Nahmod Law

Removal, Attorney’s Fees and the Crucial Individual-Official Capacity Distinction

Some time ago I posted about the need for attorneys to understand the crucial distinction between individual and official capacity claims brought under section 1983. Here is that post:

This crucial distinction emerged in a somewhat unusual Third Circuit decision involving removal and attorney’s fees, but this time in a non-section 1983 prospective relief situation.

In League of Women Voters of Pennsylvania v. Commonwealth of Pennsylvania, 2019 WL 1782839 (3rd Cir. 2019), one of the defendants, a senator who was the state senate pro tempore, had been sued for prospective relief in his official capacity by various plaintiffs challenging Pennsylvania’s 2011 redistricting plan under state law only. He improperly removed the plaintiffs’ state suit to federal court under 28 U.S.C. § 1441(b) without an objectively reasonable basis for doing so, because there were no federal claims. On remand, the district court ordered the senator to pay fees and costs personally pursuant to §1447(c).

On appeal, the Third Circuit affirmed the fees and costs award to the plaintiffs, but it reversed the aspect of the district court’s decision that made the senator personally liable. In this case of first impression on the matter, the court reasoned that the senator was a party to the prospective relief lawsuit only in his official capacity, not his individual capacity, and thus he should not be forced to pay personally. Further, the district court made no separate finding of bad faith on the part of the senator as a basis for awarding fees and costs as a sanction. In short, the district court did not have power to sanction a non-party.

The lesson here is, once again, that this distinction is ignored at the attorney’s peril, regardless of whether a lawsuit seeks damages or prospective relief.

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

Written by snahmod

May 29, 2020 at 9:39 am

Heck Accrual, Section 1983 and Custody: An Important 2020 Seventh Circuit Decision

There is a special, and quite complicated, accrual rule, set out in Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the section 1983 plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action. In such cases, the section 1983 claim does not accrue until the underlying conviction is overturned or vacated. This accrual rule arises, according to the Supreme Court, at the “intersection” of section 1983 and habeas corpus.

(For background, you can find earlier posts by searching “Heck”. For much more, you can consult Chapter 9 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2019)(West/Westlaw)).

A “Hypothetical”

But suppose a situation where a section 1983 plaintiff has already served a lengthy sentence for a serious crime he has consistently maintained he never committed (but was framed for). He can no longer get habeas relief, because he is no longer in custody. Suppose further that he is subsequently pardoned by the governor.

When does his section 1983 claim alleging he was framed accrue: when he was released from custody or when he was pardoned by the governor? You may recognize this kind of question from Justice Souter’s concurring opinion in Spencer v. Kemna, 523 U.S. 1 (1998) and from the comments of other justices.

The Seventh Circuit’s Decision in Savory v. Cannon

In Savory v. Cannon, 2020 WL 240447, *9, *17 (7th Cir. 2020), an important Seventh Circuit decision with a dissent by Judge Easterbrook, the majority declared: “Heck controls the outcome where a section 1983 claim implies the invalidity of the conviction of the sentence, regardless of the availability of habeas relief.”

In Savory, the plaintiff, who spent 30 years in prison for a double murder he insisted he never committed and who was paroled in December 2006, had his sentence commuted in December 2011 and was pardoned by the Illinois governor on January 12, 2015. He then sued a city and certain city police officers on January 11, 2017 (less than two years after the pardon) alleging that he was framed and asserting various constitutional violations. Reversing the district court, the Seventh Circuit, applying Heck, determined that the plaintiff’s claims were timely under the Illinois two-year limitations period. The Heck bar was lifted and his claims did not accrue until he was pardoned by the governor on January 12, 2015, not earlier when his parole had been terminated in December 2011 by the commutation of his sentence and when he could therefore no longer seek habeas relief.

The Seventh Circuit, reasoning that the plaintiff’s claims most resembled the common-law tort of malicious prosecution, relied both on Heck and on the Court’s fabrication of evidence accrual decision in McDonough v. Smith, 139 S. Ct. 2149 (2019)(search this blog for “McDonough”). It expressly rejected the defense argument, based on dicta of several Supreme Court justices (including Justice Souter) in various concurring and dissenting opinions, for an accrual rule tied to the end of custody, namely, December 2011. It also acknowledged that the language and reasoning in several of its prior decisions “ha[d] created confusion regarding the applicability of Heck in cases where habeas relief is not available.”

Judge Easterbook dissented, 2020 WL240447, *18,  arguing that the majority should have adopted a Heck accrual rule tied to the end of custody. He explained that the Seventh Circuit “should be equally concerned about a rule starting the time so late that claims never accrue [as it is ‘about a rule starting the time so early that legitimate claims would be lost.’].”

The Seventh Circuit’s approach to Heck accrual obviously has significant implications for the timeliness of section 1983 litigation where falsely convicted persons have served their sentences, are no longer in custody, are subsequently exonerated and now seek section 1983 damages recourse against those responsible for their convictions.

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



Written by snahmod

May 18, 2020 at 11:55 am

Finally! A State’s Highest Court Creates Clearly Settled Law

Whose Decisions Determine Clearly Settled Federal Constitutional Law?

We all know that in order for a state or local government official to be liable for damages in his or her individual (not official) capacity under section 1983, that official must have violated clearly settled federal constitutional law as of the time of the challenged conduct. Otherwise, that official is protected by qualified immunity and is not liable for damages.

The conventional, oft-repeated approach is that in making the clearly settled law inquiry, we look first for apposite Supreme Court decisions. If there are none, then we look to the particular circuit’s decisions to determine whether clearly settled law existed at the time. If there are no such apposite decisions in the particular circuit, we look to the other circuits to determine whether there is an overwhelming consensus that the relevant law was clearly settled.

It is often said as well that a state’s highest court can establish clearly settled federal constitutional law even where there is otherwise no such clearly settled law. Yet, in all of the decades that I have been working in the section 1983 area, I do not recall ever encountering a situation where this has happened. Until now!

The Second Circuit’s Stoley Decision and the Court of Appeals of New York’s Hall Decision

In Stoley v. Vanbramer, 2019 WL 6765762 (2nd Cir. 2019), the defendant New York State troopers allegedly violated the plaintiff’s Fourth Amendment rights by subjecting him in 2013 to a visual body cavity search incident to his arrest on felony charges without reasonable suspicion that drugs were concealed within his body. Affirming the district court’s denial of qualified immunity to the defendants, the Second Circuit relied on a 2008 Court of Appeals of New York decision, People v. Hall, 10 NY3d 303 (N.Y. 2008), holding that individualized reasonable suspicion that an arrestee (whether for misdemeanor or felony) is concealing weapons or other contraband within his body is required by the Fourth Amendment for a visual body cavity search incident to an arrest. The Second Circuit explained that it saw no problem in requiring that New York law enforcement officers know Fourth Amendment law from decisions of federal courts and the Court of Appeals of New York.

Judge Newman concurred, 2019 WL 676562, *12, arguing that the majority relied not only on the Court of Appeals of New York decision for its finding of clearly settled law but also on the decisions of other circuits, decisions of the New York Appellate Division and decisions of district courts in the Second Circuit. The “combination of these circumstances,” together with Hall, supported the majority’s determination.

Judge Jacobs dissented, 2019 WL 67652, *15, contending that relevant Second Circuit Fourth Amendment law regarding body cavity searches incident to felony (as distinct from misdemeanor) arrests was not clearly settled in 2013.

The lesson for attorneys in section 1983 litigation involving qualified immunity and clearly settled law: however rare it is, don’t ignore your highest state court decisions setting out federal constitutional law.

For additional posts on qualified immunity, search “qualified immunity” on this blog.

For much more on qualified immunity, see Ch 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019) (West/Westlaw).

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



Written by snahmod

May 14, 2020 at 9:50 am

The Second Amendment and Section 1983 (Podcast): A Section 1983 Conference Encore

As many of you know, Covid-19 prevented Chicago-Kent’s 37th Annual Conference on Section 1983 from taking place, as originally scheduled, on April 23-24, 2020.

Still, in order to celebrate the Conference, several weeks ago I provided an encore podcast presentation on Damages and Procedural Defenses (search for “damages and procedural defenses”).

In order to further celebrate the Conference, I am providing another encore podcast presentation, this one on The Second Amendment and Section 1983, that took place in November 2014.

This presentation covers the basics and is still good Second Amendment law, particularly since the Supreme Court just dismissed as moot a Second Amendment challenge in New York State Rifle & Pistol Assn, Inc. v. City of New York, 139 S. Ct. 939 (2019).

You can readily find the podcast by searching on this blog for “second amendment and section 1983.”


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


Written by snahmod

May 12, 2020 at 9:40 am

The Rooker-Feldman Doctrine in the Circuits

Despite the broad grants to federal courts of jurisdiction over section 1983 claims by 28 U.S.C. sections 1331 and 1343, there are circumstances where federal jurisdiction over such claims is absent. Under the Rooker-Feldman doctrine–see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 1983)–federal courts have no appellate jurisdiction over state court judgments with respect to modifying or vacating them.

The Supreme Court explained the proper scope of this doctrine in Exxon Mobil v. Saudi Basic Industries Corp., 125 S. Ct. 1517 (2005)(emphasis added):

The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Rooker-Feldman does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions.

In other words, section 1983 plaintiffs may not seek in federal court to overturn or review state court judgments as such. Rooker-Feldman is jurisdictional and the parties cannot waive it.

Here are recent Eighth and Seventh Circuit decisions fleshing out this doctrine.

1. For Rooker-Feldman to apply, there must be a state court judgment. The Eighth Circuit ruled in Webb v. Smith, 2019 WL 4051000 , *5(8th Cir. 2019), where the plaintiff parents filed section 1983 claims against social workers alleging constitutional violations in connection with emergency protective custody of their children, that Rooker-Feldman did not apply: “The state courts here never issued any judgments; they entered orders in cases that were later voluntarily dismissed, which under Arkansas law is a decision ‘without prejudice and is not an adjudication on the merits.’” In addition, the plaintiffs here were not trying to get out from under a state court judgment.


2. On the other hand, there may be circumstances where Rooker-Feldman applies to interlocutory appeals. The Seventh Circuit observed that it agreed with the circuits holding that “there is a state court ‘judgment’ under Rooker-Feldman, even in the absence of a final appealable order so long as the state-court interlocutory order is “’effectively final.’” In the case before it, the Seventh Circuit determined that a satisfaction of judgment effectively made the foreclosure case against the §1983 plaintiffs final. They had challenged many people and entities involved in the foreclosure proceedings against them, including attorneys, a bank and its employees, a state court clerk, deputy clerks and the judge who presided over the foreclosure proceedings. According to the Seventh Circuit, a ruling in favor of the plaintiffs would require it to contradict the state court’s orders. Bauer v. Koester, 2020 WL 1042629 (7th Cir. 2020).


3. Rooker-Feldman can apply even where the section 1983 plaintiff does not directly attack the relevant state court decision. In Swartz v. Heartland Equine Rescue, 940 F.3d 387 (7th Cir. 2019), the Seventh Circuit found Rooker-Feldman applicable to bar the plaintiff animal owners’ claims that many state and private defendants conspired to deprive them of their goats and horses. Their claims would necessarily call into question various state court decisions dealing with probable cause, placement judgment and a pretrial diversion agreement. Thus, the claims were inextricably intertwined with the federal litigation and the plaintiffs’ alleged injuries were directly caused by the state court’s orders. Moreover, the plaintiffs had a reasonable opportunity to litigate their constitutional claims in state court. Finally, Rooker-Feldman governed even though the plaintiffs did not explicitly challenge the state court decisions and even though neither party had raised the issue in the district court. Rooker-Feldman is jurisdictional and it cannot be waived by the parties.

Those who want to know more about this complicated subject can check out the analysis and collected Rooker-Feldman cases in my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 secs. 1:26-1:30  (2019)(West/Westlaw).

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

April 29, 2020 at 11:14 am

Damages and Procedural Defenses (Podcast): A Section 1983 Conference Encore

Today, Thursday, April 23, 2020, was scheduled to be the first day of the 37th Annual Section 1983 Conference, held at IIT Chicago-Kent College of Law. But as you all know, Covid-19 forced us to cancel.

Still, in order to commemorate the occasion, I am providing an Encore of my presentation ten years ago (2010) on Damages and Procedural Defenses. There were over 160 attorneys from all over the country in attendance.

Rest assured that this material is still good law, it is basic and it has not been undone by subsequent Supreme Court decisions. In other words, it is not recycling for the sake of recycling.

You can easily find the podcast by searching on this blog for “damages and procedural defenses.”


You can follow me on Twitter @NahmodLaw.

Written by snahmod

April 23, 2020 at 9:05 am

Cancelled: April 23-24, 2020, Conference on Section 1983

It took a virus to cancel the previously scheduled 37th Conference on Section 1983 in Chicago, and to stop our streak at 36 consecutive years.

This Conference, with an outstanding group of speakers, was to be held on April 23-24, 2020, at Chicago-Kent College of Law. Regrettably, we had no choice but to cancel because of the corona-virus pandemic.

We fully expect the 37th annual conference to be held in April 2021 (the precise dates have not yet been determined). All of our dedicated speakers have already committed to participate next year. So I can promise you that the 2021 Conference will be better than ever.

If you have any questions, you may contact either our CLE department at or me at

In the meantime, stay safe.

I invite you to follow me on Twitter @NahmodLaw.


Written by snahmod

March 20, 2020 at 10:32 pm

Know Your Constitution (10): The Second Amendment

This is the tenth in a series of posts about the United States Constitution written in everyday language with a minimum of legal jargon. These posts are not intended to provide legal advice and should not be used for that purpose.

(Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution,  addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural and substantive due process, as well as state action and, most recently, the free speech rights of public employees).


The Second Amendment reads as follows: “A well regulated Militia, being necessary to the security of a free state, the right of the People to keep and bear arms, shall not be abridged.”

While most legal scholars previously thought, consistent with then-existing precedent, that the Second Amendment dealt solely with the military, the Supreme Court nevertheless held in 2008 in the blockbuster Heller case that the Second Amendment is not limited to the military context.  Rather, it protects an individual’s right to possess a handgun in the home for self-defense. District of Columbia v. Heller, 554 U.S. 570 (2008)(5-4 decision, with the lengthy majority opinion written by Justice Scalia).

Significantly, Heller (and Justice Scalia) expressly did not call into question: (1) prohibitions against the possession of firearms by felons and the mentally deficient; (2) prohibitions against the possession of “unusual” firearms such as machine guns; and (3) prohibitions against carrying firearms in schools and government buildings. In addition, Heller made clear that government regulation of commercial sales and purchases of firearms is not necessarily unconstitutional, and that the same is true for licensing requirements for individuals.

What Heller did not address is whether and to what extent Second Amendment protection extends beyond the home and covers open and concealed carry. Namely, is the self-defense rationale of Heller limited to the home? These questions continue to engage the lower federal courts because the Supreme Court has not addressed them as of this writing. The only post-Heller Supreme Court decision thus far is McDonald, where the Court not surprisingly ruled that the Second Amendment applies to state and local governments as well as to the federal government and the District of Columbia. McDonald v. City of Chicago, 561 U.S. 742 (2010). But it is only a matter of time, now that the Court has a full complement of justices, before the Court considers these questions.

Some Basic Principles Everyone Should Know (Not Just About the Second Amendment)

1. Constitutional rights run against government: private persons cannot violate any of your constitutional rights, including the Second Amendment. (The only possible exception is your Thirteenth Amendment right not to be subject to involuntary servitude). But if a police officer were to arrest you in alleged violation of your Second Amendment rights, or if a government were to deny you a firearm license, that’s different.

2. Constitutional rights are not absolute, whether it’s the Second Amendment, the First Amendment or any of the other individual constitutional rights. All are governed by the appropriate balancing test articulated by the Supreme Court for different constitutional rights. It is not yet clear what the test is for alleged Second Amendment violations.

3. The Second Amendment means whatever the Supreme Court says it means. The Constitution is the Supreme Law of the Land and what is provisions mean is ultimately for the Supreme Court to determine through judicial review (unless there is a constitutional amendment).

4. All constitutional rights have costs. This is crucial to keep in mind. The Second Amendment is a good example since firearms can cause harm. The First Amendment is another good example since protected speech can cause harm as well.

5. One last point: constitutionality and wisdom are not the same. Some gun control legislation, for example, might be wise but still unconstitutional. Conversely, some gun control legislation might be unwise but still constitutional. The Second Amendment sets a constitutional floor or minimum. But so long as legislative regulations of firearms comply with this floor, they are subject only to the political process.

I invite you to follow me on Twitter @NahmodLaw.

Written by snahmod

March 12, 2020 at 9:15 am

Posted in Constitutional Law

Takings Claims Against States After Knick: Some Unanswered Questions

The Knick takings decision

The Supreme Court, in Knick v. Township of Scott, 139 S. Ct. 2162 (2019), a game-changing 5-4 takings decision, overruled Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985). In Knick, the district court had dismissed a property owner’s section 1983 takings claim for damages against a local government because she had not pursued an inverse condemnation action in state court against the local government as required by Williamson County. The Court, reversing in an opinion by Chief Justice Roberts, declared:

We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claims when the government takes his property without paying for it. … [This means] that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and may therefore bring his claim in federal court under [section] 1983 at that time.

(Knick, its relation to Williamson County and its implications for section 1983 damages actions claiming takings against local governments are addressed at length in a previous post here:

What are the implications for section 1983 damages actions claiming takings against states?

Even after Knick, a section 1983 takings plaintiff attempting to sue a state for damages in federal court has to confront two obstacles. The first is the Supreme Court’s decision in Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), that a state, unlike a local government, is not a suable “person” within the meaning of section 1983. And second, even apart from Will, the Eleventh Amendment would serve as a bar to such a federal court lawsuit since Will also held that section 1983 did not abrogate Eleventh Amendment immunity.

A section 1983 takings plaintiff who sues a state for damages in state court in order to avoid the Eleventh Amendment bar would fare no better because, as mentioned, a state is not a suable “person” for section 1983 purposes as a matter of statutory interpretation. A state thus cannot be sued for damages under section 1983 anywhere.

The result is that the section 1983 takings plaintiff suing a state in federal court has to forego his or her damages claim and instead seek declaratory and injunctive relief under section 1983 against the relevant state officials alleging an unconstitutional taking. If successful, the plaintiff would be entitled to attorney’s fees in addition to prospective relief.

In addition, the section 1983 plaintiff seeking damages for an unconstitutional taking could sue state officials in their individual capacities for damages. In many such cases, though, these state officials would likely defend on the ground of absolute quasi-judicial immunity and, as a fallback, on the ground of qualified immunity, arguing that they did not violate clearly settled takings law.

Here is where it gets interesting.

Could a takings plaintiff seeking damages against a state in federal court not use section 1983 but instead rely on the Fourteenth Amendment (which incorporates the Fifth) as the basis for his or her claim? Notice that the section 1983 “person” issue drops out. You may say that there is still a potential Eleventh Amendment problem. But could the Fourteenth Amendment takings plaintiff plausibly make two related arguments. First, that the Fourteenth (and Fifth) Amendments are self-executing, per Knick, and give rise on their own to potential damages liability where there has been a taking without just compensation? And second, that the Fourteenth (and Fifth) Amendments, by virtue of their self-executing nature regarding just compensation (this is where Knick comes in again), abrogate Eleventh Amendment immunity? The Fourteenth Amendment, at least insofar as takings are concerned, could be read as modifying the Eleventh Amendment in this respect.

A related question, whose answer might be relevant to the above questions about states, is whether any of this reasoning applies to Fifth Amendment damages taking claims against the federal government. Is the Fifth Amendment self-executing in this respect and does it abrogate federal sovereign immunity? Or has the federal government separately waived its sovereign immunity under the Tucker Act, 28 U.S.C. section 1491(a)(1), thus avoiding the need to answer the abrogation question?

There you have it. Please feel free to email me at with any thoughts you may have.

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


Written by snahmod

January 31, 2020 at 6:24 pm

Upcoming 37th Conference on Section 1983: April 23-24, 2020

I am pleased to announce that the 37th consecutive Conference on Section 1983 will be held at Chicago-Kent College of Law on Thursday and Friday, April 23-24, 2020.

As always, the Conference features outstanding and experienced scholars and practitioners addressing virtually all aspects of section 1983 and related constitutional provisions. The Conference also includes updates on important recent and forthcoming Supreme Court cases and on attorney’s fees and related ethical issues. In addition, this year we have new presentations on due process, immigration and takings law after Knick.

Here is the registration link:

Please call our CLE office, 312-906-5090, or connect with the office via email,, if you have any questions.

Or, you may email me directly at

Here is a chronological listing of each day’s presentations.

Day 1: Thursday, April 23, 2020

Sheldon Nahmod on the basics of the section 1983 claim

Erwin Chemerinsky on individual immunities

Karen Blum on municipal liability

Rosalie Levinson on due process

Erwin Chemerinsky on the Supreme Court’s current and forthcoming Terms

Day 2: Friday, April 24, 2020

John Murphy on practical considerations in section 1983 litigation

Kimberly Bailey on the Fourth Amendment

John Murphy on takings after Knick (concurrent session)

Victoria Carmona on immigration law and section 1983 (concurrent session)

Gerry Birnberg on attorney’s fees and ethical issues


I hope to see you there. And if you do attend, please say hello.

I invite you to follow me on Twitter: @NahmodLaw


Written by snahmod

January 15, 2020 at 9:10 am