Monday, March 18, 2024

Immunity Papers

Here, here, here, here, and here.

For Tuesday

Monday audio. FIU will host a panel on judicial clerkships at lunchtime tomorrow (Tuesday), featuring Judges Jordan and Rosenbaum of the 11th Circuit; please plan to attend if you have any remote interest in clerking.

Prep the remainder of Chapter 6. We will get through much of it tomorrow, with some left for next Monday.

    • What is the connection between congruence and proportionality and sovereign immunity?

    • What does C&P allow Congress to do under § 5? Given the laws that have been valid and not valid under § 5, what explains C&P?

     • Consider whether the following claims can proceed under the Americans With Disabilities Act:

        • Attorney working at Greenberg Traurig

        • Attorney working for the Miami-Dade County Attorney

        • Attorney working for the Office of the Florida Attorney General

    • Can states be sued under § 1983?

    • What is the cause of action in Ex parte Young and how does it affect sovereign immunity? Why is EpY a "fiction" and why is it not a fiction? How does EpY connect with § 1983? 

Finally, circling back to the Midwest Bank Puzzle and what you should be looking for: Have we discussed any doctrine under which a plaintiff can hold government liable for harm caused by a private person (note: the state-action cases are about holding the purportedly private actor liable)? How might that apply to the facts of Midwest?

Friday, March 15, 2024

Social Media Cases Decided

Lindtke (claim against city manager) and O'Connor-Raitliff (school-board members). Lindtke is the main case, setting (unanimously) a standard for when officials act under color. The Court vacated and remanded O'Connor for reconsideration in light of Lindtke.

Wednesday, March 13, 2024

Spot the problems with the constitutional claims

In Fakhreddine v. University of Pennsylvania. Plaintiffs are pro-Palestine Penn faculty members seeking to enjoin the university from complying with information requests (not, yet, subpoenas) from the House Committee on Education and the Workforce (same committee that held the crazy December hearing with the presidents of Harvard, MIT, and Penn).

Have at it.

Tuesday, March 12, 2024

For Monday

Tuesday audio. Immunity Papers due at the beginning of class Monday.

We will finish the Muni puzzles, then move to Part B and State Liability.

   • What is sovereignty and what is sovereign immunity? Who is and is not sovereign?

    • What are the three competing theories of the meaning of the 11th Amendment? How would each theory handle the following claims:

        South Carolina Citizen v. Georgia on a federal claim

        South Carolina Citizen v. Georgia on a state claim

        Louisiana Citizen v. Louisiana on a federal claim

        Louisiana Citizen v. Louisiana on a state claim

    • What is abrogation and when is it permitted or not permitted and under what powers? How does abrogation different from "waiver by plan of the convention?

    • Consider whether the following claims can proceed under the Americans With Disabilities Act:

        • Attorney working at Greenberg Traurig

        • Attorney working for the Miami-Dade County Attorney

        • Attorney working for the Office of the Florida Attorney General

    • Can states be sued under § 1983?

Monday, March 11, 2024

For Tuesday

Monday audio. Hopefully we get one more day outside tomorrow. Immunity papers due next Monday.

We continue with Municipal Liability:

    • We left off on what, before we get to anything, on what is necessary to state a claim against a municipality claim.

    • What is "policy" and "policymaker?" What are the four ways a plaintiff can establish municipal liability? How should we understand "Failure to ___" as a theory of liability?

    • How does qualified immunity affect municipal liability?

    • What is the argument that respondeat superior liability is consistent with the text and history of the 1871 Act?

    • How do municipal interests diverge from individual interests in litigation?

    • Be creative in thinking about Puzzle # 3. The case requires you to circle back to prior material in the course.

I hope to get a bit into State Liability tomorrow; just prep §§ 6.09 and 6.10, which will give the basic overview of sovereign immunity and the 11th Amendment.

Saturday, March 9, 2024

Interesting Immunity Cases

After the jump, two interesting immunity decisions from the Ninth Circuit. When you encourage your friends to take this class next spring, tell them to expect to see this case in arguments.

Wednesday, March 6, 2024

Medicaid and § 1983

The Fourth Circuit held, for the third time, that Medicaid's "free-choice-of-provider" provision can be enforced through a § 1983 "and laws" action. That provision guarantees Medicaid patients the right to choose their health-care provider; the lawsuit challenges South Carolina's attempt to bar Planned Parenthood from receiving Medicaid funds (this is an ongoing issue in many states). The court had previously reached this conclusion, but the judgment was vacated for reconsideration in light of Talevski. The court reads Talevski as follows:

We agree that enforceable rights under § 1983 are dependent on congressional authorization, which under no circumstances may be casually implied. While Talevski offered an illuminating analysis of the issue before us and a useful new example of provisions enforceable via § 1983, we do not read it as toppling the existing doctrinal regime. And even if Talevski could be read as embracing a wholly new test, we hold that the free-choice-of-provider provision passes it

Monday, March 4, 2024

For Tuesday

Monday audio.

We will finish QI tomorrow; papers will be due next Tuesday. What are the benefits and drawbacks to flipping the QI presumption--no immunity unless the right is clearly established? We then will work through the QI and Immunity Review Puzzles.

We then turn to Entity Liability, beginning with § 6.01 and Municipal Liability. What are the arguments for and against municipal liability, given the purposes of § 1983 and the problems of individual immunity? What is the textual and policy basis for municipal liability and what are the limitations on that liability?

State-created danger and immunity

From the First Circuit in Johnson v. City of Biddeford. This shows how courts approach the two prongs of immunity and the connection between them. And it again shows courts dealing with the scope of state-created danger.

This was an oral argument case for class a few years ago when it was in the court of appeals the first time, on the existence and scope of SCD.

Friday, March 1, 2024

Sometimes the US does prosecute § 242

From the Tenth Circuit, affirming the sentence on an 8th Amendment violation. Pretty egregious and straight-forward facts--a corrections officer placed two African American inmates in a cell block dominated by members of the Aryan Brotherhood, then ordered the cell doors left open.

Tuesday, February 20, 2024

For our return from break

Tuesday audio. Hopefully we will continue to have outdoor weather.

We continue with Qualified Immunity and the § 5.21 all-immunity review puzzle. My best guess is this will take both Monday and Tuesday when we return. What purposes and what problems does the clearly established requirement present? What are the solutions to qualified immunity (if indeed it is a problem) and who should create them?

Enjoy your break.

Monday, February 19, 2024

You can't write this stuff

An actual coming § 1983 action.

But now let's try to fit it back into today's conversation. Imagine Ms. Gassman (Sydney, did someone change their name???) works for the DA. 

So two possibilities arising from the particular line defendant and her relationship with the DA. When does immunity attach?

    1) Ms. Gassman brings this same suit against this DA.

    2) The DA assigns Ms. Gassman to prosecute and obtain a conviction against a Palestinian defendant. The defendant learns of the photo in her office and sues the DA for damages for discrimination in appointing Ms. Gassman to prosecute, believing the choice motivated by discrimination.

For Tuesday

Monday audio. Back outside tomorrow, as I expect another nice day.

We will finish the Prosecutorial Immunity Puzzles. Think about the "absence of jurisdiction" idea in Anilao (Puzzle # 3) and how that argues for or against immunity in that case.

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?

Also, see the Sixth Circuit case I mentioned, holding that parole board members enjoy quasi-judicial immunity. The court includes a nice discussion of we talked about in class today--how to understand immunity for something as seemingly routine as scheduling.

Tuesday, February 13, 2024

Bivens Papers

 Folks went big with the titles. Here, here, here, and here.

For Moday

Tuesday audio.

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, for example, judicial immunity? How does the concept of "jurisdiction" affect both judicial and prosecutorial immunity?

We will begin Qualified Immunity on Tuesday.

Monday, February 12, 2024

For Tuesday

Monday audio. Bivens papers due at the beginning of class. We will continue to be outside if the weather cooperates, at least for a few more weeks.

We continue with the Puzzles for Legislative Immunity. We then more to Judicial Process Immunity, covering judicial (which will be our main focus tomorrow) and prosecutorial.


Tuesday, February 6, 2024

RPI Papers

Here, here, here, and here.

How bad has Bivens gotten

Pretty bad, says the Tenth Circuit, in recognizing that a Bivens claim is not available because the US Marshal Service is different from the ATF predecessor with a different statutory mission and internal grievances suffice. The court cites Byrd v. Lamb in discussing (but not relying on) the meaningfulness of the events happening inside or outside the plaintiff's home.

The opinion, written by a GWB appointee, takes pains to highlight (including through choice of language) how ridiculous this seems but how hamstrung they are by the Court's recent decisions.

Keep an eye for this in illustrating the back-and-forth between SCOTUS and lower courts. SCOTUS often will do something, including narrowing some area of law, that the lower courts run with to narrow even further, too much for SCOTUS's taste. SCOTUS will take a case to come out the other way to rebalance things a bit. We can understand recent qualified immunity decisions (stay tuned in two weeks) this way. We can understand Talevski (one § 1983 and laws claims) this way. So do not be surprised if the Court takes a case similar to this one as an opportunity to signal to lower courts not to go too far afield. Or to finally kill Bivens once and for all.

Presidential Immunity

The D.C. Circuit held that Donald Trump does not enjoy absolute presidential immunity from prosecution for his conduct following the 2020 election.

Read for Monday, as we will have a brief discussion of how immunities work in criminal as opposed to civil cases. And we may come back  to this when we reach Qualified Immunity. Note also there is an issue of appellate jurisdiction familiar to those of you who took Fed Courts.