Rooker-Feldman Applies Even Where State Court Decisions Are Not Final: T.M. v. University of Maryland Medical System
The Rooker-Feldman Question Presented in University of Maryland Medical System
In its 2025 Term, the Supreme Court granted certiorari in a Fourth Circuit case, T.M. v. University of Maryland Medical System, 139 F.4th 344, 353-354 (4th Cir. 2025), cert granted, 147 S. Ct.— (12-5-25)(No. 25-197), aff’d, 147 S. Ct. – (2026), to deal with the following Question Presented: “Whether the Rooker-Feldman doctrine can be triggered by a state-court decision that remains subject to further review in state court.” The Court, in an opinion for the Court by Justice Sotomayor, answered in the affirmative, with Justice Thomas concurring, and Justice Barrett, joined by Chief Justice Roberts and Justices Kagan and Gorsuch, dissenting.
The Fourth Circuit’s Decision
In this case, a patient and her parents sought to invalidate a state court’s consent order basing her release from involuntary commitment on compliance with certain conditions. The Fourth Circuit ruled that the district court correctly dismissed this § 1983 complaint under Rooker-Feldman, pointing out that the case “bears an uncanny resemblance to Rooker” which similarly sought to undo a state court judgment. It did not matter that this case involved a consent order which was itself challenged as unconstitutional; the plaintiff was still a state court loser. And even though plaintiff won in one state court, that state court case did not involve the court order that plaintiff now argued was unconstitutional. Finally, the Fourth Circuit rejected the plaintiff’s argument that Rooker-Feldman should not apply here because there was no final state court judgment. The court explained: “[W]e agree with the Sixth and Eighth Circuits that Rooker-Feldman is not limited to situations when a federal court plaintiff no longer has any recourse within the state system.” There was no “stealth fifth requirement for invoking the Rooker-Feldman doctrine.”
The Supreme Court’s Decision
Affirming, the Supreme Court explained that this case involved the “straightforward application of the logic and reasoning underlying Rooker-Feldman.” The plaintiff here complained of injuries caused by the state court judgment itself, by arguing that the consent order violated her federal and state due process rights and was entered into under duress ten days before the federal lawsuit was filed. This was the “paradigm” Rooker-Feldman situation.
The Court went on to reject the plaintiff’s argument that a new requirement should be added to Rooker-Feldman, namely, that it should apply only to final judgments entered by the highest court of the relevant state. It concluded that this proposed rule was “inconsistent with the Court’s precedents, risks producing anomalous results, and undermines federalism interests.” Instead, the Court emphasized that Rooker-Feldman was, and should continue to be, grounded on the functional distinction between original federal court jurisdiction under 28 U.S.C. § 1331 and the Supreme Court’s appellate jurisdiction over state court judgments under 28 U.S.C. § 1257. Contrary to the plaintiff’s argument and the dissenters’ position, Rooker-Feldman cases were not akin to collateral attacks brought under a federal district court’s original jurisdiction pursuant to § 1331.
The Concurring and Dissenting Opinions
Justice Thomas concurred, agreeing with the majority that Rooker-Feldman was soundly based on the “simple legal proposition that only this Court may exercise appellate jurisdiction over state-court judgments.” Justice Barrett, joined by the Chief Justice and Justices Kagan and Gorsuch, dissented, arguing that Rooker-Feldman should not apply when the underlying state court action remains pending. The seven Courts of Appeals that had previously so ruled “were right to hold the line. … Because Rooker-Feldman stands on shaky ground, we have consciously kept its footprint small. … [S]o we should make the doctrine no larger.”
The dissenters also rejected the majority’s argument that federalism principles were promoted by applying Rooker-Feldman to non-final state court judgments, particularly since the plaintiff’s suit was brought under § 1983, which had transformed traditional concepts of federalism. For this and other reasons, the majority’s ruling “muddied waters that were hardly clear to begin with.” Finally, the dissenters emphasized that, regardless of the majority’s decision in this case, the Rooker-Feldman doctrine’s scope should be narrow.
Comment
The (slim) majority got it right because the rationale of Rooker-Feldman, that federal courts do not have appellate jurisdiction over state court decisions, applies with full force to state court decisions that are not final. On the other hand, the dissenters were correct in insisting that Rooker-Feldman, at its best incredibly arcane and frequently difficult to apply consistently, should be narrow in scope.
For much more on Rooker-Feldman, including collected circuit court decisions, see §§ 1:26-1:30 in Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 (2025 edition)(2026 edition forthcoming)(West/Westlaw).
Pending Supreme Court Rooker-Feldman Decision: T.M. v. University of Maryland Medical System
The Rooker-Feldman Background
In the circuits, despite the broad jurisdictional grants of 28 U.S.C. §§1331 and 1343 over section 1983 claims, there are circumstances where federal jurisdiction is thought to be absent. Thus, under the Rooker-Feldman doctrine (named after two Supreme Court cases), as subsequently elaborated by the Court in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005). federal courts have no subject matter (or appellate) jurisdiction over state court judgments in connection with modifying or vacating them. In other words, plaintiffs who are state court losers cannot use section 1983 claims brought in federal court to try to challenge adverse state court decisions directly. That is what state appellate courts are for.
For Rooker-Feldman to apply, then, there must be a state court judgment. Rooker-Feldman does not apply, though, to oust federal courts of jurisdiction where an unreviewed administrative order is involved. This is so even where the administrative agency acted in an adjudicative capacity or where the plaintiff could have sought review, but did not, of the agency’s decision in state court.
Exxon-Mobil Corp. and the Court’s Attempt to Explain the Proper Scope of Rooker-Feldman
In Exxon Mobil Corp., a unanimous 2005 decision, the Supreme Court, per Justice Ginsburg, observed that Rooker-Feldman “has sometimes been construed to extend far beyond the contours of the Rooker and Feldman cases, overriding Congress’ conferral of federal-court jurisdiction concurrent with jurisdiction exercised by state courts, and superseding the ordinary application of preclusion law pursuant to 28 U.S.C.A. 1738.” After extensive analysis of the doctrine, the Court then declared:
“The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Rooker-Feldman does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions.”
The Court in Exxon Mobil went on to emphasize that when there is parallel state and federal litigation, as in the case before it, Rooker-Feldman was not triggered just by the entry of judgment in the state court proceeding. Rather, preclusion law would then be applicable. Accordingly, the Court reversed the Third Circuit which had ruled in erroneous reliance on Rooker-Feldman that the district court’s jurisdiction terminated once the state court entered judgment. The Court pointed out that the litigant in the federal action was not seeking to overturn the state court judgment.
Rooker-Feldman turns out to be quite a complicated and arcane doctrine, as you see. I cover it extensively, and collect many circuit court cases, in §§ 1:25-1:30 of my Treatise, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 (2025-26 ed.)(West/Westlaw).
Does Rooker-Feldman apply where a state court decision is not final but is being appealed within the state court system? That is the question currently pending before the Supreme Court.
Certiorari Granted in T.M. v. University of Maryland Medical System
The Supreme Court granted certiorari in a Fourth Circuit case, T.M. v. University of Maryland Medical System, 139 F.4th 344 (4th Cir. 2025), cert granted, 147 S. Ct.— (12-5-25)(No. 25-197), to deal with the following Question Presented: “Whether the Rooker-Feldman doctrine can be triggered by a state-court decision that remains subject to further review in state court.”
In this case, a patient and her parents sought to invalidate a state court’s consent order basing her release from involuntary commitment on compliance with certain conditions. The Fourth Circuit ruled that the district court correctly dismissed this section 1983 complaint under Rooker-Feldman, pointing out that the case “bears an uncanny resemblance to Rooker” which similarly sought to undo a state court judgment.
According to the Fourth Circuit, it did not matter that this case involved a consent order which was itself challenged as unconstitutional; the plaintiff was still a state court loser. And even though plaintiff had won in one state court, that case did not involve the court order that plaintiff now argued was unconstitutional.
Finally, the Fourth Circuit rejected the plaintiff’s argument that Rooker-Feldman should not apply here because there was no final state court judgment. The court explained: “[W] agree with the Sixth and Eighth Circuits that Rooker-Feldman is not limited to situations when a federal court plaintiff no longer has any recourse within the state system.” There was no “stealth fifth requirement for invoking the Rooker-Feldman doctrine.”
Prediction
My prediction is that the Court will affirm the Fourth Circuit and attempt once again, as it did in Exxon-Mobil over twenty years ago, to clarify the scope of Rooker-Feldman. Whether it will succeed this time remains to be seen.
UPDATE
As predicted, the Supreme Court, on June 18, 2016, affirmed the Fourth Circuit. 147 S. Ct. — (2026). Justice Sotomayor wrote for the Court, with Justice Thomas concurring and Justice Barrett, joined by Chief Justice Roberts and Justices Kagan and Gorsuch, dissenting. My next post will deal with this new decision.
Heck v. Humphrey and Purely Prospective Relief: The Supreme Court’s 2026 Decision in Olivier v. City of Brandon
Heck v. Humphrey
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that where a plaintiff with a § 1983 damages claim has an existing prior conviction or sentence, and where success on the § 1983 damages claim would necessarily imply the invalidity of that conviction or sentence, the claim does not accrue until the conviction or sentence has been overturned or otherwise eliminated. As discussed extensively in Chapter 9 in my Treatise, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 (West/Westlaw)(2025-26 ed.) Heck has spawned a great deal of complicated litigation dealing with its scope and applicability. I’ve observed in my § 1983 presentations to attorneys that Heck has become Hell. But what follows turns out to be an easy case.
Olivier v. City of Brandon
Suppose a § 1983 plaintiff—a “street preacher” who was previously convicted of violating a city ordinance regulating speech near a public amphitheater–now wants to engage in similar conduct without the threat of criminal prosecution. So he files a suit under § 1983 and the First Amendment against the city challenging the constitutionality of that ordinance and seeking forward-looking prospective relief only. Does Heck apply? In Olivier v. City of Brandon,[1] Justice Kagan wrote for a unanimous Court: “The answer is no. Heck prohibits the use of § 1983 to challenge the validity of a prior conviction or sentence so as to obtain release from custody or monetary damages. That decision has no bearing on [plaintiff’s] suit seeking a prospective remedy.”
In Olivier, the plaintiff had pleaded no contest five years earlier to violating the ordinance and had received one year of probation and paid a fine. His current § 1983 First Amendment suit sought only prospective relief, not the reversal of his prior conviction and not compensation for it. In addition, the plaintiff did not plan to use a favorable judgment subsequently to collaterally attack that conviction or its effects.
The district court accepted the city’s argument that Heck applied, thereby barring plaintiff’s § 1983 claim, because a favorable decision would cast doubt on the earlier conviction. The district court rejected the plaintiff’s argument that Heck did not apply to a § 1983 suit for prospective relief that was unrelated to a prior conviction. The Fifth Circuit then affirmed the district court, but the Court reversed.
The Unanimous Decision
The Court pointed to its precedent making clear that that there was a long-established distinction between Heck-type claims and those seeking “wholly” forward-looking relief. It was not dispositive for Heck purposes that if the plaintiff succeeded in his § 1983 suit, that would somehow suggest or indicate that his prior conviction was unconstitutional. There was no real “looking back” in the plaintiff’s suit here, unlike in true Heck situations. Moreover, if another hypothetical plaintiff (call him Jones) without a conviction were to challenge the ordinance on identical First Amendment grounds, surely the suit by Jones could proceed under § 1983 even if Jones’s success in that suit would in a sense imply the invalidity of the Olivier plaintiff’s conviction. For these reasons, Heck did not apply in this case and the plaintiff could sue under § 1983 to prevent future enforcement of the allegedly unconstitutional ordinance.
Comment
Olivier is an easy case which the Court used to push back against the unwarranted expansion of Heck to situations where its rationale simply does not apply.
Schedule for 42nd Annual Section 1983 Conference: April 23-24, 2026
Below is the schedule for the upcoming Section 1983 Conference to be held at Chicago-Kent College of Law on April 23-24, 2026. For registration information, please email cle@illinoistech.edu or call 312-906-5090. We hope to see you there.
PROGRAM SCHEDULE
Day One – April 23, 2026
| 8:45 – 9:00 AM | Welcome and Introduction |
| 9:00 – 10:15 AM | The Section 1983 Claim: Basics |
| Monroe v. Pape: color of law, exhaustion of judicial remedies, and the background of tort liability Causation Important constitutional provisions “Laws” actions Heck v. Humphrey and the pending Olivier case Due process & section 1983 malicious prosecution claims | |
| Sheldon H. Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law | |
| 10:15 – 10:30 AM | BREAK |
| 10:30 – 11:45 AM | Qualified Immunity: What’s Not Clearly Established |
| Who Has the Burden of Proof? Should a Court Address the Merits Prong When Prong Two is Dispositive? What Law Controls the Clearly-Established-Law Question? How Clear Must Clearly Established Law Be? Whatare the Roles of the Judge and Jury in Resolving QI? When is an Interlocutory Appeal Permitted & What is the Scope of Review? Do Private Actors Get Qualified Immunity? | |
| Karen M. Blum, Professor Emerita and Research Professor of Law, Suffolk University Law School | |
| 11:45 AM – 1:00 PM | LUNCH (on your own) |
| 1:00 – 2:00 PM | Substantive Due Process |
| Incorporation of the Bill of Rights Protection of non-textual rights from arbitrary legislation Protection from grossly excessive punitive damage awards Protection against abuse of power by government officials | |
| Rosalie B. Levinson, Professor of Law Emerita, Valparaiso University School of Law | |
| 2:00 – 2:15 PM | BREAK |
| 2:15 – 3:30 PM | Procedural Defenses: Limitations, Preclusions and Wrongful Death |
| Limitations: Section 1988, choosing the proper limitations period, accrual, and tolling Preclusion: Section 1738 and the effect of prior state criminal and civil proceedings Survival and wrongful death: the differences between survival and wrongful death Section 1988 and inconsistency | |
| Sheldon H. Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law | |
| 3:30 – 3:45 PM | BREAK |
| 3:45 – 5:00 PM | The Supreme Court’s Current and Forthcoming Terms |
| A review of major Supreme Court cases from October Term 2024 and October Term 2025 that relate to Section 1983 litigation. This includes cases about exhaustion requirements, availability of attorney fees, use of Section 1983 to enforce federal legislation, excessive police force, and cases involving the First and Fourth Amendments. | |
| Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law University of California Berkeley School of Law | |
| 5:00 – 6:00 PM | RECEPTION |
Day Two – April 24, 2026
| 9:00 – 10:15 AM | The Internet Meets Section 1983 |
| Constitutional issues in Supreme Court cases relating to the Internet – Internet gets full First Amendment protection Social media as “core” speech Section 230 issues Conduct of government officials online State regulation of the Internet, like platform moderation statutes and age verification Laws Hot issues on the horizon | |
| Gerald M. Birnberg, Adjunct Professor of Law, South Texas College of Law | |
| 10:15 – 10:30 AM | BREAK |
| 10:30– 11:45 AM | Up and Down the Bureaucratic Pyramid: Litigating Section 1983 Cases against Municipalities |
| Theories of Municipal Liability Policy, Practice, and Indifference Hiring & Discipline Section 1983 Immunities Damages & Indemnification | |
| Teri Ravenell, Associate Dean of Faculty Research & Development, Professor of Law, Villanova University | |
| 11:45 AM – 1:00 PM | LUNCH (on your own) |
| 1:00 – 2:15 PM | Section 1983 Remedies: Damages and Prospective Relief |
| Section 1983 litigation has given rise to a number of interesting questions associated with remedies. In this session, the speaker will discuss compensatory and punitive damages, as well as issues related to injunctive relief. | |
| Noah Smith-Drelich, Assistant Professor of Law, Chicago-Kent College of Law | |
| 2:15 – 2:30 PM | BREAK |
| 2:30 – 3:45 PM | The Fourth Amendment |
| David Owens, Director, Civil Rights & Justice Clinic and Assistant Professor of Law, School of Law, University of Washington | |
| 3:45 PM | END OF CONFERENCE |
42nd Annual Section 1983 Conference: April 23-24, 2026 at Chicago-Kent
42nd Annual Section 1983 Civil Rights Litigation Conference
Section 1983 litigation continues to present challenges for federal and state courts across the country, and the Supreme Court has an especially large impact in this dynamic area of law. Join us for the 42nd annual two-day in-person conference to get up-to-date on the latest cases, trends, and strategies affecting §1983 litigation. You will have the opportunity to examine both the law of §1983 as well as the litigation strategies that underlie successful cases. As always, experts in the field address the most important issues and provide advice for you as you tackle this year’s cases, whether you represent plaintiffs or defendants.
This conference is in-person ONLY and will not be live-streamed.
The conference will be held in the Oglivie Auditorium on the first floor.
Please call Chicago-Kent CLE at 312-906-5090 or email cle@illinoistech.edu
The Sixth Circuit Provides a Primer on § 1983 Civil Conspiracies
The Sixth Circuit’s Rieves Decision
In Rieves v. Town of Smyrna, 67 F.4th 856, 863 (6th Cir. 2023), a § 1983 civil conspiracy claim was brought against city and county law enforcement agencies and their officials arising out of raids directed at the plaintiff CBD shop owner (and numerous other CBD shop owners as well) because they falsely believed that such shops violated state drug laws. According to the Sixth Circuit, which reversed the district court’s grant of summary judgment to the county and its sheriff, there was sufficient evidence to support the plaintiff’s claim. The plaintiff did not have to prove an express agreement among the conspirators or show that each conspirator knew all the details of the plan; circumstantial evidence to establish an agreement was sufficient.
Further, there was no “personal involvement” requirement for a § 1983 civil conspiracy claim: it was enough that the county sheriff’s alleged behavior “reflects interdependent decision-making with [the city’s police department and the county’s district attorney’s office] through the planning and execution of Operation Candy Crush, all calculated to achieve an unconstitutional outcome.” The Sixth Circuit observed that its earlier decision in Webb v. United States, 789 F.3d 647 (6th Cir. 2015), “does not demand personal involvement by each co-conspirator in every wrongful or overt act to be held liable.”
The Sixth Circuit explained that the evidence showed that Operation Candy Crush “had an obviously illegitimate purpose, known by the co-conspirators, prior to the overt act. … [T]he scope of the operation was known and defined before the raids. …[And] the simultaneous nature of the raids indicates that they should be treated as parts of a single plan.” And because there was a genuine dispute regarding whether there was a single conspiratorial plan, the district court had erred in granting summary judgment to the county and its sheriff.
Comments
The Sixth Circuit got it right in terms of the legal principles governing § 1983 conspiracy claims. See my Treatise, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 §§ 2:23-2:26 (2025-26 ed.)(West/Westlaw). Circumstantial evidence can be sufficient to establish an agreement. In addition, personal involvement of every co-conspirator in the wrongful or overt act is not required. Furthermore, not every co-conspirator has to know the precise details of the plan or even the identity of all participants in order to be liable.
I would add that a § 1983 conspiracy plaintiff must also allege and prove a constitutional deprivation; a mere conspiracy standing alone is not enough. However, the co-conspirators need not know that their agreement or conduct was unconstitutional: what is required is that they had an understanding, or made some concerted effort or had a plan, to cause harm to the plaintiff.
When Do State and Local Law Enforcement Officers Act Under Color of Federal Law? Federal-State Cooperation and the Bivens Dilemma
By its very language, § 1983 actions can be brought against state and local law enforcement officers only when they act under color of state law, not federal law. In practical terms, this means that their allegedly unconstitutional conduct must constitute state action within the meaning of the Fourteenth Amendment. See, on state action, Chapter 2, Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 (2025-26 ed.)(West/Westlaw).
The Bivens Remedy
In contrast, if state and local law enforcement officers are found to have acted under color of federal law, any damages remedies for constitutional violations must be sought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which implied a Fourth Amendment cause of action for damages from the Fourth Amendment itself.
However, under recent restrictive Supreme Court case law, such Bivens claims can ordinarily go forward only if the case does not arise in a new Bivens context. If it does arise in a new Bivens context, a Bivens remedy is unavailable if there are “special factors” indicating that the judiciary is “less equipped than Congress” to decide whether such a claim should proceed. The Supreme Court has emphasized that if there is just a single reason to reach that conclusion, then a Bivens remedy is unavailable.
Now consider the following two circuit court cases, one from the First Circuit and the other from the Ninth.
The First Circuit’s Jakuttis Decision: Federal, Not State, Action
In Jakuttis v. Town of Dracut, 95 F.4th 22 (1st Cir. 2024), a former town police officer sued a state trooper, among other defendants (including a United States Drug Enforcement (DEA) agent), under § 1983 alleging First Amendment retaliation arising out of actions taken against him because of his reports of wrongdoing by the town police department in connection with a federal law enforcement task force investigating corruption. According to the First Circuit, the state trooper was not a state actor but was instead acting under color of federal law. The plaintiff’s complaint alleged that the state trooper learned of plaintiff’s corruption assertions when the state trooper was on the job as a federal task force officer, and that he investigated those assertions as a federal task force officer and retaliated against plaintiff while working as a federal task force officer. It was not determinative for state action purposes that the plaintiff alleged that the defendant was a state trooper at all relevant times.
The Ninth Circuit’s Thai Decision: Federal, Not State, Action
Similarly, in Thai v. County of Los Angeles, 127 F.4th 1254 (9th Cir. 2025), two law enforcement officers from the Los Angeles District Attorney’s Office were sued under § 1983 for their allegedly unconstitutional conduct (apparently in violation of the Fourth Amendment) in connection with the plaintiffs’ applications for disability benefits. The Ninth Circuit, considering the “totality of the circumstances,” found that the defendants acted under color of federal, not state law. The officers, who were assigned full-time to a joint federal-state task force addressing disability benefits fraud, were not state actors because “the federal government was the source of authority under which the task force was implemented and because the officers’ day-to-day work was supervised by a federal officer”.
Comment
If the First and Ninth Circuits had found state action present, then the plaintiffs’ damages claims could have proceeded under § 1983. However, since they found that only federal action was present, those damages claims could theoretically only proceed under Bivens.
One might legitimately wonder, though, whether either or both of these damages claims arose in contexts different from Bivens. And if they did, were there “special factors” in these cases that precluded Bivens damages claims?
This is not idle speculation. Both cases stemmed from joint federal and state force cooperation, a not-unusual situation. This is especially the case in a time of joint federal (through ICE) and state enforcement of federal immigration law.
If such immigration enforcement is a context different from Bivens, and if the immigration setting is a special factor because Congress plays a major role, then persons injured by allegedly unconstitutional conduct of federal and state law enforcement officers would not have a damages remedy against either group of officers. A § 1983 damages claim would not be viable because of the absence of state action and a Bivens damages claim might not be viable because of recent Supreme Court restrictions on such claims.
Excessive Force Claims, Motions to Dismiss and Video Recordings
Procedural issues are generally beyond the scope of this blog. Still, it may be worth briefly mentioning that the Fourth Circuit, in reversing the district court’s dismissal of plaintiff’s complaint in a Fourth Amendment excessive force case, ruled that a federal district court may consider a video recording at the motion to dismiss stage and must credit the plaintiff’s version of the facts “to the extent they are not ‘blatantly contradicted’ by the recording.” Doriety for Estate of Crenshaw v. Sletten, 109 F.4th 670, 679 (4th Cir. 2024).
The video in this case, which was publicly available, was not introduced by the plaintiff but rather by the defendant police officer who had moved to dismiss. In response to this motion to dismiss, the plaintiff did not object to the district court’s consideration of the video and even referred to it as part of the “record.” But the plaintiff argued that the video did not support the motion to dismiss. The district court disagreed.
In reversing the district court’s grant of the defendants’ motion to dismiss, the Fourth Circuit found that the officer’s body-worn video did not blatantly contradict the plaintiff’s plausible allegations that the officer was not in danger at the time he fired additional shots at the plaintiff driver.
Note that the Fourth Circuit treated the defense motion to dismiss as just that: neither it nor the district court converted the motion into one for summary judgment. The Fourth Circuit also made clear that it did not have to reach the question whether the video was “integral to the complaint” and authentic because the plaintiff did not object to its use and indeed relied on it.
Finally, the Fourth Circuit commented that its use of the video in this case was a matter of first impression in its circuit. It also observed that such use was already the rule in at least two other circuits.
Bush v. Gore 25 Years Later: I Still Can’t Get Over It
IIt has been twenty-five years since the Supreme Court handed down Bush v. Gore. What follows are comments that I wrote on the fifteenth anniversary of that decision. My views of this decision have, if anything, become even more negative since that time, in light of the Supreme Court’s controversial use of its “shadow docket” to effectively enable Trump administration policies to be implemented despite serious questions raised by federal district courts about their legality.
It is one of the worst Supreme Court decisions in history.
No, I’m not referring to Dred Scott v. Sanford, which held that blacks could never be U.S. citizens, thereby making the Civil War all but inevitable.
I’m also not referring to Plessy v. Ferguson, which upheld separate but equal and ushered in Jim Crow.
I’m not referring to Lochner v. New York, where a laissez faire Supreme Court struck down pro-labor progressive legislation.
And I’m not referring to U.S. v. Korematsu, which upheld the internment of loyal Japanese-American citizens during World War II.
All four of these decisions were morally repugnant, and several were even evil.
No, I’m referring to the infamous and more recent 2000 decision in Bush v. Gore, where the Court called a halt to the Florida recount and effectively selected George Bush as President of the United States.
This is, in my opinion, perhaps the most overtly politically partisan decision in Supreme Court history. Five Republican-appointed Justices voted for the Republican candidate, while the four dissenters, including two Democrat-appointed Justices and two Republican-appointed Justices, maintained that the Court should not have become involved or at least should not have stopped the recount.
Bush v. Gore blatantly violated the most basic principles of federalism, comity and judicial restraint. The five Justices in the majority, even if they thought they acted in good faith, fooled themselves into thinking that they were simply interpreting the Constitution rather than voting their own partisan political preferences. Justice Scalia was, of course, one of those.
Why do I bring up Bush v. Gore? Because Justice Scalia repeatedly admonished those who criticized the Court’s decision to “get over it.”
But Justice Scalia himself never could get over Roe v. Wade, the 1973 landmark abortion decision. He contended that Roe was incorrect and should be overruled [which it was in Dobbs v. Jackson Woman’s Health in 2022], regardless of the consequences. He repeatedly and heatedly accused his colleagues of intellectual dishonesty and of supplanting the political process.
He could never get over the Court’s decision in Romer v. Evans, dealing with sexual orientation discrimination. He accused the majority of taking sides in the culture wars and of signing on to the “homosexual agenda.”
He angrily attacked the Court’s decision in U.S. v. Windsor, striking down the Defense of Marriage Act, and commented bitterly (and correctly, as it turned out), that Windsor would directly lead to constitutionalizing same-sex marriage. Then came Obergefell v. Hodges, the blockbuster 2015 decision finding a due processright to same-sex marriage.
I fully understand Justice Scalia’s anger and frustration regarding abortion and same-sex marriage, even though I disagree with his views on the merits. And I even understand why he could never “get over” those decisions.
But his calls for others to “get over” Bush v. Gore always rang hollow to me and smacked of disingenuousness or even hypocrisy.
I continue to teach Bush v. Gore as the last case in my constitutional law course because it is the best example of a wrongheaded and politically partisan Supreme Court decision handed down by a triumphalist Court.
I still cannot get over it.
Separation of Church and State: History, Law and Democracy (Video)
On November 5, 2025, I spoke about the Religion Clauses on a webinar set up by an Illinois branch of the League of Women Voters (LWV). This was the opening segment of a LWV webinar on separation of church and state. It also included three other speakers (two of them clergymen) who addressed relevant questions about the role of religion in the American public square. The webinar went for a little over an hour.
After being introduced by the LWV moderator, I spoke for about twenty minutes with a minimum of legal jargon. I set out what the Religion Clauses were about at their inception and how they have been interpreted recently by the United States Supreme Court. To summarize: Establishment Clause constraints have been considerably narrowed by the Court (governments can now do much more to promote religion) while the Free Exercise Constraints have been considerably weakened by the Court in the name of religious liberty (governments can now do much less to limit religious exemptions from generally applicable civil and criminal laws).
After my presentation, the panelists took over and had many insightful comments to make.
Here is the YouTube link. 🎥 Watch the Webinar on YouTube
I think you will find the entire webinar informative. You most definitely do not have to be an attorney to appreciate it.
Nahmod Law 