Tuesday, February 23, 2021
Yesterday, the United States Supreme Court issued a summary disposition in McCoy v. Alamu that could end up being a landmark ruling on qualified immunity. So, what is qualified immunity? As the Supreme Court explained in Mullenix v. Luna, 577 U.S. 7, 11-12 (2015),
The doctrine of qualified immunity shields officials from civil liability so long as their conduct “‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”...A clearly established right is one that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”...“We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”...Put simply, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”
So, what does that actually mean?
In McCoy v. Alamu, "Texas prisoner Prince McCoy sued Mr. Alamu, a correctional officer, under 42 U.S.C. § 1983 for allegedly violating his Eighth Amendment rights. He claimed that Alamu had sprayed him in the face with a chemical agent without provocation." Subsequently, the district court granted summary judgment for Alamu on the basis of qualified immunity for the portion of the lawsuit that sought damages against him in his individual capacity.
On appeal, the Fifth Circuit found that the facts alleged by McCoy, if believed, established a Constitutional violation. According to the court, McCoy alleged that
He was sprayed, in the confines of his cell, for no reason at all. “Indeed, courts have frequently found constitutional violations in cases where a restrained or subdued person is subjected to the use of force.” McCoy’s allegations show a constitutional violation.
But this then took the court to the qualified immunity analysis, where it held that
Above, we held that the spraying crossed that line. But it was not beyond debate that it did, so the law wasn’t clearly established.[FN8]
[FN8] Some might find this a puzzling result, insofar as [qualified immunity] might have us find a violation in one breath, but, in the next, hold it too debatable to prevent immunity. No matter. What the first prong gives, the second prong will often snatch back. The Supreme Court has repeatedly reversed courts of appeals for failing to define established law narrowly, and we must follow that binding precedent.
So, again, what does this mean? According to the Fifth Circuit, Mr. Alamu was entitled to qualified immunity because
This was an isolated, single use of pepper spray. McCoy doesn’t challenge the evidence that Alamu initiated the Incident Command System immediately after the spray, nor that medical personnel promptly attended to him and provided copious amounts of water. Nor does he provide evidence to contest the Use of Force Report’s finding that Alamu used less than the full can of spray. In somewhat related circumstances, we held that spraying a prisoner with a fire extinguisher “was a de minimis use of physical force and was not repugnant to the conscience of mankind.” Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993) (per curiam). Similarly here, on these facts, it wasn’t beyond debate that Alamu’s single use of spray stepped over the de minimis line. For that reason, the law wasn’t clearly established.
This is what I call the comparative "beyond debate" test. Under this test, if an officer can point to another case with arguably similar facts where a Constitutional violation was not found, the officer is entitled to qualified immunity. But this then takes us to the Supreme Court's per curiam opinion in Taylor v. Riojas last November. In Taylor, Trent Taylor alleged 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.
In granting the defendants qualified immunity, the Fifth Circuit held that
The law wasn’t clearly established. Taylor stayed in his extremely dirty cells for only six days. Though the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end, see, e.g., McCord, 927 F.2d at 848, we hadn’t previously held that a time period so short violated the Constitution, e.g., Davis, 157 F.3d at 1005-06 (finding no violation partly because the defendant stayed in the cell for only three days). That dooms Taylor’s claim.
In other words, the Fifth Circuit used the Davis opinion in Taylor like it later used the Jackson case in McCoy: to prove that it was not "beyond debate" that the officer's behavior crossed the Constitutional line. But in its November opinion in Taylor, the Supreme Court wasn't having any of it. It vacated and remanded, finding that
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.”...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.[FN2]
[FN2] In holding otherwise, the Fifth Circuit noted “ambiguity in the caselaw” regarding whether “a time period so short [as six days] violated the Constitution.”...But the case that troubled the Fifth Circuit is too dissimilar, in terms of both conditions and duration of confinement, to create any doubt about the obviousness of Taylor’s right. See Davis v. Scott, 157 F. 3d 1003, 1004 (CA5 1998) (no Eighth Amendment violation where inmate was detained for three days in dirty cell and provided cleaning supplies).
This is what I call the "no reasonable officer" test. In other words, even if there is another case with arguably similar facts where a Constitutional violation was not found, an officer is not entitled to qualified immunity if no reasonable officer could have concluded his behavior was constitutionally permissible. At the time, it was easy to conclude that the Taylor opinion was a "one off," given the extreme circumstances of that case. But yesterday's summary disposition belies that notion. Instead, the Supreme Court held as follows:
In other words, if I'm reading it right, the Supreme Court is telling the Fifth Circuit that the comparative "beyond debate" test is dead and that the court improperly granted qualified immunity by reference to the somewhat similar Jackson case. Instead, consistent with Taylor, the Fifth Circuit should decide whether no reasonable officer could have concluded that it was constitutionally permissible to spray McCoy with the chemical agent, i.e., the "no reasonable officer" test. And, if that's right, this a seismic shift in qualified immunity law that will great constrict the availability of the qualified immunity test.