Sunday, December 22, 2013

Oral Arguments

A good-looking court:

Go here to watch the arguments
   • Log-in on "Welcome Guest" (gives you a pull-down bar)
   • Click on Media
   • Click on Wasserman
   • Click on Civil Rights Arguments 2013
   • Files are labeled by case first name. Please ignore the horrific picture.

Thanks for a terrific semester.

Tuesday, December 10, 2013

New limits on Younger abstention

For those of you still checking in here: SCOTUS today narrowed the reach of Younger. The Court insisted that Younger applies only in three contexts: 1) criminal proceedings; 2) certain civil enforcement proceedings (where the state institutes efforts to sanction the federal plaintiff); and 3) pending civil proceedings involving orders that affect the state's ability to perform judicial functions. The Court further clarified that the three Middlesex factors are additional considerations if, and only if, the case involves one of those three proceedings.

In light of this narrowing, it is worth going back to consider whether the review puzzle (the challenge to the no-evictions order) or Tyler are properly subject to Younger abstention.

Tuesday, December 3, 2013

Monday, November 25, 2013

Friday, November 22, 2013

I saw this Miami Herald article today and wanted to share with the class.  It describes the obvious civil rights violations occuring in Miami Gardens.  Apparently, the Miami Gardens Police Department has arrested one citizen of Miami Gardens 62 times for trespassing at his own place of work.  The ACLU will probably be getting involved.  

Thursday, November 21, 2013

Argument Schedule


For Tuesday (sniff!, our final class)

We will finish with Attorney's Fees, starting with the dispute in Buckhannon about how the catalyst theory affects settlement and other non-litigation resolution. We also will discuss how fees are determined, generally and in nominal damages cases. We then will move on to Injunctive Relief, which will be more cabined than I might have liked. Fortunately, we already have covered a lot on injunctive and declaratory relief, including the basic standards and processes and the differences between injunctions and D/Js. Pay particular attention to the discussion of structural reform litigation and FRCP 60(b) and Agostini.

Papers are due at the beginning of class on Tuesday; don't be late.

By the way, no one commented on today's tie, which is called "Legal Eagles."

RE: SCOTUS refuses to lift stay in Texas abortion case

It is hardly surprising that Justice Scalia leads Justices Alito and Thomas in denying Planned Parenthood's application to vacate the Fifth Circuit's stay in the controversial Texas abortion case.

After all, Justice Scalia was President Reagan's star appointment to the Supreme Court. See Reagan famously and openly prioritized a pro-life political agenda.

Nevertheless, Justice Scalia's application of the four Nken factors provide sound legal justification for what seems a mainly ideologically motivated opinion. In the interest of preserving federalism, specifically, respect for lower courts and separation of the legislative and judicial functions, the Supreme Court should not vacate a stay unless the circumstances are warranted. This notion is wholly reasonable.

The four factors however, seem pretty dubious as they require a fair amount of prediction. For example, the first factor, "whether the State has made a strong showing it is likely to succeed on the merits", assumes that the initial case made by the State is sufficient to show that the respondents will not be able to convince the Court to rule in their favor instead. On a matter that is so significant to the public interest- to the citizens of Texas, and to the rest of the country watching -it would seem the Court should give both sides a greater opportunity to argue the merits of their cases instead of simply halting the matter.

Further, while Scalia points to Maryland v. King to explain the state will suffer irreparable harm through the issuance of an injunction, the State will not have their health needs neglected as the women effected by the enforcement of the restrictions will.

It is true as Scalia says, that "reasonable minds perhaps may disagree" so I will not go on and on as to why the restrictive abortion law and the closing of numerous clinics around the state will negatively impact women in Texas and the culture of individual freedom and women's rights throughout the country. These arguments have been made many times.

In conclusion instead, I will remark on one final fallacy. The majority directs readers to think of the citizens of Texas whose elected officials voted for the law. Readers ought to consider that the dissent allows the voters' concerns to go unnoticed in favor of vacating the stay.

From my perspective, there are many reasons why one candidate may win over another unrelated to their actual views on specific issues. Sometimes the person with the most money and most campaign staff wins. Sometimes a person whose family has a famous name in town is elected. Sometimes, an official may support one view that aligns with a voter's but rejects others. Sometimes an official may have a last name that is appealing to voters. Because voters do not dictate each and every vote an official makes, it seems too far-reaching to believe officials represent the views of those who voted for them on any one issue.

The recent Supreme Court order denying the application to vacate the Fifth Circuit's stay is disappointing because of the many women's lives in Texas is effects, and because it continues to highlight the overtly political divisions and motivations of the country's highest court.

Driver's Protection Privacy Act

So I understand if you don't want to read it all because it is kind of long, but I thought this was interesting because it involves my hometown.

A deputy used the background checking database to look up thousands of women. There is no evidence that he was using the information in a way that to harm individuals, but he was just accessing it for his own curiosity. He would just hear about a woman in the news or see someone at an apartment and then he would look them up to get more information.

So now when I read this article, I realize how much this civil rights class has ruined my life. I used to be able to just read an article and think, "that was interesting." Now I am trying to figure out who this woman should sue and if there is any immunity (there isn't because it is against the county), and if 1983 is her proper course or if the Driver's Protection Privacy Act has a built in vehicle for suits (I don't know yet). 

Anyways, enjoy!

Wednesday, November 20, 2013

Tyler v. Commonwealth of Massachusetts

Order here:

Complaint: Posted on here by Professor Wasserman on September 10, 2013

In Tyler v. Commonwealth of Massachusetts, Plaintiff was the victim of rape by Melendez, and later became pregnant and gave birth to Melendez’s biological child. In September 2011, Melendez pled guilty to four counts of statutory rape and was sentenced to probation including the condition that Melendez acknowledge paternity of the child and abide by any child support obligations issued by the Probate and Family Court. After June 2012, Melendez sought visitation rights; prior to a visitation hearing, plaintiff brought a motion in the Massachusetts Superior Court seeking Melendez’s paternity condition be vacated, “arguing that it bound her to an unwanted sixteen-year relationship with her rapist.” The motion was denied. Prior to the ruling from the Superior Court, plaintiff also petitioned the Single Justice (pursuant to the Supreme Judicial Court’s emergency superintendence power) to modify Melendez’s sentence, seeking the Probate Court be enjoined from ruling on Melendez’s request for visitation rights. This too was denied, the Single Justice finding the plaintiff did not have standing.

In response, plaintiff brought a § 1983 action against the Commonwealth of Massachusetts, alleging violations of her constitutional right to substantive due process. The Commonwealth of Massachusetts subsequently moved to dismiss. Ultimately, the court granted the motion to dismiss.

In the opinion, the only real mention of Rooker-Feldman is in footnote 4, citing Lance, and stating that “Outside of the habeas context, only the Supreme Court has the authority to correct federal constitutional errors committed by a State’s highest court.” Upon first glance, I thought Rooker-Feldman would have clearly been a difficult hurdle for the plaintiff to pass because she is functionally seeking relief caused by a judgment issued by a state court—the issue at the heart of Rooker-Feldman. However, after re-examining the three-prong test (Understanding at 226), and plaintiffs complaint, the doctrine was likely not discussed at length by the court because plaintiff was not technically a “state court loser” in the prior state proceedings (although she was undoubtedly tangled into and negatively affected by their judgments). Specifically, in paragraph 4 of the complaint, she tried to get rid of Rooker-Feldman and Younger problems by stating that plaintiffs will never “enjoy formal party status” and that Rooker does not apply because she is not seeking a review of a judgment entered in the state court as a “losing-party.” I guess technically, she is right. Similar to Lance, maybe the fact that she is in some sort of “privity” or more broadly here has a strong connection to the state proceedings is not enough to bar actions under Rooker-Feldman. 

Altermatively, if the court considered her a “state court loser,” as arguably it should have since she was so negatively affected by the state judgments, in order to avoid Rooker-Feldman issues, plaintiff should not have filed in district court. Instead, she should have sought a federal forum by appealing through the state system to the state’s highest court and then to SCOTUS.

Even without a lengthy discuss on Rooker-Feldman, the court still managed to dismiss the case through other doctrines, including Younger abstention. Quite clearly, and as stated in Understanding at 229, “Of course, that Rooker-Feldman does not deprive federal courts of jurisdiction does not mean the federal court will hear the case.  It may have to abstain under other doctrines.”

SCOTUS refuses to lift stay in Texas abortion case

Order here. The Court voted 5-4 to leave in place the Fifth Circuit stay of the injunction, meaning the Texas laws remain in full force and effect as the appeal is considered. And reports suggest that 1/3 of the clinics in the state have been forced to close temporarily.

The justices divided along the usual lines. The main order denying the application was per curiam. Justice Scalia wrote a concurring opinion, joined by Justices Thomas and Alito. Justice Breyer wrote a dissent joined by Justices Ginsburg, Sotomayor, and Kagan. Here are some thoughts on the decision. Feel free to comment.

Tuesday, November 19, 2013

For Thursday

Too bad about the 25 minutes we lost today. We will make up 5 of them (from ending early) on Thursday.

Commentaries on abstention are due by 9 p.m. next Tuesday, November 26. Again, I think the Tyler case would be an interesting subject, either for a commentary or on the blog. Opinions are due right at the beginning of class next Tuesday, November 26. Please make sure you follow the rules as to format, including cover sheet, Exam ID, caption, word count, etc.; instructions are in the document marked "Course Evaluation Information."

Finally, we will start class on Thursday by deciding who will be which side and who will be chief for our oral arguments. Here is an Information Sheet on how arguments proceed, including what the Chief is expected to do and how advocates should prepare; please review before class on Thursday and before the arguments next month.

On Thursday, we will cover all of Damages and most of Attorneys' Fees, then do one day on Equitable Relief. Be ready to talk about the concept of the Private Attorney General and how it plays into the various available remedies under § 1983.

Monday, November 18, 2013


In our last class, we briefly raised the obvious costs and delays associated with abstention and discussed the case of Arizonians for Official English v. Arizona, 520 U.S. 43 (1997), which called for certification. While I understood that certification may be appropriate when Pullman abstention is appropriate, I had questions about the holding in Arizonians and how federal courts subsequently handled certification, specifically in regards to cases where Pullman abstention was at issue. Pointedly, we questioned about state courts changing the question that was sent down by the federal court, about whether the federal court could certify, receive an answer, and then subsequently abstain, and about multiple certifications.

Apparently, others have had similar questions. See Molly Thomas-Jensen, Certification After Arizonans for Official English v. Arizona: A Survey of Federal Appellate Courts' Practices, 87 Denv. U. L. Rev. 139 (2009). According to the article, and as I thought might be the case, certification has met some critics. Firstly, some question whether federal-state comity is actually promoted by certification. One scholar argues that when federal courts "tackle the complexities of state law head on," instead of certifying, that actually provides a healthier respect for state courts that certifying a question to them. Others argue that certification may be inconsistent with constitutional and statutory limits on federal jurisdiction. And still others find problems with how certification actually rolls out in practice. Sometimes federal courts do not properly present their questions, state courts may dismiss certified questions without explanation, and some even argue that answering certified questions is of an "advisory nature" and therefore, a state court may answer the question differently than had they had the case and facts before them.

There are also a number of situations in which it may be more appropriate for a federal court to abstain, as opposed to certify. For example, a court may abstain when certifying would not allow a federal court to reach a constitutional issue. Additionally, certification may not be appropriate when abstention is required under another abstention doctrine--mainly Younger. Moreover, federal courts may face difficulty in regards to different procedures for different states if they certify or may abstain for pragmatic reason, such as the fact that there are parallel proceedings in the state court that will resolve the question.

While it is clear that certification is generally the most efficient and the least expensive route when compared to abstention, it too is not without flaws.

[This may be an interesting commentary topic for someone on panel for abstention--just saying!]

Sunday, November 17, 2013

In response to the commentary on Breyer's Dissent in Kato

                In his dissent in Kato, Justice Breyer argues for equitable tolling to be utilized when federal courts consider § 1983 claims. While Breyer’s recommendation is provoking, it was rightfully disregarded as it would have led to a seismic shift in not only how tolling is considered in the federal system, but such a change would negatively alter the relationship between the federal courts and the states. And while using equitable tolling rules would give more time to file to potential § 1983 claim plaintiffs, the additional time comes at a high cost. Additionally, the lack of equitable tolling does not prohibit § 1983 claims from federal court, thus the Supreme Court rightly decided in Kato not to instill equitable tolling rules to convenience future § 1983 plaintiffs.
                The biggest effect of utilizing Breyer’s recommendation would likely be felt by the potential defendants in a § 1983 claim. If an equitable tolling rule is utilized, such potential defendants would have to wait until after all of the criminal proceedings have been argued and ruled on before they would know if they were even going to implicated in a civil suit. Such a long delay, aside from being personally burdensome to the defendants,  will also potentially burden the courts as discovery would not potentially take place in these civil suits until well after the fact. And while some of these issues may be mitigated in instances in which the civil defendants were a party to the criminal proceedings that will not always be the case.
                There are also federalism concerns underlying a change to the tolling rules. As the majority highlights in Kato, the Supreme Court has generally referred to state laws for tolling rules. If the Supreme Court created a doctrine of equitable tolling, the states that have their own unique tolling rules would effectively lose those rules and that previously held power. In short, the Supreme Court would unilaterally be infringing on states’ power in the name of convenience if such actions were taken.

                Lastly, as a practical matter, delaying § 1983 claims from reaching the courts will lead to a potential delay in administrative changes to fix the issues found by a federal court. While under the current doctrine, federal courts could simply stay any § 1983 claim that is analogous to Kato until the conclusion of criminal proceedings, the courts do not have to. In particular, if there is an obvious violation that should be remedied the courts may choose to go forward immediately. And instead of giving criminal defendants the discretion on when such issues should be brought and heard, such power is better left to the courts. Such efficiency can help assure remedies are swift and that any similar future harm is avoided in an efficient manner.

Friday, November 15, 2013

Procedure Commentary


Re: More Invasive Searches

Hidalgo County Sheriff's Office surely is making quite the name for themselves. Now with two incidents sharing the same... CNOF. Just for laughs. Now with two incidents of "gross" violations of the Fourth Amendment, the plaintiffs in the two separate cases may be able to establish municipal liability for Hidalgo County. Under the Failure to Train/Supervise/Discipline theory, a § 1983 plaintiff can establish the municipality as liable for the actions of the state official when: (1) the identified deficiency in the training program must be closely related to the ultimate injury such that it is the "moving force" behind the violation; (2) the constitutional injury must be foreseeable; and (3) the municipality must have acted with deliberate indifference to individual rights and to the risk that untrained or poorly supervised officers would violate rights.

The argument to be made in the two instant cases comes from the discussion in Connick and O'Connor's dissent in City of Canton. That argument is whether a single incident of misconduct where the need for more training is "so obvious" and where the potential for violations is predictable, can lead to municipal liability under the "failure to blank" theory. Hidalgo County now has two incident's of misconduct deriving from similar sets of facts and from the same inadequate training. Because the officer's did obtain the warrant's (this discussion is only focusing on the misconduct acted out after the warrants were received), the Sheriff's office seems to have inadequate training for what constitute's a constitutional search after a warrant is obtained and what is unconstitutional. The "single incident" theory has not been accepted by the Court, but if these two cases reach SCOTUS, it'd be interesting to see if the Court would revisit the theory. 

Another point I find interesting is the point argued by Justice Ginsburg in her dissent in Connick pertaining to whether in certain situations a constitutional deprivation is merely "a single incident of a lone officer's misconduct" or whether the misconduct is really hiding "more systemic and systematic misconduct." The two instances in Hidalgo County, in my § 1983 expert opinion, reflect the "pervasive and persistent disregard of constitutional obligations" Justice Ginsburg writes about in Connick and therefore, I would argue that the two incident's are sufficient to establish municipal liability for Hidalgo County for § 1983 purposes. 

Thursday, November 14, 2013

For Tuesday

Thursday audio.

We will begin with the second Younger Puzzle, then move on to Rooker-Feldman and the final Puzzles on abstention. Abstention Commentaries will be due Tuesday, November 26.

We then will spend the remaining three classes on Remedies, starting with Damages and Attorney's Fees; please prepare both for Tuesday.

Wednesday, November 13, 2013

For Thursday

Tuesday audio.

We will continue with Younger abstention, including the Younger Puzzles (§ 6.13 of the treatise). Then go ahead to Rooker-Feldman and Abstention Review. We likely will finish abstention next Tuesday, then spend the last few days on remedies.

Monday, November 11, 2013

More invasive searches

Two more lawsuits are challenging law enforcement practices relating to invasive medical searches--another against Hidalgo County and one involving federal agents at a border crossing. Apparently Mr. Eckert is not an isolated case. Stay tuned.

Sunday, November 10, 2013

Re: You Can't Make This Stuff Up

An Argument for the Defense

Although the plaintiff’s Fourth Amendment rights were certainly violated under these unfortunate circumstances, a good argument can be made that Defendant, Officer Chavez, is entitled to qualified immunity.  First, qualified immunity protects officers from liability for civil damages when their conduct does not violate a “clearly established” right.  Harlow.  Considering the peculiar nature of the facts in this case it is unlikely that “materially similar” or “fundamentally similar” case law exists such that the right would be considered “clearly established.”  Furthermore, this violation is not “so obvious” as “selling foster kids into slavery” because in this instance, the officer was executing a warrant that was approved by both the Deputy District Attorney (“DDA”) and an independent magistrate. 

Second, the warrant was not “so obviously” lacking in probable cause that Officer Chavez should be considered “plainly incompetent” for concluding otherwise. Messerschmidt v. Millender.  In this scenario, the “informants” who provided the basis for probable cause were other law enforcement officers.  Chavez reasonably relied on the veracity and basis of knowledge provided by his fellow officers.  The DDA also gave Chavez approval to pursue the warrant and later approved the Chavez’s affidavit in support of the warrant application.  Moreover, based on the information provided, the magistrate came to an independent determination of probable cause.  It is well settled that officers may reasonably rely on the probable cause determination of a warrant application by a neutral and detached magistrate. U.S. v. Leon.

Furthermore, the warrant cannot be said to be entirely lacking in specificity.  Although the warrant did not specify the medical procedure to be performed, the warrant application did specify that the search should include the suspect’s anal cavity.  Also, since the warrant affidavit included information that the suspect was known to insert drugs into his anal cavity– there is little doubt as to what items were to be seized.  The officers' judgment that the scope of the warrant was supported by probable cause may have been mistaken, but it was not “plainly incompetent.” Malley.

Lastly, even if the doctor executed the search outside the hours specified in the warrant, thirty-minutes after the cut-off time could be considered a reasonable mistake.  Similarly, having the search executed in a neighboring county could also be a reasonable mistake.  Officer Chavez received authorization from the DDA to transport the suspect to the other hospital after the physician in the warrant-issuing-county refused to perform the search.  After all, qualified immunity does “give government officials breathing room to make reasonable but mistaken judgments.”  al-Kidd.