Professor: Barbara Moses
Offered: Fall and Spring semesters.
The Civil Rights and Constitutional Litigation Clinic, directed by Visiting Clinical Professor Barbara Moses, pursues impact and direct services litigation to protect the basic civil liberties guaranteed to us by the United States Constitution and comparable provisions of the New Jersey Constitution. In recent years the Clinic has focused on human rights cases emerging from the “war on terror,” including cases raising intersecting issues of national security and immigration policy, as well as litigation filed to protect our First and Fourth Amendment rights in the face of overreaching by police and other law enforcement personnel. The Civil Rights and Constitutional Litigation Clinic has two complementary portions: a two-hour, one credit, weekly seminar focusing on procedural, evidentiary and ethical rules, as well as skills training; and a four-credit clinical component in which students work on real cases for real clients.
CLINICAL LAW PRACTICE
Students in the Civil Rights and Constitutional Litigation Clinic have interviewed and counseled clients and witnesses, prepared clients for media appearances, conducted trials and hearings, drafted pleadings and briefs, prepared discovery requests and responses, argued motions in court, engaged in settlement negotiations, including court-supervised settlement conferences, and participated in mediation and arbitration.
Much of the work in this Clinic is on large impact cases, some of which we litigate in cooperation with outside law firms or public interest organizations. This means that students are exposed to highly complex procedural and substantive legal issues raising interesting constitutional questions. It also means that the work in the Clinic can be demanding and fast-paced, sometimes on short notice. Cases are rarely resolved during the course of one semester, but students will often have the opportunity to see, and shape, several discrete parts of a big litigation picture.
Current and recent representative cases in the Civil Rights and Constitutional Litigation Clinic are described below:
Argueta v. ICE. The Clinic, along with Lowenstein Sandler PC, sued a number of Immigration and Customs Enforcement agents, along with their high-level supervisors and the agency itself, seeking relief for a pattern and practice of predawn, warrantless raids on immigrants’ homes in New Jersey. The lawsuit seeks damages under Bivens for the warrantless searches and seizures and the excessive force used during the raids, as well as an injunction preventing the continuation of the unlawful practices. The case has already been before the Third Circuit, on the issue of the supervisors’ qualified immunity defense, and is now back in the District of New Jersey for discovery and trial preparation. During the fall of 2011, in addition to their work on the case itself, Clinic students served as guest presenters in Professor Godsil’s Constitutional Law class on the issue of supervisory liability for Constitutional torts.
Samadov v. Holder. The Clinic represented an Uzbeki Muslim who overstayed his student visa for fear of persecution in his native country. The Board of Immigration Appeals agreed that he would likely be tortured if deported, but denied his application for “withholding of removal” on the ground that he posed an unspecified national security risk. Meanwhile, the Department of Homeland Security subjected him to an oppressive “order of supervision” which required him, among other things, to wear an electronic monitoring bracelet and observe a strict curfew. The Clinic, under the leadership of Professor Baher Azmy (now serving as the Legal Director of the Center for Constitutional Rights), took the case to the Third Circuit, which ruled unanimously in our client’s favor, holding that the BIA cannot rely on vague “national security” concerns, unsupported by substantial evidence, to deny relief authorized by the Convention Against Torture and the federal immigration statute. In the fall of 2011, Clinic students supervised by Professor Moses applied for and obtained a fee award from the government and – even more importantly – convinced the Department of Homeland Security to remove the electronic monitoring bracelet and lift the curfew, thus translating the Third Circuit’s mandate into real relief for our client.
Phillips v. City of Newark. This case, pending in New Jersey Superior Court, seeks to clarify and protect the rights of New Jersey citizens, under the New Jersey Constitution, to peacefully observe and record the on-duty conduct of New Jersey police officers without fear of arrest or confiscation. Our client is a Newark high school student (now in college) who was dragged off a public bus, arrested, handcuffed, and held for hours by two Newark Police Officers after she used her cell phone camera to make a video of the officers interacting with another civilian. Clinic students, working with the American Civil Liberties Union, interviewed the client and a witness, researched the law, and filed a complaint on the client’s behalf in May 2011. SInce then, Clinic students have briefed, argued and won a motion to dismiss a portion of the complaint, and prepared and served extensive discovery requests. They also helped prepare the client for a network TV appearance and accompanied her to the studio for taping.
Alves v. Ferguson. In New Jersey, as in many other states, those convicted of sex-related crimes are treated very differently from those convicted of other offenses. Individuals who serve time for homicide, bank robbery and other serious crimes are paroled and/or released when they have completed their prison sentences. But a sex offender, if deemed a “sexually violent predator,” can be civilly committed to the “Special Treatment Unit” at the East Jersey State Prison and held there indefinitely, until such time as he is found “not . . . likely to engage in acts of sexual violence.” The Clinic, along with Gibbons P.C., represents a group of men who remain confined to the STU long after they completed their criminal sentences. The lawsuit seeks to improve both the quantity and quality of the sex offender therapy and related rehabilitation programs available to STU residents, so as to give them a realistic opportunity to return to the community. In the fall of 2011, Clinic students engaged in intensive settlement negotiations with the New Jersey Department of Human Services, represented our clients at a settlement conference in the District of New Jersey, and made several trips to the STU to observe conditions and discuss the proposed settlement with our clients.
The seminar is expressly devoted to learning the rules governing the process of litigation, from pleadings to post-trial motions, and the skills necessary to use those rules effectively and ethically on behalf of our clients. Depending on the posture of the Clinic’s cases during the semester, there may be a particular emphasis on developing case theory, substantive rules of law, fact development, interviewing skills, discovery skills and strategies, oral argument competence, media skills, and/or identifying and avoiding ethical conflicts. In “case rounds,” which are built into the seminar schedule, students have the opportunity to discuss pending issues in their own cases with the entire class. In addition to the seminar, students also participate in weekly team meetings concerning the cases for which they are responsible.
The overall goal of both the seminar and clinical portion of the course is to help students improve all of the skills, formal and informal, that are critical to effective lawyering; appreciate the importance of fact development, presentation and persuasion; become consistently self-conscious and self-critical about strategic decisions taken throughout the course of the litigation; take responsibility for their cases and clients; and deepen their understanding of the capacity of the law and legal institutions to do justice.
SEMINAR AND CLINIC HOURS
The Clinic requires an average of fifteen hours per week. Litigation demands will vary on a weekly basis, and students must have the flexibility to commit more extended hours in some weeks if necessary to meet court or client deadlines. Students are cautioned against committing to any clinic if they have substantial outside work commitments or are attempting to complete their AWR in the same semester.