Victory against the cop who shot a student at a protest
Bad cop, no qualified immunity.
Friends,
We just won a huge victory in McCrae v. City of Salem, our case against a cop who shot a student in the eye at a protest. Here’s what happened.
Eleaqia McCrae, a young college student and track star, was peacefully protesting the murder of George Floyd in May 2020. A police officer fired rubber bullets directly into the crowd where she was standing. He hit Elea in the eye, permanently damaged her vision, and ended her athletic career. She’ll never jump competitively again.
After nearly two years of litigation, the case went before a jury. The officer said he didn’t fire his gun—that it must’ve been a protester who hit her. The jury didn’t believe him. It rendered a verdict in Elea’s favor and awarded her more than a million dollars in damages. And then, after all that, the district judge decided to give the officer qualified immunity. Case dismissed. Never mind what the jury said, Elea, you’re getting bupkis.
We represented Elea in her appeal to the Ninth Circuit. We argued that the jury found the officer liable and the district court should not have substituted its own judgment for the jury’s. The Ninth Circuit agreed. In a short but sweet decision, it said that the district court failed to give the jury’s verdict the deference it was due, improperly made findings in the officer’s favor, and “effectively nullified the jury’s verdict in this case.” It reversed the district court’s decision. We win.
Qualified immunity has been a colossal disaster of public policy, and this case is a perfect example. If an officer can wriggle out of accountability even after a jury verdict against him, what rational lawyer would ever take a civil-rights case? What hope is there for people whose stories are less cut-and-dried? Our victory gets back for Elea the money and the accountability that she’s owed. Just as importantly, it draws a line in the sand: Constitutional rights are not a joke. They have real teeth. Violate them and we will hold you accountable.
If you enjoyed this newsletter, please consider sending it to a friend. And if you think our work is important, you should know that we run entirely on the support of people like you. Whether it’s $10 or $100, your contributions help us safeguard the constitutional rights of all. So please, consider investing in our work—
Thanks for reading,
Athul K. Acharya
Founder & Executive Director
Public Accountability
We notched a win against the feds!
And updates on other recent work.
Friends,
Earlier this week, the Ninth Circuit issued its decision in Hurst v. Derr, a Public Accountability case about whether federal inmates have a right to sue prison officials who refuse to provide medical care. It held that they do. This is a huge win for people in federal prison. Read on for more details, as well as updates on other recent work.
Hurst v. Derr
Background. The “Bivens” doctrine is what lets you sue federal agents for violating your constitutional rights. Without it, federal agents could beat protesters, assault prisoners, and intimidate journalists with absolute impunity. Problem is, the Supreme Court has been cutting away at Bivens for decades. But it’s always said that the “core” of Bivens—which includes lawsuits for prisoner mistreatment—remains intact. (We did a deep dive into Bivens last year.)
Hurst's claim. Our client, an inmate in federal prison, was injured when a gang fight broke out in the dayroom where he was trying to watch television. Three gang members attacked him with a “lock in a sock.” He had visible wounds on his head and body, but the prison nurse decided not to x-ray him or assess him for a concussion and just discharged him without treatment. This kind of case is clearly within the “core” of Bivens—but the district court held that Hurst had no claim and tossed his case out.
The Ninth Circuit’s decision. The court of appeals reversed the district court’s decision. Along the way, it rejected some common arguments the federal government has been making in cases like these, such as that differences in the severity of injury, the type of medical mistreatment, or the existence of a prison grievance system take a case outside the core of Bivens. These are ludicrous arguments, but courts have been buying them. Convincing the court to reject them is a major victory.
Other recent work
In other news, it's been a minute since our last update! Here's what we've been up to the last few months.
Hannah v. Oregon. The State of Oregon has been prosecuting thousands of people without a public defender. Our clients sued, but the court of appeals dismissed their claims as moot because—quelle surprise—once they sued, the state found them public defenders. We fought back and convinced the Oregon Supreme Court to grant review. You can check out the briefs at our Hannah case page. Oral argument is set for September 12.
McCrae v. City of Salem. Our client, a college student and track star, was peacefully protesting the murder of George Floyd when a police officer shot her in the eye and ended her athletic career. A jury awarded her a million dollars in damages. Then came the rub: After trial, the district court decided that the officer should get qualified immunity and our client should get bupkis. You can check out the briefs at our McCrae case page, and watch our ED present oral argument on YouTube.
Fagon v. Kiely. In a shocking display of violence and brutality, five New Britain police officers shot 28 rounds at a young Black man as he was trying to flee arrest in a car. Two rounds hit him in the head and neck and he died. We represent his mother, who sued on behalf of his estate. The district court denied the officers’ request for qualified immunity, but they took an immediate appeal to the Second Circuit. You can check out the briefs at our Fagon case page.
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
Our most critical case yet.
A police officer shot our client in the eye. A jury said she was owed a million dollars. And then the judge took it away.
Eleaqia today, three years later.
We just filed the opening salvo in a truly horrifying case. Eleaqia McCrae, a young college student and track star, was peacefully protesting the murder of George Floyd when a Salem police officer started firing rubber bullets at her and her friends' heads. He hit McCrae in the eye, permanently damaged her vision, and ended her athletic career. She'll never jump competitively again.
It gets worse.
After nearly two years of litigation, she was able to tell her story to a jury. So was the officer. The jury believed Elea and awarded her more than a million dollars in damages. And then, after all that, the district judge decided to give the officer qualified immunity. She dismissed the case. In effect: Never mind what the jury said, Elea, you're getting bupkis.
Qualified immunity has been a colossal disaster of public policy. And this case demonstrates why. If an officer can wriggle out of accountability in a case this clear cut, what rational lawyer would ever take a civil-rights case? What hope is there for people whose stories are less cut-and-dried?
This is why Public Accountability exists. We're fighting to get Elea back the money damages the jury said she was owed. Just as importantly, we're fighting to get her the accountability she is undoubtedly owed. And we're also fighting to make sure this case doesn't stand—to set a precedent so that next time, the district judge doesn't even have the option to wipe out the jury's decision. You can read our brief here.
That's not all we've been up to over the last few months. Here are a few of the other cases in which we've been working to protect and expand civil rights:
Hannah v. State of Oregon. Oregon’s public-defense system is in a full-blown crisis. It’s underfunded, understaffed, and barely functioning. People sit in jail for weeks and months without a trial—their cases paused indefinitely—because the state can’t find them a lawyer. Some of them sued the state, seeking a simple declaration that the state had violated their constitutional rights. A trial judge dismissed their claim, saying they lacked standing. We’re got two primary briefs in this appeal, one on jurisdiction that you can read here, and one on the merits that’s still in progress.
Eaton v. Estabrook. When our client agreed to act as a liaison between officers and protesters during a march against police brutality, she didn’t expect to become a victim of police brutality. But a rogue officer with an axe to grind tackled her and threw her to the ground, and the district court granted him qualified immunity. We’ve asked the Second Circuit to take a second look. Read our brief here.
Hurst v. Dayton. The “Bivens” doctrine is what lets you sue federal agents for violating your constitutional rights. Without it, federal agents could beat protesters, assault prisoners, and intimidate journalists with absolute impunity. (For a more detailed explanation, see our writeup here.) Problem is, the Supreme Court has been cutting away at Bivens for decades. But it’s always said that the “core” of Bivens—which includes lawsuits for prisoner mistreatment—remains intact. In this lawsuit, we’re asking the Ninth Circuit to confirm that our client, an inmate in federal prison, can sue a prison nurse who refused to treat his injuries. Read our brief here.
If you've made it this far, you can see why 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 the people can't fight back, and often, judges see to it that they're right. But Public Accountability is there—to fight back, to hold the wrongdoers accountable, and to change the law so they know they won't get away with it. If you can, please support our work and donate.
Clearly Established #8
Week of July 30, 2021—Decisions involving Bivens, the PLRA, the FSIA, and (as ever) qualified immunity.
Welcome to the eighth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of recent accountability decisions. We took a couple of weeks off to work on an important brief in Index Newspapers v. City of Portland, but now we’re back with a bonanza edition: In addition to our usual qualified immunity fare, we’ve got a few new accountability doctrines to introduce you to. Let’s dive right in.
Turkish security forces beat up anti-Erdoğan protesters in Washington, D.C. The protesters sue the Republic of Turkey. Turkey: We get immunity under the Foreign Sovereign Immunities Act. D.C. Circuit: Nope. Turkey: Political question doctrine? D.C. Circuit: Also no. Turkey: Uhh, international comity? D.C. Circuit: You can guess where this is going.
Assertion: Federal prison guard put inmate in the hole for sixty days to retaliate against him for filing a grievance and a lawsuit. District court: Even under the strict confines of the Bivens doctrine (see here for a quick explainer), I can hear this inmate's First Amendment claim. Sixth Circuit: And since the decision below just denied summary judgment and wasn’t a final decision, we have no jurisdiction to hear the guard’s appeal. The Supreme Court may have said that qualified immunity is a weird exception to the final-decision rule, but Bivens ain’t.
Here’s a case that illustrates why conservatives (should) also care about holding public officials accountable—why, as we explained in our recent amicus brief, “a cross-ideological consensus has begun to emerge that the qualified immunity doctrine is broken.” The University of Iowa requires student organizations to comply with its antidiscrimination policy. But in order to permit groups like the African Student Association, the Christian Legal Society, and the Feminist Majority Leadership Alliance to exist, it allows groups to base membership and leadership on certain traits, including race, sex, religion, and ideology. So can it deregister a Christian organization for requiring its leadership to abide by Evangelical Christian teachings on homosexuality? Eighth Circuit (March): No. Clearly established. No qualified immunity. Eighth Circuit (July): Did we stutter?
Cop tells man to get on the ground. Man gets on his knees, hands in the air. Cop: “All the way to your stomach!” Man: “On my stomach?” Cop, frustrated by the evident failure to communicate, takes a running start, tackles the man, and slams his face into the pavement, breaking his jaw in several places. Cop, in court: I had to do it—he was being noncompliant! Eighth Circuit: Not even close. Even under the exceptionally deferential standards of qualified immunity, it was clearly established that you can’t use that kind of force on someone who’s not resisting, not a threat, and not a flight risk. This case goes to a jury.
Here’s a judge-made doctrine that’s just as bananas as qualified immunity but doesn’t get nearly as much attention: the “Heck bar.” In essence, the doctrine is this: If a state court convicts you of a crime, and winning your federal civil-rights lawsuit would imply that the conviction was invalid, the federal court can’t hear your case. This next decision, out of the Ninth Circuit, is a perfect example.
A 250 lb officer slams a 105 lb, 18-year-old girl into the ground, rubs her face in gravel, and arrests her. The DA initially wants nothing to do with the case, but once the girl sues the officer for excessive force, the DA charges her with resisting or obstructing a peace officer. She’s convicted by a jury. One element of resisting or obstructing is that the officer must have been “lawfully engaged in the performance of his duties”—which includes not using excessive force. So now, if the girl wins her excessive-force claim, that would mean the officer wasn’t lawfully performing his duties, and she shouldn’t have been convicted. Which, under the Heck bar, means the girl’s excessive-force case has to be dismissed. As the dissent notes, this decision is “likely to encourage the very sort of police overreaction to minor criminal behavior that has led to public outcry and calls for reform in recent years.”
In a refreshingly straightforward opinion, the Tenth Circuit holds that a prison's 30-day ban on the use of tobacco in Native American services and indefinite ban on such services at all violated a Native American prisoner’s clearly established First Amendment rights.
Most of the doctrines we focus on at Public Accountability are judge-made, but Congress has enacted its share of accountability-limiting laws. One of the worst is the Prison Litigation Reform Act, in which Congress did its very best to ensure that prisoners suffering at the hands of their jailers receive no relief from the federal courts. And this month, the Eleventh Circuit took the PLRA's already-harsh terms and made them a little more draconian, holding that in prison cases, preliminary injunctions—which are intended to maintain the status quo until a trial on the merits—can last no longer than 90 days. It’s practically unheard of to get a case to trial that quickly, which means that in most cases, prison guards can wait 90 days and then go right back to violating prisoners’ rights.
That’s it for this issue. 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 #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.
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 #6
Week of July 2, 2021—Decisions from the Fifth and Tenth Circuits and the Supreme Court.
Welcome to the sixth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of the week’s interesting accountability decisions. We’ve got a lot of cases from the Fifth Circuit for you this week, but we’ve leavened it with some Tenth Circuit and Supreme Court action. Let’s dive right in:
Police encounter man experiencing diabetic seizure, break open his car window, drag him to the ground, press his face into the broken glass, and punch and knee him in the back. Fifth Circuit: Qualified immunity.
Student in Harris County, Tex., refuses to complete assignment requiring her to transcribe the pledge of allegiance. Teacher threatens her with a zero—and then goes on an extended diatribe, touching on “communists, supporters of Sharia law, foreigners who refuse to assimilate into American culture,” “the Cuban Missile Crisis,” “the Pope’s opposition to the construction of a wall at the United States’ southern border,” and finally “a discussion of a local sex offender in the news.” District court: Seems possible your assignment didn’t have a pedagogical purpose. No qualified immunity. Fifth Circuit: We’ve got no jurisdiction to review that factual issue—to trial you go. (A full transcript of the teacher’s comments can be found at pages 4-5 of the opinion. We suggest you read them for yourselves. –ed.)
Back in February, the Fifth Circuit granted qualified immunity to officers who saw a man douse himself in gasoline, commented that he’d catch fire if they tased him, and then tased him. (He caught fire and burned alive.) Now, the full Fifth Circuit has declined to rehear the case en banc, albeit with several spirited separate writings. Perennial Public Accountability favorite, Don Willett, dissents from denial with the observation—prescient, we hope—that the Supreme Court’s recent decisions have “signaled a subtle, perhaps significant, shift regarding qualified immunity, pruning the doctrine’s worst excesses.”
2001: Police department in Silver City, N.M., hires an admitted domestic abuser as a cop.
2003: Department investigates allegations that the cop had also sexually abused a child, but clears him.
Mar. 9, 2016: Police respond to a domestic disturbance, realize it’s the cop, change the call to a “welfare check,” and leave without charging him with anything.
Mar. 25, 2016: Cop’s girlfriend calls police to tell them the cop harassed her coworker and tailed her home. Police chief: “Knock it off or it’ll affect your job.”
Mar. 28, 2016: Police chief gives the cop a promotion and a raise.
April 2016: Cop shoots and kills his girlfriend, and then himself.
Tenth Circuit: You treated the victim differently because her partner was a cop, and in so doing you denied her the equal protection of the laws. No qualified immunity for you. (Coda: Sometime after the cop killed himself, the department discovered in its possession a memory card that contained images of the cop, in uniform, exposing himself to young girls.)A total of eight cops take down a 5’3”, 160 lb prisoner; handcuff and shackle him; and press him face-down into the floor for 15 minutes. He dies. Excessive force? Could be, says the Supreme Court, sending the case back to the Eighth Circuit for another look.
Also at the Supreme Court, Justice Thomas once again expresses his view that qualified immunity has no basis in law or history.
In addition, we came across two podcasts recently that are worth your while:
In On Our Watch, NPR dives into the details of police internal-affairs investigations that have recently come to light thanks to a new California law.
And an episode of The Argument explores the case for and against qualified immunity.
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 #5
Week of June 25, 2021—Decisions from the Fifth and Ninth Circuits and D.C. District Court. Plus: Our first amicus brief!
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.
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
Week of June 11, 2021—Decisions from the Ninth and Tenth Circuits.
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:
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 #3
Week of June 4, 2021—Decisions from the Fifth, Seventh, and Ninth Circuits.
Welcome to the third issue of Clearly Established, a somewhat weekly, slightly irreverent newsletter rounding up some of the week’s interesting accountability decisions. Let’s dive right in.
Last week, the Fifth Circuit held that prisoners in the federal system can’t sue for retaliation under the First Amendment. (That’s because of the Bivens doctrine; see last week’s newsletter for a quick explanation.) This week, in response to another prisoner’s claim that federal prison guards retaliated against him for filing grievances, the Fifth Circuit reaffirmed that holding—and added that even if the prisoner could sue, the guards would be entitled to qualified immunity. The not-so-rare Public Accountability double-whammy.
Reader, sit down for this one (cw: racial slurs). White officer investigates claim that Black officer shot an air rifle at a neighbor’s car. While searching Black officer’s apartment, white officer calls Black officer a “porch monkey,” says that he “lived like a n—,” and declared that “we’re going to get this n—.” His report recommends that Black officer be fired, omitting several facts that exculpate Black officer—such as that the shots could not physically have come from Black officer’s apartment. Black officer is fired; naturally, he sues.
White officer: I just wrote a report—I had no power to fire the guy. Seventh Circuit: You used your superiors as a “cat’s paw” for your racial animus, and for that you can be held liable. White officer: This cat’s paw theory of liability wasn’t clearly established in 2011, when all this happened. Seventh Circuit: That’s not how this works. By 2011, “a veritable river of precedents” clearly established the Black officer’s right not to be fired for being Black. You violated that right, and that’s what matters here—not whether you knew you could be held civilly liable. No qualified immunity for you.Police officers in Bellingham, Wash., tase trans woman and send her to the hospital. At the hospital, while she’s unconscious, they photograph her bare torso and thigh. Woman sues, alleging an unlawful search under the Fourth Amendment; officers claim qualified immunity. District court: You say you just took photos of her in plain view, but her gown is arranged differently in each photograph. Curious! No qualified immunity for “lift[ing] clothing” to search someone without a warrant or an exception. Ninth Circuit: Just so. It has “long been established” that such a search violates the Fourth Amendment, and we don’t need a case with identical facts to deny qualified immunity here. (Bonus transphobia: The officers claimed they’d done nothing wrong because they’d merely photographed a “man’s torso.” Neither court took the bait.)
Allegation: Sheriff’s deputy in Los Angeles, Calif., coerces confession from Cameroonian man by threatening to send him and his entire family “back to the jungle.” Naturally, deputy did not administer Miranda warnings first. Violation of the Fifth Amendment? District court: Maybe, but you can’t sue for that. Ninth Circuit (January): Oh yes you can. Ninth Circuit (June): And we see no need to revisit that decision en banc. The Supreme Court may never have called Miranda a “constitutional right” in so many words, but it did strike down an Act of Congress purporting to abolish Miranda—that’s constitutional enough for us.
One other thing: A new podcast, Unaccountable, tells the stories of ordinary citizens whose rights have been violated and whose claims for redress have been stymied by qualified immunity. We recommend it.
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 #2
Week of May 28, 2021—Four decisions from the Fifth, Sixth, and Ninth Circuits.
Welcome to the second issue of Clearly Established, a somewhat weekly, slightly irreverent newsletter rounding up some of the week’s interesting accountability decisions.
Today, in addition to qualified-immunity decisions, we have a couple of Bivens cases, so here’s a quick explainer. If a state agent violates your federal rights—say, your right against excessive force—a statute called 42 U.S.C. § 1983 gives you the right to sue in federal court. This is called a “right of action,” and it’s separate from the substantive right that was violated. Think of it as the key that opens the courthouse doors. There’s no analogue to § 1983 for federal agents, but in a 1971 case called Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court said that the Constitution itself gives you the right to sue federal agents for violating your constitutional rights.
Problem is, ever since then, the Supreme Court and the lower federal courts have been cutting Bivens down to nearly nothing. As we’ll see.
Federal prisoner files grievances against prison guards. Guards, in retaliation, drastically reduce his food portions and contaminate what little they allow him to have with feces and urine. Every day. For nine months. District court, missing the point: He had no right to “hav[e] a grievance considered and resolved to his satisfaction.” Fifth Circuit, getting the point but preferring to ignore it: The question is whether he had a right not to have feces and urine put in his food in retaliation for filing grievances, which are protected speech under the First Amendment—but we don’t have to answer that question, because under Bivens, he had no right to sue in the first place. Case dismissed.
Son calls 911 for help with 81-year-old mother, who is “upset and combative.” Officer arrives, sees woman brandishing a garden rake. Woman walks towards officer, yells at him to get off her land. Officer: “You better stop.” Woman: “I’m not gonna stop.” Officer tases her from 10-12 feet away. Sixth Circuit: Officer reasonably perceived that an 81-year-old woman brandishing a rake at that distance posed an imminent threat of harm. Qualified immunity. (We wonder what Justice Alito, who just last week waxed eloquent about how police need to be able to enter homes without a warrant to check in on elderly women, would think about this case.)
Oregon prisoner, a Nation of Islam adherent, wishes to participate in Ramadan. Prison officials: You don’t go to weekly prayer meetings, so you don’t get to do Ramadan. Prisoner: The Nation of Islam does not require weekly prayer meetings. Prison officials: Well, we do; you'll eat during the day, like everyone else. District court: Since you didn’t go to weekly prayer meetings, a reasonable officer could have thought you weren’t sincere in your religious belief. Qualified immunity. Ninth Circuit: That’s not how this works; the government doesn’t get to decide that there’s only one way to sincerely be a Muslim. Reversed.
Innkeeper whose property touches the U.S.-Canada border is also a confidential informant for Border Patrol. Agent stops innkeeper in the street to ask him for information; innkeeper relays that a Turkish guest is arriving that day from New York. No indication that the guest, who’s already been through customs and immigration, is in the country unlawfully. Agent nevertheless tails the guest to the inn and begins interrogating him. Innkeeper tells agent he is trespassing and asks him to leave. Agent shoves innkeeper to the ground, injuring his back. (It turns out that the Turk is here legally after all.) Innkeeper complains to agent’s supervisor. Agent then prevails upon IRS, Social Security Administration, and various state agencies to investigate innkeeper, which they do. Excessive force and unconstitutional retaliation? District court: Can’t say; no First or Fourth Amendment claims under Bivens when “national security” is involved. Ninth Circuit (quoting the Supreme Court): National security is not a “talisman” to “ward off inconvenient claims.” Back you go for a determination on the merits. (Bonus: At pages 29-30, Judge Owens directs the reader to his 1997 student note, which proposes some “admittedly pie in the sky solutions.”)
A couple other points of interest:
You might remember the case of Caron Nazario, a Black and Latino army officer who police in Windsor, Va., pulled over for driving with temporary tags—not a crime!—and then pepper sprayed and assaulted. Videos of the encounter went viral in April, and the officer filed a federal lawsuit. Well, now the officers have claimed qualified immunity. Watch this space for updates. (Mother Jones has reporting here, as part of a broader story on how limiting qualified immunity went from a bipartisan issue to being strongly opposed by some Republicans. It’s worth a read.)
The New York Times editorial board has come out in favor of ending qualified immunity. We confess, dear reader, that we did not expect to convince them so quickly—less than a week after our inception!—but we’re glad they’ve come around.
That’s it for this week. Thanks for reading.
Clearly Established #1
Week of May 21, 2021—Three qualified-immunity decisions from the Fifth and Ninth Circuits.
Welcome to the first issue of Clearly Established, a somewhat weekly, slightly irreverent newsletter rounding up some of the week’s interesting accountability decisions. First, a quick recap on qualified immunity, or QI. If you sue a police officer or other government employee for violating your rights, the officer can raise QI as a defense. Under QI, the officer gets to escape liability even if he or she violated your rights, unless you can prove that the right was “clearly established.” This TikTok meme does a remarkably good job of summing it up.
All three decisions this week highlight two fundamental problems with qualified immunity: First, courts require super-specific precedent to say that a right is “clearly established.” Unless the court has previously seen a case with almost identical facts, the defendant gets qualified immunity. And second, courts can actually get rid of a case by saying “any right you may or may not have had wasn’t clearly established”—they don’t even have to say whether the right exists! So when the next case comes around, the right still isn’t clearly established, and the next defendant gets qualified immunity too. And so on. See for yourself.
Cop pulls over driver in Shreveport, La., for broken brake and license plate lights. Driver drives for two minutes into a neighborhood and stops in a driveway. Cop searches driver, tells him to put his hands behind his back, but doesn’t tell him he’s under arrest. As driver is complying, three more cops arrive, slam him to the ground, kick him and punch him repeatedly, and put him in handcuffs. Uh oh! Multiple Fifth Circuit cases say that “violently slamming an arrestee who is not actively resisting arrest” is a constitutional violation. District court: No qualified immunity. Fifth Circuit: There’s no case says that it’s a constitutional violation if the arrestee drove two minutes into a residential area, turned out to be kinda big, and got mouthy about being arrested for broken lights. Qualified immunity; case dismissed. (Reason reports on this case here.)
California Highway Patrol policy requires officers to “relinquish on demand” any “work stored on any type of electronic device.” Investigating an officer’s relationship with a confidential informant, CHP demands the officer’s personal cellphone. But instead of searching for messages with the CI, CHP downloads everything on his phone! Constitutional violation? Supreme Court (2014): Because “a cell phone search would typically expose to the government far more than the most exhaustive search of a house,” cell phones get special Fourth Amendment protection. Ninth Circuit (2021): No case has specifically said that that protection extends to the workplace, so qualified immunity & case dismissed. And we’re not going to specifically say so in this case, either.
Nevada state prison has a policy of listening in intermittently on prisoners’ calls with their attorneys to make sure the calls are “legal in nature.” Prisoner: I have a Fourth Amendment right to confidential communications with my lawyer! Ninth Circuit: Not a clearly established right, you don’t. Case dismissed. And we’re not going to clearly establish any such right in this case, either.