Damages, Injunctions, and Constitutional Attacks

You should watch current events around the various Trump Administration's actions and the challenges to those actions with this class and what we have learned in mind. The lawyers pursuing these cases are putting into practice what we do here (and in Fed Courts). And one thing it shows is how remedial limitations affect constitutional litigation and courts' ability to address constitutional problems.

Plaintiffs seek declaratory and injunctive relief. We will get deeper into remedies in the last chapter, but § 7.01[4] offers a brief overview of the process for seeking equitable relief in the trial court and we mentioned that any decision on the injunction is immediately appealable under § 1292(a)(1). But consider what happens while litigation is ongoing. Some enforcement takes place, even if it might prove invalid. The Administration's actions have a chilling effect on others, who do not engage in some conduct (e.g., coming to or remaining in the United States), not knowing how that litigation will turn out. And there is harm in waiting--consider federal employees seeking to avoid termination or to get their jobs back. And the Administration gains political points from being seen to take aggressive action, even if that action is ultimately declared unlawful--he can tell the public that it tried but squishy liberals such as John Roberts stopped him. In other words, the government has an incentive to continue arguably unlawful activity; the risk of litigation defeat and injunction may not stop it from engaging in in the moment and while it can get away with it, daring the court to stop it.

In theory, damages fill this gap, by imposing liability and a remedy for past misconduct. Government cannot act unlawfully until told to stop, because a person can recover damages for that past unlawful conduct. Thus consider why the (more-or-less) death of Bivens and other mechanisms for seeking damages from the federal government and federal officials. It is not damages-or-nothing for a Venezuelan non-gang-member, a person born in the US to parents on student Visas, or to federal employees. But injunctive relief leaves them more vulnerable than if they could pursue a more complete array of remedies. And we can say the same about expansive qualified immunity--even with Bivens, those damages might not be available.

For Monday

Audio for Monday and Tuesday. Entity Liability papers due Tuesday.

We continue with Procedure. How do 3-judge courts address criticisms of EpY? How do 3-judge courts operate? What was the other (delayed) response to EpY and how did it address those criticisms? Prep the § 7.05 Puzzles.

Then move to Part 7.B, on Habeas and Heck. Understand the basics of habeas corpus and how Heck strikes the balance between habeas and § 1983. Why insist on lines between habeas and § 1983? What role does SCOTUS review play in challenges to state convictions--how do you know when a case reaches SCOTUS on habeas or direct review?

For Tuesday

Unable to load audio at the moment; will do so when the site is working again. I think we can be outside one last time tomorrow.

We will hopefully finish Entity Liability.

    • How does the historic suits against the King's ministers explain EpY? What is an anti-suit injunction and how does it explain EpY?

    • Once you identify a policymaker who engages in wrongdoing, what is the next step in determining whether the entity can be sued and held liable?

    • Prep all the problems within Chapter 6. How does Humphrey affect injunctive relief in Noah C?

We move to Civil Rights Procedure late in the class, covering intro and Part A; many jurisdictional statutes to review, so be ready to discuss and explain the precise language of those provisions and how they operate. Note that the Title VII provisions (42 U.S.C. § 2000e) are in App. C.

    • Why is immunity, especially qualified immunity, immediately reviewable under the collateral order doctrine?

    • How do 3-judge courts and declaratory judgments respond to the concerns over EpY? Why have 3-judge courts for the three current classes of cases in the modern statute?

More qualified immunity

From the Seventh Circuit, in a fairly high profile lawsuit by a law school professor suspended because students objected to how he taught and dealt with some race-related issues. Two interesting bits related to QI.

First is on pp. 8-10. For a long time, public-employee speech was controlled by Connick/Pickering, which required a balancing of the government's interest against the employee's right to speak on public matters. Then Garcetti held that speech employees make as part of their job gets no protection at all. But Garcetti dropped a footnote (and Justice Souter a concurring opinion) suggesting that academic speech is different and that there may be a professor exception; it expressly left the issue unresolved. Some circuits have held as much--and the 7th Circuit does here. But the court says the university is not entitled to QI. Pre-Garcetti precedent protects what the prof did here, Garcetti did not resolve the issue, and no Seventh Circuit precedent applied Garcetti to a professor's classroom speech. Therefore existing precedent did place the issue beyond debate, because pre-Garcetti law told the university it could not punish this speech and no post-Garcetti precedent established differently. Implicit in this is that university officials were not free to apply Garcetti on their own or to anticipate Garcetti's application to classroom speech.

This seems to flip the presumption: Absent law telling the university the speech is unprotected, it should have understood that it was protected. It usually goes the other way (the officer can act absent clear precedent that he cannot act).

On the other hand, university officials enjoy QI as to his compelled-speech claim because no case law holds that the government as employer cannot compel its employees to speak. Barnette (which we discussed in the QI Puzzle about writing the pledge) is about students and no law addresses employees.

I expect this appear in the next edition of the book.

For Monday

Tuesday audio.

Prep the remainder of Chapter 6.

    • Which civil rights statutes validly abrogate and which do not and why?

    • Consider whether the following claims by a fired attorney can proceed under the Americans With Disabilities Act:

        • Attorney working at Greenberg Traurig

        • Attorney working for the Miami-Dade County Attorney

        • Attorney working for the Office of the Florida Attorney General

    • Can states be sued (by name) under § 1983?

    • How does the precise right being enforced matter? Consider the validity of ADA claims against a state entity in the following cases:

        • Prisoner with disability challenging prison conditions

        • Bar applicant with disability challenging conditions for taking bar exam

    • What is the doctrine of Ex parte Young? What are its terms and elements? How does it relate to § 1983?

    • What are the legal fiction(s) on which it rests? What is the argument it is not a legal fiction at all?

    • Prep all remaining Puzzles for the chapter.

I expect to finish this on Tuesday, so the next panel should be ready to go Tuesday.

 

For Tuesday

Monday audio. Immunity Papers due in class tomorrow.

We continue with the Monell Puzzles--## 3, 4, and 5. What is the defense counter to the fact that DOJ found (and continues to find) inadequacies in city hiring, discipline, and retention)? What is the easy defense argument in # 3 and the more complicate plaintiff argument (go back to review different ways of establishing constitutional liability from Chapter 3).

We then move to State Sovereign Immunity, Section 6.B.

  • What is sovereignty and what is sovereign immunity? Who is and is not sovereign?

    • What are the three competing theories of the meaning of the 11th Amendment? How would each theory handle the following claims:

        • South Carolina Citizen v. Georgia on a federal claim

        • South Carolina Citizen v. Georgia on a state claim

        • Louisiana Citizen v. Louisiana on a federal claim

        • Louisiana Citizen v. Louisiana on a state claim

    • What is abrogation and when is it permitted or not permitted and under what constitutional powers and why? How does abrogation different from "waiver by plan of the convention?

    • Consider whether the following claims can proceed under the Americans With Disabilities Act:

        • Attorney working at Greenberg Traurig

        • Attorney working for the Miami-Dade County Attorney

        • Attorney working for the Office of the Florida Attorney General

    • Can states be sued (by name) under § 1983?

    • Consider the validity of ADA claims against a state entity in the following cases:

        • Prisoner with disability challenging prison conditions

        • Bar applicant challenge conditions for taking bar exam

New limits on Bivens

From Prof. Vladeck, on an DOJ amicus brief urging further restrictions on Bivens. This includes a nice discussion of the intersection between cause of action and immunity.

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?

For return from break

Tuesday audio.

We continue with Qualified Immunity. What is the purpose of the clearly established requirement (independent of the general purposes of immunity), what problems does the requirement create, and how do you determine CE? What are the solutions to qualified immunity (if indeed it is a problem) and who should create them?

I expect QI to cover Monday and some of Tuesday (including the Puzzle in § 5.21). Then we will begin Entity Liability late on Tuesday.

Enjoy your break.

For Tuesday

Monday audio. Back outside tomorrow, as I expect another nice day.

We will finish the Prosecutorial Immunity Puzzles. How would you distinguish Lacey from a suit by a line prosecutor alleging the office discriminates against her in case assignments. Think about the "absence of jurisdiction" idea in Anilao (Puzzle # 3) and how that argues for or against immunity.

We then move to Qualified Immunity, which is almost certainly the highest-profile doctrine--and the one most criticized across the political spectrum. How did the doctrine evolve and why? What are the targets of criticism?

Under Color of What Law?

We discussed this issue a bit during the Bivens discussion: What happens if state or local government enforces federal law. The answer, as we said briefly, is that it depends on how the officer was acting. A state or local official enforcing federal law for the state or locality is under color of state law and subject to § 1983. A state or local official working for the federal government acts under color of federal law and is subject only to Bivens.

This Ninth Circuit case addresses the issue as to two local law enforcement officers working for a joint task force created by federal law and supervised by federal officials.

For Moday

Tuesday audio.

We will continue with Judicial Process Immunity, so prep everything in Part B of Chapter 5. How do the "trappings" of judicial process cut in Gibson? How does Stump v. Sparkman affect resolution of Gibson? Why is prosecutorial immunity more controversial than judicial immunity? How does the concept of "jurisdiction" affect both judicial and prosecutorial immunity? Think about the "absence of jurisdiction" idea in Anilao (Puzzle # 3) and how that argues for or against immunity in that case.

Consider an additional Judicial Immunity Puzzle: Plaintiff sues for a 4th Amendment violation:

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.”

We will begin Qualified Immunity on Tuesday.

For Tuesday

Monday audio. Bivens papers due at the beginning of class.

We continue with the Puzzles for Legislative Immunity. Why does the usual executive/legislative divide not apply to internal rules--why isn't the sergeant-in-arms or other House official performing the non-legislative function of enforcing the House rule (akin to the Mayor or Sheriff enforcing the zoning ordinance)? Break out Puzzle # 3, which has a number of issues in a number of directions.

Move to Judicial Process Immunity, covering judicial (which will be our main focus tomorrow) and prosecutorial. Read the whole Part, although we probably will cover the Intro and Judicial.

Consider how this story about two disciplined judges relates to judicial immunity. 

Consider an addition Judicial Immunity Puzzle: Plaintiff sues for a 4th Amendment violation:

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.”

Other parts of the Ku Klux Klan Act of 1871

The City of Springfield (OH) and numerous individuals filed suit against individuals and groups that stirred up hatred and discrimination against the city's Haitian community last fall (eating dogs, etc.). The complaint has two federal counts, both features of the KKK Act.

Section 1985(3) provides for private suit against those who conspire to deprive people of civil rights, a civil counterpart to 18 U.S.C. § 241 (from the 1870 Act). It targeted the Klan--suit runs against those who "conspire or go in disguise on the highway or on the premises of another"--and most recently was used to secure a substantial monetary judgment against the organizers of the "United the Right" Rally in Charlottesville. The HBO movie No Accident offers great behind-the-scenes look at the lawyers and the lawsuit in Charlottesville; worth watching.

Section 1986 imposes civil liability for failing to act to prevent others from violating § 1985. We will talk about § 1986 briefly when we get to municipal liability.

The lawsuit also gives a nice illustration of the role of defensive litigation: One defense these groups will raise is that their speech was constitutionally protected and thus they cannot be liable in private litigation.

Blue Wall and State-Created Danger

In discussing state-created danger, we talked a bit about the "Blue Wall" and how state-created danger might play in a "Blue Wall" situation, in which the affirmative actions of police protecting one another enhances the danger. I shared this case in which one officer disclosed a domestic-abuse report to the husband, who was a fellow officer. This case offers a different version: The department violated protocol in investigating an officer for years of child sexual abuse (e.g., allowing him to be present while the alleged victims, his children, were interviewed). The plaintiff framed this as state-created danger; the district court dismissed because the complaint only alleged inaction; the court of appeals seemed to be looking for affirmative acts, while struggling to find causation.

For Monday

Tuesday audio. Bivens Reax Papers due next Tuesday.

We continue with Immunity, starting with Legislative Immunity (Part A) on Monday and continuing to Judicial Process Immunity (Part B) for Tuesday. For each, consider how the answer to the key questions--who is immune, for what functions are they immune, and from what are they immune.

And for an additional Puzzle and to show why this is always in the news: 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?

For Tuesday

Monday audio. RPI Papers due tomorrow. Back inside, because it will be too warm this week (sad . . .). I will begin recording attendance tomorrow; you can miss 15 % of class hours before you are referred to the administration.

We will finish Bivens, so be ready to work through the three Puzzles.

    • What would congressional action look like?

    • What is the argument that Bivens is dead rhetorically if not legally? And what is the argument for killing it altogether (Amir's question, off the Gorsuch dissent in Egbert)?

We will begin Immunity with § 5.01. We will begin with Legislative Immunity next Monday.

    • What are the purposes and policies behind all immunity?

    • What are the purposes of § 1983/Bivens litigation, especially for damages?

    • What makes immunity "absolute," as opposed to qualified?

    • What are the three aspects defining any immunity?

Argument Cases (Updated and Moved to Top)

Here. Confer with your co-justice as to who will serve as chief and your opposing counsel to decide who represents which party. The first party listed is petitioner--the losing party in the court of appeals.

You may write your reaction paper on any case you are not assigned to judge or argue.