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The Broad Scope of Judicial Immunity: An Example from the Eighth Circuit

Suppose a state court judge allows a municipal court clerk to issue arrest warrants and to set bonds using the judge’s signature stamp, as well as to set a schedule requiring cash-only bonds regardless of an arrestee’s ability to pay. Suppose further that doing so is unconstitutional because these acts of the clerk are not performed by a neutral and detached magistrate. Can the judge be held liable for damages under § 1983? The Eighth Circuit answered in the negative in Hamilton v. City of Hayti, 948 F.3d 921 (8th Cir. 2020).

It determined that judicial immunity from damages liability applied to the state court judge’s delegation of authority to the clerk to issue an arrest warrant using the judge’s signature stamp against the plaintiff even though this “likely [sic]” made the warrant invalid because it was not issued by a detached and neutral magistrate who made a probable cause finding. The Eighth Circuit reasoned that judges in Missouri have original jurisdiction to issue arrest warrants and thus the judge here did not act in the clear absence of all jurisdiction with respect to this challenged conduct.

Judicial immunity also applied to the plaintiff’s claim that the arrest warrant required him to post a cash-only bond in an amount established by the judge’s unconstitutional bond schedule: this too was a judicial act within the judge’s jurisdiction.

Finally, the Eighth Circuit went on to apply judicial immunity to the municipal clerk as well under a functional approach because, even though the judge did not expressly direct the clerk to issue the arrest warrant against the plaintiff, the judge had nevertheless authorized the clerk to issue and set warrants with bond conditions. This was a judicial function protected by (quasi) judicial immunity.


It has long been § 1983 black letter law that judges lose their absolute immunity from damages liability only where (1) they have acted in the clear absence of all jurisdiction, and not just in excess of jurisdiction, or (2) where their challenged acts are not judicial in nature. See generally, Chapter 7 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West/Westlaw).

In Hamilton, the Eighth Circuit had little difficulty in finding that the state court judge did not act in the clear absence of all jurisdiction in light of the original jurisdiction of Missouri judges to issue arrest warrants and to require arrestees to post cash-only bonds. Only if, say, Missouri law had expressly and unambiguously stated that state court judges did not have subject matter jurisdiction to engage in such conduct could it have plausibly been argued that the state court judge here acted in the clear absence of all jurisdiction. Hamilton is thus far different from a case in which a state civil court judge, for example, “convicts” a § 1983 plaintiff and has him put in jail!

Moreover, these were clearly judicial acts: Missouri judges of general jurisdiction engaged in issuing arrest warrants and requiring arrestees to post cash-only bonds, and the parties expected such conduct from judges. Again, this is far different from a case in which, for example, a state court judge comes off the bench during a trial and punches a litigant in the face!

Hamilton is yet another example (of so many) in which state court judges who acted in a clearly unconstitutional manner and caused harm to § 1983 plaintiffs still escape damages liability. Such judicial immunity, like legislative and prosecutorial immunity, is designed to protect decision making processes important to a democracy and the rule of law, even at the cost of constitutional harms to § 1983 plaintiffs. That is, it protects absolute immune defendants not only against the costs of liability but also, more significantly, against the costs of even defending. And judicial immunity in particular is a virtually insurmountable burden for § 1983 plaintiffs.

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Written by snahmod

June 21, 2021 at 10:01 am

Posted in Uncategorized

Identifying Officers in Police Excessive Force Cases: Sixth Circuit Rules that Summers v. Tice Does Not Apply

The Issue

We know that in both tort law litigation and section 1983 litigation a plaintiff must allege and prove by a preponderance of the evidence that the defendant’s conduct was a but-for cause of the plaintiff’s injury.

What happens in a section 1983 Fourth Amendment excessive force case where the plaintiff knows that one of several police officers used excessive force against him but he cannot identify the particular officer who did?

Can that plaintiff sue all of the officers jointly and severally, arguing that they are all liable except to the extent that any of them can prove the absence of but-for causation by a preponderance of the evidence? Is there an analogy to the famous tort case, Summers v. Tice, 33 Cal. 2d 80 (1948)?

The Sixth Circuit’s Answer

The Sixth Circuit answered “no” in Pineda v. Hamilton County, 2020 WL 5868402 (6th Cir. 2020). The plaintiff alleged that one of three off-duty sheriff’s deputies providing security at a night club hit him on the back of his head and caused brain damage. However, he sued all three of them under section 1983 and the Fourth Amendment jointly and severally because he could not identify the deputy who hit him. Distinguishing Summers v. Tice as involving defendants both of whom were negligent, the Sixth Circuit emphasized that here only one deputy had allegedly used excessive force. It therefore affirmed the district court’s grant of summary judgment to all three deputies. The court also observed that that plaintiff did not indicate any circumstances keeping him from identifying the deputy who allegedly struck him.

Judge Posner’s Primer on Joint and Several Liability

Consider in this connection Richman v. Sheahan, 512 F.3d 876, 884-85 (7th Cir. 2008)(citations omitted), where Judge Posner, discussing the joint and several liability issues that might arise in cases dealing with multiple defendants, explained :

 “There are four possibilities in a tort case with multiple defendants, such as this. The first is that each defendant’s act makes the injury to the plaintiff a little worse and it is the combination of the acts of separate defendants that does him in. Then each defendant is liable only for the increment in harm that he caused.”

 “Second, each defendant might by his own act have inflicted the entire injury, in the sense that, had he not committed the act, the injury would have been no less grave than it was, as when two persons shoot a third and each wound would have been fatal by itself. Again, both would be liable, but this time jointly and severally.”

“Third, as in Summers v. Tice, each defendant might have committed an act that is a tort when injury results (for there is no tort without an injury), but it is unclear which defendant’s act was the one that inflicted the injury–both shot at the plaintiff, one missed, but we do not know which one missed. Again both are jointly and severally liable.”

“And fourth, one defendant might commit the act that causes the harm yet the other be sued as well because he could have prevented the harm but did not. … If [the defendants who just stood around looking while Richman was being swarmed] should have realized that their colleagues were using excessive force they had a duty to intervene, for they were part of the arresting force, awaiting a call to join the swarm should it become necessary.”

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Written by snahmod

June 8, 2021 at 3:08 pm

Posted in Uncategorized

What is the Noerr-Pennington Doctrine and What Does It Have to Do with Section 1983?

The Noerr-Pennington Doctine and Section 1983

Under the Noerr-Pennington doctrine, which is informed by the First Amendment’s Petition Clause, “parties who petition the government for governmental action favorable to them cannot be prosecuted under the antitrust laws even though their petitions are motivated by anticompetitive intent.” Video Intern. Production, Inc. v. Warner-Amex Cable Communications, Inc., 858 F.2d 1075, 1084 (5th Cir. 1988). In the antitrust setting, this doctrine is based on two cases: Eastern R. R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers of America v. Pennington, 381 U.S. 657 (1965).

Perhaps surprisingly, there may also be absolute immunity from section 1983 liability for private parties who petition governments for favorable treatment which is anticompetitive, just as there is Noerr-Pennington1 immunity from prosecution under the antitrust laws. As the Second Circuit explained in Hirschfeld v. Spanakos, 104 F.3d 16, 19 (2d Cir. 1997): “The Noerr immunity doctrine protects plaintiffs from damage claims based on the institution of a suit in certain situations. The doctrine originated in the antitrust area, but it has been extended to provide immunity from liability for bringing other suits.”

An Example from the Seventh Circuit

For example, the Seventh Circuit inTarpley v. Keistler, 188 F.3d 788 (7th Cir. 1999), applied Noerr-Pennington immunity in a case where the plaintiff, an unsuccessful candidate for a permanent position at a state hospital, sued state officials and officials of a political party alleging that they conspired against him to deny him the position (as well as a temporary position leading to the permanent one) because of his political affiliation and instead to give it to another, all in violation of the First Amendment. Ruling against the plaintiff on Noerr-Pennington grounds in connection with his claim against party officials regarding the temporary position, the Seventh Circuit determined that they were exercising their First Amendment right to petition the government to recommend one of their own party for the temporary position. “Making suggestions about whom to hire is a traditional form of political activity.”

Asserting that it was balancing plaintiff’s First Amendment rights against those of the party officials, the Seventh Circuit went on to say that it would not vindicate plaintiff’s First Amendment rights at the expense of the party officials who recommended that a party member be hired for the temporary position. It affirmed the district court’s grant of summary judgment for the party officials, distinguishing between plaintiff’s constitutional right not to be excluded from a public job because of his political affiliation under Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990) and the right of a citizen to recommend another for public employment.

Judge Ripple dissented, 188 F.3d at 797. He argued that based on the evidence before the court, this was not a case in which party officials simply advocated the hiring of someone other than plaintiff, but rather one in which they conspired with state officials to define and limit the pool of candidates for the temporary vacancy on party affiliation grounds. He also contended that the majority had no basis for preferring the alleged First Amendment right of the party officials to the well-established First Amendment right of the plaintiff.

The Sham Exception to Noerr-Pennington Immunity

However, there is a “sham” exception to Noerr-Pennington immunity. In an antitrust case with implications for section 1983 as well, the Supreme Court defined this “sham” exception when it declared in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, 508 U.S. 49, 113 S. Ct. 1920 (1993), that antitrust litigation will not be deprived of Noerr-Pennington immunity unless that litigation is objectively baseless. The Court elaborated:

“We now outline a two-part definition of ‘sham’ litigation. First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals ‘an attempt to interfere directly with the business relationship of a competitor’ … through the ‘use of the governmental process–as opposed to the outcome of that process–as an anticompetitive weapon.’ This two-tiered process requires the plaintiff to disprove the challenged lawsuit’s legal viability before the court will entertain evidence of the suit’s economic viability.”

After Professional Real Estate Investors, Inc, then, a plaintiff who alleges that the defendant instituted litigation violative of the antitrust laws and section 1983 will be confronted by the Noerr-Pennington immunity of the defendant unless the plaintiff can demonstrate that the defendant’s litigation was a sham within the meaning of the Court’s two-part test.

The “Sham” Exception Applied by the Ninth Circuit

For example, In Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 643 (9th Cir. 2009), the plaintiff, formerly a landowner, sued a representative of a school district and the law firm that represented it in an earlier eminent domain proceeding involving her property, alleging that they violated her constitutional rights by their acts that led to a much lower valuation of her property than was awarded her. Dismissing the plaintiff’s section 1983 claims, the district court found Noerr-Pennington immunity applicable because the challenged conduct was “incidental to First Amendment-protected petitioning activity.” It also found that plaintiff’s complaint did not fall within the sham exception to Noerr-Pennington “because [plaintiff] had not supported her position that defendants’ alleged intentional misrepresentations to the court ‘depriv[ed] the condemnation proceeding of its legitimacy.’” Reversing on this issue, the Ninth Circuit ruled that the sham exception to Noerr-Pennington immunity applied in this case. The plaintiff’s allegations as to intentional misrepresentations to the court through suppression of evidence were sufficient, and the district court erred in requiring “support” at the motion to dismiss stage.


Noerr-Pennington immunity may apply to protect section 1983 defendants whose challenged anticompetitive conduct is potentially protected by the Petition Clause of the First Amendment. Neverthless, this immunity may be lost if the defendants’ litigation was a sham with the meaning of the Supreme Court’s decision in Professional Real Estate Investors, Inc.

All in all, this can be quite arcane and unfamiliar to attorneys.

I invite to you to follow me on Twitter @NahmodLaw.

Written by snahmod

April 13, 2021 at 10:01 am

Posted in Uncategorized

37th Annual Conference on Section 1983: 4/21-23/2021

Registration is now open!
3-day Webinar Series | April 21 – 23, 2021

Eligible for 12.5 hours of general CLE credit, including 1.25 hours of ethics
  Liability arising out of §1983 claims continues to present challenges for courts across the country, and the Supreme Court has a large impact in this dynamic area of law. Join us for this 10-part webinar series, held over three days, to get up-to-date on the latest cases, trends, and strategies affecting §1983 litigation. You have the opportunity to examine both the law of §1983 as well as the litigation strategies that underlie successful cases. Experts in the field address the most important issues and provide wisdom for you as you tackle this year’s cases, whether you represent plaintiffs or defendants. As always, the conference provides an analytical approach to problems and offers practical advice about how to solve them. 

REGISTRATION NOW OPEN Sign-up today and save $50 on the cost of registration! Pay the early bird rate through April 7. Special discount available for attending this conference for 10 or more years, consecutively.
Register at this link:

PROGRAM HIGHLIGHTS• The Section 1983 Claim: The Basics
• Individual Immunities
• Municipal Liability
• Practical Considerations in §1983 Litigation
• Immigration Law and §1983
• The 4th Amendment: Overview and Update
• Attorney’s Fees & Related Ethical Issues
• The Supreme Court’s Term: Recent and Forthcoming Decisions
• Substantive Due Process: The Constitutional Guaranty that Multitasks New this year!
• Takings after Knick New this year!
All sessions are pre-recorded video content along with real-time speaker interaction available via live chat room throughout each session.  

Kimberly D. Bailey | Associate Professor of Law | Chicago-Kent College of Law
Gerald M. Birnberg | Founding Partner | Williams, Birnberg & Andersen LLP
Karen M. Blum | Professor of Law Emerita | Suffolk University Law School
Victoria Carmona | Assistant Clinical Professor and Supervisory Attorney, Immigration Clinic | Chicago-Kent College of Law
Erwin Chemerinsky | Dean & Jesse H. Choper Distinguished Professor of Law | University of California, Berkeley School of Law
Rosalie B. Levinson |  Professor of Law Emerita | Valparaiso University School of Law
John B. Murphey | Senior Partner | Odelson Sterk Murphey Frazier McGrath, Ltd.
Sheldon H. Nahmod | University Distinguished Professor of Law Emeritus | Chicago-Kent College of Law


Written by snahmod

March 8, 2021 at 5:41 pm

Posted in Uncategorized

Seeking, or Defending Against, Section 1983 Injunctive Relief? Pay Attention to Younger v. Harris

The Basics of Younger v. Harris

Younger abstention is among the more important abstention doctrines that are typically applied to federal court section 1983 claims for declaratory and injunctive relief. This doctrine, based on Younger v. Harris, 401 U.S. 37 (1971), is grounded on considerations of federalism and comity. In its simplest terms, this is the rule: when state criminal judicial proceedings are already pending, a federal plaintiff seeking declaratory or injunctive relief against their continuation will typically be barred from the federal forum.

The Younger rule has been extended by the Supreme Court to include equitable relief against certain pending state judicial proceedings that are civil in nature where state interests are particularly weighty. Pennzoil Co. V. Texaco, Inc., 481 U.S. 1 (1987). The Court has even applied Younger to certain pending state administrative proceedings. Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619 (1986).

When Younger abstention is successfully asserted, it results in the outright dismissal of the section 1983 claims for prospective relief. So the doctrine is of great practical significance, and attorneys must be sensitive to its possible application where related state judicial or administrative proceedings are pending when section claims for prospective relief are filed in federal court.

For Your Reading Pleasure: Three Circuit Cases Addressing the Applicability of Younger

1. Consider Tokyo Gwinnett v. Gwinnett County, 940 F.3d 1254 (11th Cir. 2019), where the plaintiff owner of an adult entertainment business sought section 1983 declaratory relief against a county challenging certain licensing and adult entertainment ordinances. The Eleventh Circuit reversed the district court which had dismissed on Younger grounds because of the county’s pending state court enforcement proceeding initiated while an earlier appeal was pending in the circuit. Although Younger might apply to a civil enforcement proceeding like this one that was technically pending and although the proceeding implicated important state interests and the plaintiff could raise its federal claims there, that proceeding was not “ongoing” at the time of the federal action. “[Eleventh Circuit] precedent tells us to look to the start and progression of the federal litigation as compared to the start and progression of the state litigation.” The plaintiff here filed its federal action on July 22, 2015, while the county did not file its state court enforcement action until July 8, 2016. It was irrelevant that the plaintiff amended its complaint in December 2015 to add newer claims relating to the same controversy. Judge Carnes concurred in part and dissented in part, arguing that the district court got it right on Younger because the state proceedings were ongoing with respect to the plaintiff’s newer claims.

Lesson: timing is everything. The state proceeding was not pending when the section 1983 action for prospective relief was filed in federal court, so Younger did not apply. Note that the Younger doctrine can therefore lead to a race to the courthouse.

 2. In Zadeh v. Robinson, 928 F.3d 457 (5th Cir. 2019), the plaintiff doctor, claiming that state medical board members violated his constitutional rights by a warrantless search of his office and medical records, sought section 1983 declaratory relief against the board which was then investigating him. He challenged several laws implicating the board. The Fifth Circuit found Younger applicable because the plaintiff  was subject to an ongoing state administrative proceeding which was a judicial proceeding for Younger purposes. Further, Texas had a strong interest in regulating the practice of medicine. Moreover, Texas law permitted judicial review by either party of an administrative decision).

Lesson: a relatively straightforward Younger abstention case involving pending state administrative proceedings that were apparently directly challenged by the plaintiff.

3. Consider Citizens for Free Speech v. County of Alameda, 953 F.3d 655, 657-58 (9th Cir. 2019), where, after a county instituted an abatement proceeding against a property owner who wanted to display billboards in violation of a local zoning scheme, the property owner filed a section1983 action alleging constitutional violations and seeking damages and prospective relief against the county. The Ninth Circuit found Younger applicable: the abatement proceeding was ongoing, it was quasi-criminal, it implicated an important state interest, it allowed the plaintiff adequate opportunity to raise its federal challenges and the federal action “could substantially delay the abatement proceeding, thus having the practical effect of enjoining it.” The Ninth Circuit also rejected the plaintiff’s argument that the district court improperly raised Younger sua sponte: “the court may raise abstention of its own accord at any stage of the litigation.”

Lesson: Younger may apply even though the section 1983 plaintiff does not explicitly challenge ongoing state proceedings. The federal courts ask what the effect of the section 1983 prospective relief action will be on the pending state proceedings. In addition, a district court may raise Younger even if the parties do not.

For much much more on Younger, check out Chapter 5 of my Treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2020)(West & Westlaw).

I invite you to follow me on Twitter: @Nahmodlaw

Written by snahmod

February 20, 2021 at 9:12 am

Posted in Uncategorized

What Is “Favorable Termination” Where There Is No Conviction?

The Rule of Heck v. Humphrey: An Existing Conviction

Suppose a section 1983 plaintiff has been convicted of a crime and wants to sue law enforcement officers for damages arising out of his arrest, prosecution, imprisonment or conviction. An initial hurdle is the seminal decision of Heck v. Humphrey, 512 U.S. 477 (1994), which governs those situations in which the section 1983 plaintiff has a existing conviction whose validity might be implicated by a successful damages action as, for example, where the plaintiff alleges that he was prosecuted and convicted because the defendants fabricated evidence. In such cases, the section 1983 claim does not accrue until the underlying conviction is reversed, expunged or otherwise declared invalid by a state tribunal or called into question by a federal court’s issuance of a writ of habeas corpus. According to the Supreme Court, this accrual rule stems from the “intersection” of section 1983 and habeas corpus and is analogous to the common law tort of malicious prosecution where a favorable termination is a required element of a plaintiff’s claim (together with absence of probable cause and malice).

In contrast, where the section 1983 damages action, if successful, would not implicate the validity of the underlying conviction–as, for example, where the plaintiff, convicted of arson, alleges that excessive force was used against him when he was arrested–the section 1983 excessive force claim accrues at the time of the challenged conduct, here, the time of arrest.

(See generally on Heck:

What If There Is No Conviction? The Certiorari Petition in Thompson v. Clark

So far so good. Suppose now that a section 1983 plaintiff who was never convicted alleges that he was arrested and/or prosecuted in violation of his constitutional rights. More specifically, he alleges that he was unlawfully seized pursuant to legal process in violation of the Fourth Amendment and held in jail pending trial pursuant to a judge’s decision. Thereafter, all charges are dismissed and he is released. (Compare Manuel v. City of Joliet, 137 S. Ct. 911 (2017) about which I posted here:

When does such a plaintiff’s cause of action accrue? More specifically, if favorable termination is required by analogy to malicious prosecution, must that favorable termination affirmatively show that the section 1983 plaintiff was innocent or is it enough for the plaintiff to show that the favorable termination was not inconsistent with his innocence?

A petition for certiorari in Thompson v. Clark, No. 20-659 (filed 11-6-20), out of the Second Circuit, raises that issue. In this case, “the prosecution dismissed the charges against petitioner without any plea or compromise. Petitioner’s case was called at a hearing, and the prosecution simply stated: ‘People are dismissing the case in the interest of justice.'” Under Second Circuit precedent, this was insufficient to show favorable termination because the dismissal did not demonstrate the plaintiff’s innocence.

Hence the Question Presented in the petition: “Whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has “formally ended in a manner not inconsistent with his innocence,” as the U.S. Court of Appeals for the 11th Circuit decided in Laskar v. Hurd, or that the proceeding “ended in a manner that affirmatively indicates his innocence,” as the U.S. Court of Appeals for the 2nd Circuit decided in Lanning v. City of Glens Falls.”

Among other things, the petitioner maintains that the First, Third, Fourth, Sixth, Ninth and Tenth Circuits incorrectly take the same position as the Second Circuit where there is no conviction, thus giving rise to a circuit conflict between the Eleventh Circuit and these others that merits a grant of certiorari.


  1. Regardless of whether the Court grants certiorari in Thompson, the preferable favorable termination rule is one that does not require an affirmative indication of innocence. Among other considerations, a contrary rule would encourage prosecutors to offer potential section 1983 plaintiffs a dismissal or its equivalent–an offer many litigants and their attorneys would find difficult to resist in the face of a threatened criminal trial–and thereby undermine any future section 1983 claims challenging the unreasonable seizure pursuant to legal process.
  2. Requiring an affirmative indication of innocence would place those never convicted in a worse position for section 1983 purposes than those who were in fact convicted. Heck does not appear to require an affirmative indication of innocence as a condition precedent to going forward with a section 1983 damages claim; it requires only that the conviction be invalidated where the damages action, if successful, would call the conviction into question.
  3. As nicely pointed out in one of the Amicus briefs, requiring an affirmative indication of innocence is inconsistent with the presumption of innocence.
  4. Note that another important accrual decision based on an analogy to malicious prosecution, McDonough v. Smith, 139 S. Ct. 2149 (2019), involving a due process fabrication of evidence claim, dealt with an acquittal as a favorable termination. (See generally So far as I know, no one has argued that an actual acquittal is not a favorable termination.
  5. Whatever “favorable termination” turns out to mean, it will be a matter of federal law since we are dealing with the accrual of a section 1983 cause of action. It will therefore apply nationally.


I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

January 18, 2021 at 10:31 am

Posted in Uncategorized

Proximate Cause and Recoverable Damages in Section 1983 Cases

Proximate Cause and Section 1983

It is generally agreed that federal common law principles of proximate cause govern section 1983 as a matter of statutory interpretation because they are part of the “background of tort liability.” The Supreme Court weighed in on these principles in its 2017 decision in County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), Mendez involved a warrantless entry by officers in violation of the Fourth Amendment, followed by the use of deadly force that did not violate the Fourth Amendment. The plaintiff in Mendez sought damages under section 1983 for the use of deadly force on the ground that those damages were proximately caused by the warrantless entry.

In Mendez, the Court rejected the Ninth Circuit’s provocation rule of proximate cause and remanded. In its opinion, though, it discussed the various approaches to proximate cause in the section 1983 setting: reasonable foreseeability and the somewhat narrower-in-scope risk rule. See my post on Mendez:

Now consider Martin v. Marinez, 934 F.3d 594 (7th Cir. 2019), a proximate cause damages decision of the Seventh Circuit.

Martin v. Marinez

In Martin v. Marinez, the plaintiff’s Fourth Amendment rights were violated because the defendant police officers did not have reasonable suspicion or probable cause to detain him when they stopped him, forced him from his car, conducted a pat-down search, handcuffed him and put him into a police vehicle. This was an unlawful seizure that violated the Fourth Amendment. However, when they searched his car they found a semiautomatic handgun with a defaced serial number and crack cocaine. They then took the plaintiff, who they discovered was a convicted felon, into custody, which was in turn followed by sixty-five days of incarceration for felony charges resulting from the traffic stop. The charges were thereafter dropped and dismissed through a nolle prosequi motion when a state court granted the plaintiff’s motion to suppress.

However, in contrast to the unlawful stop which did violate the Fourth Amendment, the jury found that the police officers did not violate the Fourth Amendment (for false arrest and unlawful search) once they discovered the gun and the crack cocaine and arrested him—there was probable cause for the arrest and search irrespective of the initial unlawful stop. The plaintiff sought damages totaling $110,000 for his incarceration and lost business income, but was awarded only $1 by the jury for the unlawful stop. Judgment was then entered against him by the district court which had instructed the jury that it could not award any damages for time spent in custody after the officers found the handgun.

Affirming the district court in Martin, the Seventh Circuit ruled against the section 1983 plaintiff on the scope of recoverable damages in this Fourth Amendment case. The court first commented:

“We have not resolved the specific question whether a plaintiff may recover damages for post-arrest incarceration following a Fourth Amendment violation when probable cause supported the ultimate arrest and initiation of criminal proceedings, but the application of the exclusionary rule spared the plaintiff from the criminal prosecution. As Martin notes, there is a split of authority on the question of whether a defendant whose Fourth or Fifth Amendment rights have been violated can recover damages.”

The Seventh Circuit then ruled that the plaintiff could recover damages only for the unlawful stop and not for his incarceration and lost business income. There was probable cause for his arrest even though the initial stop was unlawful: this foreclosed the plaintiff’s false arrest and unlawful search claims. The Seventh Circuit rejected the plaintiff’s argument that the unlawful stop proximately caused the resulting damages for incarceration and lost business income. According to the court, such an approach to damages recovery was not only inconsistent with common law proximate cause principles but also with section 1983 policy because the potential liability would be disproportionate to the underlying constitutional violation. “[Plaintiff’s] damages award was thus properly limited to the harm arising from his unconstitutional detention before his lawful arrest.”


The Seventh Circuit appears to have adopted a risk rule approach to proximate cause in Martin–an approach that I have previously criticized–and not the broader reasonable foreseeability approach. In this connection, the Seventh Circuit said it was following the proximate cause approach of the Second Circuit in Townes v. City of New York, 176 F.3d 138 (2nd Cir. 1999), and of the Third Circuit in Hector v. Watt, 235 F.3d 154 (3rd Cir. 2000), both of which it cited.

Interestingly, the Seventh Circuit did not explicitly deal with the case before it in intervening-superseding cause terms, as it might have.

For much more on proximate cause and section 1983, see Ch. 3 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West & Westlaw).

I invite you to follow me on Twitter: @NahmodLaw.

Written by snahmod

December 23, 2020 at 10:20 am

Posted in Uncategorized

Right of Access Claims, Cover-Ups and the Seminal Harbury Decision

Christopher v. Harbury, Cover-Ups and Right of Access Claims

In Christopher v. Harbury, 122 S. Ct. 2179 (U.S. 2002), the Supreme Court dealt with a denial of access claim brought by the plaintiff widow against federal government officials, alleging that they intentionally deceived her in concealing information about her husband’s detention and torture in Guatemala (where he was a citizen) by Guatemalan military officers paid by the Central Intelligence Agency (CIA). She argued that this deception deprived her of information, or reason to seek information, that she could have used to bring a lawsuit that might have saved her husband’s life. After the case was decided by the District of Columbia Circuit, she was left with her right of access claim, various common law claims including intentional infliction of emotional distress and an international law claim against the CIA. Reversing and ruling against the plaintiff for failure to state a denial of access claim, the Court, in an opinion by Justice Souter explained:

“As stated in the complaint, [the denial of access count] fails to identify an underlying cause of action for relief that the plaintiff would have raised had it not been for the deception alleged. And even after a subsequent, informal amendment accepted by the Court of Appeals, [plaintiff] fails to seek any relief presently available for denial of access to courts that would be unavailable otherwise.”

Two Kinds of Access Claims: Forward-Looking and Backward-Looking

At the outset, the Court observed that its denial of access cases were not as wide-ranging as those in the circuits. Still, for present purposes the circuit denial of access cases could be divided into two categories: (1) those forward-looking claims in which systemic official action hindered a plaintiff in preparing and filing suits in the present, as in many prison cases; and (2) those backward-looking claims involving cases that cannot now be tried, or tried with all material evidence, “no matter what official action may be in the future,” because the official conduct caused the loss or inadequate settlement of a meritorious case, as in cover up cases. After observing that denial of access claims have been based on various constitutional provisions (the Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth and Fourteenth Amendment Due Process Clauses and the Fourteenth Amendment Equal Protection Clause), the Court then commented that the justification for recognizing both kinds of claims was the same: “Whether an access claim turns on a litigating opportunity yet to be gained or an opportunity already lost, the very point of recognizing any access claim is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong.” In short, a denial of access claim was “ancillary” to the underlying claim “without which a plaintiff cannot have suffered injury by being shut out of court.” Consequently, the plaintiff who asserts a denial of access claim must describe the underlying cause of action (the predicate claim) in the complaint with enough particularity to give the defendant notice.

The Harbury Plaintiff’s Backward-Looking Claim

The Court went on to apply this approach to the Harbury plaintiff’s denial of access claim, which it characterized as solely backward-looking, and found that claim “not even close” to stating a cause of action for denial of access since the predicate claim was not identified with any specificity. Hence, her denial of access claim should be dismissed for failure to state a claim.

Waller v. Hanlon, A Recent Fifth Circuit Cover-Up Decision

In Waller v. Hanlon, 922 F.3d 590 (5th Cir. 2019), the plaintiffs, survivors of the decedent who had been fatally shot by a police officer, alleged, in connection with their excessive force claim, that police officers also conspired to cover up the true circumstances of decedent’s death in violation of the plaintiffs’ clearly established right of access to the courts. The Fifth Circuit noted that this was a backward-looking claim within the meaning of Harbury and that it satisfied the first and second requirements of such claims: the underlying claim was not frivolous and the alleged conduct frustrated the litigation of that claim. However, the plaintiffs did not explain what the alleged conduct “cost” them. “[T]he plaintiffs are actively—and, so far, successfully—litigating that [excessive force] claim. They filed hundreds of pages of pleadings in the district court supported by dozens of exhibits containing detailed forensic evidence in support of their claim. They survived [the shooting officer’s] pleading-stage assertion of qualified immunity first in the district court and now on appeal.” Thus it was too early to say that plaintiffs’ excessive force claim on behalf of decedent has been “permanently compromised.”


1. The discussion of Harbury is adapted from section 3:84 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West & Westlaw). Many post-Harbury decisions are collected and discussed there.

2. Harbury itself involved federal officials so that section 1983, which covers state action only, was not applicable. Still, Harbury clearly governs section 1983 claims based on denials of the right of access to the courts.

3. Waller demonstrates that right of access plaintiffs must allege and prove that their right of access has actually been harmed (the “cost”), not merely inconvenienced, by the defendants’ conduct.

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Written by snahmod

December 8, 2020 at 10:58 am

Posted in Uncategorized

DeShaney’s No-Affirmative Duty Rule, Section 1983 and Danger-Creation: Three Recent Decisions

Almost everyone knows by now that in a still-controversial decision, DeShaney v. County of Winnebago, 489 U.S. 189 (1989), the Supreme Court ruled that the due process clause does not create an affirmative substantive due process duty on the part of government to protect citizens from private harm. The Court in DeShaney suggested two exceptions to this general rule: (1) when the government or its officials or employees themselves created the danger in which the plaintiff found himself or herself, and (2) when the plaintiff is in the government’s custody and is thereby prevented from protecting himself or herself. Many, if not most, DeShaney-type cases involve the danger-creation exception and the section 1983 plaintiffs typically lose.

(I’ve posted about DeShaney over the years on this blog. All you need to do to find these posts is to search “DeShaney.” Also, for much more, see ch. 3 in my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West).)

What follows are three recent decisions that rejected the state-created danger exception to DeShaney.

A Fourth Circuit Case: Graves v. Lioi

The decedent’s estate filed a section 1983 substantive due process suit against two police officers claiming that they were responsible for the stabbing death of the decedent, the assailant’s pregnant wife, outside a courthouse where she had just obtained a protective order against him. The officers allegedly enabled the assailant to postpone his self-surrender on a misdemeanor arrest warrant, thereby providing him with the opportunity to murder his wife. Affirming the district court’s grant of summary judgment to the officers, the Fourth Circuit determined that the record did not show that they committed affirmative acts that would render them liable under the state created danger doctrine. These acts included the letters and texts of one of the officers to the assailant, the conduct of the second officer relating to the arrest warrant against the assailant and their decisions to allow the assailant to leave a police department district office and self-surrender. There was also little or no evidence of a causal link between the alleged affirmative acts and the decedent’s harm. Further, the defendants were protected by qualified immunity. Graves v. Lioi, 930 F.3d 307 (4th Cir. 2019).

Judge Gregory dissented, arguing that the majority improperly construed the evidence which, in fact, showed that the defendants engaged in actionable affirmative acts to allow the assailant to evade arrest until a date considered convenient to him, when he was finally able to stab his pregnant wife.

A Seventh Circuit Case: Estate of Her v. Hoeppner

A child’s estate filed a section 1983 suit against a parks director, seven lifeguards and a city after the six-year-old child was found unresponsive on the bottom of a man-made swimming pond operated by the city. She died several days later. The Seventh Circuit affirmed the district court’s grant of summary judgment to the defendants, rejecting the plaintiff’s state danger-created theories. “No reasonable jury could find that the defendants created a danger just by operating a public swimming pond or that they did anything to increase the danger to [the child[ before she drowned. Nor was their conduct so egregious and culpable that it ‘shocks the conscience,’ a necessary predicate for a court to find that an injury from a state-created danger amounts to a due process violation.” There was no evidence that the swimming pond was “distinctively dangerous.” There was also no evidence that the lifeguards disregarded their training: the child slipped below the surface without being noticed by anyone. At most, this was a negligence claim. Estate of Her v. Hoeppner, 939 F.3d 872 (7th Cir. 2019).

An Arkansas Supreme Court Case: Yang v. City of Little Rock

Where the plaintiff  filed a section 1983 damages action against a city and others in connection with the alleged mishandling of a 911 call requesting rescue services for his deceased son, the Supreme Court of Arkansas affirmed the lower court’s grant of summary judgment to the defendants. As to the plaintiff’s claim that the city failed to provide competent emergency services, thereby causing his son’s death, the court declared that under DeShaney, the city had no constitutional duty to provide rescue services for the son. And as to the plaintiff’s claim that the city was liable under a state-created-danger exception because its water rescue operations prevented rescue attempts by others, there was no evidence that the city arbitrarily prohibited rescue attempts by anyone: indeed, there were no reasonable alternative avenues of rescue here. In short, there was no evidence that the city affirmatively placed the plaintiff’s son in a position of danger that he would not otherwise have faced. Dayong Yang v. City of Little Rock, 2019 Ark. 169 (2019).


  1. I consider the strongest of these three cases for the state-created danger exception to DeShaney to be the Fourth Circuit’s Graves decision. Even here, though, an alternative ground for the decision in favor of defendants was qualified immunity. So the police officers escaped section 1983 damages liability in any event.

2. Even where section 1983 plaintiffs confronting DeShaney can surmount the affirmative duty issue, they still have to show a highly culpable state of mind, often put somewhat confusingly by the circuits in “conscience shocking” terms. What is really required is at least deliberate indifference which is still not all that easy to show. More than negligence or gross negligence is required.

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Written by snahmod

November 17, 2020 at 11:56 am

Posted in Uncategorized

My Son Interviews His Father About Section 1983, Constitutional Law and Arguing in the Supreme Court

My talented singer-songwriter son, Daniel Nahmod, recently interviewed me and posted the interview on his website. The interview appears with a separate election-eve patriotic program that you may also want to check out.

In the interview, my son asks me about section 1983, the Fourteenth Amendment and my successful argument in the Supreme Court in an important section 1983 case involving over 100 Puerto Rico teachers terminated in violation of the First Amendment. We also talked about my education, how I became interested in section 1983 and wrote my section 1983 treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West).

The link to the website, and to the interview and to Daniel’s patriotic program, is below.

I invite you to follow me on Twitter: @NahmodLaw.

Written by snahmod

November 13, 2020 at 9:44 am

Posted in Uncategorized