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William Pryor Jr. must have known he was in for some trouble when the president nominated him to the Eleventh Circuit U.S. Court of Appeals. After all, this is a man who dismissed the Supreme Court as “nine octogenarian lawyers” and, in a brief to those same senior citizens, compared gay sex to “necrophilia, bestiality, possession of child pornography and even incest and pedophilia.” Give him points for consistent bluntness — he told the Senate Judiciary Committee that Roe v. Wade is a morally wrong decision that “has led to the slaughter of millions.” During his confirmation hearing, Pryor also offered some standard boilerplate to stave off a filibuster by Senate Democrats: If confirmed to the bench, he said, “I am able to set aside my personal beliefs and follow the law, even when I strongly disagree with the law.” Then again, why should Pryor — who was approved last week by a party-line vote of the Judiciary Committee — bother to be circumspect about disagreements with the justices? After all, the court to which he is nominated knows how to ignore the Supreme Court when it wants to. The Eleventh Circuit, which encompasses Alabama, Georgia, and Florida, is an heir to judicial gods. It was created in 1981, when Congress split up the old Fifth Circuit. Judges within the Fifth Circuit had helped to power the civil rights era, with rulings from the likes of John Minor Wisdom, Elbert Tuttle, and Frank Johnson Jr. that took the spirit of Brown v. Board of Education and helped transform its vision of greater racial equality into a reality. Sometimes the court still shows glimmers of that civil rights legacy. Earlier this month, it held that Alabama’s chief justice violated the First Amendment by installing a two-and-a-half ton monument to the Ten Commandments in the state judicial building; it specifically rebuked arguments that the federal court had no power over the judiciary of a sovereign state. Unfortunately, the Eleventh Circuit doesn’t always embrace Supreme Court precedent so willingly. Here’s Chief Judge J.L. Edmondson writing earlier this year: “The Supreme Court decision in Hope v. Pelzer did not change the preexisting law of the Eleventh Circuit much.” That might not sound like an extraordinary statement. Not every Supreme Court decision alters the law in every circuit. But Hope v. Pelzer , which the justices decided in 2002, was a case from the Eleventh Circuit that the Supreme Court reversed and remanded. To be sure, Edmondson confessed that ” Hope definitely did change the law of the Circuit some.” But that’s only half the story. What’s shocking is that Hope worked any change in the Eleventh Circuit in the first place. After all, the Supreme Court in 1997 issued a decision that was virtually identical to its 2002 holding in Hope . The fact is, it took two opinions from the Supreme Court, on the same topic, for the Eleventh Circuit to nod its head. I’ll work backward here: first, the Hope decision. The gist of the dispute was whether Alabama prison officials could be held liable under federal civil rights law (42 U.S.C. [SECTION SYMBOL] 1983) for twice handcuffing a prisoner to a “hitching post.” The second time, according to the Supreme Court, “[t]he guards made him take off his shirt, and he remained shirtless all day while the sun burned his skin.” For good measure, the guards gave him water only once or twice in seven hours and refused to let him go to the bathroom. In holding that the guards were potentially liable, the Supreme Court asked and answered two key questions. First, was the conduct unconstitutional? Well, yes. What the guards did rose to the level of cruel and unusual punishment in violation of the Eighth Amendment. Even the Eleventh Circuit judges, when the case came to them on its way to the Supreme Court, saw that. The second question was trickier: Were the officers, despite their unconstitutional behavior, immune? Usually, to hold a government official liable for an official act, a plaintiff needs to breach the official’s “qualified immunity.” Whether a government official gets the benefit of that qualified immunity often hinges, in turn, on whether the official’s act violated clearly established law. Or, as the Supreme Court put it in Harlow v. Fitzgerald (1982), the question is whether the actions violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” This all makes sense. Government officials, like all other defendants, should only be held liable if they had notice that what they were doing was wrong. If it’s clearly established before officials do something that the something is unconstitutional, they (or the governments they work for) should pay. The problem is that if you define “clearly established” law too stingily, then when a defendant does something very wrong that has yet to be declared illegal in precise detail, he might get off the hook. Essentially, the more narrowly you define clearly established law, the more incentive you give officials to be creatively perverse (or, in the words of “Pulp Fiction,” to “get medieval on your ass”). The Eleventh Circuit had decided to take the narrow road. In Lassiter v. Alabama A&, a 1994 decision, then-Judge Edmondson laid out the standard for the Eleventh Circuit: “For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that ‘what he is doing’ violates federal law.” Edmondson conceded that “[t]he facts need not be the same as the facts of the immediate case. But they do need to be materially similar.” Overall, “[t]he line is not to be found in abstractions.” The Supreme Court didn’t like that approach. In 1997, in a case called United States v. Lanier , the Court considered the criminal analogue to the civil law at issue in Hope . The Sixth Circuit in Lanier had reversed a government official’s convictions on the ground that there was no “factual situation fundamentally similar to the one at bar” (specifically, a situation where a state judge sexually assaulted women in his chambers). Wrong. In his unanimous opinion for the Supreme Court, Justice David Souter wrote: “[G]eneral statements of the law are not inherently incapable of giving fair and clear warning, and in other instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful.” The touchstone is whether the constitutional rule had been “made specific” so as to give “fair warning” — a phrase that appears 13 times in the decision. Even “notable factual differences” between the act in question and acts previously held unconstitutional do not necessarily negate a fair warning. And this formulation is the same whether the government official is being accused in a criminal or a civil case, according to the Court. So Lanier was functionally an order to toss out the “concrete and factually defined context” and “materially similar” tests from Lassiter . Apparently, the Eleventh Circuit wasn’t listening. Since March 31, 1997 — when the Supreme Court handed down Lanier — the Eleventh Circuit has issued at least 11 published opinions that reiterate the superseded Lassiter standard. None of them even mentions the Lanier case or its “fair warning” standard. [ DROPCAP]When Hope — the hitching post case — came to the Eleventh Circuit a few years later, the court as usual recited its mantra from Lassiter , including the “materially similar” standard. And as usual, the case did not mention either the high court’s Lanier decision or its “fair warning” standard. The circuit court simply granted immunity to the prison officers and went on its merry way. The Supreme Court was not amused; it agreed to hear Hope . Justice John Paul Stevens’ 6-3 opinion fairly bellows that the Eleventh Circuit’s “rigid gloss on the qualified immunity standard . . . is not consistent with our cases.” The Eleventh Circuit’s “materially similar” standard was just as flawed as the “fundamentally similar” standard that the Supreme Court rejected in Lanier . The appropriate test, the Hope opinion reiterates, is the “fair and clear warning” standard. Do you understand now? Kind of. As Chief Judge Edmondson wrote earlier this year in Willingham v. Loughnan, Hope only changed the law “some” in the Eleventh Circuit. After all, “we have repeatedly acknowledged the possibility that a general statement of the law might provide adequate notice of unlawfulness in the right circumstances.” Which is to say, the Eleventh Circuit has on occasion applied something like the Lanier test. Edmondson then listed a line of cases where the court had done just that. Of course, Edmondson didn’t mention that the court failed to follow Lanier in 11 other cases. But why should he boast? Isn’t it enough that the Lassiter standard survived in the Eleventh Circuit five years after the Supreme Court essentially struck it down, until the Court had to strike it down again? One other thing to remember: The Hope case involved Alabama prison officials. The state attorney general filed the brief for the defendants in the Supreme Court. The brief not only argued that the officials deserved qualified immunity; it also argued that chaining a prisoner to a hitching post was not cruel and unusual. That’s a constitutional claim that even the Eleventh Circuit had already rejected. The name of that attorney general? William Pryor. Evan P. Schultz, associate opinion editor at The Recorder ‘s Washington, D.C.- based affiliateLegal Times , clerked for the Eleventh Circuit in 1997. He can be reached at [email protected]

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