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Continuing Education Notes (Litigation Under 42 USC § 1983)

by merlin on November 14th, 2013
  • Sumo


November 14, 2013; State Bar HQ


Inmate-on-Inmate violence:

Melanie Velez:


FOI requests:

Investigative Requests

Complaint forms; responses

Copy of Facility Grievance Procedures

Jail Rosters and officers on duty

Officer documentation of incidents

Medical files

–         Correspondence related to individual


See the Prisoner Self-Help Handbook


Civil Rights of Students Litigated Through 42 USC § 1983:

Adam Wolf and Craig Goodmark


1st Amendment:

  1. A.    Clothing Codes
  • Tinker v. Des Moines (about black armbands protesting Viet Nam war):
  1. Established idea that students have Constitutional rights in schools
  2. Students’ rights are generally protected, but yield to reasonable regulation
  • Gariano (N.D.Ca):   Student showed up in school w/ T-shirt emblazoned with American flag, and wore that shirt that day (Cinco de Mayo); fight-prone past
  • There was actual notice from another student suspended for hanging Mexican flag publicly that day


4th Amendment:

  1. B.    Student Strip Searches

What about other places where drugs could be stashed besides clothing?

  • Is there a requirement that the [government officials] check there FIRST?
    • No – must merely be “reasonable in relation”
    • Is it different in “kind and degree”?





Immigration Status:

Erik John Meder

  • “Immigrant” versus “Legal worker status”
  • Current wave is primarily the poor of other nations
  • Because of current American economic conditions, primarily found in the Southeast
  • Largest immigrant groups now are Latin American and Asian

1992 Law:      Primary source of influence over immigration

  • 1996 – small part of the reform law came to prominence post-2001.  “Can Congress give their power away to local municipalities to empower them to act against immigrants?”
  • Section 287(g) – Act protects them from liability by saying the entity is acting under color of federal authority; most notably in Georgia in COBB COUNTY; 8 USC § 1357(g)(1)?
  • O’Connor (interpreting 287(g)):  Congress doesn’t have the power to mandate States to exercise federal regulatory authority


December 2012:       ICE made a police change saying that only persons that could be detained were violent offenders, DUIs, etc.

  • Fewer than 1 in 9 actually meet these standards, and about a third of those that remain detained have absolutely NO record.
  • 80-90% denial of Georgia asylum seekers


1st, 4th, 5th, and 14th Amendments apply to illegal aliens as well as citizens (“people”).  First Amendment because right implicates rights of citizens to HEAR WHAT ALIENS ARE SAYING!


Open Records Act Investigations

Hollie Manheimer (


  • Has been revised under a new Act (April 17, 2012) pushed through under Sam Olens
  • Mechanics have changed: generally, agencies covered remain same as 2012 and earlier
  • Verbal and oral open records requests still valid (not advised, but valid) – however, remedies only available if written
  • Still a 3-day turnaround under law
  • Law now requires rolling production if only some is available upon request (more must be provided as it becomes available)
  • $.10 per page for public agency papers/ must pre-pay for over $500 requests, or if any past nonpayment issues


Law actually requires that the records be provided by “the most economical means available” – Question: Could you therefore request that documents be e-mailed to you if they were scanned?


  • There are CIVIL PENALTIES (available for private action) for negligent violation of the Open Records Act


Qualified Immunity in § 1983 Cases

Leighton Moore:

  • State or federal official
  • Sued in individual capacity
  • For exercise of discretionary function

Cannot sue prosecutors, judges, or legislators (when performing their proper functions)

Qualified immunity to federal agents under Bivens, 403 US 388 (1971)

Qualified immunity to state or local government actors under 42 USC § 1983


Harlow, 457 US 800 (1982):

  • Norm for executive branch officials is generally qualified, not absolute, immunity:

“Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

  • Created a clarified standard for a district court to base on – easier for Defendant to use qualified immunity and harder for Plaintiff to bring suit


What if there is a split in the Circuits?

  • Just because a single judge in a different Circuit differs in their opinion doesn’t mean the disagreement is valid; look to SCOTUS, relevant Circuit, highest relevant State Court
  • Whole idea behind qualified immunity is to protect reasonable judgments that are wrong
  • Question is not whether the ACTION was reasonable, but whether the actor had a “REASONABLE BELIEF”




A denial of a motion to dismiss based on qualified immunity gives rise to an appeal AS A RIGHT (not a need for an interlocutory appeal) – 28 USC § 1291


Insurance and Indemnification for Civil Rights Litigation

G. Brian Spears:

  • If action is taken in official capacity, it is “under color of law” – check Supreme Court law on this (there are cases on point)
  • Responding to Summary Judgment:
    • City policy rider insures/indemnifies for civil rights violations
    • Conduct MUST BE more than mere negligence
    • See the Georgia Tort Claims Act
    • Georgia’s indemnification statute – authorizes the State to purchase liability insurance (they do) for victims of violations of civil rights (note that this is NOT the same as torts – State officials generally enjoy ABSOLUTE IMMUNITY for ordinary tort actions that are not also civil rights actions)

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