Clearly Established #18
Week of July 8, 2022—Bivens, free exercise, takings, “good faith” immunity, and a SWATting.
Clearly Established #18
Welcome to the 18th issue of Clearly Established, a somewhat monthly, slightly irreverent roundup of recent accountability decisions. Let’s dive right in.
First off, in Supreme Court news: In between decimating reproductive rights and kneecapping the EPA, the Supreme Court found time in June to expand immunity for federal officials. You read more on this Twitter thread or listen to our ED talk about the case on this Bloomberg podcast, but the short version is this: It’s harder than ever to sue federal officials for violating your constitutional rights.
Prison warden bans group prayer outside the chapel, which is rarely available during the five times a day that Muslims must pray. Muslim inmates sue for violation of their free-exercise rights. Qualified immunity? Not a chance, says the Second Circuit. “We can discern no asserted governmental interest—much less a compelling one—for the requirement that Plaintiffs engage in group prayer only in the prison chapel.”
In this Third Circuit decision, a prosecutor is denied absolute immunity for opening a retaliatory investigation into and threatening a detective. Huzzah! we say. But we also note that this rare instance of a prosecutor losing absolute immunity comes in a case where the prosecutor is across the v. from a cop. And the alleged retaliation was because the cop was trying to obstruct a fellow cop’s indictment for murder. So: huzzah, but a muted huzzah.
Officers arrest a man for public intoxication. He spends the next 34 hours overdosing on a jailhouse floor—vomiting, thrashing, convulsing, and calling for help. No help arrives. Jail guards, noticing he’s dead: “Oh well.” Even the Fifth Circuit can’t bring itself to give these officers qualified immunity.
So how far does that federal immunity (see the Supreme Court case at the top) extend? Not as far as officers who lie to a judge to procure a warrant, the Seventh Circuit holds, but such officers can still get absolute prosecutorial immunity and qualified immunity.
St. Louis officers kill a man by holding him prone and putting pressure on his back for 15 minutes. (If that sounds familiar, it should.) Eighth Circuit (2020): If a detainee offers resistance, no constitutional violation in holding him prone. Supreme Court (2021): The guy was handcuffed and shackled, and they kept him prone for 15 minutes. Try again. Eighth Circuit (2022): Fine. Qualified immunity instead. (Bonus: the court also gives the City of St. Louis something that looks an awful lot like qualified immunity, even though the Supreme Court has held for decades that municipalities can’t get qualified immunity.)
If the government orders non-critical businesses to shut down in response to a global pandemic, is “private property be[ing] taken for public use”? Eighth Circuit: We find no caselaw clearly establishing that proposition. In fact, we’re not even sure you can sue an individual government official for a taking, as opposed to suing the government itself.
In 2018, the Supreme Court overruled forty years of precedent and held that public-sector unions can’t collect “agency fees” from non-union public employees. What about fees taken before 2018—can non-union employees get a refund from their public employers? No, says the Ninth Circuit, because public employers are entitled to “good faith” immunity for actions taken in reliance on Supreme Court precedent. Judge Bumatay, concurring reluctantly: Inventing “newfangled” immunities is “wrongheaded” and “brazen.” (We agree, and we searched his concurrence for similar skepticism of qualified immunity—strangely, we came up empty.)
A cop stops a biker (whose crime is biking without a front light) by cutting him off with his SUV. The biker goes flying, hits the SUV head-first, and loses consciousness. Any Fourth Amendment concerns? No “clearly established” ones, says the Ninth Circuit. Judge Christen, concurring: Fine, but can we at least agree that cutting off a bike with an SUV is deadly force?
In this “swatting” case, the Tenth Circuit disproves our general rule that when a court uses the word “tragic” at the beginning of an opinion, it’ll grant qualified immunity at the end. No qualified immunity for shooting the swattee moments after he exited his house, unarmed, with his hands up.
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 #17
Week of May 26, 2022—Bivens, qualified immunity, and several interesting concurrences and dissents.
Welcome to the 17th issue of Clearly Established, a somewhat monthly, slightly irreverent roundup of recent accountability decisions.
This issue is a special one—it marks one year of operation for Public Accountability! In one year, we’ve won two cases and lost zero. We got $750,000 for one of our clients. We made it harder for officials to file frivolous appeals when they lose qualified immunity. We strengthened and clarified important constitutional rights, including the right to protest. And we’ve got more good work in the hopper. So before we dive in, a request: When you're done reading what what the federal courts have been doing with anti-accountability doctrines, please hit that “Donate” link at the bottom and toss what you can our way. We defend civil rights, and we can’t do it without your help.
And with that, on to the cases!
Federal public defender, sexually harassed by her superiors and fired after reporting it, brings Bivens claim. The Supreme Court has severely curtailed new Bivens claims, but it long-ago greenlit claims for sex discrimination in federal employment. So can this federal employee’s sex-discrimination lawsuit go forward? Fourth Circuit: Not a chance. That case was against a congressman, while this is against employees of the federal judiciary. Totally different. No Bivens claim.
In this entertaining cop v. cop lawsuit out of the Fifth Circuit, we’re sorely tempted to say “let them fight” and call it a day. But we reckon it’s not an accident that the Black cop gets guns pointed at him and the white cop gets qualified immunity. C’mon now.
Cop 1 tells a car full of underage kids fleeing a party to stop. Kids accelerate past him. As the car goes by, cop 2 shoots the passenger in the head. Texas courts: Yep, that’s murder. Fifth Circuit: No qualified immunity. Ho, J., dissenting: The cops say they felt threatened by a car driving away from them, and who are we to judge?
Cops fail to solve the brutal murder of a high-school student in Livingston Parrish, La. Two years later, a jailhouse informant fingers a man they’d already ruled out. His account is inconsistent and contradicts known facts about the crime, but the cops are undeterred. They concoct a story “out of whole cloth,” arrest a high-school kid, and intimidate him into adopting their fabrication. After the man spends sixteen years in prison, the Supreme Court overturns his conviction. He sues the cop and the prosecutor, who claim absolute prosecutorial immunity. Fifth Circuit: Manufacturing evidence is more cop-like than prosecutor-like, so no immunity for you.
Judge Ho has a dubitante dissent in that last case that merits a bullet point all of its own. Because of precedent, he says, he’d grant the defendants absolute immunity. But he’s not happy about it: “Worthy civil rights claims are often never brought to trial. That’s because an unholy trinity of legal doctrines—qualified immunity, absolute prosecutorial immunity, and Monell—frequently conspires to turn winnable claims into losing ones.” Preach, Judge Ho. [Now there’s a sentence I never expected to put in this newsletter. —ed.]
Man creates a satirical Facebook page to mock his local police department. His satirical page offers “free abortions” and a “Pedophile Reform event.” The cops, naturally, get big mad and arrest the man. He wins at his criminal trial and then sues for violation of his First Amendment rights. Sixth Circuit: We’re not sure your Facebook page was speech, but we’re damn sure the officers get qualified immunity. Case dismissed.
After a stabbing, Des Moines police tell the victim’s family they’ll take them to the hospital. Instead, they take the family members to the stationhouse and question them for over three hours against their will. In the meantime, the victim dies. Constitutional violation? Clearly established? Eighth Circuit: Yep and you bet. Stras, J., concurring: “Rarely do rights come more clearly established.”
Over the course of about 14 hours, during which he demonstrates plenty of obvious visible symptoms, a man in jail suffers a ruptured aorta and dies. Ninth Circuit: “We must determine whether the level of medical care was unconstitutional, not whether it was so substandard that it may have cost Russell his life.” Perhaps you find it strange, reader—as we do—that the two questions are not the same. But in the end, the Ninth Circuit still denies qualified immunity to two out of the three defendants. To trial they must go.
For years, prison officials refuse to treat a man’s prostate issues. When he’s transferred to a different facility, medical staff there finally order emergency treatment. They end up draining 6 liters of urine from his bladder. (The human body contains 5 liters of blood.) Was the “treatment” officials rendered at the first facility clearly unconstitutional? Officials: No case says we can’t adopt a “wait and see” approach. Ninth Circuit: “At some point ‘wait and see’ becomes deny and delay.” Qualified immunity denied.
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 #16
Week of April 8, 2022—qualified immunity, two kinds of absolute immunity, the Heck bar, and more.
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.
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 #7
Week of July 9, 2021—Decisions from the Fifth and Sixth Circuits.
Welcome to the seventh issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of the week’s interesting accountability decisions. This week we have two cases from the Fifth Circuit and one from the Sixth. Let’s dive right in:
Suicidal inmate wraps a telephone cord around his neck and strangles himself. Jailer looks on from the other side of the bars. Does he stop the inmate? No. Does he call emergency services? No. Does he retrieve a breathing mask to perform rescue breathing? No. Instead, he calls his boss, who arrives ten minutes later. Boss calls EMS and goes to get the breathing mask, but it’s too late. Inmate dies. Was the jailer deliberately indifferent to the inmate’s medical needs? Fifth Circuit: How could anyone know that you should call EMS when an inmate wraps a cord around his neck, strangles himself, and passes out? Qualified immunity.
In 2015, rival biker gangs joined battle in Waco, Tex., for the deadliest biker shootout in U.S. history. (Contemporaneous coverage here.) Nine died and 20 were critically injured. Police arrest 177 people at the scene and over the next few days. Problem: Many say they weren’t part of any biker gang. Some say they weren’t even there. The district attorney so badly bungles the case that ultimately, no one is convicted. Thirty-one plaintiffs sue the DA and the police.
DA: As a prosecutor, I’m entitled to absolute prosecutorial immunity. Fifth Circuit: You showed up to the crime scene, took photographs, and investigated facts. That’s cop work, so you get cop immunity, which is qualified immunity. DA & cops: Okay, so what about qualified immunity? Fifth Circuit: Also no. You got an arrest warrant based on a blanket affidavit that, as to these plaintiffs, was full of lies and omissions. Their right not to be arrested on such an invalid warrant was clearly established; this case will proceed.
“Happy families are all alike,” wrote Tolstoy, but “every unhappy family is unhappy in its own way.” Today’s tale is about the Kentucky Clemonses. Christina and Dustin were living with Dustin’s parents, Richard and Evalee, when they filed for divorce. Christina then fought with her mother-in-law and was ordered to leave the house. On Easter Sunday, she returned to pick up her things with her own mother and a state trooper in tow. The three let themselves into the house, much to the consternation of its occupants, and Christina retrieved her possessions. As they were on their way out, though, Richard told the trooper he smelled “like pig shit.” The trooper responded by “clobbering” Richard. He fought back, Evalee and Dustin soon joined in the fracas, and Easter evening ended with all three under arrest. Was the trooper even allowed in the house without a warrant? Sixth Circuit: The Supreme Court may have only recently held that the “community caretaking” warrant exception doesn’t apply to the home, but we’ve held for much longer that it requires some type of emergency, and none was present here. No qualified immunity. (And so this tale of an unhappy family has, if not a happy ending, at least a not-entirely-unhappy middle.)
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.