Taste of Qualified Immunity

From the Fifth Circuit, affirming denial of QI in a suit against a detective to created the false evidence that produced a wrongful conviction. The opinion author, Judge Don Willett, is a Trump appointee and one of the leading lower-court critics of qualified immunity. Some of that leaks into this opinion, where he offers the position of "this is all wrong, but we can't change it, only SCOTUS can."

For Monday

Tuesday audio. Immunity Reax papers due next Tuesday.

Review and prep the Puzzles for Part 6.A; don't move to 6.B until Tuesday.

    • What are the four situations that can establish municipal liablity?

    • What is "failure to [blank]" and what is the theory behind it as a basis for Monell liability? What are the elements?

    • Given the gap between municipal and individual liability, how will the municipality defend itself in a typical Monell action?

    • What is the difference between the "legalist' and "governmentalist" theories of § 1983 liability?

    • Work the Puzzles; go through all different theories of municipal liability and why they do or do not work.

    • Pay close attention to Puzzle # 3. There is an obvious reason why the Monell claim fails.  But how can the plaintiff get creative--going through everything we have covered in the class--to try to establish liablity despite the limitations on Monell.

For Tuesday

Monday audio.

We will finish the Immunity Puzzles tomorrow. Reax papers due next Tuesday.

We then move to Entity Liability, beginning with Municipal Liability. Prep § 6.01, plus all of Part 6.A. Consider: 

    • What are the arguments for and against entity (as opposed to individual-officer)( liability, given the purposes of § 1983 and the problems of individual immunity? What unique purposes does entity liability serve?

    • What is the textual and policy basis for municipal liability under § 1983? What are the textual and policy limitations on that liability?

    • When can a municipality be liable?