Clearly Established #21
March 24, 2023—Bivens, Feres, RFRA, and, of course, qualified immunity.
Welcome to the 21st issue of Clearly Established! It’s been a minute since our last issue, and we’re making up for it with a bonanza edition. As well as our usual irreverent roundup of recent accountability decisions, we've got an in-depth review of the state of Bivens around the country. Let’s dive right in.
Bivens—A Deep Dive
What is Bivens? Bivens is how you sue federal agents for violating your constitutional rights. If a local cop violates your constitutional rights—say, your right against excessive force—a statute called 42 U.S.C. § 1983 gives you the right to sue in federal court. This is called a “right of action,” and it’s separate from the substantive right against excessive force. Think of it as the key that opens the courthouse doors. There’s no analogue to § 1983 for federal agents, but in a 1971 case called Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court said that the Constitution itself gives you the right to sue federal agents for violating your constitutional rights.
What’s happening to Bivens? The Supreme Court drastically limited Bivens in a 2017 case called Ziglar v. Abbasi, holding that when a case presents a “new context,” courts can hear it only if there are no “special factors.” Then, in last year’s Egbert v. Boule, it cut Bivens down to nearly nothing: Nearly any difference from the Court’s existing Bivens cases makes for a new context, it held, and nearly anything can be a special factor. The lower courts have been sorting out just what this means, and many of them have decided it means that Bivens is over.
What does this mean going forward? Well, if you thought qualified immunity was bad, this is worse. In effect, in large swathes of the country, federal officials now enjoy something close to absolute immunity. They can beat you, silence your speech, arrest you without cause, and inflict cruel and unusual punishment on you—and there’s nothing you can do about it.
With that cheery summary out of the way, let’s take a look at what courts of appeals have been doing with Bivens claims since Egbert.
Remember the Trump administration’s family-separation scandal? Well, it turns out some of those families sued! D.C. Circuit: This is obviously a new context with special factors. Judge Silberman, concurring: The Supreme Court should overrule Bivens just like it overruled Roe v. Wade, and while we’re at it I have some thoughts about this whole “free press” thing.
In 2018, Bureau of Prisons officials transferred James “Whitey” Bulger—infamous Boston gangster and FBI informant—from protective segregation to general population. Within 14 hours, he had been murdered for being a snitch. Sounds awfully similar to at least two Supreme Court Bivens cases, so full steam ahead, right? Not according to the Fourth Circuit, which used some trivial differences to find a new context, conjured up some special factors that would apply in nearly every case, and dismissed the claim. A huge blow to Bivens there.
In a bit of a surprise, the Seventh Circuit held that Egbert “does not change ... Bivens’ continued force in its domestic Fourth Amendment context.” For once, we have nothing snarky to say!
A federal agent shoots a woman for a traffic offense; she brings an excessive-force claim under Bivens. Bivens itself was an excessive-force case, so there’s no way this is a new context, right? Ninth Circuit: Wrong. Bivens took place indoors, while this case took place outdoors. So that’s a new context. And the agency here has a complaint form on the internet, so that’s a special factor. Case dismissed. Note: Public Accountability represented the woman in a petition for rehearing en banc. We got the court to delete some of the worst bits of its opinion, but mostly it stuck to its guns.
A prison guard enters a prisoner’s cell, out of view of the hallway cameras, and beats him up. A cut-and-dry violation of the Eighth Amendment. But the Tenth Circuit begins its decision by intoning: “Today, we are called upon to expand the judicially implied cause of action described in Bivens ....” You can see where this is going. Case dismissed.
Believe it or not, though, a sliver of hope remains. As we were going to print, the Fourth Circuit held that a specific subset of Eighth Amendment claims—claims for failure to treat a medical condition—may yet survive Egbert. And Public Accountability is preparing a similar appeal in the Ninth Circuit. Federal agents don’t have complete absolute immunity just yet, and we’re going to fight tooth and nail for every last scrap of accountability.
The Roundup
And now, back to our regular programming—
In Supreme Court news, Justice Clarence Thomas has called for overruling the Feres doctrine, a special rule of immunity for the government when the plaintiff is a member of the military. (For example: After a female cadet at West Point was raped by a fellow cadet, she filed suit against superior officers who put her in harm’s way. The Second Circuit held that her claim was barred by Feres.) Here at PA, we always give credit where it’s due, and Justice Thomas is exactly right: Congress said you can sue the government for compensation if you’re injured by its negligence, and Congress didn’t stutter. Feres should be overruled.
When the cops set up at an intersection to catch drivers breaking the law, can you warn oncoming cars by holding up an “Cops Ahead” sign? You sure can, says the Second Circuit, and that’s clearly established to boot. No qualified immunity for the cop who arrested the sign-holder.
Prison guards bully a Muslim inmate into stopping his daily prayers. He brings a claim under the Religious Freedom Restoration Act, but the district court grants qualified immunity. Uh oh! Is qualified immunity even a defense to a RFRA claim? You bet, says the Third Circuit—even though you’d be hard-pressed to find it in the statute. (On the plus side, they do hold—rightly—that the guards aren’t entitled to qualified immunity here.)
Louisiana prison officials routinely hold inmates past the expiration of their prison sentences. This plaintiff, in particular, was incarcerated for more than two years past the end of his sentence. Did he have a right to be released from prison after serving his sentence? Yes. Was it clearly established? Also yes. Can the prison officials be held liable? Fifth Circuit: Well, no—we’re going to make up a nonsensical new third step of qualified immunity, fault the plaintiff’s lawyer for not predicting it, and—hey presto—case dismissed. [Just complete calvinball over there. —ed.]
“It falls on the judiciary to ensure that the First Amendment is not reduced to a parchment promise.” —Judge Ho, author of the previous (rubbish) decision, also author of this (very good) dissent. He’s on the money here, but we wonder if he knows that the same goes for the Due Process Clause.
Houston cops execute a Black veteran in cold blood, leave him to die on the ground, magically “find” a gun in his car 22 days later, and promote the murderous officer to sergeant. The district court grants qualified immunity, but even an all-Republican panel of the Fifth Circuit is unable to stomach that outcome. Qualified immunity reversed.
The St. Louis Police Department makes up its own warrant system called “Wanteds.” Just like warrants, officers can arrest anyone with an outstanding Wanted, but unlike warrants, Wanteds bypass all judicial scrutiny. That’s a neat trick! The Eight Circuit rightly holds that it’s mostly unconstitutional, but wait, does that mean the plaintiffs can hold St. Louis liable? Eighth Circuit: Nope. “Wanteds” may be an official, department-wide system with whole employees dedicated to running it, but it’s not “so pervasive that it can be said to constitute custom or usage with the force of law.”
Legal observers from the National Lawyers’ Guild, wearing bright green hats emblazoned with the words “National Lawyers Guild Legal Observer,” get tear-gassed by police while recording a protest. A bystander yells at police to “get the fuck out of my park,” so police tear-gas him, too. First Amendment violations? Only tear-gassing the bystander, says the Eighth Circuit. Observing and recording police-citizen interactions is not a clearly established First Amendment right. Dissent: Guys, didn’t we already say that it was? Guys?
Is it clearly established that police can’t force to her knees and handcuff a “well-behaved, unarmed, 83-year-old woman who complies with police directions”? Ninth Circuit: Obviously yes. Judge R. Nelson, dissenting: How are police even supposed to do their jobs anymore.
The Prison Litigation Reform Act requires that prisoners suffer a “physical injury” before they can file a lawsuit. Colorado prisoner: Guards punched me in my fractured, untreated jaw and stomped on my injured, untreated foot. Guards: Sounds like we didn’t cause those injuries! Tenth Circuit: But you caused them to become exacerbated, which counts. Case un-dismissed.
That’s it for this week. Please feel free to send this newsletter to any friends or family who might find it interesting. If you got this from a friend, you can sign up to receive future issues here.
When we’re not writing this newsletter, we litigate cases in the federal courts of appeals. If you want to support that important work, you can do so here.
Thanks for reading.
We just notched another win!
And updates on other recent work.
Friends,
The Ninth Circuit just issued its decision in Aberha v. Delafontaine, a Public Accountability case involving the constitutional right to freedom from sexual assault in prison. To recap: Our client told a guard that his cellmate had sexually assaulted him. The guard laughed at him and left him in his cell. Later that day, the cellmate threw our client against a wall, choked him out, and raped him. The district court denied the guard qualified immunity, but he took an interlocutory appeal to ask the Ninth Circuit to end the suit.
We represented the inmate on appeal—and we obtained a total victory. The Ninth Circuit’s decision, issued earlier today, affirms that prison guards have a constitutional duty to protect inmates from sexual assault. It explains that since 2009, “it has been clear that a correctional officer’s doing nothing in response to an inmate’s pleas for help after the inmate’s cellmate threatened physical violence is unreasonable”—and, therefore, that it violates the Eighth Amendment. Read the whole decision here.
In other news, it’s been a minute since our last update! Here’s a quick rundown of what we’ve been up to the last few months:
Nazario v. Thibeault. Do prisoners have a clearly established right against being forced to participate in a “Covid party”? We think so—but the State of Connecticut disagrees. In April 2020, our client was forced to move from a cell block where everyone was healthy to one that was in the middle of an active Covid outbreak. He caught Covid—the original, extremely dangerous variant—and nearly died. The district court denied the prison warden’s request for qualified immunity and we’re asking the Second Circuit to affirm that decision on appeal. Read our brief here.
Mejia v. Miller. In this case, a federal BLM agent shot our client in the hand and head—for nothing more than a traffic violation. The district court denied his request for qualified immunity. On appeal, though, the Ninth Circuit held that our client didn’t even have the right to bring a claim under the “Bivens” doctrine. Bivens is what lets you sue federal agents for violating your constitutional rights. The Supreme Court has been cutting away at Bivens for decades, but it’s always said that the “core” of Bivens remains intact. This type of Fourth Amendment excessive force claim is as close to the core of Bivens as it gets, so we asked the Ninth Circuit to reconsider its decision en banc. Read our petition for rehearing here.
DeHart v. Tofte. Far-right extremists took over the Newberg School Board in Newberg, OR, and banned Black Lives Matter and Pride symbols. Some parents and teachers, concerned about this new and radical direction in their schools, joined a Facebook group to discuss ways they could hold their elected school-board directors accountable. In retaliation, the Board’s conservative majority sued four parents and teachers. We teamed up with the ACLU of Oregon and prominent local civil-rights lawyers to fight back. You can read our reply brief on appeal, which we filed just last month, here.
Index Newspapers v. City of Portland. In this case, we’re representing journalists and legal observers who covered the Portland protests of 2020 and were shot, beaten, and threatened with arrest in retaliation. The City moved to dismiss the case in December, claiming that it was “moot” because the protests had ended. That’d be a neat trick—not many protests outlast the court cases they kindle. You can read our response here.
If you’ve been wondering what happened to Clearly Established, our monthly roundup of accountability decisions from the federal courts of appeals, fear not—it’ll return next month. In the meantime, please feel free to send this newsletter to any friends or family who might find it interesting. If you got this from a friend, you can sign up to receive future issues here. And if you’re able to support our important work, please do:
Thanks for reading,
Athul K. Acharya
Founder & Executive Director
Public Accountability
This Thanksgiving, We’re Grateful for Your Support
Here’s what we’ve been doing with your help.
Friends,
It’s been a busy few months here at Public Accountability HQ. We’ve been submitting back-to-back briefing in courts across the country, fighting to defend constitutional rights and hold the officials who violate them accountable. But in this season of giving thanks, I wanted to pause, ever so briefly, and thank you. It’s your support that makes it possible for us to safeguard civil rights. So I thought I’d take a minute to fill you in on what we’ve been up to:
In Omeish v. Patrick, we filed an amicus curiae brief in support of a Muslim woman who was pepper-sprayed during a routine traffic stop for running a light. Leveraging our deep expertise in qualified immunity, we explained how nearly every court of appeals in the country would deny the officer’s request for immunity. Not many organizations are able to bring that kind of nationwide perspective to the table. And in deciding these cases, courts find it helpful to know that the right outcome is also in line with what other courts are doing.
In Nasby v. State of Nevada, we filed another amicus brief in support of a Nevada inmate’s claim that prison officials denied him access to legal materials that could’ve helped him get a new trial. People in prison have a constitutional right to a law library—it’s part of the constitutional right of access to the courts. For years, courts have told Nevada officials that their system isn’t up to scratch, and for years Nevada officials have ignored them. We explained that in cases like this—where prison officials make calculated choices to violate inmates’ rights, betting that the courts will save them from accountability—qualified immunity is at its weakest.
In Aberha v. Delafontaine, we’re defending prisoners’ constitutional right to freedom from sexual assault. Our client told a guard that his cellmate had sexually assaulted him, but the guard laughed at him and left him in his cell. Later that day, his cellmate threw him against a wall, choked him out, and raped him. The district court denied the guard qualified immunity, but he took an interlocutory appeal to ask the Ninth Circuit to end the suit. We’re representing the inmate on appeal. In our brief, we ask the court to confirm that under clearly established law, guards can’t ignore an inmate’s report that his cellmate has just assaulted him.
Last, in Edwards v. Gizzi, we’re litigating a crucial test case for accountability for federal officials. For years, the Supreme Court has been making it harder and harder to sue employees of the federal government who violate your constitutional rights. But here, a lower court read those cases too far. It held that even though federal marshals broke our client’s arm for no reason at all, they have virtually absolute immunity from suit. Federal prisoners rely on the courts for protection. If this decision is allowed to stand, nothing will prevent federal prison guards from using excessive force on, denying medical care to, or refusing to protect the hundreds of thousands of people in federal prison. We filed our opening brief on appeal in August.
We’ve got lots more important work in the pipeline. In just the next three months, we’ll be defending the right to sue federal agents in the Ninth Circuit, which has jurisdiction over the entire west coast; fighting for parents’ right to speak out against school-board officials; seeking redress for inmates who were infected with Covid-19 after prison officials withheld PPE; and continuing our long-running litigation to protect journalists’ right to cover protests without retaliation.
As I said above, we couldn’t do this work without your support. Our clients don’t have deep pockets. We run entirely on contributions from people like you. So to close, I’d like to make a request. If you’re able to send a donation our way, please hit the button below. But just as importantly, think of three people you know who care about constitutional rights, civil liberties, and accountability for public officials. Send them this post and ask them to donate, sign up for our newsletter, or both.
Thank you so much, and Happy Thanksgiving.
In gratitude and solidarity,
Athul K. Acharya
Founder & Executive Director
Public Accountability
Clearly Established #20
Week of September 16, 2022—Two merits briefs, plus our usual roundup of accountability decisions.
Welcome to the 20th issue of Clearly Established. We’ve been busy beavers here at Public Accountability HQ: In the last two months, we’ve filed not one but two merits briefs. Read on for details, and also for our usual roundup of accountability cases. But first, a request: If you regularly make purchases from Amazon.com, please consider supporting us—at no cost to you—by designating Public Accountability your Amazon Smile beneficiary. Find out more here.
Merits Briefs
Edwards v. Gizzi
When federal agents violate your constitutional rights, the “Bivens” doctrine is the key that opens the courthouse doors: It gives you the right to sue for damages. But the Supreme Court has been restricting Bivens for years, and in June they issued a decision limiting it still further. For must of us, that doesn’t mean much—we don’t come into contact with the feds that often. But federal prisoners do, every day. And Bivens lawsuits are one of the few ways they have to enforce their constitutional right against cruel and unusual punishment.
This lawsuit is the perfect example. U.S. Marshals broke our client’s arm for no reason. The district court dismissed his case, saying that under the Supreme Court’s recent Bivens decisions, he had no right to sue federal officials. We think that goes too far. The Supreme Court has specifically allowed federal prisoners to keep bringing Bivens claims, and lower courts should obey that ruling. We’re asking the Second Circuit to reverse the district court and hold that our client’s claim can be heard on the merits. This is a crucial test case for accountability for federal officials. Read our brief here.
Aberha v. Delafontaine
Under the Eighth Amendment, prison guards have to protect inmates from sexual assault and rape. But when our client told a guard that his cellmate had sexually assaulted him, the guard made fun of him and left him in his cell. Sure enough, later that day, the cellmate choked and raped him. Our client sued the guard for refusing to protect him. The district court denied qualified immunity, but the guard took an interlocutory appeal to ask the Ninth Circuit to end the suit. We’re representing the inmate on appeal. In our brief, we ask the court to confirm that under clearly established law, guards can’t ignore an inmate’s report that his cellmate has just assaulted him. Read our brief here.
Accountability Decisions
And now, back to our regular programming—a somewhat monthly, slightly irreverent roundup of recent accountability decisions.
Responding to a suicide call, cops find a man on his tiptoes, a rope around his neck, the other end tied to a basketball hoop. One of the cops tases the man; his neck goes “crunch” or “gargle,” and he dies by hanging. Fifth Circuit: Qualified immunity. (This is the same court that granted qualified immunity to an officer who set fire to a man who’d doused himself in gasoline. If you want to kill yourself in Texas, good news: The cops—and the courts—will help.)
Woman sues her boss under the Fair Labor Standards Act. He’s a state employee, so he claims qualified immunity. District court: No dice. Fifth Circuit: Actually, yes dice—if qualified immunity even exists under the FLSA, which isn’t clear. Remand to the district court to figure that out. Judge Costa, concurring: Qualified immunity is not some “brooding omnipresence in the sky.” It doesn’t automatically apply anytime you sue a government official.
If a government official does something that’s both unconstitutional and outside the scope of their duties—say, if a “permit officer” pulls someone over—can they claim qualified immunity? Fifth Circuit: No.
Officer pulls over a pregnant woman for invalid plates, gives her a hard time, and threatens to arrest her. She calls her dad to come pick her up. Turns out her dad and the officer have old beef. The dad swears at the officer. The officer swears back. Then he tases the dad, pounces on him, delivers a variety of punches and kicks, and tases him a couple more times for good measure. Qualified immunity? Sixth Circuit: No, you can’t beat the daylights out of someone for swearing at you. Especially not when you “likewise display a penchant for profanity.” Qualified immunity denied.
Ordinarily, parties can’t appeal a case until there’s a final judgment, but the Supreme Court has created a special rule for mid-case “interlocutory” denials of qualified immunity: Officials can appeal such orders, if their appeal turns on an issue of law. And the Seventh Circuit is sick and tired of reminding lawyers not to dispute the facts in such interlocutory appeals.
Shoplifter, facing arrest, makes a dash for the exit. One officer grabs him, and he lays a hand on her arm. In response, another officer lifts him into the air and bodyslams him to the ground with enough force to break his skull, causing permanent brain damage. A store employee likens it to a “professional wrestling” move. Eighth Circuit: The officer used excessive force. But because the Supreme Court has been super strict on qualified immunity lately, he gets qualified immunity.
Say a community college professor administers the following quiz: “True or false: Terrorism is encouraged in Islamic doctrine and law.” Say he forces Muslim students who don’t believe their religion encourages terrorism to take this quiz and answer ‘True’ or suffer a lower grade. Any constitutional problem? We’ll never know, because two-thirds of this Ninth Circuit panel says the professor gets qualified immunity either way.
Is it reasonable for a prison guard to stop a beatdown by shooting rubber bullets at the victim, who’s not fighting back? It’s not clear, says the Ninth Circuit, so the guard gets qualified immunity.
We’ve sighted a rare bird indeed: An Eleventh Circuit reversal of a district court decision granting qualified immunity. Cops go to arrest a man at his girlfriend’s apartment. He points a gun at them; they fire dozens of rounds at him; he falls to the floor. They keep shooting. Then they toss a flashbang at him to check if he's alive. He doesn’t react. The officers claim that’s when they stopped shooting at him. But in a bystander’s video, gunfire is audible after the flashbang. District Court: Qualified immunity anyway. Eleventh Circuit: No. Shooting a person who’s unconscious is clearly excessive force.
That’s it for this week. Please feel free to send this newsletter to any friends or family who might find it interesting. If you got this from a friend, you can sign up to receive future issues here.
When we’re not writing this newsletter, we litigate cases in the federal courts of appeals. If you want to support that important work, you can do so here.
Thanks for reading.
Clearly Established #19
Week of August 5, 2022—Qualified immunity, standing, mootness, Bivens, and the Heck bar.
Welcome to the 19th issue of Clearly Established, a somewhat monthly, slightly irreverent roundup of recent accountability decisions. Let’s dive right in.
Man goes out of town and asks police to visit his wife for a welfare check. Cop visits wife, asks if she’s lonely, comments on her breasts, threatens to ticket her for having a bong, and ultimately coerces her into exposing herself while he “masturbated to ejaculation in front of her.” District court: He didn’t physically touch her, so he didn’t violate the constitution. Fifth Circuit: That’s not how this works. This is a constitutional violation—and an obvious one at that, so no qualified immunity.
Texas Governor Greg Abbott bans school districts from imposing mask mandates. Do severely disabled kids have standing—basically, some “skin in the game”—to seek an injunction against enforcement of that ban? Fifth Circuit (over a vigorous dissent): No. Just because you’re at high risk for severe illness if you get covid doesn’t mean you have enough skin in the game to sue over a ban on mask mandates. Dissent: This isn’t a simple “fear of covid” case. This is a disability-discrimination case, and we have laws prohibiting discrimination on the basis of disability.
Texas denies religious group’s request to hold religious gatherings. After the group sues, Texas institutes a new policy allowing them to apply for a congregation—but never actually permits them to congregate. Texas: This new policy means the group’s suit is moot. Fifth Circuit: Not by a long shot. Judge Ho, concurring: Let’s add mootness to the list of “unholy” doctrines I complained about back in May. Together, these doctrines mean “no damages for past injury, due to immunity—and no injunction to stop future injury, due to mootness. Heads I win, tails you lose.” [We’re guessing the judge hired a very libertarian clerk this year, and we expect this rash of good concurrences to subside come September. —ed.]
A witness in a federal sex-trafficking investigation punches a woman and threatens her with a knife. When police arrive on the scene, the witness calls her handler—a local cop who’s part of the federal task force—who lies to the cops on the scene and gets the victim arrested for witness tampering. The victim spends years in federal custody before she’s acquitted. Once she’s out, she sues the cop. Eighth Circuit (2020): You can’t sue her as a fed; feds have broad immunity from civil-rights suits. (See our last issue for more on this.) Eighth Circuit (2022): And you can’t sue her as a local cop, either, because she was cross-deputized and acting as a fed.
Hawai‘i building inspector repeatedly investigates and prevents work on the renovation project of a Japanese homeowner who has hired white contractors. Inspector to homeowner’s neighbors: “I keep shutting them down but fuck these Haoles don’t listen, that’s why I try keep it local.” Homeowner sues under a little-used statute, 42 U.S.C. § 1981, that prohibits racial discrimination by public officials. Inspector: But his project really did violate code! Ninth Circuit: Doesn’t matter; “a law may be fair on its face but grossly unfair in its enforcement.” If you enforced the code more vigorously against him because he’s a Haole, you’ll have to pay up.
Under the “Heck bar,” if you’ve been convicted of a crime, you can’t bring a civil-rights claim that would call that conviction into question. In California, the crime of resisting arrest includes the element that the arrest was lawful; in other words, if a jury convicts you of that crime, it must necessarily have decided that the arrest you resisted was lawful. So if a cop uses excessive force to make an arrest and the arrestee sues the cop, what’s the logical next move? Prosecute the arrestee for resisting arrest! If you get a guilty verdict, boom, the excessive-force lawsuit is Heck barred. And that’s exactly what happened in this Ninth Circuit case.
Journalists attempt to film a police encounter in Lakewood, Colo. One officer obstructs the camera, shines a light into it so it can’t record anything else, and eventually gets in his cruiser and drives directly at the journalists, swerving away at the last minute. Qualified immunity? Tenth Circuit: No. The First Amendment protects the right to film police performing their duties in public. And—importantly—even though we’ve never said so before, six other circuits have, so that right was clearly established.
That’s it for this week. Please feel free to send this newsletter to any friends or family who might find it interesting. If you got this from a friend, you can sign up to receive future issues here.
When we’re not writing this newsletter, we litigate cases in the federal courts of appeals. If you want to support that important work, you can do so here.
Thanks for reading.
Clearly Established #18
Week of July 8, 2022—Bivens, free exercise, takings, “good faith” immunity, and a SWATting.
Clearly Established #18
Welcome to the 18th issue of Clearly Established, a somewhat monthly, slightly irreverent roundup of recent accountability decisions. Let’s dive right in.
First off, in Supreme Court news: In between decimating reproductive rights and kneecapping the EPA, the Supreme Court found time in June to expand immunity for federal officials. You read more on this Twitter thread or listen to our ED talk about the case on this Bloomberg podcast, but the short version is this: It’s harder than ever to sue federal officials for violating your constitutional rights.
Prison warden bans group prayer outside the chapel, which is rarely available during the five times a day that Muslims must pray. Muslim inmates sue for violation of their free-exercise rights. Qualified immunity? Not a chance, says the Second Circuit. “We can discern no asserted governmental interest—much less a compelling one—for the requirement that Plaintiffs engage in group prayer only in the prison chapel.”
In this Third Circuit decision, a prosecutor is denied absolute immunity for opening a retaliatory investigation into and threatening a detective. Huzzah! we say. But we also note that this rare instance of a prosecutor losing absolute immunity comes in a case where the prosecutor is across the v. from a cop. And the alleged retaliation was because the cop was trying to obstruct a fellow cop’s indictment for murder. So: huzzah, but a muted huzzah.
Officers arrest a man for public intoxication. He spends the next 34 hours overdosing on a jailhouse floor—vomiting, thrashing, convulsing, and calling for help. No help arrives. Jail guards, noticing he’s dead: “Oh well.” Even the Fifth Circuit can’t bring itself to give these officers qualified immunity.
So how far does that federal immunity (see the Supreme Court case at the top) extend? Not as far as officers who lie to a judge to procure a warrant, the Seventh Circuit holds, but such officers can still get absolute prosecutorial immunity and qualified immunity.
St. Louis officers kill a man by holding him prone and putting pressure on his back for 15 minutes. (If that sounds familiar, it should.) Eighth Circuit (2020): If a detainee offers resistance, no constitutional violation in holding him prone. Supreme Court (2021): The guy was handcuffed and shackled, and they kept him prone for 15 minutes. Try again. Eighth Circuit (2022): Fine. Qualified immunity instead. (Bonus: the court also gives the City of St. Louis something that looks an awful lot like qualified immunity, even though the Supreme Court has held for decades that municipalities can’t get qualified immunity.)
If the government orders non-critical businesses to shut down in response to a global pandemic, is “private property be[ing] taken for public use”? Eighth Circuit: We find no caselaw clearly establishing that proposition. In fact, we’re not even sure you can sue an individual government official for a taking, as opposed to suing the government itself.
In 2018, the Supreme Court overruled forty years of precedent and held that public-sector unions can’t collect “agency fees” from non-union public employees. What about fees taken before 2018—can non-union employees get a refund from their public employers? No, says the Ninth Circuit, because public employers are entitled to “good faith” immunity for actions taken in reliance on Supreme Court precedent. Judge Bumatay, concurring reluctantly: Inventing “newfangled” immunities is “wrongheaded” and “brazen.” (We agree, and we searched his concurrence for similar skepticism of qualified immunity—strangely, we came up empty.)
A cop stops a biker (whose crime is biking without a front light) by cutting him off with his SUV. The biker goes flying, hits the SUV head-first, and loses consciousness. Any Fourth Amendment concerns? No “clearly established” ones, says the Ninth Circuit. Judge Christen, concurring: Fine, but can we at least agree that cutting off a bike with an SUV is deadly force?
In this “swatting” case, the Tenth Circuit disproves our general rule that when a court uses the word “tragic” at the beginning of an opinion, it’ll grant qualified immunity at the end. No qualified immunity for shooting the swattee moments after he exited his house, unarmed, with his hands up.
That’s it for this week. Please feel free to send this newsletter to any friends or family who might find it interesting. If you got this from a friend, you can sign up to receive future issues here.
When we’re not writing this newsletter, we litigate cases in the federal courts of appeals. If you want to support that important work, you can do so here.
Thanks for reading.
Clearly Established #17
Week of May 26, 2022—Bivens, qualified immunity, and several interesting concurrences and dissents.
Welcome to the 17th issue of Clearly Established, a somewhat monthly, slightly irreverent roundup of recent accountability decisions.
This issue is a special one—it marks one year of operation for Public Accountability! In one year, we’ve won two cases and lost zero. We got $750,000 for one of our clients. We made it harder for officials to file frivolous appeals when they lose qualified immunity. We strengthened and clarified important constitutional rights, including the right to protest. And we’ve got more good work in the hopper. So before we dive in, a request: When you're done reading what what the federal courts have been doing with anti-accountability doctrines, please hit that “Donate” link at the bottom and toss what you can our way. We defend civil rights, and we can’t do it without your help.
And with that, on to the cases!
Federal public defender, sexually harassed by her superiors and fired after reporting it, brings Bivens claim. The Supreme Court has severely curtailed new Bivens claims, but it long-ago greenlit claims for sex discrimination in federal employment. So can this federal employee’s sex-discrimination lawsuit go forward? Fourth Circuit: Not a chance. That case was against a congressman, while this is against employees of the federal judiciary. Totally different. No Bivens claim.
In this entertaining cop v. cop lawsuit out of the Fifth Circuit, we’re sorely tempted to say “let them fight” and call it a day. But we reckon it’s not an accident that the Black cop gets guns pointed at him and the white cop gets qualified immunity. C’mon now.
Cop 1 tells a car full of underage kids fleeing a party to stop. Kids accelerate past him. As the car goes by, cop 2 shoots the passenger in the head. Texas courts: Yep, that’s murder. Fifth Circuit: No qualified immunity. Ho, J., dissenting: The cops say they felt threatened by a car driving away from them, and who are we to judge?
Cops fail to solve the brutal murder of a high-school student in Livingston Parrish, La. Two years later, a jailhouse informant fingers a man they’d already ruled out. His account is inconsistent and contradicts known facts about the crime, but the cops are undeterred. They concoct a story “out of whole cloth,” arrest a high-school kid, and intimidate him into adopting their fabrication. After the man spends sixteen years in prison, the Supreme Court overturns his conviction. He sues the cop and the prosecutor, who claim absolute prosecutorial immunity. Fifth Circuit: Manufacturing evidence is more cop-like than prosecutor-like, so no immunity for you.
Judge Ho has a dubitante dissent in that last case that merits a bullet point all of its own. Because of precedent, he says, he’d grant the defendants absolute immunity. But he’s not happy about it: “Worthy civil rights claims are often never brought to trial. That’s because an unholy trinity of legal doctrines—qualified immunity, absolute prosecutorial immunity, and Monell—frequently conspires to turn winnable claims into losing ones.” Preach, Judge Ho. [Now there’s a sentence I never expected to put in this newsletter. —ed.]
Man creates a satirical Facebook page to mock his local police department. His satirical page offers “free abortions” and a “Pedophile Reform event.” The cops, naturally, get big mad and arrest the man. He wins at his criminal trial and then sues for violation of his First Amendment rights. Sixth Circuit: We’re not sure your Facebook page was speech, but we’re damn sure the officers get qualified immunity. Case dismissed.
After a stabbing, Des Moines police tell the victim’s family they’ll take them to the hospital. Instead, they take the family members to the stationhouse and question them for over three hours against their will. In the meantime, the victim dies. Constitutional violation? Clearly established? Eighth Circuit: Yep and you bet. Stras, J., concurring: “Rarely do rights come more clearly established.”
Over the course of about 14 hours, during which he demonstrates plenty of obvious visible symptoms, a man in jail suffers a ruptured aorta and dies. Ninth Circuit: “We must determine whether the level of medical care was unconstitutional, not whether it was so substandard that it may have cost Russell his life.” Perhaps you find it strange, reader—as we do—that the two questions are not the same. But in the end, the Ninth Circuit still denies qualified immunity to two out of the three defendants. To trial they must go.
For years, prison officials refuse to treat a man’s prostate issues. When he’s transferred to a different facility, medical staff there finally order emergency treatment. They end up draining 6 liters of urine from his bladder. (The human body contains 5 liters of blood.) Was the “treatment” officials rendered at the first facility clearly unconstitutional? Officials: No case says we can’t adopt a “wait and see” approach. Ninth Circuit: “At some point ‘wait and see’ becomes deny and delay.” Qualified immunity denied.
That’s it for this week. Please feel free to send this newsletter to any friends or family who might find it interesting. If you got this from a friend, you can sign up to receive future issues here.
When we’re not writing this newsletter, we litigate cases in the federal courts of appeals. If you want to support that important work, you can do so here.
Thanks for reading.
Clearly Established #15
Week of March 11, 2022—four different types of immunities, the PLRA, Bivens, and more. Plus: Our first oral argument!
Welcome to the 15th issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of recent accountability decisions. We've got a brief case update, and then our usual smorgasbord of accountability decisions.
Senn v. Smith, No. 21-35293 (9th Cir.)
Public Accountability had its first oral argument this week! We argued in the Ninth Circuit against qualified immunity for a police officer who pepper-sprayed a protester. You can watch the argument on YouTube at right, read more about the case here, and check out our ED’s unbelievably cool sunglasses here.
This week, we have four (count ’em) different immunities to discuss, plus Bivens, the Prison Litigation Reform Act, and more.
Remember that story from 2018 about the Massachusetts state court judge who hustled a defendant out the back door so ICE wouldn’t get him? The Trump administration decided to prosecute the judge, and last week the First Circuit held that the prosecution could go to trial despite the judge’s claim of absolute judicial immunity. Apparently, even though qualified immunity from civil liability is important enough for an immediate right of appeal, absolute immunity from criminal proceedings is not.
Male student is accused of sexual assault by female student. At his criminal trial, a jury acquits him, but in the university’s disciplinary proceeding, he’s found to have violated the university’s sexual-misconduct policy and is expelled. He then sues the female student for defamation, but the district court dismisses his claim on the basis of absolute quasi-judicial immunity. Wait a sec! The university is Yale, a private institution. Does absolute quasi-judicial immunity apply to hearings held by non-governmental entities? Alas, it’s a question of state law, and one that the Second Circuit deems too uncertain to answer. The question must go to the Connecticut Supreme Court.
Inmate tests positive for marijuana, is punished, but successfully has his discipline vacated(!). On re-hearing, the disciplinary committee sentences him to harsher punishment “for all this trouble.” Fifth Circuit: Yep, that’s unconstitutional retaliation. But nope, you can’t get compensatory damages because you didn’t suffer a “physical injury” from the retaliation, as required by the PLRA. But yep, you might be able to get nominal and punitive damages, which the PLRA doesn’t restrict. So here’s your remand.
Standing, interlocutory jurisdiction, sovereign immunity, Monell, oh my! A passel of Public Accountability’s pet issues in this Sixth Circuit case, at the end of which we learn that counties and municipalities are not immune from civil suit.
Cop, chasing a man, yells at him to drop his gun. Man drops his gun. Cop shoots man. Cop: I thought he still had the gun and was in a “firing position!” Eighth Circuit: But body-camera footage shows you looking directly at the gun on the ground. No qualified immunity for shooting an unarmed, non-dangerous suspect. A jury’s going to have to decide whether to believe you or the video.
Anti-police group uses chalk to write anti-police messages outside courthouse. (A thousand square feet of “FUCK PIGS” and “FUCK THE COPS”, apparently.) Prosecutors declined to prosecute similar graffiti earlier, and cops don’t tell them to stop this time. Some officers even tell them where to chalk. But one detective takes photos and, a week later, arrests the members of the group. Unconstitutional retaliation? Seems so, says the Ninth Circuit. And it’s clearly established—no immunity just because a case involves a “new factual permutation.”
In which the Ninth Circuit rather gingerly authorizes a “very modest expansion of the Bivens remedy,” permitting a federal prisoner to sue a guard for telling other inmates he’s a snitch and putting a bounty on his head. Dissent: As far as I’m concerned, the principles animating Bivens “no longer stand in any capacity.”
And in more Bivens news, the Supreme Court heard oral argument last week in Egbert v. Boule, a case about whether you can sue Border Patrol agents for excessive force, or any federal agents for violating the First Amendment. As an op-ed in USA Today rightly notes, the slow death of Bivens is tantamount to absolute immunity for federal agents, but there’s reason to hope that Bivens hasn’t breathed its last just yet—several conservative justices seemed skeptical of the agent’s position.
That’s it for this week. Please feel free to send this newsletter to any friends or family who might find it interesting. If you got this from a friend, you can sign up to receive future issues here.
When we’re not writing this newsletter, we litigate cases in the federal courts of appeals. If you want to support that important work, you can do so here.
Thanks for reading.
Clearly Established #10
Week of October 22, 2021—Bad QI decisions from SCOTUS; new merits brief just dropped.
We made it to double digits! Welcome to the 10th issue of Clearly Established, a slightly irreverent roundup of accountability news. This issue, we've got a new Public Accountability merits brief; two bad decisions from the Supreme Court; two good decisions from the courts of appeals; and a roundup of QI in the news. Let's dive in.
New merits brief just dropped.
The VA placed our client, a veteran, on an “order of behavioral restriction”—forbidding him from visiting the VA without police escort—just because he allegedly used swear words during a phone call. He sued the VA for violating his rights under the First Amendment. But the district court didn’t decide whether the VA had violated his right to free speech—instead, it ruled that no one could ever sue the VA under the First Amendment.
Obviously, we think the district court got it wrong, so we've asked the Ninth Circuit to reverse. You can read the full brief here. But beyond what happened to our client, this case could have major implications for individuals' ability to hold federal agents accountable for violating First Amendment rights. Watch this space for updates. And if you’d like to support our work in this case and others like it, you can do so here.
Here's what the courts have been up to.
Summer 2020: Derek Chauvin murders George Floyd. Protests against police brutality erupt nationwide. Activists correctly identify qualified immunity as a key barrier to holding police accountable. Editorials in the nation’s major newspapers call for an end to qualified immunity. Supreme Court (2020): Maybe we should rethink qualified immunity? Supreme Court (2021) (in two opinions): Just kidding. Qualified immunity is back, baby!
Detroit man is imprisoned for more than two decades on the strength of a forensic examiner’s report that matched bullets at a murder scene to the man's gun. But wait! Two decades later, it turns out that the bullets don’t match the gun, and the only reason the man didn’t discover this at his trial is that his own forensic examiner was told that test bullets—fired from the gun by the state’s examiner—were evidence bullets. The man sues the state’s examiners and the officer in charge. Do they get qualified immunity? Sixth Circuit: Mostly no. Someone fabricated evidence, and these are the three people who had the "means and opportunity" to do it. The man’s fabrication-of-evidence, malicious prosecution, and Brady claims may go forward.
Male police chief routinely promotes the highest-scoring officer on the sergeant’s exam. When a female cop is one of the highest-scoring officers, the chief opens up eight internal-affairs investigations into her. Allegation: The chief routinely declines to investigate men for similar misconduct—and in fact promotes men despite worse misconduct—so the female cop's supposed misconduct here is merely a pretext to avoid promoting a woman. (The misconduct in question: failing to follow up on a burglary report.) District court: If that’s true, there's no qualified immunity for an equal-protection claim, and whether that’s true is for a jury to decide. This case will go to trial. Ninth Circuit: Those are questions of fact, which we lack jurisdiction to review. Back down for trial. [This is the same issue as in our other recent brief. —ed.]
And last, what the papers are saying.
A Virginia gubernatorial debate involved questions about qualified immunity, and both candidates botched their answers. In the Washington Post, our friends at the Institute for Justice set the record straight.
The Post also has a sobering article detailing how “in state after state,” police and police unions have killed attempts to reform qualified immunity. (Colorado and New Mexico are notable exceptions.)
We’re really appreciating the USA Today editorial board’s ongoing op-ed series on ending qualified immunity.
That’s it for this week. Please feel free to send this newsletter to any friends or family who might find it interesting. If you got this from a friend, you can sign up to receive future issues here.
When we’re not writing this newsletter, we litigate cases in the federal courts of appeals. If you want to support that important work, you can do so here.
Thanks for reading.
Clearly Established #9
Week of September 28, 2021—Our first merits brief!
Welcome to the ninth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of recent accountability decisions. It’s been a minute since our last update, but we’ve got a good excuse: We just filed our very first merits brief! (And we’ve got another one coming in a couple of weeks.) Read on for more on that, plus our usual roundup of recent cases.
Senn v. Smith
On Friday, we filed our merits brief in Senn v. Smith, a protest case from Portland, OR. (From 2016, not 2020—Portland’s protests have a rich history.) In short: Our client, Linda Senn, was at City Hall to testify against a police-union contract. One cop pushed her down some steps; as she stumbled backwards, she touched his arm briefly to steady herself. In the district court’s words, her contact with the officer was “glancing and debatable.” But, claiming she was pulling the officer down the steps, another cop blasted her in the face with pepper spray. You can see it in the video to the right (skip forward to 23:20).
The district court denied qualified immunity, but the cop took an appeal to the Ninth Circuit. The first issue is whether he’s even allowed to appeal so early in the case. This is a fairly technical issue, but the short version is: (1) yes he can appeal, because the Supreme Court has said that qualified immunity is special, but (2) he’s stuck with the district court’s view of the facts. Of course, he doesn’t like the district court’s view of the facts—that Linda’s contact with the officer was insignificant—so he wants the appeals court to take another look. We ask the court to decline. And, on the district court’s view of the facts, of course reaching out for two seconds to steady yourself after a cop pushes you downstairs doesn’t justify the use of pepper spray. That’s even clearly established. So the cop doesn’t get qualified immunity.
You can read the full version of these arguments here. And if you’d like to support our work in this case and others like it, you can do so here.
The Roundup
It’s been a couple of months since our last issue, so here are just some of the highlights—or lowlights—since then.
The Supreme Court is considering whether to take a case asking if people have a “clearly established” First Amendment right to record police officers. Every court of appeals to have addressed the question has decided that people do have a right to record the cops, but some of them—including the Tenth Circuit here—have declined to say that the rule is clearly established. The Supreme Court has recently been breathing new life into the doctrine that in an “obvious case,” a rule can be clearly established without a case directly on point. It should take this case, apply that doctrine, and hold that people obviously have a clearly established First Amendment right to record the police.
Trans woman with “openly female” presentation (her words, quoted by the court) is sentenced to federal prison for tax fraud. Prison officials house her with 11 men in a room with no lock. Then they move her to a cell with someone convicted of a sexual offense. Then they reassign him, but leave her in the cell, which has no lock and is the furthest cell from the officer’s station. All along, she’s been filing grievances and submitting requests to be placed somewhere safer, but prison officials drag their feet. Eventually, her fears become real: In the middle of the night, an inmate enters her cell and rapes her. Third Circuit: The Supreme Court may be shrinking the Bivens doctrine (primer here) down to nothing, but it’s not nothing yet. The woman may sue.
Jail guards grab a compliant, unresisting inmate, cuff his hands behind his back, and clock him on his head. It’s caught on video. Qualified immunity? Third Circuit: Come on. It’s been clearly established for decades that you can’t just hit an unresisting inmate for no reason.
Police officer encounters an elderly man experiencing a diabetic emergency, decides (supposedly) that he is a danger to himself, and therefore suffocates him to death. Seventh Circuit: No qualified immunity.
Rule of thumb: If a court says a death is “tragic” in the introduction, it’ll spend the rest of the opinion explaining why no one will be held accountable. The Ninth Circuit follows that rule here, holding that the law has no remedy for the extrajudicial killing by a U.S. Border Patrol agent on U.S. soil of a Mexican national. The decision features a veritable rogues’ gallery of accountability villains—sovereign immunity, harsh application of a statute of limitations, and the incredible shrinking Bivens doctrine all make an appearance.
Like qualified immunity, the “standing” doctrine went from obscure legalism to cocktail conversation over the course of 2020. But what, exactly, is standing? Put simply, it is the requirement that a person bringing a lawsuit have been injured by something the defendant did. In many ways, it has metastasized into yet another way for courts to keep meritorious claims from being heard. (And also, we must admit, some meritless claims.) But here’s a case that illustrates the basics of how it works: Nonprofit brings First Amendment lawsuit challenging local campaign-finance disclosure laws. It claims that it suffers a chilling effect on its exercise of its right to free speech about local elections. Fair enough, that looks like a First Amendment claim, but wait—the nonprofit is also very clear that it “intends to continue speaking” about local elections. Tenth Circuit: Seems like you haven’t actually suffered any chilling effect! No injury, no standing; case dismissed.
Prison guard forces Muslim inmate to shave his beard, even though he permits adherents of other faiths to take advantage of the prison’s religious-exemptions policy. Free exercise violation? Tenth Circuit: You betcha. And we might not have said so explicitly in an earlier case, but—citing that “obvious case” doctrine—you don’t get qualified immunity if the constitutional violation, like this one, is obvious.
That’s it for this week. Please feel free to send this newsletter to any friends or family who might find it interesting. If you got this from a friend, you can sign up to receive future issues here.
When we’re not writing this newsletter, we litigate cases in the federal courts of appeals. If you want to support that important work, you can do so here.
Thanks for reading.
Clearly Established #8
Week of July 30, 2021—Decisions involving Bivens, the PLRA, the FSIA, and (as ever) qualified immunity.
Welcome to the eighth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of recent accountability decisions. We took a couple of weeks off to work on an important brief in Index Newspapers v. City of Portland, but now we’re back with a bonanza edition: In addition to our usual qualified immunity fare, we’ve got a few new accountability doctrines to introduce you to. Let’s dive right in.
Turkish security forces beat up anti-Erdoğan protesters in Washington, D.C. The protesters sue the Republic of Turkey. Turkey: We get immunity under the Foreign Sovereign Immunities Act. D.C. Circuit: Nope. Turkey: Political question doctrine? D.C. Circuit: Also no. Turkey: Uhh, international comity? D.C. Circuit: You can guess where this is going.
Assertion: Federal prison guard put inmate in the hole for sixty days to retaliate against him for filing a grievance and a lawsuit. District court: Even under the strict confines of the Bivens doctrine (see here for a quick explainer), I can hear this inmate's First Amendment claim. Sixth Circuit: And since the decision below just denied summary judgment and wasn’t a final decision, we have no jurisdiction to hear the guard’s appeal. The Supreme Court may have said that qualified immunity is a weird exception to the final-decision rule, but Bivens ain’t.
Here’s a case that illustrates why conservatives (should) also care about holding public officials accountable—why, as we explained in our recent amicus brief, “a cross-ideological consensus has begun to emerge that the qualified immunity doctrine is broken.” The University of Iowa requires student organizations to comply with its antidiscrimination policy. But in order to permit groups like the African Student Association, the Christian Legal Society, and the Feminist Majority Leadership Alliance to exist, it allows groups to base membership and leadership on certain traits, including race, sex, religion, and ideology. So can it deregister a Christian organization for requiring its leadership to abide by Evangelical Christian teachings on homosexuality? Eighth Circuit (March): No. Clearly established. No qualified immunity. Eighth Circuit (July): Did we stutter?
Cop tells man to get on the ground. Man gets on his knees, hands in the air. Cop: “All the way to your stomach!” Man: “On my stomach?” Cop, frustrated by the evident failure to communicate, takes a running start, tackles the man, and slams his face into the pavement, breaking his jaw in several places. Cop, in court: I had to do it—he was being noncompliant! Eighth Circuit: Not even close. Even under the exceptionally deferential standards of qualified immunity, it was clearly established that you can’t use that kind of force on someone who’s not resisting, not a threat, and not a flight risk. This case goes to a jury.
Here’s a judge-made doctrine that’s just as bananas as qualified immunity but doesn’t get nearly as much attention: the “Heck bar.” In essence, the doctrine is this: If a state court convicts you of a crime, and winning your federal civil-rights lawsuit would imply that the conviction was invalid, the federal court can’t hear your case. This next decision, out of the Ninth Circuit, is a perfect example.
A 250 lb officer slams a 105 lb, 18-year-old girl into the ground, rubs her face in gravel, and arrests her. The DA initially wants nothing to do with the case, but once the girl sues the officer for excessive force, the DA charges her with resisting or obstructing a peace officer. She’s convicted by a jury. One element of resisting or obstructing is that the officer must have been “lawfully engaged in the performance of his duties”—which includes not using excessive force. So now, if the girl wins her excessive-force claim, that would mean the officer wasn’t lawfully performing his duties, and she shouldn’t have been convicted. Which, under the Heck bar, means the girl’s excessive-force case has to be dismissed. As the dissent notes, this decision is “likely to encourage the very sort of police overreaction to minor criminal behavior that has led to public outcry and calls for reform in recent years.”
In a refreshingly straightforward opinion, the Tenth Circuit holds that a prison's 30-day ban on the use of tobacco in Native American services and indefinite ban on such services at all violated a Native American prisoner’s clearly established First Amendment rights.
Most of the doctrines we focus on at Public Accountability are judge-made, but Congress has enacted its share of accountability-limiting laws. One of the worst is the Prison Litigation Reform Act, in which Congress did its very best to ensure that prisoners suffering at the hands of their jailers receive no relief from the federal courts. And this month, the Eleventh Circuit took the PLRA's already-harsh terms and made them a little more draconian, holding that in prison cases, preliminary injunctions—which are intended to maintain the status quo until a trial on the merits—can last no longer than 90 days. It’s practically unheard of to get a case to trial that quickly, which means that in most cases, prison guards can wait 90 days and then go right back to violating prisoners’ rights.
That’s it for this issue. Please feel free to send this newsletter to any friends or family who might find it interesting. If you got this from a friend, you can sign up to receive future issues here.
When we’re not writing this newsletter, we litigate cases in the federal courts of appeals. If you want to support that important work, you can do so here.
Thanks for reading.
Clearly Established #5
Week of June 25, 2021—Decisions from the Fifth and Ninth Circuits and D.C. District Court. Plus: Our first amicus brief!
Welcome to the fifth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of the week’s interesting accountability decisions. We took last week off because we were busy putting the finishing touches on (drumroll, please) our first amicus brief! But we’ll get to that. First, the decisions:
Allegation: Federal agents tear-gassed, shot rubber bullets at, and beat up peaceful protesters in Lafayette Square, all so President Trump could stage a photo op at a church across the way. D.C. District Court: You can’t sue federal officers under the First Amendment. You also can’t sue them under the Fourth or Fifth Amendments if “national security” is involved. Claims against federal agents dismissed. (This is an example of the Bivens doctrine, which we’ve discussed before.)
Houseless man in Dallas, Tex., is assaulted and suffers multiple head injuries. Paramedics and cops arrive—but instead of treating the man, they mock him and arrest him for public intoxication. Twelve hours later, he dies in jail. Paramedics, perhaps conscious of some guilt, submit false reports saying they never met the guy. Qualified immunity? Fifth Circuit: Not a chance.
Kid with ADHD and Oppositional Defiant Disorder is put in a time-out. Then: “In an attempt to re-enter the classroom, T.O. tried to push Abbott away from the classroom door and hit her right leg. Abbott responded by seizing T.O.’s neck, throwing him to the floor, and holding him in a choke hold for several minutes.” Still, the Fifth Circuit gives the teacher qualified immunity—but the opinion’s author specially concurs to urge, as he has for 20 years, that the court overrule its “completely out of step” corporal-punishment precedents.
In which the Ninth Circuit gives us a threefer: (1) Solitary confinement isn’t cruel and unusual; (2) it’s not even an atypical or significant hardship; and (3) prisoners have no right not to be compelled to inform—or testify falsely!—against other inmates. Qualified immunity and case dismissed.
Now for that amicus brief! In our very first issue, we brought you the story of a Ninth Circuit case holding that prisoners have no clearly established right to confidential communications with their lawyer. We thought it was a bad decision, so when the prisoner decided to ask the full court to rehear the case, we decided to voice our support. Here’s how the brief begins:
When John Witherow called his lawyer, he expected to be able to speak in confidence. Most of us do. Witherow was even using a special phone his prison provided for attorney calls. His subjective expectations converged with longstanding constitutional law, federal rules of evidence, and rules of professional ethics—not to mention objectively reasonable notions of privacy. Still, over Judge Berzon’s dissent, the panel here declined to decide whether Witherow had a right to confidential communications with his lawyer. Instead, it skipped ahead to the second prong of qualified immunity and held that even if he had such a right, it wasn’t clearly established. So whether that right exists continues to be an open question in this circuit.
You can read the rest of the brief here.
That’s it for this week. Please feel free to send this newsletter to any friends or family who might find it interesting. If you got this from a friend, you can sign up to receive future issues here.
When we’re not writing this newsletter, we litigate cases in the federal courts of appeals. If you want to support that important work, you can do so here.
Thanks for reading.
Clearly Established #3
Week of June 4, 2021—Decisions from the Fifth, Seventh, and Ninth Circuits.
Welcome to the third issue of Clearly Established, a somewhat weekly, slightly irreverent newsletter rounding up some of the week’s interesting accountability decisions. Let’s dive right in.
Last week, the Fifth Circuit held that prisoners in the federal system can’t sue for retaliation under the First Amendment. (That’s because of the Bivens doctrine; see last week’s newsletter for a quick explanation.) This week, in response to another prisoner’s claim that federal prison guards retaliated against him for filing grievances, the Fifth Circuit reaffirmed that holding—and added that even if the prisoner could sue, the guards would be entitled to qualified immunity. The not-so-rare Public Accountability double-whammy.
Reader, sit down for this one (cw: racial slurs). White officer investigates claim that Black officer shot an air rifle at a neighbor’s car. While searching Black officer’s apartment, white officer calls Black officer a “porch monkey,” says that he “lived like a n—,” and declared that “we’re going to get this n—.” His report recommends that Black officer be fired, omitting several facts that exculpate Black officer—such as that the shots could not physically have come from Black officer’s apartment. Black officer is fired; naturally, he sues.
White officer: I just wrote a report—I had no power to fire the guy. Seventh Circuit: You used your superiors as a “cat’s paw” for your racial animus, and for that you can be held liable. White officer: This cat’s paw theory of liability wasn’t clearly established in 2011, when all this happened. Seventh Circuit: That’s not how this works. By 2011, “a veritable river of precedents” clearly established the Black officer’s right not to be fired for being Black. You violated that right, and that’s what matters here—not whether you knew you could be held civilly liable. No qualified immunity for you.Police officers in Bellingham, Wash., tase trans woman and send her to the hospital. At the hospital, while she’s unconscious, they photograph her bare torso and thigh. Woman sues, alleging an unlawful search under the Fourth Amendment; officers claim qualified immunity. District court: You say you just took photos of her in plain view, but her gown is arranged differently in each photograph. Curious! No qualified immunity for “lift[ing] clothing” to search someone without a warrant or an exception. Ninth Circuit: Just so. It has “long been established” that such a search violates the Fourth Amendment, and we don’t need a case with identical facts to deny qualified immunity here. (Bonus transphobia: The officers claimed they’d done nothing wrong because they’d merely photographed a “man’s torso.” Neither court took the bait.)
Allegation: Sheriff’s deputy in Los Angeles, Calif., coerces confession from Cameroonian man by threatening to send him and his entire family “back to the jungle.” Naturally, deputy did not administer Miranda warnings first. Violation of the Fifth Amendment? District court: Maybe, but you can’t sue for that. Ninth Circuit (January): Oh yes you can. Ninth Circuit (June): And we see no need to revisit that decision en banc. The Supreme Court may never have called Miranda a “constitutional right” in so many words, but it did strike down an Act of Congress purporting to abolish Miranda—that’s constitutional enough for us.
One other thing: A new podcast, Unaccountable, tells the stories of ordinary citizens whose rights have been violated and whose claims for redress have been stymied by qualified immunity. We recommend it.
That’s it for this week. Please feel free to send this newsletter to any friends or family who might find it interesting. If you got this from a friend, you can sign up to receive future issues here.
When we’re not writing this newsletter, we litigate cases in the federal courts of appeals. If you want to support that important work, you can do so here.
Thanks for reading.
Clearly Established #2
Week of May 28, 2021—Four decisions from the Fifth, Sixth, and Ninth Circuits.
Welcome to the second issue of Clearly Established, a somewhat weekly, slightly irreverent newsletter rounding up some of the week’s interesting accountability decisions.
Today, in addition to qualified-immunity decisions, we have a couple of Bivens cases, so here’s a quick explainer. If a state agent violates your federal rights—say, your right against excessive force—a statute called 42 U.S.C. § 1983 gives you the right to sue in federal court. This is called a “right of action,” and it’s separate from the substantive right that was violated. Think of it as the key that opens the courthouse doors. There’s no analogue to § 1983 for federal agents, but in a 1971 case called Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court said that the Constitution itself gives you the right to sue federal agents for violating your constitutional rights.
Problem is, ever since then, the Supreme Court and the lower federal courts have been cutting Bivens down to nearly nothing. As we’ll see.
Federal prisoner files grievances against prison guards. Guards, in retaliation, drastically reduce his food portions and contaminate what little they allow him to have with feces and urine. Every day. For nine months. District court, missing the point: He had no right to “hav[e] a grievance considered and resolved to his satisfaction.” Fifth Circuit, getting the point but preferring to ignore it: The question is whether he had a right not to have feces and urine put in his food in retaliation for filing grievances, which are protected speech under the First Amendment—but we don’t have to answer that question, because under Bivens, he had no right to sue in the first place. Case dismissed.
Son calls 911 for help with 81-year-old mother, who is “upset and combative.” Officer arrives, sees woman brandishing a garden rake. Woman walks towards officer, yells at him to get off her land. Officer: “You better stop.” Woman: “I’m not gonna stop.” Officer tases her from 10-12 feet away. Sixth Circuit: Officer reasonably perceived that an 81-year-old woman brandishing a rake at that distance posed an imminent threat of harm. Qualified immunity. (We wonder what Justice Alito, who just last week waxed eloquent about how police need to be able to enter homes without a warrant to check in on elderly women, would think about this case.)
Oregon prisoner, a Nation of Islam adherent, wishes to participate in Ramadan. Prison officials: You don’t go to weekly prayer meetings, so you don’t get to do Ramadan. Prisoner: The Nation of Islam does not require weekly prayer meetings. Prison officials: Well, we do; you'll eat during the day, like everyone else. District court: Since you didn’t go to weekly prayer meetings, a reasonable officer could have thought you weren’t sincere in your religious belief. Qualified immunity. Ninth Circuit: That’s not how this works; the government doesn’t get to decide that there’s only one way to sincerely be a Muslim. Reversed.
Innkeeper whose property touches the U.S.-Canada border is also a confidential informant for Border Patrol. Agent stops innkeeper in the street to ask him for information; innkeeper relays that a Turkish guest is arriving that day from New York. No indication that the guest, who’s already been through customs and immigration, is in the country unlawfully. Agent nevertheless tails the guest to the inn and begins interrogating him. Innkeeper tells agent he is trespassing and asks him to leave. Agent shoves innkeeper to the ground, injuring his back. (It turns out that the Turk is here legally after all.) Innkeeper complains to agent’s supervisor. Agent then prevails upon IRS, Social Security Administration, and various state agencies to investigate innkeeper, which they do. Excessive force and unconstitutional retaliation? District court: Can’t say; no First or Fourth Amendment claims under Bivens when “national security” is involved. Ninth Circuit (quoting the Supreme Court): National security is not a “talisman” to “ward off inconvenient claims.” Back you go for a determination on the merits. (Bonus: At pages 29-30, Judge Owens directs the reader to his 1997 student note, which proposes some “admittedly pie in the sky solutions.”)
A couple other points of interest:
You might remember the case of Caron Nazario, a Black and Latino army officer who police in Windsor, Va., pulled over for driving with temporary tags—not a crime!—and then pepper sprayed and assaulted. Videos of the encounter went viral in April, and the officer filed a federal lawsuit. Well, now the officers have claimed qualified immunity. Watch this space for updates. (Mother Jones has reporting here, as part of a broader story on how limiting qualified immunity went from a bipartisan issue to being strongly opposed by some Republicans. It’s worth a read.)
The New York Times editorial board has come out in favor of ending qualified immunity. We confess, dear reader, that we did not expect to convince them so quickly—less than a week after our inception!—but we’re glad they’ve come around.
That’s it for this week. Thanks for reading.