved a plaintiff’s § 1983 malicious prosecution claims arising out of the defendant detective’s allegedly obtaining an arrest warrant by fabricating facts to create the illusion of probable cause, resulting in plaintiff’s spending three days in custody. The Tenth Circuit affirmed the district court’s dismissal of plaintiff’s § 1983 malicious prosecution due process claim because an adequate Colorado remedy existed. This alleged conduct could not be anticipated and hence an adequate post-deprivation remedy satisfied due process requirements. However, it reversed the district court’s dismissal of his § 1983 Fourth Amendment malicious prosecution claim because he was indeed seized after the institution of legal process. This differentiated the plaintiff’s § 1983 Fourth Amendment malicious prosecution claim from a Fourth Amendment false imprisonment claim. The Tenth Circuit relied for this point on its decision in Wilkins v. DeReyes.


1. All three of these cases speak about the availability of state post-deprivation remedies in connection with section 1983 (procedural?) due process malicious prosecution claims. The Seventh Circuit in particular emphasizes that such a remedy must be adequate and determines that the Indiana remedy for malicious prosecution is in fact inadequate.

2. As the Seventh Circuit points out, section 1983 malicious prosecution claims, whatever their constitutional basis, must be sharply distinguished from Fourth Amendment false arrest claims.

3. As the Tenth Circuit points out, section 1983 malicious prosecution claims based on due process must be sharply distinguished from section 1983 Fourth Amendment malicious prosecution claims.

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Written by snahmod

April 8, 2014 at 1:59 pm

The 31st Annual Conference on Section 1983 Litigation

I would like to invite readers to attend my 31st Annual Conference on Section 1983 Litigation, to be held at Chicago-Kent on Thursday and Friday, April 24-25, 2014.

This national two-day conference, heading into its fourth decade, features expert academic speakers including Erwin Chemerinsky on immunities as well as his Supreme Court review, Karen Blum on local government liability, Rosalie Levinson on equal protection and Sheldon Nahmod on the section 1983 claim as well as the Second Amendment.

It also features outstanding practitioners from around the country, including Gerry Birnberg (Texas) on fees and ethical issues, John Murphey (Illinois) on practical considerations in section 1983 litigation and Brendan Egan (New Mexico) on immigration related issues.

The link to the brochure is here:

For further information, please contact Chicago-Kent’s CLE department via email at or via phone at 312-906-5090.

Thanks. I hope to see you there. And please be sure to say hello.

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March 24, 2014 at 6:18 pm

Law Professors’ Amicus Brief in Lane v. Franks

I blogged on January 20, 2014, about the Supreme Court’s grant of certiorari in Lane v. Franks, a potentially significant First Amendment public employee free speech case in which a public employee was allegedly terminated because of his truthful subpoenaed testimony in a federal fraud trial. My post provides relevant background on the case.

I recently co-authored a Law Professors’ Amicus Brief in Support of Petitioner in Lane. It was posted, and can be accessed, at SSRN. The other co-authors are Scott R. Bauries of University of Kentucky College of Law and Paul M. Secunda of Marquette University Law School.

“This brief, submitted on behalf of more than 65 law professors who teach and write in the areas of employment law and constitutional law, argues that the Court should reverse the 11th Circuit’s decision denying First Amendment protection to a public employee who was allegedly terminated in retaliation for his testimonial speech in a criminal trial.”

I think you will find it interesting reading.

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March 13, 2014 at 11:07 am

My New Article: The Birth of Section 1983 in the Supreme Court

My new article, entitled Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe, has just been published in 17 Lewis & Clark L. Rev. 1019 (2013).

Here is the link to the complete article.

This is the abstract:

“In 1951 the Supreme Court interpreted Section 1983’s language for the first time in Tenney v. Brandhove. This case, which arose against the background of the Cold War, involved the First Amendment and legislative immunity. The majority opinion, authored by Felix Frankfurter, took a strong federalism stance, while Justice William Douglas wrote the sole dissent in favor of civil rights. Ten years later, in Monroe v. Pape, the Court handed down a second important Section 1983 decision. This time, seven years after Brown v. Board of Education, the Court stood strong for civil rights in a police brutality case. Justices Douglas and Frankfurter were pitted against each other once again, but this time Douglas authored the majority opinion and Frankfurter wrote a strong partial dissent on federalism grounds.

This Article, the first of its kind, discusses both cases in depth to provide a fuller understanding of early Section 1983 jurisprudence. Each case was a product of the political context of its time, the Cold War and the
Civil Rights Movement. Each decision was also influenced by the briefings and oral argument presented to the Court. Finally, the two cases show the tension between federalism and civil rights protections through their respective majority and dissenting opinions written by two important Supreme Court justices. The interlocking opinions of Tenney and Monroe are therefore of interest to all scholars of civil rights, Section 1983, and the Supreme Court.”
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Written by snahmod

February 24, 2014 at 10:44 am

My New Video on Section 1983 Basics

In early December 2013, I delivered a one and one-half hour presentation on section 1983 to the New Mexico Defense Lawyers Association (NMDLA).

This presentation covers the elements of the section 1983 claim, individual immunities (absolute and qualified) and local government liability. It also includes Tenth Circuit cases of relevance to this particular audience.

I refer during the presentation to an outline I provided to the NMDLA audience, but that outline is not necessary in order to learn from my video.

The video is here:

I hope you will find it of interest and useful.

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January 28, 2014 at 11:59 am

Cert Granted in New Public Employee Free Speech Case: Lane v. Franks

Certiorari Granted in Lane v. Franks

The Supreme Court granted certiorari on January 17, 2014, in a potentially significant public employee free speech case.  The case, Lane v. Franks, No. 13-483, arises out of an unpublished Eleventh Circuit decision, Lane v. Central Alabama Community College, 523 Fed. Appx. 709 (11th Cir. 2013).

In Lane, the plaintiff, the probationary director of a community college’s training program for at-risk youth, discovered that a state representative was getting paid to work for the program he ran even though she had performed no work. He raised these concerns internally but was warned that terminating her would cause problems. He terminated her nonetheless. Thereafter the FBI investigated the state representative with the result that the plaintiff testified before a federal grand jury and, pursuant to a subpoena, testified at the representative’s federal criminal trial for fraud. Subsequently, the plaintiff was terminated by Franks, the president of the community college.

Plaintiff filed a First Amendment retaliation claim under section 1983 against Franks in his individual and official capacities, alleging that plaintiff was fired because of his testimony. The district court ruled for the defendant, and this decision was affirmed by the Eleventh Circuit on the ground that the plaintiff’s speech was made pursuant to his official duties within the meaning of Garcetti v. Ceballos, 547 U.S. 410 (2006), or at least owed its existence to his professional responsibilities. The speech was thus not the speech of a citizen on a matter of public concern: rather, the plaintiff  was acting pursuant to his official duties when he discovered that the state representative was not doing work, when he terminated her employment and when he testified pursuant to subpoena. Accordingly, the First Amendment did not apply to protect the plaintiff.

Questions Presented

1. Is the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities?

2. Does qualified immunity preclude a claim for damages in such an action?


If you are familiar with my highly critical article on Garcetti, you will recall I argued that Garcetti was unsound and that, at the very least, the “pursuant to official duties” criterion should be narrowly interpreted so as to give as much breathing space as possible to whistleblowers. See my post of December 8, 2009 entitled Public Employee Free Speech: The New Regime.

Note that Lane does not deal with alleged retaliation arising out of the plaintiff’s internal report about the state representative, which is rather clearly speech pursuant to his official duties under Garcetti. Instead it deals with the plaintiff’s subpoenaed testimony, which should be considered the speech of a citizen on a matter of public concern.

Lane will be argued and decided this Term.


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Written by snahmod

January 20, 2014 at 3:16 pm

Certiorari Granted in Plumhoff v. Rickard: Excessive Force, High-Speed Police Pursuits and Scott v. Harris

Plumhoff v. Rickard: Certiorari Granted

The Supreme Court has granted certiorari in Plumhoff v. Rickard, No. 12-1117 (2014), an unpublished decision in Estate of Allen v. City of West Memphis, 509 Fed. App’x 388 (6th Cir. 2012).

Here are the questions presented:

“1. Whether the Sixth Circuit wrongly denied qualified immunity to Petitioners by analyzing whether the force used in 2004 was distinguishable from factually similar force ruled permissible three years later in Scott v. Harris, 550 U.S. 372 (2007). Stated otherwise, the question presented is whether, for qualified immunity purposes, the Sixth Circuit erred in analyzing whether the force was supported by subsequent case decisions as opposed to prohibited by clearly established law at the time the force was used.”
“2.  Whether the Sixth Circuit erred in denying qualified immunity by finding the use of force was not reasonable as a matter of law when, under Respondent’s own facts, the suspect led police officers on a high-speed pursuit that began in Arkansas and ended in Tennessee, the suspect weaved through traffic on an interstate at a high rate of speed and made contact with the police vehicles twice, and the suspect used his vehicle in a final attempt to escape after he was surrounded by police officers, nearly hitting at least one police officer in the process.”

The Background: Scott v. Harris

In 2007, the Supreme Court held in Scott v. Harris that “a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist’s car from behind” even though the officer’s actions “place [the] fleeing motorist at risk of serious injury or death.” In the case before it, the Court reversed the Eleventh Circuit which had affirmed the district court’s denial of officer’s qualifed immunity summary judgment motion. A videotape of the chase made abundantly clear, said the Court, that no jury could find that what the officer did— ramming the plaintiff motorist’s car and thereby seizing it — was objectively unreasonable.

In the course of its opinion the Supreme Court explained the relationship among Tennessee v. Garner, 471 U.S. 1 (1985)(deadly force), Graham v. Connor, 490 U.S. 386 (1989)(excessive force in general) and the Fourth Amendment’s reasonableness requirement. It noted that “Graham did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’ Garner was simply an application of the Fourth Amendment’s ‘reasonableness’ test in a particular type of situation.”

Justices Ginsburg and Breyer concurred, while Justice Stevens dissented, arguing that the Court had usurped the jury’s function.


1. The Supreme Court will almost certainly reverse the Sixth Circuit and declare that the latter’s approach in this and similar cases is fundamentally inconsistent with Scott.

2. Note that Scott must be sharply distinguished from those high speed police pursuit cases in which there is no seizure, with the result that the substantive due process “purpose to do harm” standard governs, and not Fourth Amendment reasonableness standards. County of Sacramento v. Lewis, 523 U.S. 833 (1998).

More on the Fourth Amendment and excessive force can be found at sections 3:17-3:23 in  Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2013)(West Group).

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November 20, 2013 at 12:40 pm

Recent Statutes of Limitation Accrual Decisions in the Circuits

I previously set out some of the basics on statutes of limitation and section 1983 in my post of 10-27-11, A Section 1983 Primer (5): Statutes of Limitation.

What follows are three recent circuit court decisions dealing with accrual. Recall that the section 1983 accrual question is one of federal law.

For a comprehensive discussion of this technical subject, see NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 9 (4th ed. 2013)(CIVLIBLIT on Westlaw).

Fifth Circuit: Accrual and Knowledge of Parental Injury 

Where the mother of a thirteen year old arrestee sued law enforcement officers, alleging that they violated her parental due process rights when they interrogated him outside of her presence and over her objections and thereby obtained what turned out to be a false confession, the Fifth Circuit ruled that the claim, filed on March 20, 2009, was time barred under Mississippi’s general or residual personal injury three year limitations period. The court reasoned that the cause of action accrued on May 12, 2003, when the plaintiff immediately became aware of her separation from her son, at which time she believed that it was in his best interest not to answer questions without her. Edmonds v. Oktibbeha County, 675 F.3d 911, 916 (5th Cir. 2012), referring to MISS. CODE ANN. § 15-1-49 (2011).

Seventh Circuit: Knowledge of Medical Injury and Its Cause

According to the Seventh Circuit, “[t]he statute of limitations for a § 1983 deliberate indifference claim brought to redress a medical injury does not begin to run until the plaintiff knows of his injury and its cause.” In this case, plaintiff alleged in his October 2007 lawsuit that prison medical staff improperly delayed ordering a prostate biopsy for him until April 2005, and metastasized prostate cancer was discovered six months later. This delay occurred even though in 2000, when he entered the prison system, he had told the prison medical staff that he had prostate problems and needed to be tested within two to four years, and even though, in February 2004, a PSA test had disclosed highly elevated PSA. Reversing the district court, the Seventh Circuit found the Eighth Amendment claim timely: the plaintiff did not know of his injury in April 2005 when the defendants finally ordered a biopsy but only discovered the injury six months later when he found out he had cancer that might have been diagnosed and treated earlier. It was at that time that his cause of action accrued, and he filed suit shortly before the applicable Indiana two year limitations period expired. The Seventh Circuit emphasized that the plaintiff was suing for his actual physical injury and rejected argument that the limitations period began to run before plaintiff knew he had cancer. Devbrow v. Kalu, 705 F.3d 765 (7th Cir. 2013).

Ninth Circuit: Discrete Act Starting Limitations Period Anew

The plaintiff, a Muslim, sued prison officials on April 29, 2009, under § 1983, alleging that they violated his First Amendment rights when, in 2008, they denied his request for a conjugal visit with his second wife pursuant to a prison regulation that permanently prohibited him from having such visits. Complicating the accrual question—California’s two year personal injury limitations period applied–was the fact that he had previously been denied a conjugal visit with his first wife in 2002 under the same regulation. The defendants argued that the plaintiff had notice of the allegedly wrongful acts in 2002 when he was denied a conjugal visit under the regulation and that his § 1983 claim was therefore untimely. However, the Ninth Circuit rejected this argument and found that the denial of a conjugal visit in 2008 was an independent discrete act that began the running of the two year limitations period all over again. Thus, his § 1983 claim was timely. Pouncil v. Tilton, 704 F.3d 568 (9th Cir. 2012). The plaintiff also brought a claim under the Religious Land Use and Institutionalized Persons Act which was governed by a federal four year limitations period.

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November 11, 2013 at 1:00 pm

Section 1983, Statutes of Limitation and Accrual: Recent Circuit Decisions Applying Heck v. Humphrey

I last blogged about section 1983, statutes of limitation and the complicated decision in Heck v. Humphrey on June 17, 2013.

This post, which is a follow-up, contains four recent circuit court decisions that apply Heck.

You might want to pay special attention to the unique Ninth Circuit decision in Beets, which involves the conviction of someone other than the section 1983 plaintiff.

Considerably more information on this topic may be found in chapter 9 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2013, West), also available on Westlaw as CIVLIBLIT.

The Fifth Circuit: What Is A Favorable Termination?

After the plaintiff served one-third of his original community supervision period for the illegal possession of child pornography, a Texas trial court terminated the remainder of his probationary term, dismissed the proceedings and discharged him from any penalties or disabilities resulting from the offense. The question was whether this constituted a favorable termination under Heck so that the plaintiff’s § 1983 lawsuit against the police officers for allegedly engaging in an illegal search of his home and obtaining the evidence used against him could go forward.

According to the Fifth Circuit, the answer was NO. The trial court’s order did not say that it invalidated his conviction and it did not include express language dismissing his indictment, withdrawing his guilty plea, setting aside the verdict or restoring his civil liberties. Also, the fact that the plaintiff was no longer in custody and thus could not seek habeas corpus relief did not excuse him from Heck’s favorable termination requirement. Morris v. McAllester, 702 F.3d 187 (5th Cir. 2012).

The Seventh Circuit: The Availability Of Collateral Relief During Incarceration

The plaintiff, who had pleaded guilty to attempted burglary in state court and never sought to challenge his conviction through habeas corpus, filed a § 1983 damages action against Illinois correctional officers alleging a violation of his right of access to the courts. The defendants had allegedly denied him the library materials necessary to file a motion to withdraw his guilty plea and to research grounds for appealing his sentence. Plaintiff was paroled from prison in November 2011 and the mandatory supervised release portion of his sentence was scheduled to expire in November 2012.  The defendants argued that Heck barred plaintiff’s claim because he had not received a favorable termination and, moreover, the unavailability of collateral relief to plaintiff at this point was irrelevant.

Agreeing that Heck barred the plaintiff’s claim, the Seventh Circuit, first, reasoned that since the plaintiff sought the library materials in order to withdraw his guilty plea, and that this required him to show there was merit to the claim that he should have been able to withdraw the plea, success on that claim would imply the invalidity of the judgment of conviction against him. Second, there was nothing that prevented the plaintiff from seeking collateral review of his conviction during his period of incarceration and mandatory supervised relief, and he offered no excuse for his failure to do so.

“[W]e hold that Heck applies where a § 1983 plaintiff could have sought collateral relief at an earlier time but declined the opportunity and waited until collateral relief became unavailable before suing.” Burd v. Sessler, 702 F.3d 429, 436 (7th Cir. 2012)(emphasis in original).

The Eighth Circuit: What Is A Favorable Termination?

In Marlowe v. Fabian, 676 F.3d 743 (8th Cir. 2012), the plaintiff, convicted of criminal sexual conduct, sued correctional officials for allegedly wrongfully imprisoning him for 375 days beyond the date on which he became eligible for supervised release. The Eighth Circuit affirmed the district court’s dismissal for failure to satisfy Heck’s favorable termination requirement. The Minnesota court of appeals decision remanding his habeas claim to the trial court was not a favorable termination because all it did was direct the department of corrections to consider restructuring the plaintiff’s release plan so that he could possibly be released from prison later.. This was not an invalidation of his conviction or incarceration for Heck purposes.

The Ninth Circuit: What If Another’s Conviction Is At Issue?

Does Heck apply even where the success of a plaintiff’s § 1983 claim would imply the invalidity of another’s conviction? According to the Ninth Circuit in Beets v. County of Los Angeles, 669 F.3d 1038, 1046 (9th Cir. 2012), the answer is sometimes YES.

In this case, the plaintiffs alleged that a police officer used excessive force when he shot and killed their son. However, the decedent’s accomplice was convicted on several counts, including aiding and abetting in the assault on a police officer with a deadly weapon, and the jury had determined that the police officer acted within the scope of his employment and did not use excessive force. Thus, a verdict in plaintiffs’ favor would tend to undermine the accomplice’s conviction. In addition, the accomplice had challenged the police officer’s conduct in her criminal trial and her interests were not inconsistent with those of the plaintiffs.

The Ninth Circuit relied on its decision in Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005)  (en banc). “Our choice of language [in City of Hemet] suggests that the Heck preclusion doctrine may apply to civil actions brought by individuals other than the convicted criminal if such application does not otherwise violate any constitutional principles.” Moreover, the plaintiffs reasonably should have expected to be bound by the jury’s decision in the accomplice’s case: the decedent and she were accomplices, she was convicted of assaulting the police officer with a deadly weapon and a single action—shooting the decedent—was crucial to her conviction and the plaintiffs’ § 1983 excessive force claim.

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October 2, 2013 at 2:52 pm

First Amendment Retaliatory Arrest Decisions After Reichle

I blogged on March 29, 2012, about the Supreme Court‘s grant of certiorari in Reichle v. Howards,  a case arising out of the Tenth Circuit. The Supreme Court had granted certiorari to deal with the important question of whether there should be a probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech.

That post should be consulted for relevant background, including the important decision in Hartman v. Moore, 547 U.S. 250 (2006). Note also that the answer to the question will apply equally to section 1983 claims.

On June 4, 2012, the Court, in an opinion by Justice Thomas, avoided the merits and ruled instead that the defendants were protected by qualified immunity. See my post of June 13, 2012, analyzing the decision.

I came across the following post-Reichle decisions from the Fourth, Seventh and Ninth Circuits as I was preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(West)(available on Westlaw at CIVLIBLIT).

Note that, of these circuits, only the Ninth Circuit has taken the position that probable cause is not a defense.

Fourth Circuit

In Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013), the plaintiff alleged that he was retaliated against by Transportation Security Agency (TSA) agents in violation of the First Amendment when they seized and arrested him at an airport for displaying the text of the Fourth Amendment on his chest. According to the Fourth Circuit, the defendants were not entitled to qualified immunity because it was clearly settled in September 2010 that the First Amendment protected peaceful non-disruptive speech in an airport and that such speech could not be punished because government disagreed with it. A case on all fours was not required. In addition, the Supreme Court’s decision in Reichle v. Howards was distinguishable because here the plaintiff specifically alleged that his arrest was not supported by probable cause.  Judge Wilkinson dissented, 706 F.3d 379, 394, arguing that this airport security case was an especially appropriate one justifying the applicability of qualified immunity.

Seventh Circuit

The Seventh Circuit, following Reichle, held that the defendant police officers who allegedly arrested the plaintiff because of what he said, even though there was probable cause for the arrest, were protected by qualified immunity. Thayer v. Chiczewski, 705 F.3d 237 (7th Cir. 2012). The Seventh Circuit also noted that the First Amendment retaliation/probable cause issue was unresolved in its circuit.

Ninth Circuit

In contrast to the Seventh Circuit in Thayer, the Ninth Circuit stated that it was adhering to its earlier position in Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006), that an arrestee has a “First Amendment right to be free from police action motivated by retaliatory animus, even if probable cause existed for that action.” Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013). The plaintiff alleged that the defendant officers violated his First Amendment rights when they booked and jailed him in retaliation for his protected speech—criticizing them for an allegedly racially motivated traffic stop—even though there was probable cause for the initial arrest. The Ninth Circuit also went on to rule that the defendants violated clearly settled law in July 2007 and were thus not entitled to qualified immunity.

Judge Callahan dissented, arguing, first, that the Ninth Circuit’s precedents did not necessarily apply after an arrestee has been detained, and second, that the defendants did not violate clearly settled law “forbidding an officer from considering the comments of a legally detained individual when determining whether to book the individual.” 706 F.3d, at 1197.

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Written by snahmod

August 30, 2013 at 4:22 pm


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