I spoke on December 16, 2021, to the Chicago Decalogue Society about freedom of speech. Specifically, I provided an overview of the free speech rights of adults and public school students, particularly in light of the Supreme Court’s recent decision
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Section 1983 Malicious Prosecution, Favorable Termination and Oral Argument in Thompson v. Clark
The recent oral argument in Thompson v. Clark, 141 S. Ct. 1682 (2021), granting certiorari in 794 Fed. Appx. 140 (2nd Cir. 2020), to deal with the meaning of favorable termination, shows that some of the Justices–perhaps a majority–are very…
The Shot Suspect Who Escapes & The Seizure Question: Torres v. Madrid (2021)
Background At the outset, note that intent is a condition precedent for a Fourth Amendment violation. The Supreme Court put it this way: It is clear . . . that a Fourth Amendment seizure does not occur whenever there is…
Recent Section 1983 Religion Decisions From The Circuits
The Establishment Clause In Woodring v. Jackson County, Indiana, 986 F.3d 979 (7th Cir. 2021), the Seventh Circuit, relying on the Supreme Court’s decision in American Legion, noted below, that emphasized “a long national tradition of using the nativity scene…
The Third Circuit Punts On Whether Contracts Clause Violations Are Actionable Under Section 1983
The Contract Clause, U.S. Const. Art I, § 10, provides: “No State shall … pass any … Law Impairing the Obligation of Contracts.” The Supreme Court has developed a three-part Contracts Clause test: (1) does the state law operate as a…
Persons Who Are Not “Persons”: A Podcast on Absolute Immunity
While much attention has been paid recently to section 1983 qualified immunity, it may be useful to spend a little time on absolute immunity as well. Among other things, absolute immunity is even more potent for defendants than qualified immunity,…
Clearly Settled Law Deals Only With Constitutional Norms, Not With Other Elements of Section 1983
Years ago, I argued a section 1983 case for the plaintiff before the Seventh Circuit (Richman v. Sheahan, 270 F.3d 430 (7th Cir. 2001)), where the primary issue on appeal was whether the defendant deputy sheriffs who allegedly used excessive…
Section 1983 Litigators Must Know Their State’s Preclusion Law
By virtue of 28 U.S.C. § 1738, federal courts addressing § 1983 claims must apply the claim preclusion law (res judicata) and issue preclusion law (collateral estoppel) of the forum state where there are relevant prior state judicial proceedings. This…
The Broad Scope of Judicial Immunity: An Example from the Eighth Circuit
Suppose a state court judge allows a municipal court clerk to issue arrest warrants and to set bonds using the judge’s signature stamp, as well as to set a schedule requiring cash-only bonds regardless of an arrestee’s ability to pay.…
Identifying Officers in Police Excessive Force Cases: Sixth Circuit Rules that Summers v. Tice Does Not Apply
The Issue We know that in both tort law litigation and section 1983 litigation a plaintiff must allege and prove by a preponderance of the evidence that the defendant’s conduct was a but-for cause of the plaintiff’s injury. What happens…