Tuesday, October 21, 2014

For Thursday

Tuesday audio. Commentaries on Municipal/Supervisory are due at the beginning of class.

We will continue with State Sovereign Immunity I and moving to State Sovereign Immunity II. We begin with abrogation under § 5 of the Fourteenth Amendment, why abrogation is possible, and when. Can states be sued under § 1983--why or why not? What is the role of Ex Parte Young, both in constitutional litigation and with respect to sovereign immunity? In addition to the assigned cases, read this recent decision from the Eleventh Circuit--is this a correct reading of Young? For Puzzles, review the complaint in Beverly and the complaint and district court opinion in Tyler--what are the 11th Amendment issues here? Finally, look at the materials (including the statutes) on three-judge district courts and the Declaratory Judgment Act, both of which were congressional responses to Young--what were the criticisms of Young and how does each respond to those criticisms?

Time permitting, we will move to Sovereign Immunity and Supervisory Liability, focusing on McMillian and how lower courts approach the question of whether a policymaker works for the state or for the municipality.

Saturday, October 18, 2014

Ferguson Complaint

Here is the first lawsuit arising from the events in Ferguson; it is brought by three protesters alleging that they police used excessive force against them. Have a look at the format and the combination of claims brought. We will talk about this when we get to Procedure in a few weeks.

Thursday, October 16, 2014

For Tuesday

Thursday audio. Commentaries on Municipal Liability/Supervisory Liability are due next Thursday at the beginning of class; although we will circle back to McMillian at the end of our discussion states, we are done with our main discussion.

We have 40 minutes left to make up, which we will do 20 minutes at a time for the remaining two Thursdays of October. Our full make-up class will be Thursday, November 20, so mark your calendars.

We will start with a transition question: What is the connection between supervisory liability and the liability of an entity, given that the ways of establishing liability are similar. When does one turn into another? What is necessary for entity liability?

We then turn to State Sovereign Immunity I; this focuses on general principles of state sovereign immunity and how to get around sovereign immunity, both in federal law generally, in civil rights law more specifically, and under § 1983 really specifically. Can you sue a state under § 1983? Why or why not?

Prosecutorial Immunity commentary


Tuesday, October 14, 2014

Speech or Debate Case

Always be on the lookout for new cases involving our material--it's a regular staple in federal litigation.

The Ninth Circuit held that the prosecution can use evidence of legislative acts to rebut evidence of legislative acts offered by the legislator himself. The privilege is waivable by the legislator, and he cannot claim to being "questioned" about his acts when he is the one who offered them in the first instance. There also is a nice issue of competing legislative acts--the defendant complained about being prohibited from offering evidence of legislative acts offered by another member of Congress, but the court insisted that the waiver of his own privilege was irrelevant to the privilege of another legislator.

For Thursday

Tuesday audio. Commentaries on Qualified Immunity are due at the start of class on Thursday.

We will continue with Municipal Liability, starting with the remaining elements of "Failure to [Blank]" and its application in Connick, Brown, and the Puzzles. How does qualified immunity (and the other individual immunities) relate to municipal liability?

We then will turn to Supervisory Liability, an area that is in some flux, as Iqbal and Dodds show. What is the connection between municipal liability and supervisory liability? Accepting (for reasons we will get into next week) that a state cannot be liable under § 1983, why does it matter who a policymaker works for (as in McMillian) and how do we figure it out?

Friday, October 10, 2014

More on Bogan and clearly established

Prof. Baker (yes, this is what professors do when we are not in class) points to two more avenues through which the rights in Bogan might be clearly established. First, officers are trained and should know that they cannot exceed the scope of a traffic stop in a way that is explicitly or implicitly coercive--to ask the driver on a date, to ask the driver for money, to sell their daughter's girl scout cookies, or to discuss who the driver is going to vote for in the next sheriff election; what the officer did here is not different in any meaningful way. In other words, for purposes of Bogan's Fourth Amendment claim, handing out church literature is no different than handing out campaign literature or selling girl scout cookies. Second, officers should know generally that they cannot stand in the public square and proselytize while in uniform and on-duty; that should put them on notice that they cannot do it during a traffic stop. This might work for the First Amendment claim.

Again, it all involves moving from general principles, so much depends on how willing the court is to see those general principles as establishing broad obligations of which a reasonable officer should have been aware.

Thursday, October 9, 2014

For Tuesday

Thursday audio. Commentaries on Qualified Immunity are due next Thursday at the start of class. Think about whether to do an advance make-up (and if a Thursday does not work, what other time might), which will mean we can have our last class on Thursday, November 20 and then just final papers due on Tuesday, the 25th.

Also, I miscalculated. After today, we have 55 minutes to make-up from the 3 classes we cancelled. So, barring all else, we will go 20 minutes over three more times in October and that will square us up.

We will continue with Municipal Liability; no new reading, but review everything from this section. We will pick up with Monell--Why did the Sherman Amendment fail and how does that affect both the question of whether a municipality is a person under § 1983 and the standard for liability? Identify the four discrete ways that a muni can be liable and the appropriate standards.

Keep the complaint in Bogan handy; we will be referring back to it in our discussion of the 11th Amendment and in our discussion of procedure.

Connick v. Thompson featured on CNN Death Row Stories this year.


The link above shows the back story of the Connick v. Thompson case where John Thompson (no relation) spent 18 years in prison (14 years on death row) for a crime that he did not commit.

Tuesday, October 7, 2014

For Thursday

Tuesday audio. Commentaries on Judicial/Prosecutorial Immunity are due at the beginning of class. Please follow the guidelines as to style, length, etc.

We will complete our discussion of Qualified Immunity. What are the problems with requiring factual overlap with case law? How does law become clearly established? Note the assigned Puzzle; also, what likely will happen if Mireles sues the police officers who used excessive force in bringing him into the courtroom? Finally, consider: Almost every government department indemnifies its officers--what is the effect of that and how does it affect the necessity and purpose of qualified immunity? Here is a short essay (reviewing a longer article) on the subject.

We then will move on the introductory section on Entity Liablity in Understanding, then read all of Municipal Liability. This will shift our focus from the liability of the individual officer to the liability of the entity for whom they work? What is the standard and how did the Court get there? In addition to the cases and materials assigned, read the decision from the Eastern District of Missouri preliminarily enjoining the "five-second" rule in Ferguson; note the discussion of municipal liability.

Monday, October 6, 2014

State action and EMT

The Second Circuit holds that a private company providing EMT services does not act under color of law. EMT services are not a traditional public function and there was no entwinement between the city and the company.

Sometimes courts do recognize Bivens actions

So says the Southern District of New York in an action brought by a Tea Party leader against several IRS officers who conducted a two-year investigation of his real-estate business, including more than 75 subpoenas. Interestingly, the court does not really explain fully why Bivens is available on First Amendment claims (an open issue), nor does the court cite or distinguish Wilkie (which is similar, as a claim for retaliation by officials of a federal agency).

Constitutional change without SCOTUS

SCOTUS today denied cert. in all seven petitions challneging statee bans on same-sex marriage (in all seven, the lower courts invalidated the state laws). Here and here are discussions of the immediate effects, which suggest that, within a few weeks or month, same-sex marriage will be legal in more than 30 states, owing to a combination of injunctions, binding precedent, and the signals that SCOTUS sends to lower courts.

Some questions to think/comment on:

• Why didn't SCOTUS take any of these cases?
• How does that decision comport (or not) with the purposes of having one Supreme Court?
• While cert denials have no precedential force, do the denials here hint at anything about SCOTUS's views? What should/will lower courts read from these denials?
• Will SCOTUS ever rule on marriage equality?

We will come back to this issue at the end of the semester, when we discuss injunctive relief and constitutional challenges to unconstitutional laws.

Friday, October 3, 2014

Under color?

Discuss. What if the fiancee sues the police officer for interfering with the investigation of the crime of which she was a victim?

Thursday, October 2, 2014

For Tuesday

Thursday audio (it cut off towards the end). Comments on Judicial/Prosecutorial are due at the beginning of class next Thursday.

We will continue with Qualified Immunity; review what you read for today, along with Tolan v. Cotton (decided earlier this year). What are the benefits and drawbacks to resolving the merits first in the qualified immunity? How did qualified immunity evolve from a subjective to objective standard? What does it mean for a right to be clearly established and how can you know? In addition to the assigned Puzzles, consider: What would happen if Mireles sued the police officer who used excessive force? What would happen if Lampley sued the bailiff who tased him at the judge's command? Finally, almost every government entity indemnifies its officers against damages; if that is true, how does that affect qualified immunity?

Wednesday, October 1, 2014

Tuesday, September 30, 2014

For Thursday

Tuesday audio.

On Thursday, we will get all the way through Prosecutorial Immunity, then begin on Executive Qualified Immunity. Look at the discussion in Buckley on the connection between absolute and qualified immunity and where and why we draw the line; that will be our transition. Focus especially on Pearson and the benefits and drawbacks to the "merits first" approach to immunity. Note also the discussion of how qualified immunity evolved and why.

Monday, September 29, 2014

School bullying case

Seventh Circuit rejected claims under Title VI and Title IX and the Equal Protection Clause. There is not much discussion on the § 1983 side, other than to note that the plaintiff brought it as an Equal Protection claim of failure to protect because of some characteristics, because DeShaney cuts off any due process claim.

Tuesday, September 23, 2014

For Next Tuesday

Tuesday audio. No class on Thursday. Commentaries on Legislative Immunity are due at the beginning of class next Tuesday.

We will continue with Judicial Immunity, looking closely at Mireles and Stump and why the Court found immunity in both cases.What lines can we use to divide judicial from non-judicial functions? Do those lines address Franco's points? Who else enjoys this immunity and why? We then go to Prosecutorial Immunity; note the evolution of this from an adjunct to judicial immunity to an independent protection. Do the lines between prosecutorial and non-prosecutorial functions make sense?