Constitutional Torts Outline

7/31/2019 Constitutional Torts Outline

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CONSTITUTIONAL TORTS OUTLINE

SPRING 2005

TIMMONS

I. Introduction to constitutional tortsA. Definition: Actions brought against governments and their officialsand employees seeking damages for the violation of federalconstitutional right, particularly those arising under the 14thamendment and the Bill of Rights. Note: the only people who canviolate your constitutional rights are government employers.

Constitution only limits governmental power, not individual (exceptionis 13th amendment prohibiting slavery). Bill of rights not applicable to

the states directly; have to look to the 14th amendment (1st, 4th,

5

th

, 6

th

, and 8

th

) 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 orTerritory or the District of Columbia, subjects, or causes to besubjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, orimmunities secured by the Constitution and laws, shall be liable tothe party injured in any action brought against a judicial officer for anact or omission taken in such officers judicial capacity, injunctiverelief 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 Columbiashall 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 ofany civil action authorized by law to be commenced by any person; (3)To redress the deprivation, under color of any State law, statute, orordinance, regulation, custom or usage, of any right, privilege orimmunity, secured by the Constitution of the United States or by anyAct of Congress providing for equal rights of citizens or all personswithin the jurisdiction of the United States. (b) For purposes of thissection: (1) the District of Columbia shall be considered to be a Stateand (2) any Act of Congress applicable exclusively to the District ofColumbia shall be considered to be a statute of the District ofColumbia.


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D. Purposes of Section 1983:1. Supreme Court: Section 1983 opened the federal courts to

private citizens, offering a uniquely federal remedyagainst incursions under the claimed authority of state law

upon rights secured by the Constitution and laws of the Nation2. To interpose the federal courts b/w the states and thepeople, as guardians of the peoples federal rightsto

protect the people from unconstitutional action under colorof state law, whether that action be executive, legislative,or judicial. (Mitchum v. Foster)

3. Court indicated that section 1983 was designed both toprevent the states from violating the 14th amendment andcertain 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 abusedtheir positions still acted under color of law. Do not need to show thatthere was authority under state law, custom or usage. Instead, misuseof power possessed by virtue of state law and only because individualis clothed with power because of state law means under color of state

law1. 1983 should be read against backdrop of tort law but there isno intent requirement for 1983 actions2. Municipalities are not persons under 1983only 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 damagesneed not exhaust or pursue state judicial remedies

before filing in a federal forum.2. Habeas Corpus: Prisoners, like other 1983 plaintiffs, need notexhaust state judicial remedies

a.: A prisoners 1983 challenge to the fact or duration ofhis or her confinement is in substance a petition

for habeas corpus and must be treated as such byfederal courts. Because federal habeas corpusstatute requires exhaustion of state remedies, theeffect would be the dismissal of the claim in federalcourt. (Preiser v. Rodriguez)


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b. In order to recover damages for unconstitutionalconviction or imprisonment, or for other harm

caused by actions whose unlawfulness would render aconviction or sentence invalid, a 1983 plaintiff must

prove that the conviction/sentence has beenreversed on direct appeal, expunged by executiveorder, declared invalid by a state tribunal authorizedto make such a determination, or called into questionby a federal courts issuance of a writ of habeas corpus. (Heckv. Humphrey)

3. Due Process: in certain cases, a decision adverse to aplaintiffs 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 Psought relief from being listed as an active

shoplifter by police authorities. Court held that noliberty or property interest was implicated;plaintiffs sole remedy was an action for defamation instate courts. Court did indicate that an official might beliable for consequences of defamatory stmts if Pcould demonstrate that he had suffered stigma plus aninfringement of some other interest. A P must alsoshow a distinct alteration or extinction of a previouslyrecognized right or status (Paul v. Davis)

b. Procedural DP is not violated when school authoritiesimposed corporal punishment on students b/c

students against whom excessive force was usedwould have a tort COA in the state courts. (Ingraham v.Wright)

c. In certain circumstances, intentional deprivations ofproperty do not violate procedural DP where

adequate post-deprivations of remedies are available.(Hudson v. Palmer)

4. Prospective Relief and the Younger Rulea. When state criminal judicial proceedings are already

pending, a federal P seeking declaratory or


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injunctive relief against their continuation will typicallybe barred from the federal forum. (Younger v. Harris)

b. Younger rule has been expanded to include suitablerelief against state judicial proceedings b/w

private litigants where important state interestsare implicated (Penzoil Co. Texaco, Inc.) as well aspending state administrative proceedingswhere important state interests are involvedand there is a full and fair opportunity tolitigate any constitutional claims upon state judicialreview of that proceeding. (Ohio Civil Rights Commissionv. Dayton Christian Schools)

G. Constitutional Torts and Exhaustion of Administrative Remedies

1. State administrative remedies, like judicial remedies, neednot be exhausted before maintaining a 1983 action infederal court. (McNeese v. Board of Education)

2. Supreme Court, in 1982, definitively ruled that exhaustion ofadministrative 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. Prisoners 1983 claims are sometimes treated asfederal habeas corpus claims and therefore

becomes subject to exhaustion of state remedyrequirement

b. Prisoners 1983 claim attacking prison conditions andevents unrelated to the fact and duration of

confinement is not subject to an exhaustion ofadministrative remedies requirement

c. Civil Rights of Institutionalized Persons Act (42 USC1997(e)): Congress legislated an exhaustion of

administrative remedies requirement incertain circumstances for personsinstitutionalized in state or local governmentcorrectional facilities.

H. Constitutional Torts of Federal Officials (Bivens): Even thoughfederal officials cannot be sued under 1983, there was an implied COAfor damages under the 4th amendment against federal officials who


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violated federal rights. Bivens actions not available against federalagencies; 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 congressb. Where congress has provided an alternative remedywhich is intended to be a substititute and viewed

as alternative Where there are special factors inabsence of action by Congress

I. The Current Status of Bivens Actions1. Davis v. Passman: Plaintiff had a 5th amendment damages

action against the congressman for his alleged violationof her right to be free from gender discrimination. Court

observed that a damages remedy was appropriate in thiscase because there were no special concerns counselinghesitation; there was no explicit congressional declarationthat money damages should not be available and there was littlelikelihood that the federal courts would be deluged w/claims.

2. Carlson v. Green: Implied an 8th amendment damages actionagainst federal prison officials, even though there was a

damages remedy against the United States underthe 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 Constitution4. Bush v. Lucas: No damage remedy for a federal employee whosued his supervisor for the exercise of his 1st amendment

rights. The federal employment relationship is governedby comprehensive procedural and substantive provisionsgiving 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 notprovided remedy may be enough for court to not allow abivens claim. Although Bivens said where Congresshas provided an lternative remedy, it is only necessary toshow that there exist alternative remedies (blends the two


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is not doing police business, not acting under color of law(Huffman v County of Los Angeles)

d. There is no bright line test for distinguishing personalpursuits from under color of law actions (Pitchell)

2. In cases where officers abuse their position for personalmotives, the courts are mixed3. If officer is suspended as mentally unfit but was permitted

to keep his gun and ammunition and then shoots somebodywith that gun, officer is not considered a state actor (Gibsonv City 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

security guard was directly related to his officialstatusb. If the officer makes no pretense that he is acting

under state authority, court has found not actingunder 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,

court found not acting under color of law (Robinson vDavis)

5. Pretense Approach: Actions of officer so bad that victimcould not have possibly thought he was acting under COL.

6. Courts have found that pretense of authority must be foundin order to bring 1983 suits.

C. Under Color of and State Action1. Lugar v Edmondson Oil Co.: Under color of law should be

interpreted broadly because 1983 created expressly toallow 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 orby 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


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2. When one sues a federal officer under 1983, must show thatfederal 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 andtherefore are not liable under 1983 (Rosas v Brooks)4. National Guard Activities

a. Problems sometimes arise because they have bothfederal and state characteristics

b. 7th Circuit: no set formula to determine whether actedunder color of law. Must look at nature of action and

functional capacity of the actor (Knutson vWisconsin Air National Guard)

c. If two states, with the approval of Congress, create aninterstate compact to carry out certain common laws, theofficials 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 presumptionthat private individual did not act under color of state law

1. Self-Help Remedies: Will be deemed state actor where Dacted in pursuant to statute and acted with overt

involvement of state officiala. Flagg Bros., Inc. v Brooks: Power to seize property is

not an exclusive governmental function. Statemust have required compliance. In order to have anaction, P must show that state delegated an exclusivepower to a private individual.

b. Jackson v Metropolitan Edison Co.: Court held that aprivate utilitys termination of service was not

state action subject to due process constraintsc. Non-state actors doing a traditional government

exclusive function but not relying on a self-helpremedy (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


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the state and the private party. No actual stateinvolvement in the challenged actions.

a. Burton v Wilmington Parking Authority: Look atcompliance and involvement. (1) Did D comply w/

statute and (2) must be overt official involvement(Luger/Flagg). Very fact specific but look forsymbiotic relationship

b. Rendell-Baker v Kohn: Court held that no state actionwhen a private school that received almost all of

its funding from the govt fired a teacher because ofher speech. Court found that test is not whetherschool performs a public function but rather iswhether the function performed has traditionally

been the exclusive function of the state(1) Cites Polk County v Dodson: A public offenderdid not act under color of state law when

performing a lawyers traditionalfunctions.

(2) West v Atkins: 4th Circuit found that personsacting within the bounds of traditional

professional discretion and judgmentdo not act under color of state law. In this case,Atkins was an orthopedic surgeon who hadcontracted w/ state and had treated aprisoner who was not ultimately satisfied w/the treatment.

(3) Calvert v Sharp: Court held that physician thathad worked for private corporation and

contracted w/ state to treat prisoninmates; held that physician did notwork under color of state law.

(4) Kost v Kozakiewicz: A private pharmacy thatsupplies prescription drugs to a state prison

cannot be sued under 1983 if the drugs causedharm to the inmates

c. State Action Doctrine is very difficult because: Thecourt identifies a number of factors that should

figure in the resolution of state action issues but does not


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apply the standards consistently from one case to thenext

d. Black v Indiana Area School District: Private schoolbus service was contracted through school system

and sued because students accused driver ofmolestation. The court held that private company couldnot be held liable under 1983

e. Jackson v Metropolitan Edison Co: Court said thatcomplaining party must show that there is a

sufficiently close nexus between the State and thechallenged action of the regulated entity so that theaction of the latter may be fairly treated as that ofthe State itself. Mere fact that business is regulated

by state, even though extensive regulation, by itselfconvert the actions to state action. Most publicutilities are heavily regulated.

f. Blum and Rendell-Baker factors in determining whethera private actor was engaged in state action:

(1) The entitys 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 function3. 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 mustbe a meeting of the minds between the PP and the state

actor that they will take action to hurt the Pa. NCAA v Tarkanian (1988): Court held that NCAA was a

private entity and therefore did not have toprovide due process before suspending coach atuniversity. Regulating collegiate athletics is an importantfunction but is not a traditional or exclusive functionof state

b. Dennis v Sparks (1980): Concerned the liability ofprivate actors who conspire w/ state officials to

deprive the plaintiffs of constitutional rights. To be


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found to act under color of state law, it is enoughthat the D be a willful participant in joint action w/the state or its agents.

c. Tower v Glover: Court allowed suit when prisoner sued

the public defender that had represented him athis robbery trial, claiming that the public defenderhad conspired w/ state judges and other state officialsto obtain plaintiffs conviction

d. What evidence is needed in order to establish aconspiracy?(1) P must show that Ds reached an understanding

to violate ps rights. No need to produce asmoking gun to establish the understanding or

willful participation, but must show someevidence of agreement b/w ds (Rowe v FortLauderdale)

(2) Participants must share a common objective(Franklin v Fox)

e. Mershon: There must be a mutual understanding or ameeting of the minds b/w the state actor and

private party(1) No need for direct evidence; can use

circumstantial(2) No specific intent to know action is

unconstitutional; just have to show thatjoining in with other to wrong person

f. Most common fact pattern in conspiracy cases aresecurity officers acting in conjunction w/ police

officers.4. Entwinement

a. Brentwood Academy v TN Secondary School AthleticAssociation: Court created new test called

entwinement. Noted a fairness factor.Distinguished from Tarkanian by noting new testcalled entwinement. Very fact specific test. Courtlooked to facts such as the fact that NCAA wasorganization of several state officials, not all ofthem involved with the state of Nevada


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while this case involved only one state,Tennessee.

5. Public Function Exception: can sue a private actor ifhis actions/job/etc. are in performance of a traditional

govt function (must have traditionally been anexclusive functiona. Examples:

(1) Running or regulating schools (Rendall-Baker; Brentwood Academy)

(2) Election Cases (White PrimaryCases)

(3) Management of private property (Marsh)b. Rationales:

(1) Govt should not be able to avoid theconstitution by delegating its task to aprivate actor

(2) There are some acts that seeminherently governmental in nature

c. Tests to determine if private person isperforming a public function:(1) Must be a task that has been

traditionally exclusively been done by thegovernment (Jackson)

d. First case to apply this exception was theMarsh v. Alabama; court found that running a city

is a public function and even though acompany was performing this function, stillconsidered 1983 actionable

6. Entanglement: state action may be foundonly if there is such a close nexus between the state and

the challenged action so that seemingly privateaction 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


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discriminately use preemptorychallenges in criminal cases

(4) Edmundson: Batson applies to privatecivil litigation. Found there is state action is

found when parties use preemptoryactions(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 possibilitythat court, in future, might find a good

enough symbiotic relationsh(2) Courts usually do not find that licensingis enough for state action (see Moose Lodge)

(3) Jacksonc. Government Subsidies

(1) Rendall-Baker: court made clear thatgovernment funding, by itself, is not enough

to prove state action.(2) Blum: just because state helped fund the

nursing homes; nursing home still able tomake own independent decisions.

(3) Absent govt motivation, it is verydifficult to prove state action by funding

argument (ex. of when it does is whenstates provided funding in order to continue

segregation effortsthegovernment is intentionally trying toundermine constitutional rights.


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III. Secured by the Constitution and Laws

A. Four different types of constitutional claims:

1. Equal Protection2. BOR Rights3. Claims based on SDP4. 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 bythe 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 legalentitlement to the benefit

(c) 14th amendment property exists ifstate law (including informal

practices) create a legitimate claim ofentitlement to a benefit (Board ofRegents v Roth/Perry v Sinderman)

(d) What matters in these suits is not theimportance of the benefit to the P

but its nature (Bishop v Wood)(e) Establishing a property interest does notassure that the P will win the case(f) Recognized Property interests:

i. Right to public education (Goss vLopez)

ii A k that guaranteed employmentduring good behavior and

efficient service created aproperty right (Cleveland Bd ofEducation v Loudermill)


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iii Public employees tenure (Gilbert vHomar)

iv Contracts terminable at willtypically do not create property

interest (Eddings v City of HotSprings).v Lower courts have often focused

on Sindermanns legitimateclaim of entitlement to thebenefit. This test is an objectiverather than subjective test

(1) Wojcik v City of Romulus: State createdinterests turn on whether state law

creates a legitimate expectationbenefit.b. Liberty

(1)Old Liberty: composed of CL interests thatthe 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 involvingprisoners

(2) Sandin v Conner: State prisoner raising newliberty claim must point not only to

regulation that enhances the prisoners libertybut must also show that challenged actionimposes atypical and significanthardship to the prisoner in relation to ordinaryincidence of prison life

(3) The main CL interests that receive protection(old liberty):(a) Freedom from confinement and other

restrictions on personal freedomi A pretrial detainee cannot be

placed in segregation as apunishment for a disciplinaryinfraction w/o notice and opportunity tobe heard (Higgs v Carver)


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ii Persons cannot be incarceratedagainst their will on account of

untreated mentalillnesses unless they are dangerous to

themselves or others(OConnor v Donaldson)(b) Security against physical injury

i. Court recognized that 14thamendment liberty embraced

personal security fromphysical pain or injury(Ingraham v Wright)

ii Courts have later found that

liberty claim of a right to bodilyintegrity is within substantiveDP (Wudtke v Daval)

(c) Reputationi Defamation deprives one of liberty

only if it is accompanied by theloss of some substantial benefit or the

imposition of a significantburden (Paul v Davis)

ii Can only claim defamation if Pdisputes truth of defamatory

stmt (Codd v Velger)iii Principle that P must show more

than mere defamation applieseven if speaker knows thedefamatory statements arefalse and intends to harm P(Stiegert v Gilley)

iv Stigma plus doctrine: stigma iscreated by false defamatory

statements that arecommunicated to others and theplus is usually the loss of agovernment job or some other

serious disadvantage


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aa. Stigma: met only by thekinds of statements that

would be defamatory in CLdefamation and perhaps only a

narrower category ofespecially serious charges(aa) Labeling ee as

incompetent notenough bb. Labelingsomeone as dangeroussex offender meets

(bb)Stmt that p unableto drive a motor

coach not enoughbb. Plus Requirement(aa) Loss of employment

opportunities notenough

(bb) Being listed on sexoffender registry

stigmatizingbut not enoughunless some other

disability/disadvantage(cc)Imposing registrationon persons deemed

sexually dangerousenough

(dd) Loss of businessreputation not

enough(ee) Remaining on list of

those eligible toget city contractsnot enough

(4) New Liberty:(a) Sandin Test: direct courts to focus on

whether the action taken against a


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prisoner is an atypical and significanthardship in relation to the ordinaryincidents of prison life

(b) Being removed from home detention and

put into jail is a deprivation underSandin test (Paigemay v Hudson)(c) 514 day confinement in special housing

unit may qualify as a hardship (Tellierv Fields)

(d) 92 days of disciplinary confinementimposes a hardship sufficient to

create liberty interest (Giano vSelesky)

2. Then, consider whether a deprivation of that interestoccurred without DP of law. The state possesses theauthority to deprive plaintiffs of liberty or property so longas it proceeds in the appropriate way. The generalprinciple is that persons faced w/ such a deprivation areentitled to process, which typically means a hearing atwhich they may challenge the deprivation

a Gilbert v Homar: Post-deprivation hearing for asuspension 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 drugsleaves decision to medical professionals(Washington v Harper)

(3) No DP right to an impartial decision maker at apre-termination hearing where the state

provides a full adversarial hearing before a neutraladjudicator after termination

(Locurto v Safir)(4) The Matthews Test:

(a) Private interest that will be affected byofficial action


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(b) Risks of an erroneous deprivationthrough procedures used and the

probably value of any additionalsubstitute procedural safeguards

(c) The states interestc. The Role of State Law(1) Just because the state creates the property

interest, it does not follow that state alsohas control over the question of what dueprocess requires. The court held that thesetwo issues are separate; first, must look as to

whether state has created a propertyinterest and then look at federal constitutional law

rather than state law to determine what processis due (Cleveland Board of Education vLoudermill)

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 thecourt held in Hamilton Bank that a 1983 suitchallenging the propriety of a taking or theamount to be paid shall not be ripe until the stateprocess 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 othercategories, the premise of procedural

protection is that the plaintiff holds a substantiveright. These rights can be taken only oncertain conditions and the point of the DPhearing is to determine whether theseconditions are met. However, the stigma plusplaintiff has no substantive institutional

right to a job. Procedural DP entitles him toa hearing, but the point of the hearing is justto clear his name (Quinn v Shirey). Even if he

is vindicated, he has no constitutional right toreinstatement. Whether P has a substantive DP


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right to recover damages to his reputation is aseparate question

C. Claims based on Substantive Due Process1. Daniels v Williams: A plaintiff seeking to establish a

substantive violation by the D must show a moreegregious state of mind than negligence. Negligence is not anexercise of power.

2. Davidson v Cannon: failure to protect plaintiff from attack inprison after plaintiff complained of threats does not

amount to deliberate indifference3. Municipal governments are not entitled to a qualified

immunity defense based on the reasonable belief of theirofficials that their action was constitutional (Owen v City

of Independence)4. County of Sacramento v Lewis: General principle that asufficiently egregious act by an official may violate

substantive due process, even if no more specific constitutionalguarantee is applicable to the case. In order to win, the P needsto show that the conscience-shocking act does not merely upsethim, but deprives him of 14th amendment liberty orproperty. If a police officer hits another person, there wasforce but no seizure. Test for force used in quelling prisonriots; courts should look to whether force was used in a goodfaith effort to maintain and restore discipline or maliciouslyand sadiciously just to cause harm

5. No recognition of a fundamental liberty interest ingrandparents 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 thisapplies both to cases involving prison officials usingexcessive force and cases involving prison conditions.Imposes duty on prison officials to provide humane conditions.To violate the 8th, prison official must have state of mind ofdeliberate indifference to inmate health or safety. Thistest was subjective recklessness. Must be aware of andconsciously disregard iserious harm to inmate health orsafety. 8th amendment claim means you are in custody


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prior to conviction; if not, would not fall under 8th amendment.If P detainee, the substantive under 14th amendmentapplies. Court adopts test that official must both be aware offacts from which an inference can be drawn that a substantial

risk of serious harm exists and the officer must make thatinference. Court also notes that acts were notpunishment and that 8th amendment only applies to punishment.

Once P shows that D aware of risk; must also show that D didnot reasonably respond.

7. Police Chase Casesa. Even if officer deliberately rams the pursued car at

the conclusion of the chase, Lewis doesnt permitan inference of intent to harm simply because chase

results in injury. Court found in this case that theintent was to do the policemans job (Davis vTownship of Hillside)

b. Court found that complaint could stand when officerengaged in high-speed pursuit of a motorist

suspected only of speeding who sped off after beingstopped (Petta v Rivera)

c. Court found that officer fondling and propositioninghandcuffed suspect shocks the conscious (Fontana

v Haskin)8. Parratt v Taylor: Inmate paid for hobby materials which werethen was lost by prison officials. Applies Matthews factors and

decided that nothing that state can do to prevent such arandom act as the loss of hobby materials. Pre-

deprivation hearing would not be possible. In addition, theplaintiff has the opp to sue under Nebraska tort claim act inorder to recover for hobby material cost

D. Constitutional Rights of Persons in Custody1. Three types of cases:

a. Persons under arrest by the police whose claims arecovered by 4th amendment standard (objective

reasonableness standard). Unreasonableforce claims. Psychological harm can also beactionable (Mcdonald)

(1) Use of force Test


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(a) Did officials seize individual?(1) If not seized but still had

objectively unreasonable force,P could possibly bring claim under

14th

amendment(2) SC tests as to when seizurehas occurredi. Whether the officer by

means of physical forceor show of authority has in someway restrained the liberty ofa citizen (Terry v Ohio)

ii. Whether a reasonable person

would have believed that he wasnot free to leave and he in factasserted to authority

(California vHodari) p. 178

iii. Where there was a govttermination of movement

through meansintentionally applied(Brower v County of Inyo)p. 177

(b) Was force objectively reasonable?(1) Deadly force is objectively

unreasonable (Garner); mustlook to facts of casewassuspect suspected of committingbodily harm and was there awarning given

(2) Non-deadly force: looks at threefactors (Graham); court noted

that these are not the only factors;reasonableness requires

a balancing of interests, givingthe officer some deference becausehave to make split decisions.


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Objective standard. P does nothave to show that officer acted in badfaith.

i. Severity of the crime at issue

ii. Whether the suspect posesan immediate threat tothe officers or others

iii. Whether suspect activelyresisting arrest or trying

to flightb. 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 seriousmedical needi. 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 8thamendment claims

(b) Standard: whether force was applied in agood faith effort to maintain or restore

discipline or maliciously/sadistically tocause harm (Hudson/Whitley)

i. Whitley factors as to whetherofficer acted maliciously in

quelling riot (court also notedthat there was a need to defer toprison officials judgment)

aa. The need for forcebb. Relationship b/w need and

force that usedcc. Extent of injury inflicteddd. Extent of threat to safety

of staff/inmates


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ee. Any efforts made to temperthe severity of the response

ii. Hudson: P must show somethingmore than a minimal injury; only

one factor in determining malice.c. A catch all substantive due process 14th category ofthose not covered under a or b; includes pretrial

detainees who remain in custody after thearrest in completed, persons confined in mentalinstitutions, and persons kept in custody after theexpiration of their criminal sentences. SubstantiveDP 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: Officials action must shock theconscious because of the exigent

circumstances; use if person did not have timeto be deliberately indifferent (County ofSacramento v Lewis)

2. Farmer v Brennan: Determining whether prison officials aredeliberately indifferent is a subjective test; harder to

meet than traditional malpractice standard but easier than theLewis shock the conscience standard. Substantive DP

case.3. Estelle v Gamble: held that 8th amendment forbids prison

officials from ignoring the serious medical needs ofinmates. Inmates can recover damages if they can showdeliberate indifference to their medical needs. Whether theactions were reasonable is determined by an objectivestandard (i.e what a reasonable doctor would have done)

4. Under Farmer standard, courts require the plaintiff to showan especially high level of knowledge of risk to the

prisoner on the part of prison officials in order to meetdeliberate indifference test (Webb v Lawrence County)


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5. Courts have also held that officials can take into accounttheir subjective belief as to prisoners 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 protectionas a convicted inmate (City of Revere v Mass GeneralHospital)

E. Equal Protection Claims: 5th amendment guarantees EP by federalgovt (14th for states). Generally arise when P alleges that state actortreated her differently because of her membership in someprotected class

1. Village of Willowbrook v Olech: Equal Protection claimscan be brought on behalf of a class of one where the P

alleges that she has been intentionally treateddifferently from others similarly situatedand that there is no rational basis for the difference intreatment. Disparate treatment does not rise to violation ofEP

F. Other BOR Cases1. Claim is based on 14th amendment if suing state actor. Many

of the rights in BOR have been incorporated in 14thamendment DP clause such that they are applicable against thestates

2. 4th Amendment Casesa. Graham: all claims that law enforcement officers have

used excessive force in the course of seizure offree person should be analyzed under 4th amendmentobjective reasonableness standard (officers underlyingintent or motivation is irrelevant; should only look atwhether the search or seizure was objectivelyreasonable under all the circumstances surroundingit as judged by a reasonable officer on thescene). Includes severity of crime at issue, safety ofofficer and others, and whether actively flighting.

3. Public employee speecha. Connick v Meyers: In right to free speech

1983 cases, court looks to.:


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(1) EE must prove that an adverse employmentaction was motivated by the EEs speech; if

the EE does this, the burden shifts to the ERto prove by a preponderance of the evidence that

the same action would have been taken anyways(2) Whether the speech is one addressing a matterof public concern (if not public concern

usually not federal issue unless extraordinarycircumstances). (a) Court looks to thecontent, form, and context of a given stmt,as revealed by the whole record

(b) EE can still lose if speech was matter ofpublic concern under Connick; where

court stated that court must balance valueof the speech against its potential fordisrupting and otherwise interfering w/the efficient operation of theworkplace.

(c) Two situations where speech on a publicconcern is not protected:aa. Employment relationships that

require confidentialitybb. Employment relationships that

require harmony because ofnature of work

ii. Courts must show whydeference to employers

judgment when aclose working relationshipis essential to fulfillingpublic responsibilities

(d) In Waters v Churchill, OConnor said thatthe trier of fact should accept ERs account

of what was said so long as it wasreasonable to do so. Court should side w/ the ERso long as the ER acted reasonably inobtaining information about what was


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said and so long as the ERs belief isreasonable

(3) Must balance EEs free speech rights againstthe employers interest in the efficient

functioning of the officeb. Constitutional tort claims based on retaliationelements (Mattox):(1) That the P was engaged in a constitutionally

protected activity(2) That the Ds adverse action caused the P to

suffer an injury that would likely chill aperson of ordinary firmness from continuing toengage in that activity

(3) That the adverse action was motivated at leastin part as a response to the exercise of thePs constitutional right


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IV. SECURED BY THE CONSTITUTION AND LAWS AFFIRMATIVECONSTITUTIONAL DUTIES AND RIGHTS SECURED BY FEDERAL LAWS

A. Affirmative Duties1. Under common law, Government, like private individuals, owes

no general tort obligation to help anyone (Riss v City of NewYork)a. Private individuals: no duty b/c state-imposed duty

would seriously impinge upon individual freedomand autonomy

b. Public individuals: no-duty rule rests primarily on theneed to preserve legislative and executive

discretion in the allocation of limited publicresources

2. The Supreme Courts Frameworka. Deshaney v Winnebago County Department of SocialServices: Government had no constitutional duty toprotect child against parents violence; its failure

to do so does not constitute a violation of the DP clauseof 14th amendment. Creates an act/omissionstandard. States mere knowledge of risk of harm toindividual is not enough to impose liability

(1) Large number of cases continue to raise issuesof affirmative constitutional duties because:(a) State involvement in the affairs of its

citizens is pervasive and may inducereliance on government for protection,and other basic services. Thus, demandfor affirmative duties remains high

(b) Ambiguity within the DeShaney opinionleaves open several doctrinal bases

for recognizing such duties. One is thepossibility that special

relationships giving rise to anaffirmative constitutional duty of

protection might be recognized under othercircumstances

(2) There is a duty of part of government if Pconfined


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(3) Two circumstances where P not confined whereDP violation found:(a) Functional custody by the state

i. P must have been involuntarily in

states custody when harmedii. Most courts have found that schoolchildren are not in functional

custody of state even thoughrequired to attend school

iii. Inhabitants of public housing andstate employees found not to

be in custody of state (Collins). DPclause d/not impose an

independent federal obligationupon municipalities to providecertain minimal levels of safety andsecurity in the workplace.

Doesnt preclude imposition ofconstitutional liability on state

officials who deliberately orintentionally place public employees in

a dangerous situation w/o adequateprotection

(b) Where the state created or increasedthe danger to which the P was

exposed3. Affirmative duties, state created dangers, and special

relationshipsa. Kneipp v Tedder: Recognizes the state created danger

theory in which there can be a constitutional claimunder 1983 in that state actors created a danger which

deprived an individual of a 14th amendmentright to substantive due process.

b. State-created danger theory Elements in 3rdCircuit (Mark):(1) The harm ultimately was foreseeable and

fairly direct


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(2) The state actor acted in a willfuldisregard for the safety of the plaintiff

(3) There existed some relationship b/wstate and plaintiff

(4) The state actors used their authority tocreate an opportunity that otherwise wouldnot have existed for the third partys

crime to occurc. State-created danger theory Elements in 10th

Circuit (Ruiz):(1) The charged state actors created the

danger or increased the Ps vulnerability tothe danger in some way

(2) The P was a member of a limited andspecifically identifiable group(3) The Ds conduct put the P at a

substantial risk of serious, immediate, andproximate 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 conscienced. 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 orincreased the risk or danger OR

(2) The Ds conduct d/not meet the requisitelevel of culpability

e. Courts have held that victims of domestic violence mayhave 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 ofdomestic assault than to other assault victims,

(2) That discrimination against women was themotivating factor for the defendants AND


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(3) That the injury was caused by the operation ofthe policy or custom

B. Section 1983 and federal laws1. Under the terms of Section 1983, suit may be brought not

only for constitutional wrongs, but also for violations offederal laws. Court adopted plain meaning approach.There is only a rebutable presumption that the right isenforceable 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 enforceablerights under section 1983 OR

(a) Look to Blessing factors found in

Gonzaga(2) Congress had foreclosed private enforcementof 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 isincompatible with individualenforcement

2. Gonzaga University v Doe:a. Factors looked at to determine whether or not a

statute confers a right under Blessing (RightsCreating 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 notso vague and amorphous that its enforcementwould strain judicial resources AND

(3) The provision giving rise to the asserted rightmust 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


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generally supplies remedy for vindication ofrights secured by federal statutes. Once a Pdemonstrates that a statute confers an individualright, the right is presumptively enforceable by 1983

(Maine v Thibetout)c. Requires that if Congress wants to create new rightsenforceable under 1983, it must do so in clear and

unambiguous termsno less and no morethan what is required for Congress to create new rightsenforceable under an implied private right of action.


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a. Neither a state or its officials acting in their officialcapacities are persons under 1983.

b. Cannot sue state officials within their official capacitybecause these types of suits are considered suits against

states themselves, which is barred by Willc. Does not change rule that state officials can be suedfor damages under 1983 in their individual

capacities. In this case, the defendants may bepersonally liable but the state is not directlyimplicated.

d. Territories, like states, are not suable persons under1983 (Ngiraingas v Sanchez)(1) No note by court regarding territory officials

being sued within their official capacityB. The Immunities of governmental bodies1. Qualified Immunity and Compensatory Damages:

a. Owen v City of Independence, Missouri(a) Municipalities have no immunity from damages

liability flowing from their constitutionalviolations

(b) Courts decision allocates equitable loss amongthree principles in a 1983 scenario:(1) The victim of the constitutional

deprivation is assured that he will becompensated for its injury

(2) The officer whose conduct caused theinjury, so long as he conducts himself

in good faith, may go about his businesssecure in the knowledge that a qualifiedimmunity will protect him frompersonal liability for damages that aremore appropriately chargeableon the populace as a whole

(3) The public, as represented by themunicipal entity, will be forced to

bear only the costs of injury inflicted bythe execution of a governmentspolicy or custom, whether made by


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its lawmakers or by those whose edicts oracts may fairly be said to represent officialpolicy

2. Local Governments Absolute Immunity from punitive

damages (City of Newport v Fact Concerts). Court baseddecision on following:a. CL background suggested absolute immunity from

punitive damagesb. The legislative history of 1983 did not indicate

Congressional rejection of this CL backgroundc. Looked at objectives of punitive damages. Court found

that compensatory damages against localgovernments provided sufficient incentives for

their constitutional compliance and that punitivedamages awards against officials and employees are anadequate means of deterring them. A differentresult would create serious risks to the financialstability of local governments by exposing them tounpredictable punitive damages awards at the handof 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 noticeof what the Ps claim is and the grounds upon which itrests.

b. Leatherman rule has been extended to apply togovernment officials sued in their individual

capacities (Goad v Mitchell)2. Individual and Official Capacity Suits

a. Individual capacity suit: P is seeking to impose personalliability 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 recovercompensatory damages from the governmental


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body itself. Equivalent of naming the govt entity itselfas the D and requires the P to make out an Monelltype proof of an official policy or custom, as thecause of the constitutional violation.

(1) Failure to expressly state that the official isbeing sued in his individual capacity may beconstrued as an intent to sue the D

only in his official capacity(2) No qualified immunity available

3. The Requirement of a Constitutional Violation: Hellera. Local government liability must be premised on a

constitutional violation by someoneb. Case only applies if there was a determination that no

constitutional violation occurredD. The 1st Route to Government Liability: The Government Itself Acts1. Formal Official Policy:

a. Examples:(1) Policy Statements(2) Ordinances(3) Regulations

b. Does not matter whether the policy or decision isgeneral 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 itsestablishment

b. Local governments can also be held liable under customE. The Second Route to Governmental Liability: Attribution Through

Policymakers1. The Courts First Encounter with Attribution: Pembaur v City

of Cincinnatia. Court looked to state law to determine whether

prosecutor had authority to create municipalitypolicy

b. Single decision by official with policy making authoritycould be attributed to the govt itself under certain


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circumstances. Only attaches where official hasfinal authority to establish the policy with respect tothe action ordered (whether the official has thisauthority will be determined by state law)

2. The Courts 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 questionfor jury

b. Also reinforced the finality of the decision asimportant

c. When an officials discretionary decisions areconstrained by policies not of the officials making,

those policies actually reflect the municipality actions,not the discretionary act.3. Jett: Court stressed that id of final policy maker authority isto 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 officialmay be a state official for some purposes and local officialfor other purposes. In this case, county sheriff is not a finalauthority for the county. Again emphasized importance ofstate law giving authority final authority; look to both actualauthority conferred and also functions of the official,as described by state law. Sheriffs may be policy makers insome states and not policy makers in others

F. The Third Route to Governmental Liability: Failure to Train1. Failure to Train and Single Incidents2. City of Canton, Ohio v Harris: Rejected argument that

municipal liability can only be opposed when policy isunconstitutional. Failure to train can be used for

1983 liability only when there failure to train amounts todeliberate indifference to the rights of persons withwhich the police come into contact. To establish liability:

a. Deliberate Indifferenceb. Training insufficientc. Causation


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3. Single Hiring Decisions by Policymakers: Board of CountyCommissioners of Bryan County, Oklahoma v Brown:

Distinguished this claim from a claim that aparticulate municipality action violates law or directs an

employee to do so. Can only prove if:a. Adequate scrutiny of applicant background would lead areasonable policy maker to see a plainly obvious

consequence of decision to hire with deprivation ofparticular federal right of a third party

b. Deliberate Indifference applies4. Supervisory Liability and Deliberate Indifference after City

of Canton and Farmer:a. Supervisory liability runs against individual; doesnt

require any proof of official custom/policy as themoving force behind the conduct, is based onhis/her personal responsibility for violation

G. Ethical Considerations1. Dunton v County of Suffolk, State of New York


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VI. SUBJECTS OR CAUSES: TO BE SUBJECTED: CAUSATIONA. Cause in Fact: Most 1983 opinions employ the but for test to

determine CIF. The Ds conduct may be considered the cause infact of the Ps injury if the harm would not have occurred but for

the Ds unconstitutional conduct1. Mixed Motivesa. Mt. Healthy City School District Board of Education v

Doyle(1) Two part test:

i. P must show by a preponderance ofevidence that the adverse action was

motivated in substantial part byunconstitutional

factors/motives ii. Burden shift: D must show it would havetaken the same action if no

unconstitutional factor/motiveb. Texas v Lesage: Reaffirming part two of Mt. Healthy

test2. Governmental and Supervisory Liability

a. Allen v Muskogee(1) Failure to train found where need for training isobvious(2) Obvious under these circumstances; court

found need for different training where citytrained its officers to leave cover and

approach armed suicidal, emotionally disturbedpersons and try to disarm thema practice thatwas contrary to proper police procedures andtactical principles

(3) This case represents the type of case where aviolation of federal rights may be a highly

predictable consequence of failure totrain officers to handle recurring situationsw/ an

obvious potential for such a violation(4) Court found that liability may be found

because: the likelihood that officers will


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frequently have to deal w/ armedemotionally upset persons, and the predictability thatofficers trained to leave cover, approach, andattempt to disarm such persons will provoke a

violent response, could justify a findingthat the citys failure to properly train itsofficers reflected deliberate indifference to theobvious consequences of the cityschoice. The likelihood of a violent response to this typeof police action also may support an inferenceof causationthat the citys indifference leddirectly to the very consequence thatwas so predictable

B. Proximate or Legal Cause1. Remote Consequencesa. Martinez v California: cannot find causation if too

remote a proximate cause from parole hearings.Proximate cause is question of policy

2. Intervening Actsa. Townes v City of New York:

(1) The chain of causation b/w a police officersunlawful arrest and a subsequent conviction

and incarceration is broken by the interveningexercise of independent jx

(a) Exception: if there is evidence thatpolice officer misled/pressured the

official who could be expected toexercise independent jx


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VII. EVERY PERSON: ABSOLUTE IMMUNITYA. General Concepts:

1. If the challenged action by a state official is a judicial, quasi-judicial, prosecutorial, or legislative function, absolute

immunity shields the official from having to pay damages foralleged constitutional violations2. As an affirmative defense, absolute immunity only applies

when a govt official performs one of these functions3. The immunity does not attach to the office, but rather to

certain functions performed by the official4. AI doesnt bar injunctive relief, except for the exceptions

noted in legislative and judicial immunities5. 1983 doesnt on its face refer to immunity, the SC has

recognized both absolute and qualified immunity as adefense by ascertaining Congress intent to provideimmunities.

6. Individual sued in their official capacities only are notentitled to assert individual immunity defenses

7. Rationales behind absolute immunity are as follows:a. The fear of damages may chill an officials exercise of

discretionb. The process of defending civil rights claims may divertthe officials attention from his/her duties

B. Court has limited application of AI defense by applying a two-partstandard:

1. The Court considers whether CL recognized an immunity2. If it did, then the Court questions whether the

history/purpose of 1983 supports applying the CLimmunity

a. Even if congress intended AI to apply to a givenfunction, courts still must questions whether the

challenged action was legislative, judicial,quasi0judicial, or prosecutorial

C. Absolute Legislative Immunity1. When officials perform legislative functions, they receive thebroadest protection available under 1983 because AI bars both

injunctive relief and damages awards2. Tenney v Brandhove (seminal case):


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a. State legislators performed protected legislativefunctions when they served on investigative

committeesb. Investigations, whether by standing or by special

committees, are an established part ofrepresentative govt.c. Court found that legislators self-discipline and voters

ability not to reelect legislators were adequatechecks on abuse of legislative power.

3. The Functional Approach of Lake Country Estates: Local andRegional Legislatorsa. TRPAs decision regarding land use was a legislative actbased on the following factors:

(1) TRPA agency created by state of CA andNevada with the approval of Congress(2) The agencys 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 noCL immunity for such an entity and all of the

members were appointed, not elected4. 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 reliefb. Prospective Relief

(1) No prospective relief granted (Supreme Court vConsumers Union). Court emphasized on the action

performed, not the job description of theactor

C. Absolute Judicial Immunity1. The Common Law Immunity Background in 1871: Bradley2. Pierson: Judicial functions of determining guilt and

sentencing a criminal D are protected by AI. CtReasoning:

a. CL of 1871 supported immunityb. Policy behind 1983 was not to deter judges from

performing their jobs


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c. AI necessary to protect judicial systemd. Remedy for judicial errors is an appeal; not a 1983

lawsuit for damages3. Definition of judicial actions (Stump v Sparkman):

a. AI applies to actions taken by judges in excess oftheir authority(1) EX: Judge w/ jx over criminal matters convicts

a D of a non-existent crimeb. 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 casec. Must ask whether the action is one normally performed

by a judge, what are expectations of party (do theybelieve 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 reporters failure to timely produce atranscript not immune

(2) Judges decisions at admin hearings immunity5. A note on Witness Immunity and its connection to absolute

prosecutorial immunity: Briscoe6. Injunctive Relief: Congress amended 1983 to prohibit

injunctive relief unless declaratory relief was violatedor unavailable

7. Prospective Relief:a. Judges not protected from prospective relief

(Supreme Court v Consumers Union). In theConsumers Union case, court held that the VA SupremeCt and its Chief Justice could be sued under 1983 forinjunctive relief in their capacities as enforcers of theVA Supreme Courts disciplinary rules for lawyeradvertising, which rules had been challenged on 1st

amendment grounds. However, could not be sued forinjunctive relief in its legislative capacity in


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promulgating the challenged rules or in its judicialcapacity in adjudicating the

constitutionality of the rules.b. Applies even to judicial acts engaged in w/

unquestioned jx. However, judges not absolutelyimmune from injunctive relief. Lack of AI frominjunctive erelief for judicial actions, as compared toimmunity from damage suits would not have achilling 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 Kings 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 equitablerequirements in general, assured thatinjunctive relief against judges would be sparinglygranted, and provided sufficient safeguards ofcomity 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 Immunity1. 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 hearingb. Only gave QI to prosecutor giving advice to police


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3. Kalina v Fletcher: The Prosecutor as Applicant for an ArrestWarrant: Court didnt refer to absence of PC. Prosecutor

had AI to filing two unsworn affidavits but did not haveimmunity as acting as a complaining witness when filing for arrest

warrant 4. Immunity only for damages; not for prospective relief6. Advocative v Investigative (Buckley v Fitzsimmons):

Prosecutors accused of fabricating evidence for thepurpose of creating PC to arrest were not protected by AI.Several factors in addition to absence at CL of PIfor such conduct:

(a) The challenged conduct occurred prior to theexistence of PC to arrest

(b) Such conduct was identical to that ordinarily engagedin by police officersE. Procedural Aspects of Absolute Immunity

1. The Burden of Pleading: best for parties to give noticepleading


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VIII. EVERY PERSON: QUALIFIED IMMUNITY: A judicially createddoctrine that recognized the CL immunity of public officials for their goodfaith actions.

A. The affirmative defense of QI may provide officials with two

types of protection:1. Defense to liability when the actions allegedly taken byofficials 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 getinjunctive relief

2. May provide officials with an immunity from suit by relievingthem 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 Immunity1. Harlow v Fitzgerald:

a. Did away with subjective so could dispose of case in SJb. New standard: Did Ds conduct violate clearly

established constitutional law?2. Modern Day QI Test:

a. Whether an official can be held personallyliable for taking an allegedly unlawful action turns

on the objective legal reasonableness ofthe action, assessed in light of the legal rulesthat were clearly established at the time theaction was taken (Harlow)

b. To be clearly established, the contours of the rightallegedly violated must be sufficiently clean that a

reasonable official would understand whathe/she is doing violates that right (Anderson vCreighton)

c. Court must determine whether the law, as applied to aspecific factual situation, was clearly established

in such a way that the officials involved should haveknown that their decision or actions violated


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constitutional rights or federal law. Simple negligenceis not enough.

3. In Mallay and Creighton, the court addressed 4th amendmentclaims and explained that clearly established law doesnt refer

to general principles of law. Court found that QI exists if areasonable officer under the same circumstances would haveknown his actions to be illegal. This is a question of law for thecourts to decide.

a. Mallay v Briggs:(1) Established a two-tier standard ofreasonableness(2) Should use objective good faith standard; askswhether a reasonably well-trained officer with

reasonable knowledge concerning what the lawprohibits would have know that the challengedaction violated the 4th amendment.

b. Anderson v Creighton: Could reasonable officerreasonably believe his actions were reasonable underclearly established law in the context then known to theofficer. If there is a legitimate question as to theunlawfulness of the conduct, QI applies.

(1) Addressed reasonableness std in the 4th

amendment context3. U.S. v Lanier on Anderson: The Fair Warning Standard

a. Cannot just argue that 4th amendment is clearlyestablished law; must actually have determination

by law that the specific facts of the case rise tothe alleged constitutional violations

4. Siegert: injuries which merely flow from damage to Psreputation such as future employment opportunities not

enough to satisfy stigma plus testD. The Clearly Settled Law Inquiry

1. What is the clearly settled law?: Hope v Pelzer: there aresome actions that are so clearly unconstitutional that

should not have to show clearly established law2. Whose decisions determine clearly settled law? Wilson v

Layne


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3. Are some constitutional violations automatically violations ofclearly settled law as well? Saucier v Katz: 4th amendmentReasonable standard and QI reasonable standard

must both be metseparate issues.

E. Procedural aspects of qualified immunity1. Burden of proof and clearly settled law2. The Roles of Courts and Jury in the Qualified Immunity

Determination Hunter v Bryant: Jury questions is notwhether there was probable cause, but rather was thereevidence that reasonable belief that there was probablecause

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 establishedlaw (judge or jury)

b. If the court finds that there is a material questions offact, SJ must be denied so that jury can decide what

facts occurred. At that point, the D files for adirected verdict so that judge can apply the factsfound by the jury to the law. If motion fordirected verdict is denied, instruction to jury shouldbe that if you find _____, you will find no liability. If

you find _____, then there is liability3. Interlocutory Appeals

a. Mitchell v Forsyth: If a motion for SJ based on QI usdenied, must allow to be appealed; if not, the

immunity would be worthlessb. Johnson v Jones: Cannot appeal QI SJ based on the

factsF. Who is protected by qualified immunity?

1. The status of private persons who act under color of statelawa. Wyatt v Cole: Policy reasons for allowing QI for

government officials. If there are privateindividuals, not as many policy considerations to be


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concerned with. Court also looked towards CL; could get goodfaith 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 policyconsiderations such as the fact that market willensure that guards are doing their job

G. Motions for SJ Before and After Discovery1. Official may raise QI defense in SJ pursuant to FederalRules of Civ Pro 56(c) both before and after discovery. UnderRule 56(c), SJ is permitted if there are no disputed materialfacts 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 notestablished a violation of clearly established law.


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IX. SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION ATLAW, SUIT IN EQUITY OR OTHER PROPER PROCEEDING FOR REDRESS:CONSTITUTIONAL TORT REMEDIES

A. Damages

1. Compensatory Damagesa. While state CL tort concepts are a good starting pointwhen looking at compensatory damages, the court

should apply broad and consistent tort damagestandards rather individual state damages ideas, as theychange from state to state

b. Compensatory damages generally fall into one of threecategories:

(1) Special: specific pecuniary loss such as lost

wages, medical expenses, and loss of earningcapacity(2) General: emotional distress and compensationfor physical pain(3) Nominal: violation of a right w/ no proven actualinjury

b. When determining whether to apply state or federalrules (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 constitutionand statutes of forum state.

(3) Courts are only to apply state law to the extentthat it is not inconsistent w/ constitution and laws

of USc. Court stresses that 1983 creates a species of tortliability and held that the basic purpose of a 1983damages award should be to compensate persons forinjuries caused by the deprivation of constitutionalrights. Although mental and emotional distress causedby the denial of PDP, is compensable under 1983, neitherthe likelihood of the injury nor the difficulty of provingit so great to justify awarding compensatory damagesw/o proof that such injury actually was caused.


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Therefore, actual damages will not be presumed in PDPcase and without proof of damages, P will only be entitledto 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 noactual damages (Slicker v Jackson 11th)(2) Obligation to take reasonable steps to

mitigate damages(3) Payments received from collateral sources

dont count against P recovery(4) Spouses of const. tort victims entitled to

recover consortiume. Presumed Damages: Memphis Community School

District v Stachura: Presumed damages are a substitutefor ordinary compensatory damages, not a supplement foran award that fully compensates the alleged injury. WhenP seeks compensation for an injury that is likely to haveoccurred but difficult to establish, some form ofpresumed damages may possible be appropriate. Damagesbased on the abstract value or importance ofconstitutional rights are not a permissible element ofcompensatory damages in 1983 suits.

(1) Presumed Damages in Defamation Cases: Therationale for presumed damages in this area

of law is that the harm done to onesreputation by a defamatory publication,especially a writing that is defamatory on itsface, will be difficult to trace. Therefore,effective compensation for the injury would bethwarted if P required to offer proof of actualharm (Dun & Bradstreet, Inc. v Greenmoss

Builders, Inc).i. Supreme Court has limited presumed

damages: if the SM of the defamationis of public concern or the P is a publicfigure or public official, they may beawarded only upon a showing that D


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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 reviewableby the trial judge and appellate cts for

excessiveness (Knussman v Maryland 4th) and mayalso 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 Laurent7th)

h. It is permissible for 1983 P to recover both state tortclaim and constitutional claim w/o finding that jury

has granted double recovery (Berry v Oswalt)i. Ps testimony, standing alone, can support an award for

emotional distressthere is no requirement of ahigh degree of specificity (Bogle v McClure 11th);circuits are divided on this (see p. 540-541)

(1) Prisoners cannot bring claim formental/emotional injury suffered while in

custody w/o prior showing of physical injury(Herman v Holiday 5th)

2. Punitive Damagesa. In order to find for punitive damages, the trier of

fact must find that the D acted with evil motiveor intent or Reckless or callous indifference to the

federally protected rights of the P. Thegoal of punitive damages in 1983 suits is deterrenceof unconstitutional conduct (Smith v Wade).

b. As in compensatory damages, federal law governsavailability of punitive damages in a federal civil rightscasec. Available whether or not compensatory damages are

awarded, and this doesnt vary based on law ofstate where trial takes place

d. Punitive damages are not awarded jointly and severallybut must be specifically considered and awarded as

to each De. Cannot be awarded against local govt units (City ofNewport v Fact Concerns, Inc.)


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3. Survival, Wrongful Death, and Other Damages IssuesOrdinarily Addressed by Statutesa. Where 1983 doesnt provide suitable remedies forconstitutional violations, federal courts are instructed to

turn to state law so far as the same is not inconsistentwith 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 stateand federal law in this case. Court finds nothing in1983 language or underlying policies to indicatethat state law causing abatement of a particularaction should be ignored in favor of a rule ofabsolute survivorship. Court does not see how

1983s policies would be undermined if Shawsaction were to abate b/c of his death. Court statesthat this is a very narrow ruling. State lawcontrols as regards survivorship so long as thoselaws are not generally inhospitable to survival of1983 actions and has no adverse effect on thepolicies underlying 1983 actions.

c. Court has not come to a definitive answer as towhether wrongful death claims may be pursued under1983:

(1) Carlson v Green: distinguished facts fromRobertson because prisoner died allegedly becauseof unconstitutionally inadequate medical care.Under that states law, suit would not survive hisdeath. Court found that claim should survive Pdeath in this scenario.(2) Berry v City of Muskogee: Court finds that

supplementing a state survival action w/ astate wrongful death action d/not satisfy thecriteria of 1988 for borrowing state law. The federalcts must fashion a federal remedy to be appliedto 1983 claims. The remedy should be a survival

action, brought by the estate of thedeceased victim, in accord w/ 1983s expressstmt that the liability is to the party injured


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XII. ATTORNEYS FEESA. The Civil Rights Attorneys Fees Awards Act of 1976 provides thata prevailing party in actions brought under specified civil rights

statutes, including 1983, may be entitled to an award of attorneysfees as part of the cost of litigation.

Constitutional Torts Outline

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