Flusche 1 of 7 Civil Rights Litigation – Outline I. Section 1983 A. Individual Officer Liability 1. “Under Color of” Law – even unauthorized acts count 2. Absolute Immunity – no liability – legislators, judges (when judges), pros (when being pros), cop as W 3. Qualified Immunity – test: clearly established right that reasonable person would’ve known 4. Qualified Immunity and the 4th A – two layers of deference to cops – const. violation, then “clearly estab.” B. Governmental Liability 1. State Sovereign Immunity – states immune (11th A), but state officials are not 2. Municipal Liability: Monell – muni liable if: custom or policy 3. Theories of Municipal Liability – final decisionmaker (official and/or individual capacity) 4. Failure to Train, Screen, Discipline – obvious need for train, deliberately indiff. – causal link for screening 5. Discovery and Experts – ct limits discovery for q. immunity – expensive! C. For What Wrongs? 1. Constitutional Rights – need underlying const. violation – N isn’t enough for DP 2. Non-Constitutional Rights – modern statutes provide private right of action 3. Criminal Procedure Rights – favorable termination of crim case – otherwise, can’t directly attack convict. II. Remedies A. Damages – substantive v. procedural right – actual harm – punitive damages (no “intent”), but not for muni B. Injunctive Relief – must prove likely to be in situation again C. Structural Reform Litigation – limits: justiciability, least restrictive remedy, closely related to harm D. Attorneys Fees – think “policy” – P gets fees, if win – D doesn’t E. Consent Decrees, Settlement, § 14141 – injunctive relief vs. fees – decree is modifiable III. Additional Reconstruction Legislation A. Section 1982 – property rights for all – private actors – damages B. Section 1981 – all have same rights – non-employees, independent contractors, retaliation C. Section 1985(3) – conspiracy & class-based / animus D. Criminal Similarities – § 242 (analogue to § 1983; willful deprivation) – § 241 (similar to § 1985(3)) IV. Modern Civil Rights Legislation A. Title VII of the Civil Rights Act of 1964 – employee discrimination – BFOQ – grievance procedure defense B. Title IX of the Education Amendments of 1972 – implied right of action – sex disc. tied to fed funds C. Prison Litigation Reform Act – limits structural reform: reasonably related, terminated if not necessary D. Americans with Disabilities Act – focus on corrected state of person – substantially limit major life activity Flusche 2 of 7 I. Section 1983 A. Individual Officer Liability 1. “Under Color of” Law a. Who, or what, is the state? – real people, not municipalities b. Even unauthorized acts count – must be colorable argument that they’re being state actors i. Except: public defender – hired by state, but job is to challenge state actor (pros.) ii. Statute doesn’t require authorization (a) Plain language – if meant authorized, they would’ve left out “color of” (b) “under color of” = pretense of lawful authority (c) CL – as long as acting under pretense of state authority iii. Policy (a) Respondeat superior – CL holds employer liable (b) Worried about potential jurors (c) Frankfurter – wants fed ct open to these claims – redress of systemic acts c. (Monroe v. Pape, p. 26 – police searched M’s house, held him for 10 hrs – M can recover) d. Argument – not “under color of” law i. Cops went out on their own  but they’re acting as Officers ii. They were doing police-like stuff, but they weren’t policemen at the time iii. Actions weren’t authorized iv. Officers violated lots of state laws v. M has remedy in state court vi. Policy – don’t want every search in fed ct – state ct judges most qualified for local policing 2. Absolute Immunity a. No liability under § 1983 when people have absolute immunity b. Legislators have absolute immunity, not executives i. (Bogan, p. 50 – mayor immune – proposed & signed bill for budget cut – applies to all future ppl) ii. Why legislators? – other avenues to remedy abuses – Executive will enforce law, can sue him iii. Not exec – unjust law doesn’t hurt, until enforced – individual discretion – just do his duty iv. Locals – difficult & expensive to defend – might be hard to get officials – easier to hold responsible c. Judge immune, if being “judicial,” unless clear absence of all jurisdiction i. (Stump, p. 58 – judge immune from tubal ligation decision) ii. Why? – redress through appeal – don’t want distractions – free from personal consequences iii. Functional argument – normally done by judge, acting w/in traditional role iv. Judge could be: legislative – issuing Rules; executive – discriminatorily firing employee d. Prosecutor – immune, if acting like a pros. – no immunity, if like a cop i. Could be honest & still do something wrong ii. Don’t want every move & decision open to investigation & lawsuit iii. Judge might be hesitant to overturn conviction, for fear that pros. would be held liable iv. Pros. is lawyer – other means for redress – ethical rules v. BUT, if giving investigative advice or counseling about probable cause, etc – NO immunity e. Cop, acting as W – immune (Brisco) – testifying during trial is judicial – can be prosecuted for perjury 3. Qualified Immunity a. Cop immune, if acting in good faith w/ probable cause – state of mind at time of action (Pierson, p. 95) b. School board not immune, if: should’ve known violating const. rights OR acted w/ malicious intent i. (Wood, p. 95 – kids expelled after spiking punch – dissent: pushes subjective test) c. Test – can’t violate clearly established rights that reasonable person would’ve known (Harlow, p. 97) i. Throws off subjective test – needs discovery, can’t decide at summary judgment ii. Focus on what person did, not what he was thinking d. Question for summary judgment, on paper i. Promote accuracy & consistency – easy to apply across the board ii. Create body of law we can rely on in future Flusche 3 of 7 iii. Retroactivity principle – not fair to hold liable now, but future actors on the hook iv. Incentive effect – state or city will bear liability – should pay lawyers to understand & educate ppl v. Litigation is burden on officials e. Clearly established right, in a particular sense i. (Anderson, p. 99 – man hunt cops search house w/o warrant or prob. cause – SC remands) ii. Look closely at case law f. Decide as quickly as possible – lessen burden on govt. officials (Hunter, p. 101) g. (Wilson, p. 102 – media ride-along, came into house – immunity – guidelines contemplated this, cops followed their program) i. Dissent (Stevens) – cops are writing their own standard – subjective! – same problem as Lanier h. (Hope, s p. 18 – AL prisoners handcuffed to “hitching post” – no q. immunity – don’t need case on pt) i. 11th Cir case – handcuffing to fences is bad ii. Don’t have problems cracking down on meditated prisoner abuse iii. Const. violation is “obvious” 4. Qualified Immunity and the Fourth Amendment a. Immune in shooting suspect, if generalized fear that would harm ppl while fleeing i. (Brosseau, s p. 13 – reasonable to shoot suspect – cop tried to stop him – fearful for safety of others) ii. (Waterman, supp 1 – W had 4 cops beside – 2 rounds of shots – 2nd shots not ok, but cops immune) b. Gives two layers of deference to cops – 4th A + qualified immunity c. Only real dispute on SC: whether to change order of tests – const. violation, then “clearly established” d. Private prison guards – no q. immunity (Wyatt, p. 130) B. Governmental Liability 1. State Sovereign Immunity a. States have sovereign immunity under 11th A i. (Hans, p. 3 – H wanted unpaid interest on LA state bonds) b. But state officials don’t have sovereign immunity, in individual capacity – can enjoin officials i. (Young, p. 7 – MN fixed railroad rates, state interfering w/ contract – can sue state AG) ii. Cf, Hans – prospective relief, not asking for money out of state treasury c. Mere participation in fed program doesn’t waive sovereign immunity – must be clear stmt of waiver i. (Edelman, p. 12 – Ps seeking future & back benefits – $ from treasury – no waiver in fed statute) d. Can sue state official in individual capacity i. (Hafer, p. 45 – PA Auditor, individually, has no q. immunity – firing people, under color of law) e. “Reasonable official” – what reasonable official would do, given contours of clearly established law – reasonableness standard of case law 2. Municipal Liability: Monell a. Muni only liable if: custom OR policy i. Policy – anything written down; ordinances, regulations, handbook, training materials, instructions ii. Custom – something supervisors know is happening OR allow to persist b. (Monell, p. 134 – women forced into unpaid pregnancy leave) i. Sherman Amend. would’ve held muni liable – but rejected from § 1983’s precursor (a) Difference btw positive obligation v. liability for violating the law (b) Commandeering concern – fed govt. ordering local officials to keep peace ii. Drafter of § 1983 thought of Barron v. Baltimore when referring to “persons” – referring to cities 3. Theories of Municipal Liability a. Why bring in muni? – jury might feel sorry for individual (indemnity not in trial) – city has no q. immunity – jury might think individual just following orders b. Rule – act of final decisionmaker is binding on muni c. Not always clear who the “decider” was – who is final policymaker? i. State law – what does it say about who is in charge of this decision? ii. Practice – someone else may actually do the deciding iii. Delegation – can be used Flusche 4 of 7 d. Can sue in official capacity – final policymaker represents muni e. Can sue in individual capacity, if they’re harming you individually f. (Pembaur, p. 175 – pros. told cops to “go in & get them” – cops arrest wrong ppl – pros. was decider) g. (Praprotnik, p. 178 – P fired – DC said Dept head was policymaker – SC reversed, Civil Services Commission is final policymaker – reviews hiring/firing, decisions are final) h. Is sheriff state or county actor? (according to AL, state – McMillian, p. 195) i. Local pros. – state actor when prosecuting crime – local actor when doing admin functions 4. Failure to Train, Screen, Discipline a. Train – need for training must be obvious, but muni deliberately indifferent – on notice of problem i. (Canton, p. 196 – P needed psych attention, cops not trained – claims not rejected – need causal link) ii. Swallows up custom claims – don’t need widespread pattern, just notice of problem w/o training iii. Tightens causation standard – training must be closely related to the injury iv. Don’t need notice of the law, just of the activity that requires training b. Screen – need causal link btw background & current harm i. (County of Bryan, p. 205 – excessive force, deputy w/ misdemeanors – no link or chain of conduct) ii. Must show deliberate indifference of supervisor – some sort-of recklessness 5. Discovery and Experts a. Courts sharply limit discovery to q. immunity issue of “clearly established” b. (Espell, s p. 22 – judge decides order of depositions – discovery bifurcated, w/ “clearly established” 1 st) c. Expert can testify about police practices & tactics, what custom is elsewhere i. (Zuchel, s p. 34 – expert testimony in case where P shot by cop) d. Monell cases are expensive (time and money) – few firms can spare the cash it takes C. For What Wrongs? 1. Constitutional Rights a. To have Monell liability, must be underlying constitutional violation b. Defamation claim, even one that prevents future employment, isn’t § 1983 claim (Siegert, p. 235) c. Negligence isn’t enough for DP violation – must at least be reckless i. (Daniels, p. 243 – prisoner tripped over pillow) ii. (Lewis, p. 247 – kid fell off cycle, ran over by cruiser – no 4th A violation – N not enough for DP) d. (Chavez, cs p. 39 – C confessed while in extreme pain at hospital – no 5th A violation) e. State has no duty, per se, to intervene in private violence i. (DeShaney, p. 236 – “poor Joshua” – mother claimed “inaction” of state – no relief, J not in custody) 2. Non-Constitutional Rights a. Modern civil rights statutes – clear that you can sue under them – no reason to bring suit under § 1983 b. Can sue under federal law that provides entitlement c. (Thiboutot, p. 270 – P suing over social security for children – “and laws” in § 1983 includes fed laws) d. Environmental statutes provide for citizen suits (National Sea Clammers, p. 285) e. Congress can displace § 1983 by creating alternate scheme of remediation (Gonzaga v. Doe) 3. Criminal Procedure Rights a. If criminal prosecution pending, can’t enjoin it by filing civil rights action (Younger, p. 419) b. But if seeking damages, can go ahead w/ civil rights claim (Deakins, p. 434) c. To bring civil rights claim, P must have favorable termination of criminal case (Heck, p. 420) i. Policy: (a) Habeas corpus = trying to get out of prison (enjoining confinement) – Preiser (b) Immunity – pros immune for pros work during trial (c) Claim isn’t actually ripe until ultimate result in criminal proceedings (d) Malicious prosecution – must be malicious w/ respect to lack of probable cause ii. How to apply: (a) Don’t want conviction directly attacked – ex: resisting arrest (b) But unreasonable search might be ok – even if search was bad, you might still be convicted Flusche 5 of 7 d. Typical issue preclusion rules – don’t provide P automatic win in civil suit, since cops weren’t parties in criminal case against P (then D) (Allen, p. 438) e. In context: i. Officials can always claim, even if rights violated, harmless error ii. Hard to win wrongful conviction case iii. DNA case – easier, since you can argue science II. Remedies A. Damages 1. Difficult to determine for many cases: wrongful imprisonment, excessive force, etc 2. Substantive right (1st A) might be valued greater than procedural right (Stachura, p. 296) 3. Violation of right alone (without actual harm) – might get only nominal damages 4. Can still get attorneys’ fees, even if you only get nominal damages 5. Standard for punitive damages = gross N, recklessness, malice (Smith, p. 305) – don’t require “intent” 6. Don’t allow punitive damages for muni (City of Newport, p. 321) a. Punishes taxpayer, not wrongdoer b. Windfall for the victim c. § 1983 is about “redress,” compensation d. Don’t want jury considering muni’s wealth in calculations B. Injunctive Relief 1. Must prove P likely in the situation again (Lyons, p. 876 – chokehold – don’t assume lawbreaker; policy) 2. Class action – no difference, for standing issue – still must have class rep who is likely to be in situation C. Structural Reform Litigation 1. Unlike regular litigation: multiple parties, govt. involved, different judging model 2. Limits: justiciability (standing, etc), least restrictive remedy possible, consent decree 3. How to design remedy (Dowell, p. 751) a. Limited in time b. Tightly linked to de jure discrimination c. No additional remedies for de factor problems d. Focus on systemic problems D. Attorneys Fees 1. Policy behind allowing fees: a. Get meritorious civil rights cases filed b. Encourage “private attorneys general” c. Some violations are valuable rights, but very little $ value d. Relief may be injunctive / declaratory e. Encourage cases that might not win f. Provide fees for all the other cases that lost 2. Ps entitled to get attorneys’ fees, if they win (City of Riverside, p. 335) 3. D can’t get fees, unless case is frivolous – Rule 11 4. If turn down offer to settle, can’t get costs later on – Rule 68 – for civil rights can’t get fees! E. Consent Decrees, Settlement, § 14141 1. Consent decree = settlement + injunction – contract, supervised by ct 2. Tradeoff btw getting injunctive relief vs. attorneys’ fees: a. L has no obligation to get attorneys’ fees in settlement (Evans, p. 373) b. Now, civil rights Ls bring personal injury type cases w/ damages c. Injunction-only cases usually brought by non-profits, who don’t need fees 3. Decree is modifiable: change in law, not significant departure from decree (Rufo, s p. 89 – prison cells) 4. § 14141 – any pattern or practice depriving individuals of const. rights through excessive force, etc 5. Community has no right to intervene in decree brought by DoJ, who represents public (L.A., s p. 126) III. Additional Reconstruction Legislation A. Section 1982 Flusche 6 of 7 1. Statute – give all citizens the same rights to hold property as white 2. Reaches private ppl, if Congress could rationally determine it was related to slavery (Jones, p. 525) 3. Damages are available 4. Title VII – federal fair housing act – applies to all types of discrimination B. Section 1981 1. Statute – everyone has same benefits as white citizens 2. Private school, open to anyone who applies, is open to black students too (Runyon, p. 547) 3. Must first file complaint w/ EEOC, but can bring § 1981 case, while waiting for EEOC (Johnson, p. 562) 4. Title VII a. Private employers w/ 15+ employees b. Congress rejected repealing CRA of 1866 c. Amendments modeled on § 1981 5. Civil Rights Act of ’91 – added two new sections to § 1981 a. C – applies to private AND govt. conduct b. B – defined “make and enforce contracts” – specifically overrules Patterson 6. Can sue muni, but only w/ standard Monell tests (e.g., final policymaker) (Jett, p. 592) 7. When to use? – non-employees, independent contractors, retaliation C. Section 1985(3) 1. Statute = 2+ ppl conspiring, either directly/indirectly, depriving EP 2. § 1986 – if you know about conspiracy, but don’t prevent it, can be liable 3. Requirements: a. Regular conspiracy = 2+ ppl – deprive person of EP – overt act in furtherance – cause injury b. Class-based or animus i. (Private actors can’t violate 1st A rights – Carpenters, p. 626) ii. (Pro-life protestors didn’t have animus toward women – Bray, p. 627) 4. This is something Congress can regulate under Commerce Clause 5. Congress wanted to stamp out smaller conspiracies 6. Can’t get Title VII and § 1985(3), just Title VII – don’t get around VII damages caps (Novotny, p. 629) D. Criminal Similarities 1. 18 U.S.C. § 242 – requires willful deprivation of rights – analogue to § 1983 a. Unlawfulness under the Const. must be apparent (Lanier, p. 635) 2. 18 U.S.C. § 241 – similar to § 1985(3), but not analogue IV. Modern Civil Rights Legislation A. Title VII of the Civil Rights Act of 1964 1. Statute a. “Person” – any individual or entity – broader than § 1983 b. Employer must have 15+ employees c. Covers – race, color, religion, sex, national origin d. Defense – bona fide occupational qualification (BFOQ) e. Must exhaust w/ EEOC f. Easier to prove disparate impact 2. Pregnancy Discrimination Act – reaches discrimination based on fertility (Johnson Controls, p. 655) 3. BFOQ – quality must interfere w/ ability to do job 4. Hostile environment – not quid pro quo – not constructive discharge – still liable (Meritor, p. 670) a. Like a Monell inaction case (failure to act, train, screen) – deliberate indifference b. Did victim think this was intimidating, hostile, offensive? 5. Standard – severe & pervasive conduct – could be one really bad offense 6. Affirmative defense – reasonableness a. Employer shows that it took reasonable care to prevent harassment & had grievance procedures b. Employee must show that it took advantage of procedures, to no avail 7. No causal requirement (like failure to train, screen, etc) Flusche 7 of 7 B. Title IX of the Education Amendments of 1972 1. Statute – 20 U.S.C. § 1681 a. Only sex discrimination b. Tied to fed funding c. Exceptions: religion, beauty pageants, etc d. Doesn’t require affirmative action e. Enforcement – through fed agencies, subject to judicial review 2. Title IX has implied right of action – private parties can sue (Cannon, p. 699) 3. Employer doesn’t need grievance procedure – just can’t be deliberately indifferent (Gebser, p. 701) 4. When school gets notice of bad things, must take immediate action: a. Notice b. By someone who can take action c. Can’t be deliberately indifferent C. Prison Litigation Reform Act 1. Limit frivolous civil rights litigation 2. Attorneys’ fees – must be directly related & reasonable 3. Limits on structural reform decrees a. Reasonably related to violation b. Terminated if no longer reasonably necessary 4. But prisoner litigation has risen substantially D. Americans with Disabilities Act 1. Title I – employers – can get damages 2. Title II, III – public accommodations & public services – just get injunctive relief 3. Can always get attorneys’ fees (if you win) 4. Look at corrected state of ppl in the present 5. Disability must substantially limit major life activity (Sutton, p. 136 – correctable vision doesn’t count) 6. Reproduction = major life activity (Bragdon, p. 158 – dentist must treat person w/ HIV) 7. “Regarded” as being disabled? – ppl who aren’t actually disabled, but employer believes they are