McBlogmick

Why is it that now that I don't teach civil rights anymore I see all of these interesting civil rights cases? Here's one about malicious prosecution. In Parish v. City of Chicago, the Seventh Circuit reaffirmed prior precedent that had held that malicious prosecution cases under § 1983 were to be analyzed as procedural due process cases. Essentially, this follows the reasoning that malicious prosecution essentially theorizes that the defendant's actions were random and unauthorized acts, rather than a law, governmental policy, or government procedure. And where an injury is caused by a random and unauthorized act, as long as there is a remedy available under state law, there is no cause of action under § 1983 for a violation of due process.

That is what the Supreme Court has said about actions explicitly premised as procedural due process claims, but I'm not sure that malicious prosecution is a procedural due process claim. Malicious prosecution is an intentional tort, and usually claims that a government actor took an action for a prohibited reason are substantive and not procedural due process claims. Only two Supreme Court Justices have advocated this approach, and they glossed over the procedural/substantive distinction.Still, it doesn't look like the Seventh Circuit will be revisiting that issue any time soon.

This has nothing to do with my usual subjects, although loosely it's related to civil rights and con. law, but this is an interesting opinion from the 10th Circuit. As you may know, John Grisham wrote a nonfiction book published in 2006 about a wrongful conviction. He painted the prosecutor, a police officer, and the state criminologis in a rather negative light, and they sued Grisham along with three other men who had written about the case for defamation, intentional infliction of emotional distress, false light, and civil conspiracy. The alleged conspiracy was to abolish the death penalty, so you might guess where this is going. The district court dismissed for failure to state a claim, and the court of appeals affirmed in large part because public officials don't get to sue people critical of them except in a few narrow circumstances. It's an interesting opinion.

Here are podcasts covering the first part of class:

The introductory material, crintrotheory.mp3

Equal access to education, creducpod.mp3

Public Accommodations and Housing, crpubaccomhsgpod.mp3

Administration of justice, cradminjustpod.mp3

You should note that the chapter on administration of justice could be linked with a lot of the specific section 1983 materials we studied. Protected groups as victims could be linked with the affirmative duties stuff we read, for example.

All right, this is a whopper, I know, but here are the podcasts that already exist for the rest of the semester for Fed. Courts and for Civil Rights. A note for my Fed. Cts students: because we're covering civil rights in the last third of class, just listen to those podcasts to understand the material we're going to cover. They may go into more detail than you need, but they're still pretty general. For my Civil Rights students: I will try to get podcast summaries of the first part of the semester done over Spring Break.

fcts4.mp3 (Congress' power over the jurisdiction of the fed. cts.)

fcts5.mp3 (subject matter jurisdiction)

fcts6.mp3 (Supreme Court review of state courts)

fcts7.mp3 (Diversity, supplemental jurisdiction, and removal).

fcts8.mp3 (abstention--we didn't cover this, but just in case you're dying to know)

clpod1.mp3 (Intro to 1983)

clpod2.mp3 (under color of state law)

crpod3.mp3 (substantive constitutional law enforceable under 1983)

crpod4.mp3 (affirmative constitutional duties and enforcement of statutes)

crpod5.mp3 (municipal liability)

crpod6.mp3 (causation)

crpod7.mp3 (individual immunities)

crpod8.mp3 (procedural defenses--I'm not sure we discuss these, but I throw it in just in case)

The NYT had a really interesting article Sunday about a man killed in Texas. He was black, they were white, they all were friends, and the community is divided. Some questions you might think about while reading this are:

1. Just because the accused and the victim were friends, does that negate the possibility that this was racially motivated?

2. What does it say about the community that the two weren't charged until after an outcry. Is that necessarily a bad thing?

3. How might the DOJ's community mediators called in help to work this out?

4. And how might the community heal and move forward?

You may have listened to the archived civil rights podcasts or looked at the scripts on TWEN and thought, "Hey?! What is this stuff?! Where are the podcasts on identity theories and equal educational opportunity?!" Well, they don't exist yet. I haven't had a chance this semester to write those, and I don't think I will have a chance for at least a couple of weeks. Everything you currently have access to is what we will cover in the last half of the semester--Section 1983 and Bivens claims. I'll keep you posted on my progress and apologize for the delay. In the meantime, let me know if you have questions.

Cheers!

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The California Supreme Court today issued this opinion, Marriage cases.pdf, striking down a California law that limited marriage to opposite sex couples. The court held that the law violated California's constitution. One of the really interesting things about this case was that California had established a civil union system for same sex couples, giving them nearly the same privileges and obligations as couples who were married.

crpod8.mp3

Thanks for being such a fun class!

Here are the podcasts for causation, crpod6.mp3, and individual immunities, crpod7.mp3. I'll get a short podcast done on procedural defenses early tomorrow.

Good luck!

Here are podcast summaries for chapters 4 and 5: crpod4.mp3, crpod5.mp3

We finished chapter 6 the Tuesday before break. I'll have that one up early next week. And I'll put up a summary of chapter 7 probably later in the week (we'll finish it Tuesday). The rest of the semester will be qualified immunity, procedural defenses, and exhaustion.

Just in time, the podcast on our third chapter, substantive law issues, is ready. crpod3.mp3.

Enjoy!

All right. I now have completed podcast summaries for two of the three chapters we will have covered by the end of class on Tuesday: the Introduction, clpod1.mp3; and "under color of state law," clpod2.mp3. The scripts for them are posted on our TWEN page under "class materials."

If you haven't had me for a class before, let me give you a little detail on how these summaries fit into class. Essentially, I try to provide the big picture through them. They really are just a summary of the most important parts of the material we've covered. And so they highlight the main issues, list any tests or factors the courts use, and give some background to give the material context or to tie it to the rest of the class or other subjects that you have studied. These do not represent what I expect you to write on a practice problem or exam answer. On those, you'll have to tell me what the rule is that you need to answer the question, but most of your writing will focus on applying that rule to the facts as thoroughly as possible.

Let me know if you have any questions or want me to follow up on anything in more detail.

I know it's early to be thinking about next semester, but I've had a couple of people ask already about books and things. The book for Federal Courts is the 5th edition of Chemerinsky's Federal Jurisdiction treatise. I'll be supplementing it through the semester with cases that I've edited. Sorry that you won't be able to get it used (it's a new edition), but it's a relatively more reasonable book than your usual textbook. For Civil Rights, we'll be using the text, Constitutional Torts, for which Sheldon Nahmod is the lead author. It's the 2d edition, published in 2004, and LexisNexis is the publisher.

Don't forget to register for the TWEN page, and I'll see you next semester. Have a great break!