Public Accountability’s 2023, Wrapped
Here’s what we’ve been doing with your help.
Friends,
It's been a busy year here at Public Accountability. In the last 12 months we've served more clients, won more cases, and advanced the cause of public accountability more than ever before. And your support has been vital to our efforts. I want to tell you a bit about our year, and then I'm going to ask you to help us continue to expand rights and remedies next year.
Fighting to Keep Bivens Alive
Bivens is the doctrine that lets you sue federal agents. (See our detailed writeup here.) Problem is, the Supreme Court has been cutting away at Bivens for decades, and in late 2022 the Ninth Circuit issued a decision that would have killed it entirely. So we opened 2023 by asking the court to rehear the case en banc. We didn't get the rehearing, but we did get the court to delete the worst bits and issue an amended opinion. So Bivens lives to fight another day. And we're carrying on the fight: We just finished briefing a case arguing that federal prisoners can sue prison staff who refuse to treat their injuries.
Defending Parents and Teachers from MAGA Activists
Far-right extremists took over the Newberg School Board in Newberg, OR, and banned Black Lives Matter and Pride symbols. Some parents and teachers, concerned about this new and radical direction in their schools, joined a Facebook group to talk about holding their elected school-board directors accountable. In retaliation, the board’s conservative majority sued four parents and teachers. We teamed up with the ACLU of Oregon and prominent local civil-rights lawyers to fight back, and in July we won a complete victory. Notch one for free speech.
No, You Can't Force Prisoners into a Covid Party
Do prisoners have a clearly established right against being forced to participate in a “Covid party”? We think so—but the State of Connecticut disagreed. In April 2020, our client was forced to move from a cell block where everyone was healthy to one that was in the middle of an active Covid outbreak. He caught Covid—the original, extremely dangerous variant—and nearly died. We argued that that amounted to cruel and unusual punishment. In October, we notched another complete victory: The court ruled that the warden violated his rights and it denied her request for qualified immunity.
By the Numbers
Those are just a few of the cases we worked on this year. Here's the rest of the scorecard:
14 clients served
11 briefs filed
3 oral arguments presented
2 wins (and one decision pending—we could still be 3 for 3!)
A Request
The work we do is critical. Every day, police officers, prison guards, and other state actors abuse their power and violate people's constitutional rights. They bet that people can't fight back, and too often they're right. But Public Accountability is there—to help you fight back, to hold officials accountable, and to change the law so they can't keep getting away with it. So if you can, please support our work and donate.
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Thanks for reading, and happy holidays.
In gratitude and solidarity,
Athul K. Acharya
Founder & Executive Director, Public Accountability
We just notched another win!
And updates on other recent work.
Friends,
The Ninth Circuit just issued its decision in Aberha v. Delafontaine, a Public Accountability case involving the constitutional right to freedom from sexual assault in prison. To recap: Our client told a guard that his cellmate had sexually assaulted him. The guard laughed at him and left him in his cell. Later that day, the cellmate threw our client against a wall, choked him out, and raped him. The district court denied the guard qualified immunity, but he took an interlocutory appeal to ask the Ninth Circuit to end the suit.
We represented the inmate on appeal—and we obtained a total victory. The Ninth Circuit’s decision, issued earlier today, affirms that prison guards have a constitutional duty to protect inmates from sexual assault. It explains that since 2009, “it has been clear that a correctional officer’s doing nothing in response to an inmate’s pleas for help after the inmate’s cellmate threatened physical violence is unreasonable”—and, therefore, that it violates the Eighth Amendment. Read the whole decision here.
In other news, it’s been a minute since our last update! Here’s a quick rundown of what we’ve been up to the last few months:
Nazario v. Thibeault. Do prisoners have a clearly established right against being forced to participate in a “Covid party”? We think so—but the State of Connecticut disagrees. In April 2020, our client was forced to move from a cell block where everyone was healthy to one that was in the middle of an active Covid outbreak. He caught Covid—the original, extremely dangerous variant—and nearly died. The district court denied the prison warden’s request for qualified immunity and we’re asking the Second Circuit to affirm that decision on appeal. Read our brief here.
Mejia v. Miller. In this case, a federal BLM agent shot our client in the hand and head—for nothing more than a traffic violation. The district court denied his request for qualified immunity. On appeal, though, the Ninth Circuit held that our client didn’t even have the right to bring a claim under the “Bivens” doctrine. Bivens is what lets you sue federal agents for violating your constitutional rights. The Supreme Court has been cutting away at Bivens for decades, but it’s always said that the “core” of Bivens remains intact. This type of Fourth Amendment excessive force claim is as close to the core of Bivens as it gets, so we asked the Ninth Circuit to reconsider its decision en banc. Read our petition for rehearing here.
DeHart v. Tofte. Far-right extremists took over the Newberg School Board in Newberg, OR, and banned Black Lives Matter and Pride symbols. Some parents and teachers, concerned about this new and radical direction in their schools, joined a Facebook group to discuss ways they could hold their elected school-board directors accountable. In retaliation, the Board’s conservative majority sued four parents and teachers. We teamed up with the ACLU of Oregon and prominent local civil-rights lawyers to fight back. You can read our reply brief on appeal, which we filed just last month, here.
Index Newspapers v. City of Portland. In this case, we’re representing journalists and legal observers who covered the Portland protests of 2020 and were shot, beaten, and threatened with arrest in retaliation. The City moved to dismiss the case in December, claiming that it was “moot” because the protests had ended. That’d be a neat trick—not many protests outlast the court cases they kindle. You can read our response here.
If you’ve been wondering what happened to Clearly Established, our monthly roundup of accountability decisions from the federal courts of appeals, fear not—it’ll return next month. In the meantime, 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. And if you’re able to support our important work, please do:
Thanks for reading,
Athul K. Acharya
Founder & Executive Director
Public Accountability