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."

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