Nahmod Law

The 31st Annual Conference on Section 1983 Litigation

I would like to invite readers to attend my 31st Annual Conference on Section 1983 Litigation, to be held at Chicago-Kent on Thursday and Friday, April 24-25, 2014.

This national two-day conference, heading into its fourth decade, features expert academic speakers including Erwin Chemerinsky on immunities as well as his Supreme Court review, Karen Blum on local government liability, Rosalie Levinson on equal protection and Sheldon Nahmod on the section 1983 claim as well as the Second Amendment.

It also features outstanding practitioners from around the country, including Gerry Birnberg (Texas) on fees and ethical issues, John Murphey (Illinois) on practical considerations in section 1983 litigation and Brendan Egan (New Mexico) on immigration related issues.

The link to the brochure is here:

http://cle.kentlaw.edu/database/PDF/2014Jan31-7055-Section%201983%20Civil%20Rights%20Litigation%20Conference%20Brochure%202014.pdf

For further information, please contact Chicago-Kent’s CLE department via email at cle@kentlaw.iit.edu or via phone at 312-906-5090.

Thanks. I hope to see you there. And please be sure to say hello.

Written by snahmod

March 24, 2014 at 6:18 pm

Law Professors’ Amicus Brief in Lane v. Franks

I blogged on January 20, 2014, about the Supreme Court’s grant of certiorari in Lane v. Franks, a potentially significant First Amendment public employee free speech case in which a public employee was allegedly terminated because of his truthful subpoenaed testimony in a federal fraud trial. My post provides relevant background on the case.

I recently co-authored a Law Professors’ Amicus Brief in Support of Petitioner in Lane. It was posted, and can be accessed, at SSRN. The other co-authors are Scott R. Bauries of University of Kentucky College of Law and Paul M. Secunda of Marquette University Law School.

“This brief, submitted on behalf of more than 65 law professors who teach and write in the areas of employment law and constitutional law, argues that the Court should reverse the 11th Circuit’s decision denying First Amendment protection to a public employee who was allegedly terminated in retaliation for his testimonial speech in a criminal trial.”

I think you will find it interesting reading.

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Written by snahmod

March 13, 2014 at 11:07 am

My New Article: The Birth of Section 1983 in the Supreme Court

My new article, entitled Section 1983 Is Born: The Interlocking Supreme Court Stories of Tenney and Monroe, has just been published in 17 Lewis & Clark L. Rev. 1019 (2013).

Here is the link to the complete article.

This is the abstract:

“In 1951 the Supreme Court interpreted Section 1983’s language for the first time in Tenney v. Brandhove. This case, which arose against the background of the Cold War, involved the First Amendment and legislative immunity. The majority opinion, authored by Felix Frankfurter, took a strong federalism stance, while Justice William Douglas wrote the sole dissent in favor of civil rights. Ten years later, in Monroe v. Pape, the Court handed down a second important Section 1983 decision. This time, seven years after Brown v. Board of Education, the Court stood strong for civil rights in a police brutality case. Justices Douglas and Frankfurter were pitted against each other once again, but this time Douglas authored the majority opinion and Frankfurter wrote a strong partial dissent on federalism grounds.

This Article, the first of its kind, discusses both cases in depth to provide a fuller understanding of early Section 1983 jurisprudence. Each case was a product of the political context of its time, the Cold War and the
Civil Rights Movement. Each decision was also influenced by the briefings and oral argument presented to the Court. Finally, the two cases show the tension between federalism and civil rights protections through their respective majority and dissenting opinions written by two important Supreme Court justices. The interlocking opinions of Tenney and Monroe are therefore of interest to all scholars of civil rights, Section 1983, and the Supreme Court.”
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Written by snahmod

February 24, 2014 at 10:44 am

Know Your Constitution (6): What Is Procedural Due Process?

This is another in a series of posts written about the Constitution in everyday language, with a minimum of legal jargon. Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution,  addressed the Equal Protection Clause and considered free speech and hate speech.

This and subsequent posts will deal with the meaning of the Due Process Clauses that appear in the Fifth and Fourteenth Amendments. These have virtually identical language.

The Fifth Amendment’s Due Process Clause applies to the federal government (“No person … shall …be deprived of life, liberty, or property, without due process of law”).

The Fourteenth Amendment’s Due Process Clause applies to state and local governments (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).

Distinguishing Between Procedural Due Process and Substantive Due Process

This post deals with procedural due process which focuses on fair and timely procedures. It is far less complicated and controversial than substantive due process which focuses on  government regulation of conduct such as abortion, sexual conduct and certain family matters.

Life, Liberty and Property Interests

Procedural due process may be implicated whenever the government threatens to take a life, liberty or property interest from an individual.

The meaning of  a “life” interest is self evident. The meaning of property and liberty interests is more tricky. As a general matter, both are brought into existence by state and local law. However, whether they constitute property and liberty interests for procedural due process purposes is a matter of federal constitutional law.

For example, a mere expectation of continued employment by a terminable-at-will public employee is not a property interest because there is no “legitimate claim of entitlement.” In contrast, if that public employee has a contract and is terminated in the middle of that contract period without any kind of a hearing, then that may constitute a property interest triggering procedural due process protections.

Although it is too complicated to get into here, liberty interests may include an individual’s interest in not being imprisoned (from the tort of false imprisonment), in not having his or her physical integrity interfered with (from the tort of battery) and in not having his or her privacy invaded (from the tort of privacy)

What Kind of Hearing and When?

Once it is shown that government threatens to deprive a person of a life, liberty or property interest, then certain procedural protections may kick in.

Ordinarily (except when there is a true emergency), a pre-deprivation hearing of some kind is required. Moreover, that pre-deprivation hearing must have minimal procedural protections: the government must provide notice of the accusations against the individual, it must present evidence against him or her and the individual must have an opportunity to respond. Not surprisingly, procedural due process requires an impartial decision-maker at some point in the proceedings.

The best example of a pre-deprivation hearing with maximum procedural protections is a criminal trial. In contrast, pre-deprivation hearings directed at property interests do not necessarily have to be conducted by judges. Very often administrative proceedings are sufficient for procedural due process purposes so long as they provide the minimum protections described above: notice, the government’s evidence, the opportunity to respond and an impartial decision-maker.

Next: Substantive Due Process

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Written by snahmod

February 7, 2014 at 9:55 am

Posted in Constitutional Law

My New Video on Section 1983 Basics

In early December 2013, I delivered a one and one-half hour presentation on section 1983 to the New Mexico Defense Lawyers Association (NMDLA).

This presentation covers the elements of the section 1983 claim, individual immunities (absolute and qualified) and local government liability. It also includes Tenth Circuit cases of relevance to this particular audience.

I refer during the presentation to an outline I provided to the NMDLA audience, but that outline is not necessary in order to learn from my video.

The video is here: http://kentlaw.hosted.panopto.com/Panopto/Pages/Viewer/Default.aspx?id=16b8dbcf-b6b3-4ede-bc77-c0fa13de4840

I hope you will find it of interest and useful.

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Written by snahmod

January 28, 2014 at 11:59 am

Cert Granted in New Public Employee Free Speech Case: Lane v. Franks

Certiorari Granted in Lane v. Franks

The Supreme Court granted certiorari on January 17, 2014, in a potentially significant public employee free speech case.  The case, Lane v. Franks, No. 13-483, arises out of an unpublished Eleventh Circuit decision, Lane v. Central Alabama Community College, 523 Fed. Appx. 709 (11th Cir. 2013).

In Lane, the plaintiff, the probationary director of a community college’s training program for at-risk youth, discovered that a state representative was getting paid to work for the program he ran even though she had performed no work. He raised these concerns internally but was warned that terminating her would cause problems. He terminated her nonetheless. Thereafter the FBI investigated the state representative with the result that the plaintiff testified before a federal grand jury and, pursuant to a subpoena, testified at the representative’s federal criminal trial for fraud. Subsequently, the plaintiff was terminated by Franks, the president of the community college.

Plaintiff filed a First Amendment retaliation claim under section 1983 against Franks in his individual and official capacities, alleging that plaintiff was fired because of his testimony. The district court ruled for the defendant, and this decision was affirmed by the Eleventh Circuit on the ground that the plaintiff’s speech was made pursuant to his official duties within the meaning of Garcetti v. Ceballos, 547 U.S. 410 (2006), or at least owed its existence to his professional responsibilities. The speech was thus not the speech of a citizen on a matter of public concern: rather, the plaintiff  was acting pursuant to his official duties when he discovered that the state representative was not doing work, when he terminated her employment and when he testified pursuant to subpoena. Accordingly, the First Amendment did not apply to protect the plaintiff.

Questions Presented

1. Is the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities?

2. Does qualified immunity preclude a claim for damages in such an action?

Comments

If you are familiar with my highly critical article on Garcetti, you will recall I argued that Garcetti was unsound and that, at the very least, the “pursuant to official duties” criterion should be narrowly interpreted so as to give as much breathing space as possible to whistleblowers. See my post of December 8, 2009 entitled Public Employee Free Speech: The New Regime.

Note that Lane does not deal with alleged retaliation arising out of the plaintiff’s internal report about the state representative, which is rather clearly speech pursuant to his official duties under Garcetti. Instead it deals with the plaintiff’s subpoenaed testimony, which should be considered the speech of a citizen on a matter of public concern.

Lane will be argued and decided this Term.

 

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Written by snahmod

January 20, 2014 at 3:16 pm

2013 in review

The WordPress.com stats helper monkeys prepared a 2013 annual report for this blog.

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 38,000 times in 2013. If it were a concert at Sydney Opera House, it would take about 14 sold-out performances for that many people to see it.

Click here to see the complete report.

Written by snahmod

December 31, 2013 at 4:53 pm

Posted in Uncategorized