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41st Annual Section 1983 Conference: April 10-11, 2025, at Chicago-Kent College of Law
Chicago-Kent is holding its 41st Annual Section 1983 Conference on Thursday and Friday, April 10-11, 2025, at the Law School. This Conference covers many aspects of section 1983 and constitutional law.
I will speak on The Basics of Section 1983 Claims, along with other experts on section 1983 who will speak on immunities, local government liability, remedies and various constitutional provisions.
Here is the link with registration information and the schedule. https://ckcle.ce21.com/item/41st-annual-section-1983-civil-rights-litigation-conference-679246
As always, this is a not-to-be-missed conference for those litigating section 1983 cases.
Supreme Court Sets Out New “Prevailing Party” Rule in Lackey v. Holcomb, Attorney’s Fees Case Involving Preliminary Injunctions and Mootness
The Supreme Court, on February 25, 2025, reversed the Fourth Circuit in Lackey v. Holcomb, 145 S. Ct. – (2025)(No. 23-621), an attorney’s fees case dealing with preliminary injunctions and mootness, and answered the following Questions Presented in the affirmative:
“(1) Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the merits under 42 U.S.C. § 1988; and (2) Whether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under 42 U.S.C. § 1988.”
The Lower Court Decisions in Lackey
In Lackey, the § 1983 plaintiffs challenged a Virginia statute that required the automatic suspension of driver’s licenses when drivers fail to pay certain court fines and fees. Following an extensive hearing with briefing and argument, the district court granted the plaintiffs a preliminary injunction. This was not appealed by the state defendants but, shortly before bench trial in August 2019, the Virginia legislature suspended the enforcement of the statute for a year, and the defendants got the district court to stay the case until the next legislative session over the plaintiffs’ “strenuous objections”. Thereafter, the legislature repealed the challenged statute, the district court dismissed the action as moot and, applying established Fourth Circuit precedent, it denied plaintiffs’ attorney’s fees.
Subsequently, however, with four judges dissenting, the Fourth Circuit en banc vacated the district court’s denial of fees and rejected its circuit’s earlier “bright-line approach” holding that “a plaintiff who wins a preliminary injunction but—for whatever reason—does not secure a final judgment may never qualify as a prevailing party.” Instead, it announced its test going forward: “When a preliminary injunction provides the plaintiff concrete, irreversible relief on the merits of her claim and becomes moot before final judgment because no further court-ordered assistance proves necessary, the subsequent mootness of the case does not preclude an award of attorney’s fees.”
The Supreme Court’s Decision
The Supreme Court in turn reversed in an opinion by Chief Justice Roberts. He began with the text and the Black’s Law Dictionary definition of prevailing party, and determined that that status depended on whether, at the end of the lawsuit, the party making a claim against another has successfully maintained it. He then reasoned that preliminary injunctions “do not conclusively resolve legal disputes.” Rather, they had a transient nature, especially where a court reached a different conclusion on full consideration of the merits, as in Sole v. Wyner, 551 U.S. 74 (2007), discussed below. Further, it was not sufficient for prevailing party status that the grant of a preliminary injunction has “something” to do with the merits: “The plaintiff must succeed on the merits.” This conclusion, according to Chief Justice Roberts, was consistent with its precedents that rejected the catalyst theory and insisted on a final victory on a material (“even if not predominant”) claim
Finally, the Court articulated its standard going forward: the change in legal relationship must be both judicially sanctioned and enduring in order for the plaintiff to be a prevailing party entitled to attorney’s fees. Specifically, “we establish that the enduring nature of that change [in the legal relationship between the parties] must itself by judicially sanctioned…. [B]oth the change in relationship and its permanence must result from a judicial order.” This standard, according to the Court, promoted judicial economy and did not, in most cases, create perverse incentives favoring defendants who could strategically moot litigation rather than proceed to the merits where they might lose and be required to pay attorney’s fees.
The Dissent
Justice Jackson, joined by Justice Sotomayor, dissented. Among other things, they pointed out that the plaintiffs had received meaningful relief through a preliminary injunction that was never reversed on the merits on appeal. As shown by the text and legislative history of §1988(b), Congress intended that in such cases, the plaintiffs should be entitled to prevailing party status and reasonable attorney’s fees. They argued that the majority “overreads our precedents to support its blanket rule that preliminary injunctions can never support fee awards.” Sole should be read narrowly as applying to preliminary injunctive relief that is superseded by a final judgment reversing such relief. Finally, they maintained that the Court’s approach would indeed create perverse incentives.
Comments
Lackey addressed the unresolved question in Sole. Here, the Supreme Court unanimously held that “a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, [does not] qualify as a ‘prevailing party’ within the compass of §1988(b).” The Court in Sole emphasized that prevailing party status requires a material alteration of the legal relationship of the parties pursuant to Texas State Teachers Ass’n v. Garland Independent School Dist., 489 U.S. 782 (1989), and that was not present in this case. It was not sufficient for prevailing party status that the plaintiff obtained a preliminary injunction after a hasty and abbreviated hearing that allowed her to display an antiwar artwork in a Florida state park: the state court had thereafter held after a full hearing that she was not entitled as a First Amendment matter to a permanent injunction against the enforcement of the state statute setting out the “Bathing Suit Rule” applicable to state parks. “Prevailing party status … does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.” 127 S. Ct. at 2188 (footnote omitted). However, the Court went on to observe that it was expressing no view of a case in which a plaintiff obtains a preliminary injunction and there is no final decision on the merits of a claim for permanent injunction. As indicated, this was the issue that Lackey decided in favor of defendants.
I argued in an earlier post on Lackey that the Court should affirm the Fourth Circuit en banc under the unique facts of the case : there was a full hearing with briefing and oral argument that preceded the district court’s grant of the preliminary injunction; this grant was not appealed by the defendants, although it could have been. Furthermore, as a direct result of the preliminary injunction, the Virginia legislature suspended the enforcement of the statute for a year, the case was stayed over plaintiffs’ objections and the statute ultimately repealed, all of which effectively prevented the plaintiffs from proceeding to final judgment and was motivated by the defense’s strategy to create mootness. For these reasons, the legal relationship of the parties was materially altered in favor of the plaintiffs who were thus prevailing parties.
Moreover, as the dissenters point out, the Court’s bright-line approach may create perverse incentives: plaintiffs who seek preliminary relief may either be encouraged to include an otherwise unnecessary damages claim in order to preclude mootness (thereby complicating a simpler lawsuit) or to seek permanent injunctive relief even after they’ve received what they wanted through a preliminary injunction.
Nevertheless, the Court decided to set out a bright-line rule requiring a judicial imprimatur for both the merits and the enduring nature of the change in the legal relationship between the parties. In so doing, “it overrules the decisions of every Court of Appeals to consider the issue” as the dissenters observe.
Sole, Texas State Teachers Ass’n and Lackey, and attorney’s fees in general, are all addressed in Chapter 10 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2024-25 ed.)(West/Westlaw).
Supreme Court in Williams v. Reed Reverses Alabama Supreme Court Narrowly on State Court Section 1983 Claims and Exhaustion of Administrative Remedies
Exhaustion of State Administrative Remedies: Background
It has been blackletter law since Patsy v. Fla. Bd. of Regents, 457 U.S. 496 (1982), and well before, that exhaustion of administrative remedies, like exhaustion of judicial remedies (see Monroe v. Pape, 365 U.S. 473 (1961)), is not required as a condition precedent to filing a § 1983 claim in federal and state court. Even though Patsy itself involved a § 1983 claim filed in federal court, the opinion seemed to indicate that this was a matter of § 1983 statutory interpretation. Thus, by virtue of the Supremacy Clause, Patsy was almost universally understood as similarly applying to § 1983 claims filed in state court, just like the no-exhaustion of judicial remedies rule. Indeed, until recently, every state supreme court, except for that of South Dakota (in Reiff v. Avon School Dist., 458 N.W.2d 358 (S.D. 1990)), has ruled that exhaustion of administrative remedies is not required for § 1983 claims filed in state court.
Then, Alabama joined South Dakota and ruled the same way in Johnson v. Washington, 2023 WL 4281620 (S. Ct. Ala. 2023), cert granted sub nom Williams v. Reed, 144 S. Ct. — (2024)(No. 23-191), which the Supreme Court just reversed, 5-4, on February 21, 2025. Williams v. Reed, 604 U.S. — (2025).
Williams v. Reed In State Court
In Williams, the plaintiffs filed unemployment compensation claims with the Alabama Department of Labor. Because these claims were not processed in a timely manner, the plaintiffs then filed suit under § 1983 seeking prospective relief and alleging that the defendants’ failure to act on their applications and provide the notices and hearings to which they were entitled violated their federal constitutional and Social Security Act rights. The Supreme Court of Alabama dismissed plaintiffs’ amended complaint on the ground that state courts lacked jurisdiction over plaintiffs’ § 1983 suit. The sole basis for the court’s dismissal was plaintiffs’ failure to exhaust the administrative appeals process governing unemployment compensation claims provided for by Alabama law. The Supreme Court of Alabama discussed Patsy, but nevertheless ruled that § 1983 plaintiffs could not “compel State courts to adjudicate federal claims that lie outside the State courts’ jurisdiction.” The Supreme Court of Alabama ruled this way even though under its approach the plaintiffs could never sue under § 1983 to expedite the administrative process, thereby creating what the plaintiffs (and later the Court) called a “catch-22.”
The Supreme Court’s Narrow Decision
In an opinion by Justice Kavanaugh, the Court reversed. It expressly avoided deciding whether Patsy and Felder v. Casey, 487 U.S. 131 (1988), “categorically bar both federal and state courts from applying state administrative-exhaustion requirements to § 1983 claims. We need not address that broader argument.” 604 U.S. at –, n. 2. Instead, it based its decision on preemption and declared:
“In the unusual circumstances presented here–where a state court’s application of a state exhaustion requirement in effect immunizes state officials from § 1983 claims challenging delays in the administrative process–state courts may not deny those § 1983 claims on failure-to-exhaust grounds.”
In the course of his opinion, Justice Kavanaugh rejected the state’s argument that Alabama’s exhaustion requirement was jurisdictional: such jurisdictional labels were not dispositive. It also rejected the state’s argument that the plaintiffs could seek a writ of mandamus from the state courts. This was simply “another way” of requiring a claimant to go through process provided by the state before suing under § 1983. He concluded by observing that the dissent (discussed next) primarily discussed issues that the majority did not have to address.
The Dissenters: Issues Raised But Not Decided by the Court
Justice Thomas, joined by Justices Alito, Gorsuch and Barrett as to Part II of his opinion, dissented. In Part I, he criticized Haywood v. Drown, 556 U.S. 729 (2009), in which he had dissented (as did Chief Justice Roberts and Justices Scalia and Alito, who separately contended that the majority had misinterpreted the Court’s precedents), and argued that Alabama had “plenary authority to decide which federal matters its state courts will have subject-matter jurisdiction to hear.” In Part II, he went on to to contend that the Court should affirm “under existing precedents.” In his view, there was neither discrimination against federal rights here, nor was there disfavored treatment. Finally, he criticized the majority for its purported narrow ruling which he asserted was incorrectly based on a “theory of futility.”
Comments
The Court reached the correct result in Williams, despite its narrow decision apparently prompted by the four-Justice dissent (was the dissent initially the majority opinion?). It would have been preferable, though, to have acknowledged that Patsy clearly was interpreting § 1983 when it rejected the Fifth Circuit’s “flexible” approach to exhaustion of administrative remedies in federal courts.
Furthermore, even though Alabama law does not discriminate against federal claims in its courts, its exhaustion of administrative remedies constitutes a severe burden on § 1983 claims and violates the Supremacy Clause for that reason alone. Compare Felder v. Casey, 487 U.S. 131 (1988), where the Court held that a Wisconsin four-month notice of claim statute that applied to suits against state and local government agencies and their officers in state courts could not be applied to § 1983 claims filed in state court because it conflicted “in its purpose and effects with the remedial objectives of § 1983 … [and would] predictably produce different outcomes … depending on whether the claim is asserted in state or federal court ….”
The Court could also have relied on Howlett v. Rose, 496 U.S. 356 (1990), where the Court ruled unanimously that states cannot apply their sovereign immunity rules to bar § 1983 claims against local governments in state courts. The Court reasoned that under the Supremacy Clause state courts have coordinate authority and responsibility to enforce the supreme law of the land.
And it could further have relied on Haywood v. Drown, 556 U.S. 729 (2009), where the Court struck down under the Supremacy Clause a New York statute, as applied to § 1983 claims, providing that New York courts did not have jurisdiction over any claims for damages against correctional officers sued in their personal capacities for acts committed within the scope of their employment. The Court emphasized that nondiscrimination standing alone was not the equivalent of neutrality.
The majority in Washington thus deliberately left these broader issues for another day, which means there is apparently still some life left in the argument that exhaustion of state administrative remedies may sometimes apply to state court § 1983 claims, at least in those states that have such a general requirement. As a practical matter then, Alabama’s and South Dakota’s exhaustion of state administrative remedies requirements as applied to most § 1983 claims filed in state court have not been struck down.
An Important Section 1983 Fourth Amendment Deadly Force Case: Barnes v. Felix in the Supreme Court
The Supreme Court heard oral argument on January 22, 2025, in a potentially significant section 1983 Fourth Amendment excessive force case from the Fifth Circuit, Barnes v. Felix, 91 F.4th 393 (5th Cir. 2024), cert granted 10-4-24 (No. 23-1239).
The Question Presented
The Court granted certiorari to deal with the following Question Presented (which I set out in its entirety):
“The Fourth Amendment prohibits a police officer from using “unreasonable” force. U.S. Constitution amend. IV. In Graham v. Connor, this Court held that reasonableness depends on “the totality of the circumstances.” 490 U.S. 386, 396 (1989)(quotation marks omitted). But four circuits–the Second, Fourth, Fifth, and Eighth–cabin Graham. Those circuits evaluate whether a Fourth Amendment violation occurred under the “moment of the threat doctrine,” which evaluates the reasonableness of an officer’s actions only in the narrow window when the officer’s safety was threatened, and not based on events that precede the moment of the threat. In contrast, eight circuits–the First, Third, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits–reject the moment of the threat doctrine and follow the totality of the circumstances approach, including evaluating the officer’s actions leading up to the use of force.
In the decision below, Judge Higginbotham concurred in his own majority opinion, explaining that minority approach “lessens the Fourth Amendment’s protection of the American public” and calling on this Court “to resolve the circuit divide over the application of a doctrine deployed daily across this country.”
The question presented–which has divided twelve circuits–is:
Whether courts should apply the moment of the threat doctrine when evaluating an excessive force claim under the Fourth Amendment.”
The Facts In Barnes
n Barnes, the defendant county law enforcement officer fatally shot the plaintiff’s decedent following a lawful traffic stop. Plaintiff sued the officer and county under section 1983 alleging Fourth Amendment excessive force claims. The suit was filed in state court and then removed to federal court, where the district court granted the defendants’ motion for summary judgment on the ground that there was no constitutional injury. It rejected the plaintiff’s argument that the officer’s use of force was unreasonable because, even if the decedent attempted to flee the scene, he did not pose a threat to the officer. The district court also declared that the officer’s actions prior to the moment of threat had no bearing on the officer’s ultimate use of force.
The decedent had been stopped by the officer because the decedent was driving a car with outstanding toll violations; he was then asked for his driver’s license and proof of insurance. During the course of the encounter, the officer requested that the decedent open the trunk of his car and get out of his car; the door on the driver’s side opened; the car’s left blinker turned off and then on; the officer drew his weapon, pointed it at decedent and began shouting “don’t fucking move” as the car began moving; the officer then stepped into the car with his weapon drawn and pointed it at decedent, pushing his head hard to the right. As the car moved, the officer shot inside the car with “no visibility” as to where he was shooting. He fired a second shot, and the car came to a complete stop, with the bleeding decedent held at gunpoint by the officer. Decedent was pronounced dead at the scene.
The Fifth Circuit affirmed the district court in an opinion by Judge Higginbotham on the ground that the moment of threat occurred in the two seconds before decedent was shot: the officer was still hanging onto the moving car and believed it would run him over. As noted, Judge Higginbotham also concurred in his own opinion, arguing that the moment of the threat doctrine was an “impermissible gloss” on Graham and that the Fifth Circuit should either revisit its precedents or the Supreme Court should resolve the circuit split on this issue.
Comments
1. Barnes raises an issue of considerable significance in the section 1983 context: the choice between the moment of the threat doctrine and the totality of the circumstances approach will frequently determine whether there was a Fourth Amendment excessive force violation in the first place. This is so because all-too-often drivers stopped for relatively minor traffic-related offenses are tragically shot by officers who perhaps overreact to a threat of danger that they themselves have brought about. At the very least, this should be a factor in determining whether the officer used deadly force under a totality of the circumstances approach.
To the argument that this puts officers at undue risk in split-second decision making situations, the response is that qualified immunity is still available to officers. Even if their conduct violated the Fourth Amendment, their use of deadly force must have also violated clearly settled Fourth Amendment law at the time of the challenged conduct in order for them to be liable in damages. See generally Ch. 8 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2024-25 Ed.)(West/Westlaw).
2. As I wrote this yesterday, I had not yet read the transcript of the oral argument in Barnes. But having just done so, I have changed my prediction. I initially predicted that the Court would adopt the moment of the threat doctrine and thereby continue its pronounced pro-law enforcement approach in section 1983 Fourth Amendment cases as reflected not only in the Fourth Amendment setting itself but also in the qualified immunity setting. However, the transcript of the oral arguments shows that none of the parties supported the moment of the threat approach used by the Fifth Circuit. Instead, what is most like to result is a relatively narrow decision rejecting this approach, adopting the totality of the circumstances approach and making an officer’s conduct in bringing about the subsequent use of deadly force a factor in that determination.
3. The issue in Barnes reminds me of an analogous issue–the Ninth Circuit’s provocation rule–in the section 1983 proximate cause setting that similarly involved the use of deadly force. Recall County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), where police officers, looking for a felony parolee-at-large with an outstanding arrest warrant, engaged in a warrantless entry into plaintiff’s residence (a shack) without exigent circumstances (they should have secured a search warrant) and thus in violation of the Fourth Amendment. They thereby allegedly provoked the plaintiff resident’s grabbing a gun (it turned out to be a BB gun that resembled a small caliber rifle), which in turn led to their shooting and seriously injuring the plaintiff.
The question was whether the plaintiff had a section 1983 Fourth Amendment claim against the officers for damages resulting from the use of deadly force. The two theories underlying such liability were that the warrantless entry into the shack either (1) provoked the subsequent events within the meaning of the Ninth Circuit’s provocation rule, or (2) proximately caused the use of the deadly force which–even if reasonable when viewed in isolation–was the reasonably foreseeable result of the warrantless entry that violated the Fourth Amendment. Or was the reasonable use of deadly force an event that broke the chain of causation under the second theory?
The Court in Mendez unanimously reversed the Ninth Circuit which had applied its provocation rule in favor of the plaintiff. “The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” It emphasized that Graham v. Connor was the settled and exclusive framework for determining whether force used was excessive. This framework, focusing on the reasonableness of the force used, was objective in nature, it addressed the facts and circumstances in each particular case and it determined reasonableness from the perspective of a reasonable officer on the scene, rather than with hindsight.
According to the Court, the Ninth Circuit’s provocation rule was inconsistent with Graham because it provided a “novel and unsupported path to liability” where the use of force was reasonable. The rule improperly “conflates distinct Fourth Amendment claims.” In so doing, it “permits excessive force claims that cannot succeed on their own terms.” The Court went on to vacate the Ninth Circuit’s judgment and remanded to deal with the proximate cause issue.
I discuss Mendez at greater length in an earlier post: https://nahmodlaw.com/2017/06/16/county-of-los-angeles-v-mendez-supreme-court-rejects-provocation-rule-remands-on-proximate-cause/
An Updated Section 1983 Primer (9): Absolute Judicial Immunity
I have been updating my popular Section 1983 Primer series, first published sequentially over ten years ago. In a recently updated post I blogged about the Supreme Court‘s approach to absolute immunity generally under section 1983. I specifically referred to the three categories of absolutely immune defendants–legislators, judges and prosecutors–and also discussed the underlying policy considerations and the Court’s functional approach.
In the immediately preceding post, I addressed absolute legislative immunity. I discuss judicial immunity in this post.
Pierson v. Ray, 386 U.S. 537 (1967): The Seminal Judicial Immunity Decision
The Supreme Court held in Pierson v. Ray that judges are protected by absolute immunity when they act in a judicial capacity, even if they act unconstitutionally. The Court relied on the background of common law immunity in 1871, when section 1983 was enacted. In Pierson itself, a state court judge was ruled absolutely immune from damages liability under section 1983 even though he had convicted the plaintiff under an unconstitutional statute. For immunity purposes, it did not matter whether the judge did so knowingly.
Purposes of Absolute Judicial Immunity
Absolute judicial immunity is intended to protect the judicial process and not the judges themselves. If judges, who are easy targets, had to be concerned that rulings in civil or criminal cases would generate section 1983 claims against them–after all, someone always loses–this could have an adverse effect on their independent decision-making. In addition, section 1983 claims against judges would necessarily involve the re-litigation of earlier cases. Further, there is ordinarily a remedy available: an appeal.
The Relevance of Subject Matter Jurisdiction
However, for absolute immunity to apply, the judge must not have acted in the complete absence of all subject matter jurisdiction. If, for example, a probate court judge without any subject matter jurisdiction whatever over criminal cases were to convict a person of a crime unconstitutionally, that judge would not be protected by absolute immunity.
On the other hand, if the existence of subject matter jurisdiction is merely debatable, absolute immunity would still apply, as made clear by the Court in Stump v. Sparkman, 435 U.S. 349 (1978).
The Judicial Act Requirement
Another requirement for absolute judicial immunity is a judicial act. Stump involved the sterilization of the plaintiff when she was a minor at the request of her mother who had secured a court order from the defendant judge. The plaintiff did not know that she was being sterilized, but only found out some years later. Still, the Court determined that the challenged conduct of the judge was a judicial act protected by absolute judicial immunity: it was the kind of act normally performed by a judge, and the parties before the court (here, only the mother) dealt with the judge in his judicial capacity.
Who Is Protected
Judges at all levels are protected by absolute judicial immunity, ranging from magistrates and justices of the peace all the way up to a state’s highest appellate judges.
Comments
1. The scope of judicial immunity from section 1983 damages liability is very broad. Indeed, the concern with protecting the integrity of the judicial process is so weighty that absolute immunity even extends to witnesses who allegedly testify falsely in civil and criminal proceedings. Briscoe v. LaHue, 460 U.S. 325 (1983).
2. The functional approach to immunities applies to absolute judicial immunity. A judge who acts unconstitutionally in a non-judicial role, for example, as an administrator who fires someone, is not protected by absolute immunity for that act. Forrester v. White, 484 U.S. 219 (1988).
3. What I address here is absolute judicial immunity from damages liability. Whether and to what extent judges are absolutely immune from injunctive relief is governed by The Federal Courts Improvement Act of 1996 (PDF), Pub. L. No. 104-317. That Act in part overruled Pulliam v. Allen, 466 U.S. 522 (1984), which held that judges were not absolutely immune from injunctive relief regarding their judicial acts. See §§ 7:64-65 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2024-2025 Edition)(West/Westlaw).
Next Up: Absolute Prosecutorial Immunity
An Updated Section 1983 Primer (8): Absolute Legislative Immunity
(It’s been a while since my last post. But I just finished teaching my First Amendment seminar and grading student papers, so I am back).
I have been updating my popular Section 1983 Primer series, first published sequentially over ten years ago. In my most recently updated post I blogged about the Supreme Court‘s approach to absolute immunity generally under section 1983. I specifically referred to the three categories of absolutely immune defendants–legislators, judges and prosecutors–and also discussed the underlying policy considerations and the Court’s functional approach. In this post I discuss legislative immunity.
Tenney v. Brandhove, 341 U.S. 367 (1951): The Seminal Decision
Tenney dealt with the potential liability of members of a California legislative sub-committee investigating Communism subversion. The plaintiff, an admitted Communist, sued them personally for damages under section 1983, alleging that they perverted the investigative process and violated his First Amendment rights. Ruling for the defendants in an opinion by Justice Frankfurter (only Justice Douglas dissented), the Court held that they were protected by absolute immunity from damages liability as a matter of section 1983 interpretation.
The Court made several points that continue to be significant to this day. First, even though section 1983 on its face says nothing about absolute immunity for anyone, the statute is to be interpreted against the common law immunity background in 1871, when section 1983 was enacted. According to the Court, if Congress had intended to overturn the well-established immunity of state legislators, it would have said so explicitly. The Court also pointed to the Speech or Debate Clause, Art. I, § 6, which protects members of Congress for their legislative conduct. Second, the Court observed that the allegedly unconstitutional conduct took place during a legislative investigation, which was a normal part of the legislative process.
The Impact and Coverage of Legislative Immunity
The point of absolute legislative immunity is to protect the democratic decision-making process from the chilling effect of lawsuits, as well as from liability. Once a legislator successfully asserts absolute immunity (typically by motion to dismiss or for summary judgment), he or she is no longer a defendant in the section 1983 action even if the allegations of the complaint are true. Therefore, it is the plaintiff who bears the costs of the constitutional deprivation.
Not surprisingly, absolute immunity extends beyond state legislative conduct to include regional and local legislative conduct as well. Lake County Estates v. Tahoe Regional Planning Authority, 440 U.S. 966 (1979)(regional legislators); Bogan v. Scott-Harris, 523 U.S. 44 (1998)(local legislators).
Recall, however, that the Court takes a functional approach to immunity, so that legislative immunity applies only to legislative acts and not, for example, to administrative acts. Compare the Supreme Court’s decision in Davis v. Passman, 442 U.S. 228 (1979), indicating that a member of Congress would not be entitled to absolute immunity in a Fifth Amendment sex discrimination damages suit filed by a fired personal aide unless the Speech or Debate Clause so provided.
Comments
Absolute legislative immunity is powerful medicine. On balance, though, it is thought to be justified by the need to promote independent legislative decision-making by defendants. After all, legislators are highly visible targets of litigation: their decisions will inevitably make many people unhappy. Also, there is a political solution available: the ballot.
Keep in mind as well that absolute legislative immunity also extends to immunity from injunctive relief. The Court so held in Supreme Court v. Consumers Union, 446 U.S. 719 (1980), where the Court found that the legislative acts of members of the Supreme Court of Virginia–promulgating attorney disciplinary rules– were protected by absolute legislative immunity from section 1983 injunctive relief.
Villarreal v. City of Laredo: The Supreme Court Reverses A Grant of Qualified Immunity In A First Amendment Case
In Villarreal v. City of Laredo, Texas, a 2022 Fifth Circuit case, the plaintiff was prosecuted under a never-before used (and subsequently held-unconstitutional) state statute for publishing information she obtained from a police officer. The Fifth Circuit panel explained as follows in denying qualified immunity to the defendant police officers:
“If the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: [Plaintiff] was put in jail for asking a police officer a question [in 2017].
If that is not an obvious violation of the Constitution, it’s hard to imagine what would be. And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution.”
Thereafter, however, the Fifth Circuit granted en banc review, vacated this panel decision and, over various dissents by six judges, issued a superseding opinion that ruled that the defendant officers were protected by qualified immunity. It explained: “[Plaintiff] cites no case, nor are we aware of one, where the Supreme Court, or any other court, has held that it is unconstitutional to arrest a person, even a journalist, upon probable cause for violating a statute that prohibits solicitation and receipt of nonpublic information from the government for personal benefit.”
The en banc Fifth Circuit also rejected the plaintiff’s argument that a general First Amendment principle—that “a third party may publish sensitive government information already in the public domain”—demonstrated that the defendants violated clearly settled law. All of the cases the plaintiff relied on for this principle were distinguishable. Villarreal v. City of Laredo, Texas, 44 F.4th 363, 367 (5th Cir. 2022), reh’g en banc granted, vacated, 52 F.4th 265 (5th Cir. 2022) and superseded on reh’g en banc by, 94 F.4th 374 (5th Cir. 2024).
In the initial panel decision Judge Ho had concurred, 44 F.4th at 378, while Judge Priscilla Richman had concurred in part and dissented in part, 44 F.4th at 382.
Thereafter, the plaintiff filed a petition for certiorari which was summarily granted by the Supreme Court, which vacated and remanded to the Fifth Circuit in light of Gonzalez v. Trevino, 144 S. Ct. 1663 (2024). As discussed in an earlier post, Gonzalez held that First Amendment retaliatory arrest claims do not require comparative evidence, only objective evidence of a retaliatory motive. See https://nahmodlaw.com/2024/06/24/the-supreme-court-rejects-a-too-narrow-nieves-first-amendment-retaliation-claims-exception-gonzalez-v-trevino/
Comment
This decision does not signal a change in Supreme Court qualified immunity jurisprudence even though it is one of those rare asymmetric decisions favoring a section 1983 plaintiff. Rather, it indicates that the Court is giving the Fifth Circuit another chance to get the First Amendment violation issue, and the related qualified immunity issue, right, just as the Fifth Circuit panel initially decided.
The Fifth Circuit Still Stands Alone In Refusing To Accept the State-Created Danger Theory
Still playing it coy on the state-created danger exception to DeShaney v. Winnebago County, 489 U.S. 189 (1989), the Fifth Circuit ruled that the defendant public school officials were protected by qualified immunity when they failed to prevent the sexual assault on a disabled student by another student with “known violent tendencies.” The student alleged a state-created danger theory, as to which the Fifth Circuit responded: “[T]o our knowledge we have not categorically ruled out the doctrine either. … Nevertheless, as we have held time and again, the right to be free from state-created danger is not clearly established in this circuit.” Fisher v. Moore, 62 F.4th 912 (5th Cir. 2023). The opinion was withdrawn and superseded on denial of petition for rehearing en banc by Fisher v. Moore, 73 F.4th 367 (5th Cir. 2023), cert. denied, 144 S. Ct. 569 (2024).
Judge Wiener concurred, 73 F.4th at 375, but disagreed with the decision not to rehear the case en banc, saying in part: “It is well past time for this circuit to be dragged kicking and screaming into the 21st century….”
Seven other judges dissented from the denial of rehearing en banc, pointing out that ten other circuits had recognized the state-created danger theory. 73 F.4th at 375.
Comment
DeShaney-type cases almost always involve tragic circumstances. However, DeShaney established the general rule that government has no affirmative due process duty to protect citizens from private harm. Nevertheless, two exceptions, both arguably implicit in DeShaney itself, have emerged in the circuits. The first is the special relationship exception, which is accepted by all of the circuits but has been narrowly applied. The second is the state-created danger theory which has been accepted by all of the circuits except the Fifth (as of this writing).
I discuss and analyze DeShaney and related circuit court decisions at length in §§3:59-3:61 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2024-25 Edition)(West/Westlaw).
Recent and Forthcoming Supreme Court Section 1983-Related Cases: Author’s Note
The 2024-25 Edition of my three-volume Treatise on section 1983 will be available in early September on West and Westlaw. The Treatise, first published in 1979, has been updated annually, I am pleased to say.
In any event, I want to share the Author’s Note with you because it provides a current list of the Supreme Court’s cases related to section 1983 that were handed down in the 2023 Term or that will be decided in the forthcoming 2024 Term
I have discussed all of these cases on this blog (except for Rahimi, the Second Amendment case), so that you can search for them. Of course, they are all addressed in the 2024-25 Edition.
(Below is the Author’s Note)
Author’s Introduction to the 2024-2025 Edition
The Preface that follows discusses the purposes of the Treatise and summarizes the contents of each chapter, including references to important Supreme Court decisions dealing with § 1983. I encourage my readers, especially new users of the Treatise, to consult it.
This 2024-2025 Edition includes not only recent important circuit court and state court decisions, but all § 1983- related decisions of the Supreme Court that were handed down up to, and including, its 2023 Term.
Supreme Court Decisions in the 2023 Term
- Lindke v. Freed and O’Connor-Ratcliff v. Garnier: state action and a public official’s social media account (see § 2:16)
- U.S. v. Rahimi: does the Second Amendment’s protection extend to a person subject to a domestic-violence court order? (see § 3:16)
- Gonzalez v. Trevino: First Amendment retaliatory arrests and objective evidence of impermissible motive (see § 3:13)
- City of Grants Pass v. Johnson: Eighth Amendment and the homeless (see § 3:28)
- Chiaverini v. City of Napoleon: Fourth Amendment malicious prosecution and the charge-specific rule (ss § 3:66)
Certiorari Granted for Decision in the 2024 Term
- Williams v. Washington: exhaustion of administrative remedies and state court § 1983 claims (see § 1:59 and § 9:61)
- Lackey v. Holcomb: preliminary injunctions, prevailing parties and attorney’s fees (see § 10:7)
As always, I welcome your comments and suggestions. Please feel free to contact me directly: my email address is snahmod@kentlaw.edu.
Sheldon H. Nahmod
September, 2024
Cert Granted in Williams v. Washington: State Court Section 1983 Claims and Exhaustion of Administrative Remedies
It has been blackletter law since Patsy v. Fla. Bd. of Regents, 457 U.S. 496 (1982), and well before, that exhaustion of administrative remedies, like exhaustion of judicial remedies (see Monroe v. Pape, 365 U.S. 473 (1961)), is not required as a condition precedent to filing a § 1983 claim in federal court. Even though Patsy itself involved a § 1983 claim filed in federal court, the opinion made clear that this was a matter of § 1983 statutory interpretation. Thus, by virtue of the Supremacy Clause, Patsy was almost universally understood as similarly applying to § 1983 claims filed in state court, just like the no-exhaustion of judicial remedies rule. Indeed, until recently, every state supreme court, except for that of South Dakota (in Reiff v. Avon School Dist., 458 N.W.2d 358 (S.D. 1990)), has ruled that exhaustion of administrative remedies is not required for § 1983 claims filed in state court.
Now Alabama has joined with South Dakota and ruled the same way in Johnson v. Washington, 2023 WL 4281620 (S. Ct. Ala. 2023), cert granted sub nom Williams v. Washington, 144 S. Ct. — (2024)(No. 23-191), which will be argued in the Supreme Court’s 2024 Term.
In Williams, the plaintiffs filed unemployment compensation claims with the Alabama Department of Labor. Because these claims were not processed in a timely manner, the plaintiffs then filed suit under § 1983 seeking prospective relief and alleging that the defendants’ failure to act on their applications and provide the notices and hearings to which they were entitled violated their federal constitutional and Social Security Act rights. The Supreme Court of Alabama dismissed plaintiffs’ amended complaint on the ground that state courts lacked jurisdiction over plaintiffs’ § 1983 suit. The sole basis for the court’s dismissal was plaintiffs’ failure to exhaust the administrative appeals process governing unemployment compensation claims provided for by Alabama law. The Supreme Court of Alabama discussed Patsy, but nevertheless ruled that § 1983 plaintiffs could not “compel State courts to adjudicate federal claims that lie outside the State courts’ jurisdiction.”
As noted, the Supreme Court granted certiorari on the question “Whether exhaustion of state administrative remedies is required to bring claims under 42 U.S.C. § 1983 in state court.”
Comments
1. A fair reading of Patsy makes abundantly clear that the Supreme Court was interpreting § 1983 when it rejected the Fifth Circuit’s “flexible” approach to exhaustion of administrative remedies. It emphasized § 1983’s legislative history as well as § 1997e of the Civil Rights of Institutionalized Persons Act that showed Congress’s understanding of § 1983. It also rejected the various policy arguments presented in favor of an exhaustion of administrative remedies requirement.
2. Even though Alabama law does not discriminate against federal claims in its courts, its exhaustion of administrative remedies constitutes a severe burden on § 1983 claims and violates the Supremacy Clause for that reason alone. Compare Felder v. Casey, 487 U.S. 131 (1988), where the Court held that a Wisconsin four-month notice of claim statute that applied to suits against state and local government agencies and their officers in state courts could not be applied to § 1983 claims filed in state courts because it conflicted “in its purpose and effects with the remedial objectives of § 1983 … [and would] predictably produce different outcomes … depending on whether the claims in asserted in state or federal court ….”
3. It is likely that what attracted four Justices to this case, thus leading to a grant of certiorari, is the issue as articulated by the Alabama Supreme Court: whether state courts can be compelled to decide federal claims purportedly outside of state courts’ jurisdiction. Significantly, the Court has already addressed this federalism issue in two cases.
In Howlett v. Rose, 496 U.S. 356 (1990), the Court ruled unanimously that states cannot apply their sovereign immunity rules to bar § 1983 claims against local governments in state courts. The Court reasoned that under the Supremacy Clause state courts have coordinate authority and responsibility to enforce the supreme law of the land.
And in Haywood v. Drown, 556 U.S. 729 (2009), the Court struck down under the Supremacy Clause a New York statute, as applied to § 1983 claims, providing that New York courts did not have jurisdiction over any claims for damages against correctional officers sued in their personal capacities for acts committed within the scope of their employment. The Court emphasized that nondiscrimination standing alone was not the equivalent of neutrality.
Significantly, Justice Thomas dissented, making an originalist argument. Also dissenting, Chief Justice Roberts and Justices Scalia and Alito argued that the majority had misinterpreted the Court’s precedents. (Note that Chief Justice Roberts and Justices Thomas and Alito are still on the Court)
4. In light of the current understanding of § 1983 regarding exhaustion of administrative remedies, and under existing Supreme Court precedent dealing with federal claims in general, and § 1983 claims in particular, as they relate to state court jurisdiction, the Alabama Supreme Court got it wrong. Williams should therefore be reversed.
All of these cases, and more, are analyzed in Chapters 1 (“converse-Erie”) and 9 (exhaustion of administrative remedies) of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).
Nahmod Law 