Would Eliminating Qualified Immunity Substantially Deter Police Misconduct?

MICHAEL C. DORF

Cornell law professor Michael C. Dorf discusses the proposal that eliminating or substantially reducing the qualified immunity currently enjoyed by police officers would address racism and police brutality. Although the idea has lately garnered some bipartisan support and could potentially have some benefit, Dorf describes two reasons to be skeptical of the suggestion. He concludes that for all of its flaws, qualified immunity may actually facilitate the progressive development of constitutional rights.

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Albert-Sheridan v. State Bar of California

Docket: 19-60023

Opinion Date: June 10, 2020

Judge: Bumatay

Areas of Law: Bankruptcy

After the State Bar of California suspended one of its members for misconduct, it conditioned her reinstatement of the payment of court-ordered discovery sanctions and costs associated with its disciplinary proceedings. The suspended attorney sought to discharge the payment in bankruptcy. The Ninth Circuit held that, while a debtor may not discharge the costs of the State Bar's attorney disciplinary proceedings imposed under California Business and Professions Code 6086.10, the discovery sanctions under California Procedure Code 2023.030 were dischargeable. Under the plain text of 11 U.S.C. 523(a)(7), they were not payable to and for the benefit of a governmental unit and were compensation for actual pecuniary losses. Finally, the panel rejected the attorney's claim that the State Bar violated 11 U.S.C. 525(a) by failing to reinstate her law license because of her nonpayment of dischargeable debts. Accordingly, the panel affirmed in part and reversed in part.

Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer

Docket: 18-15840

Opinion Date: June 10, 2020

Judge: Jay S. Bybee

Areas of Law: Civil Rights, Constitutional Law, Education Law

Plaintiff raised a First Amendment challenge to part of California's Private Postsecondary Education Act of 2009, which prohibit plaintiff, Esteban Narez, from enrolling in plaintiff Bob Smith's horseshoeing class unless he first passes an examination prescribed by the U.S. Department of Education. However, if Smith were running a flight school or teaching golf, dancing, or contract bridge, Narez could enroll without restriction. The district court held that the Act does not burden plaintiffs' free speech and dismissed the complaint based on failure to state a claim. The Ninth Circuit reversed, holding that plaintiffs have stated a claim that the Act burdens their rights under the First Amendment. The panel held that the statutory scheme here not only implicates speech, but also engages in content discrimination; because content discrimination is apparent, the district court should have applied some form of heightened scrutiny; and thus the panel remanded for the district court to determine whether this case involves commercial or non-commercial speech, whether California must satisfy strict or intermediate scrutiny, and whether it could carry its burden under either standard.

Nguyen v. Endologix, Inc.

Docket: 18-56322

Opinion Date: June 10, 2020

Judge: Bress

Areas of Law: Securities Law

The Ninth Circuit affirmed the district court's dismissal of a putative securities class action under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5. Plaintiff alleged that a medical device company misled the investing public about whether the FDA would approve the company's new aneurysm sealing product. The panel held that allegations that are implausible do not create a strong inference of scienter under the Private Securities Litigation Reform Act. In this case, plaintiff failed sufficiently to plead facts giving rise to a strong inference that defendants made false or misleading statements either intentionally or with deliberate recklessness. The panel explained that, under the facts alleged, plaintiff's core theory—that the company invested in a U.S. clinical trial and made promising statements about FDA approval, yet knew from its experience in Europe that the FDA would eventually reject the product—has no basis in logic or common experience. Rather, the more plausible inference is that the company made optimistic statements about its prospects for FDA approval.