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. 

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.