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.