Clearly Established #19
Welcome to the 19th issue of Clearly Established, a somewhat monthly, slightly irreverent roundup of recent accountability decisions. Let’s dive right in.
Man goes out of town and asks police to visit his wife for a welfare check. Cop visits wife, asks if she’s lonely, comments on her breasts, threatens to ticket her for having a bong, and ultimately coerces her into exposing herself while he “masturbated to ejaculation in front of her.” District court: He didn’t physically touch her, so he didn’t violate the constitution. Fifth Circuit: That’s not how this works. This is a constitutional violation—and an obvious one at that, so no qualified immunity.
Texas Governor Greg Abbott bans school districts from imposing mask mandates. Do severely disabled kids have standing—basically, some “skin in the game”—to seek an injunction against enforcement of that ban? Fifth Circuit (over a vigorous dissent): No. Just because you’re at high risk for severe illness if you get covid doesn’t mean you have enough skin in the game to sue over a ban on mask mandates. Dissent: This isn’t a simple “fear of covid” case. This is a disability-discrimination case, and we have laws prohibiting discrimination on the basis of disability.
Texas denies religious group’s request to hold religious gatherings. After the group sues, Texas institutes a new policy allowing them to apply for a congregation—but never actually permits them to congregate. Texas: This new policy means the group’s suit is moot. Fifth Circuit: Not by a long shot. Judge Ho, concurring: Let’s add mootness to the list of “unholy” doctrines I complained about back in May. Together, these doctrines mean “no damages for past injury, due to immunity—and no injunction to stop future injury, due to mootness. Heads I win, tails you lose.” [We’re guessing the judge hired a very libertarian clerk this year, and we expect this rash of good concurrences to subside come September. —ed.]
A witness in a federal sex-trafficking investigation punches a woman and threatens her with a knife. When police arrive on the scene, the witness calls her handler—a local cop who’s part of the federal task force—who lies to the cops on the scene and gets the victim arrested for witness tampering. The victim spends years in federal custody before she’s acquitted. Once she’s out, she sues the cop. Eighth Circuit (2020): You can’t sue her as a fed; feds have broad immunity from civil-rights suits. (See our last issue for more on this.) Eighth Circuit (2022): And you can’t sue her as a local cop, either, because she was cross-deputized and acting as a fed.
Hawai‘i building inspector repeatedly investigates and prevents work on the renovation project of a Japanese homeowner who has hired white contractors. Inspector to homeowner’s neighbors: “I keep shutting them down but fuck these Haoles don’t listen, that’s why I try keep it local.” Homeowner sues under a little-used statute, 42 U.S.C. § 1981, that prohibits racial discrimination by public officials. Inspector: But his project really did violate code! Ninth Circuit: Doesn’t matter; “a law may be fair on its face but grossly unfair in its enforcement.” If you enforced the code more vigorously against him because he’s a Haole, you’ll have to pay up.
Under the “Heck bar,” if you’ve been convicted of a crime, you can’t bring a civil-rights claim that would call that conviction into question. In California, the crime of resisting arrest includes the element that the arrest was lawful; in other words, if a jury convicts you of that crime, it must necessarily have decided that the arrest you resisted was lawful. So if a cop uses excessive force to make an arrest and the arrestee sues the cop, what’s the logical next move? Prosecute the arrestee for resisting arrest! If you get a guilty verdict, boom, the excessive-force lawsuit is Heck barred. And that’s exactly what happened in this Ninth Circuit case.
Journalists attempt to film a police encounter in Lakewood, Colo. One officer obstructs the camera, shines a light into it so it can’t record anything else, and eventually gets in his cruiser and drives directly at the journalists, swerving away at the last minute. Qualified immunity? Tenth Circuit: No. The First Amendment protects the right to film police performing their duties in public. And—importantly—even though we’ve never said so before, six other circuits have, so that right was clearly established.
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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