Clearly Established #5

Welcome to the fifth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of the week’s interesting accountability decisions. We took last week off because we were busy putting the finishing touches on (drumroll, please) our first amicus brief! But we’ll get to that. First, the decisions:

• Allegation: Federal agents tear-gassed, shot rubber bullets at, and beat up peaceful protesters in Lafayette Square, all so President Trump could stage a photo op at a church across the way. D.C. District Court: You can’t sue federal officers under the First Amendment. You also can’t sue them under the Fourth or Fifth Amendments if “national security” is involved. Claims against federal agents dismissed. (This is an example of the Bivens doctrine, which we’ve discussed before.)

• Houseless man in Dallas, Tex., is assaulted and suffers multiple head injuries. Paramedics and cops arrive—but instead of treating the man, they mock him and arrest him for public intoxication. Twelve hours later, he dies in jail. Paramedics, perhaps conscious of some guilt, submit false reports saying they never met the guy. Qualified immunity? Fifth Circuit: Not a chance.

• Kid with ADHD and Oppositional Defiant Disorder is put in a time-out. Then: “In an attempt to re-enter the classroom, T.O. tried to push Abbott away from the classroom door and hit her right leg. Abbott responded by seizing T.O.’s neck, throwing him to the floor, and holding him in a choke hold for several minutes.” Still, the Fifth Circuit gives the teacher qualified immunity—but the opinion’s author specially concurs to urge, as he has for 20 years, that the court overrule its “completely out of step” corporal-punishment precedents.

• In which the Ninth Circuit gives us a threefer: (1) Solitary confinement isn’t cruel and unusual; (2) it’s not even an atypical or significant hardship; and (3) prisoners have no right not to be compelled to inform—or testify falsely!—against other inmates. Qualified immunity and case dismissed.

Now for that amicus brief! In our very first issue, we brought you the story of a Ninth Circuit case holding that prisoners have no clearly established right to confidential communications with their lawyer. We thought it was a bad decision, so when the prisoner decided to ask the full court to rehear the case, we decided to voice our support. Here’s how the brief begins:

When John Witherow called his lawyer, he expected to be able to speak in confidence. Most of us do. Witherow was even using a special phone his prison provided for attorney calls. His subjective expectations converged with longstanding constitutional law, federal rules of evidence, and rules of professional ethics—not to mention objectively reasonable notions of privacy. Still, over Judge Berzon’s dissent, the panel here declined to decide whether Witherow had a right to confidential communications with his lawyer. Instead, it skipped ahead to the second prong of qualified immunity and held that even if he had such a right, it wasn’t clearly established. So whether that right exists continues to be an open question in this circuit.

You can read the rest of the brief here.

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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 #4

Welcome to the fourth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of some of the week’s interesting accountability decisions. This week is a little light on decisions, so we’ll also highlight some other accountability-related developments.

First, the decisions:

• Allegation: Coccidioidomycosis, also known as “valley fever,” which can cause everything from chronic pneumonia to meningitis, is running rampant through state mental health hospital where civil detainees are held. Ninth Circuit (2019): No previous case has clearly established a right for prisoners to be free of exposure to valley fever, and we’re not going to clearly establish it in this case. Ninth Circuit (2021): Which means there’s no clearly established right for civil detainees, either, even though civil detainees are entitled to better conditions than prisoners. And, again, we’re not going to clearly establish any such right in this case.

• Exoneree sues prosecutor, alleging that prosecutor knowingly fed medical examiner false info to get a suicide reclassified as a homicide—and on the strength of that reclassification, put exoneree behind bars. Tenth Circuit: If true, this shocks the conscience—which means it’s a violation of due process. And we needn’t go on a “scavenger hunt for prior cases with precisely the same facts.” This is an “obvious” violation, so QI denied. (Our ED had a longer Twitter thread about this case here.)

Other news:

• The decision itself is about a month old, but Reason has excellent reporting this week on a particularly egregious qualified-immunity grant in Georgia. Twenty-four cops raided an elderly man’s home with flash-bang grenades and a battering ram. Turns out they had the wrong house, which didn’t even look like the house described in the search warrant. Qualified immunity for all twenty-four.

• In Arkansas, a cop used a PIT maneuver to flip a car because it didn’t pull over within 20 seconds of his turning on his siren. The dashcam video is pretty horrifying—all the more so because the driver was pregnant. (Baby and driver both survived.) The woman, who followed police instructions perfectly, is suing—but, as our ED points out, the Eighth Circuit’s caselaw means the officer will almost certainly get qualified immunity.

• Five Reuters reporters have won the Pulitzer Prize in Explanatory Reporting for a series of exceptionally well-researched articles on qualified immunity. Read the articles here:

  • For cops who kill, special Supreme Court protection.

  • Shot by cops, thwarted by judges and geography.

  • When cops and America’s cherished gun rights clash, cops win.

  • Challenging police violence … while Black.

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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.