Nahmod Law

Please indulge me with this post of my remarks on receiving the Abner Mikva Award on July 24, 2018, from the Chicago Lawyers’ Chapter of the American Constitution Society.

Thanks, Geoff [Geoffry Stone is Professor of Law at University of Chicago Law School]. It is indeed an honor to be introduced by one of the premier constitutional law and First Amendment scholars of this generation, a worthy successor to the great Harry Kalven at U of C Law school, and a national leader in promoting the values of ACS.

It is especially an honor for me, a first-generation American, to receive the Abner Mikva award. Judge Mikva was one of the great public servants in my lifetime. I still remember, when I was a college student at U of C, hearing about an outstanding civil rights and liberties law firm in Chicago called Devoe, Shadur, Mikva and Plotkin. Although I never had the pleasure of meeting Judge Mikva personally, I did meet his law firm colleague, Judge Milton Shadur, also a great public servant, when we spoke at several Federal Judicial Center programs for federal judges.

I want to thank the ACS Board in Chicago for giving me this award, and particularly appreciate the support of Erwin Chemerinsky; my superstar student, Anthony Joseph (at this very moment taking the Illinois Bar Exam); and Dana Pownall.

Thanks to all of you for being here to honor us. I’d like to acknowledge my colleagues from Chicago-Kent, several of my favorite former students and my close friends who are sitting at their special table. And I would be remiss (and perhaps divorced) if I did not acknowledge my ultimate supporter—my wife Sonia, whom I was exceedingly fortunate to meet and marry way back in the last century.

Since I love to teach, I would like to teach you a little about section 1983, a topic that I have taught, written about and litigated in the Supreme Court and various federal courts over the past forty years. Section 1983 is a federal statute enacted by the 42^ndCongress in 1871 and signed into law by President Grant. It is one of several Reconstruction Era statutes enacted under the then-new 13^thand 14^thAmendments so as to protect former slaves and their supporters and to go after the KKK. I like to think of section 1983 as covenental, as codifying an agreement between citizens and their local and state governments.

This superstatute creates a 14^thAmendment damages action against state and local government officials and employees, and against local governments themselves, that violate our constitutional rights and cause damage. It is pro-plaintiff all the way, and its resurrection in 1961 in Monroe v. Pape initially gave rise to expansive interpretations in the Supreme Court. However, in the last decade-and-a-half in particular, the Supreme Court unfortunately (but perhaps not surprisingly) has cut back on the scope of section 1983 liability by limiting constitutional protections (especially the Fourth Amendment), by expanding what’s called absolute immunity from damages liabiltiy and, more to the present point, by providing law enforcement officers with overbroad and often unjustifiable qualified immunity protection from damages liability in excessive force and false arrest cases. As currently articulated by the Supreme Court, qualified immunity protection in my view provides too big a margin for error to too many law enforcement officers and effectively renders them unaccountable. These decisions constitute a kind of Supreme Court signalling to law enforcement that is very troubling and inconsistent with the grand purposes of section 1983.

What can be done? I do not hold out much hope for change in the Supreme Court in the near future. After all, Justice Kennedy (who recently resigned) typically joined with four other conservative justices in expanding qualified immunity protection to law enforcement officers, and his likely replacement, Judge Kavanaugh, will surely do no less. So any changes to section 1983 that might restore it to its prior status as a powerful civil rights and liberties sword will have to come from a politically accountable Congress.

Here are my suggestions for Congressional legislation: (1) statutorily overule the Will decision and declare that section 1983 abrogates 11^thAmendment immunity, so that states can be sued directly for damages, and (2) impose respondeat superior liabilty on state and local governments for the constitutional violations of their officials and employees (no more arcane official policy or custom requirement for governmental liability). These two changes would render qualified immunity protection for individual law enforcement officers and others less important because deep pocket state and local governments would be liable under respondeat superior.

Anyway, those are my section 1983 recommendations in a nutshell. Thank you all again for being here. I am truly fortunate to be in a position to promote civil rights and liberties by my teaching, my writing, my appellate advocacy and, yes, even my blogging.

I invite you to follow me on Twitter: @NahmodLaw