A few thoughts on November 6, 2024

I am teaching first-year law students civil procedure this semester, and had long planned to cancel class today in anticipation that it could be difficult to meet and talk personal jurisdiction the day after the election. Now that today has arrived, though, I wish we were meeting so I could be in community with my favorite 1Ls. I've been thinking about what I would have said to them if we were meeting today, and jotted down these thoughts, which I shared with them and now share with you In case they offer any comfort.

September 11, 2001 marked the second day of my clerkship with Judge Harry Pregerson on the Ninth Circuit Court of Appeals. Judge Pregerson was born in East Los Angeles in 1923 to Jewish immigrants from Ukraine. He was a first lieutenant in the Marines, shot and nearly killed in the Battle in Okinawa in 1945. He attended UCLA on the G.I. Bill and then went to Berkeley for law school (only because, he repeatedly reminded me, UCLA’s law school was not yet open when he applied). Judge Pregerson graduated law school, returned to Los Angeles, set up a solo law practice in the Valley, and represented community members in whatever legal issues came his way. He was appointed to the L.A. Municipal Court, then the Superior Court, then federal district court, then the Ninth Circuit Court of Appeals. At every step and every stage he was a tireless warrior for justice, famously telling senators during his confirmation hearing: “My conscience is a product of the Ten Commandments, the Bill of Rights, the Boy Scout Oath, and the Marine Corps Hymn. If I had to follow my conscience or the law, I would follow my conscience.” And he did time and again, issuing powerful decisions in every imaginable area—civil rights, general equality, class actions, immigration, the death penalty, the environment. Off the bench he was equally tireless, fighting for veterans, the homeless, and children. If you want to learn more about him—and maybe today is a good day for such an activity—there’s a documentary about him, available here: https://www.9thcircuitcowboy.com/.

On the morning of September 11, 2001, the second day of my clerkship, I—like the rest of the country and world—was sitting, dumbfounded, watching horrifying video and reports from New York. I heard the phone ring. It was Judge Pregerson’s secretary. She told me that Judge Pregerson was sitting in his office and was waiting for me and my fellow clerks. The airports were closed. All federal buildings were closed. All public malls, stores, and museums were closed. But 77-year-old Judge Pregerson had gotten up, seen the news reports, and gone into the office. It’s never a good idea to say no to a judge—especially when you’re a law clerk and most especially when it’s your second day of a clerkship, and absolutely (I came to learn) if you’re clerking for Judge Pregerson—so I got in my car and drove to chambers. That morning, Judge Pregerson spent hours talking with me and my fellow clerks in his office kitchen. He reminded us that thousands of people died in World War II every day, and described the suffering that he saw and experienced in combat. He told us that the goal of those who flew planes into buildings and the ground was to fill us with fear and to paralyze us, that we could not let them win, and that by continuing to do the work of the court we were, in our own way, fighting back. And then he told us to get to work. So we did.

Judge Pregerson was, is, and will always be an inspiration to me. I think about him any time I am faced with something difficult, both because of the life that he lived and because of his words to me on September 11. I thought of him and those words on Wednesday, November 9, 2016 and am thinking of them again today. My purpose isn’t to equate this election to September 11. I recognize that some of you may not share my feelings of despair. And it may be that for those of you most horrified by the impact of this election’s outcome on the least powerful among us, words of wisdom from a white, upper-middle-class, middle-aged law professor and her white judge mentor from the Greatest Generation ring hollow. But it’s what I’ve got. And I hope that it's perhaps comforting to hear about a day in which surprise, sorrow, and grief—which all too easily can lure us into paralysis and doomscrolling—was instead translated into action in the pursuit of a more just future. To know that this type of day has been lived many times before. And to know that we can live it again, now.

An Important Qualified Immunity Shift in the Fifth Circuit: Ramirez v. Killian

An important new decision out of the Fifth Circuit—​Ramirez v. Killian—​makes clear that a jury can't decide whether an officer is entitled to qualified immunity. Instead, whether the law is "clearly established" is a question for the judge. Ramirez should have a significant impact on civil rights practice in the Fifth Circuit, and illustrates how the current power of qualified immunity rests on both procedural and substantive decisions.

As Alex Reinert has shown, in most courts, qualified immunity doesn't play much of a role at trial. That makes sense. According to the Supreme Court, officers are entitled to qualified immunity unless prior court decisions held similar facts unconstitutional. Whether such prior decisions exist and clearly establish the law is an objective decision, according to the Court. It is a legal decision that judges, not juries, ​should make.

But the Fifth Circuit has viewed things differently. In the Fifth Circuit--which includes federal courts in Texas, Mississippi, and Louisiana--jurors have regularly been given the power to decide whether officers are entitled to qualified immunity. And Fifth Circuit juries have generously doled out the defense.

On August 15, 2024, the Fifth Circuit's decision in Ramirez made clear that juries, not judges, should decide whether the law was clearly established. As the court explained, juries can decide whether the plaintiff's constitutional rights were violated. But it falls to the judge to assess whether those rights were clearly established. Furthermore, if a court has denied qualified immunity at summary judgment, ruling that the plaintiff's version of facts shows a violation of clearly established law, there is no basis to grant qualified immunity to a defendant following a jury's verdict on the plaintiff's behalf.

The Fifth Circuit's decision in Ramirez is essentially a course correction, putting it in line with the practice other circuits. But it will have significant impact in federal courts in the Fifth Circuit—in Texas, Mississippi, and Louisiana. Take, for example, the case of Tony Timpa—a white Dallas executive who was killed by Dallas police officers who knelt on his neck and back for more than fourteen minutes. Timpa had called the police asking for help—he had anxiety and depression and was off his medication. But instead of helping Timpa, Dallas officers killed him less than thirty minutes after he placed the call. Timpa's mother sued the Dallas officers, and the lawsuit was a multi-year ordeal for many different reasons, including qualified immunity.

Six weeks after Derek Chauvin killed George Floyd, the trial judge in Timpa's case granted the officers qualified immunity, ruling that the officers did not violate clearly established law when they knelt on his neck and back for more than fourteen minutes, until he died. Two years later, the Fifth Circuit reversed the trial court, ruling that “the law had long been clearly established that an officer’s continued use of force on a restrained and subdued subject is objectively unreasonable” and concluded that, viewing the facts in the light most favorable to Tony Timpa’s family, the officers violated Tony’s clearly established rights.​

In September 2023, more than seven years after Dallas police officers killed Tony Timpa, the civil rights case brought by Vicki and other family members went to trial. After a week of testimony and argument, the jury found that three officers who were on the scene violated Tony Timpa’s constitutional rights but awarded qualified immunity to the two officers who knelt on Tony’s neck and back. 

The Fifth Circuit's recent decision in Ramirez v. Killian could change the result of cases like Timpa. In Timpa, the jury concluded that Tony's constitutional rights were violated after the Fifth Circuit had concluded that there was no qualified immunity for the officers if a jury found a constitutional violation. Before Ramirez, the Timpa jury could essentially overrule the Fifth Circuit, finding qualified immunity despire their conclusion that the officers have violated Timpa's rights. After Ramirez, the jury would not have had that power--the Fifth Circuit's decision, in combination with the jury's verdict, would have meant no qualified immunity for the officers.

To be sure, the ultimate outcome of the Timpa case in a post-Ramirez world could have been the same—had the jury's ultimate goal been to deny Timpa compensation, they could have concluded that Timpa's rights weren't violated at all. ​But clarifying that judges, not juries, should decide qualified immunity explicitly cabins the power of the defense in a way that is important, given Reinert's finding that that when juries are asked to decide qualified immunity they often award the defense to officers. It also simply makes sense that judges, not juries, make this type of decision.

The Fifth Circuit's decision in Ramirez v. Killian is noteworthy for reasons beyond the impact on cases like Timpa. The decision is another indication that the Fifth Circuit—long viewed as the most generous bestowers of qualified immunity—is becoming more reluctant to grant the defense. It also brings to light that some of the most powerful aspects of qualified immunity aren't about the core of the defense but about various procedural protections that come along with it, including the power immediately to appeal qualified immunity denials and the power to limit plaintiff's entitlement to discovery while qualified immunity motions are pending. These procedural effects of qualified immunity deserve top billing when thinking about the impacts of the doctrine, as the Fifth Circuit's decision in Ramirez makes clear. 

Horrible decision alert: Terrell v. Harris County (5th Cir.)

In Shielded, I write about interlocking & overlapping protections for law enforcement that make it exceedingly difficult to get justice when your rights are violate. There's no clearer example of those protections & the horrors they inflict than Terrell v. Harris County.

In February 2020, Shanita Terrell, a 33-year-old married mother was roofied while at a Houston bar. Michael Hines & Mark Cannon, off-duty, uniformed Harris County officers, were working security. When she walked out, disoriented, they ordered her into their patrol car.

Terrell doesn't know what happened next because, presumably, she'd passed out from the drug in her drink. When she work up, she had vaginal pain. She went to the hospital and Officer Hines's DNA was found in her underwear. Terrell sued Hines, Cannon, the Sheriff & the County.

The case against Hines was airtight, but he never responded to the complaint-presumably because he wasn't indemnified by the county & is judgment proof. Hines WAS criminally charged-but that charge ended up in a plea and six years' deferred adjudication.

The district court dismissed the claims against Cannon-the other officer-and the 5th circuit affirmed. Why? The allegation that Cannon helped put Terrell in the patrol car to facilitate her assault is speculative & so must be ignored, according to the Supreme Court's decisions in Iqbal/Twombly. Never mind that Terrell, it seems, HAD BEEN ROOFIED and so wouldn't have much in the way of facts about what happened leading up to her assault. And oh, also - the district court and 5th circuit say - qualified immunity because no clearly established constitutional violation.

What about Harris County & the Sheriff? No liability for not training and supervising Hines because no notice that they needed to do better-EVEN THOUGH, two years before, Hines was charged with sexual assault of a minor (though not indicted) and wasn't investigated by the county.

The 5th circuit's decision affirmed the grant of a motion to dismiss-meaning Terrell never even has the opportunity to get discovery, where she could seek out information about what happened to her that night. So: No Information. No Compensation. No Public Reckoning. SHIELDED.

You can read the 5th circuit's decision here.