Final Examination

GRADE POSTING: If you do not wish to have your grade posted (by exam number) in this course, please place an X by your number on the exam and on your answer sheet.

DIRECTIONS

1. This examination is "open universe." You may use any supplemental materials you wish. There are, however, two caveats:

A. If you quote directly from any supplemental source, you must cite your source.

B. You may not discuss this examination with any other person, either while you are taking it or after you have handed it in. This prohibition will remain in effect until the end of the examination period, i.e. May 15, 1998.

2. Three hours will be allotted for the examination. No blue books will be passed out for the first 1/2 hour. This time should be spent reading the question and outlining your response on the scratch paper provided. You may begin writing in your blue books as soon as you receive them.

3. In answering the essay questions, you should rely upon case law from the class materials and our class discussions. Additional research is neither expected nor rewarded.

4. DO NOT CITE A CASE WITHOUT FURTHER DISCUSSION! There is no presumption that use of a case name results from knowledge of its contents. Discuss and analyze any case law you plan to use in your answer.

On May 18, Jeff and Steve, two junior members of the Lexington police department were called to the home of Max and Margaret Fulkerson, of Belleview Place. Travis Fulkerson, their 17 year old son, had gone crazy, and was threatening his parents and himself with a kitchen knife. Max Fulkerson talked to the police outside, and begged them to be restrained. "My boy wouldn't hurt a fly," he said. "He's just oversensitive to things, and his girlfriend broke up with him, and he's out of his head." Jeff and Steve approached the front porch, and looked through the screen. Travis was screaming and throwing himself about, and there was blood on his wrists and shirt. His mother was standing by the stairs, sobbing and pleading with her son to put away the knife.

Feeling out of their depths, Jeff called the station, and asked for advice. Stewart Park, two years out of law school, was the assistant prosecutor for Fayette County. Stewart informed Jeff that suicide was a felony in Kentucky, and said that Jeff was duty bound to prevent it by any means possible. As the police signed off from their radios, a backup unit arrived. Deputy Sergeant Joey "Killer" Reed, a Kentucky state trooper, was in the backup unit. Jeff told Joey what the prosecutor had said. "I'll handle this," said Joey. He spoke briefly with Max, approached the front door, and shot Travis through the screen door. Margaret became completely hysterical, and had to be dragged away by Steve. Travis was taken to the hospital with a gunshot wound in the chest. He was in critical condition for two weeks, then began a slow recovery.

Max and Margaret filed a lawsuit under 42 USC 1983, naming Jeff, Steve, and Stewart Park, (all employed by Fayette County), Joey Reed, the Kentucky Police Department (which employed Reed), Fayette County and the Director of the Kentucky Police Academy, which trained all police officers in the state. The suit alleged that the officers had been improperly trained, that the prosecutor had acted recklessly, and that the shooting had violated the Fourth Amendment, through the use of excessive force. They included a state law tort claim of negligent infliction of emotional distress. They also brought a claim based on a recent federal statute that prohibited any person from using a firearm to deprive any citizen of their federal or constitutional rights. This new statute, called the End Violence Against Citizens Act (EVACA), authorized damages and injunctive relief, and provided that "any person" included "state and local government employees." The suit sought damages and an injunction prohibiting the use of deadly force against persons who were attempting suicide.

Stewart Park did some legal research and decided to head this suit off at the pass. He filed criminal charges against Travis, charging him with attempted assault, attempted suicide and reckless endangerment. Travis, through his attorney, pled not guilty, and informed the state court that he was "reserving his constitutional and federal claims.

The Fulkersons then moved for a temporary injunction that would halt the state criminal proceedings against Travis, pending resolution of their federal claims. The federal court denied this motion, citing Younger v. Harris.

The state court docket was much quicker than the federal docket, and Travis' criminal case came to trial first. Travis's attorney argued that the police had violated his 4th amendment rights, and told the court that there were "other federal violations" that would be decided by the federal court. The state court decided that the officers had not acted improperly, and convicted Travis of attempted suicide and reckless endangerment. The charge of attempted assault was abandoned at trial, since the mother's testimony was not helpful to the prosecutor. Travis was sentenced to 6 months in jail, and fined $2,000. He was sent to a new, minimum security prison run by AMCO Industries, a private company with a contractual relationship with the state.

The defendants in the federal suit then argued that the state court judgment was res judicata on all federal claims. The federal court rejected this argument, but found that Kentucky law was unclear as to whether or not a prosecutor was a "final decisionmaker" whose actions could bind the county. They decided to abstain from the federal suit, in order to permit Kentucky courts to clarify the prosecutor's status.

The Kentucky state courts refused to hear the Fulkerson's case, citing the prohibition in the state constitution against advisory opinions. The litigation then returned to federal court.

Travis committed suicide in prison. His parents amended their 1983 suit to allege negligence on the part of his jailers (who worked for AMCO), and AMCO itself. All of the 1983 defendants moved for summary judgment. They argued that the constitutional claims were moot, and that the plaintiffs lacked standing to claim violations of EVACA. They also argued that some claims were barred by the Eleventh Amendment, others were barred by qualified immunity, and that 1983 suits could not be brought against private persons like the jailers or AMCO.

Please discuss and resolve all issues. If any of the federal rulings appears to be erroneous, determine how the federal court should have ruled, and consider how a correct ruling would have affected the outcome of the proceedings.