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Civil Rights Litigation, Fall 2016 Professor Michael Collins, UVA Law Cause of Action/Rights Violation I. "Ordinary" versus "Constitutional" Torts
? Constitutional Hooks: Due process, excessive force, private violence, takings, taxes (non-exhaustive) o Due Process:
? Official negligence is not sufficient to support 1983, even without post-deprivation proceedings (Daniels, Davidson: cannot argue state system is constitutionally inadequate for failure to remedy negligence). Official recklessness may be.
? Parratt territory: If DPC claim stems from a random and unauthorized departure from required state pre-deprivation proceedings, must proceed to post-deprivation proceedings before filing
1983. Parratt. (see Zinermon category 3B, Parratt exception to Monroe)
? Monroe territory: For all other DP claims (including BoR/incorporation, SDP), like other constitutional violations, may file 1983 without regard to state post-deprivation process. Zinermon (see categories 1, 2, 3A) - Monroe principle o Excessive Force: determine seized/non-seized/detained, stage of criminal process, then look to outline/chart to determine standard (4A, 5A/14A, 8A)
? Monroe: straight to court under 1983 o Private Violence: No DPC claim for mere deprivation of reputation (Paul), failure to protect from a violent private party (DeShaney), failure to enforce a restraining order against a violent private party (Castle Rock), but see Collins comment on prisons/recklessness o Takings are not complete/ripe (i.e., can't sue under 1983 or other relevant CoA) until:
? A) Both (1) the taking and (2) the decision on compensation are final (Williamson) OR
? B) Futility: Pursuing state remedies or appeals on either (1) or (2) would be futile because there is state precedent on point that would render it unsuccessful OR
? C) Removal: State/Defendant removes state proceedings on (1) or (2) to federal court (Chicago)
? Preclusion: State court decisions on the constitutionality of the taking and the justness of the compensation are issue preclusive in a later 1983 suit. San Remo o Tax Injunction Act - Federal courts prohibited from enjoining, suspending, or sustaining state taxes where there is a "plain, speedy, and efficient remedy" to be had in state courtsDue Process, Official Deprivations, and State Tort Law o Due Process
? Parratt v. Taylor (1981 p. 180) Random & Unauthorized Deprivations: Ripeness
? FACTS: state prison lost prisoner's package. State remedies would be available, but sued under 1983 for DP
? Required Process: negligent deprivation of property is covered by DPC (overruled by Daniels, negligence is not a violation), and can sustain a 1983 claim, however, where the negligence results from a random and unauthorized deviation from established procedures, no pre-deprivation process is required and post-deprivation process suffices.
? Ripeness: there is no DP violation unless there are problems with post-deprivation process. At that point, Monroe kicks in and no need for exhaustion of state remedies.
? Hudson v. Palmer (1984 p. 187): extends Parratt to random and unauthorized intentional deprivations of property - (1) no need for pre-deprivation process even if intentional and (2) violation cannot occur until post-post-deprivation process
? Daniels v. Williams (1986 p. 188):
? FACTS: prisoner slips & falls on pillow, says guards negligently left it there. State law prevented recovery. Filed 1983 action for DP violation (state system is constitutionally inadequate to remedy negligence)
Negligence by government does not constitute a DPC violation (overruled part of Parratt) - constitution doesn't require pre- or post-deprivation process for simple negligence
? Davidson v. Cannon (1986 p. 189)
? FACTS: 1 prisoner beat another; guards allegedly negligent in not stepping in
? RULE: official negligence is not a violation of procedural due process (must be willful). So constitution requires no compensation mechanism. Zinermon v. Burch (1990 p. 192) DP Violation Categories:
? (1) BoR Rights (as incorporated by 14A): Follow Monroe; state law remedies are irrelevant. Parratt does not apply.
? (2) Substantive Due Process: Follow Monroe; state law remedies are irrelevant. Parratt does not apply.
? DPC Rights that "can't find a comfortable textual home"
? (3) Due Process Clause "Simpliciter" (Procedural Due Process)
? (A) Deprivations resulting from absence of, or insufficiency of, or policy/custom of lack of adherence to constitutionally required pre-deprivation proceeding. Follow Monroe and go to 1983. Parratt does not apply. See Ingraham.
? (B) (cellar) Deprivations resulting a random and unauthorized departure from constitutionally sufficient state proceedings. Follow Parratt & progeny. No DP violation unless problem with state post-deprivation proceedings. Ingraham v. Wright (1977 p. 194) - Pre- vs. Post-Deprivation DP
? FACTS: kid punished at school by paddle with no pre-paddle hearing, parents not notified
? Pre-Deprivation Hearing: 1983 can sustain actions claims of insufficient pre-deprivation hearing under DPC, but not all deprivations require pre-deprivation hearing, so you may lose on the merits
? Post-Deprivation Hearing: where DPC merely requires post-deprivation hearings, must first exhaust state remedies before 1983 claim can be sustained
? APPLICATION: no DPC right to pre-deprivation hearing here, so no more 1983 claim
? Private Violence and the Constitution Cf. Prisoner cases Paul v. Davis (1976 p. 194) No DPC Interest in Reputation
? FACTS: D puts P's name on flyer identifying him as a shoplifter. P sues, DP violation of liberty through destruction of reputation.
? RULE: DPC does not protect interest in reputation. DeShaney v. Winnebago County DSS (1989 p. 197) No Right to Protection
? FACTS: father beats child into coma, mother sues county for not protecting the child
? Non-Private Actor Rule: the DPC (even SDP) does not give you the right to protection from violence by private actors
? Constitutional Minimum: equal protection clause simply requires that police not discriminate in protecting citizens, but no requirement that they obtain results
? COLLINS: may be DPC claim if driving drunk, cops took keys, left by side of road, mugged; also DPC protection in prison or other involuntary custody situations (these must be more than negligent - Daniels, Davidson) Castle Rock v. Gonzales (2005 p. 200) No Right to Enforcement of Order
? FACTS: Mother told cops to enforce protective order against father more strictly. Police ignore, father kills kids and himself. Mother argues violation of her DPC interest in enforcement of the order.
? RULE: No DPC property interest in degree of enforcement of protective orders.
? Searches under 4A 4A Standard: objectively reasonable under the circumstances
? Collins: there's two layers of reasonableness when you have to ask about qualified immunity (unreasonable Search & Seizure AND unreasonableness in not knowing about constitutional line) Anderson v. Creighton (1987 p. 56) Two Layers of Reasonableness for qualified immunity
? FACTS: police search P's home while in pursuit of bank robber and w/o warrant.o
Collins: there's two layers of reasonableness when you have to ask about qualified immunity (unreasonable Search & Seizure AND unreasonableness in not knowing about constitutional line)
? See also Wilson & bringing in media during search (bringing in the media was unreasonable, but cops weren't unreasonable in not knowing this)
? Excessive Force NOTE: still may have immunities Constitutional Hooks: situations include seized persons, non-seized persons and pre-trial detainees, prison
? Seized Persons: 4A Search and seizure
? When: Investigation and arrest (possibly pretrial detainees as well, Kingsley)
? Standard: was excessive force was objectively reasonable under the circumstance (same for excessive force as searches)? Graham.
? Graham v. Connor (1989 p. 201) Force Standard for 4A Cases
? FACTS: 4th Amendment excessive force claim
? RULE: Reasonable under the circumstances is standard for 4A force.
? Collins: there's two layers of reasonableness when you have to ask qualified immunity (unreasonable Search & Seizure AND unreasonableness in not knowing about constitutional line) (see Anderson, Wilson)
? COLLINS: Governs most arrest situations (they are "seizures").
? 4A search and seizure when police stop car in chase using force (but see Lewis for injuries sustained without force)
? Pretrial detainees/involuntary commitments and non-seized persons (i.e., not seized or searched under 4A)
? 5A (also a deprivation of process claim in Zinermon Category #1):
? When: Question of whether was used to extract a confession
? Standard: "malicious and sadistic sufficiently so to shock the conscience" Chavez.
? Chavez v. Martinez (2003 not in packet): plurality says non-physical coercion/interrogation pre-miranda is not a 5A violation; concurrence says it is but that the proper remedy isn't damages but rather exclusion of evidence at trial
? 14A EPC: if used force based on protected class or other discriminatory reason then violates EPC
? Village of Willowbrook v. Olech (200 p. 215): non force setting
? Substantive Due Process (14A for states, 5A for feds)
? When: Free persons not being searched, or detained persons who have not been convicted. (e.g., Lewis)
? Non-force situations (e.g., health/safety of pretrial detainees): deliberate indifference standard
? But see Lewis: standard of shocks the conscience when there is no time to deliberate
? Force situations: shocks the conscience
? But see Kingsley: objective reasonableness without citation to an amendment COLLINS thinks this is outlier.
? County of Sacramento v. Lewis (1998 p. 203): No time to deliberate
? FACTS: after motorcycle zig-zags through roadblock police pursue; driver of bike skids out w/o cops hitting him; passenger ejected, killed; suit against cops
? RULE 1: when chasee killed without use of force (i.e., no hitting by cops), then 4A not implicatedo o
RULE 2: When 4A not implicated during police chase, SDP implicated shocks the conscience standard applies (unless, e.g., discrimination)
? Application: only pursuits unrelated to legitimate arrest will shock conscience Kingsley v. Hendrickson (2015 p. 215) Outlier Case
? FACTS: pretrial detainee tased after unsuccessful moving him for 1.5hrs for own safety
? RULE: SCOTUS does not say whether this is SDP or 4A, but applies objectively reasonable standard, despite "shocks the conscious" normally applying to pretrial detainee force cases.
? DISSENT (Alito/COLLINS): Apply 4A. Person is still in seizure until convicted thus 8A takes over (also may have been "seized" while taken out of cell). (Collins/Alito don't like SDP and want to avoid applying it.)
? Prison: 8A When: Post-conviction (mostly in prison) (4A doesn't apply) Standards:
? Non-Force Accusation: deliberate indifference to a known risk (e.g. medical care, protection from other prisoners)
? Force Accusation: malicious, sadistic, or for the purpose of causing harm
? General Additional Question: Was there a legitimate penological purpose for the action/inaction?
? COLLINS: note that in 14A SDP has higher standard for force than non-force (except in non-deliberative situations), whereas for 8A, there is a lower standard for force than non-force
? Pre-Rehnquist Court Standard for All: Force must be "malicious and sadistic sufficiently so to shock the conscience." See e.g. Johnson v. Glick (leading 2nd Cir case); based on DPC. Litigating Takings o Williamsom City Regional Planning Commission v. Hamilton Bank (1985 p. 337) Ripeness For 5A Violation: constitutional violation for deprivation of property under 5A is only complete when a state fails to justly compensate for the deprivation. Both (1) the taking and (2) the decision on compensation must be final and not subject to any further review in state court.
? COLLINS: may be preclusion problems if both final o Futility Argument: If there is a state case on point denying just compensation, P can go to federal court on the argument that state proceedings would be futile. COLLINS: This is a way to get around issue preclusion from the state court. o San Remo Hotel L.P. v. City and County of San Francisco (2005 p. 338): Preclusion and England Reservations in Takings
? FACTS: SF law prevents SF hotels from converting "residential" rooms to "tourist" rooms w/o building new "residential" rooms to replace them or pay for value of replacement. SR Hotel accidently indicates they have all residential rooms even though they are almost exclusively tourist. SF says must either build new residential rooms or pay a fine when they try to reclassify. Sues in fed court for (1) DP-type "not substantially advancing interest claim (facial claim); AND (2) takings claim (as applied claim)
? APPLICATION: 9th Cir Pullman abstains on facial challenge as it depends on interpretation of SF law, and finds as-applied challenge not ripe because there has been no compensation proceeding. Williamson.????
P makes England reservation in state court and loses on all issues. Gets no compensation because court finds no taking.
? Federal court dismisses all of P's claims on issue preclusion from state court. SCOTUS affirms.
? As-applied claim became ripe when compensation was denied, and then immediately gets precluded.
? Facial claim because state takings claim mirror image of federal claim, and makes preclusion on all issues in federal takings claim.
? England Reservation Limitations:
? (1) State court decisions on state issues that are essential to the federal issue are preclusive even if P makes an England reservation.
? (2) If you litigate a state issue that is a mirror-image to a federal issue, there can be issue preclusion. England only applies to unclear questions of purely state law.
? Preclusion in Takings Cases: issues decided in state court proceedings can be preclusive on mirror image issues in 1983 suit o Allen v. McCurrie: Preclusion applies even if P was involuntarily in the earlier proceedings (e.g. criminal prosecution). o Chicago v. International College of Surgeons (1997 p. 345): if D removes state takings claims to federal court, even if originally a state COA, claim can go forward in federal court without exhaustion of state court proceedings.
? Litigating Taxes o 28 USC 1342: Rate Injunction Act - federal courts prohibited from enjoining/suspending/sustaining state public utility ratemaking order
? EXCEPTIONS: Commerce Clause and Preemption challenges o 28 USC 1341: Tax Injunction Act - Federal courts prohibited from enjoining, suspending, or sustaining state taxes where there is a "plain, speedy, and efficient remedy" to be had in state courts
? Example: Pay tax, then sue in state court for refund (may appeal federal issues up to SCOTUS).
? California v. Grace Brethren Church (1982 p. 346) - Application of TIA
? FACTS: P religious school sues in fed court seeking declaratory relief from california tax allegedly in violation of 1A
? RULE: Tax injunction act requires Ps seeking relief from state tax collection use state remedies as long as there is a plain, speedy, and efficient remedy. II. Section 1983 and the Enforcement of Federal "Laws"
? Statutory Violations by State Officials o Test for 1983 Suability Under Federal Statute (initially Middlesex County v. Sea Clammers):
? (1) Does the language of the statute expressly demonstrate that Congress intended to create an enforceable right for this particular P (Gonzaga)? AND
? E.g., Rights Creating Language: "no person shall be subjected to" (Title IX referenced in Gonzaga)
? E.g., Non-rights Language/Statutes: federal funds conditioned on state statutory scheme (Gonzaga, Blessing v. Freestone)
? (2) Do we have evidence that Congress didn't want to provide an additional enforcement mechanism through 1983? (Sea Clammers).
? If statute is entirely silent on remedies, presume Congress left it open to 1983 (Wright)
? If there is any mention of private remedy in the statute, shift presumption to P to disprove that Congress created a comprehensive scheme precluding 1983 (Rancho Palos Verdes)
? In effect: Today, a statute can only be enforced through 1983 if Congress explicitly created a private right but failed to provide a remedy. Rare.o o
Chapman v. Houston (1979 p. 222): Supremacy Clause - Not a constitutional injury if a state statute violates it. (Otherwise any state statute conflicting with federal statute would lead to a 1983 suit) Gonzaga University v. Doe (2002 p. 229) Current Prong #1
? FACTS: FERPA requires no "policy of disclosing student educational records without consent" for federal funding to educational institutes. School discloses past sexual assaults w/o consent.
? RULE: see above Blessing v. Freestone (1997 p. 227) Statute Doesn't Create Enforceable Right
? FACTS: Federal statute requires states to create system to locate deadbeat parents and enforce child support to receive federal funds
? APPLICATION: Fails part (1) of test. Right created by statute is too broad for individual enforcement (mechanism was conditioning federal funding on state compliance, too attenuated from private parties). City of Rancho Palos Verdes v. Abrams (2005 p. 234) Current Presumption in #2
? FACTS: p claimed city's denial of permit to put up 100-foot antenna violated federal telecommunications law
? APPLICATION: passes prong 1, but private remedy means presumption is against 1983 being available. Old Approach from Sea Clammers two prong test, pre-Gonzaga and Rancho Palos Verdes
? (1) Test: Statute confers a duty (see Blessing), and P has to be intended beneficiary OR are in the zone of interests created by the statute. Wright as applied in Blessing v. Freestone (1997 p. 227))
? E.g., duty w/o private cause of action can be determined from statute itself (Wright), or private cause of action imposes a duty (National Sea Clammers)
? E.g., Non-rights Language/Statutes: federal funds conditioned on state statutory scheme (Blessing v. Freestone)
? (2) Did congress create an unusually elaborate remedy that was meant to displace 1983? Sea Clammers
? Maine v. Thiboutot (1980 p. 217) - Old Rule
? FACTS: P sued state in state court under 1983 for Social Security money they claimed they were owed under federal statute.
? Could never happen today because SSI now applies in state courts, and states aren't persons per 1983.
? RULE: "Laws of the United States" (Brennan): Includes any federal statute that is violated by state or local actor, even if the statute does not create a COA for enforcement against private actors.
? DISSENT (Powell): Legislative history indicates that "and laws" referred to the Reconstruction-era civil rights statutes only.
? Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n (1981 p. 224) Still the Framework, Modified by Later Cases
? FACTS: suit for damages under common law theory and FWPCA, didn't use 1983 but court brought it up anyway since Maine v. Thiboutot was recently decided
? Rule above (two-part test)
? Application: fails on prong 2 because Congress created cause of action w/ right to prospective injunctive relief w/ silence on damages. This means they didn't want damages to be available
? Wright v. Roanoke Housing Authority (1987, p. 225) Application of Old Test
? FACTS: Residents sue Section 8 housing for charging them more than federal statutory ceiling.
? RULE: Two-part Sea Clammers test
? APPLICATION: (1) Statute imposes a duty (rent ceiling) that has been violated. (2) No private enforcement mechanism in housing statute, so Congress left door open for 1983 enforcement.
? COLLINS: If Congress didn't want private enforcement of statute, why is that an invitation to have massive private enforcement through 1983?
? Preemption and Dormant Commerce Clause Claims under SS 1983
o General Rule: Two ways seek remedy for state law preempted by a federal law (1) Preempting federal law may create a right enforceable under 1983 (see test for suitability under federal statute, Cf. Golden State and Gonzaga); OR
? Better since it allows for damages
? (2) If preempting federal law does not create a right enforceable under 1983, then 1331 provides a COA for preemption claims to enjoin state law based on EPY (Verizon) o 1331 Preemption Claims: if you cannot find rights creating language in the federal law which preempts state laws, then you can sue under the 1331 Federal Question Jurisdiction statute for a claim of preemption (but not 1983, Gonzaga). See Verizon Maryland
? Proper defendant is the official who enforces the state law
? NOT an implied cause of action under the supremacy clause
? Armstrong v. Exceptional Child Ctr. (2015 p. 247): 1331 claim for injunction can be foreclosed if the preempting federal statute includes a remedy for preemption o Golden State Transit Corp v. City of L.A. (1989 p. 237) Right to be Free from Further Regulation
? FACTS: taxi co in labor dispute with union, LA didn't let company renew license until it settled dispute. Sued and got injunction against LA to renew license, then sued under 1983 for damages for lost $ between loss of license and injunction.
? RULE: (pre-Gonzaga): Federal Labor Law creates an enforceable private right to be free from 3rd-Party (i.e., local gov't) interference in labor disputes. No remedial scheme in place, so enforceable through 1983.
? PROBLEM: Gonzaga requires statute to do more than just preempt. Must also create an express, enforceable private right, which labor law here doesn't. Creates grey area: statutes that preempt, but don't create a right. Argue that the statute has rights creating language to be free from further regulation, or use 1331. o Verizon Maryland, Inc. v. Public Service Comm'n of Maryland (2002 p. 244)
? FACTS: Verizon sues state for injunction under 1331, claiming preemption of state law.
? RULE: Injunctions for preemption under 1331 allowable per EPY. May sue to enjoin state officer whose actions would violate the preempting federal law. III. Suits Against Federal Officials
? Bivens Actions: o Summary: Bivens actions are an implied federal cause of action for money damages against federal officers in their personal capacity for certain constitutional violations.
? New Test (Willkie v. Robinson): presumptively no new Bivens actions unless (1) no alternative remedies, and (2) no special factors counseling hesitation
? Bivens Actions are available for:
? 4A Searches and Seizures (Bivens)
? 5A EPC gender discrimination (Davis)
? 8A Cruel & Unusual Punishment (Carlson) o Bivens v. Six Unknown Agents (1971 p. 147) - Implied federal common law damages CoA
? FACTS: federal narcotics agents break into house w/o warrant, ransack
? RULE: Implied federal cause of action for money damages against federal officers in their personal capacity for 4A violations.
? Davis v. Passman (1979 p. 156): Bivens action for 5A equal protection gender discrimination
? Carlson v. Green (1980 p. 157): Bivens action for 8A cruel/unusual punishment (even though FTCA offered offered some remedies for torts by officers, court determined Congress didn't want this to displace Bivens)
? No other Bivens actions besides 4A, 5A EP, and 8A.
? Damages only, federal officers only! Gets 1983 immunities.
? See EPY: you may be able to get an injunction against the federal official o Creation of Bivens action:
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