Qualified Immunity

A Prison Guard Who Pepper-Sprayed an Inmate Without Provocation Got Qualified Immunity. SCOTUS Disagreed.

An encouraging sign from the Supreme Court

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The Supreme Court on Monday dealt another blow to qualified immunity, the legal doctrine that shields civil servants from accountability for alleged misconduct.

It's a stark change from this time last year. In February 2020, the U.S. Court of Appeals for the 5th Circuit awarded qualified immunity to a correctional officer who pepper-sprayed an inmate without provocation. It was that decision—McCoy v. Alamu—that the justices reversed yesterday and remanded back to the lower court for reconsideration.

Their move is subtle and went unnoticed by just about every major news outlet. It doesn't alter the legal doctrine itself. But it does gesture to the lower courts that they should hold state actors to a higher standard—a welcome change in qualified immunity jurisprudence.

The decision invokes another Supreme Court ruling in a recent case: Taylor v. Riojas, in which several prison guards were originally given qualified immunity, also by the 5th Circuit, after locking a naked inmate in two squalid cells, one covered with "massive amounts" of human feces and the other filled with raw sewage. In November, the justices reversed that and wrote in an unsigned opinion that "no reasonable officer" would think placing an inmate in such conditions was constitutional. It was the first time the high court had rejected a qualified immunity defense since 2004.

In discussions around qualified immunity, reasonable is the operative word. Would a reasonable state actor know that their conduct was wrong? To find out, courts are to consider two prongs: whether an offense was unconstitutional, and whether or not it was "clearly established" in a previous court precedent that said the offense was unconstitutional, such that the offending party would have notice.

In practice, however, the doctrine has emboldened many unreasonable officials doing unreasonable things, like the cops who stole $225,000 while executing a search warrant, or the cop who shot a 10-year-old child while aiming at a nonthreatening dog. Though it might appear obvious to a bystander that such conduct infringed on the victims' rights, they were not afforded the privilege to sue, because no previous court rulings outlined the situations in question with near-exact detail.

McCoy presented a similar dilemma. The guard, referred to in the decision as Mr. Alamu, allegedly pepper-sprayed an inmate, Prince McCoy Jr., after a different prisoner threw water on Alamu. That prisoner then shielded the front of his cell with bedding so that he was unreachable when Alamu returned. Frustrated, he instead attacked McCoy, who was housed in a neighboring cell. After an internal investigation, Alamu was found to have violated policy and was placed on a three-month probation.

He also violated McCoy's Eighth Amendment rights to be free from cruel and unusual punishment, the 5th Circuit said. But it wasn't clearly established that it was a violation, so, again, the victim was told that any civil suit against Alamu would be discarded.

"We held that the spraying crossed that line," wrote Circuit Judge Jerry E. Smith. "But it was not beyond debate that it did, so the law wasn't clearly established."

The decision epitomizes broken logic. "It really indicates the level of granularity that courts go into in order to figure out whether or not qualified immunity applies or not," Anya Bidwell, an Institute for Justice attorney, tells Reason. "They don't just look at broad principles of the law. They're looking at factual distinctions, like whether an inmate was pepper-sprayed versus whether an inmate was tased."

Such granularity also defined the 5th Circuit's original ruling in Taylor. Though the judges conceded that the guards' actions—sticking an inmate in two deplorably filthy cells—were unconstitutional, it was not clearly established that they were unconstitutional. That opinion, likewise penned by Smith, noted that although the guards' behavior was cruel and unusual, they could not be held accountable because the prisoner only suffered in those circumstances for six days—a timeframe that had not yet been ironed out explicitly in prior case law.

"The Supreme Court has repeatedly admonished courts not to define the relevant law too capaciously," Smith wrote last year. But it was the Supreme Court that overturned both of his recent qualified immunity rulings, telling the 5th Circuit on Monday to specifically rethink McCoy in light of their reversal in Taylor.

In some sense, however, Smith isn't wrong; the high court has indeed demanded a ridiculous standard for overcoming qualified immunity in past terms, and last year they declined several opportunities to reconsider the doctrine. And while they still seem hesitant to alter qualified immunity itself, the decision yesterday indicates a potential change in justices' opinions about just how hard they should make it for the public to hold civil servants accountable.

"There is a pattern developing, where the Court is signaling very strongly to the lower courts…that certain actions by government officials are obviously wrong, and that any reasonable official would have known," says Bidwell.

NEXT: Mom Arrested for Leaving Kids Alone While Working Gets $165,000 on GoFundMe

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  1. Qualified immunity still stands in the case where the prison guard shoved the billy club up an inmate’s ass and turned it clockwise since it had only previously been established that it was unreasonable to shove a billy club up an inmate’s ass and turn it counterclockwise.

    1. Did the inmate orgasm and retroactively consent to the penetration?

      1. Irrelevant. The court ruled that is a difference without a disphinction.

    2. Goes to show we not only don’t NEED cops, but also that they do little to nothing good, while the asshole side of them is present always. Get rid of the lot of them: they don’t stop or reduce crime, nor do they solve crimes.

  2. Sounds like this cop acted like the Capitol Police on 1/6.

  3. Didn’t the 5th Circuit just grant QI to the officers that tased a guy who had just covered himself in gasoline starting him on fire (who were warned by their fellow officer that doing so would, in fact, start the fucking guy on fire)? If courts still consider that madness “reasonable,” then I’m not going to get too excited just yet.

    1. “who were warned by their fellow officer that doing so would, in fact, start the fucking guy on fire”

      Not just their fellow officer. The taser manual warns against that.

      TASER® Handheld CEW Warnings, Instructions, and Information: Law Enforcement

      Fire and Explosion Hazard. CEW use can result in a fire or explosion when flammable gases, fumes, vapors, liquids, or materials are present. Use of a CEW in presence of fire or explosion hazard could result in death or serious injury. When possible, avoid using a CEW in known flammable hazard
      conditions.

  4. Totes more important than having constitutional elections.
    Super encouraging!

  5. “In discussions around qualified immunity, reasonable is the operative word. Would a reasonable state actor know that their conduct was wrong?” Since I first learned about the “reasonable man” as a first year law student, I spotted the problem immediately: the “reasonable man” is whoever the judge deciding that case (or judges, in an appeal) says he is. It’s a complete fiction that lets the judge/s make whatever decision and write whatever opinion their own “reasonable” brain desires.

    1. How does that loophole for judges get slammed shut? There needs to be a solid, legal definition for REASONABLE. Most judges call a law RATIONAL so long as the legislators weren’t speaking in tongues or foaming at the mouth when they passed said law.

  6. Weird, when I read 8A I don’t see anything in there about how cruel and unusual punishment is OK for some unknown period of time. It just says we can’t be subjected to it at all.

    Why is it so hard to read the plain text of the US Constitution? Judges infer all kinds of hidden meanings and agendas that our Founders must’ve had rather than just reading what they wrote.

    1. Cruel and unusual is subjective.

      Personally I’d like to see a revival of stocks and gallows. I’m serious. Stocks for humiliating those who can be shamed into being good members of society, and gallows for those who can’t. That won’t go anywhere because locking someone in stocks while people humiliate them is cruel and unusual, but taking away years of someone’s life somehow is not. I can’t think of anything more cruel and unusual than taking away a portion of someone’s life.

      1. Taking away their government provided benefits would be more cruel and unusual.

    2. I always got hung up on the authors using “and” rather than “or.” You can be as cruel as you want to be….as long as it’s not unusual. Seems related to QI.

      1. Hanging with a short drop is rather cruel but it certainly wasn’t unusual in 1787, and the authors of the Constitution did not intend to ban it.

    3. Because judges know danged well that much of the system they send people to is violative of the 8th Amendment and it’s a problem of such a scope they aren’t even almost inclined to HONESTLY ADDRESS.

  7. So, the Supremes actually did something useful this week?

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