Tonight, I will tweet my reading of Brown v. Flowers, a case decided by the Tenth Circuit last week, 9/14/20. This is a case about the rape of woman in a jail. It's also about qualified immunity. And I think it has a lesson I've been thinking about in light of RBG's death.

Ms. Brittney Brown was held pre-trial in the Pontotoc County jail, in Oklahoma.

Roger Flowers was a guard there.

One day, Flowers used the jail intercom system to tell Ms. Brown "to hurry" to the control tower to see him.

This is my commentary: prisoners are usually not allowed in a control tower. That he could put it over the intercom, for all the staff to hear, that she should come see him tells me that there is a rotten-systems problem.

That intercom message should have raised alarms.

Back to the case. When she got there, he demanded to see her breasts, then raped her. When she cried, he turned her around so he didn't have to see her cry while he penetrated her.

She testified she didn't fight back physically because she knew that fighting a guard could result in charges against her.

He gave her cigarettes. She asked a nurse for a rape kit. The case is silent about what, if anything, the nurse did.

Me again: rotten-systems problem here. This should have raised alarms and the jail should have protected her and investigated.

Instead, it appears the jail didn't do much. Because it happened again a week later.

So, some systems worked. He was criminally charged. He pleaded guilty to two counts of 2nd degree rape in Oklahoma.

The Ms. Brown sued, claiming that his raping her violated her constitutional rights.

You might think this is a no-brainer. He had already pleaded guilty! Well, the law has no brains, it seems.

His lawyer argued that (a) raping her wasn't a violation of her constitutional rights and (b) even if it was, he was entitled to qualified immunity.

Basically, he said that even though what he did was criminal rape, it was really consensual and so wasn't a violation of her constitutional rights. And even if it she didn't consent, he thought she did and so he should get qualified immunity.

The trial court didn't buy that. It said that factual consent was a jury question (so he might still have a shot at not being responsible) and also that he wasn't entitled to qualified immunity.

He appealed.

Now, when I say "he appealed" that's not what happened. His hired lawyers filed an appeal. Remember that.

Taking a little detour, but it's important. The 10th Circuit makes it clear that it's previous holdings that the 8th and 14th Amendment analyses are the same were overruled by Kinsley v. Hendrickson, a 2015 SCOTUS opinion.

That means that for pretrial prisoners there is only an objective analysis of whether excessive force (including sexual force) was objectively excessive.

The Tenth Circuit basically said, no, raping people in custody is a violation of their constitutional rights.

But then, Flowers argued that he had no way of knowing that from the established precedent.

And, again, when I say "Flowers" argued, I mean his attorneys argued.

And, I just have to quote the court here, because I can't even.

Yes, people who went to law school, who passed the bar, sat down at their computers and wrote that there was NO WAY this man should have known that a woman in his custody, who he called out to a place that prisoners shouldn't have been, who was crying, didn't want to have sex.

They really went to the fact that no one could “identify a single case that discusses a jailer’s ‘gift’ to
an inmate after sexual activity” should mean he got qualified immunity.

So, the good news is that the Tenth Circuit said no, it is "beyond debate" that raping a prisoner is unconstitutional and he doesn't get qualified immunity.

And unfortunately, this is ridiculous fiction of qualified immunity, that public officials read case law to decide exactly what they can get away with. https://twitter.com/emilyt804/status/1308216477913358336

Of course that's not true. But QI is a wholly judicially created doctrine designed to protect state actors. It's about what courts want to allow them to get away with.

But here is one of the rare times that a court finds that there is no QI. And that is good news. Well done, Tenth Circuit.

Now, about that lesson in light of RBG's death.

I've seen a fair number of tweets wondering where to look for justice now that it seems the Supreme Court balance will tip.

But the important thing is that we all seek justice. And seek to do justice. And there were a lot of places justice could have been done here.

The jail could have and should have had better systems to protect prisoners from abuse.

The medical system could have and should have responded better.

The lawyers could have refused to make such arguments.

But you don't have to be a Supreme Court litigator or wait for a Supreme Court Justice like RBG to fix those things.

Get involved in your local community. What are the systems at your county jail? Does your local rape crisis center work with your local jail to have a hotline?

Is there a way to support women and men in your community who are sexually abused in legal custody?

Finding out the answers to these questions, making your local representatives take notice, or even running for local office so you take notice -- these are ways of pursuing justice.

Supreme Court litigation is one way of pursuing justice. And it's important. But just because it's also flashy doesn't mean it's remotely the only way.

The Supreme Court won't be the same without Justice Ginsburg, may her memory be a blessing.

There's so much fight to be had out here. Don't get discouraged and give up.

Pick up a piece, any piece, and fight for justice. We need every bit we can get.

/fin

Oh, my faux pas, here's the case link: https://www.ca10.uscourts.gov/opinions/19/19-7011.pdf

/fin, for real

An example of what I was talking about, https://twitter.com/MauriceChammah/status/1308451229278797827?s=19