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—

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