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The Role Of Fault In § 1983 Municipal Liability, Michael Wells

Scholarly Works

Under Monell v. Department of Social Services, local governments are not vicariously liable for constitutional violations committed by their employees. Those governments, however, are liable under 42 U.S.C. § 1983 for violations committed by "policymaking" officials. In the face of these two principles, courts have struggled with cases in which an underling commits a constitutional violation and the claim of municipal liability is based on a policymaker's failure to prevent it. The government can be liable in these "indirect-effect" cases for a policymaker's "deliberate indifference" to safeguarding constitutional rights, a standard that demands an even greater showing of culpability than …

Suing The President For First Amendment Violations, Sonja R. West

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On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?

One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely …

Qualified Immunity And Statutory Interpretation: A Response To William Baude, Hillel Y. Levin, Michael Wells

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In his article, Is Qualified Immunity Unlawful?, Professor Baude argues that the doctrine of qualified immunity under section 1983 is unlawful because the doctrine did not exist at the time section 1983 was enacted. We disagree. Section 1983 is a common law statute. Consequently, its meaning and application was not fixed at the time of original passage. In this article, we explain why.

Although we are sympathetic to Professor Baude’s implicit policy-based critique of the doctrine of qualified immunity, we believe his analysis is flawed. The better and more likely way to improve the doctrine is through the common law …

Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability, Martin Schwartz

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This article discusses the Supreme Court's ruling in Rehberg v. Paulk, 132 S. Ct. 1497 (2012), which extended the absolute witness immunity recognized in Briscoe v. LaHue, to grand jury witnesses. In an unanimous opinion, written by Justice Samuel A. Alito, Jr., the Court held that grand jury witnesses are absolutely immune from §1983 liability for their testimony, and even for conspiring to give false testimony.

Supreme Court Fortifies Qualified Immunity For Law Enforcement Officers In Warrant Cases, Martin Schwartz

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This article analyzes the significance of the United States Supreme Court decision in Messerschmidt v. Millender, 132 S.Ct. 1652 (2012), upon §1983 Fourth Amendment claims asserted against state and local law enforcement officers who apply for and enforce warrants. Millender held that police officers who sought and executed a very broad warrant authorizing them to search a residence for guns and gang related material were protected by qualified immunity. The author asserts that §1983 plaintiffs, who seek to recover damages based upon either the application or execution of an allegedly unconstitutional warrant, will now have to overcome various layers of …

Wrongful Conviction Claims Under Section 1983, Martin A. Schwartz, Robert W. Pratt

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No abstract provided.

Scott V. Harris And The Role Of The Jury In Constitutional Litigation, Michael Wells

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Suits brought under 42 U.S.C. section 1983 to recover damages for excessive force by the police bear some resemblance to common law tort litigation, since the key Fourth Amendment issue is whether the force was 'unreasonable.' In ordinary negligence law the jury typically decides whether an actor has exercised reasonable care, even when there is no dispute as to the facts. In section 1983 litigation the federal courts are badly split on the allocation of decision making between judge and jury, sometimes even within a particular circuit. The Supreme Court recently faced the judge-jury issue in Scott v. Harris, where …

Supreme Court § 1983 Decisions-October 2008 Term, Martin A. Schwartz

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No abstract provided.

Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein

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No abstract provided.

Takings Cases In The October 2004 Term (Symposium: The Seventeenth Annual Supreme Court Review), Leon D. Lazer

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No abstract provided.

Identifying State Actors In Constitutional Litigation: Reviving The Role Of Substantive Context, Michael L. Wells

Scholarly Works

While most section 1983 suits are brought against local governments and officials, an increasing number of plaintiffs target private persons and businesses who have collaborated with government in one way or another. In such cases, plaintiffs claim that private entities have acted "under color of state law" in violation of the plaintiffs' rights. They must establish that the defendants are nonetheless "state actors" in order to prevail on the constitutional claims they raise. The broad range of cases includes, among others, efforts to obtain relief against creditors who use self-help remedies, litigation directed at persons who have cooperated with state …

Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz

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No abstract provided.

New Issues Arising Under Section 1983, Martin A. Schwartz

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No abstract provided.

Fundamentals Of Section 1983 Litigation, Martin A. Schwartz

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The 2000-2001 Supreme Court Term: Section 1983 Cases, Martin A. Schwartz

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No abstract provided.

Should Juries Be Informed That Municipality Will Indemnify Officer’S 1983 Liability For Constitutional Wrongdoing?, Martin A. Schwartz

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No abstract provided.

Section 1983 Litigation – Supreme Court Developments, Martin A. Schwartz

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No abstract provided.

Supreme Court Section 1983 Developments: October 1998 Term, Martin A. Schwartz

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No abstract provided.

Supreme Court Section 1983 Developments, Martin A. Schwartz

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No abstract provided.

Section 1983 Litigation, Martin A. Schwartz, George C. Pratt

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No abstract provided.

Section 1983 Litigation, Martin A. Schwartz

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Section 1983 In The Second Circuit, Martin A. Schwartz

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Section 1983, Martin A. Schwartz, George Pratt, Leon Friedman

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No abstract provided.

Section 1983, Martin A. Schwartz, Leon Lazer, George Pratt, Leon Friedman

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No abstract provided.

The Preiser Puzzle: Continued Frustrating Conflict Between The Civil Rights And Habeas Corpus Remedies For State Prisoners, Martin A. Schwartz

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No abstract provided.