SKINNY
Bivens – applies to federal officers violating constitutional rights
a. Implied right of action for constitutional right for anyone acting under color of federal
law
a. Ex: telephone company that spies on you
b. This is a federal forum and a federal source of law for constitutional violations
c. The implied right of action narrowed greatly using the special factors counseling
hesitation wording in the holding:
a. Court is reluctant to find new implied Bivens claims
b. Chilicky: Administrative remedy (reform legislation) was a special factor
counseling hesitation
1. There was an alternative scheme/remedy here – no recovery under
Bivens
c. Chappelle v. Wallace – can’t bring Bivens suit against military officers
d. You can only sue individuals, not agencies
a. You can get to the officers of the agencies even if you can’t get to the agency if
they were acting under color of federal law
e. Malesko – alters the meaning of Bivens (whittled it away)
a. State tort remedies were enough
b. Can’t sue private corporation
One way to get recovery for a constitutional violation is 42 USC § 1983
II.
III.
IV.
Monroe v. Pape – 1983 allowed for damage recovery for actions taken under color of law for
state officials
Basic Elements:
a. D must be a person (can’t sue a state or an agency)
a. Municipal government is considered to be a person
b. Act under color of law
c. Subject or causes to subject
d. Deprivation of constitutional right
1983 action is supplementary to the state action – no exhaustion rule; don’t have to exhaust
state remedies
a. Exceptions:
a. Habeas Corpus
b. Due process – in certain situations
c. Prospective relief if there are state criminal proceedings pending (Younger v.
Harris)
d. If you complain that some regulation amounts to a taking – claim isn’t ripe until
the state denies just compensation
e. Don’t have to exhaust administrative remedies before filing 1983 claim
b. Does not apply to federal officers unless they are in joint participation w/state officers
Under Color of State Law
V.
VI.
VII.
VIII.
Under color of state law embraces misuse of power possessed by virtue of state law and
made possible b/c the wrongdoer is clothed with the authority of state law
a. Using state authority in some way whether it’s valid or not and the state provides a
remedy
b. When you meet the state action requirement under the 14th amendment, you meet
the under color of requirement
c. Not eligible to sue a private party unless he is acting under the color of state action
a. Joint participation in state action
Boundaries:
a. On duty officer
b. Off duty officer
c. Using equipment and uniform
d. Job-related motivation/personal motivation
e. Security guards
Specific Constitutional Context
a. Racial discrimination (more likely) vs. Free Speech
Suing Private Actors Under Color of State Law
a. Self-Help
a. Lugar v. Edmondson – use the Court to get an attachment of propert
1. Jointly participated with the state so a state actor
2. Two part test:
a. Deprivation must be caused by the exercise of some right or
privilege created by the State or 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
b. Must have joint participation
c. Flagg Bros v. Brooks: not a state actor – followed a UCC provision
1. Totally private agreement
2. State must compel the action, not just support
b. Contracting out and symbiotic relationships
a. Burton: racial discrimination case – important b/c the court is more likely to
impose liability for racial discrimination
1. Sift facts and weigh circumstances – look at all of the different factors to
see how much state involvement is in the private sphere
b. Now it’s not enough to have a mutually beneficial relationship b/t the state and
the private party – the test: is there a sufficiently close nexus between the state
and the challenged action of the regulated entity
c. Rendell-Baker v. Kahn: receipt of public funds isn’t enough and the fact that a
state committee approved decisions isn’t enough
d. The test: (sufficiently close nexus test)
1. Fairly attributable to the state
2. Extensive regulation doesn’t mean state action
3. Funding by itself isn’t enough
4. Coercive power
5. Public function
6. Symbiotic relationship
c. Conspiracies
a. Dennis v. Sparks: private individual was state actor when conspiring with a judge
b. Elements of proof:
1. Strong showing of agreement
2. D’s reach an understanding
3. Produce a smoking gun
4. Participant must share the common objective of the plan – share with
the public entity the goal of violating P’s rights
c. Castellano v. Fragozo: Arson case – former employee and security guard burn it
down – cooperation b/t police officer and private person; state actor
d. The agreement doesn’t have to be spoken
e. Agreements that aren’t corrupt:
1. Entwinement (Brentwood) – 6 factor test p. 14
Analyzing the Claim:
(1) Non-custodial violations: substantive/procedural due process
a. This is also for a passenger in a car during a car chase
b. Mental state is shock the conscious with intent to injure
(2) Pretrial detainees/mental patients: SDP
a. Deliberate indifference that depends on context
(3) Persons in pursuit of by police: substantive due process
a. Shock the conscious
(4) Persons under arrest, before turned over to someone else: 4th amendment
a. State of mind is objective reasonableness
(5) Convicted of crime in custody: 8th amendment
a. State of mind depends on context – opportunity to deliberate
IX.
Due Process Violations:
a. “No state shall deprive life, liberty, or property, w/o due process”
b. Property:
a. Old: Land, chattels, not the focus – generally not the focus here
b. New: state created property
1. Exists if the state creates a “legitimate claim to entitlement” to a
benefit
a. What is the nature of the benefit
b. Objective test
2. Employment, Ks, welfare benefits
a. If someone can only be fired for CAUSE that person has a
property interest in the job – at will employee doesn’t
X.
c. Liberty:
a. Old:
1. Freedom from confinement – can’t lock people up without justification
a. Pre-trial detainee can’t be placed in segregation w/o notice and
hearing (opportunity to be heard)
b. Mentally ill people can’t be incarcerated against their will
2. Freedom from personal injury
a. Paddling/corporal punishment
3. Reputation
a. 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
b. New:
1. Usually prison cases where prisoners are transferred to worse
conditions
a. You had old liberty and now the state is in charge of your liberty
2. Situation must be an “atypical and significant hardship in relation to the
ordinary incidents of prison life”
Procedural Due Process:
a. The state has the authority to deprive the P or liberty and property as long as it
proceeds in the appropriate way
b. If there is a state created interest, and it is taken away, then individual is entitled to
Procedural DP. Three steps:
a. Is a state actor present
b. Is life, liberty, or property at issue
c. What process is due under Matthews
c. General requirements of a due process hearing:
a. Notice of action to be taken
b. Opportunity to rebut
c. Impartial decision maker
d. When it is determined that there is a property or liberty interest, has it been taken
away?
e. If it has been taken away, was their procedural due process?
a. Matthews Test:
1. Private interest
XI.
2. Government interest
3. Risk of deprivation of such interest and the probable value of additional
and substitute safeguards
4. Balancing test---case by case determination
f. This is a balancing of competing interests
g. The point is to identify the circumstances in which they can be taken away (misconduct
or neglect of duties) and determine if these have been satisfied
Substantive Due Process:
a. These are limits on state authority – stricter limits on official actions
b. The state of mind/culpability must be determined by looking at each amendment/text
to determine what is required
c. Shocks the conscious: 14th amendment SDP; split second issue
d. Deliberate indifference: when there is no “split-second” issue
a. Custodial prison situation (8th amendment)
b. Medical care for pretrial detainees
c. Protection for pretrial detainees
d. Involuntary mental patients
e. Malicious Intent to harm: prison riots and chases (8th amendment)
XII.
8th Amendment/Rights of People in Custody:
a. Must be convicted here
b. If pre-trial detainee or in custody after sentence is complete then the 5th or 14th
amendment is applicable (deliberate indifference)
c. Deliberate Indifference: (Actual Knowledge)
a. When prisoner challenges conduct, the guards must have actual knowledge of
the risk and conscious disregard of the risk (subjective test – did the actual
officer know about it and didn’t do anything)
1. Was the person aware of the facts from which the inference could have
been drawn that a substantial risk of harm existed and was
disregarded?
2. Circumstantial evidence can show subjective actual knowledge
d. Intent to Injure/Malicious and Sadistic Purpose for causing harm: when there is a split
second decision at play
a. Was the decision made in good faith or w/a malicious and sadistic purpose
XIII.
4th Amendment: Excessive force claims while ‘seized’
a. When the person is “turned over” then SDP kicks in
b. Objective reasonableness:
a. Graham balancing test:
1. Nature and quality of intrusion on the individual balanced with the
government’s interest in making the seizure
a. Severity of crime at issue
b. Suspect poses an immediate threat to officers safety or the
safety of others
c. Actively resisting arrest or attempting to evade
b. Objective standard: although judged by the officer at the scene the standard is
reasonableness (would a reasonable officer in that situation; split-second
decision is taken into account)
c. Objective reasonableness is a jury issue
c. Malicious Prosecutions: must show that the prosecution was
a. Directly or indirectly instigated or continued by D
b. W/o probable cause
c. w/improper purpose (malice)
d. Terminated favorably to the P
d. Seizure: According to the 7th circuit, occurs when
a. Physical force along with show of authority
b. Did the person submit to the show of authority
c. If a car is bumped during a chase – seizure
d. If a car runs into a roadblock, seizure
XIV.
Equal Protection
a. There can be a class of one
b. Can win by showing an irrational decision, but not often
c. Better to have a bad reason that you were treated differently
d. Needs to be irrational and wholly arbitrary
e. Class of one has no place in the public employment context
XV.
Adverse Employment Actions
Public Employment Speech: concerns public employee who is fired or otherwise penalized
on account of speech (retaliation)
a. A state may not condition public employment on the employee giving up constitutional
rights
b. Two part test:
a. Matter of Public Concern: does it pertain to public concern?
1. Is it part of the job: speech made in the course of employment is not a
matter of public concern
a. Public forum, more likely to be protected
2. No, Then virtually no protection
3. Yes? Then Pickering balancing test
b. Balancing test:
1. State’s interest as employer in promoting the efficiency of the public
service performed
a. Need for close working relationships
b. Manner, time, and speech
i. At the office less tolerable
2. Individual’s interest in commenting on the matter of public concern
c. Adverse employment action: if the P wins the two part test here, then you look to see
if the government’s response employment action.
a. Firing is adverse action. Demotion and transfer may be.
b. This is a circuit court determination – 2 different approaches:
1. Focus on the severity of the action
2. Was it reasonably likely to deter speech?
d. Causation: was the retaliatory motive the reason for the adverse action?
a. P must prove the absence of probable cause
b. P must prove that the adverse action was motivated in substantial part by
unconstitutional factors
c. D then has to prove that the same action would have been taken
XVI.
Affirmative Duties/Failure to Act: state does have this as a general rule
a. Government/state doesn’t have to take affirmative steps to prevent harm to citizens by
private 3rd parties:
a. Includes the right to governmental aid
b. May have an affirmative duty if there is a “special relationship”
a. Incarceration
b. Analogous to a Custodial environment
1. Most limit this to situations where the P has been taken into custody of
the state or the state placed some restraint on self-protection
2. Not school
3. Foster care – circuits differ
c. Involuntary confinement or placement in some type of state custody
c. State Created Danger: circuit courts have fashioned this in response to Deshaney
a. Affirmative act by the D that creates or increases the risk of danger to the P
b. D acted with requisite level of culpability (reckless disregard/harm), intent to
harm, deliberate indifference with actual knowledge (depending on the circuit)
c. 3 different tests: Kneipp test, 10th circuit test, Harvard test
1. Wells doesn’t like any of these tests
XVII. Suing local governments (not states) can be sued – don’t have immunity
1) Official Policy
2) Custom
3) Failure to train
4) Final policymaker
a. Crucial distinction b/t official and individual capacity damage actions
a. Official capacity: brought against the local government or state employer. If
brought against local government, it triggers (you must show) official policy or
custom. State official – barred by 11th amendment
1. You can sue under Ex Parte Young for injunctive relief
b. Individual capacity: brought against the officer personally – may implicate
qualified or absolute immunity, but does not trigger (don’t have to show) official
policy or custom
b. Liability must be premised on a constitutional violation by someone
XVIII.
XIX.
XX.
Official Policy/Custom
a. Official Policy: something in writing followed by the agency or the city that is in
deliberate indifference to constitutional rights (ordinance, policy statement)
b. Custom: no written rule, but lower level employees do a certain thing habitually and no
one has ever told them not to – need some level of knowledge by a high official
Final Policymaker: a single act by a final policymaker will trigger municipal liability
a. Pembaur: single decision by municipal policymakers in certain situations
a. Legislative decision (county commission)
b. Executive decision
c. Must be the final policymaker for the particular decision ordered
b. Decision making doesn’t equal policy making
Failure to Train: page 41
a. Can be an actionable policy or custom if the local government or policymakers are
deliberately indifferent to the constitutional rights of others
a. Objective standard
1. Based on obviousness or constructive notice
2. Obviousness: focus on the adequacy of the training program in relation
to the tasks the particular officers
b. Different from the 8th amendment deliberate indifference standard
b. There must be a deliberate action attributable to the municipality itself and it is the
moving force behind the P’s claim
c. Liability if the policy itself is unconstitutional
a. If the policy wasn’t adopted then the policy that the P thinks should have been
adopted has to be constitutional
d. Must show that the failure to train caused the violation/would trained officers have
behaved differently?
e. Single hiring decisions by policymakers:
a. Causation and culpability – strong link b/t the bad background and the specifc
act
b. Plainly obvious consequence of the hiring decision
c. This is not a failure to train...more difficult to prove
f. Supervisor liability: supervisors may be liable in official capacities for damages
regardless of the liability to the local government – no Supreme Court case, could say
that it doesn’t exist, but make the argument
a. They may not be the final policymaker, but they may be liable if the supervisor is
deliberately indifferent to the unconstitutional conduct
XXI.
XXII.
XXIII.
b. Standard isn’t clear, probably subjective like Farmer v. Brennan
Causation: pg. 44-46
a. But-For Causation – Cause in fact
b. Mixed Motive: FA and retaliation
a. MT. HEALTHY Test:
1. P must prove beyond a preponderance of the evidence that the adverse
action taken against her was substantially motivated by unconstitutional
factors – If they can’t, P loses
2. Then burden shifts to D to prove that the same action would have been
taken even in the absence of the unconstitutional motive
b. Balance P’s interest in engaging in activity and the government’s ability to make
decisions without judicial interference
c. P; rights are fundamental fragile, and hard to prove. D; rights are antimajoritarian and hard to change.
c. Formal Policy: if there is a formal policy and someone violates it and is fired then there
is cause and fact
d. Custom: relatively simple – D could argue personal motive, but difficult
e. Governmental and Supervisory Liability: Must be an affirmative link b/t the policy and
the particular violation – Allen
a. Single violation of rights accompanied by a showing that the city failed to train
presenting an obvious potential for the violation is sufficient to trigger
b. Expert witnesses will play a large role here
f. Intervening Causes: Professor Wells – be cautious about whether a violation has
occurred but once it has, use looser causation standards -g. Proximate Cause: state law irrelevant
a. Individual victim is identifiable
b. Policy driven (1) federalism (2) Policy Driven (3) gut level feeling of resp.
c. Must be a foreseeable harm
Absolute Immunity: pg. 48-51
a. Defense – P will escape all liability here and doesn’t have to defend 1983 claims
b. State and local legislators, judges, witnesses, prosecutors
c. Must be acting in their official capacity
a. Judges – judicial capacity
b. Legislators: legislative capacity
c. Prosecutors: prosecutorial function; not administrative or investigatory
d. Prospective Relief: state legislators are protected from both prospective relief and
damages not protected from declaratory or injunctive relief
a. Judges nor prosecutors are immune from prospective relief
e. Functional Approach: look at the nature of the functions
Qualified Immunity: pg. 51 – 53
a. Clearly established statutory or constitutional right
a. The right must be clear and violated – must have a fair warning
XXIV.
XXV.
b. Can be factually distinguishable case
c. Clearly established based on specific facts at the scene
b. Of which a reasonable person would have known about it
c. 4th amendment: the objectively reasonable force question and the qualified immunity
question can both be argued
d. 8th amendment: sadistic or malicious for the purpose of causing harm – don’t get two
bites from the apple
e. Officers are protected in their personal capacity, but cities, counties, etc. are not
Damages:
a. Don’t get compensatory damages absent proof of actual injury
b. Nominal damages: can be received for denial of a right absent proof of actual injury
c. Emotional Distress: circuit split here –
a. 11th Circuit, may be inferred from the circumstances
b. Some say P’s testimony alone is enough others required more
c. The distress must be from the injury
d. Economic Loss
e. Presumed damages: the Court left it open as to if you can have them or not
a. Must prove actual harm (mental and emotional distres
b. FA/Defamation cases – there is an argument here b/c it’s so difficult to prove
damages – we don’t know who heard it
c. No recovery for the inherent value of the right itself any amount would be
speculative, arbitrary and inconsistent
1. Different from presumed damages that are based on actual harm – the
harm is just hard to prove
f. Punitive damages: may recover under 1983
a. Jury may award for conduct the is outrageous, if the D’s motive is evil or he is
recklessly indifferent to the rights of others
b. Municipalities are immune to punitive damages, but they may pay the punitive
damage award for their officers
c. There are constitutional limits – anything more than 10 times the compensatory
award is presumptively unconstitutional – see Gore
g. Prospective Relief:
a. When illegality is ongoing or the P shows that the challenged conduct will recur
unless D is ordered to stop
b. Not barred against state government
c. Best option when – money damages are precluded, law isn’t clearly settled (QI
kicks in)
d. Can get attorney fees with an injunction
e. Standing – injury must be real and immediate
f. Mootness – prevents injunction if the ordinance is repealed and not likely to be
re-enacted but the change must be permanent
Survival/Wrongful Death
a. No survival, wrongful death, SOL in 1983, 1988 directs the inquiry to state law
b. Courts will use state law unless:
a. There is an adverse effect on the policies of 1983
b. Inconsistent with federal law
c. Wrongful Death: death must have been caused by the tort
d. Survival: cause of death is generally irrelevant
XXVI. Statute of Limitations:
a. Classified as a personal injury claim
b. Use the state’s general personal injury claim
c. If the state has more than one statutes for personal injury actions, then use the
residual or general limitation for a personal injury action
d. If the SOL is directed specifically at a 1983 claim that is ill-willed to curtain it, can’t use
it
a. If the state statute of limitations is discriminatory but had the period as long or
longer, then the court might determine differently
e. Accrual: 1983 – on the date of the challenged conduct or when the patient is or
reasonably should be aware of an injury
a. Will toll if the P is a minor or it’s a matter of fairness
XXVII. Release-Dismissal Agreements: not invalid per se
a. Case by case determination of the enforceability of the agreement and the outcome
will depend on the facts of the case
b. See page 63 for determining factors
XXVIII. Attorney Fees
a. 1988(b) – attorneys fees for the prevailing party
b. Prevailing party:
a. Nominal damages ok – must be reasonable
b. Immunities kill fees
c. If the lawsuit is frivolous, D might get fees
c. Lodestar: reasonable hours times reasonable rate
d. Strategic and Ethical Aspects:
a. Fee waivers aren’t per se invalid, but they may be in some cases
b. P cannot assign to the lawyer the right to waive attorneys fees
c. There can be a settlement offer including attorneys fees:
1. If the opposing party rejects it and then goes to trail and gets less than
the initial offer, the party forfeits attorneys fees
2. D can make an offer of judgment more than 10 days before trial begins.
D pays costs accrued until that time, but if the P doesn’t accept and the
judgment at trial is less, then D can’t be liable for anymore costs
incurred after the settlement offer