Clearly Established #20
Welcome to the 20th issue of Clearly Established. We’ve been busy beavers here at Public Accountability HQ: In the last two months, we’ve filed not one but two merits briefs. Read on for details, and also for our usual roundup of accountability cases. But first, a request: If you regularly make purchases from Amazon.com, please consider supporting us—at no cost to you—by designating Public Accountability your Amazon Smile beneficiary. Find out more here.
Merits Briefs
Edwards v. Gizzi
When federal agents violate your constitutional rights, the “Bivens” doctrine is the key that opens the courthouse doors: It gives you the right to sue for damages. But the Supreme Court has been restricting Bivens for years, and in June they issued a decision limiting it still further. For must of us, that doesn’t mean much—we don’t come into contact with the feds that often. But federal prisoners do, every day. And Bivens lawsuits are one of the few ways they have to enforce their constitutional right against cruel and unusual punishment.
This lawsuit is the perfect example. U.S. Marshals broke our client’s arm for no reason. The district court dismissed his case, saying that under the Supreme Court’s recent Bivens decisions, he had no right to sue federal officials. We think that goes too far. The Supreme Court has specifically allowed federal prisoners to keep bringing Bivens claims, and lower courts should obey that ruling. We’re asking the Second Circuit to reverse the district court and hold that our client’s claim can be heard on the merits. This is a crucial test case for accountability for federal officials. Read our brief here.
Aberha v. Delafontaine
Under the Eighth Amendment, prison guards have to protect inmates from sexual assault and rape. But when our client told a guard that his cellmate had sexually assaulted him, the guard made fun of him and left him in his cell. Sure enough, later that day, the cellmate choked and raped him. Our client sued the guard for refusing to protect him. The district court denied qualified immunity, but the guard took an interlocutory appeal to ask the Ninth Circuit to end the suit. We’re representing the inmate on appeal. In our brief, we ask the court to confirm that under clearly established law, guards can’t ignore an inmate’s report that his cellmate has just assaulted him. Read our brief here.
Accountability Decisions
And now, back to our regular programming—a somewhat monthly, slightly irreverent roundup of recent accountability decisions.
Responding to a suicide call, cops find a man on his tiptoes, a rope around his neck, the other end tied to a basketball hoop. One of the cops tases the man; his neck goes “crunch” or “gargle,” and he dies by hanging. Fifth Circuit: Qualified immunity. (This is the same court that granted qualified immunity to an officer who set fire to a man who’d doused himself in gasoline. If you want to kill yourself in Texas, good news: The cops—and the courts—will help.)
Woman sues her boss under the Fair Labor Standards Act. He’s a state employee, so he claims qualified immunity. District court: No dice. Fifth Circuit: Actually, yes dice—if qualified immunity even exists under the FLSA, which isn’t clear. Remand to the district court to figure that out. Judge Costa, concurring: Qualified immunity is not some “brooding omnipresence in the sky.” It doesn’t automatically apply anytime you sue a government official.
If a government official does something that’s both unconstitutional and outside the scope of their duties—say, if a “permit officer” pulls someone over—can they claim qualified immunity? Fifth Circuit: No.
Officer pulls over a pregnant woman for invalid plates, gives her a hard time, and threatens to arrest her. She calls her dad to come pick her up. Turns out her dad and the officer have old beef. The dad swears at the officer. The officer swears back. Then he tases the dad, pounces on him, delivers a variety of punches and kicks, and tases him a couple more times for good measure. Qualified immunity? Sixth Circuit: No, you can’t beat the daylights out of someone for swearing at you. Especially not when you “likewise display a penchant for profanity.” Qualified immunity denied.
Ordinarily, parties can’t appeal a case until there’s a final judgment, but the Supreme Court has created a special rule for mid-case “interlocutory” denials of qualified immunity: Officials can appeal such orders, if their appeal turns on an issue of law. And the Seventh Circuit is sick and tired of reminding lawyers not to dispute the facts in such interlocutory appeals.
Shoplifter, facing arrest, makes a dash for the exit. One officer grabs him, and he lays a hand on her arm. In response, another officer lifts him into the air and bodyslams him to the ground with enough force to break his skull, causing permanent brain damage. A store employee likens it to a “professional wrestling” move. Eighth Circuit: The officer used excessive force. But because the Supreme Court has been super strict on qualified immunity lately, he gets qualified immunity.
Say a community college professor administers the following quiz: “True or false: Terrorism is encouraged in Islamic doctrine and law.” Say he forces Muslim students who don’t believe their religion encourages terrorism to take this quiz and answer ‘True’ or suffer a lower grade. Any constitutional problem? We’ll never know, because two-thirds of this Ninth Circuit panel says the professor gets qualified immunity either way.
Is it reasonable for a prison guard to stop a beatdown by shooting rubber bullets at the victim, who’s not fighting back? It’s not clear, says the Ninth Circuit, so the guard gets qualified immunity.
We’ve sighted a rare bird indeed: An Eleventh Circuit reversal of a district court decision granting qualified immunity. Cops go to arrest a man at his girlfriend’s apartment. He points a gun at them; they fire dozens of rounds at him; he falls to the floor. They keep shooting. Then they toss a flashbang at him to check if he's alive. He doesn’t react. The officers claim that’s when they stopped shooting at him. But in a bystander’s video, gunfire is audible after the flashbang. District Court: Qualified immunity anyway. Eleventh Circuit: No. Shooting a person who’s unconscious is clearly excessive force.
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