Editor’s Note: This piece is the first in our new series covering the Supreme Court’s “shadow docket” — emergency orders and summary decisions outside the Court’s main docket of argued cases and decisions.
In November, the Supreme Court ruled in favor of the plaintiff in a qualified immunity case in Taylor v. Riojas. Commentators wondered whether Riojas would mark a reinvigoration of Hope v. Pelzer, a 2002 Supreme Court case holding that it can be clearly established that a government official’s actions were unconstitutional without a prior case involving identical facts. The Supreme Court’s decision in February to vacate the Fifth Circuit decision and remand for further consideration in McCoy v. Alamu suggests that the Court may be participating in a broader pattern of what scholars call “doctrinal equilibration” surrounding qualified immunity by incrementally modifying its current doctrine to account for social costs.
In 2016, Prince McCoy was incarcerated in a Texas state prison. The facts according to Mr. McCoy are as follows. Prison guard Tajudeen Alamu approached the cell of a neighboring prisoner, Marquieth Jackson, who threw water on Alamu. Half an hour later, Alamu returned, and Mr. Jackson again threw water on him. Mr. Jackson had blocked the front of his cell with bedsheets, so when Alamu grabbed his chemical spray and began to yell at Mr. Jackson, Alamu was unable to use the spray on him. Alamu then put the spray away, approached Mr. McCoy’s cell, and asked for his name and prisoner number. When McCoy came to the front of the cell, Alamu sprayed him directly in the face.
Alamu recalled the events differently; he claimed that as he approached McCoy, he was hit in the face with an “unknown weapon,” and, fearing that his life was in danger, involuntarily used his spray on McCoy. Documents in the record suggested that the “unknown weapon” was a wad of toilet paper.
McCoy filed suit pro se in the U.S. District Court for the Southern District of Texas against Alamu in both his official and individual capacities, contending that the spraying was excessive force in violation of the Eighth Amendment. The district court dismissed the official-capacity claim as barred by sovereign immunity, and granted summary judgment on the individual-capacity claim to Alamu on the basis of qualified immunity. Qualified immunity provides a defense for government actors. Such actors can only be held liable for unconstitutional actions if the conduct violated a constitutional right and it was clearly established that such conduct was unconstitutional. The district court held that upon balancing the factors used in Hudson v. McMillian to determine whether “force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm,” the test weighed in favor of Alamu, and thus he had not violated the Eighth Amendment.
Judge Smith wrote for the Fifth Circuit panel. The panel held that the district court had erroneously credited Alamu’s version of the facts, rather than McCoy’s, which was inappropriate at summary judgment. The Fifth Circuit then determined that McCoy’s account of the facts demonstrated a constitutional violation. Because under McCoy’s version of the facts, Alamu had used chemical spray on him solely to inflict pain, Alamu had violated the Eighth Amendment. The circuit court thus determined that the Hudson factors weighed in favor of McCoy and suggested that Alamu was motivated by the desire to harm McCoy.
Judge Smith referred to unpublished decisions of the Fifth Circuit and published decisions of other circuits to support the conclusion that using a chemical spray on an inmate in their cell, without provocation, violated the Eighth Amendment. He also dismissed Alamu’s contentions that he had reasonably perceived a threat because McCoy threw toilet paper at him, and that his use of spray was justified because Jackson had thrown liquids at him. Then, the court quickly disposed of Alamu’s contention that McCoy could not show a violation because his injuries were de minimis.
However, though the Fifth Circuit determined that the officer’s conduct was actually unconstitutional and thus satisfied the first prong of the qualified immunity test, it failed the second prong because it was not clearly established that using chemical spray on a prisoner in their cell without provocation was unconstitutional. The court quoted Supreme Court and circuit precedent stating how difficult it is to show that the particular conduct at issue clearly violated the law. The court found it persuasive that it was a single use of chemical spray and that it was not obvious that this use was more than a “de minimis” use of force. Because previous cases had not made it explicit that even a de minimis use of chemical spray could be unconstitutional the court concluded that it was not “beyond debate” that Alamu had violated the Eighth Amendment, and thus the law was not clearly established.
Judge Costa dissented. He argued that Alamu’s use of force violated clearly established law because Fifth Circuit precedent had established that using force on a non-resisting person “for no reason” violated the law. He contended that simply because the Circuit had not written a published opinion regarding pepper spray specifically did not mean that the law was not clearly established, and that the majority’s grant of immunity turned on whether the guard used “pepper spray instead of a fist, taser, or baton.” He referenced Hope v. Pelzer for the principle that when a violation of constitutional rights is “obvious,” there ought not to be immunity.
The Supreme Court granted certiorari, vacated the judgment of the Fifth Circuit, and remanded for further consideration in light of Taylor v. Riojas. The decision was part of the Court’s “shadow docket,” meaning that it was neither briefed on the merits, nor argued, nor accompanied by a written decision.
When the Supreme Court declined to grant certiorari in a series of qualified immunity cases in June, scholars, policy institutes, and news organizations suggested that the Court was opting not to take action on the controversial doctrine. The decision to grant, vacate, and remand in Taylor v. Riojas could have been understood as an aberration or a correction in an extremely egregious case, particularly because the facts in Taylor were so horrific — the plaintiff was confined to a feces-laden cell for six days, and the Fifth Circuit granted qualified immunity on the grounds that it was unclear that incarceration in such a filthy cell for “a time period so short violated the Constitution.” The decision to vacate could have been the result of the thorough criticism that the Fifth Circuit faced, even from within the federal judiciary, for granting immunity in such a case.
However, the Court’s decision to use its shadow docket in McCoy v. Alamu to again vacate an opinion of the Fifth Circuit may be an indication that the Court is considering a recalibration of the qualified immunity doctrine. Professor Richard Fallon has written extensively on his doctrinal equilibration thesis, which posits that when courts make decisions, they seek the best overall package of substantive rights, remedies, and justiciability in light of social costs. Professor Fallon has framed this as an overarching thesis, but has also specifically suggested that permutations of official immunity, including qualified immunity, are subject to equilibration to achieve a beneficial overall package of rights and remedies.
The Court’s recent decisions suggest that while it is not currently considering a wholesale change of the qualified immunity doctrine that Justices Sotomayor and Thomas have called for, it may be considering an “equilibration” of the doctrine in light of sustained criticism, the inconsistency in how the doctrine has been applied in lower courts, and the lack of certainty that the doctrine is fulfilling its intended role in constitutional litigation. The Court had consistently expanded the reach of qualified immunity in the 21st century, deciding that lower courts could decide the two definitive questions, whether a constitutional right had been violated and whether the law was clearly established, in whichever order they desired. This resulted in a reduction in judicial determinations that rights had been violated — leading to fewer “clearly established” decisions of law.
However, in the wake of the murders of George Floyd, Breonna Taylor, and countless other Black men and women, and the protests that took place across the United States this summer, the social costs of this increasingly law-enforcement-protective doctrine may have become too apparent for the Court to ignore. Investigative reporting into qualified immunity and its implications has suggested that the burden of the doctrine falls more heavily on Black people and other marginalized groups, especially as studies have shown that Black people and people of color are more likely to be subjected to police violence. McCoy and Riojas may represent the Court’s desire to rein in the doctrine and recalibrate the package of rights and remedies, having taken note of these costs.
Though the decision in McCoy is only a small step, lower courts ought to interpret it as a directive to consider with a more critical eye claims of qualified immunity. Even if it is not the dramatic shift that activists and advocates wanted for qualified immunity, it may be an indication that the Court is paying attention to public opinion — if only in an attempt to preserve a doctrine it thinks is valuable from Congressional intervention.