Clearly Established #15
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.
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