Nahmod Law

What Is “Favorable Termination” Where There Is No Conviction?

The Rule of Heck v. Humphrey: An Existing Conviction

Suppose a section 1983 plaintiff has been convicted of a crime and wants to sue law enforcement officers for damages arising out of his arrest, prosecution, imprisonment or conviction. An initial hurdle is the seminal decision of Heck v. Humphrey, 512 U.S. 477 (1994), which governs those situations in which the section 1983 plaintiff has a existing conviction whose validity might be implicated by a successful damages action as, for example, where the plaintiff alleges that he was prosecuted and convicted because the defendants fabricated evidence. In such cases, the section 1983 claim does not accrue until the underlying conviction is reversed, expunged or otherwise declared invalid by a state tribunal or called into question by a federal court’s issuance of a writ of habeas corpus. According to the Supreme Court, this accrual rule stems from the “intersection” of section 1983 and habeas corpus and is analogous to the common law tort of malicious prosecution where a favorable termination is a required element of a plaintiff’s claim (together with absence of probable cause and malice).

In contrast, where the section 1983 damages action, if successful, would not implicate the validity of the underlying conviction–as, for example, where the plaintiff, convicted of arson, alleges that excessive force was used against him when he was arrested–the section 1983 excessive force claim accrues at the time of the challenged conduct, here, the time of arrest.

(See generally on Heck:

What If There Is No Conviction? The Certiorari Petition in Thompson v. Clark

So far so good. Suppose now that a section 1983 plaintiff who was never convicted alleges that he was arrested and/or prosecuted in violation of his constitutional rights. More specifically, he alleges that he was unlawfully seized pursuant to legal process in violation of the Fourth Amendment and held in jail pending trial pursuant to a judge’s decision. Thereafter, all charges are dismissed and he is released. (Compare Manuel v. City of Joliet, 137 S. Ct. 911 (2017) about which I posted here:

When does such a plaintiff’s cause of action accrue? More specifically, if favorable termination is required by analogy to malicious prosecution, must that favorable termination affirmatively show that the section 1983 plaintiff was innocent or is it enough for the plaintiff to show that the favorable termination was not inconsistent with his innocence?

A petition for certiorari in Thompson v. Clark, No. 20-659 (filed 11-6-20), out of the Second Circuit, raises that issue. In this case, “the prosecution dismissed the charges against petitioner without any plea or compromise. Petitioner’s case was called at a hearing, and the prosecution simply stated: ‘People are dismissing the case in the interest of justice.'” Under Second Circuit precedent, this was insufficient to show favorable termination because the dismissal did not demonstrate the plaintiff’s innocence.

Hence the Question Presented in the petition: “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.”

Among other things, the petitioner maintains that the First, Third, Fourth, Sixth, Ninth and Tenth Circuits incorrectly take the same position as the Second Circuit where there is no conviction, thus giving rise to a circuit conflict between the Eleventh Circuit and these others that merits a grant of certiorari.


  1. Regardless of whether the Court grants certiorari in Thompson, the preferable favorable termination rule is one that does not require an affirmative indication of innocence. Among other considerations, a contrary rule would encourage prosecutors to offer potential section 1983 plaintiffs a dismissal or its equivalent–an offer many litigants and their attorneys would find difficult to resist in the face of a threatened criminal trial–and thereby undermine any future section 1983 claims challenging the unreasonable seizure pursuant to legal process.
  2. Requiring an affirmative indication of innocence would place those never convicted in a worse position for section 1983 purposes than those who were in fact convicted. Heck does not appear to require an affirmative indication of innocence as a condition precedent to going forward with a section 1983 damages claim; it requires only that the conviction be invalidated where the damages action, if successful, would call the conviction into question.
  3. As nicely pointed out in one of the Amicus briefs, requiring an affirmative indication of innocence is inconsistent with the presumption of innocence.
  4. Note that another important accrual decision based on an analogy to malicious prosecution, McDonough v. Smith, 139 S. Ct. 2149 (2019), involving a due process fabrication of evidence claim, dealt with an acquittal as a favorable termination. (See generally So far as I know, no one has argued that an actual acquittal is not a favorable termination.
  5. Whatever “favorable termination” turns out to mean, it will be a matter of federal law since we are dealing with the accrual of a section 1983 cause of action. It will therefore apply nationally.


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Written by snahmod

January 18, 2021 at 10:31 am

Posted in Uncategorized

Proximate Cause and Recoverable Damages in Section 1983 Cases

Proximate Cause and Section 1983

It is generally agreed that federal common law principles of proximate cause govern section 1983 as a matter of statutory interpretation because they are part of the “background of tort liability.” The Supreme Court weighed in on these principles in its 2017 decision in County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), Mendez involved a warrantless entry by officers in violation of the Fourth Amendment, followed by the use of deadly force that did not violate the Fourth Amendment. The plaintiff in Mendez sought damages under section 1983 for the use of deadly force on the ground that those damages were proximately caused by the warrantless entry.

In Mendez, the Court rejected the Ninth Circuit’s provocation rule of proximate cause and remanded. In its opinion, though, it discussed the various approaches to proximate cause in the section 1983 setting: reasonable foreseeability and the somewhat narrower-in-scope risk rule. See my post on Mendez:

Now consider Martin v. Marinez, 934 F.3d 594 (7th Cir. 2019), a proximate cause damages decision of the Seventh Circuit.

Martin v. Marinez

In Martin v. Marinez, the plaintiff’s Fourth Amendment rights were violated because the defendant police officers did not have reasonable suspicion or probable cause to detain him when they stopped him, forced him from his car, conducted a pat-down search, handcuffed him and put him into a police vehicle. This was an unlawful seizure that violated the Fourth Amendment. However, when they searched his car they found a semiautomatic handgun with a defaced serial number and crack cocaine. They then took the plaintiff, who they discovered was a convicted felon, into custody, which was in turn followed by sixty-five days of incarceration for felony charges resulting from the traffic stop. The charges were thereafter dropped and dismissed through a nolle prosequi motion when a state court granted the plaintiff’s motion to suppress.

However, in contrast to the unlawful stop which did violate the Fourth Amendment, the jury found that the police officers did not violate the Fourth Amendment (for false arrest and unlawful search) once they discovered the gun and the crack cocaine and arrested him—there was probable cause for the arrest and search irrespective of the initial unlawful stop. The plaintiff sought damages totaling $110,000 for his incarceration and lost business income, but was awarded only $1 by the jury for the unlawful stop. Judgment was then entered against him by the district court which had instructed the jury that it could not award any damages for time spent in custody after the officers found the handgun.

Affirming the district court in Martin, the Seventh Circuit ruled against the section 1983 plaintiff on the scope of recoverable damages in this Fourth Amendment case. The court first commented:

“We have not resolved the specific question whether a plaintiff may recover damages for post-arrest incarceration following a Fourth Amendment violation when probable cause supported the ultimate arrest and initiation of criminal proceedings, but the application of the exclusionary rule spared the plaintiff from the criminal prosecution. As Martin notes, there is a split of authority on the question of whether a defendant whose Fourth or Fifth Amendment rights have been violated can recover damages.”

The Seventh Circuit then ruled that the plaintiff could recover damages only for the unlawful stop and not for his incarceration and lost business income. There was probable cause for his arrest even though the initial stop was unlawful: this foreclosed the plaintiff’s false arrest and unlawful search claims. The Seventh Circuit rejected the plaintiff’s argument that the unlawful stop proximately caused the resulting damages for incarceration and lost business income. According to the court, such an approach to damages recovery was not only inconsistent with common law proximate cause principles but also with section 1983 policy because the potential liability would be disproportionate to the underlying constitutional violation. “[Plaintiff’s] damages award was thus properly limited to the harm arising from his unconstitutional detention before his lawful arrest.”


The Seventh Circuit appears to have adopted a risk rule approach to proximate cause in Martin–an approach that I have previously criticized–and not the broader reasonable foreseeability approach. In this connection, the Seventh Circuit said it was following the proximate cause approach of the Second Circuit in Townes v. City of New York, 176 F.3d 138 (2nd Cir. 1999), and of the Third Circuit in Hector v. Watt, 235 F.3d 154 (3rd Cir. 2000), both of which it cited.

Interestingly, the Seventh Circuit did not explicitly deal with the case before it in intervening-superseding cause terms, as it might have.

For much more on proximate cause and section 1983, see Ch. 3 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West & Westlaw).

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Written by snahmod

December 23, 2020 at 10:20 am

Posted in Uncategorized

Right of Access Claims, Cover-Ups and the Seminal Harbury Decision

Christopher v. Harbury, Cover-Ups and Right of Access Claims

In Christopher v. Harbury, 122 S. Ct. 2179 (U.S. 2002), the Supreme Court dealt with a denial of access claim brought by the plaintiff widow against federal government officials, alleging that they intentionally deceived her in concealing information about her husband’s detention and torture in Guatemala (where he was a citizen) by Guatemalan military officers paid by the Central Intelligence Agency (CIA). She argued that this deception deprived her of information, or reason to seek information, that she could have used to bring a lawsuit that might have saved her husband’s life. After the case was decided by the District of Columbia Circuit, she was left with her right of access claim, various common law claims including intentional infliction of emotional distress and an international law claim against the CIA. Reversing and ruling against the plaintiff for failure to state a denial of access claim, the Court, in an opinion by Justice Souter explained:

“As stated in the complaint, [the denial of access count] fails to identify an underlying cause of action for relief that the plaintiff would have raised had it not been for the deception alleged. And even after a subsequent, informal amendment accepted by the Court of Appeals, [plaintiff] fails to seek any relief presently available for denial of access to courts that would be unavailable otherwise.”

Two Kinds of Access Claims: Forward-Looking and Backward-Looking

At the outset, the Court observed that its denial of access cases were not as wide-ranging as those in the circuits. Still, for present purposes the circuit denial of access cases could be divided into two categories: (1) those forward-looking claims in which systemic official action hindered a plaintiff in preparing and filing suits in the present, as in many prison cases; and (2) those backward-looking claims involving cases that cannot now be tried, or tried with all material evidence, “no matter what official action may be in the future,” because the official conduct caused the loss or inadequate settlement of a meritorious case, as in cover up cases. After observing that denial of access claims have been based on various constitutional provisions (the Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth and Fourteenth Amendment Due Process Clauses and the Fourteenth Amendment Equal Protection Clause), the Court then commented that the justification for recognizing both kinds of claims was the same: “Whether an access claim turns on a litigating opportunity yet to be gained or an opportunity already lost, the very point of recognizing any access claim is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong.” In short, a denial of access claim was “ancillary” to the underlying claim “without which a plaintiff cannot have suffered injury by being shut out of court.” Consequently, the plaintiff who asserts a denial of access claim must describe the underlying cause of action (the predicate claim) in the complaint with enough particularity to give the defendant notice.

The Harbury Plaintiff’s Backward-Looking Claim

The Court went on to apply this approach to the Harbury plaintiff’s denial of access claim, which it characterized as solely backward-looking, and found that claim “not even close” to stating a cause of action for denial of access since the predicate claim was not identified with any specificity. Hence, her denial of access claim should be dismissed for failure to state a claim.

Waller v. Hanlon, A Recent Fifth Circuit Cover-Up Decision

In Waller v. Hanlon, 922 F.3d 590 (5th Cir. 2019), the plaintiffs, survivors of the decedent who had been fatally shot by a police officer, alleged, in connection with their excessive force claim, that police officers also conspired to cover up the true circumstances of decedent’s death in violation of the plaintiffs’ clearly established right of access to the courts. The Fifth Circuit noted that this was a backward-looking claim within the meaning of Harbury and that it satisfied the first and second requirements of such claims: the underlying claim was not frivolous and the alleged conduct frustrated the litigation of that claim. However, the plaintiffs did not explain what the alleged conduct “cost” them. “[T]he plaintiffs are actively—and, so far, successfully—litigating that [excessive force] claim. They filed hundreds of pages of pleadings in the district court supported by dozens of exhibits containing detailed forensic evidence in support of their claim. They survived [the shooting officer’s] pleading-stage assertion of qualified immunity first in the district court and now on appeal.” Thus it was too early to say that plaintiffs’ excessive force claim on behalf of decedent has been “permanently compromised.”


1. The discussion of Harbury is adapted from section 3:84 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West & Westlaw). Many post-Harbury decisions are collected and discussed there.

2. Harbury itself involved federal officials so that section 1983, which covers state action only, was not applicable. Still, Harbury clearly governs section 1983 claims based on denials of the right of access to the courts.

3. Waller demonstrates that right of access plaintiffs must allege and prove that their right of access has actually been harmed (the “cost”), not merely inconvenienced, by the defendants’ conduct.

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Written by snahmod

December 8, 2020 at 10:58 am

Posted in Uncategorized

DeShaney’s No-Affirmative Duty Rule, Section 1983 and Danger-Creation: Three Recent Decisions

Almost everyone knows by now that in a still-controversial decision, DeShaney v. County of Winnebago, 489 U.S. 189 (1989), the Supreme Court ruled that the due process clause does not create an affirmative substantive due process duty on the part of government to protect citizens from private harm. The Court in DeShaney suggested two exceptions to this general rule: (1) when the government or its officials or employees themselves created the danger in which the plaintiff found himself or herself, and (2) when the plaintiff is in the government’s custody and is thereby prevented from protecting himself or herself. Many, if not most, DeShaney-type cases involve the danger-creation exception and the section 1983 plaintiffs typically lose.

(I’ve posted about DeShaney over the years on this blog. All you need to do to find these posts is to search “DeShaney.” Also, for much more, see ch. 3 in my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West).)

What follows are three recent decisions that rejected the state-created danger exception to DeShaney.

A Fourth Circuit Case: Graves v. Lioi

The decedent’s estate filed a section 1983 substantive due process suit against two police officers claiming that they were responsible for the stabbing death of the decedent, the assailant’s pregnant wife, outside a courthouse where she had just obtained a protective order against him. The officers allegedly enabled the assailant to postpone his self-surrender on a misdemeanor arrest warrant, thereby providing him with the opportunity to murder his wife. Affirming the district court’s grant of summary judgment to the officers, the Fourth Circuit determined that the record did not show that they committed affirmative acts that would render them liable under the state created danger doctrine. These acts included the letters and texts of one of the officers to the assailant, the conduct of the second officer relating to the arrest warrant against the assailant and their decisions to allow the assailant to leave a police department district office and self-surrender. There was also little or no evidence of a causal link between the alleged affirmative acts and the decedent’s harm. Further, the defendants were protected by qualified immunity. Graves v. Lioi, 930 F.3d 307 (4th Cir. 2019).

Judge Gregory dissented, arguing that the majority improperly construed the evidence which, in fact, showed that the defendants engaged in actionable affirmative acts to allow the assailant to evade arrest until a date considered convenient to him, when he was finally able to stab his pregnant wife.

A Seventh Circuit Case: Estate of Her v. Hoeppner

A child’s estate filed a section 1983 suit against a parks director, seven lifeguards and a city after the six-year-old child was found unresponsive on the bottom of a man-made swimming pond operated by the city. She died several days later. The Seventh Circuit affirmed the district court’s grant of summary judgment to the defendants, rejecting the plaintiff’s state danger-created theories. “No reasonable jury could find that the defendants created a danger just by operating a public swimming pond or that they did anything to increase the danger to [the child[ before she drowned. Nor was their conduct so egregious and culpable that it ‘shocks the conscience,’ a necessary predicate for a court to find that an injury from a state-created danger amounts to a due process violation.” There was no evidence that the swimming pond was “distinctively dangerous.” There was also no evidence that the lifeguards disregarded their training: the child slipped below the surface without being noticed by anyone. At most, this was a negligence claim. Estate of Her v. Hoeppner, 939 F.3d 872 (7th Cir. 2019).

An Arkansas Supreme Court Case: Yang v. City of Little Rock

Where the plaintiff  filed a section 1983 damages action against a city and others in connection with the alleged mishandling of a 911 call requesting rescue services for his deceased son, the Supreme Court of Arkansas affirmed the lower court’s grant of summary judgment to the defendants. As to the plaintiff’s claim that the city failed to provide competent emergency services, thereby causing his son’s death, the court declared that under DeShaney, the city had no constitutional duty to provide rescue services for the son. And as to the plaintiff’s claim that the city was liable under a state-created-danger exception because its water rescue operations prevented rescue attempts by others, there was no evidence that the city arbitrarily prohibited rescue attempts by anyone: indeed, there were no reasonable alternative avenues of rescue here. In short, there was no evidence that the city affirmatively placed the plaintiff’s son in a position of danger that he would not otherwise have faced. Dayong Yang v. City of Little Rock, 2019 Ark. 169 (2019).


  1. I consider the strongest of these three cases for the state-created danger exception to DeShaney to be the Fourth Circuit’s Graves decision. Even here, though, an alternative ground for the decision in favor of defendants was qualified immunity. So the police officers escaped section 1983 damages liability in any event.

2. Even where section 1983 plaintiffs confronting DeShaney can surmount the affirmative duty issue, they still have to show a highly culpable state of mind, often put somewhat confusingly by the circuits in “conscience shocking” terms. What is really required is at least deliberate indifference which is still not all that easy to show. More than negligence or gross negligence is required.

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Written by snahmod

November 17, 2020 at 11:56 am

Posted in Uncategorized

My Son Interviews His Father About Section 1983, Constitutional Law and Arguing in the Supreme Court

My talented singer-songwriter son, Daniel Nahmod, recently interviewed me and posted the interview on his website. The interview appears with a separate election-eve patriotic program that you may also want to check out.

In the interview, my son asks me about section 1983, the Fourteenth Amendment and my successful argument in the Supreme Court in an important section 1983 case involving over 100 Puerto Rico teachers terminated in violation of the First Amendment. We also talked about my education, how I became interested in section 1983 and wrote my section 1983 treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West).

The link to the website, and to the interview and to Daniel’s patriotic program, is below.

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

Written by snahmod

November 13, 2020 at 9:44 am

Posted in Uncategorized

Will Bush v. Gore Return to Haunt Us?

I posted the following very highly critical comments on Bush v. Gore some years ago. In view of President Trump’s apparent determination to retain the presidency through the Supreme Court, I thought you might be interested in reading this post in case you missed it the first time.


It is one of the worst Supreme Court decisions in history.

No, I’m not referring to Dred Scott v. Sanford, which held that blacks could never be U.S. citizens, thereby making the Civil War all but inevitable.

I’m also not referring to Plessy v. Ferguson, which upheld separate but equal and ushered in Jim Crow.

I’m not referring to Lochner v. New York, where a laissez faire Supreme Court struck down pro-labor progressive legislation.

And I’m not referring to U.S. v. Korematsu, which upheld the internment of loyal Japanese-American citizens during World War II.

All four of these decisions are morally repugnant, and several are even evil.

No, I’m referring to the infamous and much more recent 2000 decision in Bush v. Gore, where the Court called a halt to the Florida recount and effectively selected George Bush as President of the United States.

This is, in my opinion, perhaps the most overtly politically partisan decision in Supreme Court history. Five Republican-appointed Justices voted for the Republican candidate, while the four dissenters, including two Democrat-appointed Justices and two Republican-appointed Justices, maintained that the Court should not have become involved or at least should not have stopped the recount.

Bush v. Gore blatantly violated the most basic principles of federalism, comity and judicial restraint. The five Justices in the majority, even if they thought they acted in good faith, fooled themselves into thinking that they were simply interpreting the Constitution rather than voting their own partisan political preferences. Justice Scalia was, of course, one of those.

Why do I bring up Bush v. Gore? Because Justice Scalia repeatedly admonished those who criticized the Court’s decision to “get over it.”

But Justice Scalia himself never could get over Roe v. Wade, the 1973 landmark abortion decision. He contended that Roe was incorrect and should be overruled, regardless of the consequences. He repeatedly and heatedly accused his colleagues of intellectual dishonesty and of supplanting the political process.

He could never get over the Court’s decision in Romer v. Evans, dealing with sexual orientation discrimination. He accused the majority of taking sides in the culture wars and of signing on to the “homosexual agenda.”

He angrily attacked the Court’s decision in U.S. v. Windsor, striking down the Defense of Marriage Act, and commented bitterly (and correctly, as it turned out), that Windsor would directly lead to constitutionalizing same-sex marriage. Then came Obergefell v. Hodges, the blockbuster 2015 decision finding a due process right to same-sex marriage.

I fully understand Justice Scalia’s anger and frustration regarding abortion and same-sex marriage, even though I disagree with his views on the merits. And I even understand why he could never “get over” those decisions.

But his calls for others to “get over” Bush v. Gore always rang hollow to me and smacked of disingenuousness or even hypocrisy.

I continue to teach Bush v. Gore as the last case in my constitutional law course because it is the best example of a wrongheaded and politically partisan Supreme Court decision handed down by a triumphalist Court.

I still cannot get over it.

Written by snahmod

November 4, 2020 at 6:33 pm

Posted in Uncategorized

Is There a Fourth Amendment Seizure When a Person Flees?

The en banc Eighth Circuit was sharply divided about the existence of a Fourth Amendment seizure in a case where, among other things, a person fled after an officer in a police car stopped directly in front of him and his friend, one Michael Brown (yes, that Michael Brown, who was subsequently shot and killed by the police officer while also fleeing) and where the police officer yelled at them to “Get the f*ck on the sidewalk.” And because the Supreme subsequently denied certiorari, it did not decide the matter. Johnson v. City of Ferguson, Missouri, 864 F.3d 866, 873 (8th Cir. 2017), as corrected (July 31, 2017) and reh’g en banc granted, opinion vacated (Sept. 12, 2017) and on reh’g en banc, 926 F.3d 504 (8th Cir. 2019)(en banc), cert. denied, 2019 WL 6257423 (U.S. 2019)

In Johnson, the Eighth Circuit panel had initially found a seizure where “[the plaintiff] Johnson’s complaint alleged that Officer Wilson stopped his car at an angle, directly in front of Johnson and Brown, so as to block their path after yelling at them to ‘Get the f*ck on the sidewalk.’” For one thing, the plaintiff actually stopped when the defendant blocked his path. This was a submission to authority. For another, the stop was more than momentary even though the plaintiff fled after the defendant later shot the plaintiff’s companion.

Thereafter, however, the Eighth Circuit en banc disagreed with the panel and found that there was no seizure of the plaintiff under the circumstances. Among other considerations, the plaintiff conceded in the complaint that he and Brown were not ordered by the officer to stop. Also, the police vehicle did not prevent Johnson from crossing the sidewalk. Moreover, any physical contact by the officer was directed toward Brown in the first instance. “In a word, then, because Johnson himself was neither physically restrained nor prevented from proceeding to the sidewalk in compliance with [the officer’s] directive rather than fleeing as he did,” there was no seizure since Johnson did not submit to a show of authority.

Judge Melloy, joined by Chief Judge Smith and Judges Kelly and Erickson, dissented at length, arguing that there was indeed a Fourth Amendment seizure. 926 F.3d at 507. Judge Melloy explained in the following excerpt from his opinion (citations omitted):

“Here, I believe that Officer Wilson made a show of authority communicating that Johnson ‘was not at liberty to ignore the police presence and go about his business.’ As stated above, the only facts relevant at this procedural posture are those alleged in the complaint. And the Court must accept those facts as true and view them in the light most favorable to Johnson. To recap, Johnson’s complaint alleged the following facts relevant to this issue:

• As Johnson and Brown walked peacefully and ‘lawfully’ down the road, Officer Wilson, operating a marked police vehicle, approached Johnson and Brown, slowed his vehicle to a stop, and ordered them to ‘Get the f*ck on the sidewalk.’

• Officer Wilson continued to drive his vehicle several yards, then abruptly put his vehicle into reverse and parked his vehicle at an angle so as to block the paths of Johnson and Brown.

• Officer Wilson stopped his vehicle just inches from Brown and forcefully opened his door, striking Brown. Officer Wilson then reached through his window and grabbed Brown, who was closer to Officer Wilson than Johnson. Officer Wilson thereafter threatened to shoot his weapon. As Brown struggled to break free, Officer Wilson discharged his weapon twice, striking Brown in the arm. Surprised by Officer Wilson’s use of ‘excessive’ force and fearing for his life, Plaintiff Johnson ran away from Officer Wilson simultaneously with Brown.

By crudely ordering Johnson to move and then abruptly reversing his vehicle and stopping it inches away and directly in Johnson’s path, Officer Wilson communicated an intent to use a roadblock to stop Johnson’s movement. Despite Defendants’ (and amicus curiae’s) argument that the roadblock did not foreclose all of Johnson’s avenues of travel, a reasonable person would understand the roadblock’s purpose was to serve as a ‘physical obstacle’ conveying an order to stop—not an order to go around the vehicle and continue on one’s way. Officer Wilson’s actions thus would convey to the ‘reasonable person that he was not at liberty to ignore the police presence and go about his business.'”


I have nothing to add except to say that the dissenters have the better of the argument.

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Written by snahmod

October 19, 2020 at 11:38 am

The First Amendment and Anti-BDS Legislation: A Video

As some of you may know, the “BDS” movement is a political movement that advocates Boycott, Divestment and Sanctions directed at the State of Israel. In response to the BDS movement, there has been a fair amount of state legislation, including in Illinois. Needless to say, this kind of legislation raises interesting First Amendment questions.

Anti-BDS legislation was the focus of a program co-sponsored by the Decalogue Society of Chicago and Israel Bonds. I spoke about the constitutionality of anti-BDS legislation under the First Amendment, providing both a First Amendment primer and the application of First Amendment principles to anti-BDS legislation. I was the third speaker and followed Richard Goldberg and Congressman Brad Schneider, both of whom are strong supporters of anti-BDS legislation.

The program is 1 1/2 hours long, and the moderator’s introduction of me and my First Amendment presentation begins about 40 minutes in. The link to the Decalogue Society Facebook page is below. Click on “see all” and you will easily find this program.

Here is the Facebook link:

Thanks. I hope you find it of interest.

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

Written by snahmod

September 17, 2020 at 10:25 am

Posted in Uncategorized

Chalking Tires, Parking Tickets, Community Caretaking and the Fourth Amendment

Do you park your car in public spaces?

The Sixth Circuit’s Fourth Amendment tire-chalking decision in Taylor v. City of Saginow, 922 F.3d 328 (6th Cir. 2019) is an interesting one, especially if you drive a car and sometimes park it in public parking spaces (and who doesn’t?). After Taylor, you may be able to make a federal case out of getting a ticket if your car’s tires were chalked.

The facts and reasoning in Taylor v. City of Saginow

In Taylor, the Sixth Circuit ruled that an officer’s use of chalk to mark the tires of the plaintiff’s parked car (without consent or a valid search warrant) in order to track how long it had been parked (a common parking enforcement practice) was a search subject to the Fourth Amendment. Canvassing Supreme Court reasoning in Fourth Amendment cases, the court first found that tire chalking was not a search under the reasonable expectation of privacy approach.

In contrast, however, the court reasoned that under the approach of U.S. v. Jones, 565 U.S. 400 (2012), chalking was a common law trespass and thus was a search that implicated the Fourth Amendment. It then determined that the two exceptions to the warrant requirement—community caretaking and motor vehicle—did not apply, at least at the pleading stage of this section 1983 Fourth Amendment litigation. Consequently, the chalking of the plaintiff’s car without a warrant, followed by a parking ticket, violated the Fourth Amendment.

The community caretaking exception

The Supreme Court articulated the community caretaking exception to the Fourth Amendment’s warrant requirement in Cady v. Dombrowski, 413 U.S. 433, 441 (1973), where it upheld the warrantless search by police officers of a disabled vehicle when they reasonably believed that the vehicle could be vandalized and that its trunk contained a gun. The Court explained that police officers often engage in such “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” In Taylor, the Sixth Circuit reasoned that tire chalking was indeed related to the detection and acquisition of evidence relating to the violation of a criminal statute, with the result that the exception did not apply.


Taylor involved section 1983 damages claims against the city and an officer who raised qualified immunity, with the Sixth Circuit reversing the dismissal of plaintiff’s complaint for failure to state a claim. I would guess that the officer will eventually prevail on qualified immunity grounds because of the absence of clearly settled Fourth Amendment law at the time of the challenged conduct. Going forward, of course, Fourth Amendment law on this issue is indeed clearly settled, at least in the Sixth Circuit.

However, qualified immunity will not apply to protect the city, which could be liable if, as it likely, its (or the police department’s) official policy or custom brought about the Fourth Amendment violation. The extent of recoverable damages is another question, though, so I would guess that this case will settle, if it has not already done so.

You may be interested to know that the First Circuit, in Caniglia v. Strom, 953 F.3d 112 (1st Cir. 2010), discussed the scope of the community caretaking exception in a case involving a warrantless entry into the home. It ruled as a matter of first impression in its circuit that the exception “extends to police officers performing community caretaking functions on private premises (including homes).”

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

Written by snahmod

September 7, 2020 at 5:09 pm

Posted in Uncategorized

Retaliatory Civil Actions and the First Amendment After Nieves

First Amendment Retaliatory Prosecutions, Arrests and Civil Proceedings: The Eleventh Circuit Gets It Wrong

Does the Court’s retaliatory arrest-First Amendment decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), which ruled that such plaintiffs must allege and prove the absence of probable cause as an element of the claim (and that probable cause is therefore a defense to such claims), apply to retaliatory civil actions? Should it? The Eleventh Circuit answered these questions in the affirmative in a recent decision, Demartini v. Town of Gulf Stream, 2019 WL 6207952, *17  (11th Cir. 2019). My view is that the Eleventh Circuit got it wrong.

In Demartini, the Eleventh Circuit considered the effect of Supreme Court retaliatory prosecution and retaliatory arrest decisions on section 1983 First Amendment claims based on a retaliatory civil lawsuit. The plaintiff alleged that a town (and a government contractor) retaliated against her by filing a RICO lawsuit because she associated with a non-profit corporation that had filed multiple public records lawsuits against the town. The Eleventh Circuit, after analyzing the Court’s decisions on retaliatory prosecutions and arrests, addressed the three circuit court decisions dealing with this issue, all of which had been decided long before Hartman v. Moore, 547 U.S. 250(2006), dealing with retaliatory prosecutions, and Nieves. It summarized these circuit decisions by noting that they all considered “whether the underlying civil lawsuit was frivolous before allowing a plaintiff to move forward on a §1983 First Amendment retaliation claim predicated on that civil lawsuit.”

The Eleventh Circuit then determined, first, that the town had probable cause to file its civil RICO lawsuit and, second, that the reasoning of Hartman and Nieves led to the conclusion that “the presence of probable cause will generally defeat a §1983 First Amendment retaliation claim based on a civil lawsuit as a matter of law.” For one thing, the causation landscape was similar to that in Hartman because an attorney filed the underlying civil lawsuit, thereby widening the causal gap between the town’s alleged animus and the plaintiff’s injury. For another, the existence of probable cause meant that the defendant had a legitimate interest in considering the plaintiff’s speech. This too rendered the “causation landscape more complex” as was the case in Nieves as well as in Hartman. Next, the Eleventh Circuit found that the “exceptions” mentioned by the Court in Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018), and Nieves did not apply in this case. Finally, the court maintained that its decision here was consistent with common law doctrines, particularly those dealing with the tort of wrongful civil proceedings as to which the plaintiff has the burden of proving the absence of probable cause. Judge Rosenbaum concurred, 2019 WL 6207952, *26, disagreeing with the majority’s suggestion that there could be no exceptions to the no-probable-cause requirement in prior civil lawsuit situations. “]W]e must always at least evaluate the surrounding circumstances….”

Recall that the Supreme Court handed down Nieves in 2019. In an opinion by Chief Justice Roberts, the Court, resolving a split in the circuits, held that plaintiffs must allege and prove the absence of probable cause, and that the presence of probable cause is therefore a defense, where plaintiffs make section 1983 First Amendment claims against law enforcement officers accused of arresting a person in retaliation for his or her speech. But the Court provided what it called a “narrow qualification”: because officers have such wide-ranging discretion to make warrantless misdemeanor arrests for minor criminal offenses–-with the potential for abuse of First Amendment rights–-probable cause is not a defense where the plaintiff presents objective evidence that he or she was arrested when other similarly situated persons not engaged in the same protected conduct were not.


I criticized Nieves in an earlier post. See There I argued that Nieves resulted from the Court’s misguided decision in Hartman involving First Amendment retaliatory prosecutions. In Hartman the Court improperly inserted pro-law enforcement policy into section 1983 statutory interpretation in the course of setting out the proper elements of a section 1983 First Amendment retaliatory prosecution claim. This unfortunately set the stage for Nieves. To the extent that such policy considerations related to probable cause are relevant, they belong on the qualified immunity side of section 1983 statutory interpretation (indeed, the Court has used qualified immunity with a vengeance to favor law enforcement). In this regard, I noted in the post that the Court in Nieves explicitly cited Harlow v. Fitzgerald, where the Court eliminated the subjective part of the then-existing qualified immunity test in order to protect defendants from what it considered non-meritorious claims.

I also argued that the Court in Nieves improperly extended Hartman (where the presumption of prosecutorial regularity and arguably complex causation issues were the driving considerations) to Nieves and First Amendment retaliatory arrest claims, where these considerations simply do not play much if any role. And now the Eleventh Circuit in Demartini has inappropriately extended the reasoning of Hartman and Nieves to a non-law-enforcement setting where there simply is no reason to balance the arguable misuse by plaintiffs of section 1983 First Amendment retaliatory claims against the needs of law enforcement. Moreover, the Eleventh Circuit’s contention that the causation landscape is “more complex” in part because an attorney filed the underlying civil lawsuit in Demartini is bizarre.

Finally, the Eleventh Circuit’s misguided approach has the potential to chill all valid section 1983 First Amendment claims brought against state and local governments and their officials for their retaliatory filing of lawsuits against plaintiffs who have the temerity to criticize government in lawsuits or otherwise. Since the inquiry is into a defendant’s improper motivation, the presence of probable cause in such cases should be irrelevant.


Written by snahmod

August 19, 2020 at 3:02 pm

Posted in Uncategorized