Clearly Established #1
Welcome to the first issue of Clearly Established, a somewhat weekly, slightly irreverent newsletter rounding up some of the week’s interesting accountability decisions. First, a quick recap on qualified immunity, or QI. If you sue a police officer or other government employee for violating your rights, the officer can raise QI as a defense. Under QI, the officer gets to escape liability even if he or she violated your rights, unless you can prove that the right was “clearly established.” This TikTok meme does a remarkably good job of summing it up.
All three decisions this week highlight two fundamental problems with qualified immunity: First, courts require super-specific precedent to say that a right is “clearly established.” Unless the court has previously seen a case with almost identical facts, the defendant gets qualified immunity. And second, courts can actually get rid of a case by saying “any right you may or may not have had wasn’t clearly established”—they don’t even have to say whether the right exists! So when the next case comes around, the right still isn’t clearly established, and the next defendant gets qualified immunity too. And so on. See for yourself.
Cop pulls over driver in Shreveport, La., for broken brake and license plate lights. Driver drives for two minutes into a neighborhood and stops in a driveway. Cop searches driver, tells him to put his hands behind his back, but doesn’t tell him he’s under arrest. As driver is complying, three more cops arrive, slam him to the ground, kick him and punch him repeatedly, and put him in handcuffs. Uh oh! Multiple Fifth Circuit cases say that “violently slamming an arrestee who is not actively resisting arrest” is a constitutional violation. District court: No qualified immunity. Fifth Circuit: There’s no case says that it’s a constitutional violation if the arrestee drove two minutes into a residential area, turned out to be kinda big, and got mouthy about being arrested for broken lights. Qualified immunity; case dismissed. (Reason reports on this case here.)
California Highway Patrol policy requires officers to “relinquish on demand” any “work stored on any type of electronic device.” Investigating an officer’s relationship with a confidential informant, CHP demands the officer’s personal cellphone. But instead of searching for messages with the CI, CHP downloads everything on his phone! Constitutional violation? Supreme Court (2014): Because “a cell phone search would typically expose to the government far more than the most exhaustive search of a house,” cell phones get special Fourth Amendment protection. Ninth Circuit (2021): No case has specifically said that that protection extends to the workplace, so qualified immunity & case dismissed. And we’re not going to specifically say so in this case, either.
Nevada state prison has a policy of listening in intermittently on prisoners’ calls with their attorneys to make sure the calls are “legal in nature.” Prisoner: I have a Fourth Amendment right to confidential communications with my lawyer! Ninth Circuit: Not a clearly established right, you don’t. Case dismissed. And we’re not going to clearly establish any such right in this case, either.
