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Section 1983 Civil Lit Essay

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Civil Rights Outline Contents Introduction3 42 U. S. C. § 19833 Monroe v. Pape & Related Cases3 11th Amendment4 Exceptions to 11th Amendment State Sovereign Immunity5 The 11th Amendment and § 19837 Suits Against Officers8 Bivens8 Rejecting or Limiting Bivens8 Official Immunity9 Absolute Immunity10 Legislative Immunity10 Judicial Immunity10 Witness Immunity11 Prosecutorial Immunity11 Qualified Immunity12 Sequence of Analysis (“The Order of Battle”)13 Appealability of the Denial of Qualified Immunity15 “Reasonableness”15 Qualified Immunity Comparison with Liability Rules17 Evolution of Qualified Immunity17

Governmental Liability19 Official Policy or Custom20 Four Incoherences in § 1983 Law22 Remedies for What Wrongs? 23 Constitutional Rights Enforceable Under § 198323 Reputational Harm24 Failure to Protect from 3rd Parties25 State of Mind in Constitutional Torts26 Procedural Due Process Violations27 Substantive Due Process Violations28 Non-Constitutional Rights Enforceable under § 198329 § 1983 and Implied Private Rights of Action31 Damages32 Compensatory Damages32 Punitive Damages33 Punitive Damages for Municipalities34 Attorney’s Fees35 Identifying a Prevailing Party36 Administrative Success36

Nominal Damages36 Catalyst Theory36 Determining Fee Awards37 Multiple Claims38 Reasonable Rates39 Contingent Fees39 Administrative Proceedings39 Risk Enhancement39 Attorney’s Fees & Settlement Negotiations41 Fee Waivers41 Rule 6841 Administration of the Civil Rights Acts: Intersections of State and Federal Law42 § 1983, Habeas Corpus, and Res Judicata42 Additional Reconstruction Litigation47 § 1982 – Freedom of Property48 § 1981 – Freedom to Contract49 Structural Reform Litigation50 School Desegregation51 Prisons54 Strategies to Limit Structural Reform56 Class Themes57 Remedy Shapes the Right57

Statutory versus Common Law Construction57 Introduction 42 U. S. C. § 1983 • “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, 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 [allows monetary damages], suit in equity, or other proper proceeding for redress. ” Monroe v. Pape & Related Cases • Home Telephone & Telegraph Co. . Los Angeles (p. 44), 1913 o Conduct violative of state law can constitute action under the color of law for the 14th Amendment ? This is a broader conception of state action than that cited in Monroe • United States v. Classic (1941) o Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken “under color of” state law. • Screws v. United States (1945) o 18 U. S. C. § 242, the criminal counterpart to § 1983, applied criminal liability for “willful” acts ?

Specific intent was required for § 242, but is not required for § 1983 o § 1983 should be read against the backdrop of tort liability that makes a man responsible for the natural consequences of his actions • Williams v. United States (1951) o A person who acts under the apparent authority of state law may be held liable even if the conduct violated state law • Monroe v. Pape p. 32 (1961) o Monroe created constitutional torts – federal private right of action for monetary damages for violations of federal constitutional rights o Facts Chicago officers without a search or arrest warrant broke into a home, detained and interrogated ? (Monroe), and released him without filing criminal charges. o Holdings ? “Under color of law” means apparent authority, not just state policy or custom • Even if state law actually condemns what the official did, they could only do it because they are “clothed in the authority of state law” ? § 1983 provides a cause of action to vindicate rights found elsewhere • § 1983 does not provide any rights at all – you cannot sue for a § 1983 violation ?

The text of § 1983 allows for monetary damages, not just injunctive relief • “Action at law” refers to the availability of monetary damages • Previously, only injunctive relief was available under Ex parte Young ? There is no exhaustion requirement for § 1983 • The ? need not attempt any state remedies before bringing a § 1983 action ? § 1983 remedies are available against state and local officers, but not federal officers or municipalities. • Bivens later xtended a private right of action against federal officers • Monell later extended a private right of action against municipalities. o Jeffries ? The three “main aims” of § 1983 the majority cites actually support Frankfurter’s dissent, arguing that activities that state law prohibit and condemn cannot be “under color of law” • To overrule certain invidious legislation by the states against federal rights • To provide a remedy when state law is inadequate • To provide a federal remedy when the state remedy is adequate in theory, but unavailable in practice. Frankfurter’s dissent would put the burden of proving an unconstitutional custom or usage on the ? , which is a tremendous evidentiary burden • To justify Monroe, the Warren Court majority must have assumed that state courts are not reliable protectors of federal rights. This is consistent with: o Brown v. Allen (1954) ? Extends federal jurisdiction of habeas corpus to state criminal ? s • Thus potentially overruling the entire state judiciary ? The premise is that federal courts are better than state courts at enforcing federal law o Fay v.

Noia (1964) ? If you didn’t raise your federal claim (and the state courts therefore didn’t rule on it), you could still bring the claim in a federal court ? Again, the premise is that state courts are not adequate as defenders of federal rights Theories on why Congress can regulate and punish private discrimination • A 19th Century Lawyer’s Perspective o Section 5 of the 14th Amendment granted Congress the power to pass legislation against violations of Section 1 of the 14th Amendment. Only states cannot violate Section 1 (“no States shall”).

This legislation does not deal with state action, it deals with purely private action, so the legislation extends beyond the reach of Section 5. • By 1961, the notion of a constitutional incapacity to reach purely private conduct disappeared. But what remains is what Congress actually did in the earlier Civil Rights Act and the Court’s reaction to the Civil Rights Cases o In 1961, most lawyers would have believed that Congress had the power to provide a federal remedy to unauthorized conduct of a state official when state law was ready, willing, and able to correct the problem. In 1961, lawyers also would have said that Congress had not yet taken that step. • Monroe v. Pape changed the way lawyers thought! 11th Amendment • The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state • The 11th Amendment was clearly meant to overrule the Court’s decision in Chisholm v.

Georgia, which held that a South Carolina merchant could sue Georgia to recover under a breach of contract o The 11th Amendment exists not because it does so much, but because it does so little ? If we hadn’t found ways around the 11th Amendment, we would have gotten rid of it • Hans v. Louisiana, 1890 o Facts ? Hans, a Louisiana citizen and bondholder, sued the state for defaulted on the interest payments of its bonds, arguing the state impaired the obligation of its contract in violation of the Contracts Clause (per a resolution defaulting on its bonds).

The state asserted 11th Amendment sovereign immunity. o Holding ? The 11th Amendment gives states immunity from suits by their own citizens as well as citizens of other states. • It would be anomalous to allow states to be sued by their own citizens, regardless of the plain language of the statute • This implies that sovereign immunity is in Article III itself, not just the 11th ?

Hans presents the Immunity Interpretation of the 11th Amendment • No individual can sue the sovereign in the courts of the sovereign without permission, regardless of what state the individual is a citizen of o This is the robust, almost all-encompassing view of the amendment o It could be argued that the prospect of money damages limits the underlying immunity, if not the right itself. • Edelman v. Jordan, p. 12 (1974) o Facts ? Jordan brought a class action challenging Illinois officials administering federal-state programs, seeking retrospective relief for previously withheld funds. Holding ? The 11th Amendment does not bar suits for prospective relief, but bars suits for retrospective relief. • Even when prospective relief will be a substantial drain on the state treasury ? Some actions brought against a state official in his personal capacity will be found to be suits against the state which are thus barred by the 11th Amendment • When the action is for the recovery of money from the state, the state is the real party in interest and is entitled to invoke sovereign immunity even when state officials are nominal ? s ?

Equitable restitution is no different than money damages. ? The difference between relief barred by the 11th Amendment and that allowed under Ex parte Young may be minimal • Fiscal consequences to state treasuries that are necessary (and ancillary) conditions of compliance with prospective decrees are allowable and often inevitable • But requiring payment of state funds as a form of compensation for prior error is not a necessary consequence of compliance o Monetary loss resulting from a past breach of legal duty by state officials is barred by the 11th Amendment Diversity Interpretation of the 11th Amendment o The 11th Amendment just bars suits by individuals against states if they are brought to federal court solely because of diversity jurisdiction. ? If federal jurisdiction is based on any other justification (such as a federal question), the 11th Amendment is inapplicable o The problem is that the 11th Amendment would not have been ratified by the states if it had included a proviso allowing a state to be sued by its citizens Exceptions to 11th Amendment State Sovereign Immunity True sovereign immunity is deeply destructive of the Court’s power, so the Court created a series of exceptions and limitations 1. Suits against a municipality or unit of local government o Lincoln County v. Luning, 1890 ? The 11th Amendment does not protect municipal entities from suits in federal court. o Later cases extended this holding to other units of local government. ? But other doctrines limit local governments’ direct liability for constitutional violations, so civil rights plaintiffs typically sue the government officer rather than the local (or state) government. Jeffries – There is no rational reason for this distinction; it is an illogical policy choice 2. Suits for Prospective Relief o Ex parte Young, p. 8 (1908) ? Allows suits for injunctive relief against state officials for conduct under color of law for violations of federal law. ? Don’t sue the state as a ?! Name the official as the ? and the suit will follow the office ? The Fiction of Ex parte Young • One may sue a state officer in his individual capacity for actions taken in his official capacity. Pennhurst State School & Hospital v. Halderman, 1984 ? The injunctive relief must be based on federal law. Federal courts lack jurisdiction to hear suits against state officials for injunctive relief based on state law. 3. Congressional Abrogation of Sovereign Immunity – 14th Amendment Litigation o Fitzpatrick v. Bitzer – Congress can abrogate state sovereign immunity when it legislates under its 14th Amendment, § 5 enforcement powers ? Quern v.

Jordan – A clear statement is required to abrogate of state immunity from a private suit ? Alden v. Maine – Congress cannot abrogate state sovereign immunity in state courts unless it could do so in federal courts. o Seminole Tribe – Congress cannot abrogate sate sovereign immunity when it legislates under its Article I powers ? Patent infringement, for example, was deemed a proper congressional concern under Article I, but that does not give Congress the power to abrogate state sovereign immunity o Example: The ADA Title I, dealing with employment, is an Article I power can cannot abrogate immunity ? Title II, prohibiting the exclusion of disabled individuals from receipt of state benefits, was passed under 14th Amendment § 5 powers and can abrogate sovereign immunity • Insofar as Title II creates a private cause of action against states for 14th Amendment violations (which incorporates other amendments), Title II validly abrogates state sovereign immunity 4. Suits against an Officer in his Personal Capacity Monroe v. Pape – § 1983 allows suits against state officers sued in their individual capacity for conduct they committed (or would commit) in their official capacity. o Identifying individual capacity ? Hafer v. Melo, p. 54 (1991) • State officials sued in their personal capacity are “persons” for the purpose of § 1983 and the 11th Amendment, but state officials sued in their official capacity are arms of the state. o The ? ’s pleading generally controls whether the suit is personal/official ?

Courts may re-characterize a suit against an officer as a suit against the state if it sounds in contract rather than in tort o Limits of this exception ? Edelman v. Jordan, p. 12 (1974) • Federal courts can enjoin state officials, but only prospectively and under federal law. • No retrospective damages. 5. Suits in the Courts of Another State o The 11th Amendment refers to the “judicial power of the United States” – it applies only to federal courts, not to state court ?

A state may create sovereign immunity rules for its own courts, but the defense may not apply in the courts of another state 6. Suits by the federal government or sister states o States are deemed to have waived their immunity to these suits when they ratified the Constitution 7. Waiver of Sovereign Immunity by the State o What constitutes waiver? ? Perhaps if the state behaves in a way the Constitution specifically forbids? • This makes sense, but is exactly contrary to Hans ?

Statutory Consent that waives immunity (example: in contracts or tort areas) • The state must make a clear declaration that it is waiving immunity in federal court o Otherwise, the waiver will be read as applying only to state courts • It is not sufficient to waive jurisdiction if the state just: o Consents to suit in state courts o States its intention to sue and be sued o Authorizes suits in “any court of competent jurisdiction” ?

Waiver by litigation behavior • Lapides v. Board of Regents of the Univ. of Georgia, p. 495 (2002) o The voluntary invocation of federal court jurisdiction by a state (usually through removal on a counter-claim) constitutes a waiver of sovereign immunity). • If the state fails to raise the sovereign immunity objection, the courts have no obligation to notice it and take action sua sponte. Wisconsin Dept. of Corrections v. Schacht. Conditional Waiver • Congress has some latitude to condition the receipt of federal funds by a state on its willingness to waive its immunity o But the financial pressure must not reach the level of compulsion ? There is no doctrine of Constructive Waiver • The “mere fact” of state participation in a federal program is not sufficient to establish waiver • College Savings Bank v.

Florida Prepaid – A state does not waive immunity by voluntarily choosing to participate in a program that Congress unambiguously stated would subject the state to liability o “Constructive consent is not a doctrine commonly associated with the surrender of constitutional rights” The 11th Amendment and § 1983 • § 1983 does not explicitly abrogate state immunity in federal court o As far as § 1983 is used to enforce 14th Amendment rights, an argument exists that would construe it to abrogate state immunity, but the Court has not followed that argument.

Edelman, Quern v. Jordan. • Originally, the Court interpreted suits for money damages against a state officer as a suit against the office and thus a suit against the state that was barred by the 11th Amendment. Will v. Michigan Dept. of State Police. This interpretation was overruled in Hafer v. Melo (below) o Now state officials may be sued in their personal capacity for their official actions and thus § 1983 sidesteps around the 11th Amendment without being an actual exception to it • Hafer v. Melo (p. 4) ,1991 o Facts ? A new Auditor General fired a number of employees, who sued her. She claimed that the suit was against her in her official capacity, since that was the only capacity she had to fire them. o Holding ? State officers may be sued in their personal capacity for their official actions for monetary damages without implicating 11th Amendment state immunity. • “Insofar as respondents seek damages against Hafer personally, the 11th Amendment does not restrict their ability to sue in federal court. Official versus personal capacity is usually a pleading device and the ? ’s pleading controls o Jeffries’ Three Factor Test for determining when a personal suit is really an official suit ? An attempt to bring a personal-capacity suit is more likely to be disallowed: • In cases where the underlying claim is more like a contract than a tort o When the ? s claim is that he would have received money from the state absent some wrong-doing – where the state has some debt • When the claim is statutory rather than constitutional o Statutory claims are more likely viewed contractually o Constitutional violations sound in tort • In cases where the fiction that any resulting judgment will be paid by the officer personally is impossible to maintain ? In modern cases disallowing officer suits, all three factors are present Suits Against Officers Bivens Bivens v. Six Unknown Names Agents of the Federal Bureau of Narcotics, p. 60 (1971) o Facts ? FBN officers entered ? ’s apartment, arrested him in front of his family, threatened to arrest the entire family, and searched the apartment. ? was interrogated, booked, and “visually” strip searched. ? alleged the officers lacked a warrant and probable cause. o Holding ? Violations of the 4th Amendment by federal officers support a claim for damages • Even though § 1983 claims are limited to those acting under color of state law ? Bivens creates a parallel to § 1983 § 1983 lets you sue state officers, Bivens applies to federal officers o Harlan (concurrence) – The appropriateness of compensatory relief does not turn on the deterrent effect liability will have on federal officials’ conduct ? Other forms of relief are not appropriate to harms of this type: • Injunctive relief will not obviate the harm • The government itself is immune from liability • The exclusionary rule is irrelevant because Bivens was not charged • “For people in Biven’s shoes, it is damages or nothing. o Finding an implied private right of action was not controversial at the time, but it is now o Jeffries – The question to ask about Bivens is whether Congress could overrule it. Harlan, in the concurrence, thought they could, suggesting it is a common law remedy, not a constitutional one. ? Brennan (majority) implied a condition on congressional power – Congress may repeal the damages remedy, but it must provide an adequate substitute remedy • Expanding Bivens Bivens allowed damages actions for 4th Amendment violations by federal officers, but later cases expanded the concept to other constitutional provisions. ? In each case it is “damages or nothing” – there is no alternate remedy available o Davis v. Passman ? A congressman’s administrative assistant was allowed to bring a claim for damages on an allegation of sex discrimination under the 5th Amendment Equal Protection Clause. o Carlson v. Green ? The 8th Amendment supported an action against federal prison officials for allegedly failing to provide adequate medical attention

Rejecting or Limiting Bivens Two grounds for rejecting a Bivens claim • The availability of an alternative remedy o Bush v. Lucas, p. 69 (1983) ? An individual who has access and entitlement to participate in an alternative remedial structure cannot benefit from Bivens • Bivens was limited to cases where it was “damages or nothing” • The ? had already been restored to his original position and received backpay after an unlawful demotion o Chappel v.

Wallace (1983) ? Bivens does not extend to a damages action against a military commanding officer. • There were factors that provided a remedial structure (constant evaluations of commanding officers, procedures for challenging the legality of an order, etc) • Special factors counseling hesitation o United States v. Stanley (1987) ? The US Army administered LSD experimentally to soldiers to discover what it would do without telling them (about 20 years before the action).

One of the soldiers suffered long-term damages and brought suit. ? The military is special – the intrusion of the courts into the military is a bad idea • Even though it was damages or nothing, the Court choose nothing o Correctional Services Corp. v. Malesko, p. 71 (2001) ? In FDIC v. Meyer, the Court refused to extend Bivens to actions against federal agencies themselves. Here, the Court extended Meyer to include entities contracting with the federal gov’t. The purpose of Bivens is to deter individual federal officers from committing constitutional violations, not to deter federal agencies or contractors. ? Malesko treats Bivens as more interested in deterrence than in compensation • Jeffries – The majority is hostile to Bivens, perhaps because it is in the category of judicially created private rights of action, which are now disfavored Official Immunity • § 1983 is silent on the issue of immunity o Legislative and judicial absolute immunity were well-established doctrines ?

Congress did not address either one in § 1983, so it is read to be compatible with the doctrine of absolute immunity • This is very different from other forms of statutory interpretation – it looks like pure common-law rationale, in which the Court looks at precedent and policy • Most immunity decisions involve claims for damages o Immunity from a damage award does not necessarily mean immunity from prospective relief • Level of Immunity – How Much Protection is There? o Level is the amount of protection the immunity applies o Absolute immunity protects even In cases of unconstitutional motive (Bogan) ? In cases of highly irregular (or unique) procedure (Stump) ? When alternative remedies do not exist (Stump) • Scope of Immunity – What Acts Does it Protect? o Governed by the function, not the office ? “Legislators” and “Judges” aren’t protected, but legislative or judicial functions are o An executive officer may have legislative immunity (In Bogan, Mayor Bogan received legislative immunity because he introduced legislation and signed an ordinance into law). o In Supreme Court of VA v.

Consumer’s Union, the VA court was found to conduct legislative, judicial, and executive functions. When sued, the immunity of the court would depend on the which function the ? was complaining of. • Actions Under Color of Law & Immunity o A judge who was groping women in his chambers was found to be acting under color of law even though he was denied judicial immunity ? Because he was using his apparent authority as a judge (the only reason the women were in his office were because he was a judge), even though he was acting outside the scope of his judicial authority Immunity for Federal Officers o Two differences aside (federal legislative protection under the Speech and Debate Clause and Presidential Immunity), everything about immunity is applicable to both federal and state officials o Butz v. Economou, p. 102 (1978) ? It is untenable to draw a distinction between state and federal officers for immunity purposes under § 1983 or Bivens. In most cases, immunities of state and federal officers are the same. Absolute Immunity Provides complete protection from liability, regardless of the wrongfulness of the act or the maliciousness of the official’s motivation • Justified as protecting unintimidated decision making o Officials should not be thinking about their own liability o Officials should be insulated from errors because we would rather they act and make a mistake than not act o Officials should not be distracted from their duties by litigation o We do not want to discourage people from entering public office Federal legislators have special protections given by the Speech and Debate Clause o Evidentiary privilege – legislative actions cannot be entered into evidence against them ? You can’t admit evidence of a legislator’s vote or what they said in a floor debate or committee proceeding • The President is the only executive officer with absolute immunity from damage awards for official misconduct (governors and mayors have no equivalent absolute immunity). Legislative Immunity • Legislators and those acting in a lawmaking capacity are absolutely immune from damages and injunctive relief for their legislative acts. Tenney v. Brandhove) o Legislative immunity means less than it first appears – while the legislative decision maker is immune, the executive who enforces the law is not. ? So all legislative immunity does is shift the ? from an official conducting legislative functions to an official conducting executive functions • Bogan v. Scott-Harris, p. 74 (US 1998) o Facts ? Mayor Bogan proposed legislation and signed into law an ordinance that eliminated the ? ’s job. o Holdings ? Legislative immunity applies to federal, state, and local officials. Absolute immunity attaches to all actions taken in the sphere of legitimate legislative activity. • The scope of the immunity depends on the function –immunity attaches because the mayor, an executive officer, was conducting a legislative function. ? This case was unusual because there was no executive official to serve as a good ?. Judicial Immunity • Persons acting in a judicial capacity are absolutely immune from damages for their judicial acts, no matter how erroneous or unreasonable, so long as they are not acting in “clear absence of all jurisdiction. ” Pierson v. Ray. o Does not apply to injunctive relief.

Puliam. • Stump v. Sparkman, p. 82 (1978) o Facts ? Judge Stump approved a mother’s petition for involuntary (and unknowing) tubal ligation on her daughter. The daughter later married and discovered the source of her infertility, suing her mother, the judge, the attorney, and doctors, and the hospital. o Holding ? Absolute immunity attaches to judgments made within the jurisdiction of the court, even if they are clear violations of Due Process • Immunity is surrendered if a court acts in the clear absence of jurisdiction o The act complained of ust be completely unrelated to the function of a judge to constitution a clear absence of authority o Judicial immunity incentivizes people to use the appellate system ? If there were no appellate review, perhaps there would be less judicial immunity ? When a case comes along when there is no remedial scheme (as Stump), it doesn’t affect the outcome of the immunity doctrine Witness Immunity • Brisco v. LaHue, p. 100 (1983) o Witnesses can be prosecuted for perjury, but they have absolute immunity against civil suits for allegedly false testimony ?

Police officers were given absolute immunity for allegedly false testimony leading to the conviction of a criminal ?. • When a police officer testifies, he is either viewed as any other witness sworn to tell the truth (and thus benefits from absolute witness immunity) or as an official performing a crucial role in the judicial process (and thus benefits from the same absolute immunity as judges and prosecutors) o The Court is unwilling to hold police officers are second class citizens Prosecutorial Immunity Absolute immunity attaches to prosecutorial functions that are intimately associated with the judicial phase of the criminal process. • Qualified immunity attaches to more investigative and administrative functions. • Imbler v. Pachtman, p. 96 (1976) o Facts ? A convicted felon released on habeas corpus grounds (at the suggestion of the prosecutor) sued a prosecutor for culpably using misleading or false testimony. (It seems unlikely, since the prosecutor brought the new evidence to light himself. ) o Holding Prosecutors get absolute immunity for actions “intimately associated” with the judicial phase of the criminal process and qualified immunity for everything else • Complete immunity attaches to judicial functions, while qualified immunity attaches to other functions o Judicial functions – filing charges, arguing in court, negotiating a plea deal with a defense attorney o Other functions – Hiring/firing, providing investigative assistance, making statements in a press conference • Qualified immunity would adversely affect a prosecutor’s performance of their duties and adversely impact the criminal justice system by stymieing discretion. o Jeffries – The linchpin of the decision is that prosecutors would have more trouble meeting the standard of qualified immunity than police officers, so they need a higher immunity standard ?

The presence or absence of alternative remedies may explain the division between prosecutors and cops • Prosecutors may be entitled to absolute immunity because it is not very costly – their errors can be corrected in trial or negotiations with the defense ? So the adversarial structure makes the court relaxed about absolute immunity • When that structure is not in play, absolute immunity disappears • Burns v. Reed, p. 99 (1991) o A prosecutor was absolutely immune from damages liability for positions taken in a probable cause hearing for a search warrant, but not for giving legal advice to the police about the legality of an investigative technique ?

The Court applied absolute immunity even though the probable cause hearing is not adversarial, so it is arguably outside the judicial part of the criminal process • Buckley v. Fitzsimmons, p. 99 (1993) o A prosecutor was not absolutely immune for making statements at a press conference or for conspiring with police to manufacture false evidence ? Although the later does not appear to implicate civil rights until the evidence is admitted • Kalina v. Fletcher, p. 99 (1997) o A prosecutor’s false statement in support of a warrant was subject to qualified immunity, not absolute immunity o This is in conflict with Burns v. Reed But there was an earlier precedent giving police officers only qualified immunity and the Court could not follow both precedents without giving prosecutors absolute immunity and cops qualified immunity • This would provide different protections to the police and to prosecutors based on exactly the same conduct • Instead, the Court distinguished search warrants and arrest warrants • Van de Kamp v. Goldstein, Supp. p. 1 (2009) o Facts ? A prisoner sued a prosecutor’s supervisor for failure train a prosecutor to turn over information that could have been used to impeach the testimony of a jailhouse informant. o Holding Administrative tasks directly connected with the conduct of a trial are protected by absolute immunity • A suit about a supervisor’s mistake directly related to trial and one about a supervisor’s inadequate training and supervision of a trial are “very much alike” o Allowing liability for training would be anomalous – the prosecutor himself would be immune, but the supervisor would not • Similarly, a prosecutor in charge of a trial-related information management system who is responsible for a constitutional error at trial is as immune as the prosecutor who handled the trial Qualified Immunity • Government officials (local, state, and federal) will be personally liable in § 1983 actions for actions that violate “clearly established constitutional rights which a reasonable official would have known about. ” o Qualified immunity protects the ? when a reasonable officer in the ? ’s position could have believed the conduct was legal, even if the ? acted maliciously. Offers no protection from injunctive relief. • Scheuer v. Rhodes, p. 105 (1974) o Facts ? Governor Rhodes called out the National Guard to quell a student demonstration at Kent State and several students were killed in the “Kent State Massacre” o Holding ? Executive officials have qualified immunity (only the President has absolute immunity) • The official is immune if he has a good faith belief the action was lawful ? Since the petitioners’ allegations seek to impose personal liability on the named ? s, the suit is not barred by the 11th Amendment Sequence of Analysis (“The Order of Battle”) • Advised Order of Battle ) Was there was a constitutional violation (with facts taken in a light most favorable to the ? )? ? If no violation occurred, there is no need for further inquiry. 2) If so, was the right was clearly established at the time of the violation? • Although this analysis was mandatory under Saucier (2001), Pearson (2009) overruled that portion of Saucier and made it advisory. • Wilson v. Layne, p. 124 (1999) o Facts ? The media accompanied federal and local police officers as they forced entry to search an arrest warrant, but the warrant made no mention of the media presence. The ? , the wanted man’s father, sued under Bivens and § 1983. o Holdings Courts must first determine if there was a constitutional violation, and then decide whether that right was clearly established at the time of the alleged violation. • The analysis is identical under Bivens and § 1983 ? Determining whether there was a constitutional violation is a fact-specific inquiry ? Anderson requires the contours of the right to be sufficiently clear that a reasonable official would have understood the action to violate the law • “In light of preexisting law, the unlawfulness must be apparent. ” • Jeffries – This implied that a right cannot become clearly established until someone in charge (the Court) says so, so first-time violations are a freebie o Concurrence/Dissent (Stevens) The Court does not need to rule on something for a right to be clearly established • Some cases are so clear (as one involved a judge using his official powers to extort sexual favors) that it does not require case precedent o Jeffries ? If you don’t like qualified immunity, you find less qualified immunity by finding rights more clearly established at a higher level of generality. ? If you like qualified immunity, you find more of it and you do that by finding less clearly established law at a more specific level. • Saucier v. Katz, Supp. p. 8 (2001) o A court ruling on qualified immunity must first answer the threshold question of whether there was a constitutional violation (taken in a light most favorable to the ? ) ?

If no violation occurred, there is no need for further inquiry. ? If a violation occurred, the next step is to ask whether the right was clearly established at the time of the violation. • This must be in a specific context, not as a broad general proposition. o Jeffries – Saucier was heavily criticized both on and off the Court • Pearson v. Callahan, Supp. p. 9 (2009) o Facts ? State officers conducted a warrantless search of a house incident to arrest (for selling drugs to an undercover informant). The officers believed in the existing “consent-once-removed” doctrine even though the Court was likely to overrule it (making the law not clearly established at the time). o Holding The order of analysis is advisory, not mandatory. • Saucier cannot specify the sequence in which judges reach their conclusions o To the extent it purports to do so, Saucier is overruled ? District and Circuit Court judges “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be address first” in the particular case. • The inflexible two-step procedure in Saucier is often beneficial, but has a price: o It may focus judicial attention on a difficult question that does not affect the outcome of the case ?

There are cases in which it is clear that there is no clearly established right, but not clear whether there is a right at all o Qualified immunity is “immunity from suit,” and it is ineffective the parties are forced to endure the burdens of litigation when the suit could be disposed of more readily by another means. o The first prong of Saucier was intended to further constitutional precedent, but opinions often fail to make a meaningful contribution to that development o If a court finds a constitutional violation but no clearly established right, the ? may have trouble bringing an appeal to the constitutional question • Malley v Briggs (1986) No QI if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue, but does apply if officers of reasonable competence could disagree on the issue o QI provides ample protection tot all but the plainly incompetent or those who knowingly … • Arguments Against Merits-First Adjudication o The best argument against the Saucier order of battle is also the rarest o Bunting v. Mellen, Supp. p. 18 (2004) ? Cadets at VMI sued for an injunction against further prayer at mealtimes and for damages (probably to cement attorney’s fees). This was not a class action, so when the cadets graduated, the issue of injunctive relief was moot. So the ? won against the damages claim, but lost on injunctive relief, which was later mooted, leaving the ? no way to appeal the constitutional question. Arguments For Merits-First Adjudication o Jeffries, The Right-Remedy Gap in Constitutional Law ? The point of reaching a constitutional question that does not affect the outcome in a case is to facilitate the development of constitutional law (by allowing the courts to impose new or clarified requirements) without anyone suffering an arguably unfair liability for past actions. • Denying damages in unclear cases makes constitutional adjudication more like reform than like reparation o If you lack mandatory adjudication on the merits, you end up with dilution of rights by implicitly redefining the extent of rights relative to qualified immunity. ? Example: Wilson v.

Layne – if the court doesn’t say that the media ride-along violates the Constitution in a manner that is clearly established, than it will never become clearly established! • Judges trying to clear their docket as fast as possible do not contribute to the greater understanding of the scope of the right in question. ? Example: Pearson v. Callahan – the Court found the law not clearly established and completely ignored the question about the consent-once-removed doctrine. • So there is no progress in the law – it is still not clearly established! o Qualified immunity creates a gap between the violation of rights and an award of damages ? As long as qualified immunity doctrine exists, there is a space in which your rights have been violated and a damages remedy is not available. The gap between the right and the remedy is negative and positive • It is negative for the people in the past who get nothing • It is positive for the people in the future who get more than they would if people in the past had to be paid damages ? One answer to this problem is that is it not a problem so long as courts have another vehicle to adjudicate the merits • But alternative forums are not always available! o Both Pearson and Wilson are 4th Amendment cases. ? In Pearson, the law can be defined through the criminal adjudication and thus clearly established in that forum. ? In Wilson, however, the 4th Amendment violation does not result in evidence – the invasion complained of does not result in anything that could be excluded! When there is no chance to litigate the merits in the criminal prosecution – litigation of the constitutional tort may be the only way to reach the merits. When is a right clearly established? • U. S. v. Lanier (1997) Refused to adopt a categorical rule that decisions of the court of appeals and other courts are inadequate as a matter of law to provide fair warning. • Wilson v. Layne (1999) 4th Amendment prohibited media ride alongs to warrant execution, but the constitutionality was “by no means open and shut” and “ the state of the law was, at best, undeveloped. ” • Ashcroft v. al-Kidd (2011) “We do not require a case directly on point, but existing precedent must have placed the statutiory or constitutional question beyond debate. o Absent controlling authority, there must be “a robust consensus of cases of persuasive authority. ” • The lower courts do not agree – No uniformity amongst lower courts o Ryburn v. Huff (2012) (per curiam). “No decision of this Court has found a Fourth Amendment violation on facts even roughly comparable to those present in this case. ” Appealability of the Denial of Qualified Immunity • Marshall v. Forsyth, p. 136 (1985) o A rejection of the immunity defense is immediately appealable. ? The entitlement is immunity from trial itself, and that protection is effectively lost if a case is erroneously permitted to go to trial. Johnson v. Jones, p. 137 (1995) o Lower courts are required to separate a reviewable determination (that the facts show a violation of clearly established law) from an unreviewable determination (that an issue of fact is genuine) ? Reviewable – A given set of facts does not violate a clearly established law ? Not Reviewable – The accuracy of claims of factual innocence “Reasonableness” • Determining whether there has been a constitutional violation may require a reasonableness inquiry (4th Amendment and excessive force cases) o If the officer’s behavior is reasonable, there is no constitutional violation. An officer mistakenly thinks a suspect is going to flee, so uses force. Given the facts, this could be a reasonable mistake. o If the officer’s behavior is unreasonable, qualified immunity kicks in ? The officer correctly perceives all the facts, but makes a mistake about how much force is legal in the face of those facts (unreasonable action), we ask whether that mistake is reasonable. ? The concept of reasonable error is relevant to how definite constitutional rights are. • The more definite the rights are, the less reasonable violations will be. • The more open-ended and standard-like the constitutional right is, the more opportunity for reasonable mistake about the scope of that right. If a constitutional standard were strictly reasonableness, it would be difficult to apply a reasonableness qualified immunity defense to the reasonableness standard. ? But constitutional rights defined in terms of reasonableness do not exist at that level of specificity. • Anderson v. Creighton, p. 147 (1987) – a 4th Amendment search and seizure case o The reasonableness standard for 4th Amendment violations is distinguishable from that used in the qualified immunity inquiry. ? Were the officers acting unreasonably (and thus violating the 4th Amendment)? ? If so, could they have believed they were acting reasonably? • If so, they are protected by qualified immunity. “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by QI unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent” • Graham v. Conner – an excessive force case o When the underlying right depends entirely on objective reasonability, qualified immunity analysis collapses into the first determination of whether the act was reasonable. o It does matter when the right becomes a series of particularized doctrines ?

If the objectively reasonable standard for excessive force differs (such as in cases of chases, mob violence, or a series of specialized circumstances), qualified immunity becomes more relevant, because it is possible to make an objectively reasonable mistake about the legality of an objectively unreasonable action. • Saucier v. Katz, p. 148 (2001) – an excessive force case o The reasonableness standard for 4th Amendment violations is distinguishable from that used in the qualified immunity inquiry. ? An officer who violates the 4th Amendment by using an unreasonable amount of force is still be protected by qualified immunity if his mistake was a reasonable one. • Hope v. Pelzer Alabama prison inmate, hope was twice handcuffed to a hitching post for disruptive conduct. He was ordered to remove his shirt which left him burned. He was given 1 or 2 water breaks and no bathroom breaks. Hope filed Civil suit. Subsequently, a Magistrate Judge found that the guards were entitled to qualified immunity. Ultimately affirming, the court of appeals, while finding that the hitching posts use for punitive purposes violated the 8th Amendment, concluded that the guards nevertheless entitled to qualified immunity. ? Issue: Does the Court of Appeals holding of qualified immunity where prison guards’ conduct violated the 8th Amendment comport with US v. Lanier? Holding: 6:3. NO. In an opinion delivered by Justice Stevens, the court held that the defense of the qualified immunity was precluded at the summary judgment phase of Hope’s trial. The court reasoned that, although Hope’s allegations if true established an 8th Amendment violation, prison guards could be shielded from liability for their constitutionally impermissible conduct if their actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Noting that the US v. Lanier makes clear that officials can be on notice that their conduct violates established law even in novel factual situations.

The court concluded that a reasonable officer would have known that using a hitching post as Hope alleged was unlawful. • Groh v. Ramirez (2004) o Rejected OI claim by federal LEO who executed a search warrant in violation of Fourth Amendment which requires that the warrant “ particularly describe the place to be searched, and the persons or things to be seized” ? Warrant contained place and items looking for, but not things to be seized. ? Glaring deficiency that any reasonable LEO would know was constitutionally fatal. • Brosseau v. haugen (2004) (per curiam) o Officer shot subject fleeing in car. General tests set out in Graham and Garner are cast at high level of generality.

In an “obvious case” (like Hope) right can be clearly established without a body of case law. o None of the precedents – from other circuits – involved shooting a fleeing subject who posed a risk to others. ? The three cases cited by the P, reveal that the question is intensive. ? Note: Cases subsequent to the event are of no use to the inquiry. • Atkinson v. City of Mt. View o Mere touching can be an arrest. Defense argues that there was no arrest and thus under the 4th amendment sense. But it does by show of force or limitation of movement. Court of appeals rejected D’s argument. ? Graham v. Conner – see above – ? If all you can find in a case is substutive due process, you will have issues as Graham points out. • Brower v. Cnty.

Of Inyo – 4th amd seizure, an application of physical force “must be willful” because the “the word ‘seizure’ … can hardly be applied to an unknowing act. ” Whether physical force was “intentionally applied” is determined by the officer’s objective behavior, not his subjective motive. • • Crawford-El v. Britton, p. 152 (1998) o Facts ? Petitioner, an inmate and jailhouse lawyer, was moved around to several prisons. The ? , a correctional officer, gave ? ’s property to ? ’s brother-in-law to deliver, which resulted in a delay in getting his property to him. ?’s only claim that went forward was an allegation that ? ’s motivation was to retaliate against him for exercising his 1st Amendment rights. o Holding Adopted the reading of Harlow that evidence of an official’s subjective intent is irrelevant, unless the underlying claim requires a particular motive. • Qualified immunity under Harlow is limited to those rights that do not have a mens rea requirement (reasonable mistakes of law are plausible) o Example: One cannot claim it was reasonable to think that retaliation against someone for exercising their constitutional rights was legal. o The Court considers three solutions to the problem of subjective intent in the underlying right ? Heightened pleading • The Court rejects a requirement of clear and convincing evidence of improper motivation o It is also not clear that this would solve the problem.

This deals with ultimate liability at the conclusion of the case, which does not address the problem of frivolous litigation or avoid extensive civil discovery. ? Making subjective intent irrelevant (Scalia & Thomas) • The objective reasonableness of the ? ’s conduct would preclude constitutional tort liability. o Unconstitutional motivation rights could be enforced by other means, but as long as the action was objectively reasonable, the ? wins regardless of motivation. • This would solve the problem of frivolous litigation and prevent discovery problems, but it would mean that some cases with a legitimately unconstitutional motivation could not be remedied ? Burden Shifting (O’Conner & Rehnquist) • Objective reasonableness should put the burden on the ? o prove that the objectively reasonable action was only a pretext (pre-discovery). o The majority rejects all three solutions ? So the Harlow problem exists in the cases of unconstitutional motivations. ? The Court suggests solving the problem with a Rule 12(e) motion for a more definite statement • But an experienced trial lawyer would argue that 12(e) is not implicated, because the federal pleading rules are notice-pleadings and 12(e) is only intended if the pleadings don’t give notice. ? The Court suggests Rule 11, which puts the burden of good faith on the attorney • Rule 11 does not solve discovery abuses, it produces additional litigation to determine if Rule 11 applies! The Court suggests using a statute that allows the dismissal of frivolous litigation in in forma pauperis proceedings • But the question is whether the lawsuit is frivolous or not! ? The Court suggests that the trial judge can guide and apply limits on discovery • But if judges actually did those things, Harlow would not have been a problem in the first place! o Maybe what the Court is doing is giving a little lecture to trial judges, telling them to change their behavior regarding the issues they discussed (at least with reference to qualified immunity cases). Qualified Immunity Comparison with Liability Rules • Compensation Despite the Court’s suggestions to the contrary, § 1983 is not principally concerned with compensation. The compensation justification is limited by: ? The statute, which requires individual ? s (“persons”) instead of faceless entities ? Qualified immunity, which denies compensation for a violation of constitutional rights • Constitutional violation plus injury is not enough to justify compensation under qualified immunity, but it generally is enough in tort o Instead, the constitutional violation and injury must be joined by fault • Deterrence o This is a more legitimate primary goal of § 1983, but there is a concern about over-deterrence ?

The policy of qualified immunity rests on an assumption that the fear of over-deterrence in the government arena is a problem that needs a particularly robust immunity standard • The only reason for a liability rule as stringent as qualified immunity is as a response to a great need to avoid over-deterrence o Complainants are more likely given a combination of coercive interaction and broad standards ? Government/citizen interactions are often coercive, rather than mutually consensual ? An official who administers a standard (as opposed to a rule) are more subject to complaint. Most of the Constitution sets out very broad standards without detailed rules. o We want to discourage over-deterrence because public officials have an incentive be inactive ?

It is easier to sue someone for acting than for not acting • Private sector risk-taking can be rewarded by a variety of person benefits, but public sector risk taking is unlikely to lead to a personal benefit. ? Public officials don’t generally enjoy the benefit of their performance • The benefits of good performance are enjoyed by the public at large, but the costs of malfeasance or mistake are borne by the official ? Civil service is oriented toward avoiding mistakes, not doing a good job • A civil servant can’t be paid more for doing a good job, but they also can’t be fired unless they really mess up • Effects of Indemnification o Individual public officials are unlikely to pay damages – indemnification is widespread ?

So the disincentive to act is offset by indemnification, since the official won’t pay the bill • But there are a host of disincentives other than financial disincentives Evolution of Qualified Immunity • Pierson v. Ray (1967) o Extended the common law defense of “good faith and probable cause” to police officers defending false arrest suits brought under § 1983 ? This immunity was directly out of common law defenses to false arrest cases • Good faith is a subjective element • Probable cause is a (quasi-objective) legal standard • Wood v. Strickland, p. 119 (1975) – Qualified immunity has both subjective and objective analyses o Facts ? Two high school students sued school board members for expelling them (for spiking punch). o Holding Qualified immunity does not apply if the ? knew or reasonably should have known that their action would violate constitutional rights or they acted with a malicious intent • So school officials could be liable despite complete good faith. o Jeffries – Within a few years, the problem of the objective side of qualified immunity began to look “quaint,” because it became clear that the problem was in defining the ? ’s motive – a subjective problem. • Harlow v. Fitzgerald, p. 120 (1982) – There is no subjective inquiry in qualified immunity analysis o Facts ? ? was a DoD whistleblower. DoD terminated the ? , who claimed it was retaliatory. o Holding Bare allegations of malice do not suffice to defeat qualified immunity and expose officials to the burdens of broad reaching discovery or the costs of trial • Qualified immunity should be crafted to allow the defeat of insubstantial claims without resort to trial (in response to Fitzgerald being subjected to significant discovery that did not reveal any wrong-doing). ? Officials conducting discretionary functions are generally shielded from liability when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known • If the law was not “clearly established,” an official could not reasonably have been expected to anticipate subsequent legal developments • If the law is clearly established, immunity defenses generally (although not always) fail ?

This sounds like a pleading rule (no “bare allegations of malice”) • In a later case (Crawford-El v. Britton), however, the Court read Harlow to say that subjective intent is irrelevant, so any allegations of malice are not sufficient. o A defense of qualified immunity may not be rebutted by evidence of malicious conduct or improper motivation. • Anderson v. Creighton, p. 123 (1987) – a 4th Amendment search and seizure case o Qualified immunity turns on the objective reasonableness of the action, assessed in light of legal rules that were clearly established at the time of the action. ? Qualified immunity exists when an official in the ? s position could reasonably have believed that his conduct was lawful • Even when the ? did not actually believe that! o The contours of the right the official violates must be sufficiently clear that a reasonable official would understand what he is doing violates that right. ? The action need not have previously been held unlawful, but the unlawfulness must be apparent in light of pre-existing law o The right must be clearly established at a level of practical guidance to the officer in the field ? Not clearly established as an abstract generalization, but as a rule the officer should have known he was violating at the time • Hunter v. Bryant, p. 124 (1991) The question of immunity should ordinarily be decided by the Court before trial. • Qualified Immunity for Private Actors o Wyatt v. Cole, p. 170 (1992) ? Private ? s sued under § 1983 for invoking a state replevin statute later found to be unconstitutional are not protected by qualified immunity • The nexus between private parties and the purposes of qualified immunity are too attenuated to justify an extension ? Qualified immunity acts to safeguard government (and thereby the public at large), not to benefit its agents • The public interest will not be unduly impaired if private individuals are required to proceed to trial o Richardson v. McKnight, p. 171 (1997) Guards at a privately run prison were not entitled to the same qualified immunity as guards at a state-run prison • Qualified immunity in this context would not serve the central goal of the doctrine o Market factors do the same thing that qualified immunity would do – competitive pressure means that a private company with aggressive employees face the threat of replacement by firms better able to do a safer, more effective job ? Scalia, dissenting, argued that market-competitive private prison managers have a greater need for qualified immunity than civil service prison management Governmental Liability • Local governments can be sued under § 1983, but only for acts performed according to an official policy of custom.

Compare with: o States and state agencies are immune to suit under the 11th Amendment o Individual officers have either an absolute or qualified immunity defense • Monell v. New York City Dept. of Social Services, p. 173 (1978) o Facts ? Pregnant employees complained that they were forced to take unpaid leaves of absence before such leaves were medically required The City changed its policy and the district court, though acknowledging that the City acted unconstitutionally, denied the request for backpay since it would circumvent the immunity conferred on municipalities by Monroe v. Pape. o Holding ? Municipalities can be sued under § 1983 • Overruled the part of Monroe that said that cities annot be sued. o The Monroe Court did not review policy considerations, while the Monell Court does, even with no direct evidence to support either side. ? Municipalities can be sued only for unconstitutional actions in line with a policy, custom, or usage, and not for actions taken under the city’s apparent authority. • Overruled the part of Monroe that extended § 1983 relief to apparent authority o This is a case that sounds in contract rather than tort that would quite clearly be paid by the government’s treasury instead of an individual. Like Edelman, this is treated as a suit that can succeed against the government or not at all. However, a municipality cannot be held responsible under § 1983 under respondeat superior (just because it employs a tortfeasor) o Jeffries – The thing to see about Monell is that it overrules Monroe twice ? First, by saying that a local government can be sued ? Second, by saying that apparent authority was not enough –the city can only be sued for custom or usage • This was exactly Frankfurter’s dissent in Monroe • Owen v. City of Independence, p. 188 (1980) o Facts ? Owen, a police chief, brought an action after being terminated under bad circumstances. o Holdings: ? No qualified immunity for local governments ?

An unconstitutional policy could be inferred from a single decision taken by the highest officials responsible for settling policy in that area of the government’s business. • Jeffries – § 1983 itself does not have a mens rea requirement ? The Court held that even an employee who doesn’t have a property interest in their job is entitled to a name clearing hearing if the circumstances of the termination affect the employee’s liberty to obtain another job. • It is difficult to figure out what the city should have done differently, since the city itself said very little (and specifically cleared him of criminal liability). o The accusations that led to the requirement of a name-clearing hearing did not come from the city, but from a city councilor. What can the city do about that? ?

Jeffries – The Court provided exactly no guidance about how a name clearing hearing should look! This is absolutely ridiculous. ? There was no immunity for municipality at common law. ? Quote on page 198 – right without remedy is worthless. But due to qualified immunity at times you won’t be able to make a successful claim. Close decision which leans close to the policy of 1983. • FDIC v. Meyer, p. 214 (1994) o Direct governmental liability for an unconstitutional policy does not apply to the federal government – it is limited to localities • Correctional Services Corp. v. Malesko, p. 214 (2001) o Extended Meyer to private companies acting under color of federal law. The prisoner should not have broader federal remedies because he was in a private prison rather than a federal prison. ? The inmate had alternative remedies available, including a state law negligence claim Official Policy or Custom • This becomes the gate-keeper of a strict liability standard, since if the ? can prove policy or custom, the locality becomes strictly liable. o Decisions “by” local governments are made by individuals who work for that local government ? So the decisions of some people in local government subject the locality to strict liability, while the decisions of certain other people do not. • When can an official’s decision properly be attributed to the agency itself? The denial of summary judgment on whether an individual was a policymaker is not immediately appealable ? Unlike the denial of summary judgment on whether an individual was protected by qualified immunity, which is immediately appealable o Pembaur v. City of Cincinnati, p. 215 (1986) ? Facts • On the advice of an assistant county prosecutor, two deputies chopped down the door of a clinic to serve warrants on two of Pembaur’s employees who failed to appear for a grand jury proceeding. There was no written or formalized policy on this issue and no local precedent. ? Holding • A single decision made by a person with final policymaking authority can constitute a official custom or policy. state law makes the county sheriff/ prosecutor the final decision maker in this kind of situation and give instructions on these official duties) o By ordering the deputies to enter the clinic, the prosecutor was acting as the final decision-maker for the county, which opens the county to liability under § 1983. • Contrary to the dissent, “policy” does not have to be a generally applicable rule and it does not have to have been created through any formal means o We have little guidance about what is required, but we know what isn’t. ? Concurrence (White) • If controlling law plainly prohibited the search, the prosecutor could not have been thought to have the authority to make a contrary policy. ? Dissent • Proper resolution of whether official policy has been formed relies on two facts o The nature of the decision reached or action taken ?

Was it a rule of general application or a one-time only incident? ? “Policies” are rules that apply to all similar situations o The process by which the decision was reached or action taken ? Formal procedures are more likely to result in official policy o City of St. Louis v. Praprotnik, p. 219 (1988) ? Facts • The ? , an architect, alleged retaliation for appealing a disciplinary measure. He was transferred to a new department (and given less challenging work) and eventually laid off. The trial court exonerated the three individual ? s, but found the city liable because ? ’s layoff resulted from an unconstitutional city policy. ? Holding An action by an official with policymaking authority is policy, whether it is intended to established a rule of general applicability or not. (Brennan) o As long as the decision is made in an area over which the official could establish a final policy (capable of governing future conduct), it is a decision of the city itself • A particular official is a policymaker if they have final policymaking authority under state law. (O’Conner) o This is not a question of federal law. ? Jeffries – Yes, it is! It is § 1983 law! A city couldn’t avoid § 1983 liability by passing an ordinance saying that no city employee could set policy, because it would be an attempt to avoid federally imposed liability. Difficulties may arise when a policymaker delegates his authority to another official o Policymakers cannot insulate the government from liability by delegating their authority to others • Simply going along with the discretionary decisions made by one’s subordinates is not a delegation of the authority to make policy o Unless the subordinate’s decision was cast in the form of a policy statement and expressly approved by the policymaker o Or if the decisions of the subordinate manifest a custom or usage of which the policymaker was aware ? Dissent (Stevens) • Respondeat superior should apply to § 1983 claims o Cities should be responsible for the single acts of high officials, since their decisions bind the city in a way that the misdeeds of lower officials do not Individual capacity suits vs official capacity suits where money damages are involved the individual is only responsible for their action and can’t be liable for the actions a predecessor. Whereas, with the entity it has to be an entity that can be sued. (i. has to be a legal corporate entity) • Have to look to some body of law that decides who the final policy maker is. o These are not proper questions by the founder of fact and is a question for the judge to find out who the final policy maker is. o Subsequently have to show that they actually made a policy • Whether the government can be held liable for failure to train? o City of Canton v. Harris, p. 237 (1989) ? Facts • Police officers arresting Harris failed to provide medical attention as she kept slumping to the floor. She was later diagnosed with emotional ailments and hospitalized. There was a policy giving shift supervisors the discretion to determine when medical care is necessary, but they had no special training. ? Holding Failure to train is actionable under § 1983 only when the need for training and risk of constitutional violation must be so obvious that failure to provide training amounts to deliberate indifference. o A city is not liable when one of its employees applies a policy in an unconstitutional manner – this would be respondeat superior o Nor will liability attach just because more (or better) training could have avoided an injury • The ? has to prove both fault and causation o Fault – deliberate indifference to the violation of the right o Causation – the failure to train caused the injury ?

Jeffries – Look what happened to Monell & Owen • Monell said the city might sometimes have enterprise liability o Monell is alive and well after Canton • Owen said city liability does not require proof of fault and qualified immunity is irrelevant. It stood for strict municipal liability o Canton reintroduces fault as the standard of liability in failure to train cases, so failure to train has been eliminated as a ? ’s strict liability strategy Four Incoherences in § 1983 Law 1. The tension betweeb Monell and Monroe’s version of the history of 1871 o It is incoherent that Congress simultaneously said that ? s do not need to act under actual policy or custom to be suable, except for some ? s (local governments). ? This incoherence arises from the 11th Amendment, which does not protect local governments 2.

The disparity between states and local governments (and their respective agencies) o States and state agencies cannot be sued under § 1983, while local governments can. ? Enterprise liability exists for local governments, but not state governments o Monell allowed a city who issued an official policy or custom to be sued ? But no such remedy is available against states ? The officer can be held liable but the state cannot, even when the officer is exactly obeying the official policy or custom of the state! • This exposes the more financially vulnerable governments to liability and protects the less vulnerable government! The Diversity Interpretation of the 11th Amendment, which would resolve this problem, since § 1983 is a question of federal law o Construing § 1983 as being passed pursuant to § 5 of the 14th Amendment would resolve the problem by abrogating state sovereign immunity and opening states to suit the same way cities are vulnerable to suit 3. The incoherence about the liability rules o When dealing with a state, the ? ’s attorney argues that it wasn’t the state acting, but an individual officer. When dealing with a locality, however, the ? ’s attorney wants to argue that it wasn’t just the officer, it was also the locality! o We change the liability rule depending on who the parties are, rather than the normal tort standard of changing the liability rule depending on the claim ? Absolute Immunity (very few cases) States, State Agencies, and certain “persons” o “Persons” depends on the function the individual is conducting, not the office the individual holds ? Judicial function, legislative functions, presidential functions, some prosecutorial functions • Congress could open states up to § 1983 liability by amending § 1983 to declare that states are “persons” (this would require passage under § 5 of the 14th Amd. ) ? Qualified Immunity (this is the big doctrine today) • Officers (States & Local) o ? s avoid absolute immunity by suing officers in their individual capacity (usually the ? s pleading prevails here) ? However, Edelman v. Jordan reminds us that if a ? sues for a claim arising out of contract that would be paid out of the state treasury, the court may view it as a suit against the state regardless of creative pleadings o A ? can try to avoid legislative immunity by suing the executive officer who enforces the legislation, who is protected by qualified immunity • When the officer is employed by the state, the whole ballgame stops at qualified immunity and we litigate from a fault based standard o When the officer is a local officer, however, the ? ries to move from the fault based standard to strict liability by suing the government by alleging “official policy or custom” • It is easy to get from Absolute Immunity to Qualified Immunity and difficult to get from Qualified Immunity to Strict Liability ? Strict Liability (construed narrowly – very few cases) • Localities & Local Agencies o Under Monell, a ? could sue a locality anytime a local officer violates constitutional rights pursuant to an official policy or custom o Strict liability may be a good idea, but if one imposes strict liability for constitutional violations: ?

This regime would not administered in trials in District Courts with attorney’s fees • We would prefer to run such a regime under some efficient, low-cost administrative scheme ? Under the regime as it exists now, a litigant can ignore readily available administrative remedies and skip to the most expensive courts: US District Courts • You would not adopt strict liability and the current regime, with its very high transaction costs 4. Questions of official custom or policy o One way to get rid of a lot of time-consuming litigation and make this area simpler would be to go back to Stevens’ dissent in Praprotnik Monell was right to make cities liable, but wrong to remove respondeat superior liability o If liability is based on respondeat superior and strict liability, it eliminates the distinction between high and low level employees ? It prevents the manipulation of state law regarding who can set policy to avoid liability ? It removes Brennan’s distinction between actors with the authority to make policy even when they do not actually make policy o Looking at municipal liability in isolation, a very powerful normative position would be to get rid of official policy or custom and adopt respondeat superior ?

But at the cost of dramatically widening the inexplicable gap between local governments and states • This would increase the radically different levels of liability based on the level of the government that violates constitutional rights Remedies for What Wrongs? Constitutional Rights Enforceable Under § 1983 • § 1983 is not a source of rights, but a method of vindicating federal rights elsewhere conferred o But the context in which the Court is asked to create boundaries of a constitutional right can influence the scope of the rights it recognizes o The Court can react to the concern that monetary damages may adversely affect government action in one of two ways ? It may limit the available of damages, as with absolute or qualified immunity ?

It may limit the underlying substantive right • Suits under § 1983 may be brought for three types of violations o The various guarantees of the Bill of Rights that have been incorporated to the states o Substantive Due Process – Requires an abuse of power that “shocks the conscious” (County of Sacramento v. Lewis) ? Where the Court has recognized a substantive component to due process that bars certain governmental actions regardless of their procedural fairness o Procedural Due Process – Requires more than negligence ? Is a cognizable life, liberty, or property interest implicated? ? Is the loss of that interest fairly attributable to the government? ? If so, did the eprivation occur without due process of law? • Was the deprivation unauthorized and unpredictable? o If so, a post-deprivation hearing may be sufficient • Was the deprivation serious and predictable? o If so, a pre-deprivation hearing will be necessary if: ? Pre-deprivation hearing procedures were possible ? The violation was not “unauthorized” in the sense that the conduct itself was authorized even if the method used wasn’t • The Constitution has taken over tort law in government employment o Government employees are almost never claiming ordinary contract or tort remedies.

These claims have been almost entirely superseded by due process • Board of Regents v. Roth, p. 274 (1972) o The nature of the interest invaded, not simply its importance to the individual, is the factor that determines constitutional protection ? This led to the development of a catalogue of protectable interests Reputational Harm • Wisconsin v. Constantineau (1971) o When a person’s good name, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential. ? The Constantineau Court focused on the reputational injury, although the ? was also prohibited from buying alcohol. • This was re-characterized in Paul v.

Davis, which focused on the deprivation of the right to buy alcohol rather than the reputational harm. • Paul v. Davis, p. 259 (1976) o Facts ? Davis was identified on a flyer the police provided to local businesses identifying “active shoplifters,” but his guilt or innocence had not yet been resolved. The charge was ultimately dismissed. Davis sued, arguing that the defamation, standing alone and apart from other government action, was covered by § 1983. o Holdings ? Defamation alone does not create a claim under § 1983 – the 14th Amendment’s protection of liberty and property do not give reputation any special protection. • Violation of the law does not necessarily mean that federal rights have been violated. Screws v. United States. Jeffries – But Screws was a § 242 case, not a § 1983 case • Constantineau was read to be about what the government is doing, such as the government preventing the ? in that case from buying alcohol. o Jeffries – This is not was Constantineau was about ? The range of property interested protected by the 14th Amendment are created by state law, not by the Constitution. • When state action extinguishes or distinctly alters a previously recognized state law right, the Due Process Clause of the 14th Amendment is implicated o Here, state law does not give any legal guarantee of “present enjoyment of reputation” that has been altered by official actions. No liberty or property interest has been implicated. So defamation without some other government action is not § 1983 actionable o Dissent (Brennan) ? One’s reputation is among the most cherished of rights enjoyed by a free people, and therefore it falls within the definition of personal “liberty” • Brennan would not allow the broadcast of a factual event such as an arrest (that does not culminate in a conviction) unless there is some legitimate justification o Jeffries – A large problem with Paul v. Davis is the lack of intellectual integrity in the majority’s failure to apply the precedents, but Paul is a difficult case as a policy matter. ? The Court is worried about constitutionalizing all of libel and slander. This is an example of when the prospect of the remedy drives the Court’s identification of the right (since we can assume that the Court would not have a problem with injunctive relief). ? Three points • The Court is concerned about extending a federal damages remedy to state tort cases just because the ? acts under the color of law o They don’t want to make simple torts constitutional violations just because the ? acts under the color of law • It seems hard to defend the majority’s use of the Constitution in this problem o Harm to reputation cannot be entirely constitutionally insignificant! • It is also very difficult to imagine an alternative! The suggestions about limiting § 1983 are just suggestions – no one has suggested how § 1983 could be coherently limited. • Siegert v. Gilley, p. 277 (1991) o Facts ? ? resigned from a gov’t job to avoid being fired and was turned down for another job based on a bad recommendation. ? sued for defamation under Bivens. o Holding ? Defamation is not a constitutional violation, even if the ? acted out of malice. • A slight extension of Paul. o Dissent ? Paul should not apply because there was some harm other than only reputational. Failure to Protect from 3rd Parties • DeShaney v. Winnebago County Dept. of Social Services, p. 277 (1989) o Facts ? ? as repeatedly abused by his father and the authorities failed to intervene. The ? brought a § 1983 suit against the county, the social services department, and officials. o Holding ? A state’s failure to protect an individual against purely private violence is not violative of the Due Process Clause. • Nothing in the Due Process Clause requires the state to protect the life, liberty, and property of its citizens against invasions by private actors o With exceptions, such as when someone is in state custody • The deprivation of the ? ’s liberty interest is properly chargeable to the father o Dissent (Brennan, Marshall, and Blackmun) If a state cuts off private sources of aid, it has an affirmative obligation to provide that aid and it is responsible for the harm resulting from inaction • Jeffries – This is probably not a strict liability standard, but is more equivalent to the theory of gratuitous bailment o So when the government starts to protect you, thereby dissuading others from protecting you, there is an affirmative requirement to act reasonably. o Like Paul, the prospect of money damages helps define the underlying right. **** Remember Rule one: Find a constitutional fault. If only finding is a 14th – if not an equal protection case, then ask if there was a procedural due process, if no – then you are left with substutive due process – if that is the case, than you are left with a bad claim. ** possible argument that might work: man and woman driving in dangerous area where it is even moreso in an area where you shouldn’t be out. Police pull over car, take man in for being drunk. They tow the car and the woman is left there. Police would be liable because you can’t throw citizen into the snake pit where they would be harmed by third party and then hold issue when you are sued. 7th circuit. The violation would be substantive due process that would win. Sacramento county v lewis – (side note: not a seizure because he didn’t kneel to the police b/c not a seizure unless seized or kneeled to the police) Mays v City of East St. Louis Town of Castle Rock v Gonzalez – no constitutional violation: Chemerinsky (Ryals fav) look into slide. Post-DeShaney Theories of Liability for Government’s Failure to Protect o Government can be liable for failure to protect when the injury occurs while the ? is in state custody or when the government has a special relationship with the ? ? Lower courts have refused to extend this reasoning to children in schools, despite compulsory attendance laws o When the danger of an injury at private hands is “state created” ? Courts require a fairly tight causal nexus between the government action and the injury, such as when a police informant is killed in the act of cooperating with the police • Town of Castle Rock v. Gonzalez, p. 281 (2005) o Facts Police failed to take action after a husband violated a domestic violence injunction, which read in part, “a peace officer shall arrest [or get a warrant for] a restrained person” when probable cause exists. As a result of that failure, the husband killed his three daughters. o Holding ? The Colorado statute was not a statement of mandatory police action. • The Colorado law was no more mandatory than a number of other laws in which police still have discretion to act ? Even if it was, it did not entitle the wife to enforce the mandate. • A true mandate of police action requires stronger statutory language than “police shall arrest” o Criminal statutes do not give citizens private rights of action. The people of Colorado are free to create statutes that would hold the government accountable for similar failures, but such ability is not presented by the 14th Amendment • State rules of executive procedure might merely be that and nothing more o Dissent ? The state law created an entitlement, the equivalent of a contract giving the wife a right to mandatory police protection. State created rights are enforceable under federal law. ? Jeffries – It has never been true that a failure to obey state law is a federal constitutional violation. • The dissent here would come close to making a state actor’s failure to meet a state obligation a constitutional violation. o This parallels DeShaney as a case where the ? argues for some affirmative obligation on gov’t ? Here, s in Paul and DeShaney, the Court’s inhumanity is driven by the prospect of an unmanageable legal problem created by § 1983 • Without money damages, these three cases would either 1) not arise, because no one could see them coming with sufficient clarity to attach liability, or 2) support injunctive relief if it could be seen coming. State of Mind in Constitutional Torts • State of mind could be relevant in three ways 1. § 1983 could require state of mind ? The Court rejects this argument in Parratt 2. Defining the underlying right could implicate state of mind ? Some constitutional violations require a state of mind ? § 1983 does not affect the requirements of the underlying right 3. The qualified immunity defense implicates the state of mind ?

Qualified immunity’s only state of mind requirement is with regard to the constitutionality of the action • Summary of the Parratt Line of Cases o The cause of action created by § 1983 does not contain an independent state-of-mind requirement o Due process violations have a state-of-mind requirement, but it is not violated by negligent acts ? Procedural due process requires something beyond negligence ? Substantive due process requires an abuse of power that “shocks the conscious” o Hudson & Parratt set the Due Process standard for genuinely random and unpredictable deprivations ?

Post-deprivation hearings provided by state law may satisfy Procedural Due Process • Stevens – Just because the state provides some of its agents with a sovereign immunity defense in certain cases does not justify the conclusion that its post-deprivation remedial system is constitutional inadequate o For certain kinds of deprivation that are considered both serious and predictable, post-deprivation procedures will not be thought adequate. Zinermon. o Parratt and Hudson suggest a way around the fact that state torts are compensable only to the extent that the state has waived its right not to be sued in its own courts (since the 11th Amendment bars federal suits) ? By alleging procedural inadequacy, the ? can make a Procedural Due Process claim, thus federalizing a state tort claim Procedural Due Process Violations • Parratt v. Taylor, p. 287 (1981) o Facts ? A prison inmate ordered $23. 50 of hobby materials that prison officials signed for and never delivered to him o Holding § 1983 does not have a state of mind or mental element requirement. • Nothing in § 1983 limits the statute solely to intentional deprivations of constitutional rights, so the § 1983 ? has no obligation to establish ? ’s state of mind (unless required to as a part of the underlying constitutional violation). o Suggesting that negligent deprivations may support a § 1983 claim (this is later overrule in Daniels v. Williams) ? If there is a random and unauthorized deprivation, the process that is due must be an adequate post-deprivation hearing. • The Court suggests that the adequacy of state remedies matters, in apparent contradiction of Monroe v.

Pape o There is no conflict – this is a Procedural Due Process case, analyzed under Matthews v. Eldridge factors that review the importance of the interest against the value and cost of the procedural protection that should be adopted. • When a § 1983 claim is predicated on a Procedural Due Process claim, the adequacy of state remedies becomes relevant. • Daniels v. Williams, p. 290 (1986) o While § 1983 does not have a state of mind requirement, Procedural Due Process does and negligence will not suffice. o The Court overruled the part of Parratt that suggested that negligent actions could constitute deprivations under the Due Process Clause. The Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property • There must be some culpable state of mind beyond negligence ? The Court did not address whether recklessness or gross negligence could trigger Due Process Clause protections • Davidson v. Cannon, p. 291 (1986) o Expanded Daniels to deprivation of liberty as well as deprivation of property o Dissent (Blackmun) ? In some cases, governmental negligence was the type of abuse of power at which the Due Process Clause was aimed • Recklessness “must be sufficient” to cause a deprivation ?

When a state assumes sole responsibility for one’s physical security and ignores a call for help, the state cannot claim that is was ignorant of the likelihood of subsequent injury o Dissent (Brennan) ? Merely negligent conduct does not cause a deprivation, but recklessness or deliberate indifference can • Hudson v. Palmer, p. 291 (1984) o An unauthorized, intentional deprivation of property by a state employee is not a violation of the 14th Amendment if a meaningful post-deprivation remedy is available. ? For deprivations of property, the state’s action is not complete until and unless it provides (or refuses to provide) a suitable remedy

Substantive Due Process Violations • County of Sacramento v. Lewis, p. 293 (1998) o The Court applied a restrictive standard that effective bars federal liability which arose in this case from a death caused by a police high-speed automobile chase o The proper standard for Substantive Due Process analysis was not “deliberate indifference,” but whether the official had been guilty of abuse of power that “shocks the conscience” ? In high-speed chases, that requires an intent to harm the victim o The result (immunity applies) was unanimous, but there was an internal split about whether the “shocks the conscience” test was appropriate