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.
injunctive
be barred
is not
with
v City
security
status
under
court
Davis)
figure in
apply
next
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.
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
challenges in
actions
states
government is
undermine
claim of
benefit. This test
rather than subjective
creates
benefit.
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)
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
would
defamation
narrower
especially serious
enough
someone as
sex offender
coach
enough
but not
unless some other
disability/disadvantage
(cc)Imposing registration
on persons deemed
sexually dangerous
enough
(dd) Loss of business
reputation not
enough
get city
not enough
prisoner
hardship in
incidents of prison
Sandin
create
Selesky)
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
the
to
cause
quelling
that there was
prison officials
not
bad
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
functioning
person of
engage in
Ps
crime
domestic
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.
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
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
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
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.