Archive for the ‘Uncategorized’ Category
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.
The Free Exercise Clause, Section 1983 and RLUIPA Damages Actions: Certiorari Granted in Landor v. Louisiana Dept. of Corrections and Public Safety
Section 1983 and Free Exercise Claims for Damages
Violations of the Free Exercise Clause of the First Amendment, like violations of many of the provisions of the Bill of Rights, are actionable for damages under section 1983 against individual state and local government officials in their individual capacities. When such Free Exercise violations involve clear discrimination against religion, the outcomes are ordinarily favorable to the plaintiffs. When they don’t involve such discrimination, then under the leading Free Exercise Clause decision, Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the outcomes are not always so clearcut. Recall that Smith, written by Justice Scalia, mandated the use of rational basis review: because there was a neutral and generally applicable criminal law prohibiting the use of certain controlled substances, the government in Smith did not really have to justify its refusal to exempt religiously motivated drug use from its general prohibition of drug use. A rational basis was sufficient.
The Gradual Erosion of Smith
However, the Supreme Court has become increasing uncomfortable with Smith’s rational basis test in situations involving purportedly neutral and generally applicable rules regulating conduct. In particular, see Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020), finding a “strong showing” that the plaintiffs, who challenged the New York governor’s executive order imposing serious restrictions on attendance at religious services in certain zones because of Covid-19, were likely to prevail. See also Tandon v. Newsom, 141 S. Ct. 1294 (2021), applying “most favored nation” treatment to religious services during the Covid-19 pandemic. Thus, Free Exercise Clause claims are increasingly receiving favorable treatment by the current Supreme Court despite Smith. Most recently, for example, in Mahmoud v. Taylor, 146 S. Ct. — (2025), the Supreme Court held that parents of public elementary school students have a Free Exercise Clause right to opt out of a school board’s introduction of “LGBTQ+ inclusive” storybooks into classroom instruction. Nevertheless, despite this increasingly favorable treatment by the Court of Free Exercise claims, success for plaintiffs is not guaranteed when the plaintiffs use section 1983 to seek damages for Free Exercise Clause violations.
The Potential RLUIPA Workaround
But there are two kinds of religion cases in which rational basis clearly does not apply: cases involving religious claims brought by owners of property challenging state and local government land use decisions, and prison inmates challenging state and local government conditions of confinement that allegedly infringe on their religious beliefs and behavior. The Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.A. § 2000cc, explicitly applies strict scrutiny to certain land use and prison decisions affecting religion. (Note that the Religious Freedom Restoration Act (RFRA), 42 U.S.C.A. § 2000bb, which restored the pre-Smith strict scrutiny test for free exercise violations in general, and therefore was potentially much broader in scope than the subsequently enacted RLUIPA), was struck down by the Supreme Court as applied to states and local governments. City of Boerne v. Flores, 521 U.S. 507 (1997)).
So after all of this, the question becomes whether RLUIPA, with its strict scrutiny, provides for its own (independent of section 1983) action for damages against individual state and local government officials in their individual capacity? The Supreme Court will address this question in its 2025 Term in Landor v. Louisiana Department of Corrections and Public Safety, 82 F.4th 337, 339 (5th Cir. 2023), petition for rehearing and for rehearing en banc denied, 93 F.4th 259 (5th Cir. 2024), certiorari granted, 146 S. Ct. – (2025).
The Current RLUIPA Precedent
Over a decade ago, In ruling against the plaintiff inmate’s RLUIPA individual capacity damages claim against a correctional officer who ordered the forced shearing of his dreadlock, the Seventh Circuit, per Judge Posner, said the following:
Although his [pro se] complaint is none too clear, he appears to be seeking damages against the defendant in both the latter’s official capacity and his personal capacity, and the former claim is barred by the state’s sovereign immunity, Sossamon v. Texas, 131 S. Ct. 1651 (2011), … , and the latter claim cannot be based on the Act because the Act does not create a cause of action against state employees in their personal capacity. It does authorize injunctive relief … but he’s since been released from prison, so his injunctive relief claim is moot ….
Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012) (citations omitted).
Thereafter, in Sharp v. Johnson, 669 F.3d 144 (3d Cir. 2012), the Third Circuit announced that it was joining the Fourth, Fifth, Seventh and Eleventh Circuits in ruling that RLUIPA does not create a damages remedy against state and local government officials in their individual capacities. RLUIPA’s “appropriate relief” language did not clearly indicate a contrary result. See also Holland v. Goord, 758 F.3d 215 (2d Cir. 2014), Wood v. Yordy, 753 F.3d 899 (9th Cir. 2014), Tripathy v. McKoy, 103 F.4th 106 (2nd Cir. 2024) and Fuqua v. Raak, 2024 WL 4645493 (9th Cir. 2024).
The Court Grants Certiorari in Landor
Now consider Landor v. Louisiana Department of Corrections and Public Safety, a Fifth Circuit decision in which the Court has granted certiorari. “The question presented [in the petition to the Fifth Circuit] is whether … [RLUIPA] provides for money damages against officials sued in their individual capacities. Because we’ve already answered that question in the negative, we AFFIRM.”The Fifth Circuit rejected the former state prisoner’s argument that the Supreme Court’s RFRA decision in Tanzin v. Tanvir, noted below, required another result here. It reasoned that RFRA is a different federal statute that was enacted under section 5 of the Fourteenth Amendment, unlike RLUIPA that was enacted under the Spending and Commerce Clauses. Thereafter, the Fifth Circuit denied a petition for rehearing and for rehearing en banc, with eleven voting against rehearing and six voting in favor.
In the Tanzin RFRA case, subsequently affirmed by the Supreme Court, the Second Circuit had ruled that RFRA permits the recovery of money damages against federal law enforcement officers sued in their individual capacities. It distinguished Sossamon v. Texas, 563 U.S. 277, 131 S. Ct. 1651, 179 L. Ed. 2d 700 (2011), where the Supreme Court held that RLUIPA does not permit the recovery of money damages against a state or state officers sued in their official capacities. Tanvir v. Tanzin, 889 F.3d 72 (2d Cir. 2018), opinion amended and superseded, 894 F.3d 449 (2d Cir. 2018), aff’d, 141 S. Ct. 486, 208 L. Ed. 2d 295 (2020) (8-0; Justice Barrett did not participate). The Court reasoned that RFRA’s “appropriate relief” language included claims for money damages against federal government officials in their individual capacities.
The reasoning and ruling in Tanzin are what the plaintiff in Landor is relying on.
Comments
It is highly likely that the Supreme Court will reverse the Fifth Circuit in Landor and rule that RLUIPA violations by state and local government officials can give rise to damages against them in their individual capacities. Religion-based claims do well generally in the Court, and the statutory interpretation argument in Landor is a strong one.
Quere: if this turns out in fact to be the case, could RLUIPA violations by state and local government officials also give rise to section 1983 “laws” actions seeking damages against them in their individual capacities? After all, a decision favorable to the plaintiff in Landor would mean that RLUIPA creates enforceable rights for “laws” purposes. And is there any reason to think that Congress intended to preclude such “laws” actions based on RLUIPA violations?
The Supreme Court’s 2024 Term Section 1983 Decisions
The forthcoming 2025-2026 Edition of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (West/Westlaw), includes not only recent and important circuit court and state court decisions, but all § 1983-related decisions of the Supreme Court that were handed down up to, and including, its 2024 Term. I have blogged on most of these this past year, so please search on Nahmodlaw.com for whichever of these decisions you want to know more about. (References in the parentheticals are to Treatise sections)
Supreme Court Decisions in the 2024 Term
* Royal Canin U.S.A. Inc. v. Wullschleger: removal and amended § 1983 complaints (see § 1:38)
* Perttu v. Richards: the Prison Litigation Reform Act, exhaustion of administrative remedies and jury trial (see § 1:52)
* Williams v. Reed: exhaustion of administrative remedies and state court § 1983 claims (see §§ 1:59 and 9:61)
* Medina v. Planned Parenthood South Atlantic: the spending power, the Medicaid Act and “laws” actions (see § 2:38)
* Barnes v. Felix: Fourth Amendment excessive force and the “totality of the circumstances” approach (see § 3:21)
* Guttierez v. Saenz: standing of a death row inmate to use § 1983 to seek access to DNA testing (see § 9:30)
Lackey v. Stinnie: preliminary injunctions, prevailing parties and attorney’s fees (see § 10:7)
Certiorari Granted for Decision in the 2025 Term
*Landor v. Louisiana Department of Corrections and Public Safety: the Religious Land Use and Institutionalized Persons Act and damages actions against state and local government officials sued in their individual capacity (see § 3:15)
My new email address is snahmod@illinoistech.edu.
Exhaustion Under the Prison Litigation Reform Act and the Right to a Jury: Perttu v. Richards
Section 803 of the Prison Litigation Reform Act, 42 U.S.C.A. § 1997e, imposes an exhaustion of prison administrative remedies requirement on prisoners who wish to sue under § 1983. (See § 9:65 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2024-25 ed.)(West/Westlaw)). At the same time, there is a Seventh Amendment right to a jury trial in certain § 1983 cases. (See §§ 1:52-1:55 of my Treatise on the right to a jury trial).
What is the interplay, if any, between the PLRA’s exhaustion requirement and the Seventh Amendment right to a jury trial? In some situations, the exhaustion issue is “intertwined” with the merits of the prisoner’s lawsuit because both depend on whether the plaintiff’s allegations are in fact true.
In Perttu v. Richards, 146 S. Ct. – (2025), aff’g, Richards v. Perttu, 96 F.4th 911, 921 (6th Cir. 2024), the Supreme Court resolved a split in the circuits on this question by holding that in such cases there is a right under the PLRA to a jury trial.
In Perttu, the plaintiff inmate challenged the district court’s decision, after an evidentiary hearing, that found he had failed to exhaust administrative remedies under the PLRA in connection with his First Amendment retaliation claim. He maintained that the defendant prison official had affirmatively prevented him from filing grievances alleging the defendant’s sexual abuse by ripping them up or otherwise destroying them.
In this case of first impression in its circuit, the Sixth Circuit reversed and held that the Seventh Amendment required that a jury decide disputed questions of fact relating to PLRA exhaustion “when the exhaustion issue is intertwined with the merits of the underlying dispute.” In this regard, the Sixth Circuit observed that it disagreed with the Seventh Circuit’s contrary decision as set out in Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008): “[T]he rationale [of Pavey] that a jury may reexamine the judge’s factual findings [relating to the merits] rings hollow if the prisoner’s case is dismissed for failure to exhaust his or her administrative remedies. In such an instance, a jury would never be assembled to resolve the factual disputes. That is Pavey’s fatal flaw.”
Agreeing with the Sixth Circuit as to the result but not reaching the constitutional issue on the merits, the Supreme Court affirmed in an opinion by Chief Justice Roberts. It held “as a matter of statutory interpretation that parties have a right to a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim that falls under the Seventh Amendment.” (emphasis added). Here, the factual disputes over exhaustion overlapped with the plaintiff’s First Amendment retaliation claim.
Justice Barrett dissented, joined by Justices Thomas, Alito and Kavanaugh. Adopting an historical approach and indicating that the Seventh Amendment would not be violated if district courts decided disputed questions of fact implicating exhaustion even when intertwined with the merits, Justice Barrett asserted: “The Court reads the PLRA to say what it does not. It does so for reasons that the parties did not brief; that have no basis in our doctrine; and that are contrary to well-established principles of statutory interpretation. In so doing … the Court creates a regime … [that] generates more litigation of its own.” 146 S. Ct. at –.
The Court in Perttu avoided what many of the the Justices considered to be a difficult Seventh Amendment issue by deciding the case on PLRA statutory interpretation grounds. In so doing, it suggested that if Congress was not happy with the possible adverse effects of its decision on the implementation of the PLRA’s exhaustion requirement, Congress could amend the PLRA.
The Medicaid Act, the Spending Power and Section 1983 “Laws” Actions: Medina v. Planned Parenthood South Atlantic
The Talevski Background
In Health & Hospital Corp. of Marian County v. Talevski, 599 U.S. 166 (2023), the Supreme Court held that the Federal Nursing Home Amendments Act of 1978’s transfer and medication rules created private rights enforceable under § 1983. The Court, in an opinion by Justice Jackson, rejected the broad argument that Spending Clause legislation should never give rise to such enforceable rights. “‘Laws’ means ‘laws’, and nothing in [defendants’] appeal to Reconstruction-era contract law shows otherwise.” However, Justice Gorsuch concurred observing that the defendants failed to “develop fully” any arguments revolving around whether federal statutory rights in spending power legislation were “secured consistent with the Constitution’s anti-commandeering principle.” Justice Barrett, joined by Chief Justice Roberts, also concurred, emphasizing that an “actual clash–between one private judicial remedy against another, more expansive remedy–is not required to find that a statute forecloses recourse to § 1983.”
Justice Thomas dissented at great length. He argued that there was a difference in kind between federal legislation enacted under Congress’s enumerated powers and those enacted under the so-called “spending power.” The latter were not “laws” within the meaning of §1983’s language. They were contractual in nature and could not “secure rights by law.” Furthermore, to the extent that such federal statutes might by enforced through §1983, they ran “headlong into the anticommandeering doctrine and long-recognized limitations on the federal spending power.”
Justice Alito, joined by Justice Thomas, also dissented. He argued that while the FNHRA created individual rights, Congress had not indicated its intent to allow §1983 to be used to enforce the relevant provisions of the Act. To the contrary: “Allowing §1983 suits will upend [the Act’s] careful balance” of federal and state enforcement that “channels disputes through that regime.”
As I concluded in an earlier post on Talevski, “§1983 claims based on violations of federal statutes enacted under the spending power dodged a bullet: these kinds of claims might have been eliminated entirely. Still, even though they are still viable, it is fair to say that going forward such claims will continue to be viewed from a posture of skepticism by a fair number of the justices because of concerns with the scope of Congressional power, anti-commandeering and federalism.” See https://nahmodlaw.com/2023/06/27/health-hospital-corp-v-talevski-an-important-section-1983-laws-decision-on-the-spending-power-with-10th-amendment-overtones/
The Medina v. Planned Parenthood South Atlantic Decision
This assessment has now been borne out by a 2025 decision involving the Medicaid Act, enacted under the Spending Clause, and § 1983 “laws” actions. The Supreme Court, in Medina v. Planned Parenthood South Atlantic, 146 S. Ct. — (2025), rev’g, 95 F.4th 152 (4th Cir. 2024), answered in the negative the following Question Presented: “Whether the Medicaid Act’s any-qualified-provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider.” In Medina, the plaintiff who wanted to shift all of her gynecological health care to Planned Parenthood attempted to use § 1983 to challenge South Carolina’s exclusion of Planned Parenthood from its Medicaid program because Planned Parenthood provided abortion services Justice Gorsuch wrote the Court’s opinion, in which he discussed at length why “spending-power statutes like Medicaid are especially unlikely to [confer an enforceable right.]”
Along these lines, he pointed out that the Court’s precedents made clear that a federal statute claimed to support a § 1983 cause of action must clearly and unambiguously do so. However, Medicaid’s any-qualified-provider provision, contained in 42 U.S.C. § 1396a(a)(23)(A), did not clearly and unambiguously create such a right, unlike the Federal Nursing Home Reform Act provisions in Talevski. So-called legislative history was not determinative. And the policy argument that § 1983 actions were an effective way to enforce the any-qualified provider provision was not persuasive in light of the supervisory role of the federal government and available state administrative processes. Consequently, the plaintiff could not use § 1983 to challenge the exclusion of Planned Parenthood from the state’s Medicaid program.
Justice Thomas concurred, arguing broadly that the Court should reexamine its § 1983 jurisprudence “which bears little resemblance to the statute as originally understood.” In his view, the Court should revisit the question of what constitutes a “right” under § 1983, especially given the expansion of constitutional rights since 1871 when § 1983 was enacted. More specifically, he maintained, as he had in his dissent in Talevski, that federal statutes enacted under the spending power cannot “secure” rights under § 1983.
Justice Jackson (the author of Talevski), joined by Justices Sotomayor and Kagan, dissented. She asserted generally, and partly in response to Justice Thomas’s concurrence, that the purposes of § 1983, “one of the country’s great civil-rights laws,” were, and had to be, very ambitious in light of the Civil War and Reconstruction because terrorist violence was an existential threat to the United States. As to the precise issue before the Court, she argued that, contrary to the majority, Talevski governed, and that, under the Court’s “laws” precedents generally, the Medicaid Act did indeed create a right that the plaintiff could enforce through § 1983. “Medicaid’s free-choice-of-provider provision easily satisfies the unambiguous-conferral test.” There was ample rights-conferral language in the Act as well as legislative history to support this interpretation.
Comment:
The Court’s decision in Medina was not surprising for two reasons. One is the already noted posture of skepticism of at least three of the Justices toward using § 1983 to enforce purported rights under federal statutes enacted pursuant to the spending power. The second is that the case involved South Carolina’s decision to withdraw funding for Planned Parenthood, a provider of abortion services, even for its general gynecological services. It should not be surprising that, because Roe v. Wade has been overruled, a majority of the Justices view Planned Parenthood with jaundiced eyes and are not disposed to prevent states from refusing to fund it in its entirety, even though funding for abortion itself is not directly implicated.
Supreme Court Adopts “Totality of Circumstances” Approach in 4th Amendment Excessive Force Cases: Barnes v. Felix
[You may have noticed that it’s been a while since my last post. That’s because I’ve been working on the 2025-26 Update to my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (West)(Westlaw). But the Update is almost done (it will be published in early fall), so here is a post on a new and important section 1983 Fourth Amendment case recently handed down.]
The Issue in Barnes v. Felix
The Supreme Court in Barnes v. Felix, 146 S. Ct. – (2025), rev’g, 91 F.4th 393 (5th Cir. 2024), resolved a circuit split on the question of whether the “reasonableness” inquiry set out in Graham v. Connor for Fourth Amendment excessive force cases requires a “totality of the circumstances” approach, as a majority of the circuits had ruled, or whether the “moment of the threat” approach–under which the focus should be on the time when the officer’s safety was threatened and not on events that preceded the threats—was the proper one. Reversing the Fifth Circuit which had applied the “moment of the threat” approach, the Court ruled that the “totality of the circumstances” approach was the correct one.
In Barnes, the defendant county law enforcement officer fatally shot the plaintiff’s decedent following a lawful traffic stop. Plaintiff sued the officer and county under section 1983 alleging Fourth Amendment excessive force claims. The suit was filed in state court and then removed to federal court, where the district court granted the defendants’ motion for summary judgment on the ground that there was no constitutional injury. It rejected the plaintiff’s argument that the officer’s use of force was unreasonable because, even if the decedent attempted to flee the scene, he did not pose a threat to the officer. The district court also declared that the officer’s actions prior to the moment of threat had no bearing on the constitutionality of the officer’s ultimate use of force.
The decedent had been stopped by the officer because the decedent was driving a car with outstanding toll violations; he was then asked for his driver’s license and proof of insurance. During the course of the encounter, the officer requested that the decedent open the trunk of his car and get out of his car; the door on the driver’s side opened; the car’s left blinker turned off and then on; the officer drew his weapon, pointed it at decedent and began shouting “don’t fucking move” as the car began moving; the officer then stepped into the car with his weapon drawn and pointed it at decedent, pushing his head hard to the right. As the car moved, the officer shot inside the car with “no visibility” as to where he was shooting. He fired a second shot, and the car came to a complete stop, with the bleeding decedent held at gunpoint by the officer. Decedent was pronounced dead at the scene.
The Fifth Circuit affirmed the district court in an opinion by Judge Higginbotham on the ground that the moment of threat occurred in the two seconds before decedent was shot: the officer was still hanging onto the moving car and believed it would run him over. Judge Higginbotham also concurred in his own opinion, arguing that the moment of the threat doctrine was an “impermissible gloss” on Graham and that the Fifth Circuit should either revisit its precedents or the Supreme Court should resolve the circuit split on this issue.
The Supreme Court’s Unanimous Decision
The Supreme Court unanimously reversed in an opinion by Justice Kagan. It rejected the moment of the threat approach as “improperly narrowing the requisite Fourth Amendment analysis.” Instead, under its Fourth Amendment excessive force precedents, “a court must consider all the relevant circumstances, including facts and events leading up to the climactic moment.” This was the required “fact-dependent and context-sensitive approach.” It explained that this approach has no time limit, even though typically the precise situation at the moment of the use of force is what will matter most. However, in the case before it, the district court and the Fifth Circuit had apparently (and erroneously) looked “only to a two-second snippet of the encounter.” Accordingly, the Court vacated the judgment of the Fifth Circuit and remanded for further proceedings.
The Concurrence: Signaling
Justice Kavanaugh, joined by Justices Thomas, Alito and Barrett, concurred. Perhaps signaling to judges and attorneys how cases like Barnes should be decided, he noted that he wrote separately to address “the dangers of traffic stops for police officers, particularly when as here the driver pulls away in the midst of a stop.” Among other things, he pointed out that police officers in these circumstances cannot assume that any traffic stop will be safe. He also noted that a driver who speeds away can create serious dangers to the officer and people nearby. “[W]hen a driver abruptly pulls away during a traffic stop, an officer has no good or safe options.” Consequently, the reasonableness assessment must take account of the officer’s need for split-second decision making even under the “totality of the circumstances” approach.
Comments
The Supreme Court soundly rejected the “moment of the threat” approach in Barnes. The choice between the “moment of the threat” approach and the “totality of the circumstances” approach will frequently determine whether there was a Fourth Amendment excessive force violation in the first place. This is so because all-too-often drivers stopped for relatively minor traffic-related offenses are tragically shot by officers who sometimes overreact to a threat of danger that they themselves have brought about. At the very least, this should be a factor in determining whether the officer used deadly force under the “totality of the circumstances” approach.
To the argument that this puts officers at undue risk in split-second decision making situations, the response is that qualified immunity is still available to officers. As discussed in Chapter 8 of my Treatise, even if their conduct violated the Fourth Amendment, their use of deadly force must have also violated clearly settled Fourth Amendment law at the time of the challenged conduct in order for them to be liable in damages. Overcoming qualified immunity is often quite difficult.
Note that the Court in Barnes expressly acknowledged that it did not discuss just how an officer’s own “creation of a dangerous situation” is relevant to the reasonableness analysis. This, the Court said, is a question different from the timing question in Barnes. In this connection, the Court commented that it had similarly left this very question open in its proximate cause decision in County of Los Angeles v. Mendez, 581 U.S. 420 (2017), analyzed at §3:108 of my Treatise, which rejected the Ninth Circuit’s provocation rule in an excessive force case.
Supreme Court Gives Section 1983 Plaintiffs in Removed Pendent Claim Cases a Strategic Option: The 2025 Royal Canin Decision
Where a defendant is sued initially in a state court under §1983, the choice arises of defending in the state court or removing the proceeding to federal court. This choice is given §1983 defendants by 28 U.S.C. §1441(b), which provides in relevant part that “[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.” The proper venue upon removal is to the district court “for the district and division embracing the place where such action is pending” and the proper procedure for removal is set out in 28 U.S.C. §1446.
There may be circumstances where the removed plaintiff can return to state court. In Carnegie-Mellon University v. Cohill, Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988). the Supreme Court held that “a federal district court has discretion under the doctrine of pendent jurisdiction to remand a properly removed case to state court when all federal-law claims in the action have been eliminated and only pendent state-law claims remain.”
But consider the Supreme Court’s important 2025 decision in Royal Canin USA Inc. v. Wullschleger, 604 U.S. 22, — (2025). In an opinion for a unanimous Court, Justice Kagan declared:
“What happens, if after removal, the plaintiff amends her complaint to delete all the federal-law claims, leaving nothing but state-law claims behind? May the federal court still adjudicate the now purely state-law suit? We hold that it may not. When an amendment excises the federal-law claims that enabled the removal, the federal court loses its supplemental jurisdiction over the related state-law claims.”
Describing the case as requiring a “jurisdictional primer,” Justice Kagan observed that the plaintiff had filed her lawsuit originally in Missouri state court, alleging violations of the Federal Food, Drug, and Cosmetic Act (FDCA) as well as state statutory law. The defendant then removed to federal court, but because the plaintiff did not want it there, she deleted every mention of the FDCA in her amended complaint and petitioned the district court to remand to state court on the state law claims. The district court denied the petition, the Eighth Circuit reversed and the Court affirmed. It ruled that the possibility of supplemental jurisdiction “vanished” alongside the now absent federal law issues. This was consistent with the text of §1367: “With the loss of federal-question jurisdiction, the court loses as well its supplemental jurisdiction over the state claims.”
The Court rejected the position of other circuits that the existence of subject matter jurisdiction is determined by examining the complaint at the time of removal. It further rejected the defendant’s contention that there was an exception “for when an amendment follows a lawsuit.” Instead, the Court emphasized that when the federal law issues disappear, the federal court no longer has power over the state law claims.
Royal Canin thus stands for the proposition that a court should look to the amended complaint to determine jurisdiction, whether in federal question cases or diversity cases. This provides potential §1983 plaintiffs who are deciding whether to file initially in federal or state court with an additional strategic option if they file in state court and the defendants remove to federal court. Much will depend on the relative strength of the § 1983 claims and the state law claims as well as on the remedies sought and against whom.
For considerably more discussion of removal in §1983 cases and related procedural matters, see Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 ch. 1 (2024-25 Edition)(West/Westlaw).
Nahmod Law 