Given the role of qualified immunity in absolving police officers of murdering unarmed black men (and doing all sorts of other nefarious things), it’s encouraging to see that the Supreme Court said in a per curiam opinion today that there is an outer limit to how far that doctrine can be extended. Recall the problem: courts will rule that yes, some behavior or another would be unconstitutional, but the law on the subject is not “clearly established,” so the officer is shielded from liability. The trick is that “clearly established” morphs into “an officer in an identical situation has already been found liable for doing exactly what is alleged here.” Then of course liability becomes almost impossible to establish.
Consider now the case of Trent Taylor:
“Petitioner 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”
Like clockwork, the extra-conservative 5th Circuit concluded that the treatment was unconstitutional, but that there was no liability (I’m quoting SCOTUS) because “based on its [the 5th Circuit’s] 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.” SCOTUS points out the obvious: “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.” They add: “Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.” So back to litigation – no summary judgment in favor of the officers.
We still have a long way to go before qualified immunity is reined in adequately, but this shows there is at least a floor. In the meantime, Justice Alito writes a concurrence in which he first says that the SCOTUS shouldn’t have reviewed the case, but given that it has, he concurs in the judgment. Oh, and Justice Thomas dissented. But you could have guessed that. More importantly, at least seven justices realized that there could be limits to qualified immunity. These days, it’s important to recognize even small first steps.
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