The Supreme Court of the United States released two of its final sans–Amy Coney Barrett rulings on Monday. The high court was not pleased with the Fifth Circuit— a federal appellate court to which President Donald Trump has appointed six circuit judges.
The Supreme Court’s smackdown of the 5th Circuit today is fascinating. I wrote about that court’s utter cruelty—and dramatic deviation from precedent—after Trump stacked it with ultraconservatives. Looks like it went too far, too fast for SCOTUS. https://t.co/W5Jt3U5Lbd
— Mark Joseph Stern (@mjs_DC) November 2, 2020
1. DeRay Mckesson v. John Doe
In DeRay Mckesson v. John Doe, SCOTUS granted the petition for writ of certiorari, vacated the judgment of the Fifth Circuit, and tossed the case back down below for it to be handled properly. The five-page per curiam decision was a harsh rebuke to the Fifth Circuit for its mishandling of the case on appeal.
First, a bit of background on the case.
Black Lives Matter (BLM) activist DeRay Mckesson organized a demonstration in 2016 in Baton Rouge, Louisiana, to protest a shooting by a local police officer. Conflict between protesters and police ensued. Officer Nick Tullier (identified as “Officer Doe” in the pleadings), was hit in the face with a “piece of concrete or a similar rock-like object.” He suffered serious injuries, including brain trauma and the loss of teeth. Tullier sued Mckesson and BLM as an organization, using a negligence theory of recovery; the officer argued that Mckesson negligently staged the protest, and that ultimately, that negligence caused the attack.
At the Fifth Circuit, Tullier went 2 for 4 on his challenges to legal rulings below. The circuit court ruled that Tullier’s lawsuit against Mckesson could proceed, and that a First Amendment defense would not work. Tullier lost on the question of whether he could proceed against BLM as an organization, and on his attempt to hold others accountable for Mckesson’s wrongdoing under a conspiracy theory. As we explained at the time, the Fifth Circuit’s ruling reduced Tullier’s case to one against Mckesson as an individual, but still pronounced that case a likely winner. The Fifth Circuit agreed with the officer that if Mckesson “knew or should have known” that the demonstration would turn violent–it would mean a negligence verdict in the officer’s favor.
The case was appealed to the Supreme Court, and the ruling was a 7 to 1 smackdown of the Fifth Circuit’s mishandling of the case. The problem was two-fold: the Fifth Circuit’s legal conclusions did not make a ton of sense–and further, the order of operations it applied had been all wrong.
“As the Fifth Circuit recognized at the outset,” the opinion points out, “Louisiana law generally imposes no ‘duty to protect others from the criminal activities of third persons.’” Illogically, though, “the panel majority held that a jury could plausibly find that Mckesson breached his ‘duty not to negligently precipitate the crime of a third party’ because “a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest” onto the highway.
The Court wasn’t thrilled with the Fifth Circuit’s treatment of the First Amendment, either:
“According to the Fifth Circuit, the First Amendment imposes no barrier to tort liability so long as the rock-throwing incident was ‘one of the ‘consequences’ of ‘tortious activity…'”
Moreover, the circuit court should have answered important questions of state negligence law before rushing to answer constitutional questions. Precision and care is required when tort claims are pitted against First Amendment rights, SCOTUS said:
“When violence occurs during activity protected by the First Amendment, that provision mandates ‘precision of regulation’ with respect to ‘the grounds that may give rise to damages liability’ as well as ‘the persons who may be held accountable for those damages.'”
The Fifth Circuit’s fractured opinion simply did not cut it. That court should have been clear in its analysis of whether Louisiana state law would even have allowed Officer Tullier to recover—and not jumped headlong into what amounted to a deficient First Amendment analysis:
“We think that the Fifth Circuit’s interpretation of state law is too uncertain a premise on which to address the question presented. The constitutional issue, though undeniably important, is implicated only if Louisiana law permits recovery under these circumstances in the first place.”
The per curiam opinion was a clear reprimand: the circuit court should have settled any outstanding questions of negligence law with the state court before moving on to constitutional analysis:
“The Court of Appeals should have certified to the Louisiana Supreme Court the questions (1) whether Mckesson could have breached a duty of care in organizing and leading the protest and (2) whether Officer Doe has alleged a particular risk within the scope of protection afforded by the duty, provided one exists.
But under the unusual circumstances we confront here, we conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law—one laden with value judgments and fraught with implications for First Amendment rights— without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court.”
The per curium ruling was unsigned, and Justice Clarence Thomas dissented without comment.
2. Trent Michael Taylor v. Robert Riojas
In this case involving the controversial doctrine of qualified immunity, SCOTUS had a thing or two to say about the Fifth Circuit’s take on what kind of conduct is “reasonable” for a corrections officer.
The Fifth Circuit affirmed the lower court’s ruling in favor of several prison guards, granting them “qualified immunity” for forcing an inmate to exist in appalling conditions. In a lawsuit, Texas inmate Trent Taylor alleged that prison officials at the John T. Montford Unit of the Texas Department of Criminal Justice (Montford) violated his Eighth Amendment rights in a number of shocking ways.
Taylor said he had been stripped naked and forced to stay in a cell where “almost the entire surface—including the floor, ceiling, window, walls, and water faucet was covered with ‘massive amounts’ of feces.” He said he couldn’t eat in the cell because he feared contamination and couldn’t drink any water because feces were “packed inside the water faucet.” Taylor also said that he was forced into a “seclusion cell” without a toilet, water fountain, or bed. Taylor said he was forced to hold, “his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.”
The prison officials did not dispute any of Taylor’s factual allegations. Nonetheless, they argued that they were still entitled to qualified immunity because their actions did not violate the inmate’s “clearly established” Eighth Amendment rights. The Fifth Circuit sided with the officers, reasoning that the guards didn’t have “fair warning” that “their specific actions were unconstitutional.” According to the ruling, Taylor hadn’t been subjected to squalor long enough: “Taylor stayed in his extremely dirty cells for only six days. Though the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end, we hadn’t previously held that a time period so short violated the Constitution. That dooms Taylor’s claim.”
The court went a step further, stating that there could be a good reason for doling out the kind of treatment Taylor endured.
“We do not suggest hold that prison officials cannot require inmates to sleep naked on the floor,” the opinion said. “There can be any number of perfectly valid reasons for doing so. Our holding is limited to the extraordinary facts of this case, in which Taylor alleges that the floor on which he slept naked was covered in his and others’ human excrement.”
The Supreme Court bluntly disagreed with the Fifth Circuit’s conclusion. That court was right, SCOTUS ruled, to have acknowledged the Eighth Amendment violation, but it erred when giving the officers qualified immunity. In order to be entitled to the protections of qualified immunity, the Court explained, the officer must have made a decision that “reasonably misapprehends the law…” In other words, officers don’t have to be perfect — but they do have to be reasonable. The Supreme Court said that “no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.”
“And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells.”
On those grounds, SCOTUS granted Taylor’s petition for certiorari, vacated the Fifth Circuit’s judgment, and remanded the case back to the lower court — but not before offering some guidance:
“Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”
Again, Justice Thomas dissented without comment.
Justice Barrett did not participate in either of these cases, nor in any of SCOTUS’s orders on Monday.
[image via by Samuel Corum/Getty Images]
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