CONSTITUTIONAL LITIGATION OUTLINE
I.
II.
III.
a.
Primary Purpose: to guard the people’s federal rights to protect the people and to open the federal courts to private citizens and offer a federal remedy for violations of the constitution or by reason of prejudice, passion, neglect, intolerance
IV.
Before Monroe: a.
State would say that landowners were authorized to take money from bank account and someone said it was a violation of 14th amendment b.
Lawyers would find a way to conceive of cases to fit them into a common law court
(trespass to chattels, trespass to land) c.
Ex Parte Young: you’re allowed to bring a lawsuit in federal court against a state official to enjoin the state official from enforcing state law on the ground that it violates the
Constitution – only injunction not damages d.
The injunction remedy was the only offensive remedy available
V.
Constitutional Torts: actions brought against governments and their officials and employees seeking damages for the violation of federal constitutional rights particularly those arising under the 14th amendment and the Bill of Rights
42 U.S.C. § 1983: “any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
28 USC § 1343(3): The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: (3) to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege, or immunity secured by the Constitution
Monroe v. Pape: a.
Facts: police officers broke into the Monroe’s home and the officers ransacked their house while making the couple stand naked in the living room w/o warrants – the couple sued under 1983 b.
Holding: Congress meat to give a remedy to parties deprived of constitutional rights, privileges, and immunities by an official’s abuse of his position; citizens have the right to seek compensation beyond exclusion of evidence for actions taken “under color of law” by state officials c.
Reasoning: i.
Ku Klux Act ii.
Also confirmed the jurisdiction of the federal judiciary when state courts failed to provide sufficient recompense to victims of civil rights infringements iii.
Stopped short of making municipalities liable for the actions of their officers
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iv.
Rejects a specific intent requirement and declares that 1983 is to be interpreted against a “background of tort liability” that makes a person responsible for the consequences of his or her conduct v.
Don’t have to seek the state remedy first in order to seek the federal remedy – the federal remedy is supplemental to the state remedy vi.
Under color of state law: refers to acts committed by state officers in the performance of their duties
VI.
Monroe deals with state officials, but how is there a remedy for federal officials a.
Tucker Act: you can sue the federal government for breach of K or taking your property b.
After Monroe the court said that you can sue the federal government and there is a federal government cause of action i.
Justified under public policy ii.
Judicial activism
1.
Wants to compensate and vindicate victim’s rights
2.
Deterrence
VII.
Parratt v. Taylor: section 1983 doesn’t contain a state of mind requirement for the prima facie case a.
However, certain constitutional provisions do have particular state of mind requirements as a matter of constitutional interpretation i.
Ex: deliberate indifference is necessary for an 8th amendment violation Estelle v. Gamble ii.
Purposeful discrimination is necessary for an equal protection violation
Washington v. Davis iii.
Negligence is not enough for a due process violation Daniels v. Williams
1.
County of Sacramento v. Lewis: conscience shocking conduct required for substantive due process violation in high speed police pursuit cases b.
A section 1983 plaintiff claiming an equal protection violation must allege and prove purposeful discrimination and one claiming an equal protection violation must allege and prove at least deliberate indifference c.
There is always the option for state remedies, however d.
Section 1983 is intended to promote compliance with the 14th Amendment and to compensate for harm caused by 14th amendment violations e.
There is a concern with overdeterrence especially when dealing with immunities; the fear is that Monroe’s remedial scheme in which government officials are personally liable while local governments are not, may discourage officials from exercising independent judgment b/c of the fear of liability i.
There are absolute and qualified liabilities
VIII.
Constitutional Torts and Exhaustion of Judicial Remedies a.
Don’t have to exhaust or pursue state judicial remedies before filing in a federal forum b/c the federal remedy is supplementary b.
Qualifications of the “no-exhaustion” rule:
2

i.
Habeas Corpus: Preiser v. Rodriguez – a prisoner’s challenge to the fact or duration of his or her confinement is in substance a petition of habeas corpus and must be treated as such – b/c the federal habeas statute requires exhaustion of state judicial remedies, state remedies have to be pursued
1.
Heck v. Humphrey – in order to recover damages for unconstitutional conviction or imprisonment a 1983 P must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid, or called into question by federal writ of habeas corpus
2.
State prisoners are required to exhaust state remedies
3.
A 1983 claim attacking prison conditions and events unrelated to the fact and duration of confinement is not subject to an exhaustion of administrative remedies requirement ii.
Due Process: in certain cases a decision adverse to a P’s due process challenge amounts to a de facto requirement that state judicial remedies be exclusively pursued; federal forum for procedural due process is rendered totally available at any time iii.
Prospective Relief and the Younger Rule: where a section 1983 P seeks not damages but prospective relief; when state criminal proceedings are pending a federal P seeking declaratory or injunctive relief will typically be barred from the federal forum (Younger v. Harris)
IX.
Constitutional Torts and Exhaustion of Administrative Remedies:
X.
a.
McNeese v. Board of Education: state administrative remedies, like judicial remedies, need not be exhausted before filing 1983 claim b.
Court never in fact required exhaustion of state administrative remedies in a section
1983 case c.
Patsy v. FL Board of Regents: Congress wouldn’t have wanted to impose an exhaustion requirement to 1983 it enables the P to choose the forum in which to seek relief
Constitutional Torts of Federal Officials; BIVENS ACTIONS a.
Section 1983 only governs conduct under state law b.
Bivens v. Six Unknown Named Agents: i.
Facts: arrest and search for narcotics violation; threatened to arrest the whole family ii.
Holding: There is an implied cause of action of action for an individual whose
4th amendment freedom from unreasonable search and seizures had been violated by federal agents – they can sue for the violation of the amendment itself depite any federal statute authorizing a suit. Violation of command by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct iii.
Reasoning:
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1.
It would imply a private right of action for monetary damages where no other federal remedy is provided for the vindication of a Constitutional
Right
2.
Based on the principal that for every wrong there should be a remedy unless Congress has expressly curtailed that right
3.
Unique set of facts – a.
No vindication through the exclusionary rule (common remedy for 4th amendment violations) b/c no charges were pending b.
No Congressional legislation curtailed money damage for violations of Constitutional rights nor had it imposed any other remedy c.
Did not find any “special factors counseling hesitation
4.
Bivens was allowed to recover from the Federal government
5.
There are other remedies: a.
Injunction i.
Not available b/c the facts didn’t fit the requirements of equitable relief ii.
Harm was in the past iii.
Retroactive suit iv.
Injury was reparable with damages b.
Tort claim i.
Negligence, trespass, conversion, negligence per se ii.
Limited SMJ iii.
Case didn’t arise under federal law c.
If there was no section 1983, then there is no damages action d.
Davis v. Passman: damages awarded for action against congressman for alleged gender discrimination b/c there were no special concerns counseling hesitation i.
No explicit congressional declaration that money damages shouldn’t be available, but there was an indication by Congress that they shouldn’t have monetary remedy ii.
Little likelihood that the courts would be deluged with claims iii.
But the Court begins to whittle away at the Bivens cause of action
XI.
Schweiker v. Chilicky: a.
Facts: continuing disability review; benefits were usually terminated if the state agency found that a claimant had become ineligible i.
Congress enacted reform legislation ii.
P’s sought relief for being illegally denied relief b.
Holding: The improper denial of Social Security Benefits allegedly resulting from due process violations cannot give rise to a cause of action for money damages against petitioners c.
Reasoning:
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i.
There is an administrative remedy here but it’s not good enough to cover everything ii.
Money damages remedy won’t be devised by the courts where special factors counsel hesitation in the absence of affirmative action by Congress iii.
Special Factors:
1.
Existence of statutory mechanism giving meaningful remedies against the US even thought those remedies don’t provide complete relief iv.
Courts have to give deference to indications that congressional inaction was not inadvertent and shouldn’t create Bivens remedies when Congress has provided adequate remedies v.
Congress created a remedial scheme for this very problem and they did not include money damages vi.
If you have a relationship to the government and you don’t have full compensation but some level of compensation, then administrative remedies are enough d.
NOTES: i.
Violations of the agency doesn’t preclude violations of the officers
1.
Seems to alter Bivens
2.
Only based on deterrence
3.
Based on deterrence of an officer b/c you can’t sue the officers e.
Correctional Services v. Malesko: white collar criminal in low security prison with a heart condition i.
Had a Dr's excuse not to climb stairs; climbed stairs and had heart attack ii.
Wants to sue for cruel and unusual punishment iii.
Here, he's trying to sue the entity (the private company running the jail)...the court says that you can only sue officers, you can't sue entities f.
Deterrence: the court know says the purpose of the Bivens action is just deterrence, not vindication g.
Correctional Services v. Malesko: which suggests that the current court is reluctant to extend the Bivens doctrine i.
P here was an inmate at a halfway house for federal prisoners run by a private corporation ii.
Court rejected the claim and reasoned that the purpose of Bivens is to deter individual federal officers from committing constitutional violations and that
Bivens wouldn’t serve that purpose here iii.
The remedies that the court found to be good enough were all federal remedies iv.
Malesko states that tort remedies are enough which also challenges Bivens and says that state tort remedies aren’t enough – says that state is good enough which may mean that it is undermining Bivens v.
They could have axed Bivens, though but they haven’t
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UNDER COLOR OF STATE LAW:
I.
II.
III.
Point of this chapter is that there are constitutional doctrines that come up in 1983 litigation but don’t get treated in Con. Law courses a.
One of these is state created property and liberty
One can act under color of state law using his state authority in some way rather he’s validly doing or not and one can act under color of state law even when the state law provides a remedy a.
Under the pretense of state law using his state authority in some way rather he’s validly doing or not but what does that mean
Three Questions: a.
Pretense of state authority, what does that mean? i.
US v. Tarpley: personal vendetta is nonetheless under color b.
What is the relation b/t the under color of and the state action doctrine and the 14th amendment? c.
When may a P sue private actors under 1983?
IV.
Actions by state officers that violate state law may still be under color of state law a.
Federal remedy is supplementary to the state remedy and the state remedy doesn’t need to be refused before the federal remedy is invoked b.
Embraces a misuse of power possessed by virtue of state law and made possible only
V.
b/c the wrongdoer is clothed with the authority of state law
The Boundaries: a.
Must distinguish between cases where the actor’s official status is irrelevant and those where the use of the authority contributes significantly to the harm he is able to do b.
On-duty officers: most of the time if an official on the job it’s going to matter and it will be under color of state law c.
Off-duty officers: i.
Not a state actor if no authority to act does it anyway – no bright line rule ii.
Rossignol v. Voorhaar: the deputies who thought that a newspaper would be critical of them decided to buy out all of the newspapers throughout the county
1.
A clerk felt intimidated
2.
Job-related motivation iii.
Personal injury: personal pursuits of police officers don’t give rise to 1983 claims
1.
If the officer uses police equipment and is doing police business, courts generally hold that the policeman acts under color of state law
2.
When the officer abuses his position for a personal motive, the cases are mixed a.
Ex: color of law when cop assaulted his former wife’s lover with his service weapon and then he and another officer ran the victim out of town in a squad car
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b.
EX: did not find liability when the officers displayed badges and used service revolvers in the course of a bar room brawl citing personal motivation iv.
On-duty cops with personal motive: often, though not always deemed to act under the color of the law
1.
Police officer suspended b/c mentally unfit for duty and yet permitted to keep his gun and ammunition shoots someone – held he wasn’t a state actor; here the court determined the official had absolutely no authority to act but assumed the position of an imposter v.
Security Guards: Police officers that take second jobs as security guards are under color of law b/c the policeman’s work as a security guard was related to his official status
1.
ID’d themselves as officers when making arrest
2.
Not a state actor if the officer makes no pretense that he is acting under state authority or if the P knows the officer is acting as a private guard even though he is in his police uniform
3.
Chapman v. Higbee: held that an off-duty sheriff’s deputy working as a security guard wasn’t a state actor when he detained and searched the
P even though he was wearing his uniform, badge, and sidearm at the time d.
Almost all constitutional rights are held only against state action – you don’t have it against a private person that cannot fit into the state action category e.
Lugar v. Edmondson Oil: i.
Facts: P owed money to Edmondson so Edmondson sued to collect
1.
Lugar was indebted to Edmonson Oil and Edmondson sued on the debt and attempted to get a prejudgment attachment of certain of petitioner’s property
2.
Pet. Sued claiming that the D worked with the state to deprive him of property w/o due process ii.
Holding: The respondents invoked the state without the grounds to do so, so it cannot be attributed to the state; A private party’s joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a “state actor”
1.
The petitioner here was deprived of his property through state action and respondents were therefore acting under color of law iii.
Reasoning:
1.
Must be clothed with the authority of state law to be action taken under the color of state law
2.
Congress wanted a broad remedy as protection, not a narrow definition a.
Limits the reach of federal law and federal judicial power and requires the courts to respect the limits of their own power as directed against state governments and private interests
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3.
2 part test: a.
The deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct by the state or by a person for whom the state is responsible b.
The party charged with the deprivation must be a person who may fairly be said to be a state actor
4.
There must be a limit so that private parties do not face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community iv.
Here the clerk issued a writ which was executed by the sheriff f.
When someone tries to sue a federal officer under 1983 it will only be under color of state law when the federal officials have collaborated with state officers i.
Cabrera v. Martin: Must be joint participation, not just substantial involvement or an encouragement to change policies. Must rise to the level of conspiring or cooperating with state agents to deprive individuals of their federal rights ii.
When state officials administer federal programs, they will NOT be deemed to be acting under color of state law
1.
Ellis v. Blum: state officials charged with employing improper termination procedures for Social Security Benefits a.
Only functioning here under the color of federal law – required to pursue a Bivens suit, not a 1983 claim for a violation under color of STATE law
XII.
Suing Private Actors under Section 1983: a.
We can only apply the constitutional violation to the state and not to private actors b/c normal everyday people shouldn’t have to worry about getting sued i.
Generally agreed that the Constitution shouldn’t reach private actors ii.
If we limit the scope of the constitution, then we allow states to govern activity that would normally be under the federal government b.
Policy issue: we have constitutional rights and values underlying these rights and important principles of speech, religious liberty, etc. Those in favor of expanding to apply to private actors, but there is also a private sphere argument, so the courts have to look on a case by case basis and determine how far we ought to go to expand constitutional norms c.
Two Spheres of activity – public and private and drawing the line between them is hard d.
Three basic fact patterns: i.
The Self-help remedy ii.
K with a private party and government iii.
Agreement (typically illicit) between a conceded state actor and a private person e.
In the proper situations private persons commit state action act under color of state law and thus may be sued under 1983. People may become vulnerable if they employ selfhelp remedies
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f.
Self-Help Remedies: i.
Flagg Bros v. Brooks:
1.
Facts: City marshal arranged for Brooks’ possessions to be stored by the petitioner in its warehouse after their were evicted from their apartment; threatened to sell her furniture if she didn’t settle her acct. a.
Here the brothers followed a NY UCC provision to try to sell her property
2.
Holding: conduct was not that of the state, no 1983 action
3.
Reasoning: a.
Respondents named no public officials as defendants b.
This was a totally private agreement and not a power traditionally reserved exclusively to the state c.
Respondents argue that the D’s are liable b/c the state delegated to them a power “traditionally exclusively reserved to the State” d.
The State must compel the action, not just support it e.
The State provides certain remedies for people, this doesn’t mean that they turn the action over f.
Here the State has not compelled a state any action but the
State has just refused to act
4.
In Lugar, the respondent had to go to the court and get the clerk to give the attachment order, but here, the state plays no role in the decision to sell a.
When you go to the clerk, like in Lugar, you have judicial supervision
5.
Tentative rule: any time there is some involvement however ministerial
(no judgment) or automatic, then that is enough to amount to state action and it’s a constitutional issue as to whether due process is satisfied a.
When there is no state involvement at all (Flagg), then no 1983 claim
**SUMMARY SO FAR:

The fact pattern that there is a government official that injures someone while either off the job or for personal motive, have they acted under state law? o Police uniform o Motive o On duty vs. off duty o Constitutional violation o No clear rule

When can you sue a private person?
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o If you meet the state action requirement then you meet the under color of requirement (Lugar) o State action means government (state or federal) action o Typically you can’t sue federal officials under 1983 b/c they act under federal not state law o Sometimes you can’t sue state officers under 1983 typically when they are carrying out a federal program BUT you can sue federal officers when they were acting with state officers and state officers were directing the project

Recurring fact patterns a) Self-help repossession a.
Lugar; Flagg Bors b.
Here the court refers to and reports to apply a number of tests: i.
If a private entity is carrying out a public function, then the private entity is a sate actor ii.
After Flagg Bros, we know that this is satisfied if the private actor is
TRADITIONALLY/EXCLUSIVELY a function of the state iii.
Flagg Bros is a type of exception – company can file to take the property w/o going to the clerk
1.
Can still challenge by bringing a tort suit iv.
The pattern of outcomes
1.
Private person engaged in a self-help remedy has to have some encounter with a state official c.
Contracting out and other symbiotic relationships: i.
The symbiotic relationship may be mutualistic, parasitic, or commensual in nature ii.
Burton v. Wilmington Parking Authority:
1.
Facts: Wilmington Parking authority was an agency of the state created to provide adequate parking factilities a.
Built a deck and borrowed money to do it b.
Coffee shop and restaurant located within building owned by parking authority c.
Plaintiff entered the restaurant and was refused service b/c he was black
2.
Holding; The exclusion of the P was discriminatory state action and in violation of the EP clause; When a State leases public property in the manner and for the purpose shown to have been the case here, the proscriptions of the 14th amendment must be complied with by the lessee as certainly as though they were binding covenants written into the agreement itself
3.
Reasoning: a.
Parking authority entered into long-term contracts and leases to make money to pay the loans
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b.
This parking authority only pays rent to the state c.
It’s a mutually beneficial relationship d.
There was some level of state participation and involvement in the discriminatory action e.
State is a joint participant in the challenged activity f.
There is interdependence here i.
They are dependent upon each other for survival
4.
Guests of the restaurant could park there
5.
Revenue is important to the viability of the entire project
6.
This is a fact intensive inquiry iii.
State action is more than deciding if something is in the public or private sphere and different fact patterns will effect differently
1.
Ex: if it’s employment discrimination, opinion discrimination iv.
You have to on a problem by problem basis determine how far the constitutional value should intrude/penetrate the private sphere – here we see that you can push far when it’s racial discrimination v.
Now it’s not enough that there is a mutually beneficial relationship between the state and the private party or that the private party is heavily regulated. The inquiry is 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 be fairly treated as that of the State itself
1.
Rendell-Baker v. Kahn: a.
Facts: fired the teachers after they announced that they were forming a union and after objections were voiced about his policies i.
Non profit school for children at risk of dropping out b.
Holding: A private school whose income is derived primarily from public sources and regulated by public authorities is not a state actor when it discharges employees; Not a state actor or acting under color of state law c.
Reasoning: i.
The receipt of public funds is not enough and the fact that a state committee approved decisions is not enough ii.
b/c it performs a public function it isn’t enough. It must be “exclusive prerogative” iii.
Here the school’s fiscal relationship with the State is not different from that of many contractors performing services for the government
2.
The composition of the Court has changed by this point
3.
The Court refers often to Blum:
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vi.
a.
These were decided on the same day and Blum was about procedural due process at a nursing home – patients weren’t receiving Medicare payments b.
Heavily funded by the state
4.
The tests: a.
Can this be fairly attributed to the state i.
State can only be held responsible when it has coercive power b.
Extensive regulation doesn’t make it a state action c.
Funding by itself isn’t enough d.
Public function – not traditionally exclusive e.
Symbiotic relationship; relationship is not different to the contractors i.
They are dependent on each other though, so it’s hard to square with Burton
5.
It seems that the free speech part matters less than the racially discrimination part vi.
Notes:
1.
IT’s hard to make sense of state action doctrine b/c there are so many factors that should figure in the resolution of state action issues but does not apply the standards consistently from one case to the next a.
Some say that the Court gives a particular factor more or less weight depending on the conclusion it wishes to reach b.
EX: if a court focuses on the question whether a given activity is traditionally the exclusive province of the state – then maybe hold that schools and hospitals do not meet this state c.
Yet others find that when there was joint participation between a state actor and a private actor; if joint participation is the central factor then others seem to stand on shaky ground
Dennis v. Sparks: a.
Held that private individual was a state actor when conspiring with a judge to violate the P's constitutional right b.
What are the necessary elements of proof?
i.
Note 4 on p. 95 tells the evidence that you need:
1.
Strong showing of agreement b/t private actor
2.
D's reached an understanding
3.
You have to produce a smoking gun
4.
Participant must share the common objective of the plan; must share with the public entitty the goal of violating a P's constitutional rights
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5.
Being the son of the substantial client isn't enough and neither is doing substantial business with the insurance company c.
See the note cases on 93-100 i.
Castellano v. Fragozo:
1.
Arson case; former employee of the resturant and a local police officer who worked off-duty as a security guard at the resturant...this was enough and this was evidence
2.
Here there was cooperation b/t police officer and private person
3.
It's hard but not impossible to win one of these cases ii.
Can you win against the police if the police do nothing?
1.
Dwares...as long as it is part of a cooperation you can win
2.
You don't need to have any words spoken...it could be tacit/motioning -- there must be an agreement but doesn't need words -- has to be more than not doing anything, must be coupled with a tacit agreement d.
NCAA v. Tarkanian: i.
Facts: About an agreement, but it's not a corrupt agreement, so it's different
1.
Jerry Tarkanian was a college bball coach and the programs suddenly became successful b/c he violated recruitment rules
2.
Went to UNLV...NCAA investigated and charged him with recruiting violations, and they can't directly discipline a coach, but they told the school to discipline him and they did
3.
They demoted Tarkanian and took him from being bball coach
4.
He sued...said that they violated due process rights ii.
Holding: NCAA said that they were a private entity SC said that it was a private entity iii.
Reasoning:
1.
It's totally separate from UNLV
2.
acts on the University
3.
not under color of NV law
4.
made the point stating that the university was forced to do so e.
Brentwood case i.
Facts:
1.
This is a not-for-profit organization to regulate interscholastic activity
(sport) among public and private high schools in the state
2.
No school is forced to join but almost all of the public high schools have
3.
School officials are part of the boards and they meet during regular school hours
4.
They are allowed to join the public retirement system
5.
Brentwood academy violated a recruiting rule and was put on probation, ineligibility, and fined f.
Holding:
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i.
The association's regulatory activity may and should be treated as state action owing to the pervasive entwinement of the state school officials in the structure of the association and there is no outweighing principle to find any other way g.
Reasoning: i.
The old test (and the one re-affirmed in the dissents) is that an organization was a state actor if:
1.
When the organization performed a public function
2.
Was created, coerced, or encouraged by the government
3.
Or acted in a symbiotic relationship with the government ii.
If the athletic association is just a private entity then he can't get any due process relief, but if the TN athletic association is a state actor then he is entitled to some due process iii.
"Entwinement" -- 6 factors that are indicators of a state actor...
1.
Does the actual state have coercive power over the entity that might be a state actor?
2.
Does or has the state encouraged the const. violation?
a.
TX jaybirds example
3.
Is the private actor a willful participant? Are they colluding?
a.
The more the private actor's conduct is looked to as a partnership, then the more likely that the state action should apply
4.
Is the private actor an agent of the state?
5.
Has the entity been delegated a traditional state function?
6.
Is the entity's management, leadership, and control entwined or entangled with the state?
iv.
Attempts to pull together black letter law and entanglement v.
Here the Association is entwined b/c:
1.
Public school offiiails make up the law making and administrative boards and they are acting w/n the scope of their duties here (coercive
power)
2.
Athletics play an integral part in education
3.
Dues are from membership/gate fees
4.
Held during public school hours
5.
State board members are on the board
6.
State of TN gave the board the power
7.
Given state employee benefits
8.
84% of the members are public schools
9.
PE requirement is satisfied if they participate in athletics vi.
How successful is this attempt to pull all of this together?
1.
Too soon to tell
2.
But this case does give us markers to look for
3.
But this case also does is...dependent upon how seriously we take these factors...this test may be more expansive (find more entities subject to state action) then we've seen in the past g.
They make these points: i.
By giving jobs of regulating athletics to this association, then these officials can be seen as using their own authority to meet their own responsibilities
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ii.
There would be no association without the public schools iii.
This is not a bright line test:
1.
Public compulsion, public function h.
Comparison with Rendell Baker: i.
There we asked if the action was fairly attributablt to the state ii.
There the state is delegated it to the private school and that’s a reason NOT to find state action iii.
But you can make an opposite argument – what the state has actually done is to delegate a state required function to the private school, so the private school is now making policy – you could argue that free speech values are especially strong
1.
Here, the school isn’t arguing against state action, it’s an argument for finding state action b/c they are carrying out a state function d.
In the balance of constitutional values v. private freedoms, when the state delegates public functions to private entities, then free speech values should be public i.
You could also argue that Brentwood was the wrong decision – that free speech values are less important when it’s this entity that regulates recruiting for athletics and that Rendell-Baker is a stronger case
SECURED BY THE CONSTITUTION AND LAWS:
I.
Major Themes: a.
Section 1983 authorizes suits against person acting under color of state law, to redress the deprivation of any rights, privileges, or immunities secured by the Constitution and laws b.
The implied cause of action began with Bivens which granted a remedy to persons seeking relief for constitutional violations committed by federal officers c.
The P must prove a substantive constitutional or statutory violation d.
Bivens and 1983 cover the full range of constitutional rights e.
Bivens may be denied on account of availability of statutory remedies or other special factors counseling hesitation i.
Official immunity f.
1983 suits rely on Bill of Rights i.
Free speech ii.
Unreasonable search and seizure iii.
Cruel and unusual punishment g.
Dennis v. Higgins: claim that state taxation violated the commerce clause and the court heard the case h.
First: the viability of the P’s claim must be assessed and the general body of constitutional doctrine
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II.
i.
First amendment rights of public employees ii.
Fourth amendment for excessive force iii.
Equal protection iv.
8th amendment
Due Process Clause: (procedural and substantive) a.
“no state shall deprive life, liberty, or property without due process of law” i.
Liberty/property are more complex propositions b.
Property: i.
Land chattels and intangibles: concerns the right to keep these things free of government expropriation i.
Takings ii.
Just compensation ii.
New property: variety of benefits from the state and the state chooses to stop providing the benefit. i.
Employment ii.
Contracts iii.
Welfare benefits iv.
One-time grants v.
Does someone have a constitutional claim if these benefits stop being provided? vi.
Does someone have a constitutional claim if these benefits stop being provided? a.
Yes in certain circumstances b/c the property interests protected by procedural due process extend well beyond actual ownership of real estate chattels or money b.
Must be a secured interest iii.
THE RULE: 14th amendment property exists if state law, including informal practices create a legitimate claim of entitlement to a benefit i.
What matters is not the importance of the benefit to the P but the
nature of the benefit ii.
The significance of a determination that the P has been deprived or property is that the state must provide due process of law w/a hearing at which its reasons can be challenged iv.
Cases where the Court has heard property interests: i.
These are the leading cases ii.
Board of Regents v. Roth: college teacher on a one year contract; sued when they were told that their contracts wouldn’t be renewed a.
Court said that he didn’t have an interest b/c his appointment secured absolutely no interests in re-employment for the next year iii.
Perry v. Sindermann: college teacher on one-year contract
16

a.
Court said he had an interest b/c the college had a de facto tenure program and he had tenure under that program iv.
What type of expectations are created? a.
The fact that there is a need is not enough, it has to be evaluated based on the expectations created by the government
**The General Rule: if someone can only be fired for CAUSE that person has a property interest in the job, but if it’s an AT WILL employee, that person can be fired from that job w/o property interest . Still have to have a legitimate claim of entitlement or expectation. v.
Goss v. Lopez: state laws recognizing a right to public education create a property right so public school students are entitled to procedural due process when authorities seek to suspend or expel them vi.
Cleveland Board of Education v. Loudermill: contract that guaranteed employment during good behavior and efficient service created a property right vii.
RULE: Lower courts will typically find a property interest in employment if the state or local government has “guaranteed continued employment absent “just cause” for discharge” viii.
Contract terminable “at will” typically does not create a property interest ix.
Where specific clinical privileges have been denied, disallowed restricted or suspended; clinical privileges were property x.
Have to point to a contract showing a specific term of employment existed xi.
Property interest in employment doesn’t necessarily imply a property interest in the particular post for which the P seeks protection a.
“Legitimate expectation” test is objective b.
At the time of entering a contract what was the objective reasonable to believe that there was a right v.
Wojcik v. City of Romulus: i.
Facts: restaurant possessing a liquor license, dance permit, and Sunday
Sales a.
Sold it to another who entered into an agreement with P b.
P wanted the reassignment of the license and Sunday sales and entertainment permit ii.
Holding: The P didn’t have possession of the entertainment permit and is not entitled to the same due process protections she would enjoy if she were seeking to secure the renewal of a permit which she possessed at some point – no due process violation
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iii.
Reasoning: a.
P’s must prove: i.
Whether the interest at stake in a protected liberty or property interest under 14th amendment ii.
Whether the deprivation of the interest contravened the notions of due process b.
P didn’t show here that they enjoyed a protected interest in the transfer of the entertainment permit c.
First prong satisfied, no need to examine the other prong i.
Holder of a liquor license has a protected interest once the license has been issued and expenditures made in reliance of it ii.
First liquor license applicant is not entitled to procedural due process rights vi.
Town of Castle Rock v. Gonzales: i.
Is a restraining order property? Does it create a property interest? a.
No answer c.
Liberty: i.
Three components of Constitutional Liberty: i.
Prisoners: a.
Higgs v. Carver: pretrial detainee cannot be placed in segregation as a punishment for a disciplinary infraction w/o notice and an opportunity to be heard. Here there was still liberty b/c he wasn’t convicted of anything ii.
Personal Security from physical pain or injury: iii.
Reputation: a.
Defamation accompanied by the lost of some substantial benefit ort he imposition of a significant burden ii.
Old Liberty: common law interests that the due process shields against certain intrusions by the state i.
There is a context of liberty no matter what the state may or may not due and then there is a state created and independent state created liberty ii.
Freedom from confinement and other restrictions on personal freedom a.
Can’t lock people up without justification and without process b.
Pretrial detainee cannot be placed in segregation as a punishment for a disciplinary hearing without notice and an opportunity to be heard c.
People can’t be incarcerated against their will for untreated mental illnesses unless they are dangerous to themselves or others iii.
Security against physical injury
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a.
Ingraham v. Wright: junior high school students who were paddled for misbehavior – they had a 14th amendment liberty interest in personal security from physical pain or injury iv.
Security against injury to reputation a.
Paul v. Davis: defamation deprives one of liberty if it is accompanied by the loss of some substantial benefit or the imposition of a significant burden and it has to be false b.
“Stigma Plus”: false defamatory statements that are communicated to others and the plus usually is the loss of a government job or some other disadvantage i.
Stigma: kinds of statements that would be defamatory in common law defamation ii.
Plus: opportunities isn’t sufficient
1.
Other disability needed
2.
Specific deprivation of her opportunity to seek employment caused by a statutory impediment v.
Liberty interest protected by the due process clause in the companionship, care, custody, and control of her child iii.
New Liberty: consists of liberty interest created by state law i.
State created property is broad: a.
Jobs b.
Business licenses c.
Liquor licenses ii.
But with liberty, it’s a narrow category: a.
Exists mainly, not entirely in prisons b/c the concept is that you have this old liberty (freedom from confinement) and the state has taken that away from you with a conviction b.
You have no more old liberty now w/n the state’s ability to put you in prison so state law rules now c.
Internal rules may create a form of liberty that the court calls state created liberty iii.
Was the action taken against the prisoner is an “atypical and significant hardship in relation to the ordinary incidents of prison life” iv.
Sandin v Conner: i.
Facts: prisoner charged with infraction, tried before a committee, found guilty, sentenced to 30 days segregation; sued stating that he was denied due process b/c he wasn’t allowed to call witnesses ii.
Holding: No interest here; Neither the prison regulation nor the due process clause afforded the P a protected liberty interest that would entitle him procedural protections; the regime was w/n the range of confinement to be normally expected iii.
Reasoning:
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a.
RULE: This is punitive but didn’t present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest b.
No major disruption c.
No parole board issues d.
You have to show that the punishment was “atypical, significant deprivation in which the state might conceivably create a liberty interest” iv.
Doesn’t abolish the state-created liberty interests doctrine a.
Being removed from a home0detention program into jail is a sufficiently large incremental reduction in freedom to be classified as a deprivation of liberty under the Sandin doctrine d.
Wilkinson v. Austin: i.
Prisoner who was in the super maximum prison...never see anyone, keep the lights on, can't shield the lights ii.
Indefinite time period...limited only by the sentence iii.
This was atypical, significant deprivation e.
Giano v. Selsky: spent 162 days in solitary confinement and then sentenced to another
92 days of solitary confinement – atypical f.
Sealed v. Sealed: child welfare might provide interest in children g.
Gilbert v. Homar: i.
Facts: Police officer at a college, arrested while at a friends house and charged with a felony; suspended without pay w/o hearing i.
Received a demotion ii.
Hearing was 24 days after ii.
Holding: respondent didn’t have a right to a pre-suspension hearing b/c there was ample opportunity to invoke discretion later for a post-suspension hearing iii.
Reasoning: i.
Due Process clause is triggered when employee has a constitutionally protected property interest in his or her employment ii.
When there is a termination there must be notice, explanation, and an opportunity to tell one’s story iv.
The Rule: A governmental employer may not suspend without pay unless that suspension is preceded by some kind of pre-suspension hearing with notice and opportunity to be heard h.
The Matthews test: i.
Private Interest: while there is interest in a paycheck, this wasn’t a termination but a suspension so long as the employee receives a sufficiently prompt postsuspension hearing then the lost income is insubstantial when compared to termination ii.
Risk of deprivation of such interest and the probable value of additional or
substitute safeguards: if charged with a felony, then there has been a significant
20

probe into the substantiality of the charges – less likely to be baseless or unwarranted b/c an independent third party has determined that there is a probable cause iii.
Government’s interest: there is a high interest here especially with a police officer accused of a felony. Have an interest in preserving the position of the public official with public trust iv.
This is a balancing of competing interests i.
State create new property and new liberty interests identifying the circumstances in which it may take them away, such as misconduct on the part of a prisoner or neglect of duties on the part of an employee i.
The point of the hearing is to determine if these have been satisfied ii.
But, once it is determined that state law has created a property interest, the question of what process is due is a matter of federal constitutional law and is not determined by state law j.
What does due process require: no matter where the right comes from, they can’t take it away w/o due process of law k.
This is a case by case determination—balancing of factors in the Matthews test. Courts have the liberty to do what they want and we have illustrations
SUBSTANTIVE DUE PROCESS:
I.
II.
III.
“Economic Substantive Due Process” – you couldn’t set wages at a substantially high level or you couldn’t have a rule that set the number of hours worked a week a.
Few cases discredited this in the 1930’s b.
In the 1960’s Griswald v. CT: CT made it a crime to sell certain kinds of birth control i.
Right to privacy prevents this ii.
Roe v. Wade iii.
Now rights are being struck down using substantive due process
Today, we’re not concerned with privacy or autnomy, there is a whole other world of substantive due process mainly in the lower courts without much contribution from the
Supreme Court a.
The remedy is typically damages b.
Suit for damages for injury in the past
What is the scope? a.
Property b.
Liberty i.
Reputation ii.
Prisoners iii.
Freedom of movement c.
These are the rights protected by the substantive due process right constitutional litigation reality
21

IV.
Procedural due process is to assure accurate determinations of whether those circumstances exist a.
Relates to the range of cases that will trigger liability
V.
Substantive due process forbids certain official actions altogether no matter what the circumstances and no matter what process is followed a.
Places stricter limits on what state officers are allowed to do—imposes those limits on a narrower range of conduct
VI.
Daniels v. Williams a.
Facts: i.
Prisoner trapped on stairway b/c of a negligently placed pillow by a guard ii.
Claimed that he was deprived of his right of liberty interest in freedom from bodily injury b.
Holding: Due Process Clause is not implicated by a negligent act of an official c.
Reasoning: i.
Negligence isn’t an abuse of power ii.
Due process clause was intended to protect people from abuse from the abuse or arbitrary exercise of power, not meant to replace state tort law iii.
Mere negligence does not trigger constitutional protection (lack of due care) iv.
It must be a deliberate decision to deprive the inmate of good time credit d.
Court determined that negligence wasn’t enough. Why? i.
Not the purpose ii.
Negligence isn’t oppressive or arbitrary. It can be proven simply by showing that someone was imprudent iii.
You have to let majorities rule and if majorities want to have a certain level of culpability then they should be able to vote on it – in the states. The states should change it iv.
Governments have an interest in flexibility and the more constituioanl restrictions on governments running their affairs, the less flexibility they have
VII.
Deliberate Indifference: a.
Davidson v. Cannon: prison sued prison officials for failing to protect him against assault by McMllian, another inmate, after being threatened by the attacker and letting the superintendent of the prison but nothing was done to ensure his safety i.
This failure didn’t amount to deliberate indifference ii.
Lack of due care leading to serious injury doesn’t approach the sort of abusive government conduct that the Due Process Clause was designed to prevent abusive government conduct that the Due Process Clause was designed to protect iii.
It could if there was an unjustified attack by prison guards themselves or by another prisoner where officials simply stood by and permitted the attack to proceed iv.
Blackmun dissents: governmental negligence can become a constitutional violation
22

1.
This case does deal with protecting prisoners which is essentially governmental
2.
In Daniels, the only governmental action was in a prison
3.
B/c Davidson had nothing to protect himself with – it deserved a stronger argument but nonetheless the court rejected it b.
In procedural due process, negligence could amount to a constitutional claim i.
Innocent mistake can be a procedural violation, but we need something more for a substantive due process violation c.
This is a sweeping rule: i.
The protections of Due Process Clause whether procedural or substantive are just not triggered by lack of due care by prison officials d.
Race based EP claim: purpose to discriminate e.
Sex-discrimination and veterans: purpose wasn’t to discriminate against women and just b/c it has that effect isn’t enough f.
Owen v. City of Independence: Held that municipal governments are not entitled to a qualified immunity defense based on the reasonable belief of their officials that their action was constitutional i.
This was a procedural due process violation, specifically the city’s failure to give proper notice and hearing before firing the police chief ii.
The Supreme Court didn’t establish that procedural due process required these protections until after the firing occurred g.
Plaintiff seeking to establish a substantive violation must show a more egregious state of mind than negligence h.
What is enough? i.
Distinction when someone is or isn’t in custody ii.
Persons in custody have an easier time winning then people that aren’t for the reason that their ability to protect themselves, get medical care are taken away and they are vulnerable to all types of harm i.
County of Sacramento v. Lewis: i.
Facts: Police killed motorcycle passenger in high speed chase; mother files substantive due process claim b/c of deprivation of life ii.
Holding: In high speed chases, only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscious iii.
Reasoning:
1.
Due process meant to protect from the most egregious conduct
2.
Conscience shocking: a.
Prevents from imposing liability whenever someone cloaked with authority causes harm b.
On the other end of the spectrum from negligence c.
Conduct intended to injure in some way unjustifiable d.
Recklessness or gross negligence is more of a close call
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e.
Look at the circumstances
3.
This is similar to an officer in a prison riot a.
Standard is that liability should turn on whether force was applied in good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm iv.
The Rule: high-speed chases with no intent to harm suspects physically or to worsen tier legal plight do not give rise to liability v.
Lewis doesn’t permit an inference of intent to harm simply b/c a chase eventuates in deliberate physical contact causing injury vi.
Lewis states that a sufficiently egregious act by an official may violate substantive due process even if no more specific constitutional guarantee is applicable to the case
1.
Conscious shocking must do more than merely upset him, but depvie him of 14th amendment liberty or property j.
Persons who aren’t in custody: i.
Constitutional premise is liberty right of personal security against physical harm ii.
What about the passenger in the car?
1.
Distinction: in regards to the person being pursued (driver), the constitutional right is the 4th amendment b/c they are trying to seize him...that would be negligence test (unreasonable seizures) but with regards to the passenger, they aren't trying to seize him, so he has no
4th amendment right, so it's a more subjective test, and it's harder to meet -- his only right is the 14th amendment
2.
So what tests applies? a.
Purpose to cause harm unrelated to the legitimate object of arrest iii.
Collins v. City of Harker Heights: city employee fatally injured in the course of his duties; widow sued stating that he had a constitutional right to be free from unreasonable risks of harm to his body, mind, and emotions and a constitutional right to be protected from the City of Harker Heights’ deliberate indifference toward the safety of its employees
1.
Didn’t provide safety equipment and didn’t provide safety warnings
2.
Court states that this was an omission that can properly be characterized as arbitrary or conscience shocking iv.
There is a right of bodily integrity and given it substantive due process when the defendant’s invasion is egregious k.
Conscious shocking: is a hard test to meet where the officer’s purpose is legitimate though his means where reckless i.
Vaughn v. Cox: officer recklessly shooting at P’s car. Court stated that even a showing that the officer’s recklessness caused the P’s injury is insufficient to support a substantive due process claim unless the P can show that the officer had a purpose to cause harm unrelated to the arrest
24

l.
Ingraham: corporal punishment case which held that state tort remedies meet the requirements of procedural due process i.
Courts deal with this on a case by case basis:
1.
See page 144 m.
State created property: i.
You have a right to procedural due process if this right is taken away from you, but if you have an interest it’s b/c the state has provided that right n.
Two recurring themes: i.
Dismissals from government jobs
1.
Property interest in the job
2.
Interest is entitled not just to the procedural protection discussed by to substantive protection as well providing that he can show irrational, arbitrary, or otherwise egregious conduct by the official who fired him
3.
Supervisor did act egregiously ii.
Land use regulations
1.
Thwarted by local officials a.
Rejection of site plans, etc. o.
Constitutional Rights of People in Custody: i.
First: denial of medical care
1.
Higher than medical malpractice
2.
Deliberate indifference – subjective test a.
Similar to gross negligence or recklessness
3.
Estelle v. Gamble: est. this rule
4.
Wisneski: gallbladder surgery – proved that doctor knew that substantial harm woul come to the patient, so met the standard ii.
Riot:
1.
Higher standard
2.
Good faith effort
3.
Hudson v. McMillian: whether force was applied in a good faith effort to restore discipline instead of maliciously or sadistically for the very purpose of causing harm
4.
Why is there a different standard? Different calculus of interests in a different context iii.
Inadequate protection iv.
Farmer v. Brennan:
1.
Facts: transsexual transferred to section w/violent history of assaults a.
P alleges that transfer amounted to a deliberately indifferent failure to protect his safety and violated his 8th amendment rights
2.
Holding: Prison official cannot be found liable for denying inmate humane conditions of confinement unless he knows of and disregards an excessive risk to inmate health or safety. This official is held
25

responsible. Must be wary of facts from which the inference could be drawn and the official must draw the inference.
3.
Reasoning: a.
Must provide human conditions b.
Deliberate indifference: i.
More than negligence and lack of due care ii.
Less than actually causing harm c.
New Definition: subjective look at the official’s mind – was there a risk that he knew about it and didn’t do anything d.
Must have a consciousness of a risk e.
Does the cruel and unusual punishment standard apply? Yes i.
They adopt deliberate indifference over the purpose to cause harm standard b/c the prisoner’s interests are stronger when there is no riot f.
What do you need to show? i.
Is it enough to show that they should have known or that they failed to appreciate it?
1.
The officials knew of the risk and disregarded that risk
2.
Circumstances can be used
3.
Here, the facts are obvious, the fact that they knew that he was a transsexual might be enough ii.
A general risk is enough v.
8th amendment case here – people who are detained other than a criminal conviction have 14th amendment substantive due process which are equivalent to the prisoner
**REVIEW**
(a).
Property and liberty a.
Once one has decided that the P was deprived, the issue becomes, was the right done with the current process b.
3 part test: i.
Aldridge (campus policeman)
(b).
Substantive due process: a.
Distinguish b/t custodial and non-custodial situations b.
8th amendment i.
Pretrial detainees ii.
Mental institutions iii.
Non-custodial: Sacremento v. Lewis – hard to generalize
OTHER CONSTITUITONAL CLAIMS:
**4th Amendment Claims**
I.
II.
The 4th amendment protects against unreasonable searches and seizures
Can be the basis for a 1983 claim
26

III.
a.
Criminal prosecution b.
Excessive force used in making an arrest or seizure – they are now a theme in 1983 cases
Graham v. Connor a.
Facts: Graham was having a diabetic reaction and rushed out of the convenient store; police were suspicious and pulled the car over i.
Police were rough with him and hurt him b.
Issue: What constitutional standard governs a citizen’s claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other “seizure” of his person. c.
Holding: Should be analyzed under the 4th amendment objective reasonableness standard rather than substantive due process d.
Reasoning: i.
Process for a 1983 claim should be:
1.
Identify the specific constitutional right infringed by the force
2.
Analyze the validity of the claim ii.
This is an objective test:
1.
The question is: whether the officers’ actions are objectively reasonable in the light of the facts and circumstances confronting them w/o regard to their underlying intent or motivation
2.
The calculation of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation iii.
This is applied to deadly force as well iv.
This stop infringed upon a 4th amendment right v.
Determining whether the force used to effect a particular seizure was reasonable requires a balancing test balancing the nature and quality of the intrusion on the individual’s 4th amendment interests against the countervailing governmental interests at stake
1.
Severity of the crime at issue
2.
Whether the suspect poses an immediate threat to the safety of the officers or others
3.
Whether he is actively resisting arrest attempting to evade arrest by flight vi.
The reasonableness of a particular use of force must be judged from the perspective of the reasonable officer on the scene c.
A specific constitutional injury should be named and the claim should be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process d.
Here they change the process to analyze the 4th amendment
27

i.
They make a textual argument that this is most properly characterized under the 4th amendment b/c it is a seizure ii.
The Court wants to use the Bill of Rights rather than substantive due process b/c it’s vague
1.
There is a general theme in preferring not to rely on the vague substantive due process principle e.
Brower v. Inyo County: Court held that someone injured when he ran into a police roadblock may have a 4th amendment claim b/c the 4th amendment applies when an officer intentionally applies force to the P i.
It is a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve the result (the roadblock) f.
Scott v. Harris: 4th amendment test here b/c terminated the chase by ramming bumper into the vehicle, but the court says that the officer didn’t violate the test i.
Rule: policeman doesn't commit violation when he uses this maneuver to bump the P off the road; p. 11 "a police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders doesn't violate the 4th amendment even when it places the fleeing motorist at risk of serious injury or death g.
McCoy v. Harrison: officer was an animal welfare investigator i.
14th amendment case b/c he didn’t take her into custody, just using it to hit her, so no seizure – 4th amendment isn’t triggered h.
It gets murky when you have a 4th amendment test and a substantive due process test to injuries from the police when there is an arrest i.
Once the arresting officers have turned the guy over to someone else, he becomes a pretrial detainee and it would follow substantive due process ii.
Riley v. Dorton governs this situation – 4th amendment applies from the moment of the initial arrest until the arresting officers turn the guy over i.
Horta v. Sullivan: Officer’s pursuit of the motorcycle w/o more wasn’t a 4th amendment seizure. If the driver speeds off, pursued by the officer, and a crash ensues, this does not necessarily constitute a seizure i.
No termination of freedom ii.
A 4th amendment seizure doesn’t occur when there is a governmentally caused termination of an individual’s freedom of movement j.
Hawkins v. City of Farmington: Intentional striking of P’s vehicle may be a 4th amendment violation k.
McCoy v. Harrison: D struck the P while investigating dog kennels, knocking the P to the ground. Court develops a 2 prong test to decide whether a person had been seized so that 4th amendment protections are triggered: i.
It must be determined if physical force was used along with a show of authority ii.
Whether the person submitted to the show of authority
28

l.
The use of force by school officials to maintain discipline should be governed by the
Graham test – the 4th amendment standard – therefore, the student couldn’t raise a substantive due process claim m.
Tennessee v. Garner: The Court abandoned substantive due process in favor of a 4th amendment objective reasonableness analysis i.
The Rule: Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm either to the officer or to others it is not constitutionally unreasonable to prevent escape by using deadly force or excessive force n.
Seiner v. Drenon: P didn’t show his hands, P known to be violent and armed with a knife; police’s gun discharged and the other police officer killed the P i.
No excessive force ii.
This wasn’t excessive iii.
The other officer has an objectively reasonable belief that the P shot him o.
Deorle v. Rutherford: man has a can or a bottle in his hand – cops use rubber bullet that takes the P’s eye out i.
Excessive force ii.
No urgency iii.
No information that he was violent p.
The Objective Reasonableness of the force used will be a jury issue q.
Split second decisions matter – if the officer had to react quickly e.
After Graham, there are a significant number of cases outside of the substantive due process arena f.
Albright v. Oliver: reaffirmed the use of 4th amendment analysis for 4th amendment claims; malicious prosecution; P must show that the wrongful prosecution was: i.
Directly or indirectly instigated or continued by the D ii.
Without probable cause iii.
With improper purpose (malice) iv.
Terminated favorably to the P l.
You use a 4th amendment test in these circumstances i.
In the lower courts you can’t bring a substantive due process claim even if you could show bad motive/malicious nature ii.
The elements are different but courts seem to disallow substantive due process claim m.
How does all of this relate to the Sacramento “shocks the conscious test?” i.
In Graham, the key thing is that there must be a seizure i.
Seizure occurs when there is a governmental termination of freedom of movement through means intentionally applied ii.
In Sacramento, there was no seizure, they weren’t trying to hit him to terminate the case – if they are trying to hit someone, then it becomes a seizure
IV.
Equal Protection Claims:
29

V.
a.
EP doctrine is usually concerned with group claims—a classification that treats one group differently from another. They say that a class of one is ok – but this is the first time that the SC specifically stated that the claim of one could be brought b.
Realistically, people do things that are bad, but they aren’t irrational, there is usually some reason for it – good or bad i.
Doesn’t happen often that P’s can win merely by showing irrational behavior ii.
Much better chance if you can show that there was a bad reason that you were treated differently c.
Village of Willowbrook v. Olech: i.
Facts: Wanted to connect property to municipal water supply – the town conditioned the connection on their grant of an easement; P’s claimed that it was a violation of the EP clause ii.
Holding: Can assert an EP claim for a class of one iii.
Reasoning:
1.
P can allege an EP claim when not a member in a group when the P alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment
2.
The denial of the connection to the water system and it was irrational and wholly arbitrary d.
Engquist v. Oregan: i.
Limited the scope of ‘class of one’ EP suit, holding that it has no place in the public employment context ii.
This is limited to governmental employment contexts iii.
Here the P wasn’t allowed to sue – cant’ bring an EP class of one claim after this case even if your complaint alleges a bad motive iv.
Limits the reach of the class of 1 litigation
Public Employee Speech: this concerns a public employee who is fired or otherwise penalized on account of his speech a.
State may not simply condition public employment on the employee giving up constitutional rights b.
Pickering v. Board of Education: teacher was fired for writing a letter to the editor of the local paper criticizing school board decisions on school finance – sued for reinstatement and won i.
Court pointed out that the public employee doesn’t have the same rights as regular citizens but didn’t lay out the doctrine specifically ii.
Balancing test: balance between the interests of the teacher as a citizen in commenting upon matters of public concern and the interest of the State as an employer in promoting the efficiency of the public services it performs through its employees c.
Connick v. Meyers:
30

i.
Facts: Assistant DA transferred to prosecute cases in a different section of the court that she was strongly opposed to
1.
She prepared a questionnaire soliciting the views of staff members concerning office transfer policy, office morale, etc.
2.
She distributed the questionnaire
3.
Fired for insubordination ii.
Holding: When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances the personnel decision taken by a public agency in reaction to the employee’s behavior
1.
The memo doesn’t pass the balancing test – not protected under the 1st amendment iii.
Reasoning:
1.
Used the balancing test
2.
Internal office memos aren’t of public concern
3.
Speech needs to be related to political, social, or other concern to the community
4.
Where an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of the statement
5.
This questionnaire was retaliation for her transfer and only one question related to public concern
6.
When asking of the State was justified in its action, the State has the burden in justifying the discharge and that burden varies on the nature of the competing interests
7.
The test requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public
8.
The time, place, and manner of the speech is also relevant a.
Was it made at the office? On office time? d.
The key to the balancing test is does the speech relate to something of public concern i.
What about the speech that is of public concern – if it was of public concern,
THEN you employ the balancing test
1.
Potential disruption to the office v. the personal interest involved e.
If the employee didn’t really say the statement and the employer made a reasonable investigation into what was said before firing the employee, then the employer would still win a suit – even if the employer believed the wrong account i.
The employer has to have a reasonable belief that it is true f.
Even if the employee can show that his speech was on a matter of public concern, he may still lose b/c the court has to balance the value of the speech against its potential for disrupting and interfering with the operation of the workplace g.
Garcetti v. Ceballos – wrote a memo stating that the case shouldn’t be prosecuted i.
It wasn’t a matter of public concern. It was speech that was required by his job and speech that is required by the job doesn’t get protected
31

h.
Williams v. Dallas School District: i.
Athletic director sent memo to officer manager and principle about the way that school funds were being handled ii.
Fired iii.
1983 claim iv.
Here, not like Garcetti, the employee wasn’t required to write the memo, it’s just in the course of the job i.
Melzer v. NY Board of Education: P was fired on account of membership in a group i.
Fired for an activity that was outside of the workplace and largely unconnected to it ii.
His speech/association centered on public concern and was protected but in the context of teaching children his membership to the group struck such a sensitive chord that the school could fire him j.
Patterns: i.
Speech about corruption will receive more weight than speech about incompetence or policy ii.
Disruption is typically found to be a more serious concern in hierarchical government organizations than in less disciplined institutions
1.
Police and firefights are less likely to win than university professors k.
P must show that there was an adverse employment action i.
This becomes a problem when the P is shifted to another post or denied a promotion l.
Retaliation Claim: i.
This may be brought when someone claims that action was taken against them b/c of protected activity ii.
P was engaged in a constitutionally protected activity iii.
D’s adverse action caused the P to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity iv.
The adverse action was motivated at least as a response to the exercise of the
P’s constitutional rights

Courts try to determine if people are worried about him/herself or if they are trying to raise a general concern o If it’s the employee’s situation, then it’s not protected o More general better shot o If it’s about corruption, then that is valuable o If it’s a policy dispute less value
AFFIRMATIVE DUTIES/FAILURE TO ACT:
I.
Government, like private individuals, do not have a general tort obligation to help anyone a.
The no-duty rule as applied to governments rest primarily on the need to preserve legislative and executive discretion in the allocation of limited public resources
II.
Deshaney v. Winnebago County Department of Social Services
32

a.
Facts: boy was beaten and permanently injured by father. Petitioners claim that respondents (social workers and other local officials) did not act to remove petitioner from his father’s custody b.
Holding: Due Process does not require the state to take affirmative steps to prevent harm to citizens by private third parties c.
Reasoning: i.
The actual invasion was that of a private actor and the 14th amendment’s due process is a limitation on the power to act and doesn’t require the State to protect its citizens d.
General Rule: the Due Process Clause confers no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property i.
The state cannot be held liable for injuries that could have been adverted e.
Exceptions: “special relationships” – then a duty may arise i.
Estelle v. Gamble: required to provide adequate medical care to prisoners b/c prisoners are unable to care for themselves ii.
Youngberg: the state is required to provide involuntarily committed mental patients to ensure their reasonable safety from themselves and others – violation of the 8th amendment to keep them unsafe iii.
These stand for when the state takes a person into custody and holds him there against his will
1.
This is done initially by the State’s affirmative action; it imposed the limitation iv.
Here the child was in the custody of his father, not the state and when the state returned him to the father’s custody it placed him in no worse position than that in which he would have been had it not acted at all
1.
Maybe some state tort law action v.
Dissent: Believes that Younberg and Estelle aren't that different
1.
They announed an intention to protect and so they did take an affirmative step and action to protect
2.
This is the group that is meant to protect helpless children (White v.
Rochford: arrested the guardian of three young children and left the kids on an abandoned highway late at night)
3.
Doesn't have to be physical control...should be a broader scope and interpretation
4.
There is no one else to fill the gap here f.
Why don’t they win here? State had no obligation to protect against private violence g.
There is the constitutional right of a parent to retain custody of a minor child – this is limited by a compelling state interest in protecting a minor child from imminent danger of abuse or neglect h.
One problem inherent in the act/omission distinction is that of characterization i.
Labeling misconduct as active or passive may turn on how one poses the question ii.
Are the children endangered by the officer’s acts of impounding the car and arresting the driver or by the failure to rescue the children?
33

III.
iii.
When the person who actively injures the P is a private party the affirmative duty issue sometimes becomes confused with the under color of state law element
1.
Some courts say that it needs to be a product of state action
2.
Private action adversely affecting liberty or property is not subject to the demands of procedural due process despite some involvement of the state iv.
The question is whether the state bears any responsibility for the conduct of a nominally private actor v.
Why isn’t this a special relationship?
1.
They distinguish the special relationship cases by saying that those people were in custody i.
Armacost article i.
Questions the fact that the court really doesn’t want to question funding for the program ii.
Makes sense if the officials don’t know much about the particular situation – suspects but they don’t know iii.
If they don’t know a lot about any particular information, an obligation to aid would interfere with resource allocation iv.
The more the D’s know, the weaker the argument is against affirmative duty debate regarding funding j.
The question of whether they have the state of mind requirement is not addressed here, but the court seems to be saying that it doesn’t matter what the state of mind is k.
This is a constitutional case and many would argue that being a constitutional case changes everything – in a representative democracy, it’s fine for the legislature to impose liability and then be democratically responsible l.
Estelle/Youngberg – there aren’t affirmative obligations for government i.
Factually you could distinguish these ii.
This is about protection from attacks – more directly related iii.
Page 210 – the government does have some sort of affirmative obligation to provide a transcript
1.
This directly involved the government – this was a direct government action against you
2.
Problem by problem basis m.
What affirmative duties still exist despite DeShaney? i.
Affirmative duties for people in custody ii.
If the state is abused in a foster home then it’s not affirmative action – 4th Cir.
Said that private action adversely affecting liberty or property is not subject to the demands of procedural due process despite some involvement of the state iii.
BUT some lower courts have imposed the duty iv.
It is involuntary once the child gets there and the child is still a product of the state v.
Public school? NO
1.
But they could recover under title 9
Affirmative duties, State Created Dangers and Special Relationships: a.
Kneipp v. Tedder: i.
Facts: drunk wife and husband were walking home
1.
Police stopped the two – sent wife home alone
34

2.
She was found at the bottom of the ravine suffering from exposure ii.
Holding: State created danger is viable here iii.
Reasoning:
1.
To prove a 1983 claim: a.
Violation of a right b.
Committed by a person acting under color of state law
2.
Deshaney: no affirmative duty except in certain limited circumstances
3.
One of those situations when the state actors created a danger which deprived the due process right
4.
4 prong test delivered in Mark: a.
Harm caused was foreseeable and direct b.
Willful disregard for P’s safety c.
Relationship b/t P and the state d.
State actors used their authority to create an opportunity that otherwise would not have existed
5.
Use the deliberate indifference standard to measure culpability
6.
This case: a.
Officer knew she was drunk; more likely to fall and hurt herself
(foreseeable) b.
Sent her home alone c.
Placed in danger d.
Created the dangerous situation b.
Nishiyama v. Dickson Co.: sheriff let the inmate use the car which he used to pull over a motorist and kill him i.
Wells doesn’t like the four part test ii.
There is the two part test:
1.
Affirmative act by a state actor that creates or increases danger to the P
2.
Culpability rising to deliberate indifference c.
Maybe it’s just better to make distinctions among fact patterns d.
Almost every circuit has recognized constitutional tort claims based on a “state-created danger” – courts agree in principle that a duty may arise under the due process clause when state officials create or increase the danger that ultimately results in the P’s harm
– common threads: i.
An affirmative act by the D that creates or increases the risk of danger to the P ii.
The D acted with the requisite level of culpability e.
A failure to train isn’t a state action i.
But if the dangers are underestimated to someone LW v. Grubbs – raped nurse; underestimated the dangers to her and elevated the criminal to status of cart boy f.
White v. Lemacks: brutally beat two nurses – must create the harm and have the culpabitlity g.
Level of culpability is important element: i.
Deliberate indifference ii.
Reckless disregard
1.
If there is an opportunity to deliberate iii.
Gross negligence iv.
Shocks the conscious h.
P can win when the D creates the danger
35

i.
Due process clause of the 14th amendment may impose upon a government official an affirmative duty to protect an individual against private where a “special relationship” exists b/t the individual i.
Incarceration ii.
Involuntary confinement iii.
Situations sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect
1.
Most courts limit it to situations when the P has involuntarily been taken into custody of the state or the state has placed some restraint on self-protection
2.
Foster care is a special relationship
3.
School doesn’t create a special relationship iv.
The absence of a custodial relationship and the lack of state-imposed restraints on self-protection have also been used to deny constitutional tort claims stemming from a child drowning at a city day camp v.
Gebster v. Lago Independent School District: the P has to prove that the school district itself did something wrong. To do this, the P must prove that
1.
Official with authority to address the alleged harassment and to institute corrective measures on behalf of the school
2.
Had actual knowledge of the harassment and
3.
Responded with deliberate indifference
4.
The alleged harassment must severe, pervasive, and objectively offensive that denies the victims to equal education vi.
Jones v. Union county; domestic dispute cases are recognized when couched in terms of equal protection
1.
P’s need to show: a.
That a policy or custom was adopted by the Ds to provide less protection to victims of domestic assault than other assault vics b.
That discrimination against women was the motivating factor for the Ds and c.
The injury was caused by the operation of the policy or custom
IV.
Section 1983 and Federal Laws: a.
The broad distinction is to violate 1983 where one violates under the color of state law i.
Typically it will be a suit against some state official or some local government ii.
Won’t be used to enforce federal antitrust laws b.
What if the statute is directed towards government and officials, if the statue provides a remedy that the individual can use, in this situation, then 1983 won’t typically be available – it will be one that doesn’t have a remedy in it c.
This comes up when federal statutes impose obligations on states etc that don’t themselves provide remedies – Court has two principles when dealing with these cases: i.
1983 wouldn’t be available if the statute at issue wasn’t the kind that created enforceable rights under 1983 ii.
Or if Congress has enclosed private enforcement of the statute d.
Middlesex Co Sewerage Authority v. National Sea Clammers: restricted the availability of
1983 for enforcement of federal statutes: i.
If the statute at issue was not the kind that created enforceable rights under
1983; if the statute has a private remedy in it already, then Congress meant to foreclose 1983 suits OR
36

ii.
If Congress had foreclosed private enforcement of the statute; The statute must have created enforceable rights e.
City of Rancho Palos Verdes, Cal. v. Abrams – telecommunications act (federal statute) has a provision that limits the authority of local governments to enact zoning rules that restrict the use of cell phone towers i.
Key problem – there is a remedy for these people; doesn’t allow attorney fees so the P wanted to use 1983 ii.
Court said that it was a remedy, and this was a dividing line iii.
One Principle: if the statute you are trying to enforce has its own remedy, then you’re left with the remedy in the statute f.
Section 1983 suit may be brought not only for constitutional wrongs but also for violation of federal laws i.
Plain language ii.
P’s can’t use 1983 as a vehicle for enforcing all federal laws g.
Gonzaga University v. Doe: i.
Facts:
1.
P, former undergraduate student applied for a job and needed to obtain an affidavit of good moral character
2.
Overheard conversation that the P engaged in acts of sexual misconduct a.
Wasn’t certified for teaching job ii.
Holding: no federal right created
1.
The nondisclosure provisions contain no rights creating language they have an aggregate, not individual focus, and they serve primarily to direct the distribution of public funds to educational institutions iii.
Reasoning:
1.
The right alleged is the federal right not to have education records disclosed to unauthorized persons but the rule is that spending legislation drafted in terms like this does not confer enforceable rights
2.
No basis here for private enforcement
3.
In order to determine whether a statute confers a private right of action: a.
Congress must have intended that the provision benefits the P b.
P must demonstrate that the right assuredly protected by the statute is not so vague and amorphous that its enforcement would strain resources c.
Must be couched in mandatory rather than precatory terms iv.
But it must be a RIGHT not a benefit or interet v.
Overlaps with implied of right of interest cases
1.
In both you must first determine if Congress intended to create a federal right vi.
Then the question is, is the burden higher on the P now? vii.
The statute forbids educational institutions from disclosing records to unauthorized persons
1.
You have to have an unambiguously conferred right
2.
Did Congress intend to create a federal right h.
A Gonzaga problem occurs when the statute that the P relies on doesn’t itself create a private cause of action, typically leaving enforcement up to a federal agency i.
The federal agency may have a limited range of enforcement tools at its disposal
37

ii.
No 1983 action, so the Ps may have no way of obtaining a remedy iii.
Some may bring a claim under state law and even then they would prefer to bring a 1983 claim b/c of attorney fees i.
After Gonzaga, the Court now looks at whether Congress intended to create a federal right i.
Now there is a link:
1.
Whether someone can sue under 1983 to redress a statutory violation
2.
Whether a cause of action should be implied from a federal statute j.
Alexander v. Sandoval: i.
Holding: refused to imply a cause of action to enforce disparate impact regulations ii.
Reasoning:
1.
The question is one of legislative intent, not one of whether this Court thinks it can improve upon the statutory scheme that Congress enacted into law
2.
Court said that their task is to interpret the statute to determine whether it displays an intent to create a private right and a private remedy
3.
Legal context matters only to the extent that it clarifies text
OFFICIAL POLICY OR CUSTOM:
I.
Every person who under color of state law subjects or causes any person to be subject to be in violation of state law
II.
a.
Person: natural person/governmental entities
Monroe:
III.
a.
Chicago could not be sued b.
City of Chicago wasn’t a person w/n meaning of the statute i.
Municipal liability was proposed and rejected, therefore, cities are not persons ii.
Can they impose obligations on state and local governments like the ability to fight the KKK, terrorism, and be liabile for it iii.
National liability can be imposed onto a local government, but they can’t impose it on someone else
Person: a.
Later included local bodies, so after Sherman, local governments can be sued b.
Do they have immunity? NO i.
Owen v. City of Independence:
1.
we don’t want to make the officials too cautious, but if we impose liability on the city it won’t place the official in jeopardy of being too cautious c.
Governments can’t be sued under a respondent superior theory/vicarious liability theory d.
P has to show that the government is responsible and not guilty of just failing to stop someone else – we have to have another showing; official policy or custom
IV.
State governments can’t be sued – Monell a.
11th amendment/sovereign immunity b.
Congress can abrogate its immunity c.
No you can sue local governments and officials, but not state governments d.
Will v. State dept of Police: i.
You can’t sue a state in state court either
38

III.
Official policy or custom: a.
Identify some recurring fact patterns and principles that give guidance b.
Custom: there is no written rule, but lower level employees do a certain thing habitually and no one has ever told them not to i.
Need some level of knowledge as a high official/deliberate indifference
IV.
Ratification: a.
Low level employee does something and people at the high level accept it or approve it
V.
or don’t stop it – does their acceptance amount to policy making? i.
General rule: P has to show that he approved the reason for doing it
Final Policy Theory: a.
Pembaur: single act by a final policymaker will trigger municipal liability b.
Auriemma: city sued police officers claiming that police superintendent demoted him b/c of race and political affiliations i.
7th cir says he wasn’t the city policymaker for the purposes of employment ii.
City ordinances had clearly banned racial and political discrimination iii.
Important distinction between legislative and executive functions i.
Executive functions represents official policy while the later imply authority to establish rules ii.
Wells disagrees with this distinction – single decisions will almost always be executive c.
Hitt v. Connell: constable was a final decision-maker with regards to employment decisions but not lawmaking d.
Manor Healthcare: Mayor extorted money – can’t sue the city b/c the Mayor had a personal motive i.
Wells disagrees – once a policymaker then a personal motive shouldn’t matter
VI.
Ratification: a.
City of St. Louis v. Praprotnik: i.
Facts: architect who worked for the city of St. Louis – he was a city planner; fired after several poor evaluations ii.
Holding: Reiterated Pembaur and clarified that a low level officer does something unconstitutional and the higher level officers, the policymakers, approve/accept/don’t interfere then you can sue the city iii.
Reasoning: i.
Pembaur’s decision – municipal’s may be held liable for: a.
Only for the acts for which the municipal is actually responsible b.
Only those municipal officials that have final policymaking authority c.
State law question d.
Must be pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area ii.
But, no evidence here that the policymakers approved it for the unconstitutional decision – they had other motives iii.
If you can show that the higher level officials approved of what the lower officials did for the unconstitutional reason, then you can hold the city liable e.
2nd Circuit: Amnesty America – another method of implementing a subordinate’s decision is that the policymaker is aware of the lower level’s unconstitutional actions and chooses to ignore them effectively ratifying their actions
39

V.
f.
Every person that works for the state can be sued individually, but you can’t get liability in the state b/c the state is not a person w/n the “every person” definition i.
Not always clear whether the given person is state employee or local government employee ii.
If it’s a local employee, you can sue the local government, but if it’s a state employee, you can’t sue the state g.
McMillian: i.
Facts: small town sheriff in Alabama
1.
Prisoner sued after his conviction overturned ii.
Holding: Sheriff was a state employee and the state cannot be sued iii.
Reasoning:
1.
Holding in Monell was that a local government is liable for policies that cause constitutional torts
2.
But state governments cannot be sued
3.
Sheriff’s actions were state actions
4.
State constitutional provisions concerning sheriffs, the historical development of these provisions and the interpretation by the Alabama
Supreme Court support the contention that the sheriff represents the state when executing their law enforcement duties
5.
The fact that the county pays the sheriff’s salary doesn’t translate into control a.
DA’s and judges are nonetheless considered to be state employees h.
Manders v. Lee: i.
Held that a GA sheriff was an employee of the state when he was sued in his official capacity for connection with his use-of-force policy at a county jail and for training and discipline in regards to that policy ii.
Protected by the 11th amendment iii.
Almost all actions by Sheriff’s are state actions iv.
This inquiry comes out differently in different circuits b/c the law is different for different states
Failure to Train: a.
City of Canton v. Harris: i.
Facts: P was arrested and was slumped on the floor – no medical attention was summoned
1.
She was went to the hospital after being released from custody and was diagnosed with suffering from severe emotional elements ii.
Holding: Local governments can be liable for their failure to act – the failure to act can constitute an actionable official policy or custom where the local government or policymakers are deliberately indifferent to the constitutional rights of persons with whom the police come into contact iii.
Reasoning:
1.
Was there a causal link between a municipal policy or custom and the alleged constitutional deprivation a.
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
40

2.
Focus on the adequacy of the training program in relation to the tasks the particular officers must perform
3.
The deficiency in the training program must be closely related to the ultimate injury
4.
Did that failure to train reflect deliberate indifference to the constitutional rights of its inhabitants iv.
The officers here weren’t policymakers v.
No one ratified the decision or approved it vi.
Not a widespread custom vii.
There can be overlap between the theories here – but there isn’t. This is a distinct theory viii.
Officers were inadequately trained b.
Failure to train test: i.
The person that runs the department did something wrong
1.
Deliberate indifference to the rights of persons with whom the police come in contact with (the entire phrase is important)
2.
This is an objective test ii.
The connection with Farmer v. Brennan (The transsexual that was transferred)
1.
Prison officials there can be sued for their deliberate indifference in failing to protect inmates from harm caused by other inmates
2.
That is a subjective test and an inference from circumstantial evidence could suffice
3.
Court there focues on the essentially subjective nature of indifference in a prison setting with respect to individual liability iii.
Here, this is an objective nature of the deliberate indifference inquirty
1.
This inquires as to the state of mind of the governmental entity calling for a focus on liability for deliberate indifference based on obviousness or constructive notice
2.
Permits liability to be premised on obviousness or constructive notice
3.
Based upon a group of policymakers iv.
Evidence:
1.
Depends on what officers we’re talking about – cops v. social services
2.
What kinds of situations do they run into
3.
What kinds of constitutional injuries can occur
4.
When it comes to training, techniques, the types of knowledge that a person encountering this would need to know? a.
What are the officers taught? b.
Do they absorb the information? c.
How does the city ensure that they know d.
What happens when they haven’t gotten the information v.
The deliberate indifference standard does not turn on the degree of fault – P doesn’t have to show culpability before the particular constitutional violation is established
1.
Vs. in Graham where the P has to show that the officer acted unreasonably and that the city was deliberately indifferent in the training to the safety of the parties vi.
You don’t have to show that the city’s policy was unconstitutional vii.
You have to show more than that the particular officer was poorly trained
41

1.
That is relevant but not enough
2.
If, for eg., the officer got a C- in training that is not enough c.
The P can win if the P can show that the training program is so deficient that it was
deliberately indifferent i.
City will win however if it can counter by showing that this particular police officer had a bad personal motive ii.
The P still has to show the causal connection b/t the constitutional violation and the bad training iii.
In principle, P can win by showing 1 incident, but in practice--hard to win d.
Board of County Commissioners of Bryan County v. Brown: i.
Facts: P alleges that police used excessive force (by grabbing her using the “arm bar technique” and pulling her from the vehicle severely injuring her knees) in arresting her and that the county was liable based on its sheriff’s hiring and training decisions ii.
Holding: City cannot be held liable unless there is deliberate action attributable to the municipality itself and it is the moving force behind the P’s declaration iii.
Reasoning:
1.
The Sheriff was the policy maker regarding the Sherriff’s department
2.
This decision turns on a hiring decision a.
The Decision to hire the police officer that did this – the sheriff’s nephew
3.
There is the possibility left open in Canton that evidence of a single violation accompanied by a showing that a city has failed to train its employees to handle recurring situations presenting potential for such a violation could trigger liability a.
But that was for a narrow range of circumstances b.
Failing to equip them with specific tools c.
High degree of predictability d.
NOT the inadequacy of review of a prospective applicant’s record
4.
Very difficult to predict the consequence of a single hiring decision as opposed to evaluating the failure to train
5.
Deliberate indifference is a stringent standard of fault requiring proof that an officer/actor disregarded a known or obvious consequence of his action
6.
Unlike the risk from a particular glaring omission in a training regime, the risk from a single instance of inadequate screeing of an applicant’s background is not obvious—it depends on the employees background
7.
This is a lack of scrutiny and isn’t enough to establish deliberate indifference
8.
Causation: must test the direct link b/t the officer’s actual background and the risk that if hired he would use excessive force a.
Must depend on a finding that this officer was highly likely to inflict the particular injury b.
Must be a strong connection b/t the background of the officer and the specific constitutional violation c.
Must have determined that the candidate would have used excessive force
42

d.
Here he just had traffic tickets and misdemeanors vi.
These cases involving constitutional injuries traceable to an ill-considered hiring decision pose the greatest risk that a municipality will be held liable for an injury that it did not cause – every injury could be traceable to a hiring decision vii.
Cities cannot be respondeat superior liability viii.
This cases doesn’t slam the door on failure to adequately review an applicant
1.
Now, you must show that the Sheriff was deliberately indifferent to the rights of people when he hired the deputy ix.
It’s not clear if this is an objective or subjective test:
1.
Argument subjective: “this officer was likely to commit particular injury
2.
Objective – reasonable person would know that this person was likely
3.
This is up in the air x.
What if a person has violence record and then embezzles?
1.
Well then it doesn’t show that the person has a likelihood of inflicting
THIS PARTICULAR injury, so no injury (more subjective) e.
Supervisory Liability: i.
No supreme court case – we could say that this doesn’t exist ii.
Theory: supervisor has high awareness so that there is deliberate indifference of lower person’s unconst acts, then he can be sued. BUT, you must show that this person is a final policymaker in order to get liability from the city. f.
Ethical Considerations: i.
Dunton v. County of Suffolk:
1.
Facts: D attended retirement party for fellow employee; P accompanied the D to the car – inappropriate encounter in the car – husband beats up P along with police officer – P sues for injuries
2.
Holding: This is an ethical problem – county attorney and judge should have excused themselves
3.
Reasoning: a.
Here the P alleges a conflict of interest b/c the county attorney represented the county and the D b.
The D said he wasn’t acting as an officer but an angry husband but he wanted qualified immunity – county doesn’t want him to get qualified immunity c.
Where a conflict is serious and disqualification might be warranted, the court is under a duty to ensure that the client appreciates his situation
Causation:
I.
Cause in Fact: “But for” test – the D’s conduct may be considered the cause in fact of the P’s injury if the harm would not have occurred but for the D’s unconstitutional conduct a.
P has to show that “but for” the breach of duty, the negligence wouldn’t have occurred
– he wouldn’t have been harm b.
Ex: Bryan case – lady hurts knees b/c cop throws her out of car i.
What if the knees were in bad shape anyway – she couldn’t meet the but for test c.
Mixed Motive: typical problem i.
First Amendment -- retaliation d.
It’s not fair to hold people liable unless they caused harm
43

i.
Gives people incentive to do positive things e.
Ex: There would be cause in fact if the body of an inmate found hanging in a cell wasn’t cut down and there was a 95% that he would have survived had resuscitation efforts immediately began
**MIXED MOTIVES** f.
Mt Healthy City School District v. Doyle i.
Facts: Doyle sued school district for refusal to renew his K claiming it violated his
1st and 14th amendment rights
1.
Obscene gesture to student
2.
Complained to radio station
3.
Lack of tact ii.
Holding: No – no liability iii.
Reasoning:
1.
Mt. Healthy Test – Two prongs; a.
P must prove by a preponderance of the evidence that the adverse action taken against her was motivated in substantial part by unconstitutional factors i.
If they can’t, P loses b.
Then the burden shifts to D to prove that the same action would have been taken even in the absence of the unconstitutional motive iv.
The Mt. Healthy test allows the court to consider a situation where the P could have been terrible and engaged in protected conduct and make themselves unfireable v.
This test is routinely applied in free speech and other cases when it comes to damages vi.
A D that meets the Mt. Healthy test avoids all liability
1.
Congress has passed an amendment stating that you could recover emotional distress damages but not 1983 g.
Ulrich v. city and County of San Fransico: i.
Dr. contended that adverse actions were taken against him b/c he protested a decision by the hospital to lay off a group of doctors ii.
Motive can be established by direct or circumstantial evidence iii.
Burden; P’s Burden under the first prong
1.
Direct: statements made by the person alleged to have taken the action
2.
Circumstantial: a.
Proximity of time b/t speech and retaliation b.
Employer’s expressed opposition c.
Other evidence that the reasons for discharge were false and pretextual iv.
Retaliatory motive may be inferred if the adverse action is taken shortly after the D became aware of the protected speech
1.
Gaps in time standing alone do not preclude recovery g.
Harris v. Shelby County Bd of Education: P sued b/c he wasn’t selected to become the principal of an Alabama high school b/c of race and engaging in protected speech i.
D established that the same decision would have been made absent the protected speech h.
D’s burden – Evidence D can present:
44

i.
selected person had more experience – certified ii.
D needs to prove that that the reasons for firing were true iii.
Helps if the decision to fire is made by someone else or independently reviewed i.
Other courts approaches: i.
Dominant purpose test: applied when the D’s motive is disputed ii.
Predominate purpose underlying the D’s conduct iii.
Independent forces j.
Wells favors the approach taken in the concurrent sufficient causation cases in common law tort i.
When two independent fires combine to destroy the P’s property, both fires are considered a cause in fact ii.
Both D’s who started the fire could be held liable iii.
This test is an exception iv.
Based upon the belief that:
1.
Wrongdoer should be held responsible
2.
Deterrence of future misconduct
3.
Vindicates P’s rights
4.
Compensates P for injuries v.
These aren’t adopted in mixed motive cases, but they are applied in 1983 cases when more than one actor is responsible for P’s injury
1.
When 2 forces operate
2.
Multiple tortfeasors concurrently cause an indivisible injury are jointly and severally liable k.
Formal Policy and Cause in Fact: i.
If there is a formal policy and officials take action to dismiss someone who violates it ii.
When there is a custom or widespread practice:
1.
No problem in general with showing it here
2.
It is possible for the D to argue no that it was for personal motive, but in practice, it’s hard to persuade anyone iii.
Difficult in the hiring context
1.
Training program is so bad that it is completely inadequate l.
Texas v. Lesage – suit for damages and prospective/injunction relief i.
P applied to PHD program and was denied admission ii.
Able to show that the university had a race conscious admissions policy iii.
School argued that he wouldn’t have been admitted anyway iv.
The Court distinguished b/t two types of relief v.
Damages: If the school could show that he wouldn’t have gotten in anyway, then he could avoid damages vi.
Injunction – Different rule; all P has to do is show that he didn’t have a chance to compete
1.
The Mt. Healthy test doesn’t apply to prospective relief m.
What you have to prove depends on what type of case you have: i.
Establishment Clause ex – P asserts injury b/c tax money goes to religious institutions
1.
You don’t have to show cause here, just that your tax money is being spent on unconstitutional program ii.
We don’t have a systematic treatment
45

II.
**Government and Supervisory Liability** h.
There must be an affirmative link b/t the policy and the particular constitutional violation i.
P’s must prove that the policy or custom was the moving force behind the unconstitutional conduct j.
City of Canton/Failure to train context – the deficiency in a city’s training program must be closely related to this ultimate injury and the deficiency actually caused the deliberate indifference k.
Allen v. Muskogee: i.
Facts: Allen had fight with family – goes to sister’s house with guns threatens suicide. Police try to take guns away – Allen points gun at officer; officer’s point gun at Allen and shoot 12 rounds into the car ii.
Holding: The individual D’s failed to carry their initial burden of demonstrating the absence of genuine issue of material fact iii.
Reasoning:
1.
The actions were immediately connected
2.
Testimony that the action were reckless
3.
Were the officer’s actions objectively reasonable in the light of the surrounding facts and circumstances NO – a.
Officers exceeded constitutional limitations on the use of force b.
Use of force arose under circumstances that constitute a usual and recurring situation with which police officers must be prepared to deal c.
Inadequate training demonstrating deliberate indifference d.
Direct causal link
4.
Evidence of a single violation of rights accompanied by a showing that the municipality has failed to train presenting an obvious potential for violation is sufficient to trigger municipal liability v.
Expert witnesses will play a large role here
1.
Most of the case will be about showing that the training is inadequate through expert witnesses
2.
Berry v. City of Detroit: this was an improper expert a.
Still has to be a mathematical certainty
Proximate cause: Proximate cause requirement only really comes in w/failure to train and hiring contexts a.
In general, the D is only liable for harms that are reasonable foreseeable harms b.
This becomes difficult to prove when the faulty conduct is not something that you would typically expect c.
Ex: Brown – what if the deputy had a history of embezzlement – still not enough – you have to show reasonable foreseeability in hiring and harm
ABSOLUTE IMMUNITY:
I.
Even if a P properly pleads and proves all of the requisite elements of the section 1983
II.
cause of action for damages, if the D has immunity he might not be liable
Absolute immunity is a powerful defense: a.
D escapes liability b.
Protects the D from having to defend against 1983 at all (dismiss for failure to state a claim) c.
Four classes:
46

i.
State and local legislators ii.
Judges iii.
Witnesses iv.
Prosecutors d.
The immunity doctrine applies to Bivens suits brought for constitutional violations under implied causes of action i.
Doctrine is the same ii.
Suits against state and local officials but also federal officials iii.
State governors only get qualified immunity e.
The rationale here is that we need to have a good suit for damages to deter violations and ensure that rights are protected i.
Sometimes you can use it as a shield ii.
Sometimes you can use the Constitution in a prospective way
1.
Some threat in the future or some current action being taken against you – you can get an injunction
2.
The remedy we have is the suit for damages and we need to vindicate rights, deter violations d.
Immunity protects those that make decisions i.
Some officials get absolute immunity ii.
Others get qualified immunity e.
The immunity is only going to apply to the tort suit 1983 and Bivens—not other remedies like prosecution f.
Justification: i.
Officials shouldn’t be inhibited from their duties due to lawsuits ii.
Deterrence from performing public service iii.
Don’t want harm to the office itself g.
The pluses and minuses are less symmetrical than that of a normal person i.
The argument is – absent immunity they pay the costs but they don’t get the benefits ii.
These people have incentive structures that make it unlikely that they will systematically favor the state and systematically commit constitutional violations
1.
Subject to pressures a.
Removal from office next time b.
Lost bid from re-election iii.
Police on the other hand don’t have to worry about that – they are looked favorable in the community l.
Why shouldn’t we have it?
1.
The vindication and deterrence aims are also important...we have to find a way to reconcile these aims...just get rid of the official policy or custom doctrine; make the local government for everything b/c they don't have immunity
2.
Avoid immunity entirely b/c the system/justice of the situation says payment and if we can't allow suits against municipality then the officer will be indemnified
1.
Ex: today...when officers are held liable, they generally get reimbursed by their government m.
Why should we have it?
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III.
i.
We have a negligence scheme in torts for almost everything...the basis is a moral judgment that we shouldn't have liability w/o fault, so we ought to have a general rule that you have to show fault n.
HOW DOES THIS WORK IN PRACTICE? i.
They don't escape liability for everything they do...it must fall within their function
1.
It has to be a judicial, prosecutorial, or legislative function
2.
They call this a functional approach ii.
Then comes the question: what is a judicial, legislative, or prosecutorial function?
Local Legislators: a.
These cases are mainly about 1983 --- suing local governments and state and local officials b.
Lake Country Estates v Tahoe Regional Planning Agency: agency adopted a land use ordinance and plan that allegedly destroyed the value of the P’s property i.
Court found that the action was under the color of state law and that the suit wasn’t barred, and that the agency was a person ii.
BUT – the officers of the regional planning commission were absolutely immune from 1983 damages liability for actions taken in their legislative capacities iii.
Did they act in a capacity comparable to that of members of a state legislature c.
Difficult to distinguish acts protected by absolute immunity and administrative actions d.
Important factors: i.
Was the challenged conduct a general policy or overall plan or was it administrative in nature b/c it wasn’t based on legislative facts and its impact was particularized? ii.
Was the challenged conduct the adoption of prospective, legislative type rules or was it the enforcement of such rules iii.
Was the challenged conduct the formulation of a policy or did it involve monitoring and administering, thereby being executive? iv.
Under state law, was the proper procedure used in connection with the challenged conduct so that it was legislative in nature or was the challenged conduct not a proper exercise of legislative powers e.
Hughes v. Tarrant County: P clerk sued county commissioners for refusing to pay attorney fees in a suit against him i.
Court determined that the decision not to pay was based on specific facts of an individual situation and did not purport to establish a general policy – it was particular to P ii.
It was administrative in nature f.
BUT – Calhoun v. St. Bernard Parish: P developer sued police jurors who adopted a series of rules that delayed his housing project i.
These Ds were protected even though it wasn’t the enforcement of a zoning code but spot zoning ii.
The denial of a request for a variance was a legislative decision b/c it involved legislative facts g.
Bogan v. Scott-Harris: i.
Facts: the D’s salary was frozen and the board finally eliminated her position
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ii.
Holding: A local official is protected under absolute immunity and protected for performing legislative functions when they introduce, vote for, and sing an ordinance eliminating a government office iii.
Reasoning:
1.
Legislators shouldn’t fear liability
2.
There are deterrents for them not to abuse activities
3.
They are protected for all activity taken in the sphere of legitimate legislative activity
4.
Whether an act is legislative turns on the nature of the act rather on the motive or intent of the official performing it
5.
These officials voted on it – this is quintessentially legislative
6.
These were integral steps in the process
IV.
Prospective Relief a.
State legislators are protected from both prospective relief and damages not protected from declaratory or injunctive relief i.
Don’t know if this applies to local legislatures b.
Judges nor prosecutors are immune from prospective relief liability (damages that haven’t accrued yet but will) c.
Waters v. Churchill – First amendment employment case i.
May an employer that terminates employee based on credible substantiated reports of unprotected, insubordinate speech be held liable for retaliatory discharge under the First Amendment if it is later that the reports were inaccurate and the employer actually spoke on protected matters? ii.
No if the employee had a reasonable basis for belief that the speech was
V.
disruptive or outside of protection iii.
The protection depended on what the employer reasonably believed the nature and content of the speech to be – not what it actually was iv.
Scalia wanted liability only where the employer retaliated against the employee and he wanted no duty to investigate v.
The plurality – (reasonable beleif0 is a middle ground b/t an intent requirement on one hand and strict liability on the other
Absolute Judicial Immunity: a.
Most actors are engaged in administrative activity – they don’t get absolute immunity, they get qualified b.
Judges get absolute immunity for judicial functions i.
Function normally performed by a judge and to the expectations of the parties – whether they dealt with the judge in his judicial capacity c.
Bradley v. Fisher: criminal court judge who was sued by a lawyer he removed from practice w/o notice or opportunity to defend i.
Court said that judges aren’t liable for judicial acts even when:
1.
Acts are outside of their jurisdiction a.
Unless there is a clear absence of jurisdiction over the subject matter b.
BUT, where there is jurisdiction over the matter, the manner and extent in which the jurisdiction shall be exercised are questions for the judge’s interpretation
2.
Acts are allegedly malicious or corrupt ii.
No liability attaches when:
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III.
1.
Holding a particular act a public offense and proceeding to the arrest and trial of the part charged
2.
Sentence a party to a greater punishment than authorized by law d.
Pierson v. Ray: P’s were arrested and given the maximum sentence i.
Judicial immunity is compared to legislative immunity ii.
Judges are immune for damages even when malicious or corrupt iii.
Appeal process is a check on judges iv.
Liability would lead to intimidation and feared decision making e.
Stump v. Sparkman: i.
Facts: Judge ordered the procedure to render a mentally retarded girl to be rendered infertile (get her tubes tied) at the request of her mother; she married and then found out she was sterilized ii.
Holding: He is absolutely immune for his actions iii.
Reasoning:
1.
Judges must be free to act upon their own convictions
2.
He had jurisdiction over the subject matter
3.
No statute prohibiting this
4.
Function normally performed by a judge in his judicial capacity
5.
Performed under the expectations of the parties
6.
Doesn’t have to be formal f.
Functional Approach: i.
The court will examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted and we seek to evaluate the effect that exposure to liability would likely have on the appropriate exercise of those functions g.
Other officers: i.
Court reporters: not protected
1.
No history
2.
Administrative in character
3.
Did not exercise discretion ii.
Federal Prison disciplinary committee
1.
Qualified immunity not absolute
Absolute Prosecutorial Immunity a.
Prosecutor is immune from 1983 suits when he acts within the scope of his prosecutorial duties b.
Imbler v. Pachtmen: i.
Facts: witness’s false testimony led to the false prosecution of P ii.
Holding: Prosecutor who acted within the scope of his duties in initiating and pursuing a criminal prosecution is absolutely immune from damages iii.
Reasoning:
1.
The function of a prosecutor is his decision to initiate a prosecution a.
This may lead to a suit for malicious prosecution if it is incorrect
2.
Harassment by unfounded litigation would cause a deflection in the prosecutor’s energy and the public wouldn’t trust him anymore
3.
A Prosecutor can’t be expected to be aware of all potential problems
4.
Can’t be accountable for witnesses
5.
Post-trial procedures are available to determine whether an accused has received a fair trial
50

6.
They could be punished criminally c.
Prosecutors aren’t protected for advocative and investigative conduct i.
Functional approach, was the activity advocative or investigative in nature d.
Buckley v. Fitzsimmons: prosecutors accused of fabricating evidence for the purpose of creating probable cause weren’t protected i.
Challenged conduct occurred prior to the existence of probable cause ii.
Conduct was identical to that of officers
QUALIFIED IMMUNITY:
I.
Ministerial v. administrative – to get any immunity you must be performing a task with some types of discretion
II.
III.
a.
No immunity if you are performing an ministerial task
Black Letter Rule: 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
Harlow – it’s fine to have absolute immunity for the executive in common law suits BUT NOT in constitutional suits a.
Constitutional rights get more weight in the calculus than common law rights b.
Not a winning argument c.
Must show either that the D should have known or that he intended to deprive of rights d.
Does it apply to 1983 cases? Yes e.
The Court here makes a test based solely on policy – not on 1871 i.
Court ignores 1871 when it’s convenient f.
The court eliminates the subjective part –now the P argues the objective argument
(reasonable person should have known) i.
It’s time consuming to argue the subjective ii.
Now the D’s subjective beliefs are irrelevant – what matters is that the reasonable person would have known g.
How do you decide what is clearly established law that a reasonable person would have known is? i.
The point of the inquiry is a balance between the vindication and deterrence aims and on the other hand not wanting to over deter the rights ii.
A judge determines what is reasonable h.
Hope v. Pelzer: i.
Facts: P claims cruel and unusual punishment for being handcuffed to a post ii.
Holding: Qualified immunity doesn’t apply here iii.
Reasoning:
1.
Two part test a.
Must find whether there was a constitutional violation b.
If so, must determine whether it was clearly established so that a reasonable official should know
2.
Here, in this case: a.
Court found a constitutional violation b.
And there was a clear warning
3.
Law must be sufficiently clear to give a fair warning iv.
You don’t need a case that is exactly like the new one to have fair warning – officials can still be on notice that their conduct violates est . law even without fair warning
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v.
Two cases that are factually distinguishable but still gave FAIR WARNING:
1.
Gates v. Collier; handcuffing inmates to a fence
2.
Ort: physical abuse of a prisoner after he has terminated his resistance to authority would constitute an 8th amendment violation i.
The Court says government officials – broad definition to those performing legislative, judicial, or prosecutorial function
IV.
The Preside has absolute immunity for Official actions taken while president
V.
a.
Nixon v. Fitzgerald
Officials do not receive immunity for violating a clearly established law that a reasonable person would have known was clearly established
VI.
Two Questions: a.
Merits b.
Clearly Established
VII.
If the law isn’t clearly established, they avoid paying even if they violated it
VIII.
Now the 11th Circuit is easier on P’s after Hope v. Pelzer: a.
This is a case that dealt with a prisoner’s 1983 damages action when they twice handcuffed him to a fence for hours i.
Wasn’t protected by qualified immunity b.
A case of all fours factually is not necessary for a D to lose on qualified immunity c.
Supreme Court said that officials can still be on notice that their conduct violates established law even in novel factual circumstances d.
The obvious cruelty inherent in this practice and a regulation prohibiting such conduct unless engaged in for the purposes of getting an inmate to return to work to demonstrate that the D’s violate clearly settled law
IX.
X.
XI.
e.
What did this regulation do? i.
This is something to look at, but it’s less than case precedent ii.
Main persuasive thing is judicial precedent iii.
KEY – going to a lawyer and getting legal advice doesn’t count for anything
The key point is whether the law is clearly established. There is no sliding scale of reasonableness – if the law is clearly established than reasonable people will know about it
EG: 1 case before SC. None of lawyers found case. Case on point. It was clearly established.
Clearly establishing law: a.
If all circuit court cases are in other circuits but they all say one thing, then that would probably establish the law b.
Most circuit courts aren’t persuaded by district courts, but if their on your side cite them. c.
State courts could be persuasive if they have interpreted the constitution of the state in which the 11 th Circuit sits. d.
If statutes or constitution is very clear, then this will establish the law.
XII.
If the constitutional issue is difficult you can decide the immunity w/o deciding the constitutional issue; you can decide the immunity issue first i.
Elder v. Holloway:
1.
No one found cases that made the law established
2.
Supreme Court said that whether the law is clearly established is an issue of law to be determined de novo on appeal
3.
Whether anyone can find the case or not doesn’t matter – the issue is are there cases out there that can prove the issue
IV.
4th amendment qualified immunity questions:
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a.
Do the two reasonableness inquiries collapse, or does he get two bites of the reasonableness apple – two chances to prove his case? i.
Was the force objectively reasonable? ii.
If it wasn’t I made a mistake b.
Saucier v. Katz: excessive force case i.
The D does get two bites at the apple ii.
He might violate the 4th amendment and he might nonetheless have a qualified immunity defense on whether the mistake was reasonable
XIII.
8th amendment: a.
Official use of force – the standard is whether the force was used sadistically or maliciously for the purpose of causing harm b.
Prison guard wants to arge immunity even if it’s shown that what he did was sadistically or maliciously meant to cause harm i.
11th circuit said no – if the person malicious or sadistic in causing harm, it wasn’t a reasonable mistake
XIV.
Hunter v. Bryant: a.
Role of the jury in deciding qualified immunity issues b.
SC said immunity issues are to be argued at summary judgment and the jury can’t do this i.
Didn’t want officials undergoing unnecessary trials
XV.
Interlocutory Appeal: a.
The P sues an official, the official claims immunity, makes a motion to dismiss or a motion for SJ saying that he has qualified immunity, trial judge rules against him b.
Question is whether you can do this in this context? Straight forward answer is yes i.
Mitchell v. Forsyth -- you get an interlocutory appeal b/c it's an entitlement not to be subjected to suit ii.
If the case is erroneously allowed to go to trial, then the immunity is lost to the extent that it's an entitlement not to be subjected to trial iii.
So if you don't get an interlocutory appeal, the trial judge's erroneous decision against you would take away much of what you're supposed to be getting iv.
They are always going to try for the interlocutory appeal...no reason not to c.
Johnson v. Jones: i.
Facts: P was a diabetic having an insulin seizure – officers used excessive force.
Issue of fact as to which officers were there and the judge denied SJ based on that, not qualified immunity ii.
Holding: Judges make the decision as to qualified immunity iii.
Reasoning: doctrine doesn’t apply where qualified immunity denial is based on whether there is an issue of material fact d.
You can get two interlocutory appeals i.
You can have as many as you need; no blanket rule ii.
Do private actors get any type of immunity?
1.
No, they don’t get the immunity that officers get a.
They don’t have the same justifications of officials...they capture the benefits iii.
Maybe they get some type of immunity
1.
Lower courts tend to give these private actors a defense
2.
Wyatt – they get a defense based on good faith and probable cause a.
P can win if he shows lack of good faith/motive
53

b.
Private actor only has a defense – not an entitlement to not be sued, so the interlocutory appeal doesn’t apply
DAMAGES
I.
Carey v. Phipus: a.
Facts: Students found smoking m/j and get a 20 day suspension b.
Issue: when school authorities suspend or expel students from school, the students are deprived of property and are entitled to procedural due process c.
Holding: Students may not recover compensatory damages absent proof of actual injury
– they can receive nominal damages d.
Reasoning: i.
The rules governing compensation for injuries caused by deprivation of constitutional rights should be tailored to the interests protected by the particular right ii.
Because the right to procedural due process is "absolute" in the sense that it does not depend upon the merits of a claimant's substantive assertions, and because of the importance to organized society that procedural due process be observed, the denial of procedural due process should be actionable for nominal damages without proof of actual injury, and therefore if it is determined that the suspensions of the students in this case were justified,
they nevertheless will be entitled to recover nominal damages. iii.
The Court really didn’t look at what Congress mean iv.
Constitutional torts is about compensating P’s so the P can still get nominal damages even if there isn’t an actual injury
1.
A lot of suits that are brought for the sense of righting a wrong and the nominal damages could be the point of the lawsuit v.
BUT, the basic purpose of a 1983 damages award should be to compensate an injury, so if no actual injury, no compensatory damage
1.
They can still get nominal damages vi.
Essentially, they used tort law principles e.
Bounty system: where P’s who prove their constitutional rights have been violated are awarded payments reflecting the jury’s view of the value of those rights no matter if the
P’s prove injury i.
The Court rejects this b/c the P is basically awarded for nothing ii.
If we have bounties and greater damages that would lead courts to be less willing to find Constitutional violations f.
Modern tort principles apply in 1983 suits i.
D’s are jointly liable and damages will not be apportioned among them ii.
Recovery for P’s’ fear of developing cancer iii.
Consortium recovery beyond spouses iv.
Nominal damages even w/o actual damages v.
P’s have an obligation to take reasonable steps to mitigate damages g.
Green v. Johnson: prisoner successfully sued for mistreatment by guards and recovered compensatory damages i.
b/c he was a prisoner and the state provided room and board and medical care and food, he was entitled to substantially less recovery ii.
doesn’t seem fair initially iii.
seems inconsistent w/collateral source rule
54

II.
iv.
Questionable – why don’t we apply the collateral source rule if we want to be consistent with federal common law h.
State and local governments are constitutionally obligated to indemnify their employees i.
Awards are reviewable by a judge – 2 approaches: i.
Measure the amount of the award against the evidence and make an intuitive judgment as to whether the evidence reasonably supports it ii.
Excessive evaluation—should not be conducted in a vacuum but instead should include consideration of the amounts awarded in other comparable cases h.
The universal common law rule is that the P is entitled to one full recovery no matter how many Ds he sues—once the P has been fully compensated for his injuries he may not thereafter recover any additional compensation from any of the remaining tortfeasors i.
What about when a 1983 P recovers under 1983 and then sues under state court law?
1.
He can recover on both theories b/c the theories are different/separate i.
Causation can be a problem in damage recover, too i.
Jury might not recover compensatory damages if no causation ii.
BUT, P may recover for all the foreseeable consequences of the constitutional violation j.
Emotional Distress: i.
11th circuit said that emotional distress may be inferred from the circumstances, and doesn’t have to be proven with a high degree of specificity ii.
But courts are divided on whether the P’s testimony standing alone can support such an award iii.
Prisoners –no federal civil action may be brought by a prisoner for mental or emotional injury suffered while in custody w/o a prior showing of physical injury iv.
IF a P can show that he had emotional distress damages b/c of his injury (not in school – yes but they have to be due to the constitution k.
Economic Loss: i.
Allowed to recover for lost income and the lost opportunity to franchise his business ii.
Evidentiary rulings can figure significantly j.
Damages are usually retrospective and aimed at making up for the past i.
P can be eligible for both reinstatement and frontpay ii.
Whether to award front pay is a matter of discretion and the decision is made by the judge
Memphis Community School District v. Strachura: a.
Facts: teacher suspended for allegedly showing sexually explicit photos of his wife when she was pregnant—he was reinstated but sued for damages resulting from time off of work and for losses sustained in a violation of his first amendment rights – there was a jury instruction that allowed for the recovery of compensatory damages for presumed damages
55

b.
Holding: NO recovery for presumed damages – damages based on the abstract value or importance of constitutional rights aren’t a permissible element of compensatory damages in such cases c.
Reasoning: i.
Compensatory damages is to restore the P for expenses related to the cause of action, not to make a guess on what other damages there might have been ii.
Need an actual injury for compensatory damages iii.
1983 provides compensatory damages for actual harm ordinarily that suffice to deter constitutional violations d.
Presumed damages: They leave it open – they’re not saying that you can’t have them, they are just saying that there can’t be an award e.
Is the argument stronger for First Amendment cases? i.
The court hasn’t addressed this ii.
Similar to defamation iii.
Should be presumed damages b/c it’s a substantive right iv.
Lower courts avoid the problem v.
Value of free speech isn’t totally covered by emotional distress but that is the way that lower courts avoid the problem f.
Lower courts say for particularized damages: i.
Proof needed g.
Some courts are still perceptive to presumed damages after this case however others require an actual injury/harm and can’t recover merely b/c his rights were violated h.
Defamation: the harm done to one’s reputation by a defamation law is that the harm done to one’s reputation by a defamatory publication will likely be hard to trace, so effective compensation for the injury would be incredibly difficult if the Ps had to prove actual harm i.
Presumed damages are restricted. If the subject matter of the defamation is of public concern or the P is a public figure or public official, they may be awarded only upon a showing that the D knew the statement was false or acted w/reckless disregard of its truth or falsity ii.
This is the context where you don’t have to prove damages
1.
We don’t know who may have heard it iii.
Arguments against
1.
It’s not that hard to produce evidence
2.
Causation problems
3.
No presumed defamation l.
When looking at these issues, the court makes federal common law, it doesn’t go to state law i.
Wants it to be uniform m.
With damages, they borrow state statutes sometimes (survival/wrongful death) iv.
Some state statutes do away with the joint liability doctrine but following this would be questionable b/c it would conflict with the purposes of 1983 n.
Contribution: the common law rule is that there is no right to contribution among joint tortfeasors i.
Some states have changed this giving tortfeasors that pay more than their share of damages a right to pursue other tortfeasors
56

ii.
We can borrow state law here b/c it’s just the D’s and it’s hard to see any federal interest or 1983 interest iii.
Federal laws do not confer a right to sue on the violators and violators are not intended beneficiaries p. 581 o.
In common law torts either side gets to challenge on the fact that the evidence doesn't support it pg. 537 and you can make this argument in constitutional tort cases
III.
i.
Issue in the lower courts is what are the criteria by which you challenge the award ii.
Case by case looking at evidence iii.
You also add comparability, earlier awards in similar cases
PUNITIVE DAMAGES: a.
Lots of open issues b/c there are no definitive SC rulings b.
Smith v. Wade: i.
Facts: P was sexually assaulted, beaten, and harassed while in a youth prison; P brought suit under the 8th amendment after he placed himself in protective custody and they removed him from protective custody ii.
Holding: A P can recover punitive damages under 1983 – jury may be permitted to assess punitive damages when the D’s conduct is shown to be motivated by evil motive or intent or when it involves reckless or callous indifference to the federally protected rights of others iii.
Reasoning:
1.
P contends that the officers knew or should have known that an assault against him was likely under the circumstances a.
See top of 552 for evidence
2.
Punitive damages are available in a proper 1983 action
3.
Punitive damages may be awarded for conduct that is outrageous because of the D’s evil motive or his reckless indifference to the rights of others a.
Deterrence is the goal of punitive damages b.
Punitive damages are never awarded as of right no matter how egregious the D’s conduct – the P must prove sufficiently serious misconduct on the D’s part and then the question whether to award punitive damages is left to the jury which may or may not make such an award
4.
The threshold for punitive damages doesn’t have to be higher than that for compensatory damages
IV.
City of Newport v. Fact Concerts Inc: a.
Municipal governments are immune from liability for punitive damages relying upon both the common law background and policy considerations b.
Punitive damages are in an effect a windfall to a fully compensated Ps and are likely accompanied by an increase in taxes or a reduction of public services for the citizens footing the bill c.
Municipal officials – no evidence that they would be deterred from wrongdoing by knowing that large punitive awards could be assessed based on the wealth of the municipality d.
BUT, municipalities can pay the punitive damage awards for their officers according to the 9th circuit
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V.
i.
If indemnification is possible, how should it be taken into consideration in calculating the award?
1.
Some say indemnification can’t be taken into consideration
2.
Can be considered as obviating the need to determine whether the d’s limited financial resources justifies a reduction in the amount ii.
Also suggested that in an extreme situation where the taxpayers are directly responsible for perpetrating an outrageous abuse of constitutional rights -- sufficiently unlikely iii.
If an official is sued in his official and not individual capacity, no punitive damages – so make sure to sue them in both
BMW v. Gore; a.
P sued for deceptive trade practices and received a $2 million award for a $4000 harm b.
Court ruled that the due process clause placed limits on the amount of punitive damages that may be awarded c.
Lower courts must determine whether an award was grossly excessive i.
Consider the reprehensibility of tortious conduct ii.
Ratio of punitive to compensatory damages iii.
Difference b/t the award and other civil penalties available in similar cases d.
So large punitive awards may be vulnerable if coupled with nominal damages i.
Provost v. City of Newburgh -- $1 nominal damages and $10,000 punitive damages
1.
Court shouldn’t have given an instruction about the limited means of the Ds b/c the jury could speculate about the depths of the Ds pockets
BUT the error was harmless b/c the punitive damages award is very close to the line on excessive damages e.
Even if the punitive damages award sustains due process objections, it is reviewable for excessiveness on the ground that the evidence of malice, recklessness or callous disregard for constitutional rights is too weak to support the award f.
Sometimes juries award and courts uphold large punitive damage awards in cases that do not involve physical injury (11th cir) i.
Supreme Court considers the degree of reprehensibility of the defendant’s conduct is the most important indicum of the reasonableness of a punitive damage award
VI.
Constitutional Torts and Punitive Damages: a.
Weight should be given due weight to the distinctive features of 1983 litigation b/c it is difficult to show substantial compensatory damages b.
Courts should approve large punitive awards in constitutional tort cases even where the
P is entitled to only nominal damages
Survival, Wrongful Death, and Other Damages Issues:
I.
II.
The early common law rule was that the death of the victim extinguished the lawsuit
Wrongful death statutes have been adopted by states, and they typically allow certain close relatives to maintain a tort suit to recover for their losses due to the tort and the death that occurred from it
III.
a.
Death must have been caused by the tort
Survival statutes also have been passed by states allowing the estate of the deceased victim to recover for damages suffered by the victim before his death a.
Cause of death is generally irrelevant to the viability of the survival action
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IV.
Robertson v. Wegmann: a.
Facts: i.
P filed a civil rights action under 1983 for a charge on participating in a conspiracy to kill JFK and then died b.
Issue: Was the district court forced to accept the LA survivorship statute that caused this action to abate, or create a new federal common law rule allowing it to survive c.
Holding: Limited to situations in which no claim is made that state law generally is inhospitable to survival of 1983 actions and the particular application of state survivorship law while it may cause abatement of the action, has no independent adverse effect on the policies underlying 1983 i.
P’s death wasn’t caused by the deprivation of rights for which he sued under and mere abatement isn’t enough to declare state law inconsistent w/ federal law d.
Reasoning: i.
Federal law doesn’t cover survival of 1983 actions ii.
State statutes cover this
1.
They vary widely as to which suits survive and which abate
2.
Under 1988 this state statutory law modifying the common law provides the principal reference point in determining the survival of civil rights actions and must be applied unless inconsistent with the US constitution iii.
In order to resolve inconsistencies courts look at the statute and the policies behind them iv.
Nothing in 1983 indicates that a state law abating a particular action should be ignored in favor of a rule of absolute survivorship
V.
v.
LA doesn’t allow the deceased’s personal representative to be substituted as P, the action survives only in favor of a spouse, children, parents, or siblings e.
The statute there was reasonable – SC only borrows state statutes on these issues
Carlson v. Green; action brought against a federal prison official by an estate of a prisoner who died b/c of inadequate care – claim wouldn’t survive under state law; Court distinguished Robertson: a.
There the P’s death wasn’t caused by the acts of the D’s b.
A federal official must be prepared to fact the prospect of a Bivens action for unconstitutional conduct
VI.
McFadden: Court didn’t borrow state statute when the constitutional wrong didn’t cause the death – to do so would violate Bivens
VII.
Gilner p. 580 if the state allows recovery for the full value and the federal court law rule doesn’t allow for the full value – follow the federal law -- narrower
**pates 575-576
VIII.
Berry v. City of Muskogee: 10th cir a.
Facts: inmate murdered – estate brought suit and est constitutional violation based on failure to protect b.
Holding: Federal courts must fashion a federal remedy to be applied to 1983 death cases
– survival action brought by the estate of the deceased victim c.
Reasoning: i.
OK survival statute didn’t meet the stated criteria ii.
Under Robertson, it is inappropriate to look to state law survival and wrongful death statutes to supply an appropriate remedy for 1983 actions that result in death
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Statute of Limitations
I.
42 USC 1988 a.
SC will refer here when the situation isn’t in the statute or in the text of 1983
II.
Also governed by the state through 1983; 1983 doesn’t contain a statute of limitations rule
III.
Wilson v. Garcia: a.
Facts: P brought action seeking damages for unlawful arrest and beating two years and nine months after the claim arose i.
NM tort Act had a 2 year statute of limitations b.
Holding: 1983 claims are best characterized as personal injury actions for statute of limitations purposes and the state claim should be used c.
Reasoning: i.
Practice is to adopt a local time limitation as federal law if it isn’t inconsistent with federal law or policy ii.
Three step process under 1988
1.
Look to US laws to see if they are what you need
2.
If no, look to the state common law
3.
Courts apply state law if it’s not inconsistent w/federal law and the
Constitution iii.
Court first determines what the most appropriate NM statue was to apply to the claim – what source of law governs:
1.
Adopt the state’s statute of limitations
2.
Broadly categorize 1983 claims as personal injury claims a.
Favors uniformity b.
And consistency p.
What we do is look to tort claims for personal injury, then they reemphasize that you pick the state statute that's about general personal injury actions b/c there will be a lot of these cases, so there's not much chance that the statute would be unfavorable to other claims i.
You go with the more general statute ii.
In principal there will be one statute in each state that will be general personal injury and that's the best general principle we can come to
VI.
Most states don’t provide a single limitations period for personal injury actions – what then? a.
Owens v. Okure – residual or general limitations period for personal injury actions should govern over the statute of limitations for an intentional tort i.
Appropriate when the state has more than one/multiple statutes and the residual one embraces either explicitly or by judicial construction, unspecified personal injury actions
VII.
States can’t have SOLs specifically directed at 1983 actions (Arnold v. Duchesne Co.) a.
Ill motivated to curtail 1983 claims b.
Wells says that if the SOL by the state didn’t discriminate but had the period as long or longer it may count differently c.
Felder: no discrimination here – WI passed notice of claim statute providing that you had to give notice w/n 4 months of claim and then you must sue w/n four more months
– no discrimination and court applies the SOL d.
Can’t discriminate or be too brief e.
One year is fine (609)
VIII.
When they can’t find a federal rule, they make one
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IX.
X.
Only follow 1988 when there is an issue like the statute of limitations or survival **A situation normally governed by a statute but it’s not in this case
Accrual: a.
Determined by federal law b.
Delware v. Ricks: 1983 claims accure on the date of the challenged conduct c.
Unless the P didn’t have reason to know that the D’s decision was unconstitutional, then it’s the discovery rule (med mal case) i.
Accrues when the patient is or reasonably should be aware of an injury and its probable cause but not necessarily it’s possibility of negligence d.
Typically will toll (stop the clock for an amount of time) when the P is a minor or it’s a
XI.
matter of fairness
Continuing violation rule – some courts say P can recover damages for conduct that began outside but continued w/n the SOLs period but not for discreet acts that occurred outside the statutory period
XII.
SUMMARY: in all of these scenarios the 1983 policies of deterrence and vindication can trump the application of state law a.
We will ignore it if it gets in the way of enforcing federal policy
PROSPECTIVE RELIEF:
I.
Monroe v. Pate: Ps seeking prospective relief like injunctions were allowed relief long before damages
II.
You can sue for damages and prospective relief simultaneously, but you don’t have to show damages in the past a.
Some aimed at stopping something that isn’t even going on now, but threatened in the future b.
This doesn’t mean that you can’t assert a frivolous claim i.
Courts want concreteness and that you are a serious litigant
III.
When you want to change behavior of government: a.
SC has expressed concern when overseeing the activities of state and local govs.
IV.
Appropriate when the illegality is ongoing or the P shows that the challenged conduct will recur unless the D is ordered to stop it a.
Injunction – directs officials to do or to refrain from particular acts or else not only fact actions for damages but fines or imprisonment
V.
Some ways it’s easier a.
Permitted to recover against the state b.
Only legislators are immune from prospective relief c.
Barriers in federal court: i.
Tax Injunction Act: prohibits federal injunctions against state tax collection ii.
Johnson Act: prohibits federal injunctions against state utility rate making iii.
Pullman, Younger, Burford abstention doctrines – postpone or forbid federal injunctions against state action in a variety of circumstances
VI.
City of LA v. Lyons: a.
Facts: Lyons sought injunctive relief after D’s seized him and applied a chokehold rendering him unconscious and causing damage to his throat b.
Holding: Absent a sufficient likelihood that he will again be wronged in a similar way, P is not entitled to bring an injunction for past harm – federal court cannot entertain a claim from a citizen that does not assert that certain ongoing practices are unconstitutional c.
Reasoning:
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i.
Can still sue for damages ii.
The officers would regularly apply the chokehold even when no deadly force is threatened iii.
P stated that he feared that any contact he had with LA officers would provoke a chokehold iv.
The Police changed their police after 2 deaths occurred v.
P’s have to allege an actual case or controversy and have a personal stake in the outcome vi.
Past expose to illegal conduct doesn’t show a present case or controversy vii.
For an injunction, P has to prove that there is a likelihood that the P will again be arrested for and charged with violations of the same law viii.
He would have had to allege that he would have another encounter with the police but to also make the assertion that: a.
All police officers in LA always choke a citizen with whom they have an encounter b.
That the City ordered or authorized officers to act that way ix.
P must meet standing requirement for each form of relief sought c.
Ripe: as soon as the injury occurs d.
Moot – not so long as the D refuses to redress the harm e.
Standing: the injury for which the P sues is sufficient for standing f.
**These issues don’t really arise when suing for damages**
VII.
People who object to government policy on constitutional grounds but who suffer no particularized injury will claim that they are injured as taxpayers – they will lose unless it’s an establishment clause claim
VIII.
P seeking prospective relief who has est. an injury may be thwarted if the conduct has ceased and is not likely to resume (moot)
IX.
When the P hasn’t suffered an injury yet but fears that the D will harm him in the future in the absence of judicial intervention the Court could rule that the claim was on shaky ground as the injury for which prospective relief was sought had yet to occur a.
Unless the P alleges that there is some activity that he wants to engage in but the statute forbids it i.
Court can determine that the statute is unconstitutional
X.
Class action County of Riverside v. McLaughlin: a.
The county combines probable cause and arraignment and the P's were held w/o liberty and w/o a hearing until arraignment -- locked up too long b.
Any given P is in the same position as the other; the length of detention is a couple of days c.
These Ps were being held w/o probable cause – they would continue to suffer until they received this hearing d.
The violation wasn’t complete simply b/c they were released from jail.
RELEASE/DISMISSAL AGREEMENTS:
I.
What happens when a P agrees not to sue if the state dismisses the charges?
II.
Can the terms of an agreement dismissing state criminal charges effectively bar a 1983 claim?
III.
Town of Newton v. Rumery: a.
Facts: Guy arrested for tampering with a witness signs an agreement that he won’t sue if released – he’s released – sues under 1983 b.
Holding: Release/dismissal agreements aren’t invalid per se; court enforces this one
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c.
Reasoning: i.
Rule: promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by the enforcement of the agreement ii.
No per se rule that the agreements are invalid
1.
They can further public interests
2.
Wide variety of factual situations where these agreements arise
3.
Plea-bargaining isn’t coercive iii.
They aren’t coercive:
1.
Plea-bargains
2.
Some are rational choices
3.
The D’s do benefit iv.
They protect public officials from the burdens of defending unjust claims v.
Prosecutor won’t compromise the public interest in order to save the police from liability
1.
Ds also argue that the prosecutor would be loyal to the police not the state vi.
A per se rule assumes that prosecutors will seize the opportunity for wrongdoing vii.
They can further legitimate prosecutorial interests viii.
As a practical matter this is a good idea—prosecutor needs discretion
1.
Judgments about which cases go forward
2.
Which canse sare important ix.
This agreement should be enforced
1.
Voluntarily entered
2.
Independent legitimate reason to make this agreement directly related to his responsibilities
3.
Closed the civil and criminal cases
4.
Spared the victim from testifying again d.
This is a divided court 5-4 i.
O’Connor’s concurrence – D has the burden of proof e.
Seems like a case by case determination of the enforceability of the release-dismissal agreements and the outcome will depend on the facts of the case f.
Voluntariness i.
Sophistication of the signer ii.
Cost/benefit considerations iii.
Circumstances of the signing iv.
Signer is in custody v.
Represented by counsel vi.
Time with which the signer considered the document vii.
Any unwillingness viii.
Is it clear or is the agreement in legal jargon g.
Some refuse to enforce voluntary agreements if there was evidence of prosecutorial overreaching or other public policy concerns h.
Burden is on the D to prove that the agreement is enforceable i.
2 courts say it’s enforceable as a matter of law (SJ)
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Strategic and Ethical Aspects of Attorney’s Fee Awards:
I.
D can make an offer of judgment more than 10 days before trail begins. D pays costs accured until that time BUT if the other side doesn’t accept the offer and the judgment at trial is less favorable to P, then D cannot be liable for anymore costs incurred after the settlement offer a.
More than 10 days b.
D makes an offer c.
Offer refused d.
Judgment less
II.
Attorney’s fees are included in these costs
III.
This encourages settlements
IV.
Why don’t parties settle? a.
He did a study on reasons why parties don’t settle 1) the Ps usually feel they can win 2)
Ds don’t want to admit that they’re doing wrong 3) Make an offer to settle than other people may be encouraged to sue 4) One factor not mentioned much but one expects is that Defense lawyers get paid by the hour, so it’s not that economically advantageous to settle early on. 5) Ps lawyers also want a fee (not really mentioned to Eaton) BUT Wells likes these two more selfish reasons. 6) Comparing what the ultimate judgment will be v. your settlement is hard to determine. It is really hard if you are suing for injunctive type of relief (EG: P sues for more guards at prison; D settles for more supervision of inmates)
IV.
Evans v. Jeff D: a.
Facts: D’s offered P’s more injunctive relief than they were asking for in exchange for waiver of attorney’s fees – class action on behalf of handicapped children b.
Holding: Congress didn’t command that all settlements must be rejected and it’s up to the lower courts to determine if the settlements are reasonable on a case by case basis
– in this case the agreement could be accepted c.
Reasoning: i.
Congress bestowed upon the winning party a statutory eligibility for a discretionary award of attorney’s fees – it didn’t prevent the party from waiving this eligibility in exchange for a settlement ii.
The aim of the attorney’s fees act under 1983 was only to provide an extra remedy to Ps not an absolute right to fees iii.
Ethical rules disallowing this have been repealed iv.
You might could still have it in the state if you separated the reasoning for having it out of federal law and based it on state law
V.
What is the argument that it is unethical a.
D counsel can put Ps counsel in a bad place – P’s lawyer must accept the offer b/c it’s the best offer for his client and the client will accept b/c the client has no interest in it b.
NOTE – GA bar didn’t think this was unethical
VI.
Can P’s lawyer make a deal with his client that the client WON’T agree to this type of settlement? a.
They can make a contingent fee agreement b.
That would, in a way, enable them to get out of it c.
Sometimes the awards are small, so these agreements aren’t helpful
VII.
Can a lawyer agree that the P won’t settle unless P’s attorneys fees are given a.
1.2(a) suggests that this is unethical b.
Lewis v. SS baune – illegal c.
LA does have statue allowing this
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VIII.
Pony v. LA: Rather then an agreement. Can P assign his right to attorney’s fees to the lawyer. a.
General tort rule: Cannot assign your right to sue in tort. b.
Just as plain that P cannot sign away right to sue under 1988. She also cannot give away a derivative of this right.
IX.
Attorneys can discuss the importance of attorneys fees with their client
X.
ONE ISSUE: No general rule permitting fee waiver settlements; if there is some exceptional circumstances the settlement would be denied maybe a.
Bernardt v. LA: P obtained preliminary injunction b/c LA’s policy on always offering settlements without attorney’s fees. i.
This is a small amount of authority that maybe exceptional circumstances can invalidate a settlement offer.
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