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Pro Bono Innovators 2022 Honoree
MacArthur Justice Center

Nov. 2, 2022, 9:00 AM

Your organization’s work included the US Supreme Court case McCoy v. Alamu and Ashaheed v. Currington in the US Court of Appeals for the Tenth Circuit, which both dealt with qualified immunity. You also handled the high court case Thompson v. Clark, arguing that the end of a criminal proceeding resulting in anything but a conviction or guilty plea satisfies the “favorable termination” of a criminal prosecution standard in a Fourth Amendment claim under Section 1983. How did your organization strategize on how to approach these matters?

Collectively, these three successes reflect an innovative and strategic approach taken by the MacArthur Justice Center’s Supreme Court and Appellate Program, which exists to impact civil rights in the criminal legal system on a national scale by focusing on high- stakes appeals.

It’s common for civil rights organizations to litigate appeals growing out of their own trial court litigation, but it’s a different model to come in on appeal, joining a team of trial court lawyers or offering appellate representation to clients who couldn’t afford counsel below. We weren’t involved in McCoy, Ashaheed, or Thompson in the trial court. Instead, the lead appellate lawyers in these cases—Danny Greenfield in McCoy, me [David Shapiro] in Ashaheed, and [Executive Director of the MacArthur Justice Center] Amir Ali in Thompson—identified these as important appeals, often by scouring dozens of recent lower court decisions each week. Our goal is to litigate appeals raising important issues with the potential to drive change.

What were the most innovative aspects of these matters in your view? And who took the lead on driving innovation with the work?

These cases all show how collaborating with teammates and partners can generate innovative strategies and favorable outcomes. In Thompson, Amir Ali, Devi Rao, and their team (consisting entirely of women and people of color) authored powerful briefs weaving together 19th-century legal history with the more immediate reality of what Mr. Thompson experienced. Through amicus briefs, they ensured the Supreme Court also heard the perspectives of former police officials and prosecutors, among others, who supported their position.

In McCoy, Danny Greenfield teamed up with Sam Weiss of Rights Behind Bars to write a cert petition that captured the Supreme Court’s attention and led to a vacatur and remand. In Ashaheed, I reached out to Muslim Advocates, the Cato Institute, and the Institute for Justice, and I’m sure we prevailed in part because the Tenth Circuit saw that groups with different perspectives all agreed that Mr. Ashaheed’s rights had been violated.

Tell us more about the impact of the matters on the local, national, and/or global level.

Each case vindicated the civil rights of people caught up in the criminal legal system. Thompson eliminated an arbitrary barrier—the lower court (like other courts) had thought plaintiffs like Mr. Thompson couldn’t sue police officers because the prosecution dropped criminal charges rather than waiting for a court to throw them out. The Supreme Court reversed.

McCoy and Ashaheed both chipped away at qualified immunity. That doctrine can shield misconduct, from needless police shootings to deplorable prison conditions. The Supreme Court’s remand in McCoy drives it home that some conduct is so reprehensible that you don’t need a prior case with similar facts for officials to know their behavior is off-limits.

One Fifth Circuit judge even wrote that McCoy and another decision “upended” the circuit’s qualified immunity jurisprudence. In a similar vein, Ashaheed holds that officials can’t hide behind qualified immunity when they intentionally discriminate against a prisoner’s religion.

Why do you think your team ultimately achieved successful results?

A key driver of success in these cases and many others is our combination of appellate expertise and commitment to racial justice and civil rights. We love the intellectual complexity of the work, but that’s not why we’re doing it—we’re doing it to support our clients and to work toward a more humane justice system. We’re a bridge between two areas of expertise that need each other—civil rights and appellate practice.

We win because my colleagues are brilliant legal strategists—but they’re also boundlessly kind and occasionally even funny. Just as important, we have a culture of mutual respect, admiration, and just plain liking each other that makes the atmosphere in our group pretty special. That culture helps us arrive at the best decisions on case strategy through open discussions that minimize internal hierarchy and deference.

Take us back to the time the matters were resolved. What did you do to celebrate?

For me personally, a happy coincidence made Ashaheed even more meaningful, and the celebration at the end even more memorable. I found the case out of the blue, so I was delighted to see that one of the lawyers in the district court was Andy McNulty, a former student I’d worked with very closely as a legal clinic instructor many years before. It meant a lot personally for me to reconnect with Andy, who had since become an accomplished attorney at the civil rights powerhouse Killmer, Lane & Newman.

I worked on the case with two current students, including one who played opposing counsel in several moots. The flurry of congratulations at the end of the case felt very special because our win for our client was also a bridge between current and future civil rights attorneys, all of whom I had the privilege of teaching.

Responses provided by David Shapiro, director of MacArthur’s Supreme Court and Appellate Program.

With assistance from Kibkabe Araya

To contact the reporter on this story: Lisa Helem at lhelem@bloombergindustry.com in Washington, D.C.

To contact the editors responsible for this story: Lisa Helem at lhelem@bloombergindustry.com; MP McQueen at mmcqueen@bloombergindustry.com