Athul K. Acharya 3/11/22 Athul K. Acharya 3/11/22

Clearly Established #15

Week of March 11, 2022—four different types of immunities, the PLRA, Bivens, and more. Plus: Our first oral argument!

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.

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.

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.

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.

Athul K. Acharya 9/28/21 Athul K. Acharya 9/28/21

Clearly Established #9

Week of September 28, 2021—Our first merits brief!

Welcome to the ninth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of recent accountability decisions. It’s been a minute since our last update, but we’ve got a good excuse: We just filed our very first merits brief! (And we’ve got another one coming in a couple of weeks.) Read on for more on that, plus our usual roundup of recent cases.

Senn v. Smith

On Friday, we filed our merits brief in Senn v. Smith, a protest case from Portland, OR. (From 2016, not 2020—Portland’s protests have a rich history.) In short: Our client, Linda Senn, was at City Hall to testify against a police-union contract. One cop pushed her down some steps; as she stumbled backwards, she touched his arm briefly to steady herself. In the district court’s words, her contact with the officer was “glancing and debatable.” But, claiming she was pulling the officer down the steps, another cop blasted her in the face with pepper spray. You can see it in the video to the right (skip forward to 23:20).

The district court denied qualified immunity, but the cop took an appeal to the Ninth Circuit. The first issue is whether he’s even allowed to appeal so early in the case. This is a fairly technical issue, but the short version is: (1) yes he can appeal, because the Supreme Court has said that qualified immunity is special, but (2) he’s stuck with the district court’s view of the facts. Of course, he doesn’t like the district court’s view of the facts—that Linda’s contact with the officer was insignificant—so he wants the appeals court to take another look. We ask the court to decline. And, on the district court’s view of the facts, of course reaching out for two seconds to steady yourself after a cop pushes you downstairs doesn’t justify the use of pepper spray. That’s even clearly established. So the cop doesn’t get qualified immunity.

You can read the full version of these arguments here. And if you’d like to support our work in this case and others like it, you can do so here.

The Roundup

It’s been a couple of months since our last issue, so here are just some of the highlights—or lowlights—since then.

The Supreme Court is considering whether to take a case asking if people have a “clearly established” First Amendment right to record police officers. Every court of appeals to have addressed the question has decided that people do have a right to record the cops, but some of them—including the Tenth Circuit here—have declined to say that the rule is clearly established. The Supreme Court has recently been breathing new life into the doctrine that in an “obvious case,” a rule can be clearly established without a case directly on point. It should take this case, apply that doctrine, and hold that people obviously have a clearly established First Amendment right to record the police.
Trans woman with “openly female” presentation (her words, quoted by the court) is sentenced to federal prison for tax fraud. Prison officials house her with 11 men in a room with no lock. Then they move her to a cell with someone convicted of a sexual offense. Then they reassign him, but leave her in the cell, which has no lock and is the furthest cell from the officer’s station. All along, she’s been filing grievances and submitting requests to be placed somewhere safer, but prison officials drag their feet. Eventually, her fears become real: In the middle of the night, an inmate enters her cell and rapes her. Third Circuit: The Supreme Court may be shrinking the Bivens doctrine (primer here) down to nothing, but it’s not nothing yet. The woman may sue.
Jail guards grab a compliant, unresisting inmate, cuff his hands behind his back, and clock him on his head. It’s caught on vid eo. Qualified immunity? Third Circuit: Come on. It’s been clearly established for decades that you can’t just hit an unresisting inmate for no reason.
Police officer encounters an elderly man experiencing a diabetic emergency, decides (supposedly) that he is a danger to himself, and therefore suffocates him to death. Seventh Circuit: No qualified immunity.
Rule of thumb: If a court says a death is “tragic” in the introduction, it’ll spend the rest of the opinion explaining why no one will be held accountable. The Ninth Circuit follows that rule here, holding that the law has no remedy for the extrajudicial killing by a U.S. Border Patrol agent on U.S. soil of a Mexican national. The decision features a veritable rogues’ gallery of accountability villains—sovereign immunity, harsh application of a statute of limitations, and the incredible shrinking Bivens doctrine all make an appearance.
Like qualified immunity, the “standing” doctrine went from obscure legalism to cocktail conversation over the course of 2020. But what, exactly, is standing? Put simply, it is the requirement that a person bringing a lawsuit have been injured by something the defendant did. In many ways, it has metastasized into yet another way for courts to keep meritorious claims from being heard. (And also, we must admit, some meritless claims.) But here’s a case that illustrates the basics of how it works: Nonprofit brings First Amendment lawsuit challenging local campaign-finance disclosure laws. It claims that it suffers a chilling effect on its exercise of its right to free speech about local elections. Fair enough, that looks like a First Amendment claim, but wait—the nonprofit is also very clear that it “intends to continue speaking” about local elections. Tenth Circuit: Seems like you haven’t actually suffered any chilling effect! No injury, no standing; case dismissed.
Prison guard forces Muslim inmate to shave his beard, even though he permits adherents of other faiths to take advantage of the prison’s religious-exemptions policy. Free exercise violation? Tenth Circuit: You betcha. And we might not have said so explicitly in an earlier case, but—citing that “obvious case” doctrine—you don’t get qualified immunity if the constitutional violation, like this one, is obvious.

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.