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.
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