CIVIL RIGHTS – FALL 2014 – COACH K
Introduction to § 1983 and Bivens Actions
 Introduction
 Course Overview
 It’s about constitutional tort litigation and constitutional remedies
 It deals with the question of what remedies are available to someone who suffers a violation of their constitutional
rights  in regular tort litigation, it’s damages
 There are barriers to suing a cop in tort @ state law  state court not a good place to be
 The answer rests with § 1983, providing a remedy against someone who violates constitutional rights while acting
under color of state law; individuals may sue state actors who violate their constitutional or federal statutory
rights in FEDERAL COURT
 History of § 1983
 Came onto the books in 1871 as a means by which Congress enforced the 14th Amendment; Congress used its
power under § 5 to pass legislation that was appropriate to affect the guarantees of DUE PROCESS and EQUAL
PROTECTION
 2 waves of legislation: (1) post-Civil War (13th & 14th Amendments); (2) post-1960s, prohibiting racial
discrimination in places of public accommodation, federally-assisted programs, employment discrimination,
all derived from the commerce clause
 13th Am: no state action component; congressional legislation to enforce had to be just rationally related
 14th Am: not related to race; there is a state action requirement (which leads into “under color of state law”)
 BUT, § 1983 didn’t mean anything until after Monroe, which sparked litigation at a high rate
 We have a vast body of law that pretty much developed over night (~ 30 years); the courts haven’t had time to
sit back and reflect on it; it’s an immediate response to specific problems
 It’s also a very politicized area of law; the entire basis of the claim raises a federalism concern with using the
federal courts to crack down on state actors (the individual is bypassing the state system)
 THUS, as a different majority of the Court takes over, it switches directions; it doesn’t overrule its prior
decisions SO the result is things not being linear or consistent; considerations  policy involved and
workload of the court (a sense that the Court has burst its bounds)
 1983 also deals w/ things that we don’t think of as civil rights claims, ex. takings claims; it reaches into all
sorts of areas (zoning, environmental, & education), thus is raises the issue of being an overly broad statute
 § 1983: Every person who under color of any statute, ordinance, regulation, custom or usage . . . subjects or
causes to be subjected any citizen of the U.S. . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and its laws, shall be liable to the party injured in an action at law
 § 1983
 Monroe v. Pape (U.S. 1961): facts—officers broke into home, ransacked it, and detained the people and brought them
to the station; they didn’t file charges in violation of the 4th Amendment; the individuals brought suit for damages
under 1983, alleging that the officers had no arrest warrant or search warrant & acted under color of the statutes of
IL & Chicago; Monroe wanted damages for the violation of his 4th Am rights (this was novel at this point) the
district court dismissed, appellate court affirmed, & the Supreme Court reversed as to the OFFICERS ONLY;
 RULES
 Why this case was unique
 Seeking DAMAGES for a constitutional violation; usually the constitutional violation is invoked as a
defense in criminal proceedings (here, motion to suppress the evidence obtained as a result of the violation)
 Historically, the Constitution was a defense/shield; here, he was using it as a sword; to get damages 
can the Constitution function as a sword?
 Must assert deprivation under color of statute of right guaranteed  here against unreasonable searches in
violation of the 4th Amendment
 Congress intended to give a remedy to those who were victim of a violation of § 1983
 The federal remedy is supplemental to the state remedy; the state remedy need NOT be first sought &
refused here before the federal remedy is invoked (thus, the fact that IL outlaws unreasonable searches and
seizures is no barrier to this suit in federal court)
 Purposes of § 1983
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 To override certain kinds of state laws: this would apply to explicitly unconstitutional state laws; by 1871,
there weren’t a lot of facially unconstitutional state laws
 To provide a remedy where state law is inadequate: example of African-Americans in Kentucky not being
able to testify
 To provide a federal remedy where the state remedy, though adequate in theory, is not available in practice
because the state is unwilling to enforce the law (“it was their lack of enforcement that was the nub of the
difficulty”): this is merely lack of enforcement
 HERE, the cops argue that they weren’t acting under color of state law because they were in violation
of the state law; the Court did not agree  the Court didn’t limit “color of law” to what the state
allows them to do; they DID act under color because they used their authority as cops to do what
they did
 Color of law means authority of law and they were exercising power that they RECEIVED
FROM THE STATE (color of law = color of state authority)
 ANALYSIS of the Court
 First: what power does the Constitution give Congress? The power to legislate against individuals
who are abusing their state power? 14th Am is against the state & § 5 gives Congress the power to
enforce it against the state; the Court held that abuse of state power is state action b/c we’ve
recognized state action when the action is in exercise of state power in violation of state law, thus
Congress has the power to regulate action that is using state authority but in violation of state law
 Second: did Congress intend to reach this conduct? What did Congress mean when it used the term
“under color”? Did it intend to get after persons who violated state law? The Court looks @ 1983’s
3 main aims & used the lack of enforcement purpose for this case  the thrust of the statute is
to get at the lack of enforcement by allowing a claim against the police
 ***KKK: the state’s weren’t enforcing laws against them! Congress was responding to a state
of lawlessness in the South & the Klan was responsible for the state not doing anything about
it; there were remedies on the books that individuals couldn’t actually invoke (ex. was
lynching)
 Problem: Congress couldn’t reach the private party, KKK, b/c § 5 of the 14th Am only reaches
to state action (today, we’d think commerce clause); so they provided a remedy against those
enforcing the law but actually not enforcing it and abusing their power
Issue of stare decisis as to what “under color” means
 Term from criminal civil rights legislation from § 242; Screws: criminal civil rights statute would allow
prosecution of a person who used state authority but violated state law; the Court adopts this definition for
purposes of § 1983; it really uses Classic’s definition  “misuse of power”
 Is there a mens rea requirement? The criminal statute requires that the violation be willful, so does §
1983? NO  § 1983 doesn’t have the word in it like § 242; criminal statutes have to be read to not be
vague; and the nature of the claim is different, § 1983 should be read against the background of tort law
Municipal corporations WERE NOT within the ambit of § 1983; this has changed to where now they are
(Monell v. Dep’t of Social Servs.); also, states are not “persons” that can be sued under § 1983 (Will v.
Mich. Dep’t of State Police)
 TODAY, the city would be held liable, too
DISSENT
 Congress intended to cover only instances of injury for which redress was barred in the state courts because
some statute, ordinance, etc., sanctioned the grievance complained of (here, the state didn’t sanction the
officers’ actions, so they shouldn’t be liable)
The Court used the reasoning of United States v. Classic  misuse of power, possessed by virtue of state
law and made possible only b/c the wrongdoer is clothed with the authority of state law, is action taken
“under the color of state law”
 Screws v. US: under color of state law does not only include action taken by officials pursuant to state law
The Court determined this is a federal right in federal court
 Going to state court wouldn’t really solve the problem here; you have politically elected state officials as
the litigators and judges  they want to get reelected
 Federal jurisdiction is important for independence and broader venue
 The federal remedy is supplementary to the state law remedy BUT it allows a bypassing of the state
system—“it is no answer that the state has a law which enforced would give relief” [DISSENT: thinks
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federal courts should only step in if the state is unwilling or unable to enforce the law; otherwise, you
deprive the state of their ability to fix its own problems first; judicial restraint argument]
 Notes on Monroe
 What effect did it have: expanded the use of § 1983; gave a broad reading to “under color”; did away w/ the notion
that Congress could only reach misconduct that the state authorized or tolerated so that it amounted to government
“custom or usage” and thus Congress couldn’t reach actions of state officials who violated state law b/c it wasn’t
state action; Monroe—they were USING state power as an instrument for abuse
 It allowed the Constitution to act like a sword; used offensively to sue someone who violates constitutional
rights; it’s a federal right in federal court (jurisdiction is not conferred by § 1983)
 Side notes
 Federal forum: federal question (§ 1331) and civil rights claims (§ 1343(a)); § 1331 NOW doesn’t have an
AIC requirement, so parties just use this now to invoke federal jurisdiction; § 1343(3) specifically gives federal
jurisdiction over claims that someone acting under color of state law deprived them of constitutional rights
AND this stems from the same piece of legislation that created § 1983 (see Thiboutot); common practice,
invoke both § 1343(3) and § 1331
 Benefits of federal forum:
 § 1983 gives you attorney’s fees (§ 1988);
 There’s no ceiling on § 1983 damages like states have on tort claims (no notice of claim, for example)
 Less procedural hurdles than brining a tort action
 Federal law still applies in state court but federal courts may be more willing to enforce the law on
the state officials
 Federal courts are better run (some belief)
 Different jury (if you’re in the Western District, you’re drawing from the smaller counties, less
minority representation; less likely to have people that have been in jail/dealt w/ law enforcement)
 Attorney’s fees are available to prevailing parties
 Jury trial—tort liability and “actions at law” are covered by the 7th Amendment’s jury trial guarantee
 Suits Against Federal Officials
 Overview
 What would’ve happened if the cops who broke into Monroe’s apartment in violation of the 4th Amendment were
federal agents and not Chicago police?
 Monroe couldn’t have sued under § 1983; the federal officials are not acting under state law; they’re acting
under federal law
 There is no statute that functions as a federal analogue to § 1983, providing a damages remedy against federal
officials who violate constitutional rights
 Bivens addresses the question of whether there’s a remedy available for someone who suffers a constitutional
violation at the hands of a federal agent or someone who’s acting under the color of federal law  the case is
virtually the same as Monroe
 Bivens (U.S. 1971) [claims against FEDERAL officials who violate the Constitution; federal analogue to § 1983]
 Facts: 4th Amendment case w/ similar violations to Monroe; plaintiff was DAMAGES; using the Constitution as a
sword; but can’t bring a § 1983 suit and there’s not another statute
 The Court held that he could sue for damages because the FBI violated his 4th Am rights; it didn’t matter
that there wasn’t a statute on point
 Reasoning  different than a tort b/w 2 private individuals b/c “an agent acting—albeit unconstitutionally—
in the name of the US possesses a far greater capacity for harm than an individual trespasser exercising no
authority other than his own”
 Rules
 The 4th Amendment is a limitation on the exercise of federal power regardless of whether the state in whose
jurisdiction that power is exercised would prohibit or penalize the identical act if engaged by a private citizen
 A person whose 4th Amendment rights are violated by a federal agent acting under color of federal law
may recover damages
 If the petitioner could demonstrate an injury consequent upon the violation by federal agents of his Fourth
Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally
available in federal courts
 Defendants argue this should be brought in state court in tort  the 4th Amendment is relevant as
preventing the agent from asserting the proper exercise under federal authority; the Court doesn’t agree:
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 We’re dealing with a unique federal right with contours that are different from and independent
from the contours of state law:
 Nature of the 4th Amendment claim: it’s not just a defense at state law; it has an independent
role; state law and 4th Amendment protect different interests; it’s not like trespass where you can
just call the cops—the plaintiffs here felt like they HAD to abide by the FBI
 States can’t seek to limit the scope of the federal interest
 So then we have an independent right; something that’s sufficient to be a legally protected
interest—that also provides the basis for a claim
 The remedy can be compensatory damages:
 The Court can imply a direct remedy under the Constitution; they do so with equitable relief
 The Court cites to Marbury v. Madison  if there’s a right there’s a remedy
 What the case is not:
 Federal fiscal policy and congressional employee not acting in violation of the Constitution but in excess
of the authority delegated to him by Congress  this is a special factor counseling hesitation in the
absence of congressional action (it’s a substantive area that’s so sensitive that the court shouldn’t go there
without congressional direction BUT this is NOT one of those areas here)
 No explicit declaration that persons injured by federal officers in violation of the 4 th Amendment may
recover money damages  no congressional declaration of availability of an alternative remedy (here,
Congress was silent)
 Concurrence (Harlan): Congress does not have to explicitly grant the federal courts power to give damages for
violations of constitutional rights by federal agents; if they can grant equitable relief, they should be able to
grant damages; courts have the power to ensure those rights are protected & damages does that; just b/c the
conduct won’t be deterred shouldn’t prevent him from getting damages
 Whether authorizing a damages remedy is something that is uniquely in Congress’ hands or something
that the court has the power to do  when Congress has granted a right via a statute, the Court can give
a remedy for violation of that statute; it should be NO DIFFERENT from rights guaranteed by the
Constitution
 Furthermore, the Court already grants equitable relief for constitutional violations  so they’ve
implied a remedy for constitutional law before (ex. school desegregation case in D.C.; equitable relief for
EP violation)
 DIFFERENCES: = source of the right & the type of implied remedy  these weren’t keeping the
Court from distinguishing the two
 HERE, the claim is like a tort claim that is normally compensable (trespass, invasion of privacy, etc.);
whether damages are appropriate or “necessary” (§ 5)  it is necessary here b/c damages are the only
thing that’s going to do any good here (“For people in Bivens’ shoes, it is damages or nothing”)
 Historical examples: Title 9 of the Civil Rights Act which prohibits gender discrimination in education; it
guarantees the right to equal treatment but it doesn’t specify a remedy  it’s a controversial idea & has roots
in Marbury v. Madison
 Dissents
 (Burger): federalism concerns (re: separation of powers); this is judicial legislating—the Court is exercising a
power that it doesn’t have; Congress should decide legislatively if there should be some sort of remedy;
Congress did that with § 1983 but has not enacted the federal analogue (merely take out the “state” limitation)
 The Court lacked power to do this
 Concern that if the Court had the power, it shouldn’t: Congress is better suited to determine the
appropriate scope of any remedy & Congress is better suited to determine if that’s where courts should
spend their time (the majority doesn’t ignore this)
 (Black): this is judicial legislating; Congress never created a CAX for violations of federal officials (only for
state officials); concern w/ burden on federal courts
 IMPLICATONS
 How far does this extend? Struggle in terms of (1) the constitutional claim being asserted & (2) how much
we should be deferential to congressional action
 The Court expanded Bivens in the early days but has more recently refused to extend it anymore & has cut
back on the interpretation
 Expansion: Passman and Carlson
 Davis v. Passman (U.S. 1979) [NO ALTERNATE REMEDY AND NO SPECIAL FACTOR]
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Facts: Congressman filed female administrative assistant based on gender discrimination; the Congressman had
no been reelected; she sued claiming her 5th Am EP rights were violated (D.C. = federal law; reading EP as an
aspect of DP); Supreme Court held she had a cause of action and the federal court had jurisdiction and that damages
was appropriate relief
 Those who have no effective means other than the judiciary to enforce her rights must be able to invoke the
jurisdiction of the court for the protection of their justiciable constitutional rights = no alternative remedy (dude
couldn’t rehire her b/c he didn’t have the job anymore)
 No special factors counseling hesitation (perhaps with the Speech/Debate clause but it doesn’t have anything to
do with personnel decisions)
 Carlson problem [NO ALTERNATE REMEDY]
 Facts: wrongful death case for son killed by prison guards based on racial prejudice by refusing to give him
necessary medical treatment; should they be able to sue in federal court? This is an 8th Amendment claim—a right
to be free from deliberate indifference to serious medical needs (it states a substantive claim)
 Whether a Bivens action is appropriate:
 Analysis
 Is there a right independent of state law that there’s a federal interest in? Contours of the 8 th Amendment,
looking to see whether it’s an independent right; the Court says YES
 Is there an independent interest? If so, the court will imply a remedy
 Whether one of the factors in Bivens goes against implying a remedy?
 Counseling hesitation: prisons have special concerns that require close discipline and security
measures not used in a free society; determining how a prison is run is a sensitive decision that the
courts aren’t fit to tackle BUT here this is a tangential question as to whether everyone deserves
medical care, so no special factor counseling hesitation
 Alternate remedy: FTCA—there is a possibility of one; suing the government in tort (for medical
malpractice); BUT the FTCA isn’t as good; it doesn’t have to be a perfectly equal alternative remedy,
though
 Court
 Uses the specific language from Bivens, congressional declaration that there’s an alternative remedy
(nothing the FTCA says it’s an alternative); if Congress hasn’t declared it as an alternative, we shouldn’t
assume that Congress intended for it to function as an alternate remedy  also argue that it’s not an
adequate remedy b/c there’s a prohibition against punitive damages when suing an individual officer
& no right to a jury trial (it all depends upon whether the state allows the claim); Congress didn’t intend
for it to be a specific remedy for the constitutional violations b/c it’s a state law tort
 The majority RECOGNIZED a Bivens claim because FTCA was not an “alternate remedy”  it’s a
waiver of sovereign immunity not a remedy to sue an agent of the government specifically; it’s not a
remedy for a constitutional violation At ALL
 Is this consistent with Minneci v. Pollard?
 Notes
 The Court has cut back dramatically on this ^ expansion in the years since 1980 but it has not overruled Bivens;
Scalia and Thomas would like to just keep Bivens, Passman, and Carlson and stop there
 Narrowing Bivens in 3 ways:
 Questioning the idea that all constitutional rights are “independent” rights
 Changing its view of special factors and congressional action for alternate remedies (Wilkie—Court sticking
with same two factors but phrasing them differently and making them much broader)
 Narrowing the class of defendants who can be sued under Bivens
 Wilkie [THE KEY TO WHERE THE COURT IS NOW; expanding Bivens exceptions]
 Facts: π ranch owner who acquired the land from someone who promised the government as easement; the
government never recorded the easement and now wants Wilkie to recognize it; the government intimidated him
into giving it to them; he brought a Bivens action in response arguing that they violated his substantive due process
right (available for land use decisions)
 The Court refuses to recognize a Bivens claim
 If an alternative process for protecting the interest amounts to a convincing reason for the Judicial Branch to
refrain from providing a new and freestanding remedy in damages, and if not, use judgment that is appropriate
for a common-law tribunal
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 ***This is like part 2 of the Bivens facts but it’s different because there’s nothing about congressional
declaration of an alternative remedy; it isn’t focusing on whether it’s equally effective but whether
it’s close enough to convince the Court that maybe it shouldn’t get involved here  is there an
alternative remedial process that’s a reason to not get involved
 ***Not whether Congress has explicitly designated an alternative remedy but whether there’s an
alternative process amounting to a convincing reason (is there anything out there); Congress is capable
of saying what it wants
 ***Second part = Special factors: Congress was better suited to evaluate the impact of a new species of
litigation & tailor any remedy to that problem  now it’s a broader question of looking to the factors,
& whether this is a proper case that includes the special factors that might counsel hesitation
 ***Now focused on whether it was appropriate for the tribunal to create a new CAX (not a laundry
list of special factors; may include discipline w/in the military structure)
 IMPLICATION
 This case built on Bivens for reasons to not allow someone to sue under it
 The Court said there are remedial processes here that could vindicate virtually every injury he suffered  APA
remedy for agency overreaching; trespass claim; conversion claim for cattle—none is a single freestanding
claim that would get at everything that’s going on; the Court punts on the issue:
 BECAUSE there’s a special factor—the difficulty of defining a CAX; the government can ask for an easement
every single day from you—there’s a fuzzy line to when it gives you a claim, therefore, Congress is more
suited to evaluate the impact of this species of litigation
 The Court doesn’t consider whether there’s an independent federal interest; they aren’t denying there’s a
constitutional claim; just saying it’s too fuzzy
 NOW, it’s more of a balancing test of whether the Court should get involved; it eliminates the
presumption that Bivens is available
 Exactly as far as we’ve gone and no further
 Narrowing the Class of ∆'s [another means of limited Bivens]
 Generally, limiting it only individual ∆'s, not an entity
 Claims only lie against individuals, not agencies FDIC v. Meyer
 Federal agencies not amendable to suit under Bivens; we can only sue the individual officer(s) who are
responsible for the violation
 Claims do not lie against private entities (corporations) Malesko
 Bivens action could not lie against a private prison corporation
 ***The court purpose of Bivens is to deter individual wrongdoing
 Allowing claims against entity would direct everyone’s attention there b/c of their deep pockets; there is
less jury sympathy & it would detract from Bivens’ core purpose
 The predominant view was that private prisons are state/government actors because corrections is a public
function; if the private prison is responsible for a constitutional violation, can one sue that private prison?
This court said NO
 The Court also held that the π is NOT w/out remedies
 Bureau of prison had remedial processes
 Tort suit in state law
 ***HUGE jump b/c this is the first time the court is looking at what state law does; the prior cases
have all looked at congressional action & the general remedial processes available in the federal
system [first time state tort relief could be a reason against allowing Bivens]
 The fact that state law remedies provide roughly similar incentives for ∆'s to comply w/ the 8th Am
while also providing roughly similar compensation to victims of violations
 DISSENT: the only question in looking to alternate remedies should be what’s federally available
 Minneci v. Pollard (SCOTUS)
 π suing private individuals of the prison for violation of 8th Amendment in refusal to provide medical care; the
court wouldn’t recognize a Bivens act, using the Wilkie alternate remedies prong, deciding that the availability
of tort relief to an individual suing a private individual who acted under color of federal law was a reason for
precluding Bivens; federal officials would normally have immunity under FTCA, here, they weren’t actually
federal employees so they could be sued in tort
 Where a federal prisoner seeks damages from privately employed personnel working at a privately
operated federal prison, where the conduct allegedly amounts to a violation of the 8 th Amendment, and
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where that conduct is of a kind that typically falls within the scope of traditional state tort law, the
prisoner must seek a remedy under state tort law
 This case BROADENS the idea of ALTERNATIVE REMEDIES
 This was the last Supreme Court case on the Bivens issue
 ***SINCE Minneci, 7th Circuit allowed claim against FBI agent who framed the π, violating Brady for failure
to reveal exculpatory information—no alternative remedy for the DP violation (habeas didn’t provide
compensation) and defendant couldn’t provide special factors counseling hesitation  it’s significant that
this came out of the 7th Circuit because it isn’t particularly liberal
 7th Circuit wouldn’t allow a Bivens action against Rumsfeld for interrogations of military contractors; the
interrogation cases have failed because the court doesn’t want to get involved to figure out what is proper
foreign policy to combat the issues
 Interrelationship between Bivens and 1983
 Two ways they’re interrelated
 Bivens is the rough federal analogue to § 1983 and precedent is generally interchangeable when its on an
issue the 2 have in common (see note 11, p. 26)
 As Congress cuts back on § 1983, the question comes up whether anybody can somehow get around that
retraction by bringing Bivens (can you make an end-run on § 1983 with Bivens)
 Example
 1978, Bivens on books but court hadn’t overruled 2nd part of Monroe, so you can’t sue municipalities; want to
sue city of Memphis but can’t under § 1983
 Options
 Sue under state provision
 Sue under generic tort claim
 If you want federal jurisdiction for a constitutional violation, can you bring a Bivens action? You’d argue
the court should imply a cause of action under the 14th Amendment BUT the defendant is going to say that
the presence of § 1983 is an alternative remedy (but Monroe eliminated this possibility)
 Congress has spoken on this issue: § 1983 is STILL the alternative because it’s the remedy Congress
designed to handle this field; you don’t need the exact same relief; it’s enough that there’s some
remedy in the field that you could use (Jett)
 Jett: Plaintiffs cannnot avoid the limits of the reach of § 1983 by asserting Bivens claims; the doctrine of respondeat
superior for a municipality is not available for Bivens
 One can’t use Bivens as an end-run on § 1983 (didn’t explicitly reach this issue but in dicta it approved of
the circuits’ idea that § 1983 is what’s out there)
 What if Congress were to repeal § 1983? Unanswered question; you could then say there needs to be some remedy
and bring a Bivens action; is there ever some guaranteed remedy? This would become an issue if Congress tried to
preclude any remedy for violation
The Prima Facie Case [2 parts—(1) under color of state law and (2) violation of constitutional or statutory right]
 Generally
 2 elements
 Conduct complained of was committed by a person acting under color of state law
 Goes to the permissible defendant (couldn’t bring 1983 action in Bivens because it was a federal agent acting
under federal law)
 Monroe didn’t resolve whether persons who are NOT government employees but who receive power from the
government, act under state law
 If satisfying state action, the satisfying this prong (Lugar) but not vice versa
 Conduct deprived a person of rights, privileges, or immunities secured by the Constitution or federal
statutory laws of the United States
 Statutory claims are a minor subset of § 1983 actions
 For the most part, it deals w/ constitutional violations
 To make out a constitutional violation, in most cases you’ll need to show state action b/c only the state can
violate the Constitution in some instances
 State Action/Action “Under Color of Law”
 Lugar v. Edmondson Oil Co., Inc. (U.S. 1982)—facts: D attached P’s property to secure debt; it sought prejudgment
attachment, clerk issued the writ, and it was executed by the sheriff; later it was determined that defendant didn’t satisfy
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statutory requirements to attach P’s property in the first place; P brought 1983 action alleging DP violation with joint
participation with state officials; the Court found Edmondson to be engaged in action under color and in state
action (joint participation)
 Overview
 Interrelationship between state action and under color of state law  they are often the same in practice and
are always interrelated; if conduct IS state action, it’s ALSO under color (if a defendant is a state actor, he is
also acting under color of state law BUT the converse may not be true); the under color is a broader concept
and subsumes state action  finding state action kills 2 birds with 1 stone
 Important case
 It speaks in detail about the relationship b/w state action & under color (Powell’s dissent important b/c he
thinks it’s not a state action case)
 As a state action case b/c it spells out the method of the state action inquiry for a narrow set of cases AND
provides a general framework for the state action inquiry which codifies prior state action cases; it’s the
general framework the court uses for most state action cases
 Rules
 For actions brought against a state official, state action & under color inquiries are identical (fn. 18—under
color is not always state action, “w/ knowledge of & pursuant to that statute”)
 If you’re suing a state official who’s exercising state power (Monroe) the 2 concepts of state action &
under color are identical b/c the state official who’s exercising state power is a state actor & is acting
under color of state law
 If the person is a private individual, the SAME is true  ex. Just an individual who doesn’t like who
you’re voting for & they beat you up to put you in the hospital; the person isn’t violating your constitutional
right if they’re acting ALONE; BUT in the case of joint action (private person acting jointly w/ state
to accomplish something), the state is engaged in station action but what about the private person?
MAYBE
 Constitutional requirements of DP apply to attachment, thus government action will be required in order to
allege a violation of attachment rules
 State action is an appropriate inquiry to start with
 Is there state action? 2-part test (see below)
 Analysis for STATE ACTION: 2-part test
 FIRST INQUIRY: The deprivation is caused by an exercise of some right or privilege created by the state
or by a rule of conduct imposed by the state or by a person for whom the state is responsible (the origin
of the right/ability to act; whether the person is getting authority to do what he does from state law)
 Whether conduct is attributable to the state; whether it was a right created by the state  here, the
process of attachment COULD be ascribed to the state b/c the government allowed this process
 To say that D’s conduct was unlawful means that he went in contravention of the state statute & thus the
conduct CANNOT be attributed to the state; thus as a private actor, dissimilar to the facts in Monroe, D
cannot be liable under § 1983
 HE must allege that the state statute is DEFECTIVE & that the private party acted under the authority of
it
 Ex.If the complaint says Edmondson unlawfully invoked the statute b/c he knew there was no basis
for attached, you fail prong 1 b/c= you can’t attribute the action to state law b/c you’re violating state
law (not under color of as state actor b/c not doing something attributable to the state)
 HERE, he was acting within the confines of the law
 Moose Lodge: liquor licensing claim; the Supreme Court found that the lodge’s refusal to serve was not
state action or attributable to the state b/c there was no state rule & state hadn’t done anything to
encourage discrimination
 SECOND INQUIRY: The party charged w/ deprivation must be a person who may be fairly said to be a
state actor (is, acted together, or obtained aid, or otherwise chargeable)
 Whether private parties may be appropriately characterized as “state actors”
 The Court imports all pre-existing state action law (public function, state compulsion, nexus, joint
action) AND then says there’s something special going on w/ prejudgment attachment cases but
doesn’t call any prior law into question
8
 Flagg Bros.: warehouse owner selling goods if doesn’t pay pursuant to NY UCC; the Court held there was
no basis for calling the warehouse a state actor b/c the sale was independent of the state (no petition
to the court or sheriff’s help); this failed the second prong
 HERE, there was joint participation with prejudgment attachment!
 ***The two questions collapse into each other when you’re dealing w/ a state official but they diverge
when the claim is directed against a person without such apparent authority, such as a private party
 A private party’s joint participation w/ officials in seizure of disputed property is sufficient to characterize
that party as a state actor for the purposes of the 14th Am.; thus, he was acting under color
 To act under color, the party does not have to be an officer of the state but MUST be acting jointly w/ an
officer of the state (invoking aid is sufficient where the state created a system like the one here)
 SUMMARY
 Rule of conduct from the state
 Fairly said to be state actor (public function, compulsion, nexus, prejudgment joint participation)
 HERE: to the extent that a private party acts together w/ the state to seize someone else’s property
to execute a prejudgment attachment, that the party is engaged in state action b/c the rule of conduct
comes from the state AND in this context of prejudgment attachment, the joint participation is
enough to fairly call the party a state actor
 Dissent
 This was a presumptively valid statute, thus it’s unfair to hold private parties liable for statutes later deemed
unconstitutional
 FN. 23: this only applies to prejudgment attachment
 There may be limits—sometimes a private person’s working w/ the state makes that person a state actor
w/o saying that every time someone calls the cops that they are magically a state actor
 Also, the majority recognizes the potential unfairness of this but there’s always an affirmative
GOOD FAITH defense
 Should use the conspiracy analysis (which didn’t exist here)
 Majority was relying on Adickes, which was an under color case not state action
 Joint participation issues are usually “under color” cases and that was the case in Adickes  it was a private
party invoking state aid to accomplish private purposes BUT he thinks this is different from Adickes b/c
there was a conspiracy claim there but here, there wasn’t thus it shouldn’t be considered under color here
 1983 is supposed to prevent people from using the cloak of authority to do unconstitutional things; HERE,
there was an exercise of a valid legal process
 It was private action—filing the lawsuit; the lower court agreed with this analysis but the SUPREME COURT
determined the company was a proper defendant
 Notes on Lugar
 It’s not clear whether Lugar is limited to prejudgment procedures
 BUT, the court now uses the Lugar two-prong approach for state action cases; at first, the courts were unclear
as to whether to use Lugar (generally or just in prejudgment attachment cases; where the law spells out a
procedure to get someone else’s property as some component of a larger dispute and the private party is
working jointly w/ the sheriff or other state official to do that)
 There is a line-drawing issue—and the courts have limited it to attachment and garnishment cases
 This could come up in eviction cases  when someone doesn’t pay rent; give notice and then you can evict
them; the landlord can put the stuff on the street; but if the landlord calls the sheriff to take your stuff and put
it on the street, then it’s similar to Lugar; lower courts have invoked Lugar in evictions cases even though
it’s not “attachment”
 In Edmondson, the court held that discriminatory peremptory challenges by a private litigant are subject to § 1983
 under Lugar, the private party was engaged in state action—rule of law comes from the federal government
(law of right to exercise peremptory challenges) and the litigant can fairly be said to be a state actor; the
court really relied on the PUBLIC FUNCTION (jury members = public body) idea instead of the joint participation
idea and also relying on the SYMBIOTIC RELATIONSHIP idea that the government has put its power and prestige
behind the private party by excusing the juror  the court uses the 2-prong approach but does not invoke this
special test, but uses an amalgam of a couple of them
 Without the availability of the preemptory challenge the selection of jurors would be total state action
 McCollum (criminal defendants)
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
***NOTE: many have suggested that the court is more willing to find state action when race is involved (it is
empirically true)
 American Manufacturers: private company regulated by a federal agency in giving benefits to its employees was
NOT a state actor; it was a DP case that looks like Lugar; PA allowed a party who doesn’t pay worker’s
compensation to withhold payments and call a hearing to determine whether the person was really due the
payments; invocation of the state agency w/ private parties to conduct a REVIEW; the private party is arguing
that withholding is state action, losing property w/o DP; the SECOND PRONG was not met  no public
function and state didn’t compel/encourage the withholding
 Private decisions to withhold payment and seek utilization review are not fairly attributable to the state
 REGULATION does not make the party a state actor
 Brentwood: the most recent Supreme Court case doesn’t mention Lugar but it remains the general approach
 Overview of State Action Law
 A traditional state action inquiry comes into play when a party argues that private action is the state’s 
one can make an end-run on this inquiry by showing that the seemingly private party is the state
 Why important? Most 1983 cases involve constitutional claims that require state action as a prerequisite to
finding a violation AND Lugar held that it kills 2 birds with 1 stone
 Problem: state-action very fact-based and open-ended
 2-prong test from Lugar, 2nd prong incorporates traditional state action case law
 History
 Origin of modern state action inquiry in the late 1960s, in early Civil Right era where states had law on the
books that required racial segregation in places of public accommodation; the states in the South would
mandate segregation  ex. dining facilities with sit-ins and owners calling the cops; cops would arrest for
trespass; issue: whether that eviction was state action, attributable to the state (whether the shop owner violated
EP)
 The Court general said the state couldn’t prosecute those individuals for trespass b/c the state was responsible
for the cops having been called in the first place b/c the shop owner was acting under the mandate of state
law
 ***Same result if the shop owner actually wanted to serve African-Americans but couldn’t under state law;
still acting discriminatorily because the state is telling him to
 Pervasive Entwinement  describing the person AS THE STATE = end-run around the traditional state-action
inquiry
 Lebron [PERVASIVE ENTWINEMENT]
 Renting billboard critical of Coors; Amtrak wouldn’t let them show this advertisement b/c it was political;
the Court held this was a violation of the 1st Am. by Amtrak
 Supreme Court said that Amtrak is required to follow the First Amendment b/c it IS THE
GOVERNMENT; it’s a corporation that the federal government created for a specific purpose that the
federal government funds and the board of which it appoints; it is an agency of the government, not a
private person thus the Court doesn’t even need to worry about the state action analysis
 Just calling something “private” doesn’t mean it really is; if the government creates it, funds it, and makes
decisions for it, then it is the government
 Brentwood Academy v. TN Secondary School Athletic Ass’n (2001)
 Private school accused of engaging in recruiting violations; the school said that the rules violated the 1 st
and 14th Am. (speech and due process); TSSAA argued they were private (w/ reps from public and private
schools) that make the decisions, so there’s no state action; the Supreme Court held that the association
ITSELF WAS THE STATE; the state defines the group, the employees were members of the state
pension fund; lots of state officials who were involved in sitting in the meetings even if they couldn’t
vote and the principals of the schools made up 84% of the members
 Association’s regulation made it a state actor due to pervasive entwinement with the state school
officials in the structure of the association
 It’s a fact-based inquiry—looking for any reason to not call it a state actor
 Horvath
 State actor because the legislature created the library to serve a governmental interest, the town appointed
½ of the trustees, and the library’s funding came from the town
10


If a nominally private entity really isn’t private but is a creation of the government, that the government is
pervasively entwined with, then there’s a good argument that it IS THE GOVERNMENT and don’t need to
use public function or state action analysis
Public Function
 A function that is traditionally, exclusively performed by the state and not to the function in the abstract
but whether the person is exercising the power that the state has delegated (West v. Atkins)
 2 inquiries in the rule: the traditional, exclusive inquiry and whether the state has delegated it to that party
 Whether it was inherently a governmental function historically
 Policy: don’t want the state to be able to delegate its functions so as to get around constitutional
requirements
 Ex. education, if ALL delegated away
 Ex. security guards ≠ state actors because state still has its own police
 If the city decided to privatize its entire police force/education system then they cannot violate
the Constitution
 NOW, public function seems to be just ONE FACTOR the court uses in determining the broader state
action question
 Cases
 Marsh v. AL: company town = state actor; wouldn’t allow Jehovah’s Witnesses to preach in violation of
their First Amendment rights
 Jackson v. Met. Edison: utility company ≠ state actor b/c not traditionally a public function; the court
looked at history and held that private companies have historically provided utility service; ***different if
something like eminent domain  not something the state usually got involved in and the parties had
options (sue in contract)
 Flagg Bros.: warehouseman ≠ state actor just b/c acting pursuant to the UCC adopted by the state; this was
a private-dispute resolution and not an exclusive government function; it was not the only means of
resolving the dispute
 The court listed education, fire & police protection, and tax collection measured with a greater degree
of exclusivity suggesting the things would be considered as public functions
 Lower courts have added: private prisons (Malekso) and running a volunteer fire department
(Goldstein)
 BUT, you can’t take this list literally because not all education is a public function (i.e. private
Christian schools; Briarcrest ≠ state actor) because the inquiry is more open-ended and fact-based
inquiry into the relationship between the state and the private party and whether in essence the
state has delegated or passed on that function
 Private Prison: big debate now; application of the 8th Amendment
 Richardson v. McKnight: court didn’t decide
 Malesko: there could be an action under § 1983 for private prisons
 6th Circuit decided explicitly in Street v. CCA—if the government is delegating this historic function,
the delegatee has to meet constitutional standards
 Goldstein: volunteer fire department = state actor
 West v. Atkins: city couldn’t privatize its entire school system so as to get around constitutional
requirements
 MIM example: city gives MIM some funding for their cost; city benefits from MIM from sales of beer, tourism,
and city publicity; city leases large part of downtown to the MIM and blocks off the street; dispute over 1st
Am. protestor who was outside the actual area that you need to have a ticket; officer had him removed; whether
it was state action
 Public function: allowing a private group to run a public area; policing inside of it as traditionally for the
state; but it may be no different than letting a little league use a playground; also problematic is that the
MIM officials did not actually arrest the dude, take him into custody, or remove him; they just CALLED
a police officer (cuts against public function b/c the state is still performing the public function)
 Joint participation: policing but Lugar may be limited to attachment
 COURTS’ ANALYSIS
 District Court: found state action
 6th Circuit: did not find state action—no public function because the actual cops were policing the area;
different from Faneuil Hall (see below); distinguishable from public property
11



Faneuil Hall: the hall leased to a corporation for the whole year to totally run the area; no way to tell where
the public street ends and the private place begins; plaintiffs were protesting the sale of veal and they were
kicked out; the security guards forcibly removed them NOT calling the cops; the court found state action w/
public function because the city basically delegated running part of downtown Boston to a private group
and policing of that area to the private company  it looked LIKE and was NEAR a public area
 Gateway: church group picketing outside stadium for use of word “Indian”; guard of sports complex removed
them; the court found state action b/c there was no way to tell where the city streets ended and the sports
complex began and there was a delegation of policing
Symbiosis
 Burton v. Wilmington Parking Authority: coffee shop located on property of municipal parking garage; it paid
rent to the city and the city used that money to fund its parking garage; court held it was a state actor when it
violated the constitutional rights of an Af-Am whom it refused service on account of his race
 State sought operation of the coffee shop so it could get around its debt, and thus the court found a
symbiotic relationship between the two; they were interdependent (the court doesn’t actually say
“symbiosis”)  the coffee shop’s getting customers from location & signage and city being able to
keep garage going and pay debt because it was getting rent
 Not only that but the state put its power, prestige, and property behind discrimination; it was feeding off
the profits of private wrongdoing
 San Fran. v. U.S. Olympic Co.: the city of San Francisco wanted to host a gay Olympics and the USOC would
not allow them to do so; the court held that the USOC was NOT a state actor; the government can subsidize
private entities without assuming constitutional responsibility for their actions; the government did not coerce
or encourage the USOC in the exercise of its right; DISSENT: they represent the nation to the world (public
function); they confer mutual benefits (symbiosis)
 Many argued this was indistinguishable from Burton; the USOC had exclusive control over word
“Olympic” and controlled people who could get licenses; the government created it, subsidized it, and
made money from it, so the government arguably profited from its discrimination because the USOC is
denying the license for fear that it would be bad for the USOC ***it only wants those associations that
will bring in $$$
 BUT, the court held that the government was ENCOURAGING it, it was just TOLERATING it
 Dissent: there was government action: (1) public function of country’s athletic representation to the world
(not just amateur); it’s diplomacy; (2) profiting from discrimination (Burton)
 American Manufacturers’: Burton approach was an early state action case containing vague language; it
narrowed this
 ***There are still lower courts that use symbiosis to find state action
 MIM case: economic benefits to the city and city WANTS a lot of beer to be sold; they want attendance;
by getting the religious dude out of there more people will buy beer OR you could argue that it wasn’t
really benefitting because it just wanted anyone to get out of the way (not getting him out of there
BECAUSE of his message); 6th Circuit didn’t find symbiotic relationship; not like Faneuil—Boston
benefitting from having a gentrified, tourist-friendly area that it didn’t need to police; to the extent there
weren’t protests, more people would come out
Government Enforcement
 Generally
 Looking @ points of contact between the state and the challenged action; looking for the government
either COMPELLING private action or in other ways being RESPONSIBLE for or SHARING in
the private action
 It’s also called the “nexus approach” (or compulsion/enforcement)
 Shelley: judicial enforcement of a private racially discriminatory covenant; the TWO private parties WANTED
to sell the property and buy the property but the court’s ruling PREVENTED them from doing this (there was
already a contract); but the court essentially violated EP by enforcing this racially restrictive private covenant;
it put its weight behind the discrimination, thus making it attributable to the state
 Judicial action is not immunized from the operation of the Fourteenth Amendment simply because it is
taken pursuant to the state’s common-law policy
 It is not a case in which the state has abstained from acting but has put its power and prestige behind the
discrimination
12

 FUTURE IMPACT: one could read the holding very narrowly or broadly, either (1) the fact that the state
is actually enforcing a discriminatory agreement IS state action, so that when the state gets behind and
enforces the contract, it means that the contract has to meet constitutional requirement OR (2) not about
enforcing the contract but the idea that the parties have entered into a valid contract and the state is now
intervening at the behest of the outsiders and saying NO you can’t enforce your contract or maybe there’s
(3) compulsion
 Bell v. Maryland: lunch counter owner wouldn’t serve African Americans; it was custom to do this but not
state mandated; students sought service, wouldn’t leave, and the owner called the cops; the cops removed them
for trespassing; the issue is whether the cops are arresting engaging in discriminatory government action for
arresting them for trespass; are they discriminating based on race? Or just enforcing a neutral trespass statute?
 It goes back to Shelley  If the cops are only enforcing the statute against African Americans, the cops
are engaging in a private discriminatory decision; it has to be something they could do on their own;
it’s state action because it requires the state to carry it out and it has to meet constitutional standards
 BUT in Shelley, there was a willing buyer & seller and BUT FOR the active intervention of the state, the
contract would’ve gone through
 THIS case would be like Shelley if the shop owner is serving the African Americans and the patrons
call the cops and the cops disallow the owner from serving the African Americans  it is the
compulsion that’s the KEY
 Ultimately, the Supreme Court decided this on a different theory; there’s one opinion that says it’s
like Shelley and one that it’s not
Government Approval/Encouragement
 ***There is a spectrum of neutral approval/acquiescence and enforcement/compulsion
 Reitman: Private landlords violating constitutional rights when refusing to rent apartments based on race;
the constitutional provision allowed landlords to have absolute discretion in refusing to rent their property;
constitutional provision giving a right to discrimination involves the state in discrimination; courts have
backed off—modern cases require that the state put its weight behind discrimination, that it
COMPEL or SIGNIFICANTLY ENCOURAGE it
 Here, the court held that the provision encouraged and significantly involved private racial
discrimination
 Peterson: the arrest and trespass claim is the responsibility of the state when the law is on the books
 Jackson: public statement by sheriff not permitting blacks to desegregate restaurants after hearing that
there was going to be a large-scale demonstration lead the court to treat the city as though it actually
adopted an ordinance forbidding desegregated service in restaurants
 This case takes it further; there’s no law on the books BUT there’s practice  the court held that
it had coercive potential, i.e. you’re going to be in trouble if you don’t do what the custom is; the
state was strongly encouraging it
 Court emphasizes, “sufficiently close nexus between state and challenged action so that the action of
the latter may be fairly treated as the state”; that approval of a request when the state hasn’t put its
weight behind it by ordering it does not make it state action; it came from its own initiative, not
the states
 Moose Lodge: Lodge refusing to serve blacks; had a liquor license from the state under which it could
operate; the court held it was not a state actor because the state didn’t encourage it
 The argument was that the state regulated it because it gave it a license BUT the state didn’t compel
discrimination or encourage it
 Exception: to the extent that the lodge’s bylaws required it to discriminate, and the state law said it
had to follow the owner’s constitution, then it would be a violation  The Supreme Court said that
provision was unenforceable because the state would be compelling them to discriminate, as their
license was dependent upon them following their discriminatory bylaws
 Shelley parallel to where the state would take their license away if they WEREN’T discriminating;
if the state is stepping in and saying you must even if you don’t want to, then it becomes the
decision of the state
 MIM: the private group made the choice and the police were just enforcing the decision; there was no
compulsion or encouragement
 Jackson v. Metro. Edison Co.: the court held that a utility company was not a state actor even though it
was a monopoly, heavily regulated, and the commission approved of its right to discontinue service
13


 A business subject to regulation does not convert its action into state action even if the regulation is
extensive and detailed
 The inquiry must be whether there is a sufficiently close nexus between the state and the challenged
action of the regulated entity so that the action of the latter may fairly be treated as that of the state
itself  here, the state didn’t put its weight behind the decision
 Flagg Bros.: the state’s adoption of the UCC didn’t render the states to have encouraged the procedure
 Dissent: the constitutional defect in these creditor-debtor cases is the lack of state control over the
private action
 Blum v. Yaretsky: discharge and transfer of patients receiving Medicaid without notice or opportunity for
a hearing; the state responded to the decision by changing the Medicaid benefits; the court held it was not
state action because the decision originated in the private entity and the regulation wasn’t enough;
there was no significant encouragement or coercive power but mere acquiescence
 The state is only responsible for a private decision where it has given coercive power or
significant encouragement, overt or covert
 MIM: no way to argue that the choice to exclude the dude was that of the city of Memphis
 Rendell-Baker v. Kohn: non-profit school receiving funds from state; state picked the students for the
program; the school fired a teacher, and she claimed it was a violation of EP; the court held that the
school’s PERSONNEL policies were not state action; the regulation wasn’t related to personnel
decisions and the state didn’t have an interest in those decisions
The Spectrum: ACQUIESCE (most of moose)---REGULATION---ENFORCEMENT (shelly broad view)---ENCOURAGING (reitman)---Significant Encouragement (Jackson and Blum) --- COMPULSION (shelly narrow
view and moose by law part)
 The Court has climed back up the spectrum.
 Seems to have rejected Symbotic Approach.
What about Luger? Seems to be no state action under any of these approaches…
 American Mfgs. and Lower courts read it as only applying as a special analysis to prejudgment attachment
cases.
 Under Color of Law
 Generally
 Still need to look at the under color analysis when the private party is not engaged in state action or a state
actor within the traditional analysis
 Powell in Lugar: thinks it should’ve been an under color case (no public function; no delegation; no state benefit;
no compulsion or strong encouragement), instead the state permitted a course of action (like Flagg); the court
found state action in Lugar by announcing a special rule that joint participation constituted state action for
prejudgment/attachment cases
 Powell points out that the majority relied on Adickes, an under color case with private party engaged in joint
action with the state; the question should be whether the private party acted under color of law by virtue of the
agreement and joint participation with the state
 ***The hallmark of under color cases is joint participation (private party who enlists state aid or otherwise acts
jointly with the state to accomplish some sort of end); it goes back to Monroe, where the Court said that a person
who acts under a mantle of state authority acts under color (“misuse of power possessed by virtue of state law
and made possible …”
 ISSUE: what sort of joint action do you need in order to show that the private party is acting under color?
 Adickes (U.S. 1970)
 Facts: Kress, owner of restaurant, refused to serve white woman because she was with black students; he called
the police and they arrested her for vagrancy; Kress asserted a right under the MS statute to “choose customers by
refusing service”; the woman alleged it was a violation of EP under the 14th Amendment for discrimination on the
basis of race; she sued Kress under § 1983, deeming him under 1983 for two different reasons (1)
conspiracy/joint participation and (2) custom
 The district court required her to show that the custom of segregating races was enforced by the state
 The court of appeals required her to show the custom was state-wide  the Supreme Court disagreed with this
 RULES
14
 Re: conspiracy w/ state official & private person  here, Adickes is arguing that Kress is liable
because he acted JOINTLY with the police in refusing to serve her and in having her arrested [re:
under color]
 The Court held she could prevail if she can prove that a Kress employee, during the course of
employment, and a Hattiesburg policeman somehow reached an understanding to deny Adickes
service in the store or to cause her subsequent arrest because she was a white person with black
people
 ***AGREEMENT suffices to ALLEGE it’s under color
 The involvement of the state official in the conspiracy provides state action for a violation of EP,
whether or not the actions were officially authorized or lawful (Monroe)  thus, a private party in a
conspiracy can be held liable under § 1983
 It is enough that the private party is a willful participant in joint activity with the state or its agents
(Price)
 ***THIS satisfies the FIRST PRONG of 1983
 Presence of the police in actually arresting Adickes makes the deprivation of equal rights the
product of state action; Kress couldn’t arrest her himself but Kress is a proper D because he has
jointly participated in the action that culminates in the deprivation of her EP rights
 Custom/Usage for BOTH under color & state action components
 Generally
 The claim HERE was that Kress was a proper D because he acted under color of a CUSTOM of
segregation; thus the legal issue is whether custom has to have the force of law or if it can just
be predominant community sentiment  The Court holds that it needs to have the force of
law
 Custom for which the violation has some legal consequence
 INFORMAL ACTIONS of state officials can make a custom as legally binding as a statute
(“settled practices of state officials”)
 Further, it doesn’t just have to be a custom of not serving whites who eat with blacks; it can
be just a custom of segregation
 Custom must have support in law or force of law; a custom or usage of a state for purposes of § 1983
must have the force of law by virtue of the persistent practices of state officials (policy of preventing—
maladministration of the law and refusal to enforce laws)
 Relevant inquiry for custom: whether at the time of the episode in question there was a
longstanding and still prevailing state-enforced custom of segregating the races in public eating
places
 Settled practices of state officials may, by (1) imposing sanctions or (2) withholding benefits,
transform private predilections into compulsory rules of behavior no less than legislative
pronouncement
 (1) Imposing sanctions: every time the person violates the custom, they’re picked up for
vagrancy; using the vagrancy law as a means to enforce the custom; show that the police subjected
A to false arrest for vagrancy for the purpose of harassing and punishing her for attempting to eat
with black people
 (2) Withholding benefits: tolerating something knowing it’s going to happen; the police would
intentionally tolerate violence or threats of violence directed toward those who violated the
practice of segregating the races at restaurants; this is more subtle; if Kress were known as a
restaurant that served mixed parties, the private goons would threaten him, and if the cops know
and they don’t do anything about it, then this would give the practice the force of custom by
withholding the benefit of protection
 ***This gets Kress under color, but still need to show STATE ACTION for the EP violation
 Here, state action comes from the police having acted and the private person as a proper defendant
because it acted under color of law by engaging in this joint action to accomplish the
unconstitutional end  the state has to have done enough so that you have state action; the
private person has to have relied on the state or entered into an agreement with the state or
conspired with the state to have benefitted from the state to accomplish the goal
 This is where we get into the idea of COMPULSION
 For a deprivation of EP, there must be state action
 State Action re: 14th Amendment claim:
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 If the state had a law requiring a private person to refuse service because of race, it is
clear this would violate the 14th Amendment
 A state is responsible for the discriminatory act of a private party when the state, by
its law, has compelled the act; a state may not use race or color as the basis for
distinction—it may not do so by direct action or through the medium of others who are
under state compulsion to do so
 ***Lombard: where the official said they wouldn’t tolerate a sit-in demonstration
 ***here, if the state compelled segregation in restaurants (Peterson)
 For state action purposes, it makes no difference whether the racially discriminatory
act by the private party is compelled by a statutory provision or by a custom have
the force of law
 Re: Custom  it doesn’t have to be on the statute books; if the sheriff is compelling
segregation by saying that if you don’t segregate you’re going to be shot, then you have
compulsion!
 Dissent (Douglas): custom doesn’t have to have the force of state law; use the 13th Amendment which doesn’t
require state action to show a violation; or Congress is allowed to punish people in violation of § 5 of 14 th
Amendment (Guest)
 Concurring in part, Dissenting in part (Brennan):
 Agrees with the conspiracy establishing state action; but disagrees that this action was authorized/encouraged
by MS’s statutes; Peterson—state commanded discriminatory result and removed decision from private
realm; where state commands discrimination, it is state action whether or not the private person is
motivated by the command
 For “under color” the person must be acting consciously pursuant to some law or in conjunction with a
state official (under color is NARROWER than state action); UNDER COLOR is narrower REQUIRING
KNOWLEDGE OF THE BODY OF LAW and acting consciously pursuant to that (STATE ACTION
doesn’t require such knowledge)
 Joint Participation & Conspiracy
 Generally  what do you need to show?
 Adickes
 A private person who engages in JOINT ACTION with state officials may act under color of law (Lugar uses
this reasoning)
 Examples
 Landlord smells weed; calls police who gain entry and arrest residents  assume there’s a 4th Amendment
violation; there is NO joint participation because no agreement or conspiracy; merely a private party
availing himself of the cops
 Store security guard holding person until the police arrest him  we need to know more; if there’s a
discriminatory police and a minority person is in the store and the guard wants to make sure the people
don’t come back AND the cop knows everyone who’s stopped is a minority, then it would be a violation
 DUE PROCESS: if the cops don’t make their own assessment, then the guard would be acting under
color but if the cop makes his own assessment, it’s just like the landlord calling the cops for noise
 FILLING OUT ARREST FORM: if the cop doesn’t do an independent investigation, and just hauls the
person in this shows an agreement that the private person is making the judgment to arrest someone for
shoplifting thus the private person is acting under color of state authority by relying on that power
from the police to haul the person in.
 The KEY factor: if the police are acting independently in doing their jobs or whether the private party is
acting pursuant to reliance on state authority
 Adickies requires some sort of agreement between the guards and the cops; just having 1 lazy cop fail
to investigate 1 case isn’t going to be enough
 Skinheads beat plaintiff; police say they won’t intervene until it gets “totally out of control”  Dwares: P sues
both skinheads and cops; here the cops are basically giving permission for a controlled beating and
encouraging it until it gets out of control; the argument: the private party is acting under color b/c it’s
relying on the state permission & authority; the approval to continue doing something that normally a
private person wouldn’t do with the cops watching; the court said P state a claim
 Media Ride-Alongs: Supreme Court held police violate 4th Amendment by bringing the media into a private home
while executing a warrant; 9th Cir. held members of media also in violation
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Dennis v. Sparks: Private party bribed a judge to issue an injunction & the judge did; the court held the private
party was a proper D b/c of the joint participation with the state official (the judge)
 Merely resorting to courts & winning doesn’t make a party a co-conspirator or joint actor; BUT here, the
allegations were that the injunction was the result of a corrupt conspiracy involving a bribe to the judge
 ***: You need something more than some points of contact w/ the state or enlisting the aid of the state
(i.e. filing a lawsuit & winning); it is the joint agreement/conspiracy to violate rights that makes the
private party a joint participant w/ the judge & thus acting under color
 Why not sue the judge? JUDICIAL IMMUNITY; the private parties don’t have it
 To get the private parties, they must have acted under color (hard to show they are state actors), so under
Adickes, show that they were willful participants in joint action with the judge
 POWELL’S Lugar DISSENT: there shouldn’t have been action under color in that case because of Dennis; in
Lugar, there was no conspiracy; that’s why the majority in Lugar had to create a special state action approach
because Dennis provides that there was no action under color for just filing a petition with the court
The Agreement
 Sixth Circuit: express agreement is not necessary nor is it necessary that each conspirator know of all the
details of the illegal plan or the participants; plaintiff must show there was a single plan, that the alleged
coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance
of the conspiracy that caused the injury to the complainant
 Facts: people yelling at those not in the picket line; the police were there to control and so were private
security guards and off-duty officers; the allegation was unconstitutional suppression of speech  the
claim: conversations between the private security guards and police showing an ongoing agreement
between the two parties
 Generally, the circuits have had trouble articulating a standard to show an agreement  they all generally
think that you don’t need a smoking gun (an explicit conversation where they say, let’s violate the
Constitution); there does need to be some willful joint action to accomplish the goal
Soldal v. County of Cook (7th Cir. 1991): property owner evicting mobile home; cops there to prevent the guy from
interfering w/ the eviction & TOLD HIM THAT; the court found that the P STATED A CLAIM FOR D having
acted under color b/c the guy had a right to resist eviction & the cops’ statement prevented that; the court
presumed a conspiracy
 If the cops were simply there standing by, it wouldn’t be enough to show that the cops were aiding what’s
going on  mere non-participatory presence is not enough
 Here, the cops were basically saying, we’re preventing you from exercising your legal right to intervene; here,
the landowner relied on the cops being there to help in his pursuit (other ex. cops helping tow the trailer or
deputizing the land owner to help them)
 Courts say there is a spectrum of non participation presence to active role
Jones v. Gustchenritter (8th Cir. 1990): this focuses on whether the STATE ACTED; landlord wanting to evict
tenant & the officer was there to prevent violence; the evictee stated he didn’t object b/c he was afraid of cops b/c
one of them body cavity searched him once; the court held the officer was a state actor [enough to get it to the
jury] & that there was enough E that he participated w/ the private actor in preventing the due from trying
to stop eviction
 Similar to Soldal but the court focusing on the other part of the equation—here, there was state action w/ the
mere presence of the officer; the cop isn’t telling the lessee why he’s there
 2 pieces  (1) showing basis for suing private individual who calls the cops & (2) to make out a DP violation,
the police must’ve acted b/c the ultimate eviction would have to be the product of state action to make out the
PF case
 The police on the job is a state actor but did he act enough so that the deprivation is the product of state action?
The court held it was enough for the jury to decide
Soldal & Gunschenreitter: In Soldal, the private party benefitted from the state and in Gunschenreitter, the court
was looking at whether there was more than a neutral police presence; there’s a spectrum of police presence
 Ex. Repossession w/ private person taking the car; it’s not state action even if the state says you can
repossess cars BUT if the repo man calls the cop & asks for help and the cop hooks up the car, then
there’s joint action (the problem is the PURPOSE of the cop being there—if just to prevent violence, not state
action; if intimidating or stating unconstitutional purpose, then perhaps it’s enough)
NCAA v. Tarkanian (1988): MIRROR IMAGE CASE; coach sued NCAA for firing him by forcing the college
to do so; NCAA thought UNLV was violating rules so they tell them it has to suspend its coach; the court held that
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there was no state action b/c the 2 parties were adverse; there was no joint participation & no improper agreement;
this is a state action case
 NCAA: whether state actor and/or acting under color = the same thing in this case; BUT it’s not a proper D
b/c it was adversary & an agent of the members; not like Dennis where there was a willing conspiracy
(dissent: the inquiry is whether the parties act not whether they wanted to)
 UNLV: is a state actor b/c it’s a state institution; the actual suspension is the product of state action
 Mirror image: here, the private party is compelling the state to act; the Court says that the private party
who compels the state to act does not constitute JOINT ACTION for under color/state action; compliance
didn’t turn NCAA into state action
 Summary
 Private party doesn’t become the state by pressuring the state
 State’s adversary is not acting under state law
 EXAMPLE (Harvey): Restraining order kicked H out of apartment; H’s lawyer sends letters that H wants to go
back & get stuff; W didn’t get the letter; H brings cop to let him in; cop tells landlady to open the door; H goes in
and takes stuff while cop checks off the list; W claims H took more than his stuff; W argues it was a 4th Am.
violation—nonconsensual, warrantless entry into the apartment; she sues the cop and the landlady under 1983
 The cop acted  he told the landlady to let them in; actively responsible for getting the door open; he’s helping
H by checking off the list; cop engaged in state action by opening the door
 The landlady  she’s not a willful participant here; she didn’t call the cops & didn’t want to open the
apartment; she is NOT acting under color
 K thinks this is WRONG; she’s a state actor b/c the state’s responsible for the act; it’s like Lugar—if the
person is following a state command, they are a state actor; it doesn’t mean they have to pay damages;
they may have a GF defense thus if opening the door is state action, it’s also under color
 EXAMPLE: Law school security guard and officer at front desk; if officer were to follow you out to your car and
forcibly search your belongings for no reason, that’s a 4th Amendment violation; if the guard independently goes
out and does the same thing, there’s NO 1983 claim (just a private party that hasn’t been delegated a police
function)
 If the officer tells the guard to do this and the guard does, then the guard is following state direction; it’s
attributable to the state
 Under Harvey, then if the guard is not a willful participant, then it isn’t attributable to the state
 Custom or Usage
 Abortions: harassment of & physical harm to women entering into abortion clinics; they also appeared to be tied
to a bombing of the clinic; can Adickes help find custom/color of state law  If the police know the protestors are
physically assaulting women or damaging the facility & doing nothing about it, then they’ve crossed the line and
perhaps fall within Adickes
 Williams v. Payne: survival @ SJ against private hospital for unconstitutional municipal policy of obtaining E by
the DOCTOR unconstitutionally by pumping suspects’ stomachs  needed to offer E of (1) state officials
maintaining this unconstitutional policy & (2) that the private party acted in accordance w/ it
 This is a violation of the 4th Amendment
 The court said the P stated a claim  the doctor would want to argue that he made an independent
assessment; the P would want to argue that the doctor was merely following orders of the police so that
the doctor would be deemed to be acting under color of the dictate from the police
 ***If the doctor made an independent judgment, there’s NO action under color
 If the doctor didn’t then there’s action under color b/c the officers are using the doctor to accomplish what
they couldn’t on their own
 You could view this as a conspiracy/joint participation case more easily than custom
 Congressional Power:
 Custom for Brennan & Douglas (dissent Adickes)—would’ve construed it more broadly, i.e. “unwritten
commitment by which men live and arrange their lives”
 Does Congress have the power to reach such private action pursuant to § 5 of the 14th Amendment?
 United States v. Guest (1966): found the power to reach private action by Congress in legislating pursuant
to § 5 of the 14th Amendment;
 § 5: Congress shall have power to enforce, by appropriate legislation, the provisions of this article
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 Facts—individuals sued for interfering with African Americans’ access to public transportation by
making false reports that they committed criminal acts; § 241 punished conspiracies to injure any
citizen in the free exercise of constitutional rights
 Issue—whether private individuals could be prosecuted for this & whether Congress had the power to
enact the statute; the Court held that it must find STATE ACTION for the 14th Am. violations but
the state agents’ active connivance in filing false reports constituted state action; 6 justices believed
they could prosecute private actors, finding support in § 5 of the 14th Am.
 RULE: § 5 authorizes Congress to make laws that are REASONABLY NECESSARY to protect a
right created by & arising under that Amendment, thus this can reach private conspiracies; Congress
has the authority to fashion remedies to achieve political & civil equality for all citizens
 Kimel—restricting Congress’ power under § 5; Congress cannot under § 5 make states subject to ADEA
b/c it didn’t bear the requisite congruence & proportionality to any unconstitutional state action
 Morrison—Congress can only use § 5 to limit state action; violence against women act; Supreme Court
said Congress couldn’t do this under § 5 because it lacked power under the commerce clause and §
5 of the 14th Amendment b/c the ACT was PRIVATE (not state action); Morrison’s view of Congress’
powers means that a broad reading of custom or usage to reach PURELY PRIVATE ACTION would raise
serious constitutional concerns
 Public Employees and “Under Color”
 Generally
 We’ve been assuming that if someone is in uniform on the job, hired by the state to do the job & is doing it,
the person is a state actor!
 Exceptions to the time when person is on the job but not acting under color
 Polk
 Personal motivation
 Then off-duty people (what a cop does at home not acting under duty, like spanking his child for discipline,
not violating the child’s DP rights) either under color or not
 Where the state employee acting w/in the scope of employment BUT not acting for the state:
 Polk County (U.S. 1981): Do public employees always act under color of law? Here, there was a public
defender; the client argued that the PD didn’t represent him properly & violated his constitutional rights; he
sued the PD under § 1983; assume there’s a constitutional violation; the Court held that it did not act under
color of law
 Classic: A person acts under color when exercising power possessed by virtue of state law & made possible
only b/c the wrongdoer is clothed w/ the authority of state law; this involved an Offender Advocate
 The Court held that their relationship became identical to that existing b/w any other lawyer and client;
it was adversarial to the state & serving the public NOT by acting on behalf of the state
 Adversary to the state—opposing motions; trying to keep someone out of jail when the state is trying
to put them in jail
 Similar to normal lawyer-client relationship: subject to rules of PR
 PR rules: not subject to administration; doesn’t have an administrative superior but a person who is
making independent professional decisions
 O’Connor & Estelle: where physicians in state hospitals act under color of law; the Court distinguished it
from a public defender b/c a PD has adversarial functions. Working w/ the state's mission.
 A defense lawyer is not a servant of an administrative superior; his is subject to PR canons
 DISSENT: PD’s power is possessed by virtue of state’s selection of the attorney & his official employment;
the physician has ethical rules, too; the PD is getting paid by the state; the state determines her budget
 NOTE: the Court doesn’t say that PDs are NEVER state actors  they are when making hiring/firing
decisions on behalf of the state or while performing administrative & possibly investigate functions
 Notes on Polk County
 Not never state actors (see above)
 Polk didn’t disturb cases that found PDs as state actors when acting as administrators, making hiring/firing
decisions, serving administrative & investigatory decisions, or when using the position to extort payments
(using the state power to extort)
 Conspiracy of PD with judge: Adickes/Dennis  any private person who conspires w/ a judge is a proper
D b/c that person is acting under color of law b/c of joint participation  here, it would depend on the
person’s function(?)
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 McCollum: private defense attorneys = state actors when exercising peremptory challenges; the court
said whether the attorney is a state actor “depends on the nature & context of the function he’s performing”;
peremptory challenges allow the attorney to choose a quintessential governmental body
 Speedy Trial: PD’s delay was NOT attributable to the state
 Reach of Polk: Whether the Court would also find that other state-employed professionals bound by
ethical canons did not act under color of law; this is an issue; but do we focus on the professional canon
or adversariness; West is the counter to Polk
West v. Adkins (U.S. 1988)
 Facts: Here there was a physician under K w/ the state to provide medical services to inmates at a state-prison
hospital; in this case, the physician wouldn’t schedule a necessary surgery & failed to fully treat the prisoner’s
injury; the prisoner sued the doctor under 1983, claiming he acted under color in violating his 8th Am.
rights to medical treatment; the Court held the doctor did act under color of state law (“respondent, as a
physician employed by NC to provide medical services to state prison inmates, acted under color of state law
for purposes of § 1983 when undertaking his duties in treating petitioner’s injuries”)
 RULES
 Under color traditional definition: defendant exercised power possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state law
 State action definition: deprivation caused by the exercise of some right or privilege created by the state
or by a person for whom the state is responsible and the party charged must be fairly said to be a state actor
 State employment is generally sufficient to = state actor
 Under color: when D abuses position given to him
 Physicians analysis:
 The ethical obligations don’t conflict with state authority  defendants are not removed from the
purview of § 1983 simply because they are professionals acting in accordance with professional
discretion and judgment
 Contracting out medical care doesn’t relieve the state of its constitutional duty to provide adequate
medical treatment to those in custody and doesn’t deprive prisoners of 8th Amendment rights
 ***The state had an obligation to provide adequate medical care to prisoners; the doctor
ASSUMED this obligation; if the doctor didn’t, then the state could get around the 8 th Am. by
just hiring people & delegating that duty  this goes back to public function analysis
 It is the physician’s FUNCTION in the state system, not the precise terms of his employment, that
determines whether his actions can fairly be attributed to the state
 The fact that he was part-time didn’t matter
 ***It is not that someone who makes independent professional decisions is not acting under color; the key
to the case is the function w/in the state system & the adversarial relationship b/w the PD & the state
 Here, the doctor wasn’t the state’s adversary in any way (“professional & ethical obligation to make
independent medical judgments did not set him in conflict with the state”)
 BUT, people contracting w/ the state don’t necessarily become state actors
 Rendell-Baker v. Kohn: the school provided education for maladjusted young people who the city
referred to them; the school fired the teacher; the court explained that almost all students were paid for
by the state, the school granted diplomas, & worked closely w/ the state to provide education; but here,
there was nothing from the state that dealt w/ employment, so the state wasn’t in any way telling
the school how to run its business  the school was like any other private contractor (the fact
that a private contractor gets most of its business from the state doesn’t mean it’s acting for the state)
 ***Would it be different if it were a student who filed a claim that he didn’t get adequate
treatment? The school probably wouldn’t be a state actor b/c the state isn’t obligated to
provide education  this is the KEY DIFFERENCE; the state isn’t contracting away its
constitutional obligations
 Lemoine v. New Horizons: juvenile custody facility, like a prison, where the kid died when his
punishment for acting up was hard labor; the court said the center acted for the state b/c the kid was
in custody; it was the same idea as West that the state has an obligation to care for people in its custody
 Leshko: court held that children placed w/ abusive foster parents can’t bring 1983 suits against the
foster parents; the foster parents aren’t state actors even though the state is paying them b/c they
aren’t performing a constitutionally required function the state has delegated; a person who takes
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money from the state to provide foster care doesn’t become a state actor by virtue of that receipt of
payment
Notes on West
 How to distinguish West & Polk  looking for whether it’s more like the PD or more like the doctor
(looking @ adversariness)
 Court-appointed attorney in civil rights suit: Still Polk because it’s adversarial
 State-appointed capital defense attorney: Clearly like Polk
 GAL in child protective proceeding: It could be adversary but courts tend to find that the GAL fits within
Polk because they are independent and well may be the state’s adversary; they aren’t helping a specific
mission (i.e. to terminate rights)
 When physicians perform strip searches  more like West b/c the person is doing the search not really for
medical reasons to save the person but because the cops say they have to do it; the doctor isn’t exercising
independent medical judgment; “using professional tools to do the state’s job for it”
Personal Motivation & Off-Duty Employees
 When personal motivation makes a state employee w/in scope of job not a state actor
 Engaging in misconduct that is personally motivated or that takes place during off-duty hours
 Ex. Cop in uniform at station; sister in law comes in and they get into a fight; the police chief punches her
in the face; she brings a 1983 suit against him; assume there’s a 4th Am. violation
 Police’s argument: this has nothing to do with his job other than she knew where to find him; she’s
not in custody; he punches her for personal reasons, so it’s not the state motivation; he didn’t arrest
her or shoot her w/ a service revolver
 Ex. Off-duty office in bar and 2 people at bar get into fight; off-duty officer intervenes & in the course
beats someone up or shoots them; is the officer acting under color? The main consideration is the
objective manifestations (i.e. the officer saying he’s such or showing a badge); other than that, if acting
pursuant to guidelines is relevant; the victim’s subjective impression is only somewhat relevant
 Gibson: officer recipient of brutality complaints; he reports for psychological evaluation; determined to
have atypical impulse control disorder; he was rendered unfit for duty & on medical leave; they allow him
to keep his service revolver but signed a form that he has no authority to act as a cop; while on leave gets
into fight with neighbor and shoots him with the revolver; under color?
 The department left him w/ some manifestation of authority but there nothing objective about
the revolver (anyone can get a gun)
 If he told the neighbor he’s a cop & can arrest him, it doesn’t matter & doesn’t make him act
under color
 7th Cir.: Wishful thinking can’t make it true; you can’t will yourself into acting under color (i.e.
someone who’s purely delusional and thinks they’re a cop isn’t acting under color)
 The officer didn’t really have police authority
 BUT a # of factors here may take this outside the general rule  he has an objective
manifestation of authority w/ the revolver; maybe it really isn’t wishful thinking
 Ex. Scout master cases where the master goes to the grade school & gets a troop of kids; the scout master
isn’t employed by the school & the parents sign a form that they realize this is a private boy scout troop;
courts tend to say that the scout master isn’t acting under color; the school didn’t employee him but
he still has access through the school; there’s still a tie, but not enough
 Horseplay Cases
 Townsend—prison inmate & supervising officer; they played around a lot; officer scared inmate &
accidentally stabbed him; the officer offers to take him to the infirmary & then later the prisoner sues
 Was officer acting under color of law? He was acting totally for pure personal horseplay; BUT he’s
using the subordinate relationship to his advantage; the only way he can get the knife in is b/c of his
employment; the prisoner could argue that he’s going along with the horseplaying b/c he’s getting
benefits—can make sandwiches
 The court held it wasn’t a viable 1983 suit
 DISSENT: they left out relevant facts: guard realized there would be an incident report & the guard
didn’t want to be implicated; the prisoner said he didn’t want to lie and the guard then rewarded him
for not going to the infirmary  he used his job & knowledge of the system to manipulate him; he
couldn’t get him the rewards w/out his power
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 Schall v. Vasquez: state employee pointing gun @ head; using the service revolver to threaten someone
wasn’t horseplay
 Sexual Abuse: state employee arguing that sexual abuse is personally motivated
 Ex. condition on granting divorce on the female petitioner sleeping w/ him; the Court held this was a
judge who was conditioning judicial relief on giving in to his wishes and was under color
 Almand: officer helping woman find her missing daughter if she gave him sexual favors; he then raped her;
Chicago officer fired for personality disorder allowed to keep his gun; she sues him under 1983; the majority
said there was no state action (“any other ruffian”)
 Off-duty case  whether the person is still using state power in thus becoming a state actor
 There are times when a person uses their state job to find someone’s home address and then when that
person turns down advances at work and follows them home after hours  good argument that
harassment is under color b/c the person is using the power from the job to harass the woman
 In Almand, breaks in & rapes the woman eventually BUT HE WAS OFF DUTY AT THE TIME
 Looking at the point he got entry perhaps a state actor because using his police training to break down
the door
 Raping her, like an ordinary individual
 DISSENT: he gains access and breaks in immediately after the rebuff before she’s had a chance to lock
up; it was tied to his prior access using state authority
 SUMMARY
 Exceptions to the idea that a person who is a state employee acting within his scope of employment is acting
under color and someone who’s off-duty isn’t  issues of personal motivation
 A Constitutional or Statutory Violation
 Generally: this is about the 2nd element of a § 1983 case, whether it can be a violation of federal statutory law &
in what instances
 The statute says “and laws”  we’re assuming that the first under color prong has been satisfied; the statute has
been interpreted to read “or laws”
 Maine v. Thiboutot (1980): welfare benefits under SSA denial from joint state & federal program; the state didn’t
pay the benefits in accordance w/ the guidelines so the Ps argued they were denied money they were entitled to under
the federal program; issue was whether § 1983 encompasses claims based on purely statutory violations of federal law
& whether attorney’s fees could be awarded to the prevailing party; the Court held yes to both
 Sidenote: they sued Maine  11th Am. problem; can’t sue the state by name in federal court; you can get around
this because it was filed in state court; this can’t happen now; states aren’t persons under § 1983, so you can’t
sue them by name in state OR federal court; it would have to be against the governor of Maine, etc.
 Action under color: no issue with action under color b/c it’s the administrator is acting under state law; don’t need
state action b/c it’s a statutory claim
 What “and laws” means: The Majority says take the language literally.
 Plain language “and laws” clearly embraces a violation of the SSA
 Not just limited to civil rights laws or EP laws  nothing in the statute that Congress intended the word
to NOT have its plain meaning; origin of the term was from a statute that was divided; doesn’t show
Congress intended a different meaning
 Here, the statute was sort of ambiguous, so the court looked @ legislative history
 History of § 1983:
 No indication that civil rights was the only purpose of § 1983
 When Congress originally enacted § 1983, it had a remedial provision & a jurisdictional provision;
Congress split the statute up b/w these
 § 1979 = remedial provision (became § 1983)
 Jurisdictional provision
 District court: “any law”
 Circuit court: “laws providing for equal rights”
 ***Congress combined jurisdiction & codified the grant of district court jurisdiction using the
circuit court law § 1343(3) [§ 1331 had AIC, so it wasn’t helpful]
 Majority: Congress didn’t change the language
 Dissent: difference in language is pure accident—it makes no sense to construe 1983 to grant
substantive rights for which there’s no federal jurisdiction
 If § 1983 available, § 1988 makes attorney’s fees available
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 This worries the dissent—feared this is going to lead to a lot of litigated cases against states (b/c there’s
no claim against the federal government (Bivens not available b/c it’s a statutory claim, not constitutional)
& can’t get attorney’s fees from federal government even if they could sue it
 Dissent: Plain language not unambiguous; looking @ legislative history indicates that Congress meant “and
laws” to include only EP & CR violations; this opens the door to “hundreds of cooperative regulatory social
welfare enactments” that Congress didn’t intend to embrace; feared that people would go after local
governments to get attorney’s fees; § 1983 could be appended to anything; “the decision confers upon the
courts unprecedented authority to oversee state actions that have little or nothing to do w/ individual
rights defined & enforced by the civil rights legislation of the Reconstruction Era”
 Limiting § 1983 for Statutory Violations [2 cases decided the year after Maine v. Thiboutot]
 Pennhurst: facts, challenge to state run hospital for mentally retarded; violation of BOR of Act (thus the state was
violating the federal guidelines), SC held that BOR provision did not create enforceable rights & obligations; it
simply stated congressional preferences w/r/t treatment
 The court held the claim couldn’t go forward under Maine v. Thiboutot
 It was merely a preference, “this is how we think you should spend your money”; it isn’t actually a right  §
1983 covers only a deprivation of RIGHTS secured by the Constitution & (or) laws; there has to be a
deprivation of a right that you secure under the statute
 Sea Clammers: facts, compliance w/ federal pollution control & marine protection laws; citizen suits after 60 day
notice & other enforcement mechanisms; Court said there are alternative specific statutory remedies (Congress
intended to foreclose implied private actions & to supplant any remedy that otherwise would be available under §
1983)
 Here, the Court said the party couldn’t bring the suit for a different reason—the statute provided for
specific alternative remedies (60 day notice of complaint & compliance w/ other procedural hurdles)
 Congress clearly intended to supplant the § 1983 CAX by imposing additional hurdles on the π
 The Pennhurst Exception: Deprivation of Rights
 The Court has spent more time on this than Sea Clammers; there are 2 major decisions that seem contradictory
(Wright & Wilder)
 Court originally willing to find that the statute gave rights with the 3-prong test
 Now, the law is a mess and we’re not sure whether the court uses the 3-prong test
 Alternative remedial procedures are relevant to the Pennhurst inquiry but is it merging with Sea Clammers
or doing something else?
 The fact that someone violates a federal law & incidentally hurts you doesn’t give you a federal claim;
the law must give you a RIGHT & the action must have deprived you of that right
 Wright v. City of Roanoake (1987): found amendment to housing act requiring reasonable utilities be included
in rent for public housing enforceable under § 1983; the Court held that the reasonable utility allotment was
not too vague to create an enforceable right (“sufficiently specific & definite to qualify as an enforceable
right under Pennhurst & § 1983 & not beyond the competence of the judiciary to enforce”)
 Wilder (1990): Medicaid reimbursement to medical providers for rates the state finds are reasonable &
adequate  the court held this enforceable under § 1983
 3-part test:
 Whether the provision in question was intended to benefit the putative plaintiff
 Here, intent was to benefit hospitals (the plaintiffs)
 If so, the provision creates an enforceable right unless
 It reflects merely congressional preference for a certain kind of conduct rather than a
binding obligation on the governmental unit or
 The court finds a binding obligation to pay the hospitals adequate rates, not just a preference
of their rates
 The interest the plaintiff asserts is too vague or amorphous such that it is beyond the
competence of the judiciary to enforce
 There are definite guidelines & costs that the institution will incur; a court can figure out
whether the reimbursement is adequate
 This case is later & goes into analytical depth
 DISSENT: The only obligation is that the state have a plan the secretary approved; the secretary’s job was
to determine whether the rates were accurate; the state just had to follow the procedure; this won out in
Suter
23
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Suter (1992): Claim for federal reimbursement for expenses state incurs in administering foster care & adoption
services; the state had to submit a plan w/ reasonable efforts to prevent children from being removed from
home or to return the child to the home; The Court held there was not an enforceable right of the children
under this act under § 1983
 The Court didn’t mention the 3-prong test but didn’t even say that it was calling Wilder into question
(just pretending it doesn’t exist)
 The act wasn’t that different from the Wilder scheme—submit plan to secretary, plan saying it’s using
reasonable efforts to keep children in their home; child say no reasonable efforts being use
 ***How to reconcile the cases  they are speaking to the secretary, providing generalized
guidance, the focus is more systemic; the secretary needs to provide methods to make sure that
the state is trying to keep the child in the home; the secretary shouldn’t approve the plans; this
is guidance to the secretary
 The term “reasonable efforts” was a generalized duty on the state, not enforced by private
individuals, but the secretary
 The reasonable efforts language does not unambiguously confer an enforceable right on the
beneficiaries
 It’s a generalized duty to not take kids out of their home; it’s up to the secretary to determine
whether states are fulfilling that generalized duty
 If the SECRETARY doesn’t think the state is using reasonable efforts, it should STOP FUNDING
the program but doesn’t give children a right to certain efforts made on his behalf
 The burden is on the respondents to demonstrate that Congress intended to make a private remedy available
to enforce the reasonable efforts clause of the adoption Act (Cort v. Ash)
 Gold State Transit Corp. (1989): individual could sue under 1983 for abridgment of NLRA rights by state
enforcement of a policy the NLRA preempted, stating that apart from the exceptional situations in Pennhurst
and Sea Clammers 1983 remains a generally & presumptively available remedy for claimed violations of
federal law
 Blessing v. Freestone (1997): SSA state required to adopt a plan for enforcement of child support; the state
had to collect the child support to offset the benefits from the federal government; if it collects the child support,
the family has to get $50; here, the claim wasn’t that they weren’t getting their $50 but that under this
system the state had to have a plan that the secretary had to sign off on saying that the state has a
program in substantial compliance with the plan; the Court held that it didn’t create a private right b/c it
was a yardstick for the Secretary to measure the system-wide performance; the Court looked at the 3prong test as factors and said:
 In applying the 3 factors, the plaintiffs must ID the rights they claim were violated w/ specificity; one
cannot look at a statute as an “undifferentiated whole”
 (1) Congress must have intended that the provision in question benefit the plaintiff
 (2) The right must not be so vague & amorphous that its enforcement would strain judicial competence
 (3) The statute must unambiguously impose a binding obligation on the states
 The Court left open whether the provision of each family being entitled to $50 created individual rights
 The substantial compliance was merely a yardstick for the secretary to measure system-wide performance
(not an individual right)
 Use 3-part test; break statute down into analytic bits
The Sea Clammers Exception
 Court hasn’t spent must time on this
 Only 2 cases that it has found the exception to apply—Sea Clammers and Robinson
 The burden is on the state to show that Congress did NOT intend § 1983 to apply
 The existence of generalized administrative remedies does not satisfy it; there must be a private remedy,
pursuit of which would be inconsistent w/ bringing a § 1983 claim
 Smith v. Robinson (1984): carefully tailored judicial mechanism including local administrative review & a
right to judicial review showed Congress’ intent to foreclose other remedies
 Wright: HUD’s generalized powers to audit & cut off federal funds was insufficient to foreclose reliance on
1983 to vindicate federal rights; HUD didn’t exercise auditing power frequently & statute didn’t require
individuals bring problems to HUD’s attention
 Wilder: no provision for judicial or administrative enforcement; limited oversight of secretary was insufficient
to demonstrate an intent to foreclose relief altogether in courts under 1983; also the availability of alternative
24
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state remedies didn’t foreclose enforcement b/c providers could not use those remedies to challenge the
way in which rates were determined
 Suter: the Court didn’t find an enforceable right, so it didn’t consider Sea Clammers
 Dissent: ∆ must point to existence of alternative means for enforcement & to demonstrate by express
provision or other specific evidence from the statute itself that Congress intended to foreclose 1983
enforcement; they will not lightly conclude that Congress so intended (only two instances, Sea Clammers
& Robinson)
 Blessing: administrative mechanisms to protect π's interests didn’t foreclose § 1983; oversight powers were
not comprehensive enough to close the door on § 1983 liability...
 "Substantial Compliance"
 Directed to Secretary---> Systemic...Aggregate
Gonzaga University v. Doe (U.S. 2002): Whether FERPA created personal rights enforceable under § 1983 for
damages; π was a student at Gonzaga & argued that a teacher certification specialist violated his rights by
telling state licensing board that he was accused of sexual misconduct b/c it was releasing an educational
record w/out his consent; he argues the school violated his rights in violating FERPA; NO, it didn’t; the Court
held that Congress didn’t do so in clear & unambiguous terms; the nondisclosure provisions contain no rightscreating language; they have an aggregate, not individual focus & are primarily directed to the Secretary of
Education; THUS it doesn’t create rights enforceable under § 1983
 Congress must clearly & unambiguously create the RIGHT
 The Court took into consideration alternate administrative procedures for individual complaints to determine
that Congress intended the disputes to be resolved there
 How do we reconcile this with Sea Clammers? Congress wanted centralized enforcement, not
regional inconsistency, so it required everyone to go to one board; it wants the agency to speak w/ one
voice; they weren’t using Sea Clammers b/c the review board is mere evidence that this is geared towards
the aggregate & not based on individual cases; they want ONE standard; the system is in place to help
the Secretary do her job & isn’t going to cut a check to the individuals
 To seek redress, the π must assert the violation of a federal RIGHT, not a federal REMEDY  rights is not as
vague as benefits/interests
 π's don’t have to show an intent to create a private remedy just a right b/c 1983 confers the private remedy
already
 ANALYSIS
 Private university, so how under color?
 Footnote 1: because joint participation with the state in their teacher certification process & acting
in accordance w/ the dictate of a state agency in disclosing info they require you to disclose
 ***The Court didn’t consider this issue on appeal
 Whether FERPA gave an enforceable right?
 It can’t just be a violation of the law but a violation that takes away an individual’s right
 The Court is trying to figure out Congress’ intent re: statutory interpretation; Blessing requires looking
@ specific statutory provision
 It’s spending legislation  based upon compliance with certain administrative requirements;
Congress is putting spending decisions in the hands of the Secretary of Education; the language in
the statute is relevant because it’s talking to the Secretary
 The statute speaks in aggregate terms, not individual terms  it tells the Secretary not to fund
schools with policies & procedures that violate FERPA; it talks about substantial compliance;
nothing is suggesting that there are sanctions for a single instance of failing to abide by the statute
just that the Secretary is to cut off funds to the schools; it’s a broad, systemic focus on individual
rights
 The Court looks @ implied right of action cases  i.e. Title VI and IX cases where Congress
has spoken in terms of individuals specifically (“no person in the United States shall be subject to
discrimination”)
 Concurrence (Breyer, Souter): shouldn’t always have to be unambiguous from Congress but agreed w/ the
result here b/c statute not talking about individual rights; also the standard is too vague for the court to apply
 Dissent (Stevens, Ginsburg): there is a lot of rights-creating language; looks at precedent & thinks the Court
isn’t following it; the alternate administrative procedures are inadequate (only 2 cases where they were found
to displace the right); shouldn’t turn to implied rights of action cases b/c it’s a more exacting standard on
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the π; no separation of powers issues b/c Congress already created a right of action in § 1983; even though
Court says it’s not requiring the π to show intent to create federal remedy, it is requiring that
 Problem w/ using implied right of action cases:
 Bivens, we talked about implying a remedy when Congress creates a statutory right & doing the same
thing with the Constitution (i.e. Title IX says nothing about a victim of discrimination being able to
sue but the Court has interpreted the statute to give this implied right of action)
 For implied right of action cases, the court looks to whether Congress intended to provide a remedy
but here, we already have 1983  the dissent says the implied right of action cases muddle the 2
prongs (right and remedy) so that you can’t keep it straight
 ***They are afraid that the upshot of this will be to require more than just the existence of a right;
some indication that Congress wants the right to be enforceable (watering down the availability of
1983) but the majority insists it’s not really doing that
NOTES on Gonzaga
 What is the significance of Gonzaga?
 Johnson v. City of Detroit (6th Cir. 2006): LBPPPA statute giving funding to try to eliminate lead-based
paint especially in public housing; it required educational programs and gave funds to help remove leadbased paint; the issue was whether a TENANT could sue for a violation of the Act; the court said no;
focusing on the language it doesn’t state that every person has a right to live in housing without leadbased paint; its focus is on education and abatement; giving the Secretary $ to improve conditions
 Lead based paint prevention act didn’t confer individual rights; court held that Gonzaga altered the
landscape of § 1983 claims; still using Blessing’s 3-prong test BUT looking @ first factor intent to
create rights NOT just benefits;
 Tenants still have trickle-down benefits, but it was an aggregate focus and did NOT confer individual
rights
 3-prong test
 Just a fancy rehash of Blessing whereby the Court doesn’t need to get to the second 2 prongs
of the test because it failed the first prong; bulking up the first prong
 ***LOWER COURTS still by and large use the 3-prong test but they treat Gonzaga as
having injected steroids into the first prong
 Harris v. Olszewski (6th Cir. 2006): People receiving Medicaid benefits could receive specific benefits
from the provider they chose; it say any recipient has the RIGHT to select a provider; the state agency was
requiring all recipients to get supplies form 1 company; the people wanted a choice in their provider and
thus sued claiming they had a right
 Statutory language: “any individual” for Medicaid language DID CREATE individual enforceable
rights
 Non-spending cases: 9th Circuit noted that Gonzaga focused on it but then the 7th Circuit held that Gonzaga
was not limited to spending cases
 Post-Gonzaga cases: a lot of courts have found statutes providing enforceable rights (see p. 104 for examples);
all of these cases do essentially the same thing; use 3-prong test and say that Gonzaga merely beefed up the
first prong of the test
 Vague & amorphous statutes: Torraco v. Port Authority of NY (2d Cir. 2010)—court held that statute created
individual right but was too vague to enforce because it would require every officer to be familiar with the
firearms law of all 50 states; Congress obviously didn’t intend that result
 Regulations & treaties: Save Our Valley (9th Cir. 2003)—regulations can’t create enforceable rights after
Gonzaga but can effectuate statutory rights as in Wright; Mora—presumption that treaties do not create
privately enforceable rights in the absence of express language to the contrary
 Criminal statutes:
 Frison v. Zebro (8th Cir. 2003): Officer posed as federal census worker and obtained incriminating
information for his investigation; against federal statute to masquerade as a federal official; the woman
sued under 1983 claiming she suffered from harm of the officer’s violation of the false personation statute;
the court held the statute didn’t give her an individual right
 It is rare to imply any private right of action from a criminal statute because they’re there to
protect the public as a whole and not to give specific rights to would-be victims
 Similar to not having standing to sue for lack of enforcement of a criminal statute
 Relevance of private right of action cases: may be entwined
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Sea Clammers is alive and well:
 Rancho Palos Verdes v. Abrams (U.S. 2005): dealt with rights of telecommunications entities to be free
from private zoning regulations; everyone assumed that a right was created here but the statute gave a
private remedy that had various hoops to jump through  judicial review must be sought within 30 days;
case heard on expedited basis; very limited remedies
 Allowing § 1983 cases would distort this alternate remedy because suing under § 1983 would be
a lot easier; not those hoops to jump through
 The fact that Secretary can cut off funds doesn’t meet Sea Clammers
 Ex. Title VII violation; can’t bring 1983 to enforce it because to bring Title VII you must go through
the EEOC and you can’t avoid this using 1983; Congress clearly intended a different remedial system
 Harris: act’s requirement that states grant opportunities for hearings was NOT inconsistent with private
enforcement
 A.W. (2007): inconsistent with judicial review in 90 days of hearing officer’s decision and obtaining relief
 Link with State Action: D in 1983 action must act under color of state law but must have violated a federal
statute
 It is usually going to be a violation of federal-state programs (i.e. Medicaid)
 This is why Powell dissented in Thiboutot—thought it was directing liability only to ½ of the problem—
the state; you can’t bring a 1983 claim against the federal person who is administering the statute unless
you can show that the federal official is acting under color of state law; if there were a conspiracy between
the federal official and the state officials to deprive the person or some joint participation agreement
 Mirror image case: federal official forcing state official to not enforce the statute  it doesn’t work to
get the federal official (Tarkanian); the federal official isn’t acting under state law by virtue of coercing
the state officials; you could argue the state officials are acting under color of FEDERAL LAW and they’re
out of the picture/not proper defendants  in certain situations where everything the state’s doing is
because of federal coercion that they are acting under color of federal law
 Constitutional Violations
 Generally
 Still on the 2nd prong of § 1983
 It mirrors the statutory violation considerations
 There’s not necessarily a § 1983 action simply because someone violates the Constitution; there must be
a deprivation of a constitutional right (i.e. some provisions of the Constitution only speak to the structure
of the government, not individual rights) (Thiboutot issue)
 Congress can preclude certain constitutional claims from § 1983 because it’s a statute; this is a Sea
Clammers issue as to whether Congress somehow determined that a certain constitutional claim is not
actionable
 Whether the constitutional provision creates enforceable rights
 Generally
 Must look at the substantive constitutional law claim
 This question is infrequently encountered
 Cases
 Lynch v. Household Finance Corp. (U.S. 1972): seems to say that ANY deprivation of constitutional rights
is redressable by § 1983 but then later courts have disagreed with this (limited it to those that create
individual rights)
 Golden State: NRLA preempting state law; the Supreme Court said there was preemption but no § 1983
action based on the preemption because the Supremacy Clause doesn’t give individual rights; it’s purely
structural; the NLRA did give individual rights (under the statute) so there was still a statutory 1983 claim
 Violations of the Supremacy Clause are not redressable by § 1983; this is clearly just geared towards
priority of the laws
 A person can’t bring a claim stating that he suffered a violation of the Supremacy clause because he is
subjected to or regulated under a different law
 Carter v. Greenhow (U.S. 1885): Violations of the Contracts Clause cannot be redressed by § 1983; it
just nullifies state law and is thus purely structural
 Dennis v. Higgins (U.S. 1991): The Commerce Clause [dormant and regular] creates enforceable rights
that can be redressed by § 1983; it’s both a restriction on state power and an entitlement to relief for
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violations; it gives an individual right to engage in interstate commerce free from state discrimination and
burdens
 Heller (U.S. 2008): Second Amendment creates individual rights
Whether congressional action precludes bringing the claim under § 1983
 Generally
 Congress can limit constitutional claims from § 1983’s reach since it’s a statute
 Cases
 Robinson: EHA is the statute; the court determined that Congress set up an integrated scheme for enforcing
a right to public education without regard to disability that the careful scheme indicated a congressional
intent to preclude a statutory § 1983 claim under the EHA and also to preclude an EP claim alleging
discrimination in education on the basis of disability violated the Constitution
 ***Raises an issue with anti-discrimination laws that have constitutional counterparts
 Ex. Individual working for U of M and claims discrimination (on basis of race, religion, or gender)
and that person could bring a Title VII claim, having to go through the EEOC but the individual
could also claim it was an EP violation and bring a § 1983 constitutional law claim
 We know you can’t bring a § 1983 claim alleging a violation of Title VII
 Can you bring a § 1983 claim alleging violation of EP? Lower courts find nothing in Title VII
that precludes bringing the § 1983 claim; the constitutional claim is sufficiently independent
form the statutory claim and there’s no indication that Congress, in enacting Title VII,
intended to preclude the constitutional claim
 Fitzgerald v. Barnstable School Comm. (U.S. 2009): Parents suing school district for violation of a child’s
rights from being sexually bullied under Title IX and § 1983; two-part test for alternative remedial intent
of Congress (Sea Clammers issue); the Supreme Court relied on Sea Clammers and Robinson and
concluded that Title IX did NOT preclude the constitutional claim
 There is the congressional intent consideration as in statutory cases BUT with the constitutional claim
there’s an added dimension of the contours of the claims:
 Two-part test: (1) no comprehensive remedial scheme and (2) contours of constitutional and
statutory claims diverged
 (1) no—it was an implied cause of action case
 (2) Title IX was broader & narrower and there were parts were it didn’t overlap with EP
 THUS, no indication that Congress intended to preclude all constitutional claims by enacting the
statute
 Levin v. Madigan: SCOTUS granted cert for the question of ADEA; the 7th Circuit disagreed that ADEA
precluded bringing an EP claim; it concluded there was no indication that Congress intended in enacting
ADEA to preclude constitutional claims; ADEA had a comprehensive scheme but there was no indication
that Congress intended ADEA to preclude people from bringing a constitutional claim if they could
What constitutional provision applies and whether the P stated a claim
 Generally
 In most cases, it’s clear there’s a constitutional right at stake and there’s no statute; the average
constitutional violation case raises different issues:
 The problem really comes to determine the constitutional violation and looking at that substantive area of
the law
 Paul v. Davis states that not all torts violate the Constitution
 The courts have developed objective tests to determine at what point it becomes a constitutional
violation
 Classic case = police brutality
 Person claiming, “my constitutional rights were violated”; but what constitutional right is violated?
We know there’s a tort here (battery) but if just bringing a battery claim, you’re forced to go to state
court (among other things, no attorney’s fees); just looking at the language of the Amendments,
there’s nothing that speaks directly to police brutality; it’s a stretch (8A only governs when in
custody); it’s clearly wrongful but it’s difficult to see what in the Constitution actually speaks to
that; we know now these cases come under the 4A.
 BUT, we would more likely think it was a due process claim; deprivation of liberty w/o due process;
there’s an interest in bodily integrity and that’s a liberty interest
 There’s support for this general idea in due process law
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The problem with saying this is that it’s abusive conduct thus it’s a due process violation &
thus § 1983 is a way to constitutionalize torts; we don’t want to constitutionalize all torts
Paul v. Davis (U.S. 1976): Claim for defamation after cop distributed flyers w/ his face indicating he committed
a crime; he brought not a tort claim but a Constitutional claim, claiming violation of DP liberty interest under
14A b/c this limited his freedom to shop; Ct held it didn’t violate his Constitutional rights thus 1983 was not
available. The police did not actually deprive him of his liberty or property. Here, there was just a state actor
committing a tort.
 Theoretical Issue: How do you determine when there’s a § 1983 constitutional claim as opposed to
just a tort claim?
 Must point to a specific constitutional guarantee (Here, liberty wasn’t enough).
 Doesn’t matter that the deprivation was by an officer & thus was worse
 If the defamer weren’t a state actor, this would be nothing but a tort claim but since it is, P argues a
DP claim exists
 If this is true, there are a couple of situations that would give rise to liability:
 Arresting someone if not right person
 Officer driving negligently & killing someone
 Reasoning:
 There is no interest in reputation alone under the Constitution;
 State law didn’t provide this interest & then take it away; and
 It wasn’t substantive DP under precedent
 Usually cases w/ stigma + altering the person’s status under state law w/ the defamation
 Worried about the slippery slope!
 If this is a 1983 claim, every tort becomes a 1983 claim (“14A becomes font of…”); it’s a vehicle for
constitutionalizing torts; the P is claiming that the fact that the state has an interest that it protects
under its tort law makes that interest an aspect of liberty
 You can’t use § 1983 to constitutionalize torts
 Brennan’s Dissent  doesn’t see such a slippery slope if we limit it to the state of mind of the ∆; it
must be INTENTIONAL to be an ABUSE of power (it still must be under color); the majority’s hypos
are examples of mere negligence; saying that "1983 will be a font of tort law if intentional conduct
is unconstitutional"; negligence can hurt someone but it’s not abusive (planting the seed of the state
of mind objective test); you can’t negligently violate the Constitution
Techniques for limiting § 1983
 Paul—narrowing construction of the constitutional language
 O’Lone (1987)—no violation of 1A in prison b/c reasonable reliance on legitimate penalogical interests
 Sandin (1995)—limiting the scope of state-created liberty interests available to prisoners
 State of mind requirement/objective reasonableness test
 Baker v. McCollan (U.S. 1979): facts—Linnie stopped at red light; cop found that he’s wanted on drug
charges b/c his brother used his license when he was stopped; there’s a valid warrant out for Linnie’s
arrest but it’s based on his brother’s giving the cops Linnie’s ID; Linnie is taken to jail & held there
for a couple days; Linnie brings 1983 suit against jail officials
 The 5th Cir: P stated a claim for “§ 1983 false imprisonment”  PROBLEM is that the ct
didn’t do an evaluation to see if there was a violation of a constitutional provision; they have to
point to what was violated in the Constitution [this is what Paul said don’t do!]
 SCOTUS looked @ a possible constitutional violation  it’s not a 4A violation b/c there was
a WARRANT!
 Dissent & Concurrence: Ct failed to consider DP! They don’t want Paul to imply that DP is not
available; it just must be an actual violation of DP.
 Blackmun: maybe a substantive DP claim if it shocks the conscience
 Stevens: maybe a procedural DP claim b/c there’s a deprivation of liberty w/o adequate
procedures in place
Outline
 To have a § 1983 claim, it’s not enough to just have a tort
 You need an actual constitutional violation
 You must thus point to the provision in the Constitution that’s at play
 There’s a preference for finding a specific constitutional home
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Intersection of SDP and substantive constitutional law claims
 Generally:
 Not all torts violate the Constitution but certain tortious action is unconstitutional
 Certain egregious action may be so shocking that it violates the substantive protections of DP; comes up
re: police brutality; early cases used 14A substantive DP to address them w/ a "shock the conscience"
standard BUT SCOTUS narrowed the standard later & now police brutality comes under 4A w/
unreasonable seizure of the body
 Substantive due process still survives when no other specific provision of the Constitution is available
(Lewis; example: pretrial detainees don’t have 8A rights; corporal punishment on students)
 Claims can implicate more than 1 constitutional guarantee so the court must examine each
constitutional provision in turn not just the dominant one (Soldal)
 History: must be a specific constitutional claim or a violation of SDP; origins go to the incorporate controversy
w/ BOR to state via DP of the 14A.
 Rochin: pumping stomach; what provision of the Constitution does it violate?
 The court says SDP b/c it serves in protecting against conduct that "shocks the conscience."
 Establishes that abusive physical treatment can violate SDP & that after Monroe the sword should work
whereby the victim doesn’t just have to use suppression but can get damages
 Lower courts then treated police brutality as SDP under Rochin  so what is “shocks the
conscience”?
 Johnson v. Glick (2d Cir.): SDP claim; standard  FACTORS (Wouldn't apply today...)
 (1) The need for the application of force,
 (2) The relationship b/w the need and the amount of force used,
 (3) The extent of the injury inflicted, and
 (4) Whether force was applied in a GF effort to maintain & restore discipline or maliciously &
sadistically for the very purpose of causing harm [***most important factor—the motivation]
 This comes up later in 8A law.
 NOTES: In 1970s most lower courts were using the 4-part test for police brutality & saying that DP is
what protects us against excessive force; BUT the court took issue w/ it in the mid-late-1980s  if the
claim has a specific constitutional home, you MUST use that specific constitutional home (Graham:
If you can bring a claim under the 4A, you MUST; same thing w/ 8A).
 Lewis  if the claim doesn’t have a constitutional home, then you can still use SDP; w/ SDP, there’s
no one test  going away from the Glick test, & saying that the standard depends on the situation w/
each factor weighing differently depending on the facts
 Currently, most police brutality claims come under 4A in looking at these, 2 issues come up
 Was there a “seizure”
 If no seizure, then can still possibly use SDP (Lewis)
 Was the seizure reasonable
The Fourth Amendment
 Generally
 We are still looking to see whether there’s a constitutional violation; we know that just any tort committed
under the color of state law doesn’t necessarily form the basis for a 1983 claim.
 Identifying the specific constitutional provision at stake is the most important in 14th Amendment cases—
courts do not allow “generic claims” for excessive force as a species of SDP (shocks the conscience + 4factor test); it was too fuzzy and open-ended
 TN v. Garner
 Facts: Cop shot & killed fleeing felon; there was no indication that he was armed or dangerous; CT held
that shooting constituted a 4A violation—use of force, shooting, = seizure! It restrained his ability to
move after the shot, thus it was a seizure; the Ct then looked to whether it was reasonable. Use of deadly
force against someone who was not suspected to be armed/dangerous was NOT reasonable. Thus, 4A
violation:
 (1) The force must be necessary to prevent escape or the suspect poses a significant risk of death or
serious bodily injury to others
 (2) Balancing of nature & quality of intrusion on 4th Am. interests
 Note: Not looking at subjective state of mind of the cop. Objective Test.
 Seizure: Acquisition of control...
30


 First big step for excessive force going to the 4th Am. home
 Note: nothing in this case said SDP was necessarily out of the question, so we need to know whether
the court has a choice when it comes to excessive force
 Physical force, at least deadly force, can be a seizure [lower courts had a little difficulty extending this
to non-deadly force b/c if it’s a beating, it also comes down to whether it’s reasonable.
Lester (7th Cir. 1987):
 Balancing nature of the governmental intrusion; wouldn’t allow a jury to consider whether it shocked the
conscience it wasn’t under SDP; the Supreme Ct later adopted this view—using 4A for police brutality
applying a reasonableness test & NOT SDP. Could she say that this was an unreasonable seizure? Yes.
2 seminal cases: Brower re: seizure & Graham re: reasonableness; the idea that a claim that can come under
the 4th Am. MUST come under the 4th Am.
 3 issues
 What’s a seizure?
 If there is one, what’s reasonable?
 If no seizure, what role does SDP continue to play?
 Brower v. Cnty. of Inyo (U.S. 1989) [SEIZURE]
 Facts: police car chase where they set up an 18-wheeler as a roadblock around a bend to get π to run
into it; it killed him; π sued under 1983 for unreasonable seizure under the 4A; the issue was whether
the use of the roadblock was a seizure; Ct held that there were sufficient facts for this to be
deemed a seizure
 COA: held that the roadblock wasn’t a seizure b/c the driver could’ve stopped & it was his choice
in continuing that made the police not actually having seized him  SCOTUS rejects—the same
idea could’ve been used in Garner (if the dude didn’t run away, the cops wouldn’t have shot him)
 Rules
 Violation of the 4th Am. requires an intentional acquisition of physical control = the standard; it
must be an intentional decision to control the person  the fact that Brower was stopped by the
very means that the police put in place to effectuate that stop
 Distinguishing b/w: police slipping on brakes & running someone over (unintentional acts)
EVEN IF the person is actually a fleeing felon b/c the cops aren’t stopping him by means put
in place to stop him
 The detention itself must be willful (even if they get the wrong person/thing); through means
intentionally applied
 What if the cops said, we didn’t really want him to run into the roadblock? The question is
not based on subjective intent, so this doesn’t matter; the question is an objective
question of whether the person was harmed by the means put in place (objectively, if you
put a barrier across the road, it will terminate someone’s freedom of movement)
 The roadblock was designed in a way to lead to the conclusion that it was unreasonable—
the Ct has to evaluate the type of the roadblock
 It’s enough for a seizure that a person be stopped by the very instrumentality set in motion or put
in place in order to achieve that result
 There must be proximate cause; the roadblock here was the proximate cause of the harm; you
can’t say the decision to not stop was the proximate cause—there was a means put in place
to effectuate a stop & the design was unreasonable
 For § 1983 liability under the 4th Am., there must be seizure that is unreasonable.
 Concurrence in judgment: intentional acquisition of physical control should not be the essential
element; they can see situations where an unintentional act can violate the Fourth Amendment
 Graham v. Connor (U.S. 1989) [REASONABLENESS]
 Facts: investigative stop of diabetic who hadn’t done anything wrong; they beat him up and refused
to give him sugar or look at his license to determine that he was diabetic; the Court held this claim
is properly analyzed under the 4th Amendment’s “objective reasonableness” test, rather than
under SDP
 The lower court analyzed it under SDP w/ 4-factor test, labeling it as a “1983 excessive force
claim” & found there was no standing b/c the police didn’t act maliciously & sadistically—
SCOTUS held this was error
31


There’s no such thing as a “1983 excessive force claim”; there MUST be a constitutional
violation to have it come under 1983
 Must use the 4th Am. here b/c it’s the most explicit textual source of the constitutional
protection claimed here
 No one here is disputing that there was a seizure; the issue is whether the seizure was
reasonable
 Rules
 The Ct should consider whether the application of a more specific constitutional right would
govern; a single, generic standard doesn’t govern excessive force claims
 The analysis begins w/ identifying the specific constitutional right allegedly infringed by
the challenged application of force
 The validity of the claim then must be judged by reference to the specific constitutional
standard which governs that right, rather than to some generalized excessive force
standard
 All claims that law enforcement officers have used excessive force—deadly or not—in the course
of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under 4A
& its reasonableness standard, rather than under a substantive DP approach
 You MUST use 4A when there’s a seizure in an arrest/investigatory stop; the Ct cannot choose
whether to use 4th Am. or DP  here it was the use of force to effectuate a stop
 Note: 8th Am. doesn’t apply until after an adjudication of guilt; SDP also doesn’t apply
 For reasonableness, 4A requires a careful balancing of the nature & quality of the intrusion on
the individual’s 4A interests against the countervailing governmental interests at stake
 2 key factors that are being balanced (we aren’t looking at the officer’s state of mind)
 Quality of intrusion—forced used, i.e. using a gun or putting someone in handcuffs
 Governmental justification—same idea from Garner
 Factors include, but are not limited to:
 The severity of the crime at issue
 Whether the suspect poses an immediate threat to the safety of officers or others
 Whether the suspect is actively resisting arrest or attempting to evade arrest by flight
 Reasonableness is objective; looking @ circumstances from officer’s POV at the time of
arrest & whether the officer’s actions were reasonable at the time of arrest in light of the facts
& circumstances confronting him, w/o/r/t underlying intent or motivation
 The Court cautions against having a hindsight bias; we knew he was diabetic when we
read the case, but we need to evaluate it in light of what the officers knew @ the time of
the arrest
SEIZURE
 California v. Hodari (U.S. 1991): officers coming up to group of kids; officers start to chase them after
they run & one of the kids throws down a crack rock; Ct held there was NO seizure of the crack rock b/c
no physical force was used; it doesn’t apply to a cop yelling “stop” when a suspect flees; show of authority
is still an objective test, whether a reasonable person would’ve felt free to leave (Mendenhall); HERE, the
kid didn’t stop so it wasn’t a seizure UNTIL the cops actually tackled him  the kid tries to get the
rock excluded from evidence b/c the police unreasonably seized him when they chased him
 The Court is wrestling w/ a show of authority that doesn’t actually stop anyone—the Ct held that
there wasn’t a seizure until they actually tackled him
 Attempted seizures; temporary submission to authority
 Brooks v. Gaenzle: suspect runs away & the cops shoot him; the bullet hits him but he’s not actually
stopped; he keeps running away; 3 days later, the cops get him; HE argues that the cops seized him
when they shot him—there was some physical contact & it was intended to stop him (it’s physical
contact w/ means intentionally applied)—Hodari even says it’s a seizure when there’s physical
contact even if it is ultimately unsuccessful! Here, we have a use of force that’s intended to bring
someone under control & it’s ultimately unsuccessful, but it’s a use of force not a show of authority
 The 10th Cir: even w/ use of force, there needs to be termination of freedom of movement; it
may be ultimately unsuccessful b/c someone who’s temporarily stopped might get away BUT
they have to be stopped in the 1st place; the court said he wasn’t stopped here b/c he still had a
32

“spring in his step”  the fact that he kept fleeing & cops never got physical control of him meant
there wasn’t a seizure
th
 6 Cir. case re: temporary seizure: cops stop guy for a minute & say we want to talk to you; there was
no use of force; Ct said it wasn’t enough b/c he didn’t submit to the show of authority; it was a decisionmaking process & here there wasn’t enough to show that he submitted
 Attempted v. Actual Seizure that Stops Working: Hodari, was a pure attempt & it wasn’t a seizure
(the court held there needs to be some acquisition of physical control); even of the person eventually
gets away, there has to be some initial acquisition of control
 Objective intent: officer intending to do something lesser and kills someone
 Keller v. Frink: ∆ is game warden who receives a report that someone killed a deer out of season; he
gets his gun & finds the truck loading up the deer; he says stop & then fires at the truck & ends up
shooting a passenger in the truck; they sue & D says it wasn’t a seizure b/c he was trying to mark the
van for ID.
 The question isn’t subjectively what the officer really thought he was doing; it’s an objective
question of whether when someone fires a shotgun at a moving vehicle, is it an intent to stop
that person objectively
 Ct says the jury wouldn’t decide whether to believe the officer but when looking at the
situation, when someone fires a gun at a moving vehicle, is it objectively an intent to stop
that vehicle  this is for whether it’s a seizure NOT whether it’s reasonable
 Vaughan v. Cox: police chase a truck they think is stolen; the passenger matches the description of the
suspect; the cops fire into the truck & said it was to stop the truck or the driver; the cops were trying
to stop the suspect not by shooting him but by stopping the car; they actually shot him, though; the
issue was whether there was a seizure—the gun effectuated the stop but not in the way that the cops
wanted it to
 Brower: the very instrumentality set in motion or put in place in order to achieve that result; ct
said when we’re looking at objective intent we’re not going to be hyper-technical—not
looking at whether everything went the way the cops planned
 “We cannot draw too fine a line”
 Points: (1) when you shoot at a moving vehicle, you’re trying to stop the vehicle; (2); this is
like being shot by a gun by which you were meant to be bludgeoned—the cop pulled a gun
intending to stop you with it
 Taser cases: cops saying I was reaching for my taser but accidentally grabbed the gun—the courts
say it’s just like what the court was talking about in Brower—reaching for a weapon intending to
stop the person with that weapon is enough!
 Other seizures: whether a person who crashes after a police chase can bring a 1983 action; other actions
like setting fire to a home or threatening the use of force; getting the WRONG PERSON (Keller—trying
to stop a car = trying to stop everyone in the car)
 Fire burning & bombing a home: whoever is in the house is seized; the police are exercising control
over the house & whoever is in it when they use the means to take control are still subject to a willful
taking
 Police dogs: dog isn’t a proper ∆; there’s no Respondeat superior for 1983; can you sue the officer, though?
 Ex. police think a burglar is in the building; police command dog to find him; the dog finds someone
& bites him; the dog acquires control over him but not the person the cops are looking for; did the cops
seize the person that was bitten? YES  Brower: seizure occurs even when the unintended person is
the object of the taking but the taking itself must be willful; it was an intent to control whoever the
dog comes into contact; this is a case where the unintended person is the object of a WILLFUL
TAKING
 Brendlin v. California: passengers are SEIZED when a car is pulled over
REASONABLENESS
 Scott v. Harris: considering: risk of bodily harm that the cop’s actions posed to the respondent in light of
the threat to the public that the cop was trying to eliminate; very helpful if the cop captures the chase on
videotape
 This case makes it clear that Graham doesn’t establish a bright-line rule for reasonableness; in
high-speed chase cases in which the officers eventually seize the car, there’s a high risk of danger
to 1 person & an attenuated risk to a lot of other people
33

 Note: just the chase isn’t a seizure; the person has to actually be stopped
 Abney v. Coe (4th Cir. 2007): motorcycle chase; it crashed & the cop ran over the driver; ct held that seizure
was reasonable—whether the risk the officers posed to the suspect was greater than the threat to the public
the officers aimed to eliminate; it is reasonable to risk harming a person who threatens others to prevent
the threatened harm from materializing
 Other issues in reasonableness:
 Courts are divided over how to individually look at a specific use of force; whether one should look at
each use of force separately or at the event as a whole; whether it should be a sequence or an ongoing
set of actions; the courts are split on ALL of this
 Another issue is what types of evidence are relevant?
 Brown v. City of Hialeah: Racial slurs while beating someone up? The problem is that it’s
supposed to be an objective inquiry; the fact that the officers have subjective malice doesn’t
affect the question of reasonableness of the force; but one could argue that the evidence is still
admissible for the jury to take into consideration—Graham FN 12: in assessing the credibility
of the officer’s account of the circumstances!
 Victim of shooting having drugs secreting in mouth at the time of the shooting; the officer didn’t
know; it may be relevant because it’s external evidence for the jury to use in assessing the
credibility of the officer’s statements of how erratic the person was acting (i.e. taking PCP &
acting psychotic)
 ^ evidence isn’t for the officer’s subjective state of mind
 Chew v. Gates (circuit): π resisted or was armed; # of arrestees & officers; nature of charges; &
availability of other methods of control; utterance of racial slurs; violation of police policies?
When something looks like the Fourth Amendment but really isn’t
 Problems
 Innocent person held hostage in a car subject to a police chase; the police shoot into the car & kill the
innocent hostage (Medeiros); do the hostages have claims here? Have they been seized? The officers
are deliberately trying to void hitting the hostage BUT this is like the deer case—they were trying to
stop the car + Brower suggesting this is a seizure b/c it’s a case of using force to stop something that
doesn’t necessarily go the way the cops planned it to + unintended person language
 2 ideas: (1) if you’re seizing a car, you’re seizing everyone in the car, not drawing too fine a
line; (2) cops are deliberately trying to FREE the hostage, so it’s really an accident (different
from the dog biting case)
 The lower courts ALL say that the hostages are NOT seized, using the rationale that this isn’t
like Vaughan b/c the cops are deliberately trying to get the situation under control by letting
someone off the hook
 The Brower unintended person language: when the cops deliberately someone, they seize that
person even if it is the wrong person BUT in an ACCIDENT or bad-aim case, the victim of
the accidental shooting/stop is not seized
 Tire deflation of the suspect’s car; the suspect then hits and kills a family driving on the same street
 Ct held the family wasn’t seized; the family dying was an accident
 The lower ct's draw a distinction b/w cases in which police end up hitting someone they’re sort
of aiming at but things don’t happen the way they wanted it to and accident cases
 Substantive DP Claims—14th Am.: so does the hostage have any recourse? YES, 14A SDP claim
 The lower courts say you can use SDP in cases of what looks like it could be a seizure but it’s not a
seizure; 4A doesn’t apply b/c there’s no seizure! Thus, Graham’s more-specific home rule doesn’t
apply! [***ask Coach K if the ∆, the actual suspect, could ever use this when there isn’t a seizure]
 County of Sacramento v. Lewis (U.S. 1998): Whether an officer violates 14A SDP by causing death
through deliberate or reckless indifference to life in a high-speed auto chase aimed at apprehending a
suspected offender; NO—only a purpose to cause harm unrelated to the legitimate object of arrest
will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a DP
violation; motorcycle chase; passenger killed; court held 4th doesn’t apply because no seizure 
standard is arbitrariness; high-speed chases with no intent to harm suspects physically or to worsen
their legal plight do not give rise to liability under 4A, redressable by an action under 1983
 With a chased car hitting an innocent person, there’s no seizure—the cops aren’t intentionally
running the person over
34




Is there an SDP claim? The court says YES in Lewis—could bring a 14A claim b/c no seizure,
thus no more specific constitutional home
 The issue w/ SDP is that it’s a subjective inquiry! It must shock the conscience; we don’t know
the standard/culpable state of mind that must be applied to the officer subject to a SDP claim
 there’s NO single SDP standard; it depends on the circumstances
 The standard in any given case depends on the constraints the officers are facing, i.e. with
minimal need to make split-second decisions use deliberate indifference; with high-speed
chases, there must be an “intent to harm”
 ***It’s clear that negligence isn’t going to be enough! It’s never actionable under SDP
 Ct said that in some circumstances, it’s deliberate indifference to satisfy the standard of
wantonness—w/ medical care cases, for example  these are cases where the officers aren’t faced
w/ making split-second decisions; it’s more of a static situation
 BUT when the police are required to make split-second decisions, a higher standard applies—
basically an INTENT TO HURT standard: “only a purpose to cause harm”  this applies here
to high-speed chases b/c the cop is trying to make a split-second decision
Duration of seizure
 Graham see FN 10 [post-arrest cases, “beyond the point at which arrest ends & pretrial detention
begins”]: left open whether 4th applies to excessive force b/w arrest ending & pretrial detention beginning;
6th Circ. applied it to booking; whether a seizure is a simple event or a continuing state; Supreme Court
malicious prosecution could be governed by 4A and continuing through the trial; what if there’s a second
seizure?
 This is a very important factor because it determines whether to use an objective or subjective
standard (if 4th objective; if 14th subjective, but we don’t know the standard)
 Timing
 Arrest/Investigatory Stop: MUST use 4A.
 ***in b/w the 2: detention period; the court has long held that pretrial detainees are protected under
SDP of the 14th Am. [but there are still people within the state’s control & deserve some constitutional
protection; usually comes from the 14th Amendment]
 Goes back to Bell v. Wolfish—SDP protects pretrial detainees
 BUT the court has never decided when a person switches from the 4th to the 14th Am. & the
circuits are in total disarray about this; 2 competing ideas
 Ex. someone has been arrested w/o using excessive force; taking him to the station & as
they’re taking him out of the cop car at the station to go to booking, he says something &
the cops beat him up—is this a 4th or 14th Amendment claim?
 (1) Seizure as a continuing state (still being handcuffed; how long does it continue, though?)
 Common sense tells us that seizure occurs while someone is under control
 J. Ginsburg in Allbright v. Oliver in dicta said, seizure continues as long as someone is
under police control
 Most circuits agree that seizure is a continuing act BUT disagree on until when  K
thinks the 7th & 9th Circuits have the soundest view—the seizure continues until there’s
some judicial hearing (PC hearing or arraignment or some other formal proceeding that
determines whether the state has a right to hold the person); other circuits say it’s a
considerable amount of time
 (2) Seizure as a single act (once under control, it’s post-seizure, thus DP applies)
 4th Cir adheres to this; Riley—relying on a SCOTUS chattel case stating that seizure is a
single act & not a continuous fact (Thompson v. Whitman)
 Post-Conviction: MUST use 8th Amendment
Other seizures—involuntary hospitalization; rape; fondling; gun-point headlock
Seizures of property: the 4th Am also applies to seizures of property; if the police seizure your property & it’s
unreasonable, you can bring a § 1983 claim
 Soldal: Ct held that towing of mobile home was a seizure under the 4A; it could apply to repossessions,
formally under PDP
 Also applied to pets as “effects” under the 4th Amendment
35

 The key point is that since it’s a seizure of property, it’s the 4th Am.; if it weren’t the 4th Am., it
would fall under procedural due process of law (Parrot); the issue is whether the person can dodge
PDP/SDP & Parrot
 Real property: can come under the 4th Amendment
 Presley v. City of Charlottesville (4th Cir. 2006): state may map for hiking trail that included private
property; the private property had “no trespass” signs on it and the city prosecuted her for it; the court
held that the city violated her 4A right  governs temporary or partial seizures; here there was
meaningful interference with her possessory interests; 5th Am. takings was also available; presence of
4th mandated a dismissal of SDP though
 Pets as property
The Eighth Amendment

 Conditions
 Objective
 Single, identifiable human need
 Use of Forceb
 > de minimus force


 Subjective
 Deliberate indifference (Farmer &
subjective look)
 Malicious & sadistic
Generally
 Comes up in prisoner cases a lot; they are subject to a lot of coercive action; not every use of force against
a prisoner violates the 8A; at some point, though, the force amounts to Cruel & Unusual Punishment &
does amount to an 8A violation; the ***key is how to draw the line
 This is another clear constitutional home for 1983 cases; there are similar issue w/ drawing a line b/w tort
& constitutional violation
 Two components to an Eighth Amendment claim—
 (1) Deprivation was sufficiently serious (objective)
 The fact that you don’t like your jail cell doesn’t state an 8th Amendment claim
 (2) Officials acting with a sufficiently culpable state of mind (subjective)
 Types of cases are important, too
 Conditions of confinement cases (Wilson)
 Use of force cases (Hudson)
Estelle v. Gamble [underlying these cases; first HUGE step]
 Facts: insufficient medical treatment case
 The court extended the 8A beyond the sanction imposed by the legislature/sentencing judge  8A can be
applied to some deprivations that aren’t specifically part of the sentence but were suffered during
imprisonment; must show a culpable state of mind (here, deliberate indifference)
 Ex. historically, it would be challenges to the punishment given, like the death penalty NOT how the
punishment given is being carried out; here, the claim is about how the punishment is being carried
out; it’s focused on an individual act/omission; something that happened or didn’t happen to you

***Individuals can sue on individual acts/omissions, not just part of the actual sentence; it applies
to what happens to people in prison
 Thus, the 8th Amendment applies to individual actions that befall someone in custody!
 This is the FIRST modern 8th Amendment case under § 1983
 The court held this was inconsistent with evolving standards of decency, thus it was an unnecessary and
wanton infliction of pain; BUT it has to be DELIBERATE indifference, so state of mind is important
 Wanton and unnecessary infliction of pain is inconsistent with standards of decency, so it violates the
8th Amendment
 When is it just something bad and when is it W&U infliction of pain? The court says the mere fact
of lacking medical treatment isn’t necessarily a W&U infliction of pain
 What makes something W&U infliction of pain is the deliberate indifference (knowing there’s
a problem and doing nothing about it)
 For medical care, subjective prong = deliberate indifference and objective prong = serious
medical needs (i.e. can’t bring an 8A claim b/c someone isn’t giving you aspirin)
36


Whitley v. Albers: Deliberate indifference doesn’t apply to all claims; shooting while officers trying to calm a
riot; there was a lot more going on here
 To the extent there were competing considerations, the court will want more than deliberate indifference
to give rise to an 8th Amendment claim
 The court turns to Glick and weighed competing interests—
 Whether force was applied in a GF effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm
 Looking at the relationship between need and amount of force & extent of injury inflicted
Wilson v. Seiter (1991)
 Facts: conditions of confinement as cruel and unusual punishment—it included both trivial and non-trivial
claims; the Ds claimed that some conditions didn’t exist or weren’t that bad and also said they were
working on fixing some of the problems
 Rhodes v. Chapman: double-celling; not unnecessary and wanton infliction of pain (focused on the
objective component); the Court said this case didn’t eliminate the subjective component …
 The Court held it can state an 8th Amendment claim; BUT the P must show the state of mind of
deliberate indifference; RULES
 8th Amendment requires BOTH an objective and subjective inquiry
 State of mind [subjective]
 The Court held there must be a state of mind inquiry because the concept of punishment
necessarily involves something that has an element of deliberateness to it; you can’t
punish by accident (like accidentally stepping on the toe of a prisoner)
 If pain inflicted is not formally meted out, some intent element must be attributed to the
officer
 In this case, the state of mind is DELIBERATE INDIFFERENCE
 Estelle standard because medical care cases are in a sense conditions cases (whether you
have decent access to medical care generally is a question of conditions) and there aren’t
constraints facing the officers like in prison riot cases (don’t have to make split-second
decisions)
 There must be an inquiry into a prison official’s state of mind when it is claimed that the
official has inflicted cruel and unusual punishment
 Intent can be shown by the LONG duration of cruel prison conditions
 The conduct must be wanton, the definition depends on the KIND OF CONDUCT: prison
disturbance, competing interests (very high state of mind); medical needs, deliberate
indifference
 If there is deliberate indifference, the conditions have to be bad enough to meet the subjective
standard
 Regarding conditions, a court can’t dismiss any challenged condition so long as other
conditions remain in dispute for each condition must be considered for the overall effect—but
nothing as amorphous as overall conditions can rise to the level of cruel and unusual
punishment when no specific deprivation of a single human need exists
 The P said you can never just dismiss certain conditions as not being bad enough (i.e.
insufficient locker space) because the overall conditions could be bad (wanted the Court to
look at the totality of the circumstances)  the Court said that was the wrong approach—
there needs to be a specific, identifiable deprivation of a single human need, not just an
amorphous overall conditions claim
 Examples of human needs: warmth, food, shelter, exercise
 It doesn’t mean that conditions can’t be looked at jointly (i.e. low temperatures and lack of
blankets)
 PROBLEMS with requiring a culpable state of mind
 Can claim the conditions were the result of lack of funding, not an intent
 CONCURRENCE IN JUDGMENT
 Thinks conditions are PART of the punishment and thus need not a state of mind inquiry but
only an objective inquiry
 Estelle and Whitley didn’t involve challenges to conditions of confinement (it was MORE SPECIFIC
instances); intent shouldn’t be relevant here because prolonged conditions don’t really point to an
37
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intent to deprive someone of something; “having chosen imprisonment as a form of punishment, a
state must ensure that the conditions in its prisons comport with the ‘contemporary standard of
decency’”
 3 big problems with the majority
 Thinks conditions are part of the punishment
 If it is part of the punishment, there doesn’t need to be a state of mind inquiry; they aren’t
episodic acts; conditions claims should be different from this 2-prong analysis and courts
should just look at the severity of the conditions (objective); he would broaden the concept
to what is meted out by the sentencing judge
 State of mind in conditions cases is unworkable
 Conditions are hard to link to intent; can’t talk about the subjective intent of an institution;
conditions are institutional (it comes from different people over time); it’ll be hard if not
impossible to determine who’s intent we’re looking at
 Insufficient funding defense
 Even if you can pin the blame on someone, that person will assert that insufficient funding
caused it and thus there’s no intent to deprive; it was a deprivation that resulted from
external circumstances; not having money negates deliberate indifference; they were trying
to help but were stymied
Hudson v. McMillian (1992)
 Prisoner beaten by officers; he was shackled and beat up by guards while the supervisor watched and told
them not to have too much fun;
 The 5th Circuit dismissed the case on an objective standard  held it wasn’t a “significant injury”; the
harm suffered wasn’t serious enough, so:
 Issue—whether excessive use of physical force against a prisoner can constitute cruel and unusual
punishment when the inmate doesn’t suffer serious injury; the Court held YES, it can
 RULES
 The legal standard = unnecessary and wanton infliction of pain  what that means depends on
the conduct that occurred
 Here, Whitley applies—whether force was applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically to inflict harm (basically Glick)
 Use of force cases—building directly on Whitley
 The extent of injury suffered is one factor; the absence of serious injury is relevant to the 8th
Amendment inquiry but doesn’t end it
 Objective component: important for medical needs and conditions of confinement cases to determine
whether it comports with society’s expectations; here, though, contemporary standards of decency
are already violated with the use of excessive force—whether or not significant injury is evidence
[exception: when there’s de minimus touching/force]
 The court rejects the argument that there needs to be a serious injury—no requirement
because the objective requirement depends on the claim and looks to evolving standards of
decency; any time someone maliciously and sadistically uses force, it’s objectively a bad thing
 But, use of force does need to be more than de minimus (a push won’t suffice, even if M&S)
 ***It’s a very low objective standard and a very high subjective standard
 The actions were against prison policy and thus BEYOND the scope of punishment  ties in with
Scalia and Thomas’ opinion; whether a random, unauthorized use of force is even punishment, the
Court does not decide this issue
 See Scalia and Thomas
 Concurrence in part & judgment (Stevens): no disturbance; malicious and sadistic standard is misplaced
 Concurrence in judgment (Blackmun): doesn’t join Court’s extension of malicious and sadistic standard
but thinks that there’s no need to show significant physical injury; focused on psychological harm; wants
to prevent ingenious torture with harms that don’t leave marks
 Dissent (Thomas & Scalia): only significant harm should be actionable; doesn’t agree with eliminating the
objective component; doesn’t think the subjective component should be as demanding as the court
requires; excessive force may not even be as bad as prolonged terrible conditions
 If we’re looking at state of mind, just use deliberate indifference (guards shackling the dude in this
case had nothing to do with a riot; there weren’t competing interests here)
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 There should be a serious injury requirement
 Footnote 2: these really aren’t 8th Amendment claims because they’re isolated, unauthorized uses
of force; it isn’t punishment in any meaningful sense  if this comes under the Constitution at all,
it should come under 14th Amendment PDP (Parratt)
 Basically, it’s a state tort case and as long as there’s a tort remedy, it’s enough (this hasn’t caught
on with a majority of the court)
Notes & Questions
 Hope v. Pelzer (2002): shackling up a prisoner and not giving him water and taunting him; AL had a chain
gang requirement—they had a system in place where the prisoner who didn’t do the assigned work on the
gang or acted up would be returned to the prison and hitched to a post in the prison yard until he “agreed
to go back to work”; the regulations said the prisoners must get water and bathroom breaks every 15
minutes (here, he was handcuffed for 7 hours without any breaks); he claimed this violates the 8th
Amendment: unnecessary and wanton infliction of pain includes those punishments totally without
penological justification; clear lack of an emergency situation; the Supreme Court had no problem
finding it was an 8th Amendment violation
 This was an unnecessary infliction of pain; it wasn’t in response to a security threat; leaving him
hitched in the sun is a gratuitous infliction of pain—there was no penological justification
 This was an immunity case, so the 8th Amendment was talked about only in passing in the court’s
opinion
 Problem: distinguishing conditions from use of force cases
 Objective inquiry: this was bad enough; it was an unjustifiable use and infliction of physical pain
regardless of whether you look at use of force or conditions
 Subjective inquiry: options
 It switches from M&S to DI
 Only M&S (all use of force)
 DI (part of conditions)—this is what the circuit court used; BUT it didn’t really have to decide
because M&S was satisfied, too
 No state of mind needed (White: part of the punishment; intent is implicit; but the majority
rejected White’s opinion so we can’t really use this)
 ***THE point: it’s difficult to characterize the cases as either conditions or use of force
 Also issues when the guard watches someone beat an inmate up—is the guard tolerating a
condition or is this more use of force (most courts would say conditions + DI)
 Farmer v. Brennan (1994): Transsexual in male prison who was beaten and raped; for deliberate
indifference, the court held the P needed to show the officers’ knowledge of the violence and history of
inmate assaults; somewhat equating it to recklessness BUT the court rejected the objective, civil law
standard: must be both aware of the facts and must draw the inference
 What does deliberate indifference mean? The Court held DI is the standard here, but what does
the P have to show?
 Civil tort law: deliberate indifference is objective; disregarding substantial risk of which someone
knew or should’ve known
 Criminal law: deliberate indifference is subjective; the Court quotes the MPC—conscious
disregard of a substantial and unjustifiable risk; the person needs to know of the risk and then
disregard it
 ***This is what the court uses; the subjective standard
 Problems: The defendants are just going to argue that they didn’t know of the risk; this feeds
the ostrich mentality of deliberately not learning of the dangers
 The Court tries to cope with this: one can prove subjective deliberate indifference without
actually reaching inside someone’s head because of the obviousness of the risk may mean the
person actually knew of it; also the officials don’t have to know of the SPECIFIC risk to the
specific individual
 Claim: putting someone who for all intents and purposes is a woman in the male general population
will lead to very predictable results (namely, the rape and attack here)
 This is a faulty classification claim (putting the prisoner in the wrong group)
39
 Serious medical needs: serious medical need is one that has been diagnosed by a physician as requiring
treatment, or one that is so obvious that even a layperson would easily recognize the need for a doctor’s
attention (whereby medical verification need not be had)
 Helling v. McKinney: dangerous levels of ETS exposure can form an 8th Amendment claim; here, the
inmate was celled with someone who smoked 5 packs of cigarettes a day; it’s enough that the prison
officials were deliberately indifferent to long-term exposure to ETS; risk must be one that society chooses
not to tolerate and that prison officials’ current attitudes and conduct manifest deliberate indifference
 Note: there doesn’t need to be actual sickness yet; it’s enough if it’s an exposure to a risk that
society doesn’t tolerate
 Example: asbestos—society doesn’t tolerate this
 Whether Ds were deliberately indifferent: looking at their current state of mind; it’s not enough
that the officials let it continue but looking at the time frame of the challenge and whether their
attitudes manifested deliberate indifference
 This all goes to White’s fear of lack of funding defense  we’re looking at subjective indifference or
current subjective indifference; would lack of funding work?
 Ex. TN Case: old prison with no AC; some prisoners suffered a heat stroke and some died; they
brought a conditions claim, arguing the conditions were unconstitutional under the 8th
Amendment; the officials argued they didn’t have money to install AC (no one is contesting that
there’s a deprivation of an identifiable human need); the court will not let them just claim lack
of funding BUT will look to see if they asked the legislature for money, could purchase fans,
could move out especially vulnerable people
 There isn’t a stark distinction—you must try to ameliorate the situation short of a large
expenditure of cash
 Baze v. Rees: the method of execution can violate the 8th Amendment if deliberately inflicted pain for the
sake of inflicting pain; it didn’t present an objectively intolerable risk of harm
 Wilkins v. Gaddy: De minimus: Supreme Court held this didn’t mean that the prisoner had to show more
than de minimus injury
 Prison Litigation Reform Act: prisoners must exhaust administrative remedies before suing
 It has reduced the # of prisoner lawsuits but some say it’s gone too far; the Act was enacted in 1995
and it put a lot of procedural burdens in place; it is not usually the case in 1983 that the P has to exhaust
administrative remedies; also the prisoners have to pay out of their inmate accounts (can’t proceed in
forma pauperis); there is also a 3-strike rule (with 3 frivolous suits, court can dismiss subsequent
frivolous suits)
 42 U.S.C. § 1997e(e): prisoner can’t bring a federal civil action for mental or emotional injury without
a prior showing of physical injury
 McKinney: ETS claim; they can’t prove prior physical injury; the courts are unclear on these cases
 What is physical injury?
 6th Circuit—non-de minimus harm  being left to languish in unsanitary cell is physical injury,
not necessarily physical injury but a really bad condition
 Hudson said you need more than de minimus use of force but NOT more than de minimus
harm (there’s a difference—the former is incredibly minor force, like a shove, but it doesn’t
require that there be any measurable harm)
 Wilkins said that this is inconsistent with Hudson—it’s an 8th Amendment case, though, not
falling under the PLRA
 Some courts have limited the reach of the physical injury provision but none have held it
unconstitutional
 If you don’t have a physical injury, what happens?
 Lower courts say this requirement serves to prevent compensatory damages not as prohibiting
injunctive or declaratory relief or as preventing nominal or punitive damages
 Why are nominal damages good? You can still get attorney’s fees because you’re a prevailing
party
 Some courts say that the physical injury requirement doesn’t apply to the 1st Amendment (religion
claims—denial of prayer or making the inmate eat foods prohibited by their religion) and to Equal
Protection claims, but they can get damages; they aren’t suing for an emotional injury so §
1997e doesn’t apply!
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 Justice Thomas’s dissent: questions regarding the significance of a state tort remedy in determining
whether a prisoner can establish an 8th Amendment violation; it will come up with the Parratt discussion;
it’s also relevant for unprovoked assault cases (Pelfrey v. Chambers—cutting someone’s hair)
 Prisoner SDP Claims: Whitley—plaintiffs claimed a violation of their 14th Amendment SDP rights; they
said the 8th Amendment was the PRIMARY source and must be used when it applies; DP doesn’t provide
any greater protection than the 8th Amendment; does this narrow the 14th Amendment, as well?
 Scalia’s opinion in West: how does he view the relationship between the 8th and 14th Amendments [prison
doctor acting under color of law]; doesn’t think the physician acted under color of state law—can’t inflict
punishment within the meaning of the 8th Amendment; thinks it should fall under SDP of the 14th
Amendment with deliberate indifference
 Limitation on Prisoners—Ingraham v. White (1977): 8th Amendment only protects convicted prisoners; it
doesn’t apply to other forms of punishment (i.e. paddling school children); in a footnote the court did state
that it was possible that some punishments not labeled criminal could be sufficiently analogous to criminal
punishments to justify applying the 8th Amendment
 Intersection with Habeas Corpus: habeas—to obtain relief from custody; a write of a person that’s
unconstitutionally confined to obtain release; it’s not easy to get a writ of habeas corpus; it requires
exhaustion of state remedies (pursuit of all appeals throughout the state system before you can seek
habeas); more recent statutes have narrowed the standard of review under habeas (lots of procedural
restrictions); because of these restrictions, the P would prefer to use § 1983
 Preiser v. Rodriguez: Challenges to the validity or duration of confinement must be brought under
habeas corpus NOT § 1983
 Cases at the core of habeas:
 Invalidating the conviction or
 Reducing the length of confinement (ex. challenges to good-time credits)
 ***Problem: claims that undermine the constitutionality of confinement but say they’re seeking
relief that’s not available in habeas (i.e. getting damages for your unconstitutional conviction)
 the Supreme Court doesn’t allow this; any case that undermines the constitutional validity
of confinement is challenging the fact/duration of the confinement
 Recently, the Supreme Court is more receptive to 1983 cases that could lead to the lessening of
confinement  the Court has said where 1 possible outcome is release or reduction of
confinement, it doesn’t mean it has to come under 1983?
 Heck required the plaintiff to resort to state litigation and federal habeas before § 1983 is not implicated
by a prisoner’s challenge that threatens no consequence for his conviction or the duration of his
sentence
 Where the court refused to apply Heck:
 Court refused to apply it in charge of threatening behavior and subjected him to a mandatory
prehearing lockup in retaliation for prior lawsuits
 Nelson v. Campbell: challenge that went to the conditions of the prisoner’s confinement could come
under § 1983
 Wilkinson v. Dodson—could challenge constitutionality of state parole procedures because it would
not necessarily spell immediate or speedier release for the prisoners
 Here, the court said they could bring this under 1983 because their relief won’t necessarily get
them out of jail faster—they’re just getting a new hearing
 Hill v. McDonough—three-drug lethal injection procedure challenged; court allowed it to come under
§ 1983 because it would not necessarily prevent the state from executing him
 D.A. v. Osborne--§ 1983 claim could go forward to compel release of biological evidence for postconviction DNA testing because the tests could support a finding of guilt
 Court said this could come under 1983 because it doesn’t necessarily mean the person will get out
of jail; the DNA evidence could confirm the conviction
 Lack of turning over Brady material: this is always exculpatory so it would implicate the
fact/duration of confinement
 Pretrial Detainees
 Generally: cannot bring suit under the 8th Amendment because no conviction yet; they can bring SDP
claims, challenging either conditions of confinement or excessive force (Graham v. Connor
recognized this)
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
However, these claims tend to mirror 8th Amendment claims
BUT, since they’re under SDP, what standard applies? Here, the law is a total mess and is
circuit-driven
 Conditions cases
 Bell v. Wolfish: whether conditions amounted to punishment; absent a showing that it was an intent
to punish, the determination will turn on whether an alternative purpose to which the restriction
may rationally be connected is assignable for it & whether it appears excessive in relation to the
alternative purpose
 State has no right to punish detainees but does have a right to confine someone & there will
be thus restrictions on their freedom; the test is geared towards this
 ***Specific 2-prong analysis:
 (1) whether disability is imposed for the purpose of punishment or whether it is but an
incident of some other legitimate governmental purpose (i.e. not punishment would be a
strip search after a visit from someone outside the cell; the strip search isn’t punitive but
to safeguard inmate safety) [intent]
 (2) is that restriction rationally connected to the end or whether the restriction is unduly
harsh in relation to that end (i.e. is the strip search unduly harsh to safeguarding inmate
safety—here, the court said no given the likelihood that someone may pass contraband to
an inmate during a visit) [proportion]
 Courts use this for restrictions cases
 Other cases re: pretrial detainees tracks 8th Amendment conditions claims exactly
 Estelle for medical care
 Farmer for excessive force  lower courts are split on whether to use deliberate indifference or
M&S
 Classification or detainee suicide, courts use DI
 Medical care, use Estelle and DI
 Restrictions, Bell
 ISSUE: when Bell applies and when DI from 8th Amendment context applies; but everyone agrees
that these claims come under SDP and are either handled the same way as 8 th Amendment or
somewhat different
 Involuntarily Committed Mental Patients:
 Generally: similar issues to detainee cases; ex. persons committed in mental institutions; they get
protection under SDP but what standard applies?
 DP requires the state to provide them services that are necessary to ensure their reasonable safety
from themselves and others
 DeShaney—right to
 Reasonably safe conditions of confinement,
 Freedom from unreasonable bodily restraints, and
 Minimally adequate training as the interests may reasonably require
 Youngberg—balancing plaintiff’s liberty interests against the relevant state interests; court must defer
to professional judgment; only liability for the professional if there’s a substantial departure from
accepted professional judgment, practice, or standards as to demonstrate that the person responsible
actually did not base the decision on such a judgment
 Unique standard for mentally handicapped person involuntarily committed to a state hospital
 First, the court said that SDP guarantees a right to care & minimal restraint (a right to the
least restriction possible) and requires the state to provide enough training or rehabilitation
to enable someone to live w/ a minimum of restraint  if the person can function with
instruction outside the cell, the state must provide that instruction so that they can do that
 Using a professional judgment standard to determine what’s enough—if decision made by a
professional it’s presumptively valid; there’s only liability if it’s a substantial departure; basically,
if the professional is acting professionally, we defer to that decision
 Who is entitled to protection (not retarded patients; maybe involuntarily placed foster children) and
when does the professional judgment standard apply?
 It applies to people involuntarily committed for psychiatric or developmental reasons
 Foster children—a number of courts use this professional judgment standard in challenges to foster
care placement
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
Prison cases—some say it should be used in those cases; if taken to far, though, it undermines the
8th Amendment law
 What’s clear? We’re dealing with SDP and there’s some sort of right
8th Amendment Review
 Dual objective/subjective analysis
 When there’s an 8th Amendment case, it HAS to come under 8th Amendment
 SDP can be a fallback
Substantive Due Process
 Open Field: can be a fallback for the 8th and 4th Amendment claims; pretrial detainees and innocent victims of
police chases
 These materials deal w/ recurring situations of cases that don’t have constitutional homes
 We know 4th Amendment applies to arrest/stop of a free person
 We know 8th Amendment applies if you’re a convicted prisoner challenging what happens to you
(conditions, medical treatment, etc.)
 Issues: (1) which of these claims are properly brought under the specific constitutional provision, not the DP
clause; (2) which claims are really just tort claims that do no raise constitutional concerns (Paul v. Davis and
Baker v. McCollan); and (3) what standard applies if you do have a SDP claim
 Malicious Prosecution
 Generally: cases in which someone challenges trumped up evidence; P usually suing cops who caused the
arrest by a proceeding based on either false info or totally trumped up info; note: P can’t sue prosecutor
b/c of immunity
 On one level these cases are mere torts BUT there’s a state actor involved, so can you
constitutionalize it? The early days brought 1983 malicious prosecution claims  can we do this?
NO says Albright; it must go under a specific constitutional provision, i.e. 14th Amendment SDP
 Baker v. McCollan: people didn’t know whether and how a victim of malicious prosecution could show a
constitutional violation under § 1983
 C/L elements: (1) institution or continuation of criminal proceeding by D against P; (2) termination of
proceeding in favor of accused; (3) absence of PC for the proceeding; and (4) malice or primary
purpose other than that for which the process was designed
 Others: conduct under color w/ 4 C/L elements—constitutional violation shown
 Some require conduct that’s sufficiently egregious, without reference at all to the common-law
elements
 Albright v. Oliver (1994): Oliver, detective, found John Albright, Jr. was dealing drugs (look-alike drug
w/ baking soda); later met w/ him & felt bad that he was being prosecuted; he then changed the name on
the warrant to a rando dude in Chicago; this dude was subjected to a cash bond, & couldn’t leave the state;
he also couldn’t go to a job interview; he sued for a SDP violation for malicious prosecution BUT
 Plurality held that he didn’t state a claim b/c it should’ve come under the 4th Amendment (“pretrial
deprivations of liberty”); 4th was the specific constitutional provision but it the Court didn’t decide
whether it amounted to a 4th Amendment claim here
 Harkening back to Ginsburg w/ the idea that a seizure is continuing
 Kennedy & Thomas concur saying Parratt should govern—PDP
 Souter says it’s a 4th Amendment claim but there’s no seizure
 Either way, the claim cannot be SDP; & there’s a very strong suggestion that it would be the 4th
Amendment
 Meaning of Albright: what a 4th Amendment malicious prosecution claim must show; the lower courts
have held that the cases can be brought under the 4th Amendment; there’s a split on what standard to
apply—some look at whether it’s just a 4th Amendment claim with factors or just a constitutional approach
 Hernandez-Cuevas (1st Cir. 2013): 4th Amendment = objectively unreasonable while c/l claim required
subjective malice; 4th claim + factors
 Sykes (6th Cir. 2010): four elements—none including a subjective inquiry; expressly refusing to require
malice; mere constitutional approach
 Seizure: Burg (2d Cir. 2010)—summons, pre-arraignment and non-felony does NOT constitute a seizure
BUT not being able to the leave the state is (Murphy)
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



 Where does the 4th leave off? Albright indicated that one element for c/l action for malicious prosecution
was termination of the prior criminal proceeding in favor of the accused; Haddock—state conviction
reversed on appeal didn’t bar § 1983 4th Amendment false arrest & malicious prosecution claim
False Imprisonment
 Generally: lower courts say SDP; would it fit better under the 4th?  one court said being held in jail for
a year without exculpatory evidence violated 4th Amendment; these are cases in which someone isn’t really
challenging HOW they were brought into custody but being kept in custody after it’s clear that the
state has no right to continue to keep them
 Baker v. McCollan: we know you can’t bring a § 1983 false imprisonment case; there must be a
constitutional claim
 Blackmun: you need a constitutional claim; it can be SDP if it shocks the conscience
 If procedure is bad, it could be PDP
 Here, most circuits will use SDP if the detention shocks the conscience
 Ex. being held for a long time despite repeated protests of mistaken identity or if someone is being
kept a long time even though there’s an order to release them
 If something about the improper confinement that shows a total indifference to the right to confine,
courts tend to use SDP
 Armstrong: someone kept for 57 days without a judicial appearance = claim
 McCannon: deliberate indifference to misidentification
 Should this be brought under the 4th Amendment because malicious prosecution is? Some courts say
YES—2d Cir. so long as someone is confined, they’re seized; if it’s unreasonable because there’s evidence
that it’s the wrong person or there’s an order for the release, you can bring a 4th Amendment claim
 BUT, the majority position is still to use the SDP
Confessions: SDP by coercive questioning? It’s not a 5th Amendment claim because the state didn’t incriminate
the person! It’s statements that were coerced but not used; the courts recognized a possible SDP claim if it
shocks the conscience
 SC recognized the possibility of such claim even when the incriminating statement isn’t used; it must still
shock the conscience and this is a high threshold; lower courts haven’t really found SDP claims that
were successful; it’s a really high standard
 Chavez—failure to give Miranda does not itself give rise to a claim under § 1983
 Tinker—police told girl that her attorney wasn’t really representing her, that bad things will happen if she
gets another attorney, and that she’ll fry in the electric chair—the court said this wasn’t bad enough to
violate SDP (perhaps physical torture would work)
Exculpatory Evidence: 6th Cir. held that a person could bring a § 1983 claim for failure to provide the
prosecution with exculpatory evidence under Brady; it was a PDP claim!
Abuse of Civil Process: misapplication or bringing proceeding under an invalid statute under § 1983?
 Andree, 7th Cir. 1987: NO for unconstitutional ordinance because it wasn’t plainly unconstitutional
 Richardson v. South Euclid, 6th Cir. 1990: prosecuted under unconstitutionally vague ordinance; the court
held that the defendants were given all due process they had a right to
Land Use: Denial of zoning requests come up because the people on the zoning board want the land for
themselves; permit denials and related land use decisions can violate SDP; the question is whether it shocks
the conscience; 6th Cir., Pearson, SDP right to not be subjected to arbitrary or irrational zoning decisions
 Land zoning: it’s definitely a misuse of process but does it violate anything? The lower courts say these
cases do sound in SDP, where the decision is purely irrational and shocking
 Lead cases in the 3rd Circuit: arbitrary denial of zoning application due to a board member’s personal
interest; wholly/purely irrational (tough standard to meet)
Protected Personal Interests
 Interference with Bodily Integrity: fundamental interest in liberty under SDP
 SDP: regarding personal integrity; this ties in with traditional SDP claims; it’s well-established
interests in liberty
 Liberty interest in freedom from physical and sexual abuse (i.e. judge asking for sexual favors; police
raping someone)
 Rape by police: 4th Amendment, some say it’s not really a seizure because the point isn’t to arrest
the person
 Liberty interest in privacy
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
 Liberty interest in freedom from bodily restraint and punishment
 Corporal punishment in school—Ingraham, U.S. 1977, no required hearing before punishment
inflicted BUT lower courts have held that severe corporal punishment can violate SDP (majority
position); some say it can be analyzed under the 4th; you can’t bring an 8th Amendment claim
because not convicted of a crime
 High school sports coaches included; 5th Cir.—no claim stated as long as state law provides a
remedy
 Psychological abuse: just a tort or actionable under 1983? Abeyta—it can’t be used for calling a
student a prostitute
 Abuse of a mentally handicapped person, didn’t state SDP because it didn’t shock the
conscience
 Employment Decisions: arbitrary employment decisions denying SDP; easy when P has a property
interest in the job (i.e. tenure); some circuits require more—that the decision was arbitrary & irrational
 Academic Decisions: Regents v. Ewing (U.S. 1985)—arbitrary educational decisions can violate SDP but
court’s must refer to educator’s expertise
Equal Protection as a substitute for SDP
 Generally: “Equal Protection is the new SDP?”  that’s what we’re trying to figure out; it’s desirable to
use because the P doesn’t have to show that he/she was deprived of a property or liberty interest
 EP claims: The P is arguing that the state treated him/her unfairly and are going to make a
constitutional case out of it—generally, you’d think it would go to SDP because there’s no
constitutional home for it (can’t use 8th or 4th; can’t use PDP); they stray from EP because the person
isn’t challenging a discriminatory treatment based on membership in a class (racial or religious);
it’s that the government treated me unfairly because of something about ME  not a class; but
other branch of EP? Fundamental interest (court using strict scrutiny if the state is making
classifications on who can exercise a fundamental right—comes up in right to vote and access to court
cases); land use cases don’t bring up this fundamental right
 It SEEMED like EP was inapplicable until Olech
 Why EP is more attractive than SDP
 For EP, there doesn’t have to be a deprivation of anything
 Employment: people fired from their job for unreasonable reasons  if there’s employment at
will, you don’t state a claim; then you can claim you’re a class of one
 The courts have recently cut back on these claims—in 2008, the court in Engquist said that Olech
doesn’t apply in the public employment context because it would undermine employment at will
 Village of Willowbrooke v. Olech (U.S. 2000): EP claim for arbitrary easement required of P to get access
to water supply; class of 1 but needed to show that it was arbitrary and intentional discrimination;
subjective ill will issue not reached
 This wasn’t based on a fundamental right or membership of a class
 ***IT opened up EP considerably, but the court later cut back on it
 The court didn’t require a showing of subjective ill-will but also didn’t rule out that it might be
relevant!
 Breyer raises this in his concurrence calling for such an ill-will or malic requirement to bring
class of 1 claims
 The circuits are in disagreement on this point
 Restrictions on Olech
 Engquist:
 Class of 1 theory doesn’t apply in public employment context, thus the employee must show
class-based animus; does it apply to potential employees? (6th Cir. Bower); applied to government
contractor’s claim and excessive regulatory scrutiny; distinguished when the decision is inherently
subjective
 If it allowed the doctrine to apply in the public employment context, it would eliminate
employment at will
 Also, the government is acting in a unique role in employment cases because the government
always has more freedom to act in a subjective manner when it’s acting as an employer
rather than as a regulator
 How far does Engquist reach?
45



Logically, it applies to employment decisions
Douglas Asphalt (11th Cir.): government contractor; applied Engquist to that situation
Kusel (2d. Cir.): key is whether the government is acting as a regulator (using its
traditional, governmental coercive power)  if yes, Olech applies
 Del Marcelle (7th Cir.): whether there is a clear standard against which to measure
departures (if yes, Olech applies!); but this was a divided opinion
 Motivation in Applying Olech: Del Marcelle (7th Cir. 2012)—police not responding to
assistance for harassment by motorcycle gang; the 7th Cir. believed the EP claim required
a showing of animus; there was a split as to whether this was required
 How similarly situated must the person be? In class of 1 case, the similarity must be extremely high
 Whether claims are too insubstantial to raise a constitutional issue
 Rational basis review: Olech and rational basis relationship? One case, Christian Heritage, where court
held there was a rational basis but it failed Olech






PDP: Property
PDP: Liberty
PDP: Life
SDP
BOR Incorporation






Negligence
Parratt
Daniels & Davidson
Daniels
Davidson
Open
question
(1st
Amendment type stuff)






Reckless/Delib. Indiff.
Hudson & Parratt
Zinermon
Zinermon
Zinermon
Zinermon






Intentional
Hudson
Zinermon
Zinermon
Zinermon
Monroe & Zinermon
 Black = constitutional non-category; it doesn’t exist
 Pink = reach of Parratt
 Green = Parratt doesn’t apply

Procedural Due Process
 Generally
 “No state shall … deprive any person of life, liberty, or property, without due process of law.” 
came from the law of the land clause in the Magna Carta (TN adopted the law of the land clause in its
Constitution); most cases are about liberty and property and what’s at stake
 Analysis
 Traditional
 (1) Whether a constitutionally-protected liberty or property interest is at stake (property =
legitimate claims of entitlement; liberty = 1st Amendment rights and some state-created interests); if
so
 Liberty/property cases: usually involving a legitimate claim of entitlement to something (old
property, holding title and new property, government benefits beyond a unilateral expectation)
 Property examples
 Teacher in Board of Regents expecting to be hired; this expectation was not enough to give
him a property interest; it was a unilateral expectation
 If there were a contract in ^ giving the right to continued employment unless you commit a
crime, then there’s a legitimate property interest
 Government sets out expectation of continued benefits absent some defeasing conditions (i.e.
not filing documentation or doctor saying you’re cured)
 Liberty examples
 Fundamental rights that SDP protects (i.e. reproduction)
 Specific provisions of the BOR (i.e. free speech)
 Government giving claim of entitlement to liberty (i.e. if the government sets out the idea
prisoners have an expectation for continuing on work release unless something happens)
 (2) What process is due
46

3-factor test (Matthews v. Eldrige)—
 (1) Private interest affected by official state action;
 (2) Risk of erroneous deprivation of such interest through the procedures used and probable
value of additional or substitute procedural safeguards; and
 (3) The government’s interests—function involved and burdens with more procedures)
 Matthews: P was entitled to disability benefits; the government thought he was faking; P had a
legitimate claim (property interest), so the court had to figure out what process was due
 Starting point: procedures in place
 Got a letter saying that the government proposed to terminate benefits; he had
documentation of the reasoning of the government; he could respond in writing and submit
documentation; the government made its decision thereafter
 He wants more
 An opportunity to be heard; an oral hearing so that he can walk in the room and show them
 Goldberg: welfare benefits; the court said that termination decisions are subjective; the P
is usually poorly educated and cannot make his case in written testimony
 Risk of error with current procedures & value of additional/different procedures in light
of the importance of receiving the benefits and the cost to the state
 The court held that the letter and written response was DUE process because the decision
was not a credibility decision but a medical decision; doctors can express their medical
opinions clearly and rarely did those disputes go to truthfulness
 Given the cost of the government giving full blown pre-termination hearings and
continuing benefits during those hearings, the risk didn’t justify it
 Example: tenure contract (right to job unless you commit a crime); you’ve been either arrested
and not convicted or it’s just a misdemeanor, so you think it’s not a “crime”; the government will
say we can take away your right, you argue that your crime doesn’t fit the definition or you haven’t
been convicted
 Example: right to continue working unless subordinate and there’s a dispute over whether you
were honest to your employer, constituting insubordination
 ***BOTH: there’s a dispute and there needs to be some process to determine whether the
government has the right to take away your property, so what process is due? [look at process in
place]
 How important is the benefit
 KEY POINT: risk of erroneous deprivation through procedures used and probable
value of additional or substitute procedural safeguards [how likely is it that the procedures
in place are generating wrong decisions and how likely will additional procedures rectify this?]
 The government interest: looking at factors, such as efficiency; cost; and burden
 The traditional analysis was applied to cases with certain characteristics—deprivation was
INTENTIONAL and the deprivation took place pursuant to an ESTABLISHED GOVERNMENT
PROCEDURE
 2 Exceptions Existed
 North American Cold Storage [emergencies]: here, the accusation was that poultry in their cold
storage was putrid; if people purchased it, they would become sick; the issue was whether the
owners of the cold storage were entitled to a hearing before the deprivation of the poultry; the
Court said NO
 The Court held that in an emergency, the government can take action first and ask
questions/provide process later
 This doesn’t mean that there’s no right to process; there could be post-deprivation hearings to
provide compensation to the owner of the cold storage
 Key: post-deprivation process for compensation can be due process if an emergency
prevents pre-deprivation process
 Ingraham v. Wright [hearing wouldn’t help]: Ps were paddled students who brought claims for
beating without any pre-beating hearings; they brought an 8th Amendment claim (obviously,
doesn’t help) and a SDP claim (courts use this now); and a PDP claim (which the court focused
on)
47


The Court held that there was no point in having a pre-deprivation hearing because the risk of
error is so slim and the cost is so great (hearing wouldn’t help)
 The child’s only interest was in not being disciplined in excess of the common-law privilege
and the government had a strong interest in being able to run the school
 Little risk of error
 Value of additional procedures minimal
 THUS, no right to pre-deprivation process
 ***Note: this is a hotly disputed case; child brought claim in tort and received compensation;
but can’t get unbeaten; but, post-deprivation process was all that was DUE
 What you get from the combination of these two cases is that there may be no need to predeprivation process and that tort remedies may suffice as post-deprivation process
 Using Matthews doesn’t guarantee pre-deprivation hearings
 All of these cases were intentional deprivations! There was also an established state procedure
in place. The only question was if that procedure was sufficient to satisfy DP
Parratt v. Taylor (1981) [loss is not intentional but purely negligent, not pursuant to some established
process—what procedure is due?]
 Case: inmate ordered hobby materials to be shipped; he never gets it because he’s in segregation when it
arrives; the person who’s supposed to sign and keep it doesn’t and it’s somehow lost—negligent act;
brought a § 1983 claim to recover $23.50 (no minimum dollar amount in the statute), claiming that his
PDP right violated when the officer negligently lost his property; he had a state tort remedy that he
didn’t pursue; the Court held he didn’t state a PDP claim
 How it’s a federal case
 State action (guards in charge of delivering mail were acting under color of state law)
 Deprivation (loss of property even if negligently caused)
 State of mind (§ 1983 doesn’t have one itself); only requirement is what’s implicit in the
word “deprivation”
 Materials = property
 BUT without due process of law?
 Holding: There’s no violation of PDP where the P alleges a random & unauthorized act causing
deprivation of property when the state provides adequate post-deprivation process
 For negligent deprivation by a random & unauthorized act, due process only requires postdeprivation procedures that can compensate
 The P is not expected to exhaust state remedies in order to bring the § 1983 suit; the point is that
there is NO § 1983 suit because of the state process in place [there’s no guarantee that he’s going to
win, i.e. even if he’s missed the s/l in the state, that doesn’t give him a § 1983 claim]
 Rules
 He satisfied the 3 due process elements BUT the Court had to figure out whether he was deprived with
his property without due process of law—whether the state tort remedies satisfy the requirements of
PDP  requiring an opportunity to be heard in a meaningful manner
 Pre-deprivation proceedings are not required here because the loss is not the result of an established
state procedure, thus the state couldn’t predict when the loss would occur  the state action here
wasn’t complete; the existence of an adequate state remedy renders it NOT a due process
violation (the mere deprivation was not a constitutional violation)
 The state remedies just have to be “adequate” (not exactly equivalent to § 1983)
 Analysis
 Start with procedures in place: no pre-deprivation process but state post-deprivation process for
compensation; issue is whether this satisfies due process
 Most cases require pre-deprivation process, but they all dealt with action pursuant to an
established state procedure (someone intentionally acting in accordance with that state procedure),
and the court would look to THAT procedure and determine whether it’s adequate
 Not all cases require pre-deprivation process, though: the Court uses the justifications for
having post-deprivation process only are applicable here because it’s a random and
unauthorized act (difficult/impossible for the state to provide a hearing before the deprivation
takes place), like Ingraham
 There still needs to be process, but it can be post-deprivation
48



Are the Nebraska procedures adequate? They can provide compensation; aren’t as good as §
1983, but are “adequate”
 Other Issues
 Issue that drives Parratt: extent to which there may be some provision of the Constitution that serves
as a residual claim for someone who says the government has hurt them, but there’s no other place to
go; it’s the ultimate “fallback” claim; whether PDP is the last resort
 Paul v. Davis: a lot in common with this case; question of whether PDP can be a lurking remedy that
would be available when a person acting under color of law commits a tort (constitutionalizing a tort
claim)
 Other Opinions
 Stewart (concurrence): even if state unconstitutionally deprived P of property, the state makes remedy
possible in line with the 14th Amendment
 Blackmun (concurrence): limits case to property deprivation (not life or liberty); that there may be
some cases where procedural protection by the state isn’t enough; post-deprivation procedures won’t
cure intentional acts
 Powell (concurrence in result): negligent acts don’t violate PDP even if there are full procedural
protections; “I would not hold such a negligent act, causing unintended loss of or injury to property,
works a deprivation in the constitutional sense. Thus, no procedure for compensation is
constitutionally required”
 Marshall (concurrence & dissent in part): thinks negligent acts are covered by PDP; should look to
adequate state procedures; BUT doesn’t think state procedures were adequate here
 BIG ISSUE: can we cabin Parratt? If it applies all the way to intentional deprivations of incorporated
rights, then Monroe is gone.
Hudson v. Palmer (1984): officers did a shakedown of a prisoner’s cell and intentionally destroy noncontraband property
 Whether a prison inmate has a reasonable expectation of privacy in his cell (4th Amendment) and
whether the deprivation of property by state officials acting intentionally violates DP (14th
Amendment) even where there are state tort remedies available
 The Court held NO to both
 The Court did extend Parratt to intentional deprivations by state employees acting under color of law
 The D argues that this is random & unauthorized and not pursuant to an established state procedure
 The P argues that this is an INTENTIONAL act, so the officer can provide pre-deprivation process
because he knows he is about to deprive the prisoner of process  the Court says, “the state can
no more anticipate and control in advance the random and unauthorized intentional conduct
of its employees than it can anticipate similar negligent conduct”
 ***The Court distinguishes the State and state actors
 The problem is that the state acts through state actors  but in cases of PDP, at least, the acts
of the employee do not bind the state; the question is whether the State can provide predeprivation process and if not, whether it provides post-deprivation process (footnote 14,
consistent with Ingraham)
 The State seems to = legislature and top agency officials, those making policy, and whether
they’ve provided through the mechanisms of state government, some opportunity for
compensation
 Rules
 4th Amendment: no reasonable expectation of privacy in the prison cell
 14th & Parratt: Unauthorized intentional deprivation of property by a state employee DOES not
constitute a violation of the procedural requirements of the DP clause of the 14 th Amendment if
a meaningful post-deprivation remedy for the loss is available
 For both intentional and negligent deprivations of property, the state’s action is not complete until
and unless it provides or refuses to provide a suitable post-deprivation remedy
LIBERTY CASES: everyone thought the following 2 cases would address whether Parratt applies to
deprivations of liberty and whether state remedies were adequate; the Court did something different
 Daniels v. Williams (1986): bodily injury (liberty interest) from pillow left negligently on the stairwell; P
alleged violation of liberty interest in PDP; the Court held no violation of PDP
49

 The DP clause is not simply implicated by a negligent act of an official causing an unintended
loss of or injury to life, liberty, or property  the Court overrules Parratt to the extent that it
states that a mere lack of due care by a state official may deprive an individual of life, liberty, or
property under the 14th Amendment (policy—not a font of tort law)
 The term “deprivation” implies necessarily some deliberate act, either intentional or at a minimum
indifference to whether the loss occurred
 ^^^ Powell’s reasoning in Parratt
 Thus, if there’s no deprivation, the state doesn’t have to provide process at all (the state doesn’t
have to do a thing)
 For § 1983, there must be a violation of a constitutional right; in some instances (like this one),
negligence won’t be enough
 Here, because the act was merely negligent (and negligence does NOT constitute a deprivation), no
procedure for compensation is constitutionally required
 Davidson v. Cannon (1986): negligent failure to protect an inmate who feared violence from another
inmate; the P sued for violation of liberty rights under PDP the 14 th Amendment; the Court extended
Daniels and held there was no deprivation because it was negligent
 Rules
 Lack of care simply does not approach the sort of abusive government conduct the DP Clause was
designed to prevent
 Just asking for state remedies  but there’s no deprivation of a liberty interest, so the state doesn’t
have to provide ANY remedy
 Importantly, though, in its final statement, the Court adds substantive due process and
eliminates negligent deprivation of SDP as an option for a constitutional violation
 Other Opinions
 Brennan (dissent): recklessness or deliberate indifference would state a claim here; the record
suggests this could’ve been recklessness
 Blackmun and Marshall (dissenting): he had no means of self-protection; the officials had a duty
to protect him; the injury should play a role in the consideration here; would do a more case-bycase approach; even evidence of recklessness here; state doesn’t give adequate remedy—it
gives immunity to them
 Stevens (concurring in judgments): DP contains 3 kinds of constitutional protections: (1)
incorporation of BOR; (2) substantive component; (3) procedural guarantee; for the (1) can invoke
regardless of state procedures; for (2) can invoke regardless of state remedy; but (3) is different—
it’s not the deprivation that’s unconstitutional it’s the deprivation without due process or
adequate procedures; the P doesn’t allege this here  would just address whether state has
adequate remedy, here; doesn’t think sovereign immunity makes state procedures unfair
Other Issues
 If negligence is not a deprivation and intent can be a deprivation, what about something in between?
Recklessness or deliberate indifference (dissents argue in Daniels that both are actionable); in Daniels, the
Court deliberately doesn’t decide the issue
 Blackmun & Brennan: recklessness is actionable under the 8th Amendment, which is supposed to be
more restrictive, so it should be actionable under PDP
 The lower courts uniformly say that recklessness or deliberate indifference can constitute a
deprivation; they limit the rule of Daniels and Davidson to negligent and grossly negligent conduct
 Formulations of DI/Recklessness: Coach K likes “we don’t give a damn”
 Whether negligence can ever be a constitutional violation
 We know it doesn’t state a claim under PDP and SDP
 Incorporated rights: lower courts haven’t been willing to find negligence to be a constitutional
violation but the Supreme Court hasn’t spoken on the issue
 Daniels leaves this option open
 Note 6: lower courts haven’t been willing to find that other constitutional rights can be violated
through negligence
 1st Amendment: “abridge” implies something not negligent
 Free Exercise: “prohibiting” implies something not negligent
 Whether Parratt applies to deprivations of liberty or life (PDP)
50

 Note 2: Lower courts find that Parratt applies to all PDP claims
 The Supreme Court seems to sign off on this in Zinermon—the whole Parratt doctrine is an application
of Matthews v. Eldridge to cases in which there’s no possibility of pre-deprivation process
 SDP & Incorporated Rights and Parratt
 Majority in Zinermon adopts Stevens’ part in Davidson—why is PDP different? The deprivation itself
isn’t unconstitutional; it’s the deprivation without due process
 For SDP, there are just some things that the government can’t do even if it does give you a hearing
first (i.e. torture); the constitutional violation is complete when the abuse is inflicted and no amount of
procedure will make it ok
 ^ same analysis as SDP; when the government violates a 4th Amendment right, for example, the
violation is complete when the illegal search happens and the procedure is irrelevant and the violation
is done
 When there’s PDP, it’s 2-part; the actual deprivation may be permissible (the loss is not what the
Constitution protects against; it’s the loss without due process); the constitutional violation isn’t OVER
at the time of the loss; you must wait until after you lack process because it’s necessary to constitute a
violation
 Ways out of Parratt: the case only applied to
 (1) Random & unauthorized actions not pursuant to an established state procedure
 Logan v. Zimmerman Brush (1982): discharge and P claimed it was for physical handicap; P claimed
it was a violation of the IL fair employment practice law and sought a hearing before the IL fair
employment practices commission; under IL law, the commission has to have a factfinding hearing
within 120 days (that didn’t happen); the company argued the commission didn’t have jurisdiction
after the 121st day and the IL Supreme Court agreed; P argued the IL law violated his PDP rights
(deprivation of property interest in the cause of action without due process of law)
 The Court held it was a denial of PDP pursuant to the established state procedure; it should’ve
heard the claim before depriving him of his rights
 D argued that Parratt applies—negligent deprivation of property and he can go to state court and
sue in tort; but P argues it’s different because the established state procedure
 The Supreme Court agrees with P—it’s not a Parratt case because P is not challenging a
random and unauthorized act; P is challenging the established state procedure, the law on
the books
 ***The law on the books is unconstitutional because it mandates a loss of property on
day 121 with no procedure
 Given that it’s not Parratt, the Court decides whether Logan wins by applying Matthews’ 3-prong
test!
 Individual’s interest: redress for illegal discrimination and ability to make a living (HUGE)
 Risk of error with state procedures: might have had a bad claim but it’s not like the s/l that’s
designed to weed out stale claims; the probable value of a new or additional procedure
(HUGE)
 Government’s interest: not significant
 Hudson: Logan is different from Hudson because in that case it was a state actor, not the State; there
was nothing wrong with the law on the books; the law on the books in Hudson allowed shakedown
searches but nothing on the books authorized the destruction that was the basis of the claim; it was
purely attributable to the state actor’s random departure from proper procedure
 (2) The state only provides DUE process for random & unauthorized deprivations if there’s an “adequate”
remedy
 Argue the state remedy isn’t adequate
 Zinermon
 BIG ISSUE: is all the world either Parratt/Hudson or Logan? One might argue that if the state had more
process, things might’ve turned out differently
 SPECTRUM
 Random & Unauthorized [Parrott/Hudson]  Zinermon  Pursuant to Established State
Procedure OR Custom w/ the Force of Law [Logan]
Zinermon v. Burch (U.S. 1990)
 Background
51



 Determining when a P states a PDP claim or when a P cannot state a PDP claim because the state provides
all the process that is due:
 The Court in Parratt & Hudson, when a state actor randomly & unauthorizedly deprives someone of
an interest, the state cannot anticipate and provide pre-deprivation process, so the only process that is
due is post-deprivation (in the form generally of a tort remedy)
 This does not apply when the P challenges the law on the books—when the people who are in charge
of setting process, set a process that when followed will result in a deprivation without proper
safeguards, then the law on the books is no good; the P can challenge that under § 1983; the Court will
then apply Matthews balancing test; the key to Logan is that the P is attacking the official
procedure/what the state says should happen—saying that when the state actor follows this
procedure, the person is deprived of their interest without adequate process
 Zinermon: *** adds custom with the force of law to this category (an Adickes claim)
 The issue that comes up: whether the entire world of DP is either Parratt or Logan or whether there is a
middle ground: the Zinermon majority and dissent are divided on this; the majority says the world is 3
parts; the dissent says the entire universe of DP is 2 parts (either Parratt or Logan)
 Now the issue is determining the scope and meaning of the “middle ground”
Facts: P admitted to hospital “voluntarily” after signing certain forms; he was picked up and acting crazy; they
gave him some drugs, so he feigned competency; they got him to sign forms so that he could be admitted
pursuant to the procedures of a voluntary patient; his claim is that the hospital knew or should’ve known that
he couldn’t give informed consent; he wanted the procedures afforded to patients admitted involuntarily and
that by failure to do so he was deprived of a liberty interest under the 14th Amendment
Issue: Whether Parratt necessarily means that Burch’s complain fails to allege any deprivation of due process
because he was constitutionally entitled to nothing more than what he received (post-deprivation state tort
remedies)
The Court held that Parratt & Hudson don’t apply
 This is not a Logan case
 He is challenging the entire sequence of events but he’s NOT challenging the law on the books
 there’s nothing facially wrong with the FL procedures; it’s fine to have someone who’s competent
to sign themselves in and that the procedures in place for involuntary commitment are fine
 He’s saying that if the law were complied with as written, then there wouldn’t be a deprivation
of liberty without due process; the Court does a narrow construction of Logan (footnote 3, p. 205)
 The Court also says the P is NOT claiming that the hospital is engaging in a custom or practice
that has the force of law
 This would be an Adickes claim—if P were saying that nobody followed the FL procedure and so
the custom of admitting people was to force everyone at gun point to sign the admission forms,
even if everyone knew they were incompetent, then you would challenge the custom under
Logan because this would really be the law
 The Court says this issue is not before it
 He is claiming that Ds should’ve known or knew that he was incompetent: he’s either saying the
doctor is incompetent or lazy or the doctor intentionally acted to deprive him of his rights; he’s pointing
to the STATUTORY SYSTEM that allows the doctor to do what he’s done  the doctor has broad
power to sign people in and there is no process in place for making sure that someone really is
competent
 There is something problematic with the law but not saying that it’s unconstitutional—if the
doctor followed the FL statutes as written, there would be no constitutional violation; if you apply
Matthews to the FL law, you won’t end up with the result of unconstitutionality
 If not bringing a Logan case, does that necessarily mean that it has to be Parratt?
 First, the Court says that Parratt can apply to liberty deprivations
 In other words, if not challenging the law on the books, must the actions of the D be necessarily random
& unauthorized; the Court says NO! It isn’t necessarily a random & unauthorized deviation from
the law on the books
 There is a middle ground (it’s neither Logan nor Parratt)
 Parratt & Hudson are merely applications of the Matthews test to situations in which one of the
Matthews variables is negligible—the value of pre-deprivation safeguards [p. 210, “Parratt is not
an exception to the Matthews balancing test]
52


 So, the Court has to figure out whether the value of pre-deprivation safeguards is negligible; is
this a case where the state could do something?
 FIRST, analyze the RISK (“We must ask whether the pre-deprivation procedural safeguards
could address the risk of deprivations of the kind Burch alleges”)  here the risk is that
incompetent people will present as competent and sign forms when they can’t really give
consent (this risk is HIGH given the nature of mental illness)
 SECOND, as whether the pre-deprivation safeguards would have any value or whether there
is a process that the state could put in place to guard against the risk: focusing on the nature
of the procedural scheme and the problem—the doctor has the duty or responsibility to determine
and has the RIGHT to deprive someone of their liberty! He’s the gatekeeper; when the state
gives the doctor this power, he also has the concomitant duty to see that no deprivation
occurs without adequate procedural protections  along with the delegation of power is a
responsibility of ensuring that the criteria for exercising that power are met
 It may not be unconstitutional to have this system but if the state does give him this broad
power, then the state’s necessarily also giving him the responsibility of making sure that he’s
exercising that power when he is supposed to be exercising that power
 The doctor can’t say what I did was totally unauthorized; he has some responsibility to ensure
that he is exercising the power correctly [p. 213: “It may be permissible …”]
 It’s the abuse of broadly delegated, uncircumscribed power to effect the deprivation; the abuse
is by not taking steps to make sure that he’s exercising the power to deprive in
appropriate cases (broad delegation & a specific risk of the type of error that occurred); it’s
the combination of a broad power and a very foreseeable risk!
 The Court says Parratt doesn’t control for 3 reasons
 This is not unpredictable: that someone is mentally ill will be willing to sign the form even
though they’re incompetent
 Pre-deprivation process is not impossible: you know at which point the loss will occur; statutory
procedure in place telling the doctor to admit competent people  the state could put process in
place at the admission to make sure that doctors are determining whether the patient is competent;
the hospital failed to ensure compliance with the FL statutory standard
 Dissent: ^ isn’t this a challenge to the law on the books? In order to state a PDP violation, P
must allege some culpable state of mind (deprivation = some intent or recklessness), thus if
you introduced more procedures, wouldn’t the doctor STILL ignore it?
 The majority: just thinking the doctor will flout the procedures is not enough; the Court thinks
the doctor is deterrable (this isn’t like the guard in Hudson who had some vendetta; bent on
revenge)  this is the fundamental disagreement between the majority and the dissent
 This is not unauthorized conduct: the state didn’t authorize the doctor to do exactly what he did
BUT the state delegated power to effect the deprivation complained of (the guard in Hudson had
no right to ruin the prisoner’s non-contraband items); here, the doctor did what he was authorized
to do without heeding the possible way of preventing such a loss
The Court divided DP cases into 3 parts
 (1) Logan/Matthews: person challenging the law on the books; when people do what the law tells them to
do, that results in a deprivation of life, liberty, or property without due process; seems to also reach
custom/practice
 (2) Zinermon: law on the books when followed literally doesn’t mandate a constitutional violation but that
law has a character, and from a combination of factors (broad discretion, predictable error, and abuse), it
makes deprivation foreseeable; this means that the action is not random because it’s predictable; and the
state can provide pre-deprivation relief by narrowing the doctor’s discretion
 (3) Parratt/Hudson: challenging a person’s random & unauthorized deviation from the law on the books;
the state can’t prevent such random acts, so the DP only requires post-deprivation relief
Dissent:
 The world is either Logan or Parratt; the crux of Matthews are the procedures necessary in the average
case, if the doctor doesn’t know whether people are competent or not, then it’s the average case and you
should apply Logan; but Parratt recognizes that people might deviate from the normal case, and those
victims need post-deprivation relief
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 The P is arguing that the state procedure is defective and perhaps unconstitutional because it is giving
such broad power to the doctor (Logan); if not
 The P is arguing that this is unauthorized (Parratt)
 ***We shouldn’t even have 3 parts
 Also arguing that this is unworkable and confusing [how do you define this middle ground?]; how to
tell when a delegation is too broad? It’s hard to distinguish this from a case like Hudson  certainly the
guard in Hudson had the power to confiscate some of the stuff he found; one can predict when a guard is
a searching a cell, the guard might take material that he can’t take and the state could’ve done something,
like videotape the searches BUT no one suggested that the risk is big enough there
 When is the delegation too uncircumscribed? When is the risk predictable enough?
 State of mind [how do you square the idea of being able to prevent improper losses by putting more
process in place with the state of mind requirement of DP cases; negligence doesn’t reach the level
of a deprivation]: if you take the complaint seriously, Burch has to say that the doctor acted recklessly or
wantonly, so he would be just as bad with more procedures
 Can you deter recklessness?
Problems
 Easter House: facts—Easter House = adoption agency; the operating license is due to expire, so they apply for
renewal; the licensing rep recommends renewal and forwards this to the main office; then there’s a conspiracy
to deny the license based on personal problems with the adoption agency—the director of Easter House after
the rep recommends leave on unfriendly terms and gets in touch with the people in DC and explains that the
agency shouldn’t get renewed and that she’s going to open a rival adoption agency; allegation—through her
complaints, she convinces the agency to hold her renewal of Easter House and to send through really quickly
her competitive adoption agency; there are procedural irregularities with holding up renewal even though it
was originally approved; approving competing agency really quickly; making them show compliance just
screwing with them  all attributable to a conspiracy between DC office and the head of the competitor
adoption agency [assume there’s a deprivation of property here]
 ***One of the first attempts to apply Zinermon on a circuit level and it’s still cited a lot
 Claim: the head of the DC office has deprived EH of its operating license without due process because the
department didn’t issue the license even though the justifications for it were present
 Issue: Is it Parratt or Zinermon? Whether actions were random & unauthorized or too broad of a delegation
of power to the agency absent sufficient guidance?
 P argues it’s Zinermon: law on the books not unconstitutional; the agency failed to apply the law on
the books in a manner that deprived P of property without DP; the state gave the head of the agency
too much discretion to take away the license; it’s a predictable risk that can be deterred
 D argues it’s Parratt: no allegation of PDP case because this was random & unauthorized; so long as
there’s a state remedy, no § 1983 claim
 Who wins? 7th Circuit found it was a Parratt/Hudson case relying on the fact that there was a
CONSPIRACY, not predictable, and not something the state could do anything about
 Key facts
 Conspiracy
 Broad discretion (going for it being a Zinermon case)—if the statute said renew licenses in “appropriate
situations” without defining what’s appropriate BUT if it sets out an ordered renewal process and the
agency refuses to abide by it, it’ll be hard to use Zinermon
 San Geronimo: facts—case arising from development project in PR; SBGP purchased land near a fortress to
develop; the project was controversial because there was a fear that it would damage the fortress; the permit
administration suspended the project for 2 months without a hearing, invoking a provision of PR law that it
can suspend projects without a hearing if there’s an emergency; a threat to health or safety; otherwise, there
needs to be a full hearing
 The PR Supreme Court found there was no emergency; § 1983 suit filed, claiming it was deprived of
the property because loss of ability to develop for 2 months
 The court said it was a Parratt/Hudson case; there was no unfettered discretion or uncircumscribed
power; there was guidance in place (health or safety) and the general foreseeability that people might
stretch it is not enough to meet the predictable error idea from Zinermon; the question is whether there
is a specific and high risk; there was no additional process that’s practical; you MUST leave leeway for
emergency situations; can’t delineate a list because will inevitably miss something
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
 ANALYSIS
 Start with Logan: look at law on books and determine whether it’s permissible; it’s applying Matthews
to the law on the books and whether following it leads to a deprivation without due process
 There’s a line of authority that in cases of emergency, the state can first act and then provide DP
(emergency cases)
 Then determine whether it’s random and unauthorized action OR a case of broad discretion and
predictable and preventable abuse
 Look at whether it’s predictable that this will be invoked when there is no emergency (you could
argue that it’s not predictable when it delineates threat to health/safety OR you could argue that
it’s predictable that people will stretch the term “emergency”)
 Ezekwo: medical student; brochure on first day of residency said everyone would be a chief resident in their
third year; she had issues with her supervisor; in her third year, they changed their policy to pick chief residents
based on merit only
 ***Issues like this come up a lot—Giving broad power of delegation to someone and not putting any
limits to tell the person how and when to deprive; broad delegation of uncircumscribed discretion
that makes erroneous decisions predictable
 ANALYSIS
 Logan: look at the system and determine whether it is followed to the tee and whether if so, that’s
unconstitutional; if you apply Matthews to the law on the books, is there a violation? Could be so broad
that it would have a risk of erroneous deprivation, thus it’s unconstitutional
 But no one is arguing that there’s a constitutional problem with letting the head doctor determine
who’s chief resident
 Is it Zinermon or Parratt? Do you see the doctor as a rogue bent on denying her the position?
 Zinermon: broad power because there doesn’t appear to be an external constraint on how the chief
resident is decided; combined with a right to effect a deprivation with no guidance  the circuit
adopted this argument: it was a deliberate act within the delegated authority and the
situation was well-suited to process
 Waln: principle having power to deprive students of a property interest; focus on the power the specific
person has
 Bogart: woman rescued animals but had a lot in her mobile home; a vet and deputy sheriff got a search &
seizure warrant after hearing from the humane society, didn’t tell the judge of plans of vet to euthanize them;
and then euthanized them; SC law provided that rescue of animals—care for them until a hearing, otherwise
humanely dispose of them; woman sued for DP violation
 We know pets = property for DP purposes; not arguing that the law on the books is wrong; HERE, the
law did provide for a hearing and this was NOT followed, so this is Parratt  they didn’t have
authorization to euthanize the animals immediately; the statute is pretty specific
 Under color issue with suing the vet: joint participation with deputy after knowing the vet’s plans (Dennis
v. Sparks and Adickes); there must be some meeting of the minds or joint knowledge
 4th Amendment claim: problem is that the SEIZURE was with a warrant; you’d have to argue that the
killing was an additional seizure and that will be really difficult
 Ieyoub: woman’s car seized; charges dropped; they wouldn’t release her car so she filed state tort charges; the
prosecutor doesn’t file a forfeiture proceeding until 3 years after they’ve gotten the car!
 This is Zinermon: it’s a very broad delegation with no limits—there’s no time limit on the prosecutor in
deciding what to do (to file for forfeiture or to give the car back); it’s very easy to put a procedure here
to remedy the problem!
 If the statute said you must file within 4 months and the prosecutor didn’t, then it would clearly be a
Hudson case
Summary of Zinermon: § 1983 PDP action is barred if the state has adequate post-deprivation remedies and 3
conditions exist: (1) deprivation was truly unpredictable or unforeseeable; (2) pre-deprivation process would’ve
been impossible or unable to counter the particular conduct; (3) and the conduct must’ve been unauthorized in the
sense that it was not within the officials’ express or implied authority (Stotter v. Univ. of Tex.)
Is the rank of the officer relevant?
 If the state actor takes the action, then it would be random & unauthorized (Parratt)
 If the State (the people in charge of putting procedures in place), is it something the state is responsible for?
(Logan)
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Whether there are some people who by nature of their position ARE THE STATE
 Easter House: head of the agency, one making procedures: this didn’t fly because the agency made the
procedure that told him what to do
 San Geronimo: the governor was involved but the court didn’t find enough action by the judge; but if the
governor did tell them what to do, the governor is the state and by definition this isn’t random and
unauthorized (CONCURRING OPINION)
 ***There is a circuit split on this issue
 This also ties in with municipal liability
 Some people are municipal policy-makers on behalf of the municipality  some cases where those
people are necessarily not acting in a random and unauthorized fashion because their decisions ARE
state policy
Municipalities: only liable when their policies or customs cause the violation
Town of Castle Rock v. Gonzales (U.S. 2005): no SDP obligation to provide public services such as police
protection; what about state law giving property interest in protection? Here, there was a restraining order against
a dad; the woman called after their children were abducted by him and the police didn’t really do much to get the
children (even though the restraining order said they HAD to enforce it); they were killed by their father; the
Supreme Court held that there was no such property interest in such protection derived from a restraining
order (reluctant to make DP a font of tort law)
 SDP/PDP and Parratt/Municipal Liability
 No SDP case because of DeShaney
 PDP case  the Supreme Court held she had no entitlement to having the government enforce an order even
if the statute is phrased in mandatory terms; it’s too inherently discretionary and says it’s just a way to get
around DeShaney by couching it in PDP
 The 10th Circuit thought she stated a claim, that she had a property interest
 She had to get around Parratt—the court said there was a municipal custom of not enforcing restraining
orders, so the law on the books was a violation of DP, thus making it Logan  this is equating
Parratt/Hudson with municipal liability
Adequacy of Remedies
 Other way around Parratt: even if the action is random & unauthorized, DP still requires an adequate state
remedy  what makes the remedy adequate? It need not be as good as § 1983 but close (Parratt/Hudson);
general state procedures that get you compensation are fine
 Even if the conduct is random & unauthorized, it’s NOT the end of the inquiry; the state must still provide
adequate post-deprivation relief
 Circuits are in some disagreement but it’s clear that the state relief does not have to be as good as § 1983
(ex. state doesn’t have to provide punitive damages); there just needs to be some general ability to get
compensation (tort, replevin, worker’s compensation, administration procedure, etc.)
 General procedural requirements don’t make relief inadequate (ex. if P misses a statute of limitations,
it doesn’t mean there isn’t adequate relief; ex. notice of claim requirements don’t make relief inadequate)
 Immunities: tricky question as to whether the state having immunity means that there’s inadequate relief
because the P can’t bring the suit
 Just claiming an immunity defense doesn’t mean relief is inadequate
 If there’s an established defense that D could raise precluding relief:
 Davidson v. Connor: NJ statute said there was NO liability of state officials for an injury one prisoner
inflicted upon another, thus there’s no possibility to get tort relief in NJ against prison officials who
didn’t react to the prisoner’s note saying he was in danger  does this mean relief is “inadequate”?
The Court didn’t decide that issue!
 Concurrences
 Blackmun: can the person get relief? That’s the primary question; since the person couldn’t
get relief, the remedy is inadequate (***majority view)
 Stevens: is the state system fair? Thinks the system here denying compensation was fair
 Facially adequate remedies but not adequate in practice
 Examples
 Systemic delays (Ieyouab)  not moving to forfeit the car; the 5th Circuit said they treated it like
Parratt and found no adequate post-deprivation remedy because of state delays; the failure to institute
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legal process means that the state system wasn’t responsive; then the court withdrew the opinion and
treated it like Zinermon
 Other cases find that severe delays or systemic problems can make a state remedy that is facially
legitimate inadequate
 ***THE P HAS THE BURDEN OF PROVING INADEQUACY OF THE REMEDY
Problems in Causation
 Generally
 Looks broadly at whether we’re dealing with state action
 Two ways it comes up
 Clear that the state has done something but not clear whether the state’s challenged action is really
what caused the constitutional harm (Mt. Healthy)
 Not clear whether the state has even acted in any constitutionally relevant sense (Martinez &
DeShaney)
 Mt. Healthy City School Dist. v. Doyle (U.S. 1977)
 Facts: School refused to renew a teaching contract for its employee; he was a high school teacher who is
a loose canon and has gotten into trouble; he didn’t have tenure so the school could have not rehired him
if they didn’t want to; (they couldn’t have chosen to NOT rehire him because of protected speech under
the 1st Amendment) there were instances of him arguing and mistreating people within the school; he also
sent a memo from the board to a local radio station and criticized it (this is the basis of his First Amendment
claim)
 The Court held that he didn’t state a claim (no First Amendment violation)
 The ISSUE was whether they fired him for protected speech or because of all the past incidents
 District court: standard was whether the protected speech played a substantial role in the decision to
not rehire him; if so, then P could make out a 1st Amendment claim
 ***The Court held this approach is wrong—the danger is that it can enable constitutionally
protected conduct to make someone better off; the GOAL is that the person shouldn’t be worse
off; if you do a bunch of stuff that you know if bad, you get yourself “First Amendment tenure”
and do something that’s protected
 Rules:
 The 1st & 14th Amendment claims are not defeated by the fact that he didn’t have tenure—he has a
claim if the decision to not rehire him was made by reason of his exercise of his constitutionally
protected 1st Amendment right
 Whether speech of a government employee is constitutionally protected, balance interests of teacher
in commenting on matters of public concern and interest of the state as an employer in promoting
efficient services to the public
 To state a claim, the protected conduct must have played a substantial role in the decision to not rehire
AND must show that the same decision would not have been made absent the constitutionally protected
speech being made (this is taken from the EP context)
 P must show (1) conduct was constitutionally protected; (2) this conduct was a substantial or
motivating factor in the decision; and then D has to show by a preponderance of the evidence
(3) that the board would not have reached the same decision absent such protected conduct
 The burden shifts—it’s a “bouncing burden”; it’s the same in the EP context: P shows that the
zoning was discriminatory and then the burden shifts to the town to show that it would’ve done
this anyway
 Notes
 This idea comes up in cases other than employment, in any § 1983 case where the showing of a
constitutional violation ultimately hinges on the motivation; the courts use the same shifting approach
 In prison litigation—a prisoner can’t be punished in retaliation for exercising his/her First
Amendment rights; the prison would be able to say no, we would’ve done this no matter what;
higher burden is placed on the prisoner
 Courts are stricter outside the employment context, though
 Also applies to EP claims
 Martinez v. California (U.S. 1980) [precursor to DeShaney]
 Facts: parole board let a dude out, not observing formalities, when they should’ve known that he was a
danger to the public; he ended up killing & torturing a 15-year old girl; procedure—her family sued the
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parole board, claiming it was a 14th Amendment violation to deprive their daughter of life without due
process of law  CA has a statute that gives absolute immunity to the parole board
 Issues
 They can’t bring a state tort suit because CA grants immunity to the parole board
 They bring a § 1983 suit alleging a DP violation BY the board
 Mere existence of the immunity doesn’t deprive decedent of her life without DP—it doesn’t
authorize killing people, thus the statute itself is not a deprivation
 Stevens’ concurrence in Davidson: the statute doesn’t deprive; even if you consider a tort claim a
property interest, this state provision is rational; there’s nothing facially unconstitutional about the
state’s tort scheme
 Rules:
 The Court held that the statute itself wasn’t a violation of DP: It didn’t authorize or immunize the
deliberate killing of the girl; the statute didn’t deprive her of her life without DP (the statute was
valid)
 CA immunity doesn’t control in the § 1983 case
 First inquiry is whether the P has been deprived of a right under the Constitution (Baker v. McCollan)
 here, she was not; the action of Thomas after 5 months of being released cannot fairly be
characterized as state action; it was too remote a consequence to hold the parole board responsible
 This looks like a tort proximate causation analysis (the dude killing her was unforeseeable and
an intervening cause)
 It’s asking whether the STATE has deprived the decedent of her life without due process
(DP Clause: The state shall not deprive)
 ***THE KEY is that it wasn’t the state who killed her and the parolee wasn’t a state actor; it
was merely a private person killing a private person
 BUT, the state let him out  this is the proximate cause analysis; the state played a role but it
was “too remote a consequence”; there wasn’t a “special danger” to that girl specifically and it
was 5 months later (sounds like Tarasoff v. Board of Regents)
 It’s NOT importing tort law but it is putting a causation limitation on § 1983
 The Court doesn’t set out what analysis is here, whether it’s tort law or something more rigid; it is
setting up the idea that there’s not a constitutional violation just because the state did something that
plays a causal role (there needs to be a tighter link)
 Notes
 This is a state court § 1983 case against the state by name—can’t do this anymore! (in either state or
federal court)
 Footnote 7: can bring § 1983 claims in state court (there’s concurrent jurisdiction); TN at one time
didn’t allow this but they now do
 SDP in state court: does the state’s immunity operate as a defense? Footnote 8: No, because of the
Supremacy Clause (it’s a federal cause of action so the state law can’t define the contours)
 Townes: the search in violation of the 4th Amendment wasn’t the cause of damages stemming from
conviction because the state’s denial of the motion to suppress was an independent, intervening cause
(the original search wasn’t the cause of the injuries that happened later)
 Notes
 Martinez is the backdrop for DeShaney; the latter doesn’t overrule it but builds on the idea and focuses it;
the harm inflictor is not the state actor
Negative and Affirmative Rights
 Generally
 The issue, broadly conceived, is about causation—whether the state ultimately CAUSED the harm;
DeShaney deals with cases in which the person who actually inflicts the harm is not a state actor; the
argument is that the state was SOMEHOW responsible for what the killer did by failing to protect the kid
 The Court emphasizes that the state has no duty to protect (DP just protects against abuse of state power,
not abuse at the hands of private actors)  so in that case, the state didn’t cause the harm and has no duty
to prevent the harm
 There are soft spots
 Equal Protection
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 “Other similar restraint” (affirmatively depriving someone of liberty and not allowing them to fend for
themselves)
 State-created danger
DeShaney v. Winnebago Cnty. Dep’t of Social Servs. (U.S. 1989) [huge § 1983 case—lots of lower court
litigation building on this]
 State officials had strong evidence that boy was repeatedly subject to beatings by his father and didn’t do
anything to take him out of the home; they had him in state custody and then brought him back home; he
was beaten and now is profoundly retarded; procedure—him and his mom sued employees of the DSS
for a deprivation of his liberty in violation of DP (SDP claim, claiming that their indifference shocks
the conscience and caused his death) under § 1983; the Court rejected their claim under § 1983,
holding that the state’s inaction was inadequate to sustain the claim
 Analysis
 You’d think after Martinez, the focus would be on causation but it wasn’t  the Court looked at
whether this is a case that even deals with STATE ACTION at all; whether the state has done anything
constitutionally relevant and whether the state had a duty to act
 Due Process: this is not a case where the state affirmatively hurt someone; it’s just a case of it failing
to do anything to protect people; there’s no obligation on the state to protect people
 Rules:
 Theories
 Too attenuated
 No affirmative constitutional duty
 Nothing in the DP clause itself requires the state to protect the life, liberty, and property of its citizens
against invasion by private actors; its language cannot fairly be extended to impose an affirmative
obligation on the state to ensure that those interests do not come to harm through other means
 ***The focus of the DP clause is to prevent affirmative abuses of the STATE power; to
prevent the state from acting in an arbitrary action that harms people
 Exceptions: cases pointing in the other direction (SDP and 8th Amendment cases)
 CUSTODY (prisoners, involuntarily committed persons, and other restrictions; state-imposed
limitation on the person’s freedom to act on his own behalf; the state’s affirmative act of
restraining the individual’s freedom to act on its own behalf, not its failure to protect his
liberty interest against harms inflicted by other means)
 Duty to provide medical care
 Duty to provide reasonable services to involuntarily committed patients
 ***The difference is that the Court can point to an affirmative act of the state—
depriving the person of his/her liberty, so the state has a concurrent responsibility to
care (important quote: “In the SDP analysis, …” (p. 238))
 STATE-CREATED DANGER
 FN 9: Case might be difference if they placed the boy in a foster home run by the state’s agents
 Dissent (Brennan): thinks the state did do something to put him or keep him in this predicament;
they delegated the responsibility to DSS—effectively giving the citizens only a duty to report and then
do nothing; puts it within Estelle
 Our baseline should be ACTION; thinks the state funneled everything to DSS—the doctors can’t
do anything in the ER on their own; they have to go through DSS; by channeling the complains
to the DSS, the state acted affirmatively and imprisoned Joshua by making him at the mercy
of the DSS
 Majority counter: it’s a FREE WORLD and the state has no obligation to prevent people from
coming to harm
 Dissent (Blackmun): the majority characterizes this as a case they’ve seen before but he says this is
an open question; it is too formalistic of an approach
 SOFT SPOTS in the case
 Other similar restraints: it has to be a deprivation of liberty but not just through incarceration or
institutionalization (ex. foster care)
 State-created danger: the state may have been aware of the danger he faced but they didn’t CREATE
the danger nor do anything to render him any MORE VULNERABLE (if the state intervenes &
changes things around, there may be state action)
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
Collins v. Harker Heights (U.S. 1992) [public employment]
 State employee dying of asphyxia after working in a manhole to fix a sewer line; sued city for failure to
train employees and provide safety equipment; the Court rejected the SDP claim relying on
DeShaney 
 The DP clause does not impose on the government employer a duty to provide a safe working
environment (not denied liberty after voluntarily accepting a job with the city); failure to train =
employment relationship and that’s subject to state law
 There was no allegation that the state made him WORSE off (if it were his boss retaliating for
something, deliberately giving him a faulty mask, that would be a SPECIFIC ABUSE of state power;
if the state gave him a dangerous job in retaliation, same thing)
 This is just an unsafe workplace claim—no duty under SDP; just a tort case—there’s no state action
in any relevant sense
 There is no deprivation of liberty in hiring him, not in custody on the job (threat of losing job isn’t
enough); it’s just a bad management decision and the Constitution isn’t a guarantee against this
Notes & Questions
 Equal Protection: 1983 cases that arise out of non-response to domestic violence calls; the argument is
that the state has a 911 system in place but police don’t respond to domestic violence calls but respond to
other calls; the person brings a 1983 suit saying that the state’s failure to respond caused the person to be
beaten  the state will argue that there is no duty to rescue the person or put a 911 system in place (it has
a system in place though!); the argument is now Equal Protection because it’s a claim of gender
discrimination
 DeShaney: footnote 3—the state cannot selectively provide services; if the state has a 911 system, it
can’t selectively decide to discriminate against certain groups
 Watson v. Kansas City (10th Cir. 1988): No constitutional right to police protection but the state cannot
discriminate in providing such protection
 Ricketts: For gender bias claims, must show intentional discrimination; EP requires an intent to
discriminate
 Nabozny: high school boy gay & beaten and school officials wouldn’t do anything; he brought a 1983
suit; the school argued no duty to protect under DeShaney and the 7th Circuit said it wasn’t a DeShaney
case because the claim was under Equal Protection (if he were a girl suffering the same harm at the
hands of boys, the state would’ve intervened); they didn’t intervene for discriminatory reasons; so it’s
a way to get around DeShaney
 ***Equal Protection is a way OUT of DeShaney but it’s hard because it requires an intent to
discriminate; for that reason, people usually attack the 2 soft spots
 Foster Care & State Custody: Henry A. v. Willden (9th Cir. 2012)—foster children can bring SDP claims
challenging their placements and denial of medical care under the special relationship and state-created
danger exceptions
 State-Created Danger: This is the argument to avoid DeShaney
 Bright v. Westmoreland Cnty. (3d Cir. 2006): state released a pedophile into the community and is in
touch with his 12 year old victim; the family of the victim notifies the police and asks them to revoke
his parole; the state doesn’t do anything and the pedophile kills the victim’s sister to retaliate against
the family; they bring a 1983 claim and the state argues DeShaney; the 3rd Circuit agrees with the
state, giving an approach
 4 elements to state-created danger claim: (1) harm ultimately caused was foreseeable and fairly
direct; (2) state actor acted with a degree of culpability that shocks the conscience; (3) relationship
between the state and P is such that the P was a foreseeable victim of the D’s acts or a member of
a discrete class of persons subject to the potential harm and not a member of the general public;
(4) state actor affirmatively used his/her authority in a way that created a danger to the
citizen or that rendered the citizen more vulnerable to danger than had the state not acted
at all (requiring affirmative acts)
 ***(4) is the KEY: the state actor must affirmatively act and use his authority that created
a danger or rendered him more vulnerable (here, the state merely failed to act)
 Kennedy (9th Circuit): telling police that a kid molested their daughter; the police ASSURE the
Kennedys that they won’t talk to the Burns unless if they tell them; they talk to the dude and the
Kennedys find out; the police say they will patrol the area and they don’t; the dude breaks in and kills
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the parents; they bring a 1983 suit arguing state-created danger, state argues DeShaney; the court
held that the state DID act in telling the Kennedys not to worry and that they would patrol the area;
they affirmatively acted to make them worse off because they didn’t have to do anything for
themselves
 ***Kritchevsky thinks these cases are in TENSION
Problems
 Generally
 Recurring mold of these cases: the cops swoop in, rearrange things, and then leave, making people
worse off
 Lower courts tend to find that they state a claim in these instances
 If the cops just show up and DON’T rearrange things, then it’ll usually be different and the courts
won’t hold them liable
 Wood v. Ostrander (9th Cir. 1988): Wood is riding with Bell, who the police arrest for drunk driving; the
officer calls for a tow truck and tells Wood that she needs to get out of the car and walk home; they
wouldn’t give her a ride; she hitchhikes and gets raped; she brings a § 1983 suit; arguments
 Cops argue DeShaney—no duty to protect
 P argues: state-created danger because the police have taken her from a position of relative safety
and created the dangers that she faces being alone on the road or other similar restraint by rendering
her unable to take care of herself; they aren’t taking her into physical custody but they’ve ordered her
to get out of the car, so they assumed physical control over her movements and then required her to be
stranded on her own
 Problems with her arguments: the state’s actions are falling under SDP, thus the conduct
has to satisfy the culpable state of mind requirement—something like shocks the conscience
 The 9th Circuit allowed it to survive SJ, that she DID state a claim; the state restrained her by taking
control of her movements and then putting her in a position of danger by taking her from one place
and putting her in a more dangerous place
 Kneipp v. Tedder (3d Cir. 1996): couple walking home late at night; they were drunk; police stopped them
and took the dude into custody; the dude assumed that the cops would see his wife home; they didn’t and
left her to walk home; she fell and suffered brain damage; the court held she stated a claim under the
state-created danger, by leaving her without a protector by intervening and changing things around
(she had her husband until the cops intervened)
 School Context
 Stonekick: high school student reports to school that a teacher is sexually harassing and abusing her
and other make complaints; the school does nothing and she brings suit; the school says DeShaney 
the teacher is a state actor, so DeShaney does NOT apply
 DeShaney cases ONLY come up when the person inflicting the harm is NOT a state actor
 Morrow v. Balaski (3d Cir. 2013): school not protecting students from other student bullies; the
Morrow girls are victims of bullying and threats; the school suspended the bully and twice let her back
in; the bully is adjudged delinquent and the school still lets her back in; the girls finally switch schools
because their school won’t do anything; we know the bully is NOT a state actor, so it raises
DeShaney
 Issue: whether being in high school is a “similar restraint”  there are limits on the rights
of one to defend themselves
 BUT, the court held that there’s no duty to protect high school students; the court said it isn’t
anything like custody even though they have to go to school and have limits on them while in
school it’s not a similar restraint
 It’s different from incarceration because the kids can go home to their parents; their parents
can transfer them to another school; they have access to the “free world” unlike prisoners
 The Ps said the school did to something:
 Readmission of the student after suspension and no contact order
 BUT: the state gave Joshua back to the parents in DeShaney and that didn’t change things
there
 Responsible for the student getting on the school bus by not keeping her off
 BUT: this is pure inaction
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 Doe v. Covington County (2012): grade school, check-out policy put in place; the school didn’t check
in one instance where a man came to check out a student and raped her; the court held that the state
DID to something, it created a policy that reassured parents that they were protecting their
children while at school; the affirmative act created the danger! BUT, the 5th Circuit reversed,
holding that DeShaney applied because the state wasn’t aware of any specific risk
 Cornelius v. Town of Highland Lake: town clerk alleges she was abducted by prison inmates who were
given work assignments in the area; the state failed to assure that they weren’t out in the community
and failed to supervise them when they were
 They were on work assignment
 There was supposed to be supervision
 ***The town still had custody of the harm inflictor! The state has affirmative control over the
harm inflictor and then puts that person in a position to harm someone, the argument being that
the state created the danger  the court adopted this! DeShaney didn’t apply because it was a
state-created danger
 Lemacks overrules this on a different theory: public employment theory; there’s NO duty to create a
safe work environment (applying Collins); the state has no obligation to provide a safe work
environment; if the workers were there to punish the clerk, then the state would’ve affirmatively acted
to increase the harm
 Nishiyama: pre-DeShaney; raising an important issue—the county has an inmate who’s a trusty and
they let him drive the cop car around; he pulls over a girl and kills her; the question is whether she has
a claim against the county (Dickson county); here, the harm inflictor is a prisoner but still an inmate
and the cops affirmatively put the cop car in his hands
 One argument: affirmative action by giving him a weapon but it’s not a total conspiracy—not a
good argument
 The 6th Circuit found that she stated a claim and it didn’t fall under Martinez: it was different
because there was ongoing custody over the harm inflictor as opposed to Martinez where the dude
was paroled; the county officials knew of the risk when they were called and told that the dude
was pulling people over and stopping them
 Would this survive after DeShaney? The state affirmatively acted when they told the dude to
drive back; it’s ongoing state action, they allowed the car to go on the streets in the hands of a
convicted felon but you still need a state of mind and proximate causation!
 Real issue: does Martinez survive DeShaney? It’s not hard to envision cases where the state has
acted but still need proximate causation
 If you get around the state action/proximate cause, you still need a state of mind! (look to
Lewis and the external constraints, something like M&S or DI)
 State of mind
 D must have acted with a sufficiently culpable state of mind; the action must shock the conscience 
deliberate indifference OR competing obligations
 6th Circuit rule from Claybrook v. Birchwell: if state officials have reasonable opportunity to deliberate
various alternatives prior to electing a course of action, their actions are conscience-shocking if they were
taken with deliberate indifference towards the plaintiff’s federally protected rights; if it’s a rapidly
evolving, fluid, and dangerous predicament which precludes the luxury of calm and reflective pre-response
deliberate, the action shocks the conscience only if they involved force employed maliciously and
sadistically for the very purpose of causing harm rather than in a GF effort to maintain and restore
discipline
 Avoiding Collins: showing either intentional injury or arbitrary conduct intentionally designed to punish
someone
SELECTING THE PROPER DEFENDANT
 Generally
 Assuming we can make out a claim, we want to sue someone who will get us relief
 Potential defendants
 Individuals: an individual, a person, who one is suing in his or her official or individual capacity; the party is the
one by law that is the D who would have to pay; suing for that person’s misdeeds for out of pocket damages;
indemnity is irrelevant (private K)
 Individual immunities: immunity from suit (absolute) or from having to pay damages (qualified)
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 Source of individual immunities: individuals immune from damages depending on their function; this has
been incorporated in 1983 from common law
 Municipalities: cities or counties; agencies of local government (i.e. “City of Memphis” or “County of Shelby”)
 They are persons, so you can sue them by name
 They are only responsible for injuries caused by their policies/customs
 Source: creature of the courts’ reading of the statute & policies behind it; it’s a court-created concept that goes
to the courts’ parsing of the language of 1983, talking about suing a person who “causes” another to be
subjected—this is the statutory construction
 States: i.e. “State of Tennessee”
 States are not persons, so you can’t sue them by name
 You can sue state officials in their capacities, suing them solely as a representative of the state; using the suit
against the individual as a root to getting to the state
 Source: combination of the 11th Amendment (not suing a state in federal court) and statutory construction
determining that states are not persons
 Individuals: The Role of Individual Immunities
 Introduction
 Immunity: from being sued or from having to pay damages—common law origins
 Absolute immunity: you can’t sue them for acts within the function that gets them the immunity; examples
from common law—prosecutors, legislators, judges, witnesses, and other participants in judicial processes
(grand jurors and ALJs for Bivens actions); not subject to suit when acting in that capacity
 Qualified immunity: you can sue the person but they aren’t responsible for damages if they can show certain
things about their action (Pierson, GF & PC); dependent on whether he should’ve known that he shouldn’t
have done something
 It is only an issue when damages are sought, not other equitable relief, i.e. reinstatement
 Judges were immune at common law
 Other state officials had partial immunity (“good faith” immunity); can’t sue them if they act in GF and with PC
 What did § 1983 do with these immunities? The Supreme Court has held that it did not eliminate them; the
immunities were so well established that Congress would’ve explicitly stated if it were abolishing them, thus §
1983 should be read against the background of common-law immunities
 Origin
 Pierson v. Ray (U.S. 1967): liability of officers & judge; the Court held the judge is immune under § 1983;
rules
 Judges are immune from liability for damages for acts committed within their judicial jurisdiction, even
when the judge is accused of acting maliciously and corruptly
 Police officers do not have similar absolute and unqualified immunity as police officers were not absolutely
immune at common law; only immune if they act in GF and with PC
 Justifications
 Chilling judicial judgment
 Preventing threat of suit from influencing decisions
 Protecting judges from liability for honest mistakes
 Relieving judges of the time and expense of defending suits
 Removing an impediment to responsible men entering the judiciary
 Necessity of finality
 Appellate review is a satisfactory remedy
 Judge’s duty is to the public not to the individual
 Judicial self-protection
 Separation of powers
 Immunities are an affirmative defense
 Gomez v. Toledo (U.S. 1980): P needs to only plead D acted under color of state law and effected a deprivation
of protected rights; P need NOT plead that the D is not entitled to a qualified immunity; D must do so as an
affirmative defense; D can waive the immunity by failing to raise it, but it is usually allowed to bring it up late
in litigation and when a D has properly raised the immunity defense, the P has the burden of showing a violation
of a clearly established federal right
 Appealing denials of immunity
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 Immunities protect a person from having to stand trial, so the district court orders are usually immediately
appealable collateral orders
 Johnson v. Jones: D who is entitled to invoke immunity may not appeal a district court’s SJ order insofar as
that order determines whether or not the pretrial record sets forth a genuine issue of fact for trial
 A court can’t decide questions unrelated to immunity on immediate appeal
 A party can’t appeal a denial of SJ on qualified immunity grounds after the district court has conducted a trial
on the merits
 Ds in state court who are not granted immunity don’t have a federal right to appeal
Absolute Immunity
 Judges: Everything they do isn’t immune
 Stump v. Sparkman (U.S. 1978)
 Facts: P suing a judge for granting a petition by P’s mother to have her sterilized after deciding that she’s
“somewhat retarded” for sleeping with older men; the petition is to hold the doctor not liable later for
performing this surgery
 Procedurally: the judge is the only state actor here; this was pre-Dennis v. Sparks and the court held
that the conspiracy allegation wouldn’t work
 The Court held that the judge IS IMMUNE from suit
 2-prong analysis
 Jurisdiction
 Nothing in the FL statute or common law preventing the judge from granting this petition;
there were rules re: involuntarily institutionalized persons might be subject to sterilization
 She was a circuit court judge of GENERAL jurisdiction, so nothing that excludes this sort of
job
 Construing the jurisdictional question: BROADLY (there’s nothing that says she can’t), not
narrowly (nothing that says she can); since the jurisdictional question is hard to decide we
give the judge leeway; key question: whether the judge has acted in the clear absence of
all jurisdiction (here, no, because nothing saying she didn’t have jurisdiction); “We agree”…
(p. 259)
 Judicial act
 Whether it’s a function normally performed by a judge and the parties treated it as
such/expected it as such
 Here, the parties came to him because he’s a judge and judges normally grant/deny petitions
(not focused on the fact that this specific petition has never been granted by a judge)
 The Court imported immunities from common law (absolute and good faith (“qualified”))
 Absolute to judges/prosecutors because of their intimate role in the judicial system & their often
involved in deprivations of liberty; they need to decide controversial issues that can be rectified
on appeal
 Dissent: there isn’t appeal available here, there aren’t parties; judges shouldn’t get immunities
when the factors/policies that support immunity are absent
 Rules
 Judges/prosecutors don’t automatically get immunity purely because of their job—it depends
on whether the action for which they’re being sued is the performance of the function that
entitles them to immunity
 Judges of courts of superior or general jurisdiction are NOT liable to civil actions for their judicial
acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done
maliciously or corruptly
 Jurisdiction: judge will be subject to liability only when he has acted in the clear absence of ALL
jurisdiction
 FL statute: not anything in it or in case law prohibiting the judge from considering a petition of
this type
 Due Process: a judge is absolutely immune from liability for his judicial acts even if his exercise
of authority is flawed by the commission of a grave procedural error
 Judicial act: the standard is whether it is a function normally performed by a judge and to the
expectations of the parties (whether they dealt with a judge in his judicial capacity)—here, it was
because petitions are judicial actions
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 Dissents
 Stewart: This wasn’t a judicial act because it had never been done before; should have considered
justifications for having judicial immunity
 Powell: Preclusion of all other remedies for the P here; shouldn’t sacrifice this person’s right just for
the greater good
Problems on Judicial Immunity
 Forrester v. White: probation officer under judge’s discretion doing things the judge normally does, like
pretrial reports & recommendations on probation; she was discharged by the judge & claimed it was a result
of sex discrimination; whether the judge is absolutely immune from the employment decision
 Jurisdiction not a factor here
 Judicial act
 Judge would argue—it’s an employment decision closely related to a judicial function and the
employee was doing things that a judge normally does
 P would argue—this is executive; the nature of the act of firing someone is executive and the fact that
a judge is doing it doesn’t mean it’s automatically a judicial act
 When the judge is performing the executive function of hiring & firing, he’s NOT acting as a judge
and gets the immunities that executives get = qualified immunity
 Focus on the function & nature of the activity, not whom it is being performed by
 Mireles v. Waco: PD doesn’t show up in court as P; judge orders the bailiffs to “find him and ruff him up”;
and P alleges that the judge deliberately and knowingly approved & ratified the acts; whether the judge gets
absolute immunity
 Arguments: we look at function broadly (here, it was securing the appearance of individuals in the court
room) but we can look at it as specifically what the judge did (asked them to ruff him up; judges don’t
normally do this)
 If we look at it narrowly, judges will NEVER get immunity, so we must look at things broadly
(reiteration of Stump)
 Jurisdiction: nothing here has deprived the judge over jurisdiction of the parties and the case
 Dude has stolen ID and gets arrested for something the thief does; the judge does 3 wrongful things: for
analysis, break down the acts in to distinct parts
 Holds him in contempt with no bond (even though statutory maximum) is a $10 fine): if we’re focusing
on the judicial act part, holding people in contempt is something judges normally do BUT the statute
limits the judge’s power to hold people in contempt, so it’s a jurisdictional issue  this was a case in
his courtroom and he had jurisdiction to handle DUIs
 The 6th Circuit said he is not acting in the clear absence of all jurisdiction (just because he’s
ignoring the statute doesn’t mean that he doesn’t have jurisdiction)
 He has absolute immunity here
 Changing the bond on the warrant: we know we have jurisdiction; changing bond is just like setting
bond, so it’s a judicial act
 Telling the officers that the identity of the two men are one in the same: here, the judge might be acting
more like an investigator—telling the cop who to go for and how to serve it; here, he gets the immunity
of an officer
 Summary
 These are really fuzzy lines, but there are basic principles:
 Jurisdiction is a very broad concept of looking at subject-matter jurisdiction over the dispute;
merely violating the rules of that jurisdiction doesn’t mean you lost it
 Look at function broadly without regard to the specific errors
 When the judge is doing an act that is inherently executive, such as firing someone or telling the
cops how to do their job, the courts will not consider that to be a judicial act
 Non-judicial acts
 Stalking & sexual conduct
 Threatening coffee distributor of arrest if he doesn’t brew good coffee
Prosecutors
 Generally
 Court has decided lots of questions on prosecutorial immunity; it’s similar to judicial immunity because
prosecutors are absolutely immune for a lot of the same reasons that judges are:
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 Fear of shading their exercise of judgment
 Being scared of going after people for fear of being sued
 The system can deal with this stuff on appeal
 Issue: prosecutors work closely with the executive officers which makes it hard to separate them out when
the prosecutor is acting as a prosecutor and when the prosecutor is acting as an aid to the cops
Imbler v. Pachtman (U.S. 1976) [lead prosecutorial immunity case]
 Prosecutor gives false testimony & suppresses evidence; the Court held that prosecutors get ABSOLUTE
IMMUNITY under 1983 for much of the same reasons that a judge does
 Rules
 The absolute immunity is limited to activities that are intimately associated with the judicial
phase of the criminal process  initiating the prosecution and presenting the state’s case/acting as
the advocate of the state
 The Court left open the question of whether a prosecutor would be absolutely immune when
performing investigatory or administrative functions  we know they are NOT absolutely immune
when performing these functions; they get qualified immunity
Van de Kamp v. Goldstein (U.S. 2009)
 Informant giving information to cops; stated that he didn’t receive a benefit for this information; there was
not system in place in the prosecutor’s office to share information about informants; the D sued the
prosecutor’s supervisor for failure to establish procedures to communicate information about promises
made to informants
 The P couldn’t sue the prosecutor on the case because he was clearly immune because he was
presenting the case and the problem can be addressed on appeal
 Administrative acts are NOT entitled to immunity
 BUT the Court held this was NOT administrative because it was directly connected with trial conduct
& required legal knowledge and the exercise of related discretion
 Policy: the court didn’t want Ps to be able to get around prosecutorial immunity so easily by just saying
that it’s training or system management; it would be an easy pleading technique
 These are making legal decisions on setting up the prosecutorial function not something like
firing someone
Complaining witnesses: Kalina v. Fletcher (U.S. 1997)—prosecutor filed complaint with a certification of
PC that it had accurate statements in it; the Court held the prosecutor was not entitled to absolute immunity for
the CERTIFICATION because a competent witness could’ve done this (it was not a traditional prosecutorial
function; a private person could do this)
 Prosecutors don’t receive absolute immunity when acting as complaining witnesses
 Here, he was immune for filing the information and seeking dude’s arrest
 ***Another reminder to look at each act separately
Police investigation: Burns v. Reed (U.S. 1991)—woman claimed assailant broke in to her home; her children
were killed; the cops thought it was her even though the evidence didn’t really indicate that—they didn’t have
any leads and there wasn’t any support for the woman being the suspect; they wanted to hypnotize her to get
a confession; they asked the prosecutor, Reed, if they could do this and he said YES
 The Court held the prosecutor was NOT immune for the advice re: hypnosis because it was in the
INVESTIGATIVE phase of the criminal proceeding; he was entitled to immunity for presenting the
false testimony at the probable cause hearing
 Acts
 Ok on hypnosis: no absolute immunity; intimately associated with investigation; there’s no evidence
against her yet
 Saying, they probably have probable cause: trickier question: doesn’t get absolute immunity
because it’s giving advice during investigative phase
 Arrest warrant with confession that wasn’t really a confession and the prosecutor didn’t tell the judge
that: this is obviously prosecutorial; in eliciting testimony on behalf of the state to get a warrant, the
officer is presenting the state’s case and that goes to the core of the prosecutorial function
Investigation v. Prosecution: Buckley v. Fitzsimmons (U.S. 1993)—girl abducted and killed; found boot print
in their home and investigated Buckley; evidence didn’t really point to him; prosecution hired expert known
for fabricating testimony; Fitzsimmons was running for state’s attorney and asserted the existence of
nonexistent evidence (saying we’ve got the guy and have evidence tying him to the crime) and employees
arguing that he was innocent were forced to resign; Fitzsimmons lost and new prosecutor pursued and
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presented false and perjured testimony; then someone else confessed to the murder; Fitzsimmons and others
claimed prosecutorial immunity; who wins?
 Court focuses on acts:
 Statements at the press conference: not part of presenting the case; the problem is that the statements
at the press conference don’t even violate a constitutional right! So the Court doesn’t even need
to get to the immunity question; if there’s no constitutional violation, don’t worry about immunity
 Decision to prosecute: the testimony is fabricated but this is a decision of how to present the state’s
case BUT it’s gathering evidence and investigative so no absoulte immunity
 Presenting the case with fabricated evidence: this becomes prosecutorial because even with the false
evidence, the prosecutor is entitled to absolute immunity because it’s presenting the case
 Applying Buckley
 Whitlock v. Breuggemann (7th Cir. 2012): persons wrongly convicted of murder alleging attempts to frame
them; the question of immunity hinged on factual disputes as to whether the nature of the action was
prosecutorial; also noted that prosecutors aren’t entitled to immunity before he has PC
 Giraldo v. Kessler (2d Cir. 2012): woman looked like she was victim of domestic violence; police
questioned her for a long period of time and she sued; the prosecutors claimed prosecutorial immunity; the
2d Cir said the approach to absolute immunity was an objective inquiry, whether a reasonable official
in the position would view the circumstances as reasonably within the function of a prosecutor
 GF said it was a violation of her 4th Amendment rights; the Court held that the interview was part of
the prosecutorial function; the prosecutor’s function is to determine whether to file the case and
whether there’s enough information
 There was absolute immunity
 K thinks this court got it wrong, that this was clearly investigative
 McGee v. Pottawattanie (8th Cir. 2008): prosecutor not entitled to absolute immunity for violating SDP in
obtaining, manufacturing, coercing and fabricating evidence before filing charges because so doing was
not a distinctly prosecutorial function; argued that procuring false testimony is not a constitutional
violation and its use at trial was immune
Other Types of Absolute Immunity
 Legislative immunity
 Tenney v. Brandhove (U.S. 1951): legislators are absolutely immune when acting in a field where legislators
traditionally have power to act; it extends to legislative aides and assistants involved in the legislative process
(Aitchison v. Raffiani, 3d Cir. 1983)
 Lake Country Estates v. Tahoe (U.S. 1979): regional legislative bodies receive absolute legislative immunity
 Brogan v. Scott-Harris (U.S. 1998): local legislators are similarly immune; firing someone based on racial
animus; the Court held that this function was NOT administrative and thus entitled to immunity; not looking
@ motive but the function of the act; the budget was a discretionary, policymaking decision; the acts were
legislative even if performed by an executive officer—officials outside the legislative branch are entitled to
legislative immunity when they perform legislative functions
 Crymes v. DeKalb County (11th Cir. 1991): development/zoning decisions
 Witness immunity: receive similar protection to that of judges & prosecutors (Brisco v. LaHue, U.S. 1983);
actions against them are infrequent
 Court: Supreme Ct. of Va. v. Consumers Union (U.S. 1980)—issuance and promulgation of rules of professional
conduct; it can adjudicate questions of whether an attorney really did violate the Code & can be sanctioned
accordingly; Court can initiate actions on its own, it can bring a charge against the attorney; issue: whether the
different acts get absolute immunity
 Absolute immunity is a functional analysis  Court looked @ function
 Promulgating code: absolute immunity because it’s a legislative function
 Adjudicating a dispute: absolute immunity because it’s a judicial function
 Bringing the charge: does not get absolute immunity because in determining we think there should be a
proceeding against this person, the Court is acting as a complaining witness or a police officer (not
prosecutor because they’re not filing the charges); this is executive and gets only qualified immunity
 Functional analysis: look at the function in determining the applicable immunity
Prospective Relief & Attorney’s Fees
 Background: absolute immunity = immunity from suit, not just damages; whether this means that the persons who
are absolutely immune are subject to injunction & declaratory relief
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 It depends on who you’re dealing with
 Legislators: state legislative officials are absolutely immune from damages AND equitable relief if taken in the
sphere of legitimate legislative authority (Tenney v. Brandhove, U.S. 1951); they’re also immune from
INJUNCTIVE RELIEF
 Prosecutors: prosecutorial immunity does not extend to injunctive and declaratory relief; prosecutors are rarely
subject to injunctive relief because the Younger doctrine precludes federal injunctions against pending state
criminal proceedings; do not have absolute immunity from INJUNCTIVE RELIEF; it’s hard to get the injunction
anyway
 Judges: Pulliam v. Allen (U.S. 1984): can one get an injunction against a judicial officer who is continuing to do
something unconstitutional
 Absolute JUDICIAL immunity does not provide protection against injunctive OR declaratory relief; it also
held that § 1988 provides that fees & costs can be awarded to prevailing Ps in § 1983 actions even if the D is
immune from damages (this includes judges); the majority didn’t think injunctions raised the same concerns
as lawsuits; federalism concerns—but 1983 was enacted because state courts weren’t doing their job; § 1988
is available in any action to enforce a provision of § 1983
 It relied on English common law and held there’s no inconsistency between injunctions and immunity
AND the chill from injunctive relief is less from the chill of damages
 They were ALSO on the hook for fees because the party who sued was a prevailing party
 Dissent (Powell): suits for damages and injunctive relief present the same dangers to judicial independence;
attorney’s fees promote increased harassing litigation
 ***This caused a big uproar
 Federal Courts Improvement Act of 1996 cutting back on Pulliam but did NOT overrule it: Congress amended
§§ 1983 and 1988; § 1983, added, injunctive relief against judge in judicial capacity shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable; § 1988, added, judicial officer shall not
be liable for costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction
 The result is § 1983 the way it’s written today  key: “except in any action brought against judicial officer
for an act or omission taken in such officer’s judicial capacity, injunctive relief shall NOT be granted unless
…”
 This doesn’t overrule Pulliam because there’s a still possibility of getting declaratory relief; it’s available if
the judge ignores the declaration or it was impossible to get declaratory relief
 Also amended § 1988 to cut back on the possibility of fees more significantly: only available if the judges acts
clearly in excess of his jurisdiction; where the judge would LOSE on the issue of immunity (could win on §
1983 injunction with judge still having immunity but wouldn’t be able to get fees)
 Other Officers with Judicial Immunity: parole officers?
 Bivens: 11th Circuit said Pulliam applies to Bivens actions
Qualified Immunity
 Discussion
 This is an issue that comes up in most litigation; result is that executive officers can claim qualified immunity;
big issue is what qualified immunity is when it really protects someone
 History: in the earliest cases dealing with immunities & 1983 (Pierson v. Ray), the Court said that police
officers were immune if they acted in good faith and with probable cause—this idea was that there was a
“good faith” immunity, that an officer acting subjectively in good faith could receive protection
 The Court recast the immunity defense in more rigorous terms in Wood v. Strickland
 Development
 Wood v. Strickland (U.S. 1975): officials who don’t have absolute immunity could be immune if they acted in
GF; suit brought by high school students challenging semester-long suspension for spiking the punch; the
standard called for both subjective & objective elements: for school discipline, officials are NOT immune if
(1) he knew or reasonably should’ve known that the action he took within the sphere of official responsibility
would violate the constitutional rights of the student affected or (2) if he took action with the malicious
intention to cause a deprivation of constitutional rights or other injury to the student
 Immunity re: school board members  the Court said they would get immunity unless 1 of 2 things
were present
 They knew/should’ve known that what they were doing violated the Constitution OR
 Objective
 They acted with malice
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 Subjective
 The standard was a dual objective-subjective standard but there’s a problem with this  if you’re a P
suing someone know with the case, you’re going to allege in every case that the D acted with MALICE
(it’ll be nearly impossible to resolve on SJ, just say it’s malicious, and it goes to the jury); but immunity
then doesn’t really protect anyone from having to go through a whole trial in order to prevail; it
might save someone from damages but the fear of litigation chilling people from exercising discretion
remains
 Harlow v. Fitzgerald (U.S. 1982) [response to the problems in Wood; key immunity case]: the Court
changed the Wood test  it eliminated the subjective inquiry and applied the same immunity standard to ALL
government officials exercising discretionary functions; this was re: senior aides/advisors to the President; it
eliminated the subjective inquiry because this made the case go to trial (factual findings by juries); government
officials performing discretionary functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known; looking @ objective reasonable of conduct, measured in reference to
clearly established law (if not clearly established, not going to be expected to know he was acting against the
law)
 This is a Bivens case but the immunity question is the same as § 1983
 It overruled Wood and eliminated the subjective component because that ran against the policies of
adopting immunity in the first place (chilling discretion)  for immunity to work, it has to protect
people from going through the whole lawsuit
 It can no longer be called “good faith” immunity
 The test is still the basic standard for qualified immunity: “governmental officials…” (see above) 
QUESTION: WHETHER THERE IS A VIOLATION OF A CLEARLY ESTABLISHED
CONSTITUTIONAL RIGHT OF WHICH A REASONABLE OFFICER SHOULD HAVE
KNOWN; it does 2 things:
 It is objective  reasonable officer inquiry
 It protects officers from having to predict the course of law  they aren’t responsible if the Court
newly articulates a principle of law they couldn’t have complied with or known about; but if the law
is clear, and they should’ve known about it, and they violate it, they are liable
 ^^^Can be decided on SUMMARY JUDGMENT
 3 Aspects of Harlow
 It is untenable to apply different rules of immunity to 1983 & Bivens actions
 The Court applied the immunity standard to all governmental officials exercising discretionary
functions
 It limited its holding to actions for damages (not a qualified immunity in cases of injunctive relief)
 Anderson v. Creighton (U.S. 1987): Bivens case; the level of specificity of the immunity issue; FBI agents
conducting warrantless search of home seeking a bank robber; the officers say the warrantless search was
permissible because it was justified by exigent circumstances; question about whether there were exigent
circumstances; legality of search not determined on SJ but not entitled to immunity because 4th Amendment is
clearly established (the officers don’t get qualified immunity because the right not to be searched except
for on PC or exigent circumstances was clear); the Supreme Court reversed; it must be determined
whether the search was done with PC or exigent circumstances which requires an examination of the
information the officials had  the objective question of whether a reasonable officer could’ve believed that
the warrantless search was unlawful, in light of clearly established law and the information the searching
officers possessed (subjective beliefs are irrelevant)
 Raises a KEY ISSUE in a lot of immunity litigation: They just said it’s clearly established
 The key problem is the level of generality: the 8th Circuit is looking at this at too high a level of generality
by just saying there’s a clear rule of 4th Amendment law but the problem is that it kills immunity and it
makes a rule of pleading—anyone can plead a constitutional violation with such a level of generality
 It must be a more particularized, relevant inquiry—looking at whether a reasonable officer would
know that what ANDERSON was doing violates constitutional rights
 The contours of the right must be sufficiently clear that a reasonable official would understand that
WHAT HE IS DOING violates that right (not whether there’s a rule of law the officer should know
about but that what he did violates the clearly established law); it’s a more specific question
 Harlow issue: still a threat of discovery chilling decision-making with this new case; we’re looking at the
circumstances of what the D did in this case (there’s a factual dispute) and you can’t really resolve all of
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this on summary judgment; the Court said it may be impossible to resolve these questions without
discovery; (1) look at what the P alleges (if the D is going to be immune, even looking at facts most
favorable to P, then D is immune); (2) if wouldn’t be immune at that stage, then there’s a disputed
issue of fact and limited discovery should be had if necessary; this is going to be determinative of
immunity
 Effect on SJ: should be resolved at earliest stage of litigation; minimal discovery can be had that is
tailored to the immunity question
 In some cases, it won’t be possible to resolve the immunity question before trial but the Court hopes
that in most cases, through a focused approach, it can be done before trial
 RULE: fact-specific inquiry as to whether a reasonable officer would know that what he did would violate
a constitutional right; the Court says it’s still objective, but it puts the reasonable officer in the SHOES
OF THE DEFENDANT (or assumes the D is a hypothetical reasonable officer who knows the facts,
situation, and law, etc.); it does restrict immunity because even if an abstract rule of law is clear, the
D might still get immunity because it’s not clear that what he’s doing violates the Constitution
Hope v. Pelzer (U.S. 2002) [thorough explanation of the qualified immunity standard]; it combines the
question of whether a reasonable officer would know that what he is doing would violate the Constitution + how
you figure out if the constitutional right is clearly established [whether there has to be a decision on the issue or
whether you can infer; or whether you can look at circuit courts, etc.]
 Facts: hitching post case; it was an 8th Amendment violation; Issue: whether the officers were liable here or
whether they could get qualified immunity
 Procedure: 11th Circuit and Supreme Court has already decided that the P’s constitutional rights were
violated (8th Amendment); the issue here is immunity: the 11th Circuit based the immunity on the fact
that there weren’t cases that were materially similar  that’s the wrong standard according to the Supreme
Court
 Analysis: the issue is the same as comes up in criminal violations = knowing violations, § 242—a D can
willfully violate the Constitution if he had fair WARNING that what he was doing violated the
Constitution; it adopted the § 242 standard; the issue is FAIR WARNING THAT IT WAS A
CONSTITUTIONAL VIOLATION AND WHETHER D HAD THIS RE: WHAT HE WAS DOING
 But what does fair warning mean? Block quote from pp. 280–81—there’s not a single standard of
fair warning; it depends; sometimes there is going to be a need for very similar precedent (ex. if a
Supreme Court case says we hold that x, y, and z violates the Constitution but we don’t reach the
question of what would happen if w were also present and you’re case deals with w; then since the
Supreme Court explicitly didn’t decide w and unless there are cases that are very clear at least in the
circuit of what happens with w, there’s NO fair warning); on the other hand, sometimes general
statements of the law CAN give fair warning—a principle of law being so clear and broadly applicable
that someone has fair warning even if there are no similar cases (ex. a line of 8 th Amendment cases
saying torture violates the 8th Amendment and dealt with a bunch of different types, the fact that D
could cook up a new way of torturing someone doesn’t mean they don’t have fair warning because the
general principle is clear)
 Analysis, pp. 281–83
 First: it is so obviously cruel and unusual that the 8th Amendment gives fair warning; the Court
suggests that this is one of those blatantly unconstitutional things but the Court doesn’t rest on this
because there’s enough other stuff that makes it fair
 Second: two bindings cases in the circuit + the AL Dep’t of Correction Regulations (suggesting
there have to be real protections built in to the hitching post) + DOJ report saying it was
unconstitutional
 ***What the Court says about the precedents: they don’t deal with hitching posts—Gates
(giving a laundry list of things that guards can’t do—shoot at people’s feet to keep them
moving, make them stand on stumps for long periods of time, and handcuffing to fences for
long periods)  but the specific inclusion of the handcuffing to fixed objects for long
periods of time put them on fair warning; Ort—said it was permissible to withhold water
from prisoner who refused to work BUT it would be different if the water was withheld as
punishment once they got back to jail  the Court said this was enough to put them on
notice; it’s reading the negative into the case
 Regulations: there were specific safeguards limiting them
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 Rules
 Threshold inquiry in immunity cases: whether there’s a constitutional violation  here, there was
 Officers will not be liable if their actions did not violate clearly established statutory or constitutional rights
of which a reasonable person would’ve known (the facts of previous cases need not be materially similar
in a rigid fashion)
 Policy: NOTICE to the officers
 Officials can still be on notice that their conduct violates established law even in novel factual
circumstances  the cases need not be fundamentally similar; cases with fundamentally similar facts
provide strong support though
 Looking @ regulations  if the officials were constantly violating the requirement, that’s an indication
that they were aware that their conduct was wrongful
 Dissent (Thomas): doesn’t think the law is clearly established; if officers of reasonably competence would
disagree about the law, it’s not clearly established; AL was the only state who did this and there was no contrary
authority
 He draws on different quotes from immunity: it recasts the immunity standard, that it protects all but
plainly incompetent and knowing violations of the law (presumption of immunity; he also says we
shouldn’t look at specific allegations because they haven’t been proved, so we should look at it as just
using the post; and then he looks at the sequence of law differently  there are some district court cases
from AL that deal with hitching posts that thought they were ok; the guards are more reasonable to
rely on the district court cases that are more specific than trying to read the tea leaves of circuit and
Supreme Court precedent; these people live in a country place and might not have known about the DOJ
 He recasts things in a way that’s more sympathetic to the actors
Summary
 It’s a sliding scale
 Obviously unconstitutional (don’t need specifics)  Not obvious (more fact-specific)
 Hierarchy of authority
 Supreme Court  Circuit Court  other factors
Questions on Determining Qualified Immunity
 Order of Battle: Saucier v. Katz (U.S. 2001)—the Court held that courts must FIRST decide the
constitutional question; but then Scott v. Harris (U.S. 2007), Breyer argued that the courts should not decide
the constitutional question if the person is clearly entitled to qualified immunity; Pearson v. Callahan (U.S.
2009), overruled Saucier’s requirement that a court decide the constitutional issue first; the judge should
use their sound discretion in deciding the issue that needs to be addressed first
 It’s attractive for lower courts to skip to immunity because they won’t have to go to trial BUT the problem
is that you never get legal decisions and the law never develops
 Saucier: must decide constitutional issue first; if there’s a violation, then you can go to the immunity issue
 Dissent: this is a waste of resources when the person is obviously immune
 Pearson: need not decide constitutional question if person is clearly entitled to qualified immunity; it’s in
the sound discretion of the district court  issue: does the district court have a clear enough sense of what
law applies even without a trial
 Immunized Ds Who Object to the Legal Ruling: if the D wants the court to decide the constitutional issue
so that it knows how to act; Camreta v. Greene (U.S. 2011)—the court held that it COULD REVIEW the
constitutional issue at the request of the D
 Immunized D sort of gets screwed—do you have to live with a question of law you hate but not be able to
appeal? NO, the Court can grant cert even to the immunized party
 Looking at the generality of the inquiry:
 Groh v. Ramirez (U.S. 2004): federal agent got a warrant signed by the magistrate BUT IT WAS
FACIALLY INVALID; he filed application to the magistrate with specifically what he was searching for;
magistrate issues the warrant but it doesn’t incorporate the list of things the person is searching for; the
Court held that the agent wasn’t entitled to immunity because it was so obviously in violation of the 4 th
Amendment; this violated the text of the 4th Amendment—“warrant must state with particularity
what is being searched for”; nothing in the warrant so it was obviously unconstitutional
 Court looked at the HIGHEST LEVEL OF GENERALITY POSSIBLE: the text of the Constitution
itself
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Dissent: The focus should be different—reasonable officer might be mistaken on the fact, that the
warrant was proper (that it was incorporated or listed); a reasonable officer will assume that the packet
might have all the information; looking at it more from how reasonable officers actually act, not
actually studying the language of the warrant because they assume the magistrate will get it right
 Limiting Groh: Messerschmidt v. Millender (U.S. 2012)—the Court limited Groh in the situation where
the warrant was NOT facially invalid; it wasn’t unreasonable to rely on the magistrate; the officer did a
bunch of investigation and writes it out for the warrant, he shows it to a superior who says it’s ok (internal
vetting) and then takes it to the magistrate; conducted search and finds nothing; assuming the warrant was
overbroad, do the officers get immunity? 9th Circuit said no, the officers should’ve known BUT the
Supreme Court said he did everything he could’ve reasonably been expected to do
 Exception: the fact that magistrate signs off doesn’t automatically get him off BUT he asked for a lot
of advice and the Court found that he acted reasonably and shouldn’t have been expected to know he
was violating clearly established law
 Factual inquiry not simply at the law but also really at what the officer has reason to know given
the circumstances here (a more fact-based analysis)
 Ashcroft v. Al-Kidd: saying don’t inquire into basic principles; the history and purpose of the 4th
Amendment can’t establish clearly established law
Over-Reliance on General Constitutional Principles: Pelzer focused on the degree of similarity of precedent
and Creighton focused on the level of generality with which the court will consider the question; York v. City
of Las Cruces (10th Cir. 2008)—police arrested dude after yelling “bitch”; the court held that the officers
weren’t entitled to immunity because there was a fighting words doctrine putting the officers on notice that
the language was protected
 Wilson v. Layne (U.S. 1994): the law is not clearly established with lack of controlling authority in the
jurisdiction at the time of the incident or a consensus of persuasive authority; split of circuit authority
strongly indicates law is not clearly established
 What body of law clearly establishes? Doesn’t have to be in the binding jurisdiction necessarily
 You look FIRST TO SUPREME COURT, THEN TO CIRCUIT AUTHORITY (this is a strong
indication that law is clearly established); if no circuit authority and/or circuit split, it may not be clear
 Need a clear consensus or obvious trend in the case law; the court’s going to do this when it gets
a chance; a big split shows it’s not the case BUT if 1 circuit is an outlier, the law still might be
clearly established
 6th circuit doesn’t look outside much
 Safford v. Redding (U.S. 2009): the fact that a single judge disagrees with the law doesn’t mean it’s not
clearly established
 Cleveland v. Brutsche (7th Cir. 1989): controlling precedent is NOT the only way to determine whether
a law is clearly established; the proper test is whether at the time of the acts there’s a clear trend in case
law that it will be in the controlling precedent over time
 Other doctrines: 3 circuits + no court reaching opposite conclusion; post-incident cases persuasive
 McMillian v. Johnson (11th Cir. 1996)—absence of past incidents of outrageous abuse doesn’t mean
the law is not clear; the Court noted that outrageous conduct is obviously unconstitutional
Determining if the Law is Clearly Established: Reichle v. Howards (U.S. 2012): Court had never determined
that a person could bring a 1st Amendment retaliation claim to challenge an arrest based on PC & circuit court
hadn’t
How Long Does It Take? Rule of reason; AND the D’s position also appears relevant to the question (holding
higher ranking people to higher standards)
 If Supreme Court comes out with decision tomorrow and officer violates it the next day, has he violated
clearly established law? The courts use a rule of reason—that Supreme Court decisions becomes more
clearly established more quickly than circuit courts (~ 10 days not 4 days)
 The D’s position is also relevant—more likely to find that supervisors should be on notice more quickly
than lower ranking officers
Factual Disputes: whether the Court should resolve on SJ factual disputes
Restating the Approach: approach using 2- and 3-prong tests; Pritchett: (1) identify the specific right the P
claims was violated; (2) determine if the right was clearly established at the time of the alleged violation; (3)
if so, determine if a reasonable officer in the D’s position would’ve known that his actions would violate that
right  first 2 are purely legal and 3rd is factual
Question of Law
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 Advice of Counsel: magistrate judge case (seems to help establish this); if someone gets advice of counsel,
does that give them immunity? The Courts are reluctant to say automatically because it would be easy to get
around violating the law BUT if someone does consult counsel that’s a good indication that the law is not clear
(pointing in the direction of immunity)
 Professional Standards & Budgetary Constraints: Youngberg with officials in mental institution if acting
under their professional standard as NOT being liable individually for damages; it’s a unique PDP standard for
professionals—if they can’t comply because of budgetary constraints, they should get immunity—it’s not clear
how this relates to Harlow; there are cases out there that look at the budgetary constraints issues re: immunity
and that it doesn’t mean you didn’t violate the Constitution but it might factor into giving someone immunity
 Ministerial Acts: involving no discretion; suggestion that they don’t get any immunity at all
 Discretionary Function: 11th Circuit said this requires them to actually be performing a duty within the range
of discretion the job entails; HS teacher couldn’t claim for prayer in class
Does the Same Immunity Analysis Apply to ALL Constitutional Claims?
 Generally
 4th Amendment requires reasonableness + another layer of reasonableness for immunity; if the court has to
decide the constitutional issue, isn’t it deciding the immunity issue? NO—immunity is a further dimension:
how the relevant legal doctrine will apply to the factual situation the officer confronts
 The Court discussed this and has put it mostly to rest: the notion that qualified immunity law should apply
differently in 4th Amendment cases; the 9th Circuit argued that since the Graham 4th Amendment analysis
looked at a “reasonable” amount of force, that qualified immunity shouldn’t apply if someone used
unreasonable force because someone can’t be unreasonably reasonable  the Court rejected this:
 Looking at different inquiries of reasonableness: the 4th Amendment is a balance of what is a reasonable
amount of force, weighing the amount of force against the government’s interest; in the course of deciding
that 4th Amendment question, a court might sketch out legal rules that govern that SORT of instance
 Ex. If you have a question of whether officers can use tasers when faced with a passive refusal to act,
a court could in conducting the 4th Amendment balance set out a rule about use of less than lethal force;
an officer who was faced with the question then, when this law was still in flux about whether he can
sue a taser might be entitled to qualified immunity because a reasonable officer might not know that
what he’s doing is unconstitutional
 DIFFERENT inquiry: legal inquiry into what rules govern this use of force v. whether a reasonable
officer would know those rules (i.e. whether they’ve been established)
 Saucier v. Katz: famous for its now discarded order-of-battle mandate but it was a 4th Amendment legal issue
 Constitutional violations for which one can’t have immunity?
 Some courts say that one can’t reasonably act maliciously and sadistically under the 8th Amendment
 Brosseau v. Haugen (U.S. 2004): shooting dude in back while fleeing; the law was clearly established but the
application of it was still subject to reasonableness
 Ryburn v. Huff (U.S. 2012): going into woman’s home because suspecting son of going to shoot up school; she
sued alleging there was a search with no warrant  they had a reasonable basis for concluding that the 4th
Amendment allowed them to enter her home if there were an objectively reasonable basis for fearing that
violence was imminent
Violation of Laws Other Than Those Imposing Liability: whether a person who violates another law can forfeit
qualified immunity
 Davis v. Scherer (U.S. 1984): employee of highway patrol was fired without a hearing for having a second job;
claimed that Ds forfeited their immunity because they violated agency regulations; he argues his termination is
without PDP (this happens when the PDP law is in flux); the Court agrees the employer with be qualifiedly
immune for the DP violation; but there was a clear rule of the FL Highway Dep’t; the employee argued they
should forfeit immunity because they violated a clearly established law (the regulation); the Supreme Court said
NO; whether officers forfeit immunity by violating a clear rule that controls their conduct but which that rule is
not a violation that gives rise to the constitutional claim; the Court held they didn’t forfeit their immunity
 The question is whether the law that is the BASIS of the cause of action clearly established (the DUE
PROCESS LAW); if no, then the immunity still applies; not looking at the agency regulation even if it’s clearly
established; the focus is on the law that gives rise to the claim
 Officials sued for constitutional violations do not lose their qualified immunity merely because their
conduct violates some statutory or administrative provision
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 Harlow: can lose immunity for violating clear statutory rights when the violation is BASED on that
statute
 These officials become liable for damages only to the extent that there is a clear violation of the statutory
rights that give rise to the cause of action for damages  the reg. here didn’t create the right @ the basis
of the cause of action; the DP law at this time wasn’t clearly established
 ***Is what the court did in Hope v. Pelzer consistent with this? Relying on the regulations in determining that the
officers weren’t immune; same with Groh: an official is deprived of qualified immunity whenever he violates an
internal deadline; relying on departmental rules to check the warrants
 The regulations here put them on notice—regulations aren’t irrelevant; the fact that there are regulations
can put people on notice about the constitutional right at stake; it was evidence that the law was clearly
established; the regulations are informative as to why someone should know about the constitutional law; they
weren’t stripped of immunity for violating the regulations
 Spruytte v. Walters (6th Cir. 1985): suing prison officials for refusing to let him have a book sent from someone
other than the publisher; there was a PRISON POLICY of allowing them to have these books
Summary
 Reasonable officer standard; how the law applies to what the PERSON is doing at that time; and what body of law
can clearly establish law
Derivative Immunities
 Generally
 This is choice of immunity broadly; who gets what immunity for situations that don’t fit clearly into an
established category; may involve private individuals and what immunity they’ll get; how & when to apply
the functional analysis and when it’s an inquiry into the availability of immunity at all
 Dennis v. Sparks (U.S. 1980): conspiracy between private persons & judge regarding an injunction of producing
minerals from oil leases (this is the key modern-age under color case that we talked about after Adickes); the
judge was entitled to absolute immunity; the issue was whether the private Ds (acting under color w/ conspiracy)
were ALSO entitled to immunity; the Court held NO  the fact that the judge was immune DID NOT AFFECT
the under color issue of the private defendants
 QUESTION: when can a person’s immunity “rub off” on someone else—that’s derived from the immunity
that another person gets?
 Argument: since they’re acting under color because conspiring with the judge, they should also get the
judge’s immunity; if you sue them the judge will have to TESTIFY anyway and this defeats the
justification for making him/her immune
 Absolute immunity doesn’t mean you can never be held accountable; absolute immunity doesn’t
mean that judges can’t be witnesses
 Analysis: looking at common law
 Burden is on the party claiming the immunity to prove such immunity
 Gravel v. United States: Senator’s aide was entitled to immunity if either were a LEGISLATIVE ACT or
a JUDICIAL ACT
 BUT judges don’t have to conspire with private parties in order that judicial duties be properly
accomplished
 Argued that the judge would have to be a witness to his own acts but there is no constitutionally based
privilege immunizing judges from being required to testify about their judicial conduct in thirdparty litigation
 Questions & Problems
 Antoine v. Byers & Anderson, Inc.: court reporter who was behind in reporting and lost some tapes; person
couldn’t appeal because he didn’t have a transcript; the person files a suit under Bivens against her, and she
argues absolute immunity because she’s a court reporter; whether she gets absolute immunity:
 Argument: this is a court reporter—the judge doesn’t do this; she’s not performing some sort of
discretionary act that the judge would otherwise perform; it’s not like a law clerk who’s exercising
judgment on behalf of or in conjunction with the judge
 These acts don’t involve discretion at all and don’t deserve any immunity
 Harlow: talks about executive officers exercising discretionary functions suggesting that the functions that
get immunity involve a measure of discretion; a task that involves NO DISCRETION (purely ministerial)
arguably gets no immunity AT ALL; the court in Antoine suggested this might be the case
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 Oliva v. Heller: district court law clerk dismissed petition for habeas, in which her future employer is one of
the litigants, and knew that he was going to work for the state attorney general’s office but continued to work
on this anyway as a result of oversight; the D sues her under Bivens, arguing that she violated his constitutional
rights by issuing the ruling when she’s self-interested; assume there’s a constitutional violation—she claims
absolute immunity because she’s working for a federal judge, thus entitled to absolute immunity
 Argument: she’s acting as an arm of the judge doing things a judge would do  in support of this: in
Dennis, the Court said Gravel would give immunity if the act was done by an aide, who gets derivative
immunity, because the act would be immune if done by the judge herself; in the conspiracy context,
the Court said that no one is claiming the judge needs to engage in conspiracies in order to carry out his/her
judicial duties—BUT aides CAN get this derivative immunity
 The law clerk IS PRECISELY the sort of aide because she’s doing things that would be immune if the
judge himself did them
 Mays v. Sudderth: judge issued writ to Mays when she didn’t respond to subpoenas; the sheriff executed the
writ; what immunity does the sheriff get?
 Can’t sue the judge for what’s IN THE WRIT but can you get around this by suing a person who serves
it? Courts say no because that person is just carrying out the judge’s job
 Richman v. Sheahan: witness to testify and delayed proceedings; the judge ordered the officers to restrain him,
they did & sat on him and he died; are they entitled to absolute immunity?
 Argument: idea that law clerk or aide performing discretionary acts on behalf of judge should get immunity
derived from that official because they are basically acting as an aide; there are a number of cases, such as
Mays in which a judge issues a writ, a court official serves the writ, and the court will still allow immunity
 HERE: the officers will argue absolute immunity because they’re just doing what the judge told them to
do; BUT this doesn’t work because they arguably go beyond the orders of the judge; they aren’t just
following the orders of the judge  this is a case that’s not saying there’s something unconstitutional about
stopping a disturbance in court; the issue is the MANNER of stopping the disturbance and that something
they did ON THEIR OWN; they don’t get absolute judicial immunity when they interpret restrain to
mean smother
 If the judge were just watching this you could argue ratification
 Waco, ruff him up case, if you sue the guards, it’ll depend on whether the judge did really order them
to ruff him up, and arguably they would get the immunity that the judge gets  it would be different
in Antoine if the judge told her to delay the transcript
 They could maybe still get qualified immunity for an executive function but they don’t get absolute
immunity
 Stump v. Sparkman: is this still correct that the private Ds aren’t amenable to suit because the judge was
absolutely immune? NO—Dennis overruled this!
 Summary: people acting together and what immunities apply to the person being sued; whether it rubs off on
them; also looking at when a person is acting as an aide to an official or following direct orders so that the
higher official’s immunity rubs off on the functionary
Determining Which Immunity Applies
 Choice of immunity in which the claim of DERIVATIVE IMMUNITY is absent—when using a purely functional
analysis and when using a more of the traditional historical approach
 Tower v. Glover (U.S. 1984): PD sued by former client, alleging that PD conspired with trial and appellate judges
to get him convicted; derivative immunity argument wouldn’t work here after Dennis; the PD argues that he
should get immunity in his own right because he as a PD deserves absolute immunity because he’s a participant in
the judicial system similar to prosecutors and judges
 Under color: YES because of conspiracy with judges (Dennis v. Sparks)
 We talked about this in Polk County—as a general rule public defenders do not act under color of law, thus
they don’t get immunity
 The Court says the standard approach to immunities:
 (1) look to the common law to determine whether there is a historical immunity for that function 
historically, PDs didn’t even exist, so this didn’t apply
 (2) look to the history and purposes of § 1983  can’t create an immunity just because it would be good
policy; no immunity for intentional misconduct and nothing else counseling PDs from having similar
immunity to judges & prosecutors
 ***No where mentions function
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 ***This is up to CONGRESS to extend!
Cleavinger v. Saxner (U.S. 1985): prison officials & committee adjudicating a prison dispute and found the inmates
guilty; the inmates claimed PDP violation; the Court held that the prison officials and other defendants were NOT
entitled to ABSOLUTE immunity because under a functional analysis, not acting like an INDEPENDENT
judge (ALJ or Art. III) and looked at the factors justifying immunity and didn’t find any present here
 Rules
 Parole board gets ABSOLUTE immunity because they are neutral/impartial
 The prison officials & other defendants get QUALIFIED immunity  they need to just follow clear
constitutional precedent
 Analysis
 The Court uses a FUNCTIONAL ANALYSIS: whether this function is inherently a judicial function; it’s
not because the characteristics of judicial immunity aren’t present here (pp. 303-304)—no independence
here; no true adversarial presentation; these aren’t professional decision-makers (like art. III judges or
ALJs) but are executive officers who report directly to the warden who are just conducting a hearing on
the warden’s behalf; they are more like the school board members in Wood who got qualified immunity
for deciding what to do with the spiking of the punch
 ***No where mentions history
 Dissent: there are a lot of pressures facing prison officials, so they should get absolute immunity
Summary
 History & Policies (Tower)
 Functional (Cleavinger)
 DIFFERENCE: the Ds in Cleavinger are clearly executive officers, so they come into the case with a baseline
of qualified immunity under Harlow (qualified immunity); they are going from their qualified immunity and
seeking to get absolute immunity, to “up” the immunity by claiming they’re acting like judges here (this is a
valid form of analysis and argument); the Court said they were acting in an executive function still; the Ds
in Tower were coming from a base line of NO immunity, as a private person, as someone who is not immune;
it’s a private person only acting under color by virtue of the conspiracy; he’s not an executive officer; the
question is whether he gets any immunity—to decide this, the Court goes through 2-prong analysis
 Function determines immunity for state officials, someone with a base line of some sort of immunity and
the question is which immunity applies
 2-prong analysis determines immunity for private persons who have no base line for immunity and the
question is whether any immunity applies (just like it did for prosecutorial and judicial immunity @ the
beginning)
 In Richardson, Court says we use functional approach when looking at the function the OFFICIAL is acting
in but use 2-prong approach in determining whether immunities apply in the first place
Notes & Problems
 Tower and Cleavinger: consistent? Yes, see above
 Choice of immunities? For functional approach
 Malley v. Briggs: police conducting wiretap; the officer logged a conversation; a state trooper interpreted it
and drew up felony complaints and then issued warrants for arrest with affidavits; a judge signed the warrants;
is the STATE TROOPER entitled to immunity? For what? He argues he should be absolutely immune
because acting like a prosecutor
 The Court says that he’s acting like a COMPLAINING WITNESS NOT A PROSECUTOR; this idea
comes up in social worker cases (see below)
 Witness or Complaining Witness: Rehberg v. Paulk (U.S. 2012): why there are different standards for
different witnesses; whether a police officer who testifies before a grand jury seeking an indictment gets
qualified immunity for being a police officer/complaining witness or whether he gets absolute immunity for
being a witness; the Court said that people who are witnesses, who actually testify (at trial or before the
grand jury), get absolute immunity; FUNCTIONAL APPROACH: the officer doesn’t lose the absolute
immunity for what he says before the grand jury under oath simply because his job is a COP
 Grand jury witnesses have absolute immunity  fear of litigation justifies and chilling of telling the
truth; this includes officers who testify in front of a grand jury BECAUSE they aren’t acting as a
“complaining witness” because it is not application for arrest warrant or initiating a prosecution
 Complaining witnesses have qualified immunity
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 Social workers: Austin v. Borel (5th Cir. 1987): mom notified police department of sexual abuse of her
daughter; police referred to child protection agency; social worker investigated and contacted the DA’s office;
the caseworker filed a VERIFIED PETITION with the results of the investigation; is the social worker
immune?
 This social worker doesn’t get absolute immunity because acting more like a COMPLAINING
WITNESS
 There are cases in some jurisdictions where the social worker actually institutes legal action, where the
social worker is the one who files the petition in court, and those circuits in these circumstances find they’re
acting like prosecutors and give them absolute immunity
Immunities & Private Defendants
 Introduction
 Whether private Ds receive immunity, if the person is acting under color
 We saw this in Lugar: one of the issues in deciding that the company that sought the garnishment was
actually a state actor is whether that was fair when following a facially valid procedure; the Court in fn.
23 reserved the question stating that it was a question of immunity not affecting the PRIMA FACIE case
 The Court answers this in Wyatt
 Cases have very different factual situations
 Wyatt v. Cole (U.S. 1992)
 Whether private individuals acting under color of state law in attaching private property are entitled to
immunity in a 1983 action (Lugar issue)  the Court held NO; similar facts, the statute for the pre-judgment
attachment of property was found unconstitutional
 The Court takes the approach you’d expect from Tower, private party exercising no governmental function
but is nonetheless a state actor (Lugar tells us they are)
 ANALYSIS:
 (1) common law & history—distinctions between complaining witnesses and those entitled to absolute
immunity; for malicious prosecution, if acting without malice, wouldn’t be held liable, good-faith
defense, so there’s sort of a historical basis for immunity but it doesn’t translate into the Harlow objective
immunity
 (2) justifications/policies for immunity weren’t present here: holding this person responsible doesn’t
harm the public good; it is to encourage individuals to enter into government service and to prevent overdeterrence – this is n/a here: here it’s a private party pursuing his own financial end, no public good
involved or government purpose; no need to encourage people to bring replevin actions
 SCOPE: qualified immunity is not available for private Ds faced with 1983 liability for invoking a state
replevin, garnishment, or attachment statute
 Didn’t answer (specifies that this is a very narrow holding: whether qualified immunity as announced
in Harlow applies to…): whether private Ds would be entitled to an affirmative GF/PC defense & what
would happen if this were a private person in a different context
 LOWER COURTS: they did grant a GF immunity and they found that in other contexts, private individuals
could claim qualified immunity
 Wyatt on remand: adopted the GF defense, where the Ds neither knew or should’ve known that the procedures
were unconstitutional  shouldn’t be held liable absent a showing of malice & evidence that they either knew
or should’ve known of the statute’s unconstitutional infirmity
 Limits of Wyatt:
 Sherman: doctor administering help to mental patients pursuant to a court order; is he entitled to qualified
immunity? The officers are making him do this; how is this different from Wyatt? Here he’s following court
orders and it’s serving a government purpose; not acting independently pursuing his private goals 
when you have someone acting jointly with government as the technical arm of the government performing a
job for the government then the private D can get immunity, essentially derivatively
 Not a private party pursuing private ends
 A person acting jointly with government pursuing government ends
 Rodriques: private physician conducting vaginal search for drug COULD assert qualified immunity
 Sanchez: doctor performing abdominal surgery for cell phone even though X-rays didn’t show it there was
NOT entitled to qualified immunity
 Richardson v. McKnight (U.S. 1997)
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
 Private prison guards working for private prison that is a major for-profit corporation; has minimal state
oversight and interference—not entitled to qualified immunity in 1983 suit
 ANALYSIS (Tower): functional approach doesn’t apply here because not dealing with people in
government by private individuals
 (1) historically, no tradition giving immunity to private prison guards
 (2) policy didn’t support immunity under functional approach  mere performance of a governmental
function doesn’t make the difference between liability and immunity; it was a for-profit institution; the
guard wasn’t acting for government but a profit-making body that had more freedom to reward and punish
and who had incentives to act in a certain way to keep the government contract; characteristics of the
employer driven by market pressure
 Unwarranted timidity: not present here because it’s a for-profit company with competitive pressures &
deep pockets
 SCOPE: private firm systematically organized to assume a major lengthy administrative task with
limited direct supervision by the government and which does so for profit and potentially in competition
with other companies
 Lower courts to determine state-action issue
 Limited to private firm, systematically organized to assume a major lengthy administrative task with
limited direct supervision by the government and which does so for profit and potentially in competition
with other companies (i.e. not private individual briefly associated with a governmental body or acting
under close supervision); NOT a private individual briefly associated with a government body,
serving as an adjunct to government in an essential governmental activity, or acting under close
official supervision
 Did not answer whether GF defense was available
Reach of Richardson: various note cases
 Two cases with private individual immunity, Wyatt: individual can’t claim immunity who acted jointly with
the state in garnishing property because (1) common-law good-faith immunity didn’t translate into Harlow
objective immunity and (2) policy wasn’t in favor of it because it was an individual acting for private ends
(preventing over-deterrence wasn’t applicable) and no need to encourage individuals to enter government
service because the individual wasn’t acting in government service and in Richardson: where court held that
guards who worked for a private prison that operated under a long-term state contract largely independent from
the state couldn’t claim immunity; the characteristics of the employer counseled against immunity
 DESPITE these holdings, lower courts still found individuals immune when individuals weren’t engaged in
individual decision-making for their own benefit but working closely with the state in an individualized joint
decision  they aren’t pursuing private ends
Filarsky v. Delia (U.S. 2012): Court finds immunity for private defendant suggesting lower courts were right
all along
 P = firefighter who was absent from work and eventually terminated; city had labor lawyer to conduct interview
& threaten suit; the Ds ALL got immunity; lawyer is working with the state to fulfill a state end; the Court
used the standard approach—(1) common law: didn’t differentiate between part-time and full-time servants
and (2) policy: it’s important that the state be able to attract good people to work for it even on individual
projects and important to prevent over-deterrence when someone is working on behalf of the state to achieve
a state goal
 Held private D was entitled to qualified immunity (labor lawyer)
 ***Is consistent with the previous cases because it’s someone who is really working with and for the
government and not for private ends or for a for-profit corporation
 ANALYSIS:
 Common law—supported immunity; private citizens engaged in government work and conducting
criminal prosecutions; didn’t distinguish between full- and part-time employees, either
 Policy—supported extending immunity because lawyer was working for the state; this was concerned with
the public good
 6th Circuit applying Filarsky: found psychiatrist who worked for private non-profit entity providing health
care for a prison was NOT entitled to qualified immunity for deliberate indifference
 History: no immunity for private doctors working for the government
 Policy: differences between public & private employers from Richardson applies here
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 6th Circuit in Gregg v. Ham: bail bondsmen not entitled to immunity because pursuing own financial interests
& not working for the government; not historically entitled to immunity
 Municipalities: Municipalities as “Persons” and the Reach of Municipal Liability
 The Foundation
 Generally
 We’ve been talking about suits against individuals (an individual in that person’s INDIVIDUAL or
PERSONAL capacity); the KEY is that the individual defendant is the real party in interest & their bank
account is on the line and a judgment would run against the individual as such
 Why a § 1983 plaintiff wouldn’t be content with suing just individuals:
 No deep pockets (with municipality, you have that)
 Jury is more sympathetic to the individual (as opposed to an entity)
 Individual immunity (whereas municipalities aren’t)
 Hard to identify the individual who’s responsible (easy to identify the municipality)
 Nature of constitutional violations (i.e. detainee in a city jail and being held because he can’t make bail;
he’s upset about being in jail; he’s in a cell, night shift, only one jailer, doing his best to check on everyone;
detainee commits suicide; his estate sues for SDP violation; PROBLEM: is the officer deliberately
indifferent? Probably not; lack of funding case & it’s easier to argue the government is responsible for
failing to adequately staff the jail—systemic problem can lead to harm)
 In Monroe v. Pape, municipalities were not “persons” subject to suit under § 1983  this was a PROBLEM
after this case that P tried to get around
 By brining Bivens actions against municipalities—this didn’t work
 Pendant party jurisdiction
 BUT in 1978 Monell reversed Monroe in the proposition that municipalities are not persons, concluding that
Congress intended for municipalities & other local government units to be included under § 1983 BUT
municipalities can only be liable for injuries caused by their policies or customs
 Municipalities now ARE PERSONS, meaning they are potential Ds in § 1983 actions
 BUT, Monell set out narrow situations in which municipalities were proper defendants—so the law is
essentially an endeavor to figure out what situations give one the ability to sue a municipality
 Monell v. NYC Dep’t of Social Servs. (U.S. 1978)
 Class of female employees who work for NYC Dep’t of Social Services; one gets pregnant and pursuant to the
policy has to leave work early without pay; to NY Board of Education & Chancellor and Dep’t of Social
Services & Commissioner & NY mayor in their official capacities for official policies compelling pregnant
women to take unpaid leaves of absence before such leaves were required for medical reasons; they sued under
§ 1983, seeking injunctive relief & backpay
 ***Obviously today and back then this was a EP violation
 Suit is against city & officials IN THEIR OFFICIAL CAPACITY (just a way to get to the city)
 The question: can Monell sue the city? The Court uses the case to overrule Monroe part that said
municipalities weren’t persons
 I. The non-person rule was based on a misreading of history and the legislative history of § 1983; the
legislative history showed that Congress didn’t think it could force a municipality to keep the peace
but nothing suggested the municipality couldn’t be responsible for its own wrongdoing; they can be
responsible when they themselves are at fault; Court looked at the “dictionary act”—person involved
BODIES, corporate and politic and takes this as additional support  so NEW YORK CITY IS A
PERSON AND CAN BE SUED
 II.
 DISCUSSION
 WHO
 What is a “municipality”? Fn. 54: they are local governing bodies & there’s no constitutional
impediment to suing these bodies; fn. 54: there’s no 11th Amendment problem here because “our
holding today is … limited to local government units which are not considered part of the state
for 11th Amendment purposes”  states and its arms (states, state agencies, universities, etc.) have
11th Amendment protection but local government units that are not arms of the state do NOT have 11th
Amendment protection and are municipalities subject to suit; the definition interrelates with 11th
Amendment question of what is a state
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Official capacity suits are just another way of suing the entity (Fn. 55): individuals sued in their
official capacities are municipalities and subject to suit; ex. suing A.C. Wharton in official capacity is
a suit against the City of Memphis (just another way of suing the entity; suing the person NOT as an
individual but as a representative of an means of reaching the entity)
 WHEN
 Local governing bodies can be sued under 1983 … where the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers  (1) official policy, (2) promulgated
by body’s officers; ***here, decision to send her on leave was implementing official policy and the
persons in the department are the ones who promulgated that policy (they are the ones responsible for
it)
 ^ within this, custom with the force of law is included—if the deprivation were pursuant to
government custom, then it would satisfy the official policy portion (equating custom w/ force of law
with policy) (Adickes is imported)
 ^ within this, on the other hand, not liable unless action pursuant to official policy of some nature
caused a constitutional tort  this is a much broader conception of liability; doesn’t require that
someone is implementing an official policy but just has to be PURSUANT to an official policy of
some nature; broad terms, causing a TORT; suggesting when there’s a policy in the background that
causes a constitutional tort could give rise to § 1983 liability  more in tort-like proximate cause
terms as opposed to requiring that the decision actually implement an official policy
 ^ upshot: municipalities cannot be liable under respondeat superior; the language of § 1983, talking
about liability against person who subjects or causes to be subjected, forms the idea of causation
underlying municipal liability—the municipality has to actually cause the violation (equation: the
employee’s tort is the municipality’s liability if the m caused the e to cause the harm)
 RULES
 Congress intended municipalities & other local government units to be included among those persons to
whom § 1983 applies (overruling Monroe)
 They can be sued for monetary, declaratory, or injunctive relief where the action implements or executes
a policy statement, ordinance, regulation, or decision finally adopted and promulgated by that body’s
officers
 Local governments can also be sued for constitutional violations visited pursuant to the governmental
custom (Adickes)
 But the municipality cannot be liable under respondeat superior or when the policy doesn’t cause a
constitutional tort  the official policy must “cause” the employee to violate another’s constitutional
rights BUT it can’t just be based on the employer-employee relationship; a local government may not be
sued under § 1983 for an injury inflicted solely by its employees or agents; instead, it is when
execution of a government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury that the government
as an entity is responsible for under § 1983
 ***going beyond the idea of the body’s officers and that official policy can come from lawmakers or
OTHERS if their edicts or acts represent official policy  there are policy-makers who are not
actually the body’s officers; this broadens the first pass—still focused on acts pursuant to an official
policy but suggesting that those who make the official policy aren’t just body’s officers but others
whose edits or acts make official policy
 Two theories
 (1) Unconstitutional policy put into effect and constitutional violation implements or executes that policy
 (2) If some policy causes a constitutional tort
 Either way, no respondeat superior; it must be something the municipality is responsible for that
CAUSES the harm; there are policies favoring RS but the Court doesn’t believe that’s what Congress
intended
 OFFICIAL POLICY & CAUSATION: the Court said this case is definitely pursuant to official policy; it seems
to be explaining the idea of the causal link by saying that the requisite causal link is the policy being the moving
force behind the violation  problem with this is there’s not tort concept of “moving force”; it’s a bizarre
concept of what the causal link is & never really defines it
Court said municipals don’t get absolute immunity but reserves the question of whether municipalities may
have SOME immunity
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
Development since this—strands of analysis/operate theories of municipal liability harkening back to Monell
 Pembauer & Praprotnik:
 Canton:
Immunities in Suits Against Municipalities
 Introduction: Owen held that traditional immunities do not apply in suits against municipalities and Brandon
applied this rule to official capacity suits against individuals
 Owen v. City of Independence (U.S. 1980)
 City manager appointed Owen as chief of police for an indefinite term; there was a dispute over the police
property room, where guns & drugs got out; the City Council investigated it; the Councilman announced it
was the fault of Owen; the City Manager discharged him the next day; Owen wasn’t given notice for his
discharge or a hearing; he sued the city, the city manager, and the city council alleging a violation of DP
for his discharge and a SDP violation (stigma)
 ***Here, there’s a city body firing the police chief & he sues arguing that this firing without statement of
reasons & hearing & opportunity to clear his name violates PDP  this is clear after Roth (but it hadn’t
been decided after this); sues city officials in their official capacity
 The THRUST of the claim is against the city
 The lower court held that
 The Ds were proper here and the suit was proper
 There was an official policy/custom responsible for this; the policy was: the city council making
the decision to fire the police chief (they’re the body’s officers)—the decision is promulgated
by the body’s officers & the termination is implementing the decision by the body’s officers 
the difference between this and Monell is a ONE-SHOT DEAL but is still implementing a decision
from the body’s officers
 This is enough to constitute policy under Monell: “official conduct of the city’s lawmakers …
such conduct amounted to official policy causing the constitutional violation”  it doesn’t have
to be a pre-existing written policy
 The respondents had immunity because the law wasn’t clear @ the time of the act (individuals) and
municipality having immunity based on its officers (“We extend the limited immunity … to the
individual Ds to cover the city as well because its officials acted in GF”)
 The Court says NO QUALIFIED IMMUNITY FOR MUNICIPALITIES (making them very
attractive defendants)
 History doesn’t support immunity for municipalities (some think this analysis is dead wrong)
 Policy (see B.)
 B. RULES [policy supports holding municipality liable]
 Tower reasoning of not extending immunities to municipalities: legislative purpose and public policy 
 Plaintiffs would be left remediless (because the individual Ds are immune); damages remedy is a vital
component for vindicating constitutional violations (the Court doesn’t want hurt people to go
without redress); AND
 It would be a deterrent on the municipality (this will motivate policy-makers to take action to
prevent constitutional harm by having unconstitutional policies that subject them to liability);
COURT is recognizing the danger of claims falling through the cracks and liability will prevent those
who make the systems to make sure those systems don’t lead to harm
 There aren’t overriding public policy considerations here for granting immunity—it’s FAIR  allocating
to taxpayers who receive the benefit of municipal governance than to force the victim to bear the cost
 (1) injustice of subjecting the D to liability
 Damages award coming from taxpayers
 (2) whether threat of liability would deter willingness to execute the office with the decisiveness and
judgment required by the public good
 Wouldn’t be a deterrent because it isn’t personal liability
 Proper allocation of costs with municipal liability between the 3 players involved
 Victim: compensated for injury
 Officer: so long as acting in good faith will be shielded from personal liability (pre-Harlow, so now if
he’s not qualifiedly immune)
 Public: forced to bear the costs all together in certain situations
 Brandon v. Holt (U.S. 1985) [ties everything together with the PLEADING ISSUE]
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 MPD charged with assault; he was known to be extremely violent; he beat some teenagers up after finding
them making out; P sought damages from director of the police department (because they employed him
knowing that he was violent); lower court thought he was entitled to GF immunity, stating that Owen didn’t
apply because it was a suit against an individual; the Supreme Court reversed, though the P didn’t allege they
were suing the head of the police department in his official capacity, they WERE (thus it is treated as against
the municipality)
 They filed suit pre-Monell so sued police chief in his official capacity; question is whether police chief can
claim immunity (because he wasn’t being sued as an individual)
 The Court concludes that the official-capacity suit is a suit against the entity (the city of Memphis); if
there’s an official-capacity suit, it means that entity-liability rules applies (thus, here, municipal liability
applies and there’s no immunity BUT in order for the plaintiff to win here, the plaintiff has to show
Monell with policy/custom)
 If you’re trying to figure out how to get the municipality, the officer isn’t implementing or executing
a policy promulgated by the body’s officers—no one said beat up teenagers if they make out & there’s
no custom of violence of this nature
 The theory would be the SECOND theory  that a policy of some nature, failure to train/discipline,
has caused the constitutional tort; it is the proximate cause of  if the higher-ups had trained or
disciplined the cop then he wouldn’t have done this so a policy of non-training is what the municipality
DOES that causes the tort; [you can try the custom (1) prong idea, but the Court isn’t really keen on
that]; ***standard way of looking @ this: there’s a policy of inaction (think in tort proximate cause
analysis)
 ^^^the Supreme Court doesn’t decide this point
 RULES
 A judgment against a public servant in his official capacity imposes liability on the entity that he
represents provided the public entity received notice and an opportunity to respond
 Distinguishing between suits against government officials in their individual capacities and those in which
only the liability of the municipality itself is at issue
 Notes & Questions
 Key distinction: official-capacity and individual-capacity (important re: immunities)
 No need to sue municipal officials in their official capacities today because of Monell; it’s just another way of
suing the municipality (don’t sue A.C. Wharton, just sue the City of Memphis)  some people do still bring
official-capacity suits either because they don’t understand the law or because they think it will help
their cause to personalize the defendant
 Daskalea v. DC: courts may dismiss official-capacity claims as duplicative if the plaintiff sues both the
municipality and the official in an official-capacity suit
 Brandon didn’t decide the claim on the merits
Municipal Liability for Policymakers’ Unconstitutional Decisions [first strand of municipal liability from Monell]
 Generally: in Monell, liability for official policy; (1) implements or executes official policy promulgated by officers
or others when acts or edits represent policy (Owen & Fact Concerts; Pembaur and Praprotnik); (2) action pursuant
to municipal policy of some nature causes a constitutional tort (Canton)
 In Owen, there’s an official policy from the body’s officers, but it’s just a one-shot deal, not written to apply
in the future; and similar to Owen,
 City of Newport v. Fact Concerts: the council cancelled the contract for a concert because it was a rock band
not a jazz band; the band with a contract sued saying this violated the band’s First Amendment rights; can the
city be liable? YES—this is in the Owen mold; it’s a decision made by the body’s officers; ***another reason
it’s important: it decides that municipalities are NOT LIABLE FOR PUNITIVE DAMAGES
 Pembauer looks at the ACTS/EDICTS of persons who are policymakers but NOT officers
 Pembaur v. City of Cincinnati (U.S. 1986) [whether a SINGLE DECISION by a municipal policymaker can
satisfy the requirement that it is taken pursuant to official municipal policy]
 Physician being investigated for fraudulently accepting payments from state welfare agencies for services not
actually rendered; there were subpoenas and capiases to get his employees; the police officers went to his work
and they wouldn’t open the door; the deputy sheriffs called the assistant prosecutor for advice on what to do;
he contacted the county prosecutor who told them to “go in and get them”; they forced open the door and got
some people (the wrong people); Pembauer sued the city, the county, the police chief and sheriff, members
of the county commission, assistant prosecutor and police officers for a Fourth & Fourteenth
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Amendment violation  this instance wasn’t pursuant to a written policy and had never happened
before
 The city is responsible for the prosecutor’s order of “go in and get them” (the policymaker gave an
unconstitutional order) and the decision to break in implemented that policy of the person whose edits/acts
created policy (the prosecutor)
 They didn’t sue prosecutor in individual capacity because they thought he was absolutely immune but
this was investigative action so he wouldn’t have absolute prosecutorial immunity
 Crucial to get municipal liability here because the case didn’t come down until after the break-in; the
individuals would have had immunity (?)
 ANALYSIS
 The point of Monell is to determine responsibility and the city should only be liable for acts for which it is
responsible; it is responsible for what its policymakers do; not only the body’s officers make policy but
there are others whose edits or acts can represent policy; policy can be a one-shot deal or something
repeated
 Who is a policymaker? [Part II is a PLURALITY] Municipal liability attaches where the decision-maker
possesses final authority to establish policy (looking @ finality; determining whether the person has
final authority is a question of STATE LAW—where does state law, including municipal law, vest final
decision-making power?)
 Holds municipal liability attaches were: A DELIBERATE CHOICE TO FOLLOW A COURSE OF
ACTION MADE FROM among various ALTERNATIVES MADE BY the OFFICIALS responsible
for establishing final policy with respect to the subject matter in question
 BUT what about delegation? See fn. 12 hypo: ***
 RULES
 It must be pursuant to municipal policy so that it’s not respondeat superior liability; BUT it can be imposed
for a single decision by municipal policy-makers under appropriate circumstances (i.e. a final resolution
by a legislative body or other officials whose acts or edicts can represent official policy)
 Municipal liability attaches only where the decision-maker possesses FINAL authority to establish
municipal policy with respect to the action ordered  he/she must be responsible for that decision, as
well, in order to avoid respondeat superior liability
 ***deputy sheriffs just received instructions from the county prosecutor, so the PROSECUTOR is
liable (according to state law for his position, etc.)
 Stevens: thinks it should just be a suit against the county
 O’Connor: thinks the case was over-decided
 Powell (CJ & Rehnquist) DISSENT: this wasn’t a policy; this is respondeat superior liability; inquiry should
focus on the NATURE (general applicability) of the decision and the PROCESS by which it was made (formal
procedures, deliberation)
SUMMARY
 Municipality is liable for single act attributed to official policy that an official policymaker makes—this
is the case regardless of whether the policy applies across-the-board (Monell) or a one-shot deal (Owen & Fact
Concerts)
 Pembauer: issue of policymaking authority—it didn’t rest solely in the legislative body but rather that there
were “others” who edits/acts could represent municipal policy; in this case, the Court held that the county
prosecutor IS a policymaker with regard to question of HOW to execute a capias  the municipality can be
liable when the constitutional violation implements or executes the policy promulgated by the decision of a
person whose acts/edits represent policy (i.e. a “policymaker”); since the prosecutor is the policymaker, the
city can be liable for the unconstitutional action that he ordered—breaking into Pembauer’s office
 Application of the Owen/Fact Concert liability when it’s the individual policymaker taking the action as
opposed to the city council
 ISSUE: WHO’S A POLICYMAKER? WHO HAS POLICYMAKING AUTHORITY?
 Some general agreement in Pembauer that what one is looking for is:
 Look @ state law (whether it vests policymaking authority)
 Whether the policymaking authority is final authority in the area at issue (according to state law, i.e.
Pembauer, whether under Ohio law and Hamilton County law, the prosecutor has final authority to
make law enforcement decisions; the majority concludes that the prosecutor does fit this
definition)
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 Footnote 12: in the text, “authority to make municipal policy may be granted by LEGISLATIVE enactment
or may be DELEGATED by an official who possess such authority”
 Delegation: the case suggest that in these cases, the delegatee becomes the policymaker—the problem
is the fact that someone has authority to make decisions doesn’t mean they’ve been delegated the
power; it ultimately hinges on who has the final say
 Footnote 12 hypo: a sheriff may have discretion to hire/fire employees but is not establishing
employment policy (it doesn’t mean the sheriff is the policymaker—whether he is ultimately depends
on whether he’s the one who has the final say over employment policy)
 If there’s no one who can review his decisions, then he’s the policymaker
 But if the Civil Service Board or some other agency is the one that actually determines employment
policy – that doesn’t mean the sheriff is making policy because the decision can be appealed or
the commission promulgates a rule that goes against what he’s done (he can violate the rule with
his discretion but he’s not making policy)
 Problem: when determining whether the one with discretion to act is the one with final authority
or whether someone else makes policy even if the higher-ups NEVER GET INVOLVED (i.e.
sheriff firing someone for an unconstitutional reason; doesn’t mean he’s making policy even if no
appeal or appeal rejected; he’s NOT the one who has the final say)
City of St. Louis v. Praprotnik (U.S. 1988) [when the person with de facto authority is not the person with legal
authority; PLURALITY DECISION]; no one disputes the result in this case but it’s controversial in regard to
the dicta
 P, St. Louis employee, sued for retaliatory actions for a suspension from the Commission; he appeals a decision
to the Civil Service Commission—transferred to a lower-level job and then laid off, all in retaliation as he
claims; sued, claiming that his lay-off was pursuant to an unconstitutional city policy  he claims that the city
is liable because the officials who orchestrated the transfer & termination had policymaking authority
according to the P; everyone else agrees that the 2 Ds are NOT policymakers because, while they have the
discretion to take employment action (the power to do this), they don’t make the FINAL POLICY; the plurality
explains that its review of state law leads to the conclusion that the Civil Service Commission & the aldermen
have policymaking authority; they then say the 2 Ds are like the hypothetical sheriff in FN. 12 and that they
have the power/discretion to act, but they’re not the ones who state law gives policymaking authority
 ***Concurrence agrees ^ with the FN. 12 analysis—they are just like the sheriff in FN. 12 & aren’t the
ones who actually make policy
 THE FIGHT: the question of delegation—when the municipality can be liable because the policymaker has
delegated authority; the plurality takes RIGID APPROACH in determining who makes polic
 Pp. 348–49: policymaking responsibility can be shared & special difficulties can arise when it’s contended
that a municipal policymaker has delegated his authority to another official because if the mere exercise
of delegated authority lead to liability, we’d have respondeat superior BUT on the other hand if
policymakers could just delegate and be insulated from liability, it wouldn’t fulfill the policy
 P. 349: plurality suggests different concepts/doctrines that could avoid the problems that come with
delegation—one way out of the mess:
 Custom of delegation, Adickes, theory can avoid a problem of a municipality insulating itself from
liability  must show a HISTORY and widespread practice of delegation to insulate from liability for
unconstitutional acts and no one stepping in to respond, arguing that taking action of unconstitutional
nature can amount to municipal custom
 Ex. every time someone appealed a decision they got transferred to a terrible job, there would be
a good argument that there was a custom/usage of punishing people for complaining by
transferring them
 What this is NOT saying: the fact that there is a customary delegation MEANS that the delegatee
is the policymaker  if the sheriff repeatedly took unconstitutional action, that would be the
custom; but this isn’t saying the customary practice of allowing someone else to make decisions
becomes a delegation(?)
 Final policy: if there’s a law on the books that says you can’t do x and the person with authority
deviates and gets away with it, it doesn’t make the deviation policy UNLESS it happens all the time
so that it’s a custom; if a subordinates decision is subject to review by policymakers (so long as the
review is out there whether exercised or not), the person with the power to review still are the
policymakers even if they don’t look into or do anything; if they APPROVE A SUBORDINATE’S
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DECISION AND THE REASON BEHIND IT OR RATIFY IT, their decision would be that of the
subordinates
 Narrow theory: focus on the actual designated policymakers; not looking at the practicalities of
the decision-making process
 ***Unconstitutional custom: pattern of instances of constitutional violations where the policymakers
are ignoring it (a specific constitutional violation)—this would be ratification most likely
 Theory of delegation is very narrow—you can say the policymaker is to blame in a sense—and can in a
lot of ways find they aren’t making policy
 RULES
 Whether someone is a policy-making official is determined by the JUDGE with reference to state law
(custom applies, too)
 Ratification of a subordinate’s decision can constitute a final decision rendering the person ratifying liable
 FINALITY
 The appointing authorities, pursuant to their policy, didn’t make the final decision BUT the
Commission did in its review
 Resembles Pembaur, n. 12: “If city employment policy was set by the mayor and aldermen and by the
civil service commission only those bodies’ decisions would provide a basis for city liability. This
would be true even if they left the appointing authorities discretion to hire & fire employees and they
exercised that discretion in an unconstitutional manner.”  Court here didn’t think that the failure
to investigate, though discretionary, was pursuant to a custom
 Brennan concurrence: plurality leaves a GAPING HOLE: it basically is an instruction to higher-ups to just
say do your job and don’t bother me; the higher-up still has the authority to intervene but as a practical matter
isn’t exercising that authority—he could intervene but he doesn’t really want to; city wouldn’t be liable unless
the reviewing officials affirmatively approve both the decision and the basis for it
 Custom & usage won’t help: it doesn’t deal with cases where the policymaker just says do your job and
don’t bother me, so “a city practice of delegating final policymaking authority to a subordinate or midlevel official would not be unconstitutional in and of itself and an isolated unconstitutional act by an official
entrusted with such authority would obviously not amount to a municipal custom or usage. Under
Pembauer … such an isolated act should give rise to municipal liability. Yet a case such as this would …”
 Reviewing officials may NEVER invoke their plenary oversight authority –the decision is in effect the
final pronouncement but NO LIABILITY UNDER THE PLURALITY’S RULE
 Example: Assume the Dean decides that he wants to get rid of people for saying they won’t give money
to the university; he tells Romantz he’d think it was nice to find a way to get rid of the troublemakers and
Dean sits back and doesn’t care what happens—he hasn’t given an unconstitutional order and isn’t
intervening and doesn’t know what’s going on  problem of Dean suggesting something could happen,
could stop it but doesn’t it
 ***A lot of circuits say rubber stamping is NOT enough to amount to delegation
 Dissent: problem with the formulation of who has the authority to make a final decision—thinks in this case,
the advisors de facto did
Questions on Pembauer & Praprotnik
 Jett v. Dallas: question of who’s a policymaker is a question of law to be resolved by the judge before it
goes to the jury, reviewing state law and custom with the force of law; must identify those who speak with
final policymaking authority—once they are identified, the jury decides whether that decision caused the
deprivation of rights—jury doesn’t decide this person really is the policymaker, but the judge must decide
with reference to positive law (***commentators read this as a ratification of the plurality’s approach by not
looking @ who as a practical matter is making policy—Jett says NO! This isn’t a jury question but a legal
question)
 Zinermon/Parratt: BOTH inquiries are looking for who is the one who makes policy; question of avoiding
Parratt under cases like Zimmerman & Zinermon, and it was the question of who is the State and who makes
policy because an act of official policy was not random & unauthorized under Parratt
 Problem 9 (p. 357): Pastal begins construction on residential project; cracks appear and the chief building
official issues a stop-work order; under the code, the city official has the power to impose and lift stopwork orders; months later, the repairs are complete and the chief refuses to lift the stop-work order and
Pastal appeals it to the board of appeals; Pastal sues the city and chief building official in state court
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First issue: is the city a proper D here? City can be liable if the dude is the final decision maker and
the dude is acting in his official capacity; there’s no written policy about issuing work orders to stop
construction (so not like Monell and no decision by legislative body, so not Owen) but a single decision
by an individual—we know that the city will be liable if the individual is a policymaker even if it’s a
single decision
 Is Chief a policymaker: do his acts/edicts represent policy? NO because this decision can be appealed
to the board of appeals; not final authority under state law
 End of municipal liability inquiry BUT before even getting there: could be a DP claim if property
interest in the license—BUT this could be an emergency situation and there’s post-deprivation process
(Parratt)—in order to have the claim under § 1983, the deprivation has to be attributable to official
policy and not be random & unauthorized—chief will say if he did violate the Constitution it was
random & unauthorized because he’s not the State (not the one who sets official policy) and no facts
that suggest Zimmerman; this is basically Hudson v. Palmer—random & unauthorized deprivation;
the ISSUE is does our conclusion that we reached before, that chief is not a policymaker, necessarily
mean that his action is random & unauthorized and if he were the policymaker would it necessarily
mean the action isn’t random & unauthorized
 Is a policymaker for 1983 determinative who is the State for Parratt purposes & vice versa
 a # of lower courts have said that if a person makes official policy and is then the
policymaker for the city then by definition that person is the State for Parratt purposes (ex.
Note 3, p. 356: court clerk in state judicial district who allegedly repeatedly charged more fees
than were authorized under law; P files official-capacity suit, a municipal liability suit, municipal
liability NOT individual immunity, for liability, it’s a PDP claim so need to get around Parratt
and find municipal liability—the circuit said the claim could go forward—the clerk represented
the city on fee issues (final say), the decisions were the official policy of fee collection and
weren’t random & unauthorized; because it was official policy, he’s also the policymaker so
the claim can go forward against a municipality on the Pembauer/Praprotnik theory)
 A # of circuits use this equation—if someone’s acts are the acts of the State for Parratt, the person
is the policymaker and you can then impose municipal liability
 BUT you can have someone who’s not a policymaker but still the State under a broader
theory of Zinermon  not a perfect equation but does match up
 ***MUST be the final decision within that person’s sphere of authority (i.e. when someone who’s a
policymaker goes rogue)
 Note 5: sheriff raping & murdering a suspect—courts are split, some saying this isn’t his authority but some
say it’s during investigation it is law enforcement & the fact that it’s total rogueness it shouldn’t shield city
from liability (minority view); mayor molesting children—this isn’t his area of authority
 McMillian v. Monroe County (U.S. 1997): crucial that municipal policymaker be making MUNICIPAL
POLICY & NOT STATE POLICY; everyone agreed that the AL sheriff who took the unconstitutional action
was a policymaker but they disagreed on whether he made municipal policy or state policy—whether AL
sheriffs represent the state or the county in law enforcement; this matters because if he’s making state policy
then it won’t lead to state liability & the 11th Amendment and the state isn’t a person; if he’s a municipal
policymaker, then the municipality is a proper D; the Court concluded that the sheriffs are state
policymakers based on a review of the AL Constitution, AL law, and other AL policies; the UPSHOT:
sheriffs due to the intricacies report to the state on law enforcement; DISSENT: they obviously represent the
county and this is unlikely to be a decision that matters because it’s so based on AL history (not a general rule)
 Issue comes up a lot with SHERIFFS & DISTRICT ATTORNEYS: as a general rule, circuits end up
finding they BOTH make county policy, not state policy
 Van de Kamp: prosecutorial immunity case with suit against the prosecutor’s office for failure to have
policies of not disclosing the identity of informants; the court said it was a prosecutorial decision—dude
was individually immune—but this didn’t preclude municipal liability if there was an
unconstitutional municipal policy: argued that dude made unconstitutional policy of not disclosing the
identity of informants  the dispute: whether this was POLICY (it was policymaking) for CA or for the
County; the 9th Circuit found that he made county/city policy
Monell’s Policy or Custom Requirement: Municipal Liability for Facially Constitutional Policies
 Second inquiry under Monell: the policy isn’t unconstitutional, rather the claim is that a municipal policy that
is in itself constitutional caused, in the tort sense, a constitutional violation  this is the issue that came up in
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Brandon v. Holt (argument that Memphis was liable because the city knew/should’ve known that the dude was
violating all sorts of constitutional rights and there was a policy of not training/disciplining); rule: court can’t
infer unconstitutional policy from one unconstitutional act pursuant to a constitutional policy  how can
the city be liable? Must be some policy in the background that show the municipality is in essence at fault (can’t
infer there’s an unconstitutional policy just because someone commits a constitutional violation)
 First inquiry: unconstitutional policies generally
 ANOTHER WAY: distinction for municipal liability for unconstitutional policies and constitutional policies
that nonetheless cause constitutional harm
 Unconstitutional policy: the Court was dealing with liability for facially unconstitutional policies
(including custom w/ the force of law), when the actor carried them out, mandated a constitutional violation
 Lawmakers—across-the-board (Monell—lay-offs were mandated at 5th month of pregnancy)
 Lawmakers—one-shot deal (Owen—mandating an unconstitutional order, Fact Concerts)
 Indirect policymaking (Pembauer, Praprotnik)
 Constitutional policy
 Established pol.-deliberate indifference (Canton): this is different because it’s dealing with a facially
constitutional policy; nothing facially unconstitutional about saying that shift commanders can decide
whether to get medical care or nothing facially unconstitutional about not training; nothing is
mandating a constitutional violation; the claim: the policy makes it likely that there will be a
constitutional violation and that a constitutional violation did indeed occur; city can be liable if the
policy CAUSES THE VIOLATION AND IF THE POLICY MANIFESTS DELIBERATE
INDIFFERENCE
Development of the Policy or Custom Inquiry
 Monell: city can be liable if policies/customs caused a constitutional violation—issues: what causal link and
what sorts of policies/customs
 Polk Cnty.: policy of withdrawal from frivolous cases didn’t violate the Constitution, so it couldn’t be the basis
for liability
 Lower courts’ approaches
 An unconstitutional policy that mandated violation of someone’s rights
 Any municipal policy, even a blameless one, if caused a deprivation of rights
 Blameworthy policies, those showing deliberate indifference on the part of the defendant, can give rise to
liability (now the Supreme Court approach)
 City of Okla. v. Tuttle (U.S. 1985): the district court gave a jury instruction, allowing a finding of liability for
a single incident from inadequate training; a majority of the Court found the jury instructions inadequate
because it was liability on a city for a single act by a non-policymaking employee
 Need independent proof of a policy and a causal link to the violation
 Rehnquist (plurality): no wrong was ascribed to the municipal decisionmakers; it needs to be more of a
conscious choice and they weren’t on notice of the potential constitutional violations
 Brennan, Marshall & Blackmun: improper because it allowed plaintiff to proceed on RS liability, a policy
without showing any actions taken by the city
 Brennan: city should be able to be held liable for a single incident
 City of Springfield v. Kibbe (U.S. 1987): car chase, inadequate training of officers; the majority rejected cert
but the dissent offered reasoning for their dissent—the city’s conduct must be the “moving force” in bringing
about the constitutional violation & where the inadequacy of training amounts to deliberate indifference or
reckless disregard
 Plurality argued that there would need to not be just a showing of municipal policy but some degree
of fault underlying it; there’s a need to show a close causal nexus between the municipality conduct
and the harm—elevated showing of fault
 Summary: in order to hold the municipality liable for a constitutional violation that a non-policymaker
commits, there needs to be some showing of a policy and a showing of some sort of fault
City of Canton v. Harris (U.S. 1989): Court held that in some circumstances the city can be held liable for failure
to train its municipal employees; here, a woman was brought to the station and didn’t receive medical attention
after evidence that she needed it; there was a municipal regulation that they were supposed to determine whether
she needed medical attention & there was no special training involved (this was the alleged cause of her injuries—
the city policy gave the shift commander discretion over whether to get medical care but didn’t train regarding
symptoms; municipal policy of lack of training caused the SDP violation of not getting medical care for
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someone who needs it); she sued under 14th Amendment for a SDP violation for failure to receive medical attention
while in police custody; the Court vacated & remanded
 Municipalities can be liable for constitutional harms that a facially constitutional policy causes  here,
we have a facially constitutional policy (nothing unconstitutional about failing to train someone in recognizing
symptoms of emotional distress) but the city could still be liable if the facially unconstitutional policy caused
the constitutional violation
 Direct causal link
 Rejecting the idea that the policy ITSELF has to be unconstitutional
 Also, a city would NOT be liable merely because one of its employees happened to apply the policy in an
unconstitutional manner (RS liability)
 The inadequacy of police training may serve as the basis for § 1983 liability only where the failure
to train amounts to deliberate indifference to the rights of persons with whom the police come into
contact
 DI standard is NOT the same as the constitutional-violation DI standard
 How do you show DI? Footnote 10 (see below)
 Reasons for requiring DI: drawing on Kibbe—it’s necessary in order to show causation; and an idea
expressed in Pembauer, that a policy is a conscious choice—the municipality is only going to be liable
if it made a conscious choice to train inadequately
 The policy/custom must be the moving force behind the constitutional violation
 Need to also show causation; “the deficiency of training must be closely related to the injury” …
“that it caused the …”; could this have been avoided if they were trained
 Municipal liability under § 1983 attaches only were a deliberate choice to follow a course of action is made
from among various alternatives by city policymakers
 ***HERE: in light of the duties assigned to specific officers or employees the need for more or different
training is so obvious, and the inadequacy is so likely to result in the violation of constitutional rights, that
the policymakers of the city can reasonably be said to have been deliberately indifferent to the need
 It must be CLOSELY RELATED to the ultimate injury
 HOW TO SHOW DI: 2 modes of showing DI
 Clear constitutional duty implicated in a recurrent situation: there are some jobs the city knows its
officers will encounter and the city knows that officers are going to be faced with choices of
constitutional dimension in doing those jobs; if the city doesn’t train people about the constitutional
limits, it’s DI; ex. giving police firearms to arrest felons; the city knows to a moral certainty (footnote
10) that the police will have to made a choice as to whether to use force; if the city doesn’t train police
on the constitutional limits of the force, it’s deliberately indifference (making a conscious choice to
risk/cause the constitutional violations that could result)
 Policymakers were aware of and acquiesced in a pattern of constitutional violations involving the
exercise of police discretion: if the policymakers then sit by and do nothing, they are deliberately
indifferent to the continuance of this constitutional violation; ex. officers repeatedly engage in a certain
sort of unconstitutional conduct, the city is on notice they need to do something to stop the problem,
and if it doesn’t it’s deliberately indifferent
 This is objective—requiring actual/constructive knowledge  OBJECTIVE INQUIRY INTO
WHETHER THE POLICE OFFICIALS SHOULD KNOW OF THE NEED TO TRAIN OR
SHOULD KNOW OF THE PATTERN OF VIOLATIONS; not enough to show lack of training
but need to show CAUSATION; a close causal link between the policy and the harm
 FN 11: remand for the question of whether it was obvious that the training was insufficient to administer the
written policy; only thing the DISSENT talks about; everyone agrees on the OTHER PART
 O’Connor (Scalia & Kennedy) dissent in part and concurrence in part:
 Agrees that where municipal policymakers are confronted with an obvious need to train city personnel to
avoid the violation of constitutional rights and they are deliberately indifferent to that need, the lack of
necessary training may be appropriately considered a city “policy” subjecting the city itself to liability
under Monell; causation must be MORE than simply “but for” and the cause of the injury at issue
 BUT: there’s NO evidence of deliberate indifference here  this was a single incident, so the city
wasn’t on actual or constructive notice that the particular omission was substantially certain to result in the
violation of the constitutional rights of their citizens
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 ***DEBATE: over whether Harris can meet this standard; majority says remand and dissent as to this objects
to this idea  there’s no obvious need to train about the ability to recognize symptoms of emotional distress
and there’s no showing of a pattern of violations
Notes & Questions on Harris
 Pleading: doesn’t have to be specific factual allegations (Leatherman) but some courts hold that conclusory
allegations of municipal policy are not sufficient
Municipal Liability after Canton
 Farmer v. Brennan (U.S. 1994): 8th Amendment case with transsexual put in male gen pop; the Supreme Court
held that there wasn’t an 8th Amendment violation because the requisite state of mind wasn’t met (deliberate
indifference—in the 8th Amendment and this was a subjective inquiry); the DI standard from Canton is
DIFFERENT: it’s objective, not subjective & not the same test as that for the 8th Amendment; the Canton
test is just the threshold for holding a city responsible for constitutional torts committed by its inadequately
trained agents
 Farmer in reaching this conclusion distinguished Canton, which is objective deliberate indifference 
different standards make sense because the 8th Amendment inquiry is looking at what is necessary to have
punishment (some idea of malice, which is subjective) but the municipal liability inquiry is more a gloss
on the idea of causation in 1983; the Court notes it would be hard to consider the subjective state of
mind of an entity
 Injunctive relief: Monell policy or custom requirement applies to claims for injunctive relief (L.A. Cnty. v.
Humphries, U.S. 2010)
 Monell applies no matter what type of relief
 Bryan Cnty. v. Brown (U.S. 1997): woman sued county and reserve deputy for hiring a dude who had a criminal
history; he pulled her over & used excessive force (4th Amendment); her argument is that the municipality is
liable because the sheriff hired the deputy and he’s the sort of person who shouldn’t have been a cop (lengthy
arrest record) and the city overlooked this; the Court rejected her claim because she didn’t show that the
“policy” was the moving force behind the use of excessive force; furthermore, a showing of a single incident
does not establish deliberate indifference  it must be the risk of violation of the particular constitutional
or statutory right following the decision
 How does this fit into municipal liability law? The sheriff is a policymaker BUT the hiring itself wasn’t
unconstitutional; no allegation that the sheriff told the deputy to violate the Constitution; the theory is
that the facially constitutional decision caused the constitutional harm  this is different from Canton: no
showing that as a general matter, that training was inadequate; there’s not even an allegation of a general
failure to screen  no established policy  this is CHALLENGING A ONE-SHOT DEAL AND
CANTON CANNOT BE APPLIED
 Issue: single constitutional decision by a policymaker, could the municipality be liable if the decision
shows deliberate indifference? Can one have Canton-type liability when the challenge is to a single
decision by a policymaker that manifests deliberate indifference and caused a constitutional violation; this
is a melding of Canton and Pembauer
 The majority appears to accept that theory—Souter in his dissent says the majority does agree that
this is a permissible theory of municipal liability; the majority assumes that this is a permissible
theory; the majority implicitly accepts this mushed-together theory; despite that it says that Brown can’t
recover here because there’s not a strong enough link between the policymaker’s decision and the
constitutional violation
 On the one hand the majority is saying there’s not really enough for DI because there’s not enough
here to put the sheriff on notice that the nephew would use excessive force because none of the crimes
really involved excessive force; it’s not as if he had a whole history of armed assaults
 Lack of causation, there’s not enough to show the decision to hire him caused the harm
 Underlying this: there needs to be even TIGHTER CONNECTION BETWEEN THE ACTION AND
THE HARM IN DEALING WITH THE ONE-SHOT DEAL CASES BECAUSE IN THESE CASES
WE DON’T EVEN HAVE A PATTERN TO LOOK AT; absence of a pattern, an established policy,
makes it even harder to show
 But there’s still this second theory (melding of Pembauer and Canton) is potentially important
although VERY hard to meet
 Ex. history of arrests for use of violence by the sheriff
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 Connick v. Thompson (U.S. 2011): the Supreme Court reversed a decision imposing municipal liability for
inadequate training of district attorneys in introducing exculpatory evidence (Brady violation) after a
dude went to jail for 18 years for a crime he didn’t commit; the Court held that this single incident was NOT
enough for DI—they weren’t on actual or constructive notice; proving DI generally requires showing a pattern
of constitutional violations by untrained employees
 Suit against the prosecutor? Prosecutorial immunity; Van de Kamp—can’t get around the immunity by
suing the head prosecutor for not properly supervising because it’s still a prosecutorial decision
 Suit against the city? Problem here is a lack of training on how to comply with Brady; need to show
under Canton: lack of training that manifests DI  2 ways—
 (1) obvious, not here because lawyers know the law! Everyone knows about Brady; there’s CLE &
ethical obligations; dissent takes issue with this—there should still be an obligation to ensure attorneys
know about Brady (also the case is such a nuanced idea, not a clear rule)
 (2) pattern, no patter here, this were 4 violations over 10 years – this isn’t a PATTERN
 The case is just a disagreement over Canton, which deals with a deeper policy debate  the majority gets
nervous about micro-managing city government; the dissent is a lot less worried about this sort of micromanagement and inherent federalism issues
Problems on Municipal Liability
 Davis v. Mason County: rash of incidents over a 1-year period where individuals were arrested for traffic
violations, stopped & severely beaten, and then charges are dropped; the victims sued the county and
individual police officers, alleging that the officers violated their 4th A rights and the county was liable because
of inadequate training of its officers evidenced by DI to citizens’ constitutional rights (they didn’t send them
to a training academy but did field training only—not really followed); under WA state law, the sheriff is the
chief executive officer but the WA Civil Service Commission has power to make rules/regulations about
administrative stuff—implicit in it is a legislative intent to circumscribe county sheriff’s previously
unbridled discretion in personnel matters
 How to argue this meets Canton? Pattern of violations that were unaddressed = deliberate indifference
 But they will argue the Civil Service Commission is the policy  this would be state policy but you can’t
sue the state
 SOMEONE needs to be deliberately indifferent and we assume that needs to be the policymaker  the
policymaker who is relevant here is the civil service commission which is a state policymaker, so the
county can’t be liable for the state’s deliberate indifference under Monroe County; this comes down to a
fight over whether it’s a personnel policy … training is either a personnel policy or a lawenforcement decision to put these untrained people on the streets with guns
 Issues: what policy are we dealing with? Dispute about state law—the role of the csc and the sheriff,
etc.
 The court split 2-1 finding that this was something within the sheriff’s bailiwick; it was municipal policy
and people here can get compensation; the dissent said this was more personnel and would be under the
csc which would preclude municipal liability
 Bigger issue: whether you even need to show an identified policymaker  if this is all OBJECTIVE,
WHY DO YOU EVEN NEED TO POINT TO AN INDIVIDUAL? Courts are just not clear on this;
there are decisions like this that look to policymakers but there’s no definitive law; K would argue you
don’t need to identify it because this is objective
 Horton v. Flenory: D, police sergeant, went to night club and didn’t stop an interrogation that later lead to the
victim, P’s, death; D followed a hands-off policy re: private club events; then they later didn’t investigate
pursuant to the police policy
 How do the relatives get compensation? Prima facie case: need to show someone acting under color &
constitutional violation 
 Looking @ Flenory and say he’s acting under color of state law; theory for acting under state law?
There’s a meeting of the minds, conspiracy, with the policy to not interfere (hard to show a meeting
of the minds); delegation the state’s law enforcement job and IS A STATE ACTOR under the
public function approach; state violation of 4th Amendment so it’s a good case
 ASSUME THAT DOESN’T WORK: you can’t show conspiracy and that you won’t succeed under
public function
 Look just at Dlubak: we know he’s a state actor; he was involved here by coming & going and telling
the dude he has to stay; DeShaney  no obligation to intervene; this is state inaction – someone is
seeking to hold the state liable for an injury caused by a non-state actor
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But is it just state inaction; a failure to rescue? TO GET AROUND THIS: told victim not to
leave  other similar restraint (preventing dude from leaving and trying to protect himself) or put
him in a worse position (arguably when the cop shows up and leaves, this emboldens Flenory to
do what he wants)
 Third Circuit suggested either theory could work
 To get municipal liability after you get your prima facie case  won’t get anywhere with
Pembauer—no policy about beating up suspected thieves in clubs
 You’d go under Canton: identify a policy that is causally linked to the violation & requires
showing that policy manifests deliberate indifference (policy = hands-off policy); how to show
deliberate indifference to the rights of people like Powdrell
 Did it cause the harm?
 The court said this falls under Canton—the city is keeping this policy of not caring about what
happens in private clubs; would this work today? Probably wouldn’t be liability here for the city
because there’s no causal link; there’s no DI because not a pattern and there’s no obvious link
between not getting involved in private clubs and constitutional violations
 Grandstaff: policeman tried to stop dude, thinking he was a fugitive; they end up on the land of a family, the
dad comes out and assists the officers; he goes back home and comes back a 2nd time; the cops shoot him; he
sued the city & the police chief (their sole policymaker); nothing happened after this incident
 Budgetary constraints
 Private entities: most courts use Monell policy or custom to determine when non-governmental entities acting
under color of law are liable under § 1983 for the acts of their employees  is this correct?
CASTLE ROCK: cops not intervening re: restraining order; custom was alleged that the city doesn’t enforce restraining
orders as the basis for liability; the Supreme Court said the restraining order didn’t confer a property or liberty
interest so it dealt with the problem; ASSUME you could get past this and the case can go forward on a PDP theory
 This is a case that states a DP violation because we have a deprivation of liberty or property and it was
attributable to AN ESTABLISHED POLICY; not a RANDOM AND UNAUTHORIZED FAILURE TO
ENFORCE  Logan idea  what does this mean for the claim against the municipality?
 Need to show municipal policy—if this is an established policy for purposes of evading Parratt, it is for
municipal liability; then we need to show deliberate indifference; if you have a policy that’s a POLICY for
Parratt purposes, it’s a policy that at least should be considered as a policy that’s responsible under the
municipal liability theory (could this fall under the first prong of Monell???)
Summary
 Municipal Liability & theories: PM took/ordered unconstitutional act or that the municipality is liable because a
policy manifesting DI caused the violation
 ***Last issue in Municipal Liability—how does this interrelate with individual liability? Are they
interdependent? (Heller)
Note on Supervisory Liability
 If you can’t establish municipal liability can you just sue the supervisor as a supervisor and seek to get
damages that way?
 The lower courts historically were receptive to supervisory liability if one could show DI on the supervisor’s
part—aware of pattern and did nothing or played a role in the violation
 Supervisory liability basically mirrored municipal liability because no respondeat superior liability for them
 The Supreme Court cast doubt on this in Ashcroft
 Pembauer and Praprotnik addressed when a municipality can be held liable because of decisions of an employee
who is in a policymaking position—this is not the same as when a supervisor can be held liable because of the
actions of an employee who the supervisor controls
 Rizzo v. Goode (U.S. 1976): a supervisor cannot be held liable on a respondeat superior theory (same as
municipality); Court refused an injunction against supervisors of the police department to improve policies in
handling citizen police abuse complaints; the Court relied in fn. 58 in Monell  FAILURE TO SUPERIVSE
IS NOT ENOUGH TO SUPPORT § 1983 LIABILITY
 LOWER COURTS: have allowed supervisory liability if the D was personally involved: direct participation, failing
to remedy a wrong after learning of it, created the policy/custom allowing the unconstitutional practices to continue,
or deliberate indifference after being on notice; 6th Cir: supervisor must have encourage the incident or have
participated in it
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 Addressed in Ashcroft v. Iqbal, a Bivens action—Court held that government officials are only liable for their
misconduct; supervisory liability is a misnomer
 This is a BIVENS case not 1983  in DICTA it said there’s no supervisory liability under either
Bivens or 1983 because there’s no way to distinguish it from respondeat superior; where does this
leave us? The lower courts have basically ignored the dicta; rationale: supervisor isn’t be held liable for
underlings but for his own supervisory lapses by either being involved in the violation or standing by and
doing nothing
 One could argue that the DI does base liability on wrongdoing
 Assume you bring the claim against the supervisor, and you can go forward; what defense can the
supervisor raise? IMMUNITY—the supervisor can plead qualified immunity because it’s a claim against
the individual not official-capacity claims; the P doesn’t need to show policy/custom because it’s not a
Canton claim; the P could also seek punitive damages because it’s an individual claim not an entity
claim; but it’ll still be hard to show DI
The Heller Problem: Linking Individual and Municipal Liability
 Start of municipal liability
 Understaffed detention center hypo: someone has incentive to sue the municipality whose in charge of
understaffing the detention center because the guard who’s working there may be doing the best he can still
isn’t able to prevent the harm
 The Court recognized this in Owen: municipal liability is important to prevent systemic harms—a bunch of
individuals who may be acting in good faith
 Heller asks if any of this works? Can a person recover against the municipality in the detention center hypo?
Does 1983 really protect against systemic harm?
 City of LA v. Heller (U.S. 1986): city, individuals of police dep’t, and police officers sued for P being arrested
without PC and using excessive force in violation of the 4th Amendment; the officers took him in and there was an
altercation—he fell through a glass window; the district court bifurcated the trial on the individual police officer
liability and the city liability; the JURY held that the officer DIDN’T use unreasonable force; the district court
then dismissed the claim against the city, asserting that if the police officer were exonerated, then there was
no basis for liability against the city; the COA reversed & the Supreme Court reversed the COA
 If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the
departmental regulations might have authorized the use of constitutionally excessive force is quite beside the
point
 Dissent (Stevens & Marshall): this inconsistency can be resolved; the officer’s actions could’ve been
reasonable in LIGHT of the policies he was acting under
 This case is per curiam & there weren’t arguments in this case; the implications are HUGE: the lower
courts have no idea what to do with it
 Basic idea: P alleges excessive force when police officers subdue him & push him through a glass window;
he sues the individuals & the municipality; 1 individual wins on SJ; case goes forward against 1 officer & the
city; the trial court bifurcates—first trying the claim against the individual; the individual wins BUT WE
DON’T KNOW WHY (jury didn’t get instructions on immunity so there’s an indication that the jury found
the officer didn’t violate the Constitution)  the individual officer didn’t violate the Constitution, the
municipality can’t be liable because the claim is the municipality is liable for CAUSING THE
CONSTITUTIONAL VIOLATION (if no constitutional violation, nothing to be held liable for)
 You need some constitutional harm and if the only reason the city is being sued is because the city’s
responsible for what the officer did
 WHERE DOES THIS TAKE US?
 It’s clear that Heller does not apply if the reason the individual is off the hook is immunity; if the individual is
immune, that assumes a constitutional violation (Heller irrelevant in those cases)
 Lower courts find municipal liability in a case like Barrett
 Tricky question in a case like the detention center hypo—in which there is an individual in play but the reason
the individual isn’t liable is because of state of mind  the individual is put in a position where he can’t win;
if Heller precluded municipal liability then, the whole idea of preventing system harm goes out the window,
so does Heller apply in these cases? That municipal liability is necessarily derivative of individual
liability or can it be liable for its own wrong even if no individual violates the Constitution
 Some lower courts tend to just cite Heller reflexively
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 There are some cases that recognize ways around Heller by differentiating between cases of derivative
liability (like Heller) and cases in which the municipality is responsible for its OWN unconstitutional
policies: see notes (K thinks the municipality SHOULD be responsible in the detention center hypo
because it caused the harm by understaffing; it’s not derivative liability)
 Questions on Heller
 Collins v. Harker Heights (U.S. 1992): There must be a constitutional violation before a municipality can be
found liable BUT § 1983 doesn’t require a showing of an additional element of abuse of government power
 this is a case where the P is suing directly on the basis of the unconstitutional nature of the city’s
policy itself
 3d Cir said there this still must be a constitutional violation even if no one person is responsible
 Difference between direct liability for policies and derivative liability for officers’ unconstitutional acts
 Problems
 Barrett v. Orange County: P, former executive director of Orange County HR Commission, alleged he was
fired in retaliation for exercising 1st Amendment rights; sued Commission, county and 2 commissioners (a
lot of commissioners, but only sued 2 of them); jury form said county not liable if the commissioners
weren’t liable
 The court said this doesn’t work because there are OTHER PEOPLE INVOLVED; maybe those
who weren’t sued committed a constitutional violation (not like Heller where there’s only one
officer in play); in cases where there are other officers who might’ve committed the violation, the
Court won’t find that the municipality couldn’t be responsible
 Ruvalcaba v. LA: officer released dog on P and kicked suspect; P sued officer and city—alleging officer
used excessive force and challenged the dog bite policy of allowing officers to strike suspects who resists
dog attacks, to hire people who are prone to violence, and inadequately train them; court BIFURCATED
 Evans v. Avery: high-speed chase, killing innocent person; at most negligent but officer was following city
police department’s policy on high-speed chase; the policy failed to instruct on the constitutional limits of
high-speed chases  this wasn’t a constitutional violation (intent to harm)?
 Prison warden gives guards stun guns but no training; injury could’ve been avoided if proper training in
place
 Dodd v. City of Norwich: Officer response to burglary; tried to handcuff him and did it improperly; dude
got a gun and scuffle and the suspect was shot; the mother of the suspect sues alleging that the officer
seized him unreasonably in violation of his 4th Amendment rights and violated his DP rights  she sued
the officer, his employer and the city
 Gibson v. Chicago: officer who was suspended shot his neighbor; he’s not acting under color (because he
has no authority) but is the city liable?
 10th Cir. held that Heller applies in supervisory liability cases
 States as “Persons” and the Eleventh Amendment
 Just focus on the policy here. It will make a lot more sense.
 Discussion
 Liability of states/state employees (1 of 3 possible classes of defendants—individuals in individual capacity;
municipalities, including official-capacity suits against municipal actors; and states, including official-capacity
suits against state employees)
 Whether state is proper defendant under § 1983 hinges on the 11th Amendment  keep in mind the ACTUAL
QUESTION that the Supreme Court is tackling is whether states are “persons” (1983 only authorizes suits against
“persons”, so if the D isn’t a person, it can’t be sued)
 Individuals are logically PERSONS
 Municipalities are PERSONS (Monell)
 Issue in Will (whether states are PERSONS)
 To determine whether states are “persons” the Court finds it important to discuss the 11th Amendment
because it’s impossible to understand the issue without understanding the 11th Amendment; the whole issue
of state personhood rests on a foundation of 11th Amendment law
th
 11 Amendment: “The judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.”
 It doesn’t mean what it says
 “Judicially created fiction and paradox”
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Also applies to citizens of the same state
 Hans v. Louisiana (U.S. 1890): 11th Amendment doesn’t permit a person to sue his OWN STATE in
FEDERAL COURT; the Court said don’t worry about the language of the 11th Amendment; the question is
whether the citizen can sue its own state in federal court; the language of the 11 th Amendment doesn’t cover
that; despite this, the Supreme Court said that the 11th Amendment does bar suits against one’s own state (i.e.
as a TN citizen can’t sue TN in federal court); why? The Court said that the point of the 11th Amendment was
basically to constitutionalize sovereign immunity and @ c/l states enjoyed sovereign immunity regardless of
who was suing; it makes no sense to think that anyone would’ve ratified the 11th Amendment if it would’ve
said you can sue your own state (drafting oversight); the 11th Amendment codifies sovereign immunity—
can’t SUE A STATE IN FEDERAL COURT
 LOGICAL QUESTION: what is a state? See below
(1) The 11th Amendment is only applicable in FEDERAL COURT (it’s a restriction on the jurisdiction of federal
courts) not state court
(2) A citizen of one state can’t sue another state in federal court (i.e. citizen of TN; can’t sue GA in federal court)
 this isn’t what the 11th Amendment means!
What is a state?
 Municipalities are NOT states (can file a suit, “Kritchevsky v. City of Memphis” in federal court, see Monell
& FN. 54 said this applies to local governing units that are not part of the state for 11th Amendment purposes)
 Why don’t they have 11th Amendment protection? They can set their own policies; they can make their
own rules; municipalities can TAX independently of the state/raise their own money; the municipal
treasury is separate from the state and can set their own policies to protect their treasury
 Lincoln County: the Court explained that municipalities don’t share in state immunity because they can
make the independent decisions & have independent control over policy & funding
 Obviously, TN is a state (can’t file a suit, “Kritchevsky v. TN” in federal court)
 To prevent raids on the state treasury
 ***Things coming in between
 Can’t sue state of TN, but you’re a prisoner & think the state is responsible for unconstitutional treatment,
can you sue the TN Bureau of Corrections? Can’t sue the TN Bureau of corrections if it’s the an arm of
the state; the question for entities that aren’t cities/counties or states is whether they’re “arms of the
state” or are they independent entities?
 Everyone agrees that AGENCIES ARE ARMS OF THE STATE BECAUSE THEY ARE JUST A
SUBPART OF THE STATE (TN Dep’t of Corrections can’t sue)
 Statewide agency or state treasury department?
 School district?
 University of Memphis?
 Assume someone believes that the university have violated the Constitution; can you bring a federal court
suit naming as the defendant, “The University of Memphis”? It depends on whether the university is an
arm of the state  to a large degree their funding comes from state agencies, so a judgment against U of
M would target the state treasury; if the state’s not giving it any money doesn’t work or you could just
raise tuition but to raise tuition they have to get state permission—ultimately the state calls the shots;
unlike a municipality, the U of M can’t make decisions on its own; it’s not politically independent in
any way despite the funding issue
 There are suits addressing state colleges and find that they do have 11th Amendment protection
 Private entity contracting with the state?
 Relevant factors—whether the state would be responsible for the judgment; how the state law defines
the entity; the degree of control the state has over the entity; and the source of funding
***Does all this mean that there’s nothing you can do? No way to stop the university from violating the
Constitution? Assume they have an ongoing practice of violating the Constitution (see Ex Parte Young)
 Assume U of M had a Monell-like policy—what can you do? Why not sue the state official and say that
President Martin is the defendant; the problem is that if you can sue President Martin who will write a check
on the U of M bank account, you’re still raiding the state’s treasury but on the other hand, if there’s nothing
you can do then there’s no way from using federal courts to stop state entities from violating the Constitution
 SO, you can sue state officials IN THEIR OFFICIAL CAPACITY for PROSPECTIVE RELIEF TO
ENJOIN UNCONSTITUTIONAL ACTS but you cannot sue for retroactive relief
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Ex Parte Young (U.S. 1980): MN’s attorney general sued in his official capacity for a “confiscatory violation” of
the Constitution, arguing that various railroad rates are unconstitutional; they get an injunction prohibiting him
from enforcing the statutes; he tried to claim sovereign immunity (under the 11th Amendment) because he was
acting & sued in his official capacity, so it was a suit against the STATE; he points to cases that said that a person
can’t get around the 11th Amendment by suing a state official in his official capacity in telling that person to cough
up money in the state treasury—so there are suits that recognized you couldn’t use the pleading mechanism to raid
the state treasury but on the other hand there were cases that allowed injunctions against state officials
 The Supreme Court rejected this contention
 This is a suit against an individual; what Young is claiming is that since he’s doing his job, he is covered
with the cloak of immunity (that the state is protecting him); the Supreme Court explains that this doesn’t
work in cases in which the claim is that the individual official is violating FEDERAL LAW OR THE
FEDERAL CONSTITUTION because the Constitution is the Supreme law of the land and supersedes
state authority & the state doesn’t have the power to immunize Young vis-à-vis the higher power of federal
law; when the claim is a violation of federal law, the state’s attempt to protect him doesn’t work
 “illegal act upon the part of the state official … use of the name of the State to enforce legislative
enactment which is void because its unconstitutional”  the federal law strips him of his cloak &
subjects his person to the judgment; the state has NO POWER TO IMMUNIZE SOMEONE AGAINST
FEDERAL POWER & the person can be sued when the claim is that the state actor is acting
unconstitutionally because the state can’t protect him there
 Everyone calls this the “Young fiction” because none of this would work unless Young were acting under
color of state law (he’s still a state actor but he loses his state protection)
 If the act which the state AG seeks to enforce be a violation of the federal Constitution, the officer in
proceeding under such enactment comes into conflict with the superior authority of that Constitution,
and he is in that case STRIPPED OF HIS OFFICIAL OR REPRESENTATIVE CHARACTER and is
subjected in his person to the consequences of his individual conduct.
 ***Key to understanding the 11th Amendment law IS TO FOCUS ON THE POLICY
 This is really just a way to balance competing interests; it’s a desire to protect state sovereignty while
allowing the federal courts to act as guardians of constitutional rights by recognizing that federal courts
can enjoin unconstitutional state conduct through the fiction of acting against the individual defendant
 It’s just an allegation of a constitutional violation, the Court isn’t talking about the merits here; it
also would be federal statutory violation allegations
 So does he have to write the check on the state’s treasury? If YES, then it’s the same problem!
Edelman v. Jordan (U.S. 1974) [federal STATUTORY CLAIM]: IL Dep’t of Human Services officers in statefederal program of aid; that they misadministered federal benefits; injunction requiring compliance with the law in
the future & demand to pay applicants benefits that were wrongly withheld; the Supreme Court allowed the
injunction (prospective) but NOT the payment to the applicants (it was “retroactive relief”) because the funds
are coming from the state
 The Young fiction works for prospective relief but not retroactive relief  in that case it was just an injunction;
to the extent there’s a forward-looking injunction requiring compliance with the law it’s fine
 In order to pay funds wrongfully withheld is retrospective; measured against a past wrong—it’s damages for
a past wrong; this would basically raid the treasury and give rise to all the problems that the 11 th Amendment
aims to protect (it would to a virtual certainty come from the coffers of IL)
 Upshot: prospective relief permissible, retroactive relief is not
 Prospective relief may cost money; the reason no one was complying with the timeline in the case is
because they didn’t have money! The Court says this is permissible; the ancillary effect of it costing the
state money doesn’t matter
 ***This makes sense: when the relief is prospective, the state can budget or get out of the program BUT
the state has no such flexibility when it’s simply being ordered to cough up money from the past
Millikan v. Bradley (U.S. 1977): order for school desegregation case for remedial education & in-service training
programs; state officials had to pay ½ of the costs; the Court upheld this  it would apply prospectively to wipe
out CONTINUING CONDITIONS OF INQUALITY produced by the inherently unequal dual school
system; it’s okay because the programs are remedial, forward-looking to undo the effects of discrimination; this is
prospective & permissible; it’s not an award to compensate & wipe the slate clean
This comes up in employment cases—reinstatement is fine! You have to pay them! Back pay is not
permissible
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SUMMARY: can sue individual in official capacity seeking prospective relief when the allegation is that the
individual violated federal law or the Constitution
 PROBLEMS ON EDELMAN
 Recent Elaborations of Ex Parte Young
 Va. Office for Protection & Advocacy v. Stewart (S. Ct. 2011): said Young allowed a federal court to hear a
suit brought by 1 state agency against another state agency for injunctive relief under federal law
 Verizon Md. v. Pub. Serv. of Md. (U.S. 2002): for cases pursuant to Young, the Court only needs to ask whether
the complaint alleges an ongoing federal law violation and seeks relief properly characterized as
prospective
 The D under Young must be connected with the enforcement of the allegedly unconstitutional statute
 Indemnifying: the fact that a department claims liability, as opposed to the state, doesn’t mean that the state is
open for suit under the 11th Amendment—it is only the entity’s potential legal liability, rather than its ability or
inability to require a TP to reimburse it that’s relevant
 Supplemental Jurisdiction: Pennhurst II: a suit challenging the constitutionality of a state official’s action is NOT
ONE AGAINST THE STATE (Young)—this doesn’t apply when the official violated only state law
 Congressional Power to Abrogate the 11th Amendment: under § 5 of the 14th Amendment, Congress can
eliminate state’s sovereign immunity under the 11th Amendment by enacting legislation subjecting the states to suit
 Fitzpatrick v. Bitzer (U.S. 1976): authorized federal courts under Title VII to allow private individuals to sue
state governments for money damages
 How does this happen? The Court said that the 14th Amendment came later than the 11th and that the terms
of the 14th Amendment necessarily reflect limits on the states and § 5 says Congress can enforce this
prohibition by appropriate legislation, so Congress can enact legislation subjecting the states to suit if
acting pursuant to § 5 of the 14th Amendment
 What does Congress have to do to abrogate?
 There are stringent standards of statutory construction though: Atascadero (U.S. 1985): Congress must
make its intention UNMISTAKABLY CLEAR & CA didn’t waive it in the Constitution because it wasn’t
specific; Dellmuth v. Muth (U.S. 1989): need an UNEQUIVOCAL DECLARATION (explicit reference to
either state sovereign immunity or the 11th Amendment)
 Why does this matter for 1983? Because since 1983 is a statute that Congress enacted pursuant to its § 5 power,
Congress COULD abrogate the state’s 11th Amendment immunity; if it amended it to say “states are persons”
there would be no 11th Amendment problem  does it abrogate? NO
 Application to § 1983: did this abrogate state sovereign immunity? NO! Quern v. Jordan (U.S. 1979)—no explicit
language that Congress intended it to abrogate; there’s no clear language in the statute itself
 11th Amendment & Meaning of “Persons”: doesn’t apply to states in state court suits; whether states can waive
States as “Persons”
 Will v. Mich. Dep’t of State Police, (U.S. 1989) [reading into the silence in 1983]: Will filed suit in state court
alleging violations of the U.S. and Mi. Constitutions—1st Amendment retaliatory claim; he sued the Dep’t of State
Police and the Director of Police in his official capacity; the COA determined that neither the state nor the
official in his official capacity are a “person” under § 1983 (Congress didn’t intend this & can square with Monell
because the municipal immunity was GONE at that time)
 If suing in state court, must look to whether states are persons because 11th Amendment doesn’t apply! Also
states can waive their 11th Amendment immunity in federal court (so has a state that waived its 11th Amendment
immunity a person?)
 Question is “person”  to determine this question, the Court finds it necessary to discuss the 11 th
Amendment
 Discussion
 As a matter of statutory construction, person doesn’t include states because Congress has to be explicit if
it intends to alter the balance of power (CLEAR STATEMENT RULE EVEN THOUGH THIS ISN’T AN
11TH AMENDMENT CASE)
 As a matter of policy, to give a federal right in federal court but Congress couldn’t give a federal right in
federal court against state defendants because the 11th Amendment would bar that suit; if states were
persons, Congress would be giving a remedy only available in state court, but the point was to avoid
state court! If states were persons, you’d have 1983 cases that would have to be brought in state court
 How to square with Monell
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 The case only applies to entities that are NOT part of the state for 11 th Amendment purposes—same as
FN. 54 of Monell but backwards—holding limited to local government units which are not considered part
of the state; here, it applies only to states or government entities that are considered arms of the state for
11th Amendment purposes
 Overlap: if you’re an arm of the state, then you are NOT a person BUT if you’re a municipality, you
are a person; ***key: only way to determine who’s a person is by using 11th Amendment law
 States & state employees sued in their OFFICIAL CAPACITIES for DAMAGES are not “persons”
subject to suit under § 1983 EXCEPT:
 FN. 10: A state official in his/her official capacity, when sued for injunctive relief, would be a person
under § 1983 because official-capacity actions for prospective relief are not treated as actions against
the state (Ex Parte Young)  incorporating this case law in the definition of person (i.e. can’t sue President
Martin in his official capacity for damages under 1983 because he’s not a person; you CAN bring an
official-capacity suit against President Martin for injunctive relief because the suit will be against a
“person”); ***even though the Court purports to be engaging in statutory construction, it hinges on the
11th Amendment (what is an arm of the state, what’s a person) and for official-capacity suits, turning on
11th Amendment cases; rules re: who is a person are the same as under the 11th Amendment (at bottom,
look @ the policy of protecting the state’s treasury but preserving a way for federal courts to enforce the
law)
 This is how you get an official under state law engaging in a pattern of constitutional violations
 Dissent (Brennan + Marshall, Blackmun & Stevens): this isn’t a fair reading of § 1983
 Dissent (Stevens): we allow attorney’s fees against states
Cant Sue U of M in Federal Court or State Court? No. David Rudd for Damages? No. David Rudd for injunction to
comply w/ constitution.
Individual v. Official Capacity Suits
 Hafer v. Melo (U.S. 1991): Hafer sought election and in her campaign she promised to fire people who “bought”
their jobs; she did fire them; it was an employment decision; the 3d Cir. determined that this was a suit against
Hafer in her individual capacity
 State officials sued in their INDIVIDUAL CAPACITIES challenging actions she took as an official are
“persons” for § 1983 purposes
 The P was trying to recover damages from HER, not the state’s treasury
 Issue: whether the dicta in Will talking about acting in official capacity was how it acted or was sued 
the Court explains it’s capacity in which the person is SUED, not acting
 When person sued in official capacity, the state is the party in interest
 Difference
 A suit against a state official in her official capacity should be treated as a suit against the state. When the
official is sued in this capacity in federal court (if she dies or leaves office), her successor automatically
assumes her role in the litigation. In these suits, the entity’s policy or custom must have played a part
in the violation, thus there aren’t immunities available. (only those for the entity itself)
 For individual capacity suits, need not establish a policy/custom & the individual may assert personal
immunity.
 State’s treasury not implicated so there’s no need to look at ex parte Young (suing them for damages
is fine)
 The person still has QUALIFIED immunity
 Hafer tried to distinguish between functions outside official authority & not essential to the operation of
government and those within the authority & necessary for the function of government (the Court doesn’t buy
this)
 Immunity from suit under § 1983 is predicated upon a considered inquiry into the immunity historically
accorded the relevant official @ common law and the interests behind it; the official seeking absolute
immunity must show that it is justified for the government function @ issue  Q.I. for administrative
functions
Questions on Will & Hafer
 ***footnote * & notes: P is well-advised to indicate the capacity in which you are suing someone in your complaint
(say “in his/her individual capacity seeking damages & in his official capacity seeking injunctive relief”); if not
explicit, the court will try to figure out what you mean
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