We continue with Qualified Immunity. What is the purpose of the clearly established requirement (independent of the general purposes of immunity), what problems does the requirement create, and how do you determine CE? What are the solutions to qualified immunity (if indeed it is a problem) and who should create them?
I expect QI to cover Monday and some of Tuesday (including the Puzzle in § 5.21). Then we will begin Entity Liability late on Tuesday.
Enjoy your break.
Monday audio. Back outside tomorrow, as I expect another nice day.
We will finish the Prosecutorial Immunity Puzzles. How would you distinguish Lacey from a suit by a line prosecutor alleging the office discriminates against her in case assignments. Think about the "absence of jurisdiction" idea in Anilao (Puzzle # 3) and how that argues for or against immunity.
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?
We discussed this issue a bit during the Bivens discussion: What happens if state or local government enforces federal law. The answer, as we said briefly, is that it depends on how the officer was acting. A state or local official enforcing federal law for the state or locality is under color of state law and subject to § 1983. A state or local official working for the federal government acts under color of federal law and is subject only to Bivens.
This Ninth Circuit case addresses the issue as to two local law enforcement officers working for a joint task force created by federal law and supervised by federal officials.
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 judicial immunity? How does the concept of "jurisdiction" affect both judicial and prosecutorial immunity? Think about the "absence of jurisdiction" idea in Anilao (Puzzle # 3) and how that argues for or against immunity in that case.
Consider an additional Judicial Immunity Puzzle: Plaintiff sues for a 4th Amendment violation:
Judge Robert Benitez (S.D. Cal.) was presiding over a parole-revocation hearing. In the audience was th1 3-year-old daughter of the defendant. The defendant asked for leniency, pointing to his daughter in the gallery and the danger of her falling into drug use if he were not around. Judge Benitez orders the marshal to handcuff the girl and have her sit in the jury box. he explained that he wanted to send a message: "So your dad’s made some serious mistakes in his life, and look at where it’s landed him. … And if you’re not careful, young lady, you’ll wind up in cuffs, and you’ll find yourself right there where I put you a minute ago.”
We will begin Qualified Immunity on Tuesday.
Monday audio. Bivens papers due at the beginning of class.
We continue with the Puzzles for Legislative Immunity. Why does the usual executive/legislative divide not apply to internal rules--why isn't the sergeant-in-arms or other House official performing the non-legislative function of enforcing the House rule (akin to the Mayor or Sheriff enforcing the zoning ordinance)? Break out Puzzle # 3, which has a number of issues in a number of directions.
Move to Judicial Process Immunity, covering judicial (which will be our main focus tomorrow) and prosecutorial. Read the whole Part, although we probably will cover the Intro and Judicial.
Consider how this story about two disciplined judges relates to judicial immunity.
Consider an addition Judicial Immunity Puzzle: Plaintiff sues for a 4th Amendment violation:
Judge Robert Benitez (S.D. Cal.) was presiding over a parole-revocation hearing. In the audience was th1 3-year-old daughter of the defendant. The defendant asked for leniency, pointing to his daughter in the gallery and the danger of her falling into drug use if he were not around. Judge Benitez orders the marshal to handcuff the girl and have her sit in the jury box. he explained that he wanted to send a message: "So your dad’s made some serious mistakes in his life, and look at where it’s landed him. … And if you’re not careful, young lady, you’ll wind up in cuffs, and you’ll find yourself right there where I put you a minute ago.”
The City of Springfield (OH) and numerous individuals filed suit against individuals and groups that stirred up hatred and discrimination against the city's Haitian community last fall (eating dogs, etc.). The complaint has two federal counts, both features of the KKK Act.
Section 1985(3) provides for private suit against those who conspire to deprive people of civil rights, a civil counterpart to 18 U.S.C. § 241 (from the 1870 Act). It targeted the Klan--suit runs against those who "conspire or go in disguise on the highway or on the premises of another"--and most recently was used to secure a substantial monetary judgment against the organizers of the "United the Right" Rally in Charlottesville. The HBO movie No Accident offers great behind-the-scenes look at the lawyers and the lawsuit in Charlottesville; worth watching.
Section 1986 imposes civil liability for failing to act to prevent others from violating § 1985. We will talk about § 1986 briefly when we get to municipal liability.
The lawsuit also gives a nice illustration of the role of defensive litigation: One defense these groups will raise is that their speech was constitutionally protected and thus they cannot be liable in private litigation.
In discussing state-created danger, we talked a bit about the "Blue Wall" and how state-created danger might play in a "Blue Wall" situation, in which the affirmative actions of police protecting one another enhances the danger. I shared this case in which one officer disclosed a domestic-abuse report to the husband, who was a fellow officer. This case offers a different version: The department violated protocol in investigating an officer for years of child sexual abuse (e.g., allowing him to be present while the alleged victims, his children, were interviewed). The plaintiff framed this as state-created danger; the district court dismissed because the complaint only alleged inaction; the court of appeals seemed to be looking for affirmative acts, while struggling to find causation.
Tuesday audio. Bivens Reax Papers due next Tuesday.
We continue with Immunity, starting with Legislative Immunity (Part A) on Monday and continuing to Judicial Process Immunity (Part B) for Tuesday. For each, consider how the answer to the key questions--who is immune, for what functions are they immune, and from what are they immune.
And for an additional Puzzle and to show why this is always in the news: This lawsuit against two members of Congress for voting for a bill to send money to Israel despite Israel committing what they allege to be human rights violations. What do you make of the argument by plaintiffs' lawyers that" immunity does not extend to a legislator who votes in favor of legislation when they know, or should have known, that the legislation is unlawful?
Monday audio. RPI Papers due tomorrow. Back inside, because it will be too warm this week (sad . . .). I will begin recording attendance tomorrow; you can miss 15 % of class hours before you are referred to the administration.
We will finish Bivens, so be ready to work through the three Puzzles.
• What would congressional action look like?
• 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)?
We will begin Immunity with § 5.01. We will begin with Legislative Immunity next Monday.
• What are the purposes and policies behind all immunity?
• What are the purposes of § 1983/Bivens litigation, especially for damages?
• What makes immunity "absolute," as opposed to qualified?
• What are the three aspects defining any immunity?
Here. Confer with your co-justice as to who will serve as chief and your opposing counsel to decide who represents which party. The first party listed is petitioner--the losing party in the court of appeals.
You may write your reaction paper on any case you are not assigned to judge or argue.