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Continuing Education Partial Notes – 42 USC 1983 Litigation

by merlin on November 10th, 2017
  • Sumo


November 9, 2017; State Bar HQ


Federal Constitutional and Statutory Protections for Non-Citizens:

Brian Spears (Law Offices of Brian Spears)

Michelle R. Lapointe (Southern Poverty Law Center)


4th Amendment Protections:

Regardless of immigration status, 4th Amendment applies (all persons) – Zadvydas v. Davis, 533 U.S. 678 (2001).


14th Amendment:

State has less power than feds because of plenary power

  • Ziglar v. Abbasi (2017): Limits Bivens remedy for claims of constitutional violations against high-ranking officials arising out of post-9/11 harsh detention policies and practices
  • Noncitizens are considered “discrete and insular minority” and strict scrutiny applies to classifications based on alienage. Graham v. Richardson, 403 U.S. 365 (1971)


“Important rights” (such as education, via Plyler) versus “fundamental rights” (life, liberty, etc.) – courts have struggled with trying to find the right level of scrutiny – INTERMEDIATE SCRUTINY


State Sovereign Immunity, Post-Lathrop

Craig Goodmark:


Seek declaratory/injunctive relief.

Lathrop limited the judicial branch power to grant relief; seek to sue the personal holder of the office in charge?  Defendants are the State and the official in their official capacity


Sovereign Immunity is limited ONLY by statutory or constitutional waivers


Could not even get them 1974 to 1983 beyond insurance purchased.  In 1983, legislature resumed waivers.


Georgia DNR v. Center for Sustainable Coast, 294 Ga. 593 (2014):

Overruled IBM v. Evans (which held that sovereign immunity bars suit for injunctive relief); expressly overruled Evans (since only the legislature can waive sovereign immunity, it’s actually an illegal waiver)


            Brian Spears is the best person to ask about the Sustainable Coast case.


Exceptions: Georgia Tort Claims Act?  Administrative Procedure Act?  What about CONSTITUTIONAL CHALLENGES?

  • Lathrop v. Deal says that sovereign immunity goes to constitutional challenges, too.  It extends “from the very nature of sovereignty itself”.
  • Can ONLY sue the actors in the INDIVIDUAL CAPACITIES (because of Lathrop and Sustainable Coast)

Name State Defendants in their individual capacity; sue under existing exemptions to sovereign immunity:

  • Breach of contract
  • GTCA
  • Georgia APA


Use extraordinary writs (mandamus, quo warranto)

Plead ministerial acts of individual state actor

Amend complaint to drop agency




Offers of Judgment in Civil Actions (FRCP Rule 68)

Michael Caplan (Caplan, Cobb, LLP)


Rule 68(d) ONLY kicks in when a Plaintiff actually WINS the case


Defendants need to think about Rule 68 to limit Plaintiff recovery

Even if Plaintiff prevails and rejects it, they still have to prove the reasonableness of their fees at the time the offer was made.


Compare to § 9-11-68 (offers of settlement):

  • If Plaintiff loses or wins less than 75% of amount offered, they have to pay BOTH sides’ costs.
  • If the Plaintiff gets more than 125% of amount offered, then they can collect all costs and fees from the date of the rejection, too.


Remember that if only federal claims are brought in federal court, stuck with Rule 68, but if any State law claims are included then can include a § 9-11-68 claim in response


Pre-Suit Notice of Dispute:

  • For attorney’s fees, generally REQUIRED!

Getting Classy With Section 1983 (Class Actions)

Crystal Redd, Southern Center for Human Rights



Building the Plaintiff Class:

  • Cold calls
  • Word of mouth
  • Local activists
  • Court-watching (and Court research)
  • Open Records requests


For the definition of the class, remember “ALL PERSONS WHO ARE NOW OR WILL BE IN THE FUTURE…”


Class representatives:

  • Compelling story for the class
  • Comfortable having story shared
  • They understand the remedy (ie – injunctive relief means no money)


Class certification:


Settlement: REMEMBER NOTICES if there are damages



Malicious Prosecution Claims

Jeffrey Filipovits (Filipovits Law Firm)


Malicious Prosecution claims are governed by 4th Amendment (Manuel). 

  • Must remind Court up front that it is controlled by federal law even if State law doesn’t recognize it.
  • Official Immunity is a nightmare, state tort claims confer immunity on them, and state policy frowns on malicious prosecution


  1. Initiation of a prosecution (must be pursuant to a “legal process”)
  • Remember: “False Arrest” versus “Malicious Prosecution”
  1. There must be a detention pursuant to the legal process that is ONGOING

(there are conditions on a bond such as not letting them leave the State that constitute a continuing seizure)

  1. Arrest must be made WITHOUT PROBABLE CAUSE
  • The Monroe rule: Monroe v. Seigler, 256 Ga. 759 (1987) – if judge denies directed verdict, no malicious prosecution suit unless denial was secured through fraud
  • Devenpeck – being subsequently charged with an offense less serious than the one the person was arrested for can absolve of liability
  • Admissibility of ultimate evidence of guilt – upholds validity of otherwise invalid arrest
  • What if Defendant is not a law enforcement officer?
  • Is the fact that a judge signed off on a warrant a defense? It shouldn’t be, especially if the officer has selectively omitted important facts
  1. Must be made WITH MALICE.
  • It can be inferred from lack of probable cause, and it runs contrary to the “objective” standard of the Fourth Amendment






Perspectives from the Bench

Hon. Catherine Salinas

“Magistrate Judge in the United States District Court”


Consent to jurisdiction by Magistrate Court more often – they have the scheduling ability, etc., and want it.


“magistrate” is an ADJECTIVE, not a NOUN.


Protests: Speech and Signage Issues

Sean R. Young (ACLU)


Speech regulation: “content neutral” (intermediate scrutiny) versus content discrimination (strict scrutiny)

  • If you have to read the sign to enforce regulation, it isn’t content neutral.


Motive analysis: Look into the hearts of the legislators (good, or evil?):

If it’s intended to suppress a viewpoint, that’s NOT content-neutral and you need a neutral justification


Apply these tests except when you don’t.


When is it content-neutral?

  • Risk-sniffing test: Is there a RISK that the government will suppress speech it doesn’t like?
  • Strict scrutiny is UNWARRANTED when the risk is inconsequential.


Reed v. Town of Gilbert (2015):

  • Sign ordinance set size restrictions for signs, depending on whether they were “ideological”, “political”, or “temporary directional”
  • Court applied facial analysis and motive analysis to find the regulation unconstitutional under strict scrutiny

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