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After Paid Leave Plan Gets Chopped, Biden Promises Revamped Spending Proposal


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Democrats appear likely to abandon plans to include an expensive new federal entitlement program—paid family leave—as they try to trim the overall cost of President Joe Biden’s “Build Back Better” plan proposal.

Biden’s plan called for a federal paid leave program that would replace up to 85 percent of a worker’s pay (with that percentage falling for higher-paid workers) for up to 12 weeks per year. Workers could access the paid leave program if they were having a baby, taking care of an elderly or sick relative, or recovering from a serious illness of their own.

There has not been an official Congressional Budget Office assessment of how much the paid leave program would cost, but a similar stand-alone proposal drawn up by Democrats in 2019 carried a $547 billion price tag over 10 years. That made the paid leave proposal one of the more expensive heaves in Biden’s proposal. Even after Democrats tried to trim the benefits by reducing the timeframe to just four weeks instead of 12, the price tag was still over $300 billion, Politico reported earlier this month.

Ultimately, the high cost is what seems to have doomed that aspect of Biden’s plan.

The problem facing Democrats right now is rooted in basic budget math of the kind that usually gets ignored in Washington. Sen. Joe Manchin (D–W.Va.) has said he is worried about the trajectory of the national debt and will not support a social spending plan that relies on more borrowing. Without his support, Democrats do not have a majority in the Senate. So the plan has to include enough revenue offsets to pay for the proposed new spending—or, at least, pay for them sufficiently to satisfy Manchin.

But Democrats keep backing away from the sorts of large-scale tax increases necessary to pay for a $3.5 trillion spending plan—like the proposed “billionaire tax” on unrealized capital gains that reportedly got axed on Wednesday. As Reason’s Peter Suderman explains, that tax was a terrible idea (and maybe even an unconstitutional one), but discarding it reveals something about the underlying negotiations over Biden’s plan:

It is certainly possible that some deal will still be negotiated, that some other tax mechanism or mechanisms will be found that can raise sufficient revenue to make the tax-and-spending math work. But even if something eventually passes, Democrats’ down-to-the-wire struggle highlights the inherent political difficulty of raising taxes, even within a party that is nominally devoted to the idea that higher taxes, especially on the rich and well-off, are a popular political good. And the reason for that difficulty is not the intransigence of tax-hating Republicans, or the existence of the Senate filibuster, but the fact that Democrats are having trouble mustering sufficient support from elected Democrats.

So, to review: Manchin won’t vote for more borrowing. Democrats can’t find the votes for big tax increases. The only remaining option, at that point, is to start hacking away at the spending side of the legislation. Which is exactly what Democrats are doing, and that’s why paid leave appears to be heading for the cutting committee room floor.

Manchin on Wednesday stressed that his opposition to new benefits was rooted in concern for the country’s long-term fiscal status, noting in comments to reporters both the nearly $29 trillion national debt and the looming insolvency of the trust funds for Social Security and Medicare. “In good conscience, I have a hard time increasing benefits—which, all of us can agree we’d love to have this and love to have that—when you can’t even take care of what you have,” Manchin said.

Here’s the real kicker for progressives: A paid leave proposal, expensive though it may be, is politically popular even among Republicans. If Sen. Kirsten Gillibrand (D–N.Y.), who has been championing the policy, were able to bring a stand-alone bill for a paid leave program to the Senate floor (along with a mechanism to pay it), it is at least theoretically possible that such a bill would pass. Sure, there would be negotiations, amendments, and arguments over it. Legislators would have to legislate, in other words. But there are almost certainly 60 votes in the Senate for some form of federal paid leave program.

Instead, there will likely be no federal paid leave program. And that’s at least in part due to the fact that Democrats are trying to cram all their big ideas into a single piece of legislation, rather than trying to find agreement for individual items and moving them one at a time.

Where does that leave Biden’s bill on the eve of the latest deadline for a Senate vote that seems nowhere close to happening? The president is supposed to meet with congressional Democrats on Thursday to present a new framework that The Washington Post promises will “win the support of all Democrats.” Meanwhile, The New York Times says the revamped plan “is likely to leave some critical issues unresolved, including how to pay for it.”

So, yeah.

One of the cardinal rules of politics—and political media, especially—is that nothing is ever as bad (or as good) as it seems. These are professions where overreacting is a way of life. That said, here’s something White House Chief of Staff (and longtime Biden confidant) Ron Klain retweeted on Wednesday night. Judge for yourself how things are going right now over at 1600 Pennsylvania Ave.

FREE MINDS

Sen. Tom Cotton (R–Ark.) penned a wildly inaccurate piece for National Review defending qualified immunity. Reason‘s Billy Binion helpfully offers some corrections:

Read the whole thing.

FREE MARKETS

How to eat for an entire year on $150—as long as your stomach can handle it:

It all started on the first day of his internship in 2014, when Dylan noticed the rollicking coasters of Six Flags Magic Mountain from the windows of his new office. Fresh out of college and something of a coaster-fanatic already, Dylan was perusing the options for Six Flags’ annual pass when he stumbled upon what might be the deal of his lifetime — for a one-time fee of $150, he could eat two meals a day, every day at the park for an entire year. Since his office was just a five-minute drive away, it was a no-brainer.

“That entire first year, I don’t think I ever went to the grocery store,” he says. “I timed it so I was able to go there during my lunch break, go back to work, then stop back for dinner on my way home.”

Over the course of seven years of eating at the Six Flags food court, Dylan claims he saved enough to pay off his student loans, get married, and buy a house. Read the whole saga in MEL Magazine.

QUICK HITS

• Facebook doesn’t make people angrier. Some people are just jerks.

• Another In-N-Out burger joint was shut down in California for being “an immediate health hazard to the public” because the location won’t check customers’ vaccine status before serving them.

• Hong Kong approved a new censorship law prohibiting content that Chinese officials believe “might endanger national security.”

• America is in desperate need of more workers, but federal officials wasted at least 400,000 visa slots during the fiscal year that ended in September.

• Next week’s gubernatorial election in Virginia could provide a post-Trump road map for the GOP.

• Hall of Fame quarterback Brett Favre repaid $600,000 in welfare he improperly received from Mississippi.

• You’re gonna need a bigger….whatever you keep scorpions in?

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Brickbat: Knit-Picking


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David and Paula Knight were dumbfounded when they received a ticket for driving in a bus lane in Bath, England. Bath is about 125 miles away from their home in Dorking, and they had not been in Bath on the day the violation happened. Then they took another look at the ticket and saw a photo from a traffic camera that was supposed to be proof of the violation. Instead, it showed a woman wearing a T-shirt with the word “KNITTER” written on it walking in the lane. Somehow her shirt had been confused with the Knights’ personalized license plate, which reads “KN19 TER.” A spokesman for the Bath council said it has withdrawn the ticket.

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Nothing Says “Free to Be Me” Like Compulsory Pansexuality

A remarkable story from the BBC, revealing a phenomenon that strikes me as utterly bizarre:

Jennie is a lesbian woman. She says she is only sexually attracted to women who are biologically female and have vaginas. She therefore only has sex and relationships with women who are biologically female.

Jennie doesn’t think this should be controversial, but not everyone agrees. She has been described as transphobic, a genital fetishist, a pervert and a “terf”—a trans exclusionary radical feminist….

Another lesbian woman, 26-year-old Chloe*, said she felt so pressured she ended up having penetrative sex with a trans woman at university after repeatedly explaining she was not interested.

They lived near each other in halls of residence. Chloe had been drinking alcohol and does not think she could have given proper consent.

“I felt very bad for hating every moment, because the idea is we are attracted to gender rather than sex, and I did not feel that, and I felt bad for feeling like that,” she said.

Ashamed and embarrassed, she decided not to tell anyone….

One woman reported being targeted in an online group. “I was told that homosexuality doesn’t exist and I owed it to my trans sisters to unlearn my ‘genital confusion’ so I can enjoy letting them penetrate me,” she wrote.

My view:

  1. People who want to have sex with you may indeed try to make you feel bad for not agreeing.
  2. “You owe it to someone to enjoy letting me penetrate you” is a very old story.
  3. It’s just not clear to me how this gives them the moral high ground.

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Fifth Circuit Rebukes FDA for Regulatory “Switcheroo” in Denying Vaping Product Applications


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In 2016 the Food & Drug Administration “deemed” electronic cigarettes, vaping pens, and other electronic Nicotine delivery systems (“ENDS”) to be “tobacco products” under the Family Smoking Prevention and Tobacco Control Act. As a consequence, all ENDS manufacturers were required to submit premarket tobacco applications (PMTAs) in order to continue selling their wares. Under the Tobacco Act, the FDA is only to approve a PMTA if it concludes approval is “appropriate for the protection of public health,” taking into account “the risks and benefits to the population as a whole.” Without a PMTA, a deemed tobacco product cannot be sold.

PMTAs are supposed to be submitted before a new tobacco product is sold, but this was impossible since the FDA’s rule applied to products already on the market. Accordingly, the FDA announced that ENDS manufacturers would have two years to prepare and submit the lengthy and detailed materials necessary for their applications before they would face the prospect of FDA enforcement. The FDA soon realized that the material and information necessary for PMTAs would be substantial, particularly because a separate PMTA is required for each product, defined quite capaciously (i.e. each package size, each flavor, each nicotine level, each delivery system, etc.). So the FDA tried to extend the enforcement deadline until 2022, but anti-smoking groups sued, and they settled on a 2020 deadline.

The FDA ultimately received applications for over 4.8 million ENDS products from 230 companies. Needless to say, this is a bit more than the agency anticipated, and it has been working to process the applications, denying most of them. Because a PMTA denial is a death sentence, some disappointed ENDS producers have filed suit, challenging the denials and seeking judicial orders blocking FDA enforcement in the meantime.

Yesterday, the U.S. Court of Appeals for the Fifth Circuit ruled on one company’s application for a stay pending resolution of its petition challenging the FDA’s denial of its PMTAs. The court’s opinion in Wages and White Lion Investments LLC v. USFDA (WWLI) is a blistering indictment of the agency’s decision-making and evaluation of ENDS PMTAs.

In WWLI a unanimous panel granted Triton Distribution’s application for a stay, concluding that  it had demonstrated not only a strong likelihood of success on the merits, but also that it would suffer irreparable injury without a stay, and the government would not.

A key problem with the way that the FDA handled the PMTAs filed by Triton (and other ENDS manufacturers) is that the FDA based its denial of their applications on a different standard than it had told companies they have to meet. This sort of action is at the heart of arbitrary agency action, and is antithetical to principles of due process.

For years, the FDA had informed ENDS manufacturers that they would not need to conduct long-term health studies on their individual products for their applications. This only makes sense, as ENDS manufacturers only had a limited period of time to prepare their materials. Yet, on August 26 when the FDA announced it was denying PMTAs for 55,000 flavored e-cigarette products, it claimed that such studies were “likely” necessary for approval. A few weeks later, the FDA denied Triton’s applications, explaining that the key basis” for the denial, was the lack of “robust and reliable evidence” from long-term studies of the sort FDA had previously told manufacturers were unnecessary. (Triton had nonetheless committed to conduct such studies, but the FDA refused to consider that assurance.)

As Judge Oldham’s opinion makes clear, the FDA’s decision-making in denying Triton’s application is an almost textbook example of what agencies are not supposed to do. It both changed course without adequate explanation or consideration of serious reliance interests while simultaneously refusing to consider multiple relevant factors and information submitted by Triton.

Here are a few examples from Oldham’s opinion:

The FDA failed to reasonably consider Triton’s proposed marketing plan. The FDA repeatedly stated that a marketing plan is “a critical factor in[] FDA’s statutorily required determination.” Premarket Tobacco Product Applications and Recordkeeping Requirements, 86 Fed. Reg. 55,300, 55,324 (Oct. 5, 2021) (“Final Rule”); see also 84 Fed. Reg. 50,566, 50,581 (Sept. 25, 2019) (“Proposed Rule”) (“The applicant’s marketing plans . . . will provide input that is critical to FDA’s determination of the likelihood of changes in tobacco product use behavior, especially when considered in conjunction with other information contained in the application.” (emphasis added)); A.45 n.xix (“Limiting youth access and exposure to marketing is a critical aspect of product regulation.” (emphasis added)); A.45 (Premarket “assessment includes evaluating the appropriateness of the proposed marketing plan.”). Here, however, the FDA simply ignored Triton’s plan. It stated: “[F]or the sake of efficiency, the evaluation of the marketing plan in applications will not occur at this stage of review, and we have not evaluated any marketing plans submitted with these applications.”

The FDA’s excuses for ignoring the “critical factor” of Triton’s marketing plan are unpersuasive. First, the FDA says it didn’t evaluate Triton’s plan for “the sake of efficiency.” Ibid. But “efficiency” is no substitute for “reasoned decisionmaking.” Michigan, 576 U.S. at 750; see also Judulang v. Holder, 565 U.S. 42, 64 (2011) (emphasizing that “cheapness alone cannot save an arbitrary agency policy”). . . .

In a footnote Judge Oldham notes that the FDA’s failure to consider Triton’s marketing plan, and how it would control youth access, was particularly striking given that then-FDA Commissioner Scott Gottleib had identified Triton’s approach as “best practices.”

And then there are Trtiton’s reliance interests, which the FDA disregarded in the course of its regulatory “switcheroo.”

Between the Deeming Rule’s effective date and the deadline for PMTAs, the FDA held public meetings and issued guidance on how e-cigarette manufacturers could get premarket authorization. In its “final guidance,” the FDA stated that it did not “expect” that tobacco manufacturers would need to conduct long-term studies to support their PMTA. See, e.g., A.73–74; A.92; see also Nicopure Labs, LLC v. FDA, 944 F.3d 267, 282 (D.C. Cir. 2019) (“The FDA has expressed willingness to accept scientific literature reviews instead of commissioned studies in support of e-cigarette applications in appropriate circumstances.”). The FDA’s expectation did not deviate in its Proposed Rule issued before the Order or the Final Rule issued a couple weeks after the Order. See Final Rule, 86 Fed. Reg. at 55,387 (“FDA does not expect that long-term clinical studies will need to be conducted for each PMTA; instead, it expects that it should be able to rely on other valid scientific evidence to evaluate some PMTAs.”); Proposed Rule, 84 Fed. Reg. at 50,619 (similar). Many e-cigarette companies relied on the FDA’s repeated insistence that it did “not expect that applicants will have to conduct long-term studies to support an application” and did not perform or submit such evidence.

Then the FDA “pull[ed] a surprise switcheroo on regulated entities.” Env’t Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005) (Sentelle, J.); accord Azar v. Allina Health Servs., 139 S. Ct. 1804, 1810 (2019) (citing the “surprise switcheroo” doctrine). Almost a year after the PMTA deadline, the FDA issued its first marketing denial orders for various flavored e-cigarettes and announced that it required the very studies it originally expected it didn’t need. . . . Despite the radical difference, the FDA never mentioned, let alone reasonably considered, whether e-cigarette manufacturers, like Triton, could’ve reasonably relied on the FDA’s prior meetings and guidance.

The law requires more. “When an agency changes course, . . . it must be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.” Regents, 140 S. Ct. at 1913 (quotation omitted). This does not mean that the FDA could not have “determine[d], in the particular context before it, that other interests and policy concerns outweigh any reliance interests. Making that difficult decision was the agency’s job, but the agency failed to do it.” Id. at 1914. This reinforces that the Order was likely arbitrary, capricious, or otherwise unlawful.

The FDA further failed to consider Triton’s reliance interests, whether there were alternatives to denial on this basis, and other evidence submitted by Triton. As Judge Oldham noted, the FDA responded more to some of Triton’s claims before the Fifth Circuit than it had when rejecting Triton’s PMTA. The court also found that that, on balance, a majority of the other relevant factors favored granting Triton’s request for a stay

The opinion also rejected the government’s (in my view, borderline frivolous) argument that the Triton sought relief — a stay of FDA enforcement action — that the court could not give. Yet just as a court could issue a stay barring the deportation of an unlawfully present alien pending review of the alien’s claim for asylum or lawful presence, a court may order an administrative agency defendant to preserve the status quo pending the outcome of the litigation. How a government attorney argued the alternative is beyond me, particularly given the innovative arguments in favor of expansive judicial authority to enter stays the federal government is currently making in the S.B. 8 litigation (something which I doubt was lost on this panel).

The Fifth Circuit’s WWLI decision indicates the FDA faces a tough road ahead defending many of its PMTA denials–and it appears the FDA knows it. Other manufacturers have also sought relief in court, and even before the Fifth Circuit’s decision issued the FDA was already beginning to back down. For instance, on October 11, in the face of a pending stay request before the U.S. Court of Appeals for the Sixth Circuit, the FDA agreed to rescind its denial of PMTAs submitted by Turning Point Brands.

What is particularly galling about the FDA’s treatment of ENDS manufacturers is that the FDA is well-aware that ENDS products pose far less risk to users than traditional, combustible cigarettes, and has acknowledged that ENDS can help some smokers quit. Further, there is substantial evidence that limitations on ENDS products will increase smoking, particularly among youth (as has been well-documented). Thus the FDA’s cavalier rejection of PMTAs is not only arbitrary and capricious, it is contrary to the FDA’s underlying public health mission (and may also be unconstitutional).

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“Is He a Criminal Lawyer? Yes, Very”

From the Plea Agreement filed last week in U.S. v. Elstein (C.D. Cal.):

Beginning in or around September 2014, MATTHEW CHARLES ELSTEIN (“defendant”) engaged in a scheme to defraud defendant’s legal clients by claiming that he filed, on the client’s behalf, complaints, motions and other pleadings in court when, in fact, defendant knew no such complaints, motions and pleadings had been filed.

Defendant also claimed he had obtained favorable legal resolutions for his clients when, in fact, defendant had not obtained favorable resolutions and, in many cases, had never initiated a legal action….

Victims S.F., C.S.S., and Company A

In or around June 2015, Company A retained defendant to file a lawsuit against Company B regarding a contract dispute. S.F. and C.S.S. were the principals of Company A….

[D]efendant agreed to pursue Company A’s … substantive claims against Company B by filing a federal action on their behalf in the Northern District of California. Defendant, however, never filed such a lawsuit. Instead, he misled Company A into believing he had filed such a case, and billed Company A for work he did not perform.

On July 6, 2015, defendant emailed Company A falsely stating that he filed the case against Company B in the Northern District … prior to the Fourth of July holiday. Defendant communicated several lies to Company A about why the Northern District Case could not be found on Pacer, including that the case was under seal because the United States Department of Justice … was investigating the owner of Company B.

From then on, defendant continued to make false representations to induce payment from Company A regarding the fake Northern District case. For example, on October 10, 2015, defendant told Company A that he had filed a Second Amended Complaint in the Northern District Case. In an attempt to cover for his misrepresentation, on March 16, 2018, defendant emailed C.S.S. a fraudulent second amended complaint with a ficti[ti]ous case number and forged Pacer information.

On December 22, 2015 and March 10, 2016, defendant requested a total of $6,700 for “process server costs and document costs” related to a motion for summary judgment as well as “filing and copying expenses” in the Northern District Case. On June 7, 2016, defendant, for the purpose of executing his scheme to defraud, transmitted and caused the transmission of a wire communication in interstate and foreign commerce, namely, defendant used his email account … to instruct C.S.S. to wire $3,500 to defendant for “deposition related expenses.” Since the Northern District Case was fabricated by defendant, there was no motion for summary judgment, defendant did not incur filing and copying expenses, and there were no depositions or deposition related expenses. Based on defendant’s representations, however, Company A wired the money to defendant’s personal bank account.

In addition, defendant charged Company A for travel related to other clients/matters and had S.F. and C.S.S. travel to depositions that defendant had fabricated to carry out his scheme.

During the course of the fraudulent scheme, defendant communicated to Company A that the defendants in the Northern District Case defaulted on the suit against them and that Company A had won a $52 million judgment. According to defendant, Company A had to wait for the case to be unsealed for the judgment to be released.

On June 17, 2016, defendant emailed Company A a forged court order purportedly signed by the Honorable Richard Seeborg, United States District Court Judge for the Northern District of California. The order was titled, “Order Re: Hearing on Plaintiff’s Motion for Entry of Judgment Against All Defendants.” The fake order noted that it was “sealed” and contained a false case name, docket number, and Pacer markings. The order stated that, “given the complexity of the claims for relief asserted by Plaintiffs, the number of parties, and what appear to be overlapping claims of damages, the Court is required to ‘conduct an accounting’ and make specific factual findings in support of the judgment.” The order went on to order Plaintiffs to file “a detailed accounting of all damages” by July 1, 2016.

On October 3, 2016, defendant emailed Company A a second falsified court order titled, “Interim Partial Judgment.” Again, the order purported to be signed by Judge Seeborg, noted that it was “sealed,” and contained a fake case number and false Pacer markings. The order stated that the “Plaintiff shall take judgement against all Defendants, jointly and severally, in the amount of $2.5 million ($2,500,000).”

Because defendant’s scheme involved the Northern District Case being improperly under seal due to DOJ’s supposed investigation of the owner of Company B, defendant informed Company A that it could collect money controlled by DOJ. On August 22, 2017, defendant emailed Company A two forged documents: (1) a “Process Receipt and Return” form with the United States Marshals Service (“USMS”), which defendant claimed to be necessary as part of the process to collect on the “Interim Judgment/Enforcement of Temporary Restraining Order”; and (2) a “Record of Collections” from the USMS demonstrating the USMS had collected $638,884.17 from parties in the Northern District Case.

On September 21, 2017, defendant sent Company A a fake settlement agreement between Company A and the United States Attorney’s Office for the Eastern District of California (the “U.S. Attorney’s Office”), with the forged signatures of the then Interim United States Attorney for the Eastern District of California and the then Acting Assistant Attorney General of DOJ’s Criminal Division. Under the agreement, the government agreed (1) it would not object to the unsealing of the Northern District Case; (2) pay Company A $4 million from the “Court of Claims Recovery Fund” in settlement of all claims and potential claims by Company A; (3) cease all action which may interfere with Company A’s prosecution and collection of sum in the interpleader case and the Northern District Case; and (4) disgorge all sums held by the USMS (no less than $630,000) collected as part of the sealed judgment in the Northern District Case.

Defendant continued to charge Company A for his fraudulent efforts to obtain the funds from the government. In November 2017, defendant charged Company A to prepare and file a Supreme Court petition. On December 28, 2017, defendant purported to follow up by sending a demand letter requesting the government unseal the case and pay his clients the amount due.

In January 2018, Company A reached out to the U.S. Attorney’s Office to authenticate the settlement agreement and discovered that the agreement was a forgery.

Throughout the course of defendant’s misrepresentations, Company A paid $234,000 in fraudulently procured legal fees and expenses.

Victims I.F. and J.F.

In or around 2012, a law firm, Firm A, filed two lawsuits in the state of Washington (the “Washington Lawsuits”) against I.F., J.F., and two of their companies that provide debt settlement services (the “Debt Settlement Companies”). I.F., J.F., and the Debt Settlement Companies later hired defendant to substitute into the actions. During defendant’s representation of I.F., J.F., and the Debt Settlement Companies, defendant communicated with them using wire communications, namely, phone calls and email.

On September 30, 2014, defendant sent a retainer agreement to I.F. noting that he had been formally retained by I.F., J.F., and the Debt Settlement Companies to represent them in the Washington Lawsuits. The agreement noted that I.F. needed to pay an advance of $10,000. Defendant provided I.F. with the information for defendant’s personal bank account, but falsely represented that it was the trust account for his law firm.

In 2015, Defendant told I.F. that he would file a federal case against Firm A in the Western District of Washington. On April 13, 2015, defendant prepared a purported application to appear pro hac vice in United States District Court for the Western District of Washington. The caption contained the fake case name for the lawsuit that defendant represented to I.F. he would file, but never did. On April 23, 2015, defendant sent a revised retainer agreement to I.F., which they both signed.

This revised retainer agreement specifically listed the fake federal case … along with the Washington Lawsuits as the basis for the representation. It added that defendant’s representation in the Washington Federal Case would not begin until I.F. paid a “further advance in the amount of $3,500 … deposited in [defendant’s law firm] Client Trust Account[.],” which was actually defendant’s personal bank account.

On May 15, 2015, defendant represented to I.F. that defendant filed a 24-page, 10-count complaint in the Washington Federal Case. He later provided I.F. with a fraudulent face page and the second page of the complaint. The document looked like it had been filed, but, in actuality, contained fake Pacer markings with a fraudulent case number.

Defendant also fabricated depositions in the Washington Federal Case. Specifically, he told I.F. that he noticed two depositions on September 21, 2015 and a third deposition on September 22, 2015 in Seattle, Washington. I.F. and J.F traveled to Seattle for the depositions. Because these depositions were fake, no one appeared for the deposition. Nonetheless, defendant had a court reporter present and made a formal record of the nonappearances. Defendant also billed I.F. for attending the fake depositions and his travel expenses.

When defendant changed law firms in approximately November 2015, he represented to I.F. that he was working on the Federal Case and continued to bill I.F. for work he was not doing.

On or about March 2016, defendant represented to I.F. that the defendants in the Washington Federal Case were in default of their discovery obligations and that the court ultimately would enter a default judgment. Defendant’s billing entries during that time demonstrate that he was billing I.F. for work on motions for default and sanctions, when, in fact, he was not working on those motions.

On June 12, 2016, when I.F. questioned why there was an issue in locating the Washington Federal Case on Pacer, defendant emailed I.F. to tell him that (1) the case had been docketed by the district court in May 2015; (2) he had no information as to why it did not appear on Pacer; (3) the complaint was filed and contained an electronic watermark; (4) “I have done everything you instructed and as I represented”; and (5) that he would call the court the next day and speak directly to the ECF docketing clerk.

On August 8, 2016, defendant forwarded to I.F. a fake email communication between defendant and a person he claimed to be a clerk at the United States District Court for the Western District of Washington. The subject contained the fake case name and number for the Washington Federal Case. The email had a fake name and email address for the clerk. In the fake email, the clerk said that the “Court intends to grant the requests for entry of default without the need for a hearing[.]”

While defendant was misleading I.F. and the Debt Settlement Companies about the existence of the Washington Federal Case, he also misrepresented to his law firm that he was withdrawing from representation in the Washington Lawsuits. In November of 2016, defendant provided his law firm with fake emails to I.F., J.F. and the Debt Settlement Companies. In the emails, defendant noted defendant’s intent to withdraw from the Washington Lawsuits and demanded that they pay outstanding court reporter fees. The emails, however, were sent to fake email addresses created by defendant. Defendant also provided his law firm with a fraudulent substitution of attorney form, purportedly filed and signed by I.F. However, I.F. had never seen the document.

By March of 2017, defendant had begun working at his third law firm since agreeing to represent I.F., J.F. and the Debt Settlement Companies.

Defendant continued to bill I.F. for work he was not actually doing on the fake Washington Federal Case well into October of 2017. On October 12, 2017, defendant emailed I.F. to inform him that the final briefing for the judgment in the Washington Federal Case was due on October 20, 2017.

In January 2018, defendant falsely represented to I.F. that he had obtained a $4,250,000 judgment in favor of I.F. and the Debt Settlement Companies in the Washington Federal Case.

Around July 2018, I.F. wanted to personally travel to Seattle to collect on this judgment. In advance of that trip, defendant handed I.F. a copy of what defendant represented to be the judgment in the Washington Federal Case. The fraudulent order contained a forged electronic signature of the Honorable James

  1. Robart of the United States District Court, Western District of Washington.

On July 11, 2018, I.F. traveled to the district court to collect his judgment. On that day, I.F. realized defendant’s deceit. The clerk could not find the case number. A Senior Inspector from the USMS’s office confirmed it looked suspicious and then checked with Judge Robart who confirmed that he had never heard of the Federal Case.

Throughout the course of defendant’s misrepresentations, I.F. paid $20,354.30 in fraudulent retainer and legal fees directly into defendant’s personal bank account.

Victim Company D

Company D consists of three insurance companies. In or around December 2015, Company E sued Company D in United States District Court for the Southern District of California. Shortly thereafter, Company D retained defendant to represent it. During defendant’s representation of Company D, defendant communicated with Company D’s representatives using wire communications, namely, phone calls and email.

During a call on December 17, 2015, with representatives of Company D, defendant discussed with representatives of Company D drafting a motion to dismiss. Defendant subsequently misled Company D about the deadline for filing the motion, his filing of the motion, and the events that were transpiring in the case.

On May 26, 2016, defendant lied to Company D in an email, conveying that the court clerk wanted to have oral argument on the motion to dismiss and that the court set a filing deadline of June 3, 2016 and a hearing date of July 11, 2016. Defendant added that he would draft the motion over the Memorial Day weekend.

Between June 2016 and August 2016, defendant and Company D exchanged numerous emails in which defendant claimed that the judge continued to move the filing deadline and the hearing date for the motion to dismiss. By email on August 16, 2016, defendant represented that the motion would be filed by the new deadline of August 18, 2016, and that plaintiffs in the case would be served personally. Later that day, defendant sent a draft of the motion to Company D. The draft was approved with changes and sent to defendant. Defendant told Company D that he would file it “ASAP.” Defendant never did. Billing records demonstrate that defendant claimed to have worked on the motion to dismiss that was never filed between June 2016 and August 2016.

On February 28, 2017, a representative of Company D emailed defendant to ask if the motion to dismiss was filed in August. Defendant responded that the court had converted the motion to dismiss into a motion for summary judgment. Meanwhile, in emails on February 28, 2017 and March 1, 2017, defendant represented to a different Company D employee that he was working on a draft motion for summary judgment.

In reality, the court was not continuously moving the motion deadline, considering a motion to dismiss, or continuing the hearing on the motion. The court never converted a motion to dismiss into a motion for summary judgment. Instead, defendant missed discovery deadlines, failed to timely designate an expert on behalf of Company D, and never filed a motion to dismiss.

On November 22, 2016, Company E filed its motion for summary judgment. Defendant never told Company D about the filing. Instead, in order to have Company E agree to an extension on Company D’s opposition in order to accommodate defendant’s vacation in France, defendant agreed that Company D would not file a cross motion. Defendant then entered into settlement negotiations with Company E for $275,000, without receiving prior authorization from Company D to do so. Defendant billed Company D a total of $104,500.50 throughout defendant’s representation of Company D.

In total, defendant’s fraudulent conduct resulted in losses of at least $358,855 by his victims.

 

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“Is He a Criminal Lawyer? Yes, Very”

From the Plea Agreement filed last week in U.S. v. Elstein (C.D. Cal.):

Beginning in or around September 2014, MATTHEW CHARLES ELSTEIN (“defendant”) engaged in a scheme to defraud defendant’s legal clients by claiming that he filed, on the client’s behalf, complaints, motions and other pleadings in court when, in fact, defendant knew no such complaints, motions and pleadings had been filed.

Defendant also claimed he had obtained favorable legal resolutions for his clients when, in fact, defendant had not obtained favorable resolutions and, in many cases, had never initiated a legal action….

Victims S.F., C.S.S., and Company A

In or around June 2015, Company A retained defendant to file a lawsuit against Company B regarding a contract dispute. S.F. and C.S.S. were the principals of Company A….

[D]efendant agreed to pursue Company A’s … substantive claims against Company B by filing a federal action on their behalf in the Northern District of California. Defendant, however, never filed such a lawsuit. Instead, he misled Company A into believing he had filed such a case, and billed Company A for work he did not perform.

On July 6, 2015, defendant emailed Company A falsely stating that he filed the case against Company B in the Northern District … prior to the Fourth of July holiday. Defendant communicated several lies to Company A about why the Northern District Case could not be found on Pacer, including that the case was under seal because the United States Department of Justice … was investigating the owner of Company B.

From then on, defendant continued to make false representations to induce payment from Company A regarding the fake Northern District case. For example, on October 10, 2015, defendant told Company A that he had filed a Second Amended Complaint in the Northern District Case. In an attempt to cover for his misrepresentation, on March 16, 2018, defendant emailed C.S.S. a fraudulent second amended complaint with a ficti[ti]ous case number and forged Pacer information.

On December 22, 2015 and March 10, 2016, defendant requested a total of $6,700 for “process server costs and document costs” related to a motion for summary judgment as well as “filing and copying expenses” in the Northern District Case. On June 7, 2016, defendant, for the purpose of executing his scheme to defraud, transmitted and caused the transmission of a wire communication in interstate and foreign commerce, namely, defendant used his email account … to instruct C.S.S. to wire $3,500 to defendant for “deposition related expenses.” Since the Northern District Case was fabricated by defendant, there was no motion for summary judgment, defendant did not incur filing and copying expenses, and there were no depositions or deposition related expenses. Based on defendant’s representations, however, Company A wired the money to defendant’s personal bank account.

In addition, defendant charged Company A for travel related to other clients/matters and had S.F. and C.S.S. travel to depositions that defendant had fabricated to carry out his scheme.

During the course of the fraudulent scheme, defendant communicated to Company A that the defendants in the Northern District Case defaulted on the suit against them and that Company A had won a $52 million judgment. According to defendant, Company A had to wait for the case to be unsealed for the judgment to be released.

On June 17, 2016, defendant emailed Company A a forged court order purportedly signed by the Honorable Richard Seeborg, United States District Court Judge for the Northern District of California. The order was titled, “Order Re: Hearing on Plaintiff’s Motion for Entry of Judgment Against All Defendants.” The fake order noted that it was “sealed” and contained a false case name, docket number, and Pacer markings. The order stated that, “given the complexity of the claims for relief asserted by Plaintiffs, the number of parties, and what appear to be overlapping claims of damages, the Court is required to ‘conduct an accounting’ and make specific factual findings in support of the judgment.” The order went on to order Plaintiffs to file “a detailed accounting of all damages” by July 1, 2016.

On October 3, 2016, defendant emailed Company A a second falsified court order titled, “Interim Partial Judgment.” Again, the order purported to be signed by Judge Seeborg, noted that it was “sealed,” and contained a fake case number and false Pacer markings. The order stated that the “Plaintiff shall take judgement against all Defendants, jointly and severally, in the amount of $2.5 million ($2,500,000).”

Because defendant’s scheme involved the Northern District Case being improperly under seal due to DOJ’s supposed investigation of the owner of Company B, defendant informed Company A that it could collect money controlled by DOJ. On August 22, 2017, defendant emailed Company A two forged documents: (1) a “Process Receipt and Return” form with the United States Marshals Service (“USMS”), which defendant claimed to be necessary as part of the process to collect on the “Interim Judgment/Enforcement of Temporary Restraining Order”; and (2) a “Record of Collections” from the USMS demonstrating the USMS had collected $638,884.17 from parties in the Northern District Case.

On September 21, 2017, defendant sent Company A a fake settlement agreement between Company A and the United States Attorney’s Office for the Eastern District of California (the “U.S. Attorney’s Office”), with the forged signatures of the then Interim United States Attorney for the Eastern District of California and the then Acting Assistant Attorney General of DOJ’s Criminal Division. Under the agreement, the government agreed (1) it would not object to the unsealing of the Northern District Case; (2) pay Company A $4 million from the “Court of Claims Recovery Fund” in settlement of all claims and potential claims by Company A; (3) cease all action which may interfere with Company A’s prosecution and collection of sum in the interpleader case and the Northern District Case; and (4) disgorge all sums held by the USMS (no less than $630,000) collected as part of the sealed judgment in the Northern District Case.

Defendant continued to charge Company A for his fraudulent efforts to obtain the funds from the government. In November 2017, defendant charged Company A to prepare and file a Supreme Court petition. On December 28, 2017, defendant purported to follow up by sending a demand letter requesting the government unseal the case and pay his clients the amount due.

In January 2018, Company A reached out to the U.S. Attorney’s Office to authenticate the settlement agreement and discovered that the agreement was a forgery.

Throughout the course of defendant’s misrepresentations, Company A paid $234,000 in fraudulently procured legal fees and expenses.

Victims I.F. and J.F.

In or around 2012, a law firm, Firm A, filed two lawsuits in the state of Washington (the “Washington Lawsuits”) against I.F., J.F., and two of their companies that provide debt settlement services (the “Debt Settlement Companies”). I.F., J.F., and the Debt Settlement Companies later hired defendant to substitute into the actions. During defendant’s representation of I.F., J.F., and the Debt Settlement Companies, defendant communicated with them using wire communications, namely, phone calls and email.

On September 30, 2014, defendant sent a retainer agreement to I.F. noting that he had been formally retained by I.F., J.F., and the Debt Settlement Companies to represent them in the Washington Lawsuits. The agreement noted that I.F. needed to pay an advance of $10,000. Defendant provided I.F. with the information for defendant’s personal bank account, but falsely represented that it was the trust account for his law firm.

In 2015, Defendant told I.F. that he would file a federal case against Firm A in the Western District of Washington. On April 13, 2015, defendant prepared a purported application to appear pro hac vice in United States District Court for the Western District of Washington. The caption contained the fake case name for the lawsuit that defendant represented to I.F. he would file, but never did. On April 23, 2015, defendant sent a revised retainer agreement to I.F., which they both signed.

This revised retainer agreement specifically listed the fake federal case … along with the Washington Lawsuits as the basis for the representation. It added that defendant’s representation in the Washington Federal Case would not begin until I.F. paid a “further advance in the amount of $3,500 … deposited in [defendant’s law firm] Client Trust Account[.],” which was actually defendant’s personal bank account.

On May 15, 2015, defendant represented to I.F. that defendant filed a 24-page, 10-count complaint in the Washington Federal Case. He later provided I.F. with a fraudulent face page and the second page of the complaint. The document looked like it had been filed, but, in actuality, contained fake Pacer markings with a fraudulent case number.

Defendant also fabricated depositions in the Washington Federal Case. Specifically, he told I.F. that he noticed two depositions on September 21, 2015 and a third deposition on September 22, 2015 in Seattle, Washington. I.F. and J.F traveled to Seattle for the depositions. Because these depositions were fake, no one appeared for the deposition. Nonetheless, defendant had a court reporter present and made a formal record of the nonappearances. Defendant also billed I.F. for attending the fake depositions and his travel expenses.

When defendant changed law firms in approximately November 2015, he represented to I.F. that he was working on the Federal Case and continued to bill I.F. for work he was not doing.

On or about March 2016, defendant represented to I.F. that the defendants in the Washington Federal Case were in default of their discovery obligations and that the court ultimately would enter a default judgment. Defendant’s billing entries during that time demonstrate that he was billing I.F. for work on motions for default and sanctions, when, in fact, he was not working on those motions.

On June 12, 2016, when I.F. questioned why there was an issue in locating the Washington Federal Case on Pacer, defendant emailed I.F. to tell him that (1) the case had been docketed by the district court in May 2015; (2) he had no information as to why it did not appear on Pacer; (3) the complaint was filed and contained an electronic watermark; (4) “I have done everything you instructed and as I represented”; and (5) that he would call the court the next day and speak directly to the ECF docketing clerk.

On August 8, 2016, defendant forwarded to I.F. a fake email communication between defendant and a person he claimed to be a clerk at the United States District Court for the Western District of Washington. The subject contained the fake case name and number for the Washington Federal Case. The email had a fake name and email address for the clerk. In the fake email, the clerk said that the “Court intends to grant the requests for entry of default without the need for a hearing[.]”

While defendant was misleading I.F. and the Debt Settlement Companies about the existence of the Washington Federal Case, he also misrepresented to his law firm that he was withdrawing from representation in the Washington Lawsuits. In November of 2016, defendant provided his law firm with fake emails to I.F., J.F. and the Debt Settlement Companies. In the emails, defendant noted defendant’s intent to withdraw from the Washington Lawsuits and demanded that they pay outstanding court reporter fees. The emails, however, were sent to fake email addresses created by defendant. Defendant also provided his law firm with a fraudulent substitution of attorney form, purportedly filed and signed by I.F. However, I.F. had never seen the document.

By March of 2017, defendant had begun working at his third law firm since agreeing to represent I.F., J.F. and the Debt Settlement Companies.

Defendant continued to bill I.F. for work he was not actually doing on the fake Washington Federal Case well into October of 2017. On October 12, 2017, defendant emailed I.F. to inform him that the final briefing for the judgment in the Washington Federal Case was due on October 20, 2017.

In January 2018, defendant falsely represented to I.F. that he had obtained a $4,250,000 judgment in favor of I.F. and the Debt Settlement Companies in the Washington Federal Case.

Around July 2018, I.F. wanted to personally travel to Seattle to collect on this judgment. In advance of that trip, defendant handed I.F. a copy of what defendant represented to be the judgment in the Washington Federal Case. The fraudulent order contained a forged electronic signature of the Honorable James

  1. Robart of the United States District Court, Western District of Washington.

On July 11, 2018, I.F. traveled to the district court to collect his judgment. On that day, I.F. realized defendant’s deceit. The clerk could not find the case number. A Senior Inspector from the USMS’s office confirmed it looked suspicious and then checked with Judge Robart who confirmed that he had never heard of the Federal Case.

Throughout the course of defendant’s misrepresentations, I.F. paid $20,354.30 in fraudulent retainer and legal fees directly into defendant’s personal bank account.

Victim Company D

Company D consists of three insurance companies. In or around December 2015, Company E sued Company D in United States District Court for the Southern District of California. Shortly thereafter, Company D retained defendant to represent it. During defendant’s representation of Company D, defendant communicated with Company D’s representatives using wire communications, namely, phone calls and email.

During a call on December 17, 2015, with representatives of Company D, defendant discussed with representatives of Company D drafting a motion to dismiss. Defendant subsequently misled Company D about the deadline for filing the motion, his filing of the motion, and the events that were transpiring in the case.

On May 26, 2016, defendant lied to Company D in an email, conveying that the court clerk wanted to have oral argument on the motion to dismiss and that the court set a filing deadline of June 3, 2016 and a hearing date of July 11, 2016. Defendant added that he would draft the motion over the Memorial Day weekend.

Between June 2016 and August 2016, defendant and Company D exchanged numerous emails in which defendant claimed that the judge continued to move the filing deadline and the hearing date for the motion to dismiss. By email on August 16, 2016, defendant represented that the motion would be filed by the new deadline of August 18, 2016, and that plaintiffs in the case would be served personally. Later that day, defendant sent a draft of the motion to Company D. The draft was approved with changes and sent to defendant. Defendant told Company D that he would file it “ASAP.” Defendant never did. Billing records demonstrate that defendant claimed to have worked on the motion to dismiss that was never filed between June 2016 and August 2016.

On February 28, 2017, a representative of Company D emailed defendant to ask if the motion to dismiss was filed in August. Defendant responded that the court had converted the motion to dismiss into a motion for summary judgment. Meanwhile, in emails on February 28, 2017 and March 1, 2017, defendant represented to a different Company D employee that he was working on a draft motion for summary judgment.

In reality, the court was not continuously moving the motion deadline, considering a motion to dismiss, or continuing the hearing on the motion. The court never converted a motion to dismiss into a motion for summary judgment. Instead, defendant missed discovery deadlines, failed to timely designate an expert on behalf of Company D, and never filed a motion to dismiss.

On November 22, 2016, Company E filed its motion for summary judgment. Defendant never told Company D about the filing. Instead, in order to have Company E agree to an extension on Company D’s opposition in order to accommodate defendant’s vacation in France, defendant agreed that Company D would not file a cross motion. Defendant then entered into settlement negotiations with Company E for $275,000, without receiving prior authorization from Company D to do so. Defendant billed Company D a total of $104,500.50 throughout defendant’s representation of Company D.

In total, defendant’s fraudulent conduct resulted in losses of at least $358,855 by his victims.

 

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A Study of What Police Know About Court Decisions Exposes ‘Qualified Immunity’s Boldest Lie’


Supreme-Court-building-Joe-Ravi-Wikimedia

In two cases it decided last fall and last winter, the U.S. Supreme Court suggested that it might be prepared to limit the scope of qualified immunity, a doctrine that shields police officers and other government officials from federal liability for violating people’s constitutional rights unless the alleged misconduct ran afoul of “clearly established” law. In two decisions issued last week, by contrast, the Court complicated the puzzle of how plaintiffs can hope to satisfy that test.

The Court reaffirmed its prior statement that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”—a standard that excludes all manner of outrageous abuses. Worse, the justices twice suggested, in a decision from which none of them dissented, that lawsuits under 42 USC 1983, which allows people to seek damages for violations of their rights, may be barred even when the appeals court for the circuit in which a case is filed has previously concluded that conduct very similar to the defendant’s was unconstitutional.

“Even assuming that controlling Circuit precedent clearly establishes law for purposes of §1983,” the Court said in Rivas-Villegas v. Cortesluna, the 9th Circuit decision cited by the plaintiff “did not give fair notice” to the officer he sued. “Even assuming that Circuit precedent can clearly establish law for purposes of §1983,” the Court reiterated later in the same opinion, the earlier case “is materially distinguishable and thus does not govern the facts of this case.” Those opening clauses imply that “fair notice” might require a decision in which the Supreme Court itself addressed nearly identical facts, which would make an already formidable obstacle nearly impossible to overcome.

Whether or not the Court follows through on that alarming implication, the very notion of “fair notice” to police officers is based on what UCLA law professor Joanna Schwartz calls “qualified immunity’s boldest lie”: the assumption that cops keep abreast of relevant case law, such that they would know when their actions closely resemble conduct that was previously deemed unconstitutional. Schwartz’s research, which she reported last May in The University of Chicago Law Review, documents a yawning gap between that implausible assumption and the reality of how cops are actually trained.

“Nowhere in the Court’s decisions is consideration given to how, exactly, police officers are expected to learn about the facts and holdings of the hundreds—if not thousands—of Supreme Court, circuit court, and district court opinions that could be used to clearly establish the law for qualified immunity purposes,” Schwartz notes. “Nor has much consideration been given to the likelihood that police officers recall the facts and holdings of these hundreds or thousands of cases as they are making split-second decisions about whether to stop and frisk someone, search a car, or shoot their gun.”

Schwartz examined “hundreds of use-of-force policies, trainings, and other educational materials received by California law enforcement officers.” She found that the information in these materials was generally limited to the broad principles laid out in major Supreme Court rulings—principles that the Court has said are not sufficient to show that an officer’s alleged conduct violated “clearly established” law.

In the 1985 case Tennessee v. Garner, for example, the Court held that police may use deadly force against a fleeing suspect only if it is necessary to prevent his escape and there is probable cause to believe he poses a significant threat of violence to officers or the general public. In the 1989 case Graham v. Connor, the Court said the use of force by police must be “objectively reasonable,” a determination that “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”

While “police departments regularly inform their officers about watershed decisions like Graham and Garner,” Schwartz found, “officers are not regularly or reliably informed about court decisions interpreting those decisions in different factual scenarios—the very types of decisions that are necessary to clearly establish the law about the constitutionality of uses of force.” That conclusion is based partly on Schwartz’s examination of California police department policy manuals, which “reference or incorporate the constitutional standards from Graham and Garner,
but rarely reference any cases in which Graham and Garner were applied.”

Schwartz also read 329 police “training outlines” and found that more than three-quarters “referenced no court decision applying Graham and/or Garner.” Even when such decisions were mentioned, “the outlines suggest that trainers do not educate officers about their facts and holdings.” And while police training does “incorporate hypotheticals as a way to help officers develop an understanding about whether force is appropriate in various scenarios,” the outlines “offer no indication that these scenarios are drawn from court cases.” Schwartz found little evidence that prosecutors or newsletters were filling this gap in police knowledge.

“Even if law enforcement relied more heavily on court decisions to educate their officers about the constitutional limits of force, the expectations of notice and reliance baked into qualified immunity doctrine would still be unrealistic,” Schwartz writes. “There could never be sufficient time to train officers about the hundreds—
if not thousands—of court cases that could clearly establish the law for qualified immunity purposes. Moreover, even if an officer did somehow come to learn about the facts and holdings of court decisions applying Graham and Garner, there is no reason to believe that an officer would think about those cases during the types of high-speed, high-stress interactions that often lead to uses of force.”

Given this reality, Schwartz says, it “makes no sense to require plaintiffs to plumb the depths of Westlaw for factually similar lower court decisions as proof that officers were on notice of the unconstitutionality of their conduct.” Because that requirement is based on a plainly erroneous premise, she says, it “does not advance the stated goals of qualified immunity.”

If police cannot reasonably be expected to absorb the information that the Supreme Court has said is necessary for “fair notice,” defenders of qualified immunity might conclude, maybe they need even more protection from liability. But if this kind of detailed knowledge really is necessary to prevent officers from violating people’s rights, shouldn’t the police departments that routinely fail to impart it be liable for the resulting abuses? And if their current approach is sound, what does that say about the Court’s insistence on highly specific precedents as a condition for suing police under 42 USC 1983?

Without qualified immunity, courts would be free to decide whether an officer’s conduct violated the principles established by cases like Graham and Garner, even if no one had previously been held to account for doing exactly the same thing. That approach would not result in ruinous personal liability for police officers, because (as Schwartz also has shown) cops are routinely indemnified even when they lose civil rights cases. But letting such cases proceed would improve accountability, allow victims of police abuse to seek compensation, and help clarify constitutional issues that currently go unresolved.

“Because courts can grant officers qualified immunity simply because plaintiffs cannot find a prior similar case, qualified immunity can deny relief to plaintiffs whose constitutional rights have been violated and can shield officers from liability even when they have behaved maliciously or recklessly,” Schwartz notes. She concludes that courts should stop “sending the message to officers that they can ‘shoot first and think later’ and sending the message to people that their rights do not matter.”

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A Study of What Police Know About Court Decisions Exposes ‘Qualified Immunity’s Boldest Lie’


Supreme-Court-building-Joe-Ravi-Wikimedia

In two cases it decided last fall and last winter, the U.S. Supreme Court suggested that it might be prepared to limit the scope of qualified immunity, a doctrine that shields police officers and other government officials from federal liability for violating people’s constitutional rights unless the alleged misconduct ran afoul of “clearly established” law. In two decisions issued last week, by contrast, the Court complicated the puzzle of how plaintiffs can hope to satisfy that test.

The Court reaffirmed its prior statement that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”—a standard that excludes all manner of outrageous abuses. Worse, the justices twice suggested, in a decision from which none of them dissented, that lawsuits under 42 USC 1983, which allows people to seek damages for violations of their rights, may be barred even when the appeals court for the circuit in which a case is filed has previously concluded that conduct very similar to the defendant’s was unconstitutional.

“Even assuming that controlling Circuit precedent clearly establishes law for purposes of §1983,” the Court said in Rivas-Villegas v. Cortesluna, the 9th Circuit decision cited by the plaintiff “did not give fair notice” to the officer he sued. “Even assuming that Circuit precedent can clearly establish law for purposes of §1983,” the Court reiterated later in the same opinion, the earlier case “is materially distinguishable and thus does not govern the facts of this case.” Those opening clauses imply that “fair notice” might require a decision in which the Supreme Court itself addressed nearly identical facts, which would make an already formidable obstacle nearly impossible to overcome.

Whether or not the Court follows through on that alarming implication, the very notion of “fair notice” to police officers is based on what UCLA law professor Joanna Schwartz calls “qualified immunity’s boldest lie”: the assumption that cops keep abreast of relevant case law, such that they would know when their actions closely resemble conduct that was previously deemed unconstitutional. Schwartz’s research, which she reported last May in The University of Chicago Law Review, documents a yawning gap between that implausible assumption and the reality of how cops are actually trained.

“Nowhere in the Court’s decisions is consideration given to how, exactly, police officers are expected to learn about the facts and holdings of the hundreds—if not thousands—of Supreme Court, circuit court, and district court opinions that could be used to clearly establish the law for qualified immunity purposes,” Schwartz notes. “Nor has much consideration been given to the likelihood that police officers recall the facts and holdings of these hundreds or thousands of cases as they are making split-second decisions about whether to stop and frisk someone, search a car, or shoot their gun.”

Schwartz examined “hundreds of use-of-force policies, trainings, and other educational materials received by California law enforcement officers.” She found that the information in these materials was generally limited to the broad principles laid out in major Supreme Court rulings—principles that the Court has said are not sufficient to show that an officer’s alleged conduct violated “clearly established” law.

In the 1985 case Tennessee v. Garner, for example, the Court held that police may use deadly force against a fleeing suspect only if it is necessary to prevent his escape and there is probable cause to believe he poses a significant threat of violence to officers or the general public. In the 1989 case Graham v. Connor, the Court said the use of force by police must be “objectively reasonable,” a determination that “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”

While “police departments regularly inform their officers about watershed decisions like Graham and Garner,” Schwartz found, “officers are not regularly or reliably informed about court decisions interpreting those decisions in different factual scenarios—the very types of decisions that are necessary to clearly establish the law about the constitutionality of uses of force.” That conclusion is based partly on Schwartz’s examination of California police department policy manuals, which “reference or incorporate the constitutional standards from Graham and Garner,
but rarely reference any cases in which Graham and Garner were applied.”

Schwartz also read 329 police “training outlines” and found that more than three-quarters “referenced no court decision applying Graham and/or Garner.” Even when such decisions were mentioned, “the outlines suggest that trainers do not educate officers about their facts and holdings.” And while police training does “incorporate hypotheticals as a way to help officers develop an understanding about whether force is appropriate in various scenarios,” the outlines “offer no indication that these scenarios are drawn from court cases.” Schwartz found little evidence that prosecutors or newsletters were filling this gap in police knowledge.

“Even if law enforcement relied more heavily on court decisions to educate their officers about the constitutional limits of force, the expectations of notice and reliance baked into qualified immunity doctrine would still be unrealistic,” Schwartz writes. “There could never be sufficient time to train officers about the hundreds—
if not thousands—of court cases that could clearly establish the law for qualified immunity purposes. Moreover, even if an officer did somehow come to learn about the facts and holdings of court decisions applying Graham and Garner, there is no reason to believe that an officer would think about those cases during the types of high-speed, high-stress interactions that often lead to uses of force.”

Given this reality, Schwartz says, it “makes no sense to require plaintiffs to plumb the depths of Westlaw for factually similar lower court decisions as proof that officers were on notice of the unconstitutionality of their conduct.” Because that requirement is based on a plainly erroneous premise, she says, it “does not advance the stated goals of qualified immunity.”

If police cannot reasonably be expected to absorb the information that the Supreme Court has said is necessary for “fair notice,” defenders of qualified immunity might conclude, maybe they need even more protection from liability. But if this kind of detailed knowledge really is necessary to prevent officers from violating people’s rights, shouldn’t the police departments that routinely fail to impart it be liable for the resulting abuses? And if their current approach is sound, what does that say about the Court’s insistence on highly specific precedents as a condition for suing police under 42 USC 1983?

Without qualified immunity, courts would be free to decide whether an officer’s conduct violated the principles established by cases like Graham and Garner, even if no one had previously been held to account for doing exactly the same thing. That approach would not result in ruinous personal liability for police officers, because (as Schwartz also has shown) cops are routinely indemnified even when they lose civil rights cases. But letting such cases proceed would improve accountability, allow victims of police abuse to seek compensation, and help clarify constitutional issues that currently go unresolved.

“Because courts can grant officers qualified immunity simply because plaintiffs cannot find a prior similar case, qualified immunity can deny relief to plaintiffs whose constitutional rights have been violated and can shield officers from liability even when they have behaved maliciously or recklessly,” Schwartz notes. She concludes that courts should stop “sending the message to officers that they can ‘shoot first and think later’ and sending the message to people that their rights do not matter.”

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