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Not Clearly Established A Jailer Can't Spray A Prisoner In The Eyes With Pepper Spray For No Reason, Says Fifth Circuit

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A recent decision [PDF] by the Fifth Circuit Court of Appeals once again highlights the utter absurdity of qualified immunity. To qualify for immunity, all a law enforcement officer needs to do is show they violated someone's rights in a new way -- one not previously considered by the court. Since there's no on-point precedent, it was not "clearly established" that this violation of rights was actually a violation of rights the officer should have been aware of, so the officer walks away from the lawsuit unscathed."On-point" means this exact thing happened before. If a cop shoots an unarmed person who happened to walk by a window rather than through a door, and it's only been established that shooting an unarmed person walking through a door is a Constitutional violation, the window shooting is good to go and qualified immunity is handed to the officer. Even when it should be apparently clear shooting an unarmed person through a window would violate their right to be free of bullets when walking past their own windows while inside their own home, it somehow isn't clear to cops. Nor is it to the courts, that only consider established precedent when deciding whether or not an officer's actions were "reasonable" in this situation.This case involves the actions of a corrections officer. Prince McCoy was sprayed in the face with pepper spray by a guard referred to in the lawsuit only as "Mr. Alamu."Here's McCoy's side of the story:

On that day in 2016, Alamu came by McCoy’s cell block. As Alamu approached the cell of Marquieth Jackson, one of McCoy’s neighboring inmates, Jackson threw some water on Alamu. Alamu radioed a sergeant, “who dealt with the matter.” About an hour and a half later, Alamu returned to conduct a roster count. Again, Jackson doused Alamu with water. Angered, Alamu grabbed his chemical spray and yelled “where you at?” repeatedly at Jackson. McCoy’s fellow inmates screamed “you can’t spray him!” But because Jackson had blocked the front of his cell with sheets, Alamu couldn’t do anything. Two minutes passed. Alamu re-holstered the spray and walked toward McCoy’s cell, asking for McCoy’s name and prisoner number. As McCoy approached the front of the cell to inform him, Alamu “sprayed [McCoy] directly in the face with his [chemical] spray for no reason at all.”
And here's Mr. Alamu's:
He states that after being “chunked with an unknown liquid” by Jackson, he “immediately . . . ran away from the cell for cover.” As he approached McCoy’s cell, he “went blank” after McCoy threw “an unknown weapon” at him, striking him in the face. Feeling that his “life was in danger,” “the next thing that crossed [his] mind was to use” the spray. He characterized his panicked reaction as an “involuntary action.” Documents in the record suggested that the “weapon” was a “piece of rolled toilet paper.” McCoy denies throwing anything.
It's refreshing to know correctional officers feel it's acceptable to "go blank" when (allegedly) being hit in the face with a "piece of rolled toilet paper." "Going blank" is great -- especially when tied to "life in danger" -- because it can be used to justify every bit of excessive force that happens after that. This doesn't work for civilians. Assaulting someone after "going blank" and supposedly acting in self-defense tends not to sway juries when the end result is an unarmed, assaulted victim.The prison's Use of Force report determined Alamu's pepper spraying of McCoy was unnecessary and inconsistent with policy. Alamu was placed on three month's probation. The Fifth Circuit is far more sympathetic to Alamu's use of unnecessary force. It does find Alamu violated McCoy's rights by spraying him with pepper spray because a different prisoner had thrown water on Alamu.
Alamu has two main responses, but neither saves him. First, he contends that he reasonably perceived a threat because McCoy threw a wad of toilet paper at him. But even if that factual contention might persuade a jury, it does not justify summary judgment. McCoy denies throwing anything at Alamu and supports his denial with competent evidence. Relatedly, Alamu suggests that the spray was justified because the undisputed facts showed that Jackson had twice thrown liquids on Alamu. But the conclusion doesn’t follow: Alamu sprayed McCoy, not Jackson. McCoy should not bear the iniquities of his fellow inmate.Second, Alamu appears to contend that McCoy cannot show a violation because his injuries were de minimis. But unfortunately for Alamu, the Supreme Court has rejected that line of reasoning. “Injury and force . . . are only imperfectly correlated, and it is the latter that ultimately counts.” Wilkins, 559 U.S. at 38. Accordingly, because a reasonable jury could conclude that Alamu’s use of force was excessive, McCoy meets his burden at the first QI prong.
But that's the end of the good news. Although McCoy cited previous cases pretty much on point dealing with the assault of prisoners who posed no threat to officers, the court decides those cases just aren't "on point" enough.
Above, we held that the spraying crossed that line. But it was not beyond debate that it did, so the law wasn’t clearly established. This was an isolated, single use of pepper spray. McCoy doesn’t challenge the evidence that Alamu initiated the Incident Command System immediately after the spray, nor that medical personnel promptly attended to him and provided copious amounts of water. Nor does he provide evidence to contest the Use of Force Report’s finding that Alamu used less than the full can of spray… [O]n these facts, it wasn’t beyond debate that Alamu’s single use of spray stepped over the de minimis line. For that reason, the law wasn’t clearly established.
The dissent asks the questions that need to be asked -- the ones that aren't addressed by the majority. Why is it still OK to pepper spray someone when it's been clearly established assaulting a prisoner in the same position with fists, batons, or Tasers isn't? As the dissent points out, pepper spray is arguably more dangerous than anything else on this list.
Although the majority purports to recognize that the instrument of force does not matter in a “no provocation” case, its grant of immunity ultimately turns on the fact that the guard used pepper spray instead of a fist, taser, or baton. It relies on the absence of law clearly establishing that wantonly spraying a prisoner with a chemical agent involves more than a de minimis use of force. The same could have been said in Newman about tasing. Unexplained in the majority opinion is why tasing is a more serious use of force than pepper spraying. The use of pepper spray is no small thing. The chemical agent, which temporarily blinds its recipients, is—unlike tasers—banned for use in war.
As for the majority's inability to find a case on point to deny QI, the dissent says its willingness to abandon common sense in favor of precedent does not reflect well on it.
The majority neglects that the gratuitous tasing in Newman was deemed an “obvious” case of excessive force, 703 F.3d at 764, a label that also fits the pepper spraying of McCoy “for no reason.” Qualified immunity is often a game of find-that-case, but not always. Common sense still plays a role; when the violation of constitutional rights is “obvious,” there is no immunity. [...] That knowledge of illegality necessarily exists when an officer commits an obvious constitutional violation. That’s what obvious means.
Our rights are supposed to protect us from our government. But somehow, these rights are only vaguely established when they're violated by government employees. Years of jurisprudence hasn't brought us any closer to a "reasonable" ideal that actually reflects reasonable thought, much less common sense. The only thing "clearly established" is that law enforcement officers can violate rights with almost no fear of reprisal.

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posted at: 12:00am on 25-Feb-2020
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Can You License A Video You Don't Hold The Copyright Over?

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A few times in the past we've discussed the differences between ownership of an original creative work and ownership of the copyright associated with that work. I'm reminded of this distinction -- which confuses the hell out of many people -- after lawyer Eric Turkewitz tweeted at me a question about who would own the copyright in this (oldish) viral video of a camera dropping from an airplane while filming, only to be discovered by an interested pig. It's gone viral a few times, and makes the rounds here and there. It's mildly entertaining.

But, what caught Turkewitz's eye is that the video on YouTube has the following description which includes "licensing information."
It says:
Camera falls from a sky diving airplane and lands on my property in my pig pen.
I found the camera 8 months later and viewed this video. For licensing/usage please contact: licensing@jukinmedia.com
If you're not familiar with it, Jukin Media is one of the biggest of a weird crop of businesses that rush in to try to monetize "viral" videos. Basically, they find various viral content and quickly contact whoever controls the video, and promise to get them money by "licensing" it for use in media. What this often means in practice -- especially with Jukin -- is that it goes around shaking people down for resharing clips of these viral videos.Now, in some cases, there may be legitimate licensing opportunities, or potentially even real copyright infringement. However, I'm left scratching my head over the situation here. First off, the description (whether true or not), claims that the camera fell out of a plane and just landed in this person's pig pen, where it was found many months later. I don't know enough about regular property law to know if having the camera thrown from the sky onto the landowner's property -- and then left for 8 months -- means anything in terms of who owns the camera, but there's one thing that is pretty clear: the person who found the camera absolutely does not hold the copyright in the video.A la the infamous monkey selfie case, there's a legitimate question as to whether or not there is a copyright to be had in this video -- but if there is, it's not held by the person who found the camera (and, no, we'll get it out of the way: it's not held by the pig either, as only humans and companies can hold a copyright). At best, one might argue that there's some copyright interest held by the person whose camera it used to be -- the person who dropped it out of the plane. Even that is arguable. The copyright in a photograph or video is supposed to be limited to the creative choices made by the creator. If the camera was deliberately dropped from the plane with the intention of making this video then, there's maybe a tiny sort of argument that they should get some level of copyright protection, though even then I'd argue it's fairly limited, as the creative input by that person is fairly minimal (especially once the camera is on the ground and the pig takes over).All that is to say -- I'm not at all sure what rights Jukin has to "license" here. It can't offer a copyright license, and if it is, that's copyfraud -- claiming copyright in something it has no right to. But, of course, in this age where the RIAAs and MPAAs of the world continue to insist that everything must be covered by copyright, I imagine that Jukin has likely been able to convince lots of people to pay up because it's just easier, rather than recognizing that it has no rights to be licensing the video in the first place.

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posted at: 12:00am on 25-Feb-2020
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