Wednesday, March 21, 2018

Statutory Preclusion and Environmental Statutes

I missed this the first time around, but the Supreme Court this week denied cert in an action brought by victims of the Flint, MI water contamination. The Sixth Circuit held that a § 1983 claim for damages for Due Process and Equal Protection was not precluded by federal environmental statutes, which entailed different rights, different standards, and different remedies.

Mesa v. Hernandez on remand

A divided en banc Fifth Circuit held that there was no Bivens action available--this is a new context (transnational shooting involving a non-U.S. citizen) and special factors counseled hesitation, primarily national-security concerns.

Tuesday, March 20, 2018

For Thursday

Tuesday audio. We will take two minutes at the beginning of class to discuss argument assignments.

We will finish Entity Liability, talking about the connection between supervisory and entity liability and recognizing who a policymaker works for. We then will do the two Puzzles. Reaction Papers on Entity Liability will be due on Thursday, March 29.

We then move to Civil Rights Procedure, Prepare Jurisdiction, Motions, and Appels, covering Part A of Chapter 7.

Thursday, March 8, 2018

For return from break

Thursday audio. During break, please look over the cases for argument to choose whether you want to be Chief and whether you want to argue petitioner or respondent.

We continue with Ex Parte Young and everything that follows from it. Is Young a fiction (or series of fictions)? If not, how is it consistent with the 11th Amendment? What did the Court do with Young's argument that he should be immune from suit? What is the connection between § 1983 and Young? How do you tell when relief is prospective or retroactive?

Also, here is the 8th Circuit decision holding that the federal hate-crimes statute is valid legislation under § 2 of the Thirteenth Amendment, legislating against "badges or incidents of slavery."

Have a good break.

Tuesday, March 6, 2018

Immunity Commentary


For Thursday

Tuesday audio.

We continue with State Sovereign Immunity. What is abrogation, why does Congress have the power to abrogate, and what must Congress do to abrogate? What explains the different results in the Commerce Clause statutes? What is the scope of Congress' power under § 5? Can states be sued under § 1983? How does Ex Parte Young interact with sovereign immunity and § 1983? Is Young a fiction or is it consistent with sovereign immunity?

Thursday, March 1, 2018

For Tuesday

Thursday audio. Immunity Reaction Papers due on Tuesday.

We begin with the final Puzzle on Muni Liability, then move to the first piece of Supervisory and then to State Sovereign Immunity. What is left of supervisory liability after Iqbal? What is the purpose and logic of sovereign immunity? What are the three competing interpretations of the Eleventh Amendment and which has prevailed? In what way(s) is state sovereign immunity limited? How can Congress overcome state sovereign immunity? What is the connection between sovereign immunity and § 1983?

Tuesday, February 27, 2018

Argument in Lozman v. City of Riviera Beach

Transcript here. The issue is whether an individual can make out a First Amendment claim under § 1983 when he was arrested in retaliation for speech at a city council meeting but there was probable cause that the plaintiff committed some crime or other.

There is a lot of discussion throughout about qualified and absolute immunity, causation under § 1983, municipal liability and the unavailability of immunity for municipalities, as well as Twombly and Iqbal. Worth a read (or a listen when the audio is released on Friday afternoon).

For Thursday

Tuesday audio. Papers on Immunity due next Tuesday.

We continue with Municipal Liability. Is the municipality liable for enforcing state law? When else can a muni be liable? What are the details of the "failure to blank" theory, as reflected in Brown and Connick?

Move to the first piece of Supervisory Liability. What is the connection between municipal liability and supervisory liability?

Don't read to State Sovereign Immunity; we will get to that next week.

Friday, February 23, 2018

Should Georgia sheriffs be entitled to IX Amendment Immunity?

Featured petition to SCOTUS


Issue: Whether county sheriffs in Georgia function as an arm of the state, and are thus entitled to Eleventh Amendment immunity, when they feed (or fail to properly feed) people detained in the county jail.

Thursday, February 22, 2018

For Tuesday

Thursday audio.

We finish Qualified Immunity by looking at the connection between Bivens and Q/I, then working through the three Puzzles.

We then turn to Entity Liability with Municipal Liability. How did Monell establish municipal liability in light of Monroe and the history of the 1871 Act? What are the limits of municipal liability and how can it be established? Why is municipal liability important to the purposes of § 1983, especially recognizing the role indemnification of individual officers?

Remember that we begin our reshuffled panels--new Panel A is Paige, Jeremy, and Sandra.

Tuesday, February 20, 2018

For Thursday

Tuesday audio.

We continue with Qualified Immunity. We will discuss the order-of-battle issue and what that reveals about how constitutional rights are considered and adjudicated. Think about what does or does not clearly establish a right and whether that makes sense? How does Abbasi arguably conflate immunity with the Bivens question? Prepare the three Puzzles for discussion.

We will begin Entity Liablity (and the new panel structures) next week.

Also, the Fifth Amendment case I mentioned was Vogt v. City of Hays, which was argued this morning. Check SCOTUSBlog this afternoon for a transcript.

Thursday, February 15, 2018

For Tuesday

Thursday audio.

We continue with Prosecutorial Immunity. Consider quasi-prosecutorial immunity and its reasons and scope. What other functions do prosecutors, particularly those at the head of an office, perform and how should immunity apply to them? After Van de Kamp, is there anything left of the "one case"/"many cases" line we discussed for judicial immunity? Prepare the Puzzles.

Then move to Qualified Immunity. Who gets qualified immunity? Why is it only qualified? Try to make heads or tails out of the analysis, particularly the debate over merits-first or no.

Also, did someone grab the folder with the Bivens Reaction Papers? It was not in the classroom. If you have it, please bring it by my office.

Tuesday, February 13, 2018

For Wednesday

Monday audio. Bivens Reaction Papers due on Wednesday.

We continue where we left off--Is a judge denying custody to a same-sex parent or refusing an adoption to a same-sex couple judicial or non-judicial and why? Prepare the two Puzzles. Look at the "except" clause of § 1983 and how that interacts with judicial immunity.

Then move to Prosecutorial Immunity. Note how it evolved from a part of judicial immunity to something different. What are prosecutorial functions and why is that line drawn? What is the level of immunity--how much immunity is enjoyed and from what?

Monday, February 12, 2018

Thursday, February 8, 2018

Panel Reshuffle

Panel A (Entity Liability and Abstention)

Panel B (Procedure and Remedies)

For Tuesday

Thursday audio.

We continue with Legislative Immunity. What else is about a legislative decisions or functions that make them substantively legislative? Find the answer in the facts of Bogan and in the distinction courts draw between a zoning ordinance (legislation) and a refusal to issue a variance or to rezone a piece of property. What are legislative functions and what are non-legislative functions, even when performed by a legislator? Does legislative immunity leave an injured person without a remedy? Be ready to discuss the two Puzzles.

Then move to Judicial Immunity, but not Prosecutorial Immunity--prepare §§ 5.08 and 5.09 in Part B. Think about the scope, level, and application of prosecutorial immunity. Look at the 1996 amendment to § 1983 and how that relates to judicial immunity. Again, prepare the Puzzles, including the multiple different facts and situations involving Judge Littlejohn.

Wednesday, February 7, 2018

Legislative Immunity Reading

Here. The books should be/better be in before we get to Part 5.B.

Tuesday, February 6, 2018

For Wednesday

Monday audio. Reaction papers on R/P/I due on Wednesday.

We have a few final words on Bivens. What does "parallelism" mean and in what ways is Bivens not parallel to § 1983? What solutions are there to this problem? What might Congress do or what has Congress arguably done?

We then move to Immunities: Legislative Immunity. What are the goals and purposes of immunity generally and legislative immunity in particular? What are the features of legislative immunity in terms of the the scope, level, and application of immunity? What is the real effect of legislative immunity on a plaintiff's remedies? Read this piece by Jonathan Zasloff--is he right about the legislative immunity point as a legal and strategic matter?

Thursday, February 1, 2018

Suing over Larry Nassar

I hope you are following the story of Larry Nassar, the former doctor for USA Gymnastics and Michigan State, who has pled guilty to numerous charges of sexual abuse and child pornography. The story and this story describe what happened when one victim filed a complaint with a local Michigan police department and how incompetently the officers handled the complaint, leaving Nassar to continue assaulting athletes for another decade. And more.

Accepting the facts in the stories as true, what is your argument for constitutional claims against the officer or department?