Nahmod Law

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:

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.

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

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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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.

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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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

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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).

Comments

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 https://nahmodlaw.com/?s=thompson+v.+clark. 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.

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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.

Comments

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).

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The Establishment Clause

In Woodring v. Jackson County, Indiana, 986 F.3d 979 (7^th 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 (1^st 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.

Comments

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.

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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 (4^th Cir. 2011)(not actionable) and Kaminski v. Coulter, 865 F.3d 339 (6^th Cir. 2017)(not actionable). See also Elliott v. Board of School Trustees, 876 F.3d 926 (7^th 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: https://nahmodlaw.com/2018/04/04/are-contract-clause-violations-actionable-under-section-1983-a-circuit-split/

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 (3^rd 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.

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