Nahmod Law

Archive for the ‘Uncategorized’ Category

The Free Speech Rights of Adults and Public School Students: A Video

I spoke on December 16, 2021, to the Chicago Decalogue Society about freedom of speech. Specifically, I provided an overview of the free speech rights of adults and public school students, particularly in light of the Supreme Court’s recent decision in Mahanoy Area School Dist. v. B.L., 141 S. Ct. 2038 (2021), the student social media/vulgarity case.

I covered the following: (1) the major theories of the First Amendment; (2) the WHAT, HOW and WHERE of free speech; (3) government speech and the government as educator; (4) the seminal public school student free speech decisions in West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)(compelled speech and the Pledge) and Tinker v. Des Moines Indep. School Dist., 393 U.S. 503 (1969)(black arm bands protesting the Vietnam War); (5) post-Tinker student free speech decisions limiting Tinker; and (6) Mahanoy itself.

I think that this video overview works not only for lawyers and law students, but for the general public as well. But you be the judge.

Here is the link, just in time for the holidays.

I invite you to follow me on Twitter @NahmodLaw.

Written by snahmod

December 23, 2021 at 9:05 am

Posted in Uncategorized

Section 1983 Malicious Prosecution, Favorable Termination and Oral Argument in Thompson v. Clark

The recent oral argument in Thompson v. Clark, 141 S. Ct. 1682 (2021), granting certiorari in 794 Fed. Appx. 140 (2nd Cir. 2020), to deal with the meaning of favorable termination, shows that some of the Justices–perhaps a majority–are very concerned with the elements of section 1983 malicious prosecution claims.

The Section 1983 Background and the Manuel Decision

Recall the Supreme Court’s section 1983 Fourth Amendment malicious prosecution decision in Manuel v. City of Joliet, 137 S. Ct. 911 (2017), where, in an opinion by Justice Kagan, the Court held that there is a Fourth Amendment right to be free from seizure without probable cause that extends through the pretrial period, even though the seizure is “pursuant to legal process.” Specifically, a seizure can occur both before the onset of legal proceedings, i.e, the arrest, and after the onset of criminal proceedings, i.e., where a judge’s probable cause determination is based solely on a police officer’s false statements, as was allegedly the case in Manuel.

However, the Court remanded to the Seventh Circuit on the favorable termination question after describing the opposing positions on the issue, including the observation that the United States agreed with the plaintiff in Manuel, as did eight of the ten circuits that have favorable termination requirements.

These favorable termination–raised, briefed and argued in Manuel– have been a matter of importance to me for some time. In fact, I wrote an amicus curiae brief in support of the defendants in Manuel that deliberately did not take a position on the Fourth Amendment issue. Instead, the brief urged the Court to eliminate the confusion caused by the use of malicious prosecution terminology in section 1983 cases. The brief also maintained that the elimination of this terminology would be neutral in its effects on plaintiffs and defendants alike. Along those lines, my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2021-22 Edition)(West), has for decades called for the virtual elimination of most of the tort-like terminology used for such purposes and for a renewed focus on the constitutional bases for such claims.

Manuel provided the Court with its first opportunity in the twenty-three years since Albright v. Oliver, 510 U.S. 266 (1994), to consider the elements of such claims. Regrettably, it did not do so in Manuel. But I predicted that the Court would one day have to deal with these issues, including the favorable termination requirement and other elements of section 1983 malicious prosecution claims.

The Favorable Termination Requirement At Issue inThompson v. Clark

That day may have arrived in Thompson v. Clark. Here is the Question Presented in Thompson:

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.

Oral Argument in Thompson and the “Upstream” and “Downstream” Questions

Although the narrow question before the Court is whether favorable termination requires some indication of innocence, the oral argument fairly quickly moved away from that inquiry, only to return to it later. While Justice Thomas wondered about the Fourth Amendment seizure issue, as others did as well, Justice Gorsuch began asking questions about the elements of a section 1983 malicious prosecution claim, including the relevance of malice. Justice Kavanaugh also wondered whether the Court should use this case to clear up section 1983 malicious prosecution claims in general. Justice Gorsuch further asked: why not simply use New York’s malicious prosecution law? Other justices chimed in with similar questions regarding section 1983 malicious prosecution, although there were also questions about favorable termination and indication of innocence.

Chief Justice Roberts then described the case before the Court as involving both “upstream” and “downstream” issues. The upstream issues implicated the existence and elements of section 1983 malicious prosecution claims while the downstream issues implicated the meaning of favorable termination. He observed that the Court had not yet resolved important upstream issues of the sort raised by Justice Gorsuch and others.

On the other hand, Justices Kagan and Sotomayor pointed out that it was the downstream question of favorable termination which the Court had granted certiorari to resolve. Justice Kagan also suggested that the case here involved not malicious prosecution as such, but rather the use of malicious prosecution by way of analogy. Indeed, the Court, per Justice Scalia’s opinion, had made use of this analogy in Heck v. Humphrey, 512 U.S. 477 1994).


On the narrow issue of favorable termination, I argued in my Treatise and on this blog that there should be no indication of innocence requirement for favorable termination. See The Court in Thompson could avoid the upstream issues and just decide this narrow issue.

On the other hand, the Court might reach out and address some of the more difficult upstream issues that several of the Justice mentioned. If the Court does so, it should tread carefully and avoid overly broad statements of section 1983 law that are not presented in Thompson itself.

My prediction is that the Court will not reach these upstream issues but instead rule on the downstream issue of favorable termination. Still, I expect a few of the justices–especially Justice Gorsuch–to address the upstream issues at some length.

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

November 29, 2021 at 9:03 am

Posted in Uncategorized

The Shot Suspect Who Escapes & The Seizure Question: Torres v. Madrid (2021)

Background At the outset, note that intent is a condition precedent for a Fourth Amendment violation. The Supreme Court put it this way:

It is clear . . . that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement. . ., nor even whenever there is a governmentally caused and governmentally desired termination of an individual’s freedom of movement . . . but only when there is a governmental termination of freedom of movement through means intentionally applied.

Brower v. County of Inyo, 489 U.S. 593 (1989)(emphasis in original), a Fourth Amendment roadblock case.

Seizures In Fourth Amendment cases involving an officer’s use of force where intent is present, it is crucial to distinguish between two additional Fourth Amendment questions: whether there was a seizure and, if there was, whether the seizure violated the Fourth Amendment. Thus, the seizure question serves an important gatekeeper function.

For example, in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), the Court held that where police make a show of authority but the subject does not yield, there is no seizure for Fourth Amendment purposes. In Hodari, police chased a person who, in the course of fleeing from them but before he was physically stopped by a tackle, discarded what turned out to be cocaine. Ruling that this evidence could be introduced in the criminal proceeding, the Court ruled that there was no seizure. The Court observed that a seizure required either the application of physical force or submission to the assertion of authority, neither of which was present here at the time the cocaine was discarded.

The Shot Suspect Who Escapes What of a situation in which there was an application of physical force because the suspect was shot but there was no apparent submission to the assertion of authority? Does this still constitute a seizure? The Supreme Court, resolving a split in the circuits and following the common law, answered this question in the affirmative.

Torres v. Madrid, 141 S. Ct. 989 (2021), involved a section 1983 Fourth Amendment excessive force claim brought by a plaintiff who was fired at by police officers 13 times in an attempt to stop her, a suspected carjacker. Although she was struck twice, she escaped and drove 75 miles to a hospital, but was arrested the following day. The Court, in an opinion by Chief Justice Roberts, ruled that she was seized when she was shot: this was an intentional application of physical force to her body with the intent to subdue, even though she did not submit and was not subdued at the time. There were important differences at common law between seizures by control and seizures by force, with the common law considering a touching to be a seizure. The majority also reasoned that requiring the taking of control for a seizure would be difficult to apply in cases involving the application of force. It thus rejected the defense argument that a seizure be defined as the acquisition of control: this theory was inconsistent with the history of the Fourth Amendment and precedent.

Justice Gorsuch, dissented, joined by Justices Alito and Thomas, arguing that a seizure requires “taking possession of someone or something.” Justice Barrett did not participate in the decision.


The reasoning in Torres applies equally to intentional shootings, tasings and beatings. These are all seizures, triggering Fourth Amendment analysis, because they all implicate personal security, the core of the Fourth Amendment.

If Torres had come out the other way, not only would the Fourth Amendment’s exclusionary rule not be timely implicated in many such cases, but claims of excessive use of force by police officers against those who escape would be governed by substantive due process under which the applicable standard is “purpose to do harm,” County of Sacramento v. Lewis, 523 U.S. 833 (1998), a much heavier burden than unreasonableness under the Fourth Amendment. See Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 §3:52 (2021-22)(West/Westlaw).

I invite you to follow me on Twitter @NahmodLaw.

Written by snahmod

October 25, 2021 at 10:20 am

Posted in Uncategorized

Recent Section 1983 Religion Decisions From The Circuits

The Establishment Clause

In Woodring v. Jackson County, Indiana, 986 F.3d 979 (7th Cir. 2021), the Seventh Circuit, relying on the Supreme Court’s decision in American Legion, noted below, that emphasized “a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas,” upheld a nativity scene on government property against an Establishment Clause challenge. Judge Hamilton dissented, arguing that Supreme Court and Seventh Circuit precedent demanded a contrary result. 

Recall that in American Legion v. American Humanist Ass., 139 S. Ct. 2067 (2019), the Supreme Court upheld, as against an Establishment Clause challenge, a 32-foot Latin cross erected on government property in 1925 as a tribute to soldiers who died in the First World War. Justice Kagan joined parts of Justice Alito’s main opinion for the Court; Justice Gorsuch and Thomas agreed with parts of it, although they did not join any of it; and Justices Ginsburg and Sotomayor dissented.

The Free Exercise Clause 

In Carson as next friend of O.C. v. Makin, 979 F.3d 21 (1st Cir. 2020), cert granted, 2021 WL 2742783 (U.S. 2021), the First Circuit rejected, among other claims, a Free Exercise Clause challenge to Maine’s requirement that a private school, in order to be approved to receive tuition assistance payments, must be a “nonsectarian school in accordance with the First Amendment of the United States Constitution.” It asserted that the Supreme Court’s decisions in Trinity Lutheran Church v. Comer, 137 S. Ct. 2012 (2017) and Espinoza v. Montana Dept. of Revenue, 140 S. Ct. 2246 (2020), did not call for a different result. Carson will be argued in the Court’s October 2021 Term.

The Second Circuit held that an executive order of New York’s governor, issued during the Covid-19 pandemic and limiting the maximum available occupancy in houses of worship in certain zones to 10 to 25 persons, while not restricting other businesses he considered “essential,” violated the Free Exercise Clause. Agudath Israel of America v. Cuomo, 983 F.3d 620 (2d Cir. 2020). The executive order was subject to strict scrutiny because it was not facially neutral and it imposed “greater restrictions on religious activities than on secular ones.” In addition, it did not survive strict scrutiny because it was not narrowly tailored to address the public health concern. See also Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 208 L. Ed. 2d 206 (2020), finding a “strong showing” that the plaintiffs were likely to prevail.


For related decisions of the Supreme Court, and for many more circuit court decisions, see §3:15 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2021-22 edition)(West).

For Free Exercise Clause fans, check out the various opinions in Fulton v. City of Philadelphia, 593 U.S. – (2021), which struck down under the Free Exercise Clause, and as applied to Catholic Social Services, a provision in Philadelphia’s contracts with foster care providers that said in part that “Provider shall not reject a child or family … based … upon … their sexual orientation.” I wonder how viable Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990), now is. Recall that the Court here held that government need not justify its refusal to exempt religiously motivated drug use from its general prohibition of drug use.

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

September 28, 2021 at 9:49 am

Posted in Uncategorized

The Third Circuit Punts On Whether Contracts Clause Violations Are Actionable Under Section 1983

The Contract Clause, U.S. Const. Art I, § 10, provides: “No State shall … pass any … Law Impairing the Obligation of Contracts.”

The Supreme Court has developed a three-part Contracts Clause test: (1) does the state law operate as a substantial impairment of the contractual relationship; (2) if so, does the state have a significant, legitimate public purpose behind the regulation; and (3), if so, is the adjustment of the rights and responsibilities of the contracting parties based on reasonable conditions and is it appropriate to the public purposes justifying the state regulation? See, generally, Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400 (1983).

Are Contracts Clause violations actionable under section 1983?

I addressed this in an earlier post setting out the circuit split on this question. See Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (per curiam)(actionable); Crosby v. City of Gastonia, 635 F. 3d 634 (4th Cir. 2011)(not actionable) and Kaminski v. Coulter, 865 F.3d 339 (6th Cir. 2017)(not actionable). See also Elliott v. Board of School Trustees, 876 F.3d 926 (7th Cir. 2017)(assuming without deciding that Contracts Clause violations are actionable for damages under section 1983). I also argued in that post that such violations should indeed be actionable under section 1983.

Here is the post:

The Third Circuit recently could have decided the issue for its circuit but instead punted.

In Watters v. Board of School Directors, 975 F.3d 406 (3rd Cir. 2020), tenured teachers who were suspended sued under section 1983 and the Contracts Clause alleging that public school directors and a school district thereby violated the Clause. The Third Circuit, affirming their suspension, stated: “We assume for purposes of this appeal that §1983 confers a private right of action on the type of Contracts Clause claim that the teachers bring and that … [the challenged conduct] substantially impaired the teachers’ tenure contract rights.” It ruled against the teachers, however, on the ground that the suspensions were an “appropriate and reasonable way to advance” the school district’s attempt to alleviate its budget problems.

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

September 14, 2021 at 9:55 am

Posted in Uncategorized

Persons Who Are Not “Persons”: A Podcast on Absolute Immunity

While much attention has been paid recently to section 1983 qualified immunity, it may be useful to spend a little time on absolute immunity as well. Among other things, absolute immunity is even more potent for defendants than qualified immunity, even though the gap has narrowed in the past few decades. Defendants protected by absolute immunity are able to have section 1983 suits dismissed regardless of the constitutional merits (which are not reached). In addition, the doctrinal underpinnings of qualified immunity, including the “background to tort liability,” may be found in an earlier Supreme Court decision about absolute immunity, Tenney v. Brandhove, 341 U.S. 367 (1951), about which I have previously written at some length.

I was recently interviewed by John Ross of the Institute for Justice about the origins of, and justifications for, absolute immunity. Other scholars were interviewed as well.

The podcast lasts for about one hour and it can be accessed here:

For much more about absolute immunity, check out Chapter 7 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (West 2020) and various law review articles, including my own, referred to in the podcast. You might also want to search “absolute immunity” on this blog.

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

August 19, 2021 at 8:14 am

Posted in Uncategorized

Clearly Settled Law Deals Only With Constitutional Norms, Not With Other Elements of Section 1983

Years ago, I argued a section 1983 case for the plaintiff before the Seventh Circuit (Richman v. Sheahan, 270 F.3d 430 (7th Cir. 2001)), where the primary issue on appeal was whether the defendant deputy sheriffs who allegedly used excessive force against the decedent in court were protected by absolute quasi-judicial immunity or instead only by qualified immunity. As I was in the middle of arguing that the deputy sheriffs were not protected by absolute immunity, Judge Posner asked me this question (and I paraphrase): “Mr. Nahmod, even if you’re correct that only qualified immunity applies, why can’t the defendants argue that because the scope of immunity issue on appeal here is not clearly settled, then they win regardless because they are thereby protected by qualified immunity?”

My answer was that the clearly settled law inquiry focused on the applicable constitutional norm, and not on whether it was unclear to the defendant at the time he acted that he might be protected by absolute immunity. After all, wasn’t qualified immunity concerned with a defendant’s duty to know clearly constitutional law in the course of deciding how to act? Other section 1983 considerations should be irrelevant to this particular inquiry, I argued. My answer seemed to satisfy Judge Posner because he leaned back in his chair and did not pursue the matter further.

I think my answer was correct then and it is still correct now. And that is what the Sixth Circuit soundly ruled in Jackson v. City of Cleveland, 925 F.3d 793 (6th Cir. 2019), cert denied, 140 S. Ct. 855 (2020), an important and under-appreciated qualified immunity decision.

In Jackson, exonerated plaintiffs, former convicts, alleged that a police officer who in 1975 fabricated evidence and withheld exculpatory information from the prosecution, but did not testify for the prosecution, was liable for section 1983 malicious prosecution. The Sixth Circuit ruled that the defendant was not protected by qualified immunity. It rejected the officer’s argument that section 1983 malicious prosecution law was in a state of flux and not clearly settled in 1975, and that therefore he was entitled to qualified immunity.

The Sixth Circuit responded: “Whether a defendant is protected by qualified immunity turns not on whether the defendant was on notice that his actions satisfied the elements of a particular cause of action, but instead on whether the defendant was on notice that his actions violated the laws of the United States.” The clearly settled law focus was thus on whether a reasonable officer was on fair notice that his conduct was unconstitutional because it violated due process.

Along these lines, the Sixth Circuit observed, the defendant had cited no case indicating that for due process purposes, an officer who fabricates evidence must also have testified for the prosecution and thereby influenced the decision to prosecute. Consequently, the defendant was not protected by qualified immunity: his conduct in fabricating evidence violated clearly established due process law. It did not matter “what name we give to the claim.”

(Judge Keith concurred, suggesting that a jury instruction on immunity could have resolved the qualified immunity issue at trial because this case was so fact intensive and depended on whose view of the facts was believed by the jury.)


The Sixth Circuit got it right. There are various elements of any section 1983 claim that do not go to the particular constitutional norm whose violation is alleged. Causation in fact, proximate cause, damages and the scope of immunity are examples. So that even if the law regarding these elements was not clearly settled at the time of the allegedly unconstitutional conduct, a defendant who has violated the relevant clearly settled constitutional law norm is not protected by qualified immunity.

In short, it is not a defendant’s uncertainty about potential liability that is determinative of the clearly settled law inquiry, and therefore of qualified immunity protection. Rather, it is the defendant’s uncertainty about the relevant constitutional norm that is determinative of qualified immunity protection.

And just in case you’re wondering, the Seventh Circuit in Richman untlmately held in the plaintiff’s favor that the deputy sheriffs were not protected by absolute quasi-judicial immunity.

I invite you to follow me on Twitter @NahmodLaw.

Written by snahmod

July 27, 2021 at 10:18 am

Posted in Uncategorized

Section 1983 Litigators Must Know Their State’s Preclusion Law

By virtue of 28 U.S.C. § 1738, federal courts addressing § 1983 claims must apply the claim preclusion law (res judicata) and issue preclusion law (collateral estoppel) of the forum state where there are relevant prior state judicial proceedings. This means that § 1983 litigators must know their state’s preclusion law or suffer the consequences. See generally, Chapter 9 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West/Westlaw).

What follows are recent examples from the Fourth, Sixth and Eleventh Circuits.

The Fourth Circuit’s Gilliam Decision: Collateral Estoppel Not Applicable Under North Carolina Law Where Criminal Convictions Vacated

According to the Fourth Circuit, which applied North Carolina preclusion law, the plaintiffs, two brothers with severe intellectual disabilities who had served 31 years before being conclusively exonerated by DNA evidence and a governer’s pardon, were not collaterally estopped from relitigating their § 1983 claims of lack of probable cause and the voluntariness of their  confessions. Their criminal convictions, later vacated, did not conclusively establish that probable cause existed because the North Carolina “fraud exception” applied: the convictions were obtained improperly.

As to the voluntariness of the plaintiffs’ confessions: collateral estoppel did not apply here either because, even though the state court judges presiding over the criminal trials had ruled the confessions were voluntary, those criminal convictions were vacated. Under North Carolina law, a judgment must be valid in order to have preclusive effect. Gilliam v. Sealey, 932 F.3d 216 (4th Cir. 2019).

The Sixth Circuit’s Peterson Decision: Collateral Estoppel Not Applicable Under Michigan Law Where Criminal Convictions Vacated

Where the plaintiff’s rape and murder convictions were vacated and he sued various county and state law enforcement officers for violating his constitutional rights, the Sixth Circuit found that collateral estoppel did not preclude plaintiff’s claim that his confession was coerced. Even though a state trial court had found that the confession was not coerced at a so-called “Walker hearing,” the criminal judgment was eventually vacated, with the result that the trial court’s interlocutory rulings were vacated as well. “And vacated rulings have no preclusive effect under Michigan law.” Peterson v. Heymes, 931 F.3d 546 (6th Cir. 2019).

The Eleventh Circuit’s Hunter Decision: A Mixed Result Under Alabama Law For Guilty Plea

The plaintiff sued police officers under §1983 alleging that they used excessive force when they shot him after a four-car police chase. Applying Alabama preclusion law, the Eleventh Circuit ruled that the plaintiff’s guilty plea to menacing precluded him from relitigating the question of whether he pointed his gun at one of the officers: the defendant officers shared an identity of interest with the state in the criminal proceeding, the issue of pointing his gun at an officer was identical in both proceedings and was actually decided in the criminal proceeding and, by pleading guilty, the plaintiff necessarily admitting to pointing his gun at the officer. However, he was not precluded from contesting the officer’s statements regarding the number of times he allegedly pointed his gun. His guilty plea could not be fairly construed as an admission that he pointed his gun at the officer three times: this was not necessarily decided. Hunter v. City of Leeds, 941 F.3d 1265 (11th Cir. 2019). Judge Gilman concurred, briefly noting a qualified immunity issue.


All three of the above cases deal with the defensive use of collateral estoppel by § 1983 defendants against § 1983 plaintiffs where there were prior state criminal proceedings. However, there can be circumstances in which § 1983 plaintiffs attempt to use prior state criminal proceedings in their favor. This is offensive collateral estoppel.

In addition, while these three cases deal with prior state criminal proceedings, a state’s preclusion law may also be applicable by virtue of § 1738 to prior state civil proceedings. Moreover, this includes claim preclusion as well, not only issue preclusion.

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

Written by snahmod

June 22, 2021 at 10:39 am

Posted in Uncategorized

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.

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

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.”

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

June 8, 2021 at 3:08 pm

Posted in Uncategorized