Nahmod Law

Blog on Break

I will be grading exams and papers and then taking a vacation. The blog will return next year.

All the best to my readers.


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December 16, 2013 at 5:48 am

Posted in Uncategorized

Know Your Constitution (5): Free Speech and Hate Speech

This is the fifth in a series of posts, intended for a general audience, discussing the Constitution.   Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution and addressed the Equal Protection Clause.

Today’s post deals with hate speech and that part of the First Amendment that declares: “Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”.

I want to emphasize three important take-away points at the outset. One is that the First Amendment protects us from the government; it does not apply to relations between private persons. Second, the First Amendment, like all individual rights in the Constitution, is not absolute. And last, freedom of speech has costs.

What is freedom of speech anyway? There is the joke told years ago by the Russian comedian Yacov Smirnoff. He was confronted by an American bragging about freedom of speech. Smirnoff retorted: “Big deal! We also have freedom of speech in Russia. What we don’t have is freedom after speech.”

One of the most controversial free speech issues involves hate speech, including but not limited to the anti-Semitic kind. Hate speech and anti-Semitism are major concerns in Europe and the Middle East and remain a nagging concern in the US as well. Hate speech can be defined as speech directed at a historically oppressed religious or racial minority with the intent to insult and demean. Hate speech undermines social attitudes and beliefs, it isolates its targets and it tends to silence them because they are often stunned and unable to respond. Hate speech also traumatizes (think of the effect it had on survivors and other Jews when the Nazis threatened to march in Skokie). We all know some of the hateful slurs that are too often directed against Jews, blacks, Latinos and Italians in this country.

What does the First Amendment, through interpretations by the Supreme Court, have to say about hate speech? The short answer is that the First Amendment prohibits government from regulating such speech altogether. This is a very different approach from that of countries in Western Europe that often prohibit such speech, including denials of the Holocaust.

But why should that be? After all, despite the children’s saying about sticks and stones, we know that words can in fact hurt and lead to terrible acts. Words have power.  Words have costs.

One answer is that the First Amendment creates a marketplace of ideas in which everyone can participate. Everyone can try to sell his or her ideas to the marketplace and the buyers in the marketplace eventually decide which ideas have value and which do not, which ideas are truthful and which are not. We are all sellers and buyers in this marketplace.

What is the government’s role in this marketplace of ideas? Basically, the government must stay neutral; it must keep its hands off of the marketplace. The Enlightenment assumption—the assumption of the Framers of the Constitution—that underlies the marketplace of ideas is that people are ultimately rational, they may be persuaded by reason, even though emotions and passions play a major rule in political decision-making.

What kinds of ideas are out there in the marketplace of ideas? Political ideas, artistic ideas, scientific ideas, social ideas of all kinds, whether smart, crazy, far-out, brilliant, dangerous.

However, despite what I’ve just said, there are some communications that are not allowed in the marketplace of ideas. Obscene speech, for one, carefully defined by the Supreme Court, is excluded from the marketplace of ideas. Another kind of communication, child pornography, is also not allowed because its production involves child abuse. The reasons for these exceptions include history and the belief that these kinds of communications have little or no redeeming social value.

So now you’re thinking the following: if there are some exceptions under the First Amendment and its marketplace of ideas, why not also include hate speech as an exception? After all, hate speech surely has little or no redeeming social value. It insults, it demeans, it traumatizes, it silences and there is a consensus in American society that it is valueless at best and dangerous at worst. Why should government not be allowed to prohibit it?

The Supreme Court’s answer to this particular question is that even hate speech contains political ideas, however horrible these ideas may be. When you regulate such speech, you are also regulating ideas. Think of George Orwell’s Animal Farm and forbidden words. The Supreme Court has also made clear that just because speech offends people, this is never a justification under the First Amendment for punishing it. Furthermore, we are justifiably suspicious of government when it attempts to regulate speech and ideas. After all, government may have its own political agenda in regulating hate speech—which groups would be protected against hate speech and which not?

Finally, and perhaps most important, think about how the marketplace of ideas functions: even if hateful ideas are communicated, the theory (hope?) is that counter-speech will emerge to rebut it and to fight it. In other words, more speech rather than less is the remedy.

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December 4, 2013 at 9:16 am

Certiorari Granted in Plumhoff v. Rickard: Excessive Force, High-Speed Police Pursuits and Scott v. Harris

Plumhoff v. Rickard: Certiorari Granted

The Supreme Court has granted certiorari in Plumhoff v. Rickard, No. 12-1117 (2014), an unpublished decision in Estate of Allen v. City of West Memphis, 509 Fed. App’x 388 (6th Cir. 2012).

Here are the questions presented:

“1. Whether the Sixth Circuit wrongly denied qualified immunity to Petitioners by analyzing whether the force used in 2004 was distinguishable from factually similar force ruled permissible three years later in Scott v. Harris, 550 U.S. 372 (2007). Stated otherwise, the question presented is whether, for qualified immunity purposes, the Sixth Circuit erred in analyzing whether the force was supported by subsequent case decisions as opposed to prohibited by clearly established law at the time the force was used.”
“2.  Whether the Sixth Circuit erred in denying qualified immunity by finding the use of force was not reasonable as a matter of law when, under Respondent’s own facts, the suspect led police officers on a high-speed pursuit that began in Arkansas and ended in Tennessee, the suspect weaved through traffic on an interstate at a high rate of speed and made contact with the police vehicles twice, and the suspect used his vehicle in a final attempt to escape after he was surrounded by police officers, nearly hitting at least one police officer in the process.”

The Background: Scott v. Harris

In 2007, the Supreme Court held in Scott v. Harris that “a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist’s car from behind” even though the officer’s actions “place [the] fleeing motorist at risk of serious injury or death.” In the case before it, the Court reversed the Eleventh Circuit which had affirmed the district court’s denial of officer’s qualifed immunity summary judgment motion. A videotape of the chase made abundantly clear, said the Court, that no jury could find that what the officer did— ramming the plaintiff motorist’s car and thereby seizing it — was objectively unreasonable.

In the course of its opinion the Supreme Court explained the relationship among Tennessee v. Garner, 471 U.S. 1 (1985)(deadly force), Graham v. Connor, 490 U.S. 386 (1989)(excessive force in general) and the Fourth Amendment’s reasonableness requirement. It noted that “Graham did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’ Garner was simply an application of the Fourth Amendment’s ‘reasonableness’ test in a particular type of situation.”

Justices Ginsburg and Breyer concurred, while Justice Stevens dissented, arguing that the Court had usurped the jury’s function.


1. The Supreme Court will almost certainly reverse the Sixth Circuit and declare that the latter’s approach in this and similar cases is fundamentally inconsistent with Scott.

2. Note that Scott must be sharply distinguished from those high speed police pursuit cases in which there is no seizure, with the result that the substantive due process “purpose to do harm” standard governs, and not Fourth Amendment reasonableness standards. County of Sacramento v. Lewis, 523 U.S. 833 (1998).

More on the Fourth Amendment and excessive force can be found at sections 3:17-3:23 in  Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2013)(West Group).

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November 20, 2013 at 12:40 pm

Recent Statutes of Limitation Accrual Decisions in the Circuits

I previously set out some of the basics on statutes of limitation and section 1983 in my post of 10-27-11, A Section 1983 Primer (5): Statutes of Limitation.

What follows are three recent circuit court decisions dealing with accrual. Recall that the section 1983 accrual question is one of federal law.

For a comprehensive discussion of this technical subject, see NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 9 (4th ed. 2013)(CIVLIBLIT on Westlaw).

Fifth Circuit: Accrual and Knowledge of Parental Injury 

Where the mother of a thirteen year old arrestee sued law enforcement officers, alleging that they violated her parental due process rights when they interrogated him outside of her presence and over her objections and thereby obtained what turned out to be a false confession, the Fifth Circuit ruled that the claim, filed on March 20, 2009, was time barred under Mississippi’s general or residual personal injury three year limitations period. The court reasoned that the cause of action accrued on May 12, 2003, when the plaintiff immediately became aware of her separation from her son, at which time she believed that it was in his best interest not to answer questions without her. Edmonds v. Oktibbeha County, 675 F.3d 911, 916 (5th Cir. 2012), referring to MISS. CODE ANN. § 15-1-49 (2011).

Seventh Circuit: Knowledge of Medical Injury and Its Cause

According to the Seventh Circuit, “[t]he statute of limitations for a § 1983 deliberate indifference claim brought to redress a medical injury does not begin to run until the plaintiff knows of his injury and its cause.” In this case, plaintiff alleged in his October 2007 lawsuit that prison medical staff improperly delayed ordering a prostate biopsy for him until April 2005, and metastasized prostate cancer was discovered six months later. This delay occurred even though in 2000, when he entered the prison system, he had told the prison medical staff that he had prostate problems and needed to be tested within two to four years, and even though, in February 2004, a PSA test had disclosed highly elevated PSA. Reversing the district court, the Seventh Circuit found the Eighth Amendment claim timely: the plaintiff did not know of his injury in April 2005 when the defendants finally ordered a biopsy but only discovered the injury six months later when he found out he had cancer that might have been diagnosed and treated earlier. It was at that time that his cause of action accrued, and he filed suit shortly before the applicable Indiana two year limitations period expired. The Seventh Circuit emphasized that the plaintiff was suing for his actual physical injury and rejected argument that the limitations period began to run before plaintiff knew he had cancer. Devbrow v. Kalu, 705 F.3d 765 (7th Cir. 2013).

Ninth Circuit: Discrete Act Starting Limitations Period Anew

The plaintiff, a Muslim, sued prison officials on April 29, 2009, under § 1983, alleging that they violated his First Amendment rights when, in 2008, they denied his request for a conjugal visit with his second wife pursuant to a prison regulation that permanently prohibited him from having such visits. Complicating the accrual question—California’s two year personal injury limitations period applied–was the fact that he had previously been denied a conjugal visit with his first wife in 2002 under the same regulation. The defendants argued that the plaintiff had notice of the allegedly wrongful acts in 2002 when he was denied a conjugal visit under the regulation and that his § 1983 claim was therefore untimely. However, the Ninth Circuit rejected this argument and found that the denial of a conjugal visit in 2008 was an independent discrete act that began the running of the two year limitations period all over again. Thus, his § 1983 claim was timely. Pouncil v. Tilton, 704 F.3d 568 (9th Cir. 2012). The plaintiff also brought a claim under the Religious Land Use and Institutionalized Persons Act which was governed by a federal four year limitations period.

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November 11, 2013 at 1:00 pm

A Video Presentation on Town of Greece v. Galloway

My most recent post set out the pending Supreme Court case, Town of Greece v. Galloway, dealing with legislative prayer and the Establishment Clause.

I was recently interviewed by my colleague, Professor Carolyn Shapiro, about this case, for Chicago-Kent’s ISCOTUS/Oyez Project.

This short interview, which covers the Town of Greece case, the Establishment Clause and incorporation, is available here.

I hope you find it of interest.

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October 31, 2013 at 10:15 am

Town of Greece v. Galloway: Pending Supreme Court Decision on Legislative Prayer and the Establishment Clause

The Town of Greece Case

Suppose a town, over a period of a decade or so, regularly invited Christian clergymen to lead the opening prayers in town board meetings. Suppose also that these clergymen, more often than not, invoked Jesus and/or the Holy Ghost in their prayers and that, typically, everyone was asked to stand, bow his/her head or join in the prayer, which some did. At the same time, the town occasionally, albeit infrequently, invited a few others, including non-Christian clergy, to lead the opening prayer. Did this pattern violate the Establishment Clause?

The Second Circuit, in Galloway v. Town of Greece, 681 F.3d 20 (2d Cir. 2012), held that it did. It explained (emphasis added):

“We emphasize what we do not hold. We do not hold that the town may not open its public meetings with a prayer or invocation. Such legislative prayers, as Marsh holds and as we have repeatedly noted, do not violate the Establishment Clause. Nor do we hold that any prayers offered in this context must be blandly “nonsectarian.” A requirement that town officials censor the invocations offered — beyond the limited requirement, recognized in Marsh, that prayer-givers be advised that they may not proselytize for, or disparage, particular religions — is not only not required by the Constitution, but risks establishing a “civic religion” of its own. Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution. Nor are we adopting a test that permits prayers in theory but makes it impossible for a town in practice to avoid Establishment Clause problems. To the contrary, it seems to us that a practice such as the one to which the town here apparently aspired — one that is inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief — is fully compatible with the First Amendment.

What we do hold is that a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.”

The Supreme Court granted certiorari, Town of Greece v. Galloway, No. 12-696, and will give us its answer to the Establishment Clause question this Term. Oral argument takes place on November 6, 2013.


The Second Circuit used Justice O’Connor‘s endorsement test in holding that the Establishment Clause was violated. See Lynch v. Donnelly, 465 U.S. 668 (1984), involving religious displays. There were also hints of the oft-derided (especially by Justice Scalia) Lemon test with its insistence on a  secular effect. See Lemon v. Kurtzman, 403 U.S. 602 (1971), dealing with aid to religious schools.

What was not really mentioned by the Second Circuit is Justice Kennedy‘s coercion test, set out in Lee v. Weisman, 505 U.S. 577 (1992), which involved a middle-school authorized prayer at graduation . If such a test were applied here, the result probably would be that these opening prayers did not violate the Establishment Clause because adults were involved and the situation was not really coercive. So an important question is: which of these tests will the Court use?

The Court could scuttle the endorsement test in the course of reversing the Second Circuit and apply the less restrictive, more deferential coercion test. Or it could retain the endorsement test and rule narrowly that the circumstances did not amount to an endorsement of religion.

In the background, and perhaps the foreground, is Marsh v. Chambers, 463 U.S. 783 (1983), the only case in which the validity of legislative prayer has been considered by the Supreme Court. Here, the Court ruled that the Nebraska legislature’s practice of opening its sessions with a prayer delivered by a state-employed clergyman did not violate the Establishment Clause. The Court used an historical approach to interpreting the Establishment Clause, emphasizing that the Framers themselves, by their practice in Congress, did not view legislative prayers led by government-employed clergy as violations of the Establishment Clause. In addition, and importantly, the Court noted that the Judeo-Christian content of the prayers in Marsh did not establish religion because the prayers did not proselytize, advance any religion or disparage any religion.

I have long thought that Marsh was a questionable decision: the Framers’ practice should not have been determinative of the validity under the Establishment Clause of legislative prayers led by government employed clergy.

But assuming that Marsh was sound and should be followed, is Town of Greece nevertheless distinguishable from Marsh on the ground that the prayers here advanced Christianity?

My prediction is that the Court will reverse the Second Circuit. The more important issue is how the opinion will be written and by whom.

(For general background on the Establishment Clause, see my post, The Religion Clauses: ‘Tis the Season).

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October 15, 2013 at 9:51 pm

Section 1983, Statutes of Limitation and Accrual: Recent Circuit Decisions Applying Heck v. Humphrey

I last blogged about section 1983, statutes of limitation and the complicated decision in Heck v. Humphrey on June 17, 2013.

This post, which is a follow-up, contains four recent circuit court decisions that apply Heck.

You might want to pay special attention to the unique Ninth Circuit decision in Beets, which involves the conviction of someone other than the section 1983 plaintiff.

Considerably more information on this topic may be found in chapter 9 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2013, West), also available on Westlaw as CIVLIBLIT.

The Fifth Circuit: What Is A Favorable Termination?

After the plaintiff served one-third of his original community supervision period for the illegal possession of child pornography, a Texas trial court terminated the remainder of his probationary term, dismissed the proceedings and discharged him from any penalties or disabilities resulting from the offense. The question was whether this constituted a favorable termination under Heck so that the plaintiff’s § 1983 lawsuit against the police officers for allegedly engaging in an illegal search of his home and obtaining the evidence used against him could go forward.

According to the Fifth Circuit, the answer was NO. The trial court’s order did not say that it invalidated his conviction and it did not include express language dismissing his indictment, withdrawing his guilty plea, setting aside the verdict or restoring his civil liberties. Also, the fact that the plaintiff was no longer in custody and thus could not seek habeas corpus relief did not excuse him from Heck’s favorable termination requirement. Morris v. McAllester, 702 F.3d 187 (5th Cir. 2012).

The Seventh Circuit: The Availability Of Collateral Relief During Incarceration

The plaintiff, who had pleaded guilty to attempted burglary in state court and never sought to challenge his conviction through habeas corpus, filed a § 1983 damages action against Illinois correctional officers alleging a violation of his right of access to the courts. The defendants had allegedly denied him the library materials necessary to file a motion to withdraw his guilty plea and to research grounds for appealing his sentence. Plaintiff was paroled from prison in November 2011 and the mandatory supervised release portion of his sentence was scheduled to expire in November 2012.  The defendants argued that Heck barred plaintiff’s claim because he had not received a favorable termination and, moreover, the unavailability of collateral relief to plaintiff at this point was irrelevant.

Agreeing that Heck barred the plaintiff’s claim, the Seventh Circuit, first, reasoned that since the plaintiff sought the library materials in order to withdraw his guilty plea, and that this required him to show there was merit to the claim that he should have been able to withdraw the plea, success on that claim would imply the invalidity of the judgment of conviction against him. Second, there was nothing that prevented the plaintiff from seeking collateral review of his conviction during his period of incarceration and mandatory supervised relief, and he offered no excuse for his failure to do so.

“[W]e hold that Heck applies where a § 1983 plaintiff could have sought collateral relief at an earlier time but declined the opportunity and waited until collateral relief became unavailable before suing.” Burd v. Sessler, 702 F.3d 429, 436 (7th Cir. 2012)(emphasis in original).

The Eighth Circuit: What Is A Favorable Termination?

In Marlowe v. Fabian, 676 F.3d 743 (8th Cir. 2012), the plaintiff, convicted of criminal sexual conduct, sued correctional officials for allegedly wrongfully imprisoning him for 375 days beyond the date on which he became eligible for supervised release. The Eighth Circuit affirmed the district court’s dismissal for failure to satisfy Heck’s favorable termination requirement. The Minnesota court of appeals decision remanding his habeas claim to the trial court was not a favorable termination because all it did was direct the department of corrections to consider restructuring the plaintiff’s release plan so that he could possibly be released from prison later.. This was not an invalidation of his conviction or incarceration for Heck purposes.

The Ninth Circuit: What If Another’s Conviction Is At Issue?

Does Heck apply even where the success of a plaintiff’s § 1983 claim would imply the invalidity of another’s conviction? According to the Ninth Circuit in Beets v. County of Los Angeles, 669 F.3d 1038, 1046 (9th Cir. 2012), the answer is sometimes YES.

In this case, the plaintiffs alleged that a police officer used excessive force when he shot and killed their son. However, the decedent’s accomplice was convicted on several counts, including aiding and abetting in the assault on a police officer with a deadly weapon, and the jury had determined that the police officer acted within the scope of his employment and did not use excessive force. Thus, a verdict in plaintiffs’ favor would tend to undermine the accomplice’s conviction. In addition, the accomplice had challenged the police officer’s conduct in her criminal trial and her interests were not inconsistent with those of the plaintiffs.

The Ninth Circuit relied on its decision in Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005)  (en banc). “Our choice of language [in City of Hemet] suggests that the Heck preclusion doctrine may apply to civil actions brought by individuals other than the convicted criminal if such application does not otherwise violate any constitutional principles.” Moreover, the plaintiffs reasonably should have expected to be bound by the jury’s decision in the accomplice’s case: the decedent and she were accomplices, she was convicted of assaulting the police officer with a deadly weapon and a single action—shooting the decedent—was crucial to her conviction and the plaintiffs’ § 1983 excessive force claim.

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October 2, 2013 at 2:52 pm