Clearly Established #12

Welcome to the 12th issue of Clearly Established, a slightly irreverent roundup of recent accountability decisions. It’s been a while since our last issue, but we’re back with a bumper crop of interesting cases. Let's dive right in.

• Buckle up, ’cause this first case takes us deep into the abstruse world of interlocutory appellate jurisdiction. Rule 1: Ordinarily, you can’t appeal a case until there’s a final judgment, but denials of qualified immunity (so sayeth the Supreme Court) are special and immediately appealable. Rule 2 (the “Heck bar”): Federal courts cannot hear civil-rights claims that imply a state-court conviction is invalid. So what happens when a district court denies qualified immunity and also rejects a Heck argument? A couple of circuits say you can appeal both, but those courts are wrong, says the Third Circuit. No interlocutory appellate jurisdiction over the Heck bar here.

• It’s rare you see an entire panel concur with its own opinion, but three Third Circuit judges do so here to explain the scholarly basis for their decision denying qualified immunity to an officer who shot at a fleeing suspect.

• Cop responds to domestic-violence call and shoots deadbeat dad dead. Cop: We chased him, he stopped at a couch, he grabbed something, and he began to turn towards me. I thought he’d gotten a gun! I was in fear for my life! Fourth Circuit: Then how come you shot him in the back? And how come nothing was ever found in the couch? Qualified immunity denied.

• Sheriff fires jail guard for sexually assaulting detainees. Sheriff then, inexplicably, rehires jail guard. Guard, predictably, sexually assaults more detainees. Fifth Circuit: It was “plainly obvious” that the guard would sexually assault inmates again. No qualified immunity for the sheriff.

• Allegation: Cop, responding to false alarm, shoots two friendly dogs. Eighth Circuit: That sure sounds unconstitutional. Cop: But what if I say they were growling? Eighth Circuit: You can say that in discovery. Qualified immunity denied.

• When a protester performs a “die in,” is dragging her out of the room by one arm with enough force to tear her rotator cuff excessive force? No, rules the Ninth Circuit, granting the officer qualified immunity.

• Remember that special jurisdictional rule at the top of this issue for appeals of qualified immunity? Well, in the Ninth Circuit, that rule doesn’t apply to denials of sovereign immunity, and so naturally it doesn’t apply to denials of derivative sovereign immunity either. (So many immunities!)

• Is it clearly established that public officials can’t fabricate a confession of child abuse to obtain a conviction? Yes, and that’s obvious, says a split panel of the Tenth Circuit. Dissent: But the official in question was a social worker, not a law-enforcement officer; but she was drafting a social-services report, not a forensic analysis; but she couldn’t have known her fabricated report would be used in criminal proceedings; but, but, but….

• Black high school student earns a spot on a major university’s “elite dance team.” High school cheer coach, in text messages: “It actually makes my stomach Hurt[.] Bc she’s f*****g black[.] I hate that.” Student discovers texts, shows them to principal; coach is relieved of her duties. Coach then tells the rest of the team to “boycot[t]” student—to ostracize and exclude her from cheer team activities. Tenth Circuit: Might be you violated the constitutional guarantee of equal protection. No qualified immunity for you.

• School officials strip search a 14-year-old girl—twice—looking for a roach. They find nothing. Qualified immunity? District court: Well, they didn’t find the roach anywhere else on her, so they just had to strip search her. Eleventh Circuit: Well, there’s a Supreme Court case saying they can’t do that, and a case from this court saying they can’t do that, so they probably should’ve known they can’t do that. Qualified immunity denied.

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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 #10

We made it to double digits! Welcome to the 10th issue of Clearly Established, a slightly irreverent roundup of accountability news. This issue, we've got a new Public Accountability merits brief; two bad decisions from the Supreme Court; two good decisions from the courts of appeals; and a roundup of QI in the news. Let's dive in.

New merits brief just dropped.

The VA placed our client, a veteran, on an “order of behavioral restriction”—forbidding him from visiting the VA without police escort—just because he allegedly used swear words during a phone call. He sued the VA for violating his rights under the First Amendment. But the district court didn’t decide whether the VA had violated his right to free speech—instead, it ruled that no one could ever sue the VA under the First Amendment.

Obviously, we think the district court got it wrong, so we've asked the Ninth Circuit to reverse. You can read the full brief here. But beyond what happened to our client, this case could have major implications for individuals' ability to hold federal agents accountable for violating First Amendment rights. Watch this space for updates. And if you’d like to support our work in this case and others like it, you can do so here.

Here's what the courts have been up to.

• Summer 2020: Derek Chauvin murders George Floyd. Protests against police brutality erupt nationwide. Activists correctly identify qualified immunity as a key barrier to holding police accountable. Editorials in the nation’s major newspapers call for an end to qualified immunity. Supreme Court (2020): Maybe we should rethink qualified immunity? Supreme Court (2021) (in two opinions): Just kidding. Qualified immunity is back, baby!

• Detroit man is imprisoned for more than two decades on the strength of a forensic examiner’s report that matched bullets at a murder scene to the man's gun. But wait! Two decades later, it turns out that the bullets don’t match the gun, and the only reason the man didn’t discover this at his trial is that his own forensic examiner was told that test bullets—fired from the gun by the state’s examiner—were evidence bullets. The man sues the state’s examiners and the officer in charge. Do they get qualified immunity? Sixth Circuit: Mostly no. Someone fabricated evidence, and these are the three people who had the "means and opportunity" to do it. The man’s fabrication-of-evidence, malicious prosecution, and Brady claims may go forward.

• Male police chief routinely promotes the highest-scoring officer on the sergeant’s exam. When a female cop is one of the highest-scoring officers, the chief opens up eight internal-affairs investigations into her. Allegation: The chief routinely declines to investigate men for similar misconduct—and in fact promotes men despite worse misconduct—so the female cop's supposed misconduct here is merely a pretext to avoid promoting a woman. (The misconduct in question: failing to follow up on a burglary report.) District court: If that’s true, there's no qualified immunity for an equal-protection claim, and whether that’s true is for a jury to decide. This case will go to trial. Ninth Circuit: Those are questions of fact, which we lack jurisdiction to review. Back down for trial. [This is the same issue as in our other recent brief. —ed.]

And last, what the papers are saying.

• A Virginia gubernatorial debate involved questions about qualified immunity, and both candidates botched their answers. In the Washington Post, our friends at the Institute for Justice set the record straight.

• The Post also has a sobering article detailing how “in state after state,” police and police unions have killed attempts to reform qualified immunity. (Colorado and New Mexico are notable exceptions.)

• We’re really appreciating the USA Today editorial board’s ongoing op-ed series on ending qualified immunity.

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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.