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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Clearly Established #1

Welcome to the first issue of Clearly Established, a somewhat weekly, slightly irreverent newsletter rounding up some of the week’s interesting accountability decisions. First, a quick recap on qualified immunity, or QI. If you sue a police officer or other government employee for violating your rights, the officer can raise QI as a defense. Under QI, the officer gets to escape liability even if he or she violated your rights, unless you can prove that the right was “clearly established.” This TikTok meme does a remarkably good job of summing it up.

All three decisions this week highlight two fundamental problems with qualified immunity: First, courts require super-specific precedent to say that a right is “clearly established.” Unless the court has previously seen a case with almost identical facts, the defendant gets qualified immunity. And second, courts can actually get rid of a case by saying “any right you may or may not have had wasn’t clearly established”—they don’t even have to say whether the right exists! So when the next case comes around, the right still isn’t clearly established, and the next defendant gets qualified immunity too. And so on. See for yourself.

• Cop pulls over driver in Shreveport, La., for broken brake and license plate lights. Driver drives for two minutes into a neighborhood and stops in a driveway. Cop searches driver, tells him to put his hands behind his back, but doesn’t tell him he’s under arrest. As driver is complying, three more cops arrive, slam him to the ground, kick him and punch him repeatedly, and put him in handcuffs. Uh oh! Multiple Fifth Circuit cases say that “violently slamming an arrestee who is not actively resisting arrest” is a constitutional violation. District court: No qualified immunity. Fifth Circuit: There’s no case says that it’s a constitutional violation if the arrestee drove two minutes into a residential area, turned out to be kinda big, and got mouthy about being arrested for broken lights. Qualified immunity; case dismissed. (Reason reports on this case here.)

• California Highway Patrol policy requires officers to “relinquish on demand” any “work stored on any type of electronic device.” Investigating an officer’s relationship with a confidential informant, CHP demands the officer’s personal cellphone. But instead of searching for messages with the CI, CHP downloads everything on his phone! Constitutional violation? Supreme Court (2014): Because “a cell phone search would typically expose to the government far more than the most exhaustive search of a house,” cell phones get special Fourth Amendment protection. Ninth Circuit (2021): No case has specifically said that that protection extends to the workplace, so qualified immunity & case dismissed. And we’re not going to specifically say so in this case, either.

• Nevada state prison has a policy of listening in intermittently on prisoners’ calls with their attorneys to make sure the calls are “legal in nature.” Prisoner: I have a Fourth Amendment right to confidential communications with my lawyer! Ninth Circuit: Not a clearly established right, you don’t. Case dismissed. And we’re not going to clearly establish any such right in this case, either.