Law School Outline- Civil Rights Litigation Outline

CIVIL RIGHTS LITIGATION OUTLINE I. State Sovereign Immunity & the 11 th Amendment A. State Immunity Under § 1983: States cannot be ∆s in § 1983 actions b/c: 1. 11th Amend: Forbids damage actions against states by private citizens of the subject state or other state without their consent. 2. States are not “persons” w/in the meaning of § 1983. B. Sovereign Immunity & Individual Officer Suits 1. State Sovereign Immunity: Hans v. Louisiana: a. Facts: LA investors sued their state to compel it to make good on interest payments on state-issued bonds. The state’s actions in failing to pay as promised were alleged as violations of the Const’s K cl. b. Held: Sovereign Immunity barred the suit despite the language of the 11 th Amend which declares ONLY that suits against states by citizens of another state were barred. c. Discussion: This case is still good law. 2. Suits Against Officials: Ex parte Young a. Facts: Suit was brought by RR Co.’s against the MN Attny Gen to enjoin him f/ enforcing what were alleged to be unconst’l statutes on RR rate schedules. b. Held: To the extent that the state statute was unconst’l, the Attny Gen was stripped of his official auth and merely engaging in tort like behavior who could be enjoined w/out regard to sovereign immunity. c. Discussion: 1) The remedy that the RR sought was an injunction, or prospective relief. Thus, the remedy could be sought against the official enforcing the statute, and not the state directly. Had the remedy sought been retrospective relief, the crt would have ruled differently. 2) It would be unfair to require the party to challenge the unconst’l act by engaging in the act subjecting themselves to harsh sanctions and then have to defend themselves. 3) The results created two legal fictions: A) That the suit is not against the state, but against the state actor who cannot be acting on behalf of the state when he engages in unconst’l acts. B) An official can be a state actor for 14 th Amend purposes prohibiting unconst’l acts by states while at the same time remain a private individual for 11th Amend purposes. 3. Retrospective vs. Prospective Relief a. General Rule: With respect to damages, the Young fiction would apply only to requests for prospective relief (such as an injunction) but not to retrospective relief (such as an award for damages for past wrongs). b. Edelman v. Jordan 1) Facts: Litigants brought a § 1983 action to enjoin an IL Administrator of a welfare program to compel him to calculate welfare benefits consistent w/ fed law and to have him to pay wrongfully withheld welfare benefits to a class of beneficiaries (retroactive application of benefits). 2) Held: A suit by private parties seeking to impose a liab which must be paid f/ public funds in the state treasury is barred by the 11th Amend. 3) Discussion: A) If the state treasury had to pay for past wrongs, this would bear too close a relationship to a suit against a state, barred by the 11 th Amend. B) The costs of post-judgment compliance are ancillary, whereas the costs of making up for pre-judgment non-compliance were more like an award of damages to the plaintiff. This was dicta. 4. Abrogation, Waiver, and States as Suable “Persons.”: Suits can be sued if their immunity is waived. How is waiver found? a. Congressional Abrogation 1) Permitted Congressional Abrogation: Congress can legislatively abrogate the states’ sovereign immunity under § 5 of the 14th Amend. provided that the abrogation is clearly expressed. A) Fitzpatrick v. Bitzer (1) Facts: Involved a 72 Amend to Title VII of the Civil Rights Act of 64 which authorized fed crts to award money damages against a state found to have engaged in employment discrimination. ∏s sued to recover retroactive retirement benefits. (2) Held: § 5 of the 14th Amend gives Congress the power to enforce by appropriate legislation the substantive provisions of the 14th Amend, which embodies a significant limitation on state auth (& immunity). ∏s were able to recover retrospective monetary damages. 2) Non-Permitted Congressional Abrogation: Congress cannot abrogate the states’ sovereign immunity from suit when it acts under its Art. 1 Commerce Cl powers, not matter how clearly it speaks. b. Waiver or Consent: 1) Waiver: States will have waived to suit when: A) Congress provides unambiguously that the State will be subject to suit if it engages in certain specified conduct governed by fed reg; and B) The State voluntarily elects to engage in the federally regulated conduct that subjects it to suit. 2) Constructive Waiver: By participating in a program, the state “constructively” consents to be subject to suit. This is appropriate when: A) A state runs an enterprise for profit; B) Operates in a field traditionally occupied by private persons or corps; C) Engages in activities sufficiently removed f/ core state functions; D) Acts as a “market participant” in interstate commerce. II. § 1983 & Monroe v. Pape; § 1983 & the 11th Amendment A. Monroe v. Pape 1. Facts: Chicago police broke into Monroe’s home early in the am, made him stand naked in the living room, and ransacked the entire house. He was then arrested and taken to the police station where he was held for 10 hrs, not allowed to call an attny, and not properly arraigned. He was not prosecuted. After his release Monroe sued the police officers and the City in fed crt under § 1983 for damages alleging that the break-in was un unreasonable search & seizure in violation of the 4 th Amend. The 4th Amend had recently been incorporated against states through the DP cl of the 14 th Amend. 2. Holding: a. Monroe’s 1983 remedy was “supplemental” to any remedy that he might have under state law. He thus did not need to exhaust available state remedies as a precondition to bringing suit under § 1983. b. The police officer’s action was action under “color of law” w/in the meaning of § 1983, even if what they did also happened to be in violation of state law. B. Central Holdings of Monroe v. Pape 1. Federal Remedies are Supplemental to State Remedies: Thus, the fed crt was not a court of last resort. a. Legislative Hx and the Purposes of § 1983. The Crt gave three reasons grounded in legislative hx why a § 1983 remedy should be available w/out regard to the availability of state crt remedies: 1) § 1983 was enacted to redress unconst’l laws; 2) It was enacted to provide a federal forum when there was no state crt remedy on the books; A) Leaving the forum choice to the victim avoids a case by case assessment of state crt adequacy. 3) It was enacted to supply a fed remedy when the state crt remedy was available in theory but not in fact. (Officials don’t enforce them). 2. Under Color of Law a. Unauthorized Official Illegality: It is irrelevant that the state official’s actions may not have been authorized by statute or formal sense, it is enough that the officer is performing his/her job when he/she violated the Const. C. The 11th Amend & § 1983; § 1983 Suits Against Officials 1. Individual vs. Official Capacity Suits a. How is a § 1983 suit styled? If damages are sought personally against a state or local official, no 11th Amend problem is usually presented and the suit is deemed against the officer in his or her individual capacity. (even though they are directed at official acts). Thus, the suit must be against the official in his individual capacity. 2. Hafer v. Melo a. Facts: A § 1983 clm was made against the Auditor General, in her official capacity, on the grounds that she falsely terminated several ee’s. b. Held: If personal liab for damages under § 1983 is sought for a state officer’s action taken under color of law, the suit against the officer must be brought against him in his individual capacity, and NOT against him in his official capacity. c. Reasoning: If suit is brought against an officer in his official capcity only, the only entity for which the officer works has been effectively named as the ∆, and that the officer himself has not been named. III. Bivens & Federal Officer Liability A. Overview: Fed officers are not ordinarily suable under § 1983 b/c they typically do not act under color of state law. A parallel system of remedies for const’l violations applies to fed officers. The right of action WAS NOT Congressionally created. The Sup Crt created an IMPLED RIGHT OF ACTION for damages directly under the Const and the gen fed question statute – 28 U.S.C.A. § 1331 that can be brought in fed crt against the wrongdoing fed officer personally. This was the subject of the Bivens case. B. Implied Const’l Rights of Action for Damages 1. Bivens v. Six Unknown Fed. Agents a. Facts: The ∏ claimed that federal narcotics agents entered his apt, arrested and manacled him in front of his family for supposed narcotic violations. His family was threatened w/ arrest and his apt was searched. He was subjected to a visual strip search. He was not prosecuted and claimed that that the search was warrantless and w/out probable cause, and he was subjected to unreasonable force, all in violation of the 4th Amend. b. Held: Where fed rights have been invaded, fed crts have the power to supply a remedy. c. Discussion 1) In this case, no fed statute provided for a general right to sue. The only statute was the federal question statue, which gave the ∏ jurisdiction. 2) Thus, where a remedy isn’t specifically provided (as in the fed question statute), the crt has auth to design its own remedy. 3) There is a long tradition of judicially fashioned remedies against officials for their const’l violations. 4) As J. Harlan said, “It was damages or nothing” b/c he would not benefit f/ injunctive relief. 2. Bivens LIMITATIONS: The crt indicated two possible limitations upon its implied const’l right of action. a. Whether the case involves special factors counseling hesitation in the absence of affirmative action by Congress? b. Whether there was explicit congressional declaration to an alternate remedy? IV. Official Immunity A. Absolute Immunity: i) Allows immunity f/ suit, ii) derived f/ the CL, iii) focus is on FUNCTION more than on status. 1. Legislators: enjoy immunity for their legislative acts. a. State & Local legislators have absolute immunity. 1) Tenney: State legislators have absolute immunity. 2) Bogan v. Scott-Harris: Local legislators, like their state counter-parts, are entitled to absolute immunity for their legislative actions. b. Scope of Legislative Immunity: 1) Absolute immunity only protects a legislator while acting in his legislative function. It is the function performed, not the office held. 2) Discretion vs. Ministerial: Legislative acts are those handled w/ discretion. c. Thus, challenges to unconst’l legislation must be made by suing the proper official charged w/ enforcement of the unconst’l legislation. 2. Judges: enjoy absolute immunity for all of their judicial acts no matter how erroneous or objectively unreasonable. a. Stump v. Sparkman 1) Facts: Judge of gen juris entered an ex parte order w/out notice or hearing to allow sterilization of a minor on the petition of her parents. 2) Held: Absolute immunity protects judges f/ violations of even clearly established law or corrupt or malicious acts. b. What is a judicial act? 1) Immunity doesn’t apply to acts taken in clear absence of jurisdiction. A) Clear Absence of Jurisdiction: If a probate judge w/ juris over only wills & estates should try a crim case, he would be acting in the clear absence of juris. 2) Immunity doesn’t extend to non-judicial acts, i.e., actions not taken in the judge’s official capacity. A) Archie v. Lanier: several women had been sexually assaulted by Lanier, a state crt judge, when they went to his chambers. The crt held that sexually assaulting a person, non matter the circumstances, do not constitute judicial acts. 3) If one is acting as a judge, is perceived as a judge, and did something judges do in general, then it is a judicial act. c. Scope of Immunity 1) No injunctions and no fees against judges d. Remedies against judges? 1) Appeals, impeachment, not getting re-elected, prosecution. 3. Prosecutors: They may invoke a quasi-judicial absolute immunity for their decisions to bring a case and for their actions in presenting it in crt. a. Imbler v. Pachtman 1) Facts: ∏, a former crim ∆, brought a § 1983 action against a prosecutor for allegedly procuring and using knowingly false testimony against him. 2) Held: At CL, a prosecutor was absolutely immune f/ suit for his bringing of a prosecution even though it was brought w/ malice & w/out probable cause. 3) Reasoning: A) Absolute immunity req’d for the same reasons as it is req’d for legislators and judges. B) Allowing prosecutors to be subject to suit would make them likely targets by those who are prosecuted. C) Concern for Overdeterrence (1) Concern about retrying the case in a § 1983 action. (2) Concern about deterring presentation of relevant evidence to a jury. b. Remedies Against Prosecutors? 1) Charges could be dismissed 2) Could be acquitted 3) Appeals & Habeas Corpus Actions 4) Prosecutor could be prosecuted if conduct rises to the level of criminal. c. EXCEPTION: Out of Court vs. In Crt Acts. 1) Burns v. Reed: A prosecutor was absolutely immune f/ damages based upon positions taken in a probable cause hearing for a search warrant. The same prosecutor was held NOT entitled to immunity for giving legal advice to the police about the legality of an investigative practice. 2) Buckley v. Fitzsimmons: Prosecutor not absolutely immune for making stmts at a press conference. No immunity for conspiracy to manufacture false evidence. 3) Kalina v. Fletcher: No absolute immunity for false sworn stmts in an application for an arrest warrant. 4. Witnesses: Witnesses at crim trials have an absolute quasi-judicial imm f/ damages in a later filed § 1983 case, even when they give knowingly perjured testimony. a. There is immunity for everyone who is an integral part of the judicial process. 1) If there wasn’t, people might be afraid to come forward. b. The key is FUNCTION, not status. 5. President: There is an absolute immunity for official actions in office (w/in “outer perimeters” of what is official) but not for actions before he or she assumes office. B. Qualified Immunity 1. The Progression of Qualified Immunity to Harlow a. Scheuer v. Rhodes (Protest/Confrontation at Kent State) - 1974. Immunity to State Governor? 1) Facts: In response to the protests on campus, the governor sent out the Nat’l Guard. They fired several shots into the “mob” and killed four students. The estates of the deceased students brought suit against the governor, police and Nat’l Guard officials, and other unnamed officials. 2) ISSUES: A) Is this a suit against the state instead or individuals? (11th Amend implications). B) Are the ∆s absolutely immune? 3) Held: Applied a good faith and reasonable grounds basis to official conduct. A) It is the existence of reasonable grounds for the belief formed at the time in light of all the circumstances, AND; B) The good-faith belief, that affords a basis for qualified imm of exec officers for acts performed in the course of official conduct. 4) Discussion A) There is a presumption of some immunity b/c: (1) It would be unjust to impose liab in the absence of bad faith for a person req’d to exercise discretion. (2) Otherwise officials would be deterred to act. The underlying assumption is that it is ok to risk some error and injury in order to have a functioning gov’t. B) Can’t be absolutely immune (1) This would undermine Monroe v. Pape allowing a coa against a state official. (2) Pierson v. Ray suggested immunity for police based on existence of good faith and probable cause. Lacking good faith and probable cause would eliminate immunity. C) Scheur standard is both Objective & Subjective (1) Objective reasonableness (2) Subjective good faith D) Policy Issues (1) Compensation: Although suit is brought against the individual, ultimately, compensation comes f/ the gov’t which employs the official. (2) Deterrence: Officials will have an incentive to avoid all acts which might lead to civil liab. Officials will engage in excessive defensive activity and sacrifice the public good in favor of individual protection. (3) Symbolic Value: There is a symbolic value of an award of damages. The idea that we can sue an official and collect damages is symbolically important. It leads one to believe that there is logic in law. E) Problems w/ Scheuer: How do you dismiss the case if there is a subjective element? b. Wood v. Strickland – Immunity to School Board Members? 1) Facts: Students spike the punch at a school event. They are expelled. 2) Issue: Could School Board members be held liable? 3) Held: School Board Officials could be held liable IF: A) He or she knew or reasonably should have known the actions would violate ∏’s const’l rights. OR B) He or she acted w/ malicious intent to injure ∏ or deprive ∏ of a const’l right. c. Harlow v. Fitzgerald – The Critical Qualified Immunity Case 1) Facts: Fitzgerald alleged that Harlow, a presidential aide, participated in a conspiracy to d/c Fitzgerald in retaliation for testifying to Congress concerning cost overruns in the Air Force. 2) Issue: Do members of the executive branch have qualified immunity? 3) Held: Gov’t officials performing discretionary functions are shielded from liability insofar as: A) Their official conduct does not violate clearly established statutory or constitutional rights; AND B) These clearly established rights are those which a reasonable person would have known. 4) Discussion: A) Qualified immunity exists to make sure that insubstantial lawsuits do not go to trial. This holding makes the suit more amenable to SJ. B) It is important to give remedies but we don’t want groundless claims. C) Groundless claims impose social costs: expense of litigation, diversion of official energy, over deterrence. D) Litigating subjective bad faith magnifies costs b/c SJ will often be unavailable even after substantial discovery. Subjective bad faith is a question of fact to be decided by a jury. E) Bare allegations of malice can’t be enough to subject officials to broad disco or trial. Malice and subjective intent is not relevant. 5) How is it to be Applied? A) Litigating the Issue: No discovery until the question of qualified immunity is resolved. B) Deciding the Issue: (1) If the rule is clearly established, a reasonably competent official should know the law governing his conduct. (2) Except, the official can claim “extraordinary circumstances.” C) Right to Immediate Appeal in Federal Court (1) Mitchell v. Forsyth: Fed crt decisions rejecting clms of qualified immunity are immediately appealable, at least when the lower crt has concluded that a particular set of facts violates clearly established law. (2) Appeal is allowed only on the objective legal issues, not facts. Thus, if the ∏ comes forward w/ evidence sufficient to rebut the denial of “I didn’t do it,” appeal will be allowed. (3) State crts do not have to provide immediate appeal. 2. Applying & Tweaking Harlow – Assessing Reasonableness a. Wilson v. Layne (1999) 1) Facts: Police allowed the media to accompany them into a suspect’s home while serving a warrant. After a debated discussion, the crt found that the search was unconst’l and a violation of the 4 th Amend. But, were the officers immune from liability? 2) Held: B/c no controlling authority was in place at the time of the ride along expressly prohibiting the practice, the officers were immune. Thus, the officers were “reasonable in their conducting of a constitutionally unreasonable search.” 3) The TEST defined: A) First, ask whether the conduct involved violated the Const.? If the answer is NO, then the case should be dismissed. If yes, then ask  B) Second, whether the const’l right was clearly established? If yes, then ask  C) Third, whether the officer should have reasonably known that his conduct was unconst’l. b. Anderson v. Creighton (1987) 1) Facts: Suit was filed against an officer for a warrantless search in violation of the ∏’s 4th Amend rights. Qualified immunity for the officers? 2) Held: The question whether an officer had used excessive force in effecting an arrest was a separate question from whether the officer acted unreasonable for purposes of immunity. 3) Reasoning: A) Under the 3rd Prong of the TEST, Objective legal reasonableness is assessed in light of clearly established rules. i. “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” B) Reasonableness for probable cause to search and reasonableness for qualified immunity are TWO different things. The question to ask is whether the officers reasonably could have believed that they were complying w/ the law (acting reasonably). C) When a § 1983 ∏ alleges an unreasonable search & seizure, the (objective) inquiry into reasonableness called for by the 4 th Amend is made in light of the facts known (subjectively) to the officer. 3. LEVELS OF GENERALITY: a. Hunter v. Bryant (1991) 1) Facts: Bryant brought a Bivens action against secret service agents for making an arrest w/out probable cause. Were the agents immune? 2) Held: The agents are entitled to immunity if a reasonable officer could have believed that probable cause existed to arrest Bryant. 3) Reasoning: A) Immunity is a Question of Law which means  the question of immunity should be decided at the earliest state in litigation by SJ. i. First decide if an act violated the Const. If yes, dismiss. ii. Second, decide immunity. Was the right clearly established (objective)? Should the officer have reasonably known his conduct violated the Const (subjective)? If the subjective inquiry is disputed, then SJ will be denied. B) The issue in qualified immunity cases is whether the ∆ acted w/in the bounds of reasonableness, NOT whether there was a different and more reasonable course of action. b. Saucier v. Katz (2001) 1) Facts: A military officer removed a demonstrator. The demonstrator sued the officer alleging excessive force in violation of her 4th Amend rights. Is the officer immune? 2) Issue: Should a reasonable officer have known his conduct was unreasonably excessive? 3) Held: Reasonable beliefs about the use of force, even if they are unjustified in fact and lead to injury insulate officers and give them immunity. 4. Levels of Generality BUT: Under Anderson, Hunter, & Saucier, Legally Unreasonable Conduct will not lead to liability IF the ∆ reasonably believed that the unreasonable conduct was reasonable, b/c in such a case the ∆ does not fail the clearly establish law of which a reasonable person should have known standard. BUT… a. High Level of Generality w/ Warrant Particularities: Groh v. Ramirez (2004) 1) Facts: A clerical error on a warrant made the warrant facially invalid. A Bivens action was brought against the officers who illegally searched the house in violation of the 4 th Amend. 2) Issue: Were the officers immune? 3) Held: No reasonable officer could believe that such a warrant was valid. Thus, no reasonable officer could believe that such an act was reasonable. 4) Reasoning: The crt described the warrant particularity (what it needs to be effective) at a relatively HIGH level of generality and finding no qualified immunity for error. b. Sufficiently Analagous Precedent is Enough: Hope v. Pelzer (2002) 1) Facts: Prisoner, Hope, was handcuffed to a hitching post in the sun w/out a shirt for 7 hrs as punishment. He filed suit against the guards based on a violation of the 8th Amend ban on excessive punishment. Were the guards immune? 2) Held: The 8th Amend was clearly established and thus the officials are not immune. 3) Reasoning: A) The point of qualified immunity is to get fair warning. B) Fair warning can exist in novel circumstances. C) There was sufficient warning here based on prior similar appellate cases and a DOJ opinion to the state dept of corrections on the use of a hitching post. D) Dissent notes that there were cases that upheld the practice of using a hitching post. c. Reasonableness in a Highly Contextualized Manner: Brosseau v. Haugen (2004) 1) Facts: Officer Haugen shot Brosseau as he attempted to flee f/ law enforcement officials. Brosseau filed suit against the officer alleging excessive force in violation of the 8 th Amend. 2) Does the officer have qualified immunity? 3) Held: The crt applies the rationale of Anderson and Saucier – even assuming that the conduct of the officer violated the Const., the fact that this conduct was unconst’l was not clearly established. The right the official is alleged to have violated must have been clearly established in a more particularized and more relevant sense: The contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right. 4) Reasoning: A) It is a fact dependent question of when it is permissible to shoot a fleeing suspect. B) It tends to be permissible when there is a real risk to others (how much is open). C) It is not an objective risk, but what the officer reasonably believes the risk to be. 5. Qualified Immunity & Summary Judgment a. Unconstitutional Motive Clm -Crawford-El v. Britton (1998) 1) Facts: A prisoner filed suit against a correctional officer alleging that the officer deliberately diverted his belonging intentionally depriving him of his property to punish him for exercising his 1 st Amend rights (speaking to the press). 2) Issue: If the const’l clm against the official hinges on subjective motivation how does the crt decide SJ motions arguing qualified immunity? 3) Holding: To survive a SJ motion, all that is needed of the ∏ is evidence from which a rational finder of fact could find that the ∆ was unconstitutionally motivated. 4) Reasoning: A) State of mind issues are harder to resolve on a MTD or SJ motion. B) Harlow provides no support for treating these clms differently. i. Merits and immunity are not the same. ii. The concerns about avoiding costs to officials and getting rid of baseless clms are outweighed by countervailing concerns. C) The crt rejects the clear & convincing std of proving unconst’l motive that the official urges. The crt finds no CL support for this. D) Malice is irrelevant to qualified immunity but can be relevant on SJ if it is an element. E) Discovery isn’t all that bad. 6. Qualified Immunity & Private Actors: Sometimes private persons engage in state action and act under color of law when they act in concert w/ state or local officials. a. Private Ind. Liability: Private individuals can be held liable under § 1983 when they act in concert w/ state actors or when they exercise power delegated by the state. b. Richardson v. McKnight 1) Facts: Suit against guards at a privately ran correctional facility. 2) Issue: Were the guards entitled to the same qualified immunity that other guards at state ran facilities enjoy? 3) Held: Private guards in a privately ran prison lack qualified immunity, even though they perform the same jobs as public prison guards. 4) Reasoning: A) Market forces would suffice to keep private guards f/ being overly aggressive for fear of being hit w/ liab OR too timid for fear that competitors would take the biz. B) Historically, there is no derivative immunity afforded to private parties. C) HOWEVER, a probable cause or subjective good faith defense might still be raised (the same defenses that would be raised by officials). V. Governmental Liability for Violation of Federal Rights A. Municipal Liability Basics: Cities, Counties, & other local governmental entities are suable persons under § 1983. They cannot claim state sovereign immunity. 1. Rule Generally: Local governments are not liable in damages for the const’l harms inflicted by their officers on a vicarious liab or respondeat superior basis. Instead, a local gov’t will be accountable in a damages action under § 1983 for the unconst’l acts of one of its officials ONLY IF the ∏ can show that the official acted pursuant to some law, custom, or policy of the gov’t. a. The unauthorized, random, unconst’l acts of a local official are therefore not attributable to the entity for which the official works for. b. Under the above situation, the official himself may still be personally liable in damages. c. Not just formal legislative enactments, but also the individual decisions of those who are final policymakers can subject local gov’ts to liab. d. An entity’s failure to train its officials can subject it to liab for otherwise random and unauthorized act, as can a failure to properly screen at the time of hire. 2. Entity Accountability & Its Limits a. Monell v. NY Dept. of Social Services (1978) 1) Facts: A class of female ee’s brought suit against the Dept of Social Services, the commissioner, the board and its chancellor, and the city of NY and its mayor re the Dept’s policy compelling pregnant ee’s to take unpai d leaves of absence before such leaves were medically required. The ∆s were each named in their official capacities. 2) Issue: Are cities among the “persons” who could be sued under § 1983? 3) Held: Cities were among the “persons” who could be sued under § 1983. 4) Reasoning: A) Overturned a portion of Monroe v. Pape which held that cities could not be sued under § 1983. B) A municipality cannot be held liable under a Respondeat Superior Theory. i. The statutory language of § 1983 speaks of liab of “persons who …shall subject, or cause to be subjected, any person” to deprivation of const’l rights. This language of causation prohibited any theory of vicarious liab of a city for the acts of its agent. ii. “Instead, it is when execution of a gov’ts policy or custom, whether made by the lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the gov’t as an entity is responsible under § 1983.” b. Consequences of Monell: An officer can still be held accountable in dam under § 1983 for his unconst’l actions in the performance of his job, whether or not he acted pursuant to any law, custom, or policy of the entity for which he works. The gov’t entity will be liable only if its officer acted pursuant to custom or policy, b/c the official’s acts are not always attributable to the gov’t for § 1983 municipal liab purposes. 1) Previously, if a party wanted to sue a local gov’t, he could do so only for injunctive relief, and then, only by naming the relevant gov’t official in her official capacity. 2) Now, a party can sue a gov’t for injunctive relief & dam provided that Monell’s custom-or-policy req’t was satisfied. B. The Uncertain Contours of Custom or Policy 1. Formal Policies vs. Random Acts a. Formal Policy: Custom or policy is embodied in the formal lawmaking efforts of legislators. Action by local officials to enforce an unconst’l ordinance passed by a city counsel, for i.e., would clearly be action pursuant to custom or policy. b. Random or Unauthorized Acts: Ordinary actions not taken pursuant to any policy or custom. The only nexus between the act and the city is the fact that the city employs the official, which Monell states is not enough for liab to attach to the city under § 1983. It precludes the “bad-apple police officer.” 2. Custom and Informal Policy: What do we do w/ unconst’l acts taken pursuant to an informal, unwritten policy of an entity in the form of “custom or usage?” A policy could arise by “acquiescence in a long-standing practice or custom which constitutes the standard operating procedure of the local gov’t entity” – Jett v. Dallas. a. When behavior becomes custom: The practice must be sufficiently longstanding and wide-spread to show that high-ranking or policymaking officials had actually or constructively acquiesced in and condoned the activity. 1) Merely showing that the particular behavior happened on more than a few or a # of occasion would likely be insufficient. 2) The behavior must be recognized as standard operating procedure. 3. Decisions of Policymakers a. Owen v. City of Independence (1980) 1) Facts: The city council voted to fire the city’s chief of police and in doing so, violated his procedural DP rights to a pre-termination hearing. ∏ named the city and city council in the suit. 2) Issue: Will a single act that is not especially legislative in nature made by a lawmaking body, subject the municipality to liab? 3) Held: The acts of lawmaking bodies will subject a municipality to liab, even if it is a single act that is not itself especially legislative in nature. 4) Reasoning: A) This case was unique in that it imposed retroactive liab on the municipality for violating the req’t of a name clearing hearing subsequently announced in Board of Regents v. Roth. B) According municipalities a special immunity f/ liab for violations of const’l rights would not serve the goals of § 1983 – EVEN if those rights had not been clearly established when the violation occurred. Such a determination merely makes municipalities, like private individuals, responsible for anticipating developments in the law. b. Pembaur v. City of Cincinnati (1986) 1) Facts: A county prosecutor told local law enforcement officials to go in and get two ind’s who were inside a med clinic and resisting service of an arrest warrant. Proceeding on the prosecutor’s instructions, the sheriff and city police broke in and arrested two ind’s who were not actually the persons whom the warrant had named. The owner of the clinic sued under § 1983 for dam arising f/ an alleged illegal search and seizure (4 th Amend). He named the county (among others). 2) Issue: Was the county liable for the actions of its officers? 3) Held: The county was liable. 4) Reasoning: A) The county prosecutor had been delegated final policy making authority to make such searches and municipal liab may be imposed for a single decision by municipal policymakers. B) Policy could be made by those individuals “whose edicts or acts may fairly be said to represent official policy.” –Monell. c. St.Louis v. Prapotnik (1988) 1) Facts: The ee ∏ brought a § 1983 action against the ind’s who allegedly retaliated against him, and he sued the city where he worked, 2) Issue: What is the std for determining when isolated decisions by city officials may subject the city to liab? 3) Held: Those who retaliated against Prapotnik were not policymakers, insofar as they did not have the delegated power to make employment policy so much as to implement it. 4) Reasoning: A) State law determined who was and was not a policymaker. Under state law, perhaps only the Mayor and Aldermen had responsibility to formulate employment policy. B) The fact that the power to hire, fire, and transfer ee’s had been delegated to subordinate officials did not convert the subordinates into policymakers. (delegation doesn’t convert to policymaker). C) The task of identifying policymakers is a question of law for the crt. D) The TEST: i. A municipality can be liable only for acts which the municipality has officially sanctioned or ordered. ii. Only those municipal officials w/ final policymaking auth may subject the city to § 1983 liab. iii. Whether a particular ind has final policymaking auth is a question of state law. iv. The policy must have been adopted in that area of the city’s biz. 4. Rules of Policy/Custom a. Unconst’l actions taken pursuant to statute or long-standing custom will subject a city to liab under § 1983; actions by the rogue cop will not. b. The acts of lawmaking bodies will subject a municipality to liab, even if it is a single act that is not itself legislative in nature. c. The single unconst’ act of a policymaker can also subject a city to liab. C. Failure to Train as a Basis for Municipal Liab 1. Argument Described: Otherwise isolated unconst’l action by an official has been taken pursuant to custom or policy when the action is the result of the city’s failure to train. 2. Inaction vs. Deliberate Indifference a. City of Canton v. Harris (1989) 1) Facts: ∏ sought to hold the city liable for depriving her of her right to receive medical attn while in police custody. She argued that the officers were not trained to know when a prisoner needed help. 2) Issue: Can a city be liable under § 1983 for violation resulting f/ its failure to train its ee’s? 3) Held: Failure to train ee’s can provide a basis for municipal liab only where the failure to train amts to deliberate indifference to the rights of persons w/ whom the officials come into contact with. 4) Reasoning: A) Deliberate Indifference: To be judged by a largely objective std. B) It is not enough to show that the city has a policy and the officer was trained by that policy and the injury occurred at that hands of the officer trained by that policy. What needs to be shown is that the PRORGRAM ITSELF IS INADEQUATE and that the INADEQUATE TRAINING is itself official policy. C) “It may so happen that in light of the duties assigned to specific officers or ee’s, the need for more training is so obvious, and the inadequacy so likely to result in the violation of const’l rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.” b. Thus, certain type of training will be obvious from the outset – such as use of deadly force by police. c. A finding that the law was no clearly established at the time of the alleged wrongdoing may foreclose liab on a failure to train theory. d. Causation 1) It must still be shown that the failure to train actually caused the unconst’l action in question. The unconst’l action could be the result of something besides the lack of training, even when there has been a deliberate failure to train. 2) For the action in question to be traced to a deliberate failure to train, it may also have to be shown that different training would have resulted in different action on the part of the officer. D. Fault in Hiring 1. Bryan County v. Brown (1997) a) Facts: ∏ sued city stemming f/ an officers excessive force. The theory was that the sheriff who hired the officer failed to adequately screen the officer prior to hiring him. The officer has a criminal hx. b) Issue: Can a city be liable for failure to properly screen an applicant who subsequently engages in violent acts? c) Held: Gov’t liability could attach only when the acts were taken w/ deliberate indifference to obvious or highly predictable specific consequences. d) Reasoning: 1) The ∏ had to show that there was a direct causal link between the policymaker’s fault in hiring and the particular deprivation of const’l rights. 2) The ∏ had to show that the ee’s background made the specific risk of his particular use of excessive force a plainly obvious consequence of his being hired. 2. Rule: The ∏ must show that the act of hiring someone w/ a crim hx constituted a deliberate indifference to obvious or highly predicable consequences – the officer was indifferent to the highly predicable consequence that hiring someone w/ violent tendencies would lead to that officer committing violent acts on innocent victims. E. State Action Doctrine 1. The question of “under color of” law under § 1983 is essentially the same as the question of state action under the 14th Amend. There must be a violation of the 14 th Amend (making the Const. applicable to the states) in order for there to be a § 1983 violation. This most always requires a state official to act pursuant to state authority. There are some exceptions. 2. Private Actors as Public Actors: Private parties engaged in concerted action w/ gov’t officials may subject themselves to liab under § 1983. a) This is not a bright line rule. b) The focus is to what extent it can fairly be said that the harm in question was facilitated b/c of the auth given by the state to a particular actor. It is a question of degree. c) The crt has consistently req’d more active involvement by the state before finding that the const’l state action req’t has been met. d) Private persons are undoubtedly state actors, as their sole auth to confine inmates assigned to them is the delegation of power f/ the state. Private prison guards and presumably the corp’s that hire them are not entitled to qualified immunity but at most some sort of good-faith defense. e) Thus, if the crt finds state action on the part of the private actor, then the private actor is subject to § 1983 liab. 3. Public Actors as Private Actors: Not everything that a public official does occurs “under color of” law. a) If an on-duty police officer got into a fight w/ his bro over a family dispute, it is questionable whether he would be acting under color of law. b) On the other hand, even extraordinary deviations f/ acceptable practice may be considered under color of law if the harm was materially aided by the power and auth given by the state to a particular actor. (while this may expose the official to § 1983 liab, it likely will not expose the municipality). VI. The Scope of Due Process A. Three Types of § 1983 Claims 1. Enumerated Rights – Bill of Rights 2. Substantive DP – Fundamental Rights in the 14th Amend. 3. Procedural DP B. Fundamental Rights & Substantive DP: 1. Bill of Rights: Complaints alleging violations of the Bill of Rights (1st 10 Amends) and most other (non-DP) provisions of the Const. are immediately actionable in a § 1983 suit, w/out regard to state remedy. 2. 14th Amend – Fundamental Rights: The fundamental rights guaranteed by the 14 th Amend, such as the right to marry, can be redressed under § 1983. 3. The existence of state remedial procedures that the ∏ might initiate is irrelevant in these cases. C. Other Rights & Procedural DP: This involves the deprivation of an otherwise nonfundamental, typically state-created right (such as an interest in prop or K). W/ respect to these non-fundamental rights, the Crt has suggested that the Const. may provide protection f/ gov’t deprivation, but that the protection afforded by the DP cl is generally procedural. The DP cl may require the state to provide some meaningful pre or post-deprivation process in connection w the particular state deprivation of liberty of property. If the state provides such process, a § 1983 action will be unavailable. 1. Parratt v. Taylor (1981) a. Facts: A prisoner claimed that prison officials had deprived him of his prop w/out DP of law when they lost certain mail-ordered hobby materials valued at $23.50. He sued the prison Warden of the prison in a § 1983 action seeking to recover the value of his lost prop. He did so despite the fact that a state tort clms procedure existed that would have remedied the loss in state crt. b. Issue: Can a prison warden be liable under § 1983 for depriving a prisoner of prop w/out DP of law? c. Held: The prisoner could not go forward w/ his § 1983 suit, but must first pursue his state remedies instead. d. Reasoning: 1) Although the neg loss of materials could amt to a deprivation w/in the meaning of the 14th Amend, the deprivation was not w/out DP of law when the state was prepared to make good the loss through a post-deprivation state judicial proceeding. 2) The crt makes three central holdings: A) § 1983 has no general state of mind req’t. This is not to say that state of mind never matters. It does under the following: i. The underlying const’l violation may req proof of a particular state of mind, such as an equal protection guarantee against racial discrimination, which requires proof of a discriminatory purpose. ii. It may be relevant to the defense of qualified immunity. B) § 1983 clms require proof of a deprivation, and neg conduct by state actors that result in loss of prop is a deprivation w/in the meaning of § 1983. (overruled later by Daniels v. Williams) C) The prisoner fails to state a clm for deprivation in violation of DP, b/c he has not shown a lack of DP. i. DP requires notice & an opp to be heard at a meaningful time and in a meaningful manner. ii. Where there is a tortious loss f/ a random and unath’d act – that is, not f/ an established procedure and where the state cannot predict the loss, then there cannot be a pre-deprivation process. iii. In such cases, meaningful post-deprivation remedies, such as the availability of tort clms, ARE sufficient DP. 2. State of Mind & DP a. Intentional Deprivations: Parratt involved neg deprivations. The Parratt principle of req’g initial resort to adequate state remedies was applied to intentional deprivations of non-fundamental rights. 1) Hudson v. Palmer (1984) A) Facts: Involved the alleged intentional destruction of personal prop by prison guards during an unannounced shakedown of the prisoner’s cell. B) Issue: Are post-deprivation remedies adequate in cases of intentional wrongdoing? C) Held: Even intentional deprivations of prop would not violate the DP cl when the state provided a meaningful post-deprivation procedure to make good the loss. D) Reasoning: i. The state’s action is not complete until and unless it provides or refuses to provide a suitable post-deprivation remedy. ii. If we treated these as substantive clms, the we would see state action complete when the prop was taken or destroyed. 2) Thus, Parratt & Hudson find that there will be no § 1983 procedural DP clm where an official engaged in a random, unforeseeable act (regardless of official’s state of mind) and a post-deprivation remedy was available under state law. b. Negligent Deprivations: No deprivation w/in the meaning of the DP cl can occur when only negligent conduct is involved. This was the central holding in Daniels, which overturned part of Paratt’s 2nd holding. 1) Daniels v. Williams (1986) A) Facts: Prisoner slip & fall case. Prisoner alleged that the resulting injury was a deprivation of his liberty interest in freedom f/ BI. B) Held: Neg acts are not deprivations of life, liberty, or prop in violation of DP. c) Reasoning: i. DP was addressed to deliberate decisions of gov’t and abuse of power not the lack of due care. ii. Thus, even though the prisoner apparently had no post deprivation remedy in the state crts, no procedure for compensation is constitutionally req’d. 2) Davidson v. Cannon (1986) A) Facts: An inmate sued prison guards for their neg in allowing him to be beaten by another prisoner. B) Held: Even though there might be no effective post-deprivation remedy for the prisoner, merely neg acts do not trigger the DP cl. C) Reasoning: i. The point of DP is to protect f/ arbitrariness and oppression, not mere neg. ii. Recklessness or gross neg might be enough. 3) Implications: Neg denial of DP is actionable BUT NOT actions that are neg and that also lead to neg denial of DP. A) Trial crts act intentionally when it rules, but violation of DP is neg. B) School officials act intentionally when they suspend but violation of DP is neg. C) Leaving the pillow on the stairs in Daniels was simply a neg act and violation of DP is also neg. 3. Authorized vs. Unauthorized Official Behavior a. Generally: Parratt’s resort to state crt remedies rationale is limited to cases in which the DP deprivation is random and unauth’d. Bill of Rights cases, however, may proceed immediately in fed crt under § 1983 w/out regard to state remedies. 1) Parratt’s random & unauth’d limitation is relevant to DP deprivations of non-fundamental rights alone. 2) When an official’s deprivation of non-fundamental rights is NOT random and unauth’d, but is pursuant to some “established state procedure” or is otherwise systematic, then the Parratt req’t of resort to post-deprivation state remedies is said to become inapplicable. b. Zinermon v. Burch (1990) 1) Facts: Claim that a mental pt was deprived of liberty w/out DP of law. The ∏ sought damages alleging that state officials had failed to assess properly whether he had voluntarily committed himself to a state mental health care facility. His clm was that essentially he was denied pre-deprivation process. 2) Held: Bill of rights cases may proceed immediately in fed crt under § 1983 w/out regard to state remedies. 3) Reasoning: A) Parratt & Hudson are exceptions. They are examples of when DP does not require a pre-deprivation hearing b/c it is impracticable. B) When an officials deprivation of non-fundamental rights is pursuant to some established procedure or is otherwise systematic, then the Parratt req’t of resort to post-deprivation state remedies is inapplicable. 4. The Scope of Protected Liberty and Property a. Parratt is inapplicable to clms implicating freedoms in the Bill of Rights as incorporated through the 14th Amend, and it is inapplicable to other fundamental rights covered by the rubric of substantive DP, such as rights relating to reproductive freedom. These deprivations remain actionable in the first instance in federal crt under § 1983. BUT, state deprivations of non-fundamental (i.e., state created) liberty (as well as prop) interests may req some kind of state provided remedial process, whether it is pre or post deprivation. b. Paul v. Davis (1976) 1) Facts: ∏ filed a clam against a local official claiming that the posting of a notice that identified the ∏ as an active shoplifter was defamatory harming his good reputation. ∏ argues that he should have rec’d a pre-deprivation notice and a hearing before such a posting occurred. 2) Issue: Should ∏ have been entitled to a pre-deprivation notice? 3) Held: No liberty or prop interest w/in the meaning of the DP cl had been implicated by the claimed deprivation. 4) Reasoning: A) § 1983 should not become a “font of tort law.” B) At some point, gov’t action can be so arbitrary or oppressive that it is substantively forbidden. Slander/Libel doesn’t fall into this category. Perhaps what the crt intended to say was that not all CL liberty interests such as those protected by defamation law warrant state remedial protection f/ official deprivation as a fed const’ matter. c. Siegert v. Gilley: Conf’d Paul’s holding. Defamation was not a const’l violation, even if the ∆ acted with malice. D. Substantive vs. Procedural DP 1. Rule: a. What § 1983 Allows: If it is possible to shoehorn one’s deprivation of life, liberty, or prop into one of the Bill of Rights guarantees, or otherwise successfully argue that there has been a deprivation of substantive DP, resort made be made immediately to § 1983. Also, most non-DP substantive const’l violations, such as a violation of the Equal Protection Cl, can be remedied in fed crt under § 1983. b. What § 1983 Does NOT Allow: Absent the above, there is only the Procedural DP right that there be some pre or post-deprivation process w/in the state crt system to remedy the state’s deprivation of non fundamental liberty or prop interests. 2. From Torts to Substantive DP: Some official behavior may be so egregious – so brutal and offensive to human dignity as to shock the conscience and such behavior can violate substantive DP norms, even when the BOR or other underlying fundamental rights are not implicated. a. Sacramento v. Lewis (1998) 1) Facts: High speed car chase by police resulted in the police car running over one of the occupants of the motorcycle that the police were chasing. 2) Issue: Did the deceased child have a substantive DP right to life? 3) Held: The proper std for substantive DP analysis is measured by a shocks the conscience std and sometimes will req proof of intent to injury (perhaps it is b/c it is the intent that shocks us). b. Chavez v. Martinez (2003) 1) Facts: Martinez was shot during an altercation w/ the police. While at the hospital he was interrogated by officer Chavez. He filed suit alleging that the interrogation violated his 5 th Amend right to be free f/ self incrimination. (A Miranda warning was not provided). 2) Held: There was no claim under the 5th Amend, but a substantive DP clm was available. VII. Excessive Force, Private Violence, & § 1983 A. Official Violence 1. Searches & Seizures (4th Amend): The req’t is the same for all search & seizure clms – whether the officer’s action was reasonable when judged by an objective std in light of the facts and circumstances confronting the officer. a. The use of deadly force to arrest would trigger the 4th Amend b/c such action implicates a seizure of the person. 1) The existence of a const’l violation would turn on the facts that the officer was aware of at the time and the objective reasonableness of the level of force employed by the officer based on the facts. 2) Even if the use of force was unreasonable and violative of the 4 th Amend, the officer may still be immune f/ dam if he can show that he acted in good faith, i.e., that he was not unreasonably unreasonable. 2. Cruel & Unusual Punishment (8th Amend): Prisoners must show that prison officials used force maliciously and sadistically and for the very purpose of causing harm or w/ a knowing willingness that harm would occur. B. Private Violence & Affirmative Governmental Duties 1. Custodial Settings a. Prisoners: The 8th Amend ban on cruel & unusual punishment has been held to impose affirm duties on the gov’t to protect prisoners f/ other prisoners. To impose liab on the gov’t, the prisoner must show that the official demonstrated a deliberate indifference in some relevant regard, such as assignment of cellmates. 2. Non-custodial Settings a. Private Violence: There is no const’l duty on the part of the gov’t to protect individuals in non-custodial settings f/ private violence. VIII. Enforcing Rights Under Federal Laws Through § 1983 A. Statutory Violations & § 1983 1. Maine v. Thiboutot a. Facts: Suit was filed in state crt against a state commissioner of Human Services to recover welfare benefits which were withheld. b. Issue: Does § 1983 encompass clms based on purely statutory violations of fed law? c. Held: § 1983 broadly encompasses violations of federal statutory as well as const’l law. d. Reasoning: 1) There was now an express coa to enforce against public officials, the myriad fed statutes having to do w/ such diverse subjects as pollution, strip mining, wildlife conservation, and historic preservation. 2) Virtually all federal spending programs could be enforced under § 1983. 3) The crt effectively imputed to Congress an intent to have broader private enforcement of fed statutes when they were violated by state and local actors than when they were violated by private parties. B. Exceptions to Statutory Enforcement Under § 1983 1. Non-enforceable Rights: In this context, the Sup Crt concluded that a § 1983 remedy is available only if two conditions are met: a. The underlying fed statute must create enforceable rights in individuals; AND 1) Where a statute is silent about whether it may be privately enforced, the ∏ must show Congress’ unambiguous intent to confer ind rights upon a class of beneficiaries of which ∏ is a member. 2) If the crt does find an implied right of action, it must also find an implied private remedy. It is § 1983 that supplies the remedy. b. Congress must not have substituted its own remedies for those under § 1983. 2. Congressional Displacement: Even if a fed statute creates enforceable rights, a § 1983 remedy will be unavailable if Congress has displaced it. What does it take to displace it? a. If Congress has provided its own “elaborate” or “comprehensive enforcement mechanism” the Crt will infer that Congress meant to displace any remedy under § 1983. b. Middlesex Cty. Sewerage Auth v. National See Clammers Ass’n (1981) 1) Facts: The ∏s attempted to avoid many of the limitations on private enforcement of various fed environmental statutes by suing the ∆ sewerage auth under § 1983 for dumping waste into the ocean in violation of the environmental statutes. Fed law allowed for the EPA to initiate proceedings to enforce the statutes, for judicial review of the EPA’s action, and for citizen suits for injunctive relief under some circumstances. 2) Do the ∏s have a coa? 3) Held: Congress foreclosed most private rights of action under the statute against any violator and intended to supplant any remedy that would otherwise be available under § 1983. 4) Reasoning: This holding rejected prior decisions that seemed to suggest that the less Congress said about a remedy in a statute, the more likely that § 1983 would be available to enforce it. c. Wright v. Roanoke Redevelopment (1987) 1) Facts: ∏s, low income tenants, sued a public housing auth alleging that they had been overbilled for utilities in violation of a fed rent ceiling. 2) Issue: Was the fed rent ceiling enforceable in a § 1983 action? 3) Held: Here, the remedial mechanisms provided were not sufficiently comprehensive and effective to raise a clear inference that Congress intended to foreclose a § 1983 coa for the enforcement of tenant’s right secured by fed law. 4) Reasoning: This was contrary to Sea Clammers in that the statute was silent and didn’t give any reference to judicial enforcement. d. City of Rancho Palos Verdes v. Abrams (2005) 1) Facts: This involved fed § 1983 suit for dam arising from a municipality’s actions taken contrary to the TCA. The ∏ alleged that the city denied him a conditional use permit to have an antenna on his house for mobile ph relay services, in violation of limitations imposed by the TCA on local zoning authorities. He sought injunctive relief as provided for under the TCA and he sought dam and attny fees under § 1983. 2) Issue: Did the ∏ have a § 1983 coa? 3) Held: The presence of some private remedy in a statute itself creates a nonconclusive but rebuttable inference in favor of the ∆ that the § 1983 remedy has been displaced. 4) Reasoning: A) The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others. B) The inference of displacement can be overcome by textual indication, express or implicit, that the remedy is to complement, rather than supplant § 1983. e. Exclusion of a § 1983 Remedy can be shown by: 1) It may be inferred f/ the statute’s creation of a comprehensive enforcement scheme – Sea Clammers. 2) Congressional intent to displace may be fond directly in the statute creating the right – Rancho Palos Verdes IX. Preclusion Issues & Monetary Remedies A. Full Faith & Credit Act: Commands that fed crts and state crts give the same preclusive effect to prior state crt jdgmts that the jdgmt rendering state crt would give to them. The exception is habeas clms. B. Issue Preclusion 1. Allen v. McCurry a. Facts: McCurry was charged w/ possession of heroin and raised as an affirm def that the search was illegal and a violation of his 4 th Amend. He was convicted and now seeks to file a § 1983 action for damages. b. Issue: Is the ∏ allowed the opp to relitigate the issue of the legality of the search if a state crt would also deny him this opp? c. Held: A fed crt would have to deny a § 1983 ∏ the opp to relitigate the issue of the legality of the search if a state crt would also deny him the opp. d. Reasoning: 1) Under the full faith and credit statute, fed crts are req’d to give a state crt jdgmt whatever preclusive effect a state crt would give it. 2) Most states give a litigant who has had a full and fair opp to litigate a particular issue, which was actually litigated, and which was necessary to the earlier decision, no more than one round at litigating the issue. 3) There is no reason to believe that Congress intended to provide a person claiming a fed right an unrestricted opp to relitigate an issue already decided in a state crt simply b/c the issue arose in a state proceeding in which he would rather not have been engaged at all. 2. Even if McCurry got to the fed crt first, it would not help him, b/c in such cases the fed crt would ordinarily abstain in favor of the pending state crt proceeding based on principles of comity and federalism. 3. Even if McCurry had his conviction reversed in state crt but had still litigated & lost on the 4th Amend issue, he still would be precluded on his 4 th Amend § 1983 clm. C. Claim Preclusion 1. Migra v. Board of Education (1984) a. Facts: A dismissed school teacher brought suit against various ∆s in state crt for breach of K arising out of events that resulted in her termination. She litigated and won on her state law clm in state crt and recovered damages for the breach. She then sought to recover for other damages (including P&S) in fed crt in a § 1983 action arguing that her dismissal also violated the Equal Protection Cl of the 14th Amend. b. Issue: Could the ∏ bifurcate her clm and file in separate crts? c. Held: The ∏s state crt jdgmt has the same preclusive effect in the fed crt that the jdgmt would have in the state crt. The rule is that the fed clm would have to be dismissed if the preclusion rules of the state in which the earlier clm was litigated would consider her filing of two separate actions to be clm splitting. d. Reasoning: 1) Allowing relitigation of issues already adjudicated in state crt calls the correctness of the state crt into question and thereby offends the interest of comity between state and fed crts. 2) Most states have tests for claim splitting: If two clms for relief involve the same parties which arise out of a common core of nucleus fact, a litigant may be obliged to combine them into a single action. 3) This is an issue of CLAIM preclusion – and clm preclusion can apply even as to unlitigated matters. X. Statutes of Limitation A. State Crt Analogies: Crts resort to state law for a SOL for § 1983 as a matter of fed CL. 1. Wilson v. Garcia a. Facts: ∏ made a 4th Amend clm for unlawful arrest. He filed the clm 2 yrs 9mos after the clm arose. The ∆s moved to dismiss arguing that the action was barred by the NM 2 yr SOL for torts. b. Issue: Is the clm time barred? c. Held: § 1983 clms are best characterized as personal injury actions. B/c the personal injury SOL in the state was 3yrs, the clm was not time barred. 2. Choosing an Analogous State Statute: B/c more than one state law coa could be implicated, the Crt has also concluded that § 1983’s purposes are best furthered by the fed crt’s selection of a single (the one most appropriate) state statute in each state for ALL § 1983 actions. 3. Choice Between Personal Injury Statutes: What happens when a state also has more than one generally applicable tort or personal injury statute? a. Owens v. Okure (1989) 1) Facts: There was a state statute for intentional torts and a longer residual statute governing personal injury actions. 2) Issue: What statute does the crt apply? 3) Held: Where state law provides multiple SOLs for personal injury actions, crts considering § 1983 clms should borrow the general or residual statute for personal injury actions. B. Tolling & Accrual: If the applicable state statute would be interrupted for some reason, then it will be interrupted in the § 1983 context, as well. 1. Wrongful Discharge Cases: The relevant limitations period does not begin at the time of discharge, but at the moment when the ∏ first leans that he is going to be termed. 2. State law may supply the SOL, but federal law says when it begins to run. XI. Notice-of-Claim Statutes A. Procedures & Remedies in State Crts: To what extent must litigants adhere to state procedures and related requirements? 1. Undue Procedural Burdens a. Felder v. Casey (1988) 1) Facts: WI req’d that anyone suing a police officer or municipality for dam in state crt would have to give notice of the clm to them 120 days prior to filing suit. The design of the statute was to allow for pre-suit settlement and to reduce lawsuits against such ∆s. 2) Issue: Are these notice requirements a prerequisite to § 1983 clms? 3) Held: The state statute could not be applied to a § 1983 action filed in state crt. 4) Reasoning: A) The state statute imposed a kind of exhaustion req’t on the § 1983 ∏ in violation of precedents declaring that exhaustion of state remedies was not a prerequisite to a § 1983 clm. B) Federal rights cannot be defeated by the forms of local practice. C) B/c the notice of clm statute conflicts both in its purpose and effects w/ the remedial objectives of § 1983, and b/c its enforcement will frequently and predictably produce different outcomes in § 1983 litigation based solely on whether the clm is asserted in state or fed crt, state law is preempted when the § 1983 action is brought in a state crt. b. One of the rights that § 1983 protected was immediate access to a judicial forum, whether it was state or federal, free f/ any administrative exhaustion req’t. If this is what § 1983 protects, then the notice of clm req’t imposed an undue burden on the exercise of that right. 2. Discriminatory Procedures: The exhaustion req’t/notice of clm provision, served the purpose of curbing litigation against the gov’t and its officials. This served as discriminating against those seeking to file such a clm. XII. Jury Trial Rights A. Const’l Right: Under the 7th Amend, in suits at CL, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved. This has been read as req’g a jury trial in fed crt when the statutory action is sufficiently analogous to suits that would have been tried by crts of CL in 1791, as distinguished f/ crts of equity. § 1983 refers to a ∏ to be able to bring “an action at law or suit in equity.” B. City of Monterey v. DelMonte Sunes at Monterey (1999) 1. Facts: The ∏ sued for damages against a municipality for a regulatory taking w/out just compensation. 2. Issue: Whether a § 1983 clm for damages against a municipality for a regulatory taking of prop w/out just compensation should be tried to a jury? 3. Held: Instead of characterizing all § 1983 damages actions as akin to a tort or trespass action, the Crt indicated that it would inquire into whether the clm underlying the § 1983 action would itself present a historically LEGAL or EQUITABLE analogy. 4. Reasoning: a. B/c the gov’t taking of prop w/out providing compensation has historically been framed as a CL tort action, these cases, as in this one, is a legal suit at CL, and there would thus be a right to trial by jury. C. When clms for equitable relief are joined w/ legal clms w/ which they have some factual overlap, it is the practice to allow the legal clms to be resolved first, such that a judge will be bound by any necessary factfinding made by the jury in deciding the legal clms when she later considers the equitable clm. XIII. Release-Dismissal Agreements A. Release-Dismissal Agrmt Def’n: A ∏ may contractually agree to dismiss his clm in exchange for the prosecution’s dropping of crim charges arising out of the events giving rise to a § 1983 action. These types of agreements are enforceable. B. Town of Newton v. Rumery (1987) 1. Facts: A crim ∆ released his right to files a § 1983 action in return for a prosecutor’s dismissal of a pending crim charge. The ∆ later challenged the validity of the release. 2. Issue: Is the release-dismissal agrmt valid and enforceable? 3. Held: Provided such an agrmt is voluntary rather than coerced, and does not suggest prosecutorial overreaching, and in the public interest, this type of agrmt is enforceable. XIV. Damages A. Compensatory Damages 1. Standards and Proof: a. Standards: § 1983 created a “species of tort liab” and that “the elements and prerequisites for recovery of damages … should parallel those for recovery of damages under the law of torts.” b. Proof: ∏s are able to put on proof and recovery for virtually all of the sorts of injuries that one might see in more ordinary CL litigation, including recovery for mental anguish and emotional distress, feelings of unjust tx, reputational harm, economic loss, fear, anxiety, humiliation, and personal indignity. These harms must be PROVED in order to collect. 2. Damages and the Inherent Value of Const’l Rights a. § 1983 ∏s must put on proof of actual injury in add’n to showing that their const’l rights have been violated, or compensation would consist of nominal dam for the supposed inherent value of lost const’l rights. b. Memphis Community School Dist. v. Stachura (1986) 1) Facts: A school teacher who had been dismissed in violation of his free speech rights sought reinstatement and compensatory dam, including dam for mental anguish and lost wages. He also sought and obtained an instruction f/ the trial crt allowing the jury to assess dam based on the inherent value of the rights in question b/c, damages for this type of injury are more difficult to measure than dam for a physical injury or damages to one’s prop. The ∆ appealed based on this instruction. 2) Issue: Was the jury instruction in error? Are there inherent const’l rights? 3) Held: The abstract value of a const’l right could form the basis for a § 1983 damages award. 4) Reasoning: A) Presumed damages are not available where there is a substitute available to show proof of ∏’s injuries. B) Presumed damages, therefore, may only be available in the unusual case in which the const’l harm is so intangible as to defy proof of quantification. C) Injuries arising f/ a const’l deprivation will ordinarily have to be reduced to CL components in order to be compensated. c. Carey v. Piphus (1978): Absent some proof of some sort of actual injury, students who were improperly suspended f/ school w/out procedural DP, were entitled to nominal dam of $1. There is no add’l award to vindicate the abstract or general value of the const’l right in question. B. Punitive Damages 1. Against Individual Officers a. Rule: When a ∆’s unconst’l conduct is shown to be motivated by evil intent, or when it involves reckless or callous indifference to the federally protected rights of others, a jury may award punitive damages against the official. b. Smith v. Wade (1983) 1) Facts: A Missouri prison inmate sued prison officials under § 1983 after he had been beaten, harassed, and sexually assaulted by his cellmates. He claimed a denial of his 8th Amend right to be free of cruel & unusual punishment b/c of the ∆ prison guards’ awareness of the likelihood of assault. The jury awarded punitive damages against the ∆ official. The ∆ appeals. 2) Issue: Can an official be held responsible for punitive damages? 3) Held: A showing of subjective ill will or malice was a sufficient but not a necessary condition to a pun dam award. A violation of an objective std of callous or reckless indifference would also suffice for pun dam. 4) Reasoning: A) To award pun dam was not far removed f/ the std of care for a compensatory award against the official considering the qualified immunity doctrines. B) Under QI, compensatory liab would attach only if the officer had violated clearly established const’l rights. C) Further, a prison official’s deliberate indifference to known risks is the prerequisite for a failure to protect clm. D) Thus, pun dam liab could easily follow on a showing of substantive liab in such a case. 2. Against Local Governments a. Rule: Municipalities are not subject to pun dam awards, even when their officials act pursuant to official policy and even when the policy shows callous or reckless indifference to const’l rights. b. City of Newport v. Fact Concerts, Inc. (1981) 1) Facts: A city council voted to revoke a concert promoter’s license after the promoter signed up a particular band (Blood, Sweat, & Tears) which the city council thought would attract a rowdy and undesirable audience. In its successful 1st Amend and DP Cl challenge to the city’s actions, the promoter obtained a substantial pun dam award against the city, but the Sup Crt vacated the award. The ∏ appealed. 2) Issue: Can the city council be subject to pun dam awards? 3) Held: Municipalities cannot be subject to pun dam awards. 4) Reasoning: A) There is no historical support for an award of pun dam. B) The only parties punished by an award of pun dam against the city would be the blameless taxpayers would have to pick up the tab. XV. Attorney’s Fees A. Rule Generally 1. Under the Fees Act, reasonable attny’s fees are ordinarily available to prevailing ∏s in § 1983 litigation; they are ordinarily unavailable to prevailing ∆s unless the ∏’s suit has been brought in bad faith. 2. A presumptively reasonable fee is said to be reached by calculating the hrs reasonably expended and the prevailing rates in the community for similar services. 3. States, themselves, are obligated to pay attny’s fees under § 1988 when their officials have been successfully sued in their official capacities. B. 42 U.S.C.A. § 1988(b). Attorney’s Fees 1. Defined: “In any action or proceeding to enforce a provision of (§ 1983), the crt, in its discretion, may allow the prevailing party, other than the US, a reasonable attny’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attny’s fees, unless such action was clearly in excess of such officer’s juris.” 2. Statute Suggests: The fee-shifting provision of the statute suggests that it is to be in one direction only: in favor of the prevailing § 1983 ∏ - i.e., the party who successfully vindicated fed rights. 3. Rationale: If ∏s were routinely forced to bear their own attny’s fees, few aggrieved parties would be in a position to advance public interest by invoking the injunctive powers of the fed crts. We want to award private enforcement of civil rights. C. Judicial Elaboration of the Fees Act 1. Prevailing Parties: To be a prevailing party, a § 1983 ∏ must obtain f/ the crt some actual relief on the merits of his clm that alters the legal relationship between the parties. This includes: a. An order req’g the ∆ to pay an amt of money including nominal damages. b. An order for injunctive relief. c. Dec Relief can be enough provided that the DJ alters the parties’ legal relationship and benefits the ∏ by affecting the ∆’s behavior towards him. d. A party whose suit merely serves as the “catalyst” in causing the ∆ to voluntarily change his behavior, w/out an award or order of relief f/ the crt, will not have prevailed. The catalyst theory is not a permissible basis for the award of fees. e. It is not necessary that the ∏ prevail on ALL issues to the prevailing ∏. It is enough that the ∏ succeed on any significant issue that achieves some of the benefit that the party sought in bringing suit. 2. Assessing a Fee’s Reasonableness a. The Lodestar 1) The place to start in assessing the reasonableness of a fee award for a successful ∏ “is the number of hrs reasonably expended on the litigation multiplied by a reasonable hourly rate. 2) Such assessments are made at the conclusion of litigation at a hearing before the crt in which both parties will put on docs or live testimony re what a reasonable fee should be. 3) The lodestar figure, representing reasonable hrs expended and reasonable rates, is said to be a presumptively reasonable fee. It may be adjusted upward or downward depending on particular circumstances, such as the results obtained. b. Proportionality in Fee Awards and Damages Jdgmts 1) City of Riverside v. Rivers (1986) A) Facts: Mex-American ∏s in a police abuse case recovered a little over $33k in dam when they succeeded in proving to a jury 37 incidents of civil rights violations by a municipality and 5 of its officers. The fee award, however, was nearly 250k. B) Issue: Should attny’s fees be proportionate to the dam award? C) Held: The vindication of const’l rights cannot be valued solely in monetary terms and that it would be improper to limit fees based on a tort analogy to some fixed % or proportion of the total recovery. D) Reasoning: i. Req’g that the fee not exceed some proportion of dam would deter vindication of const’l rights. 2) Farrar v. Hobby (1992) A) Facts: After 10 yrs of litigation, the crt awarded nominal dam. The attny’s fees were more than $300k, which were awarded. ∆s appealed. B) Issue: Does the prevailing party who is awarded nominal damages able to collect attny’s fees? C) Held: A prevailing party who is awarded nominal damages is able to collect attny fees UNLESS the prevailing party was only awarded nominal damages because of a failure of proof. 3. Expert Witnesses: Expert witness fees are separate and apart f/ attny’s fees. 4. Fee Awards for Time Spent in Administrative Proceedings: Since a § 1983 ∏ could go straight to fed crt, a state admin hearing did not qualify as an action or proceeding to enforce § 1983. If a discrete portion of work done in the admin proceeding were both useful and of the type ordinarily necessary to advance the civil rights litigation, it would be covered by the fee award. 5. Fee Awards for Disputes Settled Prior to Litigation: § 1988(b) authorizes fees only in an “action or proceeding to enforce” the listed civil rights laws. If there is no judicial complaint filed, then fees cannot be awarded. XVI. Related Federal Causes of Action – Reconstruction Legislation A. Civil Rights Act of 1866: The act declared that all persons born in the United States were now citizens, without regard to race, color, or previous condition, excluding Indians not taxed. As citizens they could make and enforce contracts, sue and be sued, give evidence in court, and inherit, purchase, lease, sell, hold, and convey real and personal property. 1. Authority: The Civil Rights Act was passed under the authority of the 13 th Amend, which gives Congress the power to authority to legislate against the badges and incidences of slavery. 2. Resulting Legislation: 1. § 1982 & § 1981 derive from this (§ 1 of the Civil Rights Act). B. Section 1982 1. Defined: All citizens of the US shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal prop. a. Origins: This statute was originally part of the 1866 Civil Rights Act. b. Early Authority: § 1982 was passed under the auth of the 13 th Amend, which was ratified in 1865. c. Current Source of Auth: Statute was reenacted in 1870 after ratification of the 14th Amend. Thus, the question arises, which is the “real” const’l source of legislation? The 14th or 13th Amend? 2. Jones v. Alfred H. Mayer Co. (1968) a. Facts: Can the court force an unwilling seller to sell property to a black person when he would have sold the same property to a white person? Jones, a black male sued for injunctive relief to require the seller to allow the sale of the property. He sued under § 1982. b. Issue: Does § 1982 apply to both state AND private action? c. Held: Congress can regulate the sale of private property in order to prevent racial discrimination. d. Reasoning: 1) § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment." 2) The Civil Rights Act of 1866 provides the basis for this decision. 3) The 13th Amendment authorized Congress to prohibit private acts of discrimination as "the badges and incidents of slavery” and Congress under the 13th Amendment possessed the power to "determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation." 4) In the text of the statute, there is no clear state action limitation. 5) “Badges & incidents” power includes the power to reach private action. 6) Hurd v. Hodges was the key precedent which held that a black citizen who is denied the opp to purchase the home he wants solely b/c of his race and color has suffered the kind of injury that § 1982 was designed to protect. 3. Impact of the Jones Case: a. § 1982 now reaches purely private discrimination regardless of involvement of the state or state assistance. b. The 13th Amend does not by itself forbid housing discrimination by a private party, but rather, Congress may advance its own rational def’n of the badges and incidents of slavery and may prohibit private as well as governmental behavior that is “rationally related” to the eradication of the “badges and incidents of slavery” as Congress so defines. c. In other words, Congress can go beyond the terms of the 13 th Amend and id for itself the kinds of racial discrimination it wishes to prohibit. C. Section 1981 1. Defined: All persons w/in the juris of the US shall have the same right in every State & Territory to make & enforce Ks, to sue, be parties, five evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and prop as is enjoyed by white citizens, and shall be subject to like punishment, pains, taxes, licenses, and exactions of every kind, and to no other. 2. Runyon v. McCrary (1976) a. Facts: McCrary was denied admission to Bobbe’s School and Fairfax-Brewster on account of racial grounds. Both schools were private, commercially operated schools. Neither school was integrated and would not admit black students. McCrary sued under § 1981. b. Issue: Does § 1981 prevent private schools f/ discriminating racially? c. Held: § 1981 makes it illegal for schools to racially discriminate. d. Reasoning: 1) Pursuant to the Auth vested in the 13 th Amend, Congress passed the Civil Rights Act of 1866. § 1981 was originally part of the 1866 Act. § 2 of the 13 Amend. gives Congress the auth to rationally determine what are the badges and incidents of slavery and to translate that determination into effective legislation. 2) The case relies on Jones to hold that the statute applies to private discrimination. 3) The statute is enforceable under the 13 th Amend. 4) The case rejected other const’l challenges: A) Freedom of Association: While parents have a 1 st Amend right to send their children to educational institutions that promote the belief that racial segregation is desirable, it does not follow that the PRACTICE of excluding racial minorities f/ such institutions is also protected by the same principle. B) Parental Rights: Private schools have the right to exist and operate and parents have the rights to send their children to these schools. There has been no right infringed upon here. C) The Right of Privacy: Parents DO NOT have the right to send their children to private schools “unfettered by reasonable gov’t regulation.” D. Scope of §§ 1981 & 1982 & Intersection With Other Statutes 1. § 1982 and Title VIII (Fair Housing provisions) of the 1968 Civil Rights Act a. § 1982 is narrower but more powerful where it applies. It applies to just incidents and badges of SLAVERY where Title VIII applies to all forms of discrimination. b. Title VIII is broader b/c it covers sex, religion, family status, and activities beyond the scope of § 1982 (such as advertising, redlining, etc.) c. Title VIII is weaker b/c exclusions allow some discriminators to escape liab. d. There is a more complex enforcement scheme for Title VIII. e. § 1982 allows damages and injunctions; Title VIII also allow administrative remedies. 2. Intersection of § 1981 w/ Title VII of the 1964 Civil Rights Act: a. Ind & Partially Overlapping Causes of Action 1) Johnson v. Railway Express (1975) A) Issue: Whether the filing of charges w/ the EEOC tolls the SOL for § 1981? B) Held: The remedies available under Title VII and under § 1981, although related, and although directed to most of the same ends, are separate, distinct, and independent. Thus, by filing w/ the EEOC, the SOL is not tolled. c) Reasoning: i. Title VII is a comprehensive remedy for employment discrimination but it is not the only remedy. ii. § 1981 covers employment Ks, but differently, some differences in coverage (§ 1981 is narrower but deeper) and remedies. iii. B/c § 1981 and Title VII are ind remedies, ∏s can pursue them independently. iv. There is no fed SOL for § 1981 cases, so borrow most closely analogous to SOL f/ state law. v. Refusing to toll § 1981 SOL doesn’t undermine goals of Title VII. vi. Title VII is broader than § 1981 in that it extends to grounds of discrim not covered by § 1981, such as sex, religion, etc. It creates a far more complicated schem than an action for dam and relief under § 1981. b. The Disparate Impact Divergence 1) General Building Contractors v. PA (1982) A) Held: § 1981 requires a finding of discriminatory intent, not disparate impact clms. B) Reasoning: i. Title VII allows disparate impact clms. ii. There was nothing in the text of § 1981 which limited i t to § 1981, so there was room to interpret it congruently w/ Title VII. iii. The crt did not do this, but instead interpreted it congruently w/ the 14th Amend (also requires a discriminatory intent). iv. THUS, § 1981 is both a 13th and 14th Amend. c. Who Can Sue? 1) McDonald v. Santa Fe (1976) A) Issue: Does Title VII and § 1981 reach discrimination against whites? B) Held: Both Title VII and § 1981 prohibit racial discrimination against the white petitioners in this case upon the same stds as woul d be applicable where they black. C) Reasoning: i. “Enjoyed by white citizens” is just another way of saying “racial discrimination.” 2) St. Francis College v. Al-Khazraji A) Issue: What is “race” for purposes of discrimination on the basis of race? B) Held: Race is a social construct rather than a scientific fact, so to give content to the idea of race we should look to what the drafters in 1866 and 1870 would have meant by race. During this time, racial discrimination is akin to discrimination on the basis of ancestry or ethnicity. C) Reasoning: This would also apply to religion, as well. d. Proof Issues 1) McDonnell Douglas v. Green (1973) – Not assigned reading: This provides us w/ a 3 part burden of proof framework. The burden shifts back and forth but ultimately the burden is always w/ the ∏. A) ∏ must prove a prima facie case of discrimination by a preponderance of the evidence – which creates an inference of discrimination. B) The burden shifts to the ∆ to provide a legitimate nondiscriminatory reason for the conduct at issue. C) If the ∆ is successful, burden shifts back to the ∏ to prove intentional discrimination, i.e., by showing that the legitimate nondiscriminator reason is a pretext. 2) Patterson v. McLean Credit Union (1989) A) Adopts McDonnell Douglas/Title VII std for § 1981 suits against private employers. 3. Intersection of § 1981 & § 1983 a. Jett v. Dallas Independent School District 1) Facts: A white football coach was “demoted” by reputational stds and brought numerous clms against his superiors and district. CLAIMS: A) Three counts under § 1983 i. DP – deprived of prop interest in his coaching position. ii. 1st Amend – fired in retaliation for stmts to the press. iii. Equal protection – removed f/ his coaching position on the basis of race (i.e., intentional classification and termination on the basis of race). B) One count under § 1981 that was essentially the same as the equal protection clm: contract violated by racial discrimination. C) Prior to Jett, circuit crt law was that § 1981 was an implied cause of action for clms against private individuals and against state actors. D) Jett changes the Law – Held: i. § 1983 provides the cause of action for violations by state actors of the rights declared in § 1981. -violations by private actors are actionable only under an implied cause of action. -no basis for implying § 1981 clms against state actors b/v § 1983 provides the express cause of action. -in short, all clms that a state actor violated and rights secured by § 1981 must be brought under the § 1983 cause of action. ii. As a result, § 1981 clms against state actors are governed by ALL of the rules that apply to § 1983 clms. -proper parties, qualified immunity, restrictions on municipal liab. -Even if the crt had held that § 1981 was its own cause of action, it could have reached the same result by simply holding that the same rules apply. iii. To sum up the prof, An unadorned claim without a source of right to back it up is NOT an actionable claim. § 1983 is a COA it is not a dec of rights – the rights must come f/ the const. 4. § 1981 and the 1991 Civil Rights Act a. Patterson v. McLean Credit Union (1989) 1) Facts: A black woman was laid off and sued McLean alleging that b/c of her race she had been harassed on the job, refused promotion, and finally discharged. She filed suit under § 1981 2) Held: Making a K extends only to the formation of a K, and enforcing a K covers only protection of a legal process and of a right of access to legal process. 3) Reasoning: A) Runyon should not be overruled. B) Patterson’s promotional clm was a different matter b/c it involved the opportunity to enter into a new K w/ the employer. C) In sum, racially motivated harassment is not actionable under § 1981 b/c it is not part of making or enforcing a K. b. Civil Rights Act of 1991 1) Takes what was all of § 1981 and turns it into § 1981(a) 2) Inserts a new § 1981(b), which overrules Patterson. 3) Inserts a new § 1981(c), which confirms that § 1981 applies to private conduct as well as to state action. 4) Enacts § 1981a, which provides for damages in Title VII cases, if can’t get them under § 1981. E. Section 1985(3) 1. Elements of the Cause of Action a. Two or more persons conspire or go in disguise b. For the purpose of deriving any person or class of persons, of equal protection of the law or equal privileges and immunities under the laws. 1) This generally is described in case law as “invidiously discriminatory animus.” c. An overt act d. That injures a person or deprives that person of having and exercising a right 2. Remedy: Damages only, no equitable relief. 3. CLASS: The injured person may not have to be the same as the persons or class of persons whose rights the conspirators have the purpose of hindering. 4. Who is a Proper Party? a. State actors b. Textual references to going in disguise and hampering public authorities which suggest that people not acting under color of law could be included. c. There may be an intersection w/ § 1982. 5. Cases: a. Collins v. Hardyman (1951) 1) Facts: ∏s were members of a political club and alleged that the ∆s conspired to deprive them of their rights as citizens to peaceably assemble. ∆s did not conspire to interfere w/ any other political groups. ∏s files suit under 2) Issue: What is the scope and constitutionality of § 1985(3)? 3) Held: § 1985(3) requires the participation of state officials or acts under color of state law. 4) Reasoning: A) There could be a possible exception to the rule for large conspiracies that have widespread affect (perhaps that state officials condone). B) There is some confusion as to how private discrimination could be the same as inequality before the law. C) There are some concerns about congressional power to reach private conspiracies – affects the statutory interpretation. b. US v. Harris (1882) & US v. Williams (1961), & US v. Guest (1966) 1) All these cases involved criminal statutes similar to § 1985(3) 2) They all construed the statutory language to reach private actors, not merely state actors. c. Griffin v. Breckenridge (1971) 1) Facts: ∆s, acting under a mistaken belief that ∏ was a worker for civil rights, conspired and blocked the passage of ∏ in an auto on the public hwy, stopped and detained them, and beat and injured them. ∆s were private actors. ∏s filed suit under § 1985(3). 2) Issue: What is the scope of § 1985(3)? 3) Held: To satisfy a § 1985(3) clm, the ∏ must allege that the ∆ did: A) Conspired to go in disguise on the hwy or the premises of another; B) For the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the law; AND C) Did, or caused to be done, any act in furtherance of the object of the conspiracy, whereby another was: i. Injured in his person or property; OR § 1985(3). ii. Deprived of having and exercising any right or privilege of a citizen of the US. 4) Reasoning: A) State action issue: § 1985(3) reaches private conduct B) Requires a discriminator animus or perhaps some other clad based discrimination. C) The statute is constitutional under both the 13th Amend + the right to travel. d. Carpenters & Joiners v. Scott (1983) 1) Facts: Nonunion workers claimed that they had been injured by a conspiracy to deprive them of their 1 st Amend rights in violation of § 1985(3). 2) Issue: Is a 1st Amend violation a violation actionable under § 1985(3)? 3) Held: An alleged conspiracy to infringe 1 st Amend rights is not a violation of § 1985(3) unless it is proved that the state is involved in the conspiracy or that the aim of the conspiracy is to influence the activity of the state. 4) Reasoning: A) 1st Amend rights are only against gov’ts. B) This holding applies to any right that applies to the state via incorporation (14th Amend). C) Economic and commercial animus is not w/in the scope of the statute. It is not the kind of equal protection the statute is talking about. e. Bray v. Alexandria Women’s Health Clinic (1993) 1) Facts: Involved a clm of conspiracy to prevent women f/ seeking abortions by demonstrating in front of abortion clinics. The ∏s filed suit under § 1985(3) alleging clad based animus against women. 2) Issue: Was this act indicative of clad based animus against women? 3) Held: Conspiracy to prevent abortions is not clad based animus b/c it is not gender based. A) The goal of preventing abortion is not itself reflective of animus. B) The right to abortion is only guaranteed against state action, so the action is not w/in the scope of § 1985(3) when private parties do it. C) The right to travel doesn’t work here b/c the purpose of the conspiracy was not to violate the right to travel. f. Great American Federal Savings v. Novotny (1979) 1) Facts: This clm involved a fired employee who argued that the board of directors fired him b/c he argued a contradictory position. He brought a Title VII clm and § 1985(3) clm. 2) Issue: Whether the rights created by Title VII may be asserted w/in the remedial framework of § 1985(3)? 3) Held: You cannot § 1985(3) may not be invoked to redress violations of Title VII. 4) Reasoning: A) § 1985(3) creates NO rights. It is a purely remedial statute providing a fed cause of action when some otherwise defined fed right – to equal protection of the laws or privileges – is breached by a conspiracy in a manner defined by the section. The rights are those given by the Const. (Thus, § 1985(3) creates no rights, only a cause of action remedy. It is like § 1983. B) It would undermine Title VII to provide for a separate remedy. C) PROBLEM – If § 1985(3) is only a cause of action, what is it a cause of action for? We still need a source of rights. i. This is an ongoing problem for § 1985(3). ii. If the 13th Amend, then it is limited to race (although perhaps the broad § 1981 def’n of race??) iii. If it is a right to travel, it might reach more than race, but not much. 6. 18 U.S.C. §§ 241, 242 a. § 241: This is similar to § 1985(3) – it reaches conspiracies. 1) It applies to private conduct, like § 1985(3). BUT, the same issue of how it applies to denials by private actors of rights enforceable only against states b/c of 14th Amend. 2) It applies to violations of “laws” s well as “rights”. b. § 242: This is similar to § 1983 – it reaches violations of rights under color of law. 1) It includes the word “willfully” which means specific intent. 2) Proof of specific intent is similar to navigating qualified immunity. XVII. Habeas Corpus A. Sequence of Events in Habeas Case: Fed habeas permits prisoners convicted in state crts to raise fed challenges to their imprisonment. It essentially allows prisoners a limited opp to re-raise const’l questions that may already have been decided against them in state crts and to collaterallty attack their conviction. The following sequence MUST occur to get to habeas: 1. A crim ∆ is convicted in state crt. 2. The ∆ appeals his conviction to the highest state crt to which an appeal may be brought. 3. The ∆ may, but need not, seek direct review in the US Sup Crt on his fed defenses to prosecution. 4. The crim ∆, but ordinarily need not, seek habeas in the state crt system. 5. Finally, the crim ∆, seeks habeas from a fed crt based on his fed defenses to the state crt prosecution. The application for habeas is almost always to a fed dist crt although the governing statute also permits an application directly to the Sup Crt, to an ind Justice of the Crt, or to a circuit judge. B. Const’l & Statutory Basis: 1. Const’l Basis: Art 1, § 9, provides “The privilege of the writ of habeas shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” 2. Statutory Basis: a. General Power: “Writs of habeas may be granted by the Sup Crt, any justice thereof, the dist crts and any circ judge w/in their respective juris.” 28 USC 2241(a). b. Grounds: For a state prisoner, the writ may issue “only on the ground that he is in custody in violation of the Const or law or treaties of the US.” 28 USC 2254(a). 3. Collateral rather than direct review: Habeas is a collateral attack on a state crt conviction. It comes after, and is distinct f/ direct appellate review. C. The Habeas Remedy 1. Relitigation & its Limits: A new rule of crim procedure cannot be applied or announced on habeas unless it falls w/in two very narrow exceptions. a. What is a new rule? Under Teague v. Lane, it is: 1) It breaks new ground or imposes a new obligation on the States or the Fed Gov’t. 2) The result was not dictated by a precedent existing at the time the ∆’s conviction became final. 3) The outcome of the case announcing the rule was susceptible to debate among reasonable limits. 4) The rule is the most reasonable interpretation of prior law. The rule is old only if no other interpretation was reasonable. b. Cannot be applied or announced 1) Applied: If the Sup Crt announces a new rule in another case after the prisoner’s conviction has become final on direct review, that rule cannot be applied on habeas. A) Rationale: The trial crt cannot be expected to comply w/ a rule of crim pro that doesn’t exist at the time of trial. 2) Announced: The inability to announce a new rule on habeas limits the Sup Crt’s ability to formulate and announce new rules of crim pro. Basically, the Crt can announce new rules only in cases on direct review. 2. Anti-Terrorism & Effective Death Penalty Act (AEDPA). a. Relief?: Relief will not be granted in these cases unless the state crt decision was contrary to or involved an unreasonable application of clearly established Fed Law, as determined by the Sup Crt of the US OR unless the decision was based on an unreasonable determination of the facts given the evidence presented. b. Terry Williams v. Taylor (2000) 1) Facts: Williams admitted that he had killed vic. He was convicted of robbery and capital murder. Williams confessed to several other violent crimes. He was sentenced to death. On appeal he argued ineffective counsel on appeal, which was denied. He sought habeas. 2) Is Habeas available? 3) Held: Viewed as a whole, there was a “reasonable probability that the result of the sentencing proceeding would have been different” if competent counsel had presented and explained the significant of all the available evidence. Thus, the State Sup Crt rendered a decision that was contrary to or involved an unreasonable application of clearly established law. 4) Reasoning: A) The test is whether a decision was contrary to or involved an unreasonable application of clearly established law. B) This limitation has the effect of insulation many erroneous but not unreasonably erroneous decisions of state judges on const’l issues. c. Defaulted Claims: It is not possible for a prisoner to raise const’l clms on habeas if he has not properly preserved them in his state crim proceedings. This is procedural default and applies to AEDPA in non-death penalty cases. Must show cause and prejudice to get around it. Discussed in more detail below. D. Presentation of Federal Defenses to State Court – To get around Procedural Default 1. Intro: A state prisoner seeking fed habeas must have presented his fed defenses to the state crt for resolution. The req’t has two aspects: (i) procedural default in state crt, and (ii) exhaustion of state judicial remedies. 2. Procedural Default in State Crt: If a state crim ∆ fails to present a fed defense to the state crt b/c of a procedural default in that crt, he will be precluded f/ asserting that defense on habeas. Examples include a failure to bring a timely challenge to the racial composition of a grand jury, failure to make a contemporaneous objection to the introduction of evidence, or failure to take a timely appeal of a state crt conviction. 3. Distinction between Direct appellate review and collateral habeas relief a. Strict Std for Direct Review: The std for relief f/ state procedural default is very strict on direct review. The Sup Crt will not address a fed def when a procedural default prevents the ∆ f/ raising the issue in state crt, unless the state procedural rule is so harsh as to deprive the ∆ of a reasonable opp to have the issue determined by state crt. b. Diff & Changing Stds: The Sup Crt has applied different stds over the yrs. It is constantly changing. 4. Deliberate Bypass Std – Fay v. Noia: Held, a fed habeas crt could address the merits of a habeas petition unless the ∆ had deliberately bypassed an opp to have the state crts determine the fed clm. This case found that the failure to appeal a conviction at the risk of being retired and given the death penalty was nont a deliberate bypass. 5. Cause & Prejudice Std – Wainwright v. Skyes: The sup Crt overruled Faye. The crim ∆ failed to object to a confession. On the facts, this may have been a deliberate bypass, but the crts imposed a more strict cause and prejudice std. a. CAUSE: Cause exists if some objective factor external to the defense impeded counsel’s efforts to comply w/ the State’s procedural rules. There is NO cause where counsel failed to raise error at trial when the prosecution refused to allow counsel to examine witness stmts prior to trial. 1) Ineffective Counsel: This constitutes cause for failure to raise the issue at trial. It is unrealistic to expect an ineffective counsel to raise the issue of his own ineffectiveness while he is representing the ∆. This is a 6th Amend clm. 2) Cause not Necessary where the ∆ is innocent: In an extraordinary case, where an asserted const’l violation has resulted in the conviction of someone who is actually innocent, a fed habeas crt may grant the writ even in the absence of a procedural default. A) If the prisoner can show that absent the const’l violation, it is more likely than not that no reasonable juror would have convicted him, a writ may be granted. 3) No cause for failure to anticipate change in law: A failure to anticipate a change in the law, and a resulting failure to raise a fed clm based on the new law, IS NOT CAUSE. This would almost certainly be a new rule. 4) No cause where a gov’t official withheld exculpatory evidence. b. PREJUDICE: There are various stds 1) A prisoner must show actual and substantial disadvantage and substantial likelihood of different results. 2) Reasonable probability of different results: but for the counsel’s unprofessional errors, the result of the proceeding would have been different. This requires a showing of a miscarriage of justice. 3) Harmless Error = If you can make it through all the hurdles, you have to prove that the violation was prejudicial. If there was an error, but it was harmless, you get no relief. You are entitled to a new trial only if there was an error which was prejudicial. I.e., yes there was an error in the jury instruction, but there was no doubt due to overwhelming evidence that the ∆ convicted the crime. 6. Exhaustion of State Judicial Remedies a. Statute: §2254(b)(1) a state prisoner must have exhausted his state judicial remedies before seeking fed habeas. b. Presentation of fed clm to state crts: A fed clm must be presented to the state crt for decision. Only if the state crts have had the opp to hear the clm does it make sense to speak of the exhaustion of state remedies. 1) A state prisoner must present his fed clm to the highest available crt on direct (appellate review). A) It is unclear whether discretionary state crt review must be sought. B) If a state crim ∆ fails to present a fed clm to the state crts, including to the state appellate crts, he is precluded f/ bringing the clm on habeas. 2) Unnecessary to seek cert f/ US Sup Crt. c. Must present same fed clm. d. Mixed petition: State remedies must have been exhausted for ALL the fed clms in the habeas petition. If a petition contains several fed clms, some of which have been previously presented to the state crts and some of which have not, the fed crt must dismiss the entire petition for failure to exhaust. e. Exhaustion not req’d for civil rights clms: Fed civ rights clms may be brought w/out first exhausting state admin or judicial remedies. One must distinguish carefully between a habeas petition and a civil rights complaint (§ 1983). E. Intersection of Habeas & § 1983 1. Habeas vs. § 1983 a. Duration of Confinement: When a prisoner challenges the fact, or duration of, his confinement, he must proceed w/ a habeas action, and not a suit under § 1983. b. Conditions of Confinement: When a ∏ challenges the condition of his confinement, such as the lack of medical care or a beating by a guard, a suit under § 1983 is the normal route. c. Preiser v. Rodriguez (1973) 1) Facts: A prisoner brought suit for injunctive relief under § 1983 seeking to have certain “good time” credits on his sentence restored to him that he had earned for good behavior in prison. He claimed that the circumstances of their revocation by officials amounted to a deprivation of liberty or prop w/out DP of law. 2) Held: When a state prisoner is challenging the very fact or duration of his physical confinement, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release f/ that imprisonment, his sole fed remedy is habeas. 3) Reasoning: A) Accordingly, the prisoner is obliged to first exhaust his state remedies available to him as a precondition to seeking fed habeas to have his good time credits restored. B) By requiring exhaustion in the state crts, the ∏ is giving the states the opp to remedy their own mistakes. C) Promotes parity and “proper respect for state functions.” D) Distinction: When a prisoner who has been deprived of good time credits seeks to have them restored, the appropriate remedy is habeas. Where a prisoner seeks damages, the appropriate remedy is a § 1983 complaint. 2. Challenges to Prison Conditions a. Nelson v. Campbell (2004): The Crt treated a challenge to an allegedly unnecessary medical procedure antecedent to lethal injection as a challenge to conditions of confinement actionable under § 1983; but it left open the question of the proper characterization of a possible const’l challenge to lethal injections itself. So long as the injunctive relief doesn’t affect the duration of the prisoner’s sentence, or seek to undo the conviction itself, § 1983 is the appropriate veh. F. Undermining the Integrity of Underlying Convictions: The Sup crt has ruled that an action under § 1983 will be unavailable even if the prisoner seeks relief unavailable under habeas, if the action would necessarily implicate the integrity of the jdgmt that sent the party to jail in the first place. 1. Heck v. Humphrey (1994) a. Facts: Heck was a prisoner who sought dam for the loss of const’l rights assoc’d w/ his crim prosecution. After being convicted, he filed a § 1983 suit in which he alleged that state officials had engaged in unlawful acts including destruction of evidence that led to his conviction. He was seeking dam, a relief unavailable in habeas. b. Held: The clm could not be brought as a § 1983 action unless the underlying jdgmt was first voided in the state crts, expunged by executive order, or successfully drawn into question in a fed habeas action. The test is whether a jdgmt in favor of the ∏ “would necessarily imply the invalidity of his conviction or sentence.” If it would, the complaint must be dismissed unless the ∏ can demonstrate that the conviction or sentence has already been invalidated. c. Reasoning: 1) At CL, malicious prosecution suits could not go forward until there had been a favorable result for the prosecuted part. 2) Since the § 1983 would imply the invalidity of his conviction, it would implicate the duration of confinement. This was similar to a malicious prosecution action. 2. Habeas is not available unless the prisoner is in custody. 3. Heck vs. Preclusion a. Allen v. McCurry (1980) 1) Facts: A state prisoner sought to have the issue of an unconst’l search relitigated in a § 1983 dam action after he had already litigated and lost on the issue in state crt. 2) Held: The prisoner would be precluded under the full faith and credit statute f/ relitigating the issue. 3) Reasoning: A) He had a full and fair opportunity to litigate the clm by the first crt. B) Collateral estoppel applies when § 1983 ∏s attempt to relitigate in fed crt issues decided against them in state crt proceedings. G. Timing & Petitions 1. Sequence post Filing: a. First File Petition b. A prisoner who wishes to appeal f/ the denial of a first habeas petition must secure a cert of appealability. (coa). This requires “a substantial showing of a denial of a const’l right.” This std is met if reasonable jurists could debate whether the petition should have been resolved differently. c. If you bring the same clm, it will be dismissed. If you bring a new clm that wasn’t raised in the 1st petition, it will be dismissed UNLESS, there is a new rule where there is a new law that would apply retroactively OR new evidence that you could not have acquired w/ due diligence. 2. Abstention: It is a part of fed crt juris. The idea is that sometimes fed crts should abstain f/ hearing cases even if they have juris in deference to the state crt processes. Younger v. Harris is the most famous abstention case. The fed crt cannot issue an injunction to halt state crt proceedings. The clm that the petitioner made was that there was unconst’l acts occurring in the state crt processes, what counts is that you get the chance to raise this issue in state crt. “Our federalism”  It is something special that we need to safeguard. Maintain the integrity of state crt proceedings. Even if you sue in fed crt and then the state crt crim proceedings begin, chances are that the fed crt cannot enjoin the state crt proceedings. H. Executive Detention 1. Joint Resolution Authorizing the Use of Military Force: In response to 9-11, Congress passed a joint resolution authorizing the Pres the use of military force. In Afghan, several enemy combatants were captured and their detention was the topic of many cases. 2. Hamdi v. Rumsefeld a. Facts: Hamdi was detained as an enemy combatant and held in VA and was held for an indefinite period. He brought a habeas petition. b. Does the pres have this auth? c. Held: To satisfy the min requirements for a hearing, the citizen detainee must receive notice of the factual basis for his classification and a fair opp to rebut the gov’ts factual assertions before a neutral decision-maker. Evidentiary stds may be relaxed so that the gov’t may use hearsay to support the classification. There may be a rebuttable presumption in favor of the gov’ts evidence. 3. General state of law: Entitled to notice and a reasonable opportunity to be heard @ a reasonable time period following detention. 4. Rumsfeld v. Padilla a. Held: The proper respondent in a habeas petition was the Commander of the military prison in which Padilla was being held – the equivalent of the warden at the military brig. 5. Rasul v. Bush: § 2241 confers on the Dist Crt juris to hear petitioner’s habeas challenges to the legality of their detention at the Guantanamo Bay Naval Base (US has juris there). 6. Hamdan v. Rumsfeld: The military commission convened to try Hamdan lacks power to proceed b/c its structure & procedures violate both the UCMJ and the Geneva Conventions. Further, the offense of conspiracy is not an offense that by the law of war may be tried by military commissions. XVIII. Structural Reform Litigation A. School Desegregation 1. Brown v. Board (I)(1954): Separate but equal violated the equal protection cl. 2. Brown (II)(1955) a. Remedy specific: Each case arose under specific local conditions and remedies in each case would turn on local issues and problems. b. The case was remanded to the trial crt w/ request to craft remedies guided by principles of equity jurisprudence, which meant that the clmt of the ∏s would have to be balanced against local conditions and obstacles. c. Admission to public schools should occur “with all deliberate speed.” d. The right at issue: 1) This is a right to be something more than just classification – it is a right for actual admission to schools on a non-discriminatory basis. 2) “Non-discriminatory” could require wholesale changes in the school district and school facilities. 3) “Deliberate speed” is somewhat of an oxymoron. Shouldn’t the remedy by NOW? 4) The remedy is more of a group remedy. 3. POST BROWN: Southern states engaged in massive resistance to Brown. This included steps to close down the public schools entirely in some communities, violence, and delay. Children remained in segregated schools. There were increased numbers of all white private schools. The persistence of all white private schools and their insulation f/ the 14 th Amend leads to Runyon under § 1981. 4. Watson v. Memphis (1963): “All deliberate speed” cannot mean “indefinite delay.” 5. Civil Rights Act of 1964: No racial discrimination by schools that want fed funds. 6. Green v. County School Board (1968): No more “deliberate speed.” End segregation NOW! 7. Swann v. Charlotte-Mecklenburg (1971) a. Facts: Dist crt redrew school districts and req’d busing between schools, which resulted in substantial integration. Sup Crt. upheld the remedy. b. Held: 1) Segregation is the violation that must be remedied. 2) Under equitable principles, the power to craft a remedy is broad, and the nature of the violation determines the nature of the remedy. 3) If there is a hx of segregation, then a presumption against schools w/ disproportionate racial composition. Schools have the burden of proof to show why their schools are disproportionate. 4) It is ok to use mathematical rations as a guide to racial balance in schools, although the Const doesn’t req any particular degree of balance. 5) Ok to divide unfairly the school zones into weird shapes and prevent attendance at closest school in order to achieve balance. 6) Although broad, equitable powers have some limits in scope and in time. 7) The remedy focuses less on equality of education and more on racial bnalance. 8. Keyes (1973) a. Facts: Denver schools had been segregated by the use of gerrymandered districts instead of explicit racial classifications. b. Held: Reaffirmed Swann. c. Reasoning: 1) Dejure Segregation: Segregation imposed by legal classifications 2) Defacto Segregation: More subtle segregation existing for reasons such as where one decides to live. 3) The segregation is distinguished by above b/c it is caused by a growing mobile society. 9. Oklahoma City Board of Edu v. Dowell (1991) a. Facts: In 1972, the Finger Plan was created in which kindergartners attended schools in their neighborhood schools while grades 1-4 all go to formerly all-white schools (black children bused); grade 5 in formerly all black schools (white children bused); upper grades would be bused around; stand alone schools in integrated neighborhoods. In 77, the crt finds a system to be “unitary: and terminates juris (bit doesn’t dissolve the injunction). The Finger Plan in place until 85, when Board adopts a new student Reassignment Plan. The ∏s seek to reopen the case based on the new plan. b. Held: 1) Unitary is a slippery term – for some it means complete compliance w/ Brown, while for others it means that the school is currently desegregated but may still retain “vestiges of past discrimination.” 2) Crt of Appeals applied the wrong std for lifting or modifying a desegregation decree. It doesn’t require an extreme hardship; instead, modification is allowed if the dist is complying w/ Equal Protection Cl AND it is unlikely to return to its former ways. 3) Stresses that remedies are meant to be temporary, transitional and must relate to the const’l violations. A) Federalism idea here – return districts to local control. 4) Remands to dist crt to decide whether there was sufficient showing of compliance as of 85: was there good faith, AND were vestiges of de jure segregation eliminated as far as practicable in every facet of school operations? 5) Remand also allows challenge to Student Reassignment Plan (SRP). It was ok to term the Finger Plan, did the decision to implement SRP comply with equal protection? 10. Freeman v. Pitt (1992) – HO a. Three Part Test to determine whether to remove decree: 1) Has there been full and satisfactory compliance in areas in which supervision would be withdrawn? 2) Is retention of judicial control necessary or practicable to achieve compliance? 3) Has the dist demonstrated goof faith commitment to the decree? 11. Milliken I (1974): Held that fed crts cannot impose interdistrict remedies unless the violation is explicitly interdistrict in nature. In other words, crts cannot redraw lines between districts or order busing between districts or take other similar actions simply b/c that might be effective. The remedy must be linked to the specific district in which disparate treatment occurred. 12. Missouri v. Jenkins (1990): Held, crts cannot increase taxes directly to pay for desegregation compliance, but they can order local authorities to increase taxes. 13. Missouri v. Jenkins II (1995) a. Interdistrict incentives go too far b/c no interdistrict violation b. Remedies cannot be imposed for the purpose of making school sbetter – remedies are there to eliminate vestiges of de jure segregation. c. Not all segregation or gaps in achievement are vestiges 1) The Const. is about equal opp not equal results. 2) Bad results are not a violation. d. There is a focus on returning schools to local control (federalism). e. Overall std (p. 772) appears to be whether remedial steps are proper means to the end of restoring the victims of discriminatory conduct to the position they would have occupied. e. Thomas concurrence: Racial imbalance is not unconst’l; nor is psychological or stigmatic injury a violation of the Const. 14. Enforcement: The basic context here is that fed crts are imposing intrusive and expensive remedies on communities that often are less than thrilled about those remedies, b/c they may be hostile to integration or hostile to aspects of the relief. What can a crt do when a community or political entity resists? a. Nothing at all; b. Issue orders requiring compliance; c. Rely on executive officials – police or Nat’l Guard d. Judicial enforcement of crt orders. Our topic is judicial enforcement. 15. Jenkins (II) (1990): Crt cannot raise taxes directly. A crt can order the local gov’t to raise taxes, even if it violates local law (Supremacy Cl.). 16. Spallone (1990): a. Held: A crt can hold a city in contempt for failing to implement a desegregation plan. This includes escalating a fine that starts at $100/day and doubles until it reaches $1mm/day. b. A crt may be able to hold local legislators in contempt as well, but this should be a last resort. It is an abuse of the crt’s discretion to do so when it is possible that holding the city in contempt might work. c. Themes in Spallone: 1) The idea of local control and slight immunity for legislators. 2) When using contempt, least possible sanction. 3) The goal of civil contempt is not to punish, but to COMPEL 4) The focus is on who the parties are to litigation. d. What is the goal? 1) COMPLIANCE B. Standing 1. In order to sue, you must have standing. The prerequisites to standing are: a. The ∏ must allege that she has suffered an injury in fact or is immediately threatened w/ such an injury. 1) The injury must be distinct and palpable” b. The ∏ must be able to alleges that the injury is fairly traceable to the ∆’s violation of some legal norm. 1) citizen’s generalized interest in seeing the gov’t act lawfully- an interest that all citizens might share- will ordinarily not be enough to satisfy the injury req’t, at least in the absence of the ∏’s being able to allege particularized injury to herself. 2) This means that the ∏ must show that his injury was caused by the ∆’s actions. c. The ∏ must be able to show that the harm she has alleged will be redressable by the relief that she has sought. 1) ∏s must be able to allege that the relief will benefit them. In the injunctive context, this means that changing the ∆’s behavior in the manner requested will remedy the injury that the ∏ has suffered or is threatened with. 2) Allen v. Wright: The crt held that Black parents of school children lacked standing to challenge the legality of tax exemptions for racially discriminatory private schools, b/c, although the ∏s may have suffered injury in fact, they could not show that, if the exemption were lifted, their children would be able to attend desegregated schools. 2. Justiciability Concerns: a. Claims for injunctive relief: Where ∏s are making clms for injunctive relief, they must show: 1) a present case or controversy regarding injunctive relief; OR continuing adverse effects f/ the past illegal conduct. ALTERNATIVELY; 2) ∏s might show a genuine threat of future injury, but to do so, they would have to establish that they would violate the law again, be arrested again, and be subject to the same illegal behavior again. b. Los Angeles v. Lyons (1983) 1) A § 1983 suit to enjoin the future use of an allegedly unconst’l choke hold by the LAPD was brought by an ind who had been the vic of the choke hold in the past. Although the ∏ had standing to bring the § 1983 suit, the Crt concluded that he could not sue for injunctive relief. The choke holds had resulted in the deaths of 16 people, most of whom were Black males, like the ∏. Nevertheless, the Crt held that the ∏ had not shown w/ sufficient certainty that he would have another encounter w/ the police. Even if he could make such a showing, he could not establish that the chold hold would then be applied TO HIM. 2) To obtain injunctive relief, the ∏ would have to show that ALL police, ALWAYS used the choke hold in citizen encounters OR that the city ordained or authorized them to act in such a manner. c. It is much easier to make a prospective challenge to the enforcement of an unconst’l law or policy when the gov’t and the regulated party are in an ongoing relationship, such that the threat of enforcement against the party is virtually assured. d. If damages are a sufficient deterrent, than injunctions are superfluous (J. White in Lyons). C. Rights & Remedies in Prisoner Litigation 1. Const’l Auth: The Sup Crt has held that the DP cl of the 24th Amend incorporates the protections of the 8th Amend and makes them applicable to the states. 2. 8th Amend: Prohibits cruel & unusual conditions of confinement, as well as cruel and unusual forms of punishment. 3. Estelle v. Gamble/Failure to Provide Medical Care: The gov’t had an obligation to provide med care for those whom it is punishing by incarceration b/c a failure to provide care may actually produce physical torture or a lingering death. (Trigger an 8 th Amend clm.) a. TEST: DELIBERATE INDIFFERENCE to those needs of the prisoners is the std needed to reach for an 8th Amend clm. This is a subjective inquiry. b. The std for such 8th Amend prison-condition suits, while high, is less demanding than that for showing an 8th Amend excessive force clm. 4. Failure to Protect Cases: This is also a deliberate indifference std. It is a SUBJECTIVE inquiry asking whether the risk of harm was sufficiently serious. a. An officer will not be liable for prisoner on prisoner violence UNLESS the official disregarded a serious risk of which he was ACTUALLY AWARE. b. This requires knowledge of a risk + consciously disregarding the risk. c. It is not sufficient that an official disregarded a risk that he SHOULD have been aware of. 5. Wilson v. Seiter/Failure to Protect: All 8th Amend claims require a culpable state of mind. a. Imposing liab on a prisoner official only when the risk f harm is one of which the official was actually aware is required by the 8 th Amend’s proscription on punishment. 6. Farmer v. Brennan: A prison official cannot be found liable under the 8 th Amend for denying an inmate humane conditions of confinement unless the official KNOWS OF and DISREGARDS an excessive risk to inmate health or safety.