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)

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


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.