Tuesday, August 13, 2019

How Much Destruction Has Pearson v. Callahan Wrought?

Today, the Eighth Circuit ruled en banc, in Kelsay v. Ernst, that a police officer violently tackling a non-violent, non-threatening, non-resistant 5'0 130 lbs woman suspected of a misdemeanor, breaking her collarbone, did not violate anyone's clearly established right to be free from the use excessive force. To add insult to injury, the woman the police assaulted was the nominal victim that brought them to the scene -- a friend of hers had tried to toss her into a public swimming pool, someone thought he was assaulting her and called the cops, she tried to tell the police that it was just horseplay and they shouldn't arrest him, and so they naturally responded to this innocent misunderstanding by breaking her bones and arresting her too (for obstruction of justice).

The vote was 8-4, Judge Colloton writing for the majority, with Chief Judge Smith and Judges Kelly, Grasz, and Erickson dissenting.

Sadly, "Eighth Circuit is fine with police officers violently assaulting unarmed, non-violent individuals" is scarcely even news at this point. But Judge Grasz -- dissenting separately (he also joined the main dissent from Chief Judge Smith) -- also made a point to call out the majority for declining to decide whether, going forward, it is indeed unconstitutional to violently tackle a non-violent, non-threatening, non-resistant suspected misdemeanant. This refusal is permissible thanks to a 2009 case called Pearson v. Callahan -- where the Supreme Court said that lower courts could toss civil rights lawsuits solely upon finding that the alleged constitutional violation's unlawfulness was not "clearly established" at the time of the injury, without ever deciding whether the violation actually was unconstitutional. The paradox is that, by refusing to make the latter decision, the law remains not "clearly established", and the government conduct -- even, it must be stressed, conduct that actually is unconstitutional -- is permitted without consequence indefinitely into the future. Even if (and I know this sounds crazy) it is true that violently tackling non-resistant, non-threatening suspects is unconstitutional, the effect of Pearson is that courts never will be compelled to declare it so, and so this unconstitutional abuse can go on in perpetuity.

I'm honestly not sure if any case has a worse ratio of destructiveness-to-public-profile than Pearson. Qualified immunity jurisprudence -- and in particular, the incredible stinginess through which the courts assess whether a given right is "clearly established" -- would still be a disaster without it, but Pearson has turned it into a farce. As Judge Grasz (and several others, including other right-wing stalwarts like Judge Don Willett on the 5th Circuit) have observed, Pearson has locked victims of excessive force into a prison of the court's own jurisprudence, and then allows judges to toss away the key.

If there's anything positive to say here, it's the continued good work from Judge Grasz, who is rapidly becoming one of the great surprises on the Eighth Circuit since his confirmation in 2017 (he had been rated "not qualified" by the ABA after his nomination by President Trump, but was confirmed anyway by a 50-48 vote).

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