Clearly Established #9
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.
