Monday, January 23, 2017

For Wednesday

Monday audio. I need a volunteer to serve as judge on an additional case during arguments.

Commentaries on Under Color due at the beginning of class next Monday.

We continue Rights, Privileges, and Immunities: Enforcing Federal Statutes. What are the possible bases for federal jurisdiction over § 1983 actions? What does "and laws" mean and what is necessary to enforce a statute through § 1983? How does the § 1983 contrast with the implied private right analysis? For Armstrong, read only the Intro, Part I, and Part IV of the majority opinion (we will come back to the rest later in the semester).

We then move to RPI: Enforcing the Fourteenth Amendment. For now, read only Daniels, Davidson, and Hudson, along with the Understanding reading. On Wednesday,  we will hit the basic introduction of what constitutional rights are enforceable and the basic elements; next week, we will get more in-depth on the details of various rights.

Saturday, January 21, 2017

Cases for Opinions and Arguments

Order of the Supreme Court of the United States granting certiorari.

Note that the final case only has one advocate and one judge assigned. Since we have an odd number of people, I need someone to volunteer to judge an extra case. Let me know following class on Monday if you are willing to do so.

The order includes the citation for the lower-court opinion under review. The case numbers are made up.

The case you pick for your opinion must be a third case, different from the cases you are assigned to judge and argue. Two cases (City of Milwaukee and Vreeken) have separate issues and are treated as separate cases for the arguments. If you were assigned to judge or argue one issue in these cases, you may not write your opinion on the other issue.

Wednesday, January 18, 2017

Is Miss Wormwood acting "under color?"

I just came across this strip and thought it seemed appropriate for our class. I think Calvin would argue that his teacher's actions fell within the language of Section 1983. Would it make a difference if Miss Wormwood were a substitute teacher as opposed to a full-time salaried employee?

For Monday

Wednesday audio.

We continue with Under Color, continuing with Close Nexus and Entwinement. Why did Moose Lodge find close nexus satisfied? If Tarkanian cannot challenge NCAA regs by suing the NCAA as a private actor, what can he do? How is entwinement different than the other tests we look at? Why is Lugar an outlier? Was the Court correct? Prepare the remaining Puzzle on Under Color, considering all possible tests.

We then will move on to Rights, Privileges, and Immunities: Enforcing Federal Statutes, which we will hit towards the end class. For Monday focus mainly on the jurisdictional issues (§§ 1331 and 1343(a)(3), as discussed in §§ 2.11-2.13 of Understanding. Panel II should be ready, sitting in the back row on the side.

Friday, January 13, 2017

Chicago Police Department

On Wednesday we discussed how police officers have the unique ability to use deadly physical force as part of their job duties, which can undoubtedly trigger a huge imbalance of power. But what comes to mind after reading this announcement (link included below) is simply that "justice delayed, is justice denied."

Thursday, January 12, 2017

Government-initiated injunctions

This is something we are going to discuss at the end of the semester, but I wanted to flag it for you now. The United States has entered into a consent decree with the Baltimore Police Department (formally, an injunction, the terms of which the parties negotiated and the court approved), requiring changes in department practices on all manner of issues. The United States brought a civil action against the department pursuant to 42 U.S.C. § 14141, which allows DOJ to sue state and local law-enforcement agencies to stop patterns of unconstitutional conduct. Section 14141 is a new weapon (it was enacted in 1996), an alternative to criminal prosecution under § 242 and civil litigation under § 1983.

The Obama Justice Department used § 14141 extensively; this is one of several similar consent decrees the Department has entered into. One thing to watch is how the Trump/Sessions DOJ uses this provision.

Again, we will talk about this in our Remedies discussion, toward the end of the semester. For now, have a look at the (lengthy) document.

Wednesday, January 11, 2017

Panels (Final)

Here is the revised info on the Panels. Everyone is on three panels and can write Commentaries on any two of those topics.

Panel I:
Brenda Bretas
Christian Cantos
Alexis Hanson
Cori Varsallone

Panel II:
Shannon Crosby
Gabriella Del Castillo
Simone Graff
Tucker Pryor

Panel III:
Tal Knight
Amber Plugge
Melanie Velazuez
Jonathan Weiner

Under Color: Panel I
Rights, Privileges, and Immunities: Panel II
Claims against Federal Officials: Panel III
Individual Immunity: Panel I
Municipal/Supervisory Liability: Panel II
Eleventh Amendment/State Sovereign Immunity: Panel III
Procedure: Panel I
Abstention: Panel II
Remedies: Panel III 

For Wednesday

Wednesday audio. Remember, no class on Wednesday.

We continue with Under Color. Why did the Court reach the outcome it did in Polk County and why is that result different than West? What is the connection between a state actor and someone acting under color of law? Review and understand the various tests for when a private person or entity is under color? Why keep these tests strict and narrow? Be ready with the second set of Puzzles.

Monday, January 9, 2017

For Wednesday

Monday audio. That was a good start to the semester; I like how engaged everyone was.

We resume our discussion of State Action/Under Color, with Panel I (Brenda, Cori, Christian, and Alexis). We turn to the broader conception of under color reflected in Screws, Classic, and Monroe. What is the argument against these defendants acting under color? What standard did the Court come up with and why adopt that broad an understanding of under color? How does it relate to the purposes of the KKK Act and how does this standard better serve those purposes? What facts should courts look for in establishing under color? Prepare the Puzzles in § 2.03[4]--be ready to argue for and against the defendants being under color, considering also what additional facts you might need.

Next consider, the difference between state action and a person acting under color of law in Polk County and West. What is the difference? How can we reconcile West and Polk County?

Friday, January 6, 2017

Wednesday, November 30, 2016

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 3-4 students who are "on call" for each subject

Given the size of the class, we will work with two panels of four students, who will rotate subjects. The number and size of the panels, as well as the organization of topics, may change if class enrollment increases. We will know more on January 9.

For now, the panels are as follows:

Panel I:
Brenda Bretas
Cori Varsallone
Christian Cantos
Alexis Hanson

Panel II:
Shannon Crosby
Simone Graff
Gabriella Del Castillo
Amber Plugge
Tucker Pryor


Under Color of Law/State Action: Panel I (be prepared to be on in the last part of the first class)
Rights, Privileges, and Immunities: Panel II
Claims Against Federal Officials: Panel I
Immunity: Panel II
Municipal/State/Supervisory Liability: Panel I
Procedure: Panel II
Abstention: Panel I
Remedies: Panel II

Course Materials and First Week Assignments

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 16 for Martin Luther King Day 

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.

Panels: Details in the syllabus and the prior post. Panel I will be up when we begin discussing Elements of a Claim in the last third of the first class.

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 9:

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 (first part)
      42 U.S.C. § 1983
      18 U.S.C. § 242
      Monroe v. Pape, 365 U.S. 167 (1961) (do not read Part III of Majority)
   Commentary: Understanding §§ 2.02, 2.03[1], 2.03 [2]