Clearly Established #13

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 Surprise inspections are performed, premises are raided, and permits are withdrawn.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.

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