Athul K. Acharya 12/22/21 Athul K. Acharya 12/22/21

One Year of Public Accountability

And Clearly Established #11

Friends and supporters,

It's been an incredible first year for Public Accountability. We formally came into existence in December 2020, but didn't officially launch until May 2021. In the eight months since then, we:

won a $750,000 settlement for an inmate who was brutally beaten in jail;
represented parents and teachers in Newberg, Oregon, who were sued by far-right extremists on the school board;
filed merits briefs in two cases in the federal courts of appeals;
filed amicus briefs in two other appeals;
published ten issues of our newsletter, Clearly Established;
were invited to discuss our work on a panel with DeRay McKesson and an episode of Your Neighborhood Black Friends;
worked on cases with both the Electronic Frontier Foundation and the ACLU of Oregon;
held two continuing legal education (CLE) courses to educate lawyers on how to fight qualified immunity;
and we have more to come in 2022!

Thank you for being part of this work and making it possible. Your support—from donating to getting out the word to simply reading our emails and cheering us on—made this all possible. If we can accomplish this much in our first year, just imagine what we can do as we move forward together.

With gratitude,
Athul K. Acharya
Founder & Executive Director
Public Accountability

PS: If you've been missing Clearly Established, read on for a little mini-issue!

Clearly Established #11

The end of the year brought a smorgasbord of unexpected new work for us here at Public Accountability, so the newsletter had to take a bit of a back seat. We'll get back to regular issues soon—we promise. But in the meantime, let's talk about that new work!

In El Paso County, CO, jail deputies brutally beat a handcuffed and incapacitated inmate, fracturing his skull. He sued them and managed to defeat two motions for qualified immunity—one without lawyers and another after he found counsel. On the eve of trial, the deputies took an appeal to the Tenth Circuit—which is where we came in. We argued that the appeal was frivolous—and won—meaning the deputies suddenly were going to have to try a case they thought they’d postponed for two years. They quickly came to the negotiating table after that. Our client walked away with $750,000, the largest excessive-force settlement in the history of El Paso County.

In Newberg, OR, far-right extremists took over the school board and banned Black Lives Matter and Pride symbols. Some parents and teachers, concerned about this new and radical direction in their schools, joined a Facebook group to discuss ways they could hold their elected school-board directors accountable. In retaliation, the Board’s conservative majority sued four parents and teachers—supposedly for “doxxing” them, even though in each case they had actually doxxed themselves. (For example: One director told the world he worked at Selectron Technologies on his campaign website, but then sued our client for repeating that information in the Facebook group.) We teamed up with the ACLU of Oregon and prominent local civil-rights lawyers to fight back. Read our anti-SLAPP motion here.

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 10/22/21 Athul K. Acharya 10/22/21

Clearly Established #10

Week of October 22, 2021—Bad QI decisions from SCOTUS; new merits brief just dropped.

We made it to double digits! Welcome to the 10th issue of Clearly Established, a slightly irreverent roundup of accountability news. This issue, we've got a new Public Accountability merits brief; two bad decisions from the Supreme Court; two good decisions from the courts of appeals; and a roundup of QI in the news. Let's dive in.

New merits brief just dropped.

The VA placed our client, a veteran, on an “order of behavioral restriction”—forbidding him from visiting the VA without police escort—just because he allegedly used swear words during a phone call. He sued the VA for violating his rights under the First Amendment. But the district court didn’t decide whether the VA had violated his right to free speech—instead, it ruled that no one could ever sue the VA under the First Amendment.

Obviously, we think the district court got it wrong, so we've asked the Ninth Circuit to reverse. You can read the full brief here. But beyond what happened to our client, this case could have major implications for individuals' ability to hold federal agents accountable for violating First Amendment rights. Watch this space for updates. And if you’d like to support our work in this case and others like it, you can do so here.

Here's what the courts have been up to.

Summer 2020: Derek Chauvin murders George Floyd. Protests against police brutality erupt nationwide. Activists correctly identify qualified immunity as a key barrier to holding police accountable. Editorials in the nation’s major newspapers call for an end to qualified immunity. Supreme Court (2020): Maybe we should rethink qualified immunity? Supreme Court (2021) (in two opinions): Just kidding. Qualified immunity is back, baby!

Detroit man is imprisoned for more than two decades on the strength of a forensic examiner’s report that matched bullets at a murder scene to the man's gun. But wait! Two decades later, it turns out that the bullets don’t match the gun, and the only reason the man didn’t discover this at his trial is that his own forensic examiner was told that test bullets—fired from the gun by the state’s examiner—were evidence bullets. The man sues the state’s examiners and the officer in charge. Do they get qualified immunity? Sixth Circuit: Mostly no. Someone fabricated evidence, and these are the three people who had the "means and opportunity" to do it. The man’s fabrication-of-evidence, malicious prosecution, and Brady claims may go forward.
Male police chief routinely promotes the highest-scoring officer on the sergeant’s exam. When a female cop is one of the highest-scoring officers, the chief opens up eight internal-affairs investigations into her. Allegation: The chief routinely declines to investigate men for similar misconduct—and in fact promotes men despite worse misconduct—so the female cop's supposed misconduct here is merely a pretext to avoid promoting a woman. (The misconduct in question: failing to follow up on a burglary report.) District court: If that’s true, there's no qualified immunity for an equal-protection claim, and whether that’s true is for a jury to decide. This case will go to trial. Ninth Circuit: Those are questions of fact, which we lack jurisdiction to review. Back down for trial. [This is the same issue as in our other recent brief. —ed.]

And last, what the papers are saying.

A Virginia gubernatorial debate involved questions about qualified immunity, and both candidates botched their answers. In the Washington Post, our friends at the Institute for Justice set the record straight.

The Post also has a sobering article detailing how “in state after state,” police and police unions have killed attempts to reform qualified immunity. (Colorado and New Mexico are notable exceptions.)
We’re really appreciating the USA Today editorial board’s ongoing op-ed series on ending qualified immunity.

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.

Athul K. Acharya 7/30/21 Athul K. Acharya 7/30/21

Clearly Established #8

Week of July 30, 2021—Decisions involving Bivens, the PLRA, the FSIA, and (as ever) qualified immunity.

Welcome to the eighth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of recent accountability decisions. We took a couple of weeks off to work on an important brief in Index Newspapers v. City of Portland, but now we’re back with a bonanza edition: In addition to our usual qualified immunity fare, we’ve got a few new accountability doctrines to introduce you to. Let’s dive right in.

Turkish security forces beat up anti-Erdoğan protesters in Washington, D.C. The protesters sue the Republic of Turkey. Turkey: We get immunity under the Foreign Sovereign Immunities Act. D.C. Circuit: Nope. Turkey: Political question doctrine? D.C. Circuit: Also no. Turkey: Uhh, international comity? D.C. Circuit: You can guess where this is going.

Assertion: Federal prison guard put inmate in the hole for sixty days to retaliate against him for filing a grievance and a lawsuit. District court: Even under the strict confines of the Bivens doctrine (see here for a quick explainer), I can hear this inmate's First Amendment claim. Sixth Circuit: And since the decision below just denied summary judgment and wasn’t a final decision, we have no jurisdiction to hear the guard’s appeal. The Supreme Court may have said that qualified immunity is a weird exception to the final-decision rule, but Bivens ain’t.
Here’s a case that illustrates why conservatives (should) also care about holding public officials accountable—why, as we explained in our recent amicus brief, “a cross-ideological consensus has begun to emerge that the qualified immunity doctrine is broken.” The University of Iowa requires student organizations to comply with its antidiscrimination policy. But in order to permit groups like the African Student Association, the Christian Legal Society, and the Feminist Majority Leadership Alliance to exist, it allows groups to base membership and leadership on certain traits, including race, sex, religion, and ideology. So can it deregister a Christian organization for requiring its leadership to abide by Evangelical Christian teachings on homosexuality? Eighth Circuit (March): No. Clearly established. No qualified immunity. Eighth Circuit (July): Did we stutter?

Cop tells man to get on the ground. Man gets on his knees, hands in the air. Cop: “All the way to your stomach!” Man: “On my stomach?” Cop, frustrated by the evident failure to communicate, takes a running start, tackles the man, and slams his face into the pavement, breaking his jaw in several places. Cop, in court: I had to do it—he was being noncompliant! Eighth Circuit: Not even close. Even under the exceptionally deferential standards of qualified immunity, it was clearly established that you can’t use that kind of force on someone who’s not resisting, not a threat, and not a flight risk. This case goes to a jury.
Here’s a judge-made doctrine that’s just as bananas as qualified immunity but doesn’t get nearly as much attention: the “Heck bar.” In essence, the doctrine is this: If a state court convicts you of a crime, and winning your federal civil-rights lawsuit would imply that the conviction was invalid, the federal court can’t hear your case. This next decision, out of the Ninth Circuit, is a perfect example.
A 250 lb officer slams a 105 lb, 18-year-old girl into the ground, rubs her face in gravel, and arrests her. The DA initially wants nothing to do with the case, but once the girl sues the officer for excessive force, the DA charges her with resisting or obstructing a peace officer. She’s convicted by a jury. One element of resisting or obstructing is that the officer must have been “lawfully engaged in the performance of his duties”—which includes not using excessive force. So now, if the girl wins her excessive-force claim, that would mean the officer wasn’t lawfully performing his duties, and she shouldn’t have been convicted. Which, under the Heck bar, means the girl’s excessive-force case has to be dismissed. As the dissent notes, this decision is “likely to encourage the very sort of police overreaction to minor criminal behavior that has led to public outcry and calls for reform in recent years.”

In a refreshingly straightforward opinion, the Tenth Circuit holds that a prison's 30-day ban on the use of tobacco in Native American services and indefinite ban on such services at all violated a Native American prisoner’s clearly established First Amendment rights.
Most of the doctrines we focus on at Public Accountability are judge-made, but Congress has enacted its share of accountability-limiting laws. One of the worst is the Prison Litigation Reform Act, in which Congress did its very best to ensure that prisoners suffering at the hands of their jailers receive no relief from the federal courts. And this month, the Eleventh Circuit took the PLRA's already-harsh terms and made them a little more draconian, holding that in prison cases, preliminary injunctions—which are intended to maintain the status quo until a trial on the merits—can last no longer than 90 days. It’s practically unheard of to get a case to trial that quickly, which means that in most cases, prison guards can wait 90 days and then go right back to violating prisoners’ rights.

That’s it for this issue. 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 7/9/21 Athul K. Acharya 7/9/21

Clearly Established #7

Week of July 9, 2021—Decisions from the Fifth and Sixth Circuits.

Welcome to the seventh issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of the week’s interesting accountability decisions. This week we have two cases from the Fifth Circuit and one from the Sixth. Let’s dive right in:

Suicidal inmate wraps a telephone cord around his neck and strangles himself. Jailer looks on from the other side of the bars. Does he stop the inmate? No. Does he call emergency services? No. Does he retrieve a breathing mask to perform rescue breathing? No. Instead, he calls his boss, who arrives ten minutes later. Boss calls EMS and goes to get the breathing mask, but it’s too late. Inmate dies. Was the jailer deliberately indifferent to the inmate’s medical needs? Fifth Circuit: How could anyone know that you should call EMS when an inmate wraps a cord around his neck, strangles himself, and passes out? Qualified immunity.
In 2015, rival biker gangs joined battle in Waco, Tex., for the deadliest biker shootout in U.S. history. (Contemporaneous coverage here.) Nine died and 20 were critically injured. Police arrest 177 people at the scene and over the next few days. Problem: Many say they weren’t part of any biker gang. Some say they weren’t even there. The district attorney so badly bungles the case that ultimately, no one is convicted. Thirty-one plaintiffs sue the DA and the police.
DA: As a prosecutor, I’m entitled to absolute prosecutorial immunity. Fifth Circuit: You showed up to the crime scene, took photographs, and investigated facts. That’s cop work, so you get cop immunity, which is qualified immunity. DA & cops: Okay, so what about qualified immunity? Fifth Circuit: Also no. You got an arrest warrant based on a blanket affidavit that, as to these plaintiffs, was full of lies and omissions. Their right not to be arrested on such an invalid warrant was clearly established; this case will proceed.
“Happy families are all alike,” wrote Tolstoy, but “every unhappy family is unhappy in its own way.” Today’s tale is about the Kentucky Clemonses. Christina and Dustin were living with Dustin’s parents, Richard and Evalee, when they filed for divorce. Christina then fought with her mother-in-law and was ordered to leave the house. On Easter Sunday, she returned to pick up her things with her own mother and a state trooper in tow. The three let themselves into the house, much to the consternation of its occupants, and Christina retrieved her possessions. As they were on their way out, though, Richard told the trooper he smelled “like pig shit.” The trooper responded by “clobbering” Richard. He fought back, Evalee and Dustin soon joined in the fracas, and Easter evening ended with all three under arrest. Was the trooper even allowed in the house without a warrant? Sixth Circuit: The Supreme Court may have only recently held that the “community caretaking” warrant exception doesn’t apply to the home, but we’ve held for much longer that it requires some type of emergency, and none was present here. No qualified immunity. (And so this tale of an unhappy family has, if not a happy ending, at least a not-entirely-unhappy middle.)

In other news, the USA Today editorial board has come out against qualified immunity. Read our ED’s take on it 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 7/2/21 Athul K. Acharya 7/2/21

Clearly Established #6

Week of July 2, 2021—Decisions from the Fifth and Tenth Circuits and the Supreme Court.

Welcome to the sixth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of the week’s interesting accountability decisions. We’ve got a lot of cases from the Fifth Circuit for you this week, but we’ve leavened it with some Tenth Circuit and Supreme Court action. Let’s dive right in:

Police encounter man experiencing diabetic seizure, break open his car window, drag him to the ground, press his face into the broken glass, and punch and knee him in the back. Fifth Circuit: Qualified immunity.
Student in Harris County, Tex., refuses to complete assignment requiring her to transcribe the pledge of allegiance. Teacher threatens her with a zero—and then goes on an extended diatribe, touching on “communists, supporters of Sharia law, foreigners who refuse to assimilate into American culture,” “the Cuban Missile Crisis,” “the Pope’s opposition to the construction of a wall at the United States’ southern border,” and finally “a discussion of a local sex offender in the news.” District court: Seems possible your assignment didn’t have a pedagogical purpose. No qualified immunity. Fifth Circuit: We’ve got no jurisdiction to review that factual issue—to trial you go. (A full transcript of the teacher’s comments can be found at pages 4-5 of the opinion. We suggest you read them for yourselves. –ed.)
Back in February, the Fifth Circuit granted qualified immunity to officers who saw a man douse himself in gasoline, commented that he’d catch fire if they tased him, and then tased him. (He caught fire and burned alive.) Now, the full Fifth Circuit has declined to rehear the case en banc, albeit with several spirited separate writings. Perennial Public Accountability favorite, Don Willett, dissents from denial with the observation—prescient, we hope—that the Supreme Court’s recent decisions have “signaled a subtle, perhaps significant, shift regarding qualified immunity, pruning the doctrine’s worst excesses.”
2001: Police department in Silver City, N.M., hires an admitted domestic abuser as a cop.
2003: Department investigates allegations that the cop had also sexually abused a child, but clears him.
Mar. 9, 2016: Police respond to a domestic disturbance, realize it’s the cop, change the call to a “welfare check,” and leave without charging him with anything.
Mar. 25, 2016: Cop’s girlfriend calls police to tell them the cop harassed her coworker and tailed her home. Police chief: “Knock it off or it’ll affect your job.”
Mar. 28, 2016: Police chief gives the cop a promotion and a raise.
April 2016: Cop shoots and kills his girlfriend, and then himself.
Tenth Circuit: You treated the victim differently because her partner was a cop, and in so doing you denied her the equal protection of the laws. No qualified immunity for you. (Coda: Sometime after the cop killed himself, the department discovered in its possession a memory card that contained images of the cop, in uniform, exposing himself to young girls.)
A total of eight cops take down a 5’3”, 160 lb prisoner; handcuff and shackle him; and press him face-down into the floor for 15 minutes. He dies. Excessive force? Could be, says the Supreme Court, sending the case back to the Eighth Circuit for another look.
Also at the Supreme Court, Justice Thomas once again expresses his view that qualified immunity has no basis in law or history.

In addition, we came across two podcasts recently that are worth your while:

In On Our Watch, NPR dives into the details of police internal-affairs investigations that have recently come to light thanks to a new California law.
And an episode of The Argument explores the case for and against qualified immunity.

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 6/25/21 Athul K. Acharya 6/25/21

Clearly Established #5

Week of June 25, 2021—Decisions from the Fifth and Ninth Circuits and D.C. District Court. Plus: Our first amicus brief!

Welcome to the fifth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of the week’s interesting accountability decisions. We took last week off because we were busy putting the finishing touches on (drumroll, please) our first amicus brief! But we’ll get to that. First, the decisions:

Allegation: Federal agents tear-gassed, shot rubber bullets at, and beat up peaceful protesters in Lafayette Square, all so President Trump could stage a photo op at a church across the way. D.C. District Court: You can’t sue federal officers under the First Amendment. You also can’t sue them under the Fourth or Fifth Amendments if “national security” is involved. Claims against federal agents dismissed. (This is an example of the Bivens doctrine, which we’ve discussed before.)

Houseless man in Dallas, Tex., is assaulted and suffers multiple head injuries. Paramedics and cops arrive—but instead of treating the man, they mock him and arrest him for public intoxication. Twelve hours later, he dies in jail. Paramedics, perhaps conscious of some guilt, submit false reports saying they never met the guy. Qualified immunity? Fifth Circuit: Not a chance.
Kid with ADHD and Oppositional Defiant Disorder is put in a time-out. Then: “In an attempt to re-enter the classroom, T.O. tried to push Abbott away from the classroom door and hit her right leg. Abbott responded by seizing T.O.’s neck, throwing him to the floor, and holding him in a choke hold for several minutes.” Still, the Fifth Circuit gives the teacher qualified immunity—but the opinion’s author specially concurs to urge, as he has for 20 years, that the court overrule its “completely out of step” corporal-punishment precedents.
In which the Ninth Circuit gives us a threefer: (1) Solitary confinement isn’t cruel and unusual; (2) it’s not even an atypical or significant hardship; and (3) prisoners have no right not to be compelled to inform—or testify falsely!—against other inmates. Qualified immunity and case dismissed.

Now for that amicus brief! In our very first issue, we brought you the story of a Ninth Circuit case holding that prisoners have no clearly established right to confidential communications with their lawyer. We thought it was a bad decision, so when the prisoner decided to ask the full court to rehear the case, we decided to voice our support. Here’s how the brief begins:

When John Witherow called his lawyer, he expected to be able to speak in confidence. Most of us do. Witherow was even using a special phone his prison provided for attorney calls. His subjective expectations converged with longstanding constitutional law, federal rules of evidence, and rules of professional ethics—not to mention objectively reasonable notions of privacy. Still, over Judge Berzon’s dissent, the panel here declined to decide whether Witherow had a right to confidential communications with his lawyer. Instead, it skipped ahead to the second prong of qualified immunity and held that even if he had such a right, it wasn’t clearly established. So whether that right exists continues to be an open question in this circuit.

You can read the rest of the brief 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 6/11/21 Athul K. Acharya 6/11/21

Clearly Established #4

Week of June 11, 2021—Decisions from the Ninth and Tenth Circuits.

Welcome to the fourth issue of Clearly Established, a somewhat weekly, slightly irreverent roundup of some of the week’s interesting accountability decisions. This week is a little light on decisions, so we’ll also highlight some other accountability-related developments.

First, the decisions:

Allegation: Coccidioidomycosis, also known as “valley fever,” which can cause everything from chronic pneumonia to meningitis, is running rampant through state mental health hospital where civil detainees are held. Ninth Circuit (2019): No previous case has clearly established a right for prisoners to be free of exposure to valley fever, and we’re not going to clearly establish it in this case. Ninth Circuit (2021): Which means there’s no clearly established right for civil detainees, either, even though civil detainees are entitled to better conditions than prisoners. And, again, we’re not going to clearly establish any such right in this case.
Exoneree sues prosecutor, alleging that prosecutor knowingly fed medical examiner false info to get a suicide reclassified as a homicide—and on the strength of that reclassification, put exoneree behind bars. Tenth Circuit: If true, this shocks the conscience—which means it’s a violation of due process. And we needn’t go on a “scavenger hunt for prior cases with precisely the same facts.” This is an “obvious” violation, so QI denied. (Our ED had a longer Twitter thread about this case here.)

Other news:

The decision itself is about a month old, but Reason has excellent reporting this week on a particularly egregious qualified-immunity grant in Georgia. Twenty-four cops raided an elderly man’s home with flash-bang grenades and a battering ram. Turns out they had the wrong house, which didn’t even look like the house described in the search warrant. Qualified immunity for all twenty-four.
In Arkansas, a cop used a PIT maneuver to flip a car because it didn’t pull over within 20 seconds of his turning on his siren. The dashcam video is pretty horrifying—all the more so because the driver was pregnant. (Baby and driver both survived.) The woman, who followed police instructions perfectly, is suing—but, as our ED points out, the Eighth Circuit’s caselaw means the officer will almost certainly get qualified immunity.
Five Reuters reporters have won the Pulitzer Prize in Explanatory Reporting for a series of exceptionally well-researched articles on qualified immunity. Read the articles 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 6/4/21 Athul K. Acharya 6/4/21

Clearly Established #3

Week of June 4, 2021—Decisions from the Fifth, Seventh, and Ninth Circuits.

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.

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 5/28/21 Athul K. Acharya 5/28/21

Clearly Established #2

Week of May 28, 2021—Four decisions from the Fifth, Sixth, and Ninth Circuits.

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.

Athul K. Acharya 5/21/21 Athul K. Acharya 5/21/21

Clearly Established #1

Week of May 21, 2021—Three qualified-immunity decisions from the Fifth and Ninth Circuits.

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.