We’re challenging qualified immunity—will you join us?

Friends,

I’m sure your inboxes are clogged with Giving Tuesday emails, so I’ll keep it short:

• We’re fighting hard against qualified immunity. Within the last month, we’ve filed one brief in the U.S. Supreme Court (our first!), two in the Ninth Circuit, and one in the Oregon Supreme Court. We’ve been joined by the Cato Institute, the ACLU of Washington, and the Washington Coalition for Police Accountability. We’re playing in the big leagues.

• We’re winning. In August, we convinced the Ninth Circuit to hold that a federal prisoner could sue a nurse that refused to treat him. In October, we convinced the Ninth Circuit to deny qualified immunity to a cop who shot a student in the eye at a protest. In November, within a week after we filed our amicus brief, the Supreme Court ordered a response from the other side.

• We’re opening up new practice areas. We just filed a brief asserting a prisoner’s right to accommodation under the Americans with Disabilities Act, because police and prisons have to accommodate disabled people just like any other public agency.

• We’ve expanded our staff. We just hired our first staff attorney, Sara Rosenburg, straight from a clerkship on the First Circuit. She’s brilliant. With her help, we’re going to keep turning up the pressure—on cops, prison guards, and anyone else who violates constitutional rights.

Here's the thing: We can’t do any of this without your help. We run entirely on donations from people like you—people who care about constitutional rights, who think victims of government abuse should have their day in court, who want our public servants to be accountable to the public they supposedly serve. We run on a shoestring budget—around $300,000 a year, a small fraction of what our opponents spend on litigation. (And still we win. 😎) So whether it’s $10 or $100, your investment in our work will meaningfully help keep up the fight for civil rights. So please, consider chipping in—

Thank for reading, and happy holidays,

Athul K. Acharya
Founder & Executive Director
Public Accountability

Victory against the cop who shot a student at a protest

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.

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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!

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.

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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

Clearly Established #22

Welcome to the 22nd issue of Clearly Established, an unscheduled, unpredictable[1] roundup of recent accountability decisions. It’s been a minute since the last issue, which means we had an embarrassment of cases to choose from. Let’s dive right into the extra-spicy ones that made the cut.

• Election loser falsely claims election was stolen, files meritless lawsuits challenging election results, pressures officials to reverse election outcomes, and delivers speech that sparks a riot at the U.S. Capitol. Officer injured during riot sues. Loser: I was president at the time, so I am immune from suit. D.C. Circuit: Interesting. Your meritless court filings say you were acting in your “personal capacity as candidate for reelection to the office of President,” not your official capacity as a sitting president. We agree. Immunity denied.

• In a pathbreaking opinion, the First Circuit holds that two years of solitary confinement with no opportunity to rebut the basis for that confinement can violate the Due Process Clause. But then, in a sentence that should make all lawyers blush, it grants qualified immunity because “the law was not clearly established that Perry’s solitary confinement implicated a liberty interest.” Yes, you read that right—it was unclear that solitary confinement implicated an interest in liberty.

• One of qualified immunity’s perverse side-effects is that it not only gives cops a get-out-of-liability-free card when the law is unclear, it also often prevents courts from clearly establishing the law, allowing police to get away with violating the same constitutional rights over and over again. The pattern goes like this: (1) Cop violates a constitutional right. (2) Court says “we don’t need to decide whether he violated your constitutional right because even if he did, the right you’re asserting wasn’t clearly established, so case dismissed.” (3) Rinse and repeat—the right is never clearly established. Which is why, after eight years of rinsing and repeating, the Fourth Circuit took the time to clearly establish that for pretrial detainees, the deliberate-indifference standard is objective, not subjective.

• Small-town Texas cops plot for months to arrest a local gadfly/citizen-journalist, charging her with “soliciting information that had not yet been officially made public with intent to obtain a benefit.” First Amendment violation? Fifth Circuit (en banc): Sure, the Supreme Court has held similar statutes unconstitutional, but no one’s ever held this statute unconstitutional, so qualified immunity. Dissent: “Turns out, ignorance of the law is an excuse—for government officials.” (Judge Willett’s dissent is a banger and you should read the whole thing.)

• In the early days of the Covid pandemic, Louisiana man makes a joke Facebook post suggesting that the county’s sheriff’s deputies will “shoot” infected people “on sight.” He adds the hashtag: “#weneedyoubradpitt.” Ever paragons of good humor, deputies arrest him instead and tell him: The “next thing [you] put on Facebook should be not to fuck with the police.” Fifth Circuit: Not even we can give you qualified immunity for this.

• Can federal courts of appeals clearly establish the law? The answer is yes, but some Trumpy jurists have begun suggesting that only the Supreme Court can clearly establish the law. (The Supreme Court decides all of 60–80 cases a year, so this would supercharge qualified immunity.) In this Fifth Circuit case, a dissent from Judge Andrew Oldham—among the Trumpiest of jurists—makes that very suggestion, but the majority’s having none of it. “A proverbial mountain of binding authority is to the contrary,” explains the majority, before dropping a thousand-word footnote illustrating that mountain.

• Black man stopped for toll violations begins to flee. Within two seconds, officer jumps onto his vehicle’s running board and shoots him dead. Fifth Circuit: Well, under the prevailing conditions at the millisecond he shot, the officer might have feared for his life. The fact that he created those conditions by jumping into a car to stop someone from getting away with skipping a toll fee—an offense that’s not even arrestable under Texas law—is irrelevant under our precedents. Same judge, concurring in his own opinion: Our precedents are stupid.

• Responding to a report of a disturbance with a gun, Cedar Rapids police yell “stop” at two Black men. One of them continues to walk a few steps away, but soon submits to arrest. After a bystander tells the officers they’ve got the wrong guys, they let them go. But when they don’t find the right guys, they come back and arrest the guy who took a few steps, charging him with “interfering with official acts.” Eighth Circuit (2021): You’ve gotta be kidding. No qualified immunity. District court: Based on this new case from the Iowa Supreme Court, qualified immunity after all. Eighth Circuit (2024): Did we stutter?

• Prisoner: I was punished with three months of solitary confinement, a year of no visitation, loss of good-time credits, and a huge fine—after a kangaroo trial before a prison guard who refused to let me put on a defense. That’s gotta be a denial of due process. Ninth Circuit: Might be, but thanks to something called the “Heck bar,” we have to give that kangaroo trial preclusive effect here. Case dismissed. [We’re going to be focusing a lot on the Heck bar in the months to come. —ed.]

• Back in May 2020, California prison officials transfer 122 inmates from a prison in the middle of a Covid outbreak to a prison with no Covid cases. Predictably, everyone at the destination prison catches Covid; twenty-five prisoners and one guard die. Their families bring suit. Prison: Look, it was literally called the “novel” coronavirus. How could we know. Ninth Circuit (August 2023): “COVID-19 may have been unprecedented, but the legal theory that Plaintiffs assert is not.” No qualified immunity in a suit brought by the guard’s family. Ninth Circuit (October 2023): Same goes for the prisoners’ families.

• California cops shoot a mentally ill man in a gym locker room. Ninth Circuit (2022) (in a 2–1 decision): Looks like the video and other evidence call the officers’ justifications into serious question. No qualified immunity. Ninth Circuit (May 2023): The Obama appointee who provided the second vote just retired and was replaced by an extremely conservative George W. Bush appointee, so we’ll be taking a second look at that. Ninth Circuit (August 2023): Surprise! The cops get qualified immunity after all.

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That’s it for this issue. When we’re not writing this newsletter, we litigate accountability cases in the federal courts of appeals. It’s vital work—and we run 100 percent on the support of followers like you. Whether it’s $10 or $100, your contribution will meaningfully help us safeguard the constitutional rights of all. So please, consider investing in our work—

Thanks for reading. 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.

[1] We're borrowing “unscheduled, unpredictable” from our friends over at Divided Argument, an excellent podcast about the Supreme Court.

Public Accountability’s 2023, Wrapped

Friends,

It's been a busy year here at Public Accountability. In the last 12 months we've served more clients, won more cases, and advanced the cause of public accountability more than ever before. And your support has been vital to our efforts. I want to tell you a bit about our year, and then I'm going to ask you to help us continue to expand rights and remedies next year.

Fighting to Keep Bivens Alive

Bivens is the doctrine that lets you sue federal agents. (See our detailed writeup here.) Problem is, the Supreme Court has been cutting away at Bivens for decades, and in late 2022 the Ninth Circuit issued a decision that would have killed it entirely. So we opened 2023 by asking the court to rehear the case en banc. We didn't get the rehearing, but we did get the court to delete the worst bits and issue an amended opinion. So Bivens lives to fight another day. And we're carrying on the fight: We just finished briefing a case arguing that federal prisoners can sue prison staff who refuse to treat their injuries.

Defending Parents and Teachers from MAGA Activists

Far-right extremists took over the Newberg School Board in Newberg, OR, and banned Black Lives Matter and Pride symbols. Some parents and teachers, concerned about this new and radical direction in their schools, joined a Facebook group to talk about holding their elected school-board directors accountable. In retaliation, the board’s conservative majority sued four parents and teachers. We teamed up with the ACLU of Oregon and prominent local civil-rights lawyers to fight back, and in July we won a complete victory. Notch one for free speech.

No, You Can't Force Prisoners into a Covid Party

Do prisoners have a clearly established right against being forced to participate in a “Covid party”? We think so—but the State of Connecticut disagreed. In April 2020, our client was forced to move from a cell block where everyone was healthy to one that was in the middle of an active Covid outbreak. He caught Covid—the original, extremely dangerous variant—and nearly died. We argued that that amounted to cruel and unusual punishment. In October, we notched another complete victory: The court ruled that the warden violated his rights and it denied her request for qualified immunity.

By the Numbers

Those are just a few of the cases we worked on this year. Here's the rest of the scorecard:

• 14 clients served

• 11 briefs filed

• 3 oral arguments presented

• 2 wins (and one decision pending—we could still be 3 for 3!)

A Request

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 that people can't fight back, and too often they're right. But Public Accountability is there—to help you fight back, to hold officials accountable, and to change the law so they can't keep getting away with it. So if you can, please support our work and donate.

* * *

Thanks for reading, and happy holidays.

In gratitude and solidarity,

Athul K. Acharya
Founder & Executive Director, Public Accountability

Our most critical case yet.

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.

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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.

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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 #21

Welcome to the 21st issue of Clearly Established! It’s been a minute since our last issue, and we’re making up for it with a bonanza edition. As well as our usual irreverent roundup of recent accountability decisions, we've got an in-depth review of the state of Bivens around the country. Let’s dive right in.

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Bivens—A Deep Dive

What is Bivens? Bivens is how you sue federal agents for violating your constitutional rights. If a local cop violates your constitutional 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 against excessive force. 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.

What’s happening to Bivens? The Supreme Court drastically limited Bivens in a 2017 case called Ziglar v. Abbasi, holding that when a case presents a “new context,” courts can hear it only if there are no “special factors.” Then, in last year’s Egbert v. Boule, it cut Bivens down to nearly nothing: Nearly any difference from the Court’s existing Bivens cases makes for a new context, it held, and nearly anything can be a special factor. The lower courts have been sorting out just what this means, and many of them have decided it means that Bivens is over.

What does this mean going forward? Well, if you thought qualified immunity was bad, this is worse. In effect, in large swathes of the country, federal officials now enjoy something close to absolute immunity. They can beat you, silence your speech, arrest you without cause, and inflict cruel and unusual punishment on you—and there’s nothing you can do about it.

With that cheery summary out of the way, let’s take a look at what courts of appeals have been doing with Bivens claims since Egbert.

• Remember the Trump administration’s family-separation scandal? Well, it turns out some of those families sued! D.C. Circuit: This is obviously a new context with special factors. Judge Silberman, concurring: The Supreme Court should overrule Bivens just like it overruled Roe v. Wade, and while we’re at it I have some thoughts about this whole “free press” thing.

• In 2018, Bureau of Prisons officials transferred James “Whitey” Bulger—infamous Boston gangster and FBI informant—from protective segregation to general population. Within 14 hours, he had been murdered for being a snitch. Sounds awfully similar to at least two Supreme Court Bivens cases, so full steam ahead, right? Not according to the Fourth Circuit, which used some trivial differences to find a new context, conjured up some special factors that would apply in nearly every case, and dismissed the claim. A huge blow to Bivens there.

• In a bit of a surprise, the Seventh Circuit held that Egbert “does not change ... Bivens’ continued force in its domestic Fourth Amendment context.” For once, we have nothing snarky to say!

• A federal agent shoots a woman for a traffic offense; she brings an excessive-force claim under Bivens. Bivens itself was an excessive-force case, so there’s no way this is a new context, right? Ninth Circuit: Wrong. Bivens took place indoors, while this case took place outdoors. So that’s a new context. And the agency here has a complaint form on the internet, so that’s a special factor. Case dismissed. Note: Public Accountability represented the woman in a petition for rehearing en banc. We got the court to delete some of the worst bits of its opinion, but mostly it stuck to its guns.

• A prison guard enters a prisoner’s cell, out of view of the hallway cameras, and beats him up. A cut-and-dry violation of the Eighth Amendment. But the Tenth Circuit begins its decision by intoning: “Today, we are called upon to expand the judicially implied cause of action described in Bivens ....” You can see where this is going. Case dismissed.

Believe it or not, though, a sliver of hope remains. As we were going to print, the Fourth Circuit held that a specific subset of Eighth Amendment claims—claims for failure to treat a medical condition—may yet survive Egbert. And Public Accountability is preparing a similar appeal in the Ninth Circuit. Federal agents don’t have complete absolute immunity just yet, and we’re going to fight tooth and nail for every last scrap of accountability.

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The Roundup

And now, back to our regular programming—

• In Supreme Court news, Justice Clarence Thomas has called for overruling the Feres doctrine, a special rule of immunity for the government when the plaintiff is a member of the military. (For example: After a female cadet at West Point was raped by a fellow cadet, she filed suit against superior officers who put her in harm’s way. The Second Circuit held that her claim was barred by Feres.) Here at PA, we always give credit where it’s due, and Justice Thomas is exactly right: Congress said you can sue the government for compensation if you’re injured by its negligence, and Congress didn’t stutter. Feres should be overruled.

• When the cops set up at an intersection to catch drivers breaking the law, can you warn oncoming cars by holding up an “Cops Ahead” sign? You sure can, says the Second Circuit, and that’s clearly established to boot. No qualified immunity for the cop who arrested the sign-holder.

• Prison guards bully a Muslim inmate into stopping his daily prayers. He brings a claim under the Religious Freedom Restoration Act, but the district court grants qualified immunity. Uh oh! Is qualified immunity even a defense to a RFRA claim? You bet, says the Third Circuit—even though you’d be hard-pressed to find it in the statute. (On the plus side, they do hold—rightly—that the guards aren’t entitled to qualified immunity here.)

• Louisiana prison officials routinely hold inmates past the expiration of their prison sentences. This plaintiff, in particular, was incarcerated for more than two years past the end of his sentence. Did he have a right to be released from prison after serving his sentence? Yes. Was it clearly established? Also yes. Can the prison officials be held liable? Fifth Circuit: Well, no—we’re going to make up a nonsensical new third step of qualified immunity, fault the plaintiff’s lawyer for not predicting it, and—hey presto—case dismissed. [Just complete calvinball over there. —ed.]

• “It falls on the judiciary to ensure that the First Amendment is not reduced to a parchment promise.” —Judge Ho, author of the previous (rubbish) decision, also author of this (very good) dissent. He’s on the money here, but we wonder if he knows that the same goes for the Due Process Clause.

• Houston cops execute a Black veteran in cold blood, leave him to die on the ground, magically “find” a gun in his car 22 days later, and promote the murderous officer to sergeant. The district court grants qualified immunity, but even an all-Republican panel of the Fifth Circuit is unable to stomach that outcome. Qualified immunity reversed.

• The St. Louis Police Department makes up its own warrant system called “Wanteds.” Just like warrants, officers can arrest anyone with an outstanding Wanted, but unlike warrants, Wanteds bypass all judicial scrutiny. That’s a neat trick! The Eight Circuit rightly holds that it’s mostly unconstitutional, but wait, does that mean the plaintiffs can hold St. Louis liable? Eighth Circuit: Nope. “Wanteds” may be an official, department-wide system with whole employees dedicated to running it, but it’s not “so pervasive that it can be said to constitute custom or usage with the force of law.”

• Legal observers from the National Lawyers’ Guild, wearing bright green hats emblazoned with the words “National Lawyers Guild Legal Observer,” get tear-gassed by police while recording a protest. A bystander yells at police to “get the fuck out of my park,” so police tear-gas him, too. First Amendment violations? Only tear-gassing the bystander, says the Eighth Circuit. Observing and recording police-citizen interactions is not a clearly established First Amendment right. Dissent: Guys, didn’t we already say that it was? Guys?

• Is it clearly established that police can’t force to her knees and handcuff a “well-behaved, unarmed, 83-year-old woman who complies with police directions”? Ninth Circuit: Obviously yes. Judge R. Nelson, dissenting: How are police even supposed to do their jobs anymore.

• The Prison Litigation Reform Act requires that prisoners suffer a “physical injury” before they can file a lawsuit. Colorado prisoner: Guards punched me in my fractured, untreated jaw and stomped on my injured, untreated foot. Guards: Sounds like we didn’t cause those injuries! Tenth Circuit: But you caused them to become exacerbated, which counts. Case un-dismissed.

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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.

We just notched another win!

Friends,

The Ninth Circuit just issued its decision in Aberha v. Delafontaine, a Public Accountability case involving the constitutional right to freedom from sexual assault in prison. To recap: Our client told a guard that his cellmate had sexually assaulted him. The guard laughed at him and left him in his cell. Later that day, the cellmate threw our client against a wall, choked him out, and raped him. The district court denied the guard qualified immunity, but he took an interlocutory appeal to ask the Ninth Circuit to end the suit.

We represented the inmate on appeal—and we obtained a total victory. The Ninth Circuit’s decision, issued earlier today, affirms that prison guards have a constitutional duty to protect inmates from sexual assault. It explains that since 2009, “it has been clear that a correctional officer’s doing nothing in response to an inmate’s pleas for help after the inmate’s cellmate threatened physical violence is unreasonable”—and, therefore, that it violates the Eighth Amendment. Read the whole decision here.

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In other news, it’s been a minute since our last update! Here’s a quick rundown of what we’ve been up to the last few months:

• Nazario v. Thibeault. Do prisoners have a clearly established right against being forced to participate in a “Covid party”? We think so—but the State of Connecticut disagrees. In April 2020, our client was forced to move from a cell block where everyone was healthy to one that was in the middle of an active Covid outbreak. He caught Covid—the original, extremely dangerous variant—and nearly died. The district court denied the prison warden’s request for qualified immunity and we’re asking the Second Circuit to affirm that decision on appeal. Read our brief here.

• Mejia v. Miller. In this case, a federal BLM agent shot our client in the hand and head—for nothing more than a traffic violation. The district court denied his request for qualified immunity. On appeal, though, the Ninth Circuit held that our client didn’t even have the right to bring a claim under the “Bivens” doctrine. Bivens is what lets you sue federal agents for violating your constitutional rights. The Supreme Court has been cutting away at Bivens for decades, but it’s always said that the “core” of Bivens remains intact. This type of Fourth Amendment excessive force claim is as close to the core of Bivens as it gets, so we asked the Ninth Circuit to reconsider its decision en banc. Read our petition for rehearing here.

• DeHart v. Tofte. Far-right extremists took over the Newberg School Board in Newberg, OR, and banned Black Lives Matter and Pride symbols. Some parents and teachers, concerned about this new and radical direction in their schools, joined a Facebook group to discuss ways they could hold their elected school-board directors accountable. In retaliation, the Board’s conservative majority sued four parents and teachers. We teamed up with the ACLU of Oregon and prominent local civil-rights lawyers to fight back. You can read our reply brief on appeal, which we filed just last month, here.

• Index Newspapers v. City of Portland. In this case, we’re representing journalists and legal observers who covered the Portland protests of 2020 and were shot, beaten, and threatened with arrest in retaliation. The City moved to dismiss the case in December, claiming that it was “moot” because the protests had ended. That’d be a neat trick—not many protests outlast the court cases they kindle. You can read our response here.

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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

This Thanksgiving, We’re Grateful for Your Support

Friends,

It’s been a busy few months here at Public Accountability HQ. We’ve been submitting back-to-back briefing in courts across the country, fighting to defend constitutional rights and hold the officials who violate them accountable. But in this season of giving thanks, I wanted to pause, ever so briefly, and thank you. It’s your support that makes it possible for us to safeguard civil rights. So I thought I’d take a minute to fill you in on what we’ve been up to:

• In Omeish v. Patrick, we filed an amicus curiae brief in support of a Muslim woman who was pepper-sprayed during a routine traffic stop for running a light. Leveraging our deep expertise in qualified immunity, we explained how nearly every court of appeals in the country would deny the officer’s request for immunity. Not many organizations are able to bring that kind of nationwide perspective to the table. And in deciding these cases, courts find it helpful to know that the right outcome is also in line with what other courts are doing.

• In Nasby v. State of Nevada, we filed another amicus brief in support of a Nevada inmate’s claim that prison officials denied him access to legal materials that could’ve helped him get a new trial. People in prison have a constitutional right to a law library—it’s part of the constitutional right of access to the courts. For years, courts have told Nevada officials that their system isn’t up to scratch, and for years Nevada officials have ignored them. We explained that in cases like this—where prison officials make calculated choices to violate inmates’ rights, betting that the courts will save them from accountability—qualified immunity is at its weakest.

• In Aberha v. Delafontaine, we’re defending prisoners’ constitutional right to freedom from sexual assault. Our client told a guard that his cellmate had sexually assaulted him, but the guard laughed at him and left him in his cell. Later that day, his cellmate threw him against a wall, choked him out, and raped him. The district court denied the guard qualified immunity, but he took an interlocutory appeal to ask the Ninth Circuit to end the suit. We’re representing the inmate on appeal. In our brief, we ask the court to confirm that under clearly established law, guards can’t ignore an inmate’s report that his cellmate has just assaulted him.

• Last, in Edwards v. Gizzi, we’re litigating a crucial test case for accountability for federal officials. For years, the Supreme Court has been making it harder and harder to sue employees of the federal government who violate your constitutional rights. But here, a lower court read those cases too far. It held that even though federal marshals broke our client’s arm for no reason at all, they have virtually absolute immunity from suit. Federal prisoners rely on the courts for protection. If this decision is allowed to stand, nothing will prevent federal prison guards from using excessive force on, denying medical care to, or refusing to protect the hundreds of thousands of people in federal prison. We filed our opening brief on appeal in August.

We’ve got lots more important work in the pipeline. In just the next three months, we’ll be defending the right to sue federal agents in the Ninth Circuit, which has jurisdiction over the entire west coast; fighting for parents’ right to speak out against school-board officials; seeking redress for inmates who were infected with Covid-19 after prison officials withheld PPE; and continuing our long-running litigation to protect journalists’ right to cover protests without retaliation.

As I said above, we couldn’t do this work without your support. Our clients don’t have deep pockets. We run entirely on contributions from people like you. So to close, I’d like to make a request. If you’re able to send a donation our way, please hit the button below. But just as importantly, think of three people you know who care about constitutional rights, civil liberties, and accountability for public officials. Send them this post and ask them to donate, sign up for our newsletter, or both.

Thank you so much, and Happy Thanksgiving.

In gratitude and solidarity,

Athul K. Acharya
Founder & Executive Director
Public Accountability

Clearly Established #20

Welcome to the 20th issue of Clearly Established. We’ve been busy beavers here at Public Accountability HQ: In the last two months, we’ve filed not one but two merits briefs. Read on for details, and also for our usual roundup of accountability cases. But first, a request: If you regularly make purchases from Amazon.com, please consider supporting us—at no cost to you—by designating Public Accountability your Amazon Smile beneficiary. Find out more here.

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Merits Briefs

Edwards v. Gizzi

When federal agents violate your constitutional rights, the “Bivens” doctrine is the key that opens the courthouse doors: It gives you the right to sue for damages. But the Supreme Court has been restricting Bivens for years, and in June they issued a decision limiting it still further. For must of us, that doesn’t mean much—we don’t come into contact with the feds that often. But federal prisoners do, every day. And Bivens lawsuits are one of the few ways they have to enforce their constitutional right against cruel and unusual punishment.

This lawsuit is the perfect example. U.S. Marshals broke our client’s arm for no reason. The district court dismissed his case, saying that under the Supreme Court’s recent Bivens decisions, he had no right to sue federal officials. We think that goes too far. The Supreme Court has specifically allowed federal prisoners to keep bringing Bivens claims, and lower courts should obey that ruling. We’re asking the Second Circuit to reverse the district court and hold that our client’s claim can be heard on the merits. This is a crucial test case for accountability for federal officials. Read our brief here.

Aberha v. Delafontaine

Under the Eighth Amendment, prison guards have to protect inmates from sexual assault and rape. But when our client told a guard that his cellmate had sexually assaulted him, the guard made fun of him and left him in his cell. Sure enough, later that day, the cellmate choked and raped him. Our client sued the guard for refusing to protect him. The district court denied qualified immunity, but the guard took an interlocutory appeal to ask the Ninth Circuit to end the suit. We’re representing the inmate on appeal. In our brief, we ask the court to confirm that under clearly established law, guards can’t ignore an inmate’s report that his cellmate has just assaulted him. Read our brief here.

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Accountability Decisions

And now, back to our regular programming—a somewhat monthly, slightly irreverent roundup of recent accountability decisions.

• Responding to a suicide call, cops find a man on his tiptoes, a rope around his neck, the other end tied to a basketball hoop. One of the cops tases the man; his neck goes “crunch” or “gargle,” and he dies by hanging. Fifth Circuit: Qualified immunity. (This is the same court that granted qualified immunity to an officer who set fire to a man who’d doused himself in gasoline. If you want to kill yourself in Texas, good news: The cops—and the courts—will help.)

• Woman sues her boss under the Fair Labor Standards Act. He’s a state employee, so he claims qualified immunity. District court: No dice. Fifth Circuit: Actually, yes dice—if qualified immunity even exists under the FLSA, which isn’t clear. Remand to the district court to figure that out. Judge Costa, concurring: Qualified immunity is not some “brooding omnipresence in the sky.” It doesn’t automatically apply anytime you sue a government official.

• If a government official does something that’s both unconstitutional and outside the scope of their duties—say, if a “permit officer” pulls someone over—can they claim qualified immunity? Fifth Circuit: No.

• Officer pulls over a pregnant woman for invalid plates, gives her a hard time, and threatens to arrest her. She calls her dad to come pick her up. Turns out her dad and the officer have old beef. The dad swears at the officer. The officer swears back. Then he tases the dad, pounces on him, delivers a variety of punches and kicks, and tases him a couple more times for good measure. Qualified immunity? Sixth Circuit: No, you can’t beat the daylights out of someone for swearing at you. Especially not when you “likewise display a penchant for profanity.” Qualified immunity denied.

• Ordinarily, parties can’t appeal a case until there’s a final judgment, but the Supreme Court has created a special rule for mid-case “interlocutory” denials of qualified immunity: Officials can appeal such orders, if their appeal turns on an issue of law. And the Seventh Circuit is sick and tired of reminding lawyers not to dispute the facts in such interlocutory appeals.

• Shoplifter, facing arrest, makes a dash for the exit. One officer grabs him, and he lays a hand on her arm. In response, another officer lifts him into the air and bodyslams him to the ground with enough force to break his skull, causing permanent brain damage. A store employee likens it to a “professional wrestling” move. Eighth Circuit: The officer used excessive force. But because the Supreme Court has been super strict on qualified immunity lately, he gets qualified immunity.

• Say a community college professor administers the following quiz: “True or false: Terrorism is encouraged in Islamic doctrine and law.” Say he forces Muslim students who don’t believe their religion encourages terrorism to take this quiz and answer ‘True’ or suffer a lower grade. Any constitutional problem? We’ll never know, because two-thirds of this Ninth Circuit panel says the professor gets qualified immunity either way. 

• Is it reasonable for a prison guard to stop a beatdown by shooting rubber bullets at the victim, who’s not fighting back? It’s not clear, says the Ninth Circuit, so the guard gets qualified immunity.

• We’ve sighted a rare bird indeed: An Eleventh Circuit reversal of a district court decision granting qualified immunity. Cops go to arrest a man at his girlfriend’s apartment. He points a gun at them; they fire dozens of rounds at him; he falls to the floor. They keep shooting. Then they toss a flashbang at him to check if he's alive. He doesn’t react. The officers claim that’s when they stopped shooting at him. But in a bystander’s video, gunfire is audible after the flashbang. District Court: Qualified immunity anyway. Eleventh Circuit: No. Shooting a person who’s unconscious is clearly excessive force.

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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 #19

Welcome to the 19th issue of Clearly Established, a somewhat monthly, slightly irreverent roundup of recent accountability decisions. Let’s dive right in.

• Man goes out of town and asks police to visit his wife for a welfare check. Cop visits wife, asks if she’s lonely, comments on her breasts, threatens to ticket her for having a bong, and ultimately coerces her into exposing herself while he “masturbated to ejaculation in front of her.” District court: He didn’t physically touch her, so he didn’t violate the constitution. Fifth Circuit: That’s not how this works. This is a constitutional violation—and an obvious one at that, so no qualified immunity.

• Texas Governor Greg Abbott bans school districts from imposing mask mandates. Do severely disabled kids have standing—basically, some “skin in the game”—to seek an injunction against enforcement of that ban? Fifth Circuit (over a vigorous dissent): No. Just because you’re at high risk for severe illness if you get covid doesn’t mean you have enough skin in the game to sue over a ban on mask mandates. Dissent: This isn’t a simple “fear of covid” case. This is a disability-discrimination case, and we have laws prohibiting discrimination on the basis of disability.

• Texas denies religious group’s request to hold religious gatherings. After the group sues, Texas institutes a new policy allowing them to apply for a congregation—but never actually permits them to congregate. Texas: This new policy means the group’s suit is moot. Fifth Circuit: Not by a long shot. Judge Ho, concurring: Let’s add mootness to the list of “unholy” doctrines I complained about back in May. Together, these doctrines mean “no damages for past injury, due to immunity—and no injunction to stop future injury, due to mootness. Heads I win, tails you lose.” [We’re guessing the judge hired a very libertarian clerk this year, and we expect this rash of good concurrences to subside come September. —ed.]

• A witness in a federal sex-trafficking investigation punches a woman and threatens her with a knife. When police arrive on the scene, the witness calls her handler—a local cop who’s part of the federal task force—who lies to the cops on the scene and gets the victim arrested for witness tampering. The victim spends years in federal custody before she’s acquitted. Once she’s out, she sues the cop. Eighth Circuit (2020): You can’t sue her as a fed; feds have broad immunity from civil-rights suits. (See our last issue for more on this.) Eighth Circuit (2022): And you can’t sue her as a local cop, either, because she was cross-deputized and acting as a fed.

• Hawai‘i building inspector repeatedly investigates and prevents work on the renovation project of a Japanese homeowner who has hired white contractors. Inspector to homeowner’s neighbors: “I keep shutting them down but fuck these Haoles don’t listen, that’s why I try keep it local.” Homeowner sues under a little-used statute, 42 U.S.C. § 1981, that prohibits racial discrimination by public officials. Inspector: But his project really did violate code! Ninth Circuit: Doesn’t matter; “a law may be fair on its face but grossly unfair in its enforcement.” If you enforced the code more vigorously against him because he’s a Haole, you’ll have to pay up.

• 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. In California, the crime of resisting arrest includes the element that the arrest was lawful; in other words, if a jury convicts you of that crime, it must necessarily have decided that the arrest you resisted was lawful. So if a cop uses excessive force to make an arrest and the arrestee sues the cop, what’s the logical next move? Prosecute the arrestee for resisting arrest! If you get a guilty verdict, boom, the excessive-force lawsuit is Heck barred. And that’s exactly what happened in this Ninth Circuit case.

• Journalists attempt to film a police encounter in Lakewood, Colo. One officer obstructs the camera, shines a light into it so it can’t record anything else, and eventually gets in his cruiser and drives directly at the journalists, swerving away at the last minute. Qualified immunity? Tenth Circuit: No. The First Amendment protects the right to film police performing their duties in public. And—importantly—even though we’ve never said so before, six other circuits have, so that right was clearly established.

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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 #18

Clearly Established #18

Welcome to the 18th issue of Clearly Established, a somewhat monthly, slightly irreverent roundup of recent accountability decisions. Let’s dive right in.

• First off, in Supreme Court news: In between decimating reproductive rights and kneecapping the EPA, the Supreme Court found time in June to expand immunity for federal officials. You read more on this Twitter thread or listen to our ED talk about the case on this Bloomberg podcast, but the short version is this: It’s harder than ever to sue federal officials for violating your constitutional rights.

• Prison warden bans group prayer outside the chapel, which is rarely available during the five times a day that Muslims must pray. Muslim inmates sue for violation of their free-exercise rights. Qualified immunity? Not a chance, says the Second Circuit. “We can discern no asserted governmental interest—much less a compelling one—for the requirement that Plaintiffs engage in group prayer only in the prison chapel.”

• In this Third Circuit decision, a prosecutor is denied absolute immunity for opening a retaliatory investigation into and threatening a detective. Huzzah! we say. But we also note that this rare instance of a prosecutor losing absolute immunity comes in a case where the prosecutor is across the v. from a cop. And the alleged retaliation was because the cop was trying to obstruct a fellow cop’s indictment for murder. So: huzzah, but a muted huzzah.

• Officers arrest a man for public intoxication. He spends the next 34 hours overdosing on a jailhouse floor—vomiting, thrashing, convulsing, and calling for help. No help arrives. Jail guards, noticing he’s dead: “Oh well.” Even the Fifth Circuit can’t bring itself to give these officers qualified immunity.

• So how far does that federal immunity (see the Supreme Court case at the top) extend? Not as far as officers who lie to a judge to procure a warrant, the Seventh Circuit holds, but such officers can still get absolute prosecutorial immunity and qualified immunity.

• St. Louis officers kill a man by holding him prone and putting pressure on his back for 15 minutes. (If that sounds familiar, it should.) Eighth Circuit (2020): If a detainee offers resistance, no constitutional violation in holding him prone. Supreme Court (2021): The guy was handcuffed and shackled, and they kept him prone for 15 minutes. Try again. Eighth Circuit (2022): Fine. Qualified immunity instead. (Bonus: the court also gives the City of St. Louis something that looks an awful lot like qualified immunity, even though the Supreme Court has held for decades that municipalities can’t get qualified immunity.)

• If the government orders non-critical businesses to shut down in response to a global pandemic, is “private property be[ing] taken for public use”? Eighth Circuit: We find no caselaw clearly establishing that proposition. In fact, we’re not even sure you can sue an individual government official for a taking, as opposed to suing the government itself.

• In 2018, the Supreme Court overruled forty years of precedent and held that public-sector unions can’t collect “agency fees” from non-union public employees. What about fees taken before 2018—can non-union employees get a refund from their public employers? No, says the Ninth Circuit, because public employers are entitled to “good faith” immunity for actions taken in reliance on Supreme Court precedent. Judge Bumatay, concurring reluctantly: Inventing “newfangled” immunities is “wrongheaded” and “brazen.” (We agree, and we searched his concurrence for similar skepticism of qualified immunity—strangely, we came up empty.)

• A cop stops a biker (whose crime is biking without a front light) by cutting him off with his SUV. The biker goes flying, hits the SUV head-first, and loses consciousness. Any Fourth Amendment concerns? No “clearly established” ones, says the Ninth Circuit. Judge Christen, concurring: Fine, but can we at least agree that cutting off a bike with an SUV is deadly force?

• In this “swatting” case, the Tenth Circuit disproves our general rule that when a court uses the word “tragic” at the beginning of an opinion, it’ll grant qualified immunity at the end. No qualified immunity for shooting the swattee moments after he exited his house, unarmed, with his hands up.

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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 #17

Welcome to the 17th issue of Clearly Established, a somewhat monthly, slightly irreverent roundup of recent accountability decisions.

This issue is a special one—it marks one year of operation for Public Accountability! In one year, we’ve won two cases and lost zero. We got $750,000 for one of our clients. We made it harder for officials to file frivolous appeals when they lose qualified immunity. We strengthened and clarified important constitutional rights, including the right to protest. And we’ve got more good work in the hopper. So before we dive in, a request: When you're done reading what what the federal courts have been doing with anti-accountability doctrines, please hit that “Donate” link at the bottom and toss what you can our way. We defend civil rights, and we can’t do it without your help.

And with that, on to the cases!

• Federal public defender, sexually harassed by her superiors and fired after reporting it, brings Bivens claim. The Supreme Court has severely curtailed new Bivens claims, but it long-ago greenlit claims for sex discrimination in federal employment. So can this federal employee’s sex-discrimination lawsuit go forward? Fourth Circuit: Not a chance. That case was against a congressman, while this is against employees of the federal judiciary. Totally different. No Bivens claim.

• In this entertaining cop v. cop lawsuit out of the Fifth Circuit, we’re sorely tempted to say “let them fight” and call it a day. But we reckon it’s not an accident that the Black cop gets guns pointed at him and the white cop gets qualified immunity. C’mon now.

• Cop 1 tells a car full of underage kids fleeing a party to stop. Kids accelerate past him. As the car goes by, cop 2 shoots the passenger in the head. Texas courts: Yep, that’s murder. Fifth Circuit: No qualified immunity. Ho, J., dissenting: The cops say they felt threatened by a car driving away from them, and who are we to judge?

• Cops fail to solve the brutal murder of a high-school student in Livingston Parrish, La. Two years later, a jailhouse informant fingers a man they’d already ruled out. His account is inconsistent and contradicts known facts about the crime, but the cops are undeterred. They concoct a story “out of whole cloth,” arrest a high-school kid, and intimidate him into adopting their fabrication. After the man spends sixteen years in prison, the Supreme Court overturns his conviction. He sues the cop and the prosecutor, who claim absolute prosecutorial immunity. Fifth Circuit: Manufacturing evidence is more cop-like than prosecutor-like, so no immunity for you.

• Judge Ho has a dubitante dissent in that last case that merits a bullet point all of its own. Because of precedent, he says, he’d grant the defendants absolute immunity. But he’s not happy about it: “Worthy civil rights claims are often never brought to trial. That’s because an unholy trinity of legal doctrines—qualified immunity, absolute prosecutorial immunity, and Monell—frequently conspires to turn winnable claims into losing ones.” Preach, Judge Ho. [Now there’s a sentence I never expected to put in this newsletter. —ed.]

• Man creates a satirical Facebook page to mock his local police department. His satirical page offers “free abortions” and a “Pedophile Reform event.” The cops, naturally, get big mad and arrest the man. He wins at his criminal trial and then sues for violation of his First Amendment rights. Sixth Circuit: We’re not sure your Facebook page was speech, but we’re damn sure the officers get qualified immunity. Case dismissed.

• After a stabbing, Des Moines police tell the victim’s family they’ll take them to the hospital. Instead, they take the family members to the stationhouse and question them for over three hours against their will. In the meantime, the victim dies. Constitutional violation? Clearly established? Eighth Circuit: Yep and you bet. Stras, J., concurring: “Rarely do rights come more clearly established.”

• Over the course of about 14 hours, during which he demonstrates plenty of obvious visible symptoms, a man in jail suffers a ruptured aorta and dies. Ninth Circuit: “We must determine whether the level of medical care was unconstitutional, not whether it was so substandard that it may have cost Russell his life.” Perhaps you find it strange, reader—as we do—that the two questions are not the same. But in the end, the Ninth Circuit still denies qualified immunity to two out of the three defendants. To trial they must go.

• For years, prison officials refuse to treat a man’s prostate issues. When he’s transferred to a different facility, medical staff there finally order emergency treatment. They end up draining 6 liters of urine from his bladder. (The human body contains 5 liters of blood.) Was the “treatment” officials rendered at the first facility clearly unconstitutional? Officials: No case says we can’t adopt a “wait and see” approach. Ninth Circuit: “At some point ‘wait and see’ becomes deny and delay.” 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 #16

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.

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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.

We just won our first appeal.

We just got a decision in Senn v. Smith, the case we argued last week. We won. Linda Senn sued Deputy Smith because he gratuitously pepper-sprayed her at a protest. Today, the Ninth Circuit ruled that he doesn’t get qualified immunity for that. You can read the decision here.

What does this decision mean for the bigger picture? It’s a small but important crack in the firmament of qualified immunity. Smith argued strenuously that he had qualified immunity because no single previous case involved all the same factual circumstances as this one. That’s a dangerous way to read the doctrine: History never repeats itself exactly, so there will always be some way to distinguish the facts of an earlier case. (For example, one of our key cases involved a very similar use of force against a very similar victim—but it wasn’t at a protest, so Smith said it was irrelevant.) If the court had agreed with Smith, cops would almost always be able to use qualified immunity to escape accountability.

We told the court he was wrong: What we needed was a “body of relevant case law.” As long as previous cases put together told Smith his use of force violated the Constitution, we could overcome qualified immunity. The Ninth Circuit agreed, and it held that we easily met that bar. It said that under its earlier cases,

every reasonable officer had notice at the time of the incident that, if reasonable alternatives are available, even in somewhat chaotic circumstances, he or she cannot pepper-spray a person who has committed no serious crime and who is not a threat to anyone’s safety.

So no qualified immunity for Deputy Smith.

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We’re incredibly proud of this result. And we couldn’t have achieved it without your support. We don’t charge our clients fees—we run on contributions from people like you. So if you’re able, please donate to help us fight for your civil rights.

Clearly Established #15

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.

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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.

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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.

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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 #14

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.

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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 #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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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 #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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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.