Clearly Established #17
Welcome to the 17th issue of Clearly Established, a somewhat monthly, slightly irreverent roundup of recent accountability decisions.
This issue is a special one—it marks one year of operation for Public Accountability! In one year, we’ve won two cases and lost zero. We got $750,000 for one of our clients. We made it harder for officials to file frivolous appeals when they lose qualified immunity. We strengthened and clarified important constitutional rights, including the right to protest. And we’ve got more good work in the hopper. So before we dive in, a request: When you're done reading what what the federal courts have been doing with anti-accountability doctrines, please hit that “Donate” link at the bottom and toss what you can our way. We defend civil rights, and we can’t do it without your help.
And with that, on to the cases!
Federal public defender, sexually harassed by her superiors and fired after reporting it, brings Bivens claim. The Supreme Court has severely curtailed new Bivens claims, but it long-ago greenlit claims for sex discrimination in federal employment. So can this federal employee’s sex-discrimination lawsuit go forward? Fourth Circuit: Not a chance. That case was against a congressman, while this is against employees of the federal judiciary. Totally different. No Bivens claim.
In this entertaining cop v. cop lawsuit out of the Fifth Circuit, we’re sorely tempted to say “let them fight” and call it a day. But we reckon it’s not an accident that the Black cop gets guns pointed at him and the white cop gets qualified immunity. C’mon now.
Cop 1 tells a car full of underage kids fleeing a party to stop. Kids accelerate past him. As the car goes by, cop 2 shoots the passenger in the head. Texas courts: Yep, that’s murder. Fifth Circuit: No qualified immunity. Ho, J., dissenting: The cops say they felt threatened by a car driving away from them, and who are we to judge?
Cops fail to solve the brutal murder of a high-school student in Livingston Parrish, La. Two years later, a jailhouse informant fingers a man they’d already ruled out. His account is inconsistent and contradicts known facts about the crime, but the cops are undeterred. They concoct a story “out of whole cloth,” arrest a high-school kid, and intimidate him into adopting their fabrication. After the man spends sixteen years in prison, the Supreme Court overturns his conviction. He sues the cop and the prosecutor, who claim absolute prosecutorial immunity. Fifth Circuit: Manufacturing evidence is more cop-like than prosecutor-like, so no immunity for you.
Judge Ho has a dubitante dissent in that last case that merits a bullet point all of its own. Because of precedent, he says, he’d grant the defendants absolute immunity. But he’s not happy about it: “Worthy civil rights claims are often never brought to trial. That’s because an unholy trinity of legal doctrines—qualified immunity, absolute prosecutorial immunity, and Monell—frequently conspires to turn winnable claims into losing ones.” Preach, Judge Ho. [Now there’s a sentence I never expected to put in this newsletter. —ed.]
Man creates a satirical Facebook page to mock his local police department. His satirical page offers “free abortions” and a “Pedophile Reform event.” The cops, naturally, get big mad and arrest the man. He wins at his criminal trial and then sues for violation of his First Amendment rights. Sixth Circuit: We’re not sure your Facebook page was speech, but we’re damn sure the officers get qualified immunity. Case dismissed.
After a stabbing, Des Moines police tell the victim’s family they’ll take them to the hospital. Instead, they take the family members to the stationhouse and question them for over three hours against their will. In the meantime, the victim dies. Constitutional violation? Clearly established? Eighth Circuit: Yep and you bet. Stras, J., concurring: “Rarely do rights come more clearly established.”
Over the course of about 14 hours, during which he demonstrates plenty of obvious visible symptoms, a man in jail suffers a ruptured aorta and dies. Ninth Circuit: “We must determine whether the level of medical care was unconstitutional, not whether it was so substandard that it may have cost Russell his life.” Perhaps you find it strange, reader—as we do—that the two questions are not the same. But in the end, the Ninth Circuit still denies qualified immunity to two out of the three defendants. To trial they must go.
For years, prison officials refuse to treat a man’s prostate issues. When he’s transferred to a different facility, medical staff there finally order emergency treatment. They end up draining 6 liters of urine from his bladder. (The human body contains 5 liters of blood.) Was the “treatment” officials rendered at the first facility clearly unconstitutional? Officials: No case says we can’t adopt a “wait and see” approach. Ninth Circuit: “At some point ‘wait and see’ becomes deny and delay.” Qualified immunity denied.
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.
