Civil Rights Recap: November 13, 2020

This post is part of KLLF’s series of semi-regular blog posts rounding up interesting civil rights cases ruled on by the United States Supreme Court or the Second Circuit Court of Appeals.

Supreme Court

Taylor v. Riojas, Docket No. 19-1261 (US)
Per Curiam Opinion – November 2, 2020

In the first qualified immunity decision of the 2020 term, the Supreme Court sided with the plaintiff, Trent Taylor. All the more surprising is that the Court did so in a per curiam opinion without oral argument, as part of its “shadow docket.” (Generally, the Court abstains from issuing rulings without oral argument unless the justices believe the answer is obvious—and the justices typically believe the answers in qualified immunity cases are obvious, but usually in the defendants’ favor!)

Taylor is incarcerated in Texas. He alleges that, for six full days in September 2013, correctional officers locked him inside a pair of disgusting and unsanitary cells. One cell was freezing cold and had raw sewage spilling across the floor, while the other was covered “in massive amounts of feces…all over the floor, the ceiling, the window, the walls, and even packed inside the water faucet.” Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. As his cell did not have a bunk, he was forced to sleep in the feces and raw sewage.

Taylor brought a Section 1983 action, alleging violations of his Eight Amendment right to be free of cruel and unusual punishment. The Supreme Court has long held that government officials sued under this provision are entitled to “qualified immunity,” which requires plaintiffs like Taylor to prove not only that their constitutional rights were violated, but also that the law defining that right was “clearly established” at the time the violation occurred. (For anyone new to qualified immunity, the Appeal and Lawfare have great articles providing an overview of the doctrine.) In effect, what this typically means is that plaintiffs must be able to point to a previous case with nearly identical facts, or else courts will hold that the right in question was not sufficiently clearly established such that the officials would have known for certain what they did was unconstitutional.

The notoriously conservative Fifth Circuit Court of Appeals, which is one step below the United States Supreme Court, originally ruled along exactly these lines in Taylor’s case: It held that, while the conditions of Taylor’s confinement violated the Eighth Amendment’s prohibition on cruel and unusual punishment, the law wasn’t clearly established that “prisoners couldn’t be housed in cells teeming with human waste” “for only six days.” The Fifth Circuit therefore ruled in favor of the defendants, holding Taylor’s lawsuit could not proceed because the prison officials responsible for Taylor’s confinement ultimately did not have “fair warning that their specific acts were unconstitutional.

The Supreme Court reversed. “[N]o 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.”

This obviously correct ruling is actually a relatively surprising departure for the Supreme Court, as it has in recent years consistently broadened qualified immunity and narrowed plaintiffs’ rights. For excellent articles discussing how exactly it is we got to this point, take a look at Joanna C. Schwartz’s How Qualified Immunity Fails and William Baude’s Is Qualified Immunity Unlawful?. It is certainly far too optimistic to hope this decision signifies the Supreme Court may be considering bucking its long-established trend, but this is certainly a step in the right direction.

Mckesson v. Doe, Docket No. 19-1108 (US)
Per Curiam Opinion – November 2, 2020

DeRay Mckesson is a civil rights activist and a strong supporter of the Black Lives Matter movement. An unnamed “Doe” police officer sued Mckesson and BLM after the officer was seriously injured by a “rock-like” object thrown during a 2016 demonstration to protest the “officer involved” shooting of Alton Sterling, who was killed by police officers in Baton Rouge, Louisiana. In his complaint, the Doe officer does not contend Mckesson threw the object himself, or even that Mckesson told anyone else to do it. (The object thrower remains unidentified.) Instead, the officer argues, Mckesson is liable for the officer’s injuries because Mckesson organized the protest and “knew or should have known” that the protest would ultimately turn violent.

McKesson has argued that he is not liable to the Doe officer because he was merely exercising his First Amendment rights when he organized the protest, and because a 1982 Supreme Court decision, NAACP v. Claiborne Hardware “forbids liability for speech-related activity that negligently causes a violent act unless the defendant specifically intended that the violent act would result.” The Fifth Circuit Court of Appeals disagreed, holding that, since Mckesson allegedly instructed other protestors to “unlawfully” occupy a highway, “the First Amendment imposes no barrier to tort liability so long as the rock-throwing incident was one of the consequences of tortious activity [i.e., of that instruction], which itself was authorized, directed, or ratified by Mckesson in violation of his duty of care [to the officer].”

The Supreme Court ultimately did not rule on the question of whether the First Amendment bars the Does officer’s claims against Mckesson. Instead, the court explained that Louisiana’s state law typically does not impose a duty “to protect others from the criminal activities of [others],” and chastised the Fifth Circuit for ignoring the question of whether Mckesson could even be liable to the Doe officer under Louisiana law in the first instance, notwithstanding the ostensible First Amendment issues. 

Second Circuit

Agudath Israel of America; The Roman Catholic Diocese v. Cuomo, Docket No. 20-3772; 20-3590
November 11, 2020

These two appeals concern New York States’ management of the Covid-19 pandemic, and in particular an executive order issued by Governor Andrew Cuomo on October 4 that directed the New York State Department of Health to identify yellow, orange, and red “zones” in New York based on the severity of outbreaks and imposed correspondingly severe restrictions on gatherings and activity within each zone. The Appellants—Agudath Israel and the Roman Catholic Diocese of Brooklyn—each challenged the executive order as a violation of the Free Exercise Clause of the First Amendment, arguing that they each have places of worship among the affected zones, notably Brooklyn and Queens, and that the restrictions—which have cancelled or else limited capacity at various religious services—ultimately burden their members more than the general public.

The Second Circuit denied Agudath Israel’s motion for an injunction on procedural grounds—namely because Agudath Israel neglected to first move for an injunction in the district court below—and denied the Diocese’s motion for more substantive reasons. In short, the court held that the executive order is ultimately a neutral law of general applicability and does not burden religious activity specifically. Instead, the order burdens both religious and secular activity (e.g., restaurants and theaters) and, as such, does not require “strict scrutiny.” Consequently, the court reasoned, there is no reason to stay the order at this stage, before the appeals have been fully heard.

United States v. Scott, Docket No. 18-2836(L) (2d Cir.)
November 5, 2020

The appellants in this case, Kathy Scott and George Santiago, Jr., were correction officers in New York. Scott and Santiago were convicted for their respective roles in the assault of Kevin Moore, at inmate at the Downstate Correctional Facility in Fishkill, New York, as well as in the subsequent cover-up of that assault. Of particular interest is that Scott and Santiago were convicted under § 18 USC 241, for conspiracy to violate Moore’s civil rights, and under 18 U.S.C. § 1519, for falsifying records during the coverup. Scott and Santiago appealed their convictions.

The Second Circuit upheld the convictions. The court firmly rejected Scott and Santiago’s claim that their assault of Moore occurred too quickly for them to truly form the requisite intent to form a conspiracy, holding there does not have to be “an extended period of premeditation” or a “distinct verbal agreement prior to the impetus of the assault” in order for officials to form a conspiracy to violate civil rights.

Moreover, as a final nail in the coffin, and of possible interest to the criminal attorneys out there, the Second Circuit also noted that the district court had committed reversible error when it instructed the jury that, in order to prove that the defendants falsified records in violation of Section 1519, the government was required to prove the defendant knew his or her conduct would obstruct a federal investigation. Of course, this error doesn’t matter in these circumstances, because Scott and Santiago were convicted despite this error in their favor.

Keenan, et al. v. Hoffman-Rosenfeld et al., Docket No. 19-2730-cv (2d Cir.)
Summary Order – November 5, 2020

 In a summary order, the Second Circuit upheld the district court’s grant of summary judgment to the defendants on qualified immunity grounds. The case involves the death of three-month-old Lana Keenan, who died while hospitalized at Cohen Children's Medical Center in Suffolk County. Lana had been hospitalized after one of her doctors, Dr. Jamie Hoffman-Rosenfeld, reported to child services that Lana had been abused and/or neglected by her parents. A family court proceeding ultimately found this report to be without merit, and Lana’s parents’ complaint—which brings a Section 1983 claim against Dr. Hoffman-Rosenfeld, Child Services, the hospital, and various other parties—alleges this report, which led to the temporary removal of Lana from her parents, contained “intentionally false statements.” The Second Circuit ultimately held that the defendants did not act in contravention of clearly established law, as they had at least a reasonable suspicion to report Lana’s condition and initiate proceedings to remove her from her parents’ care, even if they were ultimately wrong.

Kramer v. State of Connecticut, Docket No. 19-3569 (2d Cir) Summary Order – November 5, 2020

In a summary order, the Second Circuit upheld the district court’s grant of summary judgment to the defendants, again on qualified immunity grounds. The Second Circuit reasoned that the corrections officer’s failure to prevent an assault on Edward Kramer by another inmate after Kramer reported to the officer that the same inmate had threatened to kill a third inmate housed in the same small housing ward as Kramer did not amount to deliberate indifference by that officer because Kramer did not provide the officer sufficient reason to think he was under “a substantial risk of serious harm to his safety.”