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Constitutional Litigation
University of Michigan School of Law
Sanders, Steven

Constitutional Litigation – Fall 2012 – Professor Sanders
1983 Shorthand
Per 1983, any person who (1) violates the constitutional rights of another, (2) under color of law, shall be liable to the injured party in an action at law or equity.
What is Section 1983?
à 1982 is the primary vehicle for suing (1) state and local officials or (2) local governments
à 1983 provides the right to sue, but is not, itself, a source of substantive rights.
See Monroe, holding government officials individually liable for (1) violations of constitutional rights where (2) the officials act under the color of law, where Chicago Police violated plaintiff’s 4th Amendment right to be free from search and seizure by breaking into his home without a warrant, tossing his belongings, and humiliating him in front of his family. 
Federal Court as a First Resort
à Victims of unconstitutional acts by state officers generally need not exhaust state remedies before bringing 1983 action in fed court. The victim chooses the forum, with several exceptions.  (1) Claims Preclusion: once P sues in state court, he can’t then bring 1983 action in fed court on same case, (2) prisoners generally must exhaust prison remedies, and (3) Heck exception.
à In Congressional debates, Senator Strom Thurman, noted that 1983 might open the floodgates to federal adjudication.  His fear seems unfounded, at least based on the modern day observations of Judge Kethledge and Judge Barker, who seemed untroubled by the quantity of 1983 actions on their docket, even though they may occupy up to 25% of the caseload. 
Continuing Thread: The Frankfurter Dissent
In his Monroe dissent, Justice Frankfurter argued that we should only allow 1983 actions for constitutional violations that were systemic – acts that were subject to the laws or customs of the state. 
(1)   Standing: Can plaintiff demonstrate an “injury in fact,” an illegal invasion on an interest that is (a) concrete and particularized, and (b) actual or imminent. 
(2)   Question of Federal Law: Does the court have SMJ (e.g. question of federal law / Constitution)?
(3)   Color of Law: Was defendant acting under color of federal authority?
(4)   Cause of Action: Does federal law (e.g. the Constitution) create a cause of action? 
a.        See Davis v. Passman, implying a constitutional cause of action under Bivens for gender discrimination in violation of the 5th Amendment Equal Protection Clause, where a Congressman refused to consider a female application for an open position. [Note: P survived the SF limitation, despite evidence Congress intended to exclude congressional employees from remedies.] b.       See Carlos v. Green, permitting a prisoner to bring a Bivens action against a federal official for withholding medical treatment in violation of the 8th Amendment.
Implied Constitutional Rights of Action for Damages
Litigants cannot sue a federal officer per 1983 because they generally do not act under the color of state law.  In Bivens, however, SCOTUS implied litigants’ right to file suit in federal court against federal officers (in their individual capacity) for damages (even collected, under some circumstances, from the federal government) where officers violate the constitution (in Bivens, the 4th Amendment) under the color of law.  Later case law extended Bivens actions to federal officer violations of the Equal Protection Clause (5th Amendment), as well as the 8th Amendment.  Bivens actions are barred under various circumstances. Although the 4th Amendment did not expressly provide for a damages action when violated by federal officers, the court implied the right.  In his concurrence, Justice Harlan remarked that, for Bivens, injunctive relief would provide no meaningful remedy, so “it was damages or nothing.” 
à Dissents: (1) Burger – “I dissent from today’s holding which judicially creates a damage remedy not provided for by the Constitution and not enacted by Congress.” (2) Black – Even if the court had the power to create a remedy, it would create frivolous lawsuits, jam up the docket. (3) Blackmun – Worried that “Whenever a suspect imagines, or chooses to assert, that a Fourth Amendment right has been violated, he will now immediately sue the federal officer in federal court.”
à Trend – Limitation: In recent years the Court has trended toward limiting, rather than extending the scope of Bivens actions.  This reflects the court’s deference to the legislature and respect for the separation of powers.  From 1971 – 1985, plaintiffs filed 12,000 Bivens claims.  4 received judgments in their favor.  
Justice Brennan’s SF and ECD limitations, deferential to Congress, have stymied the number of Bivens actions, as compared to 1983 cases.
(1)    Special Factors: Are there SF counseling hesitation in absence of affirmative action by congress?
a.        Separation of Powers Conflict: SF invoked where separation of powers issues arise.   See Chappell v. Wallace, where the court rejected a Bivens action against superior officers for racial discrimination in the military, holding that the military had sufficient remedies in place.
b.       Post-9/11 Case Law: Post 9/11, litigants brought a number of Bivens suits against federal officers.  Many such suits were dismissed per the “special factors” limitation.  See Arar v. Ashcroft, denying Bivens actions for “extraordinary rendition” due to “special factors,” i.e. post 9-11 national security priorities. 
(2)    Expression Congressional Declaration: Is there an ECD that plaintiff may not collect damages for a federal officer’s violation of federal law?
(3)    Individual Capacity Limitation: There is no federal analogue to Monell liability.  See FDIC v. Meyer, banning Bivens actions where litigants seek action against a federal agency.  See also Malesko, emphasizing that Bivens actions are unavailable against private entities under government contract, where P sued a private corporation operating a halfway house per contract with a federal agency, the Bureau of Prisons.
(4)    Congress Already Provided a Remedy: Courts deny Bivens actions where Congress has provided remedies that adequately vindicate harms caused by federal officers.  See Bush v. Lucas, denying a Bivens action because Congressionally created remedies existed, where whistleblower was demoted and defamed due to his exercise of free speech.  It does not matter which remedy is more appropriate; so long as an alternative remedy exists, P may not bring a Bivens action.  See Sea Clammers. 
Qualified Immunity
à Immunities for Bivens and 1983 actions are largely the same.  See Harlow v. Fitzgerald, permitting officers’ good faith QI from damage awards in a Bivens action where the officer’s acts violate “clearly established constitutional rights of which a reasonable official would have known.”  Permits bold enforcement in gray.
Gap Filling
à Regarding the survival of constitutional litigation, in 1983 actions, courts conduct gap filling per state law.  In Bivens actions, courts apply federal common law to fill gaps.
Constitutional Right
14th Amendment: Bars deprivations of life, liberty, & property w/ out due process.  There are 3 kinds of 1983 claims plaintiffs can bring under the Due Process Clause. 
(1) Incorporation Doctrine
The incorporation doctrine made certain Bill of Rights provisions applicable to the states, per the 14th Amendment, protecting, for example, TK’s 1st Amendment right to free speech, 4th Amendment right to be free from unreasonable search and seizure, 8th Amendment right to be free from cruel and unusual punishment. 
(2) Fundamental Rights Doctrine
The promise of liberty, a key aspect of the 14th Amendment, guarantees us basic rights that do not rely on specific constitutional provisions.  The right to marry and certain reproductive rights fall under the fundamental rights doctrine, and P may bring 1983 action to enforce these rights.  See, e.g. Roe v. Wade. 
(3) Procedural Due Process ***
Plaintiff may claim a violation of his 14th Amendment Due Process rights where he is deprived of “property” or “liberty.”  Such a deprivation only takes place, however, where the state fails to provide post deprivation due process.  We ask: (a) Is a cognizable life, liberty, or property interest involved? (b) Is the loss of that interest attributed to the state (as opposed to a private party)? (c) If the state did deprive P of life, liberty, or property, was the deprivation done “without due process of law”?
(a) Is a cognizable life, liberty, or property interest involved?
                Must Have a Right to it, Often Conferred by State Law
In Roth, the court found no deprivation of liberty / property where a non-tenured teacher was dismissed, without notice or the opportunity to be heard.  They might have found a deprivation had the school publically charged the teacher with conduct questioning his good reputation.  The Court emphasized that a deprivation of liberty or property requires “More than a need or abstract desire for it… [It requires] a legitimate claim of entitlement to it.” Although the due process clause is a part of the constitution, courts often look to state law in determining whether P indeed suffered the loss of a cognizable liberty or property interest.  One potential drawback of this approach is that states may define terms narrowly so as to shield themselves from due process litigation.
à See Constantineau, finding deprivation of a property interest where Chief of Police put up a posting, defaming P’s reputation by identifying her as an “excessive drinker” w/out providing notice and the opportunity to be heard.  See also No Fly List Case, alleging “Plaintiffs have the right to be free from false governmental stigmatization as individuals 'known or suspected to be' terrorists, or who are otherwise associated with terrorist activity, when such harm arises in conjunction with the deprivation of their [liberty] right to travel on the same terms as other travelers.”
à But see Paul v. Davis, finding no deprivation of liberty / property where an officer put up postings, defaming P’s reputation by identifying him as an active shoplifter.  The Davis holding, which been criticized for ignoring precedent, was designed to limit the definition of liberty / property interests, requiring “stigma plus” the alteration of legal status (i.e. deprivation a right held under state law). Defenders of the court’s decision take an “ends justify the means” approach, where the ruling stymies the trend of bringing federal claims where state torts suffice. 
(c) Did the state did deprive P of life, liberty, or property, “without due process of law”?
à Notice & op to be heard required before state can deprive an individual of liberty or property.  But process required is not uniform; it’s a flexible, calling for “procedural protections as situation demands.” Matthews.
                Claim Rejected Unless State Fails to Provide a Post-Deprivation Remedy
See Parratt, holding that plaintiff cannot seek redress against an officer for deprivation of life, liberty, or property, unless the state denies plaintif

tion: b/w injury and D’s alleged misconduct
(3)    Likely Redress: it must be likely (as opposed to speculative) that the injury will be redressed by a favorable decision
Standing and Unconstitutional Law Enforcement Practices
Quoting the Court in O’Shea, the Rizzo Court held that “Past exposure to illegal conduct,” [in this case, where PA officers authorized, encouraged, and failed to prevent a pattern of 4th Amendment violations], is insufficient to show a present care or controversy.  Plaintiff must show (1) continuing adverse effects from past illegal conduct, or (2) a genuine threat of future injury (by establishing class member would be arrested again and subject to same behavior).  In Lyons, the court elaborated on the second prong of the test, holding that plaintiff’s eligibility for injunctive reliefs depends on his ability to prove a real and immediate threat of future injury to himself.  In Lyons, the court decided P didn’t prove he would have another “choke” encounter w/ police.  To recover in equity, plaintiff must show (1) police always used chokehold, or (2) city “ordered or authorized” police to use chokehold.  The fact that the chokehold had caused 16 deaths, mostly of African Americans, was not persuasive, even though P was African American.  But see Revisiting the Lyons Den, noting that some courts have found a “credible or realistic threat of harm” where defendant targeted a particular “minority or disadvantaged group.”
à Racial Profiling: The more routinized the conduct, the easier it is to get injunctive relief. 
Compensatory Damages
à Per 1983, Defendant can sue government officials for compensatory damages “to compensate . . . for injuries that are caused by the deprivation of constitutional rights.” (Carey v. Piphus)
                Actual Injury Required [Except for Nominal Damages] Absent plaintiff suffering an actual injury (proof of harm), regarding compensatory damages, he can only make a nominal recovery. See Carey v. Piphus, noting that 1983 is a “species of tort liability,” such that a suspended student could only receive nominal compensatory damages – absent proof of actual harm – for the violation of his due process right to a pre-suspension hearing.  Subsequent case law established that the following injuries might be compensable via 1983 actions: mental anguish, emotional distress, feelings of unjust treatment, reputational harm, economic loss, fear, anxiety, humiliation, personal indignity, physical injury, and out-of-pocket expenses. See also Fisher v. Dillard University, holding that plaintiff may introduce expert testimony regarding harms in 1983 actions. 
à See also Stachura, holding that juries may not calculate damages based on their opinions regarding the abstract value of a constitutional right, where a teacher was only allowed to collect damages for actual injuries resulting from a violation of her free speech right.  This concept emerged recently in the Texas Affirmative Action case, where student could only expect nominal damages [and could not recover injunctive relief regarding her own application], as she has already transferred to another school, and could not identify any harm.  See also Lippoldt, awarding nominal damages for where plaintiff could not prove actual injury when he had to reschedule a parade after defendant violated his first amendment right to free speech,
Punitive Damages
The purpose of punitive damages is the same under 1983 litigation as it is under state tort law: to deter and punish.  We sometimes refer to punitive damages as “exemplary damages.”  The court permits punitive damages against government officers sued individually, even if they are indemnified, but it will not levy punitive damages against local governments on Monell claims. (Owen v. City of Ind.)
                Against Individual Officers
In Smith v. Wade, the Court held plaintiff may recover punitive damages from an individual officer where (1) the officer acted with ill will or malice toward plaintiff; or (2) the officer acted with reckless or callous disregard for plaintiff’s safety.  In Wade, plaintiff prisoner alleged denial of his 8th Amendment Right where guards were aware that, under the circumstances of his placement, his assault was likely [and did, indeed, ensue.]  But see Schaub, emphasizing that courts may award punitive damages pursuant to their “discretionary moral judgment,” even where the Wade criteria are met, and that “deliberate indifference” does not automatically amount to “callous” indifference.