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.
Two quick notes on state-created danger.
First, see this 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.
But 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 off-duty officer causes harm not under color and the plaintiff victim argues that the kid gloves with which on-duty colleagues treat that officer increase the danger to the victim.
Second, on James' idea to pursue Watts as a First Amendment claim. The plaintiff could try it. It seems problematic because it is not clear from the facts that the ref 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 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.
Finally: Compare § 1981 with Title VII, illustrating the distinct issue of overlapping statutes. Both can be used for certain types of employment-discrimination claims, although in many cases only one or the other will apply.
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?
