Tuesday audio. Hopefully we will continue to have outdoor weather.
We continue with Qualified Immunity and the § 5.21 all-immunity review puzzle. My best guess is this will take both Monday and Tuesday when we return. What purposes and what problems does the clearly established requirement present? What are the solutions to qualified immunity (if indeed it is a problem) and who should create them?
Enjoy your break.
An actual coming § 1983 action.
But now let's try to fit it back into today's conversation. Imagine Ms. Gassman (Sydney, did someone change their name???) works for the DA.
So two possibilities arising from the particular line defendant and her relationship with the DA. When does immunity attach?
1) Ms. Gassman brings this same suit against this DA.
2) The DA assigns Ms. Gassman to prosecute and obtain a conviction against a Palestinian defendant. The defendant learns of the photo in her office and sues the DA for damages for discrimination in appointing Ms. Gassman to prosecute, believing the choice motivated by discrimination.
Monday audio. Back outside tomorrow, as I expect another nice day.
We will finish the Prosecutorial Immunity Puzzles. Think about the "absence of jurisdiction" idea in Anilao (Puzzle # 3) and how that argues for or against immunity in that case.
We then move to Qualified Immunity, which is almost certainly the highest-profile doctrine--and the one most criticized across the political spectrum. How did the doctrine evolve and why? What are the targets of criticism?
Also, see the Sixth Circuit case I mentioned, holding that parole board members enjoy quasi-judicial immunity. The court includes a nice discussion of we talked about in class today--how to understand immunity for something as seemingly routine as scheduling.
We will continue with Judicial Process Immunity, so prep everything in Part B of Chapter 5. How do the "trappings" of judicial process cut in Gibson? How does Stump v. Sparkman affect resolution of Gibson? Why is prosecutorial immunity more controversial than, for example, judicial immunity? How does the concept of "jurisdiction" affect both judicial and prosecutorial immunity?
We will begin Qualified Immunity on Tuesday.
Monday audio. Bivens papers due at the beginning of class. We will continue to be outside if the weather cooperates, at least for a few more weeks.
We continue with the Puzzles for Legislative Immunity. We then more to Judicial Process Immunity, covering judicial (which will be our main focus tomorrow) and prosecutorial.
Pretty bad, says the Tenth Circuit, in recognizing that a Bivens claim is not available because the US Marshal Service is different from the ATF predecessor with a different statutory mission and internal grievances suffice. The court cites Byrd v. Lamb in discussing (but not relying on) the meaningfulness of the events happening inside or outside the plaintiff's home.
The opinion, written by a GWB appointee, takes pains to highlight (including through choice of language) how ridiculous this seems but how hamstrung they are by the Court's recent decisions.
Keep an eye for this in illustrating the back-and-forth between SCOTUS and lower courts. SCOTUS often will do something, including narrowing some area of law, that the lower courts run with to narrow even further, too much for SCOTUS's taste. SCOTUS will take a case to come out the other way to rebalance things a bit. We can understand recent qualified immunity decisions (stay tuned in two weeks) this way. We can understand Talevski (one § 1983 and laws claims) this way. So do not be surprised if the Court takes a case similar to this one as an opportunity to signal to lower courts not to go too far afield. Or to finally kill Bivens once and for all.
The D.C. Circuit held that Donald Trump does not enjoy absolute presidential immunity from prosecution for his conduct following the 2020 election.
Read for Monday, as we will have a brief discussion of how immunities work in criminal as opposed to civil cases. And we may come back to this when we reach Qualified Immunity. Note also there is an issue of appellate jurisdiction familiar to those of you who took Fed Courts.
Tuesday audio. Bivens Reax Papers due next Tuesday.
We continue with Immunity, starting with Legislative Immunity.
• What does it mean to say immunity is "absolute?"
• For each immunity, note the key questions--who is immune, from what are they immune, and what functions are immune?
This essay reviews and discusses an article comparing Canada's approach to post-enforcement constitutional damages with the mess in the U.S., especially as to Bivens. The author of the essay is a leading Fed Courts/Civil Rights scholar and one of the key critics of Bivens.
Monday audio. RPI Papers due tomorrow. Outside if the rain holds off.
We will continue with and should finish Bivens, so be ready to work through the three Puzzles.
• What would congressional action look like?
• What is the "double-counting" objection to the Court's two-step approach?
• What is the argument that Bivens is dead rhetorically if not legally? And what is the argument for killing it altogether (Amir's question, off the Gorsuch dissent in Egbert)?
• Go back to the Doe v. Google puzzle in Chapter 2 (p. 50). That claim was based on action by federal officials. How does the case get resolved if plaintiffs seek damages as opposed to an injunction?
I think we are only going to get through Overview for Immunity, so don't move on to Legislative Immunity.
• What are the purposes and policies behind immunity of all kinds?
• What are the purposes of § 1983/Bivens litigation, especially for damages?
• What makes immunity "absolute," as opposed to qualified?