Clearly Established #18
Week of July 8, 2022—Bivens, free exercise, takings, “good faith” immunity, and a SWATting.
Clearly Established #18
Welcome to the 18th issue of Clearly Established, a somewhat monthly, slightly irreverent roundup of recent accountability decisions. Let’s dive right in.
First off, in Supreme Court news: In between decimating reproductive rights and kneecapping the EPA, the Supreme Court found time in June to expand immunity for federal officials. You read more on this Twitter thread or listen to our ED talk about the case on this Bloomberg podcast, but the short version is this: It’s harder than ever to sue federal officials for violating your constitutional rights.
Prison warden bans group prayer outside the chapel, which is rarely available during the five times a day that Muslims must pray. Muslim inmates sue for violation of their free-exercise rights. Qualified immunity? Not a chance, says the Second Circuit. “We can discern no asserted governmental interest—much less a compelling one—for the requirement that Plaintiffs engage in group prayer only in the prison chapel.”
In this Third Circuit decision, a prosecutor is denied absolute immunity for opening a retaliatory investigation into and threatening a detective. Huzzah! we say. But we also note that this rare instance of a prosecutor losing absolute immunity comes in a case where the prosecutor is across the v. from a cop. And the alleged retaliation was because the cop was trying to obstruct a fellow cop’s indictment for murder. So: huzzah, but a muted huzzah.
Officers arrest a man for public intoxication. He spends the next 34 hours overdosing on a jailhouse floor—vomiting, thrashing, convulsing, and calling for help. No help arrives. Jail guards, noticing he’s dead: “Oh well.” Even the Fifth Circuit can’t bring itself to give these officers qualified immunity.
So how far does that federal immunity (see the Supreme Court case at the top) extend? Not as far as officers who lie to a judge to procure a warrant, the Seventh Circuit holds, but such officers can still get absolute prosecutorial immunity and qualified immunity.
St. Louis officers kill a man by holding him prone and putting pressure on his back for 15 minutes. (If that sounds familiar, it should.) Eighth Circuit (2020): If a detainee offers resistance, no constitutional violation in holding him prone. Supreme Court (2021): The guy was handcuffed and shackled, and they kept him prone for 15 minutes. Try again. Eighth Circuit (2022): Fine. Qualified immunity instead. (Bonus: the court also gives the City of St. Louis something that looks an awful lot like qualified immunity, even though the Supreme Court has held for decades that municipalities can’t get qualified immunity.)
If the government orders non-critical businesses to shut down in response to a global pandemic, is “private property be[ing] taken for public use”? Eighth Circuit: We find no caselaw clearly establishing that proposition. In fact, we’re not even sure you can sue an individual government official for a taking, as opposed to suing the government itself.
In 2018, the Supreme Court overruled forty years of precedent and held that public-sector unions can’t collect “agency fees” from non-union public employees. What about fees taken before 2018—can non-union employees get a refund from their public employers? No, says the Ninth Circuit, because public employers are entitled to “good faith” immunity for actions taken in reliance on Supreme Court precedent. Judge Bumatay, concurring reluctantly: Inventing “newfangled” immunities is “wrongheaded” and “brazen.” (We agree, and we searched his concurrence for similar skepticism of qualified immunity—strangely, we came up empty.)
A cop stops a biker (whose crime is biking without a front light) by cutting him off with his SUV. The biker goes flying, hits the SUV head-first, and loses consciousness. Any Fourth Amendment concerns? No “clearly established” ones, says the Ninth Circuit. Judge Christen, concurring: Fine, but can we at least agree that cutting off a bike with an SUV is deadly force?
In this “swatting” case, the Tenth Circuit disproves our general rule that when a court uses the word “tragic” at the beginning of an opinion, it’ll grant qualified immunity at the end. No qualified immunity for shooting the swattee moments after he exited his house, unarmed, with his hands up.
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.
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