Clearly Established #2
Welcome to the second issue of Clearly Established, a somewhat weekly, slightly irreverent newsletter rounding up some of the week’s interesting accountability decisions.
Today, in addition to qualified-immunity decisions, we have a couple of Bivens cases, so here’s a quick explainer. If a state agent violates your federal rights—say, your right against excessive force—a statute called 42 U.S.C. § 1983 gives you the right to sue in federal court. This is called a “right of action,” and it’s separate from the substantive right that was violated. Think of it as the key that opens the courthouse doors. There’s no analogue to § 1983 for federal agents, but in a 1971 case called Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court said that the Constitution itself gives you the right to sue federal agents for violating your constitutional rights.
Problem is, ever since then, the Supreme Court and the lower federal courts have been cutting Bivens down to nearly nothing. As we’ll see.
Federal prisoner files grievances against prison guards. Guards, in retaliation, drastically reduce his food portions and contaminate what little they allow him to have with feces and urine. Every day. For nine months. District court, missing the point: He had no right to “hav[e] a grievance considered and resolved to his satisfaction.” Fifth Circuit, getting the point but preferring to ignore it: The question is whether he had a right not to have feces and urine put in his food in retaliation for filing grievances, which are protected speech under the First Amendment—but we don’t have to answer that question, because under Bivens, he had no right to sue in the first place. Case dismissed.
Son calls 911 for help with 81-year-old mother, who is “upset and combative.” Officer arrives, sees woman brandishing a garden rake. Woman walks towards officer, yells at him to get off her land. Officer: “You better stop.” Woman: “I’m not gonna stop.” Officer tases her from 10-12 feet away. Sixth Circuit: Officer reasonably perceived that an 81-year-old woman brandishing a rake at that distance posed an imminent threat of harm. Qualified immunity. (We wonder what Justice Alito, who just last week waxed eloquent about how police need to be able to enter homes without a warrant to check in on elderly women, would think about this case.)
Oregon prisoner, a Nation of Islam adherent, wishes to participate in Ramadan. Prison officials: You don’t go to weekly prayer meetings, so you don’t get to do Ramadan. Prisoner: The Nation of Islam does not require weekly prayer meetings. Prison officials: Well, we do; you'll eat during the day, like everyone else. District court: Since you didn’t go to weekly prayer meetings, a reasonable officer could have thought you weren’t sincere in your religious belief. Qualified immunity. Ninth Circuit: That’s not how this works; the government doesn’t get to decide that there’s only one way to sincerely be a Muslim. Reversed.
Innkeeper whose property touches the U.S.-Canada border is also a confidential informant for Border Patrol. Agent stops innkeeper in the street to ask him for information; innkeeper relays that a Turkish guest is arriving that day from New York. No indication that the guest, who’s already been through customs and immigration, is in the country unlawfully. Agent nevertheless tails the guest to the inn and begins interrogating him. Innkeeper tells agent he is trespassing and asks him to leave. Agent shoves innkeeper to the ground, injuring his back. (It turns out that the Turk is here legally after all.) Innkeeper complains to agent’s supervisor. Agent then prevails upon IRS, Social Security Administration, and various state agencies to investigate innkeeper, which they do. Excessive force and unconstitutional retaliation? District court: Can’t say; no First or Fourth Amendment claims under Bivens when “national security” is involved. Ninth Circuit (quoting the Supreme Court): National security is not a “talisman” to “ward off inconvenient claims.” Back you go for a determination on the merits. (Bonus: At pages 29-30, Judge Owens directs the reader to his 1997 student note, which proposes some “admittedly pie in the sky solutions.”)
A couple other points of interest:
You might remember the case of Caron Nazario, a Black and Latino army officer who police in Windsor, Va., pulled over for driving with temporary tags—not a crime!—and then pepper sprayed and assaulted. Videos of the encounter went viral in April, and the officer filed a federal lawsuit. Well, now the officers have claimed qualified immunity. Watch this space for updates. (Mother Jones has reporting here, as part of a broader story on how limiting qualified immunity went from a bipartisan issue to being strongly opposed by some Republicans. It’s worth a read.)
The New York Times editorial board has come out in favor of ending qualified immunity. We confess, dear reader, that we did not expect to convince them so quickly—less than a week after our inception!—but we’re glad they’ve come around.
That’s it for this week. Thanks for reading.
