CONSTITUTIONAL TORTS OUTLINE SPRING 2005 TIMMONS I. Introduction to constitutional torts A.

Definition: Actions brought against governments and their officials and employees seeking damages for the violation of federal constitutional right, particularly those arising under the 14th amendment and the Bill of Rights. Note: the only people who can violate your constitutional rights are government employers. Constitution only limits governmental power, not individual (exception is 13th amendment prohibiting slavery). Bill of rights not applicable to the states directly; have to look to the 14th amendment (1st, 4th, 5th, 6th, and 8th) for incorporation. Con torts share main policy goals w/ traditional torts: deterrence and compensation. B. 42 U.S.C. 1983: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.” C. 28 U.S.C. 1343(3): (a) The district courts shall have original jx of any civil action authorized by law to be commenced by any person; (3) To redress the deprivation, under color of any State law, statute, or ordinance, regulation, custom or usage, of any right, privilege or immunity, secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or all persons within the jurisdiction of the United States. (b) For purposes of this section: (1) the District of Columbia shall be considered to be a State and (2) any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

D. Purposes of Section 1983: 1. Supreme Court: Section 1983 opened the federal courts to private citizens, offering a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation 2. To interpose the federal courts b/w the states and the people, as guardians of the people’s federal rights—to protect the people from unconstitutional action under color of state law, “whether that action be executive, legislative, or judicial”. (Mitchum v. Foster) 3. Court indicated that section 1983 was designed both to prevent the states from violating the 14th amendment and certain federal statutes and to compensate injured plaintiffs for deprivations of their federal rights (Carey v. Piphus) E. Monroe v. Pape (1961) Established that state officials that abused their positions still acted under color of law. Do not need to show that there was authority under state law, custom or usage. Instead, misuse of power possessed by virtue of state law and only because individual is clothed with power because of state law means under color of state law 1. 1983 should be read against backdrop of tort law but there is no intent requirement for 1983 actions 2. Municipalities are not “persons’ under 1983—only individuals. Note: this is not altogether still good law. F. Constitutional Torts and Exhaustion of Judicial Remedies 1. Monroe: makes clear that a section 1983 COA for damages need not exhaust or pursue state judicial remedies before filing in a federal forum. 2. Habeas Corpus: Prisoners, like other 1983 plaintiffs, need not exhaust state judicial remedies a.: A prisoner’s 1983 challenge to the fact or duration of his or her confinement is in substance a petition for habeas corpus and must be treated as such by federal courts. Because federal habeas corpus statute requires exhaustion of state remedies, the effect would be the dismissal of the claim in federal court. (Preiser v. Rodriguez)

b. In order to recover damages for unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a 1983 plaintiff must prove that the conviction/sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court’s issuance of a writ of habeas corpus. (Heck v. Humphrey) 3. Due Process: in certain cases, a decision adverse to a plaintiff’s DP challenge amounts to a de facto requirement that state judicial remedies be exclusively pursued. a. A 1983 claim based on DP was not stated where P sought relief from being listed as an active shoplifter by police authorities. Court held that no liberty or property interest was implicated; plaintiff’s sole remedy was an action for defamation in state courts. Court did indicate that an official might be liable for consequences of defamatory stmts if P could demonstrate that he had suffered stigma plus an infringement of some other interest. A P must also show a distinct alteration or extinction of a previously recognized right or status (Paul v. Davis) b. Procedural DP is not violated when school authorities imposed corporal punishment on students b/c students against whom excessive force was used would have a tort COA in the state courts. (Ingraham v. Wright) c. In certain circumstances, intentional deprivations of property do not violate procedural DP where adequate post-deprivations of remedies are available. (Hudson v. Palmer) 4. Prospective Relief and the Younger Rule a. When state criminal judicial proceedings are already pending, a federal P seeking declaratory or

injunctive be barred

relief against their continuation will typically from the federal forum. (Younger v. Harris) b. Younger rule has been expanded to include suitable relief against state judicial proceedings b/w private litigants where important state interests are implicated (Penzoil Co. Texaco, Inc.) as well as pending state administrative proceedings where important state interests are involved and there is a full and fair opportunity to litigate any constitutional claims upon state judicial review of that proceeding. (Ohio Civil Rights Commission v. Dayton Christian Schools) G. Constitutional Torts and Exhaustion of Administrative Remedies 1. State administrative remedies, like judicial remedies, need not be exhausted before maintaining a 1983 action in federal court. (McNeese v. Board of Education) 2. Supreme Court, in 1982, definitively ruled that exhaustion of administrative remedies is not a condition precedent to filing a section 1983 action. (Patsy v. Florida Board of Regents) 3. State Prisoners and Exhaustion of Administrative Remedies a. Prisoner’s 1983 claims are sometimes treated as federal habeas corpus claims and therefore becomes subject to exhaustion of state remedy requirement b. Prisoner’s 1983 claim attacking prison conditions and events unrelated to the fact and duration of confinement is not subject to an exhaustion of administrative remedies requirement c. Civil Rights of Institutionalized Persons Act (42 USC 1997(e)): Congress legislated an exhaustion of administrative remedies requirement in certain circumstances for persons institutionalized in state or local government correctional facilities. H. Constitutional Torts of Federal Officials (Bivens): Even though federal officials cannot be sued under 1983, there was an implied COA for damages under the 4th amendment against federal officials who

violated federal rights. Bivens actions not available against federal agencies; only against federal employees individually 1. Two instances where they might not infer a COA: a. Where there are special factors counseling hesitancy in the absence of affirmative action by congress b. Where congress has provided an alternative remedy which is intended to be a substititute and viewed as alternative Where there are special factors in absence of action by Congress I. The Current Status of Bivens Actions 1. Davis v. Passman: Plaintiff had a 5th amendment damages action against the congressman for his alleged violation of her right to be free from gender discrimination. Court observed that a damages remedy was appropriate in this case because there were no special concerns counseling hesitation; there was no explicit congressional declaration that money damages should not be available and there was little likelihood that the federal courts would be deluged w/ claims. 2. Carlson v. Green: Implied an 8th amendment damages action against federal prison officials, even though there was a damages remedy against the United States under the Federal Tort Claims Act. 3. Chappell v. Wallace: Court rules against personnel who, alleging racial discrimination in job assignments, sought damages from their commanding officers under the Constitution 4. Bush v. Lucas: No damage remedy for a federal employee who sued his supervisor for the exercise of his 1st amendment rights. The federal employment relationship “is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States”. 5. Schweiker v. Chilicky: Blended the two Bivens exceptions. The existence of alternative remedies or even evidence that congress has considered the problem and has not provided remedy may be enough for court to not allow a bivens claim. Although Bivens said where Congress has provided an lternative remedy, it is only necessary to show that there exist alternative remedies (blends the two

exceptions cited in Bivens). After this case, Bivens actions extremely limited 6. Smith v. Robinson: Court held that Congress, in enacting the Education of the Handicapped Act (EHA) intended to exclude from 1983’s coverage independent equal protection claims identical to claims covered by the act 7. FDIC v. Meyer: Bivens actions not available against a federal agency. Court observed that Bivens premised on the absence of a damages remedy against a federal agency. Therefore, it would be illogical to extend Bivens to federal agencies. Court also reasoned that such an extension would allow plaintiffs to bypass federal officials w/ qualified immunityand go directly after the federal agency. 8. Correctional Services v. Malesko: The purpose of Bivens is to deter individual federal officers from committing constitutional violations J. Types of remedies 1. Prospective Offensive Relief: Injunctions 2. Retrospective Offensive Relief: Damages 3. Prospective Defensive Relief: Using constitution as shield 4. Retrospective Defensive Relief: ?

II. “Under Color of” State Law A. The Meaning of “Under Color of” 1. Monroe: Actions by state officers that violate state laws may still be “under color of” state law. 2. Color of Law always question for jury 3. Must fist consider whether the D is a state actor or a private individual. B. The Boundaries of “Under Color of” 1. Off-duty officers a. Rossignol v. Voorhaar: b. If the officer is using police equipment and is doing police business, courts usually hold that officer acting under color of state law (Layne v Sampley) c. If officer violently attacks someone for personal reasons, but uses weapon that belongs to him and

is not

with v City

security status

doing police business, not acting under color of law (Huffman v County of Los Angeles) d. There is no bright line test for distinguishing personal pursuits from under color of law actions (Pitchell) 2. In cases where officers abuse their position for personal motives, the courts are mixed 3. If officer is suspended as mentally unfit but was permitted to keep his gun and ammunition and then shoots somebody that gun, officer is not considered a state actor (Gibson of Chicago) 4. Officers who take second jobs as security guards: a. The courts have found that these officers are acting under color of state law because his work as a guard was directly related to his official b. If the officer makes no pretense that he is acting under state authority, court has found not acting color of law (Watkins v Oaklawn Jockey Club) c. If P knows that officer is acting as a private guard, even though guard is wearing a police uniform, found not acting under color of law (Robinson v


court Davis)

5. Pretense Approach: Actions of officer so bad that victim could not have possibly thought he was acting under COL. 6. Courts have found that pretense of authority must be found in order to bring 1983 suits. C. “Under Color of” and State Action 1. Lugar v Edmondson Oil Co.: Under color of law should be interpreted broadly because 1983 created expressly to allow anyone a COA against people who violate 14th amendment. Test as to whether state action occurred: a. D must be acting under some power given by state or by a rule of conduct imposed by a state or by a person for whom the state is responsible. b. D must be a person who may fairly be said to be a state actor (1) State officials will always meet (2) Obtained aid from state official

2. When one sues a federal officer under 1983, must show that federal officials have collaborated w/ state officers (Strickland v Shalala) 3. Sometimes, state officials administer federal programs; they may be deemed to be acting under color of federal law and therefore are not liable under 1983 (Rosas v Brooks) 4. National Guard Activities a. Problems sometimes arise because they have both federal and state characteristics th b. 7 Circuit: no set formula to determine whether acted under color of law. Must look at nature of action and functional capacity of the actor (Knutson v Wisconsin Air National Guard) c. If two states, with the approval of Congress, create an interstate compact to carry out certain common laws, the officials were found to be acting under color of state law (Lake Country Estates, Inc. v Tahoe Regional Planning Agency) D. Suing private actors under Section 1983: Always a presumption that private individual did not act under color of state law 1. Self-Help Remedies: Will be deemed state actor where D acted in pursuant to statute and acted with overt involvement of state official a. Flagg Bros., Inc. v Brooks: Power to seize property is not an exclusive governmental function. State must have required compliance. In order to have an action, P must show that state delegated an exclusive power to a private individual. b. Jackson v Metropolitan Edison Co.: Court held that a private utility’s termination of service was not state action subject to due process constraints c. Non-state actors doing a traditional government exclusive function but not relying on a self-help remedy (ex. political elections) 2. Contracting out and other symbiotic relationships: interdependence between state and party; must be seen as joint participant. A lot of connection between

the state and the private party. No actual state involvement in the challenged actions. a. Burton v Wilmington Parking Authority: Look at compliance and involvement. (1) Did D comply w/ statute and (2) must be overt official involvement (Luger/Flagg). Very fact specific but look for symbiotic relationship b. Rendell-Baker v Kohn: Court held that no state action when a private school that received almost all of its funding from the govt fired a teacher because of her speech. Court found that test is not whether school performs a public function but rather is whether the function performed has traditionally been the exclusive function of the state (1) Cites Polk County v Dodson: A public offender did not act under color of state law “when performing a lawyer’s traditional functions”. (2) West v Atkins: 4th Circuit found that persons acting “within the bounds of traditional professional discretion and judgment” do not act under color of state law. In this case, Atkins was an orthopedic surgeon who had contracted w/ state and had treated a prisoner who was not ultimately satisfied w/ the treatment. (3) Calvert v Sharp: Court held that physician that had worked for private corporation and contracted w/ state to treat prison inmates; held that physician did not work under color of state law. (4) Kost v Kozakiewicz: A private pharmacy that supplies prescription drugs to a state prison cannot be sued under 1983 if the drugs caused harm to the inmates c. State Action Doctrine is very difficult because: The court identifies a number of factors that should figure in the resolution of state action issues but does not

apply next

the standards consistently from one case to the

d. Black v Indiana Area School District: Private school bus service was contracted through school system and sued because students accused driver of molestation. The court held that private company could not be held liable under 1983 e. Jackson v Metropolitan Edison Co: Court said that complaining party must show that “there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself”. Mere fact that business is regulated by state, even though extensive regulation, by itself convert the actions to state action. Most public utilities are heavily regulated. f. Blum and Rendell-Baker factors in determining whether a private actor was engaged in state action: (1) The entity’s source of funding (2) How extensively it is regulated by the state (3) Whether there is a symbiotic relationship b/w the state and the private entity, and (4) Whether it performs a traditionally governmental function 3. “Conspiracies” Between Public Officers and Private Actors: Did the PP engage in a conspiracy with the state EE. Was there a willful participation. For this to apply, there must be a meeting of the minds between the PP and the state actor that they will take action to hurt the P a. NCAA v Tarkanian (1988): Court held that NCAA was a private entity and therefore did not have to provide due process before suspending coach at university. Regulating collegiate athletics is an important function but is not a traditional or exclusive function of state b. Dennis v Sparks (1980): Concerned the liability of private actors who conspire w/ state officials to deprive the plaintiffs of constitutional rights. To be

found to act that the D be a the state or its

his had to

“smoking “willful evidence of Lauderdale)

under color of state law, it is enough willful participant in joint action w/ agents. c. Tower v Glover: Court allowed suit when prisoner sued the public defender that had represented him at robbery trial, claiming that the public defender conspired w/ state judges and other state officials obtain plaintiff’s conviction d. What evidence is needed in order to establish a conspiracy? (1) P must show that Ds reached an understanding to violate p’s rights. No need to produce a gun” to establish the “understanding” or participation”, but must show some agreement b/w ds (Rowe v Fort (2) Participants must share a common objective (Franklin v Fox) e. Mershon: There must be a mutual understanding or a meeting of the minds b/w the state actor and party (1) No need for direct evidence; can use circumstantial (2) No specific intent to know action is unconstitutional; just have to show that with other to wrong person f. Most common fact pattern in conspiracy cases are security officers acting in conjunction w/ police


joining in


4. Entwinement a. Brentwood Academy v TN Secondary School Athletic Association: Court created new test called “entwinement”. Noted a fairness factor. Distinguished from Tarkanian by noting new test called entwinement. Very fact specific test. Court looked to facts such as the fact that NCAA was organization of several state officials, not all of them involved with the state of Nevada

while this case involved only one state, Tennessee. 5. Public Function Exception: can sue a private actor if his actions/job/etc. are in performance of a traditional govt function (must have traditionally been an exclusive function a. Examples: (1) Running or regulating schools (RendallBaker; Brentwood Academy) (2) Election Cases (White Primary Cases) (3) Management of private property (Marsh) b. Rationales: (1) Govt should not be able to avoid the constitution by delegating its task to a private actor (2) There are some acts that seem inherently governmental in nature c. Tests to determine if private person is performing a public function: (1) Must be a task that has been traditionally exclusively been done by the government (Jackson) d. First case to apply this exception was the Marsh v. Alabama; court found that running a city is a public function and even though a company was performing this function, still considered 1983 actionable 6. Entanglement: state action may be found only if there is such a close nexus between the state and the challenged action so that seemingly private action may be treated as act of the state itself. a. Judicial and law enforcement actions (1 Luger (2 Flagg Brothers (3 Batson v Kentucky: use of preemptory challenges. Prosecutors not allowed to

challenges in


discriminately use preemptory criminal cases (4) Edmundson: Batson applies to private civil litigation. Found there is state action is found when parties use preemptory (5) Georgia v McCollum: Criminal D is a state actor when using preemptory challenges (used Edmondson analysis) b. Government licensing and regulation (1) Burton: Symbiotic relationship test. Has never been overruled. Leaves open possibility that court, in future, might find a good enough symbiotic relationsh (2) Courts usually do not find that licensing is enough for state action (see Moose Lodge) (3) Jackson c. Government Subsidies (1) Rendall-Baker: court made clear that government funding, by itself, is not enough to prove state action. (2) Blum: just because state helped fund the nursing homes; nursing home still able to make own independent decisions. (3) Absent govt motivation, it is very difficult to prove state action by funding argument (ex. of when it does is when provided funding in order to continue segregation efforts—the intentionally trying to constitutional rights.

states government is undermine

III. “Secured by the Constitution and Laws” A. Four different types of constitutional claims: 1. Equal Protection 2. BOR Rights 3. Claims based on SDP 4. Claims based on PDP B. Claims Based on Procedural Due Process: 1. First, must determine whether there was a protected life, liberty, or property interest that was interfered with by the govt a. Property (1) Two kinds of property (a) “Old” Property: land chattels, etc (b) “New” Property: Benefits from the state such as employment, contracts, welfare benefits, one-time grants, etc. Always asks whether state law creates legal entitlement to the benefit th (c) 14 amendment “property” exists if state law (including informal practices) create a “legitimate claim of entitlement” to a benefit (Board of Regents v Roth/Perry v Sinderman) (d) What matters in these suits is not the importance of the benefit to the P but its nature (Bishop v Wood) (e) Establishing a property interest does not assure that the P will win the case (f) Recognized Property interests: i. Right to public education (Goss v Lopez) ii A k that guaranteed employment “during good behavior and efficient service” created a property right (Cleveland Bd of Education v Loudermill)

claim of benefit. This test rather than subjective

creates benefit.

iii Public employees’ tenure (Gilbert v Homar) iv Contracts terminable at will typically do not create property interest (Eddings v City of Hot Springs). v Lower courts have often focused on Sindermann’s “legitimate entitlement” to the is an objective test (1) Wojcik v City of Romulus: State created interests turn on whether state law a legitimate expectation

b. Liberty (1)“Old” Liberty: composed of CL interests that the DP clause shields against certain intrusions by the state (ex. confinement); “New” Liberty: liberty interests created by state law. KT usually only arises in cases involving prisoners (2) Sandin v Conner: State prisoner raising new liberty claim must point not only to regulation that enhances the prisoner’s liberty but must also show that challenged action imposes atypical and significant hardship to the prisoner in relation to ordinary incidence of prison life (3) The main CL interests that receive protection (“old” liberty): (a) Freedom from confinement and other restrictions on personal freedom i A pretrial detainee cannot be placed in segregation as a punishment for a disciplinary infraction w/o notice and opportunity to be heard (Higgs v Carver)

illnesses unless they themselves or (O’Connor v Donaldson)

ii Persons cannot be incarcerated against their will on account of untreated mental are dangerous to others (b) Security against physical injury i. Court recognized that 14th amendment liberty embraced “personal security” from or injury ii Courts have later found that liberty claim of a right to bodily integrity is within substantive (Wudtke v Daval) (c) Reputation i Defamation deprives one of liberty only if it is accompanied by the some substantial benefit or the imposition of a significant (Paul v Davis) ii Can only claim defamation if P disputes truth of defamatory (Codd v Velger) iii Principle that P must show more than mere defamation applies speaker knows the statements are harm P iv Stigma plus doctrine: stigma is created by false defamatory statements that are others and the of a

physical pain (Ingraham v Wright)


loss of burden


even if defamatory false and intends to (Stiegert v Gilley)

communicated to plus is usually the loss government job or some other serious disadvantage

would defamation narrower especially serious

enough someone as sex offender



aa. Stigma: met only by the kinds of statements that be defamatory in CL and perhaps only a category of charges (aa) Labeling ee as incompetent not bb. Labeling dangerous meets (bb)Stmt that p unable to drive a motor not enough bb. Plus Requirement (aa) Loss of employment opportunities not (bb) Being listed on sex offender registry stigmatizing enough

but not unless some other disability/disadvantage

(cc)Imposing registration on persons deemed sexually dangerous enough (dd) Loss of business reputation not enough (ee) Remaining on list of those eligible to contracts (4) “New” Liberty: (a) Sandin Test: direct courts to focus on whether the action taken against a

get city not enough

prisoner hardship in incidents of prison



create Selesky)

is an “atypical and significant relation to the ordinary life” (b) Being removed from home detention and put into jail is a deprivation under test (Paigemay v Hudson) (c) 514 day confinement in “special housing unit” may qualify as a hardship (Tellier Fields) (d) 92 days of disciplinary confinement imposes a hardship sufficient to liberty interest (Giano v

2. Then, consider whether a deprivation of that interest occurred without DP of law. The state possesses the authority to deprive plaintiffs of liberty or property so long as it proceeds in the appropriate way. The general principle is that persons faced w/ such a deprivation are entitled to “process”, which typically means a hearing at which they may challenge the deprivation a Gilbert v Homar: Post-deprivation hearing for a suspension for tenured officer is enough b. Matthews Balancing Test (1) Pre-seizure hearings are required (US v James Daniel Good Real Property) (2) No requirement of full judicial hearing prior to administration of antipsychotic drugs— leaves decision to medical professionals (Washington v Harper) (3) No DP right to an impartial decision maker at a pre-termination hearing where the state provides a full adversarial hearing before a neutral adjudicator after termination (Locurto v Safir) (4) The Matthews Test: (a) Private interest that will be affected by official action

(b) Risks of an erroneous deprivation through procedures used and the probably value of any additional substitute procedural safeguards (c) The state’s interest c. The Role of State Law (1) Just because the state creates the property interest, it does not follow that state also has control over the question of what “due process” requires. The court held that these two issues are separate; first, must look as to whether state has created a property interest and then look at federal constitutional law rather than state law to determine what process is due (Cleveland Board of Education v Loudermill) d Old Property and the Special Problems of Takings (1) The process that is due to property owners will generally take place in state courts, as the court held in Hamilton Bank that a 1983 suit challenging the propriety of a taking or the amount to be paid shall not be ripe until the state process is completed e. Old Liberty and the Special Problem of Stigma Plus (1) Stigma plus doctrine differs from other kinds of liberty and property because: in all other categories, the premise of procedural protection is that the plaintiff holds a substantive right. These rights can be taken only on certain conditions and the point of the DP hearing is to determine whether these conditions are met. However, the stigma plus plaintiff has no substantive institutional right to a job. Procedural DP entitles him to a hearing, but the point of the hearing is just to clear his name (Quinn v Shirey). Even if he is vindicated, he has no constitutional right to reinstatement. Whether P has a substantive DP

right to recover damages to his reputation is a separate question C. Claims based on Substantive Due Process 1. Daniels v Williams: A plaintiff seeking to establish a substantive violation by the D must show a more egregious state of mind than negligence. Negligence is not an exercise of power. 2. Davidson v Cannon: failure to protect plaintiff from attack in prison after plaintiff complained of threats does not amount to “deliberate indifference” 3. Municipal governments are not entitled to a qualified immunity defense based on the reasonable belief of their officials that their action was constitutional (Owen v City of Independence) 4. County of Sacramento v Lewis: General principle that a sufficiently egregious act by an official may violate substantive due process, even if no more specific constitutional guarantee is applicable to the case. In order to win, the P needs to show that the conscience-shocking act does not merely upset him, but deprives him of 14th amendment liberty or property. If a police officer hits another person, there was force but no seizure. Test for force used in quelling prison riots; courts should look to whether force was used in a good faith effort to maintain and restore discipline or maliciously and sadiciously just to cause harm 5. No recognition of a fundamental liberty interest in grandparents interest in adoption of grandchildren (Mullins v Oregon) 6. Farmer v Brennan: 8th only applies when person is in custody pursuant to a jx of conviction. Prohibition against this applies both to cases involving prison officials using excessive force and cases involving prison conditions. Imposes duty on prison officials to provide humane conditions. th To violate the 8 , prison official must have state of mind of deliberate indifference to inmate health or safety. This test was subjective recklessness. Must be aware of and consciously disregard iserious harm to inmate health or th safety. 8 amendment claim means you are in custody

prior to conviction; if not, would not fall under 8th amendment. th If P detainee, the substantive under 14 amendment applies. Court adopts test that official must both be aware of facts from which an inference can be drawn that a substantial risk of serious harm exists and the officer must make that inference. Court also notes that acts were not punishment and that 8th amendment only applies to punishment. Once P shows that D aware of risk; must also show that D did not reasonably respond. 7. Police Chase Cases a. Even if officer deliberately rams the pursued car at the conclusion of the chase, Lewis doesn’t permit an inference of intent to harm simply because chase results in injury. Court found in this case that the intent was to do the policeman’s job (Davis v Township of Hillside) b. Court found that complaint could stand when officer engaged in high-speed pursuit of a motorist suspected only of speeding who sped off after being stopped (Petta v Rivera) c. Court found that officer fondling and propositioning handcuffed suspect shocks the conscious (Fontana v Haskin) 8. Parratt v Taylor: Inmate paid for hobby materials which were then was lost by prison officials. Applies Matthews factors and decided that nothing that state can do to prevent such a random act as the loss of hobby materials. Predeprivation hearing would not be possible. In addition, the plaintiff has the opp to sue under Nebraska tort claim act in order to recover for hobby material cost D. Constitutional Rights of Persons in Custody 1. Three types of cases: a. Persons under arrest by the police whose claims are covered by 4th amendment standard (objective reasonableness standard). Unreasonable force claims. Psychological harm can also be actionable (Mcdonald) (1) Use of force Test

P 14th

or show way a

Hodari) p. 178

(a) Did officials seize individual? (1) If not seized but still had objectively unreasonable force, could possibly bring claim under amendment (2) SC tests as to when seizure has occurred i. Whether the officer by means of physical force of authority has in some restrained the liberty of citizen (Terry v Ohio) ii. Whether a reasonable person would have believed that he was not free to leave and he in fact asserted to authority (California v iii. Where there was a govt termination of movement through means applied Inyo) (b) Was force objectively reasonable? (1) Deadly force is objectively unreasonable (Garner); must facts of case—was of committing there a (2) Non-deadly force: looks at three factors (Graham); court noted these are not the only factors; reasonableness requires interests, giving deference because decisions.

intentionally (Brower v County of p. 177

look to suspect suspected bodily harm and was warning given

that a balancing of the officer some have to make split

Objective standard. P does have to show that officer acted in faith.

not bad




quelling that there was prison officials’

i. Severity of the crime at issue ii. Whether the suspect poses an immediate threat to officers or others iii. Whether suspect actively resisting arrest or trying flight b. Persons convicted of crimes, who generally raise 8th amendment claims (cruel and unusual punishment) (1) Medical Need (Estelle) (a) Objective Test (b) Deliberate Indifference to serious medical need i. Protects prison official who did not know of the harm that occurred (c) Estelle has been interpreted to apply to all prison condition cases (2) Malicious Force (a) Malice is central element of 8th amendment claims (b) Standard: whether force was applied in a good faith effort to maintain or restore discipline or maliciously/sadistically to harm (Hudson/Whitley) i. Whitley factors as to whether officer acted maliciously in riot (court also noted a need to defer to judgment) aa. The need for force bb. Relationship b/w need and force that used cc. Extent of injury inflicted dd. Extent of threat to safety of staff/inmates

ee. Any efforts made to temper the severity of the response ii. Hudson: P must show something more than a minimal injury; only one factor in determining malice. c. A catch all “substantive due process” 14th category of those not covered under a or b; includes pretrial detainees who remain in custody after the arrest in completed, persons confined in mental institutions, and persons kept in custody after the expiration of their criminal sentences. Substantive DP generally been limited to matters relating to marriage, family, and the right to bodily integrity (Albright v Oliver): (1) Standard is deliberate indifference (2) Excessive Force Arguments under 14th amendment: Official’s action must shock the conscious because of the exigent circumstances; use if person did not have time to be deliberately indifferent (County of Sacramento v Lewis) 2. Farmer v Brennan: Determining whether prison officials are deliberately indifferent is a subjective test; harder to meet than traditional malpractice standard but easier than the Lewis shock the conscience standard. Substantive DP case. 3. Estelle v Gamble: held that 8th amendment forbids prison officials from ignoring the serious medical needs of inmates. Inmates can recover damages if they can show deliberate indifference to their medical needs. Whether the actions were reasonable is determined by an objective standard (i.e what a reasonable doctor would have done) 4. Under Farmer standard, courts require the plaintiff to show an especially high level of knowledge of risk to the prisoner on the part of prison officials in order to meet deliberate indifference test (Webb v Lawrence County)

as a Hospital) E. Equal Protection Claims: 5th amendment guarantees EP by federal govt (14th for states). Generally arise when P alleges that state actor treated her differently because of her membership in some protected class 1. Village of Willowbrook v Olech: Equal Protection claims can be brought on behalf of a “class of one” where the P alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Disparate treatment does not rise to violation of EP F. Other BOR Cases 1. Claim is based on 14th amendment if suing state actor. Many of the rights in BOR have been incorporated in 14th amendment DP clause such that they are applicable against the states 2. 4th Amendment Cases a. Graham: all claims that law enforcement officers have used excessive force in the course of seizure of free person should be analyzed under 4th amendment objective reasonableness standard (officer’s underlying intent or motivation is irrelevant; should only look at whether the search or seizure was objectively reasonable under all the circumstances surrounding it as judged by a reasonable officer on the scene). Includes severity of crime at issue, safety of officer and others, and whether actively flighting. 3. Public employee speech a. Connick v Meyers: In right to free speech 1983 cases, court looks to.:

5. Courts have also held that officials can take into account their subjective belief as to prisoner’s ability to protect himself (Williams v Nebraska State Pen) 6. Rights of pretrial detainees are governed by substantive DP and are entitled to at least as great a level of protection convicted inmate (City of Revere v Mass General

the EE to prove by the same

usually not circumstances). content, form, and as revealed by the

court of the disrupting the efficient workplace.

(1) EE must prove that an adverse employment action was motivated by the EE’s speech; if does this, the burden shifts to the ER a preponderance of the evidence that action would have been taken anyways (2) Whether the speech is one addressing a matter of public concern (if not public concern— federal issue unless extraordinary (a) Court looks to the context of a given stmt, whole record (b) EE can still lose if speech was matter of public concern under Connick; where stated that court must balance value speech against its potential for and otherwise interfering w/ operation of the (c) Two situations where speech on a public concern is not protected: aa. Employment relationships that require confidentiality bb. Employment relationships that require harmony because of work ii. Courts must show why deference to employer’s judgment when a relationship fulfilling (d) In Waters v Churchill, O’Connor said that the trier of fact should accept ER’s account of what was said so long as it was to do so. Court should side w/ the ER as the ER acted reasonably in information about what was

nature of

close working is essential to public responsibilities

reasonable so long obtaining

said and so long reasonable

as the ER’s belief is (3) Must balance EE’s free speech rights against the employer’s interest in the efficient of the office b. Constitutional tort claims based on “retaliation” elements (Mattox): (1) That the P was engaged in a constitutionally protected activity (2) That the D’s adverse action caused the P to suffer an injury that would likely chill a ordinary firmness from continuing to that activity (3) That the adverse action was motivated at least in part as a response to the exercise of the constitutional right


person of engage in


IV. SECURED BY THE CONSTITUTION AND LAWS AFFIRMATIVE CONSTITUTIONAL DUTIES AND RIGHTS SECURED BY FEDERAL LAWS A. Affirmative Duties 1. Under common law, Government, like private individuals, owes no general tort obligation to help anyone (Riss v City of New York) a. Private individuals: no duty b/c state-imposed duty would seriously impinge upon individual freedom and autonomy b. Public individuals: no-duty rule rests primarily on the need to preserve legislative and executive discretion in the allocation of limited public resources 2. The Supreme Court’s Framework a. Deshaney v Winnebago County Department of Social Services: Government had no constitutional duty to protect child against parent’s violence; its failure to do so does not constitute a violation of the DP clause th of 14 amendment. Creates an act/omission standard. State’s mere knowledge of risk of harm to individual is not enough to impose liability (1) Large number of cases continue to raise issues of affirmative constitutional duties because: (a) State involvement in the affairs of its citizens is pervasive and may induce reliance on government for protection, and other basic services. Thus, demand for affirmative duties remains high (b) Ambiguity within the DeShaney opinion leaves open several doctrinal bases for recognizing such duties. One is the possibility that “special relationships” giving rise to an affirmative constitutional duty of protection might be recognized under other circumstances (2) There is a duty of part of government if P confined

(3) Two circumstances where P not confined where DP violation found: (a) Functional custody by the state i. P must have been involuntarily in state’s custody when harmed ii. Most courts have found that school children are not in functional custody of state even though required to attend school iii. Inhabitants of public housing and state employees found not to be in custody of state (Collins). DP clause d/not impose an independent federal obligation upon municipalities to provide certain minimal levels of safety and security in the workplace. Doesn’t preclude imposition of constitutional liability on state officials who deliberately or intentionally place public employees in a dangerous situation w/o adequate protection (b) Where the state created or increased the danger to which the P was exposed 3. Affirmative duties, state created dangers, and special relationships a. Kneipp v Tedder: Recognizes the state created danger theory in which there can be a constitutional claim under 1983 in that state actors created a danger which deprived an individual of a 14th amendment right to substantive due process. b. State-created danger theory Elements in 3rd Circuit (Mark): (1) The harm ultimately was foreseeable and fairly direct



(2) The state actor acted in a willful disregard for the safety of the plaintiff (3) There existed some relationship b/w state and plaintiff (4) The state actors used their authority to create an opportunity that otherwise would not have existed for the third party’s to occur c. State-created danger theory Elements in 10th Circuit (Ruiz): (1) The charged state actors created the danger or increased the P’s vulnerability to the danger in some way (2) The P was a member of a limited and specifically identifiable group (3) The D’s conduct put the P at a substantial risk of serious, immediate, and proximate harm (4) The risk was obvious and known (5) The Ds acted recklessly in conscious disregard of that risk (6) The conduct, when viewed in total, shocks the conscience d. Courts that have adopted the state-created danger theory will deny claims when: (1) The P fails to present sufficient evidence that affirmative acts by the D created or increased the risk or danger OR (2) The D’s conduct d/not meet the requisite level of culpability e. Courts have held that victims of domestic violence may have a claim against police officers if they can show (Shipp 5th Cir): (1) That a policy or custom was adopted by the Ds to provide less protection to victims of assault than to other assault victims, (2) That discrimination against women was the motivating factor for the defendants AND

(3) That the injury was caused by the operation of the policy or custom B. Section 1983 and federal “laws” 1. Under the terms of Section 1983, suit may be brought not only for constitutional wrongs, but also for violations of federal “laws”. Court adopted “plain meaning” approach. There is only a rebutable presumption that the right is enforceable under 1983 (Maine v Thiboutot) a. Limits to plain meaning approach: (1) 1983 not available if the statute at issue was (not) the kind that created enforceable rights under section 1983 OR (a) Look to Blessing factors found in Gonzaga (2) Congress had foreclosed private enforcement of the statute on which the P sought to base the substance of the lawsuit (a) Expressly done by Congress OR (b) Impliedly by creating comprehensive enforcement scheme which is incompatible with individual enforcement 2. Gonzaga University v Doe: a. Factors looked at to determine whether or not a statute confers a right under Blessing (“Rights Creating Language” (harder to prove #2 from Thiboutot) (1) Congress must have intended that the provision in question benefit the plaintiff, (2) The plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial resources AND (3) The provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms. b. No requirement for P to show an intent by Congress to crate a private remedy for the right because 1983

rights demonstrates right, the right is (Maine v Thibetout) c. Requires that if Congress wants to create new rights enforceable under 1983, it must do so in clear and unambiguous terms—no less and no more than what is required for Congress to create new rights enforceable under an implied private right of action.

generally supplies remedy for vindication of secured by federal statutes. Once a P that a statute confers an individual presumptively enforceable by 1983

V. EVERY PERSON: GOVERNMENTAL LIABILITY A. What governmental bodies are persons? After Monell, all local governmental bodies, whether general or special purpose, are persons. In contrast, state governments 1. The Prior Law Under Monroe: a. Governmental bodies were not “persons” within meaning of 1983 b. Court relied heavily on legislative history 2. The Change in Monell v Department of Social Services a. A local government cannot be sued under 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under 1983. b. Cannot be held liable under respondeat superior; can only be held liable if acting pursuant to policy or custom (1) An official policy or custom may be made by lawmakers or by those whose edicts or acts may fairly be said to represent official policy (2) Local governmental liability can be premised on the unconstitutional conduct of those “whose edicts or acts may fairly be said to represent official policy”. th c. Under 11 amendment, states are immune to suit unless consented to by state or waiver of immunity (1) Consent must be express (2) Waiver of sovereign immunity in state court not a waiver to immunity in federal court d. Under Pennhurst, the 11th amendment bars prospective relief against state officials acting in their official capacity 3. The status of states as “persons”: Will v Michigan Department of State Police:

a. Neither a state or its officials acting in their official capacities are “persons” under 1983. b. Cannot sue state officials within their official capacity because these types of suits are considered suits against states themselves, which is barred by Will c. Does not change rule that state officials can be sued for damages under 1983 in their individual capacities. In this case, the defendants may be personally liable but the state is not directly implicated. d. Territories, like states, are not suable persons under 1983 (Ngiraingas v Sanchez) (1) No note by court regarding territory officials being sued within their official capacity B. The Immunities of governmental bodies 1. Qualified Immunity and Compensatory Damages: a. Owen v City of Independence, Missouri (a) Municipalities have no immunity from damages liability flowing from their constitutional violations (b) Court’s decision allocates equitable loss among three principles in a 1983 scenario: (1) The victim of the constitutional deprivation is assured that he will be compensated for its injury (2) The officer whose conduct caused the injury, so long as he conducts himself in good faith, may go about his business secure in the knowledge that a qualified immunity will protect him from personal liability for damages that are more appropriately chargeable on the populace as a whole (3) The public, as represented by the municipal entity, will be forced to bear only the costs of injury inflicted by the “execution of a government’s policy or custom, whether made by

its lawmakers or by those whose edicts or acts may fairly be said to represent official policy 2. Local Governments’ Absolute Immunity from punitive damages (City of Newport v Fact Concerts). Court based decision on following: a. CL background suggested absolute immunity from punitive damages b. The legislative history of 1983 did not indicate Congressional rejection of this CL background c. Looked at objectives of punitive damages. Court found that compensatory damages against local governments provided sufficient incentives for their constitutional compliance and that punitive damages awards against officials and employees are an adequate means of deterring them. A different result would create serious risks to the financial stability of local governments by exposing them to unpredictable punitive damages awards at the hand of juries C. How does one sue a governmental body? 1. Pleading requirements: a. Leatherman v Tarrant County Narcotics Unit: Rejected the heightened pleading standard. (1) There must only be a short and plain statement of the claim that will give the D fair notice of what the P’s claim is and the grounds upon which it rests. b. Leatherman rule has been extended to apply to government officials sued in their individual capacities (Goad v Mitchell) 2. Individual and Official Capacity Suits a. Individual capacity suit: P is seeking to impose personal liability upon govt official for actions he takes under color of state law (1) Qualified immunity may be available b. Official capacity suit: P is seeking to recover compensatory damages from the governmental

body as the type proof of cause of the

itself. Equivalent of naming the govt entity itself D and requires the P to make out an Monell an official policy or custom, as the constitutional violation. (1) Failure to expressly state that the official is being sued in his individual capacity may be construed as an intent to sue the D only in his official capacity (2) No qualified immunity available 3. The Requirement of a Constitutional Violation: Heller a. Local government liability must be premised on a constitutional violation by someone b. Case only applies if there was a determination that no constitutional violation occurred st D. The 1 Route to Government Liability: The Government Itself Acts 1. Formal Official Policy: a. Examples: (1) Policy Statements (2) Ordinances (3) Regulations b. Does not matter whether the policy or decision is general and in the form of an ordinance or regulation, or is specific and particularized, affecting only one or a few individuals 2. Custom: a. A de facto official policy, which differs from official policy in that there is no formal evidence of its establishment b. Local governments can also be held liable under custom E. The Second Route to Governmental Liability: Attribution Through Policymakers 1. The Court’s First Encounter with Attribution: Pembaur v City of Cincinnati a. Court looked to state law to determine whether prosecutor had authority to create municipality policy b. Single decision by official with policy making authority could be attributed to the govt itself under certain

circumstances. Only attaches where official has final authority to establish the policy with respect to the action ordered (whether the official has this authority will be determined by state law) 2. The Court’s Second Encounter With Attribution: City of St. Louis v Praprotnik: a. Reinforced idea under Pembauer that policy making power will be determined by state law; not question for jury b. Also reinforced the finality of the decision as important c. When an official’s discretionary decisions are constrained by policies not of the official’s making, those policies actually reflect the municipality actions, not the discretionary act. 3. Jett: Court stressed that id of final policy maker authority is to be determined by trial judge prior to going to jury. Should look at custom/usage and standard operating policy. 4. Policymaker for which entity, the local government or the state?: McMillian v Monroe County, Alabama: An official may be a state official for some purposes and local official for other purposes. In this case, county sheriff is not a final authority for the county. Again emphasized importance of state law giving authority final authority; look to both actual authority conferred and also functions of the official, as described by state law. Sheriffs may be policy makers in some states and not policy makers in others F. The Third Route to Governmental Liability: Failure to Train 1. Failure to Train and Single Incidents 2. City of Canton, Ohio v Harris: Rejected argument that municipal liability can only be opposed when policy is unconstitutional. Failure to train can be used for 1983 liability only when there failure to train amounts to deliberate indifference to the rights of persons with which the police come into contact. To establish liability: a. Deliberate Indifference b. Training insufficient c. Causation

3. Single Hiring Decisions by Policymakers: Board of County Commissioners of Bryan County, Oklahoma v Brown: Distinguished this claim from a claim that a particulate municipality action violates law or directs an employee to do so. Can only prove if: a. Adequate scrutiny of applicant background would lead a reasonable policy maker to see a plainly obvious consequence of decision to hire with deprivation of particular federal right of a third party b. Deliberate Indifference applies 4. Supervisory Liability and Deliberate Indifference after City of Canton and Farmer: a. Supervisory liability runs against individual; doesn’t require any proof of official custom/policy as the moving force behind the conduct, is based on his/her personal responsibility for violation G. Ethical Considerations 1. Dunton v County of Suffolk, State of New York

VI. “SUBJECTS OR CAUSES: TO BE SUBJECTED…”: CAUSATION A. Cause in Fact: Most 1983 opinions employ the but for test to determine CIF. The D’s conduct may be considered the cause in fact of the P’s injury if the harm would not have occurred “but for” the D’s unconstitutional conduct 1. Mixed Motives a. Mt. Healthy City School District Board of Education v Doyle (1) Two part test: i. P must show by a preponderance of evidence that the adverse action was motivated in substantial part by unconstitutional factors/motives ii. Burden shift: D must show it would have taken the same action if no unconstitutional factor/motive b. Texas v Lesage: Reaffirming part two of Mt. Healthy test 2. Governmental and Supervisory Liability a. Allen v Muskogee (1) Failure to train found where need for training is obvious (2) Obvious under these circumstances; court found need for different training where city trained its officers to leave cover and approach armed suicidal, emotionally disturbed persons and try to disarm them—a practice that was contrary to proper police procedures and tactical principles (3) This case represents the type of case where a violation of federal rights may be a highly predictable consequence of failure to train officers to handle recurring situations w/ an obvious potential for such a violation (4) Court found that liability may be found because: the likelihood that officers will

emotionally upset officers attempt to violent that the city’s officers reflected obvious choice. The likelihood of of police action also of causation—that the directly to the very was so predictable B. Proximate or Legal Cause 1. Remote Consequences a. Martinez v California: cannot find causation if too remote a proximate cause from parole hearings. Proximate cause is question of policy 2. Intervening Acts a. Townes v City of New York: (1) The chain of causation b/w a police officer’s unlawful arrest and a subsequent conviction and incarceration is broken by the intervening exercise of independent jx (a) Exception: if there is evidence that police officer misled/pressured the official who could be expected to exercise independent jx

frequently have to deal w/ armed persons, and the predictability that trained to leave cover, approach, and disarm such persons will provoke a response, could justify a finding failure to properly train its deliberate indifference to the consequences of the city’s a violent response to this type may support an inference city’s indifference led consequence that

VII. “EVERY PERSON”: ABSOLUTE IMMUNITY A. General Concepts: 1. If the challenged action by a state official is a judicial, quasijudicial, prosecutorial, or legislative function, absolute immunity shields the official from having to pay damages for alleged constitutional violations 2. As an affirmative defense, absolute immunity only applies when a govt official performs one of these functions 3. The immunity does not attach to the office, but rather to certain functions performed by the official 4. AI doesn’t bar injunctive relief, except for the exceptions noted in legislative and judicial immunities 5. 1983 doesn’t on its face refer to immunity, the SC has recognized both absolute and qualified immunity as a defense by ascertaining Congress’ intent to provide immunities. 6. Individual sued in their official capacities only are not entitled to assert individual immunity defenses 7. Rationales behind absolute immunity are as follows: a. The fear of damages may chill an official’s exercise of discretion b. The process of defending civil rights claims may divert the official’s attention from his/her duties B. Court has limited application of AI defense by applying a two-part standard: 1. The Court considers whether CL recognized an immunity 2. If it did, then the Court questions whether the history/purpose of 1983 supports applying the CL immunity a. Even if congress intended AI to apply to a given function, courts still must questions whether the challenged action was legislative, judicial, quasi0judicial, or prosecutorial C. Absolute Legislative Immunity 1. When officials perform legislative functions, they receive the broadest protection available under 1983 because AI bars both injunctive relief and damages awards 2. Tenney v Brandhove (seminal case):

a. State legislators performed protected legislative functions when they served on investigative committees b. “Investigations, whether by standing or by special committees, are an established part of representative govt”. c. Court found that legislators’ self-discipline and voters’ ability not to reelect legislators were adequate checks on abuse of legislative power. 3. The Functional Approach of Lake Country Estates: Local and Regional Legislators a. TRPA’s decision regarding land use was a legislative act based on the following factors: (1) TRPA agency created by state of CA and Nevada with the approval of Congress (2) The agency’s purpose was to create a regional plan for “land use, transportation, conservation, recreation, and public services b. Court found that AI applied even though there was no CL immunity for such an entity and all of the members were appointed, not elected 4. Local legislators are entitled to AI for their legislative activities (Bogan v Scott-Harris). 5. Types of relief granted: a. AI bars both injunctive and monetary relief b. Prospective Relief (1) No prospective relief granted (Supreme Court v Consumers Union). Court emphasized on the action performed, not the job description of the actor C. Absolute Judicial Immunity 1. The Common Law Immunity Background in 1871: Bradley 2. Pierson: Judicial functions of determining guilt and sentencing a criminal D are protected by AI. Ct Reasoning: a. CL of 1871 supported immunity b. Policy behind 1983 was not to deter judges from performing their jobs

c. AI necessary to protect judicial system d. Remedy for judicial errors is an appeal; not a 1983 lawsuit for damages 3. Definition of “judicial actions” (Stump v Sparkman): a. AI applies to actions taken by judges “in excess of their authority” (1) EX: Judge w/ jx over criminal matters convicts a D of a non-existent crime b. Not judicial action if action was in the “clear absence of jx” (1) EX: Probate judge who has jx only over wills tries a criminal case c. Must ask whether the action is one normally performed by a judge, what are expectations of party (do they believe they are dealing w/ judicial authority) 4. Not all actions by judges may be protected by AI. (a) Administrative Acts (protected only by QI) (1)Judge firing probation officer = administrative function (Forrester v White) (b) Quasi-judicial acts: (1) Court reporter’s failure to timely produce a transcript not immune (2) Judge’s decisions at admin hearings immunity 5. A note on Witness Immunity and its connection to absolute prosecutorial immunity: Briscoe 6. Injunctive Relief: Congress amended 1983 to prohibit injunctive relief unless “declaratory relief was violated” or unavailable 7. Prospective Relief: a. Judges not protected from prospective relief (Supreme Court v Consumers Union). In the Consumers Union case, court held that the VA Supreme Ct and its Chief Justice could be sued under 1983 for injunctive relief in their capacities as enforcers of the VA Supreme Court’s disciplinary rules for lawyer advertising, which rules had been challenged on 1st amendment grounds. However, could not be sued for injunctive relief in its legislative capacity in

promulgating the challenged rules or in its judicial capacity in adjudicating the constitutionality of the rules. b. Applies even to judicial acts engaged in w/ unquestioned jx. However, judges not absolutely immune from injunctive relief. Lack of AI from injunctive erelief for judicial actions, as compared to immunity from damage suits would not have a chilling effect on judicial independence (Pulliam v Allen). Justifications: (1) No injunctions against judges in CL (2) However, court found a parallel in collateral relief available against judges through the use of “the King’s prerogative writs”, especially prohibition and mandamus (3) Had never declared an absolute judicial immunity rule for prospective relief (4) Prevailing approach in circuits was that there was no such immunity (5) Absence of immunity had not had a “chilling effect” on judicial independence (6) Article III limitations on injunctive relief against a judge, along with equitable requirements in general, assured that injunctive relief against judges would be sparingly granted, and provided sufficient safeguards of comity and federalism (7) No indication that Congress, in enacting 1983, intended to provide absolute judicial immunity from prospective relief; instead, legislative history says the opposite D. Absolute Prosecutorial Immunity 1. Imbler v Pachtman: Prosecutors are AI when performing acts intimately associated w/ judicial phase of criminal case. 2. Burns v Reed: The Prosecutor as Legal Advisor: a. Extended AI to probable cause hearing b. Only gave QI to prosecutor giving advice to police

3. Kalina v Fletcher: The Prosecutor as Applicant for an Arrest Warrant: Court didn’t refer to absence of PC. Prosecutor had AI to filing two unsworn affidavits but did not have immunity as acting as a complaining witness when filing for arrest warrant 4. Immunity only for damages; not for prospective relief 6. Advocative v Investigative (Buckley v Fitzsimmons): Prosecutors accused of fabricating evidence for the purpose of creating PC to arrest were not protected by AI. Several factors in addition to absence at CL of PI for such conduct: (a) The challenged conduct occurred prior to the existence of PC to arrest (b) Such conduct was identical to that ordinarily engaged in by police officers E. Procedural Aspects of Absolute Immunity 1. The Burden of Pleading: best for parties to give notice pleading

VIII. “EVERY PERSON”: QUALIFIED IMMUNITY: A judicially created doctrine that recognized the CL immunity of public officials for their “good faith” actions. A. The affirmative defense of QI may provide officials with two types of protection: 1. Defense to liability when the actions allegedly taken by officials did not violate clearly established laws. a. If the law was not clearly established at time of injury, the D has use of this defense; however, P can still get injunctive relief 2. May provide officials with an immunity from suit by relieving them from the burdens of both discovery and trial B. The Origins of Qualified Immunity 1. Pierson v Ray: a. Two-part test QI test: (1) Good Faith (2) Probable Cause C. The Transformation of Qualified Immunity 1. Harlow v Fitzgerald: a. Did away with subjective so could dispose of case in SJ b. New standard: Did D’s conduct violate clearly established constitutional law? 2. Modern Day QI Test: a. Whether an official can be held personally liable for taking an allegedly unlawful action turns on the “objective legal reasonableness” of the action, assessed in light of the legal rules that were “clearly established” at the time the action was taken (Harlow) b. To be clearly established, the “contours” of the right allegedly violated must be sufficiently clean that a reasonable official would understand what he/she is doing violates that right (Anderson v Creighton) c. Court must determine whether the law, as applied to a specific factual situation, was clearly established in such a way that the officials involved should have known that their decision or actions violated

constitutional rights or federal law. Simple negligence is not enough. 3. In Mallay and Creighton, the court addressed 4th amendment claims and explained that “clearly established” law doesn’t refer to general principles of law. Court found that QI exists if a reasonable officer under the same circumstances would have known his actions to be illegal. This is a question of law for the courts to decide. a. Mallay v Briggs: (1) Established a two-tier standard of reasonableness (2) Should use objective good faith standard; asks whether a “reasonably well-trained officer” with reasonable knowledge concerning “what the law prohibits” would have know that the challenged action violated the 4th amendment. b. Anderson v Creighton: Could reasonable officer reasonably believe his actions were reasonable under clearly established law in the context then known to the officer. If there is a legitimate question as to the unlawfulness of the conduct, QI applies. (1) Addressed reasonableness std in the 4th amendment context 3. U.S. v Lanier on Anderson: The Fair Warning Standard a. Cannot just argue that 4th amendment is clearly established law; must actually have determination by law that the specific facts of the case rise to the alleged constitutional violations 4. Siegert: injuries which merely flow from damage to P’s reputation such as future employment opportunities not enough to satisfy stigma plus test D. The Clearly Settled Law Inquiry 1. What is the clearly settled law?: Hope v Pelzer: there are some actions that are so clearly unconstitutional that should not have to show clearly established law 2. Whose decisions determine clearly settled law? Wilson v Layne

3. Are some constitutional violations automatically violations of clearly settled law as well? Saucier v Katz: 4th amendment “Reasonable” standard and QI “reasonable” standard must both be met—separate issues. E. Procedural aspects of qualified immunity 1. Burden of proof and clearly settled law 2. The Roles of Courts and Jury in the Qualified Immunity Determination Hunter v Bryant: Jury questions is not whether there was probable cause, but rather was there evidence that reasonable belief that there was probable cause a. Three categories (1) Did clearly settled law exist at relevant time (judge) (2) What actually happened (jury) (3) Whether D acted reasonably under the circumstances under the clearly established law (judge or jury) b. If the court finds that there is a material questions of fact, SJ must be denied so that jury can decide what facts occurred. At that point, the D files for a directed verdict so that judge can apply the facts found by the jury to the law. If motion for directed verdict is denied, instruction to jury should be that if you find _____, you will find no liability. If you find _____, then there is liability 3. Interlocutory Appeals a. Mitchell v Forsyth: If a motion for SJ based on QI us denied, must allow to be appealed; if not, the immunity would be worthless b. Johnson v Jones: Cannot appeal QI SJ based on the facts F. Who is protected by qualified immunity? 1. The status of private persons who act under color of state law a. Wyatt v Cole: Policy reasons for allowing QI for government officials. If there are private individuals, not as many policy considerations to be

concerned with. Court also looked towards CL; could get good faith defense but not QI 2. Tension with the functional approach? a. Richardson v McKnight: private management prison guards not entitled to QI because of certain policy considerations such as the fact that market will ensure that guards are doing their job G. Motions for SJ Before and After Discovery 1. Official may raise QI defense in SJ pursuant to Federal Rules of Civ Pro 56(c) both before and after discovery. Under Rule 56(c), SJ is permitted if there are no disputed material facts and the person is entitled to jx as a matter of law. 2. SJ motions are before discovery are possible because QI is an immunity to suit in some circumstances. 3. Under Harlow, discovery is not to occur if P has not established a violation of clearly established law.

IX. “SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN EQUITY OR OTHER PROPER PROCEEDING FOR REDRESS”: CONSTITUTIONAL TORT REMEDIES A. Damages 1. Compensatory Damages a. While state CL tort concepts are a good starting point when looking at compensatory damages, the court should apply broad and consistent tort damage standards rather individual state damages ideas, as they change from state to state b. Compensatory damages generally fall into one of three categories: (1) Special: specific pecuniary loss such as lost wages, medical expenses, and loss of earning capacity (2) General: emotional distress and compensation for physical pain (3) Nominal: violation of a right w/ no proven actual injury b. When determining whether to apply state or federal rules (from 42 USC 1988) (1) First look to federal laws “so far as such laws are suitable to carry (1983) into effect” (2) If no suitable law, court looks to state common law, as modified and changed by constitution and statutes of forum state. (3) Courts are only to apply state law to the extent that it is not inconsistent w/ constitution and laws of US c. Court stresses that 1983 creates “a species of tort liability” and held that “the basic purpose of a 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights”. Although mental and emotional distress caused by the denial of PDP, is compensable under 1983, neither the likelihood of the injury nor the difficulty of proving it so great to justify awarding compensatory damages w/o proof that such injury actually was caused.

Therefore, actual damages will not be presumed in PDP case and without proof of damages, P will only be entitled to nominal damages not to exceed $1. d. CL tort principles that cts have applied to 1983 claims: (1) Ps are entitled to nominal damages even if no actual damages (Slicker v Jackson 11th) (2) Obligation to take reasonable steps to mitigate damages (3) Payments received from collateral sources don’t count against P recovery (4) Spouses of const. tort victims entitled to recover consortium e. Presumed Damages: Memphis Community School District v Stachura: Presumed damages are a substitute for ordinary compensatory damages, not a supplement for an award that fully compensates the alleged injury. When P seeks compensation for an injury that is likely to have occurred but difficult to establish, some form of presumed damages may possible be appropriate. Damages based on the abstract “value” or “importance” of constitutional rights are not a permissible element of compensatory damages in 1983 suits. (1) Presumed Damages in Defamation Cases: The rationale for presumed damages in this area of law is that the harm done to one’s reputation by a defamatory publication, especially a writing that is defamatory on its face, will be difficult to trace. Therefore, effective compensation for the injury would be thwarted if P required to offer proof of actual harm (Dun & Bradstreet, Inc. v Greenmoss Builders, Inc). i. Supreme Court has limited presumed damages: if the SM of the defamation is of public concern or the P is a public figure or public official, they may be awarded only upon a showing that D

knew the stmt was dales or acted w/ reckless disregard of its truth or falsity f. As in CL, damage awards in 1983 cases are reviewable by the trial judge and appellate cts for excessiveness (Knussman v Maryland 4th) and may also overturn for inadequacy (Preyer v Slavic 3d) g. P is entitled to one full recovery, no matter how any defendants he successfully sues (Watts v Laurent th 7 ) h. It is permissible for 1983 P to recover both state tort claim and constitutional claim w/o finding that jury has granted double recovery (Berry v Oswalt) i. P’s testimony, standing alone, can support an award for emotional distress—there is no requirement of a high degree of specificity (Bogle v McClure 11th); circuits are divided on this (see p. 540-541) (1) Prisoners cannot bring claim for mental/emotional injury suffered while in custody w/o prior showing of physical injury (Herman v Holiday 5th) 2. Punitive Damages a. In order to find for punitive damages, the trier of fact must find that the D acted with “evil motive or intent” or “Reckless or callous indifference to the federally protected rights” of the P. The goal of punitive damages in 1983 suits is deterrence of unconstitutional conduct (Smith v Wade). b. As in compensatory damages, federal law governs availability of punitive damages in a federal civil rights case c. Available whether or not compensatory damages are awarded, and this doesn’t vary based on law of state where trial takes place d. Punitive damages are not awarded jointly and severally but must be specifically considered and awarded as to each D e. Cannot be awarded against local govt units (City of Newport v Fact Concerns, Inc.)

3. Survival, Wrongful Death, and Other Damages Issues Ordinarily Addressed by Statutes a. Where 1983 doesn’t provide suitable remedies for constitutional violations, federal courts are instructed to turn to state law “so far as the same is not inconsistent with the Constitution and laws of the United States”. b. Should civil rights survive the death of the P or D? (1) Robertson v Wegmann: Inconsistency b/w state and federal law in this case. Court finds nothing in 1983 language or underlying policies to indicate that state law causing abatement of a particular action should be ignored in favor of a rule of absolute survivorship. Court does not see how 1983’s policies would be undermined if Shaw’s action were to abate b/c of his death. Court states that this is a very narrow ruling. State law controls as regards survivorship so long as those laws are not generally inhospitable to survival of 1983 actions and has no adverse effect on the policies underlying 1983 actions. c. Court has not come to a definitive answer as to whether wrongful death claims may be pursued under 1983: (1) Carlson v Green: distinguished facts from Robertson because prisoner died allegedly because of unconstitutionally inadequate medical care. Under that state’s law, suit would not survive his death. Court found that claim should survive P death in this scenario. (2) Berry v City of Muskogee: Court finds that supplementing a state survival action w/ a state wrongful death action d/not satisfy the criteria of 1988 for borrowing state law. The federal cts must fashion a federal remedy to be applied to 1983 claims. The remedy should be a survival action, brought by the estate of the deceased victim, in accord w/ 1983’s express stmt that the liability is “to the party injured”

B. Prospective/Injunctive Relief 1. City of Los Angeles v Lyons: absent a sufficient likelihood that the P will again be wronged in a similar way, P is no more entitled to an injunction than any other citizen of L.A. If he has suffered an actual injury, he will then be able to sue under 1983 2. To obtain injunctive relief in federal court, a P must demonstrate “the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law” (O’Shea v Littleton) 3 Following Lyons, appellate courts have found standing to seek injunctive relief where the conduct to be enjoined has been authorized by policy or practice. 4. In order to find “official authorization” to satisfy Lyons standard, cts should look to cases interpreting the scope of “official policy or custom” in the context of asserting claims for damages against a governmental unit.

XII. ATTORNEY’S FEES A. The Civil Rights Attorneys’ Fees Awards Act of 1976 provides that a prevailing party in actions brought under specified civil rights statutes, including 1983, may be entitled to an award of attorneys’ fees as part of the cost of litigation.

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