Petition for Writ of Certiorari — Trent Michael Taylor, Petitioner v. Robert Riojas, et al.

No.

IN THE

Supreme Court of the United States

_______________________________

TRENT MICHAEL TAYLOR,

Petitioner,

v.

ROBERT RIOJAS, Sergeant of Corrections Officer,

Individually and in Their Official Capacity; RICARDO

CORTEZ, Sergeant of Corrections Officer, Individually and

in Their Official Capacity; STEPHEN HUNTER,

Correctional Officer, Individually and in Their Official

Capacity; LARRY DAVIDSON, Correctional Officer,

Individually and in Their Official Capacity; SHANE

SWANEY, Sergeant of Corrections Officer, Individually

and in Their Official Capacity; JOE MARTINEZ,

Respondents.

_______________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________________

PETITION FOR A WRIT OF CERTIORARI

_______________________________

Samuel Weiss

RIGHTS BEHIND BARS

416 Florida Avenue, NW

#26152

Washington, DC 20001

Kelsi Brown Corkran

Counsel of Record

Thomas M. Bondy

Tiffany R. Wright

Elizabeth R. Cruikshank

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street NW

Washington, DC 20005

(202) 339-8400

kcorkran@orrick.com

Counsel for Petitioner

i

QUESTIONS PRESENTED

Respondents are prison officials who deliberately

left Petitioner Trent Taylor naked for six days in two

filthy cells; the first cell was covered from floor to ceiling in feces from previous residents, and in the second

Petitioner had to sleep in a pool of sewage overflowing

from a clogged drain. Petitioner brought suit under 42

U.S.C. § 1983 challenging Respondents’ conduct as violating the Eighth Amendment. The Fifth Circuit concluded that the substantial risk of harm Respondents

imposed on Petitioner was “especially obvious” and

therefore unconstitutional. But the court nonetheless

granted qualified immunity to Respondents on the

theory that, although prior circuit precedent recognized the unconstitutionality of forcing prisoners to

live in human waste, those cases involved longer periods of confinement and therefore did not clearly establish a constitutional violation under these precise

circumstances. The questions presented are:

1. When the unconstitutionality of government officials’ conduct is obvious, does that suffice to render

the violation clearly established, as the Sixth, Ninth,

and Eleventh Circuits have recognized in analogous

cases, or must there also be binding precedent directly

on point, as the Fifth Circuit held below?

2. Are government officials entitled to qualified

immunity so long as there is no prior precedent recognizing the unconstitutionality of an identical fact pattern, as the Fifth and Eighth Circuits have held, or

can prior precedent clearly establish a constitutional

violation despite some factual variation, as the Third,

ii

Fourth, Seventh, Ninth, Tenth, and Eleventh Circuits

have held?

3. Should the judge-made doctrine of qualified immunity, which is not justified by reference to the text

of 42 U.S.C. § 1983 or its common law backdrop and

which has been demonstrated not to serve its policy

goals, be narrowed or abolished?

iii

PARTIES TO THE PROCEEDINGS BELOW

The parties to the proceedings below were Petitioner Trent Taylor; Respondents Robert Riojas, Ricardo Cortez, Stephen Hunter, Larry Davidson,

Shane Swaney, and Joe Martinez; and DefendantsAppellees Robert Stevens, Franco Ortiz, Creastor

Henderson, and Stephanie Orr, who are not part of

this appeal.

iv

RELATED PROCEEDINGS

Taylor v. McDonald, No. 18-11572 (5th Cir.)

(briefing complete)

Taylor v. Olmstead, No. 17-10342 (5th Cir.) (judgment entered June 28, 2018)

Taylor v. Stevens, No. 17-10253 (5th Cir.) (judgment entered Dec. 20, 2019)

Taylor v. Stevens, No. 16-11355 (5th Cir.) (judgment entered Dec. 21, 2017)

Taylor v. Williams, No. 16-10498 (5th Cir.) (judgment entered Nov. 3, 2017)

Taylor v. Stevens, No. 14-CV-0149 (N.D. Tex.)

(partial final judgment entered Jan. 5, 2017)

v

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................................... i

PARTIES TO THE PROCEEDINGS BELOW ........ iii

RELATED PROCEEDINGS .................................... iv

TABLE OF AUTHORITIES .................................. viii

INTRODUCTION ..................................................... 1

OPINIONS AND ORDERS BELOW ........................ 3

JURISDICTION ........................................................ 4

STATUTORY PROVISIONS INVOLVED ............... 4

STATEMENT OF THE CASE .................................. 5

Respondents Force Taylor To Live And

Sleep In Other Inmates’ Excrement

For Nearly A Week........................................ 5

Taylor Files Suit Challenging The

Constitutionality Of Respondents’

Conduct, And The District Court Holds

That Respondents Are Entitled to

Qualified Immunity ...................................... 7

The Fifth Circuit Concludes That

Respondents’ Conduct Violated The

Eighth Amendment, But Nonetheless

Holds That Respondents Are Entitled

To Qualified Immunity On Taylor’s

Cell Conditions Claim ................................... 8

REASONS FOR GRANTING THE WRIT.............. 10

vi

I.

The Decision Below Conflicts With This

Court’s Precedent That “Obvious”

Constitutional Violations Are Clearly

Established Even Absent Factually

Similar Precedent And Splits From

Decisions Of Other Circuits Denying

Qualified Immunity In Analogous

Circumstances. ................................................. 10

A. The Fifth Circuit’s holding that

Respondents are entitled to qualified

immunity despite the obvious

unconstitutionality of their conduct

conflicts with this Court’s precedent. ......... 11

B. The Fifth Circuit’s holding that

Respondents are entitled to qualified

immunity despite the obvious

unconstitutionality of their conduct

conflicts with decisions of the Sixth,

Ninth, and Eleventh Circuits denying

qualified immunity on analogous facts. ..... 15

II. The Decision Below Further Entrenches A

Deep And Acknowledged Circuit Split On

The Degree Of Factual Similarity To Prior

Precedent Required For A Constitutional

Right To Be Clearly Established. .................... 17

III. This Court Should Grant Review To

Abolish Or Substantially Curtail Qualified

Immunity. ......................................................... 24

A. Qualified immunity doctrine is

inconsistent with § 1983’s text and

common law backdrop. ................................ 24

vii

B. Qualified immunity does not further

the policy goals it was designed to

achieve. ........................................................ 30

C. Qualified immunity leaves significant

violations of important constitutional

rights without remedy. ............................... 32

IV. This Case Is The Ideal Vehicle To Resolve

The Questions Presented. ................................ 34

CONCLUSION ........................................................ 37

APPENDIX A

Opinion of the Fifth

Circuit (December 20,

2019) ........................................ 1a

APPENDIX B

Order of the United

States District Court for

the Northern District of

Texas (January 5, 2017) ....... 29a

APPENDIX C

Order of the United

States District Court for

the Northern District of

Texas (January 30, 2017) ..... 66a

APPENDIX D

Order of the Fifth Circuit

Denying Rehearing

(January 29, 2020) ................ 70a

viii

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Creighton,

483 U.S. 635 (1987) ..............................................21

Barker v. Goodrich,

649 F.3d 428 (6th Cir. 2011)................................16

Beckwith v. Bean,

98 U.S. 266 (1878) ................................................27

Berkshire v. Beauvais,

928 F.3d 520 (6th Cir. 2019)................................16

Brooks v. Warden,

800 F.3d 1295 (11th Cir. 2015).... 13, 16, 18, 19, 22

Brosseau v. Haugen,

543 U.S. 194 (2004) ........................................11, 15

Buckley v. Fitzsimmons,

509 U.S. 259 (1993) ..............................................26

Budd v. Motley,

711 F.3d 840 (7th Cir. 2013)................................18

Chandler v. Baird,

926 F.2d 1057 (11th Cir. 1991)............................22

City of Escondido v. Emmons,

139 S. Ct. 500 (2019)............................................12

ix

Davis v. Clifford,

825 F.3d 1131 (10th Cir. 2016)............................21

Davis v. Scott,

157 F.3d 1003 (5th Cir. 1998)..............................13

DeSpain v. Uphoff,

264 F.3d 965 (10th Cir. 2001).................. 13, 18, 21

District of Columbia v. Wesby,

138 S. Ct. 577 (2018)............................................12

Filarsky v. Delia,

566 U.S. 377 (2012) ..............................................26

Forrester v. White,

484 U.S. 219 (1988) ..............................................30

Fruit v. Norris,

905 F.2d 1147 (8th Cir. 1990)..............................19

Gates v. Cook,

376 F.3d 323 (5th Cir. 2004)..........................13, 18

Gregoire v. Biddle,

177 F.2d 579 (2d Cir. 1949) .................................30

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ........................................25, 30

Hawkins v. Hall,

644 F.2d 914 (1st Cir. 1981) ................................18

Hite v. Leeke,

564 F.2d 670 (4th Cir. 1977)................................18

x

Hope v. Pelzer,

536 U.S. 730 (2002) ...................... 11, 12, 13, 14, 15

Hoptowit v. Spellman,

753 F.2d 779 (9th Cir. 1985)................................18

Horvath v. City of Leander,

946 F.3d 787 (5th Cir. 2020)................................29

Howard v. Adkison,

887 F.2d 134 (8th Cir. 1989)................................18

Imbler v. Pachtman,

424 U.S. 409 (1976) ..............................................25

Inmates of Occoquan v. Barry,

844 F.2d 828 (D.C. Cir. 1988) ..............................18

Ioane v. Hodges,

939 F.3d 945 (9th Cir. 2018)................................23

Irish v. Fowler,

No. 15-CV-0503 (JAW), 2020 WL 535961

(D. Me. Feb. 3, 2020) ............................................29

Johnson v. Pelker,

891 F.2d 136 (7th Cir. 1989)................................19

Kane v. Barger,

902 F.3d 185 (3d Cir. 2018) .................................22

Kelsay v. Ernst,

933 F.3d 975 (8th Cir. 2019).................... 20, 29, 33

Kisela v. Hughes,

138 S. Ct. 1148 (2018)....................................20, 29

xi

LaReau v. MacDougall,

473 F.2d 974 (2d Cir. 1972) ..................... 13, 18, 19

Malley v. Briggs,

475 U.S. 335 (1986) ..............................................26

Manzanares v. Roosevelt Cty. Adult Det. Ctr.,

331 F. Supp. 3d 1260 (D.N.M. 2018) ...................29

McBride v. Deer,

240 F.3d 1287 (10th Cir. 2001)............................22

McCord v. Maggio,

927 F.2d 844 (5th Cir. 1991)..........................18, 19

McCoy v. Alamu,

950 F.3d 226 (5th Cir. 2020).................... 19, 20, 29

Mitchell v. Harmony,

54 U.S. 115 (1851) ................................................27

Morrow v. Meachum,

917 F.3d 870 (5th Cir. 2019)................................19

Myers v. Anderson,

238 U.S. 368 (1915) ..............................................27

Owen v. City of Independence,

445 U.S. 622 (1980) ........................................25, 31

Parrish v. Johnson,

800 F.2d 600 (6th Cir. 1986)................................18

Pearson v. Callahan,

555 U.S. 223 (2009) ..............................................25

xii

Phillips v. Cmty. Ins. Corp.,

678 F.3d 513 (7th Cir. 2012)................................23

Pierson v. Ray,

386 U.S. 547 (1967) .................................. 24, 26, 30

Richardson v. McKnight,

521 U.S. 399 (1997) ........................................30, 32

Rodriguez v. Swartz,

899 F.3d 719 (9th Cir. 2018)................................29

Russell v. Wayne Cty. Sch. Dist.,

No. 17-CV-154 (CWR) (JCG), 2019 WL

3877741 (S.D. Miss. Aug. 16, 2019) ....................29

Safford Unified Sch. Dist. No. 1 v. Redding,

557 U.S. 364 (2009) ..............................................12

Saucier v. Katz,

533 U.S. 194 (2001) ........................................11, 25

Scheuer v. Rhodes,

416 U.S. 232 (1974) ..............................................30

Tenney v. Brandhove,

341 U.S. 367 (1951) ..............................................25

Thompson v. Clark,

No. 14-CV-7349 (JBW), 2018 WL

3128975 (E.D.N.Y. June 26, 2018) ......................30

Thompson v. Cope,

900 F.3d 414 (7th Cir. 2018)................................29

xiii

Thompson v. Virginia,

878 F.3d 89 (4th Cir. 2017)..................................22

Tolan v. Cotton,

572 U.S. 650 (2014) ................................................5

United States v. Lanier,

520 U.S. 259 (1997) ..............................................11

Ventura v. Rutledge,

398 F. Supp. 3d 682 (E.D. Cal. 2019) ..................29

Weathers v. Loumakis,

742 F. App’x 332 (9th Cir. 2018) .........................17

White v. Pauly,

137 S. Ct. 548 (2017)............................................12

Wilkins v. Gaddy,

559 U.S. 34 (2010) ................................................20

Wyatt v. Cole,

504 U.S. 158 (1992) ........................................23, 29

Young v. Quinlan,

960 F.2d 351 (3d Cir. 1992) ..................... 13, 18, 19

Zadeh v. Robinson,

928 F.3d 457 (5th Cir. 2019).............. 17, 23, 29, 33

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017)..........................................29

xiv

Constitutional Provisions

U.S. Const. amend. XIII .................. 1, 3, 4, 7, 9, 14, 16

17, 18, 19, 22, 28

Statutes

28 U.S.C. § 1254(1)......................................................4

42 U.S.C. § 1983 ...................... 1, 2, 4, 7, 16, 23, 24, 25

26, 27, 28, 29, 30, 33

Other Authorities

William Baude, Is Qualified Immunity

Unlawful?, 106 Calif. L. Rev. 45

(2018) ........................................................ 26, 27, 28

David E. Engdahl, Immunity and

Accountability for Positive Governmental

Wrongs, 44 U. Colo. L. Rev. 1 (1972)...................26

John C. Jeffries, Jr., Reversing the Order of

Battle in Constitutional Torts, 2009 Sup.

Ct. Rev. 115 (2009)...............................................33

John C. Jeffries, Jr., What’s Wrong with

Qualified Immunity?, 62 Fla. L. Rev.

851 (2010) .............................................................23

Aaron L. Nielson & Christopher J. Walker,

The New Qualified Immunity, 89 S.

Calif. L. Rev. 1 (2015) ..........................................33

xv

James E. Pfander & Jonathan L. Hunt,

Public Wrongs and Private Bills:

Indemnification and Government

Accountability in the Early Republic, 85

N.Y.U. L. Rev. 1862 (2010) ............................26, 27

Margo Schlanger, Inmate Litigation, 116

Harv. L. Rev. 1555 (2003) ....................................32

Joanna C. Schwartz, How Qualified

Immunity Fails, 127 Yale L.J. 2 (2017) ..............33

Joanna C. Schwartz, Police Indemnification,

89 N.Y.U. L. Rev. 885 (2014) .........................31, 32

Joanna C. Schwartz, The Case Against

Qualified Immunity, 93 Notre Dame L.

Rev. 1797 (2018) ..................................................28

Joseph Story, Commentaries on the

Constitution of the United States (4th ed.

1873) .....................................................................27

1

INTRODUCTION

Petitioner Trent Taylor entered a Texas psychiatric prison unit to receive mental health treatment following a suicide attempt. Instead of providing that

treatment, prison officials (Respondents here)

stripped Taylor of his clothing, including his underwear, and left him naked for nearly a week in filthy

cells, forcing him to live and sleep in the urine and

feces of the cells’ prior occupants. Taylor brought this

suit under 42 U.S.C. § 1983 challenging Respondents’

conduct as violating the Eighth Amendment.

In its decision below, the Fifth Circuit concluded

that Taylor met his summary judgment burden of establishing that Respondents violated the Eighth

Amendment, explaining that the substantial health

risk they imposed on Taylor was “especially obvious”

under these circumstances. The court nonetheless

held that Respondents were entitled to qualified immunity because circuit precedent recognizing the unconstitutionality of forcing prisoners to live in human

waste involved a longer period of confinement and

therefore did not clearly establish a constitutional violation under these precise circumstances.

This Court should review the decision below for

three reasons.

First, having determined that the substantial risk

posed to Taylor by Respondents’ conduct was “especially obvious,” the Fifth Circuit strayed from this

Court’s precedent—and split from decisions of the

Sixth, Ninth, and Eleventh Circuits addressing analogous fact patterns—in failing to recognize that the

2

obviousness of that risk rendered Respondents’ conduct a clearly established constitutional violation, regardless of the existence of prior case law addressing

similar facts.

Second, the decision below further entrenches a

deep and acknowledged circuit split over how factually similar a prior case must be to clearly establish a

constitutional violation for qualified immunity purposes. The Fifth and Eighth Circuits stand at one end

of the divide, requiring precedent with nearly identical facts to establish a constitutional violation. In contrast, the Third, Fourth, Seventh, Ninth, Tenth, and

Eleventh Circuits hold that a constitutional violation

may be clearly established by prior precedent that

does not precisely mirror the facts at hand. Absent

further guidance from this Court, the lower courts

will continue to struggle to apply the “clearly established” prong of the qualified immunity inquiry.

Third, this case presents an opportunity for the

Court to abolish or significantly curtail qualified immunity. A growing chorus of critics—including members of this Court, numerous other federal judges, and

legal scholars across the ideological spectrum—has

demonstrated that qualified immunity is grounded in

neither the text of § 1983 nor the common law of official liability that existed when that statute was enacted. What began as an attempt by this Court to

apply a narrow good-faith defense to a false arrest

claim—because bad faith is an element of that claim

at common law—has since been transformed by judicial policy preference into a near-total liability shield

across all § 1983 claims. And without justification—

3

the near-universal indemnification of government officials means that qualified immunity is unnecessary

to serve its primary purpose of protecting officials

from the risk of financial liability when exercising

their discretion in the line of duty. Qualified immunity also stagnates the development of constitutional

law by encouraging courts to perpetually avoid determining the constitutionality of challenged practices

by instead simply finding that any violation is not

clearly established. This Court should revisit qualified immunity in light of the myriad weighty arguments favoring its abolition.

This case is an ideal vehicle to consider these important issues. Because the Fifth Circuit found that

Respondents’ conduct violated Taylor’s Eighth

Amendment rights, the sole and dispositive question

is whether Respondents are entitled to qualified immunity. There are no procedural barriers to this

Court’s review. And the Fifth Circuit’s extraordinary

conclusion—that Respondents did not have “fair

warning” that it would violate the Eighth Amendment to force an incarcerated psychiatric patient to

live and sleep in other people’s excrement for six

days—illustrates that modern qualified immunity jurisprudence is fundamentally flawed and in need of

reconsideration by this Court.

OPINIONS AND ORDERS BELOW

The opinion of the Court of Appeals is reported at

946 F.3d 211 and is reproduced at Pet. App. 1a-28a.

The order of the district court granting partial summary judgment is not officially reported but may be

found at 2017 WL 11507190 and is reproduced at Pet.

4

App. 29a-65a. The unpublished order of the Court of

Appeals denying the petition for panel rehearing and

rehearing en banc is reproduced at Pet. App. 70a-72a.

JURISDICTION

The Fifth Circuit entered its judgment on December 20, 2019. Pet. App. 1a. A timely petition for panel

rehearing and rehearing en banc was denied on January 29, 2020. Pet. App. 72a. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The Eighth Amendment to the U.S. Constitution

provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.

42 U.S.C. § 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of Columbia, subjects, or causes to be subjected,

any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress….

5

STATEMENT OF THE CASE1

Respondents Force Taylor To Live And Sleep In

Other Inmates’ Excrement For Nearly A Week

At the time of the events giving rise to this suit,

Petitioner Trent Taylor was incarcerated in the John

T. Montford Unit of the Texas Department of Criminal Justice (Montford). Pet. App. 3a. Respondents

Robert Riojas, Ricardo Cortez, Stephen Hunter, Larry

Davidson, Shane Swaney, and Joe Martinez were officials at Montford during that period. Id.

Taylor was transferred to Montford, a psychiatric

prison unit, for mental health treatment following a

suicide attempt. Electronic Record on Appeal (R.O.A.)

49. Instead of providing that treatment, Respondents

stripped Taylor of his clothing, including his underwear, and placed him in a cell where almost every surface—including the floor, ceiling, windows, and

walls—was covered in “massive amounts” of human

feces belonging to previous occupants. Pet. App. 7a8a; R.O.A. 50. The smell was overpowering and could

be discerned from the hallway. Pet. App. 8a; R.O.A.

50. Taylor was unable to eat because he feared that

any food in the cell would become contaminated. Pet.

App. 8a. Feces “packed inside the water faucet” prevented him from drinking water for days. Id. Respondents were aware the cell was coated in

1 These facts are drawn primarily from the decision below

and the district court’s summary judgment order. Because this

case was resolved at summary judgment, the facts and inferences are viewed in the light most favorable to Taylor. Tolan v.

Cotton, 572 U.S. 650, 657 (2014) (per curiam).

6

excrement: One Respondent asked several others

whether Taylor’s cell was the one covered in feces; another answered, “Yes, he’s going to have a long weekend,” and the officials laughed. Id.; R.O.A. 50. Taylor

asked numerous prison staff members to clean the

cell, but they refused. Pet. App. 8a n.8. When Taylor

complained of the conditions, Respondent Swaney responded, “Dude, this is Montford, there is s*** in all

these cells from years of psych patients.” Pet. App. 8a

(brackets omitted).

Four days later, Respondents removed Taylor

from the first cell; they then transferred him, still naked, to a different “seclusion cell.” Pet. App. 8a, 12a.

Montford inmates referred to this cell as “the cold

room” because of its frigid temperature; Swaney told

Taylor he hoped Taylor would “f***ing freeze” there.

Pet. App. 8a n.9. This cell had no toilet, water fountain, or furniture. Pet. App. 8a. It contained only a

drain on the floor, which was clogged, leaving a standing pool of raw sewage in the cell. Pet. App. 8a. Because the cell lacked a bunk, Taylor had to sleep on

the floor, naked and soaked in sewage, with only a suicide blanket for warmth. Pet. App. 8a-9a, 33a.

Taylor spent three days in the seclusion cell, during which Respondents repeatedly told him that if he

needed to urinate, he would not be escorted to the restroom but should urinate into the backed-up drain.

Pet. App. 8a. Taylor refused, not wanting to add to the

pool of sewage in which he had to sleep naked. Pet.

App. 8a-9a. Instead, Taylor avoided urinating for 24

hours until he involuntarily urinated on himself; he

attempted to use the clogged drain as instructed, but

Taylor’s urine “mix[ed] with the raw sewage and r[a]n

7

all over [his] feet.” Pet. App. 9a, 19a (alterations in

original). As a result of holding his urine in a bacterialaden environment for an extended period, Taylor developed a distended bladder requiring catheterization. Id.

Taylor

Files

Suit

Challenging

The

Constitutionality Of Respondents’ Conduct, And

The District Court Holds That Respondents Are

Entitled to Qualified Immunity

Proceeding pro se, Taylor filed suit against Respondents under 42 U.S.C. § 1983, alleging, among

other things, that Respondents violated the Eighth

Amendment by confining him in such squalid conditions and that certain Respondents had shown deliberate indifference to his serious medical needs by

refusing to allow him to use a bathroom for 24 hours,

also in violation of the Eighth Amendment. Pet. App.

9a, 30a-34a. The district court denied Respondents’

motion to dismiss these claims as insufficiently

pleaded, Pet. App. 30a-31a; R.O.A. 513, but later

granted summary judgment to Respondents on qualified immunity grounds, Pet. App. 5a, 31a-32a.

Addressing Taylor’s cell conditions claim, the

court acknowledged that Respondents “provided little

in the way of specific summary judgment evidence to

support their assertion that the cells were not, in fact,

covered with feces.” Pet. App. 47a. The court nonetheless concluded the cell conditions did not “violate the

Eighth Amendment’s prohibition against cruel and

unusual punishment” because Taylor was “exposed to

the alleged conditions for only a matter of days,” Respondents “did attempt to clean the [second cell] by

8

using a towel to wipe the sewage from the floor,” and

Taylor did not allege any lasting injury from the exposure. Pet. App. 49a-50a. Accordingly, the district

court held that Taylor “failed to rebut [Respondents’]

assertion of qualified immunity on his conditions-ofconfinement claim.” Pet. App. 50a-51a.

The district court also granted summary judgment to Respondents on Taylor’s claim that they were

deliberately indifferent to his serious medical needs

when they denied him bathroom access for 24 hours.

Pet. App. 51a-53a. Though the court acknowledged

that Respondents did not “directly deny [Taylor’s] allegations that they refused him the opportunity to use

the restroom … or that they advised him to ‘pee in the

drain like everyone else,’” the court concluded that

Taylor had not adequately established his claim or

“demonstrated that it was not physically possible for

him to relieve himself in the drain as instructed and

thus prevent his discomfort and eventual bladder distension.” Pet. App. 52a-53a.2

The Fifth Circuit Concludes That Respondents’

Conduct Violated The Eighth Amendment, But

Nonetheless Holds That Respondents Are

2 Because the district court denied summary judgment with

respect to a claim not at issue here—an excessive force claim

against a different correctional officer arising from a separate

event—the court entered a partial final judgment pursuant to

Rule 54(b) of the Federal Rules of Civil Procedure on Taylor’s cell

conditions and medical needs claims. The excessive force claim

proceeded to trial, where a jury found that the officer “maliciously and sadistically” used excessive force against Taylor but

awarded no damages.

9

Entitled To Qualified Immunity On Taylor’s Cell

Conditions Claim

On appeal, the Fifth Circuit reversed the grant of

summary judgment as to Taylor’s deliberate indifference claim against certain Respondents for denying

him bathroom access. Pet. App. 18a-24a. The court explained that a reasonable jury could find that Respondents knowingly put Taylor at risk of substantial

harm when they refused to take him to the bathroom

for 24 hours and instead insisted that he urinate in a

drain in his cell that was already overflowing with

sewage. Pet. App. 23a & n.21. The court of appeals

further held that Respondents were not entitled to

qualified immunity because circuit precedent clearly

established a constitutional violation under almost

identical circumstances. Pet. App. 21a-22a.3

The Fifth Circuit affirmed the grant of summary

judgment, however, with respect to Taylor’s cell conditions claim. Pet. App. 7a, 28a. As with the bathroom

claim, the court held that Taylor had established a

genuine factual dispute as to whether Respondents

violated the Eighth Amendment by confining Taylor

in “squalid cells” for nearly a week. Pet. App. 12a-15a.

The court explained that the “risk posed by Taylor’s

exposure to bodily waste was … especially obvious

here, as [Respondents] forced Taylor to sleep naked

on a urine-soaked floor,” and “failed to remedy the

3 Taylor’s live claim of deliberate indifference to serious

medical needs involves only Respondents Riojas and Martinez

and Defendant-Appellee Franco Ortiz. Respondents Swaney,

Cortez, Hunter, and Davidson are not parties to that claim.

10

paltry conditions.” Pet. App. 15a-16a (internal quotation mark omitted).

The Fifth Circuit nonetheless found Respondents

entitled to qualified immunity on Taylor’s cell conditions claim, holding that the constitutional violation

was not “clearly established at the time.” Pet. App.

16a-17a. The court observed that 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. Pet. App. 17a. Accordingly, the court concluded, Respondents lacked

“‘fair warning’ that their specific acts were unconstitutional.” Pet. App. 17a.

Taylor timely filed a petition for rehearing en

banc with respect to his cell conditions claim. The

Fifth Circuit denied the petition on January 29, 2020.

Pet. App. 70a-72a. This petition followed.

REASONS FOR GRANTING THE WRIT

I.

The Decision Below Conflicts With This

Court’s

Precedent

That

“Obvious”

Constitutional Violations Are Clearly

Established Even Absent Factually Similar

Precedent And Splits From Decisions Of

Other Circuits Denying Qualified Immunity

In Analogous Circumstances.

Having recognized that the substantial risk of serious harm to Taylor from the squalid cell conditions

imposed by Respondents was “especially obvious

here,” the Fifth Circuit should have followed this

11

Court’s guidance that the unconstitutionality of truly

egregious conduct may be clearly established without

any case law directly on point. The Fifth Circuit’s

holding that Respondents are entitled to qualified immunity despite the obviousness of the constitutional

violation conflicts not only with this Court’s precedent, but also with decisions of the Sixth, Ninth, and

Eleventh Circuits involving analogous fact patterns.

A. The Fifth Circuit’s holding that

Respondents are entitled to qualified

immunity

despite

the

obvious

unconstitutionality of their conduct

conflicts with this Court’s precedent.

The animating concern underlying modern qualified immunity jurisprudence is that officers must be

“on notice their conduct is unlawful” before being subjected to suit for damages. Saucier v. Katz, 533 U.S.

194, 206 (2001). That is, officers must have “fair warning that their conduct violated the Constitution.”

Hope v. Pelzer, 536 U.S. 730, 741 (2002). Often, this

fair warning is provided by prior cases establishing

the unlawfulness of the conduct. But an official’s conduct may also be so “obvious[ly]” illegal that no “body

of relevant case law” is necessary. Brosseau v.

Haugen, 543 U.S. 194, 199 (2004) (per curiam) (citing

Hope, 536 U.S. at 738); see also Hope, 536 U.S. at 753

(Thomas, J., dissenting) (“Certain actions so obviously run afoul of the law that an assertion of qualified immunity may be overcome even though court

decisions have yet to address ‘materially similar’ conduct.”); United States v. Lanier, 520 U.S. 259, 270-71

(1997) (particularly egregious conduct may be clearly

unconstitutional even if “the very action in question

12

has [not] previously been held unlawful”). Recent decisions of this Court have reaffirmed that obviously

illegal conduct can defeat qualified immunity. See

City of Escondido v. Emmons, 139 S. Ct. 500, 504

(2019) (per curiam); District of Columbia v. Wesby,

138 S. Ct. 577, 590 (2018); White v. Pauly, 137 S. Ct.

548, 552 (2017) (per curiam).

The obviousness principle follows directly from

the fair warning requirement: For conduct that is “obviously” illegal, “officials can still be on notice that

their conduct violates established law even in novel

factual circumstances.” Hope, 536 U.S. at 741. The

principle is also essential to ensure that the most

egregiously violative conduct gives rise to liability.

Obviously unconstitutional conduct is by its nature

less likely to lead to the development of precedent to

serve as clearly established law: Because it is obviously unconstitutional, officials are—or should be—

less likely to do it. See Safford Unified Sch. Dist. No.

1 v. Redding, 557 U.S. 364, 377-78 (2009) (“[O]utrageous conduct obviously will be unconstitutional, this

being the reason … that the easiest cases don’t even

arise.” (internal quotation marks and brackets omitted)).

If there is any circumstance that involves obviously illegal conduct, it is deliberately forcing a person to live and sleep naked in squalid cells

contaminated by massive amounts of feces and urine

left by previous occupants, without access to food or

13

drinking water.4 Indeed, the Fifth Circuit acknowledged that the risk of serious bodily harm to Taylor

from the cell conditions Respondents imposed on him

was “especially obvious here.” Pet. App. 15a-16a. The

court’s holding that Respondents are nonetheless entitled to qualified immunity is inconsistent with this

Court’s direction that claims describing obviously unconstitutional behavior overcome qualified immunity

even absent case law directly on point.

This Court first articulated the principle that obviously illegal conduct defeats qualified immunity in

a case involving circumstances similar to Taylor’s. In

Hope v. Pelzer, Hope, an incarcerated plaintiff,

4 In affirming the grant of qualified immunity, the Fifth Circuit cited Davis v. Scott, 157 F.3d 1003 (5th Cir. 1998), in which

the court found no constitutional violation when a prisoner was

kept in a filthy cell for three days. Davis, however, involved a

very different fact pattern and casts no doubt on the obviousness

of the constitutional violation here. In Davis, the officers had

given the plaintiff supplies to clean the cell, “mitigating any intolerable conditions.” Id. at 1006. In addition, the officers had

put the plaintiff in the “crisis management” cell because he was

throwing substances at them, id. at 1004; he was not placed into

squalid conditions simply because he was a psychiatric patient.

Moreover, Davis preceded this Court’s decision in Hope, in which

this Court declared analogous but less egregious mistreatment

to be so obviously unconstitutional that no prior precedent was

required to establish the violation. And Davis cuts against the

great weight of precedent holding that it is impermissible to expose prisoners to their own waste and the waste of others. See,

e.g., Brooks v. Warden, 800 F.3d 1295, 1303-04 (11th Cir. 2015);

DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001); Gates v.

Cook, 376 F.3d 323, 334 (5th Cir. 2004); Young v. Quinlan, 960

F.2d 351, 365 (3d Cir. 1992); LaReau v. MacDougall, 473 F.2d

974, 978 (2d Cir. 1972).

14

brought an Eighth Amendment claim after prison officials handcuffed him to a “hitching post” as punishment for “a wrestling match with a guard.” 536 U.S.

at 734. Hope was left shirtless in the sun and cuffed

to the post for seven hours, given water only once or

twice, and provided no bathroom breaks. Id. at 73435. A guard taunted Hope by giving water to some

nearby dogs instead of to him. Id. at 735.

This Court readily concluded that these conditions were actionable under the Eighth Amendment.

Id. at 738. It further held that the unconstitutionality

of the prison officials’ actions was clearly established.

Id. at 744. After noting that circuit precedent established the unconstitutionality of the defendants’ actions, the Court found a second, independent basis for

denying qualified immunity:

The obvious cruelty inherent in this practice

should have provided respondents with some

notice that their alleged conduct violated

Hope’s constitutional protection against cruel

and unusual punishment. Hope was treated

in a way antithetical to human dignity—he

was hitched to a post for an extended period

of time in a position that was painful, and under circumstances that were both degrading

and dangerous.

Id. at 745.

Hope is squarely on point. Taylor’s treatment is

evocative of Hope’s: the degradation, humiliation, and

risk of bodily harm; the lack of drinking water; the

15

denial of bathroom breaks creating “a risk of particular discomfort and humiliation,” id. at 738; extreme

temperature conditions; nudity; and the taunting of

guards. But in its particulars, Taylor’s treatment was

far worse: Taylor was abused in this manner for 20

times as long as Hope was, and while Hope was subjected to the hitching post as punishment for fighting

a guard, Taylor was forced to sleep naked in sewage,

unable to eat or drink for days, merely because he required psychiatric treatment for suicidality during

his incarceration. See R.O.A. 49. Though not amenable to quantification, it is difficult to imagine many

more degrading and humiliating affronts to the dignity of an incarcerated person than what Taylor experienced. If Hope stands for anything, it must mean

that the “especially obvious” risk of harm to Taylor,

Pet. App. 15a-16a, clearly established a constitutional

violation.

B. The Fifth Circuit’s holding that

Respondents are entitled to qualified

immunity

despite

the

obvious

unconstitutionality of their conduct

conflicts with decisions of the Sixth,

Ninth, and Eleventh Circuits denying

qualified immunity on analogous facts.

The Fifth Circuit’s holding also directly conflicts

with decisions of the Sixth, Ninth and Eleventh Circuits denying qualified immunity under similar circumstances because the constitutional violation was

so obvious as to be clearly established even absent a

“body of relevant case law.” Brosseau, 543 U.S. at 199.

16

In Brooks v. Warden, the Eleventh Circuit considered § 1983 claims asserted by a prisoner who had

been confined to a hospital bed for two days in a

jumpsuit filled with his own waste. 800 F.3d at 1298.

Finding the Eighth Amendment violation clearly established, the Eleventh Circuit explained that no factually analogous precedent was necessary because it

was a “rare case of obvious clarity.” Id. at 1307 (internal quotation marks and brackets omitted). The court

observed that “[f]orcing a prisoner to soil himself over

a two-day period … create[d] an obvious health risk

and [wa]s an affront to human dignity,” while

“[l]aughing at and ridiculing an inmate who [wa]s

forced to sit in his own feces for an extended period of

time [wa]s not merely unreasonable, but an act of ‘obvious cruelty.’” Id.

Similarly, the Sixth Circuit has held that a prison

official was on “fair warning” that it violated the

Eighth Amendment to “le[ave] [a plaintiff] to lay in

his own urine and feces for several hours,” citing

Hope’s admonition that certain misconduct is “obvious[ly]” unconstitutional. Berkshire v. Beauvais, 928

F.3d 520, 537-38 (6th Cir. 2019); cf. Barker v.

Goodrich, 649 F.3d 428, 435, 437 (6th Cir. 2011) (noting that the “obvious cruelty” inherent in restraining

an inmate in an uncomfortable position, denying access to water, and denying “even the basic dignity of

relieving himself” warned defendants “that they were

violating the prohibition against cruel and unusual

punishment”).

Evaluating analogous—though less sustained

and egregious—circumstances, the Ninth Circuit

reached the same conclusion. In Weathers v.

17

Loumakis, an incarcerated plaintiff alleged that he

had twice been made to spend hours cleaning sewage

overflow from a malfunctioning toilet with only latex

gloves as protection. 742 F. App’x 332, 333 (9th Cir.

2018) (unpublished). Citing Hope, the Ninth Circuit

held that while it had “never squarely confronted a

case with facts precisely like these,” “[h]aving to

spend hours wading through water filled with human

waste” was clearly unconstitutional. Id. at 333-34.

The Fifth Circuit disregarded this Court’s clear

direction in Hope and broke with its sister circuits in

requiring precedent establishing that the cell conditions here violated the Eighth Amendment despite

the obvious unconstitutionality of forcing Taylor to

live and sleep naked in human waste. This Court

should grant review (or, alternatively, summarily reverse) to restore uniformity among the lower courts

on this important aspect of qualified immunity doctrine.

II. The Decision Below Further Entrenches A

Deep And Acknowledged Circuit Split On

The Degree Of Factual Similarity To Prior

Precedent Required For A Constitutional

Right To Be Clearly Established.

The decision below also entrenches a second conflict among the circuits that demands this Court’s attention. “[C]ourts of appeals are divided—

intractably—over precisely what degree of factual

similarity must exist” to find a clearly established

constitutional violation. Zadeh v. Robinson, 928 F.3d

457, 479 (5th Cir. 2019) (Willett, J., concurring in

part, dissenting in part). The Fifth Circuit stands at

18

one end of the spectrum in applying a remarkably myopic approach to qualified immunity, which permits

government officials to avoid accountability for patently unconstitutional behavior so long as there is no

published precedent recognizing that the exact conduct under identical circumstances violates the Constitution.

This case is emblematic of the Fifth Circuit’s approach. The federal circuits—including the Fifth Circuit—uniformly agree that dangerously unsanitary

prison conditions may violate the Eighth Amendment.5 Among the conditions that raise constitutional

concerns, there is broad consensus that “[e]xposure to

human waste, like few other conditions of confinement, evokes … [the] standards of dignity embodied

in the Eighth Amendment.” DeSpain, 264 F.3d at 974;

see, e.g., Gates, 376 F.3d at 334 (“No one in civilized

society should be forced to live under conditions that

force exposure to another person’s bodily wastes.”);

Young, 960 F.2d at 365 (“It would be an abomination

of the Constitution to force a prisoner to live in his

own excrement for four days in a stench that not even

5 See LaReau, 473 F.2d at 978; Hite v. Leeke, 564 F.2d 670,

672 (4th Cir. 1977); Hawkins v. Hall, 644 F.2d 914, 918 (1st Cir.

1981); Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985);

Parrish v. Johnson, 800 F.2d 600, 609 (6th Cir. 1986); Inmates

of Occoquan v. Barry, 844 F.2d 828, 836 (D.C. Cir. 1988); Howard

v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989); McCord v. Maggio,

927 F.2d 844, 847 (5th Cir. 1991); Young, 960 F.2d at 365; DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001); Budd v. Motley, 711 F.3d 840, 843 (7th Cir. 2013); Brooks, 800 F.3d at 130304.

19

a fellow prisoner could stand.”).6 Despite this consensus—including Fifth Circuit precedent that confinement in a sewage-flooded cell violates the Eighth

Amendment, see McCord, 927 F.2d at 847-48—the

Fifth Circuit in this case found no violation of clearly

established law because Respondents forced Taylor to

live and sleep in cells covered in feces and urine for

“only six days” and the court had not previously held

that confinement in human waste for that precise

time period violated the Eighth Amendment. Pet.

App. 17a.

The Fifth Circuit regularly demands this level of

“specificity and granularity” in examining whether a

constitutional violation is clearly established. Morrow

v. Meachum, 917 F.3d 870, 874-75 (5th Cir. 2019). In

an opinion issued just weeks after Taylor, the Fifth

Circuit concluded that a prison guard employed excessive force in violation of the Fourth Amendment when

he pepper sprayed an inmate “for no reason at all.”

McCoy v. Alamu, 950 F.3d 226, 231-32 (5th Cir. 2020).

The court expressly rejected the guard’s argument

that a single spray was too insignificant to violate the

Constitution, noting that this Court had “rejected

that line of reasoning.” Id. at 232 (“Injury and force ...

are only imperfectly correlated, and it is the latter

that ultimately counts.” (alteration in original) (quoting Wilkins v. Gaddy, 559 U.S. 34, 38 (2010))). And

while Fifth Circuit precedent recognized that the Constitution prohibits officers from punching or tasing

6 See also, e.g., LaReau, 473 F.2d at 978; Johnson v. Pelker,

891 F.2d 136, 139-40 (7th Cir. 1989); Fruit v. Norris, 905 F.2d

1147, 1151 (8th Cir. 1990); McCord, 927 F.2d at 847-48; Brooks,

800 F.3d at 1303-04.

20

someone for no reason, see id. at 234-35 (Costa, J., dissenting in part), the court concluded that the guard

was entitled to qualified immunity because no case

law specifically held that “an isolated, single use of

pepper spray” qualified as excessive force, id. at 233.

The Eighth Circuit has employed a similarly narrow approach. In Kelsay v. Ernst, for instance, a

woman suspected of a misdemeanor suffered serious

injuries after police “placed [her] in a bear hug, threw

her to the ground, and placed her in handcuffs.” 933

F.3d 975, 978-79 (8th Cir. 2019), cert. petition pending, No. 19-682. In finding the officers shielded by

qualified immunity, the court acknowledged circuit

precedent establishing that “where a nonviolent misdemeanant poses no threat to officers and is not actively resisting arrest or attempting to flee, an officer

may not employ force just because the suspect is interfering with police or behaving disrespectfully.” Id.

at 980 (collecting cases). The court nonetheless found

that the law was not clearly established because

“[n]one of [these] authorities ‘squarely govern[ed] the

specific facts at issue.’” Id. (emphasis added) (quoting

Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)). In

particular, “[i]t was not clearly established … that a

deputy was forbidden to use a takedown maneuver to

arrest a suspect who ignored the deputy’s instruction

to ‘get back here’ and continued to walk away from the

officer.” Id. Like the Fifth Circuit, the Eighth Circuit

in Kelsay demanded a granular level of factual similarity that is nearly impossible to satisfy and permits

even clearly unconstitutional conduct to go unsanctioned.

21

On the other side of the spectrum, the Third,

Fourth, Seventh, Ninth, Tenth, and Eleventh Circuits

hold that a case involving precisely the same facts is

not required for law to be clearly established. See, e.g.,

Davis v. Clifford, 825 F.3d 1131, 1136 (10th Cir. 2016)

(“[T]he qualified immunity analysis involves more

than a scavenger hunt for prior cases with precisely

the same facts.”).

The Tenth Circuit, in a case nearly identical to

this one, held that to find clearly established law,

“[t]here need not be precedent declaring the exact conduct at issue to be unlawful.” DeSpain, 264 F.3d at

979. Thus, where an inmate was held in a prison unit

flooded with water, feces, and urine, the court found

a clearly established constitutional violation based on

cases condemning “unsanitary, offensive conditions”

such as exposure to human waste. Id. Unlike the Fifth

Circuit here, the court did not split hairs over the precise number of days the inmate was locked in sewage.

Rather, the court asked whether “the contours of the

right [were] sufficiently clear that a reasonable official would understand that what he is doing violates

that right.” Id. at 979 (quoting Anderson v. Creighton,

483 U.S. 635, 640 (1987)). The court found those contours clear given “the great weight of cases … condemning on constitutional grounds an inmate’s

exposure to human waste.” Id.; see also id. (“Causing

a man to live, eat, and perhaps sleep in close confines

with his own human waste is too debasing and degrading to be permitted.” (quoting McBride v. Deer,

240 F.3d 1287, 1292 (10th Cir. 2001)).

Similarly, in Brooks, where guards forced a prisoner to sit in his own waste for two days, the Eleventh

22

Circuit did not require precedent that “involved the

precise circumstances at issue” to find a clear constitutional violation. 800 F.3d at 1306. As discussed, supra at 16, the Eleventh Circuit found the violation in

Brooks so obvious as to be clearly established independent of the case law. Id. at 1307. But the court separately held that the guards could not invoke

qualified immunity because precedent established

that Eighth Amendment violations “can arise from

‘conditions lacking basic sanitation.’” Id. (quoting

Chandler v. Baird, 926 F.2d 1057, 1066 (11th Cir.

1991)). The court emphasized that qualified immunity is overcome if existing precedent would lead “a reasonable official [to] understand that what he is doing

violates” the law and that this inquiry does not require “[e]xact factual identity with a previously decided case.” Id. at 1306.

The Third, Fourth, Seventh, and Ninth Circuits

agree. See Kane v. Barger, 902 F.3d 185, 195 (3d Cir.

2018) (“[W]e do not require a case directly mirroring

the facts at hand, so long as there are sufficiently

analogous cases that should have placed a reasonable

official on notice that his actions were unlawful.” (internal quotation marks and brackets omitted));

Thompson v. Virginia, 878 F.3d 89, 98 (4th Cir. 2017)

(“In the absence of directly on-point, binding authority, courts may also consider whether the right was

clearly established based on general constitutional

principles or a consensus of persuasive authority.” (internal quotation marks omitted)); Phillips v. Cmty.

Ins. Corp., 678 F.3d 513, 528 (7th Cir. 2012) (“Every

time the police employ a new weapon, officers do not

get a free pass to use it in any manner until a case

from the Supreme Court or from this circuit involving

23

that particular weapon is decided.”); Ioane v. Hodges,

939 F.3d 945, 956 (9th Cir. 2018) (holding that the

court “need not identify a prior identical action to conclude that the right is clearly established”).

The divergent approaches of the courts of appeals

demonstrate that “[i]n day-to-day practice, the

‘clearly established’ standard is neither clear nor established among our Nation’s lower courts.” Zadeh,

928 F.3d at 479 (Willett, J., concurring in part, dissenting in part); see also John C. Jeffries, Jr., What’s

Wrong with Qualified Immunity?, 62 Fla. L. Rev. 851,

869 (2010) (discussing “the divergent approaches of

the Circuits” in determining whether prior precedent

clearly establishes a constitutional violation for qualified immunity purposes).

The practical cost of this confusion—particularly

in circuits applying an overly stringent qualified immunity analysis—is that it largely nullifies § 1983.

Congress enacted § 1983 “to deter state actors from

using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v.

Cole, 504 U.S. 158, 161 (1992). Congress’s purpose is

thwarted if state actors can avoid accountability so

long as there is no precedent that addresses the precise conduct at issue. This Court’s review is warranted to reject the Fifth Circuit’s narrow qualified

immunity analysis and to restore clarity and uniformity in federal courts’ application of the doctrine.

24

III. This Court Should Grant Review To Abolish

Or

Substantially

Curtail

Qualified

Immunity.

There is another, more fundamental reason the

Court should grant this petition: It presents an ideal

vehicle for reexamining modern qualified immunity

jurisprudence, which derives neither from the text of

§ 1983 nor the common law of official immunity and

should be abolished or significantly curtailed.

A. Qualified

immunity

doctrine

is

inconsistent with § 1983’s text and

common law backdrop.

Qualified immunity doctrine has evolved dramatically since it was first invoked to bar a § 1983 suit.

Modern qualified immunity doctrine bears little resemblance to the common law of official liability when

§ 1983 was enacted.

When this Court first identified a good-faith defense to a § 1983 false arrest suit, it did so based on

the narrow rationale that “the defense of good faith

and probable cause” applied to the analogous “common-law action for false arrest and imprisonment.”

Pierson v. Ray, 386 U.S. 547, 556-57 (1967). But the

Court soon began applying a qualified immunity defense to all § 1983 suits, without investigating

whether any corresponding common law claim included such a defense. The Court revised its approach

repeatedly, expanding the doctrine to protect an ever

broadening array of official misconduct, until it

reached its current formulation of the “objective test”:

that “government officials performing discretionary

25

functions generally are shielded from liability for civil

damages insofar as their conduct does not violate

clearly established … rights.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). While the Court once required courts to determine whether a constitutional

right had been violated before considering whether

the right had been clearly established at the time of

the violation, see Saucier, 533 U.S. at 201, it later reversed course and permitted courts to conduct the

qualified immunity inquiry in either order, see Pearson v. Callahan, 555 U.S. 223, 234-42 (2009).

None of these doctrinal maneuvers derives from

the statutory text. Nothing in the language of § 1983,

as originally enacted or as currently codified, requires

that a constitutional violation be “clearly established”

to support a damages claim. The language of § 1983

“is absolute and unqualified; no mention is made of

any privileges, immunities, or defenses that may be

asserted.” Owen v. City of Independence, 445 U.S. 622,

635 (1980); see Imbler v. Pachtman, 424 U.S. 409, 417

(1976) (§ 1983 “admits of no immunities”).

Instead, the interpretation of § 1983 to include a

broad qualified immunity defense is predicated on the

notion that the statute incorporates the common law

of 1871, when it was enacted. See Tenney v.

Brandhove, 341 U.S. 367, 376 (1951). At least in principle, this Court has attempted “to interpret the intent of Congress in enacting § 1983, not to make a

freewheeling policy choice.” Malley v. Briggs, 475 U.S.

335, 342 (1986). The Court has described its approach

as seeking to determine whether any common law immunities were “so well established in 1871, when

§ 1983 was enacted, that ‘we presume that Congress

26

would have specifically so provided had it wished to

abolish’ them.” Buckley v. Fitzsimmons, 509 U.S. 259,

268 (1993) (quoting Pierson, 386 U.S. at 554-55); see

also Filarsky v. Delia, 566 U.S. 377, 383 (2012).

Yet modern qualified immunity doctrine departs

markedly from the common law. See, e.g., James E.

Pfander & Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U. L. Rev. 1862,

1922-24 (2010). As a growing body of legal scholarship

has revealed, “lawsuits against officials for constitutional violations did not generally permit a good-faith

defense during the early years of the Republic.” William Baude, Is Qualified Immunity Unlawful?, 106

Calif. L. Rev. 45, 55-58 (2018). Rather, early American courts adapted the principle of personal official liability from the English tradition and “applied it with

unprecedented vigor.” David E. Engdahl, Immunity

and Accountability for Positive Governmental Wrongs,

44 U. Colo. L. Rev. 1, 14 (1972). Early public officers

“bore personal liability for … affirmative acts, willfully done,” including both “any positive wrong which

was not actually authorized by the state” and even

purportedly authorized wrongs. Id. at 16-17. The

early American rule was thus “extremely harsh to the

public official.” Id. at 18.7 In short, “good-faith reliance did not create a defense to liability—what mattered was legality.” Baude, supra, at 56.

7 This stringent rule of official accountability was mitigated

by the possibility that an official held liable for misconduct could

petition the legislature for indemnification. See Pfander & Hunt,

27

Strict official accountability for civil rights claims

persisted through Reconstruction and after the enactment of § 1983. See, e.g., Joseph Story, Commentaries

on the Constitution of the United States § 1676 (4th

ed. 1873) (“If the oppression be in the exercise of unconstitutional powers, then the functionaries who

wield them, are amenable for their injurious acts to

the judicial tribunals of the country, at the suit of the

oppressed.”). For instance, in 1851, this Court upheld

a monetary award against a U.S. colonel for seizing

property in Mexico during the Mexican-American

War, despite the defendant’s presumed “honest judgment” that the seizure was justified by wartime emergency. See Mitchell v. Harmony, 54 U.S. 115, 133-35,

137 (1851). Shortly after § 1983’s enactment, this

Court again affirmed that official liability for wrongful acts “committed from a mistaken notion of power”

“cannot be diminished by reason of good motives upon

the part of the wrongdoer,” because “the law tolerates

no such abuse of power, nor excuses such act.” Beckwith v. Bean, 98 U.S. 266, 276-77 (1878). And in an

early case interpreting § 1983, this Court rejected a

good-faith defense to a constitutional claim brought

under that statute as foreclosed by the statutory text.

See Myers v. Anderson, 238 U.S. 368, 378-79 (1915). It

was not until 1967—nearly a century after § 1983 was

enacted—that this Court began to read a qualified immunity defense into the statute; it was many more

supra, at 1924. But neither the official’s subjective good faith nor

any objective requirement that the law be “clearly established”

categorically shielded the official from liability in the first instance. See, e.g., Baude, supra, at 55-58.

28

years before the present-day, “objective” qualified immunity doctrine took shape.

What’s more, there was no “freestanding common-law defense” available in suits against government officials. Baude, supra, at 58-59. Instead, where

good faith was implicated, it was because the particular tort that was the subject of the lawsuit included

bad faith or malice as an element. Id. at 59-60. In that

case, a finding of good faith or the absence thereof fell

on “the merits side of the ledger” and determined

whether the plaintiff could make out a claim at all. Id.

But “good faith” was not a generic defense to official

liability. And the subjective good-faith defense available for certain common law actions against government officials bears no relationship to the modern

objective qualified immunity inquiry. See Joanna C.

Schwartz, The Case Against Qualified Immunity, 93

Notre Dame L. Rev. 1797, 1802 (2018).8 To the extent

this Court has attempted to capture the background

common law principles regarding official liability and

immunity when § 1983 was enacted in 1871, its qualified immunity jurisprudence has not succeeded in

that endeavor.

8 Indeed, a good-faith inquiry is already built into Eighth

Amendment claims such as Taylor’s, which require an analysis

of the objective risk of harm from the defendants’ conduct and

the subjective deliberate indifference exhibited by the defendants. The Fifth Circuit expressly resolved the subjective deliberate indifference analysis in Taylor’s favor, Pet. App. 15a-16a,

exemplifying the divergence between the objective “clearly established” inquiry and the kind of good-faith defense that might

be available to certain claims at the common law.

29

It is not just academics who have recognized that

qualified immunity is a modern invention untethered

from any common law immunities. Past and current

members of this Court have acknowledged that modern qualified immunity doctrine has “diverged to a

substantial degree from the historical standards.”

Wyatt, 504 U.S. at 170-72 (Kennedy, J., concurring);

see also, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1872

(2017) (Thomas, J., concurring in part and concurring

in the judgment) (critiquing the doctrine as lacking

grounding in the text and history of § 1983, an example of the Court “substitut[ing] [its] own policy preferences for the mandates of Congress”); cf. Kisela, 138

S. Ct. at 1162 (Sotomayor, J., dissenting) (describing

modern qualified immunity doctrine as an “absolute

shield for law enforcement officers”).9

9 These concerns are echoed across the judiciary. See, e.g.,

Horvath v. City of Leander, 946 F.3d 787, 795 (5th Cir. 2020), as

revised (Jan. 13, 2020) (Ho, J., concurring in the judgment in

part and dissenting in part); McCoy, 950 F.3d at 237 (5th Cir.

2020) (Costa, J., dissenting in part); Kelsay, 933 F.3d at 987

(Grasz, J., dissenting); Zadeh, 928 F.3d at 479 (Willett, J., concurring in part, dissenting in part); Rodriguez v. Swartz, 899

F.3d 719, 732 n.40 (9th Cir. 2018); Thompson v. Cope, 900 F.3d

414, 421 n.1 (7th Cir. 2018); Irish v. Fowler, No. 15-CV-0503

(JAW), 2020 WL 535961, at *51 n.157 (D. Me. Feb. 3, 2020); Ventura v. Rutledge, 398 F. Supp. 3d 682, 697 n.6 (E.D. Cal. 2019);

Russell v. Wayne Cty. Sch. Dist., No. 17-CV-154 (CWR) (JCG),

2019 WL 3877741, at *2 (S.D. Miss. Aug. 16, 2019); Manzanares

v. Roosevelt Cty. Adult Det. Ctr., 331 F. Supp. 3d 1260, 1293 n.10

(D.N.M. 2018); Thompson v. Clark, No. 14-CV-7349 (JBW), 2018

WL 3128975, at *9-10 (E.D.N.Y. June 26, 2018).

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B. Qualified immunity does not further the

policy goals it was designed to achieve.

Despite its lack of statutory or common law roots,

qualified immunity is primarily justified by the purported need to protect officials from financial liability

and to avoid chilling the exercise of their duties. See,

e.g., Scheuer v. Rhodes, 416 U.S. 232, 240 (1974). The

theory is that, “[w]hen officials are threatened with

personal liability for acts taken pursuant to their official duties, they may well be induced to act with an

excess of caution or otherwise to skew their decisions

in ways that result in less than full fidelity to the objective and independent criteria that ought to guide

their conduct.” Forrester v. White, 484 U.S. 219, 223

(1988). In the § 1983 context, this Court has guarded

assiduously against “the danger that fear of being

sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the

unflinching discharge of their duties.’” Harlow, 457

U.S. at 814 (alteration in original) (quoting Gregoire

v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)); see also,

e.g., Pierson, 386 U.S. at 555 (“A policeman’s lot is not

so unhappy that he must choose between being

charged with dereliction of duty if he does not arrest

when he has probable cause, and being mulcted in

damages if he does.”).

By contrast, in cases where these considerations

were not implicated, the Court has declined to extend

qualified immunity to protect defendants from damages claims. See Richardson v. McKnight, 521 U.S.

399, 411 (1997) (comprehensive insurance coverage

for private prison guards “reduces the employmentdiscouraging fear of unwarranted liability”); Owen,

31

445 U.S. at 654 (noting that the “injustice … of subjecting to liability an officer who is required … to exercise discretion” is “simply not implicated when the

damages award comes not from the official’s pocket,

but from the public treasury”).

Yet the nearly universal practice of government

indemnification of public officials means that government actors are virtually never on the hook financially for actions performed in the course of duty. As

Professor Joanna Schwartz found in a recent empirical study tracking litigation payments and indemnifications over a five-year period, in 44 of the country’s

largest jurisdictions, “officers financially contributed

to settlements and judgments in just .41% of … civil

rights damages actions resolved in plaintiffs’ favor,

and their contributions amount to just .02%” of the

damages paid out in these cases. Joanna C. Schwartz,

Police Indemnification, 89 N.Y.U. L. Rev. 885, 890,

912-13, 936-37 (2014).10 In 37 smaller jurisdictions

tracked in the study, officers “never contributed to

settlements or judgments in lawsuits brought against

them.” Id. Officers “did not contribute to settlements

and judgments even when indemnification was prohibited by statute or policy” and even when the liable

officers “were disciplined, terminated, or prosecuted

for their misconduct.” Id. at 937. Officer indemnification included legal representation as well, as officers

10 This expansive indemnification extended to punitive

damages awards: Only one officer in the study was required to

pay anything in punitive damages, for a total of $300. Id. at 91718.

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were “almost always provided with defense counsel

free of charge” when they were sued. Id. at 915.

Thus, for any individual officer, the likelihood of

having to contribute to a damages settlement or judgment in the course of a career is “exceedingly remote”:

In most jurisdictions studied, “officers are more likely

to be struck by lightning than they are to contribute

to a settlement or judgment in a police misconduct

suit.” Id. at 914. The same is true of prison officials:

“[F]or individual officers, litigation is mostly a minor

inconvenience because … officers do not have to pay

for either their defense or any resulting settlement or

judgment. Instead, in nearly all inmate litigation, it

is the correctional agency that pays both litigation

costs and any judgments or settlements, even though

individual officers are the nominal defendants.”

Margo Schlanger, Inmate Litigation, 116 Harv. L.

Rev. 1555, 1675-76 (2003). That is, publicly employed

prison officials are in precisely the same financial situation as the private prison guards who were denied

qualified immunity in Richardson because they were

covered by insurance. 521 U.S. at 411. The principal

concern animating the development of a robust qualified immunity defense is empirically invalid.

C. Qualified immunity leaves significant

violations of important constitutional

rights without remedy.

Modern qualified immunity doctrine stunts the

development of constitutional law, preventing individuals from vindicating their constitutional rights.

In theory, each case alleging a constitutional violation

should help clarify the contours of constitutional

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rights and limitations. Even under a qualified immunity regime, where the first plaintiff to raise a

valid constitutional claim might be unable to recover

unless the violation was “obvious,” so long as the court

reached the merits of the claim, subsequent plaintiffs

could take advantage of the rule established in that

suit. See, e.g., John C. Jeffries, Jr., Reversing the Order of Battle in Constitutional Torts, 2009 Sup. Ct.

Rev. 115, 120 (2009) (“When the lack of a clearly established right precludes recovery in one case, adjudication of the merits puts the next case on a different

footing.”).

Yet since this Court in Pearson permitted courts

to conduct the two-pronged qualified immunity analysis in any order, courts have frequently granted

qualified immunity because of a lack of factually analogous precedent without first determining whether

the challenged behavior is unconstitutional. See Aaron L. Nielson & Christopher J. Walker, The New

Qualified Immunity, 89 S. Calif. L. Rev. 1, 33-51

(2015). Now, “[t]he law is never made clear enough to

hold individual officials liable for constitutional violations … as Congress authorized in 42 U.S.C. § 1983.”

Kelsay, 933 F.3d at 987 (Grasz, J., dissenting). And

the cycle of qualified immunity can perpetuate endlessly, resulting in “[i]mportant constitutional questions go[ing] unanswered precisely because no one’s

answered them before.” Zadeh, 928 F.3d at 479-80

(Willett, J., concurring in part, dissenting in part); see

also Joanna C. Schwartz, How Qualified Immunity

Fails, 127 Yale L.J. 2, 65-66 (2017) (“[I]f courts regularly find that the law is not clearly established without first ruling on the scope of the underlying

constitutional right, the constitutional right at issue

34

will never become clearly established.”). Absent an

overhaul of qualified immunity, constitutional law

will continue to stagnate, and plaintiffs alleging serious constitutional harm will continue to lack a remedy.

IV. This Case Is The Ideal Vehicle To Resolve

The Questions Presented.

Several aspects of this case make it an ideal vehicle for addressing these critical questions about the

scope and propriety of qualified immunity.

First, the facts are straightforward and essentially uncontested. Taylor was forced to reside for

nearly a week in egregiously unsanitary conditions,

first in a cell that was coated top to bottom with other

prisoners’ feces where he could neither eat nor drink

water and then in a “cold room” where he was made

to sleep in a puddle of raw sewage. He repeatedly

brought his horrific cell conditions to the attention of

Respondents, who refused to help him and at times

mocked or laughed at him. As the district court

pointed out in its summary judgment order, Respondents barely disputed Taylor’s account, “provid[ing] little in the way of specific summary judgment evidence

to support their assertion that the cells were not, in

fact, covered with feces.” Pet. App. 47a. The clear record and streamlined facts make this a clean vehicle to

decide the questions presented as a matter of law.

Second, no ancillary issues would obstruct this

Court’s consideration of the questions presented. The

appeal presents no procedural barriers inhibiting the

35

Court’s review of the merits. The Fifth Circuit unanimously held that the horrific conditions Taylor experienced violated his constitutional rights. The only

issue for this Court to resolve is whether qualified immunity bars Taylor’s claim. The issue is squarely presented and was the sole basis for the decision below.

Third, this case does not feature split-second decisionmaking, and the officials here were not faced

with an urgent decision that they resolved without deliberation. Instead, they intentionally placed Taylor

in two separate squalid cells covered in human waste

and left him there for nearly a week, despite his repeated pleas to be relocated. Their choice to subject

Taylor to these conditions could have been reversed at

any time. Moreover, there was no possible penological

justification for Respondents’ behavior; Respondents

did not choose incorrectly between two plausible approaches but instead subjected Taylor to these filthy

conditions in “obvious” disregard for his bodily safety.

Pet. App. 15a-16a. Official immunity should be at its

nadir in the face of a deliberate and long-lasting constitutional violation.

Finally, this case effectively demonstrates several

ways in which modern qualified immunity doctrine is

untenable. The Fifth Circuit’s granular parsing of the

number of days Taylor spent naked in a cell covered

in others’ feces and urine demonstrates the difficulty

that courts face in determining the appropriate level

of generality at which to define the right at issue. Its

refusal to find an “obvious” constitutional violation

renders Hope a nullity. Even the holding that Respondents’ mistreatment of Taylor was unconstitutional gives minimal prospective guidance to courts in

36

evaluating analogous but slightly differentiated circumstances against a qualified immunity defense:

What if an inmate is left in a cell like Taylor’s for only

five days? What if an inmate is placed in a seclusion

cell as punishment for misbehavior rather than during treatment for suicidality? What if the next time

there is a chair in the second cell? These minor tweaks

to the fact pattern could be rightfully recognized as

irrelevant to the core constitutional violation or incorrectly found to immunize future illegal conduct, depending on the specificity with which the

constitutional right established by Taylor’s case is defined. This case thus enables the Court to consider the

validity of its qualified immunity jurisprudence in a

context in which the flaws of that doctrine are apparent and were dispositive to the outcome below.

37

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Kelsi Brown Corkran

Samuel Weiss

Counsel of Record

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April 24, 2020