“Although Congress is empowered under section five of the Fourteenth Amendment to override Eleventh Amendment immunity and to enforce by appropriate legislation the substantive provisions of the Fourth Amendment ... it is well settled that 42 U.S.C. § 1983 does not constitute an exercise of that authority”
How later courts described this case
- “Although Congress is empowered under section five of the Fourteenth Amendment to override Eleventh Amendment immunity and to enforce by appropriate legislation the substantive provisions of the Fourth Amendment ... it is well settled that 42 U.S.C. § 1983 does not constitute an exercise of that authority”
- Professor’s classroom remarks equating Zionism with Nazism and apartheid protected under First Amendment
- Eleventh Amendment bars § 1983 suit against SUNY, which “is an integral part of the government of the State and when it is sued the State is the real party.”
- “[S]ince [plaintiff’s] federal causes of action are brought under section 1983, ‘in the absence of consent, any claims against the State or one of its agencies or departments are proscribed by the Eleventh Amendment.’” (quoting Pennhurst, 465 U.S. at 100 ) (cleaned up)
Written by the judges who cited it.
The opinion
MAHONEY, Circuit Judge,
generally concurring:
It is a little difficult to know how to label this separate opinion. Although I am in general agreement with Judge Meskill’s thoughtful opinion for the court, it is precisely aspects of the “result” that cause me some difficulty. It would thus be especially inappropriate to say that I concur in the “result;” I therefore “generally” concur.
Specifically, our cases seem to call for dismissal of an appeal for lack of appellate jurisdiction, rather than affirmance of a denial of summary judgment, where a de *601 fendant invokes qualified immunity but is required to go to trial because there exist material issues of fact with respect to that defense, see, e.g., United States v. Yonkers Branch-NAACP, 893 F.2d 498 , 502-04 (2d Cir.1990); Francis v. Coughlin, 891 F.2d 43 , 44 n. 1 (2d Cir.1989), as we determine to be the case here with respect to the defense of qualified immunity to Dube’s first amendment claim.
More fundamentally, the portion of Judge Meskill’s opinion which addresses qualified immunity concludes, inexplicably in my view, that “the defendants are not qualifiedly immune from section 1983 liability on Dube’s First Amendment claims,” and that as a result of this ruling, “the defense of qualified immunity is removed from the case.” Concededly, any defense of qualified immunity at trial would substantially, if not totally, overlap with defendants’ case on the merits. All that has happened, however, is that defendants’ motion for summary judgment, asserting the defense of qualified immunity to Dube’s first amendment claim, has been denied, and we have ratified that denial. The denial of a motion for summary judgment leaves the question at issue in the case, and does not, without more, decide that question in favor of the movant’s adversary.
With these qualifications, I join in Judge Meskill’s opinion.