Two new cases

SCOTUS decided Olivier v. City of Brandon, the Heck case in our arguments. For Jasmyne, Karlee, David and Elizabeth: You can use the opinion preparation, but proceed as if this opinion does not exist and the issue remains undecided.

SDNY denied in relevant part a 12(b)(6) in a lawsuit brought by a bunch of Columbia University students alleging that crackdowns on student protests violated the First Amendment. The basis of the claim is that a legislative committee and various agencies sent letters threatening Columbia's funding if it did not stop the allegedly antisemitic protests. Some things of note for our purposes:

    1) Legislative immunity bars the claims against the legislators. Their censorious motivations do not matter. There was a legitimate lawmaking purpose in inquiring into possible Title VI violations by Columbia students.

    2) Columbia acts under color under a coercion theory--the threat to federal $ coerced them to take action (stopping student speech). The court also declined to follow a unique line of Ninth Circuit cases  holding that coercion should trigger liability for the government rather than against the coerced party, in part because Columbia was a willing joint actor rather than a victim.

    3) The pullback on Bivens did not pull back on Ex parte Young actions for prospective relief against federal officials. Had the plaintiffs sought damages, the court would not have reached the under-color-of-federal-law analysis because it would not recognize a Bivens claim on these facts. But where plaintiffs seek injunctive relief, the court must apply the same tests to decide whether the nominally private actor is subject to suit.

    4) Note the entwinement between a Vullo retaliation claim against the government and a coercion claim against the private actor, where the plaintiff is adverse to both. In our Colorado Springs puzzle, the plaintiffs sued the government but not the hotel. In Bantam Books--the publisher and distributor were on the same side against the attempt to restrict speech. Here, Columbia seemed to agree with the federal government about the need to restrict speech.

Become a better lawyer

 Two unrelated items, both of which should help you become good lawyers.

First, for all your shopping needs.

Second, the latest entry in "Do Not Be This Lawyer."

For Tuesday, March 24

Tuesday audio. No class on Monday. Entity Liability papers due next Tuesday.

Prep Part 7.A and 7.B. I hope to finish Procedure the week after next and move to Abstention.

For Tuesday, March 17

Monday audio. Please be more ready to engage tomorrow--not only the panelists, but everyone in the room.

We will finish Entity Liability, including the last part of Chapter 6 on distinguishing state and local actors. Review the recent Ninth Circuit case I mentioned here on when the DA is the state or the county and Part II of this recent SCOTUS opinion (slightly different context, but useful). 

We will begin Procedure; prep Part 7.A, including the assigned puzzles. 

Case with a liitle bit of everything

From the Ninth Circuit, rejecting a claim over plaintiff's prolonged pretrial detention; Plaintiff sued the supervising prosecutors and the county, alleging they suppressed exculpatory evidence and thus caused his lengthy detention. This case has several things we have studied or will study next week. 

• The court held that the supervising prosecutors have prosecutorial immunity because the decision to seek and not to drop charges is prosecutorial. Plaintiff tried to argue that the supervisors established and maintained a "code of conduct" that expected prosecutors to win at all costs and that administering such a code was an administrative activity. But the court said (along the lines we discussed in class) that this is not an employment policy or an office-management policy; this is a policy about how to prosecute cases. We could frame it as we did in class-to prove the violation requires proving misconduct (not dropping charges) in his prosecution.

• The court denied leave to amend to add a failure-to-train policy because the claim would fail on causation. Why? Because the line prosecutors all pointed out to their supervisors that the continued prosecution of the plaintiff was unethical and unconstitutional. The supervisors ignored those suggestions and continued the detention. But this means better training would not have avoided the constitutional violation--even had the prosecutors been trained, the supervisors still ignored their suggestions.

• The court rejected the claim against the Monell claim against the county for something we will hit on Tuesday or next week: Whether the DA's office is an arm of the state or the county? Be ready to discuss this analysis in class on Tuesday.

New legislative immunity case

From the Tenth Circuit, holding that legislators are immune from a First Amendment suit (by committee witnesses) challenging the enforcement of committee rules prohibiting dead-naming and misgendering during a hearing on trans-rights legislation. A concurring opinion attempts to apply the promulgate/enforce distinction,

Your successors in this class next spring will surely see this case during oral arguments. Meanwhile, fair game for a reaction paper (which is due in class, which we will have, next Monday).

For Monday, March 16 (when we do, in fact, have class)

Tuesday audio. Immunity papers due in class Monday. We do not have class the following Monday, March 23.

We pick up with why states can be subject to suit under Spending Clause enactments but not Commerce Clause enactments. 

Prep the rest of Chapter 6, With respect to § 6.15, have a look Part II of SCOTUS' recent decision in Galette v. NJT, considering whether a state-created entity has sovereign immunity from a tort suit in state court. The context is slightly different, but Part II offers a framework that might be of use in § 1983 actions.

I expect to reach Procedure on Tuesday, so the next panel should be ready to go. 

For Tuesday, March 10

Monday audio--Class, Extra. No class next Monday. Immunity papers due in a folder outside my office by 9:30 a.m. on Monday. One more make-up to do this semester.

We continue with the final puzzles in Part 6.A. Think carefully about First Midwest; there is an easy argument for the defense and a more complicated argument for the plaintiff that takes us back to the discussion of Chapter 3.

Then prep all of Part 6.B.

Under color of what law?

P.28 of the book mentions Yassin v. Weyker (8th Cir. 2022), which held that a local police officer detailed to a joint federal task force acts under color of federal law rather than state law, so any claim is under Bivens rather than § 1983.

The Eighth Circuit reaffirmed that conclusion last summer in a different action against the same cop, rejecting a theory under which an officer can simultaneously act under both state and federal law . SCOTUS denied cert yesterday.

For Monday, March 9 (Double Session)

Tuesday audio.

We will finish the Immunity puzzles, then move to Chapter 6 and Entity Liability; prep § 6.01 and Part A. Parts of the panel will be missing because of a competition, so we will need broader participation beyond the panel 

State-created danger

This story reflects a fairly common state-created danger case: (Usually) a woman seeks legal protection from abusive law-enforcement-officer domestic partner. Police officers tip domestic partner off to complaint. Domestic partner injures (or worse) woman. Woman sues officers or department (not the abusive partner) for the tip-off on an SCD theory--tipping the partner off worsened her situation and made her more susceptible to third-person abuse.

FTCA Primer

A nice overview from Prof. Steve Vladeck.

For Tuesday, March 3

Monday audio. We will do our first make-up class at 12:30 next Monday, March 9 in RDB 2007.

Prep the remainder of Chapter 5, including the Accountability for Federal Law Enforcement Act (look at what would be § 1983(c)). We will begin with the connection between the clearly established requirement and the purposes of QI; with how CE is determined; and the arguments against requiring CE.