Clearly Established #21
March 24, 2023—Bivens, Feres, RFRA, and, of course, qualified immunity.
Welcome to the 21st issue of Clearly Established! It’s been a minute since our last issue, and we’re making up for it with a bonanza edition. As well as our usual irreverent roundup of recent accountability decisions, we've got an in-depth review of the state of Bivens around the country. Let’s dive right in.
Bivens—A Deep Dive
What is Bivens? Bivens is how you sue federal agents for violating your constitutional rights. If a local cop violates your constitutional 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 against excessive force. 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.
What’s happening to Bivens? The Supreme Court drastically limited Bivens in a 2017 case called Ziglar v. Abbasi, holding that when a case presents a “new context,” courts can hear it only if there are no “special factors.” Then, in last year’s Egbert v. Boule, it cut Bivens down to nearly nothing: Nearly any difference from the Court’s existing Bivens cases makes for a new context, it held, and nearly anything can be a special factor. The lower courts have been sorting out just what this means, and many of them have decided it means that Bivens is over.
What does this mean going forward? Well, if you thought qualified immunity was bad, this is worse. In effect, in large swathes of the country, federal officials now enjoy something close to absolute immunity. They can beat you, silence your speech, arrest you without cause, and inflict cruel and unusual punishment on you—and there’s nothing you can do about it.
With that cheery summary out of the way, let’s take a look at what courts of appeals have been doing with Bivens claims since Egbert.
Remember the Trump administration’s family-separation scandal? Well, it turns out some of those families sued! D.C. Circuit: This is obviously a new context with special factors. Judge Silberman, concurring: The Supreme Court should overrule Bivens just like it overruled Roe v. Wade, and while we’re at it I have some thoughts about this whole “free press” thing.
In 2018, Bureau of Prisons officials transferred James “Whitey” Bulger—infamous Boston gangster and FBI informant—from protective segregation to general population. Within 14 hours, he had been murdered for being a snitch. Sounds awfully similar to at least two Supreme Court Bivens cases, so full steam ahead, right? Not according to the Fourth Circuit, which used some trivial differences to find a new context, conjured up some special factors that would apply in nearly every case, and dismissed the claim. A huge blow to Bivens there.
In a bit of a surprise, the Seventh Circuit held that Egbert “does not change ... Bivens’ continued force in its domestic Fourth Amendment context.” For once, we have nothing snarky to say!
A federal agent shoots a woman for a traffic offense; she brings an excessive-force claim under Bivens. Bivens itself was an excessive-force case, so there’s no way this is a new context, right? Ninth Circuit: Wrong. Bivens took place indoors, while this case took place outdoors. So that’s a new context. And the agency here has a complaint form on the internet, so that’s a special factor. Case dismissed. Note: Public Accountability represented the woman in a petition for rehearing en banc. We got the court to delete some of the worst bits of its opinion, but mostly it stuck to its guns.
A prison guard enters a prisoner’s cell, out of view of the hallway cameras, and beats him up. A cut-and-dry violation of the Eighth Amendment. But the Tenth Circuit begins its decision by intoning: “Today, we are called upon to expand the judicially implied cause of action described in Bivens ....” You can see where this is going. Case dismissed.
Believe it or not, though, a sliver of hope remains. As we were going to print, the Fourth Circuit held that a specific subset of Eighth Amendment claims—claims for failure to treat a medical condition—may yet survive Egbert. And Public Accountability is preparing a similar appeal in the Ninth Circuit. Federal agents don’t have complete absolute immunity just yet, and we’re going to fight tooth and nail for every last scrap of accountability.
The Roundup
And now, back to our regular programming—
In Supreme Court news, Justice Clarence Thomas has called for overruling the Feres doctrine, a special rule of immunity for the government when the plaintiff is a member of the military. (For example: After a female cadet at West Point was raped by a fellow cadet, she filed suit against superior officers who put her in harm’s way. The Second Circuit held that her claim was barred by Feres.) Here at PA, we always give credit where it’s due, and Justice Thomas is exactly right: Congress said you can sue the government for compensation if you’re injured by its negligence, and Congress didn’t stutter. Feres should be overruled.
When the cops set up at an intersection to catch drivers breaking the law, can you warn oncoming cars by holding up an “Cops Ahead” sign? You sure can, says the Second Circuit, and that’s clearly established to boot. No qualified immunity for the cop who arrested the sign-holder.
Prison guards bully a Muslim inmate into stopping his daily prayers. He brings a claim under the Religious Freedom Restoration Act, but the district court grants qualified immunity. Uh oh! Is qualified immunity even a defense to a RFRA claim? You bet, says the Third Circuit—even though you’d be hard-pressed to find it in the statute. (On the plus side, they do hold—rightly—that the guards aren’t entitled to qualified immunity here.)
Louisiana prison officials routinely hold inmates past the expiration of their prison sentences. This plaintiff, in particular, was incarcerated for more than two years past the end of his sentence. Did he have a right to be released from prison after serving his sentence? Yes. Was it clearly established? Also yes. Can the prison officials be held liable? Fifth Circuit: Well, no—we’re going to make up a nonsensical new third step of qualified immunity, fault the plaintiff’s lawyer for not predicting it, and—hey presto—case dismissed. [Just complete calvinball over there. —ed.]
“It falls on the judiciary to ensure that the First Amendment is not reduced to a parchment promise.” —Judge Ho, author of the previous (rubbish) decision, also author of this (very good) dissent. He’s on the money here, but we wonder if he knows that the same goes for the Due Process Clause.
Houston cops execute a Black veteran in cold blood, leave him to die on the ground, magically “find” a gun in his car 22 days later, and promote the murderous officer to sergeant. The district court grants qualified immunity, but even an all-Republican panel of the Fifth Circuit is unable to stomach that outcome. Qualified immunity reversed.
The St. Louis Police Department makes up its own warrant system called “Wanteds.” Just like warrants, officers can arrest anyone with an outstanding Wanted, but unlike warrants, Wanteds bypass all judicial scrutiny. That’s a neat trick! The Eight Circuit rightly holds that it’s mostly unconstitutional, but wait, does that mean the plaintiffs can hold St. Louis liable? Eighth Circuit: Nope. “Wanteds” may be an official, department-wide system with whole employees dedicated to running it, but it’s not “so pervasive that it can be said to constitute custom or usage with the force of law.”
Legal observers from the National Lawyers’ Guild, wearing bright green hats emblazoned with the words “National Lawyers Guild Legal Observer,” get tear-gassed by police while recording a protest. A bystander yells at police to “get the fuck out of my park,” so police tear-gas him, too. First Amendment violations? Only tear-gassing the bystander, says the Eighth Circuit. Observing and recording police-citizen interactions is not a clearly established First Amendment right. Dissent: Guys, didn’t we already say that it was? Guys?
Is it clearly established that police can’t force to her knees and handcuff a “well-behaved, unarmed, 83-year-old woman who complies with police directions”? Ninth Circuit: Obviously yes. Judge R. Nelson, dissenting: How are police even supposed to do their jobs anymore.
The Prison Litigation Reform Act requires that prisoners suffer a “physical injury” before they can file a lawsuit. Colorado prisoner: Guards punched me in my fractured, untreated jaw and stomped on my injured, untreated foot. Guards: Sounds like we didn’t cause those injuries! Tenth Circuit: But you caused them to become exacerbated, which counts. Case un-dismissed.
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 #15
Week of March 11, 2022—four different types of immunities, the PLRA, Bivens, and more. Plus: Our first oral argument!
Welcome to the 15th issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of recent accountability decisions. We've got a brief case update, and then our usual smorgasbord of accountability decisions.
Senn v. Smith, No. 21-35293 (9th Cir.)
Public Accountability had its first oral argument this week! We argued in the Ninth Circuit against qualified immunity for a police officer who pepper-sprayed a protester. You can watch the argument on YouTube at right, read more about the case here, and check out our ED’s unbelievably cool sunglasses here.
This week, we have four (count ’em) different immunities to discuss, plus Bivens, the Prison Litigation Reform Act, and more.
Remember that story from 2018 about the Massachusetts state court judge who hustled a defendant out the back door so ICE wouldn’t get him? The Trump administration decided to prosecute the judge, and last week the First Circuit held that the prosecution could go to trial despite the judge’s claim of absolute judicial immunity. Apparently, even though qualified immunity from civil liability is important enough for an immediate right of appeal, absolute immunity from criminal proceedings is not.
Male student is accused of sexual assault by female student. At his criminal trial, a jury acquits him, but in the university’s disciplinary proceeding, he’s found to have violated the university’s sexual-misconduct policy and is expelled. He then sues the female student for defamation, but the district court dismisses his claim on the basis of absolute quasi-judicial immunity. Wait a sec! The university is Yale, a private institution. Does absolute quasi-judicial immunity apply to hearings held by non-governmental entities? Alas, it’s a question of state law, and one that the Second Circuit deems too uncertain to answer. The question must go to the Connecticut Supreme Court.
Inmate tests positive for marijuana, is punished, but successfully has his discipline vacated(!). On re-hearing, the disciplinary committee sentences him to harsher punishment “for all this trouble.” Fifth Circuit: Yep, that’s unconstitutional retaliation. But nope, you can’t get compensatory damages because you didn’t suffer a “physical injury” from the retaliation, as required by the PLRA. But yep, you might be able to get nominal and punitive damages, which the PLRA doesn’t restrict. So here’s your remand.
Standing, interlocutory jurisdiction, sovereign immunity, Monell, oh my! A passel of Public Accountability’s pet issues in this Sixth Circuit case, at the end of which we learn that counties and municipalities are not immune from civil suit.
Cop, chasing a man, yells at him to drop his gun. Man drops his gun. Cop shoots man. Cop: I thought he still had the gun and was in a “firing position!” Eighth Circuit: But body-camera footage shows you looking directly at the gun on the ground. No qualified immunity for shooting an unarmed, non-dangerous suspect. A jury’s going to have to decide whether to believe you or the video.
Anti-police group uses chalk to write anti-police messages outside courthouse. (A thousand square feet of “FUCK PIGS” and “FUCK THE COPS”, apparently.) Prosecutors declined to prosecute similar graffiti earlier, and cops don’t tell them to stop this time. Some officers even tell them where to chalk. But one detective takes photos and, a week later, arrests the members of the group. Unconstitutional retaliation? Seems so, says the Ninth Circuit. And it’s clearly established—no immunity just because a case involves a “new factual permutation.”
In which the Ninth Circuit rather gingerly authorizes a “very modest expansion of the Bivens remedy,” permitting a federal prisoner to sue a guard for telling other inmates he’s a snitch and putting a bounty on his head. Dissent: As far as I’m concerned, the principles animating Bivens “no longer stand in any capacity.”
And in more Bivens news, the Supreme Court heard oral argument last week in Egbert v. Boule, a case about whether you can sue Border Patrol agents for excessive force, or any federal agents for violating the First Amendment. As an op-ed in USA Today rightly notes, the slow death of Bivens is tantamount to absolute immunity for federal agents, but there’s reason to hope that Bivens hasn’t breathed its last just yet—several conservative justices seemed skeptical of the agent’s position.
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 #13
Week of February 11, 2022—Legislative immunity, PLRA exhaustion, and lots of qualified immunity.
Welcome to the 13th issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of recent accountability decisions. Let’s dive right in.
Ohio man attends county fair wearing a shirt that says “Fuck the Police.” [“Based.” —PA’s intern.] The police, taking it personally, arrest him. Sixth Circuit: Yes, the First Amendment protects your right to swear at the cops. Qualified immunity denied.
A quick procedural primer: “Summary judgment” is a way to win a case without going through trial. Instead, you ask the court to rule that even if a jury were to believe the other side on every factual issue, you'd still win on the law. The key, ordinarily, is that the court must assume that the other side wins every factual dispute.
As ever, the Supreme Court has crafted a special rule for qualified immunity. When cops seek summary judgment on qualified-immunity grounds, courts need not assume the plaintiff wins a factual dispute if the cops have video evidence that “blatantly contradicts” the plaintiff’s account. Does this rule extend beyond video evidence to a rule that in qualified-immunity cases, uniquely, courts may choose which evidence to believe on summary judgment? The circuits are split on this question, but the Sixth Circuit—while declining to take a position outright—is rightly skeptical.Prisoners seeking to vindicate their constitutional rights in federal court must first “exhaust” their claims through the prison’s grievance system. In a move that would make Kafka proud, the Oklahoma Department of Corrections claims that a prisoner failed to exhaust his claims because he filed a grievance appeal using an appeal form when he should’ve used a grievance form. Twist: There is no grievance form for appeals. Tenth Circuit: That’s as exhausted as it gets. Dismissal reversed.
A unanimous panel of the Tenth Circuit grafts qualified immunity from § 1983—in whose text it cannot be found—into the Religious Freedom Restoration Act—in whose text it also cannot be found.
Candidate for Miami City Commission solicits support from businessman; businessman ultimately supports opponent. Candidate wins and immediately targets businessman’s businesses. Surprise inspections are performed, premises are raided, and permits are withdrawn. Businessman sues, claiming now-commissioner retaliated against him for protected speech. Commissioner: I have legislative immunity! Eleventh Circuit: Only when you’re, y’know, legislating. Commissioner: Qualified immunity? Eleventh Circuit: The First Amendment’s prohibition on retaliation is clearly established. Immunity denied.
It’s late at night. You and your wife are asleep in bed. All is quiet. Suddenly, the dogs begin to bark. No one knocks, no one rings the doorbell. You look out the window and see someone prowling outside your home. So you go get your pistol (which you lawfully own), go to the garage, open the door, and walk outside. You see movement in the shadows. You begin to raise your pistol. Surprise! It’s the cops, they’re at the wrong address, and they’ve shot you dead. No warning. And that’s just fine, says the Eleventh Circuit.
Elsewhere in qualified-immunity commentary, don’t miss this great op-ed in USA Today arguing that states can and should offer ways for people who’ve suffered harm at the hands of government to get around 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.
Clearly Established #8
Week of July 30, 2021—Decisions involving Bivens, the PLRA, the FSIA, and (as ever) qualified immunity.
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.
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.