Athul K. Acharya 4/8/22 Athul K. Acharya 4/8/22

Clearly Established #16

Week of April 8, 2022—qualified immunity, two kinds of absolute immunity, the Heck bar, and more.

Welcome to the 16th issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of recent accountability decisions. Let’s dive right in.

Healthcare company imports nurses from the Philippines to the US in what is essentially a contract for indentured servitude. When they quit, the company convinces the local DA to prosecute them for endangering patients (by quitting). A New York appellate court, rightly, dismisses the prosecution on the basis of the Thirteenth Amendment. (That’s the one that prohibits slavery and involuntary servitude.) So the nurses sue the prosecutors for conspiracy to violate their constitutional rights. Second Circuit: Prosecutors have absolute prosecutorial immunity [qualified immunity’s even uglier cousin —ed.] for prosecutorial activities. Case dismissed.
Close to solving a years-long crime spree, an ace detective in Benton, La., comes up with an unusual theory: “Todd decided to frame himself in order to clear his name.” Reader, that’s all we’re giving you on this Fifth Circuit case denying qualified immunity. We promise it’ll be worth your while.
Responding to a welfare check on a distraught woman, cops decide to take her to the ground and arrest her. In the process, they slam her head-first into a soda machine. District court denies qualified immunity. Cops: She tripped and fell! Sixth Circuit: That’s a factual dispute. Actually, all your arguments are factual disputes. And factual disputes must be resolved by a jury. To trial this case will go.
What happens when a state court proclaims its union contract invalid, stops deducting union dues from paychecks, eliminates grievance procedures, and generally pretends that the union no longer exists? Well, if you sue in federal court, nothing happens, because the state court is an arm of the state and thus entitled to state sovereign immunity. So says the Sixth Circuit, with a separate concurrence from Judge Sutton urging the circuit to rethink its Contracts Clause jurisprudence.
Under the “Heck bar,” if you’ve been convicted of a crime, you can’t bring a civil-rights claim that would call that conviction into question. But what if, instead of a state-court conviction, you went through a pre-trial diversion program? That’s just a contractual agreement with the state not to prosecute you, says the Eighth Circuit, so there’s no conviction to call into question—so no Heck bar. (There are several other issues of interest in this case arising from the Dakota Access Pipeline protests of 2016, including no qualified immunity for shooting a peaceful protester in the head with a lead-filled beanbag.)
Underage Doe plaintiff goes to the county courthouse for a judicial bypass to obtain an abortion without parental consent. Court clerk tells Doe her parents will be notified if she does so. Doe eventually goes out-of-state for the abortion, but upon her return, she sues the clerk for violating her constitutional right to an abortion. Clerk: I was acting at a judge’s behest, so I’m shielded by absolute quasi-judicial immunity. Eighth Circuit: Well, the judge doesn’t remember telling you anything, so that’s disputed. You can tell it to a jury. And while you’re at it, Doe’s right to an abortion was clearly established, so no qualified immunity for you, either.
Is it clearly established that you can’t repeatedly tase someone who’s outnumbered, hobbled, and pinned facedown by your fellow officers? No, says the Ninth Circuit, but two out of three judges write separately to say that it’s clearly established going forward.
If a public school stops sending kids on field trips to your farm because of your obnoxious MAGA tweets (sample topics: gender identity, comparisons between BLM and ISIS, Elizabeth Warren’s ancestry), is that unconstitutional retaliation against speech? Well, yeah, says the Ninth Circuit. But good news for the defendants: They have qualified immunity from damages because no previous case clearly established that “a school district could not cease patronizing a company … because the company’s principal shareholder had posted controversial tweets that led to parental complaints.” (If you think that’s a little exacting, the Ninth Circuit agrees: “There will rarely be a case that clearly establishes that the plaintiff is entitled to prevail” under this fact-specific standard.)
In a counterpoint to the welfare-check case above, the Tenth Circuit resolves several factual disputes in this interlocutory appeal, holding that the district court’s findings were “blatantly contradicted by the record” and instructing it to grant qualified immunity to a cop with an itchy trigger finger.
Bill Pryor is one of the most conservative judges in the country, but even he blanches at letting police get away with body-slamming and breaking the neck of an unarmed, cooperative, non-threatening veteran. Read all about it in this Eleventh Circuit opinion.
And in Supreme Court news, with a six-justice majority, the Court has recognized that the Fourth Amendment prohibits malicious prosecutions. Bonus: The Heck bar doesn’t require you to show that you were exonerated—just that you weren’t convicted.

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.

Athul K. Acharya 3/11/22 Athul K. Acharya 3/11/22

Clearly Established #15

Week of March 11, 2022—four different types of immunities, the PLRA, Bivens, and more. Plus: Our first oral argument!

Welcome to the 15th issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of recent accountability decisions. We've got a brief case update, and then our usual smorgasbord of accountability decisions.

Senn v. Smith, No. 21-35293 (9th Cir.)

Public Accountability had its first oral argument this week! We argued in the Ninth Circuit against qualified immunity for a police officer who pepper-sprayed a protester. You can watch the argument on YouTube at right, read more about the case here, and check out our ED’s unbelievably cool sunglasses here.

This week, we have four (count ’em) different immunities to discuss, plus Bivens, the Prison Litigation Reform Act, and more.

Remember that story from 2018 about the Massachusetts state court judge who hustled a defendant out the back door so ICE wouldn’t get him? The Trump administration decided to prosecute the judge, and last week the First Circuit held that the prosecution could go to trial despite the judge’s claim of absolute judicial immunity. Apparently, even though qualified immunity from civil liability is important enough for an immediate right of appeal, absolute immunity from criminal proceedings is not.
Male student is accused of sexual assault by female student. At his criminal trial, a jury acquits him, but in the university’s disciplinary proceeding, he’s found to have violated the university’s sexual-misconduct policy and is expelled. He then sues the female student for defamation, but the district court dismisses his claim on the basis of absolute quasi-judicial immunity. Wait a sec! The university is Yale, a private institution. Does absolute quasi-judicial immunity apply to hearings held by non-governmental entities? Alas, it’s a question of state law, and one that the Second Circuit deems too uncertain to answer. The question must go to the Connecticut Supreme Court.
Inmate tests positive for marijuana, is punished, but successfully has his discipline vacated(!). On re-hearing, the disciplinary committee sentences him to harsher punishment “for all this trouble.” Fifth Circuit: Yep, that’s unconstitutional retaliation. But nope, you can’t get compensatory damages because you didn’t suffer a “physical injury” from the retaliation, as required by the PLRA. But yep, you might be able to get nominal and punitive damages, which the PLRA doesn’t restrict. So here’s your remand.
Standing, interlocutory jurisdiction, sovereign immunity, Monell, oh my! A passel of Public Accountability’s pet issues in this Sixth Circuit case, at the end of which we learn that counties and municipalities are not immune from civil suit.
Cop, chasing a man, yells at him to drop his gun. Man drops his gun. Cop shoots man. Cop: I thought he still had the gun and was in a “firing position!” Eighth Circuit: But body-camera footage shows you looking directly at the gun on the ground. No qualified immunity for shooting an unarmed, non-dangerous suspect. A jury’s going to have to decide whether to believe you or the video.
Anti-police group uses chalk to write anti-police messages outside courthouse. (A thousand square feet of “FUCK PIGS” and “FUCK THE COPS”, apparently.) Prosecutors declined to prosecute similar graffiti earlier, and cops don’t tell them to stop this time. Some officers even tell them where to chalk. But one detective takes photos and, a week later, arrests the members of the group. Unconstitutional retaliation? Seems so, says the Ninth Circuit. And it’s clearly established—no immunity just because a case involves a “new factual permutation.”
In which the Ninth Circuit rather gingerly authorizes a “very modest expansion of the Bivens remedy,” permitting a federal prisoner to sue a guard for telling other inmates he’s a snitch and putting a bounty on his head. Dissent: As far as I’m concerned, the principles animating Bivens “no longer stand in any capacity.”
And in more Bivens news, the Supreme Court heard oral argument last week in Egbert v. Boule, a case about whether you can sue Border Patrol agents for excessive force, or any federal agents for violating the First Amendment. As an op-ed in USA Today rightly notes, the slow death of Bivens is tantamount to absolute immunity for federal agents, but there’s reason to hope that Bivens hasn’t breathed its last just yet—several conservative justices seemed skeptical of the agent’s position.

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.

Athul K. Acharya 2/18/22 Athul K. Acharya 2/18/22

Clearly Established #14

Week of February 18, 2022—Search warrants, flow charts, and a jailhouse suicide.

Welcome to the 14th issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of recent accountability decisions. The federal courts of appeals were a bit slow this week, but they still issued a few decisions of interest. Let’s dive in.

An appellate court reviewing a denial of qualified immunity ordinarily has to take the facts as the district court finds them. But Fifth Circuit doesn’t have time for such jurisdictional niceties, so it recasts an officer's “throwing” and “slamming” a plaintiff to the ground as a “slow descent”; a wrenching of a plaintiff’s handcuffed arms behind her back as a “lifting [of] her arms”; and a punch to the throat as “a relatively minimal amount of force to move [a plaintiff] out of the way.” So, of course, the officer gets qualified immunity.
In which a Fifth Circuit judge complains that a constitutional rule cannot possibly be clearly established if a court uses seven pages of analysis and a flow chart to explain it. In our experience, when it comes to legal analysis, seven pages is pretty trim. And visual aids could improve a great deal of legal writing. Thankfully, this “tl;dr” rule of qualified immunity is (for now, anyway) only in dissent.
If you get a warrant to search apartment 1S in 645 W 62nd Street, can you search apartment 1N in 643 W 62nd Street? No, says the Seventh Circuit, not even if you really meant to get a warrant for 1N in 643. And while we’re at it, you can’t just tell the judge there are drugs involved just because you have probable cause for guns and you think “drugs and guns go hand in hand.”
Florida man, on his way to jail, says he’s going to try to kill himself. In jail, he creates a noose and nearly tries to kill himself. (A fellow inmate talks him out of it.) Jail guards decide he’s just “trying to get attention” and refuse to put him in the suicide-precaution dorm. A few hours later, he creates another noose with a bedsheet and in fact kills himself. Eleventh Circuit: You saw the first noose. You even called it a “noose”! Might be you should’ve known he'd try to kill himself; no qualified immunity for you.

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.

Athul K. Acharya 2/4/22 Athul K. Acharya 2/4/22

Clearly Established #12

Week of February 4, 2022—Jurisdictional issues, the Heck bar, sovereign immunity, and more in this bumper issue.

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.

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.