Qualified Immunity could end in 2021

The Supreme Court signals it no longer supports one of the most controversial legal theories

Photo by Ev on Unsplash

In September 2013, Trent Taylor, an inmate in the Texas Department of Criminal Justice, spent six days in a pair of shockingly unsanitary cells.

Taylor’s first cell was covered from top to bottom in human feces. Though there was evidence someone attempted to clean the cell, feces remained on the walls and under the sink faucet, preventing Taylor from eating or drinking any water for four days.

The next cell Taylor was moved to was frigidly cold and had a clogged drain on the floor meant to dispose of bodily waste. Taylor held his bladder for 24 hours before unintentionally urinating on himself. Because the cell was also missing a bed, Taylor was then forced to sleep naked on the floor next to the sewage.

Taylor eventually sued the correctional officers who moved him throughout the jail for violating his Eighth Amendment rights under 42 U.S.C. § 1983 in a case known as Taylor v. Stevens. The case was heard by the 5th District Court of Appeals, which ultimately granted the officers’ assertion of Qualified Immunity (QI) because state law concerning appropriate cell conditions “is not clearly established,” according to the opinion.

It continues:

“The district court granted summary judgment on the basis of QI, noting that the defendants had “provided little in the way of specific summary judgment evidence to support their assertion that the cells were not, in fact, covered with feces.” But the court found “merit in [d]efendants’ general argument . . . that the alleged cell conditions [did] not rise to the level of a constitutional violation.” The court held that (1) because Taylor was exposed to the paltry cell conditions “for only a matter of days,” there was no constitutional violation under Davis v. Scott [], and that (2) Taylor had not “show[n] that he suffered any injury.”

Because Taylor was allowed to shower twice during the ordeal, the Court found no injury could be claimed, even though the actions clearly violated the Eighth amendment. However, the Court also cited a similar case — Davis v. Scott — where a prisoner’s three-day stay in a cell smattered with blood and feces did not violate the Eighth Amendment, paving the way to accept the officer’s QI claims.

In fact, the Court argued, the officer’s Qi claims survived simply because “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.”

Photo by Derick McKinney on Unsplash

Problems with Qualified Immunity

Decisions like Taylor v. Stevens are why constitutional law scholars are increasingly hesitant to support QI.

In essence, QI stunts the growth of constitutional law by not allowing courts to address previously unsettled questions. In Taylor’s case, the 5th Circuit was barred from deciding an appropriate timeframe in which a prisoner can be kept in an unsanitary cell. For future Texas prisoners, this means they can be subject to the same treatment without having recourse against corrections officers.

Joanna Schwartz, who teaches constitutional law at UCLA, wrote in a Notre Dame Law Review article that “if the Court did find an appropriate case to reconsider qualified immunity, and took seriously available evidence about qualified immunity’s historical precedents and current operation, the Court could not justify the continued existence of the doctrine in its current form.”

Schwartz takes umbrage with how QI fails to achieve its policy aims. Instead of “protecting all but the blatantly incompetent,” as the Supreme Court has held, QI instead “almost never shields government officials from costs and burdens associated with discovery and trial in filed cases. And it appears unnecessary to encourage vigorous enforcement of the law,” she wrote.

Specifically, Schwartz laments how aspects of QI, including its “disregard of officers’ bad faith, exacting requirements to clearly establish the law, and license to courts to grant qualified immunity without ruling on the underlying constitutional claims” tilt the scales of justice in favor of the government over constitutional interests.

However, when Taylor’s case reached the Supreme Court, the body took a seemingly unpredictable stand against the officer’s QI claims.

Leaving QI in 2020

Photo by Mélodie Descoubes on Unsplash

Getting the Supreme Court to reject future QI claims will be no small feat. But, the cards seem to be stacked in favor of doing away with the dubious legal theory.

Even though the Court applauded the 5th Circuit’s application of the Eighth Amendment in Taylor’s case, it also found the 5th Circuit erred in granting the officer’s QI claims and remanded the case back for further proceedings.

“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,” the majority opinion held.

Conservative Justice Clarence Thomas was the lone dissent in the opinion, though he didn’t provide his reasoning. Similarly, Justice Samuel Alito wrote in his concurrence that the Supreme Court should not be deciding the case, even though the body issued a correct decision.

However, the justices who voiced their opinion revealed important factors the Court will look at in future QI cases. Namely: the necessity or exigency of an officer’s actions, steps officers took to mitigate conditions giving rise to the QI claim, and the officer’s intent.

While it is nice for the Court to describe these foundations, it will take decisive and consistent action from its justices to leave QI in 2020. So far, the Court has wavered in its support for QI. Justice Thomas wrote a scathing dissent in 2018 saying the defense was not rooted in the common law. Similarly, Justices Breyer, Sotomayor, Roberts, and Gorsuch have taken skeptical stances against QI claims in cases throughout their careers.

But, the Court’s reluctance to do away with QI altogether suggests something else is at play. Schwartz theorizes that the Court may be concerned with how ending QI could upset the balance of power between police and ordinary citizens, or that the Court’s continued application is a sign of “hostility toward plaintiffs more broadly.”

The benefits of doing away with QI seem insurmountable at this juncture, too. Schwartz argues ending QI would “clarify the law, reduce the costs and complexity of litigation, and shift the focus of Section 1983 litigation to what should be the critical question at issue in these cases — whether government officials exceeded their constitutional authority.”

Schwartz says she is unconvinced by arguments concerning the balance of power between police and citizens. A government formed by and for the people has no place protecting those who willingly violate the rights of those the government claims to protect.

Therefore, ending QI means restoring the balance of power to the hands of the people and getting government officers to once again recognize they serve at the pleasure of those who voted them in, not the President or any political party.

As Schwartz concludes in her article:

“I agree that qualified immunity functions much like these other procedural barriers, that each is justified by interests in protecting defendants from burdensome litigation, that each impedes plaintiffs’ access to the courts, and that each frustrates adjudication of the merits of plaintiffs’ claims. But it appears that some or all of the Justices either do not see qualified immunity doctrine in this way, or believe that qualified immunity properly protects government defendants at plaintiffs’ expense.”

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Robert Davis

Robert Davis

Journalist covering housing, police, and government.