Nahmod Law

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

Two Post-Filarsky Private Individual Immunity Decisions in the Circuits

I blogged on May 9, 2012, about Filarsky v. Delia, 132 S. Ct. 1657 (2012), the Supreme Court‘s important private individual immunity decision which ruled that an individual hired by the government to work for it is indeed protected by qualified immunity, even though that individual does not work for the government on a permanent or full-time basis.

Here are two post-Filarsky decisions from the Fourth and Sixth Circuits which, contrary to my suggestion in the earlier post that Richardson is now an “outlier,” ruled qualified immunity inapplicable.

I came across these cases in the course of preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West Group) (CIVLIBLIT on Westlaw).

The Fourth Circuit

In Gregg v. Ham, 678 F.3d 333 (4th Cir. 2012), the plaintiff sued a bail bondsman under § 1983 alleging various constitutional violations arising out of the defendant’s efforts to catch a fugitive in and around plaintiff’s home. A jury found for the plaintiff and awarded compensatory and punitive damages, but the defendant on appeal challenged the district court’s qualified immunity instruction to the jury on the ground that this issue was not for the jury. Affirming, the Fourth Circuit held that there was no error because the defendant, as a bail bondsman, was not entitled to qualified immunity.

The court expressly followed the Richardson approach in looking at the history and policy of qualified immunity and finding that neither supported qualified immunity for bail bondsmen. There was no historical evidence demonstrating that bail bondsmen were given immunity or that they were considered as arms of the court performing a public function. Moreover, they were motivated primarily by profit and thus, per Richardson, there was no need for qualified immunity to ensure an adequate number of bail bondsmen.

Finally, Filarsky did not change this result: the defendant here was not an arm of the court, he was not employed by the sheriff’s department, he did not report to law enforcement, he was not asked to assist in apprehending the fugitive and he was in charge of the search. Thus, Filarsky was inapposite.

The Sixth Circuit

McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012), involved a § 1983 Eighth Amendment lawsuit brought by a deceased inmate’s mother against a psychiatrist employed by an independent non-profit organization who was working part-time as a prison psychiatrist at the time he was allegedly deliberately indifferent to the serious medical needs of the inmate.

Ruling that the defendant was not entitled to claim qualified immunity, the Sixth Circuit, looking to history and the common law, found that a private physician working for a public institution in 1871 would not have been immune from damages liability at common law. In addition, the policies underlying § 1983 immunity doctrine—promoting independent decision-making, encouraging persons to go into public service and guarding against distraction—indicated that qualified immunity would not be appropriate here. As was true in Richardson, market forces would accomplish these same goals.


Written by snahmod

August 20, 2013 at 2:09 pm

Section 1983 Malicious Prosecution: Some Recent Decisions (III)

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

What follows are two relatively recent circuit decisions dealing with such claims, decisions that I ran across in preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(CIVLIBLIT  on Westlaw).

The Second Circuit

The Second Circuit, reversing the district court which had dismissed the plaintiff’s § 1983 malicious prosecution claim, stated that the elements of a § 1983 malicious prosecution claim are “derived” from state law and include (1) commencement of a criminal proceeding, (2), favorable termination, (3) lack of probable cause and (4) actual malice. It went on to declare: “Additionally …, to be actionable under section 1983 there must be a post-arraignment seizure, the claim being grounded ultimately on the Fourth Amendment’s prohibition of unreasonable seizures.” Here there was such a seizure. Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013).

The Eighth Circuit

In Harrington v. City of Council Bluffs, 678 F.3d 676, 680-81 (8th Cir. 2012), the Eighth Circuit declared:

Assuming a Fourth Amendment right against malicious prosecution exists, such a right was not clearly established when the [plaintiffs] were prosecuted in 1977 and 1978. In 1978, the Supreme Court described in Albright the “‘embarrassing diversity of judicial opinion’ [on] the extent to which a claim of malicious prosecution is actionable under § 1983.”

Moreover, the Eighth Circuit pointed out that in 1976 it had said that whether malicious prosecution violates any constitutional rights was “undecided.”

(I represented the defendants in Harrington in the Eighth Circuit).


I have long argued, contrary to the Second Circuit’s approach, that section 1983 malicious prosecution claims should be based on the underlying constitutional violations alleged and not on state tort law elements.

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Written by snahmod

August 7, 2013 at 4:38 pm

Recent Post-Iqbal Pleading Decisions in the Circuits (II)

I blogged on September 7, 2012, about post-Iqbal pleading decisions in the circuits.

This year, as I was preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012; West Group)(CIVLIBLIT on WESTLAW), I came across three additional circuit court decisions applying Iqbal. I want to share them with you in advance of publication this fall of the 2013 Update.

Of particular interest is Judge Hamilton’s partially dissenting opinion in the Seventh Circuit’s McCauley decision.

First Circuit

In Grajales v. Puerto Rico Ports Authority, 682 F.3d 40 (1st Cir. 2012), the district court had granted a motion to dismiss under Rule 12(c) submitted by the defendants in a political discrimination case, even though substantial discovery had been completed. The district court determined that the plaintiff’s claim did not cross Iqbal’s plausibility threshold because it did not allege sufficient facts to show political discrimination.

Reversing, the First Circuit did not have to decide whether the district court abused its discretion in ruling on defendants’ motion after nine months of pretrial discovery. Instead, the First Circuit found that the plaintiff’s complaint plausibly alleged political discrimination in violation of the First Amendment. There was enough alleged regarding the membership in different political parties of the plaintiff and the defendants, the defendants’ knowledge of plaintiff’s membership and the existence of an adverse employment action. Finally, the allegations of a close temporal proximity between the regime change and the beginning of pervasive cross-party harassment, without any legitimate explanation for such conduct,  were sufficient to show political animus.

Seventh Circuit

In McCauley v. City of Chicago, 671 F3d 611 (7th Cir. 2011), the Seventh Circuit held that the plaintiff did not state an equal protection claim against the City of Chicago in connection with the killing of plaintiff’s decedent by her ex-boyfriend. It found that the plaintiff did not plausibly state a policy or practice equal protection claim under Iqbal  because the complaint contained only generalized allegations that the City failed to have specific policies in effect to protect victims of domestic violence from those who violate their parole or are under court orders for domestic violence.

Judge Hamilton dissented in part in a thoughtful opinion. 671 F.3d at 620. He argued that the plaintiff’s equal protection claim against the City should survive even under Iqbal because the complaint plausibly alleged that the City made a deliberate decision to minimize police protection available to women because of intentional animus against them.

Judge Hamilton then went on to list some of the problems posed by Iqbal to federal judges and litigants: its reasoning conflicted with Rule 9(b), with other recent Supreme Court decisions such as Leatherman and Swierkiewicz and with form complaints approved by the Supreme Court and Congress. He also criticized the Iqbal Court’s reliance on what he called the fact/conclusion dichotomy as highly subjective “and [it] returns courts to the long disapproved methods of analysis under the regime of code pleading.” 671 F.3d at 624. He further criticized that Court’s reliance on “judicial experience and common sense” as inviting highly subjective and inconsistent results. He concluded with two observations. First, under Iqbal it was questionable whether the amended complaint in Brown v. Bd. of Education would have survived. Second, federal courts should “freely” give leave to amend under Rule 15(a) where the interests of justice require.

Eighth Circuit

After removal to federal court, federal pleading rules control. Thus, in Christiansen v. West Branch Community School Dist., 674 F.3d 927 (8th Cir. 2012), the Eighth Circuit affirmed the dismissal of the plaintiff’s § 1983 claims for failure to state causes of action under the criteria of Iqbal. Plaintiff originally filed in Iowa state court and the defendants had removed to federal court, resulting in the dismissal. The court rejected the plaintiff’s contention that he was at least entitled to a remand to amend his complaint to comply with Iqbal rather than Iowa’s no-set-of-facts pleading. Plaintiff should have been aware of the possibility of removal to federal court and of the application of Iqbal, and he had enough time to amend his complaint if he had wanted to.

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Written by snahmod

July 29, 2013 at 4:39 pm

Follow me on Twitter: @NahmodLaw

I am now tweeting on Twitter. My handle is @NahmodLaw.

Most of my tweets will be related to section 1983, constitutional law and the First Amendment, the subjects of this blog.

However, my tweets will occasionally cover other subjects.

I hope you follow me.


Written by snahmod

July 22, 2013 at 1:22 pm

Posted in Uncategorized

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

The Supreme Court handed down an important First Amendment decision on June 20, 2013, that has attracted relatively little attention thus far. The decision is Agency for International Development v. Alliance for Open Society (PDF), 133 S. Ct. — (2013), No. 12-10 (Justice Scalia, joined by Justice Thomas, dissented; Justice Kagan recused herself).

In order to understand it, I’d like to provide the First Amendment background.

First Amendment Background

It is black letter First Amendment law that, with few exceptions, government cannot directly regulate the speech of its citizens because of disagreement with the viewpoint expressed. Ideally, government should be neutral when it comes to the content of speech. See my post of January 19, 2010, where I discuss the three dominant rationales of the First Amendment.

It is also black letter First Amendment law that government cannot compel its citizens to express political or other views. West Virginia Bd. of Education v. Barnette, 319 U. S. 624 (1943); Wooley v. Maynard, 430 U. S. 705 (1977).

Government Funding and Unconstitutional Conditions

What happens, however, where government does not do either of these directly but instead conditions the receipt of government funds in ways that affect the content of the recipient’s speech? To what extent should government be permitted to buy a citizen’s First Amendment (and other) rights by exercising the power of the purse? This implicates what is known as the doctrine of unconstitutional conditions.

Let me set the stage for Agency for International Development with several examples from earlier Supreme Court cases.

1. Suppose the federal government provides funds that may only be used by recipient organizations to promote childbirth, not abortion.

According to the Supreme Court in Rust v. Sullivan,  500 U. S. 173 (1991), this was a constitutional condition–it did not violate the First Amendment–because the government was entitled to insure that its funds were used by recipients for their intended purpose, the promotion of childbirth. In addition, nothing prevented the recipient from obtaining funding from other private sources that could be used for abortion counseling, so long as the two activities, childbirth and abortion counseling, were kept separate.

2. Suppose the federal government not only provides funds for a particular purpose, say, paying for legal services for indigents, but also imposes a condition on the recipient that it not take a particular position in the course of providing those legal services, even if taking a particular position in the course of providing legal services is separately funded by private sources.

Notice how this condition goes beyond the use of the funds themselves, thereby making it more suspect under the First Amendment.

According to the Supreme Court in Legal Services Corp. v. Velasquez, 531 U.S. 533 (2001), this condition on funding violated the First Amendment. It was an unconstitutional condition.

The Agency for International Development Case

Finally, consider the Agency for International Development case. Here the United States, as part of a program to eliminate HIV/AIDS worldwide, funded various non-governmental organizations (NGOs) operating around the world to participate in this program. However, two conditions on receiving funding were imposed. The first condition posed no First Amendment problem under Rust: no funds could be used to promote or advocate the legalization or practice of prostitution and sex trafficking.

However, the second condition did present a problem: no funds could be used by any recipient organization that did not have a policy expressly opposing prostitution and sex trafficking.

Various recipient organizations challenged the second condition under the First Amendment because, if they complied with it, they would, first, alienate certain host governments and, second, they would have to censor privately funded discussions in publications, conferences and other forums.

In an opinion by Chief Justice Roberts, the Supreme Court held this second condition unconstitutional. It went well beyond the funding condition upheld in Rust. And it even went beyond the funding condition struck down in Legal Services Corporation. It did not just prohibit recipients from expressing a position with which the federal government disagreed, but it required them  affirmatively to take the government’s position as their own. This requirement conflicted with the First Amendment’s prohibition against compelled speech.

As Chief Justice Roberts put the matter, “It requires them to pledge allegiance to the Government’s policy of eradicating prostitution.”

In context, then, this was not a difficult First Amendment case, but it was an important one.

Written by snahmod

July 11, 2013 at 10:39 am

Posted in First Amendment

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

The Supreme Court handed down two important decisions on race in this last week of its 2012 Term that have more in common than appears on first reading.


The first is Fisher v. University of Texas (PDF), 133 S. Ct. — (2013), where the Court held, 7-1, in an opinion by Justice Kennedy, that the lower federal courts did not properly apply the required strict scrutiny to the University’s affirmative action plan.

Rather than deferring to University administrators and their good faith regarding the question of whether the affirmative action plan was narrowly tailored to accomplish the compelling interest in diversity, the lower federal courts should have instead engaged in “stricter” scrutiny and asked whether the University adequately considered the availability of race-neutral alternatives to its affirmative action plan.

In so ruling, the Court did not have to address the question raised by Justices Scalia and Thomas in their separate concurring opinions as to the propriety of using race at all in university admissions for diversity purposes.

Shelby County

The second is Shelby County v. Holder (PDF), 133 S. Ct. — (2013), a blockbuster decision where the Court held, 5-4, in an opinion by Chief Justice Roberts, that Congress had exceeded its powers under section 2 of the Fifteenth Amendment when it re-enacted the pre-clearance coverage formula of section 4 of the Voting Rights Act of 1965 because that coverage formula was based on outdated data regarding voting and race in the covered Southern states.

Fisher is a Fourteenth Amendment equal protection case and Shelby County is a Fifteenth Amendment case. But the two cases obviously have race in common.

Increasing Supreme Court Discomfort with Affirmative Action

But they also have in common the Court’s increasing discomfort with affirmative action plans involving race. Fisher, of course, expressly dealt with an affirmative action plan for university admissions.

But I read Shelby County as similarly involving a kind of affirmative action plan, this one involving a Congressional remedy directed against states and local governments that have previously discriminated on the basis of race in voting.

Reluctance to Defer to Politically Accountable Bodies

Perhaps more deeply, both cases demonstrate the Court’s unwillingness to defer to politically accountable bodies of government at all levels–federal, state and local–that have enacted such plans in order to provide for diversity and remedy past racial discrimination.

The Court has apparently concluded that “enough is enough” because the United States is sufficiently close to a “color blind” society to justify much “stricter” scrutiny–which may be fatal in fact–of such admissions and voting plans.

Of course, whether this is an accurate description of our society remains a matter of considerable debate.


I previously blogged on the basics of affirmative action on November 5, 2009. Then, on October 10, 2012, I posted two short videos of interviews on Fisher. You might find these informative.

Written by snahmod

June 26, 2013 at 3:59 pm

Posted in Constitutional Law


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