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Qualified Immunity

Taylor v. Riojas

Qualified immunity protects government officers from being sued for damages unless they have violated “clearly established” law.1×1. Anderson v. Creighton, 483 U.S. 635, 639 (1987). Following the high-profile police killings of spring 2020,2×2. See Larry Buchanan et al., Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/Y2T7-NMPC]; Andrew R. Chow, People Expected Police Behavior to Change After George Floyd’s Murder. The Numbers Tell a Different Story, Time (May 13, 2021), https://time.com/6046645/police-killings-2021 [https://perma.cc/E2CJ-WMPE]. more eyes have turned to holding officers accountable and the ways in which legal doctrines like qualified immunity prevent that from happening.3×3. See The Argument, Should It Be This Hard to Sue the Police and Win?, N.Y. Times (June 16, 2021), https://www.nytimes.com/2021/06/16/opinion/qualified-immunity-sue-police.html [https://perma.cc/ESR2-BT83]. Qualified immunity has come under fire from academics,4×4. See, e.g., William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45, 51 (2018); Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 1800 (2018). But see Lawrence Rosenthal, Defending Qualified Immunity, 72 S.C. L. Rev. 547, 551 (2020) (“Qualified immunity permits damages liability for violation of such settled rules, while discouraging plaintiffs’ lawyers from bringing a wide variety of novel damages claims of questionable merit, and it also minimizes the costs that would be incurred by innocent third parties if public officials faced unlimited liability.”). judges,5×5. See Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting). See generally Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219 (2015). practitioners,6×6. See Scott Michelman, The Branch Best Qualified to Abolish Immunity, 93 Notre Dame L. Rev. 1999, 2000 (2018); Matthew Segal, Opinion, Beyond #BlackLivesMatter: Police Reform Must Be Bolstered by Legal Action, The Guardian (July 27, 2016, 7:00 AM), https://www.theguardian.com/commentisfree/2016/jul/27/beyond-black-lives-matter-police-reform-legal-action [https://perma.cc/3RSF-FK49]. legislators,7×7. See Harper Neidig & Marty Johnson, Police Reform Fight Hinges on Qualified Immunity, The Hill (May 25, 2021, 6:00 AM), https://thehill.com/homenews/house/555172-police-reform-fight-hinges-on-qualified-immunity [https://perma.cc/7BLS-Y2VH]. and the public8×8. See id. (“[Fifty-nine] percent of likely voters responded that they either ‘somewhat’ or ‘strongly’ supported the end of qualified immunity.”). alike for unjustly precluding remedies for violations of people’s constitutional rights. Last Term, in Taylor v. Riojas,9×9. 141 S. Ct. 52 (2020) (per curiam). the Supreme Court held that correctional officers were not entitled to qualified immunity because the conditions of confinement alleged by the petitioner were so horrific that any reasonable officer should have known they were unconstitutional.10×10. See id. at 53. In doing so, the Court — for the first time — overturned a grant of qualified immunity based on the obviousness of the constitutional violation.11×11. See Baude, supra note 4, at 82–83; Reinhardt, supra note 5, at 1244–50; Recent Case, Zadeh v. Robinson, 902 F.3d 483 (5th Cir. 2018), 132 Harv. L. Rev. 2042, 2046 (2019). The decision sends a message to lower courts that they cannot ignore the obviousness standard and potentially shows a Supreme Court more willing to police the excesses of the qualified immunity doctrine, even if it will not rethink the doctrine altogether.

Trent Taylor was incarcerated in a Texas prison.12×12. See Taylor, 141 S. Ct. at 53. He alleged that, in September 2013, correctional officers kept him in a pair of disturbingly unsanitary cells for six full days.13×13. See id. The first cell was covered in “‘massive amounts’ of feces”: there was waste on the floor, walls, windows, and even “packed inside the water faucet.”14×14. Id. (quoting Taylor v. Stevens, 946 F.3d 211, 218 (5th Cir. 2019)). Taylor did not eat or drink anything for almost four days for fear that his food or water would be contaminated.15×15. See id. Officers then moved him to a second cell, which was extremely cold and lacked a bed and a toilet.16×16. See id. A clogged drain in the floor provided the sole means of disposing of human waste.17×17. See id. Taylor alleged officers refused to take him to the bathroom.18×18. See Taylor, 946 F.3d at 218–19. Being concerned that if he urinated, the drain would overflow, he held his bladder for twenty-four hours before involuntarily urinating.19×19. See id. at 219. Taylor was ultimately treated for a distended bladder and catheterized for holding his urine so long. See id. at 223. The drain ultimately did overflow, covering the floor with feces.20×20. See Taylor, 141 S. Ct. at 53. Confined without clothing, Taylor was forced to “sleep naked in sewage.”21×21. Id.

Taylor brought a civil rights action against the correctional officers under 42 U.S.C. § 1983.22×22. See Taylor v. Stevens, No. 14-CV-149, 2017 U.S. Dist. LEXIS 227537, at *2 (N.D. Tex. Jan. 5, 2017). He alleged they confined him in unconstitutional conditions and were deliberately indifferent to his health and safety in violation of his Eighth Amendment rights.23×23. See id. at *4–7. Taylor also claimed he was subject to excessive use of force when a correctional officer rammed him in the testicles with a steel bar. Id. at *7. The trial court denied the officer summary judgment on this claim, and the claim was set for trial. Id. at *42. The district court found that although Taylor’s conditions of confinement “may have been quite uncomfortable,” they were not unconstitutional and therefore that the officers had qualified immunity.24×24. Id. at *25. It also rejected Taylor’s deliberate indifference claims, finding that Taylor had not alleged more than de minimis injuries.25×25. See id. at *28–32. The court therefore granted summary judgment to defendants on the unconstitutional conditions and deliberate indifference claims.26×26. See id. at *25, *29, *32. Taylor appealed.

The Fifth Circuit affirmed in part and reversed in part.27×27. Taylor v. Stevens, 946 F.3d 211, 227 (5th Cir. 2019). Writing for the panel, Judge Smith28×28. Judge Smith was joined by Chief Judge Owen and Judge Jones. held that the correctional officers were entitled to qualified immunity on Taylor’s Eighth Amendment conditions-of-confinement claim.29×29. See Taylor, 946 F.3d at 222. The Fifth Circuit summarily dismissed Taylor’s claims for delay in medical treatment and unconstitutional policies on the basis of qualified immunity. Id. at 226–27. The court likewise held that Taylor had waived his claim of an Eighth Amendment violation for ignoring his complaints of chest pain. Id. at 226. The Fifth Circuit also held that although the cell conditions alleged by Taylor violated the Eighth Amendment and that the defendants were deliberately indifferent to such violation,30×30. To show a violation of the Eighth Amendment on a conditions-of-confinement claim, the plaintiff must show not only that the conditions “denied him ‘the minimal civilized measure of life’s necessities’ and exposed him ‘to a substantial risk of serious harm,’” but also that the officer was deliberately indifferent to that harm. Id. at 217 (quoting Arenas v. Calhoun, 922 F.3d 616, 620 (5th Cir. 2019)). the law was not “clearly established” at the time of the violation.31×31. Id. at 222. “Though the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end, [the Fifth Circuit] hadn’t previously held that a time period so short violated the Constitution.”32×32. Id. (citation omitted). The Fifth Circuit also pointed to Supreme Court dicta, “which has instructed that a ‘filthy, overcrowded cell . . . might be tolerable for a few days and intolerably cruel for weeks or months.’” Id. (alteration in original) (quoting Hutto v. Finney, 437 U.S. 678, 686–87 (1978)). In Davis v. Scott,33×33. 157 F.3d 1003 (5th Cir. 1998). the court had held that an inmate being confined to a cell with blood and feces for three days did not violate the Constitution.34×34. See id. at 1004, 1006. Since it was not clear that confinement in these conditions for such a short period of time violated the Constitution, the officers in Taylor’s case did not have “fair warning” that their specific acts were unconstitutional.35×35. See Taylor, 946 F.3d at 222 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

The Fifth Circuit did refuse qualified immunity to three officers for another claim: that the officers had violated Taylor’s Eighth Amendment rights by refusing to escort him to the bathroom for twenty-four hours.36×36. See id. at 225. Taylor had alleged facts sufficient to show a constitutional violation, and Fifth Circuit precedent clearly established that it was unconstitutional to deprive inmates of “a minimally sanitary way to relieve themselves for a period of seventeen hours, leaving them no choice but to sleep in their own waste overnight.”37×37. Id. (footnote omitted) (citing Palmer v. Johnson, 193 F.3d 346, 352–53 (5th Cir. 1999)). Taylor petitioned for certiorari regarding the grant of immunity on the cell conditions claim.38×38. See Petition for a Writ of Certiorari at 1–2, Taylor, 141 S. Ct. 52 (No. 19-1261).

The Supreme Court vacated and remanded.39×39. See Taylor, 141 S. Ct. at 54. In a short per curiam opinion,40×40. Justice Barrett took no part in the decision. the Court held that “any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”41×41. Taylor, 141 S. Ct. at 54. Following Hope v. Pelzer,42×42. 536 U.S. 730 (2002). the Court reasoned that general Eighth Amendment principles made it obvious that Taylor’s cell conditions violated the Constitution.43×43. See Taylor, 141 S. Ct. at 54. The Court distinguished Davis as too dissimilar to provide on-point precedent: there, the alleged violation was merely a dirty cell where the individual was provided with cleaning supplies.44×44. See id. at 54 n.2. The Court noted that even if it could not be sure that all the officers were deliberately indifferent, the record indicated that at least some were, with one remarking that he hoped Taylor would “f***ing freeze.”45×45. Id. at 54 (citing Taylor v. Stevens, 946 F.3d 211, 218 n.9 (5th Cir. 2019)). The Court further noted that there was no evidence that the conditions of Taylor’s confinement were necessary or that they could not have been mitigated.46×46. See id.

Justice Alito concurred in the judgment. He would not have granted certiorari in the first place because he believed that this was merely a case where the Court disagreed with the Fifth Circuit’s application of the correct legal standard.47×47. See id. at 55 (Alito, J., concurring in the judgment). Additionally, the Supreme Court rarely grants review of nonfinal decisions, like the summary judgment claim here. Id. If the facts a petitioner alleges are not proven at trial, he may still lose to a qualified immunity defense. Id. at 55–56. But, given that the Court had granted certiorari, Justice Alito agreed with the outcome.48×48. See id. at 56. He agreed with the majority that a reasonable corrections officer would have known their conduct was unconstitutional and that case law stating “that holding a prisoner in a ‘filthy’ cell for ‘a few days’ ‘might be tolerable’”49×49. Id. (quoting Hutto v. Finney, 437 U.S. 678, 686–87 (1978)). was not to the contrary, since Taylor’s cells were not just unpleasant but were “the filthiest cells imaginable.”50×50. Id. Justice Thomas dissented without explanation.51×51. See id. at 54 (Thomas, J., dissenting).

In Taylor, the Court, for the first time, applied the obviousness standard it established in Hope to overturn a grant of qualified immunity. This outcome frustrated some, who had hoped the Court would use Taylor as an opportunity to reexamine, and perhaps limit or abolish, the qualified immunity doctrine.52×52. See Jay Schweikert, The Supreme Court Won’t Save Us from Qualified Immunity, Cato Inst. (Mar. 3, 2021, 4:58 PM), https://www.cato.org/blog/supreme-court-wont-save-us-qualified-immunity [https://perma.cc/2WNL-HGYU]. Nonetheless, Taylor is an important, and rare, win for a plaintiff in a qualified immunity case. By reinvigorating the obviousness standard, Taylor marks a significant development in the Court’s qualified immunity jurisprudence, and it suggests that in the future the Court might be willing to reconsider its historically overbroad grant of immunity to official actors.

Qualified immunity protects government officers from damages suits unless their conduct violates “clearly established . . . constitutional rights of which a reasonable person would have known.”53×53. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is intended to “balance[] two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”54×54. Pearson v. Callahan, 555 U.S. 223, 231 (2009). In order to overcome the qualified immunity defense, a plaintiff must show both that the officer’s conduct violated the plaintiff’s constitutional rights and that these rights were clearly established at the time of the alleged violation.55×55. See id. at 232. A right is clearly established if there is precedent — usually in the form of case law56×56. Circuits are divided as to what kinds of authority count in the “clearly established law” analysis. Some circuits will only consider their own case law, while others will consider extracircuit case law. See John C. Jeffries, Jr., What’s Wrong with Qualified Immunity, 62 Fla. L. Rev. 851, 858–59 (2010); Amelia A. Friedman, Note, Qualified Immunity in the Fifth Circuit: Identifying the “Obvious” Hole in Clearly Established Law, 90 Tex. L. Rev. 1283, 1289–90 (2012). Equally, it is unclear the extent to which authority other than case law, such as policy documents, should be considered. See Friedman, supra, at 1290–91. — articulating that right and thereby putting the officer on notice that his or her conduct is unlawful.57×57. See Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)). The Court has typically required that this precedent define the right at a particularized level, so that the officer can “reasonably . . . anticipate when their conduct may give rise to liability for damages.”58×58. Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)). So, for instance, it is not sufficient that the Fourth Amendment protects from unreasonable searches and seizures; there must be precedent showing that the specific circumstances of a particular search were unconstitutional.59×59. See id. That being said, officers “can still be on notice that their conduct violates established law even in novel factual circumstances.”60×60. Hope, 536 U.S. at 741. In Hope, the Court stated that officers just needed “fair warning” and that a violation could be so obvious that general constitutional principles already expressed in precedent could suffice to give the officers warning that their conduct was unconstitutional.61×61. Id.

Despite the Court’s recognition of an obviousness standard in Hope, the Court seemed to back away from it in subsequent cases. The Court occasionally reaffirmed the existence of the obviousness standard.62×62. See District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018); Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam). Yet, increasingly, the Court ignored Hope or actively proposed more stringent standards.63×63. See Karen Blum et al., Qualified Immunity Developments: Not Much Hope Left for Plaintiffs, 29 Touro L. Rev. 633, 657 (2013). In Mullenix v. Luna,64×64. 577 U.S. 7 (2015) (per curiam). the Court stated that a right must be established “beyond debate,”65×65. Id. at 12 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). which seems much more stringent than Hope’s fair warning standard.66×66. See Blum et al., supra note 63, at 654 (“[S]ince [Hope], the ‘fair warning’ formula has been virtually ignored by the Supreme Court.”). This “beyond debate” standard was first established in Ashcroft v. al-Kidd,67×67. 563 U.S. 731. in which the Supreme Court chastised lower courts for defining law at too high a level of generality.68×68. Id. at 742. The Court did not even acknowledge Hope’s existence, despite the fact that the lower court in al-Kidd had primarily relied on Hope in its decision, which the Supreme Court overturned.69×69. See Morgan v. Swanson, 659 F.3d 359, 373 (5th Cir. 2011) (citing al-Kidd v. Ashcroft, 580 F.3d 949, 970 (9th Cir. 2009), rev’d, 563 U.S. 731 (2011)). Al-Kidd therefore provoked speculation as to the continued vitality of Hope, as some saw it as a “doctrinal shift[]” away from Hope’s fair warning principle and toward requiring that the constitutional violation be established “beyond debate.”70×70. Reinhardt, supra note 5, at 1248; Recent Case, supra note 11, at 2046 (“Al-Kidd and similar Supreme Court cases have weakened the validity of Hope’s fair warning principle, which the Supreme Court has declined to apply since.” (footnote omitted)).

The Supreme Court’s confused guidance has led lower courts to adopt differing standards.71×71. See Scott Michelman, Civil Rights Enforcement 231 (2020); Alan K. Chen, The Intractability of Qualified Immunity, 93 Notre Dame L. Rev. 1937, 1948–51 (2018). Different panels of the same circuit have even come to different conclusions on the same set of facts.72×72. See Michelman, supra note 71, at 231. In Baxter v. Harris,73×73. No. 15-CV-00019, 2015 WL 6873667 (M.D. Tenn. Nov. 9, 2015), aff’d, No. 15-6412, 2016 WL 11517046 (6th Cir. Aug. 30, 2016). police officers released a police dog, without warning, onto a man who had been sitting motionless with his hands in the air.74×74. See id. at *2. A Sixth Circuit panel affirmed the district court’s denial of qualified immunity, relying on a prior case that declared it unconstitutional for an officer to release an inadequately trained police dog without warning onto two suspects who were not fleeing.75×75. See Baxter, 2016 WL 11517046, at *2 (citing Campbell v. City of Springboro, 700 F.3d 779, 789 (6th Cir. 2012)). After discovery, the police officers again argued qualified immunity and the district court again denied it.76×76. See Baxter v. Bracey, 751 F. App’x 869, 870–71 (6th Cir. 2018). But a different panel of the Sixth Circuit reversed, finding that there was no case establishing that a person raising their hands alone was sufficient to put the officers on notice that it would be unconstitutional to release the dog.77×77. See id. at 872.

Circuit courts have adopted differing standards specifically as relates to unconstitutional conditions, like those Taylor alleged.78×78. See Petition for a Writ of Certiorari, supra note 38, at 21–23 (discussing cases). In DeSpain v. Uphoff,79×79. 264 F.3d 965 (10th Cir. 2001). for example — in which a prisoner’s cell was flooded with urine for around thirty-six hours80×80. See id. at 972. If anything, the conditions in DeSpain were less egregious than in Taylor. The plaintiff in DeSpain had a bed to sit on to get out of the contaminated water, and he was confined in these unsanitary conditions for thirty-six hours rather than six days. Id. at 972–73. — the Tenth Circuit held that the officers did not have qualified immunity because, although no cases were factually on point, there was a “great weight of cases . . . condemning on constitutional grounds an inmate’s exposure to human waste” generally, so the officers were on notice that their actions were unconstitutional.81×81. Id. at 979. Likewise, in Brooks v. Warden,82×82. 800 F.3d 1295 (11th Cir. 2015). the Eleventh Circuit held that it was not only obviously unconstitutional to force a prisoner to sit in his own waste for two days83×83. See id. at 1307. but also clearly established that Eighth Amendment violations “can arise from ‘conditions lacking basic sanitation.’”84×84. Id. at 1306 (quoting Chandler v. Baird, 926 F.2d 1057, 1066 (11th Cir. 1991)). The Fifth Circuit has precedents that similarly condemn requiring prisoners to live in unsanitary conditions as unconstitutional85×85. See, e.g., McCord v. Maggio, 927 F.2d 844, 847 (5th Cir. 1991). but, unlike other circuits, chose to hold that these cases were not sufficiently similar to put the officers in Taylor on notice that their conduct was unconstitutional.

Taylor is important because it is the first time the Court has relied on the obviousness of a constitutional violation to overturn qualified immunity, regardless of case law on point. In Hope, the Court recognized obviousness as a possible basis to deny qualified immunity, but it still based its holding on clearly established precedent.86×86. See Vinyard v. Wilson, 311 F.3d 1340, 1354 n.27 (11th Cir. 2002) (“Hope appears to be a preexisting case law decision where the facts in Hope were not fairly distinguishable from those in Gates v. Collier[, 501 F.3d 1291 (5th Cir. 1974)].”); John C. Jeffries, Jr., The Liability Rule for Constitutional Torts, 99 Va. L. Rev. 207, 256–57 (2013) (“[E]ven under a demanding standard of factual similarity, the conduct in Hope stood condemned.”). But see Joanna Schwartz, The Supreme Court Is Giving Lower Courts a Subtle Hint to Rein in Police Misconduct, The Atlantic (Mar. 4, 2021), https://www.theatlantic.com/ideas/archive/2021/03/the-supreme-courts-message-on-police-misconduct-is-changing/618193 [https://perma.cc/L9EK-87DB] (stating that the Court in Hope had ruled based on obviousness). Hope was a prisoner in Alabama.87×87. See Hope v. Pelzer, 536 U.S. 730, 733 (2002). As a sanction for disorderly conduct, prison officers tied him, shirtless, to a hitching post for seven hours in the middle of the summer, only giving him water once or twice and never untying him to allow him to go to the bathroom.88×88. See id. at 734–35. The Eleventh Circuit found that the officers’ conduct violated Hope’s Eighth Amendment rights but that, since there was no prior case with “materially similar” facts, the officers were entitled to qualified immunity.89×89. Id. at 733. The Supreme Court rejected this “materially similar” standard. Citing United States v. Lanier,90×90. 520 U.S. 259 (1997). the Court stated that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.”91×91. Hope, 536 U.S. at 741. Lanier was not a qualified immunity case but was a criminal case in which the Sixth Circuit analogized to qualified immunity to decide what constituted fair notice in a criminal context. See Lanier, 520 U.S. at 263. The Court elaborated:

Arguably, the violation was so obvious that our own Eighth Amendment cases gave respondents fair warning that their conduct violated the Constitution. Regardless, in light of binding Eleventh Circuit precedent [and other precedent], . . . we readily conclude that the respondents’ conduct violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”92×92. Hope, 536 U.S. at 741–42 (emphasis added) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In fact, this language in Hope led the Fifth Circuit once to opine that Hope’s obviousness discussion was just dicta. Morgan v. Swanson, 659 F.3d 359, 373 (5th Cir. 2011).

The Court then discussed two cases that were binding in the Eleventh Circuit and that put the officers on notice that their conduct was unconstitutional: one that held that handcuffing inmates to cells or fences for long periods of time was unconstitutional93×93. See Hope, 536 U.S. at 742 (citing Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974)). and the other reasoning that physical abuse of a prisoner when he is no longer resisting authority, such as denying him water, would be unconstitutional.94×94. See id. at 743 (citing Ort v. White, 813 F.2d 318 (11th Cir. 1987)). The Court stated that this violation of clearly established law was “buttressed” by a Department of Justice (DOJ) report specifically advising the Alabama Department of Corrections that its practices were unconstitutional.95×95. Id. at 744. The Court concluded that “the Eleventh Circuit precedent . . . , as well as the DOJ report condemning the practice, put a reasonable officer on notice that [their conduct] was unlawful.”96×96. Id. at 745–46. The Court in Hope therefore recognized that it would be possible for conduct to be so egregious as to obviously violate the Constitution, as was “[a]rguably”97×97. Id. at 741. the case on Hope’s facts, but ended up simply following on-point precedent.98×98. See id. at 741–42.

In Taylor, by contrast, the Court did not rely on any prior precedent. The only unconstitutional conditions case the Court cited was Davis, and it did so to emphasize the dissimilarity between Davis and Taylor.99×99. See Taylor, 141 S. Ct. at 54 n.2. The Court chastised the Fifth Circuit for finding that Davis cast doubt on whether it was unconstitutional for officers to hold Taylor in the cells for “only” six days.100×100. See id. Lower courts have, following Hope, decided cases based on obviousness,101×101. See, e.g., Barker v. Goodrich, 649 F.3d 428, 437 (6th Cir. 2011); Nelson v. Corr. Med. Servs., 583 F.3d 522, 534 (8th Cir. 2009). and Hope is generally understood to have established obviousness as a possible basis to deny qualified immunity.102×102. See, e.g., Schwartz, supra note 4, at 1835. But, while the Court has reiterated the existence of the obviousness standard,103×103. See, e.g., City of Escondido v. Emmons, 139 S. Ct. 500, 504 (2019) (per curiam); District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018); Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377 (2009); White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam); Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam). it had never — until Taylor — actually used it to decide a case.104×104. In the thirty Supreme Court cases dealing with qualified immunity between 1982 and 2020, plaintiffs have prevailed only twice. Erwin Chemerinsky, Chemerinsky: SCOTUS Hands Down a Rare Civil Rights Victory on Qualified Immunity, ABA J. (Feb. 1, 2021, 9:11 AM), https://www.abajournal.com/columns/article/chemerinsky-scotus-hands-down-a-rare-civil-rights-victory-on-qualified-immunity [https://perma.cc/7DLM-YYQB]. The first time was Hope. See id. The second was Groh v. Ramirez, 540 U.S. 551 (2004), in which the Court relied on case law clearly establishing that a warrantless search of a home without an exigency is unconstitutional. See id. at 564–65. Thus, in no case did a plaintiff prevail based on obviousness.

Though it is true that Taylor was based on “particularly egregious facts,”105×105. Taylor, 141 S. Ct. at 54. Taylor shows a Supreme Court more willing to give some teeth to the obviousness doctrine. It is too early to tell whether Taylor was an outlier or whether it signals a new approach to qualified immunity.106×106. See Joanna C. Schwartz, Qualified Immunity and Federalism All the Way Down, 109 Geo. L.J. 305, 351 (2020); Chemerinsky, supra note 104. But at least one data point suggests optimism. Fewer than four months after Taylor, in McCoy v. Alamu,107×107. 141 S. Ct. 1364 (2021) (mem.). the Court reversed a grant of summary judgment on the grounds of qualified immunity for further proceedings consistent with Taylor.108×108. See id. This outcome suggests that the Court might be serious about applying the standard going forward.

Admittedly, the obviousness standard far from solves all the issues with qualified immunity. It allows plaintiffs to defeat qualified immunity only in the most egregious cases, leaving the majority of plaintiffs unprotected. And the obviousness standard lacks guidelines and relies entirely on judges’ subjective perceptions of how bad a constitutional violation is.109×109. See Allen H. Denson, Commentary, Neither Clear nor Established: The Problem with Objective Legal Reasonableness, 59 Ala. L. Rev. 747, 761–62 (2008). This type of “you know it when you see it”110×110. Cf. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). test will surely lead to a broad variation in when lower courts decide that conduct is so egregious as to be obviously unconstitutional.

Nonetheless, Taylor is an important development in the law. The Court historically has exhibited a “troubling asymmetry” in its qualified immunity jurisprudence: it has frequently reversed denials of qualified immunity but rarely reversed grants of qualified immunity.111×111. See Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting) (“[T]his Court routinely displays an unflinching willingness ‘to summarily reverse courts for wrongly denying officers the protection of qualified immunity’ but ‘rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases.’” (alteration in original) (quoting Salazar-Limon v. Houston, 137 S. Ct. 1277, 1282–83 (2017) (Sotomayor, J., dissenting from denial of certiorari))); see also Reinhardt, supra note 5, at 1244–50. This asymmetry is well illustrated by the Court’s repeated reversal — with varying levels of impatience — of cases it considers to have defined clearly established law at too high a level of generality.112×112. See White v. Pauly, 137 S. Ct. 548, 551–52 (2017); see also Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011); Schwartz, supra note 86 (“The Court has repeatedly chided lower courts for denying qualified-immunity motions . . . .”). Perhaps Taylor shows a Court that has finally decided to take a more balanced approach, policing lower courts both for being too quick to grant qualified immunity as well as too quick to deny it.