We just notched another win!
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
