Clearly Established #3

Welcome to the third issue of Clearly Established, a somewhat weekly, slightly irreverent newsletter rounding up some of the week’s interesting accountability decisions. Let’s dive right in.

• Last week, the Fifth Circuit held that prisoners in the federal system can’t sue for retaliation under the First Amendment. (That’s because of the Bivens doctrine; see last week’s newsletter for a quick explanation.) This week, in response to another prisoner’s claim that federal prison guards retaliated against him for filing grievances, the Fifth Circuit reaffirmed that holding—and added that even if the prisoner could sue, the guards would be entitled to qualified immunity. The not-so-rare Public Accountability double-whammy.

• Reader, sit down for this one (cw: racial slurs). White officer investigates claim that Black officer shot an air rifle at a neighbor’s car. While searching Black officer’s apartment, white officer calls Black officer a “porch monkey,” says that he “lived like a n—,” and declared that “we’re going to get this n—.” His report recommends that Black officer be fired, omitting several facts that exculpate Black officer—such as that the shots could not physically have come from Black officer’s apartment. Black officer is fired; naturally, he sues.
  White officer: I just wrote a report—I had no power to fire the guy. Seventh Circuit: You used your superiors as a “cat’s paw” for your racial animus, and for that you can be held liable. White officer: This cat’s paw theory of liability wasn’t clearly established in 2011, when all this happened. Seventh Circuit: That’s not how this works. By 2011, “a veritable river of precedents” clearly established the Black officer’s right not to be fired for being Black. You violated that right, and that’s what matters here—not whether you knew you could be held civilly liable. No qualified immunity for you.

• Police officers in Bellingham, Wash., tase trans woman and send her to the hospital. At the hospital, while she’s unconscious, they photograph her bare torso and thigh. Woman sues, alleging an unlawful search under the Fourth Amendment; officers claim qualified immunity. District court: You say you just took photos of her in plain view, but her gown is arranged differently in each photograph. Curious! No qualified immunity for “lift[ing] clothing” to search someone without a warrant or an exception. Ninth Circuit: Just so. It has “long been established” that such a search violates the Fourth Amendment, and we don’t need a case with identical facts to deny qualified immunity here. (Bonus transphobia: The officers claimed they’d done nothing wrong because they’d merely photographed a “man’s torso.” Neither court took the bait.)

• Allegation: Sheriff’s deputy in Los Angeles, Calif., coerces confession from Cameroonian man by threatening to send him and his entire family “back to the jungle.” Naturally, deputy did not administer Miranda warnings first. Violation of the Fifth Amendment? District court: Maybe, but you can’t sue for that. Ninth Circuit (January): Oh yes you can. Ninth Circuit (June): And we see no need to revisit that decision en banc. The Supreme Court may never have called Miranda a “constitutional right” in so many words, but it did strike down an Act of Congress purporting to abolish Miranda—that’s constitutional enough for us.

One other thing: A new podcast, Unaccountable, tells the stories of ordinary citizens whose rights have been violated and whose claims for redress have been stymied by qualified immunity. We recommend it.

---

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

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

Thanks for reading.

Clearly Established #2

Welcome to the second issue of Clearly Established, a somewhat weekly, slightly irreverent newsletter rounding up some of the week’s interesting accountability decisions.

Today, in addition to qualified-immunity decisions, we have a couple of Bivens cases, so here’s a quick explainer. If a state agent violates your federal rights—say, your right against excessive force—a statute called 42 U.S.C. § 1983 gives you the right to sue in federal court. This is called a “right of action,” and it’s separate from the substantive right that was violated. Think of it as the key that opens the courthouse doors. There’s no analogue to § 1983 for federal agents, but in a 1971 case called Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court said that the Constitution itself gives you the right to sue federal agents for violating your constitutional rights.

Problem is, ever since then, the Supreme Court and the lower federal courts have been cutting Bivens down to nearly nothing. As we’ll see.

• Federal prisoner files grievances against prison guards. Guards, in retaliation, drastically reduce his food portions and contaminate what little they allow him to have with feces and urine. Every day. For nine months. District court, missing the point: He had no right to “hav[e] a grievance considered and resolved to his satisfaction.” Fifth Circuit, getting the point but preferring to ignore it: The question is whether he had a right not to have feces and urine put in his food in retaliation for filing grievances, which are protected speech under the First Amendment—but we don’t have to answer that question, because under Bivens, he had no right to sue in the first place. Case dismissed.

• Son calls 911 for help with 81-year-old mother, who is “upset and combative.” Officer arrives, sees woman brandishing a garden rake. Woman walks towards officer, yells at him to get off her land. Officer: “You better stop.” Woman: “I’m not gonna stop.” Officer tases her from 10-12 feet away. Sixth Circuit: Officer reasonably perceived that an 81-year-old woman brandishing a rake at that distance posed an imminent threat of harm. Qualified immunity. (We wonder what Justice Alito, who just last week waxed eloquent about how police need to be able to enter homes without a warrant to check in on elderly women, would think about this case.)

• Oregon prisoner, a Nation of Islam adherent, wishes to participate in Ramadan. Prison officials: You don’t go to weekly prayer meetings, so you don’t get to do Ramadan. Prisoner: The Nation of Islam does not require weekly prayer meetings. Prison officials: Well, we do; you'll eat during the day, like everyone else. District court: Since you didn’t go to weekly prayer meetings, a reasonable officer could have thought you weren’t sincere in your religious belief. Qualified immunity. Ninth Circuit: That’s not how this works; the government doesn’t get to decide that there’s only one way to sincerely be a Muslim. Reversed.

• Innkeeper whose property touches the U.S.-Canada border is also a confidential informant for Border Patrol. Agent stops innkeeper in the street to ask him for information; innkeeper relays that a Turkish guest is arriving that day from New York. No indication that the guest, who’s already been through customs and immigration, is in the country unlawfully. Agent nevertheless tails the guest to the inn and begins interrogating him. Innkeeper tells agent he is trespassing and asks him to leave. Agent shoves innkeeper to the ground, injuring his back. (It turns out that the Turk is here legally after all.) Innkeeper complains to agent’s supervisor. Agent then prevails upon IRS, Social Security Administration, and various state agencies to investigate innkeeper, which they do. Excessive force and unconstitutional retaliation? District court: Can’t say; no First or Fourth Amendment claims under Bivens when “national security” is involved. Ninth Circuit (quoting the Supreme Court): National security is not a “talisman” to “ward off inconvenient claims.” Back you go for a determination on the merits. (Bonus: At pages 29-30, Judge Owens directs the reader to his 1997 student note, which proposes some “admittedly pie in the sky solutions.”)

A couple other points of interest:

• You might remember the case of Caron Nazario, a Black and Latino army officer who police in Windsor, Va., pulled over for driving with temporary tags—not a crime!—and then pepper sprayed and assaulted. Videos of the encounter went viral in April, and the officer filed a federal lawsuit. Well, now the officers have claimed qualified immunity. Watch this space for updates. (Mother Jones has reporting here, as part of a broader story on how limiting qualified immunity went from a bipartisan issue to being strongly opposed by some Republicans. It’s worth a read.)

• The New York Times editorial board has come out in favor of ending qualified immunity. We confess, dear reader, that we did not expect to convince them so quickly—less than a week after our inception!—but we’re glad they’ve come around.

That’s it for this week. Thanks for reading.