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Constitutional Litigation
University of Michigan School of Law
Sanders, Steven

Constitutional Litigation
Fall 2010

I Origins of 1983
Public Employee Speech
Due Process Clause in Constitutional Tort Litigation
Town of Castle Rock v. Gonzalez (2005) J. Scalia
– Q: When a person has a PPO/TRO, is there a constitutionally protected property interest in having the police enforce the PPO/TRO when there is probable cause that it has been violated?
o The constitutional protection alleged violated was the 14th due process by failure to enforce the PPO, the case was heard on appeal of dismissal
o 14th violated suit under Sect. 1983 citing an institutional policy of failing to respond to TRO violations and a toleration of non-enforcement, CoA held that there was a procedural due process violation b/c there is a protected property interest in the TRO
§ In DeShaney, the Court held that substantive due process does not protect a person against invasion by private actors, and that there is no affirmative right to entitlement to government services. There is no constitutional duty on the government to protect individuals in no-custodial settings from private violence.
· Unless there is a custodial setting, the state is under no affirmative obligation to spend resources to protect individuals from harm.
o E.g., Collins – no affirmative duty to protect individuals from harms on the job when they assert a due process right to safety in government run facilities
o Risk of danger must be state-created and there must be a special relationship between P and the state like custody
· But Deshaney left open the possibility that state law could provide the entitlement
o E.g, beating by foster-parent rather than natural parent b/c of state supervision, but see case saying that there is no state liability for failing to prevent public school suicide.
o Special relationship should only exist when a person is involuntarily confined or restraint by affirmative government power
o Even if an action survives Deshaney it will lead to damages only when the violation shocks the sonscience, and if a showing of intent to harm is necessary will depend on the need for quick action versus opportunity for deliberation
· In this case, the state must clearly create the entitlement, which Scalia rejects has happened
· Martinez and Deshaney – express a similar sentiment not to hold public officials responsible for the actions of private persons absent a sufficiently tight nexus (something well beyond a but-for relationship) between the actions of public officials and the subsequent harms inflicted by private persons.
§ The CoA held that a procedural entitlement existed b/c there were clear rules for enforcement (entitlement must come from an independent source other than the Constitution, like state law—federal law determines if the entitlement is constitutionally protected)
· Must determine if state law gave a property right of enforcement
o Scalia says there is no entitlement to enforcement, but there is a criminal and contempt of court penalty, and rejects the view that the arrest was mandatory
o Totally departs from deference to state law interpretation, and answers it de novo
o Scalia says that the entitlement is vague, which defeats the argument that a property interest existed
§ Glosses over if discretion exists to ask what particular kind of enforcement constituted the property right
o Says that a mandatory enforcement benefits more than the person—but this neglects the reality that a TRO is a personal enforcement mechanism unlike a general mandate. Scalia’s argument advances to say that there was no text saying a person had a right to request than an arrest be made
§ Dissent construes the TRO as a contract with the government – Stevens and Ginsburg
· Points out that many new laws eliminate police discretion, and that the TRO enforcement statute was for a narrow class of people
o The removal of discretion is supported by the text/legislative history
o It was clear that the police lacked the discretion to do nothing even if the kind of enforcement was discretionary
o The nature of the benefit is more important than the importance of the benefit, and a benefit can be informal
Sacramento County v. Lewis – applied because force had not been intentionally applied, but a substantive due process violation only occurs when behavior shocks the conscience if it is a heat of the moment decision.
o Intent to harm or deliberate indifference v. shocks the conscience is context dependent and turns on the opportunity to deliberate
Procedural Due Process
– Ensures fairness by requiring that deprivation follow an adequate process
o State must provide either a meaningful pre or post-deprivation process in connection with the specific state deprivation
Parratt v. Taylor (1981) – The state post-deprivation remedy satisfied the DPC when there was random and negligent deprivation. Parratt applies when deprivation is random and unauthorized and the deprivation is of a non-fundamental right
o P claimed that he had been deprived of property without due process when he lost 23.50 in hobby materials. Court held that P must rely on state remedies
o Paratt is no applicable to deprivations protected in the bill of rights or substantive rights or when a pre-deprivation process is essential
o State of Mind and Due Process
§ Hudson v. Palmer – held that P must resort to state remedies when there is an intentional deprivation of non-fundamental rights because the intentional deprivation was random and unauthorized.
· The state’s action is not complete until and unless it provides or refuses to provide a suitable post-deprivation remedy
§ Daniels v. Williams (1986) – there is no due process deprivation when the state action is only negligent. No procedure for compensation is constitutionally required when the deprivation is only negligent.
· DPC addresses deliberate government decisions and is focused on abuse of power not lack of due care.
§ Zinermon, Logan v. Zimmeran Brush (1982) – When deprivation of non-fundamental rights is pursuant to an established state procedure or is systemic than post-deprivation remedies do not satisfy due process. There must be a pre-deprivation remedy for established policies or systemic deprivations – even if the viol

t then says “procedural due process rights are absolute in the sense that they do not depend on the merits of the substantive assertion,” so, denial of procedural due process is actionable for nominal damages without proof of actual injury.
Substantive Due Process
– Protects against oppression when limits on state authority go beyond procedural restraints—basically creates stricter limits on a narrower range of conduct
Daniesl v. Williams (1986)
o Due process clause is not implicated by a negligent action that causes an unintentional loss
§ Even though 1983 has no state of mind requirement
o The Constitution does not supplement traditional tort law
§ Paul v. Davis – the 14th is not a font of tort law
1983 Basics
o “The basic purpose of 1983 damages award should be to compensate persons for injuries cause by the deprivation of constitutional rights.” – Carey
o 1983 does not have a state of mind requirement
o When 1983 is silent, look to the common law as it existed in 1871 in the belief that silence reflects and intent to adopt the principles of common law. If contradictory common law then look to intent.
o Bivens Limitation – may only sue people in official capacity
Monroe v. Pape
o Two big questions: (1) Is there a federal question presented and (2) Is there a cause of action for misuse of power or is 1983 about making sure that there is an action against unconstitutional polices or law
o Douglas makes the point that the victim should be allowed to choose federal forum
o Color of law has a precedent in Classic and Screws, which dealt with the criminal counterpart of 1983, which is Sect. 242
o Frankfurter’s dissent – argues that color of law has no precedent, believes that 1983 is to correct bad laws that have force of law, that 14th is addressed to states and does not provide a guaranteed set of rights to individuals, and argues that there must be a proper relationship with st/fed govt (like slaughterhouse)
§ Frankfurter believes that state courts should be guardians of individual rights. Federal courts get to now second guess state courts’ proper ability to adjudicate
o Issues:
§ 1983 passed b4 state action doctrine
§ 1983 may have been aimed at individuals in collusion or with police protection
§ Monroe exemplified a fundamental clash of federalism values—Douglass looked to the Constitution and Frankfurter looked to the common law to protect individual rights
§ 1983 litigation is often based on pointing to a larger set of values at stake