Justice Sonia Sotomayor dissented from today’s summary reversal, in a 15-page opinion joined by Justice Ruth Bader Ginsburg. Sotomayor recounted the facts of the case, positing that if the story “sounds unreasonable, that is because it was. And yet,” she complained, “the Court today insulates that conduct from liability,” “effectively treating qualified immunity as an absolute shield.” In particular, she lamented, the court’s ruling “ultimately rests on a faulty premise”: that the cases on which the 9th Circuit relied “are not identical to this one.” But the Supreme Court, she argued, has never ruled that the “clearly established law” standard is met only when the plaintiff can point to a case with identical facts. “It is enough,” Sotomayor contended, “that governing law places the constitutionality of the officer’s conduct beyond debate” – as Kisela’s was here. But at a minimum, Sotomayor added, there is enough dispute about the facts and the law in Kisela’s case that the court should not have reversed without the benefit of briefing or oral argument on the merits.
The majority opinion may have contained a strong rebuke of the 9th Circuit, but Sotomayor’s dissent concluded with an equally forceful reprimand for her colleagues. She asserted that today’s ruling “is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public” that officers “can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
Sotomayor had more strong words in her solo dissent from the court’s denial of review in two Florida capital cases. The inmates in the cases, Jesse Guardado and Steven Cozzie, had argued that their death sentences were unconstitutional, but the Supreme Court declined to step in. Sotomayor complained that the Florida Supreme Court had – as it had in two earlier cases – “failed to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences” after the Supreme Court’s 2016 decision holding that the state’s death-penalty-sentencing scheme violates the Constitution. In a somewhat unusual footnote, Sotomayor quoted from a 19th-century essay by the French author André Gide: “’Everything has been said already; but as no one listens, we must always begin again.’”
Good for her.
Meantime, there is a legal dispute in the 9th Circuit about anal clefts and what bikinis are too small for coffee baristas. From Reason:
So, what part of the butt is the ass crack, really? As a legal matter.
You see, a fight over scantily clad baristas in one Washington State community hinges partly on whether the average person can objectively tell which part of the bottom counts as the "anal cleft" and whether police could (or would) objectively be able to measure whether one is exposed or not.
The city of Everett, Washington, is trying to get rid of its "bikini barista" stands with an ordinance that forces the ladies there to wear more coverage. The city claims that these tiny stands where scantily clad women serve coffee are incubators of prostitution, public lewdness, and crime. They're trying to shut them down by forcing the women to button up.
The stands are fighting back and won an initial injunction against the ordinance's enforcement in December. A U.S. district judge determined that Everett's ordinance was too vague in its description of what needed to be covered and thereby risked arbitrary enforcement issues. And the judge further determined that the law likely violated the First Amendment free expression rights of the women who worked there.
Everett is now fighting back itself against the injunction, submitting a legal brief arguing that the judge erred on both counts. Its appeal calls for the judge to be overruled and the injunction dissolved.
You'll never read a more boring 66-page document about butts. It includes four pages listing all the federal court cases used to bolster its claim that there's no real confusion about what counts as an "anal cleft" and that there's no evidence that the women are actually expressing anything in particular in their clothing choices.