Monday, September 22, 2014

Under color commentary

Here.

As I said, I would like to see these draw some commentary. Remember that Bivens commentaries are due, via email, to Donna Yff (yffd@fiu.edu) by 10:45 a.m. on Thursday.

Thursday, September 18, 2014

For Tuesday

Thursday audio. No class next Thursday; we now have 105 minutes to make-up.

Papers on Bivens, if any, are due next Thursday by noon; email them to Donna Yff in the Registrar at yffd@fiu.edu. Also, would the one write on Under Color please resubmit the paper to the same address. In the subject line, indicate that the paper is for Civil Rights.

On Tuesday, we will continue with Legislative Immunity. Who enjoys legislative immunity and for what conduct; how do courts figure out whether the immunity applies? What is the effect of legislative immunity, from the plaintiff's standpoint--is she truly denied a remedy?

We then will move to Judicial Process Immunity, which covers both Judicial and Prosecutorial immunities. For Tuesday, just do Judicial, which involves the first three assigned cases (Stump, Mireles, and Archie) and Understanding §§ 3.07-3.08, including one Puzzle. But also spend some time thinking about how these two immunities relate, in terms of their rationales.


Sunday, September 14, 2014

Police Brutality

Over the summer I worked on two excessive force cases at a law firm in Broward.  We pursued § 1983 claims against BSO and Miami Dade PD.  I am using what I learned there to assist with an excessive force case that occurred in my hometown.  Please view the link to see the facts of the case.

http://www.wdrb.com/story/26479367/lawsuit-alleges-excessive-force-against-shively-police-officer

Saturday, September 13, 2014

Procedural Due Process Suit

This lawsuit was filed against the City of Philadelphia, challenging the city's civil forfeiture procedures (people charged with crimes have property seized as being involved in the crime; the person must prove the property was unrelated to the criminal activity). If you look at the counts, this case will not implicate the Parratt/Zinermon line that we discussed. The plaintiffs are not trying to use federal court to avoid state court; they are arguing that the state procedures used are constitutionally defective--that they do not provide the necessary notice and opportunity to be heard by an impartial decisionmaker.

Hmm, maybe I need to wear another Philadelphia tie.

Friday, September 12, 2014

Exclusive federal prosecution of police?

This piece discusses possible conflicts for the St. Louis County prosecutor in pursuing charges against Officer Wilson in the shooting death of Michael Brown. But the piece then goes one step further to argue that all prosecutions in police shootings should be handled by federal prosecutors, presumably (although the author does not say) under civil rights laws such as § 242. My comments on the proposal are here.

We have not spent much time talking about § 242 and its uses, although we might later in the semester. And you have a general sense of how § 242 gets used. So, thoughts on the proposal?

Thursday, September 11, 2014

For Next Thursday

Thursday audio. No class next Tuesday (thanks for reminding me). We have 125 minutes left to make-up. Commentaries on Rights are due at the beginning of class next Thursday. Also, please review the case assignments and come to me with any questions.

For time considerations, we skipped the discussion of Fitzgerald and concurrent statutory and constitutional claims; often times, the same conduct by the same actor(s) potentially violates both a statute and the Constitution, so the question is whether the statutory claim precludes the § 1983 claim. This commonly arises in the context of schools (as in Fitzgerald, between Title IX and the Fourteenth Amendment) and public employment (between the Fourteenth Amendment and the various federal anti-discrimination statutes (Title VII, Age Discrimination in Employment Act, Americans With Disabilities Act, Family and Medical Leave Act, etc.). Fitzgerald adopts a forgiving approach, looking at the scope and nature of competing rights between § 1983/the Constitution and the statute--who can be sued, what remedies are available, the applicable legal standards, etc. If there are differences between who and what the statute deals with and who and what the Constitution deals with, both claims can be brought together. In the employment context, circuits are unanimous that public-employee plaintiffs can bring both Title VII and Equal Protection claims, but all-but-unanimous that they can only bring statutory claims for age discrimination (although all those cases were decided before the Court changed the standard in Fitzgerald. Last term, the Court granted cert. in Levin purportedly to address the ADEA, but dismissed the writ as improvidently granted because of jurisdictional concerns. The problem is that courts often confuse using § 1983 to enforce the ADEA (which has its own statutory enforcement scheme) and using § 1983 to enforce the Constitution against conduct that also violates the ADEA. It is important to keep those straight.

OK, on Thursday, we will continue with Federal Officials, focusing on what has happened since Bivens. What is the analysis of whether a Bivens claim will be available? Given what the Supreme Court has done in Bivens cases since Bivens itself, what should we conclude about the general availability of such claims. When will special factors counsel hesitation? What alternative remedies are adequate?

Then, move on to Individual Immunities, beginning with Overview and Legislative Immunity. Think about the purposes of immunity (generally and legislative immunity in particular) and how the purposes of immunity interact with the purposes of the KKK Act of 1871. Sara and Franco are panelists for this section.

Tuesday, September 9, 2014

Case Assignments

Here. There are eight cases. Everyone is assigned one case as justice and one case as counsel. You can write your opinion on any other case. Refer to the Course Evaluation Information sheet at right for more details on the opinion.

Note that there is one case on the list for both this class and Federal Courts. If you are taking both classes, you only may write about the case for one of them.

For Thursday

Tuesday audio. Remember no class next Tuesday, September 16. That leaves us with 150 minutes (two classes) to make up; we will cover it by going 20 minutes over for eight Thursdays, beginning this Thursday.

We will continue with Procedural Due Process. Again, be ready to talk about the competing lines of cases, from Parratt and Hudson on one hand and Zinermon on the other; why the different result in Zinermon. Note the Puzzle to discuss. Then read Fitzgerald for the discussion of constitutional claims.

Finally, we will begin Actions Against Federal Officials; note the statutes to read, as well as the three cases. Bivens lays out the basic idea, then Wilkie and Minecci bring us to the current approach to these problems. Consider the benefits and drawbacks to the Bivens analysis. Ali and Amanda will be on panel for this.

One more thing: Reports are that a § 1983 action is in the works against Ferguson and Ferguson officers, apparently by protesters who were tear-gassed or otherwise subject to force by police; likely claims are Fourth Amendment excessive force and/or First Amendment speech and assembly claims. Keep an eye on news reports on this over the next few weeks.

Monday, September 8, 2014

South Florida Public Function Case

The link below describes a case that I helped prepare against Armor Correctional Health Services and the Broward County Sheriff’s Office.  We are arguing that Armor Correctional Health Services acts under color of state law because it is serving a public function by providing medical care.

http://articles.sun-sentinel.com/2014-07-13/news/fl-jail-starvation-20140713_1_ill-inmate-broward-jail-jail-medical-records

Briggs Update

Norristown settled with Briggs today for $495,000. Norristown also repealed its nuisance ordinance and promised not to pass another law like it that would punish individuals for seeking emergency assistance. In addition to Briggs' suit, the U.S. Department of Housing and Urban Development (HUD) filed a Fair Housing Complaint against Norristown that is still pending. Like Briggs' complaint, HUD argues that the nuisance ordinance discriminates against domestic violence survivors, who are most often women. It is encouraging that Norristown settled with Briggs and repealed the ordinance, but I would have liked to see the court handle the alleged violation of the Fourteenth Amendment Equal Protection Clause. I am interested to see how the HUD complaint plays out.



Thursday, September 4, 2014

For Tuesday

Thursday audio. And congratulations to Amanda for a correct answer on the tie.

If you are writing about Under Color, your commentary is due at the beginning of class on Tuesday. I will distribute the case list and oral argument assignments next week. Finally, I do want the Blog used as a forum for general out-of-class/in-the-news discussion, beyond just your assigned commentaries. So please be on the lookout for things to post about throughout the semester.

On Tuesday, we will continue our discussion of Enforcing the Fourteenth Amendment and Due Process. What does DeShaney standpoint and how do plaintiffs and courts try to work around it? Review the Complaint in Briggs (Blog). We then will move to Procedural Due Process; try to understand the analysis of P/D/P and the two competing lines of due process cases and whether they can be reconciled. We then will finish with Concurrent Legislation, with a discussion of the constitutional portion of Barnstable.

Do not move on to Claims Against Federal Officials for Tuesday. We will get to that next Thursday, but the rest of Enforcing will take at least all of Tuesday and probably some of Thursday, as well.


Tuesday, September 2, 2014

For Thursday

Tuesday audio.

We will continue with § 1983 "and laws" claims. How did Gonzaga cut-off the path that Justice Stevens suggested in his Alexander dissent? How does the analysis for implied rights depart from the analysis for § 1983 "and laws"? If not private enforcement, how else will these statutes be enforced?

We then turn to Enforcing the Fourteenth Amendment, so read that entire section. Our initial focus for Thursday will be on Substantive Due Process, particularly Chavez and Okin and the doctrine of DeShaney. In addition, review the complaint in Briggs v. Norristown (on the Blog) and think about how the plaintiff tries to plead the due process claim and whether she succeeds.

Monday, September 1, 2014

Peonage

If you recall, one way to limit the rights of freedmen and Blacks after the Civil War and into the early Twentieth Century was through "peonage"--Blacks were forced to work the land for a plantation owner, either to pay off unfairly imposed debt or as punishment for a criminal conviction. Here is as short description, along with an affidavit of a man forced into peonage labor.

Thursday, August 28, 2014

For Tuesday

Thursday audio.

We will finish Under Color, with the garnishment/attachment cases. Where is the state action in the ordinary garnishment? Was Lugar correctly decided? If any of the panelists wants to write on this, the commentary will be due on Tuesday September 9.

We then begin Rights, Privileges, and Immunities: Enforcing Federal Statutes. See the jurisdictional issues, as well as the confusion over the Supremacy Clause, as discussed in Thiboutot. What is the connection between the implied rights analysis and the § 1983 "and laws" analysis? Panelists are Ali, Megan, and Amanda.

Tuesday, August 26, 2014

For Thursday

Tuesday audio.

On Thursday, we will finish or just about finish "Under Color." Be ready to discuss the five tests/approaches to under color, as well as the garnishment/attachment issues discussed in § 2.05. Note the Puzzle in § 2.04[6], the next step in the Yankee Stadium lawsuit.

Since we might make it that far, please begin Rights, Privileges, and Immunities: Enforcing Federal Statutes. Just for Thursday, read the assigned statutes, Thiboutot, and Understanding §§ 2.11-2.14; we will focus on the preliminary jurisdictional issues involved in Thiboutot and efforts to enforce statutes through § 1983.

Again, starting Thursday, it will be up to you to figure out the ties.

Thursday, August 21, 2014

For Tuesday

Thursday audio. Excellent job today (of course, now the pressure is on to keep it going :-)).

We will begin class with the Under Color Puzzles from § 2.03[4]. In addition, be ready to discuss the following. X, a corrections officer, returns home from work to find her daughter and B, the daughter's boyfriend, in the girl's bedroom. X, still in uniform, punches B, points her service weapon at him, threatens to file trespassing charges against him, and to file a false report because "they'll believe whatever I say." Can B show that X acted under color of state law? We then will continue with the rest of the assigned materials on Under Color, turning to situations in which a nominally private actor may act under color and thus be subject to constitutional liability.

Wednesday, August 20, 2014

Some Ferguson lawsuits

This one challenges a police policy (not sure what department--County, City, or State Police, all of whom are on the scene) of ordering people to stop recording events on the street. According to this report, the ACLU and the government reached an agreement regarding the right to record. This one challenges a policy prohibiting people from standing in one place for more than five seconds (according to one report, 75 people were arrested Monday evening/Tuesday morning for failing to disperse).

You can see the basic structure that the complaints follow, in terms of facts, parties, claims, and remedies sought. Keep these in mind as we proceed; we will be coming back to them.

Tuesday, August 19, 2014

Panel Assignments

Under Color:
Franco Bacigalupo
Sara Gordils
Megan Gil
Anthony Halmon

Rights, Privileges, Immunities:
Ali Boren
Megan Gil
Amanda Torres

Claims Against Federal Officials:
Amanda Torres
Ali Boren

Legislative Immunity:
Sara Gordils
Franco Bacigalupo

Judicial and Prosecutorial Immunity:
Ali Boren
Anthony Halmon

Qualified Immunity:
Franco Bacigalupo
Megan Gil

Municipal/Supervisory Liability:
Jeremy Thompson
Sara Gordils

State Sovereign Immunity:
Ali Boren
Jeremy Thompson

Procedural Issues:
Amanda Torres
Anthony Halmon

Abstention:
Franco Bacigalupo
Megan Gil
Sara Gordils

Damages/Attorneys' Fees:
Amanda Torres
Jeremy Thompson

Injunctive ReliefL
Jeremy Thompson
Anthony Halmon

For Thursday

Tuesday audio. This was a good start to the semester.

On Thursday, we will spend a few minutes at the start of class talking about the Syllabus and assignments for the semester.

We then begin with "Under Color of Law" and State Action. For Thursday, we will discuss Monroe v. Pape, the case that revitalized § 1 of the KKK Act, and Understanding §§ 2.01-2.03, which includes the Puzzles in § 2.03[4]. Panelists are Sara, Megan, Franco, and Anthony.

I will list the complete panel assignments in a second post.

And again, keep an eye on events in Ferguson over the next few days, especially as you read and start to understand these materials.

Timeliness of this course

You never know when events are going to make a class especially timely--and thus make this blog especially useful as a supplement to class. But here we are, with the tragic events in Ferguson, MO. Much litigation will follow once this all ends, a lot of it involving laws and issues that we are going to be talking about.

Here's an example to start: This article in Slate about the power of the Department of Justice to use civil litigation and injunctions to reform local law enforcement. The law in question, 42 U.S.C. § 14141, is on the syllabus at several points. It also raises an issue we will talk about today--when should the federal government lead enforcement efforts and when should private litigation?