Clearly Established #22

Welcome to the 22nd issue of Clearly Established, an unscheduled, unpredictable[1] roundup of recent accountability decisions. It’s been a minute since the last issue, which means we had an embarrassment of cases to choose from. Let’s dive right into the extra-spicy ones that made the cut.

• Election loser falsely claims election was stolen, files meritless lawsuits challenging election results, pressures officials to reverse election outcomes, and delivers speech that sparks a riot at the U.S. Capitol. Officer injured during riot sues. Loser: I was president at the time, so I am immune from suit. D.C. Circuit: Interesting. Your meritless court filings say you were acting in your “personal capacity as candidate for reelection to the office of President,” not your official capacity as a sitting president. We agree. Immunity denied.

• In a pathbreaking opinion, the First Circuit holds that two years of solitary confinement with no opportunity to rebut the basis for that confinement can violate the Due Process Clause. But then, in a sentence that should make all lawyers blush, it grants qualified immunity because “the law was not clearly established that Perry’s solitary confinement implicated a liberty interest.” Yes, you read that right—it was unclear that solitary confinement implicated an interest in liberty.

• One of qualified immunity’s perverse side-effects is that it not only gives cops a get-out-of-liability-free card when the law is unclear, it also often prevents courts from clearly establishing the law, allowing police to get away with violating the same constitutional rights over and over again. The pattern goes like this: (1) Cop violates a constitutional right. (2) Court says “we don’t need to decide whether he violated your constitutional right because even if he did, the right you’re asserting wasn’t clearly established, so case dismissed.” (3) Rinse and repeat—the right is never clearly established. Which is why, after eight years of rinsing and repeating, the Fourth Circuit took the time to clearly establish that for pretrial detainees, the deliberate-indifference standard is objective, not subjective.

• Small-town Texas cops plot for months to arrest a local gadfly/citizen-journalist, charging her with “soliciting information that had not yet been officially made public with intent to obtain a benefit.” First Amendment violation? Fifth Circuit (en banc): Sure, the Supreme Court has held similar statutes unconstitutional, but no one’s ever held this statute unconstitutional, so qualified immunity. Dissent: “Turns out, ignorance of the law is an excuse—for government officials.” (Judge Willett’s dissent is a banger and you should read the whole thing.)

• In the early days of the Covid pandemic, Louisiana man makes a joke Facebook post suggesting that the county’s sheriff’s deputies will “shoot” infected people “on sight.” He adds the hashtag: “#weneedyoubradpitt.” Ever paragons of good humor, deputies arrest him instead and tell him: The “next thing [you] put on Facebook should be not to fuck with the police.” Fifth Circuit: Not even we can give you qualified immunity for this.

• Can federal courts of appeals clearly establish the law? The answer is yes, but some Trumpy jurists have begun suggesting that only the Supreme Court can clearly establish the law. (The Supreme Court decides all of 60–80 cases a year, so this would supercharge qualified immunity.) In this Fifth Circuit case, a dissent from Judge Andrew Oldham—among the Trumpiest of jurists—makes that very suggestion, but the majority’s having none of it. “A proverbial mountain of binding authority is to the contrary,” explains the majority, before dropping a thousand-word footnote illustrating that mountain.

• Black man stopped for toll violations begins to flee. Within two seconds, officer jumps onto his vehicle’s running board and shoots him dead. Fifth Circuit: Well, under the prevailing conditions at the millisecond he shot, the officer might have feared for his life. The fact that he created those conditions by jumping into a car to stop someone from getting away with skipping a toll fee—an offense that’s not even arrestable under Texas law—is irrelevant under our precedents. Same judge, concurring in his own opinion: Our precedents are stupid.

• Responding to a report of a disturbance with a gun, Cedar Rapids police yell “stop” at two Black men. One of them continues to walk a few steps away, but soon submits to arrest. After a bystander tells the officers they’ve got the wrong guys, they let them go. But when they don’t find the right guys, they come back and arrest the guy who took a few steps, charging him with “interfering with official acts.” Eighth Circuit (2021): You’ve gotta be kidding. No qualified immunity. District court: Based on this new case from the Iowa Supreme Court, qualified immunity after all. Eighth Circuit (2024): Did we stutter?

• Prisoner: I was punished with three months of solitary confinement, a year of no visitation, loss of good-time credits, and a huge fine—after a kangaroo trial before a prison guard who refused to let me put on a defense. That’s gotta be a denial of due process. Ninth Circuit: Might be, but thanks to something called the “Heck bar,” we have to give that kangaroo trial preclusive effect here. Case dismissed. [We’re going to be focusing a lot on the Heck bar in the months to come. —ed.]

• Back in May 2020, California prison officials transfer 122 inmates from a prison in the middle of a Covid outbreak to a prison with no Covid cases. Predictably, everyone at the destination prison catches Covid; twenty-five prisoners and one guard die. Their families bring suit. Prison: Look, it was literally called the “novel” coronavirus. How could we know. Ninth Circuit (August 2023): “COVID-19 may have been unprecedented, but the legal theory that Plaintiffs assert is not.” No qualified immunity in a suit brought by the guard’s family. Ninth Circuit (October 2023): Same goes for the prisoners’ families.

• California cops shoot a mentally ill man in a gym locker room. Ninth Circuit (2022) (in a 2–1 decision): Looks like the video and other evidence call the officers’ justifications into serious question. No qualified immunity. Ninth Circuit (May 2023): The Obama appointee who provided the second vote just retired and was replaced by an extremely conservative George W. Bush appointee, so we’ll be taking a second look at that. Ninth Circuit (August 2023): Surprise! The cops get qualified immunity after all.

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That’s it for this issue. When we’re not writing this newsletter, we litigate accountability cases in the federal courts of appeals. It’s vital work—and we run 100 percent on the support of followers like you. Whether it’s $10 or $100, your contribution will meaningfully help us safeguard the constitutional rights of all. So please, consider investing in our work—

Thanks for reading. 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.

[1] We're borrowing “unscheduled, unpredictable” from our friends over at Divided Argument, an excellent podcast about the Supreme Court.

Public Accountability’s 2023, Wrapped

Friends,

It's been a busy year here at Public Accountability. In the last 12 months we've served more clients, won more cases, and advanced the cause of public accountability more than ever before. And your support has been vital to our efforts. I want to tell you a bit about our year, and then I'm going to ask you to help us continue to expand rights and remedies next year.

Fighting to Keep Bivens Alive

Bivens is the doctrine that lets you sue federal agents. (See our detailed writeup here.) Problem is, the Supreme Court has been cutting away at Bivens for decades, and in late 2022 the Ninth Circuit issued a decision that would have killed it entirely. So we opened 2023 by asking the court to rehear the case en banc. We didn't get the rehearing, but we did get the court to delete the worst bits and issue an amended opinion. So Bivens lives to fight another day. And we're carrying on the fight: We just finished briefing a case arguing that federal prisoners can sue prison staff who refuse to treat their injuries.

Defending Parents and Teachers from MAGA Activists

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 talk about holding 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, and in July we won a complete victory. Notch one for free speech.

No, You Can't Force Prisoners into a Covid Party

Do prisoners have a clearly established right against being forced to participate in a “Covid party”? We think so—but the State of Connecticut disagreed. 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. We argued that that amounted to cruel and unusual punishment. In October, we notched another complete victory: The court ruled that the warden violated his rights and it denied her request for qualified immunity.

By the Numbers

Those are just a few of the cases we worked on this year. Here's the rest of the scorecard:

• 14 clients served

• 11 briefs filed

• 3 oral arguments presented

• 2 wins (and one decision pending—we could still be 3 for 3!)

A Request

The work we do is critical. Every day, police officers, prison guards, and other state actors abuse their power and violate people's constitutional rights. They bet that people can't fight back, and too often they're right. But Public Accountability is there—to help you fight back, to hold officials accountable, and to change the law so they can't keep getting away with it. So if you can, please support our work and donate.

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Thanks for reading, and happy holidays.

In gratitude and solidarity,

Athul K. Acharya
Founder & Executive Director, Public Accountability

We beat MAGA extremists in Newberg!

In the aftermath of the 2020 election, local school boards became the new front in the far right’s culture wars. In rural and suburban districts around the country, extremists with national funding campaigned against mask mandates, LGBT rights, and “critical race theory.” In Newberg, Oregon, they took over the school board and banned Black Lives Matter and Pride symbols. Then, when local residents began organizing against them, they claimed they’d been “doxed” and sued four parents and teachers. We teamed up with the ACLU of Oregon and prominent local civil-rights lawyers to fight back. Today, we won: The Oregon Court of Appeals dismissed the directors’ claims.

Here's what happened. School-board director is a part-time position, and each director also had a day job. They each made that information public—in interviews with the press, in their campaign materials, and on their LinkedIn pages. So as part of organizing against them, our clients discussed the directors’ employers in the context of potential boycotts. The directors claimed that caused them “severe emotional distress.” The court explained that reasonable public officials wouldn’t feel severely distressed by that. And because the directors’ claim of distress was unreasonable, the court dismissed their case.

The result we achieved sets several important precedents. It confirms that organizing against elected officials is conduct “in furtherance of the constitutional right of free speech.” It provides that Oregon’s “anti-SLAPP” statute—which protects people from frivolous lawsuits designed to chill participation in public affairs—applies broadly when the speech at issue is connected to the public interest. And it holds, for the first time, that public officials can’t just claim they suffered “severe emotional distress” and collect damages from their constituents. Public officials choose to place themselves in the public eye, and they must accept “closer public scrutiny” as a result. They have no right to complain when their constituents organize to hold them accountable.

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We’re incredibly proud of this result. And we couldn’t have achieved it without your support. We don’t charge our clients fees—we run on contributions from people like you. So if you’re able, please donate to help us fight for your civil rights.

Clearly Established #21

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.

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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.

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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.

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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.