Evangelizing cops, qualified immunity, and appealability

Every case always comes up again. This one comes from the Sixth Circuit, where a police officer discussed religion and baptized a woman following an arrest for marijuana possession. The district court denied summary judgment; the officer appealed. The Sixth Circuit lacked jurisdiction because the district court identified factual disputes and the officer did not conede the plaintiff's version of facts, although that concession might have been sufficient to create appellate jurisdiction.

For Monday

Tuesday audio. Entity Liability papers due Tuesday.

We continue with Procedure; prep the rest of Chapter 7, beginning with the § 7.05 puzzles. Understand the basics of habeas corpus and how Heck strikes the balance between habeas and § 1983. Why insist on lines between habeas and § 1983? What role does SCOTUS review play in challenges to state convictions--how do you know when a case reaches SCOTUS on habeas or direct review?  What is the statute of limitations on a § 1981 claim against a municipality?

Abstention panel should be ready to go on Tuesday.

For Tuesday

Monday audio.

We will finish with the Noah C. puzzle on Entity Liability. Having found the Board as the policymaker, what do we next have to figure out for the damages and injunction claims. How is the injunction claim affected by whether the Principal is the policymaker and whether the Board signed off on the suspension? See Humphrey in the reading. Entity Liability papers will be due next Tuesday.

We move to Civil Rights Procedure, covering the first two sections (Chapter 7, Parts A and B); many jurisdictional statutes to review, so be ready to discuss and explain the precise language of those provisions and how they operate. Note that the Title VII provisions (42 U.S.C. § 2000e) are in App. C.

    • Why is immunity, especially qualified immunity, immediately reviewable under the collateral order doctrine?

    • How do 3-judge courts and declaratory judgments respond to the concerns over EpY? Why have 3-judge courts for the three current classes of cases in the modern statute?

    • Be ready to discuss the basics of habeas corpus. We then will get into Heck next week.

For Monday

Tuesday audio. I hope to finish or just-about finish State Sovereign Immunity on Monday; prep and review the rest of Chapter 6 and all puzzles.

    • In what way(s) is EpY a legal fiction? What is the argument it is not a legal fiction at all? What are the possible meanings of the phrase "the king can do no wrong?"

    • How does the inquiry into who is a policymaker interact with sovereign immunity, abrogation, and § 1983?

Immunity Papers

Here, here, here, here, and here.

For Tuesday

Monday audio. FIU will host a panel on judicial clerkships at lunchtime tomorrow (Tuesday), featuring Judges Jordan and Rosenbaum of the 11th Circuit; please plan to attend if you have any remote interest in clerking.

Prep the remainder of Chapter 6. We will get through much of it tomorrow, with some left for next Monday.

    • What is the connection between congruence and proportionality and sovereign immunity?

    • What does C&P allow Congress to do under § 5? Given the laws that have been valid and not valid under § 5, what explains C&P?

     • Consider whether the following claims can proceed under the Americans With Disabilities Act:

        • Attorney working at Greenberg Traurig

        • Attorney working for the Miami-Dade County Attorney

        • Attorney working for the Office of the Florida Attorney General

    • Can states be sued under § 1983?

    • What is the cause of action in Ex parte Young and how does it affect sovereign immunity? Why is EpY a "fiction" and why is it not a fiction? How does EpY connect with § 1983? 

Finally, circling back to the Midwest Bank Puzzle and what you should be looking for: Have we discussed any doctrine under which a plaintiff can hold government liable for harm caused by a private person (note: the state-action cases are about holding the purportedly private actor liable)? How might that apply to the facts of Midwest?

Social Media Cases Decided

Lindtke (claim against city manager) and O'Connor-Raitliff (school-board members). Lindtke is the main case, setting (unanimously) a standard for when officials act under color. The Court vacated and remanded O'Connor for reconsideration in light of Lindtke.

Spot the problems with the constitutional claims

In Fakhreddine v. University of Pennsylvania. Plaintiffs are pro-Palestine Penn faculty members seeking to enjoin the university from complying with information requests (not, yet, subpoenas) from the House Committee on Education and the Workforce (same committee that held the crazy December hearing with the presidents of Harvard, MIT, and Penn).

Have at it.

For Monday

Tuesday audio. Immunity Papers due at the beginning of class Monday.

We will finish the Muni puzzles, then move to Part B and State Liability.

   • What is sovereignty and what is sovereign immunity? Who is and is not sovereign?

    • What are the three competing theories of the meaning of the 11th Amendment? How would each theory handle the following claims:

        • South Carolina Citizen v. Georgia on a federal claim

        • South Carolina Citizen v. Georgia on a state claim

        • Louisiana Citizen v. Louisiana on a federal claim

        • Louisiana Citizen v. Louisiana on a state claim

    • What is abrogation and when is it permitted or not permitted and under what powers? How does abrogation different from "waiver by plan of the convention?

    • Consider whether the following claims can proceed under the Americans With Disabilities Act:

        • Attorney working at Greenberg Traurig

        • Attorney working for the Miami-Dade County Attorney

        • Attorney working for the Office of the Florida Attorney General

    • Can states be sued under § 1983?

For Tuesday

Monday audio. Hopefully we get one more day outside tomorrow. Immunity papers due next Monday.

We continue with Municipal Liability:

    • We left off on what, before we get to anything, on what is necessary to state a claim against a municipality claim.

    • What is "policy" and "policymaker?" What are the four ways a plaintiff can establish municipal liability? How should we understand "Failure to ___" as a theory of liability?

    • How does qualified immunity affect municipal liability?

    • What is the argument that respondeat superior liability is consistent with the text and history of the 1871 Act?

    • How do municipal interests diverge from individual interests in litigation?

    • Be creative in thinking about Puzzle # 3. The case requires you to circle back to prior material in the course.

I hope to get a bit into State Liability tomorrow; just prep §§ 6.09 and 6.10, which will give the basic overview of sovereign immunity and the 11th Amendment.

Interesting Immunity Cases

After the jump, two interesting immunity decisions from the Ninth Circuit. When you encourage your friends to take this class next spring, tell them to expect to see this case in arguments.

Medicaid and § 1983

The Fourth Circuit held, for the third time, that Medicaid's "free-choice-of-provider" provision can be enforced through a § 1983 "and laws" action. That provision guarantees Medicaid patients the right to choose their health-care provider; the lawsuit challenges South Carolina's attempt to bar Planned Parenthood from receiving Medicaid funds (this is an ongoing issue in many states). The court had previously reached this conclusion, but the judgment was vacated for reconsideration in light of Talevski. The court reads Talevski as follows:

We agree that enforceable rights under § 1983 are dependent on congressional authorization, which under no circumstances may be casually implied. While Talevski offered an illuminating analysis of the issue before us and a useful new example of provisions enforceable via § 1983, we do not read it as toppling the existing doctrinal regime. And even if Talevski could be read as embracing a wholly new test, we hold that the free-choice-of-provider provision passes it

For Tuesday

Monday audio.

We will finish QI tomorrow; papers will be due next Tuesday. What are the benefits and drawbacks to flipping the QI presumption--no immunity unless the right is clearly established? We then will work through the QI and Immunity Review Puzzles.

We then turn to Entity Liability, beginning with § 6.01 and Municipal Liability. What are the arguments for and against municipal liability, given the purposes of § 1983 and the problems of individual immunity? What is the textual and policy basis for municipal liability and what are the limitations on that liability?

State-created danger and immunity

From the First Circuit in Johnson v. City of Biddeford. This shows how courts approach the two prongs of immunity and the connection between them. And it again shows courts dealing with the scope of state-created danger.

This was an oral argument case for class a few years ago when it was in the court of appeals the first time, on the existence and scope of SCD.

Sometimes the US does prosecute § 242

From the Tenth Circuit, affirming the sentence on an 8th Amendment violation. Pretty egregious and straight-forward facts--a corrections officer placed two African American inmates in a cell block dominated by members of the Aryan Brotherhood, then ordered the cell doors left open.