Lawsuit v. FIU

Filed on Monday. For our purposes:

• Naming FIU is a mistake, a waste of time, or belt-and-suspenders caution. Naming Pres. Nunez in her official capacity gets to EpY. Naming her in her individual capacity enables a damages claim. Since he did not name any other individuals, the theory must be that the president made all relevant decisions in ordering the investigation and thus "caused' the violation. Otherwise, plaintiff probably needs to name the other defendants involved in the investigation and the decision to investigate the speech.

• He will have a hard time overcoming qualified immunity to get those damages. There is almost certainly no factually similar precedent. Nor is this obvious. In fact, a recent Eleventh Circuit order in a case involving antisemitic speech by a UF lawsuit went the other way.

• Note how little time the case will spend in the district court. He will likely seek a preliminary injunction in the coming weeks; the grant or denial will be appealable (and will be appealed), putting the case in the 11th Circuit within a matter of weeks.

Stay tuned.

Orders from Monday

 Two noteworthy items relating to qualified immunity on today's SCOTUS Orders List.

• The Court summarily reversed the Second Circuit's denial of qualified immunity, over a dissent by Justice Sotomayor for Kagan and Jackson. The order is further evidence that, whatever hope people read into Riojas, the Court is not backing off its maximalist approach to qualified immunity. The Second Circuit relied on circuit precedent written by then-Judge Sotomayor. The majority held that the overlap between that precedent and the current was insufficiently precise.

• If you skip to p.33 of the full Orders List: The Court denied cert in Villeareal v. Alaniz, a closely watched QI case arising from the arrest of a journalist on charges of soliciting benefits from public servants for asking a source questions. Justice Sotomayor dissented from the cert denial, insisting this was a case of obviousness--the right of journalists to ask questions of government employees is "beyond debate" without factually similar precedent. And no judicial precedent was necessary to place officers on notice that they could not attempt to bring the charges they did.

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 several 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. That adverse position to the plaintiffs makes them a target for the suit and state actors.

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.

Recent developments

1) The group Protect Democracy has drafted a Model Universal Constitutional Remedies Act, a uniform converse-§ 1983 statute that all states can adopt. (Akin to the UCC). The main text copies § 1983, defining under color as under the law of any government. It also codifies several non-textual pieces of § 1983 (immunity, statutes of limitations, attorney's fees).

2) A fun judicial immunity puzzle: A retired state trial judge was temporarily reappointed to the bench for a one-year term. When word of the judge's pro-MAGA pre-appointment speech got out and a pressure campaign began, the Illinois Supreme Court vacated the appointment. The judge has sued the justices, alleging violations of due process and the First Amendment. Given our discussion of judicial immunity, note the remedies sought. Should judicial immunity apply to the damages claims? Note that another doctrine we will discuss later in the semester may arise in this case. Fair game for a paper.

For Monday after Break

Tuesday audio. Bivens papers will be outside my office by tomorrow or Thursday morning, at the latest.

Continue with Prosecutorial Immunity, including the extra puzzle I posted for today.

Prep Qualified Immunity, which we will reach in the second half of class Monday and into Tuesday. As part of qualified immunity, review the proposed Accountability for Federal Law Enforcement Act (we looked at it for Bivens), for what would become § 1983(c).

Enjoy your break. 

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.