Strict Scrutiny - Made Up Immunities

Episode Date: June 8, 2020

Kate and Jaime discuss contributors to injustice--doctrines that encourage (or at least immunize) racial profiling and police misconduct-- with Fred Smith Jr, associate professor at Emory University School of Law.  They also discuss some recent court news and recap a few opinions. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome to Strict Scrutiny, a podcast about the Supreme Court and the legal culture that surrounds it. You have two co-hosts today. I'm Jamie Santos. And I'm Kate Shaw. And if you're listening today, you know that this is a podcast about

the Supreme Court. And June is the time when the court typically churns out the majority of its big opinions. But that's not what we're going to focus on today, because there's really only one thing that feels like it matters right now. And that, of course, are the protests across the country set in motion by the May 25th murder of George Floyd by Minneapolis police officer Derek Chauvin. And, you know, the broader reckoning with police violence against people of color and systemic racial injustice that Floyd's killing has set in motion. The reckoning has involved now over two weeks of protests across the country, with thousands and thousands of people in the streets and cities, large and small, curfews in place in many cities. And despite the fact that the vast majority of these protests have been nonviolent,

many have involved outrageous displays of force and use of force from the police and other officials in response. So we want to start the episode today by talking about some of the legal doctrines that shape the way that police officers interact with members of the public. And we can't cover everything, so we're going to put a few things to the side. We're not going to talk about the First Amendment too much today, even though we know that these protesters are engaged in extremely high value and constitutionally protected speech and assembly, and those things are clearly important here. We're also not going to spend a ton of time on the Fourth Amendment.

There's a complex body of law that we'll talk about a little bit, and we might revisit in more depth in a later episode. But instead, we're going to talk about a few related doctrines that make it really, really hard to hold police officers accountable even for egregious misconduct. And in particular, we're going to spend some time talking about the doctrine of qualified immunity, which I think is a phrase we've heard a lot more about in the last couple of weeks. So we're going to start out with that discussion, and then we're going to spend a little time on recent developments from the court, including a couple of the opinions that were released last Monday. Kate, do you want to kick us off? Sure. So as Jamie just said, we're going to start with a subset of the legal doctrines that have contributed to the lack of police accountability. And for this part of the episode,

we are delighted to be joined by Fred Smith, who is an associate professor at Emory Law School in Atlanta. He's a former law clerk to Justice Sotomayor, among others, and a scholar of constitutional law and the federal courts. And most significant for purposes of our discussion today, he's someone who has written and thought quite a lot about the doctrine of qualified immunity. You know, it's a complicated doctrine. Jamie and I are versed in it, but not experts. And Fred really is an expert. So Fred, welcome to Strict Scrutiny. Thank you so much for taking some time with us today. Absolutely delighted to be here. You've written a lot on qualified immunity, and I know you filed amicus briefs in the Supreme Court in qualified immunity cases.

Let's maybe start with the basics. Tell us what qualified immunity is and where it comes from. I assume there's a U.S. Code citation or a specific constitutional provision that you'll be able to point us to so we can look it up as we go along. All right. So on that last point, as you I'm sure are aware, there is no such statute and there is no such constitutional provision. And in fact, if one were simply to read their most relevant statute, which is Section 1983, that's 42 U.S.C. Section 1983, it begins with the language every person referring to individuals who violate federal rights and are acting under other lawsuits against state officials and federal officials. A rule that we're going to look to whether or not the government official is violating clearly established law that a reasonable person would have known at the time of the

violation. So anytime a plaintiff wants to sue a government official who's acting under the color of state or federal law for violating a federal right, if they're seeking money damages and they're suing that officer or that employee in their individual capacity, then they need to demonstrate that that officer was violating clearly established law that a reasonable person would have known at the time of the violation. In terms of where this comes from, that particular rule was announced in the early 1980s in a case called Harlow v. Fitzgerald. Before that, the court in the 1970s wrestled with a doctrine that was rooted more in the

good faith of the officer, so it was kind of a subjective standard. That, too, bore little relationship with the common law, although it bore more relationship with the common law than the current doctrine. So Harlow v. Fitzgerald is on its face very much as an attempt to balance competing concerns. On the one hand, it's important to ensure that we have a doctrine that deters unconstitutional conduct. But on the other hand, the court doesn't want to deter entirely lawful conduct that government officials may wish to or need to engage in. And so this is the court's attempt to strike a balance, right? And again, it uses the word balance in Harlow versus Fitzgerald. So it's a policy-based rationale. So in a typical case, so someone files a Section 1983 case, can you kind of walk us through at what point qualified immunity arises and how the lawsuit proceeds?

Sure. All right. So qualified immunity can emerge at a few moments in the life of a lawsuit. So one of the first places that it could be raised is at the motion to dismiss stage. So just on the face of the complaint, taking everything that has been alleged in the complaint as true. The argument goes, in some cases, that even if all of the allegations are true, they're still not a violation of a clearly established right that a reasonable person would have known. And what would then happen is briefing that would kind of look to the state of the law in that particular circuit and in

the United States Supreme Court. The next place that it could emerge is at the summary judgment stage. So after there has been discovery and perhaps even competing narratives about what took place, so viewing the facts and the light most favorable to the non-moving party, to remind, litigators think about this all the time, but for everyone else, I'm taking you back to your pro days. So viewing the facts in the light most favorable to the non-moving party, the question becomes, is there a violation of a clearly established right that a reasonable person would have known at the time of the violation. And so at both of those moments, right, something can not even necessarily go to trial. Much less common, but technically still possible, is that someone could, you know, move based on the plaintiff's presentation of their case at trial and say that there hasn't been a violation of clearly established law. But we see it much more frequently at the motion to dismiss stage and at the summary judgment stage. Procedurally, one thing I just wanted to note was that unlike in most circumstances, if a motion to dismiss in a normal civil case is denied or a

motion for summary judgment is denied, the defendant's motion is denied, usually you wouldn't get to appeal that until the whole case goes on. But in the qualified immunity context, there's this kind of special magical right to an immediate appeal for officers who are denied qualified immunity early on in litigation, which I think is something that sets this doctrine apart from really everything else. Sure, right. So the idea here is that typically, as you know, there's a final judgment rule under 28 U.S.C. 1291. You can only appeal when there is a final decision, typically a final decision on the merits, but something that has terminated all of the litigation such that there's nothing left to review. However, under a handful of circumstances, the court has said, well, here the very reason for

having such a rule in the first place would be loss if there weren't an immediate appeal. So in this case, for example, with qualified immunity, the idea goes, the whole point is to keep government officials from having to undergo a trial because that in and of itself can be a deterrent to engaging in entirely lawful conduct. And so the idea goes, that interest is entirely lost if something goes to trial that should not have gone to trial. And so as a result, as you note, people can immediately appeal a denial of summary judgment at the motion to dismiss stage or the summary judgment stage. Okay, so maybe let's pause for a second and just sort of summarize where we

are. So you have this big, important federal statute, Section 1983, right? This is a Reconstruction era statute. As you said at the outset, the language of the statute is incredibly broad, right? Every person who acts under color of law deprives a person of the rights, privileges, or immunities secured by the Constitution or laws shall be liable, right? Like, it seems pretty categorical. But as you said, in the 1980s, the Supreme Court basically, through this kind of common law process, created this incredibly powerful defense that can be raised by state officials. And as Jamie just pointed out, not only do you have access to this sort of a-textual, very powerful defense, you also get to, you know, take a couple of bites at the apple, right? If you're unsuccessful in winning on a qualified immunity argument

in the district court, you don't even have to wait for the litigation to run its course. You can, much of the time, immediately get a pallet review, which is quite unusual in the federal system. Okay. So that I think both doctrinally and procedurally is really helpful. So let's talk a little bit, just to make it concrete, about the kinds of violations of rights that have been found nevertheless to be shielded by qualified immunity. So there are a ton of cases out there, some of them with just wildly egregious facts. So I wonder if having, you know, briefed some of these cases and written about them, you might pick out a couple just to kind of talk our listeners through. A few examples. There's a case called Mullenix from 2015. And this was a case that involved a high speed chase. And during the

course of the chase, the police department made a determination that the best thing to do would be to put spikes on the highway in order to stop the vehicle. One of the officers decided that he wanted to, from a bridge, that when he saw the car coming, even before it hit the spikes, that he wanted to shoot into the vehicle. His boss told him to stand down because they had another mechanism to stop the vehicle that did not involve deadly force. And he did it anyway. And then reportedly said, how about that for proactive, referring to a moment in which his boss had apparently told him to be more proactive. And the Supreme Court concluded in a summary reversal that the officer was entitled to qualified immunity, that this wasn't a violation of a

clearly established right that a reasonable person would have known at the time of the violation. They didn't answer the underlying constitutional question of whether or not it violated the Fourth Amendment, but they concluded that it wasn't a violation of clearly established law. There's also cases that I think a lot of people are familiar with, but we don't think about them as qualified immunity cases. But if you think about the case of Safford versus United School District in 2009, this was the case where a middle school age student, a young girl, was strip searched because she reportedly had ibuprofen on her at school. Many of us remember that the Supreme Court said that that was a violation of the Fourth Amendment. Many of us remember Justice Ginsburg's moment in which she called her colleagues to task for not taking seriously the depth of this violation. What many of us perhaps don't remember is that that was not a violation of clearly established law that a reasonable person would have known at the time of the violation. Right now, the court has a number of cases where it's deciding whether or not to grant and perhaps review this doctrine of qualified immunity. A case where a number of

scholars, including myself, filed a brief was West v. Winfield, which is a case where officers had consent to enter a home by one of the occupants. So the occupant actually gave an officer the key to the home. And the officers decided that instead what they wanted to do, concerning that perhaps the person inside had a BB gun, is that the best thing to do instead was to shoot holes into the home and to place tear gas to spread throughout the home. It turned out that the person they were looking for wasn't even there. And the plaintiff who lived there, she and her children couldn't live in the home for two months. And the Ninth Circuit actually said qualified immunity. And, you know, in that case, right, it's not a split second decision. Wait, to pause for one second. So the Ninth Circuit actually said qualified immunity. And, you know, in that case, right, it's not a split-second decision. Wait, to pause for one second.

So the Ninth Circuit found that the officers in that case did still enjoy qualified immunity, that even that conduct didn't violate clearly established law, of which a reasonable officer would be aware just to drive that home. That's correct. So they noted that there were other cases in the Ninth Circuit where there was unnecessary damage in a home. But they distinguished it because in some of those other cases, officers acknowledged that part of why they engaged in some of the damage was, one word that's in the opinion is that one of the officers in one of the earlier cases said that they thought it was cool, quote unquote.

And so they distinguished that case from this case because here the officers didn't say that they were doing it because it was cool, but rather're not able to point to another case that is functionally identical to your case, then a court is very likely to find that a reasonable officer would not have known that the conduct was unlawful. So it's like the fact that there was no utterance that matched the utterance in the earlier case just illustrates how insanely, just what a ridiculously high threshold plaintiffs bringing these cases need to clear, but also just the bizarre and backward-looking and also really judge-focused nature of this area of law. If a specific judge in your jurisdiction has not found virtually identical conduct a violation of law, essentially anything goes. And there's just an infinite variety of misconduct,

right, in which officers can engage. And so it's almost never the case you're going to find an identical set of facts, right? Yeah. So, you know, it's interesting. There's a couple of strands in the doctrine. Some of the case law does emphasize this kind of factual comparison of the sort that we see in West versus Winfield. There is this other strand of qualified immunity doctrine that I don't know if it's fallen out of favor, but we don't see it quite as much. But there's a case called Hope versus Peltzer from the early 2000s by Justice Stevens that said that there are some violations that should be obvious, that even if you can't point to a case with materially similar facts, that someone should be on notice just by virtue of the legal rule. But it turns out that in Fourth Amendment cases in particular, where the mens rea is simply reasonableness,

that the court, I think courts are concerned that they have to demand some kind of similarity to earlier facts. Otherwise, you could say that every violation shouldn't be subject to qualified immunity because by definition, it's unreasonable if it violated the Fourth Amendment. Right. And you're saying, so the distinction between Hope, which is an Eighth Amendment case, right? And Hope has these incredibly egregious facts, right, where basically a corrections officer is disciplining a prisoner by handcuffing him to a hitching post for seven hours, his hands above his shoulders. He's shirtless. It's the hot, hot, hot summer sun. At one point, a guard taunts him by giving a dog water within view of the prisoner. So these facts are the kinds of

facts that the Supreme Court, at least historically, has said do constitute a constitutional violation. And the court does say there's no, you know, no, we have not had this case before, and yet any officer should have known this is cruel and unusual punishment. So that's interesting. So you're saying the Fourth Amendment, for whatever reason, the doctrine has been especially attuned to this kind of materially similar or even indistinguishable facts where maybe other bodies of law understand that broad categories of conduct should be off limits. But the problem with hope, the facts are so awful that I do feel like even in Eighth Amendment cases, lower courts are able to point to truly egregious conduct that falls short of

that degree of egregiousness and say, well, no, I mean, clearly that violates the Eighth Amendment, but this is significantly less egregious than that. And therefore, it follows that it doesn't. So I feel like I've seen cases, Eighth Amendment type cases where prisoners are basically put, you know, stripped, put into a cell by themselves for like two days. And they're sitting in their own feces and urine. And courts have said, I feel like there might have been a Fifth Circuit case recently where the court said something like, well, there are cases in which we said four days of this is is unconstitutional, but this was only for one day or two days. And, you know, that's not clearly established. It's almost like it becomes a meme. Yeah, no, that's a fair

point that, right, even when you do have a high mens rea, there are ways that courts can distinguish if the judge in question doesn't believe that something is obvious. And that's the word in Hope v. Pelter, right? And so that different people are going to come to different conclusions about whether a violation is obvious. One other point that I think is really interesting, there's a 2009 case, because I would expect, you know, with all of these Section 1983 cases being filed in federal court, the scope of constitutional rights would be pretty clearly established by now.

But there's a 2009 Supreme Court case called Pearson v. Callahan, filed in federal court, the scope of constitutional rights would be pretty clearly established by now. But there's a 2009 Supreme Court case called Pearson v. Callahan, which made that a lot more difficult. Can you explain what the case was and what impact it's had on qualified immunity cases? Sure, absolutely. So for a while, for about a 10-year period or so, there was something that was known as the order of battle rule. And under this rule, federal judges were supposed to, when they were engaged in a qualified immunity analysis, they were supposed to ask two questions. The first question they were supposed to dismiss stage, taking the facts as true, has a violation in fact been alleged at the summary judgment stage? Do the facts are the facts sufficient to demonstrate a violation or at least demonstrate there's a triable issue of fact with respect to a real violation? And then and only then were courts supposed to turn to a second question, which is, well, is the violation of a right that's clearly established or that was clearly established at the time of the violation?

Pearson v. Callahan, the court got rid of the order of battle rule. So it said instead that courts don't have to answer whether or not there is a violation. They can skip ahead, if they wish, to the second question, whether or not this was a violation of clearly established law. So in the West versus Winfield case, for example, that was a case in which the Ninth Circuit, they didn't answer the question about whether or not this was a violation. They skipped ahead to say that it wasn't a violation of clearly established law. And that's when and kind of, again, immediately went to sort of comparing it to earlier cases. And to your point, right, this does mean that there's going to be fewer cases in which constitutional law is developed. I'll only caution, though, that the order of battle rule turned out to be pretty wildly unpopular among judges and justices, including some on

the left and on the right. Because you have these cases that we get to the Supreme Court where judges would find that things weren't violations at all. And there were folks like Justice Stevens, who were writing various opinions and concurrences saying, well, they didn't even have to reach that issue, right? We should revisit this order of battle. And in fact, I mean, I'm thinking in particular of an opinion in a high speed case scenario where, you know, some of the liberal justices were like, wait, why did they even have to reach this issue? And then on some of the other cases where violations had been found, you had folks like Justice Scalia saying, wait, wait, wait, they didn't have to reach that issue. And then you had very respected judges

like Judge Pierre Laval, who wrote an article about it called Dicta, about Dicta, which proved to be quite persuasive about how being forced to engage in dicta this way, that the court should actually have more discretion. And so by the time you get to Pearson versus. Callahan, on the Supreme Court at least, you have broad consensus across the board that it was time to abandon the order of battle rule. But it does mean that there are going to be fewer moments to develop constitutional law and that you can end up in this very circular space sometimes where if case after case, they simply say, not established, still not established. Oh, wow. Not established yet. If that's what these cases

say time and again, and if that's all they say, then yeah, I mean, when are they going to get established, especially in the excessive force context? I mean, there's some areas of law where it's going to get developed, including some areas of Fourth Amendment law that are going to get developed, right? Including some areas of Fourth Amendment law that are going to get developed by virtue of the traditional criminal justice process. Excessive force is not in that category. And so, you know, for the most part, it gets decided here or it doesn't get decided at all. And so you can end up with a severely stunted doctrine. And wait, will you say more about that? So just in, you're saying in just kind of ordinary criminal litigation when there are like motions to suppress and things like that, sort of Fourth Amendment doctrine will develop separate and apart from these civil suits against police officers. Is that the idea? Exactly, right? So returning to West versus Winfield,

for example, one of the questions was about the voluntariness of the consent, right? That's the kind of issue that tends to get worked out in the criminal justice process by virtue of suppressing evidence if evidence is found. I mean, the irony, of course, is if nothing is found, then there is no criminal justice process. But there are going to be some moments for questions like voluntariness to get worked out. But on the question of excessive force, was this force reasonable? There are going to be far fewer moments for that to get worked out because it's not going to tend to be related to a motion to suppress, not typically. So, okay, so there's, I feel like tons more nuance, but we want to get to some other things.

So to summarize, so we have this doctrine. In practice, it's really, really difficult to sue. You know, we're talking about police officers, as you said at the outset, this applies to government officials far beyond police officers, but that obviously is what we're most interested in today. And so you've alluded to this, there's the Ninth Circuit petition, and there are a number of other petitions that raise these questions of whether the entire foundation of qualified immunity should be reconsidered. So do you want to talk through a little bit, kind of where are the pushes to revisit qualified immunity? Not like to narrow it, but to really, I think, question whether it belongs in our body of law at all, where all that is coming from.

Sure, right. So I have a piece where I think a little bit about this, formalism, Ferguson, and the future of qualified immunity. It's a short piece, a symposium piece, but it really tries to get at precisely that question because you have these two competing impulses that are creating a sort of interest convergence, right? So, you know, toward the beginning of this discussion, right, we talked about how this is a made-up doctrine, right? And, you know, perhaps saying that in 1982, right, would not sound much like an indictment to say this was created through the common law process. It's not in a statute. We look, okay, what's the big deal? But now, right, we have decades of presidents in many spaces, including in the field of federal jurisdiction, that are about

text. And there's not a lot of room for judges to kind of come up with their own approach in a way that's kind of entirely disconnected, entirely untethered from the text or even the history, frankly, of a provision. And so on that score, qualified immunity kind of stands out like a sore thumb. Then at the same time, and this is the Ferguson aspect of it, there's also, I mean, I don't need to kind of, we all know the moment that we are in again, right? So the word Ferguson now sounds quite dated, right? But the general idea, we're all feeling it, we're all seeing it, right? We're in a moment again, in which people are demanding more accountability. And the idea that some people

get to be less accountable than others is something that causes a great deal of consternation and even pain for a lot of folks. And so you have these two things coming together. And so a lot of the briefing in these cases, they include people or organizations like the Cato Institute. And one of the leading voices on the right here would be Will Bode, who wrote a piece in California Law Review. And then you have people like Joanna Schwartz, who have very fairly conservative law professor, who has said that at least in the context of excessive force, this doctrine has gone off the rails. One or more of the justices has also kind of tipped some interest in revisiting. And I believe it was a couple of years ago in a Justice Thomas concurrence or dissent, I remember. And I think when that came out, there was a whole bunch of like, wait, what? Really?

Yeah. Okay. That's right. And Ziegler versus Abbasi. That's right. He wrote a concurrence in which he cited to Will Bode's piece. Before actually it had been published. It was on SSRN at the time, which is, I mean, it was scheduled to be published, but still

it was influential before it was even in print, which is incredible. And I think it wasn't until we saw that concurrence that you started seeing a lot of qualified immunity petitions. So there have been a whole bunch of them filed within the last couple of years. But what's interesting is there have been a ton of opportunities for the court to actually revisit qualified immunity. And there have been no bites yet, which makes me wonder either whether Justice Thomas isn't voting for cert in those cases, or whether maybe some of the other justices aren't so confident in his vote on the merits. But I'm curious what you two think about that. Yeah, I wish I knew. We file briefs in a number of these um and we're trying to be thoughtful

about which ones but um but yeah no it's it's not entirely clear uh why there hasn't been a movement um although i mean this time you have these nine qualified immunity cases that keep getting relisted uh so something is up we don't know what yet perhaps it could just simply be um a dissent from um denial of cert or or maybe something else we just don't know what yet. Perhaps it could just simply be a dissent from denial of cert, or it could, or it might be something else. We just don't know yet. So we're going to probably drop, we'll drop this episode on Monday and we may find out that day, right, whether the court is going to take up one or more. I didn't realize there were nine. A lot of them basically asking the court to take, you know, this kind of first principles look at whether

the doctrine should be abandoned altogether. Including, I think, one out of the Fifth Circuit in which, if I'm not mistaken, Judge Ouellette, right, who is, you know, a pretty prominent conservative Trump appointee, was on the Texas state court and is now in the Fifth Circuit, sort of, you know, joins the chorus of skeptics about qualified immunity. And I think that sometimes, you know, a dissent from a panel opinion or from a non-bank opinion can sort of function as a little cert petition or, like, give fodder to cert petitions or get the justice's attention. Not that, I mean, I think that they are probably interested, some of them. So I think it seems to me that there's a very good chance that they take this issue up and hear it next term. And whether there's, you know, whether there's a huge shift

in the law of qualified immunity, I don't know. I mean, I'm actually curious whether what is happening around us is going to influence their interest in announcing a grant on Monday. You know, the justices are obviously, you know, they all live in and around D.C. They are well aware of the moment that this that we're in. And so I'm I'm curious if they'll sort of put it off for a few more weeks because they don't really like to be the center of a news cycle or whether this is going to, you know, sort of actually further interest some of the justice who maybe hadn't been sure about taking this issue up. So we will see. But it seems to me at least possible that we will get grants in these cases the same day that this episode is released. There's been some discussion recently about legislation either ending qualified immunity

or at least more closely tailoring it, like having some type of legislation that would get rid of qualified immunity but put some limitations on it or allow it in certain circumstances. I know I think Justin Amash said that he was going to propose legislation. I'm not sure if that'll go anywhere, but it is the kind of thing that Congress may become more and more interested in, especially as people are calling their senators and representatives. Sure. Right. And I'd say that's a very welcome and wonderful development. I would only caution that simply just kind of getting rid of it and leaving nothing in its stead is not, in my view, necessarily the way to go. You know, the one example I give is, what if the day after Obergefell was decided,

a bunch of county clerks were individually liable for the times that they denied marriage licenses? Like, I mean, suppose they were gay themselves or like members of PFLAG, which is, you know, parents and friends of lesbians and gays. Like, really? So, I mean, I think it does make sense to have some limitations. It's just that this doctrine has gone completely off the rails in terms of how it's being applied. And so I think there needs to be thoughtfulness about this. I also want this to be an opportunity not just to think about qualified immunity, but to think about some of the other made-up immunities, too we're at it, right? So, you know, so prosecutorial immunity,

for example, which is much harsher than qualified immunity. It's absolute. So, you know, you can't sue a prosecutor for a Brady violation. You can't sue a prosecutor for training people literally to lie on the stand, right? And there are cases that have facts like this where you don't even get to the, is this clearly established? Because absolute immunity. And so I think it's an opportunity for a broader conversation.

And maybe that's asking a lot because the fact that the general public is talking about qualified immunity, right? That's remarkable in and of itself. So maybe me being like, what about this? What about abstention? No, I might be bridged too far. But prosecutorial, you know, absolute prosecutorial immunity seems like something that could be folded into a broader reform conversation.

I mean, one thing I wanted to ask about before we left this topic also was so OK, so hard to sue police officers. What about suing police departments and cities? Right. This kind of question of the possibility of going over the heads of individual officers to hold entities accountable for the behavior and practices of their employees. Yes. It turns out that's difficult, too. And also for reasons that are not very clearly rooted in the language of Section 1983, it turns out. So the Supreme Court has said that cities are persons within the meaning of Section 1983, so they may be sued. But the Supreme Court has also said that you can't sue a government simply for the acts of its employees. Or even, you can't even sue a city because of the negligent acts of a higher up either. You either need to have an unconstitutional policy, right? So like a law or regulation that is itself unconstitutional.

Or you need deliberate indifference to known or very highly probable violations. Or, you know, you could also have someone who's very high, a final policymaker who is telling people to violate the law. That would also do it. So like the attorney general saying, go ahead and clear out, hypothetically, Lafayette Square. Yes, right. So if that were, if that happened at the state level, then yes, absolutely. Right. Or if that happened at the local level, rather, yes. And there are cases like that where there's a case I'm thinking about called Pembar from the 1980s where the county attorney, the equivalent of the DA in, I believe it was in Cincinnati, said, go in and get them. And they were like, we don't have a warrant.

He was like, go in and get them. And that was, it turned out, sufficient. It seems like those types of cases are even more difficult because of the pleading standards that govern 1983 suits, which is, you know, it seems pretty obvious in some situations that there is either a culture or an underlying policy that creates so many widespread constitutional violations that you know it has to be coming from the top. But if you can't actually plead it, you won't even get discovery on it. And then there's no way you'll be able to prove it. And so a lot of these cases are the cases against municipalities are kicked at the pleading stage.

And so we don't get to see a lot of what's actually happening within these departments. That's right. The most recent case that really kind of, I think, had a chilling effect on these sorts of suits was Connick v. Thompson, which I believe was in 2010, perhaps 2009. And this was a case in which a man was on death row as a result, in part, as a result of a Brady violation that would have exonerated him.

And the facts are a little messier than that, but those are the basics. And when the Brady violation came to light, his conviction was overturned. But he had spent 14 years on death row. And the conviction was reversed. It was weeks before he was scheduled to be executed. And he sued. And he was able to point to four other, at least, Brady violations that should have put the district attorney on notice about that this was a big problem in the office. And he won, actually.

He won at the trial court level. The Fifth Circuit, he ended up winning there, on Bonk. And the United States Supreme Court, in an opinion by Justice Thomas, reversed five to four and said that these prior violations were not enough to put the DA on notice because there's a difference between the exonerating evidence in those cases. So he looked at the facts of those cases and said, there's a difference between blood evidence, for example, and other types of evidence. And so this shouldn't have necessarily put the DA on notice that he needed to train his officers about, train his prosecutors about Brady. And then Justice Thomas also said, also, by the way, students learn about Brady when they're in law school.

And they learn about it again when they're studying for the bar. And they learn about it again during continuing legal education classes. And so that's another reason why the district attorney wasn't necessarily on notice that he needed to train the prosecutors about Brady. And so as a result, they reversed and they said, you know, it's important for this standard not to collapse into mere negligence. It needs to be a very high standard in order to protect, he invokes the word federalism. So it's, you know, and so that's in some ways, you might say it's the most egregious case, but it's also the most recent. And what then happened is a slew of Brady cases in the Fifth Circuit were then dismissed at the motion to dismiss stage. Part of me does wonder, in some respects, what's worse.

So earlier we were talking about being able to appeal immediately versus not. And so much of my instinct, I want things to go to trial and I want people to have their day in court. I want them to have their moment. But I think about when I think about John Thompson, and I think about him having his moment, and I think about him having a jury fine in his favor and give him an award of $14 million, $1 million for every year that he was on death row. And even when at the court of appeals level, and then have his United States Supreme Court with the words equal justice under law inscribed on the building, be the one to say, no, not so fast, federalism. I don't know. I struggle with that in terms of when these cases should be decided. Yeah. Having it taken away at such a late stage,

somehow it feels more painful than losing early on. I mean, obviously, ideal that it doesn't go down that way at all. But it's a great point about some of the cost of, you know, delaying the pain if it's to police abuse and misconduct, law alone cannot be the solution, right? That is really clear. But reform of legal doctrine seems, if not sufficient, I think probably necessary to the kind of path forward. So I don't want our conversation to be mistaken as reflecting a belief that law will solve everything or even most things. But I do think that it is an important part of the picture. And so I'm glad we spent some time breaking down one really important dimension of the law that surrounds policing and democracy. Thank, policing, and, you know, democracy. Thank you so much, Fred, for being here. For our listeners, make sure to check out Fred's work on

qualified immunity. I think we can probably link to it in the show notes, or we will tweet it out on the Twittersphere. Other great people that you've already mentioned in this episode to check out include Joanna Schwartz at UCLA, who has done really great work on qualified immunity, and our co-host Leah Lippman, who has a 2018 article on qualified immunity and the constellation of doctrines that are related to it. Let's just maybe call out a handful of other law professors who are writing really important work about criminal justice, policing, race, democracy. And the list is long, so we're just going to call it a subset. But James Foreman, Monica Bell, Issa Kohler-Hausman, Elizabeth Hinton, who are all at Yale, Kate Levine and

Alex Reinhardt, who are colleagues of mine at Cardozo, Paul Butler and Allegra McLeod at Georgetown, Amna Akbar at Ohio State, John Rappaport at Chicago. Everybody working on kind of different dimensions of these questions, but all really important work. And I'm sure that we have missed others. So we're going to keep updating this list because we're going to keep revisiting this and related topics. And before we leave the topic, we kind of just wanted to pause for yet another minute and to call out a list of organizations that you might consider donating to. Those include 8Can'tWait.

The URL there is the number 8, 8Can'tWait.org, which is a project of Campaign Zero. They have put together these eight data-driven policies that can reduce police violence by more than 70 percent if all implemented. Cities like New York have already implemented some, but not all of them. So that, I think, is a good place to direct your donations. Any community bail fund, the Minnesota Freedom Fund, the Detroit Justice Center, the Brooklyn Community Bail Fund, the Chicago Community Bond Fund. We also got some recommendations from listeners. There's the Black Women's Blueprint, which was recommended by Tazira Abe, the organization Assata's Daughters, the Black Visions Collective, and there are more. But that is a good start to organizations working on related issues that you might consider donating to if you can.

So, Fred, thank you again so much for joining us. And we'd love to have you back sometime on the show. Sure. Anytime. This is a pleasure. Great. All right. Take care. So the next the next items we want to talk about involve things coming out of the court recently. So last week, the court rejected a challenge to California's lockdown order as applicable to places of worship, and it was a 5-4 decision. The case involved the South Bay United Pentecostal Church's attempt to enjoin California Governor Newsom's stay-at-home order as applied to its church services. So the order limited attendance at places of worship to 25% of building capacity or a maximum of 100 attendees.

And there was no opinion for the court. There was just a denial. But the chief justice wrote a concurrence explaining the denial. And it was interesting that it wasn't joined by any of the other justices who voted for denying the request. But the other thing that's interesting is you have these two opinions. So one by the chief, one by Justice Kavanaugh for the three other conservative justices.

And those two opinions seem to be based on two totally different sets of facts. It kind of reminded me of the Wisconsin voting case. So the chief's opinion acknowledged what I think all of us thought was missing from the Wisconsin voting per curiam decision. It acknowledged at length that COVID-19 has created an extraordinary public health emergency. It talked about how COVID has killed thousands of people.

It has no known cure, no effective treatment, and asymptomatic transmission is a huge problem. And so in light of this context, the chief said that the restrictions appear to be constitutional because the stay order limited the size of similar non-religious gatherings, things like plays, concerts, and sporting events where people stay in close proximity together for long periods of time. And he said that while there were other businesses that were treated differently, those businesses didn't involve the types of activities that create a more significant COVID risk. So he said, grocery stores and bakes, for example, don't usually involve people coming closely together to stay together for long periods of time. And so he said that the Constitution has delegated the line drawing on these matters to politicians and courts should not second guess them. By contrast, as you said, the Kavanaugh dissent seemed to be operating in an entirely different factual universe. Basically, Justice Kavanaugh says

the safety guidelines discriminate against places of worship in favor of comparable secular businesses. And then, as you said, you know, the comparable or the supposedly comparable businesses he points to are supermarkets, offices, restaurants, you know, many of which are subject to all kinds of limitations under California law anyway. So it's just factually wrong that all of those operations that he listed were able to proceed business as usual, where churches and churches alone were not. And he didn't, you know, engage at all with the chief justice's efforts to demonstrate, which I think

even could have gone further, that there are significant material differences between churches and other businesses that were allowed to be open. As you said, people pack tightly together in close spaces, but I think the chief justice doesn't mention, and others have pointed out, there is a lot of talking. There is often singing, right? And we actually know, as far as we understand anything about this virus, that it seems likely that some of these very high transmission events have happened where people are talking or singing in close quarters, right, some people just may be really, really contagious, even if they're asymptomatic, can be really exacerbated, right, by this kind of close quarters, indoor environment, like churches, which, again, you know, as you said at the outset, are not at all being told they cannot proceed in their operations, simply that they need to proceed at significantly reduced capacity. So I would say that the fact that there were four justices who seemed willing to enjoin this order, you know, a public health and safety order issued by a governor of a state,

actually, I found pretty gobsmacking. You know, like I, a couple weeks earlier, there had been a petition out of Pennsylvania that had been rejected by the Pennsylvania Supreme Court. Now, that was brought by a group of businesses challenging the Pennsylvania stay-at-home order, and the court denied that request, no noted dissent. So I actually had sort of taken the message from that to be, there's not a lot of appetite on the Supreme Court to second-guess the public health decisions of state and local officials right now. Like, we are in the midst of a pandemic pandemic and the court is modest enough to know that it should not be second guessing judgments like that.

And just a couple of weeks later, we find out that at least when we're talking about asserted violations of the First Amendment and free exercise claims in particular, there are four of them who are willing to undo the work of public health officials. And I just found that pretty shocking. The chief justice didn't seem to be writing an equivocal concurrence, right? That concurrence was a very strong concurrence. So I didn't. One big takeaway there, I think, is that they're not going to get a fifth vote to, you know, enjoin any of these orders, at least while the conditions remain roughly similar to those described in the chief justice's opinion. I think as this pandemic proceeds and if rates continue as they are in most places to really decline, you know, then these orders stay in effect, then you could see things

coming down differently. But of course, state and local officials are lifting their orders as this pandemic recedes. And so I'm not sure we're likely to see any more action at the Supreme Court unless we have like a big resurgence in the fall and sort of the reinstitution of various orders, in which case I think we very well could. Okay, so let's move briefly on to opinions. So last Monday, the court issued five opinions in a single day. And that's a lot, right? So we found out just as the court took the bench, the virtual bench at 10, that there would be five opinions. And I think we were all sort of going, wow, that's a lot. But I had a sense that they were likely to be doing some kind of deck clearing,

right? Because there is a lot that is big that they still have to decide. And I think I was basically right that they wanted to get some of the less divisive and controversial and lower profile cases out so they could focus on the big ones. And that's mostly what they did. Yeah, there's not a lot left, I'll say, on the non-controversial front, looking at the opinions we're still waiting for. It's pretty much all... There's like 19 or 20 left, and there probably are, I would say maybe a quarter of those or so are not the big ones, but the rest are pretty big. So of the five, we're just going to quickly talk about a subset of them. The first is what we've been calling on the podcast the PROMESA case, and

that's the case involving the Financial Oversight and Management Board of Puerto Rico. So we've previewed this case on a couple of different episodes. The basic backstory is that in 2016, Congress passed the Puerto Rico Oversight Management and Economic Stability Act, or PROMESA. And part of that law created an independent entity to file for federal bankruptcy protections in Puerto Rico, restructure debt, sort of do things like that. What precipitated this was this massive financial crisis in Puerto Rico. It was already bad. It was worsened by Hurricane Maria. So that's what led to the passage of this law.

And the board, this financial oversight and management board that the law created, was to consist of seven members, one chosen by the president alone, the others chosen by the president from a list of six supplied by congressional leaders. And the constitutionality of that mechanism for appointing members of the board was the key question in the case. So some creditors who were unhappy with board decisions filed a lawsuit arguing that these board members were officers of the United States and needed to be appointed pursuant to the Constitution's Appointments Clause. So what is the Appointments Clause? Part of Article 2 that says, as relevant here, that officers of the United States are nominated by the president, appointed by and with the advice and consent of the Senate. And that's understood to mean Senate confirmation.

And these folks definitely didn't get that. So if this is how the argument ran, if they were officers of the United States and their appointments were unconstitutional, and so maybe it was everything that they had done, although that ended up being irrelevant. Okay, so why was that irrelevant? Because another constitutional provision, which is part of Article 4, empowers Congress to make all needful rules and regulations respecting the territory belonging to the United States. And so the court, in an opinion by Justice Breyer, held that the Appointments Clause does apply to Puerto Rico and other territories, but that doesn't mean that these board members are subject to it. So under Article 4, Congress can create positions inside the territories like Puerto Rico that are not subject to the Appointments Clause, right? The Appointments

Clause applies to federal officials. Congress, through its Article 4 powers, can create local offices and positions. And if it does that, it doesn't need to follow the Article II Appointments Clause procedures. And a few things were really interesting to me about this opinion. One is that the kind of explanation that the court gave turned largely not on the Supreme Court's own precedence, but on political branch practice, right? Basically said, here's what Congress has done with respect to the territories, actually stretching all the way back to Congress's treatment of the first Congress's treatment of the Northwest Territories. And what it has done is it has created offices with local duties and functions, and it has often done so without using the appointments clause. And so that is part of what the law is, right? Like, I always really

appreciate it when the court acknowledges that law is made by entities that are not it, right? That the political branches get to make law too. So there's all this history. And so the court says, as to these officers, we basically need to look at whether they exercise primarily local powers and duties. And if so, they can be appointed under whatever mechanism Congress wants to create pursuant to Article 4. And here, a combination of the Promessa statute itself and the particular responsibilities that Congress gave to these officials basically means that, yes, they are local. And so the process that Congress created for their appointment was perfectly constitutional. Yeah. One of the interesting things about the argument was that it seemed like both the parties

really pretty much agreed on what the test was for the most part, and that it was going to turn on whether the duties that were exercised were local or federal. And it's just they really disagreed on how to characterize those duties. And there didn't really seem to be any disagreement among the justices on that question. The one other thing to flag was the question of the Insular cases, right? So some of the challengers to the board had basically, in particular, a group very ably represented by Jessica Mendez-Kolberg, had asked the court to take this opportunity to overrule the Insular cases, a cluster of cases from the beginning of the 20th century, basically holding that constitutional rights provisions don't apply with full force in the territories.

Some of those cases are about Puerto Rico specifically. Some use vile language and reasoning about alien races. I think it's pretty clear they need to be consigned to the dustbin of history, but the court didn't see any occasion to revisit them here. The only thing I'll say about the Sotomayor concurrence, which is pretty interesting, it's a concurrence that reads actually more like a dissent. And I mean, I think she's not totally sure that these officials are exempt from the appointments clause, finds herself troubled by the fact that they end up in this kind of twilight zone of accountability. So they're neither selected by Puerto Rico nor subject to the appointments clause, right, which, you know, divides responsibility among the president and the Senate. And so I think that she thinks a wholesale rethinking of Puerto

Rico's status under the Constitution, particularly in light of Puerto Rico's most recent constitution, is in order, but says that as those issues aren't really presented here, she's going along with the majority. But it's one of those dissent-y concurrences. Yeah. I mean, she makes a very good point that it's quite counterintuitive to suggest these people are exercising purely local functions when the local folks have been completely excised from the process. The governor, nobody really had, no one local has much influence over what's happening. It's really being imposed upon them. So I found the concurrence very interesting as well. I also wonder, Kate, what do you think happened here?

It took, what, eight months for this opinion, six months, seven months for this opinion to come out, for a unanimous opinion to come out, there had to be some rearranging the deck chairs. There's no way that it started out unanimous and ended unanimous and just took that long to write the opinion. I mean, so do you have a theory of what changed along the way? I mean, I agree it's odd, but the Sotomayor dissent is long, so I'm sure it took her some time to prepare it. But yeah, it's a medium length, not particularly long, unanimous majority opinion. The Thomas concurrence is quite short. So I don't have a good theory. I kind of wonder whether she originally had, it originally was a dissent. She had a couple other people on board and then maybe Justice Breyer changed some of the language in the majority to get some other folks on board.

And she kind of diluted hers a little bit. But I don't know. It's very interesting. But I feel like something maybe in whatever, 50 years, I'm going to go back and look at these notes once they're released and find out what happened. The other thing to note about this is, you know, that was an October case. This means there are only two October cases left, the two Title VII cases. And there are three justices who have not written an October opinion. That's the Chief Justice, Justice Ginsburg, and Justice Kavanaugh, though I suspect that

Justice Kavanaugh probably was assigned Malvo, which then ended up being dismissed. So that's just something to note. The other case we wanted to briefly highlight, the other opinion, is Thole versus U.S. Bank. That case involves the intersection of ERISA, which is the statute that governs retirement plans, and constitutional standing, which is the principle that to sue someone in federal court, you have to be personally and concretely affected by their alleged misconduct. We covered this case at the live show. Basically, the plaintiffs in the case alleged that the fiduciaries of U.S. Bank's pension plan improperly invested the pension

plan's assets and then when the recession hit, lost hundreds of millions of dollars and became underfunded, which means it didn't have enough assets to pay all of the pension benefits that were promised. So the plaintiffs sued, but then after they sued, the employer made contributions to the plan and brought it back to overfunded status. And that's something that's required under federal law. When you have a pension plan and it's underfunded, the employer is basically on the hook to then add money to the pension plan

to make sure that the employees can get the benefits they're promised. So this means that the beneficiaries were not at risk of actually not getting their pensions. And so the question was whether there is standing to sue pension plan fiduciaries who allegedly violated their fiduciary duties under ERISA when there's no apparent risk of monetary injury. So whether the plaintiffs win or lose, they won't get a dollar more in pension benefits. And we talked in pretty great depth before about what everyone had argued that the basic gist, the plaintiff said, at the common law of trust, which preceded

as ERISA, and ERISA was based on the common law of trust, beneficiaries can sue when there's improper management of a trust, whether or not they've been injured yet. I should say the defendants very hotly disputed this characterization of trust law. But they also argued a very practical point, which is when you have a pension plan, the only people you can expect to sue when fiduciaries are acting improperly is the plan beneficiaries. And so if they can't sue, no one's going to sue. And fiduciaries will just be able to ignore their statutory obligations without any recourse. There were some potential compromise options available to the justices. And to be honest, I thought that's what would happen, that the court would say,

if there are ongoing fiduciary breaches, you can sue for injunctive relief, but you can't sue for damages when there's no risk of loss. But that's not what the court did. Instead, in an eight-page opinion authored by Justice Kavanaugh and joined by the four other conservative justices, the court held that participants in a defined benefit plan have no standing to challenge fiduciary misbehavior if the outcome of the lawsuit won't affect their future pension benefits. I will say Justice, I think Leah said before that this was her Fed courts exam a couple years ago. And she has said that she would give Justice Kavanaugh, I think either a B minus or a B plus, because it was

a very short opinion. I will say this is an enormously complicated case. Standing doctrine is enormously complicated. ERISA is incredibly complicated. There's a lot of, you know, 18th century, 19th century English common law that was fleshed out in the briefs. And he really didn't go to any of that. And so he just kind of rejected the idea based on kind of core principles of standing that someone can get into court if there's no risk of concrete risk of harm in the future, irrespective of the context. And he also said, you know, don't worry about the fact that plan participants can't sue. First of all, that's not just saying no one will be able to sue isn't enough reason to find standing. And second of all, there's lots of

other mechanisms, including the DOL that can regulate fiduciary behavior. Justice Sotomayor wrote a dissent that basically said this majority opinion is overly simplistic. It doesn't analyze any of the issues the parties fleshed out, and it misapplies the court's orissa jurisprudence. And so, you know, I generally, I think I agree with the outcome of the majority of the opinion, and I know that Lee and I disagree on this. I think standing is a judicially created doctrine, but while it exists, I don't think it's inconsistent to say that people actually have to be harmed concretely before you have to get into court. At the same time, I think that Justice Kavanaugh's opinion seems like it's kind of a justice who has not really

ever had to deal with ERISA. And so I think it is a bit overly simplistic. And I have been on the losing end of Supreme Court opinions that don't really engage at all with the substance of the arguments. And it's enormously frustrating because you spend hundreds, if not thousands of hours, you know, looking at all of this case law and looking at all these precedents and trying to give the court every tool it needs to address the arguments. And when you get a really short opinion back that just ignores most of those arguments, it's very frustrating. So I don't think this case will be super consequential because there aren't a lot of lawsuits like this, but it's an opinion that is now on the books.

I think that you and Leah and probably Leah's Fed court students know this case better than I do. So I never really managed to avoid immersing myself in it. I think I'm going to continue to do that. But I will say that, you know, there are big, important questions about how congressionally created rights of action intersect with Article 3 standing. Right. It's definitely the case that Congress has power, some power to define injuries. And, you know, Kennedy has this language in his Lujan concurrence, which he says, Congress can define injuries, articulate chains of causation that give rise to a case or controversy where none existed before. That's like this, you know,

big statement of support for Congress's power to create standing. And I think you could also take the position that Congress has no such power. And the court has basically been in a smirky middle space, I think, for many, many years. And standing, you know, should mean that if someone's not harmed by the violation of a statute, that Congress can provide a remedy for and give you the ability to go to federal court to vindicate, I just don't think this opinion does much to sort of further develop what the parameters of that are. Totally agree with you. And that's one thing that I find frustrating, because you're right. So the court has said Congress can't create standing. It can't create constitutional standing. The court has also said Congress can recognize intangible harms that can rise to a level of harm that is a constitutionally cognizable injury. Those two things aren't like clearly in conflict, but they're certainly in tension.

And this opinion does nothing to really flesh that out. The other thing the court has said is that even if at common law you would have had standing and that doesn't mean that you magically will under a statute, but the court has also said we're going to look at historical bases for when you could get into court and that can inform our constitutional analysis. And I really don't understand how those two things can coexist. is the Freedom of Information Act, right, FOIA. So there's a federal statute that says you get a right to a document, and if the agency doesn't give you your document, you get to go to federal court and sue for it. And there's just no common law analog, and maybe it is the case that a particularly, like a robust view of sort of the,

or a very narrow view of Congress's power to create, identify harms and create a cause of action to address those harms would mean that the Freedom of Information Act and the federal right of action that it creates is unconstitutional. And that, to me, just can't be right. But I do think there, but I'm not sure the court has ever decided a case that answers the question of why it is permissible for Congress to create that statutory right. Totally.

And I do think that practical concerns might have heavily influenced the court's opinion here. In this situation, not only, there are a whole bunch of safeguards that protect pension beneficiaries, including the fact that employers have to kick in money if the plan gets underfunded. There is a, the Pension Benefit Guarantee Corporation is basically insurance for pension plan benefits. So there's all these things that really act to protect employees. And I suspect that that influenced the analysis, even if it didn't enter that much into the actual opinion itself.

We're just going to briefly mention the lineups on the other three opinions that came out. Two of them had the exact same lineup. So Nasrallah versus Barr, which was about the reviewability of factual findings for claims involving the Convention Against Torture. It's a immigration statute or it's a form of immigration relief. That case was a Justice Kavanaugh decision joined by the chief, Justice Gorsuch, and the four more liberal justices and Justice Alito and Justice Thomas dissented and then Bannister versus Davis had the exact same lineup but with Justice Kagan authoring the majority and again Justice Alito and Justice Thomas dissenting. It was

about Rule 59E motions in the habeas context and the court held that they are not second and successive habeas petitions. Just I should note a shout out to my colleagues, including friend of the show, Andrew Kim, who worked on that case. Congratulations to them. The last case is the GE energy power conversion case, which was about international arbitration.

A unanimous opinion by Justice Thomas. OK, so that's all we have time for this week. It is going to be a big month for the Supreme Court. Lots of opinions, probably a couple of days a week. So we will have both our regularly scheduled content, maybe some short day of recaps. I think we will also do more special content like we did in the first half of the show. So please keep refreshing your feed for that. Thank you again to our special guest, Fred Smith, who was just so great.

To our producer, Melody Rowell. To Eddie Cooper for our music. To all of you for listening, for sending suggestions and encouragement our way. You can support us by buying merch at our website, which is strictscrutinypodcast.com. You can support our Glow campaign, which is glow.fm forward slash strictscrutiny. Thanks so much, everyone. We'll see you next time. Thank you.