Wednesday, March 22, 2017

Municipal Liability Commentaries

Here, here, here, and here.

For Monday

Wednesday audio. Sovereign Immunity Commentaries due next Wednesday.
We start where we left off--what issues that we have discussed in this class are immediately reviewable and Cohen and why do they satisfy that 3-part test? When are "winner's" appeals permissible in the qualified immunity context and why? How do the reasons offered in Camreta link back to the discussion of merits first in Pearson?

Then read Procedure--Exhaustion and Res Judicata. Understand the process for habeas corpus and how it overlaps and differs from § 1983 and how that explains Heck and its progeny.

Tuesday, March 21, 2017

New § 1983 case

SCOTUS today decided Manuel v. City of Joliet, holding that an individual can challenge pre-trial detention through the Fourth Amendment, before or after a judicial finding of probable cause. This was rather than having to rely on substantive due process/outrageous executive misconduct/shocks-the-conscience. Although the focus is on the meaning of the substantive Fourth Amendment, there is some nice discussion of the role that common law plays in understanding § 1983.

There also is a brief discussion, mostly to give guidance to the lower court on remand, about when claims accrue. We will come back to this when we discuss Wallace v. Kato next week.

Monday, March 20, 2017

For Wednesday

Monday audio.

We will finish Sovereign Immunity. How does the Edelman Court address the problem that all injunctions cost money and the money comes out of the state treasury? How did the Court apply that in Quern? How would it apply to the reinstatement claim in Lane v. Franks? What if the plaintiff in Lane sought front pay in lieu of reinstatement? What are the Eleventh Amendment problems with the complaint in Tyler?

We then turn briefly (same panel) to the second part of Supervisory Liability, looking at § 4.15 and  McMillian.

We then move to Procedural Issues: Jurisdiction, Motions, and Appeals. Panel I is back on.

Sunday, March 19, 2017

Recent Qualified Immunity Decisions

For a recent taste of how much trouble plaintiffs are having getting past qualified immunity, consider Young v. Borders from the 11th Circuit (denying rehearing en banc in case where police officer shot a homeowner) and Maney v. Garrison from the 4th Circuit (officer allowed police dog to maul individual on street who was not otherwise a threat). In both, we see the court of appeals parsing precedent to identify distinctions with the current facts and narrowly defining the right to not be obvious.

Do not be surprised if SCOTUS takes a closer look at one of these, as it did in Tolan v. Cotton. Keep an eye out.

Wednesday, March 8, 2017

For Monday after break

Wednesday audio. Municipal Liability Commentaries due at beginning of class.

Please meet before the end of the month with you co-Justice to decide who will be Chief and with your opposing counsel to decide who will argue for Petitioner and who for Respondent.

We continue with State Sovereign Immunity I and II. Consider: How does the congruence and proportionality analysis apply to § 1983? Can states be sued under § 1983? If not, how are constitutional rights enforced against states? In light of Ex Parte Young, what does it mean to say "The King Can Do No Wrong"? What are the contours and limits of Ex Parte Young? How did Congress react to Young and why do those reactions make sense?

Monday, March 6, 2017

Immunity Commentaries

Here, here, and here.

Have at it.

For Wednesday

Monday audio. Municipal Liabiltity/Supervisory Liability Commentaries due on Monday, March 20 (first day back from break).

We continue with State Sovereign Immunity I. What are the possible meanings/interpretations of the 11th Amendment? What does it mean for Congress to abrogate immunity, what is the standard, and when can Congress abrogate (or not) according to its different powers. Can states be sued under § 1983? If not, why not?

Friday, March 3, 2017

Civil Rights in the News

Too bad these are not set-up for use in oral arguments--maybe next year:

1) Is Jeff Sessions allegedly false committee testimony about speaking with the Russian ambassador protected from prosecution by Speech or Debate (the post links to other discussions, which link to more discussion). "Legislative functions" go beyond speaking. But is all speech in the chamber necessarily legislative?

2) The Second Circuit heard arguments over whether the Religious Freedom Restoration Act allows for damages against federal officers, either through Bivens or through a private right of action in the statute.

Wednesday, March 1, 2017

For Monday

Wednesday audio.

We continue with Municipal Liability. What was the claim the plaintiff in Brown tried to make and why did it not work? Note the different attitudes between the Connick and Brown majorities and dissents--what does each regard as the paradigm § 1983 action and how does it affect their respective views of who should be the target defendant? Why doesn't qualified immunity protect municipalities? Prepare Muni Puzzles.

Look at the first part of supervisory liability (Understanding § 4.14, Iqbal (only the discussion of supervisory liability), and Dodd). What is the connection between municipal and supervisory liability? How did Iqbal alter (or not) the availability of supervisory liability.

We then turn to State Sovereign Immunity I, which looks at the liability of state entities. Where does sovereign immunity come from? What are the competing views of the meaning of the 11th Amendment? What is the purpose of sovereign immunity? What does the expression "The king can do no wrong" mean?

Sessions DOJ and § 14141

This article discusses a press conference with new Attorney General Jeff Sessions. Midway through, he talks about "pull[ing] back" on the use of § 14141 actions and consent decrees against local police departments, suggesting that such actions and judgments undermine respect for police and make it more difficult for them to do their jobs. This includes having to decide whether to move forward with a consent decree against Chicago, following an extensive investigation (by the prior department) identifying systemic misconduct and abuse within the police department.

More than anything symbolic on the White House web site, this is the first concrete change in civil-rights enforcement priorities. Note two things, however. First, such ebb-and-flow is a normal aspect of changes in administration--the Obama DOJ used § 14141 much more aggressively than did the Bush DOJ and it is not surprising that the Trump DOJ's priorities would look more like the latter's than the former's (§ 14141 was enacted in 1996, so Clinton did not have an opportunity to do much with it). Second, events on the ground often can overwhelm policy preferences. If there are enough incidents of police-involved violence, especially if captured on widely disseminated video, it may produce public pressure on the department.

Monday, February 27, 2017

5th Circuit on filiming--stranger than Tucker suggested

Everyone should have a look at the Fifth Circuit decision Tucker highlighted, Tucker v. Driver. Because it shows a different, and arguably incorrect, approach to the two-step qualified immunity analysis. Note what the majority does. First, it concludes that the right to record police and police stations was not clearly established at the time. It then "determine[s] for the future" that there is a First Amendment right to record in public, although without concluding that the officers in this case actually violated that right. So unlike the typical merits-first approach, which sort-of looks like an advisory opinion, this is a full-on advisory opinion--legal analysis entirely divorced from the facts of the case.

For Wednesday

Monday audio. Immunity Commentaries due next Monday.

What was the second part of Monell's interpretation of municipal liability and why? What is the argument (later offered in dissent in Bryan County) that the Court's interpretation with respect to respondeat superior is wrong? What are the four ways to establish municipal liability and what is the necessary showing for the plaintiff as to each? Be sure to prepare the Puzzles in this section.

Go on the Supervisory Liability, but only read Iqbal, Dodds, and § 4.14 in Understanding. We are going to split that section up a bit. We will save McMillian and § 4.15 for later.

Sunday, February 26, 2017

Fifth Circuit decision on filming police (Updated)

https://arstechnica.com/tech-policy/2017/02/divided-federal-appeals-court-rules-you-have-the-right-to-film-the-police/

This is pretty interesting considering this is exactly what we are learning right now. A man was arrested for filming police outside of a police station in Fort Worth, Texas.

After being briefly detained he was let go. The man sued claiming violations of both his First and Fourth Amendment rights. The Fifth Circuit upheld immunity for the officers but in their ruling established that an individual has a First Amendment right to film the police but it won't be applied retroactively because the court held that the officers did not act unreasonably. At least within the Fifth Circuit, this is now a clearly established right.

It looks like the Fourth Amendment question is going back to the District Court.

Update: Here is the Fifth Circuit decision, which may be less convoluted than the article made it seem.

Thursday, February 23, 2017

Hernandez v. Mesa (Updated)

I recommend that you all read the argument transcript in Hernandez v. Mesa (the audio will be available tomorrow afternoon).

It turned out there was little discussion on qualified immunity, other than a couple of questions from the Chief and Justice Kennedy about whether qualified immunity can account for facts about the plaintiff (i.e., if case law shows that doing X violates the Constitution, does it matter that none of the case law involves a particular plaintiff or class of plaintiff). But there is a lot of discussion of Bivens,  some of which offers a nice review and illustration of of the open questions in the doctrine. In particular, pay attention to questions Justices Breyer and Kagan challenging the notion of Bivens "extensions" and arguing that we can read SCOTUS case law to mean "there is a Bivens action for the Fourth Amendment unless it is the military," suggesting a more-wholesale approach.

Updated: Here is the audio.

Also, note something else that came up in during oral argument. The question was asked whether a § 1983 action would lie if a cross-border shooting involved a local police officer. The consensus is that the answer was no, because of the statutory text, which prohibits subjecting or causing to be subjected "any citizen of the United States or other person within the jurisdiction thereof" to the deprivation. But then, in what may have been a throw-away line or a mistake, the plaintiff's lawyer suggested that a Bivens action could lie against the police officer. This is something of an open issue. On the one hand, the presence of a congressionally created cause of action is an alternative statutory scheme. On the other, people have argued that recently enacted limits on § 1983 can be overcome through a Bivens action to enforce the Fourteenth Amendment.

Wednesday, February 22, 2017

For Monday

Sorry for having to break class early like that. But we were not getting anywhere on a pretty significant point.

We continue with Qualified Immunity. Read Lane to see what, exactly the Court concluded and why. Then consider--what else might the plaintiff want as a remedy and how might that be affected by qualified immunity? Then go back to where we were--what does the Court say about the factual overlap between the current case and precedent? What is the problem with reliance on case law in this way? Prepare both the Puzzles and the Bogan case that I posted on Monday. Finally, police officers and other public officials are almost uniformly indemnified for any judgment against them; how should that affect the qualified immunity analysis?

We will start on Municipal Liability on Monday, so Panel II should be ready. How do the text and history of § 1983 explain both pieces of the holding in Monell? What makes someone a policymaker? Who are policymakers in our various cases?

Monday, February 20, 2017

For Wednesday

Monday audio.

We continue with Qualified Immunity. What is the standard for qualified immunity, what does each prong require, and how does it apply? How did it evolve to that standard? What can we conclude about qualified immunity from the recent SCOTUS summary reversals (White, Tyler, and Tolan)? What is the question over "order of battle" and how did the Court resolve it and why? In looking at that, what else do we want § 1983 cases to achieve in terms of the law?

In addition to the Puzzles assigned, consider this Complaint; accepting the allegations as true, can the defendant prevail on qualified immunity?


Friday, February 17, 2017

Federal Bar Association Programs

This is the flier for a series of programs sponsored by the FIU COL chapter of the Federal Association. The focus is on federal discovery, which is somewhat related to the subject of this class.

The next program is 5:30 p.m. on Tuesday, February 22, with three more to follow in March. I encourage everyone to attend, both to learn some things about discovery and as a networking opportunity.

Wednesday, February 15, 2017

Panel Assignments (Updated for remainder of semester)

Municipal/Supervisory Liability: Panel II
Eleventh Amendment: Panel III
Procedure: Panel I
Abstention: Panel III
Remedies: Panel II

RPI and Bivens Commentaries

RPI.

Bivens I, Bivens II, Bivens III.

Have at it.