Qualified Immunity

Prison Guards Who Locked Naked Inmate in Cell Filled With 'Massive Amounts' of Feces Got Qualified Immunity

The 5th Circuit Court of Appeals acknowledged that the plaintiff's Eighth Amendment rights were violated.


A group of prison guards who forced an inmate to live in two cells infested with human feces and raw sewage for a total of 6 days are protected by qualified immunity and cannot be sued over the incident, a federal court ruled last year. 

Though the U.S. Court of Appeals for the 5th Circuit acknowledged that the squalid conditions in which he was kept violated Trent Taylor's Eighth Amendment right to not suffer cruel and unusual punishment, the panel afforded the defendants protection from civil liability because no similar situation had been ruled unconstitutional under previous case law. 

That's par for the course with qualified immunity, the legal doctrine that shields public officials from accountability for violating your rights if the scenario in which those rights were violated has not been spelled out with granular detail in a pre-existing court precedent.

The Constitutional Accountability Center (CAC) filed an amicus brief this month petitioning the Supreme Court to hear Taylor's case. 

"Under the Supreme Court's case law, qualified immunity shields government actors from civil liability 'so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,'" says Brianne Gorod, Chief Counsel at CAC, "but the Supreme Court has made clear that 'officials can still be on notice that their conduct violates established law even in novel factual circumstances.'"

This should be one of those times, says Gorod. Judges on the 5th Circuit disagreed, awarding qualified immunity to Robert Stevens, Robert Riojas, Ricardo Cortez, Stephen Hunter, Larry Davison, Shane Swaney, Creastor Henderson, and Joe Martinez, who were all prison officials at the John T. Montford Psychiatric Facility Unit in Lubbock, Texas, during the alleged incident.

On September 6, 2013, Taylor says that he was forced naked into a cell with "massive amounts" of feces across the floor, windows, walls, and ceiling. It gave off a "strong fecal odor." Taylor claims he could not drink water because feces were "packed inside" the faucet, and he did not eat over worries that the food might get contaminated. 

Taylor alleges that Cortez, Davison, and Hunter laughed at him when he expressed concerns and that one guard told him he was "going to have a long weekend." Taylor says that Swaney similarly shrugged off his complaints, telling him "Dude, this is Montford, there is shit in all these cells from years of psych patients." Taylor stayed in the cell until September 10th.

On September 11, Taylor was transferred to an empty seclusion cell with a clogged drain overflowing with raw sewage. Lacking a toilet, he was told to urinate on the floor. But because the drain was stopped up, and because he lacked a bed, he would have then been forced to sleep in his urine. Taylor refused and proceeded to urinate on himself involuntarily after 24 hours passed. He stayed in that cell until September 13, after which time the guards attempted to escort him back to the feces-inundated cell. He begged for a different placement, and the guards obliged. 

Circuit Judge Jerry E. Smith writes in his opinion that Taylor's case meets the threshold for an Eighth Amendment violation. He cites two court precedents—McCord v. Maggio (1991) and Gates v. Cook (1994)—that affirm a prisoner is not to be subjected to egregiously unsanitary living conditions. Gates, the judge writes, further supports Taylor's claims that the guards acted with deliberate indifference, which Smith notes is "no small hurdle."

But in a poignant demonstration of how qualified immunity works in practice, Smith then transitions to explaining why the guards deserve protection from civil liability: "The law wasn't clearly established. Taylor stayed in his extremely dirty cells for only six days," Smith writes. "Though the law was clear that prisoners couldn't be housed in cells teeming with human waste for months on end, we hadn't previously held that a time period so short violated the Constitution. That dooms Taylor's claim."

Put more plainly, the guards cannot be held liable, but not because their alleged conduct didn't infringe on Taylor's right to be free from cruel and unusual punishment. It did—current case law confirms as much. Taylor cannot sue the guards for violating his constitutional rights—which the Court agrees happened—because the length of time Taylor spent in those filthy conditions has not been carved out with razor-like precision in previous case law.

This isn't surprising. Qualified immunity has protected public officials from accountability in a slew of cases where their behavior was unquestionably wrong. As Smith mentions, the doctrine requires that rights violations be "clearly established," which, in turn, means that nefarious conduct often gets a pass simply because a court hasn't evaluated a case with identical circumstances. 

Consider the two cops who received qualified immunity after allegedly stealing $225,000. Or the cop who received qualified immunity after shooting a 10-year-old (or, alternatively, the one who shot a 15-year-old). Or the cops who received qualified immunity after assaulting and arresting a man for standing outside of his own house. Or the prison guard who received qualified immunity after hiding while an escaped inmate raped someone in the building. Or the cops who received qualified immunity after siccing a police canine on a person who'd surrendered

Amid protests over the killing of George Floyd by former Minneapolis police officer Derek Chauvin, lawmakers are mulling different pieces of legislation that would eliminate or reform qualified immunity. Rep. Justin Amash (L–Mich.) introduced the Ending Qualified Immunity Act, which would remove the protections outright. Though Republicans have been slow to come around on the subject, Sen. Mike Braun (R–Ind.) unveiled his own legislation Tuesday that would majorly curtail the doctrine. House Democrats would eradicate qualified immunity as part of the Justice in Policing Act, though it's worth noting that their bill only eliminates it for cops. People like Taylor would still be out of luck because his rights were violated by correctional officers. 

President Donald Trump has said he would veto any such legislation. The law enforcement lobby vigorously opposes any modifications to qualified immunity. 

Supporters of the doctrine say that reforming qualified immunity will result in police officers being sued for frivolous reasons, but that objection hinges on a fundamental misunderstanding of the litigation process. One cannot waltz into a federal courthouse and file a lawsuit. The process is an expensive one, replete with hefty court fees, and requires representation from someone would likely work on a contingency basis. In other words, they only get paid if they win.

If the police believe they cannot protect taxpayers' constitutional rights without the freedom to violate those rights, they should find new jobs, and police departments should begin looking for applicants who they can train to balance their own personal safety with the rights of the people they are sworn to protect and serve.  

NEXT: Devin Nunes Can Sue Cow Account but Not Twitter, Says Judge

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  1. 1. “Under the Supreme Court’s case law, qualified immunity shields government actors from civil liability ‘so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,'”
    2. Circuit Judge Jerry E. Smith writes in his opinion that Taylor’s case meets the threshold for an Eighth Amendment violation.
    3. Taylor cannot sue the guards for violating his constitutional rights—which the Court agrees happened—because the length of time Taylor spent in those filthy conditions has not been carved out with razor-like precision in previous case law.

    Which of these things does not belong?

    1. QI should be dumped in its entirety. Let the cops live under mens rea like the rest of us.

      1. Mens rea? Dude, she died a long time ago. Ignorance of the law is no excuse, remember? You don’t have to know that your actions are criminal to be convicted. Unless your job is to know if something is criminal or not. Then you can’t be held accountable.

      2. It should be abolished for all government employees, not just the police.

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      3. Mens rea only applies to us peasants, not The King’s Men.

      4. Sarcasmic,

        That’s actually not what mens rea means.

    2. Which doesn’t belong?

      You’d like to think it’s #3, but SOCUTS has explicitly required such precision in QI cases.

      Clearly it’s #2. It usually takes dozens of cases on the same fact pattern before the courts will move to clearly establish the law for future cases.

    3. What a shitty result! It stinks!

  2. How could the guards have possibly known that what they were doing was wrong if there wasn’t legal precedent saying so?

    1. Exactly how many turds does the constitution allow? No guard could reasonably be expected to know that it is 8.

      1. 8 strikes me as arbitrary. Shouldn’t we simply total the number of Courics between all the droppings? After all, 8 small turds could only add up to less than 2 Courics where as a single large dropping could be up to 100 Courics:


        I propose the following punishment scheme for guards:
        >1 Couric: Everyone including the prisoner can just admit that it’s hilarious.
        >2 Courics: Guards are given a warning for the first offence and a $50 fine increasing in $25 increments per offence.
        <3 Courics: Now that's getting to be mean. The offending officer is given paid vac…..err suspension.
        < 5 Courics: This is getting to be serious. The offending officer is "suspension is at half pay.
        < 10 Courics: Officially not funny. Offending officer is suspended and their job and pension is verbally threatened (but really, what can they actually do to him right?)
        < 20 Courics: What kind of monster does this? Seriously, how big are you and what did you eat? Regardless, not cool man. The officer gets a whole month off to think about what they did without pay and the humiliated prisoner gets to call him 3 names without retaliation. They can be the meanest things he can think of as long as it's not about the officer's weight or his family.
        < 30 Courics: Offending officer is given medical leave. This is a job for the Mayo Clinic. Also, another finger wagging (highest punishment allowable by the union.)

        Obviously, I'm still not on board with letting these guards get sued for these actions. I mean, for all we know the prisoner is a pot head or diddled his 17 year old girlfriend. He deserves the book thrown at him – after it was used to wipe of course.

        1. What if Bono visits?

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      2. Have they established prohibited turd sources yet?

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  3. …nefarious conduct often gets a pass simply because a court hasn’t evaluated a case with identical circumstances.

    How does one go about getting a court to evaluate a case?

    1. Ever read Catch-22?

      1. there was only one catch …

    2. At least here, the court did evaluate the 8th Amendment claim and said that the conduct was unconstitutional, so in theory, the next guards/cops that commit this offence will not be protected by QI. However, this is not certain. It depends on how the judge evaluates the facts in that future case in relation to the facts of this case.

  4. “…Locked Naked Inmate in Cell Filled With ‘Massive Amounts’ of Feces…”

    From hundreds of miles away, I can HEAR the hunger pangs of the well-known shit-eaters, Tulpa and R Mac!

    1. So you’re not sharing your poo dinner with them, is that what you’re saying Sqrls?

  5. What protects them from criminal charges? A corrupt DA?

    1. The decision of where to place inmates isn’t made at the guard level, but at the administrative executive level. Inasmuch as there was a work order request (by either the guards or inmate) as to conditions, that is the limit of authority.

      Hope that answers your question.

      1. Well, my question was rhetorical. Someone should be held accountable for seriously violating this inmates constitutional rights. I’m not sure why it has to be civil action rather than criminal.

        1. Quis custodiet ipsos custodes

        2. Because Binion decided two weeks ago that ending qualified immunity is the solution to literally every problem and will not stop beating this drum until his drum circle in the CHAZ decides to take a nap.

          1. Nice strawman you got there. Be a real shame if something happened to it…

        3. The Feds could certainly investigate for systematic abuse and bring charges (unless this is at a federal prison, in which case, good luck with that). Or the state judiciary could also respond if there are mountains upon mountains of cases of abuse, and bringing up charges ends up cheaper than possible litigation (I think New Mexico did something like that once).

          But as this is couched in terms of QI, all of fuckall will be done. The plaintiff can’t even name who made the decision to place in that cell.

          Standard quis custodiet ipsos custodes and no one has a good answer (short of rioting. If he were black.).

        4. It doesn’t *have* to be civil action rather then criminal.

          But given the criminal justice system’s willing blind-eye towards abuses by the criminal justice system, that’s all that’s left.

          Well, that and throwing bricks.

      2. Right, the guards were just following orders. You know who else…

  6. No previous cases have ruled on the constitutionality of burning an inmates genitals with a blowtorch, forcing them to drink their own urine, beating specifically with a a cricket bat, etc.

    I guess that as long as you can be creative in your form of torture, you can get away with anything under color of law!

    1. I guess that as long as you can be creative in your form of torture, you can get away with anything under color of law!

      Now you’re getting it. It takes a certain amount of creativity to be a prison guard.

    2. QI only protects them from civil suits. They can still be charged criminally. Hahaha! That’s a good one!

    3. Apparently SCOTUS does not consider this unusual punishment.

      Hate to be one of their kids!!!

    4. The cricket bat part sounds un-American

  7. I’m confused, he’s suing them for releasing him into San Francisco?

    1. +1000

    2. Nah, that would be open and shut in his favor. All reasonable people know that forcing someone to be in San Francisco is clearly cruel and unusual, no case law required.

  8. Come on now, Reason. When there are legal consequences for public sector union members stuffing a naked prisoner in a shit smeared cell for several days, we’ll be just like Somalia!

    1. Or open-borders India in the early 1700s. Russian communists in the 1905 revolt already formed the habit of flinging foremen into cesspools amid laughter and merriment. There is a Bowdlerized version in Eisenstein’s 1925 movie “The Strike”

  9. I get why SC uses the “no precedent, no overturn” nonsense but the 3-way Mexican standoff between the branches re: Q.I. is ludicrous.

    only conclusion is Elites don’t want the police under more control. doesn’t affect them.

    1. only conclusion is Elites don’t want the police under more control. doesn’t affect them.
      This, a thousand times this.

    2. The real fear, IMO, is once you start tearing down QI for police, it calls into question the whole concept for other government actors – including judges!

  10. When Congress explicitly overturns this judicial monstrosity they should apply the new rule retroactively and suspend any tolling of prescription.

  11. At least they made a ruling that it violates constitutional rights so if it happens again you have precedent. That’s a better outcome than most QI cases, which just get dismissed with no ruling nowadays

    1. Only for someone subjected to it for 6 days. Any other number of days is fair game still.

      1. Yes, but baby steps are better than no steps.

    2. Wouldn’t the complainant have to be housed in the same exact cells? Otherwise it’s not identical circumstances.

  12. Owens, Jones, and Smith . . . three conservative Republicans placed on the bench by Republicans in their 30s or early 40s.

    These clingers can’t be replaced, by better people, fast enough.

    1. What a surprise

    2. They can be indicted and removed by a common law Grand Jury. Pretty easily if people would just organize and work together.

  13. He cites two court precedents—McCord v. Maggio (1991) and Gates v. Cook (1994)—that affirm a prisoner is not to be subjected to egregiously unsanitary living conditions.

    Ah, that was back in the 90s when setting a precedent that clearly establishes things was still possible. Unfortunately in these troubled times, judges’ hands are tied and they are no longer able to set a precedent where none exists nor are they able to clearly determine that being held in a cage full of feces is unsanitary.

    1. Ah but see those cases dealt largely with insect infestations in the cells, so neither clearly establishes that feces and raw sewage constitute egregiously unsanitary living conditions

  14. This is part & parcel of the BAR Association disease that is plaguing this country in a concerted attempt to destroy our constitutional republic.
    I’ve said it before and I’ll say it 10,000 times. Stop going after these criminals for “civil” (statutory, outside the constitution) liability & start going after them for liability under common law. This means you can’t use a BAR Association (officer of the statutory administrative court) attorney to represent you!!!!!!
    These people have to be bonded to occupy their public office. Start putting claims against those bonds.

    1. Someone forgot to take his Haldol today.

  15. Speaking of which, how the hell are there enough police chiefs in New York City to sustain a police chief union? Why are they not simply represented by the police union at large? I wonder if it’s a way to maintain confidentiality of the pay schedule. Wouldn’t want the beat cops on the street to see what the men behind the desks are making.

    1. Damn, that was supposed to be a reply to the Dread Pirate Roberts above.

    2. “Why are they not simply represented by the police union at large?”

      Because you can’t have management employees and line employees in the same union.

      Actually, at a private company, management employees wouldn’t be allowed to unionize at all.

  16. All civil suits in America should be loser pays. That way we’re all protected somewhat from frivolous suits.

    1. You’re also less likely to see meritorious but uncertain claims like this one.

  17. If you really don’t want immunity there will be none.
    “And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand?… The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin’s thirst, the cursed machine would have ground to a halt! If…if…We didn’t love freedom enough. And even more – we had no awareness of the real situation…. We purely and simply deserved everything that happened afterward.” ― Aleksandr I. Solzhenitsyn , The Gulag Archipelago 1918–1956

  18. Why doesnt the writer of this article show concern that the judges who decided this case can’t be sued?? They have absolute immunity from lawsuits for the opinions they render, no matter how egregious or unsound, or whether they further unsound doctrines, or confuse sound doctrines. The prison guards have qualified immunity, the judges have absolute immunity.

    1. National Socialist judges captured around Germany and Austria and tried for aggression, genocide, racial eugenic extermination under color of law and aiding and abetting the torture and mass-murder at death camps were, some at least, convicted–then acquitted on appeal. So Kristallnacht laws have way worse outcomes than a system limited by a Second Amendment.

  19. My personal favorite is Escobar v. Mora, 496 Fed.Appx. 806 (10th Cir. 2012).
    The thrust of the complaint was that:
    “… a fifteen-month period in which defendant Mora, with the acquiescence and encouragement of defendant Olivett, spat or pretended to spit into Mr. Escobar’s *809 breakfast and lunch, prompting him to forgo eating these meals and ultimately to lose some thirty pounds. ”
    Winner, winner, chicken dinner — the 10th circuit held that he had stated a claim (the district court wouldn’t even grant him that) but, you guessed it, qualified immunity:
    “As evident from our discussion of the merits, there are no controlling decisions on point from the Supreme Court or from this circuit, nor is there a clear weight of authority in other courts. And while we have extrapolated from general principles here to hold that Mr. Escobar stated an Eighth Amendment claim, we cannot say that the analytical bridge from the former principles to the latter holding impressed itself upon us with the clarity necessary to conclude that defendants were on fair notice that their conduct rose to the level of a constitutional violation. We therefore hold that they have a valid qualified immunity defense.”

  20. I swear it’s as if all cops and prison guards carry a handbook of “clearly established cases” so that they know exactly what they can’t get away with.

  21. Theoretically is actually practically and often is actually occasionally.

  22. When violent East India Company mercantile anarchists were tossed into such Black Holes of Calcutta, that was perfectly in line with local laws and customs at the time.

  23. So that’s where Hihn went.

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