Friday, May 12, 2017

Arguments Available

Excellent job today. I hope you all found it more fun than sitting for a final exam.

To watch the videos, go to:
   • lawmediasite.fiu.edu
   • Login w/ your  FIU username/password
   • On left side, click on "Media" for dropdown menu.
   • Scroll down and click on "Wasserman"
   • Click on "Civil Rights Oral Arguments 2017"
   • Enjoy

Thank you all for a great semester. Have a wonderful summer. See everyone in fall.

Monday, April 24, 2017

Final Class

Monday audio.

Oral arguments begin at 9:30 on Friday, May 12. Please follow the requirements contained in the Standing Order. See everyone then.

Wednesday, April 19, 2017

For Monday

Wednesday audio. Opinions due at the beginning of class (on time) on Monday.

We turn to Attorney's Fees, the last aspect of remedies. What are the purposes of attorney's fees and what are the benefits and drawbacks to them as a remedial mechanism? How do fees tie into the private attorney general concept? Parse out the elements of § 1988(b) and when and how fees will be available.

Monday, April 17, 2017

For Wednesday

Needless to say, having less than half the class show up is not ok (two people had notified me of missing). I expect to see 13 people in the seats on-time on Wednesday and next Monday or I expect to hear from you in advance.

Abstention Commentaries are due on Wednesday.

We continue with Equitable Relief. Review§ 2284(b) for the process of three-judge courts. What is the purpose of structural-reform litigation? What is the appropriate scope (as to plaintiff and defendant of an injunction under FRCP 65 and how does that jibe with the recent move of courts to issue "nationwide injunctions"? What is the purpose of FRCP 60 and how does it work with long-term structural-reform injunctions and consent decrees? Be ready to discuss § 14141.

Then move to Attorneys' Fees. How do fees support the private attorney general? How do fees provide the compensation and deterrence arguably missing, given the limits on compensatory damages? This will take us through the final class next Monday.

Wednesday, April 12, 2017

For Monday

Wednesday audio.

We are done with Abstention. Review the final Puzzles and Moser for yourselves, but we will move on to Remedies on Monday. Abstention Commentaries due next Wednesday.

Panel II is up for Remedies. Prepare Introduction, Damages, and Equitable Relief. Review what we have covered about equitable relief, then combine it with the more-detailed explanation. Think about the different types of remedies and how we can concpetualize them. What are the advantages and disadvantages of pursuing different types of remedies.

Monday, April 10, 2017

Procedure Commentaries

Here and here.

Oral Arguments

The Court's Standing Order on oral arguments.

The Argument Schedule for Friday, May 12.

Did United act under color?

http://www.npr.org/sections/thetwo-way/2017/04/10/523275494/passenger-forcibly-removed-from-united-flight-prompting-outcry

For Wednesday

Monday audio.

We continue with Younger. What effect might an injunction in the federal cases brought by Steffel or Doran have on the pending state proceedings and why was that effect not sufficient to trigger "Our Federalism" concerns? How is Miranda different? When else will an injunction not trigger Younger, outside of the four exceptions?

We then turn to Rooker-Feldman, which is alternately treated as abstention and as a limit on § 1331. What is the rationale for RF? In addition to the problems presented, consider whether RF should bar this lawsuit challenging a "gag order" issued by a state trial-court judge.

Then do the Abstention Review, looking at Puzzle § 6.17 and the complaint in Marie v. Moser.

Just in case, prepare Remedies: Introduction; we may get to some basic principles at the end. That means Panel II should be ready to go.

Friday, April 7, 2017

Constitutional challenge to nuisance ordinance

The ACLU has filed a lawsuit challenging a nuisance ordinance in Maplewood, Missouri (outside St. Louis). A Maplewood ordinance empowers the city to evict residents and deny them the right to live in the municipality (residents need an occupancy permit) if they create a nuisance, which includes a certain number of police responses, including (expressly) for domestic violence. We looked at a challenge to similar ordinance in Norristown, PA in the Briggs complaint. That ordinance incentivized landlords to evict, thus triggering some DeShaney concerns and state-created-danger workarounds. Here, the city itself is doing the evicting, so the constitutional claim is more straight-forward.

Wednesday, April 5, 2017

For Monday

Wednesday audio. Apologies again for my lateness the last two days; it will not happen again.

We continue with Statutory Abstention and whether § 1983 satisfies the "expressly authorized" exception and why.

We then move to Younger Abstention, covering the first two sections (Basics and Expansion). Focus on Sprint, which was decided after Understanding was written. What is "Our Federalism"? What is the connection between Younger and § 2283? Why was the expansion of Younger beyond injunctions of criminal proceedings warranted or not?

I need all Commentaries to be brought in on Monday. I only have a record of ten people having submitted anything, which cannot be right at this point in the course. So please bring all Commentaries from all subjects.

Tuesday, April 4, 2017

DOJ, civil rights, and police reform

Last Friday, Attorney General Sessions issued a memorandum enumerating a series of principles regarding law enforcement and the relation between the federal government and local law enforcement; these include local control and responsibility for local law enforcement, promotion of public respect for police work, and the idea that the "misdeeds of individual bad actors" should not impugn law enforcement as a whole. The memo than calls for review of all DOJ activities to ensure compliance with those principles.

What does this mean? Likely that we will not see new § 14141 actions or investigations being pursued against local agencies. Likely that existing cases in which a consent decree (an injunction entered with agreement of the parties and the court) has not been approved, as in Chicago and Baltimore. It will be harder to undo ongoing consent decrees; because these reflect final judgments, the court must approve any changes.

This should be a nice reminder of the relationship between governmental and private enforcement of civil rights and the special role of private enforcement--the change of administration brings changes in enforcement priorities. Private enforcement (the "private attorney general") is designed to provide a constant in picking up the slack.

Monday, April 3, 2017

For Wednesday

Monday audio.

We continue with Pullman Abstention. Why can't the Supreme Court interpret state law to get around the federal issue? What is the controlling test for Pullman? What happens if the federal court abstains under Pullman? What is certification and how does it relate to Pullman? See also Justice Sotomayor's opinion in Expressions.

We then move to Statutory Abstention and the three statutes assigned. How does § 1983 relate to § 2283, under Mitchum? What is the underlying rationale for the two tax-injunction statutes?

We then move to Younger: Basics. What was going on in Younger and what is the scope of abstention under that doctrine? How does it tie into the version of § 1257 in effect in 1971? What is "Our Federalism"?

Pullman and Certification

From SCOTUS's decision last week in Expressions Hair Design, see Part II of Justice Sotomayor's opinion concurring in the judgment (joined by Justice Alito), in which she discusses the connections among Pullman and certification and why the lower court should have certified in this case.

Thursday, March 30, 2017

For Monday

Correction: We will have class on Monday, April 10, so no make-up necessary.

If you wrote a Commentary on Immunity or Municipal Liability, please bring it to class on Monday--I forgot to record the scores.

Remember: We will assign positions for oral arguments at the beginning of class.

We will continue with and complete Civil Rights Procedure, looking at statutes of limitations, accrual, and how it all comes together (along with Heck) in Wallace. How is accrual and how does the court determine the date? What were the competing views of accrual dates in Wallace and how did Heck influence that? Commentaries will be due on Monday, April 10 (when we will, indeed, have class).

We then turn to Abstention, with Panel III. Read Overview of Abstention and Equity and Pullman. What is the basic idea underlying abstention generally? What is the difference between abstention as abdication and abstention as postponement? Which is Pullman? How does Pullman abstention operate and why?

11th Amendment Commentaries

Here, here, and here.

Monday, March 27, 2017

For Wednesday

Monday audio. Sovereign Immunity Commentaries due on Wednesday.

We continue with Vehicles, looking at the differences between Habeas and § 1983 and, with Heck and its progeny, the territory that each covers. Read all the remaining sections and provisions in Procedure.

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.

For Monday

Wednesday audio.

We continue with Prosecutorial Immunity. How did the Court identify the functions in Buckley and why? What is the logic behind witness immunity?

We then turn to Qualified Immunity. Why is that the default immunity? What is the argument that the immunity in such situations should be absolute? Be sure to pull White v. Pauly, the Court's most recent (cursory) exploration of Q/I. What has the Court been doing with recent Q/I cases?

Monday, February 13, 2017

For Wednesday

Monday audio. Just so you know, standing is beyond the scope of this class, but is covered extensively in Federal Courts. The classes fit together as a sequence and material had to be divided between them--standing, other than a cursory discussion, is a big focus in Fed Courts.

Bivens Commentaries due at the beginning of class on Wednesday.

We continue with Judicial Process Immunity. What are judicial functions and what are not judicial functions; what factors help identify the line? Be ready to discuss the Puzzle on judicial immunity. Who else, beside a judge, should get judicial (or quasi-judicial) immunity and why? Consider the additional clause at the end of § 1983 (added in 1996) and how it relates to judicial immunity.

How did prosecutorial immunity develop? How does it relate to, and differ from, judicial immunity? What is its Scope, Application, and Degree? What functions are prosecutorial and what are not?

Finally it goes without saying--but I will say it anyway--that 4 out of 13 people should not be missing class on a regular basis. I think it has been two weeks since everyone has been in the room at one time.

Friday, February 10, 2017

Professer Foley on CNN discussing WA's Standing:

I wish I could give a more substantive commentary, but I have to think on all of this a bit more. Enjoy!

Thursday, February 9, 2017

Washington v. Trump

Order denying a stay pending appeal. For our purposes, the things to notice are the standing analysis (Part III) and whether the district court's order was a Temporary Restraining Order, which is not immediately appealable, or a Preliminary Injunction, which is (Part II). We will get to some of this in Civil Rights Procedure and Remedies, later in the semester.

Pay attention to how the case proceeds from here. It looks like the case is now in the court of appeals, even though the district court never had a chance to hold an evidentiary hearing. So the court of appeals (and perhaps then SCOTUS) may decide this case on the record as it exists right now, which is unusual for major constitutional questions.

Wednesday, February 8, 2017

For Monday

Wednesday audio. RPI Commentaries due Monday; Bivens Commentaries due Wednesday.

We continue with Legislative Immunity. How did motive come into play in Bogan and how was that resolved? What is a legislator, entitled to immunity? To what conduct does legislative immunity attach and why? Does legislative immunity mean a legislator can never be sanctioned for misconduct? Does legislative immunity deprive injured persons of any remedy? What about the plaintiff in Bogan? What about a person injured by a new unconstitutional statute?

We then turn to Judicial Process Immunity, which covers both Judicial and Prosecutorial Immunities. What are the justifications for these two immunities? Why grant judges immunity? What is the scope, application, and degree of judicial immunity? Be sure to refer back to the exception clause in § 1983.

Monday, February 6, 2017

For Wednesday

Monday audio. RPI Commentaries due next Monday.

Before class on Wednesday, we can talk for a few minutes about the travel order litigation and where it stands. As I said, we will (hopefully) get to this later in the semester.

We have a few final points about Bivens, focusing on the "extensions" (or non-extensions) to new defendants, conduct, and situations. How does Minneci affect the analysis? How does Prof. Pfander interpret § 2679(b) to find a statutory equivalent to § 1983.

We then turn to Individual Immunities, covering Overview and Legislative Immunity. Panel I is back on.

What are the purposes of all the individual immunities? How did they become part of the § 1983/Bivens analysis, since none are mentioned in the statute itself. Consider the difference between constitutional Speech or Debate immunity and common law legislative immunity under § 1983. What does the Court mean by a "functional" approach. What makes immunity "absolute" as opposed to limited.

Saturday, February 4, 2017

Immigration Order Litigation

A judge in the Western District of Washington issued a purportedly nationwide TRO prohibiting enforcement of the entire immigration order, in an action brought by the states of Washington and Virgina. This is in addition to a different nationwide TRO, issued last weekend. It's a short order, 7 pages, devoid of much analysis. The TRO is in place until the parties can brief and argue a motion for a preliminary injunction.

A couple of things of note, some of which are part of this class and some of which are part of Federal Courts:

1) What we will cover is this idea of a "nationwide" TRO and whether one district judge, in a non-class-action brought by a small number of plaintiffs, stop the federal government from enforcing federal law against anyone anywhere.

2) As for what we do not cover, but will cover in Federal Courts:
   a) Standing--having been injured so as to be able to sue--may be a problem for the states. The court found them to have parens patriae standing to sue on behalf of their residents, although that theory has generally been rejected.
   b) The court enjoined the provision allowing for case-by-case determinations from the 7 nations, with preference giving to "minority" religions in those countries (i.e., non-Muslims). But that provision comes into play after the 90 day halt. If so, there is an argument the challenge to that provision is not "ripe" for judicial review, since it is not yet in force or able to be enforced.

3) What comes next is interesting. TRO's are not immediately appealable (although Preliminary Injunctions are). But the government could go to the Ninth Circuit (or to SCOTUS, if that fails) and ask for a stay of the TRO--the court order stopping enforcement would be stayed, meaning the executive order could be enforced. Stay tuned.

You should be recognizing by now that this type of litigation is truly complex.

Wednesday, February 1, 2017

For Monday

Wednesday audio.

Final points on RPI, going to overlapping statutory and constitutional/§ 1983 actions and when a statutory claim precludes a constitutional claim under § 1983. RPI Commentaries due on Monday, February 13.

We then turn to Actions Against Federal Officials, the Bivens action and its progeny. Here is the oral argument in Ziglar v. Abbassi; there is a lot to this argument, including pleading and qualified immunity (which we will get to soon), but it gives you a feel of the issues and future of Bivens actions. Panel III is on for this.

Miss Wormwood

Since none of our panelists wrote on Miss Wormwood, feel free to have at it here.

Monday, January 30, 2017

Under Color Commentaries

Here and here.

Have at it.

For Wednesday

Monday audio.

We continue with RPI, both on Enforcing the Fourteenth Amendment. We pick up with Okin and using equal protection to avoid DeShaney in cases of government inaction. Discuss the Complaint in Briggs as both a State-Created Danger and Equal Protection claim. We then turn to Procedural Due Process. What is the difference between substantive and procedural due process? How do state remedies interact with procedural due process? How do you reconcile the approach to § 1983 in Parratt and Hudson with the approach in Monroe? How do you reconcile Parratt and Hudson with Zinermon over how P/D/P works?

We then move to Parallel and Concurrent Constitutional Claims, looking at when statutory claims preclude constitutional claims under § 1983. How does Fitzgerald alter the analysis?

We will get to Claims Against Federal Officials for next Monday.

Wednesday, January 25, 2017

For Monday

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

We continue with RPI: Enforcing the Fourteenth Amendment. What right(s) are included within "Substantive Due Process." How does state of mind come into play under § 1983, compared with § 242? What does it mean to say that § 1983 and due process are "not a font of tort law." What does DeShaney stand for and how do parties attempt to work around it? (Be sure to review the Complaint in Briggs v. Norristown, noting how the plaintiffs pled the due process claim). What is the difference between substantive and procedural due process? How do state remedies interact with procedural due process? How do you reconcile the approach to § 1983 in Parratt and Hudson with the approach in Monroe? How do you reconcile Parratt and Hudson with Zinermon over how P/D/P works?

No new reading for Monday. We will get to Parallel Claims on Wednesday of next week.

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."


https://www.justice.gov/opa/pr/justice-department-announces-findings-investigation-chicago-police-department



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


Topics:
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