No. 17-______
In The Supreme Court of the United States ______◊______
ALMIGHTY SUPREME BORN ALLAH,
Petitioner,
v.
LYNN MILLING, ET AL
Respondents. ______◊______
On Petition For Writ of Certiorari To The United States Court of Appeals For The Second Circuit ______◊______
PETITION FOR WRIT OF CERTIORARI
______◊______
Counsel for the Petitioner:
John J. Morgan Barr & Morgan 84 West Park Place, Third Floor Stamford, CT 06901 (203) 356-1595 [email protected]
i
QUESTIONS PRESENTED
In the seminal cases of Bell v. Wolfish, 441 U.S. 520 (1979) and
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) the Court defined what constitutes "punishment" and held that the Due Process Clause prohibited the state from punishing a detainee prior to an adjudication of guilt. In this case, arbitrarily incarcerating pretrial detainees in solitary confinement with
"near total physical restrictions" and without identifying a legitimate governmental purpose was unanimously held unconstitutional.
The plaintiff in this case was subjected to exactly the sort of pre-trial punishment held unconstitutional by the Supreme Court, as well as several
Circuit Court holdings and District Court precedents. However, the Second
Circuit granted immunity in this case because: "No prior decision of the
Supreme Court or of this Court has assessed the constitutionality of [the] particular practice." Accordingly, the questions presented are:
1) To overcome qualified immunity, must a plaintiff show that a "particular practice" was already held unlawful by a controlling court?
2) In the alternative, should the doctrine of qualified immunity be modified or overruled?
ii
PARTIES TO THE PROCEEDING
Petitioner – Represented by John J. Morgan
Almighty Supreme Born Allah
Respondents – Represented by Steven M. Barry
Lynn Milling, Director of Population Management
Brian Griggs, Counselor Supervisor
Jason Cahill, Captain
Angel Quiros, Warden
L. Powers, Deputy Warden
Brett Fulcher, Deputy Warden
Michael LaJoie, District Administrator
Deputy Commissioner James Dzurenda
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ...... i PARTIES TO THE PROCEEDING ...... ii TABLE OF CONTENTS ...... iii TABLE OF CITED AUTHORITIES ...... v PETITION FOR WRIT OF CERTIORI ...... 1 OPINIONS BELOW ...... 1 JURISDICTION ...... 1 STATEMENT OF THE CASE ...... 2 LAW AND ARGUMENT ...... 5 I. The Court should grant certiorari because lower courts are divided and inconsistent in their application of the “clearly established law” standard ...... 6 II. The Second Circuit’s application of qualified immunity is incorrect and virtually impossible for any plaintiff to overcome ...... 9 a) Second Circuit precedents are incorrect, internally inconsistent and unduly restrictive of constitutional rights ...... 9 b) The qualified immunity standard, as applied by the Second Circuit in this case, cannot be reconciled with decisions in other Courts of Appeal ...... 11 III. In the alternative, certiorari should be granted to consider whether qualified immunity should be modified or overruled because the “clearly established” test, as applied, is not working as intended ...... 15 a) The qualified immunity standard is circular and amorphous ...... 16 b) Qualified Immunity serves none of the purposes for which it was intended ...... 17
iv
c) Despite crushing otherwise valid constitutional claims, the Harlow standard also fails its stated goal to protect public officials from the need to engage in protracted litigation ...... 20 CONCLUSION ...... 21
v
TABLE OF CITED AUTHORITIES Page(s) Cases: A.M. ex rel. FM v. Holmes, 830 F.3d 1123 (10th Cir. 2016) ...... 13 Anderson v. Creighton, 483 U.S. 635 (1987)...... 18 Angel v. Bullington, 330 U.S. 183 (1947)...... 15 Arizona v. Gant, 556 U.S. 332 (2009)...... 19 Baynes v. Cleland, 799 F.3d 600 (6th Cir. 2015) ...... 12 Bell v. Wolfish, 441 U.S. 520 (1979)...... passim Bock v. Gold, 408 Fed. Appx. 461 (2d Cir. 2011) ...... 10, 11 Brosseau v. Haugen, 543 U.S. 194 (2004)...... 8 Camreta v. Green, 563 U.S. 692 (2011)...... 19 City and Cty. of San Francisco v. Sheehan,- -U.S.-, 135 S. Ct. 1765 (2015) ...... 8, 15 Crawford-El v. Britton, 523 U.S. 574 (1998)...... 15 Dean v. Blumenthal, 577 F.3d 60 (2d Cir. 2009) ...... 10, 11 Estate of Escobedo v. Bender, 600 F.3d 770 (7th Cir. 2010) ...... 12 Estate of Perry v. Wenzel, 872 F.3d 439 (7th Cir. 2017) ...... 12 Harlow v. Fitzgerald, 457 U.S. 800 (1982)...... passim Harte v. Bd. of Comm’rs., 864 F.3d 1154 (10th Cir. 2017) ...... 13
vi
Hope v. Pelzer, 536 U.S. 730 (2002)...... 7, 8 Kisela v. Hughes, -U.S.-, 2018 U.S. Lexis 2066 (April 2, 2018) ...... 9 Kisella v. Hughes, -U.S.-, 2018 U.S. LEXIS 2066 (April 2, 2018) ...... 15 Latits v. Phillips, 878 F.3d. 541 (6th Cir. 2017) ...... 9 Lugar v. Edmondson Oil Co., 457 U.S. 992 (1982)...... 15 Moore v. Vega, 371 F.3d 110 (2d Cir. 2004) ...... 10, 11 Phillips v. Cmty. Ins. Corp., 678 F.3d 513 (7th Cir. 2012) ...... 12 Plumhoff v. Rickard, -U.S.-, 134 S. Ct. 2012 (2014) ...... 8 Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) ...... 14 Terebesi v. Torresco, 764 F.3d 217 (2d Cir. 2014) ...... 9, 10, 11 Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999) ...... 10, 11 United States v. Lanier, 520 U.S. 259 (1997)...... 7 Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002) ...... 13 White v. Pauly, -U.S.-, 137 S. Ct. 548 (2017) ...... 8, 15 Wilson v. Boston, 421 F.3d 45 (1st Cir. 2005) ...... 14 Ziglar v. Abbasi, -U.S.-, 137 S. Ct. 1843 (2017) ...... 15, 16, 17
vii
Statutes & Other Authorities: 28 U.S.C. §1331 ...... 1 28 U.S.C. §1254(1) ...... 1 Allen K. Chen, The Facts About Qualified Immunity, 55 Emory L.J. 229 (2006) ...... 16, 17 Brief of the American Civil Liberties Union and the American Civil Liberties Union of the District of Columbia as Amici Curiae in Support of the Respondents, filed in District of Colombia v. Westby, Docket No. 15-1485 (July 2017) ...... 16 Brief of the Cato Institute as Amicus Curiae Supporting Petitioners, filed in Pauly v. White, Docket No.17-1078 (March 2, 2018) ...... 16, 17 Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2 (2017) ...... 16, 20 Susan Bendlin, Qualified Immunity: Protecting All but the Plainly Incompetent (and Maybe Some of Them, Too), 45 J. Marshall L. Rev. 1023 (2002) ...... 16, 17 William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45 (2018) ...... 16, 17
1
PETITON FOR WRIT OF CERTIORARI
Petitioner, Almighty Supreme Born Allah, respectfully petitions for a Writ of Certiorari to review the judgment of the United States Court of
Appeals for the Second Circuit in this case.
OPINIONS BELOW
The original opinion of the Court of Appeals, dated November 22,
2017,is reported at Allah v. Milling, 876 F. 3d 48 (2d. Cir. 2017)
The opinion of the District Court, dated April 4, 2016, is not reported, but is available at Allah v. Milling, 2016 U.S. Dist. Lexis 45081
(D. Conn. 2016).
The Denial of Motion for rehearing or rehearing en banc was denied on January 23, 2018.
JURISDICTION
The district Court’s jurisdiction was invoked pursuant to 28 U.S.C.
§1331. The final disposition of the Court of Appeals entered on January
23, 2018. This Court’s jurisdiction is invoked under 28 U.S.C. §1254(1).
2
STATEMENT OF THE CASE
The plaintiff commenced this action alleging a section 1983 violation because the conditions imposed upon him as a pretrial detainee amounted to unconstitutional punishment. The plaintiff had not been convicted of a crime but he was placed by the Connecticut Department of Corrections directly into "Administrative Segregation" upon his arrest in September
2010.
The Department of Corrections established a number of so-called
"restrictive statuses" for prisoners who are not placed in the general prison population. In Administrative Segregation Mr. Allah was held in solitary confinement within his cell 23 hours a day; his telephone usage was severely restricted; his interpersonal visits were severely restricted; his recreation was limited in time and restricted by shackles; his ability to keep incoming mail was restricted to 5 pieces (as distinct from general population which was restricted only by available space); the amount of property he was allowed to own was reduced from 6 ft.³ to 4 ft.³ ; he was prohibited from having any contact visits; and, he was forced to shower in shackles which prevented removal of undergarments during the shower.
He was never allowed to move outside his cell without being shackled hand and foot. In addition, Mr. Allah was denied access to the programs and privileges of general population. In addition to the physical restrictions, the length of incarceration time for Administrative Segregation prisoners
3 was extended because they were denied statutory good time, outstanding meritorious performance, etc.
At trial, uncontradicted evidence was adduced showing that the conditions of "Punitive Segregation" (a restrictive status expressly intended as punishment), were substantially less onerous than the conditions of "Administrative Segregation." Punitive Segregation inmates are not forced to shower in leg irons or wet underwear. Punitive
Segregation inmates remain entitled to good time (if applicable) and unlike
Administrative Segregation, Punitive Segregation lasts a closed period of time.
The District Court entered judgment in Mr. Allah's favor and the
State appealed. The Court of Appeals unanimously held that Mr. Allah's constitutional rights were violated as a result of the onerous treatment imposed while he was a pretrial detainee. Opinion, at 17-22 and
Concurring Opinion, at 1. However, the panel divided on the issue of qualified immunity, with the majority granting qualified immunity.
Both the majority and the dissent, considered a hypothetical examined in Bell v. Wolfish, 441 U.S. 520, 538 n. 20 (1979). The principal holding of which established the rule that corrections officials could never justify punishment, retribution or deterrence with respect to a pretrial detainee. The Court adopted an inferential standard under which a restriction or condition which may on its face appear to be punishment
4 might be justified by a legitimate non-punitive government objective. In making the point, the Court identified what amounts to a worst-case scenario:
"[L]oading a detainee with chains in shackles and throwing him in a dungeon may insure his presence at trial and preserve the security of the institution. But it would be difficult to conceive of a situation where conditions so harsh, employed to achieve objectives that could be accomplished in so many alternative and less harsh methods, would not support a conclusion that the purpose for which they were imposed was to punish." Bell v. Wolfish, 441 U.S. 520, 538 n. 20 (1979).
The majority acknowledged that the treatment described by Wolfish is "excessively harsh.” Opinion, at 20. Later, the majority held that the onerous treatment of Mr. Allah "may have related to prison security in the sense that it incapacitated Allah. But the extremity of the conditions opposed on Allah comes perilously close to the Supreme Court's description of ‘loading a detainee with chains and shackles and throwing them in a dungeon.’” Opinion, at 21. Significantly, "Defendants have failed to explain why such extreme treatment was necessary.” Id.
The dissent argued that the conditions imposed on Mr. Allah were not materially different from loading him with chains in shackles and throwing him in a dungeon. Dissent, at 5-6. Therefore, both the majority and the defense acknowledged that the onerous conditions under which
Mr. Allah was held as a pretrial detainee were at least "perilously close" to the worst-case example discussed by the Wolfish Court.
5
Furthermore, both the majority and the dissent acknowledge that the onerous conditions were imposed arbitrarily upon Mr. Allah. The majority held that Mr. Allah's placement "cannot be said to be reasonably related to institutional security, and the defendants have identified no other legitimate governmental purpose justifying the placement.” Opinion, at 22. The dissent noted that the conditions imposed on Mr. Allah bore no relationship to an underlying infraction nor did they have any conceivable relationship to institutional security. Dissent, at 4-5. The dissent noted that under Wolfish "near-total physical restrictions" could only be justified by a significant governmental interest. However, the defendants in this case imposed the restrictions without any interest in justifying them whatsoever. Dissent, at 6. In short, neither the majority nor the dissent identifies any plausible governmental interest upon which the harsh conditions could be justified.
Despite the acknowledged arbitrary imposition of excessively harsh conditions unrelated to a legitimate governmental objective, the majority granted qualified immunity. The opinion turned on a single consideration:
"No prior decision of the Supreme Court or of this Court has assessed the constitutionality of [the] particular practice." Opinion, at 25.
LAW AND ARGUMENT
Our laws acknowledge that any time an individual is detained by the state, it is unpleasant. Detention by its nature entails restriction on
6 liberty and control of personal freedom. However, solitary confinement, physical bindings, loss of privileges and increased the time of confinement far exceed the restriction on liberty and control of personal freedom necessary to assure presence at trial and objectively constitute unconstitutional punishment when applied to a pretrial detainee. We submit, any reasonable officer must have understood that any condition remotely close to the worst-case scenario is unconstitutional per se. As a result, any reasonable governmental official had "fair warning" of the unconstitutionality of arbitrarily holding Mr. Allah in solitary confinement pending trial because of the Wolfish Court's explicit example. We further submit that the Court of Appeals' requirement of a "prior decision assessing the constitutionality of a particular practice" is contrary to the standard applied by several Courts of Appeal as well as the rules enunciated by this Court. If certiorari is granted, we will request the
Court to reverse the decision of the Second Circuit Court of Appeals.
I. The Court should grant certiorari because lower courts are divided and inconsistent in their application of the “clearly established law” standard.
There is a two part test used to decide assertions of qualified immunity.
(1) that a government official violated a statutory or constitutional right; and,
(2) that the right was clearly established at the time of the alleged conduct.
7
See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In this case, as in many cases, the first part of the test is not the substantial issue. Rather, the formulation of the "clearly established" prong proves problematic.
Most, if not all, lines of authority regarding whether a rule was
"clearly established" derive from Harlow v. Fitzgerald, 457 U.S. 800 (1982).
That case held that a governmental officer was entitled to immunity if their actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id, at 818. Early cases required a plaintiff to identify a previous case that was
“fundamentally similar” or “materially similar” to the plaintiff's action.
That standard was rejected in United States v. Lanier, 520 U.S. 259, 263
(1997) and Hope v. Pelzer, 536 U.S. 730, 740-43 (2002).
The "similarity" standards were largely abandoned due to the "rigid overreliance on factual similarity." Instead, the Court adopted a "fair warning" requirement. Hope v. Pelzer, 536 U.S. 730, 740-43 (2002). The
Hope Court determined that unlawfulness can be "clearly established" from direct holdings, from specific examples describing certain conduct as prohibited, or from the general reasoning that a court employs. Id, at 742-
44. After Hope, the salient question became whether the state of the law gave the government officers "fair warning" that their alleged treatment of the plaintiff was unconstitutional. Id. As presently formulated, the "fair warning" test grants immunity unless the contours of the constitutional
8 right are sufficiently clear such that a reasonable official would have understood that what he was doing violates that right.
The Court has always at least given lip service to the concept that case law directly on point is not required, but existing precedent must place the statutory or constitutional question beyond debate. See e.g. City and Cty. of San Francisco v. Sheehan,-US-135 S.Ct. 1765, 1775 (2015).
The holding stands for the proposition that officials may be on notice that their conduct violates established law even in novel factual circumstances.
So while similar earlier cases can provide "especially strong support for a conclusion that the law was clearly established, they are not necessary to such a finding.” Hope v. Pelzer, 536 U.S. at 739, 741.
Meanwhile, another line of authority began to develop in "excessive force" cases. In those cases, the Court demanded a higher degree of fact specific analysis about the specific context of the case rather than a broad general proposition. This was because the dispositive inquiry in excessive force cases was whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. The Court required a more particularized (and hence more relevant) fact based inquiry.
Brosseau v. Haugen, 543 U.S. 194, 198 (2004). This fact sensitive approach has been followed in subsequent excessive force cases. See e.g.
White v. Pauly, -US-, 137 S.Ct. 548, 552 (2017); Plumhoff v. Rickard, -US-,
134 S.Ct. 2012, 2023 (2014).
9
Over the various terms of the Court, the two lines of authority merged resulting in a standard which has been described as an “absolute shield.” Kisela v. Hughes, -US- 2018 US Lexis 2066 at *12 (April 2, 2018)
(Sotomayor and Ginsburg dissenting) and “impossible for any plaintiff to meet.” Latits v. Phillips, 878 F 3d. 541,558 (6th Cir. 2017) (Clay, J. concurring in part and dissenting in part). The standard looks deceptively straight forward. In practice, however, the Courts of Appeal struggle mightily to consistently apply the standard.
II. The Second Circuit's application of qualified immunity is incorrect and virtually impossible for any plaintiff to overcome.
As noted above, in this case, the Second Circuit Court of Appeals granted qualified immunity because it did not identify a prior decision of the Supreme Court or of the Second Circuit which assessed the constitutionality of the particular solitary confinement practice in this case. Opinion, at 25. a) Second Circuit precedents are incorrect, internally inconsistent and unduly restrictive of constitutional rights.
Terebesi v. Torresco, 764 F.3d 217, 230-31 (2d Cir. 2014) holds that: the purpose of the qualified immunity doctrine is to ensure that the official being sued had fair warning that his or her actions were unlawful. To this end, plaintiff need not show a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.
To determine whether the relevant law was clearly established we consider
10 the specificity with which the right was defined by the Supreme Court or
Court of Appeals case law on the subject and the understanding of a reasonable officer in light of pre-existing law. Even if the Court has not explicitly held a course of conduct to be unconstitutional, the Court may nevertheless treat the law as clearly established if decisions from this circuit or other circuits clearly foreshadow a particular ruling on the issue.
Id. The Second Circuit also held that "even in the absence of a binding precedent, a right is clearly established if the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right." Townes v. City of New York, 176 F.3d 138, 144
(2d Cir. 1999). These decisions adopt a rather broad “fair warning” standard.
However, other holdings within the Second Circuit are substantially different and more restrictive. For instance, in Moore v. Vega, 371 F.3d
110, 114 (2d Cir. 2004), the Court held: "Only Supreme Court and Second
Circuit precedent existing at the time of the alleged violation is relevant in deciding whether a right is clearly established.” Id.(emphasis added); Bock v. Gold, 408 Fed. Appx. 461, 462 (2d Cir. 2011); Dean v. Blumenthal, 577
F.3d 60, 68 (2d Cir. 2009) (relied on by the majority). These cases reflect the narrowest possible view of qualified immunity. Under these decisions, even if there is no contrary precedent, a plaintiff can only overcome qualified immunity if there is a specific precedent. Further, the precedent
11 must be from either the Supreme Court or the Second Circuit Court of
Appeals. This highly restrictive standard was applied in the instant case.
Mr. Allah identified two appellate cases (one of which was a Second Circuit case), several District Court cases as well the compelling example set out in Wolfish. That comprehensive showing was still not enough for the
Second Circuit. Based upon the result, one might reasonably ask: How much “establishment” is necessary before a principle becomes “clear” for qualified immunity purposes?
The present case, Dean v. Blumenthal, Moore v. Vega, and Bock v.
Gold are inconsistent with Terebesi v. Torresco and Townes v. City of New
York. The Second Circuit itself is internally inconsistent. If one of the preeminent courts in the land cannot consistently apply the clearly established test, it is small wonder that other courts routinely struggle with it. b) The qualified immunity standard, as applied by the Second Circuit in this case, cannot be reconciled with decisions in other Courts of Appeal.
Other circuits reviewing the Supreme Court mandates regarding the
"clearly established" prong of qualified immunity have adopted standards which differ materially from those adopted by the Second Circuit. We submit the Court should harmonize its "clearly established" jurisprudence and eliminate inconsistencies amongst the Courts of Appeal. We submit a small sampling of cases applying what is supposed to be the same standard in an inconsistent manner.
12
The most stark departure from the present case is seen in the
Seventh Circuit which holds fast to the principle that “a case directly on point is not required for a right to be clearly established,” and that “[e]ven where there are ‘notable factual distinctions,’ prior cases may give an officer reasonable warning that his conduct is unlawful.” Phillips v. Cmty.
Ins. Corp., 678 F.3d 513, 528 (7th Cir. 2012) (quoting Estate of Escobedo v.
Bender, 600 F.3d 770, 781 (7th Cir. 2010)). That is radically different from the Second Circuit's stated requirement the there be a prior decision in which a particular practice has been assessed. The Seventh Circuit, as recently as last year, seemed almost diametrically opposed to the Second
Circuit in Estate of Perry v. Wenzel, 872 F.3d 439, 460 (7th Cir. 2017):
“The defendants urge us to narrowly define Perry's right. But, in doing so, they are essentially urging us to conclude that because there is no case with the exact same fact pattern, qualified immunity applies. That is not what the qualified immunity analysis requires us to do.” The Seventh
Circuit’s analysis cannot be reconciled with the Second Circuit decision in this case.
The Sixth Circuit's review seems similarly incongruent with the
Second Circuit. In Baynes v. Cleland, 799 F.3d 600, 610-13 (6th Cir. 2015) that court adopted the fair warning standard as well as an objective inquiry with respect to whether that standard had been met. It further held that a right could be clearly established even in novel factual
13 circumstances. It specifically rejected the obligation to cite a fundamentally similar or materially similar case.
The Eleventh Circuit adopted the fair warning standard, but also incorporated an “obvious clarity” standard in which the conduct could be so bad or the constitutional violation could be so obvious that it overcomes qualified immunity even in the total absence of decisional case law.
Vinyard v. Wilson, 311 F. 3d 1340, 1350 (11th Cir. 2002).
The Tenth Circuit in A.M. ex rel. FM v. Holmes, 830 F.3d 1123,
1130-37 (10th Cir. 2016) held that a right could be clearly established by identifying an on point Supreme Court or 10th Circuit decision or alternatively if the weight of authority from other courts found the law to be as the plaintiff maintains. It adopted the “novel factual circumstances” standard and went on to adopt a "sliding-scale” to determine when the law is clearly established. The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation. More recently, the application of the qualified immunity test so troubled a three judge panel it issued three highly fractured opinions. Harte v. Bd. of Comm'rs., 864
F.3d 1154 (10th Cir. 2017). The Tenth Circuit’s “sliding-scale” analysis cannot be squared with the Second Circuit’s decision in this case.
The foregoing examples display inconsistencies concerning the scope of precedent required in various Courts of Appeal, but another Circuit
14 differs from the Second Circuit regarding the source of precedents. The
First Circuit adopted the “fair warning” standard but instead of the restricted review required by the Second Circuit, the First Circuit examined all available case law including federal cases outside the Circuit as well as relevant state precedents. Wilson v. Boston, 421 F. 3d 45, 56-7
(1st Cir. 2005). The Second Circuit’s limitation of precedential sources is inconsistent with this opinion.
The Ninth Circuit adopted the fair warning standard, but specifically noted that where fair warning exists, there is no need to demonstrate an analogous pre-existing case. Schwenk v. Hartford, 204 F.
3d 1187, 1198 (9th Cir. 2000).
The inconsistencies within Circuits and between Circuits when applying the "clearly established" test used since Harlow wholly justifies the grant of certiorari in this matter. Marked inconsistencies on crucial
Constitutional matters cannot be ignored. It is clear that the Courts of
Appeal are struggling with this test. A grant of certiorari will permit this
Court to distil qualified immunity to its foundational principles and, if necessary, recast it so the kind of inconsistencies seen even in this smattering of cases will occur less often. For this reason Mr. Allah's
Petition for Certiorari should be granted.
15
III. In the alternative, certiorari should be granted to consider whether qualified immunity should be modified or overruled because the "clearly established" test, as applied, is not working as intended.
Section 1983's historic purpose was to prevent state officials from using the cloak of their authority under state law to violate rights protected against state infringement. Lugar v. Edmondson Oil Co., 457
U.S. 992, 948 (1982). The Court has repeatedly stated "qualified immunity is important to 'society as a whole'." White v. Pauly, -US-, 137 S.Ct. 548,
552 (2017); Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982); City and Cnty. of San Francisco v. Sheehan,-US-, 135 S. Ct. 1765, 1774, fn. 3 (2015). It is axiomatic that a right without a remedy is no right at all. See, e.g.,
Angel v. Bullington, 330 U.S. 183, 209 (1947). Unfortunately, as applied, qualified immunity has become an obstacle that virtually no plaintiff can overcome. That certainly was not Congress's intention when enacting section 1983 and this outcome simply should not be condoned by the Court.
Law scholars and jurists are questioning the qualified immunity test, its application and the unintended consequences which developed since Harlow. See, Ziglar v. Abbasi,-US-, 137 S.Ct. 1843, 1871 (2017)
(Thomas, J concurring in part and concurring in the judgment); Crawford-
El v. Brittton, 523 U.S. 574, 611 (1998) (Scalia, J, dissenting) and most recently, Kisella v. Hughes, -US-, 2018 US LEXIS 2066 (April 2, 2018)
(Sotomayor, J. and Ginsburg, J., Dissenting) (suggesting the court's qualified immunity jurisprudence has become an "absolute shield") See
16 generally, Susan Bendlin, Qualified Immunity: Protecting All but the
Plainly Incompetent (and Maybe Some of Them, Too), 45 J. Marshall L.
Rev. 1023 (2002); William Baude, Is Qualified Immunity Unlawful?, 106
Cal. L. Rev. 45 (2018); Joanna C Schwartz, How Qualified Immunity Fails,
127 Yale L.J. 2 (2017); Allen K Chen, The Facts About Qualified
Immunity, 55 Emory L.J 229 (2006). See also, Brief of the Cato Institute as
Amicus Curiae Supporting Petitioners, filed in Pauly v. White, Docket
No.17-1078 (March 2, 2018); Brief of the American Civil Liberties Union and the American Civil Liberties Union of the District of Columbia as
Amici Curiae in Support of the Respondents, filed in District of Colombia v. Westby, Docket No. 15-1485 (July 2017).
As a result, Justice Thomas has explicitly suggested that the court should seek an "appropriate case" for the Court to review the "freewheeling policy choices" now at the heart of qualified immunity jurisprudence.
Ziglar v. Abbasi,-US-137 S.Ct. 1843, 1872 (2017) (Thomas, J, concurring).
We submit the present case is the "appropriate case" sought by Justice
Thomas. a) The qualified immunity standard is circular and amorphous.
One commentator cogently explained the principal difficulty with the
"clearly established" standard flowing from Harlow.
"[The standard] has proven hopelessly malleable because there is no objective way to define the level of generality at which it should be applied. The Court has repeatedly instructed lower courts 'not to define clearly established law
17
at a high level of generality.' Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). But for more specific guidance, the Court has stated simply that the dispositive question is whether the violative of nature of the particular conduct is clearly established. Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (quoting al-Kidd, 563 US at 742). The difficulty, of course, is that this instruction is circular -- how to identify clearly established law depends on whether the illegality of the conduct was clearly established." Brief of the Cato Institute as Amicus Curiae, Pauly v. White, Docket
No.17-1078, at 16-17.
The circularity of the "clearly established" standard identified by the
Cato Institute has resulted in the inconsistent, fractured and confused decisions coming out of the Courts of Appeal. For that reason alone, the
Court should grant certiorari to overhaul its qualified immunity jurisprudence. b) Qualified Immunity serves none of the purposes for which it was intended.
First, the Court purportedly created the "clearly established" test to balance competing interests between the only realistic avenue for vindication of constitutional guarantees with the desire not to unduly inhibit officials in the discharge of their duties. See e.g. Ziglar v. Abbasi,
137 Sup. Ct. at 1866. The desired balance failed to materialize. In practice, rather than being protected by a merely "qualified" immunity, many of today's public officials enjoy nearly absolute immunity for their wrongful actions. See, Chen, supra. at 232 (2006); Baude, at 82; see also
Bendlin, supra. at 1023. In fact, only twice in thirty opportunities at the
18 merits stage has this Court found a public official to have violated clearly established law.
The Court has previously recognized that evidence might undermine the assumptions that underlie the qualified immunity doctrine and that this might justify reconsideration of the balance struck in qualified immunity cases. See, Anderson v. Creighton, 483 U.S. 635, 642 n. 3 (1987).
Experience has now shown that, far from creating a balance, qualified immunity tipped the scales decidedly in favor of public officials. As a result, the doctrine serves only to insulate public officials from damages flowing from sometimes grotesque constitutional violations rather than to make them accountable for them as Congress intended.
Second, the failure of rules to meet the "clearly established" standard might have been a self-fulfilling prophecy. Because the grant of qualified immunity frequently avoids the need for courts to address the underlying constitutional determination, it may prevent otherwise meritorious constitutional rules from ever becoming clearly established.
Indeed, the Court described this problem relatively succinctly as follows:
Consider a plausible but unsettled constitutional claim asserted against a government official in a suit for money damages. The court does not resolve the claim because the official has immunity. He thus persists in the challenged practice; he knows that he can avoid liability in any future damages action, because the law has still not been clearly established. Another plaintiff brings suit, and another court awards immunity and bypasses the claim. And again, and again, and again. So the moment of decision does not arrive.
19
Camreta v. Green, 563 U.S. 692, 706 (2011). Thus, the frequent avoidance of constitutional questions limits viable constitutional claims from ever being adjudicated whether in the initial suit or in suits which would otherwise have followed.
Third, by definition, qualified immunity is only relevant when a public official has, in fact, violated rights protected by federal law. In practice, the qualified immunity standard has the effect of crippling the ability for citizens to vindicate even their most sacred constitutional rights.
While some state officials may view qualified immunity is an entitlement, that an expectation should not outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected.
See Arizona v. Gant, 556 U.S. 332, 349 (2009). To the extent that qualified immunity is justified at all, it must not arbitrarily deprive citizens with valid constitutional rights from a just remedy. As a matter of core principles, if the citizenry of this country is unable to vindicate their constitutional rights, all of us will be in peril of losing them. The only practical way to vindicate constitutional rights is through civil litigation.
As applied, the Harlow standard has eviscerated the ability to enforce constitutional rights. For that reason alone, it cannot be allowed to stand unchanged.
20
c) Despite crushing otherwise valid constitutional claims, the Harlow standard also fails its stated goal to protect public officials from the need to engage in protracted litigation.
The harm to plaintiffs with valid constitutional claims is self- evident. Perhaps paradoxically, the Harlow doctrine fails to effectively shield public officials from claims. To be sure, the doctrine virtually eliminates any possibility that a plaintiff will actually recover damages for meritorious constitutional claims. However, the immunity does not shield public officials from the obligation to engage in costly protracted litigation.
In fact, in her review of section 1983 actions, Professor Joanna Schwartz found that qualified immunity led to the dismissal of just 0.6% of cases before discovery, and only 3.2% of cases before trial. Schwartz, supra. at
11. Therefore, in practice, the qualified immunity standard imposes extensive costs on both plaintiffs and defendants. The parties are required to engage in protracted litigation including pleading, discovery, dispositive motion practice and ultimately trial in almost 100% of cases. Only after incurring all of those litigation costs, only after the parties have tried the case and only after a court or jury has attested that a defendant's conduct violates a core constitutional principle does the court step in to defeat meritorious claims at the decisive moment. As applied, qualified immunity serves no one. The system is broken and must be fixed.
Only this Court can appropriately pair our constitutional rights with
21 a remedy. Accordingly, this Court should grant the plaintiff's petition for writ of certiorari to instate the balance the Harlow court originally sought.
CONCLUSION
The ability to enforce constitutional rights is fundamental to the
American identity. As a country, we simply cannot permit public officials to violate core constitutional protections without recourse. The qualified immunity doctrine has metastasized from its original goal to protect reasonable but mistaken public officials into an impregnable fortress behind which all manner of constitutional violations become impervious to judicial process.
Our Courts of Appeal have uniformly struggled with qualified immunity resulting in a multitude of inconsistent decisions. However well- intentioned, the qualified immunity standard enunciated in Harlow fails in each of its major objectives. A practical way to address the myriad failures resulting from the Harlow standard, as applied, is for this Court to grant the petitioner's writ of certiorari. Accordingly, for these reasons and for all
22 the reasons set forth hereinabove, the petitioner, Almighty Supreme Born
Allah, respectfully submits that his petition for writ of certiorari should be granted.
Respectfully submitted this 23rd of April, 2018.
Almighty Supreme Born Allah
By: Jo n J. Morgan B R&MORGAN 84 West Park Place, 3rd Floor Stamford, CT 06901 Tel: (203) 356-1595 [email protected] APPENDIX
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. . . . Page 7 of 15 876 F.3d 48, '''54; 2017 U.S. App. LEXIS 23631 , '''* II
because he did not want to consent to the placement This timely appeal followed. and felt that he should not be in Administrative Segregation as a pretrial detainee. 2016 US Dist. LEXIS 45081. [WLZ at *6. He later consented to DISCUSSION progression to Phase II because it would allow him additional contact with his family, and on April 27, On appeal, Defendants challenge the district comi's 2011 , Allah progressed to Phase II. Approximately determination that Allah's due process rights were four months later, Allah progressed to Phase III and violated when he was placed in Administrative completed that phase on November 3, 2011 , at Segregation in October 2010 while a pretrial which point he was transfened to Cheshire detainee. Defendants also challenge the district Correctional Institute and taken out of comi's mling that they were not entitled to qualified 2 Administrative Segregation. immunity. HN J['"li] In evaluating a due process chalienge to pretrial detention, "we review the At trial, Allah testified that his placement in district court's [**13] findings of historical fact for Administrative Segregation strained his relationship clear enor and its ultimate resolution of the with his family because it was difficult for his wife constitutional clue process issue de novo." United to travel to Nmihem and because he did not want States v. Briggs, 69 7 F.3d9 8, 101 (2d Cir. 2012) his four-year old daughter to see him in restraints (internal quotation marks and alteration omitted). during visits. Allah also testified that while in "HN 2["-i] [W]e review de novo . . . a decision Administrative Segregation, he "rarely slept," "lost affording a defendant qualified inununity weight," "always rested in such a way where he [following a bench trial]." Zalaski [*55! v. Citv o( could 'get up immediately' if necessruy to protect Hartford. 723 F. 3d 382. 388 (2d Cir. 2013). himself," and felt paranoid and "always . . . on guard and on edge." 2016 U.S Dist. LEXIS 45081, [WL Z at ':'7. Those feelings of paranoia persisted I. Allah's Due Process Claim even after Allah's [**12] release fi.·om DOC HN 3["-i] "[U]nder the Due Process Clause, a custody. detainee may not be punished prior to an adjudication of guilt in accordance with due II. Procedural History process oflaw." Bell v. Wolfish. 441 US 520, 535, 99 S Ct. 1861. 60 L. Ed 2d 447 (19 79). Thus, in In April 2011 , while in Phase I of Administrative assessing whether restrictions on pretrial detainees Segregation, Allah brought suit against Defendru1ts comport with substantive clue process, "[a] comi in the district court pursuant to 42 USC § 1983, must decide whether the [restriction] is imposed for asse1iing that prison officials violated his clue the pmvose of punislunent or whether it is but an process rights when they placed him in incident of some other legitimate govenunental Administrative Segregation in October 2010 while purpose." Id. at 538. Absent proof of intent to a pretrial detainee. In December 2015, the district punish, "that cletennination generally \Vill nm1 on comi held a two-day bench trial at which Allah and all tlu·ee Defendants testified. Thereafter, the district court issued a written opinion ruling that 2 Defense counsel suggests in passing tl1at Defendant Cahill was not Defendants had violated Plaintiffs due process involved in tl1e decision to place Allah in Administrative rights and rejecting Defendants' claims that they Segregation. but does not squarely argue that the district comt eiTed were entitled to qualified inununity. The district in detennining that Cahill had the requisite personal involvement for liability tmder § 1983. See ·Wright v. Smith. 21 F.3d 496. 501 (2d comi entered judgment in favor of Allah and Cir. 1994j. Because we reverse the district comt's judgment as to all awarded him $62,650 in compensatmy damages. Defendants on qualified immunity grounds. we do not reach the question of Cahill's personal involvement in the challenged conduct.
process process
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, , • Page 10 of 15 876 F.3d 48, *57; 2017 U.S. App. LEXIS 23631 , **18 showering; allowed ve1y limited opportunities to him to keep only five pieces of mail in his cell, or see his family; and subjected to the numerous other pennitting him to keep a radio but not a television, restrictions described above. related to any security risk suggested by his disciplinmy record. Similarly, other aspects of Defendants argued before this Court and the district Allah's confinement during Phase I, although comi that they justifiably placed Allah 111 plausibly related to security concems in general, Administrative Segregation because his prior were so excessively harsh as to be punitive. Allah disciplinmy record wmTm1ted that placement as a was kept in solitmy confinement for 23 hours a day special security measure. We reject the factual for almost seven months. During that time, he was premise of that argument, see supra note 4, and forced to shower m leg Irons and \Vet conclude that Allah's placement in Administrative underwear. [**20] He received "absolutely no Segregation violated due process because the programming or counseling or therapy" during that placement was not based on any concem about period. Allah, 2016 US Dist. LEXJS 45081. 2016 institutional safety, but simply on Allah's prior WL 1311997. at ':'1 0. That treatment may have assignment to (and failure to complete) related to prison security in the sense that it Administrative Segregation during a prior tenn of incapacitated Allah. But the extremity of the incarceration. V.,Tenote, however, that even had conditions imposed upon Allah come perilously Defendants adequately considered Allah's close to the Supreme Comi's description of disciplinary histmy, it is not clear that Allah's "loading a detainee with chains and shackles and placement would be constitutional. Under throwing him in a dungeon." Wolfish. 441 US at Wolfish, a restriction related to a legitimate goal 539 n20. Defendants have failed to explain why such as instih1tional security will still be punitive if such extreme treatment was necessmy. it is excessively harsh. 441 US at 538. Indeed, To be sure, we have upheld the placement of loading a detainee with chains and shackles and pretrial detainees in Administrative Segregation in throwing him in a dungeon may ensure his the past, including for puqJoses of the detainees' presence at trial and [*58] preserve [**19] protection. See Cabral, 513 F. · App'x at 103; the security of the instih1tion. But it would be Taylor, 31 7 F. App'x at 82. The measures imposed difficult to conceive of a sih1ation where on Allah are not categorically out of bounds for all conditions so harsh, employed to achieve pretrial detainees. And courts will generally be objectives that could be accomplished in so highly deferential to judgments about the many altemative and less harsh methods, conditions of confmement necessary to protect would not support a conclusion that the inmates and staff, and the public outside the purpose for which they were imposed was to facility, fi-om particularly dangerous individuals, punish. even in pretrial detention. However, prison officials should be prepared to articulate achml reasons for Id at 539 n.20. imposing seemingly arbitrmy and undoubtedly harsh measures on individuals who have not been Here, Defendants have failed to show how certain aspects of Allah's confinement during Phase I of convicted of a crime. Wolfish demands as much. Administrative Segregation were reasonably related Under the circumstances of this [**21] case, prison to the ostensible goal of prison security. For officials' October 2010 placement of Allah in instance, Defendants have not adequately explained Administrative Segregation cannot be said to be how limiting Allah to a single, 15-minute phone reasonably related to institutional security, and call and a single, 30-minute, non-contact visit with Defendants have identified no other legitimate an immediate family member per week, allowing govemmental purpose justifying the placement.
conviction conviction
practice practice
his his
applied applied
det
6 6
should should
Appellee Appellee
before before
established established
below
Allah Allah
immunity immunity
plainly plainly
marks marks
violate violate
Thus
S. S.
quotation quotation
right." right."
understood understood
clear clear
conduct
established established
Govenunent Govenunent
would would
565 565
constitutional constitutional
4
does does
Defendants Defendants
rights rights immunity immunity
Having Having
II. II.
liability liability
detainees
constitutionally constitutionally
Accordingly, Accordingly,
govenunental govenunental
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[*59] [*59]
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bears bears
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(2012) (2012)
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were were
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2
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argues
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have have
prisoners
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inmates inmates
incompetent incompetent
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535
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Br. Br.
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because because
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conclude conclude
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a a
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and and
insofar insofar
563 563
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Administrative Administrative
iew iew
September September
is is
43 43
substantive substantive
that that
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conclude conclude
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omitted). omitted).
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all all
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process, process,
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41
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a a
process process
clearly clearly
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clearly clearly
Ed. Ed.
ation ation
person person
pretrial pretrial
2017 2017
of of
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that that 131 131
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assessed assessed so so
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mistaken
evidence evidence
court"). court").
of of
clearly clearly
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2009
that that law law
program. program.
prior prior
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violation violation
clearly clearly
principle principle
the the
established
umeasonable umeasonable
restrictions restrictions
substantive substantive
officials officials
We We
"[t]he "[t]he
563 563
impennissibly impennissibly
his his
constitutional constitutional
sets sets
Administrative Administrative
App. App.
pretrial pretrial
far far the the
8
violative violative
D
prior prior
their their
that that
1. 1.
agree agree
U.
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LEXIS LEXIS
noted noted
if if
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(noting (noting
S. S.
as as
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2
general general
Supreme Supreme
established
establish establish
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016 016
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on on
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conduct conduct
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articulated articulated
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an an
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detainees detainees
shows shows
that that
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decision decision
were were
the the
23631
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qualified qualified
clue clue
7
amounting amounting
is is
duties." duties."
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notice notice
nature nature
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established established
above
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that that
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finding finding
Supreme Supreme
rights. rights.
conditions conditions
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proposition, proposition,
Wolfish Wolfish
process process
Segregation Segregation
have have
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131199
as as
Segregation
Court Court
result result
':
little little
to to
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that that
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that that
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21 21
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has has
of of
under under
Allah Allah
that that
(and (and
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or or
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level level
placed placed
in in
to to
assessing assessing
llah. llah.
563 563
neither neither
Allah's Allah's
inununity inununity
help help
particular particular
111 111
look look
a a
that that
to to
prohibited prohibited
and and
from from
district district
7. 7.
seizure seizure
and and
, ,
right right
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the the
that that
pretrial pretrial
Woljish Woljish
5
DOC DOC
of of
substantive substantive
failure failure
at at
ttying ttying
pm1islunent. pm1islunent.
substantive substantive
77 77
the the
are are
identify identify
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of of
2
in in
asstgnmg asstgnmg
the the
, , its its
to to
a a
solely solely
for for
016 016
':'
any any
Defendants Defendants
S. S.
based based
not not
Allah's Allah's
program program
15
F.3d F.3d
defendants
generality." generality."
dete1mining dete1mining
or or
argument
conditions conditions
particular particular
"the "the
imposed imposed
comi comi
violates violates
Wolfish Wolfish
progeny progeny
of of
Defendants Defendants
practice. practice.
a
whether whether
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applicable applicable
conduct conduct
t t example
to to
to to
of of
U.
detainees detainees
other other
does does
the the
to to
analysis analysis
7
60
that that
on on
S. S. any any
42
be be
decisional decisional
this this
complete) complete)
solely solely
placement placement
noted, noted,
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Page Page
confinement confinement
due due
fulfill fulfill
due due , ,
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subjected subjected
the the
violated violated
[**23) [**23)
68 68
But But
the the
court) court)
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Allah Allah
the the
other other
Court Court
put put
, ,
st. st.
pmiicular pmiicular
nor nor
a a
on on
No No
upon upon
, ,
is is
however
imposed imposed
detainee detainee
A
11 11 process. process.
(
whether whether
basis basis
right right
process process
2d 2d
that that
general general
though though
Circuit Circuit
on on
have have
Fourth Fourth
LEXIS LEXIS
just just
l-Kidd. l-Kidd.
clearly clearly
at at
notice notice
prison prison
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"[t]he "[t]he
prior prior
were were
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case case
any any
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law law
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a a
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aspect aspect
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7 7
judgment judgment Dissent Dissent
Dissent Dissent
Concur Concur
of of
For For
CONCLUSION CONCLUSION
liable liable
substantive substantive
Accordingly, Accordingly,
entitled entitled
evaluation evaluation
officials officials
that that
ufficientl
constitutionality constitutionality pnor pnor
the the
Administrative Administrative
inflexibly relegating relegating inflexibly
Segregation, Segregation, s a a s
poses poses
between between
e s e olleague'
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a
detention detention
s
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tor
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judgment judgment
s
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of of
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titution titution
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41 41
for for
s
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by: by:
program program
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to to
threat threat
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puniti
of of
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record record
be be
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that that
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oeon reasons foregoing
s
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of of
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s
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notice notice
U.
111 111
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p
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tifi
of of
of of
course course
sons
qualified qualified
placed placed
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n
S. S.
POOLER POOLER
civil civil
not not
POOLER POOLER
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confinem
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could could
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be be
favor favor
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of of
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although although
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practice. practice.
as as
gge
y
security. security.
prior prior
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39 39
a a
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se
damages damages the the
conclude conclude
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to to
s
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applied applied
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c
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e
on
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sted sted
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urit
while while
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nt nt
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renewed renewed
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as
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Carl Carl
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plaintiff plaintiff
correctional correctional
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to to
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January January
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December December
lieutenant lieutenant
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unite unite
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prison prison
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relevant relevant
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control control
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2010. 2010.
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witnesses
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officer officer
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2010 2010
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riots riots
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45081
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reason reason
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determination determination
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life, life,
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September September
Office Office
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$62,650
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WILLIAM WILLIAM
Bridgeport, Bridgeport,
SO SO
(7) (7)
application application
fom1een fom1een
ently ently
plaintiffs plaintiffs
Milling Milling
an an
1988 1988
For For
against against
entered entered
DOC DOC
secured. secured.
also also
the the
418 418
Constitution Constitution
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CONCLUSION CONCLUSION
damages. damages.
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n
William William
award award
clays clays
d d
extraordinary extraordinary
ORDERED
the the
o
must must
U.S U.S
Court Court f
no no
stan: stan:
Do
of of
States States
in in
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is is
later later
of of
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favor favor
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ensure ensure
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defendants defendants
I. I.
14) 14)
and and
Connecticut
c
no no
face face
n
will will
attorney's attorney's
555-556
and and
Garfinkel Garfinkel
GARFINKEL GARFINKEL
Magistrate Magistrate
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amount amount
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constitutional constitutional
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submit his submit
Cahill
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above, above,
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defendants defendants
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drawn drawn
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judgment judgment
$62,650.00. $62,650.00.
April
count1y
Griggs
application application
to to
to to
guarantees guarantees
following following
and and
within within
2016 2016
between between
42 42
of of
a a
appreciates appreciates
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will will
any any
prison
2016
severally severally
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it it
LEXIS LEXIS
45081
, ,
':
'47 '47
Page Page
16 16
of of 16 16 Case 16-1443, Document 71, 01/23/2018, 2219793, Page1 of 1
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of January, two thousand eighteen.
______
Almighty Supreme Born Allah,
Plaintiff - Appellee, ORDER v. Docket No: 16-1443
Lynn Milling, Director of Population Management, Griggs, Counselor Supervisor, Cahill, Captain,
Defendants - Appellants,
Quiros, Warden, Powers, Deputy Warden, Fulcher, Deputy Warden, LaJoie, District Administrator, Deputy Commissioner Dzurenda,
Defendants. ______
Appellee, Almighty Supreme Born Allah, filed a petition for panel rehearing, or, in the alternative, for rehearing en banc. The panel that determined the appeal has considered the request for panel rehearing, and the active members of the Court have considered the request for rehearing en banc.
IT IS HEREBY ORDERED that the petition is denied.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk