The one constant recommendation by critics of police brutality and those trying to find ways to mitigate the problem without, you know, rioting, looting and burning every time a black man is killed by police is to eliminate or sharply curtail qualified immunity. Taylor v. Riojas, handed down in November by the Supreme Court in a 7-1 decision, might do just that.
A government officer sued for damages on a claim of violating the Constitution, such as violating an individual’s civil rights, must overcome the defendant’s claim of immunity. Judges (and Presidents) have absolute immunity for their conduct in the pursuit of their duties, no matter how outrageous or incompetent. Legislators cannot be sued for their decisions as lawmakers. Prosecutors cannot be sued for prosecuting. Other government officers, like police officers, have qualified immunity if they are sued for money damages for harming individuals in the course of their duties.
The Supreme Court has set up a tough standard for plaintiffs to meet in order to establish liability. Overcoming qualified immunity requires that the defendant officer acted in violation of law and Constitutional principles that any reasonable government official should know, and that the civil right allegedly breached has been established beyond question.
In a 2018 case, District of Columbia v. Wesby the Court stated:
“Existing law must have placed the constitutionality of the officer’s conduct ‘beyond debate.’ This demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.’ To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be ‘settled law,’ which means it is dictated by ‘controlling authority’ or ‘a robust consensus of cases of persuasive authority.’ It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.”
This extreme hurdle has proved nearly impossible to clear. From 1982 to 2020, the Court reviewed 30 qualified immunity cases. Plaintiffs prevailed in two.
Yet in the per curiam opinion issued last year (that means there are no signed majority opinion or concurring opinions) the Court signaled a major shift, and ruled that prison guards had no qualified immunity even though there was no precedent that would have alerted them that their conduct was illegal or unconstitutional.
This had also been the ruling in one of the two exceptional cases, Hope v. Pelzer (2002). The defense in that case argued that prison guards who tied the plaintiff to a hitching post as punishment and left him in the hot sun for many hours were protected by qualified immunity because there was no prior decision holding that the use of a hitching post was unconstitutional.. The 11th Circuit agreed that this was cruel and unusual punishment but said that the prison guards could not be expected to know that, since no case was precisely on point. (Similarly, to cite a hypothetical from Woody Allen’s “What’s Up, Tiger Lily?”, if the guards had stuffed the prisoner into a barrel filled with fat Lithuanian midgets, that also would be beyond legal remedy. No precedent!) SCOTUS, however reversed, with Justice John Paul Stevens writing for the majority that “Although earlier cases involving ‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” A plaintiff can overcome qualified immunity by showing, Stevens explained, that a reasonable officer under the circumstances should have known that the conduct was wrongful.
This is a sensible and ethical standard. Midgets in a barrel? Wrong. Tying a prisoner to a post to cook under the sun? Wrong.
Kneeling on a prisoner’s neck when he appears to be having trouble breathing? Not so clear, perhaps. But since 2002, constitutional law expert Erwin Chemerinsky writes, the Supreme Court has ignored Hope v. Pelzer. In Taylor v. Riojas, however, the Court added making a prisoner sleep in excrement to the list of offenses officers could figure out for themselves.
Trent Taylor, a prisoner in Texas, was moved to a psychiatric prison unit to receive mental health treatment after a suicide attempt. He was first moved to a cell “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.’” He was there for four days, and would not eat or drink because he thought he would be poisoned. Next Taylor was moved to a very cold cell “with only a clogged drain in the floor to dispose of bodily wastes.” Taylor avoided urinating for more than a day, but when he couldn’t hold back any longer, the drain overflowed and raw sewage covered the floor of the cell, which had no cot or bunk. Taylor, who was locked in the cell without clothes, had to sleep in raw sewage.
When Taylor sued the corrections officers claiming that they had violated the Eighth Amendment by inflicting cruel and unusual punishment–ya think?—his case was dismissed by the district court. After all, there was no way for the prison officers to know making a prisoner sleep naked in sewage violated clearly established law that every reasonable officer should know. They had qualified immunity! The United States Court of Appeals for the 5th Circuit affirmed the dismissal, agreeing that the officers could not be held liable because “the law wasn’t clearly established” that “prisoners couldn’t be housed in cells teeming with human waste … for only six days.”
Now more than six days, that might be more obvious.
The Supreme Court, with Justice Barrett not participating and Justice Thomas dissenting (why, nobody knows) reversed, holding that the officers were not protected by qualified immunity.:
“[N]o 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.”
Addendum: Justice Alito filed a written concurring opinion while objecting to the fact that the case was reviewed at all. You can read it, and the main opinion, here. (Thanks to JP for the tip.)