Thursday, November 20, 2014

University of Louisville student's injury after an unlawful arrest

“To take somebody and put them in a jail cell for a crime that they didn't commit, I mean, it was hard,” she said. “Not a day goes by that I don't think about it or stress about it. It's like, every question I had about it is going unanswered. I don't how I was picked out. I don't know anything. I always wonder why.” Tiffany Washington

Tiffany Washington is a friend of mine who I know from studying at the University of Louisville. She was wrongly accused of a crime that she did not commit.  Unlike several other people who I know have been wrongly accused, Tiffany has been able to overcome the constitutional hurdles that most civil rights plaintiffs face.  Studying civil rights prompted me to contact Tiffany to ask her about her lawsuit.  Our conversation ended with her smiling and telling me that the parties are in settlement talks.  Judging from Tiffany's expression, she will receive a remedy that satisfies her.  Please see the link below to see the story.

Tuesday, November 18, 2014

Oral Arguments

Here is the Schedule of Oral Arguments.

Here is the Standing Order on Oral Arguments.

Review both in preparation for oral arguments on Tuesday, December 16.

This link contains the arguments from my Civil Rights class from fall 2013. Finally, this page on has a list of cases from the last SCOTUS term; by clicking on a case, you can access the audio. I suggest watching last year's class arguments and listening to some real cases to hear what both litigants and justices should sound like in these arguments.

For Thursday

We will finish the semester with Remedies; read Introduction, Damages, and Attorney's Fees. Think about the concept we discussed earlier of the "private attorney general" and how that relates to both of these remedies. When is a party a "prevailing party"?

We will go about 15 minutes over, which brings us to even.

Papers are due on Tuesday, November 25 by 10:45 a.m. You should email them to my assistant, Veronica Torres, at:

Finally, I am sorry that we were not able to get to the Kansas SSM case. But everyone should feel free to chime in here on the procedural and jurisdictional issues that the court addressed.

Monday, November 17, 2014

Procedure Commentaries

Here and Here.

Make sure you have spoken with your opposing counsel and co-justice to decide who is playing what role.

Sunday, November 16, 2014

Evolving nature of qualified immunity

This is why you always watch for news cases, especially from SCOTUS--you never know how it may affect what you are currently studying. Carroll v. Carman involves the power of a police officer to invoke the "knock-and-talk" exception to the warrant requirement to apply to any door or entryway to the home. The Court summarily reversed the Third Circuit and held that the right was not clearly established.

The lower court had relied on a single circuit precedent, which was in conflict with decisions from other circuits and state courts. SCOTUS began the analysis by "assuming for the sake of argument that a controlling circuit precedent could constitute clearly established federal law." This could have several implications. It might mean that, absent SCOTUS precedent, it may take multiple circuit decisions to clearly establish. It also might mean that law cannot be clearly established if controlling precedent in one place conflicts with persuasive precedent from other places.

Keep an eye out. The "clearly established" analysis is an ever-moving target.

Friday, November 14, 2014

West v. Davis: No Phones Allowed

My internship last summer was in Atlanta, just a block away from the Eleventh Circuit Court of Appeals. I was lucky enough to be able to listen to oral arguments for a few cases and I just randomly stumbled upon the decision for one of them today. I did not recognize that it was a § 1983 action at the time (Professor Wasserman had not yet enlightened me), but it is interesting to look back at the case through a new lens. The case was about an attorney who had some... trouble with the deputy sheriff in a courthouse. On entry to the courthouse, Davis, the deputy sheriff/respondent, repeatedly asked West, the attorney/petitioner, to remove her jacket as part of security procedures. West refused, repeatedly asked to speak to Davis' supervisor, and eventually Davis did call his supervisor. As she was waiting, West called her husband and then her client, to tell them she was being held up. Davis told her to get off the phone, then grabbed West's wrist, squeezed it, and moved it back and forth, and yanked away her phone and put it into her purse. There were no visible signs stating that phones were not allowed. The attorney claimed a violation of her Fourth Amendment rights, along with state tort claims for battery and negligence. The bulk of the oral arguments was about whether an actual seizure took place and whether to use the objective reasonable test of the Fourth Amendment or the substantive due process/shock the conscience test. The Court gave an exhaustive number of hypos about how long the physical restraint needed to be for it to be considered a seizure. The Court reversed and remanded the lower court's granting of summary judgment in favor of Davis on the § 1983 action, and it affirmed the granting of summary judgment in favor of Davis on the state law claims because Davis' qualified immunity. The dissent finds Davis’ actions reasonable because of the great importance of courthouse security. The case overall is interesting and worth taking a look at.

**At the end of her time, Davis' attorney, Ms. Huber, thanked the Court and said that it was the most fun she has had since law school. One of the Justices said that she must have done law school wrong. 

West v. Davis.

Thursday, November 13, 2014

For Tuesday

We will continue with Astention, finishing our discussion of Younger. Prepare all the Puzzles in Understanding. Then read Rooker-Feldman. What is the distinction between Younger and RF? Finally, look at the abstention discussion in the Kansas SSM decision, which we will use to review the four doctrines we discussed.

No new reading. We will cover Damages and Attorney's Fees on Thursday.

Another marriage equality decision

It's a week old, but here is last week's decision by a district court enjoining Kansas's SSM ban; it covers a lot of stuff we have gone over, including Ex Parte Young, Pullman, and § 2283, as well as stuff we are going to do in the final three class (namely, Younger). Note one interesting discussion. One of the defendants is the clerk of court, who is charged with issuing marriage licenses; the clerk argued that he fell within the exception clause in § 1983, as a judicial officer who cannot be enjoined without first obtaining declaratory relief; the court then did the analysis for whether he was acting in a judicial capacity, concluding that issuing the licenses is ministerial, not judicial. There also is a nice discussion of the connection between § 2283 and Younger, which we will cover today.

Wednesday, November 12, 2014

Sovereign Immunity Commentary


South Carolina ban on SSM

Have a look at this district court opinion invalidating South Carolina's ban on same-sex marriage. There is some good § 1983 stuff in the first half of the opinion--including 1) arguments over the Eleventh Amendment and the proper "responsible executive officer" in an Ex Parte Young action; 2) arguments about Younger and Rooker-Feldman, which we will get to in the final days of the semester.

Thursday, November 6, 2014

For Thursday

Great job today, in a long session that covered a lot of ground. Procedure Commentaries are due next Thursday. No class on Tuesday, which means we have three meetings left (next Thursday, Tuesday, November 18, and Thursday, November 20--we will go 10 minutes over for that one).

Read both sections of Younger Abstention, which will be our focus next week. What is going on in Younger? What is the point of Mitchum, decided in 1972, one year after Younger? When does/should Younger abstention be warranted? When will the court not abstain?

Wednesday, November 5, 2014

Section 1988 and SOL

Lakenya died in the county jail in Louisville, KY because of Corizon, Inc. f/k/a Correctional Medical Services' negligence.   Her counsel's medical expert did not see any signs of negligence on the part of Corizon, Inc.  After Kentucky's wrongful death statute of limitation's had expired, Metro Louisville conducted an independent investigation of its county jail.  The results showed that Corizon, Inc. had acted grossly negligent in treating inmates.

After the independent investigation had been released, I was responsible for researching Kentucky's SOL laws for wrongful death.  The research for this case is where I first discovered Section 1988.  Section 1988 requires federal courts to use state law as "gap-filler" where the underlying substantive and procedural matters is otherwise silent.  In Kentucky, the SOL for wrongful death is two years after the appointment of the administratrix or two years after the date of death if no administratrix is appointed within one year of the date of death.

Here, if Ms. Porter would have brought a successful Section 1983 claim for wrongful death, she would have had to file the claim within two years of her administratrix appointment because her administrator was appointed within the first year of her death.

Tuesday, November 4, 2014

For Thursday

Thursday is our double session. And remember we have no class next Tuesday.

We will pick-up with the question in Allen of whether § 1983 is an exception to the Full Faith and Credit Act and how preclusion works in § 1983 actions. We then turn to Wallace, which brings together issues of limitations, Heck, and preclusion in one big pile.

We then begin Abstention. Read Introduction, Pullman, and Statutory Abstention. A fair bit, I know, but I am hoping to cover a lot of ground.

Remember, by the way, that everyone is required to write on two subjects and we are kind of winding down to the end of the semester. FYI, here is what I have:

8099: 1 paper
8219: 1 paper
8316: 2 papers
8763: 1 paper
8792: 1 paper

Thursday, October 30, 2014

For Tuesday

Sovereign Immunity commentaries due at the beginning of class on Tuesday.

We will continue with Procedure, moving on to Exhaustion, with a special focus on Heck and its progeny and the connection between Habeas Corpus and § 1983. Prepare the remaining parts (Exhaustion, Red Judicata, and Statutes of Limitations); I expect to cover a chunk of that on Tuesday and the rest in our first hour on Thursday. I expect we will begin Abstention in the second hour on Thursday.

Wednesday, October 29, 2014

Complaint: Crafted Keg LLC v. Ken Lawson

I found the compliant HERE.

I was incorrect on the constitutional grounds, Crafted Keg has plead violations under the Fourteenth Amendment Due Process and Equal Protection clauses.

Constitutional Right to Beer

A civil rights lawsuit was filed yesterday on behalf of The Crafted Keg (a Florida Brewery) against Ken Lawson, the Secretary of the Florida Department of Business and Professional Regulation regarding Florida's 'Growler' ban. 

The Compliant alleges that Florida is violating the United States Constitution by arbitrarily banning restaurants, taverns, and breweries from selling or filling the most popular portable jug for craft beers -- the half-gallon (64-ounce) growler.

Full Story Here

"More specifically, “growlers” are jugs of beer patrons buy at craft beer establishments and then bring back, or carry to other taverns, breweries, or restaurants, for refills with different kinds of custom brewed beer.  Florida’s growler restrictions, Fla. Statute Section 563.06(6), allow this practice when it comes to gallon‑ or quart‑sized beer jugs.  But the most popular size -- the half-gallon growler -- is prohibited.  It cannot be sold or filled by any business in the state."

I have not been able to find the compliant that was filed but I will keep a look out. However, I imagine that the remedy sought would be for an injunction or declaratory relief that the law is unconstitutional and therefore unenforceable giving the Brewery prospective relief of the future sale of growlers in whatever size they please. I also imagine it is an action for the deprivation of the the brewery's right to contract under the contract clause.

Also note who is being sued, Secretary of Business and Professional Regulation, an arm of the executive and the sovereign.  

Tuesday, October 28, 2014

Supervisory Liability and Sovereign Immunity

To save time, I am going to skip our discussion of this section with a short blog post. The basic foundation is in McMillian and it is synthesized, brilliantly (of course), in Understanding.

As we discussed in class, once you identify a policymaker who is (or may be, at the pleading stage) personally liable (whether via direct or supervisory liability), you can get entity liability, provided the entity is subject to suit. Because a state is not a person for § 1983 purposes, you often must figure out whether the policymaker you've identified is a municipal/county policymaker (in which case the entity can be sued) or is a state policymaker (in which the entity cannot be sued). As McMilllian and the book explain, this is a question of state law and how the state chooses to organize itself and its municipalities.

The courts consider a number of factors, most prominently: 1) How the state defines the function and office; 2) The degree of state control over the office (or, state differently, how much autonomy the office has from the state); 3) who controls selection and/or removal (a key point of the discussion in McMillian); and 4) source of funding for the office and for any judgment. The last two are key, especially the last one, given the primacy of control over the pocketbook to sovereign immunity. The last thing to note is that it may be highly fact-intensive and that someone may be a state policymaker for some purposes and a local policymaker for other purposes. In addition, it will vary from state to state--Pennsylvania defines District Attorneys as state officials for purposes of prosecuting crime does not control what New Jersey does (although there tends to be some consistency across states).

For Thursday

Tuesday audio. Sovereign Immunity commentaries are due at the beginning of class next Tuesday. We will go 15 minutes over this Thursday, which will bring us back to even. We will do our double session next Thursday, November 6. And the final class will be on Thursday, November 20.

We will have one clean-up discussion on Sovereign Immunity. What are the Eleventh Amendment issues in Tyler? What mistakes did the plaintiffs and the court make?

We then move to Procedural Issues, with both Jurisdiction and the beginning of Exhaustion/Litigation Vehicle. Look at the complaints in Daniel, Briggs, and White (the Ferguson lawsuit, which is several posts back); note the structure, jurisdiction, remedies, etc. Read Heck closely, as it is the watershed case on the line between Habeas and § 1983.

Saturday, October 25, 2014

Supreme Court goes to the dogs

John Oliver (of HBO) explains here.

And below is the entire oral argument in last term's Hobby Lobby case.

So, in preparation for our oral arguments: You must decide what kind of dog you are.

Friday, October 24, 2014

More Eleventh Amendment

Not a civil rights case, but it illustrate what we have been talking about.
This lawsuit, filed today, alleges that the NCAA violates the Fair Labor Standards Act by not paying student-athletes (who, it alleges, are akin to work-study students). Named defendants are the NCAA and every Division I school, (including FIU); the suit seeks unpaid wages and an injunction requiring student-athletes to be paid going forward. The FLSA is a Commerce Clause enactment.

Any problems jump out at you?