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.