Clearly Established #6
Welcome to the sixth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of the week’s interesting accountability decisions. We’ve got a lot of cases from the Fifth Circuit for you this week, but we’ve leavened it with some Tenth Circuit and Supreme Court action. Let’s dive right in:
Police encounter man experiencing diabetic seizure, break open his car window, drag him to the ground, press his face into the broken glass, and punch and knee him in the back. Fifth Circuit: Qualified immunity.
Student in Harris County, Tex., refuses to complete assignment requiring her to transcribe the pledge of allegiance. Teacher threatens her with a zero—and then goes on an extended diatribe, touching on “communists, supporters of Sharia law, foreigners who refuse to assimilate into American culture,” “the Cuban Missile Crisis,” “the Pope’s opposition to the construction of a wall at the United States’ southern border,” and finally “a discussion of a local sex offender in the news.” District court: Seems possible your assignment didn’t have a pedagogical purpose. No qualified immunity. Fifth Circuit: We’ve got no jurisdiction to review that factual issue—to trial you go. (A full transcript of the teacher’s comments can be found at pages 4-5 of the opinion. We suggest you read them for yourselves. –ed.)
Back in February, the Fifth Circuit granted qualified immunity to officers who saw a man douse himself in gasoline, commented that he’d catch fire if they tased him, and then tased him. (He caught fire and burned alive.) Now, the full Fifth Circuit has declined to rehear the case en banc, albeit with several spirited separate writings. Perennial Public Accountability favorite, Don Willett, dissents from denial with the observation—prescient, we hope—that the Supreme Court’s recent decisions have “signaled a subtle, perhaps significant, shift regarding qualified immunity, pruning the doctrine’s worst excesses.”
2001: Police department in Silver City, N.M., hires an admitted domestic abuser as a cop.
2003: Department investigates allegations that the cop had also sexually abused a child, but clears him.
Mar. 9, 2016: Police respond to a domestic disturbance, realize it’s the cop, change the call to a “welfare check,” and leave without charging him with anything.
Mar. 25, 2016: Cop’s girlfriend calls police to tell them the cop harassed her coworker and tailed her home. Police chief: “Knock it off or it’ll affect your job.”
Mar. 28, 2016: Police chief gives the cop a promotion and a raise.
April 2016: Cop shoots and kills his girlfriend, and then himself.
Tenth Circuit: You treated the victim differently because her partner was a cop, and in so doing you denied her the equal protection of the laws. No qualified immunity for you. (Coda: Sometime after the cop killed himself, the department discovered in its possession a memory card that contained images of the cop, in uniform, exposing himself to young girls.)A total of eight cops take down a 5’3”, 160 lb prisoner; handcuff and shackle him; and press him face-down into the floor for 15 minutes. He dies. Excessive force? Could be, says the Supreme Court, sending the case back to the Eighth Circuit for another look.
Also at the Supreme Court, Justice Thomas once again expresses his view that qualified immunity has no basis in law or history.
In addition, we came across two podcasts recently that are worth your while:
In On Our Watch, NPR dives into the details of police internal-affairs investigations that have recently come to light thanks to a new California law.
And an episode of The Argument explores the case for and against qualified immunity.
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.
