Clearly Established #5
Welcome to the fifth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of the week’s interesting accountability decisions. We took last week off because we were busy putting the finishing touches on (drumroll, please) our first amicus brief! But we’ll get to that. First, the decisions:
Allegation: Federal agents tear-gassed, shot rubber bullets at, and beat up peaceful protesters in Lafayette Square, all so President Trump could stage a photo op at a church across the way. D.C. District Court: You can’t sue federal officers under the First Amendment. You also can’t sue them under the Fourth or Fifth Amendments if “national security” is involved. Claims against federal agents dismissed. (This is an example of the Bivens doctrine, which we’ve discussed before.)
Houseless man in Dallas, Tex., is assaulted and suffers multiple head injuries. Paramedics and cops arrive—but instead of treating the man, they mock him and arrest him for public intoxication. Twelve hours later, he dies in jail. Paramedics, perhaps conscious of some guilt, submit false reports saying they never met the guy. Qualified immunity? Fifth Circuit: Not a chance.
Kid with ADHD and Oppositional Defiant Disorder is put in a time-out. Then: “In an attempt to re-enter the classroom, T.O. tried to push Abbott away from the classroom door and hit her right leg. Abbott responded by seizing T.O.’s neck, throwing him to the floor, and holding him in a choke hold for several minutes.” Still, the Fifth Circuit gives the teacher qualified immunity—but the opinion’s author specially concurs to urge, as he has for 20 years, that the court overrule its “completely out of step” corporal-punishment precedents.
In which the Ninth Circuit gives us a threefer: (1) Solitary confinement isn’t cruel and unusual; (2) it’s not even an atypical or significant hardship; and (3) prisoners have no right not to be compelled to inform—or testify falsely!—against other inmates. Qualified immunity and case dismissed.
Now for that amicus brief! In our very first issue, we brought you the story of a Ninth Circuit case holding that prisoners have no clearly established right to confidential communications with their lawyer. We thought it was a bad decision, so when the prisoner decided to ask the full court to rehear the case, we decided to voice our support. Here’s how the brief begins:
When John Witherow called his lawyer, he expected to be able to speak in confidence. Most of us do. Witherow was even using a special phone his prison provided for attorney calls. His subjective expectations converged with longstanding constitutional law, federal rules of evidence, and rules of professional ethics—not to mention objectively reasonable notions of privacy. Still, over Judge Berzon’s dissent, the panel here declined to decide whether Witherow had a right to confidential communications with his lawyer. Instead, it skipped ahead to the second prong of qualified immunity and held that even if he had such a right, it wasn’t clearly established. So whether that right exists continues to be an open question in this circuit.
You can read the rest of the brief here.
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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