Wednesday, February 10, 2016

Concurrent claims and other § 1983 nuances

This federal  action was filed by a former Kent State University softball player, alleging that the university mishandled her sexual-assault complaint against the son of the former coach. The named defendants are the University and the former coach; the complaint asserts a Title IX claim against the university, § 1983 Equal Protection claims against both the former coach and the university, and a tort claim against the coach.

We already have seen that both the Title IX and constitutional claims can be brought under Fitzgerald and this case shows why--different defendants, different standards, etc. There is a problem with the § 1983 claims against the university, which we will discuss when we get to the Eleventh Amendment; keep this complaint in mind.

Monday, February 8, 2016

For Wednesday

Monday audio. R/P/I Commentaries are due Wednesday; Bivens Commentaries are due next Monday.

We continue with Legislative Immunity. Why eliminate motive from consideration for absolute immunity? What would be the problem with letting the jury consider motive? Who enjoys legislative immunity--what is a legislature and what is a legislator? What makes conduct legislative and what sorts of things are legislative? Why was the conduct in Gravel legislative or not? What about Bogan? Is there any check on legislative misconduct? How can an individual get a remedy against, for example, a constitutionally defective law? For what did immunity extend in Supreme Court of Virginia?

We then turn to Judicial Process Immunity; for Wednesday, read Stump, Mireles, and Archie, along with Understanding §§ 3.07 and 3.08, including the Judicial Immunity Puzzle.

Wednesday, February 3, 2016

For Monday

Wednesday audio. R/P/I Commentaries due next Wednesday.

We continue with Claims Against Federal Officials. Given how the Court has handled most Bivens claims, what should the default be as to whether a cause/action is available--how do the majority and dissent in Wilkie diverge on this point? How has the Court changed the "special factors" prong into a two-part test? How does this explain the outcomes in Wilkie and Minecci? What counts as a special factor? What is the argument that § 2679(b)(2) should be read as creating a statutory analog to § 1983? Bivens Commentaries will be due on Monday, Feb. 15.

We then turn to Individual Immunities, beginning with Overview and Legislative Immunity. Note the breakdown the book provides as to the ways of evaluating immunity? Where do these immunities come from and how do they link with § 1983? What is the purpose of immunity? What is the scope, reach, and level of legislative immunity and why? If legislators cannot be sued, how do plaintiffs get remedies for unconstitutional legislation? How do we check legislative wrongdoing? What is a legislature? Virginia, Andrew G, and Kelly are on panel.

Monday, February 1, 2016

Under Color Commentaries

Here, here, and here (all made anonymous).

I post these, in part, to get some conversation going. So feel free to take to the blog to respond (nicely, of course).

For Wednesday

Monday audio.

We continue with Procedural Due Process. How can we reconcile Monroe's approach to § 1983 with the approach reflected in Parratt and Hudson? How does Zinermon interact with those cases, such that one court of appeals judge would say the doctrine in this area looks like the "path of a drunken sailor"? Then move to Parallel and Concurrent Constitutional Claims and the discussion in Barnstable.

We then move to Claims Against Federal Officials and the Court's creation of the Bivens remedy? Pay close attention to how that analysis has evolved and how the available remedy has shrunk. Nicole, Loren, Michelle, and Virginia are on panel.

Wednesday, January 27, 2016

Ferguson Consent Decree

You picked an opportune time to take-on this subject. Another mechanism for government enforcement of civil rights is 42 U.S.C. § 14141, which empowers DOJ to bring a civil action against state and local law enforcement agencies that maintain a "pattern or practice" of depriving "persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." The government seeks an injunction and usually obtains a consent decree, a settlement agreement approved by the court that has the force and effect of an injunction.

DOJ has reached a proposed consent decree with the City of Ferguson, which requires a whole range of reforms from the City with respect to law enforcement, including training in the use of force, use of body cameras, and training on the First Amendment.

We (hopefully) will cover § 14141 when we get to Injunctive Relief at the end of the semester.

For Monday

Wednesday audio. Commentaries are due on Monday at the beginning of class. Also, no one guessed (or guessed at) Wednesday's tie.

We continue with Enforcing the Fourteenth Amendment.
   • How and why does the existence of a "special relationship" get around the DeShaney problem? What constitutes (or doesn't constitute) a special relationship?
   • What is the idea behind the state-created danger theory? Who potentially causes the harm in these cases? Be ready to discuss the cases on Understanding  pp. 58-59, as well as Okin.
   • What other ways can a plaintiff work around DeShaney?
   • Look at the Complaint in Briggs. What was going on here? How did DeShaney affect the claims brought?
   • What is the difference between substantive due process and procedural due process? What does procedural due process require?
   • How do you reconcile Hudson and Parratt on the one hand with Monroe on the other?
   • How do you reconcile Zinermon with Hudson and Parratt?
   • Why did the claim in Castle Rock fail?

Monday, January 25, 2016

For Wednesday

Monday audio. Under Color commentaries are due next Monday.

We continue with R/P/I and "and laws" actions. How does the § 1983 analysis diverge from the implied rights actions; does the difference make sense? We then turn to enforcement of the Fourteenth Amendment. What rights does the Fourteenth Amendment create and how are they enforced through § 1983? What did DeShaney do to substantive due process and how does the Okin court and the complaint in Briggs try to work around it? Are constitutional claims strict liability (i.e., no state of mind requirement)?

Attorneys' Fees

The very last piece of the semester will be attorneys' fees. Here is a preview. This story discusses the fee awards for the attorneys in the various marriage-equality cases across the country, which have reached or exceed $ 1 million in several states. This district court awarded attorneys a bit over $ 600,000 for the challenge to the Texas ban.

Just to give you a sense of scope, the Texas ban was litigated only in the district court and then a pro forma appeal to the Fifth Circuit, which summarily affirmed and remanded following Obergefell. Imagine Michigan, Kentucky, Ohio, and Tennessee, which was litigated to the merits in SCOTUS.

Again, keep these in mind--we'll come back to these specifics later in the semester.

Update: It's attorneys' fee day. In a per curiam summary opinion (go to p. 13), SCOTUS reversed the Idaho Supreme Court and reiterated that attorneys' fees are available for prevailing defendants only in extraordinary cases, as where the plaintiff's claim was "frivolous, unreasonable, or without foundation." Interesting discussion of the state court's effort to avoid binding SCOTUS precedent.

Sunday, January 24, 2016

Opinion/Argument Cases

Case list.

There are 10 cases with 11 issues on which cert has been granted. The first eight cases will be argued, while the other three are for written opinions only. Everyone has been assigned as attorney on one case and judge on one case; later in the semester, you must confer with opposing counsel to decide who will represent which side and with your co-judge to decide who will serve as Chief Justice.

You may write on any case/issue other than the cases you have been assigned to argue and judge; this leaves everyone with nine choices on which to write.

I will argue Hinkle v. White before the full class, so this is one more case that everyone will prepare.

Wednesday, January 20, 2016

When should the federal government prosecute?

We may have time later in the semester to cover the problem of when the federal government should bring § 242 prosecutions, especially in the failure or absence of state prosecutions. DOJ's so-called Petite Policy lays out some guidelines, but they are notoriously squishy. It often turns on some visceral sense that something went wrong in the state processes.

One case to watch is that of the Cleveland police officers who shot and killed Tamir Rice. In December, a grand jury declined to indict, consistent with the recommendation of the District Attorney, who actually presented evidence as to why the officer had not done anything wrong. But this report indicates the jury never voted on whether to indict. Obviously, we need to know more about the process. But something strange within the state grand jury proceedings may suggest that federal interests remain unvindicated, perhaps warranting federal intervention. Keep an eye.

For Monday

Wednesday audio.

We will finish Under Color. We start with the Puzzle and whether the Yankees might have acted under color. Be ready to argue both for the plaintiff and the defendant. We will cover a few remaining components, namely when the presence of state action may exist in the absence of a state actor.

Commentaries on Under Color will then be due the following Monday, February 1, at the beginning of class. Please follow all instructions in writing these. Remember that you only have to write on two of your panel topics. You only may write on your panel topics.

We then turn to Rights, Privileges, and Immunities, beginning with Enforcing Federal Statutes. Where might the right to enforce a statute come from? How does the Court explain enforcement of federal statutes through § 1983? What is the difference in the analysis between § 1983 and implied rights of action? How do Alexander and Gonzaga shift the analysis from Thiboutot? What is the basis for subject matter jurisdiction in an "and laws" case? Faroat, Marie, and Virginia are on panel for this topic.

Monday, January 18, 2016

One more "under color" problem

SCOTUS heard arguments this week in Friedrichs v. California Teachers' Asssociation; the issue is a First Amendment question of whether public employees who choose not to join a union can be compelled to play "agency fees" to cover the costs of collective bargaining.

For our purposes, note the exchange between Justice Kennedy and counsel for the petitioners on pp. 5-6. Kennedy asks whether the First Amendment also applies to a private employer that establishes a union shop (in which all employees must join the union) pursuant to a state law that allows such union shops; petitioner's says no, citing Moose Lodge.

Is he right? Such state laws typically permit private employers and unions to negotiate union-shop agreements. What if the law compelled union-shop agreements?

If we do not reach this in class, it might make an interesting Commentary.

Wednesday, January 13, 2016

For Wednesday

Wednesday audio. Remember no class on Monday. By the way, today was illustrative of how I want/hope/expect conversations to go--I am going to look to panelists, but I am going to bring non-panelists into the discussion.

We continue our discussion of Under Color.
   • What are the policy concerns underlying Polk County? Do they make sense? How did West distinguish/reconcile with Polk?
   • Might a public defender or office ever act under color?

We then turn to when and how private individuals/entities (i.e., non-state actors) might act under color of state law.
   • What is the common theme linking the various tests/standards for under color? Try to understand the different tests and their limits.
   • What is the rationale for keeping these limited?
   • What is the argument in the private garnishment cases that § 1983 is not satisfied because, while there is state action, there is no state actor?

Just to give some guideposts, my best guess is that we will spend another 2+ classes on this, before moving to R/P/I.

Monday, January 11, 2016

Final Panels (Updated)


For Wednesday

Monday Audio. Remember that we will go 10:45-Noon for the rest of the semester. I will answer any questions about the assignments during the first few minutes.

Panelists should sit front-row center. Everyone else try to stay in the center section and the section to my right (closest to the hallway door.

We continue on Under Color and Screws/Monroe.
   • How did the Court interpret the concept to reach the defendants in those cases? What were the historical purposes discussed in Monroe?
   • What is the contrary understanding reflecting in the dissents? What would be the problem with that standard for plaintiffs?
  • Prepare the Under Color Puzzles in § 2.03[4].
  • How do you explain and reconcile the decisions in West and Polk County (discussed in West)?

Also, because someone asked: We will spend around 3 1/2-4 class periods on Under Color. So for those wondering when we will begin Rights/Privileges, that will help you do the math.

Thursday, December 24, 2015

TV Worth Watching

As you rev up for the semester and this class, let me recommend two short series that touch on some of what we will be discussing here. And both are terrific series.

1) Making a Murderer, streaming on Netflix. In particular, the first two episodes focus on the civil rights damages lawsuit brought by a man who was wrongfully convicted of sexual assault. Many of the problems with the criminal-justice system depicted in the film are the potential stuff of the sorts of civil rights litigation we will be studying this semester.

2) Show Me a Hero (originally aired on HBO, streaming somewhere). This covers the political fallout of a fair-housing lawsuit in Yonkers, NY. It covers a lot of details of the constitutional litigation process, including appellate review, injunctions, judicial management of injunctions, the process of contempt of court, and enforcement of judicial decrees. It also provides a lesson in municipal government.

Civil Rights and Civil Rights Blog

Welcome to Civil Rights and the FIU Civil Rights Blog. There are three posts that you must read and follow prior to our first class meeting on Monday, January 11.

To read the blog, go to; posts can be read going down from most recent to least recent. To post to the blog, go to; you can log-in with a username and password. For complete information on the purposes and uses of the blog, see the Syllabus.

To be able to post, you must register as an author and a reader. To register as an author, please send an e-mail to me ( In the subject line, type “Civil Rights Blog Registration;” in the body of the e-mail, please type your name and your e-mail address. You then will receive an e-mail “Invitation” inviting you to join as an author on the blog. You must follow the steps outlined in the invitation e-mail to register (under your full name, no handles or usernames) as an author. Please register under your full (first and last) name. Please do this at the beginning of the semester, as soon as you receive the invitation.

Once you have registered, take a few minutes to explore how to write a post. Note that you can put up photographs and video. You also can put web links in the text by highlighting the text you want to use for the hyperlink and clicking the "Link" button.


As discussed in the Syllabus, we will work with panels of 2-4 students who are "on call" for each subject. Listed below are the subjects and the number of panel slots for each. Please identify four (4) subjects for which you would like to be on call and email ( your preferences to me prior to the first class; I will try to match preferences of the early birds. I will distribute a sign-up sheet during the first class to fill-in any remaining spots.

Under Color of Law/State Action: 4
Rights, Privileges, and Immunities: 4
Claims Against Federal Officials: 4
Legislative Immunity: 4
Judicial Process Immunity: 4
Executive Qualified Immunity: 4
Municipal Liability: 4
State Sovereign Immunity: 4
Supervisory Liability: 2
Procedure: 4
Abstention: Introduction/Pullman: 4
Abstention: § 2283/Younger: 4
Rooker-Feldman: 2
Damages: 4
Injunctive Relief: 4
Attorney's Fees: 4

First Class Assignments and Class Materials

Download and read the Syllabus (or at right) for complete details about the course, assignments, pedagogical approach, course rules, and grading methods. You should bring the Syllabus with you to every class. Review the Course Evaluation Information (or at right) for details on your graded written and oral projects.

Changes to Class Schedule:
No class on Monday, January 18 for Martin Luther King Day 
Name Cards:
At our first class meeting, there will be a stack of name cards on the table in the front of the classroom. Please find the card with your name on it and place it in front of you at your seat. You must keep that card and have it with you for every class. 

Technology and Class Conduct: 
• Use of laptops is prohibited.
  • You may bring a bookreader, iPad, phone, or similar device solely for reading assigned cases, statutes, rules, and texts, rather than printing out all the cases. You may not take notes on the device. 
   • You must be in class on time, unless I have previously given you permission to come late. You may not enter the room once class has begun, unless I have given you permission to come late. Once class has begun, you must remain in your seat, unless I have given you permission to leave during class. In all cases, permission will be freely given when appropriate.

Making a Murderer
If you have not been doing so, you should watch Making a Murderer, streaming on Netflix. In particular, the first two episodes focus on the civil rights damages lawsuit brought by a man who was wrongfully convicted of sexual assault. Many of the problems with the criminal-justice system depicted in the film are the potential stuff of the sorts of civil rights litigation we will be studying this semester.

Required Course Materials:

 1) Howard M. Wasserman, Understanding Civil Rights Litigation (LexisNexis 2013)
     Appendix A: Constitution of the United States
     Appendix B: United States Code and Federal Rules of Civil Procedure (selected provisions)
   1) Individual cases, unedited. You are responsible for downloading these; you can find them on Westlaw, Lexis, Oyez Project, Justia, or any other online source.
   2) Edited articles and other materials posted to the Blog, to be downloaded and brought to class

Assignments for the first day of class, Monday, January 11:

Introduction/Historical Context                     

      U.S. Const. amend. XIII, XIV


      Understanding Ch. 1

Elements of Civil Rights Claims

   Commentary: Understanding § 2.01

 “Under Color of Law” and State Action


      42 U.S.C. § 1983

      18 U.S.C. § 242


      Monroe v. Pape, 365 U.S. 167 (1961) (disregard Part III of Majority)

   Commentary: Understanding §§ 2.02, 2.03[1], 2.03 [2]