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.

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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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 #8

Welcome to the eighth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of recent accountability decisions. We took a couple of weeks off to work on an important brief in Index Newspapers v. City of Portland, but now we’re back with a bonanza edition: In addition to our usual qualified immunity fare, we’ve got a few new accountability doctrines to introduce you to. Let’s dive right in.

• Turkish security forces beat up anti-Erdoğan protesters in Washington, D.C. The protesters sue the Republic of Turkey. Turkey: We get immunity under the Foreign Sovereign Immunities Act. D.C. Circuit: Nope. Turkey: Political question doctrine? D.C. Circuit: Also no. Turkey: Uhh, international comity? D.C. Circuit: You can guess where this is going.

• Assertion: Federal prison guard put inmate in the hole for sixty days to retaliate against him for filing a grievance and a lawsuit. District court: Even under the strict confines of the Bivens doctrine (see here for a quick explainer), I can hear this inmate's First Amendment claim. Sixth Circuit: And since the decision below just denied summary judgment and wasn’t a final decision, we have no jurisdiction to hear the guard’s appeal. The Supreme Court may have said that qualified immunity is a weird exception to the final-decision rule, but Bivens ain’t.

• Here’s a case that illustrates why conservatives (should) also care about holding public officials accountable—why, as we explained in our recent amicus brief, “a cross-ideological consensus has begun to emerge that the qualified immunity doctrine is broken.” The University of Iowa requires student organizations to comply with its antidiscrimination policy. But in order to permit groups like the African Student Association, the Christian Legal Society, and the Feminist Majority Leadership Alliance to exist, it allows groups to base membership and leadership on certain traits, including race, sex, religion, and ideology. So can it deregister a Christian organization for requiring its leadership to abide by Evangelical Christian teachings on homosexuality? Eighth Circuit (March): No. Clearly established. No qualified immunity. Eighth Circuit (July): Did we stutter?

• Cop tells man to get on the ground. Man gets on his knees, hands in the air. Cop: “All the way to your stomach!” Man: “On my stomach?” Cop, frustrated by the evident failure to communicate, takes a running start, tackles the man, and slams his face into the pavement, breaking his jaw in several places. Cop, in court: I had to do it—he was being noncompliant! Eighth Circuit: Not even close. Even under the exceptionally deferential standards of qualified immunity, it was clearly established that you can’t use that kind of force on someone who’s not resisting, not a threat, and not a flight risk. This case goes to a jury.

• Here’s a judge-made doctrine that’s just as bananas as qualified immunity but doesn’t get nearly as much attention: the “Heck bar.” In essence, the doctrine is this: If a state court convicts you of a crime, and winning your federal civil-rights lawsuit would imply that the conviction was invalid, the federal court can’t hear your case. This next decision, out of the Ninth Circuit, is a perfect example.

  A 250 lb officer slams a 105 lb, 18-year-old girl into the ground, rubs her face in gravel, and arrests her. The DA initially wants nothing to do with the case, but once the girl sues the officer for excessive force, the DA charges her with resisting or obstructing a peace officer. She’s convicted by a jury. One element of resisting or obstructing is that the officer must have been “lawfully engaged in the performance of his duties”—which includes not using excessive force. So now, if the girl wins her excessive-force claim, that would mean the officer wasn’t lawfully performing his duties, and she shouldn’t have been convicted. Which, under the Heck bar, means the girl’s excessive-force case has to be dismissed. As the dissent notes, this decision is “likely to encourage the very sort of police overreaction to minor criminal behavior that has led to public outcry and calls for reform in recent years.”

• In a refreshingly straightforward opinion, the Tenth Circuit holds that a prison's 30-day ban on the use of tobacco in Native American services and indefinite ban on such services at all violated a Native American prisoner’s clearly established First Amendment rights.

• Most of the doctrines we focus on at Public Accountability are judge-made, but Congress has enacted its share of accountability-limiting laws. One of the worst is the Prison Litigation Reform Act, in which Congress did its very best to ensure that prisoners suffering at the hands of their jailers receive no relief from the federal courts. And this month, the Eleventh Circuit took the PLRA's already-harsh terms and made them a little more draconian, holding that in prison cases, preliminary injunctions—which are intended to maintain the status quo until a trial on the merits—can last no longer than 90 days. It’s practically unheard of to get a case to trial that quickly, which means that in most cases, prison guards can wait 90 days and then go right back to violating prisoners’ rights.

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That’s it for this issue. Please feel free to send this newsletter to any friends or family who might find it interesting. If you got this from a friend, you can sign up to receive future issues here.

When we’re not writing this newsletter, we litigate cases in the federal courts of appeals. If you want to support that important work, you can do so here.

Thanks for reading.