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A plaintiff sues New York State directly for damages under §1983 after a wrongful arrest. Can she recover? Why or why not?
No. States are immune from damages under the Eleventh Amendment.
A tenant sues the City of Metropolis after being evicted under a discriminatory housing ordinance. Can the city itself be liable? Why or why not?
Yes. Municipalities can be liable under §1983 if the violation stems from an official policy or practice (Monell).
A state prisoner sues the state corrections commissioner to stop enforcement of an allegedly unconstitutional prison rule. Can she sue? Why or why not?
Yes. She may sue the responsible state official in their official capacity for prospective relief (Ex parte Young).
A driver sues police after being subjected to excessive force during a traffic stop. What constitutional amendment is the basis for her claim, and what is the standard that guides the court’s analysis?
Fourth Amendment (totality of the circumstances).
A plaintiff sues a city, claiming a new zoning ordinance plainly violates the New York State Constitution. She is a resident of the town that passed the zoning ordinance, and a taxpayer in that town. But her home is not impacted by the zoning ordinance. Does she have standing? Why or why not?
No. Standing requires a concrete injury in fact, not just generalized interest in the laws being executed nor any interest that merely arises from being a taxpayer in the jurisdiction.
A police officer is sued in his individual capacity for damages after allegedly violating the Fourth Amendment. What defense will he argue and what is the standard for that defense?
Qualified immunity — protects officials unless they violate clearly established law.
A student sues a state university officer in his individual capacity for First Amendment retaliation. Are damages available?
Yes. §1983 allows damages against officials personally, subject to immunities.
A protester sues the mayor and the city after being arrested by police, arguing the city is vicariously liable for the conduct of its officers in the scope of their employment. Can she recover from the city or the mayor on that theory?
No. Supervisors/municipalities are not automatically liable for subordinates under §1983, unless there is a municipal custom or policy that gave rise to the violation.
A state employee sues the Department of Health for an injunction to change agency policy. Is that proper?
No. The state agency is immune; the plaintiff must sue the official charged with enforcing the policy.
A state prisoner sues guards for failing to provide access to the infirmary despite repeated complaints of an ongoing illness. What amendment governs the claim, and what must be shown?
Eighth Amendment -- deliberate indifference to serious medical needs.
A driver was once put in a chokehold by police. The police department’s written policies say that chokeholds may be acceptable based on the totality of the circumstances an officer faces on the job. The driver now sues to ban chokeholds permanently after the chokehold he experienced. Does he have standing for injunctive relief? Why or why not?
No. A past injury alone does not show a real and immediate threat of future harm (City of Los Angeles v. Lyons).
The heads of a state prosecutor’s office have been sued in their official capacity for a pattern and practice of refusing to turn over Brady evidence in criminal cases. What defenses are available to the prosecutor’s office?
None. There are no immunity defenses that apply in injunctive relief cases.
A tenant sues the City of Metropolis for damages after police violate her Fourth Amendment rights. Could she recover damages directly from the city? What would she need to show?
Yes. Municipalities are liable for damages under §1983 pursuant to a Monell theory. Which simply requires that the municipality have its own direct responsibility for the harm experienced separate from the culpability of the individual municipal actor. This requires any one of five theories: (1) custom or practice; (2) official policy; (3) ratification; (4) failure to train; (5) failure to screen.
How would you go about suing the Federal Trade Commission or any other federal agency for constitutional violations? What information would you need to know and how would you do it? Why?
Name the head of each office, rather than the office itself, to avoid a problem with sovereign immunity.
A plaintiff sues the state governor for an injunction because of the misconduct of a state agency. Is this allowed? What else would you need to look at to confirm your answer to this question.
Ex parte Young requires the named official have a specific enforcement connection. That enforcement connection is determined by state law—so you’d want to identify what duty in state law the governor has that creates the “some connection” to enforcement that is required.
Police stop a driver on the side of the highway and find no contraband. He sues under §1983. What constitutional claim might he have, and what must he show?
Fourth Amendment claim for unlawful search -- he must show that: (1) that they did not have a valid warrant; and/or (2) the search was conducted without reasonable suspicion.
A plaintiff sues under Title IX to challenge the fact that her school soccer team lost funding when the federal government impermissibly pulled funding from her university because it was allowing transgender athletes to compete. But Title IX pertains only to the rights of universities to have a hearing before their funding is cut. It doesn’t allow students to sue separately. Does plaintiff have a relevant injury-in-fact? And how can she prove it?
Yes. Plaintiff can assert standing because Title IX identifies a harm the statute is designed to protect, and plaintiffs are in the zone of interests the statute was designed to protect?
A large city has been accused or rampant civil rights violations for enforcing a new surveillance law. You are suing the city for damages suffered by plaintiffs as a result of the surveillance they experienced. But no court has ever held the surveillance statute unconstitutional or any statute like it—anywhere in the country. What defense bars this claim, if any?
None. Municipalities do not have any immunity defenses that would protect them from damages suits. They do not have sovereign immunity or personal immunities.
Can you sue a municipal supervisor personally for damages even when they had no personal involvement in the misconduct of their subordinate at issue? Why or why not?
Supervisors need not be personally involved to be liable for damages, they merely need to be deliberately indifferent to the misconduct—either because they knew of it and took no action or because they acquiesced in or endorsed it.
A city police officer removes a civilian silently protesting inside city hall after the mayor tells the officer “I don’t care that this is public space, get this person out of the building.” The plaintiff sues the city for damages, pointing to only this one episode of misconduct under the First Amendment. Can the city be liable? Why or why not?
Yes, a single officer’s actions can be enough to establish Monell liability if that conduct is in fact directly traceable to the final policymaker or is otherwise ratified by the final policymaker.
Can plaintiffs who were attacked by police and received a bogus citation for resisting arrest seek an injunction that would bar the police department from continuing its pattern of excessive force? The resisting arrest charge necessarily requires the court to consider whether the force officers used against plaintiffs was reasonable at the time of arrest.
Yes they can. Because under both Younger and Heck, you can sue to prevent purely prospective harms, without asking the Court to opine on the particular circumstances of a past incident of excessive harm.
A student sues her public school, alleging she was suspended for wearing a political protest T-shirt about Palestine while on the public sidewalk directly outside the school. What constitutional right is implicated, what is the theory of liability, and what is the standard of review in this kind of forum?
First Amendment -- right to free speech. This is a content-based restriction on a political message in a traditionally public forum, which means that strict scrutiny applies. (i.e. you must show that the restriction is narrowly tailored to achieve a compelling government interest.)
A driver sues the city to stop police checkpoints in the city, even though he has never been stopped himself. Could he have standing? And if so, how?
Yes. Although past harms are a stronger predicter of future injury, ultimately it is only the likelihood of future harm that matters for injunctive relief standing. So you would want to show the repeated practice and how common it is for people to be stopped, to show why it is likely that the client could be stopped in the future.
Police arrest a protester and use a specific restraint technique that had never before been ruled unconstitutional in that jurisdiction. The protester sues for damages. Name two strategies you can use to successfully survive a qualified immunity defense under these circumstances.
(1) Argue for a different level of generality regarding application of excessive force generally; and
(2) argue persuasive authority from other circuits, showing that it still placed the question beyond doubt; or
(3) analyze to specific in-circuit authorities regarding similar techniques.
A community leader wants to sue the federal government for damages as a result of a biased stop in violation of the Fourth Amendment and a discriminatory prosecution under the Fourteenth Amendment. Can the community leader get damages against the federal government for these causes of action? Why or why not?
Yes to the Fourth Amendment (Bivens); no to the Fifth Amendment (non-extension of Bivens).
A prisoner sues the county jail alleging a widespread custom or practice of abuse by guards at the county jail. Is that enough to establish Monell liability? Why or why not?
Not on its own, because you would need to show deliberate indifference on the part of the final policy maker at the county jail. In other words: (1) who is the final policymaker for the jail; and (2) did that final policy know, or should they have known, about the misconduct at the jail.
A plaintiff organization sues to enjoin a written federal agency policy that will result in the cancellation of all grants for itself and like organizations based on First Amendment viewpoint discrimination. Can the organization sue to enjoin the entire federal agency policy? What is the relevant test that determines the answer to this question?
Likely not, without a class action, because the organization itself would be able to obtain complete relief without the need for the court to apply the injunction to protect any individuals who are not also litigants in the case.
A tenant sues the city after receiving a letter in the mail saying she lost her housing benefits because she was determined to have violated the rules of eligibility. She also was informed that she was not accepted into the pilot housing program she applied for, even though she met the criteria to join that program based on the application website. What constitutional rights are implicated, and what must the city provide?
Fourteenth Amendment -- procedural due process. The city must provide notice and a fair opportunity to be heard prior to the taking away of the housing benefits. But the city has no obligations as to the optional pilot program, to which the tenant has no specific property right in state statute or law.
What is the standard for causation under Article III standing, how is it interpreted by courts, and give an example of when courts would not find causation based on a chain of events.
The actions must be “fairly traceable” -- that effectively means that you need to have “some connection” to enforcement, or otherwise that you were a sufficient cause in the chain of events leading to the harm.
A town resident sues the local municipal court for automatically imposing late fees without judicial sign-off—bringing a class action for damages against the court and its clerks. Are damages available? Why or why not?
Yes. Damages are likely available because judicial immunity does not extend to actions not taken by a judge as a part of their judicial duties. Here, because there is no judicial sign-off, and the clerks impose the fees, there is no judicial immunity that would bar this suit.
How can you obtain damages relief directly against state and federal agencies in civil rights cases? What are the barriers, and what are the avenues for potential success? How would they work?
Even if Section 1983 does not provide a vehicle because of sovereign immunity, there are still the FTCA and the state tort claims acts. And you would need to point to an available start tort-type claim that approximates to the constitutional violation you are considering, or to otherwise examine whether the state tort claims act permits constitutional torts to be brought. Because the FTCA does not.
A city housing authority is unsure how to interpret a new state statute that may require them to deny public housing to those with criminal convictions, and seeks advice from the State Attorney General in the form of an official opinion. The AG’s Office confirms that the law requires that outcome. The state housing authority also issued an email informing local housing authorities about the changes in the statute, and recommended local housing authorities consult their attorneys about implementation. The city housing authority then begins denying public housing to those with criminal convictions. Who can be sued for injunctive relief in this scenario, what for, and under what theories of liability?
The local housing authority can be sued under a Monell theory for an official policy of denying housing under the state statute. The AG can be sued under an Ex Parte Young theory for having “some connection” to enforcement in the form of advice to the local agency responsible for compliance. The state housing authority probably cannot be sued because it is not giving instructions that in any way lead to the plaintiff’s harm.
Can a plaintiff sue to enjoin a custom or practice of targeting protesters for arrest and prosecution based on viewpoint if they currently have criminal case in state court based on an arrest they say was targeted at them solely because of their viewpoint? Why or why not?
This is a Younger problem. And the answer is that the claim can probably continue—because retaliation is not a valid defense that could be raised or would need to be assessed in the state criminal court proceeding. So there is no “interference” with the state court proceeding.
A protester is arrested under a statute that bans offensive and inappropriate behavior at public meetings after screaming profanities at the city council following a vote on towing vehicles with late parking tickets. What constitutional doctrines makes this law vulnerable—or the protester’s arrest in particular?
Due Process Clause (Fifth and Fourteenth Amendments)—Vagueness. And also First Amendment overbreadth because the rule encompasses substantially more speech than appropriate for the government’s aims. The difference here is that the law is facially invalid, even if it might be valid as applied specifically to the arrested protester.
Q: An organization of cannabis advocates is actively engaged in supporting a new ballot measure that would make non-medical cannabis legal in Kansas. But the organization isn’t incorporated, it’s not a formal 501(c)(3), and it’s just a gathering of people who all care about cannabis reform or are cannabis users. The members direct the organization’s work through informal weekly meetings. The organization wants to sue to challenge the city’s new protest ordinance—which would ban the organization from hosting rallies in support of the ballot measure. Does the group have standing? And if so, how?
Yes. An organization may sue if any of its members have standing and the case relates to the group’s mission, or if the group is directly harmed in achieving its mission by virtue of the challenged action.
A plaintiff is currently serving a probation sentence and has been assigned a series of draconian restrictions that prevent the plaintiff from carpooling or spending time with family and friends who have a criminal record. The plaintiff asks a federal court to invalidate the probation conditions the judge has imposed. Can the federal court step in? Why or why not?
Generally no. Under Younger abstention, federal courts avoid interfering with ongoing state proceedings absent extraordinary circumstances. Probation is one such ongoing state court proceeding. The relevant inquiry is whether the plaintiff can credibly assert a likelihood of being subjected to probation conditions in the future, as opposed to just declaratory and damages relief that are barred.