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Archive for the ‘Constitutional Law’ Category

The Confederate Flag and the Walker Case: A Video

Several weeks ago the Chicago-Kent Federalist Society sponsored a discussion of the Confederate Flag. John Kunich (University of North Carolina at Charlotte) and I spoke about the symbolism of the Confederate Flag.

In particular I discussed the Supreme Court’s recent  important First Amendment Confederate Flag/license plate decision in Walker v. Texas Div., Sons of Confederate Veterans, Inc. (No. 14-144, 6-18-15). I also addressed government speech and forum analysis.

The program lasted for 50 minutes, and I was the second speaker. There was no followup discussion.

Here is the video of that program. I hope you find it of interest.


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Written by snahmod

November 24, 2015 at 9:59 am

Posted in First Amendment

Supreme Court Preview 2015 Term (Video)

In early October 2015, my colleague Chris Schmidt and I participated in an hour-long Preview of the Supreme Court’s current 2015 Term that was sponsored by Chicago-Kent’s American Constitution Society.

Professor Schmidt provided an overview of the previous Term as well as brief comments on several of the cases pending in the current Term.

I spoke at some length about one particular case pending in the current Term, the Fisher affirmative action case now before the Court for the second time.

I am pleased to post a video of this Preview, and hope you find it of interest. Special thanks to Chicago-Kent’s Audio-Visual staff and its Public Relations staff, as well as to ACS.

You can find related posts by searching on my blog for “affirmative action” and “Fisher.”

Here it is:

Written by snahmod

October 30, 2015 at 11:12 am

Posted in Constitutional Law

All My First Amendment Posts to 10-12-15

This is Part III of the All My Posts series to 10-12-15. Part I, dealing with section 1983 and Part II, dealing with Constitutional Law,  were also posted today.

Please search within this post for any cases, topics and the like that you are interested in.


Freedom of Speech (1): Three Rationales

Freedom of Speech (2): Content, Medium and Forum

Freedom of Speech (3): The Clear and Present Danger Years

Freedom of Speech (4): Internet Threats and Elonis v. United States

Public Employee Free Speech: The New Regime

From Buckley to Citizens United (Part One of Two)

From Buckley to Citizens United (Part Two of Two)

Government Speech and Justice Souter (1): Introduction

Government Speech and Justice Souter (2): Rust v. Sullivan

Government Speech and Justice Souter (3): Rosenberger v. Rectors of the University of Virginia

Government Speech and Justice Souter (4): Glickman and Finley

Government Speech and Justice Souter (5): Univ. of Wisconsin v. Southworth

Government Speech and Justice Souter (6): Johanns v. Livestock Marketing Association

Government Speech and Justice Souter (7): Garcetti v. Ceballos

Government Speech and Justice Souter (8): Pleasant Grove City v. Summum

Government Speech and Justice Souter (9): A Short Coda

Animal Cruelty, Crush Videos and U.S. v. Stevens (Video)

Borough of Duryea v. Guarnieri: New Supreme Court Section 1983 Public Employee Petition Clause Case

Certiorari Granted in Reichle v. Howards: A First Amendment Retaliatory Arrest Case

New Supreme Court Decision: Reichle v. Howards and First Amendment Retaliatory Arrests

First Amendment Retaliatory Arrest Decisions After Reichle

New Supreme Court Decision on Free Speech and Government Funding: The Agency for International Development Case

New University Academic Freedom Decision from Ninth Circuit: Demers v. Austin

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

Law Professors’ Amicus Brief in Lane v. Franks

A Short Video on Lane v. Franks

Lane v. Franks: New Supreme Court Public Employee Free Speech Decision

The “Ground Zero Mosque”: A Discussion (Video)

The Religion Clauses: ‘Tis the Season

New Supreme Court Religion Decision: Hosanna-Tabor Evangelical Lutheran Church and School

Town of Greece v. Galloway: Pending Supreme Court Decision on Legislative Prayer and the Establishment Clause

A Video Presentation on Town of Greece v. Galloway

Remarks on the Establishment Clause and Town of Greece

A Video: The Religion Clauses, Town of Greece and Hobby Lobby

Written by snahmod

October 12, 2015 at 2:52 pm

All My Constitutional Law Posts to 10-12-15

This is Part II of the All My Posts Series to 10-12-15. Part I, also posted today, deals with Section 1983.

Please search within the post for any cases, topics and the like that you are interested in.


All My Videos: Constitutional Law, Section 1983 and SCOTUS

Know Your Constitution (1): The Structure of Government

Know Your Constitution (2): Myths About the Constitution

Know Your Constitution (3): Myths About the Supreme Court

Know Your Constitution (4): What Is Equal Protection?

Know Your Constitution (5): Free Speech and Hate

Know Your Constitution (6): What Is Procedural Due Process?

Know Your Constitution (7): What Is Substantive Due Process/Right of Privacy?

Know Your Constitution (8): What is State Action?

A Short Video on Equal Protection Basics

Class-of-One Equal Protection Claims: Uncertainty in the Seventh Circuit

Marbury v. Madison: Some Additional Lessons

McCulloch v. Maryland: Exegesis and Constitutional Education

The Commerce Clause

The Dormant Commerce Clause

Brown v. Board of Education

Affirmative Action

Affirmative Action and Fisher v. University of Texas: A Video Discussion

The Fisher Case on Affirmative Action and the Shelby County Case on Voting Rights: Two of a Kind

The Equal Protection Clause and Fundamental Interests

Supreme Court Decisions, 2007-2008: A Video Presentation

Supreme Court Review: 2009 Term (video)

Anti-SLAPP Statutes in Federal Courts

The Patient Protection and Affordable Care Act: The Commerce Clause and Constitutional Trust

Individual Mandate Upheld–Medicaid Expansion Upheld (Mostly)

The Health Care Act Decision: A Video Discussion

The Constitutionality of the Patient Protection and Affordable Care Act: A Video Presentation

Gun Control, the Second Amendment and Section 1983 After McDonald v. Chicago

The Second Amendment and Gun Control: Unanswered Questions

DeShaney in the Circuits: Affirmative Duties and Danger-Creation

DeShaney in the Circuits (II): Affirmative Duties and Danger-Creation

DeShaney in the Circuits (III): The Fifth Circuit En Banc Holds the Line

DeShaney in the Circuits (IV): The Seventh Circuit’s Reformulation

DeShaney in the Circuits (V): The Third and Tenth Circuits Weigh In

DeShaney in the Circuits (VI): Some Recent Decisions

Oyez’s Fourth Amendment Deep Dive

Kingsley v. Hendrickson: New Supreme Court Pretrial Detainee Excessive Force Decision

Written by snahmod

October 12, 2015 at 2:50 pm

Posted in Constitutional Law

Section 1983 Malicious Prosecution (VI): Third and Fourth Circuit Decisions with a Fabrication of Evidence Twist

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, 8-7-134-8-14 and 5-11-15 about section 1983 malicious prosecution cases in the circuits.

What follows are recent section 1983 malicious prosecution/fabrication of evidence decisions from the Third and Fourth Circuits that I ran across in preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).

Halsey v. Pfeiffer (3rd Circuit)

In Halsey v. Pfeiffer, 750 F.3d 273 (3rd Cir. 2014), an important case that couples section 1983 fabrication of evidence and malicious prosecution claims. the plaintiff, wrongly imprisoned for murder for over 20 years, sued various law enforcement officers and others alleging (1) the fabrication of his oral confession that led to the prosecutor filing charges against him and (2) malicious prosecution and (3) coercing him into signing the fabricated confession which was crucial at his trial. Reversing the district court’s grant of summary judgment to the defendants, the Third Circuit explained:

First, we reaffirm what has been apparent for decades to all reasonable police officers: a police officer who fabricates evidence against a criminal defendant to obtain his conviction violates the defendant’s constitutional right to due process of law. Second, we reinstate[plaintiff’s]  malicious prosecution claim, principally because the prosecutor instrumental in the initiation of the criminal case against [plaintiff] has acknowledged that the false confession the [defendants] claimed they obtained from [plaintiff] contributed to the prosecutor’s decision to charge [plaintiff], and for that reason we will not treat the decision to prosecute as an intervening act absolving [defendants] from liability. Moreover, without that false confession, there would not have been direct evidence linking [plaintiff] to the crimes so that the prosecutor would not have had cause to prosecute [plaintiff]. …

In the course of its discussion in Halsey, the Third Circuit commented that in Johnson v. Knorr, 477 F.3d 75 (3rd Cir. 2007), it had not addressed the question, which it now answered in the affirmative, whether a fabrication claim could give rise to a stand-alone due process cause of action. It also observed that in this case any Fourth Amendment seizure had long since ended: it was the fabricated evidence that led to the unfair trial, the wrongful conviction and plaintiff’s incarceration. Further, this was analytically different from a section 1983 malicious prosecution claim as to which probable cause is a defense. Finally, as to plaintiff’s section 1983 Fourth Amendment malicious prosecution claim, the Third Circuit determined that the prosecutor’s decision to prosecute was not an intervening act that severed the initiation of prosecution from the defendants. The district court erred in concluding that the prosecutor’s decision to prosecute was made without regard to the defendants’ alleged misconduct. The district court further erred in finding that there would have been probable cause even without plaintiff’s confession: there were genuine issues of material fact on this question.

Massey v. Ojaniit (4th Circuit)

The Fourth Circuit cited the Third Circuit’s decision in Halsey in Massey v. Ojaniit, 759 F.3d 343 (4th Cir. 2014), another case coupling section 1983 fabrication of evidence and malicious prosecution claims. In this case, the plaintiff, released after almost twelve years of imprisonment, sued city police officers alleging that they fabricated evidence against him at trial to obtain his conviction in violation of due process. Ruling against the plaintiff, the Fourth Circuit observed that fabrication of evidence standing alone was not enough: the plaintiff had to allege adequate facts to show that the loss of liberty–his conviction and subsequent incarceration–was caused by the fabrication. This requirement included both cause in fact and proximate cause. Here, however, the plaintiff’s conviction was not caused by the alleged fabrication because the prosecution focused at trial on positive in-court identifications. In addition, the conviction was not the foreseeable result of the alleged fabrication.

The plaintiff in Massey also alleged a Fourth Amendment malicious prosecution claim, focusing on the fabricated evidence’s role in bringing about plaintiff’s arrest and his prosecution. Plaintiff lost here as well because he did not allege sufficient facts to undermine the grand jury’s probable cause determination. In other words, he did not sufficiently allege materiality of the fabricated evidence: even removing the fabricated evidence, there was sufficient evidence for a finding of probable cause.


Both cases recognize the availability of stand-alone due process fabrication of evidence claims. But while the plaintiff in Halsey properly alleged that the fabricated evidence led to his unfair trial, conviction and incarceration, the plaintiff in Massey did not.

Both cases also have in common section 1983 Fourth Amendment malicious prosecution claims and the all-important inquiry into causation–cause in fact and proximate cause–as well as the requirement of absence of probable cause. The Halsey plaintiff was able to persuade the Third Circuit that the prosecutor’s decision to prosecute was not a superseding cause and that there was a triable issue regarding the absence of probable cause. In contrast, the Massey plaintiff ‘s allegations were insufficient to persuade the Fourth Circuit that the grand jury’s probable cause determination was not a cause in fact of his arrest and prosecution.


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Written by snahmod

June 1, 2015 at 8:39 am

DeShaney in the Circuits (VI): Some Recent Decisions

I have blogged previously about how the Supreme Court’s controversial DeShaney decision has fared in the circuits. DeShaney held that as a general matter governments have no affirmative substantive due process duty to protect persons from private harm. The first post was on 8-22-11; the second was on 6-1-12; the third was on 5-20-13; the fourth was on 6-6-13 and the most recent was on August 28, 2014.

Here are four 2014 DeShaney-related decisions from the Fifth and Eighth Circuits and the Supreme Court of New Jersey. I came across these cases when preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).

Fifth Circuit: Lance v. Lewisville Independent School District

Where a fourth grade special needs student who had been bullied locked himself inside the school nurse’s bathroom and then took his own life, his parents and his estate sued the school district under § 1983 and substantive due process. The Fifth Circuit affirmed the district court’s grant of summary judgment to the school district. The Fifth Circuit rejected the application of the special relationship theory, the state danger-creation theory and the caused-to-be-subjected theory. No special relationship between the decedent and the school district existed in the case pursuant to the en banc decision of the Fifth Circuit in Doe ex rel Magee, 675 F.3d 849 (5th Cir. 2012)(en banc). Also, there was no genuine issue of material fact in dispute regarding the state-created danger theory even if that theory were to be applied: the school district did not affirmatively place the decedent in danger, there was no evidence that the school district knew that decedent’s suicide was imminent and the plaintiffs did not show that the school district created a dangerous environment for the decedent. Finally, the caused-to-be subject theory has not been adopted by the Fifth Circuit. Lance v. Lewisville Independent School District, 2014 WL 805452 (5th Cir. 2014).

Eighth Circuit: Montgomery v. City of Ames and Gladden v. Richbourg

The plaintiff sued a city, police officers and others alleging a substantive due process violation arising out of the shooting of the plaintiff by a third person who broke into her house and shot her three times. She alleged that the defendants created the danger that the assailant would attack her through their deliberate indifference. Montgomery v. City of Ames, 2014 WL 1387033 (8th Cir. 2014). Ruling for the defendants on this issue, the Eighth Circuit noted that the assailant was subject to a protective order, stemming from his conviction for domestic-abuse assault, which prohibited him from being near the plaintiff and from contacting her. However, it determined that the police officer who spoke with the assailant about the plaintiff’s allegations, but did not arrest him despite plaintiff’s warnings, did not act with the requisite deliberate indifference to her safety. There were conflicting accounts about whether the assailant had in fact violated the protective order, and this meant a reasonable jury could not conclude that the officer acted recklessly or in a conscience shocking manner just because he did not arrest the assailant before an investigation the next day.

In Gladden v. Richbourg, 2014 WL 3608521 (8th Cir. 2014), the decedent died of hypothermia after police officers, who had determined that he was mildly intoxicated, took him from a restaurant in a city to an isolated off-ramp outside the city at the county line even though he had asked the officers to take him to his sister’s house in the next county. The decedent’s due process rights were not violated, according to the Eighth Circuit. There was no special relationship because the harm suffered did not occur in police custody. Also, the officers did not act with the requisite reckless/conscience shocking state of mind under the danger creation theory because, even though it was bitterly cold, decedent was only mildly intoxicated, appeared functional to the officers throughout, and thus appeared able to make his way to a guard shack a short distance from where he was dropped off.

Supreme Court of New Jersey: Gormley v. Wood-El

In Gormley v. Wood-El, 2014 WL 2921824 (S. Ct. N.J. 2014), the plaintiff attorney, assigned to represent an involuntarily committed patient at a psychiatric hospital, was brutally attacked by her client in the hospital’s unsupervised day room, “a place where psychotic patients milled about and where violence frequently erupted.” The Supreme Court of New Jersey, ruling for the attorney in her § 1983 claim against hospital officials and others, held that the plaintiff had a substantive due process right to be free from state created dangers and that this right was clearly established in September 2005, when the attorney was attacked and seriously injured. The plaintiff was a member of a discrete class of victims subject to foreseeable harm in the volatile day room created by the defendants. Also, the defendants exercised total control over the plaintiff and the day room meeting and they knew of the special dangers that the client might pose to the unsuspecting plaintiff. Further, there was sufficient evidence of deliberate indifference constituting conscience shocking conduct. Among other things, expert testimony indicated that the level of violence in this psychiatric hospital was unique. Justice LeVecchia, joined by Justice Patterson, dissented, 2014 WL 2921824, *20, arguing that the plaintiff did not make out a substantive due process claim and that the defendants in any event did not violate clearly established law.


As I and others have frequently noted, DeShaney issues typically arise in tragic circumstances, and these cases are no exception. Plaintiffs attempt to end-run the DeShaney no affirmative duty rule by using either the special relationship theory or the danger-creation theory or both.

However, it remains difficult for plaintiffs to prevail even on these theories, as the Fifth and Eighth Circuit cases demonstrate. Only in Gormley did the danger-creation theory work in combination with the special relationship theory by virtue of the total control exercised by the hospital officials over the plaintiff attorney, as found by the Supreme Court of New Jersey.

I invite you to follow me on Twitter @NahmodLaw

Written by snahmod

April 10, 2015 at 11:54 am

Know Your Constitution (8): What is State Action?

This is the eighth in a series of posts about the United States Constitution written in everyday language with a minimum of legal jargon.

Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution,  addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural and substantive due process.

This post deals with the important concept of state action. Non-lawyers should understand that private persons as such cannot violate another’s equal protection, due process or, say, 1st or 4th Amendment rights. Only governments can.

The Basics

The term “state action” stems from the language of section 1 of the 14th Amendment which provides in relevant part that states (including local governments) must treat people equally and fairly (equal protection) and must not deprive them of basic rights (due process, which includes most of the provisions of the Bill of Rights through a process called “incorporation”).

This means that I personally, as a private person, cannot violate your constitutional rights, at least those based on the 14th Amendment. Some governmental involvement is required. For example, if I punch you because I disagree with your views, I may have violated state law but not the 1st Amendment. On the other hand, if a police officers arrests you because of what you said, that arrest is state action and may turn out to violate your 1st Amendment rights.

In a very real sense, the state action requirement serves a gatekeeper function: you don’t get to the question of whether 14th Amendment rights have been violated unless there is state action.

Over the years, the Court has developed several technical tests for determining when the conduct of a nominally private person or entity constitutes state action: (1) the public function test, (2) the joint action/symbiotic relationship test and (3) the nexus test. These are beyond the scope of this post.

Why Do We Care About State Action?

The obvious reason is that the 14th Amendment explicitly imposes this requirement. But there are sound policy reasons as well for this public/private distinction.

1. Freedom First is the interest in personal autonomy or freedom. As private persons we do not necessarily want to be subject to constitutional requirements or norms, even if we think some of those norms are good ones. Further, if these norms applied to private persons, then that would invite federal judicial intervention and supervision, thereby interfering with our private choices. Nobody wants to be sued and hauled into federal court.

2. Federalism The second policy reason is a bit more complicated, but it is related to the first. Ours is a federal system in which states should, and do, play a major role in protecting individual rights of all kinds. If private persons are regulated by the 14th Amendment, then the federal judiciary would be monitoring and evaluating private conduct, whereas that is a primary role of the states in our federal system.

This federalism concern also arises in connection with section 5 of the 14th Amendment which gives Congress the power to enforce section 1 of that amendment. If the 14th Amendment covered private conduct, it would follow that Congress could regulate much more private conduct than it can with the state action requirement in place.

Some Caveats

Keep in mind that I’ve been writing about state action and the 14th Amendment only. In contrast, the 13th Amendment, which prohibits involuntary servitude, applies to private persons as well.

In addition, there are other ways for Congress to regulate private conduct irrespective of section 5 of the 14th Amendment. Perhaps the best example is the Commerce Clause. Of course, Congress may not violate our constitutional rights even under the Commerce Clause.

Which brings me to my last point. Though Congress is obviously not a state, it may nevertheless not violate equal protection and due process because of the Fifth Amendment’s due process clause. Similarly, Congress may not violate the provisions of the Bill of Right because its provisions expressly apply to the federal government.

I invite you to follow me on Twitter @NahmodLaw

Written by snahmod

February 19, 2015 at 2:27 pm

Posted in Constitutional Law


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