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This fifth edition of Sword & Shield: A Practical Approach to Section 1983 Litigation is substantially reorganized to provide practitioners with easier access to the information they need as they are handling civil rights claims. As in prior editions, the authors provide a timely analysis of practical considerations necessary to practice effectively in this technically difficult and ever-evolving area of law. The chapters are now more tightly focused to provide a roadmap for handling civil rights litigation under § 1983. Topics covered are: A Comprehensive review of the fundamentals of…mehr
This fifth edition of Sword & Shield: A Practical Approach to Section 1983 Litigation is substantially reorganized to provide practitioners with easier access to the information they need as they are handling civil rights claims. As in prior editions, the authors provide a timely analysis of practical considerations necessary to practice effectively in this technically difficult and ever-evolving area of law. The chapters are now more tightly focused to provide a roadmap for handling civil rights litigation under § 1983. Topics covered are:
A Comprehensive review of the fundamentals of Section 1983 litigation into state court, including a discussion of state court jurisdiction, forum choice considerations, the methodology of state court Section 1983 litigation, and more;
Procedural intricacies of Section 1983 litigation in federal court identifying ripeness, forum choice, and removal, and more;
A defense-oriented view of municipal liability under Section 1983;
Police misconduct claims in the context of the complex search and seizure rules that police must follow under the Fourth Amendment;
The constitutional rights of public employees;
The Section 1983 land use case from its inception to the Supreme Court's recent expansion of the right of property owners;
Students' constitutional rights in public school settings; and
Individual immunity defenses under Section 1983.
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Autorenporträt
Mary Massaron, a former chair of the American Bar Association (ABA) State and Local Government Law Section, has concentrated her practice in appellate law for more than 30 years. A former law clerk to Justice Patricia J. Boyle of the Michigan Supreme Court, she has handled or supervised the handling of more than 500 appeals resulting in approximately 50 published opinions, including more than 100 appeals in the Sixth Circuit Court of Appeals. She has appeared for clients before the Alabama, California, Indiana, New Jersey, New York, and Ohio courts, the Tribal Court of Appeals, and all Michigan appellate courts. She is admitted to almost every federal circuit court of appeals and has handled matters before the Second, Third, Sixth, Seventh, and Ninth Circuits. Ms. Massaron served as only the second female president of the Defense Research Institute (DRI), and the first woman president of Lawyers for Civil Justice (LCJ). In recognition of her professional accomplishments, Ms. Massaron was inducted into the American Academy of Appellate Lawyers, one of only a handful of Michigan lawyers to be invited to join. She also is a member of the American Law Institute and a past chair of the ABA Council of Appellate Lawyers, a division of the Appellate Judges Conference. Ms. Massaron was also invited to join the International Association of Defense Counsel (IADC) and the Association of Defense Trial Attorneys (ADTA), both peer-reviewed membership organizations. Ms. Massaron has been recognized by Best Lawyers in America for Appellate Law and has been repeatedly acknowledged as one of the top 100 lawyers, top 50 business lawyers, top 25 women business lawyers, top 50 female lawyers, and top appellate law practitioners by Michigan Super Lawyers. She was recognized as the Detroit Appellate Practice ¿Lawyer of the Year¿ in 2017 by Best Lawyer and as the Bloomfield Hills ¿Appellate Lawyer of the Year¿ in 2020. Business Magazine has named her top appellate lawyer for the past five years. Josephine A. DeLorenzo serves as co-leader of Plunkett Cooney's Appellate Law Practice Group. A member of the firm's Bloomfield Hills office, she focuses her practice exclusively in the areas of appellate and insurance law, with particular expertise in governmental law and insurance coverage. Ms. DeLorenzo is a former law clerk to the Honorable Kurtis T. Wilder when he served on the Michigan Court of Appeals, as well as a prehearing attorney for the court. She also has experience in journalism having served as editor for a trade publication and as a staff assistant for the Weekly Standard in Washington, D.C. Ms. DeLorenzo graduated magna cum laude from University of Notre Dame in 1991 and summa cum laude from University of Detroit Mercy School of Law in 2008. She joined Plunkett Cooney in 2011 and became a partner in 2017.
Inhaltsangabe
Acknowledgments v About the Editors xix About the Contributors xxi Preface xxxiii CHAPTER 1: FUNDAMENTALS OF SECTION 1983 LITIGATION 1 by Martin A. Schwartz I. INTRODUCTION 5 II. ELEMENTS OF THE SECTION 1983 CLAIM, FUNCTIONAL ROLE OF SECTION 1983, PLEADING, AND JURISDICTION 6 III. SECTION 1983 PLAINTIFFS 13 IV. CONSTITUTIONAL RIGHTS ENFORCEABLE UNDER SECTION 1983 14 V. ENFORCEMENT OF FEDERAL STATUTES UNDER SECTION 1983 18 VI. SECTION 1983 DEFENDANTS: WHO ARE SUABLE PERSONS? 19 VII. COLOR OF STATE LAW AND STATE ACTION 21 VIII. CAUSATION 26 IX. CAPACITY OF CLAIM 28 A. X. MUNICIPAL LIABILITY 29 XI. LIABILITY OF SUPERVISORS 34 XII. RELATIONSHIP BETWEEN INDIVIDUAL AND MUNICIPAL LIABILITY 36 CHAPER 2 PLAINTIFF S LITIGATION STRATEGY CONSIDERATIONS by Anna Benvenutti Hoffmann, Alexandra Lampert, and Ranjana Natarajan I. INTRODUCTION 116 II. INITIATING A CASE: AN OVERVIEW FOR PLAINTIFF S COUNSEL 116 III. INITIAL SELECTION OF FORUM 125 IV. PLEADING AND FILING THE SECTION 1983 LAWSUIT 128 CHAPTER 3 DEFENDANT S LITIGATION STRATEGY CONSIDERATIONS by Jeff Lowe I. INVESTIGATION AND INFORMATION GATHERING 147 CHAPTER 4 CLAIMS UNDER 42 U.S.C. § 1983: A DISCUSSION OF PROCEDURAL ISSUES AND IMMUNITIES by Michael S. Bogren I. OVERVIEW 168 II. PROCEDURAL ISSUES IN SECTION 1983 LITIGATION 172 III. ABSOLUTE IMMUNITIES 186 A. Introduction 186 IV. QUALIFIED IMMUNITY 200 V. CONCLUSION 210 CHAPTER 5 FIRST AMENDMENT CLAIMS by Steven C. Stern and Chelsea Weisbord I. INTRODUCTION 229 II. GOVERNMENT REGULATION OF SPEECH: GENERAL PRINCIPLES 230 III. GOVERNMENT-REGULATED SPEECH AND THE FORUM APPROACH 232 IV. RETALIATION FOR PUBLIC EMPLOYEE SPEECH 236 V. RETALIATION AGAINST PRIVATE CITIZENS 239 VI. STUDENT SPEECH 239 VII. THE FREE EXERCISE AND ESTABLISHMENT CLAUSES 241 VIII. RECORDING POLICE ACTIVITY 244 IX. RETALIATORY ARRESTS 245 X. CONCLUSION 247 CHAPTER 6 SECOND AMENDMENT RIGHTS CHALLENGES TO STATE AND MUNICIPAL FIREARM REGULATION by John Parker Sweeney and Marc Nardone I. INTRODUCTION 264 II. LIMITED PRE-HELLER SECOND AMENDMENT JURISPRUDENCE 265 III. HELLER AND MCDONALD REVITALIZE THE SECOND AMENDMENT 266 IV. POST-HELLER JURISPRUDENCE SEEKS TO CLARIFY THE MANY ISSUES LEFT OPEN IN HELLER AND MCDONALD 271 V. CONCLUSION 281 CHAPTER 7 THE FOURTH AMENDMENT by Kathleen Wieneke and Christina Retts I. 42 U.S.C. SECTION 1983 288 II. WHEN IS THERE A REASONABLE EXPECTATION OF PRIVACY? 289 mas58759_00_fm_i-xxxvi.indd 14 4/15/21 10:35 AM Contents xv III. THE WARRANT REQUIREMENT AND ITS EXCEPTIONS 289 IV. WHAT IS A SEARCH? 291 V. WHAT IS A SEIZURE? 292 VI. USE OF FORCE 294 A. The Graham Factors 294 VII. SPECIFIC USES OF FORCE 297 A. Deadly Force 297 B. Nonlethal Force 298 C. Chemical Agents 298 D. Impact Weapons 299 E. Canine 299 F. Control Holds 299 G. Conducted Energy Weapon 301 VIII. EVIDENTIARY ISSUES IN USE-OF-FORCE CASES 301 A. After-Acquired Evidence 301 B. Provocation Evidence: Creating the Need for Force 303 IX. VIOLATION OF INTERNAL POLICE POLICIES 304 X. SPECIFIC FOURTH AMENDMENT CLAIMS 304 A. Claims Relating to Bystander Liability 304 B. Integral Participation 305 C. Failure to Intervene 306 XI. CLAIMS ARISING OUT OF ARREST 306 XII. THE FOURTH AMENDMENT IN SCHOOLS 307 A. Strip Searches 308 B. Law Enforcement Officer/School Resource Officer Searches 309 C. Drug Testing 309 D. Electronic Searches 309 XIII. THE FOURTH AMENDMENT IN THE WORKPLACE 310 CHAPTER 8 THE TAKING OF PRIVATE PROPERTY by Dwight Merriam I. A TAKINGS TAXONOMY 336 II. MAKING TAKINGS CLAIMS 343 III. CONCLUSION 355 CHAPTER 9 THE EIGHTH AMENDMENT by Rhonda R. Stowers I. INTRODUCTION 363 II. EXCESSIVE BAIL 364 III. EXCESSIVE FINES 367 IV. II. BACKGROUND 405 III. SUBSTANTIVE DUE PROCESS 412 IV. PROCEDURAL DUE PROCESS 414 V. CONCLUSION 418 Table of Cases 431 Index 485
Acknowledgments v About the Editors xix About the Contributors xxi Preface xxxiii CHAPTER 1: FUNDAMENTALS OF SECTION 1983 LITIGATION 1 by Martin A. Schwartz I. INTRODUCTION 5 II. ELEMENTS OF THE SECTION 1983 CLAIM, FUNCTIONAL ROLE OF SECTION 1983, PLEADING, AND JURISDICTION 6 III. SECTION 1983 PLAINTIFFS 13 IV. CONSTITUTIONAL RIGHTS ENFORCEABLE UNDER SECTION 1983 14 V. ENFORCEMENT OF FEDERAL STATUTES UNDER SECTION 1983 18 VI. SECTION 1983 DEFENDANTS: WHO ARE SUABLE PERSONS? 19 VII. COLOR OF STATE LAW AND STATE ACTION 21 VIII. CAUSATION 26 IX. CAPACITY OF CLAIM 28 A. X. MUNICIPAL LIABILITY 29 XI. LIABILITY OF SUPERVISORS 34 XII. RELATIONSHIP BETWEEN INDIVIDUAL AND MUNICIPAL LIABILITY 36 CHAPER 2 PLAINTIFF S LITIGATION STRATEGY CONSIDERATIONS by Anna Benvenutti Hoffmann, Alexandra Lampert, and Ranjana Natarajan I. INTRODUCTION 116 II. INITIATING A CASE: AN OVERVIEW FOR PLAINTIFF S COUNSEL 116 III. INITIAL SELECTION OF FORUM 125 IV. PLEADING AND FILING THE SECTION 1983 LAWSUIT 128 CHAPTER 3 DEFENDANT S LITIGATION STRATEGY CONSIDERATIONS by Jeff Lowe I. INVESTIGATION AND INFORMATION GATHERING 147 CHAPTER 4 CLAIMS UNDER 42 U.S.C. § 1983: A DISCUSSION OF PROCEDURAL ISSUES AND IMMUNITIES by Michael S. Bogren I. OVERVIEW 168 II. PROCEDURAL ISSUES IN SECTION 1983 LITIGATION 172 III. ABSOLUTE IMMUNITIES 186 A. Introduction 186 IV. QUALIFIED IMMUNITY 200 V. CONCLUSION 210 CHAPTER 5 FIRST AMENDMENT CLAIMS by Steven C. Stern and Chelsea Weisbord I. INTRODUCTION 229 II. GOVERNMENT REGULATION OF SPEECH: GENERAL PRINCIPLES 230 III. GOVERNMENT-REGULATED SPEECH AND THE FORUM APPROACH 232 IV. RETALIATION FOR PUBLIC EMPLOYEE SPEECH 236 V. RETALIATION AGAINST PRIVATE CITIZENS 239 VI. STUDENT SPEECH 239 VII. THE FREE EXERCISE AND ESTABLISHMENT CLAUSES 241 VIII. RECORDING POLICE ACTIVITY 244 IX. RETALIATORY ARRESTS 245 X. CONCLUSION 247 CHAPTER 6 SECOND AMENDMENT RIGHTS CHALLENGES TO STATE AND MUNICIPAL FIREARM REGULATION by John Parker Sweeney and Marc Nardone I. INTRODUCTION 264 II. LIMITED PRE-HELLER SECOND AMENDMENT JURISPRUDENCE 265 III. HELLER AND MCDONALD REVITALIZE THE SECOND AMENDMENT 266 IV. POST-HELLER JURISPRUDENCE SEEKS TO CLARIFY THE MANY ISSUES LEFT OPEN IN HELLER AND MCDONALD 271 V. CONCLUSION 281 CHAPTER 7 THE FOURTH AMENDMENT by Kathleen Wieneke and Christina Retts I. 42 U.S.C. SECTION 1983 288 II. WHEN IS THERE A REASONABLE EXPECTATION OF PRIVACY? 289 mas58759_00_fm_i-xxxvi.indd 14 4/15/21 10:35 AM Contents xv III. THE WARRANT REQUIREMENT AND ITS EXCEPTIONS 289 IV. WHAT IS A SEARCH? 291 V. WHAT IS A SEIZURE? 292 VI. USE OF FORCE 294 A. The Graham Factors 294 VII. SPECIFIC USES OF FORCE 297 A. Deadly Force 297 B. Nonlethal Force 298 C. Chemical Agents 298 D. Impact Weapons 299 E. Canine 299 F. Control Holds 299 G. Conducted Energy Weapon 301 VIII. EVIDENTIARY ISSUES IN USE-OF-FORCE CASES 301 A. After-Acquired Evidence 301 B. Provocation Evidence: Creating the Need for Force 303 IX. VIOLATION OF INTERNAL POLICE POLICIES 304 X. SPECIFIC FOURTH AMENDMENT CLAIMS 304 A. Claims Relating to Bystander Liability 304 B. Integral Participation 305 C. Failure to Intervene 306 XI. CLAIMS ARISING OUT OF ARREST 306 XII. THE FOURTH AMENDMENT IN SCHOOLS 307 A. Strip Searches 308 B. Law Enforcement Officer/School Resource Officer Searches 309 C. Drug Testing 309 D. Electronic Searches 309 XIII. THE FOURTH AMENDMENT IN THE WORKPLACE 310 CHAPTER 8 THE TAKING OF PRIVATE PROPERTY by Dwight Merriam I. A TAKINGS TAXONOMY 336 II. MAKING TAKINGS CLAIMS 343 III. CONCLUSION 355 CHAPTER 9 THE EIGHTH AMENDMENT by Rhonda R. Stowers I. INTRODUCTION 363 II. EXCESSIVE BAIL 364 III. EXCESSIVE FINES 367 IV. II. BACKGROUND 405 III. SUBSTANTIVE DUE PROCESS 412 IV. PROCEDURAL DUE PROCESS 414 V. CONCLUSION 418 Table of Cases 431 Index 485
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