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.

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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.

Clearly Established #16

Welcome to the 16th issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of recent accountability decisions. Let’s dive right in.

• Healthcare company imports nurses from the Philippines to the US in what is essentially a contract for indentured servitude. When they quit, the company convinces the local DA to prosecute them for endangering patients (by quitting). A New York appellate court, rightly, dismisses the prosecution on the basis of the Thirteenth Amendment. (That’s the one that prohibits slavery and involuntary servitude.) So the nurses sue the prosecutors for conspiracy to violate their constitutional rights. Second Circuit: Prosecutors have absolute prosecutorial immunity [qualified immunity’s even uglier cousin —ed.] for prosecutorial activities. Case dismissed.

• Close to solving a years-long crime spree, an ace detective in Benton, La., comes up with an unusual theory: “Todd decided to frame himself in order to clear his name.” Reader, that’s all we’re giving you on this Fifth Circuit case denying qualified immunity. We promise it’ll be worth your while.

• Responding to a welfare check on a distraught woman, cops decide to take her to the ground and arrest her. In the process, they slam her head-first into a soda machine. District court denies qualified immunity. Cops: She tripped and fell! Sixth Circuit: That’s a factual dispute. Actually, all your arguments are factual disputes. And factual disputes must be resolved by a jury. To trial this case will go.

• What happens when a state court proclaims its union contract invalid, stops deducting union dues from paychecks, eliminates grievance procedures, and generally pretends that the union no longer exists? Well, if you sue in federal court, nothing happens, because the state court is an arm of the state and thus entitled to state sovereign immunity. So says the Sixth Circuit, with a separate concurrence from Judge Sutton urging the circuit to rethink its Contracts Clause jurisprudence.

• 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. But what if, instead of a state-court conviction, you went through a pre-trial diversion program? That’s just a contractual agreement with the state not to prosecute you, says the Eighth Circuit, so there’s no conviction to call into question—so no Heck bar. (There are several other issues of interest in this case arising from the Dakota Access Pipeline protests of 2016, including no qualified immunity for shooting a peaceful protester in the head with a lead-filled beanbag.)

• Underage Doe plaintiff goes to the county courthouse for a judicial bypass to obtain an abortion without parental consent. Court clerk tells Doe her parents will be notified if she does so. Doe eventually goes out-of-state for the abortion, but upon her return, she sues the clerk for violating her constitutional right to an abortion. Clerk: I was acting at a judge’s behest, so I’m shielded by absolute quasi-judicial immunity. Eighth Circuit: Well, the judge doesn’t remember telling you anything, so that’s disputed. You can tell it to a jury. And while you’re at it, Doe’s right to an abortion was clearly established, so no qualified immunity for you, either.

• Is it clearly established that you can’t repeatedly tase someone who’s outnumbered, hobbled, and pinned facedown by your fellow officers? No, says the Ninth Circuit, but two out of three judges write separately to say that it’s clearly established going forward.

• If a public school stops sending kids on field trips to your farm because of your obnoxious MAGA tweets (sample topics: gender identity, comparisons between BLM and ISIS, Elizabeth Warren’s ancestry), is that unconstitutional retaliation against speech? Well, yeah, says the Ninth Circuit. But good news for the defendants: They have qualified immunity from damages because no previous case clearly established that “a school district could not cease patronizing a company … because the company’s principal shareholder had posted controversial tweets that led to parental complaints.” (If you think that’s a little exacting, the Ninth Circuit agrees: “There will rarely be a case that clearly establishes that the plaintiff is entitled to prevail” under this fact-specific standard.)

• In a counterpoint to the welfare-check case above, the Tenth Circuit resolves several factual disputes in this interlocutory appeal, holding that the district court’s findings were “blatantly contradicted by the record” and instructing it to grant qualified immunity to a cop with an itchy trigger finger.

• Bill Pryor is one of the most conservative judges in the country, but even he blanches at letting police get away with body-slamming and breaking the neck of an unarmed, cooperative, non-threatening veteran. Read all about it in this Eleventh Circuit opinion.

• And in Supreme Court news, with a six-justice majority, the Court has recognized that the Fourth Amendment prohibits malicious prosecutions. Bonus: The Heck bar doesn’t require you to show that you were exonerated—just that you weren’t convicted.

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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.

Clearly Established #12

Welcome to the 12th issue of Clearly Established, a slightly irreverent roundup of recent accountability decisions. It’s been a while since our last issue, but we’re back with a bumper crop of interesting cases. Let's dive right in.

• Buckle up, ’cause this first case takes us deep into the abstruse world of interlocutory appellate jurisdiction. Rule 1: Ordinarily, you can’t appeal a case until there’s a final judgment, but denials of qualified immunity (so sayeth the Supreme Court) are special and immediately appealable. Rule 2 (the “Heck bar”): Federal courts cannot hear civil-rights claims that imply a state-court conviction is invalid. So what happens when a district court denies qualified immunity and also rejects a Heck argument? A couple of circuits say you can appeal both, but those courts are wrong, says the Third Circuit. No interlocutory appellate jurisdiction over the Heck bar here.

• It’s rare you see an entire panel concur with its own opinion, but three Third Circuit judges do so here to explain the scholarly basis for their decision denying qualified immunity to an officer who shot at a fleeing suspect.

• Cop responds to domestic-violence call and shoots deadbeat dad dead. Cop: We chased him, he stopped at a couch, he grabbed something, and he began to turn towards me. I thought he’d gotten a gun! I was in fear for my life! Fourth Circuit: Then how come you shot him in the back? And how come nothing was ever found in the couch? Qualified immunity denied.

• Sheriff fires jail guard for sexually assaulting detainees. Sheriff then, inexplicably, rehires jail guard. Guard, predictably, sexually assaults more detainees. Fifth Circuit: It was “plainly obvious” that the guard would sexually assault inmates again. No qualified immunity for the sheriff.

• Allegation: Cop, responding to false alarm, shoots two friendly dogs. Eighth Circuit: That sure sounds unconstitutional. Cop: But what if I say they were growling? Eighth Circuit: You can say that in discovery. Qualified immunity denied.

• When a protester performs a “die in,” is dragging her out of the room by one arm with enough force to tear her rotator cuff excessive force? No, rules the Ninth Circuit, granting the officer qualified immunity.

• Remember that special jurisdictional rule at the top of this issue for appeals of qualified immunity? Well, in the Ninth Circuit, that rule doesn’t apply to denials of sovereign immunity, and so naturally it doesn’t apply to denials of derivative sovereign immunity either. (So many immunities!)

• Is it clearly established that public officials can’t fabricate a confession of child abuse to obtain a conviction? Yes, and that’s obvious, says a split panel of the Tenth Circuit. Dissent: But the official in question was a social worker, not a law-enforcement officer; but she was drafting a social-services report, not a forensic analysis; but she couldn’t have known her fabricated report would be used in criminal proceedings; but, but, but….

• Black high school student earns a spot on a major university’s “elite dance team.” High school cheer coach, in text messages: “It actually makes my stomach Hurt[.] Bc she’s f*****g black[.] I hate that.” Student discovers texts, shows them to principal; coach is relieved of her duties. Coach then tells the rest of the team to “boycot[t]” student—to ostracize and exclude her from cheer team activities. Tenth Circuit: Might be you violated the constitutional guarantee of equal protection. No qualified immunity for you.

• School officials strip search a 14-year-old girl—twice—looking for a roach. They find nothing. Qualified immunity? District court: Well, they didn’t find the roach anywhere else on her, so they just had to strip search her. Eleventh Circuit: Well, there’s a Supreme Court case saying they can’t do that, and a case from this court saying they can’t do that, so they probably should’ve known they can’t do that. Qualified immunity denied.

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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.

Clearly Established #8

Welcome to the eighth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of recent accountability decisions. We took a couple of weeks off to work on an important brief in Index Newspapers v. City of Portland, but now we’re back with a bonanza edition: In addition to our usual qualified immunity fare, we’ve got a few new accountability doctrines to introduce you to. Let’s dive right in.

• Turkish security forces beat up anti-Erdoğan protesters in Washington, D.C. The protesters sue the Republic of Turkey. Turkey: We get immunity under the Foreign Sovereign Immunities Act. D.C. Circuit: Nope. Turkey: Political question doctrine? D.C. Circuit: Also no. Turkey: Uhh, international comity? D.C. Circuit: You can guess where this is going.

• Assertion: Federal prison guard put inmate in the hole for sixty days to retaliate against him for filing a grievance and a lawsuit. District court: Even under the strict confines of the Bivens doctrine (see here for a quick explainer), I can hear this inmate's First Amendment claim. Sixth Circuit: And since the decision below just denied summary judgment and wasn’t a final decision, we have no jurisdiction to hear the guard’s appeal. The Supreme Court may have said that qualified immunity is a weird exception to the final-decision rule, but Bivens ain’t.

• Here’s a case that illustrates why conservatives (should) also care about holding public officials accountable—why, as we explained in our recent amicus brief, “a cross-ideological consensus has begun to emerge that the qualified immunity doctrine is broken.” The University of Iowa requires student organizations to comply with its antidiscrimination policy. But in order to permit groups like the African Student Association, the Christian Legal Society, and the Feminist Majority Leadership Alliance to exist, it allows groups to base membership and leadership on certain traits, including race, sex, religion, and ideology. So can it deregister a Christian organization for requiring its leadership to abide by Evangelical Christian teachings on homosexuality? Eighth Circuit (March): No. Clearly established. No qualified immunity. Eighth Circuit (July): Did we stutter?

• Cop tells man to get on the ground. Man gets on his knees, hands in the air. Cop: “All the way to your stomach!” Man: “On my stomach?” Cop, frustrated by the evident failure to communicate, takes a running start, tackles the man, and slams his face into the pavement, breaking his jaw in several places. Cop, in court: I had to do it—he was being noncompliant! Eighth Circuit: Not even close. Even under the exceptionally deferential standards of qualified immunity, it was clearly established that you can’t use that kind of force on someone who’s not resisting, not a threat, and not a flight risk. This case goes to a jury.

• Here’s a judge-made doctrine that’s just as bananas as qualified immunity but doesn’t get nearly as much attention: the “Heck bar.” In essence, the doctrine is this: If a state court convicts you of a crime, and winning your federal civil-rights lawsuit would imply that the conviction was invalid, the federal court can’t hear your case. This next decision, out of the Ninth Circuit, is a perfect example.

  A 250 lb officer slams a 105 lb, 18-year-old girl into the ground, rubs her face in gravel, and arrests her. The DA initially wants nothing to do with the case, but once the girl sues the officer for excessive force, the DA charges her with resisting or obstructing a peace officer. She’s convicted by a jury. One element of resisting or obstructing is that the officer must have been “lawfully engaged in the performance of his duties”—which includes not using excessive force. So now, if the girl wins her excessive-force claim, that would mean the officer wasn’t lawfully performing his duties, and she shouldn’t have been convicted. Which, under the Heck bar, means the girl’s excessive-force case has to be dismissed. As the dissent notes, this decision is “likely to encourage the very sort of police overreaction to minor criminal behavior that has led to public outcry and calls for reform in recent years.”

• In a refreshingly straightforward opinion, the Tenth Circuit holds that a prison's 30-day ban on the use of tobacco in Native American services and indefinite ban on such services at all violated a Native American prisoner’s clearly established First Amendment rights.

• Most of the doctrines we focus on at Public Accountability are judge-made, but Congress has enacted its share of accountability-limiting laws. One of the worst is the Prison Litigation Reform Act, in which Congress did its very best to ensure that prisoners suffering at the hands of their jailers receive no relief from the federal courts. And this month, the Eleventh Circuit took the PLRA's already-harsh terms and made them a little more draconian, holding that in prison cases, preliminary injunctions—which are intended to maintain the status quo until a trial on the merits—can last no longer than 90 days. It’s practically unheard of to get a case to trial that quickly, which means that in most cases, prison guards can wait 90 days and then go right back to violating prisoners’ rights.

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That’s it for this issue. 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.