Qualified immunity protects government officers from being sued for damages unless they have violated “clearly established” law.1 Following the high-profile police killings of spring 2020,2 more eyes have turned to holding officers accountable and the ways in which legal doctrines like qualified immunity prevent that from happening.3 Qualified immunity has come under fire from academics,4 judges,5 practitioners,6 legislators,7 and the public8 alike for unjustly precluding remedies for violations of people’s constitutional rights. Last Term, in Taylor v. Riojas,9 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 In doing so, the Court — for the first time — overturned a grant of qualified immunity based on the obviousness of the constitutional violation.11 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 He alleged that, in September 2013, correctional officers kept him in a pair of disturbingly unsanitary cells for six full days.13 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 Taylor did not eat or drink anything for almost four days for fear that his food or water would be contaminated.15 Officers then moved him to a second cell, which was extremely cold and lacked a bed and a toilet.16 A clogged drain in the floor provided the sole means of disposing of human waste.17 Taylor alleged officers refused to take him to the bathroom.18 Being concerned that if he urinated, the drain would overflow, he held his bladder for twenty-four hours before involuntarily urinating.19 The drain ultimately did overflow, covering the floor with feces.20 Confined without clothing, Taylor was forced to “sleep naked in sewage.”21
Taylor brought a civil rights action against the correctional officers under 42 U.S.C. § 1983.22 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 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 It also rejected Taylor’s deliberate indifference claims, finding that Taylor had not alleged more than de minimis injuries.25 The court therefore granted summary judgment to defendants on the unconstitutional conditions and deliberate indifference claims.26 Taylor appealed.
The Fifth Circuit affirmed in part and reversed in part.27 Writing for the panel, Judge Smith28 held that the correctional officers were entitled to qualified immunity on Taylor’s Eighth Amendment conditions-of-confinement claim.29 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 the law was not “clearly established” at the time of the violation.31 “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 In Davis v. Scott,33 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 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
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 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 Taylor petitioned for certiorari regarding the grant of immunity on the cell conditions claim.38
The Supreme Court vacated and remanded.39 In a short per curiam opinion,40 the Court held that “any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”41 Following Hope v. Pelzer,42 the Court reasoned that general Eighth Amendment principles made it obvious that Taylor’s cell conditions violated the Constitution.43 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 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 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
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 But, given that the Court had granted certiorari, Justice Alito agreed with the outcome.48 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 was not to the contrary, since Taylor’s cells were not just unpleasant but were “the filthiest cells imaginable.”50 Justice Thomas dissented without explanation.51
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 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 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 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 A right is clearly established if there is precedent — usually in the form of case law56 — articulating that right and thereby putting the officer on notice that his or her conduct is unlawful.57 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 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 That being said, officers “can still be on notice that their conduct violates established law even in novel factual circumstances.”60 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
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 Yet, increasingly, the Court ignored Hope or actively proposed more stringent standards.63 In Mullenix v. Luna,64 the Court stated that a right must be established “beyond debate,”65 which seems much more stringent than Hope’s fair warning standard.66 This “beyond debate” standard was first established in Ashcroft v. al-Kidd,67 in which the Supreme Court chastised lower courts for defining law at too high a level of generality.68 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 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
The Supreme Court’s confused guidance has led lower courts to adopt differing standards.71 Different panels of the same circuit have even come to different conclusions on the same set of facts.72 In Baxter v. Harris,73 police officers released a police dog, without warning, onto a man who had been sitting motionless with his hands in the air.74 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 After discovery, the police officers again argued qualified immunity and the district court again denied it.76 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
Circuit courts have adopted differing standards specifically as relates to unconstitutional conditions, like those Taylor alleged.78 In DeSpain v. Uphoff,79 for example — in which a prisoner’s cell was flooded with urine for around thirty-six hours80 — 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 Likewise, in Brooks v. Warden,82 the Eleventh Circuit held that it was not only obviously unconstitutional to force a prisoner to sit in his own waste for two days83 but also clearly established that Eighth Amendment violations “can arise from ‘conditions lacking basic sanitation.’”84 The Fifth Circuit has precedents that similarly condemn requiring prisoners to live in unsanitary conditions as unconstitutional85 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 Hope was a prisoner in Alabama.87 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 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 The Supreme Court rejected this “materially similar” standard. Citing United States v. Lanier,90 the Court stated that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.”91 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
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 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 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 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 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 the case on Hope’s facts, but ended up simply following on-point precedent.98
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 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 Lower courts have, following Hope, decided cases based on obviousness,101 and Hope is generally understood to have established obviousness as a possible basis to deny qualified immunity.102 But, while the Court has reiterated the existence of the obviousness standard,103 it had never — until Taylor — actually used it to decide a case.104
Though it is true that Taylor was based on “particularly egregious facts,”105 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 But at least one data point suggests optimism. Fewer than four months after Taylor, in McCoy v. Alamu,107 the Court reversed a grant of summary judgment on the grounds of qualified immunity for further proceedings consistent with Taylor.108 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 This type of “you know it when you see it”110 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 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 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.