1. Remedies Against Govt Defendants – Some Basics 11 th amendment bars suits against the State, unless Lawsuit is against state officer in their official capacity for prospective relief. Congress has overridden or State has waived 11 th amendment immunity to damages Sovereign immunity (essential basis for 11 th A) bars lawsuits against the U.S. unless a statute authorizes such suits The Administrative Procedure Act allows all suits for injunctive/declaratory relief against the U.S., its agencies and its officers The FTCA allows suits for damages against the U.S. for the negligent torts of its employees/officers if act was a tort in the state it occurred The Tucker Act allows suits for damages against the U.S. for breach of contract and other non-tort claims. SCT recognizes that individual officers may be sued for damages for violating the U.S. Constitution (Bivens actions) State/local officers (municipalities too) may be sued under Sec. 1983 for violations of federal law (statutes/Constitution)

2. Lawsuits Against State/Local Government Officials – Personal Capacity Suits 42 U.S.C. § 1983: Creates a cause of action for damages/ injunction against any person who, acting under color of state law, abridges rights created by the Constitution/laws of the U.S. This is the primary statutory vehicle plaintiffs use to sue state/local government for constitutional torts. A §1983 lawsuit can be brought in state/federal court against individual govt actors These are lawsuits against an officer in his/her personal capacity and they follow that officer monetarily & personally States often agree to indemnify officers in such suits Bivens actions against federal officers for violations of federal law operate in a similar manner Are instituted against individual officers (e.g., personal capacity suits) and can be brought in state/federal court

3. Personal Capacity Suit – Immunity Defenses Ds in Sec. 1983 and Bivens actions can sometimes raise an affirmative defense to personal capacity lawsuits: Absolute immunity Qualified immunity Availability of immunity defense generally depends upon remedy sought: Injunction = Official has no Immunity Defense (one major exception) Damages = Official may have Absolute or Qualified Immunity Defense

4. Absolute Immunity Defenses to Section 1983 Suits Seeking Damages When determining whether absolute immunity from damages exists, focus is on the function performed by the official. Few officials enjoy absolute immunity. The categories include: Judges – judicial function (does not include promulgating rules of conduct for lawyers or actions clearly in excess of jurisdiction) Legislators – legislative function (includes any part of the legislators deliberative process) Includes immunity against civil suits seeking damages, injunctions or declaratory judgment and from criminal prosecution Prosecutors – prosecutorial activities (when acting as officer of court but not for most investigative or administrative tasks) POTUS – only for acts of office

5. Why absolute immunity? For judges & prosecutors? Why does Congress have such broad immunity compared to other officials? For President: President is special – the one official that needs to be free from legal distractions Immunity does not extend to aides or other high-level executive officials (V-P, governors, etc.) Immunity also exists only for suits for damages – it is not immunity from all legal process (e.g., subpoenas)

6. Harlow v. Fitzgerald – Qualified Immunity Even if an official doesnt have absolute immunity. They might have a qualified immunity defense. Current Standard: Govt 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. What is the goal of qualified immunity defense? Why not just provide absolute immunity? Why does the Court adopt an objective standard that excludes the previous subjective good faith standard?

7. Dealing with the clearly established constitutional or statutory rights requirement – a hypo Teens in a small Arkansas town spiked the punch at an extra-curricular home-economics meeting. The defendant school board suspended them after a hearing that none of the plaintiffs were allowed to attend. Nor were they ever allowed to present their side of the story. The school board made its decision in Feb. 1972. Teens sued in Arkansas federal district court claiming due process violations. In 1972, SCT had not issued a decision re the due process protections required for high school suspension but it would eventually require minimal protections in 1975. How do you determine if the plaintiffs constitutional rights are clearly established such that a reasonable person should have known that their actions violated them?

8. Clearly established constitutional or statutory rights of which a reasonable person should have known – hypos A nearly factually identical 8 th Circuit decision requiring a due process hearing for school suspensions was decided and published a year before the school board took action. What if the factually identical case is a D. Ark case? What if there was no controlling decision in 8 th Circuit but five other circuits had agreed that due process protections were required? These decisions were handed down well before the school boards decision. What if the lower courts are split as to the state of the law?

9. Clearly established constitutional or statutory rights of which a reasonable person should have known – more hypos What if an earlier 8 th Circuit decision existed requiring due process but it involved college students suspended for a semester for illegal alcohol consumption? What if it involved suspension of junior high students? What if the factually identical 8 th Circuit decision referred to in the first hypo was handed down only 14 days before school boards decision in Wood?