Qualified Immunity Today
By Bobbi Reilly Sheahan, J.D.
While doing their jobs and protecting the public, law enforcement and correctional personnel regularly engage in activities — including handcuffing, restraining, and imprisoning fellow citizens — that do not otherwise conform to social norms. Such conduct is protected by the legal doctrine of qualified immunity (QI), which shields public servants from civil or criminal liability for reasonably fulfilling their duties. However, while broad, this protection is not absolute.
Limits of Protection
The recent Taylor v. Riojas case was a rare U.S. Supreme Court rejection of QI claims, which raises the question Is QI being narrowed? The answer is no. While QI remains unchanged, the Taylor case indicates that the Court will not endorse the granting of QI for conduct so shocking that it offends the Eighth Amendment on its face, even if the facts are novel.1
A defense that generally protects law enforcement officers from personal liability for the reasonable discharge of their duties, QI tends to be broadly applied by courts to allow officers to do their jobs. In so doing, courts generally rely on established practices and legal precedent. However, the Court held that QI is unavailable for conduct that obviously violates the Eighth Amendment’s prohibition against cruel and unusual punishment, even if that specific behavior has not previously and specifically been held as wrong.
Ms. Sheahan is an attorney, author, and educator from Plano, Texas.
The Taylor case was a de novo review of a summary judgment in favor of the defendants, who included a prison warden, several correctional officers, and two nurses. At every stage, the courts noted the appalling facts. Trent Taylor, the plaintiff, was a prisoner transferred to a psychiatric prison in Texas following a suicide attempt. The defendants confined him for six days in a pair of cells that the Fifth Circuit described as filthy and unsanitary. He was not allowed clothing, access to a restroom, or necessary medical care.2
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.”3 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.4
The Fifth Circuit affirmed summary judgment in favor of the defendants based on QI. While finding that the defendants’ conduct offended the Eighth Amendment, the court reasoned that the fact that such conduct violated the Eighth Amendment was not “clearly established” at the time of the violation. While the trial court and the Fifth Circuit extended QI on the grounds that “[q]ualified 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,” the Supreme Court disagreed.5
Liability for Conduct
In reaching its conclusion in Taylor, the Court did not rely upon a specific case that was factually on point but on the criteria set forth in the Fifth Circuit case of Arenas v. Calhoun for the showing necessary to prevail on a claim based on conditions of confinement. To prevail, there are both objective and subjective elements.6
First, a prisoner must show that the relevant official(s) denied “the minimal civilized measure of life’s necessities” and exposed them “to a substantial risk of serious harm.” The “alleged deprivation” must be “objectively serious.”7
Second, the prisoner must show “that the official possessed a subjectively culpable state of mind in that he exhibited deliberate indifference” to the risk of harm.8 Proving deliberate indifference is no small hurdle.9 “A prison official displays deliberate indifference only if he (1) knows that inmates face a substantial risk of serious bodily harm and (2) disregards that risk by failing to take reasonable measures to abate it.”10 This is a fact-intensive inquiry “subject to demonstration in the usual ways, including inference from circumstantial evidence.”11
The Fifth Circuit even noted that “filthy, unsanitary cells” had been found to violate the Eighth Amendment in the past.12 Nevertheless, the court noted that confining a prisoner to a dirty cell for a short amount of time “does not automatically violate the Constitution ... at least where the prisoner was given the chance to clean the cell.”13
Still, the Fifth Circuit found that the filthy conditions of Mr. Taylor’s cell and how he was treated were obviously wrong, to such a degree that they did constitute cruel and unusual punishment in violation of the Eighth Amendment. Nevertheless, the court found that the defendants were shielded from liability by QI because prior case law had referenced longer periods and had not clearly established that a prisoner could not be kept naked in a cell teeming with human waste for six days. In other words, while the Fifth Circuit agreed that the Eight Amendment’s line had been crossed and that future corrections personnel would be on notice, it held that the line had not previously been sufficiently clear at the time of Mr. Taylor’s incarceration.14
The Supreme Court did not agree, holding that there is no need for a case that specifically on point where “[c]onfronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”15 Citing Hope v. Pelzer for this rule, despite different facts (the defendants in that case lashed a prisoner to a hitching post in the hot sun for seven hours without bathroom breaks and only one or two water breaks), the Court found that the Fifth Circuit erred in granting the officers QI on this basis.16
In other words, Taylor does not change the law so much as it alerts agencies that QI is not a bar to liability for conduct so appalling that it offends the Eighth Amendment on its face. That bar remains high, as the Court emphasized just a couple of years ago:
“A defense that generally protects law enforcement officers from personal liability for the reasonable discharge of their duties, QI tends to be broadly applied by courts to allow officers to do their jobs.”
[E]xisting 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.17
As a leading Constitutional scholar put it, lest one think that the bar is low or has been lowered, they should consider that:
In case after case, the Supreme Court found officers were protected by qualified immunity under this standard. From 1982 to 2020, the Court dealt with qualified immunity in 30 cases. The plaintiffs prevailed in only two: Hope v. Pelzer (2002) and Groh v. Ramirez (2004). Thus, the Court’s ruling in Taylor v. Riojas for the plaintiff and denying qualified immunity is notable in itself.18
It is important to note that the Supreme Court’s decision in this case was the reversal of a summary judgment, which did not dispose of the entire case in favor of Mr. Taylor but rather allowed the case to go to the jury.
Taylor v. Riojas reaffirms the well-settled law that officials at all levels are charged with the knowledge that qualified immunity will not shield them from liability for cruel and unusual conduct that would shock a reasonable person, even if the specific facts would present a novel case. When actions are so extreme as to offend the Eighth Amendment, there need not be a specific case that is factually on point to defeat a QI defense.
The U.S. Supreme Court’s ruling in Taylor is both timely and broadly instructive for interactions between government officials and individuals in this “time of incivility, mistrust, deep controversy, and increasing violence … because strong, ethical law enforcement is necessary to the functioning of the United States and the safety of Americans, now and in the future.”19
“When actions are so extreme as to offend the Eighth Amendment, there need not be a specific case that is factually on point to defeat a QI defense.”
Ms. Sheahan can be reached at email@example.com.
1 Taylor v. Riojas, 592 U.S. ____, 208 L.Ed. 164, 141 S.Ct. 52 (per curiam) (2020), vacating Taylor v. Stevens, 946 F.3d 211 (5th Cir. 2019).
2 Taylor v. Stevens, 946 F.3d at 211.
3 Taylor v. Riojas.
4 Taylor v. Stevens.
5 Taylor v. Riojas; Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam).
6 Arenas v. Calhoun, 922 F.3d 616, 620 (5th Cir. 2019).
8 Id. (quotation marks omitted).
9 See id.
10 Id. (quotation marks omitted).
11 Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004).
12 Id., citing Harper v. Showers, 174 F.3d 716, 720 (5th Cir. 1999); McCord v. Maggio, 927 F.2d 844, 848 (5th Cir. 1991).
13 Taylor v. Stevens.
15 Taylor v. Riojas.
16 Id., citing 122 S. Ct. 2508 (2002).
17 District of Columbia v. Wesby (2018), 583 U.S. ___ , 138 S. Ct. 577, 199 L. Ed. 2d 453 (2018). In Hope v Pelzer, a prisoner was twice handcuffed to a hitching post without a shirt and with his hands above his head, in the hot sun, without bathroom breaks, for multiple hours. The Supreme Court in that case relied in part on United States v. Lanier for the premise that can be on notice that their conduct violates the Eighth Amendment, even in novel factual situations. In Groh v. Ramirez, law enforcement officers engaged in an impermissible search because their warrant did not describe the items sought and, thus, violated the Fourth Amendment on its face and were not shielded from liability by QI, even in the absence of specific prior case law declaring this to be so.
18 Erwin Chemerinsky, “Chemerinsky: SCOTUS Hands Down a Rare Civil Rights Victory on Qualified Immunity,” ABA Journal, February 1, 2021, https://www.abajournal.com/columns/article/chemerinsky-scotus-hands-down-a-rare-civil-rights-victory-on-qualified-immunity?fbclid=IwAR0VJBnsv6rb30Z0mtM1qlFtukLWSfSHyzIviugzAeBR_fD-IUkmILBS8Eo.
19 Paul Pastor, David S. Corderman, and John Jarvis, “Intertwining Ethics and Confidence to Regain and Sustain Trust,” FBI Law Enforcement Bulletin, March 8, 2023, https://leb.fbi.gov/articles/featured-articles/intertwining-ethics-and-confidence-to-regain-and-sustain-trust-.