The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
