Civil Rights Litigation Attack Outline

Right/Cause of Action

§ 1983

• Constitutional Violation

  • Due Process Type Violations & Zinermon/Parrat: Does DP claim come from a random and unauthorized departure from pre-deprivation proceedings?

    • If yes: No 1983 until state post-deprivation proceeding complete. Parratt.

    • If no: May file 1983 immediately. Monroe.

  • Private Violence: No DP 1983 claim (failure to protect/enforce order, reputation)

  • Excessive Force & Law of Police: identify scenario/amendment, then apply standard

    • 4A

      • When: Active seizure (arrest) of person

      • Standard: Objectively reasonable under the circumstances. Graham

    • 5A

      • When: Interrogation or confession

      • Standard: Malicious/sadistic to shock the conscience Chavez

    • SDP (14A states, 5A feds)

      • When: Non-seizure situations with free people; people detained without conviction (pretrial, mental ward)

      • Non-Force Standard: Deliberate indifference, or shocks the conscience if no time to deliberate. Lewis

      • Force Standard: Kingsley actually governs w/ objective reasonableness, but see Shocks conscience per Lewis

    • 8A

      • When: Post-conviction

      • Non-Force Standard: Deliberate Indifference to known risk

      • Force Standard: Malicious, sadistic, for purpose of harm

    • See also Equal Protection (apply force in a discriminatory way)

    • Standards: Objectively reasonable < Deliberate Indifference < Malicious & Sadistic = Shocks the Conscience = Wanton Infliction of Pain

  • Takings: 5A

    • Ripeness: Both (1) taking and (2) decision on just compensation must be final and not subject to any further review in state court. Williamson

      • But see: Futility argument, removal of state case to federal court.

    • Preclusion: Losing in state court on either issue is preclusive. San Remo Hotel

  • Taxes: Tax Injunction Act: Must use state remedy for tax challenges. Exception to Monroe.

• Federal Statutory Violations

  • Rights Creating Language Test: (1) Does statute expressly demonstrate Congressional intent to create enforceable right for this P? (2) Evidence that Congress didn’t want to provide 1983 enforcement? If any mention of private remedy, rebuttable presumption of no 1983.

  • Preemption: If federal statute preempts but fails Rights Creating Language Test, no 1983, but may sue for injunction of state law under 1331/EPY. Verizon Maryland.

Ex Parte Young Injunctions: Implied federal COA for injunction against any government officer who threatens to violate federal law. Limited by Edelman: No retrospective injunction, only prospective.

Bivens Actions: Federal Officers for Damages Only!

• Test to Find Them: (1) No alternative remedies (2) No special factors counseling hesitation. Willkie.

• Existing Actions: 4A search/seizure (Bivens); 5A EPC gender discrimination (Davis), 8A Cruel/Unusual Punishment (Carlson).

Common Law Torts

• Traditional Framework: Unconstitutional law provides no authorization for officer. So break law, let them enforce it, and sue them for tort (trespass, etc.) E.g. Booth, Osborn

• Federal Tort Claims Act (FTCA): Federal CoA for damages for (state) common law torts of federal employees.

  • Westfall Act: If fed employee sued for any tort acted in scope of employment, fed gov may (does) substitute itself as D. FTCA exceptions apply.

State Statutes: Mostly outside course scope. Consider preemption by federal law. Cannot use EPY fiction to seek relief for violation of state law. Pennhurst.

§ 1331: Preemption by Federal Law: If federal statute fails rights-creating test, no 1983 remedy available, but may enjoin enforcement any state statute it preempts through § 1331 (this is EPY-type relief).

42 U.S.C. § 14141: Federal government may get injunction/declaratory relief against state/local government that exhibits a pattern of unconstitutional behavior.

Defendant’s Immunities & Remedy

State Sovereign Immunity

• Suit Against the State?: If state is named (Hans) or officer sued in official capacity (Hafer) for damages or retrospective injunction then not ok BC against the state. Prospective injunction OK. EPY, Edelman.

• Waiver: Normally done by statute. E.g. FTCA (fed gov’t waived its immunity here).

• Abrogation by Federal Law: Must be done through a Post-11A Power: e.g. 13A, 14A, 15A. 1983 did not abrogate SSI.

No Respondeat Superior for § 1983

Individual Officer Immunity: For Damages Only.

• Absolute Immunity

  • Legislators: Anyone IFF performing legislative function. Bogan.

  • Prosecutors: Only w/r/t prosecuting/litigating function. Not investigating, giving advice, or hiring/firing (QI for any of these). Imbler. No respondeat superior on DA. Connick.

  • Judges: Absolute unless clearly in excess of jurisdiction. Stump. Includes ALJ (Butz), ALJs (Malley), but not all those who follow PDP (Cleavinger). Not when judge is in executive function. Consumers.

  • Witnesses: For actions during trial, even if someone like a cop who otherwise gets QI.

• Qualified Immunity

  • Harlow Test: Knew or reasonably should have known actions violated fed law at time of act

    • (1) Merits: Did D violate P’s constitutional or statutory right?

    • (2) QI: Was it clearly established with notice at the time of act through either:

      • (1) Controlling Authority: i.e., binding on forum court (Wilson)

      • (2) Obviously outside the law (Hope)

    • Sequencing: Should do merits first but courts have discretion. Pearson.

  • If D loses, eligible for immediate interlocutory appeal (at pleadings or SJ stage)

• Private Parties: If D was a contractor,...

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