We continue with Qualified Immunity. What is the purpose of the clearly established requirement (independent of the general purposes of immunity), what problems does the requirement create, and how do you determine CE? What are the solutions to qualified immunity (if indeed it is a problem) and who should create them?
I expect QI to cover Monday and some of Tuesday (including the Puzzle in § 5.21). Then we will begin Entity Liability late on Tuesday.
Enjoy your break.
Monday audio. Back outside tomorrow, as I expect another nice day.
We will finish the Prosecutorial Immunity Puzzles. How would you distinguish Lacey from a suit by a line prosecutor alleging the office discriminates against her in case assignments. Think about the "absence of jurisdiction" idea in Anilao (Puzzle # 3) and how that argues for or against immunity.
We then move to Qualified Immunity, which is almost certainly the highest-profile doctrine--and the one most criticized across the political spectrum. How did the doctrine evolve and why? What are the targets of criticism?
We discussed this issue a bit during the Bivens discussion: What happens if state or local government enforces federal law. The answer, as we said briefly, is that it depends on how the officer was acting. A state or local official enforcing federal law for the state or locality is under color of state law and subject to § 1983. A state or local official working for the federal government acts under color of federal law and is subject only to Bivens.
This Ninth Circuit case addresses the issue as to two local law enforcement officers working for a joint task force created by federal law and supervised by federal officials.
We will continue with Judicial Process Immunity, so prep everything in Part B of Chapter 5. How do the "trappings" of judicial process cut in Gibson? How does Stump v. Sparkman affect resolution of Gibson? Why is prosecutorial immunity more controversial than judicial immunity? How does the concept of "jurisdiction" affect both judicial and prosecutorial immunity? Think about the "absence of jurisdiction" idea in Anilao (Puzzle # 3) and how that argues for or against immunity in that case.
Consider an additional Judicial Immunity Puzzle: Plaintiff sues for a 4th Amendment violation:
Judge Robert Benitez (S.D. Cal.) was presiding over a parole-revocation hearing. In the audience was th1 3-year-old daughter of the defendant. The defendant asked for leniency, pointing to his daughter in the gallery and the danger of her falling into drug use if he were not around. Judge Benitez orders the marshal to handcuff the girl and have her sit in the jury box. he explained that he wanted to send a message: "So your dad’s made some serious mistakes in his life, and look at where it’s landed him. … And if you’re not careful, young lady, you’ll wind up in cuffs, and you’ll find yourself right there where I put you a minute ago.”
We will begin Qualified Immunity on Tuesday.
Monday audio. Bivens papers due at the beginning of class.
We continue with the Puzzles for Legislative Immunity. Why does the usual executive/legislative divide not apply to internal rules--why isn't the sergeant-in-arms or other House official performing the non-legislative function of enforcing the House rule (akin to the Mayor or Sheriff enforcing the zoning ordinance)? Break out Puzzle # 3, which has a number of issues in a number of directions.
Move to Judicial Process Immunity, covering judicial (which will be our main focus tomorrow) and prosecutorial. Read the whole Part, although we probably will cover the Intro and Judicial.
Consider how this story about two disciplined judges relates to judicial immunity.
Consider an addition Judicial Immunity Puzzle: Plaintiff sues for a 4th Amendment violation:
Judge Robert Benitez (S.D. Cal.) was presiding over a parole-revocation hearing. In the audience was th1 3-year-old daughter of the defendant. The defendant asked for leniency, pointing to his daughter in the gallery and the danger of her falling into drug use if he were not around. Judge Benitez orders the marshal to handcuff the girl and have her sit in the jury box. he explained that he wanted to send a message: "So your dad’s made some serious mistakes in his life, and look at where it’s landed him. … And if you’re not careful, young lady, you’ll wind up in cuffs, and you’ll find yourself right there where I put you a minute ago.”
The City of Springfield (OH) and numerous individuals filed suit against individuals and groups that stirred up hatred and discrimination against the city's Haitian community last fall (eating dogs, etc.). The complaint has two federal counts, both features of the KKK Act.
Section 1985(3) provides for private suit against those who conspire to deprive people of civil rights, a civil counterpart to 18 U.S.C. § 241 (from the 1870 Act). It targeted the Klan--suit runs against those who "conspire or go in disguise on the highway or on the premises of another"--and most recently was used to secure a substantial monetary judgment against the organizers of the "United the Right" Rally in Charlottesville. The HBO movie No Accident offers great behind-the-scenes look at the lawyers and the lawsuit in Charlottesville; worth watching.
Section 1986 imposes civil liability for failing to act to prevent others from violating § 1985. We will talk about § 1986 briefly when we get to municipal liability.
The lawsuit also gives a nice illustration of the role of defensive litigation: One defense these groups will raise is that their speech was constitutionally protected and thus they cannot be liable in private litigation.
In discussing state-created danger, we talked a bit about the "Blue Wall" and how state-created danger might play in a "Blue Wall" situation, in which the affirmative actions of police protecting one another enhances the danger. I shared this case in which one officer disclosed a domestic-abuse report to the husband, who was a fellow officer. This case offers a different version: The department violated protocol in investigating an officer for years of child sexual abuse (e.g., allowing him to be present while the alleged victims, his children, were interviewed). The plaintiff framed this as state-created danger; the district court dismissed because the complaint only alleged inaction; the court of appeals seemed to be looking for affirmative acts, while struggling to find causation.
Tuesday audio. Bivens Reax Papers due next Tuesday.
We continue with Immunity, starting with Legislative Immunity (Part A) on Monday and continuing to Judicial Process Immunity (Part B) for Tuesday. For each, consider how the answer to the key questions--who is immune, for what functions are they immune, and from what are they immune.
And for an additional Puzzle and to show why this is always in the news: This lawsuit against two members of Congress for voting for a bill to send money to Israel despite Israel committing what they allege to be human rights violations. What do you make of the argument by plaintiffs' lawyers that" immunity does not extend to a legislator who votes in favor of legislation when they know, or should have known, that the legislation is unlawful?
Monday audio. RPI Papers due tomorrow. Back inside, because it will be too warm this week (sad . . .). I will begin recording attendance tomorrow; you can miss 15 % of class hours before you are referred to the administration.
We will finish Bivens, so be ready to work through the three Puzzles.
• What would congressional action look like?
• What is the argument that Bivens is dead rhetorically if not legally? And what is the argument for killing it altogether (Amir's question, off the Gorsuch dissent in Egbert)?
We will begin Immunity with § 5.01. We will begin with Legislative Immunity next Monday.
• What are the purposes and policies behind all immunity?
• What are the purposes of § 1983/Bivens litigation, especially for damages?
• What makes immunity "absolute," as opposed to qualified?
• What are the three aspects defining any immunity?
Here. Confer with your co-justice as to who will serve as chief and your opposing counsel to decide who represents which party. The first party listed is petitioner--the losing party in the court of appeals.
You may write your reaction paper on any case you are not assigned to judge or argue.
Tuesday audio. RPI papers due at the beginning of class next Tuesday. Please take the time to work the puzzles before class--things go a lot more smoothly that way.
Two quick notes on state-created danger.
First, see this case from the Ninth Circuit. The majority held that a police officer violates SDP on a state-created danger theory by disclosing the confidential police report and other information to the abuser. A concurrence in the judgment rejects SCD as a judge-made "Frankenstein's monster" without support in the Fourteenth Amendment, history, or precedent. It is not impossible that the Court reconsiders this doctrine in the not-so-distant future. The plaintiff lost the case on qualified immunity (which is why the concurrence was not a dissent); we will get to that in a few weeks.
But note the particular facts--the abuser communicating with the defendant officer was a fellow officer. This comes up in a fair number of (usually unsuccessful) SCD claims, often around domestic violence--an off-duty officer causes harm not under color and the plaintiff victim argues that the kid gloves with which on-duty colleagues treat that officer increase the danger to the victim.
Second, on James' idea to pursue Watts as a First Amendment claim. The plaintiff could try it. It seems problematic because it is not clear from the facts that the ref engaged in protected speech--making racist comments to players while working for the state as an athletic official probably does not enjoy constitutional protection. And it is hard to disentangle those undefined comments from his bad calls. But yes, the argument that "the coach ordered two students to assault me because of my speech" is a fair framing for a potential 1st Amendment claim, subject to the court's (likely) finding the speech unprotected. And that forces you back into SDP.
Finally: Compare § 1981 with Title VII, illustrating the distinct issue of overlapping statutes. Both can be used for certain types of employment-discrimination claims, although in many cases only one or the other will apply.
We will begin Claims Against Federal Officials. As you read this, think about about Bivens in three time frames--its origins and through the 1970s; retraction from 1980 through 2017; and then the past seven years of Ziglar, Mesa, and Egbert. Prep the puzzles with care--the likely answer ("no Bivens") is obvious, but the question becomes why. Without Bivens, how can the federal officials or the federal government be held to account for constitutional violations?
Sponsored by the ABA. (H/T: Madeline). Might make an interesting supplement to and expansion on some of what we have been doing here.
Monday audio. Today marked the third straight class in which only 9 people have showed up. That is unacceptably low. Regular class attendance is an expected part of this class, whether or not you are on panel. We should not regularly have more than 1/3 of the class not showing up.
Panel # 1 papers are due tomorrow at the beginning of class. Please note that your paper must deal with state action/under color, not something we will cover later in the book and the class.
Complete the reading for Chapter 3, including the assigned Puzzles. Note where the various cases have been brought and how that affects the arguments you make as the plaintiff. I expect to finish this chapter tomorrow, so papers will be due next Tuesday.
Story here, although no one has included a copy of the actual memorandum. (Protip: If a story about a legal development does not include a link to the document discussed, the reporter is bad at his job).
As reported, the division must stop litigating ongoing cases, bring no new cases, and submit recent settlements (under § 12601) for reconsideration. The latter includes consent decrees with many police departments, including Minneapolis following the murder of George Floyd and Louisville following the murder of Breanna Stewart.
We have discussed government enforcement a bit and will talk more when we reach Remedies at the end of the semester. One drawback to US (rather than private) enforcement is the risk of changes in priorities when administrations change. But one administration undoing another's work and freezing all litigation efforts is unusual. In 2017, the Obama DOJ rushed to finalize a bunch of settlements with police departments to get them under the wire before the Trump DOJ took over. But the new department did not undo those settlements.
Changes in administrations historically affect things at the margins and ake some time to implement. This is why there is usually some legal continuity across administrations, regardless of party and ideology. (For example, it took several years for the Reagan DOJ to shift away from the antitrust approach of the Carter DOJ). The new administration is trying to speed that process considerably.
This could create an interesting conflict with federal judges. They may not like or accept the government slowing down the docket, especially with pending criminal cases (which by the Constitution and statute must be conducted in a "speedy" manner). And they are suspicious of government changing positions in pending litigation when the presidential administration changes. This is a vestige of the view that courts do "law" and law is above the politics of who is in the presidency. Many scholars consider that view naive, but judges take it seriously.
Update: This from Prof. Steve Vladeck (recommend subscribing to his Substack--he does great stuff on Fed Courts and Civil Rights. We will discuss a bit about the 8th Amendment piece in class on Monday.
Tuesday audio. Under Color Reax papers due at the beginning of class Tuesday. Reminder that you must write on under color and the issues discussed in Chapter 2 (you don't know enough to write about stuff later in the class). Puzzles that we did not cover in class are fair game. Argument cases that you are not otherwise assigned are fair game (although not applicable here). And there is a lot of stuff on this topic, so it should be very easy to find recent case(s) to write about--if you go down that path, spend most of your time on the law and application.
We did not get to the discussion of § 1981 so I will place it here. As discussed on p.90, § 1981 (from the CRA of 1866 and 1870) creates a private right of action against private discrimination but not public discrimination; it is enforced against the government through a § 1983 "and laws" action. There was a lopsided circuit split as to whether the CRA of 1991, which added § 1981(c), changed that and created a new, independent right of action--the Ninth Circuit said yes, everyone else said no. In 2023, the Ninth Circuit changed direction, overruled precedent, and go on board with everyone else--§1981(c) does not create a right of action and § 1981(a) is still enforced against the government through § 1983. This relates to one of our argument cases, on the statute of limitations for such actions.
Move to Enforcing the Constitution, Part A of Chapter 3, as well as § 3.13 (on parallel claims). We will not be getting deep into substantive constitutional doctrine, only getting a sense of the basic rights enforceable and how.
• How does the Supremacy Clause connect to § 1983?
• How does the evolution of constitutional law explain the increase in § 1983 activity in modern times?
• What does "due process" entail? What multiple pieces does "substantive due process" entail?
• Really work the due process puzzles.
Tuesday audio. Happy MLK Day and Inauguration Day. FWIW, this is the second time that an Inauguration has aligned with MLK Day (since it became a national holiday in 1986). The first was Bill Clinton's Second Inauguration in 1997. It will not happen again until 2081.
We will finish Chapter 2 with VDARE and the Hate Speech Act Puzzle in § 2.05[3]; what postures can the property owner assert his First Amendment arguments? That will finish Under Color. Reaction Papers will be due on Tuesday, January 28.
We move Chapter 3 and Panel II. Read § 3.01 and Part B of Chapter 3; take the time to prep the statutory provisions assigned.
What is the difference between a right, a right of action, and a jurisdictional grant? What express rights of action has Congress provided for civil rights statutes? Absent an express right of action, where can parties and courts look for a right of action to enforce a statute? How does the Spending Clause operate? How does the analyses for implied right, Ex parte Young, and § 1983 overlap and how do they diverge? Absent private civil litigation (which requires a right of action), how do civil rights statutes get enforced?
Monday audio. Argument assignments will be posted shortly.
Prep the rest of Chapter 2. Please do the work in advance of figuring out the Puzzles, particularly the ones in § 2.03[6]--identify the appropriate test, the requirements of that test, and the facts that work for both sides. You should not be flipping through to figure out the facts during class.
Quick final word on Lindke: The Court somewhat conflated the officials' First Amendment protected activities of posting to the site and the conduct triggering the lawsuit of blocking people from the site. The former triggers action under color and thus the limits on the latter. That is, the content of the page dictates whether the person managing it is under color and thus whether the person managing it can block citizens. To be clear: We genuinely do not know whether President Trump II can block people on Twitter.
I believe the class is now final but I am waiting until the end of the week. I will post final panels by Monday. I also expect to get the argument cases to you by Monday.
You should now see how you need to prepare to discuss the Puzzles. Given the class size, I hope to get everyone involved every day.
Review the reading and puzzles for the rest of Chapter 2, including Lindke. This will carry us through most the two days next week.
We appear to have our final numbers--14. Panel # 1 (Under Color) obviously is ongoing and remains unchanged. After the jump are the new-and-final Panels ## 2-8. Ignore whatever you had previously.
Monday audio. Panel # 1 (Thomas, Assaf, Andrew, Julian, Yohance, Madeline) is on for tomorrow. And tell your friends.
Review the Syllabus, Assessments, and Panels; I will take questions at the beginning of class. In particular: Arguments are on the schedule for Friday, May 9 (day after exams end). We could do them on Thursday, May 8 (last day of exams) if it will not interfere with anyone's other exams and assignments.
For tomorrow, prep §§ 2.01 and 2.02. In addition, read Lindke v. Freed in place of the material on p.30.
• What do § 242 and § 1983 do? How are they similar and how are they different?
• What is the core or obvious meaning of "under color?" How did the Court expand that core in Classic, Screws, and Monroe?
• Prep the puzzles in § 2.02[6]. Prep Davison (Puzzle # 2) in light of the Court's decision in Lindke. Is there a way that Wilson and Gomez can come out differently?