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 14 th
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 14 th 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 officers 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 peoples federal rightsto
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 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 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 prisoners 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 courts issuance of a writ
of habeas corpus. (Heck
v. Humphrey)
3. Due Process: in certain cases, a decision adverse to a
plaintiffs 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;
plaintiffs 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. Prisoners 1983 claims are sometimes treated as
federal habeas corpus claims and therefore
becomes
subject to exhaustion of state remedy
requirement
b. Prisoners 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 1983s 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 immunity and 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)

is not

with
v City

security
status

under

court
Davis)

c. If officer violently attacks someone for personal

reasons, but uses weapon that belongs to him and
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

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 utilitys 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 lawyers 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
apply
next

the resolution of state action issues but does not

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

his
had
to

smoking
willful
evidence of
Lauderdale)

private

joining in

officers.

the plaintiffs of constitutional rights. To be

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 plaintiffs conviction
d. What evidence is needed in order to establish a
conspiracy?
(1) P must show that Ds reached an understanding
to violate ps 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

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

actions

states
government is
undermine

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 effortsthe
intentionally trying to
constitutional rights.

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 Sindermanns 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 prisoners 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
(OConnor v Donaldson)

physical pain
(Ingraham v Wright)

DP

loss of
burden

stmt

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

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

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

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

would
defamation
narrower
especially serious

enough
someone as
sex offender

coach

enough

but not
unless some other
disability/disadvantage

(bb) Being listed on sex

offender registry
stigmatizing
enough

(cc)Imposing registration
on persons deemed
sexually dangerous
enough
(dd) Loss of business
reputation not
enough

get city
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

prisoner
hardship in
incidents of prison

Sandin

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 states 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 doesnt 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 policemans 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

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

(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 casewas
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.

Objective standard. P does

have to show that officer acted in
faith.

the

to

cause

quelling
that there was
prison officials

not
bad

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 8 th
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: Officials 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)

5. Courts have also held that officials can take into account
their 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 protection
convicted inmate (City of Revere v Mass General

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 (officers 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.:

the EE
to prove by
the same

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

court
of the
disrupting
the efficient
workplace.

nature of

close working
is essential to
public responsibilities

reasonable
so long
obtaining

(1) EE must prove that an adverse employment

action was motivated by the EEs 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 employers
judgment when a
relationship
fulfilling
(d) In Waters v Churchill, OConnor said that
the trier of fact should accept ERs 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

said and so long

reasonable

functioning

person of
engage in

Ps

as the ERs belief is

(3) Must balance EEs free speech rights against
the employers 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 Ds 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

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 Courts Framework
a. Deshaney v Winnebago County Department of Social
Services: Government had no constitutional duty to
protect child against parents violence; its failure
to do
so does not constitute a violation of the DP clause
th
of 14
amendment. Creates an act/omission
standard. States
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
states 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.
Doesnt 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

crime

domestic

(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 partys
to occur
c. State-created danger theory Elements in 10 th
Circuit (Ruiz):
(1) The charged state actors created the
danger or increased the Ps vulnerability to
the danger in some way
(2) The P was a member of a limited and
specifically identifiable group
(3) The Ds 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 Ds 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

generally supplies remedy for vindication of

secured by federal statutes. Once a P
that a statute confers an individual
presumptively enforceable by 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 termsno less and no more
than what is
required for Congress to create new rights
enforceable
under an implied private right of action.

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
governments 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) Courts 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 governments
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 Ps 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 Courts 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 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 question
for
jury
b. Also reinforced the finality of the decision as
important
c. When an officials discretionary decisions are
constrained 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 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; doesnt
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 Ds conduct may be considered the cause in
fact
of the Ps injury if the harm would not have occurred but for
the Ds
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 thema 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

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 citys
a violent response to this type
may support an inference
citys indifference led
consequence that

emotionally upset
officers
attempt to
violent
that the citys
officers reflected
obvious
choice. The likelihood of
of police action also
of causationthat 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 officers
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

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 doesnt bar injunctive relief, except for the exceptions
noted in legislative and judicial immunities
5. 1983 doesnt 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 officials exercise of
discretion
b. The process of defending civil rights claims may divert
the officials 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. TRPAs 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 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 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 reporters failure to timely produce a
transcript not immune
(2) Judges 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
Courts 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 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 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 didnt 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 Ds 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 doesnt 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 Ps
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 metseparate 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
dont 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 ones
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. Ps testimony, standing alone, can support an award for
emotional distressthere 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 doesnt 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 doesnt 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
1983s policies would be undermined if Shaws
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 states 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/ 1983s 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
(OShea 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. ATTORNEYS 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.