For Tuesday, February 17

Monday audio.

Review Judicial and prep all of Prosecutorial. We pick up with the question we left on: What lines can we use to distinguish judicial from non-judicial (especially administrative/ministerial/executive) functions.

Two new puzzles to prep:

For Judicial: Plaintiff sues for a 4th Amendment violation (pretend for a moment that Bivens actions exist):

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.”

(Note: This is more common than we would like to think). 

 For Prosecutorial: 

Gonzalez presented at the hospital with either self-induced or spontaneous abortion. The District Attorney and Assistant District Attorney, alone or in some communication and cooperation with the county sheriff (it's unclear), investigated the incident by speaking with hospital officials. The DA and ADA obtained a grand jury indictment for murder, despite a statutory exemption for the conduct of a mother toward an unborn child. Gonzalez is arrested and detained for three days. The DA ultimately drops the charges. Gonzalez sues under § 1983.

Speech-or-Debate Immunity in the news (Updated)

Because the class is about private litigation to enforce civil and constitutional rights, our discussion of legislative immunity focuses more on how it limits accountability for violations of individual rights rather than the important structural role it plays in allowing the legislature to check an overweaning executive.

A few examples in the news.

First (H/T: Noah), Rep. Ro Khanna took to the House floor to identify six people whose names had been redacted in the Epstein.

Second, a grand jury declined to indict the six Democratic members of Congress who posted a public video reminding service members of their obligation to disobey unlawful orders. This comes alongside Sen. Mark Kelly's lawsuit (Kelly is one of the six and a retired Navy officer) to enjoin an administrative proceeding to reduce his rank and pension. All six will, if it comes to it, raise Speech-or-Debate immunity as a defense to any attempt to punish or sanction them for that video. Of course, this gets tricky because immunity does not extend to public-facing statements. Many believe Hutchinson v. Proxmire and Gravel (to the extent they were trying to publish the Pentagon Papers in a book) were wrong, that public statements constitute an essential part of the legislative function.

Third, a whistleblower filed a complaint against Director of National Intelligence Tulsi Gabbard that made its way to the relevant committees and sparked some under-seal back-and-forth. Of course, any member of the House or Senate could read the whistleblower complaint (or the details of Gabbard's responses) on the floor.

That the first and third do not happen very often owes to the norms of the body (which are important) and the power of each house to punish its members--the important check on abuse of legislative immunity (wherever the power to punish may come from). 

Update: The district court granted Kelly's motion for a preliminary injunction, concluding that the military proceeding violated the First Amendment. No Speech-or-Debate discussion (again, because it probably does not apply). The discussion of "exhaustion" will come up when we hit Abstention in Chapter 8.

For Monday, February 16

Tuesday audio. Bivens papers due Monday.

We continue with Legislative Immunity. What is the source of legislative power to regulate its members? Can an individual sue to enjoin enforcement of a legislative subpoena on the ground that it violates the First Amendment? If not, how can that person raise the First Amendment? Does legislative immunity generally deprive individuals of remedies as to constitutionally invalid laws?

In addition to the puzzles, consider 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"? What should the plaintiffs do? 

Prep all of Part B (Judicial Process); we will get to judicial on Monday and prosecutorial on Tuesday. 

For Tuesday, February 10

Monday audio. Bivens papers due next Monday, February 16. RPI papers due at the start of class tomorrow.

Viz one point from class: Section 1442 is the "federal officer removal" statute, which authorizes a federal officer sued under state for actions under color of his office to remove the action to federal court. This will apply under any "converse § 1983" statute such as the Illinois Bivens Act. So these actions will end up in federal court. But state law provides the cause of action that is missing without a broader Bivens cause of action.

Prep § 5.01 and Chapter 5, Part A (Legislative Immunity). We are now shifting from the elements of the cause of action against individual officers to the defenses those officers will raise. 

In addition to the puzzles, consider 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"? What should the plaintiffs do?

Rethinking fund-stripping as remedy

Chapter 3 discussed the mechanisms for enforcing spending laws absent private litigation--the federal government stripping funds. This is unwieldy and unhelpful for reasons we discussed in class.

But this article (around p. 30) goes a step further--stripping funds is unhelpful to enforcing civil rights laws but useful for a president to use the threat to strip money (and the pretext of civil rights enforcement) to abuse his political opponents or critics. The authors argue this is what the Trump Administration is doing with Harvard, Northwestern, Columbia, and other universities. They propose that Congress eliminate fund-stripping as a remedy in favor of more vigorous private enforcement of civil rights laws (presumably by creating an express private right of action to override the recent narrowing of § 1983.

For Monday, February 9

Tuesday audio. RPI papers due on Tuesday.

We continue with Claims Against Federal Officials. 

Where do things stand with Bivens in the current moment? How would that likely affect claims against ICE and CBP officers by: 1) the families of Renee Good and Alex Pretti and 2) this guy? The Supplemental Materials post has four pieces of proposed legislation (all but "Ending Qualified Immunity Act") designed to codify Bivens or otherwise create some cause of action--the "Accountability for Federal Law Enforcement Act" is the only one that has been introduced; review and discuss the details of each. Finally, review § 2680(a) and (h), which is part of the FTCA and Westfall Act; consider how plaintiffs might use these against federal law enforcement. Read Goldey v. Fields (only 3 pages), a summary reversal of a grant of a Bivens action in an 8th Amendment excessive force claim. 

We will get to Immunities on Tuesday. 

For Tuesday, February 3

Monday audio.

We will finish RPI tomorrow, discussing the connection between constitutional and statutory claims. A city employee is harassed by co-workers and fired by her boss because of her race; what claims can she bring and against whom? RPI papers will be due next Tuesday.

Then move to Claims Against Federal Officials. This subject obviously is uniquely relevant to current events. Where do things stand with Bivens in the current moment? How would that likely affect claims against ICE and CBP officers by: 1) the families of Renee Good and Alex Pretti and 2) this guy? Review the three statutes designed to codify Bivens or to create some cause of action against federal officials? Finally, review § 2680(a) and (h), which is part of the FTCA and Westfall Act; consider how plaintiffs might use these against federal law enforcement. Read Goldey v. Fields (only 3 pages), a summary reversal of a grant of a Bivens action in an 8th Amendment excessive force claim.

 

 

For Monday, February 2

Tuesday audio. Under Color papers due at the beginning of class.

We skipped this for time: In § 3.08[4] (p.90): In 2023, the Ninth Circuit overruled precedent and fell in line with all other circuits: § 1981(c) clarifies the scope of § 1981(a) but does not provide a new cause of action. Section 1981(c) is enforced against governments through a § 1983 action. 

Finish Chapter 3, working through DeShaney and the associated puzzles. Focus on the connections between constitutional rights and statutory rights. 

For Tuesday, January 27

Monday audio. Panel # 1 papers due next Monday, February 2.

Prep and review Ch. 3, Parts B (including the text of the sub-section 23, the Free Choice of Provider provision) and Part A (on enforcing the Constitution). 

Consider an additional puzzle and whether the claim would be under the 4th or 14th Amendment:

    • Sosa: David Sosa was arrested and taken into custody twice on an outstanding warrant for a person with the same name but sharing no general features. The second time, he is held for three days until the sheriff's department runs a check to determine they have the wrong person.

More on the Church protest in Minneapolis

Following on our conversation from last week:

Three leaders of the group that entered the Minneapolis church to protest the pastor were arrested under a criminal complaint (a document that a magistrate used to issue arrest warrants); as we predicted in class, it charges § 241 conspiracy and violation of the Free Access to Clinic Entrances Act. The magistrate declined to issue arrest warrants for five others, including journalist Don Lemon. A district judge ordered the three released.

DOJ asked Chief Judge Schiltz of the District of Minnesota to issue the remaining arrest warrants; when he did not act immediately, DOJ petitioned the Eighth Circuit for a write of mandamus, although under seal and without serving the petition on the chief judge. Schilitz then sent two letters--one to the DOJ attorney handling the matter and one to the Chief Judge of the Eighth Circuit. Both are worth reading, as it is pretty extraordinary for a federal judge to say stuff like this in public documents.

Some general notes: 

    Although we will not discuss this case directly, this controversy is relevant as an example of what we will discuss in Claims Against Federal Officials and in Individual Immunities (especially Judicial and Prosecutorial).

    A complaint does not suffice as a charging instrument for felony charges; the Fifth Amendment requires those be pursuant to grand-jury indictment. The complaint is sufficient if the government pursues misdemeanor charges. Or it is sufficient to obtain an arrest warrant (which the government used to stage a perp work, complete with AI-altered photographs) and start the clock for submitting the case to a grand jury for an indictment.

    For those who have not yet taken Fed Courts (and I encourage you to do so): A magistrate is a sort-of deputy judge on the district court who handles preliminary criminal matters such as arrest warrants. The magistrate's decisions are reviewable by a district judge. A writ of mandamus is a petition to a court of appeals against a district court judge, seeking an order compelling the lower court to do something. 

Private university police act under color

So says the Sixth Circuit. 

For Monday, January 26

Tuesday audio. Argument assignments here. Here is the FACE Act, which provides for criminal penalties and presumably would be the underlying right enforced through a § 241 prosecution.

Finish the problems for Under Color. Panel # 1 will finish at some point Monday; papers will be due the following Monday.

Panel # 2 should be ready on Monday (sit at the far side of the room or the second large table if we are outside); prep the intro (§ 3.01) and Part B. What is the difference among a right, a right of action, and a jurisdictional grant? What are the four sources for rights of action for federal statutes? How can the Spending Clause be enforced without private civil litigation?

Also, since events overtook the book: The Court held 42 U.S.C. § 1396a(a)(23)(A)--known as the "free choice of provider provision to Medicaid--was not enforceable under § 1983. Be ready to make the arguments for both sides on this.

Cases for Oral Argument

Supreme Court Order granting certiorari. Standing Order on Procedure.

Make sure your name appears twice (once as judge, once as advocate). Everyone should have at least a one-case break between their cases.

Sometime in early April I will gather information as to who will represent which party and who will serve as Chief Justice for each panel. The Standing Order describes how arguments function.

Remember that you can write about these cases for your reaction papers except for the case you are assigned to argue and the case you are assigned to judge. So seven of these cases are fair game for each of you. I will provide a separate list of several cases that did not make the cut, all of which are fair game for writing.

This course in the current historical moment

This essay from David French in the New York Times touches on issues that form the heart of this case.

Focus on the beginning of the piece, imagining a conversation between Renee Good's family and an attorney. The federal statute he mentions is § 1983; we will discuss in a few weeks the 1971 case (and its later limits). And his theme--we have limited executive accountability--plays out in several other doctrines we will cover. Meanwhile, those who have taken Fed Courts should recognize the supremacy clause immunity that French mentions (and the fact that any state prosecution would take place in federal court).

French also introduces an idea that we touched on a bit in the introductory materials and will return to later: Since the Civil War and Reconstruction, we assume states threaten civil rights and the federal government will protect them. Current events suggest, at least in some places, the opposite is true. But we may lack the legal frameworks to deal with that.

For Tuesday, January 20

Tuesday audio. No class on Monday, as you all know better than I do.

Ricardo raised an issue after class: Trump could not act under color of state law because he is a federal official. This is correct. We will get into the different cause of action that are, or might be, available against federal officers; for the moment, assume the cause of action exists. For present purposes, recognize that we apply the same analysis for when someone acts under color of state law and when someone acts under color of federal law. The same issue arises in the Wasatch Equality and Google puzzles in § 2.03.

For Tuesday (not Monday, thank you very much): Prep the rest of Chapter 2. I expect to finish with this on Monday the 27th and transition into RPI. 

Also, I will post and assign cases for oral argument next week. 

Final Panels

Final panels after the jump. Please review and make sure you are assigned to 3. Six topics have seven people; two topics (on which we spend less time) have six.

For Tuesday, January 13

Monday audio. Final panel assignments will be posted after this. I will assign cases for argument early next week.

We continue with § 2.02, starting with the plaintiff's arguments in Butler. Remember to read Lindke in lieu of p.30; decide Puzzle # 2 (Davison) under that new standard. Consider: 1) Would Knight Foundation v. Trump come out differently under Lindke? 2) Can a legislator ever satisfy Lindke?

Then prep § 2.03 and the assigned puzzles. 

For Monday, Jan. 12

Monday audio. Review Assessments and Syllabus; questions in the first few minutes of Monday's class.

I wanted to draw attention to all the laws in the wave of 1960s/1970s Civil Rights legislation as well as in the post-1980s modern period. We did not discuss all of them in class. In addition to what is mentioned in the reading, note also Title IX of the 1972 Act (extending the laws prohibiting federal funds recipients (such as universities) from discriminating because of sex) and the Family and Medical Leave Act (FMLA), enacted in 1993.

For Monday, prep §§ 2.01-2.02, along with Lindke (replacing the discussion on p.30).

Welcome to Civil Rights

Welcome to Civil Rights and the FIU Civil Rights Blog. Below are several posts you must read and follow prior to our first class meeting on Monday, January 5.

All classes will be recorded and posted to the Civil Rights Blog. 

To read the blog, go to http://fiucivilrights.blogspot.com; posts can be read going down from most recent to least recent. For complete information on the purposes and uses of the blog, see Syllabus and Assessments.

 

Panels will be assigned and posted the week prior to class, once I know the final enrollment.

 

Finally, to put you in the mood for the course:

Panel # 1 (for Second Class)

Everyone will be assigned to three (3) panels, at random. I have assigned only Panel # 1 (Under Color); you will begin on the second day of class (Monday, January 12). I will provide final panel assignment during the second week of class, once enrollment is final. The remaining topics are also listed below.

Panel # 1: Under Color (6)

Seth Morton               Allyssa Lopes

Eliza Anderson          Ashley Miranda

David Wilson            Karlee Beneventano

Noah Fineberg 

 

Panel # 2: Rights, Privileges, and Immunities (7)

Panel # 3: Claims Against Federal Officials (6)

Panel # 4: Individual Immunities

Panel # 5: Entity Liability

Panel # 6: Civil Rights Procedure

Panel # 7: Abstention

Panel # 8: Remedies