Qualified immunity is a judicial doctrine that protects public officials from liability when they violate people’s constitutional rights, unless those rights were “clearly established” at the time of their violation. Since the Supreme Court invented this “clearly established law” standard in 1982, it has issued 32 qualified immunity decisions, and only twice found that a defendant’s conduct actually violated “clearly established law” (and these two cases were decided nearly two decades ago). Thus, the practical effect of the Court’s decisions has been to make “clearly established law” more and more difficult for plaintiffs to show; today, many lower courts effectively require plaintiffs to find a prior case with nearly identical facts before they will hold that the law was clearly established. 

But this morning, for the first time in sixteen years, the Supreme Court issued a qualified immunity decision in which it held that the defendants’ actions violated “clearly established law.” The case is Taylor v. Riojas, in which the Fifth Circuit upheld a grant of immunity to prison officials who subjected Trent Taylor to horrific and inhumane prison conditions. Taylor was kept for several days in a cell that was covered floor to ceiling with the feces of the previous occupant, and where feces was packed into the water faucets, preventing him from drinking. He was then moved to a second cell, which was kept at freezing temperatures, and where a clogged drain on the floor caused raw sewage to flood the cell, forcing him to sleep in sewage. The prison officials were well aware of these conditions, and at one point laughed that Taylor was “going to have a long weekend.” Notwithstanding this obviously inhumane treatment, the Fifth Circuit granted immunity to these officials, because while “the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end,” it had not previously held that confinement in human waste for six days violated the Constitution.

Taylor filed a cert petition asking for the Supreme Court to reverse, and also to reconsider the doctrine of qualified immunity entirely. Cato, on behalf of both itself and a vast cross-ideological alliance of public policy groups, filed an amicus brief in support of Taylor’s petition. While the Court did not agree to take up this fundamental underlying question, it did summarily reverse the Fifth Circuit’s decision and remanded the case. In its per curiam opinion, the Court recognized that “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.” In other words, because this constitutional violation was so egregious and obvious, it was unnecessary for Taylor to identify a prior case with functionally identical facts to demonstrate that the defendants violated his clearly established rights.

Qualified immunity is an inherently unlawful and unjust doctrine, and it should be abolished entirely. But if the Supreme Court is unwilling to reconsider qualified immunity in full, it is encouraging at least that the Justices are cutting back on the worst excesses of the doctrine, and reaffirming the principle announced sixteen years ago in Hope v. Pelzer, that sufficiently obvious constitutional violations do not require cases exactly on point to hold that the law was clearly established.