Law Commons^™

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the …

The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports

Journal Articles

This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified and retreated from its precedents, without offering any explanation or even acknowledging that it is deviating from past practice.

In making this claim, I focus on three specific issues: the manner in which the Court characterizes the standard governing the qualified immunity defense; the question …

The Long-Term Implications Of Gonzaga V. Doe, Bradford Mank

Faculty Articles and Other Publications

State and local governments are often responsible for disbursing federal medical, educational, and welfare benefits. What happens when they deny or revoke them unfairly? Some recipients have used 42 U.S.C. § 1983 as a way to enforce the underlying statutes. The Supreme Court decision in Gonzaga University v. Doe, 536 U.S. 273 (2002), made this more difficult. In doing so, the Court adopted stringent rules for the use of § 1983 to enforce any federal laws, including the nation’s civil rights laws.

Brief For The National Association Of Social Workers And The Ohio Chapter Of The National Association Of Social Workers As Amici Curie In Support Of Petitioners, No. 13-933, United States Supreme Court (Mar. 6, 2014), Doron M. Kalir, Carolyn I. Polowy

Law Faculty Briefs and Court Documents

NASW's first argument is simple. To protect children from abuse - a major congressional and state legislative goal - this Court should apply qualified immunity to protect social workers from personal liability where a reasonable decision has been made to remove a child without a warrant.

NASW's second argument is equally cogent. DeShaney was decided 25 years ago. Since then, this Court's "continued silence" on the issue, Kovacic, 724 F.3d at 708 (Sutton, J., dissenting), has failed "to provide guidance to those charged with the difficult task of protecting child welfare within the confines of the Fourth Amendment." Camreta v. …

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

Law Faculty Publications

No abstract provided.

Suing Under §1983: The Future After Gonzaga V. Doe, Bradford Mank

Faculty Articles and Other Publications

In 2002, the Supreme Court in Gonzaga University v. Doe held that the nondisclosure provisions of the Family Educational Rights and Privacy Act (FERPA) did not establish an individual right enforceable through 42 U.S.C. §1983. Chief Justice Rehnquist's requirement of clear and unambiguous proof that Congress intended to establish an individual right on behalf of a class including the plaintiff placed an additional burden on plaintiffs by effectively demanding proof that Congress would have wanted thousands of private suits. The requirement eroded the Court's precedent emphasizing the presumptive enforcement of federal statutory rights through §1983. This Article will focus on …

Wilderness And The Public Lands, John D. Leshy

The Federal Land Policy and Management Act (Summer Conference, June 6-8)

18 pages (includes chart).

Federal Land Sales And Exchanges, Jon K. Mulford

The Federal Land Policy and Management Act (Summer Conference, June 6-8)

140 pages (includes map).

Includes 27 pages of text, 1 page of references, and 17 appendices.