Under Color Papers

Here, here, here, here, and here.

The Controversy of State-Created Danger

Recent case from the Ninth Circuit. The majority held that a police officer violates SDP on a state-created danger theory by disclosing the confidential police report and other information to the abuser. A concurrence in the judgment rejects SCD as a judge-made "Frankenstein's monster" without support in the Fourteenth Amendment, history, or precedent. It is not impossible that the Court reconsiders this doctrine in the not-so-distant future.

The plaintiff lost the case on qualified immunity (which is why the concurrence was not a dissent); we will get to that in a few weeks. Keep this case in your mind and in your notes when we reach that topic; the majority and concurrence analysis illustrate important issues in the doctrine.

Finally, note the particular facts--the abuser communicating with the defendant officer was a fellow officer. This comes up in a fair number of (usually unsuccessful) SCD claims, often around domestic violence--an officer causes harm not under color and the plaintiff argues that the kid gloves with which colleagues treat that officer increase the danger to the victim.

For Monday

Tuesday audio. RPI papers due at the beginning of class next Tuesday. Please take the time to work the puzzles before class--things go a lot more smoothly that way.

A quick note on Watts and the First Amendment claim. The plaintiff could try it. It seems problematic because it is not clear from the facts that he engaged in protected speech--making racist comments to players while working for the state as an athletic official probably does not enjoy constitutional protection. And, as I said, it is hard to disentangle those undefined comments from his bad calls. But yes, the argument that "the coach ordered two students to assault me because of my speech" is a fair framing for a potential 1st Amendment claim, subject to the court's (likely) finding the speech unprotected. And that forces you back into SDP.

We will begin Claims Against Federal Officials. As you read this, think about about Bivens in three time frames--its origins and through the 1970s; retraction from 1980 through 2017; and then the past seven years of Ziglar, Mesa, and Egbert. Prep the puzzles with care--the likely answer ("no Bivens") is obvious, but the question becomes why. Without Bivens, how can the federal officials or the federal government be held to account for constitutional violations?

For Tuesday

Monday audio (may not be great, considering where we were). Under Color Papers due at the beginning of class. We will be back outside, but in the far corner of the courtyard (so more protection from the sun).

We continue--and hopefully finish--RPI. Prep the three puzzles; note where the events take place and how that might affect the available arguments. In thinking about Watts, refer back to Bantam Books in Chapter 2 and the VDARE puzzle. Why, under the Barnstable analysis, can plaintiffs pursue § 1983 constitutional claims in situations covered by Title IX and Title VII? Why describe RFRA and RLUIPA as "substitute" statutes?

I hope to then turn to Claims Against Federal Officials. As you read this, think about about Bivens in three time frames--its origins and through the 1970s; retraction from 1980 through 2017; and then the past seven years of Ziglar, Mesa, and Egbert.

For Monday

Tuesday audio. Under Color Reax papers due at the beginning of class Tuesday. Reminder that you must write on under color and the issues discussed in Chapter 2 (you don't know enough to write about stuff later in the class); Puzzles that we did not cover in class are fair game; argument cases that you are not otherwise assigned are fair game (although not applicable here). And there is a lot of stuff on this topic, so it should be very easy to find recent case(s) to write about--if you go down that path, spend most of your time on the law and application.

Move to Enforcing the Constitution, Part A of Chapter 3. We will not be getting deep into constitutional doctrine, only getting a sense of the basic rights enforceable.

    • How does the Supremacy Clause connect to § 1983?

    • How does the evolution of constitutional law explain the increase in § 1983 activity in modern times?

    • What does "due process" entail? What multiple pieces does "substantive due process" entail?

Symposium in Memory of Prof. Megan Fairlie

FIU and FIU Law Review will sponsor Perspectives on the International Criminal Court and International Criminal Law and Procedure: A Symposium in Memory of Megan Fairlie on Friday, February 2 in RDB 1000.

Some of you probably had Prof. Fairlie in class. The program is designed to honor her scholarly work and her life as a member of the College of Law faculty. I hope you will attend all or part of the program.

For Tuesday

Monday audio.

We will finish Chapter 2 and the Hate Speech Act Puzzle. Under Color reaction papers will then be due next Tuesday, January 29. What are the postures in which the property owner could assert his First Amendment argument that the act is constitutionally invalid?

We then move to Chapter 3 and Panel II. Read § 3.01 and Part B of Chapter 3; take the time to prep the statutory provisions assigned.

What is the difference between a right, a right of action, and a jurisdictional grant? What express rights of action has Congress provided for civil rights statutes? Absent an express right of action, where can parties and courts look for a right of action? How does the Spending Clause operate? How does the analyses for implied right, Ex parte Young, and § 1983 overlap and how do they diverge? Absent private civil litigation (which requires a right of action), how do civil rights statutes get enforced?

Animals can't take pictures, can they act under color?

That is another way of thinking about Whitworth v. Kling (8th Cir.), arising from a K-9 (named Dutch) biting a guest in his off-duty handler's house. The court rejected a Fourth Amendment unreasonable-seizure claim against the handler, because the bite was unintentional and not part of the officer's official efforts. The court treated the K-9 as the officer's weapon used to engage in force--in this case, the sort of unintentional force that does not violate the Fourth Amendment.

But note two paths not taken. One is to say that Dutch did not act under color because he did not pretend to perform his official duties----he was playing fetch in his yard off-duty, got distracted, and ignored commands to disengage--or use his position to enable his conduct. Of course, the text of § 1983 precludes that approach--"[e]very person" under color

Another is that the officer--off-duty, playing fetch in the yard, and not attempting or appearing to perform any job-adjacent acts through Dutch--did not act under color. Not sure why the court ignored that possibility or used the approach it did.

Argument Cases (Corrected Link)

Here. Meet at some point with your opposing counsel to decide which side to represent and with co-justice to decide who will be chief. Cameron gets to pick which side to argue.

Please note that these cases are fair game for reaction papers on the cases you are not assigned to argue or judge.

For Monday

Tuesday audio. Please email me before the end of the day if you do have a Friday exam and/or if you wish to judge a second case. I will post the list tomorrow.

Review the reader and puzzles for the rest of Chapter 2. This will take us through Monday and much of Tuesday. Panel # 2 (on Chapter 3) likely will begin on Tuesday.

Panels (Revised and Updated)

Updated: It looks like we have 11 in the class; I moved a couple people on later panels around, so please make sure you find your proper assignments.

As indicated on the Syllabus and Grading Information, everyone is assigned to three (3) panels and to write reaction papers on each of their panel topics. Panels are assigned at random--some people are on consecutive panels while others have lengthy breaks between them. Each panel will have 4-5 people, depending on final enrollment. Each panel represents all or part of approximately 2-4 classes. The four longer topics have five people. More people will be added to each panel if enrollment increases.

Panelists begin on the second day of class, Tuesday, January 9.

For Tuesday, January 16 (updated)

Tuesday audio. Please let me know if you have an exam on Friday, May 10. It appears we will have 11 in the class, meaning an odd number of positions for arguments. Please let me know if you are willing to judge a second argument.

We continue with Under Color; review the remaining puzzles from § 2.02, then complete the rest of Chapter 2. I expect to spend another 2-3 days on this subject.

 Please note something that came up after class: We focused on one element of a § 1983 claim or § 242 charge--did the defendant act under color of law; it was deliberately narrow. Our discussion today said nothing about whether the defendants violated the Constitution, whether they knew they violated the Constitution, and whether they have defenses. That all comes later, as additional elements for the plaintiff/government to establish or as defenses to be raised and litigated.

No class Monday for Martin Luther King, Jr. Day.

For Tuesday

Monday audio. Panel # 1 (Sunny, Thomas, Alexa, Aric, Kaitlyn) is on for tomorrow.

Review the Syllabus, Assessments, and Panels; I will take questions at the beginning of class. In particular: Arguments take place the day after the final day of exams, which this semester is Friday, May 10. So: If no one has an exam on Friday, we can do arguments that day. Otherwise, we can do them on Monday, May 13 (as scheduled) or we can do them over that weekend. Be ready to discuss options.

We did not get to this today, but: Consider how judicial departmentalism explains the Southern Manifesto (the statement of Southern House members opposing Brown) and the desegregation litigation in Little Rock.

For tomorrow, prep §§ 2.01 and 2.02.

    • What do § 242 and § 1983 do? How are they similar and how are they different?

    • What is the core or obvious meaning of "under color?" How did the Court expand that core in Classic, Screws, and Monroe?

Litigating African American rights in Jim Crow

The common story of federal civil rights litigation (told in the cases and in our book) holds that we needed federal litigation of federal rights to overcome systemic racism in Reconstruction and Jim Crow state courts and the inability of African American victims to obtain legal relief, especially against white violence. While that story is generally true, research from a Harvard historian suggests that African American plaintiffs achieved some litigation success in state courts, particularly in pursuing tort claims against railroads, insurers, and other private entities. A worthwhile counter-narrative, demonstrating that law is complicated.