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Off-Duty Police and State Action/Color of Law

Police officers when on the job and exercising government power are state actors subject to the Fourteenth Amendment and incorporated constitutional provisions, including the Fourth Amendment.

(I discuss extensively the various state action tests and Supreme Court and circuit decisions in Ch. 2 of my Treatise, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 (2022-23 Ed.)(West/Westlaw).

But what happens when police officers are off-duty and they engage in conduct that would clearly be unconstitutional if they were on-duty? Or to put this another way, when do police officers who are ordinarily state actors lose that status and no longer act “under color of law” for section 1983 purposes? I call this the “converse” of the typical state action question.

Consider in this connection a 2021 decision of the Fifth Circuit, Gomez v. Galman, 18 f.4th 769 (5th Cir. 2021)(per curiam). In this case, two off-duty New Orleans police officers drinking in a bar allegedly harassed and beat the plaintiff unconscious. Reversing the district court which had dismissed the complaint, the Fifth Circuit ruled that the plaintiff adequately alleged that the officers acted under color of law. It applied its “nexus” test in reaching this conclusion: “to determine whether an officer acted under color of law, we must consider: (1) ‘whether the officer misused or abused his official power’ and (2) ‘if there is a nexus between the victim, the improper conduct, and the officer’s performance of official duties.’ Bustos v. Martini Club, Inc., 599 F.3d 458, 464–65 (5th Cir. 2010).”

According to the Fifth Circuit, even though the officers were off-duty and in a bar drinking, they used their authority as police officers when one of them gave the plaintiff a direct order to stop and not leave the bar’s patio area, which he obeyed. Then, when plaintiff attempted to drive away after he was beaten, both officers ordered him to stop and get out of his car, which plaintiff did. Also, the officers acted as if the plaintiff was being arrested, they called for backup and they had identified themselves as police officers. For these reasons, there was a sufficient nexus alleged for state action/color of law purposes.

Judge Ho concurred, explaining why this was not an easy state action case:

“As a strictly doctrinal matter, this is a close case. Gomez alleges that he believed his assailants were police officers, and that for that reason, he complied with their orders, rather than flee to avoid further injury. But he never explains why he believed the defendants were police officers. He does not allege that they wore uniforms, displayed their badges, or otherwise presented themselves to him as police officers. And it is not Gomez’s subjective beliefs, but the officers’ conduct, that determines whether the defendants acted “under color of [state law]” as required under 42 U.S.C. § 1983. … So I can see how the district court might have concluded that this case cannot proceed under § 1983.”

Judge Ho thus questioned the relevance of a plaintiff’s subjective beliefs for state action purposes but went on to point out that in this case the fact that the officers later called for backup was objective evidence that state action was present. He also observed that the alleged acts of the officers were “contemptible.”

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Written by snahmod

September 13, 2022 at 10:21 am

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Additions to List of 2021 Term Section 1983-Related Supreme Court Decisions

After I posted earlier, I realized that I had inadvertently omitted two per curiam excessive force decisions from the 2021 Term in which the Supreme Court ruled in favor of granting qualified immunity to law enforcement officers. So below is the corrected list, with my apologies.

Supreme Court Decisions in the 2021 Term

  • Kennedy v. Bremerton School Dist: Free Exercise Clause protection for public on-field prayer of high school football coach (see §3:15)
  • Carson v. Makin: Maine prohibition of tuition assistance for parents of school children attending private religious schools in school districts without public high schools violates Free Exercise Clause (see §3:15)
  • New York State Rifle & Pistol Assn. v. Bruen: New York statute requiring anyone seeking a license for concealed carry of handgun to show “proper cause” violates Second Amendment (see §3:16)
  • Vega v. Tekoh: Miranda violations standing alone not actionable under §1983 (see §3:25)
  • Dobbs v. Jackson Women’s Health Organization: overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey (see §§3:37, 3:52 and 3:78)
  • Thompson v. Clark: §1983 Fourth Amendment malicious prosecution and meaning of favorable termination (see §§3:66, 3:67, 9:30, 9:58 and 9:64)
  • City of Tahlequah v. Bond: per curiam excessive force qualified immunity decision in favor of law enforcement (see §8:63)
  • RivaVillegas v. Cortesluna: per curiam excessive force qualified immunity decision in favor of law enforcement (see §8:63)
  • Nance v. Commissioner, Georgia Dept. of Corrections: injunctive relief challenge to method of execution as §1983 claim and not habeas corpus (see §§9:57 and 9:64)

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August 16, 2022 at 5:56 pm

Posted in Uncategorized

A Short List of 2021 Term Section 1983-Related Supreme Court Decisions

Some of you may be interested in a short list of recent Supreme Court section 1983-related decisions. Here are decisions from the Court’s 2021 Term, together with the current two cert-granted cases for the 2022 Term. I hope you find the list useful.

Please note that section references are to the forthcoming 2022-23 Edition of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (West, Westlaw).

Thanks.

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Supreme Court Decisions in the 2021 Term

  • Kennedy v. Bremerton School Dist: Free Exercise Clause protection for public on-field prayer of high school football coach (see §3:15)
  • Carson v. Makin: Maine prohibition of tuition assistance for parents of school children attending private religious schools in school districts without public high schools violates Free Exercise Clause (see §3:15)
  • New York State Rifle & Pistol Assn. v. Bruen: New York statute requiring anyone seeking a license for concealed carry of handgun to show “proper cause” violates Second Amendment (see §3:16)
  • Vega v. Tekoh: Miranda violations standing alone not actionable under section 1983 (see §3:25)
  • Dobbs v. Jackson Women’s Health Organization: overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey (see §§3:37, 3:52 and 3:78)
  • Thompson v. Clark: section 1983 Fourth Amendment malicious prosecution and meaning of favorable termination (see §§3:66, 3:67, 9:30, 9:58 and 9:64)
  • Nance v. Commissioner, Georgia Dept. of Corrections: injunctive relief challenge to method of execution is section 1983 claim and not habeas corpus (see §§9:57 and 9:64)

Certiorari Granted for Decision in the 2022 Term

      • Health and Hospital Corp. of Marion County v. Talevski: does Spending Clause legislation give rise to privately enforceable rights under section 1983? (see §2:38)

  • Reed v. Goertz: when does statute of limitations for section 1983 claim seeking DNA testing begin to run? (see §9:58)

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Written by snahmod

August 16, 2022 at 9:16 am

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Miranda Violations and Section 1983: The Disingenuous Decision in Vega v. Tekoh

In Chavez v. Martinez, 538 U.S. 760 (2003), a majority of the Supreme Court effectively held that coerced confessions that violate the Fifth Amendment are actionable under section 1983 so long as the confessions are used at criminal trials. See sec. 3:25 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2021-22 Edition)(West/Westlaw) for discussion of this confusing case and its various opinions.    

 After Chavez, suppose a plaintiff sues a police officer for damages under section 1983 alleging that an “un-Mirandized” statement was improperly admitted in a criminal prosecution in which the plaintiff was ultimately found not guilty by a jury. In such a case, the Ninth Circuit had concluded:

“[I]n light of the Supreme Court’s decision in Dickerson v. United States [530 U.S. 428 (2000)], which held that Miranda is a rule of constitutional law that could not be overruled by congressional action, we conclude that where the un-Mirandized statement has been used against the defendant in the prosecution’s case in chief in a prior criminal proceeding, the defendant has been deprived of his Fifth Amendment right against self-incrimination, and he may assert a claim against the state official who deprived him of that right under §1983.”

In Vega v. Tekoh, 142 S. Ct. – (2022), rev’g Tekoh v. County of Los Angeles, 985 F.3d 713 (9th Cir. 2021), the Supreme Court, in an opinion by Justice Alito, reversed. It held that the Ninth Circuit had improperly extended Miranda’s case law. The Court explained, first, that Miranda itself and subsequent case law made clear that Miranda violations were not necessarily Fifth Amendment violations but were essentially prophylactic. Second, Dickerson, which involved a federal statute that made the admissibility of a statement given during custodial interrogation turn on voluntariness only–a federal statute that the Court held was unconstitutional because inconsistent with Miranda–did not change this. Justice Alito, in a strained reading, understood Dickerson as not equating Miranda violations with “outright” Fifth Amendment violations, even though Dickerson had asserted that Miranda was a “constitutional decision” that adopted a “constitutional rule.”

Finally, the Court addressed the question whether Miranda violations could be considered actionable “laws” violations—see generally Ch 2 of my Treatise. Answering in the negative, the Court engaged in a kind of cost-benefit analysis and concluded that, among other things, allowing the plaintiff’s section 1983 damages claim to proceed would disserve “judicial economy” and could raise “many procedural issues.” Furthermore, Miranda, Dickerson and other decisions provided sufficient protection against self-incrimination in criminal proceedings. In short, there was “no justification” for extending Miranda to section 1983 damages actions.

 Justice Kagan dissented, joined by Justices Breyer and Sotomayor. They read Dickerson  as making explicit that Miranda is a right “secured by the Constitution”: “Dickerson tells us again and again that Miranda is a ‘constitutional rule’ [and] a ‘constitutional decision’ [and is] ‘constitutionally based.’” They also pointed out that even if Miranda extended the Fifth Amendment’s core guarantee, it was still enforceable under section 1983 as a right in the “ordinary” meaning of that term. Finally, they warned: “[S]ometimes, as a result [of an un-Mirandized statement not being suppressed], a defendant will be wrongfully convicted and spend years in prison. He may succeed, on appeal or in habeas, in getting the conviction reversed. But then, what remedy, does he have for all the harm he has suffered?” This is what section 1983 was for, according to the dissenters.

Comment

How to explain Vega? The most plausible explanation, in my opinion, is that the majority simply did not approve of Miranda on the merits and did not want to expand its coverage beyond criminal proceedings themselves. For that reason, and despite the clear indications in Dickerson that Miranda has a kind of constitutional status, the Court engaged in a tortuous, strained and even disingenuous interpretation of Dickerson to reach its conclusion that Miranda violations are not actionable under section 1983. And as to its use of cost-benefit analysis, the 42nd Congress itself made the cost-benefit analysis way back in 1871: once a state actor deprives a person of a right secured by the Constitution, that person may indeed have a section 1983 damages remedy, subject to the other requirements of section 1983.


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July 12, 2022 at 1:47 pm

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The Religion Clauses, RFRA & RLUIPA: My New Video

At Chicago-Kent’s 38th Annual Conference on Section 1983, which took place as a streaming webinar on April 20-21, 2022, I presented an update on the Establishment Clause, the Free Exercise Clause, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Below are an overview and the link to that 1 1/4 hour video presentation which is intended for attorneys but is also accessible to laypersons.

I covered the following:

I. The Purposes of the Religion Clauses

II. Approaches to the Religion Clauses: Strict Separation and Accommodation

III. The Three Establishment Clause Tests

IV. Three Historically Controversial Areas of Establishment Clause Jurisprudence

V. The Free Exercise Clause

VI. The Religious Freedom Restoration Act

VII. The Religious Land Use and Institutionalized Persons Act

VIII. Concluding Observations

Here is the video:

To receive CLE credit for this event recording and/or find the remaining conference recordings, please visit this Conference Bundle site: https://ckcle.ce21.com/bundle/2022-section-1983-conference-bundle-3713

I hope you find this useful and of interest. If you have any comments, feel free to email me at snahmod@kentlaw.edu.

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

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May 26, 2022 at 5:13 pm

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The Supreme Court Maintains Its Aggressive Qualified Immunity Campaign

The Court continues to summarily reverse circuit court denials of qualified immunity to law enforcement officers, as borne out by two per curiam decisions in its 2021-22 Term, one out of the Ninth Circuit and one out of the Tenth Circuit, both handed down on October 18, 2021.

Reversing the Ninth Circuit

The Ninth Circuit case, Rivas-Villegas v. Cortesluna, 142 S. Ct. – (2021)(per curiam), involved a volatile domestic violence situation (reported by a woman’s two teen-age children in a 911 call) where the woman’s boyfriend (the plaintiff) had a knife which responding officers were in the process of removing from plaintiff’s pants when one of the officers placed his knee on the side of plaintiff’s back for no more than eight seconds. Thereafter the plaintiff sued the officer for the use of excessive force in violation of the Fourth Amendment. Reversing the district court, the Ninth Circuit (with a dissent by Judge Collins) ruled that the officer may have violated clearly settled Ninth Circuit precedent and was thus not entitled to qualified immunity.

In turn reversing, the Supreme Court determined that the Ninth Circuit case on which the Ninth Circuit panel relied was materially distinguishable from the present case because the earlier decision did not involve a volatile situation: officers there responded only to a noise complaint. In contrast, here the officers were responding to a report of serious domestic violence possibly involving a chainsaw. As always, the Court warned about the need for fact specificity for clearly settled law purposes. Furthermore, the Court observed: “[N]either [plaintiff] nor the Court of Appeals identified any Supreme Court case that addresses facts like the ones at issue here.” Thus, the officer did not have fair notice that his conduct violated the Fourth Amendment.

Reversing the Tenth Circuit

The Tenth Circuit case, City of Tahlequah v. Bond, 142 S. Ct. – (2021)(per curiam), also involved a domestic violence situation, this one stemming from a 911 call from decedent’s ex-wife regarding his intoxicated state in her garage where the decedent kept his tools, and which he would not leave. After the officers arrived, the decedent grabbed a hammer, causing the officers to back up and draw their guns. Though they yelled at him to drop the hammer, he did not but instead took a position indicating he was about to throw the hammer at the officers or charge them. They then shot and killed him. His estate sued under §1983 alleging excessive force. The district court found qualified immunity protected the officers but the Tenth Circuit reversed on the ground that “Tenth Circuit precedent allows an officer to be held liable for a shooting that is itself objectively reasonable if the officer’s reckless or deliberate conduct created a situation requiring deadly force.”

The Supreme Court reversed the Tenth Circuit and, without deciding the Fourth Amendment issue on the merits, found that the officers did not violate clearly settled Fourth Amendment law. It noted that none of the Tenth Circuit decisions relied upon by the Tenth Circuit panel established that the officers’ conduct here was unlawful. The Tenth Circuit case most relied on by the panel was materially different from the present case because there the officers “responded to a potential suicide call by sprinting toward a parked car, screaming at the suspect, and attempting to physically wrest a gun from him.” In contrast, here the officers engaged decedent in conversation, followed him at a distance and did not yell until he picked up a hammer. Thus, the officers were entitled to qualified immunity because neither the Tenth Circuit nor the estate “identified a single precedent finding a Fourth Amendment violation under similar circumstances.”

Comment

Some of you may recall that decades ago I predicted in prior editions of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2021-22 edition; West, Westlaw) that the Court’s qualified immunity decisions in Harlow v. Fitzgerald, which eliminated the subjective part of qualified immunity as a matter of policy, and in Mitchell v. Forsyth, which made denials of qualified immunity motions for summary judgment immediately appealable, would convert qualified immunity into absolute immunity. The Court’s qualified immunity decisions, especially in the last decade but even before then, have borne out this prediction. You can search on this blog for my comments on these decisions (search “qualified immunity”).

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For


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May 18, 2022 at 10:53 am

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Section 1983 in State Courts: Justiciability

To what extent do the Article III justiciability standards that govern federal court litigation, including the standing requirements of injury in fact, causation and redressability, apply to §1983 actions filed in state court?

There is nothing that prevents a state’s highest court from adopting a federal standard for justiciability that is applicable to all claims, federal and state, filed in its courts. The Supreme Court of Alabama did just this in Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 890 So. 2d 70 (Ala. 2003), as modified on denial of reh’g, (Apr. 30, 2004), when it adopted the United States Supreme Court’s three-part standing test applicable in federal courts for use in Alabama courts. Subsequently, in Ex parte King, 50 So. 3d 1056 (Ala. 2010), the Supreme Court of Alabama applied this standing test and found that the plaintiffs, who sued under §1983 and argued that the 1901 Arkansas Constitution was never properly ratified and was therefore void, did not allege the requisite injury in fact. Thus, the plaintiffs did not have standing to bring their §1983 claim in state court.

To the same effect is Gifford v. West Ada Joint School Dist., 498 P.2d 1206 (Idaho 2021), where the Idaho Supreme Court stated: “Standing law in Idaho substantially mirrors federal standing law.” Thus, injury in fact, causation and redressability must be established in every case filed in state court. In the case before it, the plaintiff parents alleged that the defendant school board illegally (under both the Idaho Constitution and the Fourteenth Amendment) charged tuition fees for the second half of kindergarten instruction. The Idaho Supreme Court found that the parents had standing to pursue a claim related to their son’s alleged educational injury. However, they did not have standing to pursue a claim for economic injury: because they did not in fact pay kindergarten fees, they suffered no economic injury.

What if a state court adopts state justiciability standards that are tougher for a §1983 plaintiff than Article III standards, with the result that the §1983 plaintiff does not have standing, whereas if the §1983 plaintiff had filed in federal court, there would be standing?

 Dealing with this question, the Supreme Court of Oregon stated, after analysis of the United State’s Supreme Court case law: “[A]n Oregon court cannot apply [more stringent] state standards of mootness and justiciability to a section 1983 claim brought in state court if application of those standards would preclude a plaintiff’s federal claim, but application of the federal standards would not.” Barcik v. Kubiaczyk, 321 Or. 174, 895 P.2d 765 (1995). The Oregon Supreme Court observed that if the result were otherwise, a plaintiff’s rights in a federal claim would be limited “simply because that claim is brought in state court.” In the case before it, the trial court did just that and this was error. State mootness and justiciability standards were neither jurisdictional rules relating to subject matter jurisdiction or personal jurisdiction, nor were they “neutral procedural rules” relating to the administration of the courts.

What if a state’s justiciability standards are generally more favorable to a §1983 plaintiff suing in state court than Article III standards?

In the Barcik case, the Oregon Supreme Court expressly did not address what would happen if state justiciability standards generally were more favorable to a §1983 plaintiff suing in state court than federal justiciability standards would be. 321 Or. at 186 n9. I would suggest, though, that this should not raise a troublesome issue of federal law because it does not discriminate against or otherwise burden federal claims and thus does not violate the Supremacy Clause. Compare Haywood v. Drown, 556 U.S.729 (2009).

On the other hand, if the §1983 case initially filed in state court were to be removed by the defendants to federal court, then a serious Article III standing issue could arise for the §1983 plaintiff because Article III justiciability requirements cannot be waived, unlike, say, the Eleventh Amendment. Lapides v. Board of Regents, 535 U.S. 613 (2002). See, on removal and the Eleventh Amendment, Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 §1:39 (2021-22; West & Westlaw). The result in such a case could be the loss of standing for the §1983 plaintiff in federal court.

Along similar lines, consider my post regarding removal and pleading requirements in situations where §1983 defendants removed a case from state court, with its liberal pleading requirements, to federal court, with its stricter plausibility requirements. The result in a Fifth Circuit decision was that the stricter plausibility requirements governed in federal court. This too suggests that, in our hypothetical, the §1983 plaintiff would not have standing in federal court. https://nahmodlaw.com/2018/05/02/pleading-iqbal-and-the-removal-of-section-1983-claims-to-federal-court/


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March 18, 2022 at 9:20 am

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38th Annual Conference on Section 1983: April 20-21, 2022

I’m very pleased to announce the forthcoming 38th Annual Chicago-Kent Conference on Section 1983 that will be held as a streaming webinar on Wednesday and Thursday, April 20-21, 2022.

This two day conference covers the Basics of Section 1983 Claims (Sheldon Nahmod), Individual Immunities (Erwin Chemerinsky), Municipal Liability (Karen Blum), Substantive Due Process (Rosalie Levinson), Supreme Court Review and Preview (Erwin Chemerinsky), the Religion Clauses, RFRA and RLUIPA (Sheldon Nahmod), Practical Issues in Section 1983 Litigation (John Murphey) Employment Law (Jamie Franklin) and Attorney’s Fees and Ethical Issues (Gerry Birnberg).

The speakers are (as many of you already know) prominent scholars and attorneys with great expertise in their areas and considerable experience in speaking to attorneys and judges throughout the country. I might add that the Annual Conference on Section 1983 is considered by many to be the premier program on section 1983.

The schedule and registration information can be accessed through the following link: https://ckcle.ce21.com/sales/early-bird-rate-section-1983-554885

If you have any questions, please feel free to contact me personally at snahmod@kentlaw.edu. Otherwise, Chicago-Kent’s CLE staff may be reached through the above link.

I hope you are able to attend.

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

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February 9, 2022 at 10:24 am

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Nominal Damages and Section 1983

I address the following questions about section 1983 and nominal damages for constitutional violations in this post. First, what are nominal damages? Second, does a section 1983 plaintiff who seeks only nominal damages have standing and thereby avoid mootness? And third, can attorney’s fees be awarded when a section 1983 plaintiff receives only a nominal damages award?

What Are Nominal Damages?

Nominal damages of $1 are awarded when a section 1983 plaintiff who seeks compensatory damages proves that a defendant has violated his or her constitutional rights, but is unable to persuade the fact-finder, typically a jury, that the plaintiff suffered actual damages of any kind, whether physical and financial (“special” damages) or psychological (“general” damages). Such an award indicates that the plaintiff indeed has prevailed on his or her constitutional claim even though actual compensatory damages were not awarded. As discussed below, it can be the basis of an attorney’s fees award under section 1988, the Civil Rights Attorney’s Fees Awards Act.

Note that presumed damages are not permitted in section 1983 cases. Carey v. Piphus, 435 U.S. 247 (1978); Memphis v. Stachura, 477 U.S. 299 (1986). Note also that a section 1983 plaintiff who receives a nominal damages award may be entitled to a punitive damages award as well if the defendant’s unconstitutional conduct was engaged in recklessly or with callous disregard of the plaintiff’s constitutional rights. However, such a punitive damages award is not likely to be substantial. On section 1983 compensatory and punitive damages generally, see ch. 4 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2021-22 edition)(West, Westlaw).

Can A Section 1983 Plaintiff Seek Only Nominal Damages? The Supreme Court Says Yes

Almost always a section 1983 plaintiff who is awarded nominal damages has initially but unsuccessfully sought actual damages. The argument has been made that a section 1983 plaintiff who seeks only nominal damages does not have standing to bring such a claim and that, therefore, if all he or she has left is such a nominal damages claim, the case is moot. Consequently, the argument goes, such a suit should be dismissed on Article III justiciability grounds.

The Supreme Court weighed in on this issue in Uzuegbunam v. Preczewski, 142 S. Ct. — (2021). In an opinion by Justice Thomas, the Court ruled that a section 1983 plaintiff who seeks only nominal damages to vindicate the deprivation of a constitutional right does indeed have standing and therefore avoids mootness under Article III. In this case the plaintiff, a former student, brought section 1983 Free Exercise Clause claims for injunctive relief and nominal damages against public college officials who did not allow him to distribute written religious material or speak on campus.

The officials subsequently abandoned their challenged policies and then argued that the plaintiff’s claims were moot. The Supreme Court agreed with the officials that the plaintiff’s injunctive relief claim was moot but, on the other hand, agreed with the plaintiff that his claim for nominal damages conferred standing and thus the claim was not moot. Justice Thomas relied on the common law for the proposition that a plea for compensatory damages is not required for an award of nominal damages. Also, a section 1983 plaintiff seeking only nominal damages satisfies the Article III standing requirement of redressability, even if such an award does not provide full redress. Finally, this constitutes relief on the merits. For these reasons, the plaintiff’s section 1983 nominal damages claim for his Free Exercise deprivation was not rendered moot, even though his injunctive relief claim was.

Chief Justice Roberts dissented, arguing that “if nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar.” Justice Kavanaugh concurred, saying he agreed with the Chief Justice “that a defendant should be able to accept the entry of a judgment for nominal damages and thereby end the litigation without a resolution on the merits.”

Can Attorney’s Fees Be Awarded When a Section 1983 Plaintiff Receives Only A Nominal Damages Award? The Supreme Court Says Yes…But

Since we now know that nominal damages can be awarded to a section 1983 plaintiff for a constitutional deprivation even where that plaintiff seeks only such damages, what are the implications for an award of attorney’s fees under section 1988?

The Supreme Court dealt with this issue thirty years ago in Farrar v. Hobby, 506 U.S. 103 (1992), where it held, in an opinion by Justice Thomas (the author of Uzuegbunam), that a section 1983 plaintiff who seeks substantial compensatory damages but only gets nominal damages is still a “prevailing party” entitled to attorney’s fees. However, in the case before it, the Court determined that because the plaintiff had originally sought $17 million(!) in compensatory damages but was ultimately awarded $1 in nominal damages, the appropriate fees award was nothing. Justice O’Connor concurred in an influential opinion, arguing that there may be section 1983 nominal damages cases where the prevailing plaintiffs are entitled to reasonable fees awards because, unlike in Farrar, their victories are more than de minimis.

See generally on attorney’s fees, ch. 10 of my section 1983 Treatise, noted above.

Comments

1. I think what initially attracted the Court to grant certiorari was the fact that the plaintiff’s claim involved the Free Exercise Clause, as to which the Eleventh Circuit had ruled that a claim for only nominal damages does not confer standing. To understate the matter, the current Court is very sensitive to Free Exercise claims, especially in cases where plaintiffs and their attorneys may be more interested in establishing a legal principle than in receiving a substantial damages award. Further, Free Exercise Clause claims generally not give rise to much in the way of compensatory damages, especially “special” damages, with the result that plaintiffs may choose to avoid the hassle of trying to show some actual damages but instead decide to proceed directly, so to speak, to nominal damages.

2. Justice Thomas wrote both the opinion in Uzuegbunan and the opinion in Farrar. I wonder whether the apparent tension between the two regarding the importance of a nominal damages award suggests that Justice Thomas is retreating from his broad declaration in Farrar that, where a section 1983 plaintiff receives only a nominal damages award, the appropriate fees award is nothing. Of course, one obvious distinction between the two cases in that in Farrar, the section 1983 plaintiff asked for the moon and got nothing, unlike in Uzuegbunam, where the plaintiff sought to establish a Free Exercise principle. In any event, I doubt such a retreat by Justice Thomas.

3. Finally, a section 1983 plaintiff who seeks only nominal damages must still prove a constitutional violation and a causal connection to the defendant’s conduct, as well as overcome defense assertions of absolute and qualified immunity. These are not easy tasks.

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Written by snahmod

February 4, 2022 at 3:06 pm

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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. https://drive.google.com/file/d/1B7-vtrne4M3hEETwn9TPgylIe7_T0Jtd/view?usp=sharing

I invite you to follow me on Twitter @NahmodLaw.

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December 23, 2021 at 9:05 am

Posted in Uncategorized