Qualified Immunity

Supreme Court Rejects Qualified Immunity Defense for the First Time in Years

The case doesn't make any change in legal doctrine. But it may be intended to send a message to lower courts.

|

Earlier today, the Supreme Court issued a decision rejecting a law enforcement officer's "qualified immunity" defense. Taylor v. Riojas was the first such Supreme Court ruling since 2004. That alone makes it significant. Whether the Court will take more forceful action to curb qualified immunity in future cases remains to be seen.

Qualified immunity is the notorious doctrine under which law enforcement officers and many other government officials are immune from civil suits for violating constitutional and statutory rights in the course of performing their duties unless they have violated "clearly established" law. Courts have interpreted "clearly established" so narrowly that officers routinely get away with horrendous abuses merely because no federal court in their area has previously decided a case with essentially identical facts.

In Taylor, a 7-1 majority (the just-confirmed new Justice Amy Coney Barrett did not participate), concluded that the lower court had gone too far in granting qualified immunity to prison officials in an egregious case where they subjected a prisoner to horrific treatment:

 …Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice. Taylor alleges that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells. The first cell was covered, nearly floor to ceiling, in "'massive amounts' of feces": all over the floor, the ceiling, the window, the walls, and even "'packed inside the water faucet…..'" Fearing that his food and water would be contaminated, Taylor did not eat or drink for nearly four days. Correctional officers then moved Taylor to a second, frigidly cold cell, which was equipped with only a clogged drain in the floor to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but he eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor. Because the cell lacked a bunk, and because Taylor was confined without clothing, he was left to sleep naked in sewage.The Court of Appeals for the Fifth Circuit properly held that such conditions of confinement violate the Eighth Amendment's prohibition on cruel and unusual punishment. But, based on its assessment that "[t]he law wasn't clearly established" that "prisoners couldn't be housed in cells teeming with human waste" "for only six days," the court concluded that the prison officials responsible for Taylor's confinement did not have "'fair warning' that their specific acts were unconstitutional…."

The Fifth Circuit erred in granting the officers qualified immunity on this basis. "Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted." Brosseau v. Haugen, 543 U. S. 194, 198 (2004)…. But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time…

Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor's conditions of confinement offended the Constitution.

The Court is right to conclude that the facts here were "particularly egregious" and that any reasonable officer should have been able to understand that this kind of abuse violated the Eighth Amendment. You don't have to be a great legal theorist to figure out that forcing a prisoner to live  amidst raw sewage and feces for days on end is "cruel and unusual."

At the same time, it's far from clear that the facts in this case are really that much worse than those in many other situations where courts have upheld qualified immunity defenses, such as recent cases where police officers stole $225,000 from civilians while conducting a search and shot a 10 year old boy in the course of an attempt to shoot the family dog (who posed no threat to the officer). If the Fifth Circuit expected too little of the "reasonable" officer, it may be because the courts—including the Supreme Court—have been defining "reasonability" down for a long time now.

In a concurring opinion, Justice Samuel Alito agreed with the other six justices in the majority that the qualified immunity argument should be rejected based on the "horrific" conditions in the cell, and the egregious behavior of the prison officials. But he also contends that the Court should not have taken this case in the first place, because all the majority opinion does not establish any new legal standards or resolve a disagreement among lower courts:

The Court does not dispute that the Fifth Circuit applied all the correct legal standards, but the Court simply disagrees with the Fifth Circuit's application of those tests to the facts in a particular record. Every year, the courts of appeals decide hundreds if not thousands of cases in which it is debatable whether the evidence in a summary judgment record is just enough or not quite enough to carry the case to trial. If we began to review these decisions we would be swamped, and as a rule we do not do so.

Instead, we have well-known criteria for granting review,and they are not met here. The question that the Court decides is not one that has divided the lower courts, see this Court's Rule 10, and today's decision adds virtually nothing to the law going forward. The Court of Appeals held that the conditions alleged by petitioner, if proved, would violate the Eighth Amendment, and this put correctional officers in the Fifth Circuit on notice that such conditions are intolerable. Thus, even without our intervention, qualified immunity would not be available in any similar future case…

Alito is right that the Supreme Court does not normally take cases merely to correct a lower court's mistake in applying established legal precedent to a particular set of facts.

That raises the question of what the majority was trying to accomplish here. It's possible that the justices simply found the facts of the case so shocking that they could not bear to let this error go uncorrected. But if so, one wonders why they recently chose not to hear numerous other qualified immunity cases, some of which had comparable shocking facts.

It may be more likely that the Court wanted to send a message to lower courts, that the latter should no longer grant qualified immunity in these kinds of highly egregious cases. The backlash against qualified immunity generated by the public reaction to the death of George Floyd at the hands of Minneapolis police may have led the justices to conclude that a step like this was warranted.

What remains to be seen is whether the Court will follow up by considering whether qualified immunity should be abolished entirely, or at least severely pared back. The doctrine has been severely criticized by legal scholars (including co-blogger Will Baude), and by Supreme Court justices as varied as Clarence Thomas and Sonia Sotomayor.

Thomas' previous forceful criticism of qualified immunity  leads one to wonder why he dissented without opinion in this case. The answer may be that he thinks current precedent protects the officials in question, and therefore the Court cannot rule against them unless that precedent is modified or overruled (which he might well be happy to see happen).

Perhaps Taylor is the beginning of the end of qualified immunity. But it is also possible that the majority of the justices just want lower courts to adopt a modestly less forgiving interpretation of current doctrine. Future cases will tell.

In the meantime, opponents of qualified immunity should continue their efforts to abolish it through legislation at both the state and federal level. The Supreme Court may eventually fix this problem, which was created by its own earlier decisions. But we shouldn't count that chicken unless and until it actually hatches. Colorado and (to a lesser degree) Connecticut have already adopted effective reform laws. Efforts to abolish or reform qualified immunity under federal law have stalled due to opposition by the White House and many congressional Republicans. But the political environment may change after tomorrow's election.

History shows that successful movements to strengthen protection for constitutional rights usually combine litigation with political action, as opposed to exclusively relying on one strategy to the exclusion of the other. Hopefully, the cross-ideological movement to end qualified immunity can continue to make progress in the same way.

NOTE: I clerked for Judge Jerry E. Smith of the Fifth Circuit, who wrote the lower court opinion reversed by the Supreme Court in this case. My clerkship was many years ago (in 2001-02) and I have no involvement in this case. I think the Supreme Court was right to overrule the Fifth Circuit, but also that Judge Smith's decision was plausible based on previous precedent, with its very narrow interpretation of what counts as "clearly established" law. Those views are not, I think, affected by my connection to the Judge. But I nonetheless disclose that connection for the sake of transparency.

NEXT: An Imagined #SCOTUS Group Chat for McKesson v. Doe

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The police are the agents of the prosecution. This Supreme Court is responding to violent protests, with a tiny concession. The government is a wholly owned subsidiary of the lawyer profession. The Supreme Court is totally biased in favor of the government, their employer.

    Good reason to exclude anyone who has passed 1L from sitting on the Supreme Court.

      1. What does your comment mean? I do not understand it.

        1. Ah, I see. There’s a link in that comment, and you are unfamiliar with it and do no wish to risk contaminating your computer with malware.

          In this case, if you hover your cursor over that link and see it refers to “wikipedia”, you can safely follow it to read the article.

          1. What does it say? You should not make others do research to make your point. You should make your point without trips all over the internet.

            1. Poe’s law is an adage of Internet culture stating that, without a clear indicator of the author’s intent, it is impossible to create a parody of extreme views so obviously exaggerated that it cannot be mistaken by some readers for a sincere expression of the views being parodied.The original statement, by Nathan Poe, read:

              Without a winking smiley or other blatant display of humor, it is utterly impossible to parody a Creationist in such a way that someone won’t mistake for the genuine article.

              1. I quit working at shop rite and now I make $65-85 per/h. How? I’m working online! My work didn’t exactly make me happy so I decided to take a chance on ast something new after 4 years it was so hard to quit my day job but now, I couldn’t be happier So i try use.
                Here’s what I do…….WORK 24

                1. I work at that shop rite and since you’ve been gone it’s never been better.

                  1. I think SR has better prices than Stop and Shop. Good sale on top round this week. Gotta get some and make some London Broil.

    1. Lawyers have close to immunity. Judges dealt themselves immunity, and gave it to prosecutors. The Eleventh Amendment imminized states ripping off bond holders.

      All these immunities protect wrong doers. All should be rescinded.

      1. Rescinding Qualified Immunity is to strike at the branch of evil, not the root. The root is the superstition that worships force, not reason, it’s one or the other, both cannot exist in a stable society. In the US Empire, reason is professed but the initiation of violence is practiced. The majority ignore the contradiction by willful blindness. This creates psychological conflict, often expressed by drug abuse, domestic conflict, and generally blaming others for our discomfort.

        When superstition is enforced by the majority, it destroys society and the superstitions. The mind abhors contradiction.

  2. Only a tyrannical government would protect its employees from such constitutional accountability. The courts are run by lawyers who are run by jews who use rules and practices to strip citizens of relief under the redress clause.

    Always a jew, always a bit of trickery, always to support the jew agenda and defeat the rights of Americans. Simple.

    Since when do courts confer immunity? Power of the sovereign is vested in the people, not the jews.

    1. Ah, Pavel. You’re too clever. You’re onto us.

      1. Pavel talks like a real Jew. Pavel, pin your yarmulke. It is crooked.

    2. That’s one way to look at it.

      On the other hand, go fuck yourself with a rusty chainsaw, you slobbering, narrow-minded bigot.

    3. Whenever I run into a commenter who “blames the Jews” [a mere 2% of the US population] for this or that problem, I skip the whole thread. And we have so many Catholics in government (Trump included), some who don’t really care for those Jews who crucified Christ.

      Note the lack of specific actions and specific people who did specifically something [tyranny, lack of accountability and trickery here] about which to complain about the Jews.

      Open your eyes and try to live in the real world, please. See if you first can come up with an example of a Jew doing some tyranny or trickery in the last month (but not in Israel), to support your argument.

  3. So, what kind of person could possibly dissent in this case?

    Well, Thomas, of course.

    I can’t imagine any human with any shred of decency or empathy possibly thinking this is OK. But Thomas never ceases to amaze me.

    1. In this instance, I think Somin’s analysis of Thomas’ dissent without written opinion makes sense.
      Was it Blackmun who said, with respect to capital punishment cases, “I will no longer tinker with the death machine”? Thomas could very well be saying, “this whole question is just so wrong.” There’s an old saying, “When you can’t say anything good, don’t say anything.” Nor a practice judges usually follow, but Justice Thomas is a student of silence.

      1. Careful on the balance when carrying water for Thomas here. He murmurs about qualified immunity, but if he ever had a serious chance to replace it he would with something more protective of LEOs given his record.

      2. “Nor a practice judges usually follow, but Justice Thomas is a student of silence.”

        Thomas is not a student of silence when it comes to concurrences or dissents. In fact, he’s prolific.

        1. Prolific in number, but the content itself is usually brief and to the point. It would have been nice if Thomas had given us a couple dozen words, rather than to leave us guessing.

    2. Given Thomas’ prior positions, it is not that he thinks it is “OK,” it is that he thinks the whole decision is based on a faulty premise, and that Qualified Immunity should be discarded completely.

      But why that is a dissent and not a concurrence is not explained. He could have just concurred with a single sentence, explaining that QI is wrong and should be abandoned.

      1. Maybe he was just feeling grumpy that day. Happens to all of us.

    3. I mean Thomas wants to do away with qualified immunity entirely. With that position, one can dissent on the grounds of, your reasoning defends the doctrine but says it does not apply, whereas I think it does apply but the doctrine is indefensible.

      But ok, go ahead making sweeping generalizations about someone’s character based on an incomplete understanding of their judicial opinions.

      1. But that’s not how dissents and concurrences work. Thomas’s view, if that’s what it is, supports the plaintiff/appellant, just like the majority. So that would make it a concurrence.

        1. If this were a full-blown decision in an argued case, that would make it a concurrence. That’s not this case, though. This was an unsigned order. The usual logic of dissents and concurrences does not neatly apply.

    4. The left just can’t stop stereotyping and otherwise demeaning black men.

      First: “you ain’t black” if you vote for Trump.

      Here: Thomas is a number of horrible adjectives based on my inchoate understanding of his jurisprudence and the fact that his jurisprudence doesn’t align with my conception of what a black man’s jurisprudence should be.

      There’s a reason black support of Trump has ticked up a few percentage points: Blacks are finally starting to see the left for what it really is.

      1. Who said anything about Thomas’ race?

        Read his dissent in Hudson v McMillan to get an idea of the basis of my criticism: https://en.wikipedia.org/wiki/Hudson_v._McMillian

      2. “There’s a reason black support of Trump has ticked up a few percentage points: Blacks are finally starting to see the left for what it really is.”

        Delusional bigots are among my favorite culture war casualties.

    5. Thomas is on record as saying the doctrine of qualified immunity does not conform to originalist and should be revisited. This case is merely about whether this particular case is within the bounds of current qualified immunity doctrine, not whether the doctrine itself is sound:

      There likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe. Leading treatises from the second half of the 19th century
      and case law until the 1980s contain no support for this “clearly established law” test. Indeed, the Court adopted the test not because of “‘general principles of tort immunities and defenses,’” but because of a “balancing of competing values” about litigation costs and efficiency…

      I continue to have strong doubts about our §1983 qualified immunity doctrine. Given the importance of this ques-tion, I would grant the petition for certiorari.”

      Thomas is right that just tinkering around the edges of qualified immunity is not the proper course. It should be thrown out completely.

      1. Agreed, and that argument would be made in a concurrence not a dissent. The only way a dissent would be appropriate would be if under the new standard he would impose the officer’s actions would be acceptable, even if not under qualified immunity.

    6. Thomas doesn’t think it’s ok. He just doesn’t think it’s his job to legislate from the bench.

      Thomas always held that if the state employer wanted to protect their agents, they’d write it into employment agreements or pass a law.

      So he’s not ok with the decision to extend QI or limit QI. He thinks it should be gone completely, because it usurps the legislatures and employers/executive branches.

      1. I think your explanation is correct m. Per Wikipedia, “The U.S. Supreme Court first introduced the qualified immunity doctrine in Pierson v. Ray (1967), enacted during the height of the civil rights movement, it is stated to have been originally enacted with the rationale of protecting law enforcement officials from frivolous lawsuits and financial liability in cases where they acted in good faith in unclear legal situations.”

        It’s my understanding, that prior to this ruling, government officials were treated equally before the law, excepting absolute immunity “that is intended to protect officials who ‘make reasonable but mistaken judgments about open legal questions'”.

        Other protections already exist to protect government officials from “reasonable” conduct. Such as the cost of initiating a lawsuit that will likely get nowhere, and where the loser has to pay the legal costs of the other party which is the practice is some states. Alternatively, cops could purchase liability insurance as many people do in their professions (reform in Colorado has cities purchasing such insurance for their cops). And if I’m mistaken (I’m no lawyer), the worst case is some likely problem cops will find the civil lawsuits filed against them lead them to find a job for which they are better suited.

        IMHO Thomas rejects QI and cares not to support it by respecting it via a ruling that puts an upper limit on “reasonable”. In other words, no one is above the law, including via qualified immunity. Something Democrats were saying during their Trump impeachment, except they didn’t mention that QI bit.

  4. Perhaps the Supremes are signaling the lower courts to man up and rule against Qualified Immunity to create a circuit split. Then the SCOTUS can overrule Qualified Immunity or severely limit it.

    1. That seems out of character. The Supremes usually get pretty snippy when a lower court does that. It seems more likely that they are starting to kill qualified immunities with a thousand cuts.

      1. More likely just paring it back the least amount they think necessary to stop provoking/providing excuses for riots.

        Qualified immunity is something the Supreme court invented itself, and the Court is really reluctant to abolish things it created itself.

    2. I think it’s the opposite: they’re telling them to use common sense and start denying QI in obviously egregious cases so they won’t have to be forced to re-examine the whole doctrine at some later point. If the cases that come to them where QI is allowed involve more complex facts involving “split second” (I use this term extremely loosely) decision making they will feel more comfortable keeping the doctrine. But if they have to keep getting petitions where a lower court granting QI basically lets officers get away with extremely cruel tortures then they’ll be forced to reconsider the whole thing.

  5. Throw qualified immunity in the dustbin of history…

    First decide if the behavior of the officials violated the constitution. If it did, then the jury assesses damages. Now, if it’s just a picayune and technical violation (eg, the prisoner got the wrong wine with dinner), the jury can impose mere nominal damages. But if the officials left a helpless man wallowing in filth, robbed him, killed him, etc., the jury will be outraged enough it will impose somewhat higher damages. More outraged, at least, than an appeals court looking for excuses to let the defendant off the hook.

    1. Why are they not in jail for these things? This is about suing, which is fine, but should be an after thought. And how much money do working stiffs have anyway?

      1. Usually the employers of those working stiffs get joined as co-defendants under respondeat superior, so that’s not the issue. As for why there aren’t any criminal prosecutions under 18 USC 242, I think the incentives of prosecutors are pretty clear. (If not, pick a random episode of Blue Bloods and you have about a 25% chance of getting this explained to you.)

        1. No. Respondeat superior does not apply in § 1983 cases.

          1. Doesn’t it? Huh, I didn’t know that.

            1. It doesn’t, but there’s no reason a plaintiff can’t bring both a 1983 claim and a negligence claim under respondeat superior.

      2. Exactly.

        Punitive damages don’t cut it when we’re talking civil rights violations that result in injury or death.

        Worse, monetary damages just come from the taxpayers in the case of QI. Actually prosecuting and punishing the offenders or, at least removing them and banning them from positions of authority in the future is what’s needed.

    2. I agree QI should go in the dustbin, but not with your reasoning. The reason QI is bad, is simply that we should all be treated equally before the law and QI does exactly the opposite making people representing the government immune from the law (meaning in limited situations).

      A problem with the law, is an ongoing drawing the line between reasonable and unreasonable behavior, for an infinite number of situations, which is the kind of thing the SCOTUS cares not to do on an ongoing basis. Which led Somin to ask why the SCOTUS took the case.

      Somin’s conclusion:
      “Perhaps Taylor is the beginning of the end of qualified immunity. But it is also possible that the majority of the justices just want lower courts to adopt a modestly less forgiving interpretation of current doctrine. Future cases will tell.”

      I suppose the cops doing things like this are either fed up with the prisoner or are sadists, neither being a good reason for the behavior.

      What gets me, is why local politicians allow it to continue rather than firing cops who do it. Seems like it’s mostly Democrat run jurisdictions doing these things, and allowing rioters and looters to run rampant as well. A free for all, except for people who want a peaceful and safe place to live.

  6. Thomas’ previous forceful criticism of qualified immunity leads one to wonder why he dissented without opinion in this case. The answer may be that he thinks current precedent protects the officials in question, and therefore the Court cannot rule against them unless that precedent is modified or overruled (which he might well be happy to see happen).

    This makes no sense. Thomas is not afraid of precedent. As Scalia put it: “Thomas does not believe in stare decisis. Period.”

    1. It does make sense. If he thinks it should be overruled then he should not vote to uphold it, even if this case isn’t going to be the one that scraps it. If he concurs in a judgement that assumes current qualified immunity is valid, but uses the fig leaf that the current conduct was already “clearly established” as a constitutional violation, then we’re back to lower courts reading tea leaves as to whether a similar but not quite the same violation is clearly established, or whether the fact that this one was on a Tuesday, as opposed to a Friday changes the facts enough.

      1. To concur in the judgement approves its basic issue, and in something like this, could only be voted for to achieve a desired result in spite of that, which maybe a justice should not be in the business of.

      2. If he concurs in a judgement that assumes current qualified immunity is valid,

        No. That’s not how it works. Concurring in a judgment is saying only that one agrees with the result — in this case, that the defendants aren’t entitled to QI — but not the reasoning. If Thomas thinks QI is unsupported by law, then the plaintiff should prevail.

    2. This makes no sense. Thomas is not afraid of precedent. As Scalia put it: “Thomas does not believe in stare decisis. Period.”

      Not quite. Thomas routinely says, “I disagree with this precedent, but since nobody has asked us to overrule it, I concur with the court’s decision.”

  7. “At the same time, it’s far from clear that the facts in this case are really that much worse than those in many other situations where courts have upheld qualified immunity defenses, such as recent cases where police officers stole $225,000…”

    I don’t see this as a constitutional violation, it was a criminal violation and while the cops may have done it assuming the could get away with it because they were cops, but not because the assumed it was legal and within the scope of their authority. A cop shooting a dog because he believes a pet execution license goes with his badge is different, especially when he is sustained by his superiors.

    1. Some early Civil Rights Act cases were lynching cases, where cops or state officials facilitated or organized lynchings.

      Would you really take the position that because everyone knows that lynching is illegal, it can’t be a violation of anyone’s civil rights? It’s only a civil rights violation if the cops thought it was legal?

      The whole point of much of the impetus behind Mid-20th-Century Civil Rights Act enforcement was that states simply weren’t enforcing their criminal law when it came to violence against black people.

  8. “an egregious case where they subjected a prisoner to horrific treatment”

    It’s important to remember that the case came up for review of a grant of summary judgment, so it has not been actually proven that the conditions were as described in the Complaint (see fn. 1 of the Supreme Court’s Order, confirming that the motion was decided based on the allegations of a verified complaint). Somin’s references to the “facts of the case” and so forth are a bit misleading because the facts of the case have yet to be decided. That doesn’t change the legal analysis but it ought to be kept in mind by those burying the prison officials.

    Also, the reason Justice Thomas dissented has nothing to do with this views on QI. He has consistently taken the position that the 8th Amendment does not apply to “conditions of confinement” but is limited to criminal sentences. There are obviously other remedies for conditions of confinement abuses, but according to Thomas’s reading of the relevant history surrounding its enactment, the 8th Amendment isn’t one of them. He probably didn’t elaborate because his position on the 8th Amendment is pretty well known.

    1. Sorry, but I didn’t see your comment before I wrote what I did below.

    2. This explanation re: Thomas’s vote makes a lot more sense. It’s not that he’s so opposed to qualified immunity that he can’t vote alongside people who support it, it’s that he sees no Constitutional violation in holding someone in a freezing cold cell full of feces.

      And sure, this is just a summary judgment motion–but the judges of the Fifth Circuit (and Thomas) were still perfectly happy to throw out the case despite assuming all the facts alleged by Taylor were true.

  9. Since some circuits have adopted a de facto “no on-point precedent holds” test, adding a “no reasonable officer would find” plus “egregious” test may well be a substantial change in the rules in these circuits.

    And while it’s possible that the only change would be to make qualified immunity modestly less forgiving, “no reasonable officer” is a standard sufficiently close to ordinary negligence, and “egegious” sufficiently subjective, that at least some lower courts might see a door opened to lowering the bar further.

    Nonetheless, the case hardly abolishes qualified immunity, amd might affect no more than a handful of especially egregious cases.

  10. As Justice Alito noted, the “cell conditions” claim simply survived summary judgment, at which stage all of the petitioner’s sworn allegations were take to be true. It’s possible that the allegations are simply untrue or greatly exaggerated, in which case the petitioner might not be able to recover anything — from anyone — at trial. Yet Somin takes these facts as already established.

    1. For these purposes the facts as alleged are assumed to be true. What actually happens in the trial court really doesn’t matter for president purposes.

  11. “But the political environment may change after tomorrow’s election” is probably the most stupid thing said in this post. Trump has no interest in this kind of detail. Biden does but his interest is and always has been protecting the establishment. As a Senator and later as VP, he did nothing to fix the QI problem and actively worked to defend it at times.

    Nor are any of the establishment players in Congress (on either side) significantly interested in reforming QI. Even California couldn’t get anything real pushed through their one-party legislature.

    QI is an abomination but it’s going to take a lot more than today’s elections to fix it.

  12. I don’t know what Justice Thomas’ view on summary reversals is, but one procedural reason to dissent would be that the Court ought not decide cases based upon the cert papers; it should either grant the petition and set the case for briefing and argument, or it should simply deny it. I have no idea what Justice Thomas’ views are on the subject (or whether he’s ever expressed them), but that would be a nonconspiratorial explanation for his dissenting from a summary reversal without a discussion of the merits.

    1. The problem with this is that it forces the case to go forward without all the properly joined defendants. Then after the case is heard and decided by a jury there is a round of appeals to determine if those defendants should have been part of the case. By that point any of the facts of the case will already be settled by the jury if they help the defendants, but not if they help the plaintiff. Since the defendants that were allowed out aren’t bound by starie decisis in the prior trial.

      Its a Catch-22 that works against the interests of the plaintiff.

  13. Apparently, Justice Barrett’s mere penumbra caused this dramatic change by the Court.

  14. “…But, based on its assessment that “[t]he law wasn’t clearly established” that “prisoners couldn’t be housed in cells teeming with human waste” “for only six days,”..”

    Hey, how were they supposed to know?

  15. Methinks that Justice Thomas considers the entire concept of qualified immunity as legislating by the Court, with the result that LEOs and their ilk are legally immune to prosecution in all but an insignificant number of cases. Removing this protection would be tantamount to post facto legislation – again, by the Court as a legislative body. This would be anathema to Justice Thomas: either keep the “law” or revoke it.

  16. Qualified immunity is a necessary tool, just like the gun and the siren.

    JUST like the gun and the siren, it must be strictly controlled, rather than used as an excuse for not prosecuting things such as this.

    1. Rescinding Qualified Immunity is to strike at the branch of evil, not the root. The root is the superstition that worships force, not reason, it’s one or the other, both cannot exist in a stable society. In the US Empire, reason is professed but the initiation of violence is practiced. The majority ignore the contradiction by willful blindness. This creates psychological conflict, often expressed by drug abuse, domestic conflict, and generally blaming others for our discomfort.

      When superstition is enforced by the majority, it destroys society and the superstitions. The mind abhors contradiction.

  17. Did The Court actually so do, toss the phony baloney of Qualified Immunity into the trash, where it long since should have been tossed, or are they merely “sending messages” to unspecified recipients, who might not be paying attention? One wonders.

Please to post comments