• Professor Shel Nahmod

    Sheldon H. Nahmod

    Distinguished Professor of Law

    – Go to his faculty biography

    – Go to his publications:

       SSRN: http://papers.ssrn.com
       Bepress: http://works.bepress.com/sheldon_nahmod/

    – Go to his blog on constitutional and civil rights law: http://nahmodlaw.com

    “Swatting” and Section 1983: Some Preliminary Thoughts

    by  • February 26, 2018 • Faculty Commentary • 0 Comments

    by Professor Sheldon Nahmod

    Suppose, either as some sort of misguided prank or motivated by malice, an individual calls the police anonymously and informs them falsely that a man has killed his father and is holding other persons hostage at a particular address. Members of a police SWAT team arrive at the location in the early evening, surround the location and call on the man inside to come out. They also call out directions to the man–who apparently has no idea of what’s going on–to keep his hands up. However, for whatever reason the man appears to lower his hands and at that point one of the officers shoots and kills him.

    This is obviously a real tragedy. But I would like to make some preliminary observations about the section 1983 liability issues potentially arising out of these circumstances. (more…)

    Cert Granted in Lozman v. City of Riviera Beach: Section 1983 First Amendment Retaliatory Arrest Claims & Probable Cause

    by  • February 24, 2018 • Faculty Commentary • 0 Comments

    by Professor Sheldon Nahmod

    Suppose a section 1983 plaintiff alleges that a city had him arrested in retaliation for the exercise of his First Amendment rights. He claims that he was arrested (although never prosecuted) at a city council meeting when he got up to speak because he previously had criticized the city’s eminent domain redevelopment efforts and had also sued the city for violating the state’s Sunshine Act.

    Ordinarily, such a plaintiff, in order to make out a section 1983 First Amendment retaliatory arrest claim, would only have to allege and prove that this impermissible retaliatory motive caused him harm, and the defendant would have the burden of disproving the absence of but-for causation in order to escape liability. But here the city argued that even if its motive was impermissible under the First Amendment, there was probable cause–an objective Fourth Amendment standard–to arrest the plaintiff anyway, and that this constituted a defense to the plaintiff’s First Amendment retaliation claim. What result? (more…)

    “Get Over It”: Nahmod on Scalia and SCOTUS

    by  • February 22, 2016 • Faculty Commentary • 0 Comments

    By Sheldon Nahmod [reposted from Nahmod Law] Twitter: @NahmodLaw.


    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.

    (more…)

    Lane v. Franks: New Supreme Court Public Employee Free Speech Decision

    by  • June 20, 2014 • Faculty Commentary, Scholarship • 0 Comments

    Nahmod_Sheldon thumb By Sheldon Nahmod [Reposted from Nahmod Law]


    Lane v. Franks: New Public Employee Free Speech Decision

    The Supreme Court, on June 19, 2014, handed down an important public employee free speech decision in Lane v. Franks (PDF), No. 13-483. The Court unanimously held, in an opinion by Justice Sotomayor, that a public employee who testifies truthfully at trial, pursuant to a subpoena, is protected by the First Amendment from employer discipline, at least where the testimony is not pursuant to his/her duties as an employee. However, the Court also ruled that the employee’s superior, who fired him, was not liable in damages because of qualified immunity.

    Justice Thomas concurred, joined by Justices Scalia and Alito, emphasizing that the Court’s ruling applied only to testimony that was not pursuant to a public employee’s official duties.

    Previous Posts on Lane v. Franks

    I previously blogged about this case when certiorari was granted, see post of January 20, 2014; when (full disclosure here) I co-authored a Law Professors’ Amicus Brief in Support of Petitioner, see post of March 13, 2014; and when I did a short video on the case, see post of April 25, 2014. Those posts set out the background and facts.

    The Opinion: The First Amendment Merits

    Justice Sotomayor initially set out the basics of public employee free speech jurisprudence stemming from Pickering v. Bd. of Education and Garcetti v. Ceballos. She observed that where a public employee is disciplined for his or her speech and asserts First Amendment protection, the first question was whether the speech engaged in–here, Lane’s testimony at two federal criminal trials– was pursuant to the employee’s job duties. In this case, it was clear– even undisputed–that Lane’s testimony,  pursuant to subpoena, at trial, was not part of his ordinary job duties. Moreover, it was every citizen’s duty under subpoena to testify truthfully at trial. The Court emphatically rejected the misguided position of the Eleventh Circuit in this case that Lane’s speech was not that of a citizen but that of an employee because he testified about information arising out of his employment.

    The second question–whether the speech dealt with a matter of public concern–was also easy to answer: Lane’s testimony dealt with the malfeasance of a state legislator in connection with the misuse of public funds. According to the Court, this was a classic case of whistle-blowing about public corruption. This was surely a matter of public concern. Consequently, the First Amendment was implicated here.

    Finally, as to the Pickering balancing test, the Court observed that the various defendants never seriously argued that the balance should tip in favor of allowing Lane to be disciplined. There was no countervailing governmental interest whatever that would justify his firing.

    Consequently, the First Amendment protected Lane from discipline for his truthful testimony. (more…)

    The Agency for International Development Case — Free Speech and Gov’t Funding

    by  • July 12, 2013 • Faculty Commentary • 0 Comments

    Nahmod_Sheldon thumbBy Sheldon Nahmod [originally posted on Nahmod Law]


    The Supreme Court handed down an important First Amendment decision on June 20, 2013, that has attracted relatively little attention thus far. The decision is Agency for International Development v. Alliance for Open Society (PDF), 133 S. Ct. — (2013), No. 12-10 (Justice Scalia, joined by Justice Thomas, dissented; Justice Kagan recused herself).

    In order to understand it, I’d like to provide the First Amendment background.

    First Amendment Background

    It is black letter First Amendment law that, with few exceptions, government cannot directly regulate the speech of its citizens because of disagreement with the viewpoint expressed. Ideally, government should be neutral when it comes to the content of speech. See my post of January 19, 2010, where I discuss the three dominant rationales of the First Amendment.

    It is also black letter First Amendment law that government cannot compel its citizens to express political or other views. West Virginia Bd. of Education v. Barnette, 319 U. S. 624 (1943); Wooley v. Maynard, 430 U. S. 705 (1977). (more…)

    Fisher and Shelby County: Two of a Kind

    by  • June 26, 2013 • Faculty Commentary • 0 Comments

    Nahmod_Sheldon thumbBy Sheldon Nahmod [via Nahmod Law]


    The Supreme Court handed down two important decisions on race in this last week of its 2012 Term that have more in common than appears on first reading.

    Fisher

    The first is Fisher v. University of Texas (PDF), 133 S. Ct. — (2013), where the Court held that the lower federal courts did not properly apply the required strict scrutiny to the University’s affirmative action plan.

    Rather than deferring to University administrators and their good faith regarding the question of whether the affirmative action plan was narrowly tailored to accomplish the compelling interest in diversity, the lower federal courts should have instead engaged in “stricter” scrutiny and asked whether the University adequately considered the availability of race-neutral alternatives to its affirmative action plan.

    In so ruling, the Court did not have to address the question raised by Justices Scalia and Thomas in their separate concurring opinions as to the propriety of using race at all in university admissions for diversity purposes.

    Shelby County

    The second is Shelby County v. Holder (PDF), 133 S. Ct. — (2013), a blockbuster decision where the Court held that Congress had exceeded its powers under section 2 of the Fifteenth Amendment when it re-enacted the pre-clearance coverage formula of section 4 of the Voting Rights Act of 1965 because that coverage formula was based on outdated data regarding voting and race in the covered Southern states. (more…)

    Nahmod — Myths About the Supreme Court

    by  • December 7, 2012 • Faculty Commentary • 0 Comments

    The following is the third post in Professor Sheldon Nahmod’s new series of posts called “Know Your Constitution.” The series intends “to educate citizens about the Constitution and the Supreme Court with a minimum of legal jargon.” Cross-posted from the original post at Professor Nahmod’s blog, Nahmod Law.

    By Sheldon Nahmod


    This is the third post in the series and it addresses three myths about the Supreme Court with a minimum of legal jargon.

    The First Myth. The Supreme Court’s primary function is to do justice.

    Reality. The Supreme Court’s primary function is to interpret the Constitution and federal statutes. These interpretations become the supreme law of the land. The Court’s function is not necessarily to do justice in individual cases.

    Of course, there are times when interpretations of particular constitutional provisions are considered by many to be just. For example, the equal protection clause of the Fourteenth Amendment, which prohibits racial and other kinds of discrimination by government, is considered to be a just constitutional provision because it is based on the concept of equality.

    Another example is the due process clause and its application in criminal cases. Due process has been interpreted to include concepts of justice and fairness so as to protect the rights of criminal defendants to an unbiased court, to confrontation and cross-examination, to be free from self-incrimination, to an attorney, and so on. (more…)

    Nahmod — Myths About the Constitution

    by  • December 4, 2012 • Faculty Commentary • 0 Comments

    This is the second post in Professor Sheldon Nahmod’s new series of posts called “Know Your Constitution.” The series intends “to educate citizens about the Constitution and the Supreme Court with a minimum of legal jargon.” Cross-posted from the original post at Professor Nahmod’s blog, Nahmod Law.

    By Sheldon Nahmod


    This post, the second in the series, addresses two commonly and erroneously held beliefs, or myths, about the Constitution.

    The First Myth The Constitution is a sacred document or is at least divinely inspired.

    Reality  The Constitution was written by human beings (all men at the time) and is a product of Enlightenment thinking. The Constitution exemplifies the application of reason to self-government. The divine right of kings is emphatically rejected by the Constitution.

    Notice that there is no reference whatever in the Constitution to a divine being. Religion is mentioned only in several places. One place is the First Amendment with its Establishment and Free Exercise Clauses. Another place is the prohibition against religious tests for political office. In other words, religion has its role, but that role is not in government.

    Along these lines, to characterize the Constitution as deeply influenced by Judaism and/or Christianity, as many like to do, is simply incorrect historically. Traditional Judaism and Christianity had nothing to say about democracy. Also, many of the Framers were deists who believed that a divine being created the universe and nature with its “laws” but then bowed out of human affairs. In contrast, theists believe that a divine being revealed itself and remains concerned with, and involved in, human affairs. (more…)

    Filarsky v. Delia: A New Supreme Court Private Individual Immunity Decison

    by  • May 10, 2012 • Faculty Commentary • 0 Comments

    By Sheldon Nahmod [via Nahmod Law]


    I blogged on November 10, 2011, about the Supreme Court‘s grant of certiorari in Delia v. City of Rialto, 621 F. 3d 1069 (9th Cir. 2011), sub nom Filarsky v. Delia, No. 10-1018, where the Ninth Circuit held that a private attorney retained by the government was not entitled to qualified immunity, even though all of the government actors involved in the same challenged conduct were so protected because they did not violate clearly settled law.

    The Question Presented was the following: “Whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a ‘private’ lawyer rather than a government employee.”

    In a unanimous decision handed down on April 17, 2012, and written by Chief Justice Roberts, the Court ruled that an individual hired by the government to work for it is indeed protected by qualified immunity, even though that individual does not work for the government on a permanent or full-time basis. Filarsky v. Delia, 132 S. Ct. — (2012).

    (more…)