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?

Thursday, October 23, 2014

For Tuesday

Thursday audio. We have 15 minutes still to make up.

We will continue with Young. What is the argument that Young is not a fiction, but perfectly consistent with sovereign immunity, as understood in monarchical days? In addition to the assigned cases, read this recent decision from the Eleventh Circuit--is this a correct reading of Young? For Puzzles, review the complaint in Beverly and the complaint and district court opinion in Tyler--what are the 11th Amendment issues here? Finally, look at the materials (including the statutes) on three-judge district courts and the Declaratory Judgment Act, both of which were congressional responses to Young--what were the criticisms of Young and how does each respond to those criticisms?

Time permitting, we will move to Sovereign Immunity and Supervisory Liability, focusing on McMillian and how lower courts approach the question of whether a policymaker works for the state or for the municipality.

Tuesday, October 21, 2014

For Thursday

Tuesday audio. Commentaries on Municipal/Supervisory are due at the beginning of class.

We will continue with State Sovereign Immunity I and moving to State Sovereign Immunity II. We begin with abrogation under § 5 of the Fourteenth Amendment, why abrogation is possible, and when. Can states be sued under § 1983--why or why not? What is the role of Ex Parte Young, both in constitutional litigation and with respect to sovereign immunity? In addition to the assigned cases, read this recent decision from the Eleventh Circuit--is this a correct reading of Young? For Puzzles, review the complaint in Beverly and the complaint and district court opinion in Tyler--what are the 11th Amendment issues here? Finally, look at the materials (including the statutes) on three-judge district courts and the Declaratory Judgment Act, both of which were congressional responses to Young--what were the criticisms of Young and how does each respond to those criticisms?

Time permitting, we will move to Sovereign Immunity and Supervisory Liability, focusing on McMillian and how lower courts approach the question of whether a policymaker works for the state or for the municipality.

Saturday, October 18, 2014

Ferguson Complaint

Here is the first lawsuit arising from the events in Ferguson; it is brought by three protesters alleging that they police used excessive force against them. Have a look at the format and the combination of claims brought. We will talk about this when we get to Procedure in a few weeks.

Thursday, October 16, 2014

For Tuesday

Thursday audio. Commentaries on Municipal Liability/Supervisory Liability are due next Thursday at the beginning of class; although we will circle back to McMillian at the end of our discussion states, we are done with our main discussion.

We have 40 minutes left to make up, which we will do 20 minutes at a time for the remaining two Thursdays of October. Our full make-up class will be Thursday, November 20, so mark your calendars.

We will start with a transition question: What is the connection between supervisory liability and the liability of an entity, given that the ways of establishing liability are similar. When does one turn into another? What is necessary for entity liability?

We then turn to State Sovereign Immunity I; this focuses on general principles of state sovereign immunity and how to get around sovereign immunity, both in federal law generally, in civil rights law more specifically, and under § 1983 really specifically. Can you sue a state under § 1983? Why or why not?

Prosecutorial Immunity commentary

Here.

Tuesday, October 14, 2014

Speech or Debate Case

Always be on the lookout for new cases involving our material--it's a regular staple in federal litigation.

The Ninth Circuit held that the prosecution can use evidence of legislative acts to rebut evidence of legislative acts offered by the legislator himself. The privilege is waivable by the legislator, and he cannot claim to being "questioned" about his acts when he is the one who offered them in the first instance. There also is a nice issue of competing legislative acts--the defendant complained about being prohibited from offering evidence of legislative acts offered by another member of Congress, but the court insisted that the waiver of his own privilege was irrelevant to the privilege of another legislator.

For Thursday

Tuesday audio. Commentaries on Qualified Immunity are due at the start of class on Thursday.

We will continue with Municipal Liability, starting with the remaining elements of "Failure to [Blank]" and its application in Connick, Brown, and the Puzzles. How does qualified immunity (and the other individual immunities) relate to municipal liability?

We then will turn to Supervisory Liability, an area that is in some flux, as Iqbal and Dodds show. What is the connection between municipal liability and supervisory liability? Accepting (for reasons we will get into next week) that a state cannot be liable under § 1983, why does it matter who a policymaker works for (as in McMillian) and how do we figure it out?

Friday, October 10, 2014

More on Bogan and clearly established

Prof. Baker (yes, this is what professors do when we are not in class) points to two more avenues through which the rights in Bogan might be clearly established. First, officers are trained and should know that they cannot exceed the scope of a traffic stop in a way that is explicitly or implicitly coercive--to ask the driver on a date, to ask the driver for money, to sell their daughter's girl scout cookies, or to discuss who the driver is going to vote for in the next sheriff election; what the officer did here is not different in any meaningful way. In other words, for purposes of Bogan's Fourth Amendment claim, handing out church literature is no different than handing out campaign literature or selling girl scout cookies. Second, officers should know generally that they cannot stand in the public square and proselytize while in uniform and on-duty; that should put them on notice that they cannot do it during a traffic stop. This might work for the First Amendment claim.

Again, it all involves moving from general principles, so much depends on how willing the court is to see those general principles as establishing broad obligations of which a reasonable officer should have been aware.

Thursday, October 9, 2014

For Tuesday

Thursday audio. Commentaries on Qualified Immunity are due next Thursday at the start of class. Think about whether to do an advance make-up (and if a Thursday does not work, what other time might), which will mean we can have our last class on Thursday, November 20 and then just final papers due on Tuesday, the 25th.

Also, I miscalculated. After today, we have 55 minutes to make-up from the 3 classes we cancelled. So, barring all else, we will go 20 minutes over three more times in October and that will square us up.

We will continue with Municipal Liability; no new reading, but review everything from this section. We will pick up with Monell--Why did the Sherman Amendment fail and how does that affect both the question of whether a municipality is a person under § 1983 and the standard for liability? Identify the four discrete ways that a muni can be liable and the appropriate standards.

Keep the complaint in Bogan handy; we will be referring back to it in our discussion of the 11th Amendment and in our discussion of procedure.

Connick v. Thompson featured on CNN Death Row Stories this year.

http://www.cnn.com/video/data/2.0/video/bestoftv/2014/03/31/orig-death-row-stories-ep-5-clip-1.cnn.html

The link above shows the back story of the Connick v. Thompson case where John Thompson (no relation) spent 18 years in prison (14 years on death row) for a crime that he did not commit.

Tuesday, October 7, 2014

For Thursday

Tuesday audio. Commentaries on Judicial/Prosecutorial Immunity are due at the beginning of class. Please follow the guidelines as to style, length, etc.

We will complete our discussion of Qualified Immunity. What are the problems with requiring factual overlap with case law? How does law become clearly established? Note the assigned Puzzle; also, what likely will happen if Mireles sues the police officers who used excessive force in bringing him into the courtroom? Finally, consider: Almost every government department indemnifies its officers--what is the effect of that and how does it affect the necessity and purpose of qualified immunity? Here is a short essay (reviewing a longer article) on the subject.

We then will move on the introductory section on Entity Liablity in Understanding, then read all of Municipal Liability. This will shift our focus from the liability of the individual officer to the liability of the entity for whom they work? What is the standard and how did the Court get there? In addition to the cases and materials assigned, read the decision from the Eastern District of Missouri preliminarily enjoining the "five-second" rule in Ferguson; note the discussion of municipal liability.

Monday, October 6, 2014

State action and EMT

The Second Circuit holds that a private company providing EMT services does not act under color of law. EMT services are not a traditional public function and there was no entwinement between the city and the company.