Archive for January 2026
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.
Nahmod Law 