When Katie Sherman was nineteen years old, she was incarcerated at Trumbull County jail in Ohio, for about five months. During that time, Charles E. Drennen worked as a corrections officer in the female pod of the jail where she was housed. Several female inmates had filed complaints that they’d been harassed and threatened by Drennen, who had a reputation for glaring at the inmates while they were sleeping, but Drennen began focusing on Ms. Sherman in particular. He often made highly sexual comments to her, and on at least four or five occasions, ordered her to expose herself to him, and to touch herself sexually in front of him and other inmates. Ms. Sherman – again, then a nineteen-year-old girl – complied because she was intimidated by Drennen. She eventually attempted to file a complaint against him (even though complaints were not anonymous), but she was never given the complaint form she requested.

After she was released, Ms. Sherman — along with Michele Rafferty, her cellmate — filed a Section 1983 lawsuit, asserting (amongst many other claims) that Drennen’s sexual abuse violated her Eighth Amendment right to be free from cruel and unusual punishment. Drennen moved for summary judgment, arguing that this was “only” sexual harassment, and that because he did not physically touch Ms. Sherman himself, he hadn’t violated her constitutional rights. The district court correctly rejected this perverse “no touching” safe harbor for sexual abuse, and noted that “the facts, viewed in a light most favorable to Plaintiffs, demonstrate that Sherman only masturbated and revealed her breasts due to Drennen’s control over her.” The court likewise rejected Drennen’s claim for qualified immunity, holding that “[i]t is clearly established that sexual abuse is impermissible” and that “[a]ny reasonable prison official would understand that he has no authority to command an inmate to engage in sexual acts.”

Under normal principles of civil litigation, Ms. Sherman would then have been entitled to a jury trial on her civil rights claims. But the doctrine of qualified immunity gives defendants a one-side litigation advantage in the form of interlocutory appeals — that is, if a defendant is denied qualified immunity, they can immediately appeal that decision, before the case even goes to trial. Mr. Drennen has done exactly that, so the question of whether he should receive qualified immunity is now being briefed before the Sixth Circuit. The Cato Institute has therefore filed an amicus brief, urging the court to affirm the denial of immunity, but also to address the legal infirmities with the doctrine in general.

As I’ve discussed several times now, qualified immunity was essentially invented out of whole cloth by the Supreme Court over the last half century. The text of our primary civil rights statute – usually called “Section 1983” after its place in the federal code – makes no mention of any immunity, and the common-law background against which it was adopted did not include any freestanding defense for public officials who acted unlawfully; on the contrary, the historical rule was that public officials were strictly liable for constitutional violations. In essence, qualified immunity has become nothing more than a “freewheeling policy choice” by the Court, at odds with Congress’s judgment in enacting Section 1983.

In this particular case, the district court’s denial of immunity was correct, even under existing precedent. The case law clearly establishes that sexually abusing prisoners violates their constitutional rights (including cases like this, where the defendants did not physically touch the prisoners), and any reasonable person would have known that Drennen’s actions were impermissible. As we argue in our brief:

In cases where a defendant’s alleged violation of a plaintiff’s constitutional rights arises from the defendant’s attempt to carry out otherwise lawful duties—for example, a police officer making a snap decision on how much force is necessary in making a lawful arrest—qualified immunity “gives ample room for mistaken judgments,” Malley, 475 U.S. at 343, and thus may require more factual specificity before concluding that the law is clearly established.

…

[But] [i]n this case, Defendant-Appellant Drennen repeatedly ordered Katie Sherman—then a teenage girl under his custody and control—to expose herself and touch herself sexually in front of him and other prisoners. It beggars belief to suggest that Mr. Drennen could possibly have thought that this behavior was lawful or appropriate, especially because—as explained in detail by the additional amicus—federal and state prison regulations already make abundantly clear that prison officials may never make sexual “requests” of inmates. See Br. of Roderick & Solange MacArthur Justice Center, at 25–27. For better or worse, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley, 475 U.S. at 341—yet Mr. Drennen’s sexual abuse and harassment of Ms. Sherman easily meets both of these conditions.

In addition to affirming the denial of immunity, however, the Sixth Circuit should also discuss the maturing consensus that qualified immunity is itself unlawful, and vitiates the power of individuals to get redress for violations of their constitutional rights. Several lower court judges have already made exactly this point, either in published opinions or in the press, and it’s reasonable to expect that the Supreme Court will be highly attuned to this judicial input as they decide whether to reconsider the doctrine at the start of the new term.