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The Supreme Court today decided Filarsky v. Delia:

Section 1983 provides a cause of action against state actors who violate an individual's rights under federal law. 42 U. S. C. §1983. At common law, those who carried out the work of government enjoyed various protections from liability when doing so, in order to allow them to serve the government without undue fear of personal exposure. Our decisions have looked to these common law protections in affording either absolute or qualified immunity to individuals sued under §1983. The question in this case is whether an individual hired by the government to do its work is prohibited from seeking such immunity, solely be- cause he works for the government on something other than a permanent or full-time basis.

As you might guess from the phrasing of the question, the answer is no.  The temporary or part-time government actor gets the same immunity, the Court held unanimously.  Filarsky arises out of civil litigation, but its rationale would extend to an attorney who acts as a prosecutor on a less-than-full-time basis.

The US Supreme Court decided three cases today, one of which is a crime-related civil suit, Messerschmidt v. Millender.  This decision confirms that getting a search warrant provides a police officer with strong protection against civil liability if the search is later deemed unreasonable.  The protection is not absolute.  The Court has "recognized an exception allowing suit when 'it is obvious that no reasonably competent officer would have concluded that a warrant should issue.' ... Our precedents make clear, however, that the threshold for establishing this exception is a high one, and it should be."  The decision is 6-1-2.  Opinion of the Court by Chief Justice Roberts with Justice Kagan concurring in part and dissenting in part and Justices Sotomayor and Ginsburg dissenting.

The Notorious Ninth gets another unanimous summary reversal today in Ryburn v. Huff.  The case involves police entry into a home under circumstances they believed to be exigent and qualified immunity in a subsequent civil suit.

(My summaries of this morning's cases are necessarily brief.  I may expand on them later today.  Further discussion in the comments is welcome, as always.)

In 1971, the Supreme Court created a constitutional tort remedy against federal agents who violate constitutional rights in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 389.  Subsequent cases created qualified immunity for actions where the legality of the agent's actions were fairly debatable at the time.

How about federal prisons operated by private contractors?  No need to expand Bivens, the Court said today in Minneci v. Pollard, No. 10-1104.  Just sue the privately employed guards in a state tort action like you would any other employee of a private business who violates your rights. 

For one thing, the potential existence of an adequate "alternative, existing process" differs dramatically in the two sets of cases. Prisoners ordinarily cannot bring state law tort actions against employees of the Federal Government....  But prisoners ordinarily can bring state-law tort actions against employees of a private firm.

The discussion makes clear that the Court is going to be very reluctant to expand Bivens into any new territory.  Bivens won't be expanded if there is another remedy, and maybe not even then.

Justices Scalia and Thomas concur.  They go further and say that "Bivens and its two follow-on cases" should be limited "to the precise circumstances that they involved."  Justice Ginsburg dissents alone.

Off-topic but interesting, Adam Liptak has this story in the NYT about an Eighth Circuit decision saying a discrimination suit against U. Iowa College of Law must go to trial.

The US Supreme Court took up only one case in its orders list today.  The question involves qualified immunity in a civil suit against Secret Service agents.  Plaintiff Steven Howards confronted Vice President Cheney at a Colorado shopping mall back in 2006.  His confrontation went beyond verbal into very mildly physical, and an agent arrested him when he falsely denied contact.  He claims retaliation in violation of the First Amendment.  The District Court granted the agents qualified immunity, and a divided panel of the Tenth Circuit reversed in part.

The three habeas cases we've been watching are relisted yet again for next week.

Hmmm.  Confronting the Veep.  Arrest.  First Amendment implications.  Qualified immunity.  Why do I get the feeling I've seen this movie before?

It is a source of pride that the courts of the United States are always open, see, e.g., 28 USC 452.  On the other hand, there are times when we really need to close them, as this story illustrates.

You can't make this stuff up.

In Florence v. Board of Chosen Freeholders, No. 10-945, the question before the Supreme Court (as phrased by the plaintiff) is, "Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances."  But there is a backstory here about a nasty fight between two lawyers for the plaintiff, reported by Jess Bravin in the WSJ.

The dispute between Susan Chana Lask and Elmer Robert Keach III sheds light on a little-known but lucrative legal niche, and shows why a decisive ruling by the Supreme Court is sometimes the last thing lawyers want.

*                         *                       *

Mr. Keach said he and his colleagues have racked up $36 million in class-action settlements with jails across the Northeast and as far away as Texas that routinely strip-searched inmates. Roughly 30% of that went to attorneys' fees.

Ms. Lask may have ruined it all, Mr. Keach said, by bringing a case before a conservative-led Supreme Court, where several justices suggested at arguments last month that blanket strip-search policies might be constitutional.

The California Supreme Court does not plan to decide any criminal cases tomorrow, but there is one opinion coming out that is destined for the Cases You Have to Look Up Just for the Name file:  Save the Plastic Bag Coalition v. City of Manhattan Beach, No. S180720.

One civil case decided today involves awards of attorneys' fees under 42 U.S.C. §1988, an issue that arises frequently in suits against law enforcement.

The late Billy Ray Vice, one-time chief of police of Vinton, Louisiana, was evidently a real sleazoid.  His dirty campaign against his election opponent, Ricky Fox, was a triple loser.  He lost the election to Fox.  He was prosecuted and convicted of extortion.  Finally, Fox sued him.

Fox had very good grounds to sue Vice, but he messed up by including a federal civil rights claim.  The Federal District Court found that the civil rights portion was not only meritless but frivolous, awarded summary judgment and attorneys' fees to Vice, and booted the remainder of the case back to state court.

Today, the Supreme Court decided that the award of attorneys' fees should have been limited to the portions that would not have been incurred without the bogus civil rights claim, excluding fees incurred for work that overlaps the valid and bogus claims.

The case did not involve, and does not address, the true vice of the Supreme Court's §1988 jurisprudence -- the different standards for plaintiffs and defendants.  There is no basis for this in the language of the statute, and the Court explained in the John Fogerty case, involving a different statute, why a dual standard is a bad idea.  (Oh, Lord, stuck in litigation again.)  That issue must await another case, or possibly congressional action.

The notorious Ninth Circuit has been reversed yet again by the US Supreme Court in a crime-related case.  Yet again, not a single member of the high court thought the Ninth's judgment was correct.  Yet again, the Ninth was warned by a strong dissent from denial of rehearing en banc by many of its own judges.

The key question in Ashcroft v. al-Kidd is whether a Fourth Amendment attack on a seizure can be made by claiming an invalid subjective motivation, even though the seizure is objectively valid, meeting the requirements of the Fourth Amendment for a seizure of that type.

We thought we had killed that argument off 15 years ago in Whren v. United States, 517 U.S. 806 (1996), but like the monster in a formula horror movie it springs back to life and attacks again.  Despite Whren and a host of other Supreme Court precedents on this question, the Ninth Circuit held to the contrary based on a strained inference from the drug checkpoint case, Indianapolis v. Edmond, 531 U.S. 32 (2000).  That case involved stops with no individualized suspicion.  To think that Edmond is more closely analogous to this case, involving a material witness warrant issued by a magistrate on an individualized showing, than the cases where the Supreme Court has rejected subjectivity, is an enormous stretch.

Far worse than its merits holding, though, was the Ninth Circuit's assertion that the law was "clearly established" in favor of its holding.  That is absolutely preposterous.  All eight Justices participating agree that this holding is wrong, see the first paragraphs of all three concurring opinions, and the opinion of the Court includes a severe but thoroughly deserved rebuke.