Petition for Writ of Certiorari — Denis Quinette, Petitioner v. Dilmus Reed, et al.

No.

IN THE

SUPREME COURT OF THE UNITED STATES

DENIS QUINETTE,

Petitioner,

v.

DILMUS REED, CHIEF LYNDA COKER, CHIEF DEPUTY

MILTON BECK, COLONEL DONALD BARTLETT, COLONEL

LEWIS ALDER, COLONEL JANICE PRINCE, COLONEL

ROLAND CRAIG, and SHERIFF NEIL WARREN,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Mark Begnaud

Counsel of Record

Michael Eshman

ESHMAN BEGNAUD LLC

315 W. Ponce De Leon Ave, Suite 775

Decatur GA 30030

(404) 491-0170

mbegnaud@eshmanbegnaud.com

Counsel for Petitioner

i

QUESTIONS PRESENTED

Petitioner Denis Quinette was violently attacked by

a jailer at the Cobb County Jail who had a terrifying

history of violence and inmate abuse.1 Despite this

history, the jailer’s supervisors never suspended him in

connection with inmate abuse and offered nothing

other than de minimus discipline in response to clear

and repeated violations of inmates’ constitutional

rights. Petitioner sued the jailer’s supervisors under

42 U.S.C. § 1983 for failing to meaningfully discipline

or terminate the jailer despite this history. A divided

Eleventh Circuit panel granted qualified immunity to

the supervisors on the theory that, while prior

precedent established the unconstitutionality of a

supervisor failing to meaningfully address an

employee’s repeated transgressions, those cases

involved zero discipline or de minimus discipline. The

panel distinguished the jailer’s history because he had

received some discipline in connection with other

unrelated bad conduct, despite the fact that the jailer

received only de minimus discipline after he attacked

and abused inmates.

The jailer had been the subject of twelve internal affairs

investigations, six of which were deemed “founded” or “sustained”

and three of which involved attacking restrained inmates.

Moreover, in the previous year the jailer had pursued a sustained

campaign of inmate abuse including racial slurs, physical threats,

religious abuse, cruel and belittling language, and abusive

behavior, as well as sexual harassment of a coworker.

1

ii

The questions presented are:

1. Whether jail command supervisors are entitled to

qualified immunity where their repeated supervisory

failures result in a foreseeable, inevitable, and

unconstitutional attack by a violent and abusive jailer

on yet another inmate?

2. How are the courts to apply qualified immunity to

supervisory liability claims? Given that qualified

immunity is to be applied with unique rigor “in the

Fourth Amendment context, where … [i]t is sometimes

difficult for an officer to determine how the relevant

legal doctrine … will apply to the factual situation,”2

should the doctrine be applied less stringently, or

should it even be applied at all, to a claim of

supervisory liability?

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?

2 Mullenix v. Luna, 577 U.S. 7, 12, 136 S. Ct. 305, 308 (2015).

iii

PARTIES TO THE PROCEEDING BELOW

The parties to the proceedings below were

Petitioner Denis Quinette and Respondents Lewis

Alder, Donald Bartlett, Milson Beck, Lynda Coker,

Roland Craig, Janet Prince, Dilmus Reed, and Neil

Warren.

iv

RELATED PROCEEDINGS

There are no related proceedings.

v

TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDING BELOW ......... iii

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

TABLE OF CONTENTS............................................. v

TABLE OF CITATIONS.......................................... viii

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

OPINIONS AND ORDERS BELOW ......................... 4

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

STATUTORY PROVISIONS INVOLVED ................ 5

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

The Attack of Quinette .................................... 5

Reed’s Violent and Abusive Disciplinary

History .............................................................. 6

Divided Opinion on Whether the Supervisors

Are Protected by Qualified Immunity ........... 9

REASONS FOR GRANTING THE WRIT ............... 11

1. The Panel Majority Improperly Applied

Qualified Immunity to Protect Jail

Supervisors Who Repeatedly Failed to

Meaningfully Discipline a Violent and

Abusive Jailer. ............................................... 11

vi

A. The panel majority’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 decision below conflicts with

circuit court decisions from the Second,

Sixth, Seventh, and Ninth Circuits, which

have authorized suit on similar facts .... 19

C. In the alternative, the Court should

summarily reverse because the Eleventh

Circuit applied qualified immunity

improperly ............................................... 21

2. The Court Should Grant Review to

Revise or Eliminate the Application of

Qualified Immunity to Claims of

Supervisory Liability. ................................... 21

3. The Court Should Recalibrate or Abolish

Qualified Immunity. ..................................... 26

A. Qualified immunity has no basis in

text or history ........................................... 26

B. Qualified immunity fails in

implementation and it fails to achieve its

policy goals ............................................... 30

A. Qualified immunity is unjust............. 34

CONCLUSION .......................................................... 38

Appendix A – Opinion of the Eleventh Circuit Court

of Appeals (February 21, 2020).............................. 1a

Appendix B – Order of the United States District

Court (January 18, 2018) ......................................28a

vii

Appendix C – Order of the Eleventh Circuit Court

of Appeals Denying Rehearing En Banc

(October 23, 2020) ................................................ 63a

Appendix D – First Amended Complaint ............ 64a

viii

TABLE OF CITATIONS

Cases

Al-Amin v. Smith,

511 F.3d 1317 (11th Cir. 2008) ......................... 17

Anderson v. City of Minneapolis, Minnesota,

141 S. Ct. 110 (2020) ........................................ 32

Baxter v. Bracey,

140 S. Ct. 1862 (2020) ...................................... 32

Baxter v. Bracey,

751 F. App’x 869 (6th Cir. 2018) ...................... 35

Bd. of Cty. Comm’rs of Bryan Cty., Okl. v. Brown,

520 U.S. 397, 117 S. Ct. 1382 (1997) ......... 14, 15

Blankenhorn v. City of Orange,

485 F.3d 463 (9th Cir. 2007) ............................ 19

Brennan v. Dawson,

141 S. Ct. 108 (2020) ........................................ 32

Brown v. City of Huntsville, Ala.,

608 F.3d 724 (11th Cir. 2010) .......................... 27

Brown v. Crawford,

906 F.2d 667 (11th Cir. 1990) .......................... 16

City of Canton, Ohio v. Harris,

489 U.S. 378, 109 S. Ct. 1197 (1989)….1, 2, 11, 12

14, 15, 18, 21, 24, 25

City of Escondido v. Emmons,

139 S. Ct. 500 (2019) ........................................ 15

Corbitt v. Vickers,

141 S. Ct. 110 (2020) ........................................ 32

ix

Corbitt v. Vickers,

929 F.3d 1304 (11th Cir. 2019) ........................ 34

Curry v. Scott,

249 F.3d 493 (6th Cir. 2001) ............................ 19

Danley v. Allen,

540 F.3d 1298 (11th Cir. 2008)…12, 16, 18, 21, 30

Dawson v. Brennan,

141 S. Ct. 108 (2020) ........................................ 32

Dodds v. Richardson,

614 F.3d 1185 (10th Cir. 2010) ........................ 17

Depew v. City of St. Marys, Georgia,

787 F.2d 1496 (11th Cir. 1986) ...... 16, 17, 18, 21

Dukes v. Deaton,

852 F.3d 1035 (11th Cir. 2017) ........................ 35

Forrester v. White,

484 U.S. 219, 108 S. Ct. 538 (1988) ................. 32

Gilbert v. Richardson,

264 Ga. 744, 452 S.E.2d 476 (1994) ................ 22

Hope v. Pelzer,

536 U.S. 730, 122 S.Ct. 2508 (2002) .......... 11, 21

Horvath v. City of Leander,

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

Hunter v. Cole,

141 S. Ct. 111 (2020) ........................................ 32

Irish v. Fowler,

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

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

J.K.J. v. Polk Cty.,

960 F.3d 367 (7th Cir. 2020) ............................ 20

x

Jamison v. McClendon,

476 F. Supp. 3d 386 (S.D. Miss. 2020)……26, 27,

28, 31, 34, 35, 36

Jessop v. City of Fresno,

936 F.3d 937 (9th Cir. 2019) ............................ 35

Johnson v. United States,

135 S. Ct. 2551 (2015) ...................................... 32

Kelsay v. Ernst,

933 F.3d 975 (8th Cir. 2019) ...................... 29, 35

Lucente v. Cty. of Suffolk,

980 F.3d 284 (2d Cir. 2020) ............................. 20

Manders v. Lee,

338 F.3d 1304 (11th Cir. 2003) ........................ 22

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

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

Mason v. Faul,

141 S. Ct. 116 (2020) ........................................ 32

McCoy v. Alamu,

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

Mullenix v. Luna,

577 U.S. 7, 136 S. Ct. 305 (2015) ................ ii, 23

Owen v. City of Independence,

445 U.S. 622 (1980) .......................................... 33

Pierson v. Ray,

386 U.S. 547, 87 S.Ct. 1213 (1967) ...... 27, 28, 34

Richardson v. McKnight,

521 U.S. 399 (1997) .......................................... 33

Rodriguez v. Swartz,

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

xi

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) .................................... 18, 37

Taylor v. Riojas,

141 S. Ct. 52 (2020) ........................ 11, 17, 21, 35

Taylor v. Stevens,

946 F.3d 211 (5th Cir. 2019) ............................ 35

Thompson v. Clark,

No. 14-CV-7349 (JBW), 2018 WL 3128975

(E.D.N.Y. June 26, 2018) ................................. 29

Thompson v. Cope,

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

Valdes v. Crosby,

450 F.3d 1231 (11th Cir. 2006) ........................ 16

Ventura v. Rutledge,

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

West v. Winfield,

141 S. Ct. 111 (2020) ........................................ 32

Williams v. Santana,

340 F.App’x 614 (11th Cir. 2009) .............. 16, 30

Willingham v. Loughnan,

261 F.3d 1178 (11th Cir. 2001) ........................ 36

Zadeh v. Robinson,

141 S. Ct. 110 (2020) ........................................ 32

Zadeh v. Robinson,

928 F.3d 457 (5th Cir. 2019) ............................ 29

xii

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) ...................................... 28

Statutes and Rule

28 U.S.C. § 1254(1) ..................................................... 5

42 U.S.C. § 1983 ................................................. passim

Fed. R. Civ. P. 12(b)(6) ......................................... 9, 37

O.C.G.A. §§ 15-16-1 ................................................... 21

O.C.G.A. § 15-16-10 ................................................... 22

O.C.G.A. § 33-24-51 ................................................... 22

Other Authorities

Samuel R. Bagenstos, Who Is Responsible for the

Stealth Assault on Civil Rights?, 114 MICH. L. REV.

893 (2016) ................................................................. 29

William Baude, Is Qualified Immunity Unlawful?,

106 CAL. L. REV. 45 (2018) ..................................... 29

Wanda Bertram and Alexi Jones, How many people in

your state go to local jails every year?, Prison Policy

Initiative (available at

https://www.prisonpolicy.org/blog/2019/09/18/statejail-bookings/) .......................................................... 22

Brief of Cross-Ideological Groups Dedicated to

Ensuring Official Accountability, Restoring the

Public’s Trust in Law Enforcement, and Promoting

the Rule of Law as Amici Curiae in Support of

Petitioner, Baxter v. Bracey, 140 S. Ct. 1862 (2020)

(No. 18-1287) 2019 WL 2370285. ....................... 29, 30

Mark R. Brown, The Fall and Rise of Qualified

Immunity: From Hope to Harris, 9 NEV. L.J. 185

(2008) ........................................................................ 29

xiii

The Georgia Sheriff, March 2021 (available at

https://georgiasheriffs.org/modules/mod_flipbook_23/t

mpl/book.html) ......................................................... 22

John C. Jeffries, Jr., What's Wrong with Qualified

Immunity?, 62 FLA. L. REV. 851 (2010) ................. 29

Pamela S. Karlan, Foreword: Democracy and Disdain,

126 HARV. L. REV. 1 (2012) ................................... 29

Kit Kinports, Iqbal and Supervisory Immunity, 114

Penn St. L. Rev. 1291 (2010) ................................... 25

Margo Schlanger, Inmate Litigation, 116 Harv. L.

Rev. 1555 (2003) ....................................................... 34

Joanna C. Schwartz, The Case Against

Qualified Immunity, 93 NOTRE DAME L. REV. 1797

(2018) ........................................................................ 29

Joanna C. Schwartz, How Qualified Immunity Fails,

127 YALE L.J. 2 (2017) ............................................ 29

Joanna C. Schwartz, Police Indemnification, 89

N.Y.U. L. Rev. 885 (2014) ........................................ 33

Jay Schweikert, Qualified Immunity: A Legal,

Practical, and Moral Failure, available at

https://www.cato.org/policy-analysis/qualifiedimmunity-legal-practical-moral-failure (last visited

March 16, 2021) ........................................................ 36

Charles R. Wilson, “Location, Location,

Location”: Recent Developments in the

Qualified Immunity Defense, 57 N.Y.U. ANN.

SURV. AM. L. 445 (2000) ......................................... 29

1

INTRODUCTION

For years, the command staff at the Cobb County

Jail sat idly by and provided no meaningful discipline

in response jailer Dilmus Reed’s abusive behavior

towards inmates. Reed’s history included several

physical attacks on restrained inmates, sexual

harassment of a nurse at the jail, and numerous other

documented reports of abusive, threatening, racist, and

xenophobic behavior towards inmates at the jail. The

abuse came to a head when Reed violently attacked

Petitioner Denis Quinette and broke his hip. Quinette’s

only offense was asking politely to make a telephone

call.

In its decision below, the Eleventh Circuit panel

acknowledged unanimously that Reed’s attack was

unconstitutional. A 2-1 majority, however, reversed the

district court and granted qualified immunity to the

supervisors, ignoring this Court’s decision in City of

Canton, Ohio v. Harris and distinguishing controlling

Eleventh Circuit precedent. Previous Eleventh Circuit

cases had established the unconstitutionality of a

supervisor’s deliberate indifference to an employee’s

repeated transgressions, but the panel majority found

here that the supervisors were nevertheless protected

by qualified immunity. The panel majority took a

granular approach, distinguishing a reported case from

its circuit to fit its application of qualified immunity by

stating that the case addressed municipal rather than

supervisory liability (a distinction without legal

significance in the Eleventh Circuit) and involved de

minimus discipline (a meaningless distinction given

2

that Reed received, at best, de minimus discipline for

his violent and abusive behavior toward inmates; his

only arguably meaningful discipline was for unrelated

conduct).

The Court should review the decision below for four

reasons.

First, having found that “[t]he supervisors likely

could have (and, as it turns out, should have) done

more to discipline Reed” given the obvious risk he

posed to inmates, the panel majority strayed from this

Court’s precedent when it failed to recognize that the

obviousness of that risk rendered Respondents’ conduct

a clearly established constitutional violation.

Second, the decision below further muddies the

waters regarding how factually similar a prior case

must be to clearly establish a constitutional violation

for qualified immunity purposes. The Eleventh Circuit

has previously held that a constitutional violation may

be clearly established by prior precedent that does not

precisely mirror the facts at hand. In this case,

however, the Eleventh Circuit read this Court’s recent

cases to imply a shift to a more stringent standard

which requires precedent with nearly identical facts to

establish a constitutional violation. 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 gives the Court an opportunity to

flesh out the principle articulated in City of Canton,

Ohio v. Harris recognizing liability for the failure to

3

train, discipline, and monitor employees whose

histories demonstrate an obvious risk that the

employee will commit a constitutional violation. In

Georgia, sheriffs’ offices are typically protected by

Eleventh Amendment immunity so the only

meaningful judicial review for a pattern or practice of

constitutional violations in a sheriff’s department is an

individual capacity claim against a supervisor. By

protecting these supervisors with qualified immunity –

especially by a qualified immunity standard as

stringent as that applied by the Eleventh Circuit here

– 42 U.S.C. § 1983 becomes an ineffective tool to curb

systemic failures in sheriffs’ offices. This case gives the

Court the opportunity to reconsider how to apply

qualified immunity in this context if at all, since its

application to supervisors does not serve the policy

justification for the judge-made doctrine.

Fourth, 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 42 U.S.C. § 1983 nor the common

law 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 has since been

transformed by judicial policy preference into a neartotal liability shield across all 42 U.S.C. § 1983 claims.

It is time to reexamine the doctrine because it is failing.

Qualified immunity is unnecessary to serve its purpose

4

of protecting officials from the risk of financial liability,

it is an unworkable standard that continues to divide

the courts, and it regularly leads to patently unjust

results – as some scholars put it, qualified immunity is

a “moral failure.” The Court should revisit qualified

immunity in light of the myriad weighty arguments

favoring its abolition.

OPINIONS AND ORDERS BELOW

The opinion of the Eleventh Circuit Court of

Appeals reversing the district court in part and

dismissing the claims against the supervisory

Respondents may be found at Quinette v. Reed, 805 F.

App’x 696 (11th Cir. 2020) and is reproduced at Pet.

App. 1a-27a. The order of the district court denying

Defendants’ Motion to Dismiss may be found at

Quinette v. Reed, No. 1:17-CV-1819-TWT, 2018 WL

466504, at *1 (N.D. Ga. Jan. 18, 2018) and is

reproduced at Pet. App. 28a-62a. The order of the

Court of Appeals denying the petition for panel

rehearing and rehearing en banc on October 23, 2020

is reproduced at Pet. App. 63a.

JURISDICTION

The Eleventh Circuit Court of Appeals entered its

opinion on February 21, 2020. Pet. App. 1a. A timely

petition for rehearing en banc was denied on October

23, 2020. Id. at 63a. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

5

STATUTORY PROVISIONS INVOLVED

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….

STATEMENT OF THE CASE

The Attack of Quinette

On May 28, 2015, Petitioner Denis Quinette was in

a holding cell at the Cobb County Jail when

Respondent Dilmus Reed, a Cobb County jailer, opened

the door to escort another inmate into the cell. Pet.

App. 68a, ¶¶ 13-17. Quinette respectfully tried to flag

down Reed as Reed allowed the inmate into the cell –

Quinette can even be heard saying, “excuse me,” on the

video. Id. at 69a, ¶¶ 20-22. Rather than addressing

Quinette’s concern, Reed closed the door on Quinette.

Id. at 69a, ¶ 22.

6

As the door was closing in his face, Quinette placed

his hand on the window of the cell door but did not push

the door. Id. at 69a, ¶¶ 24-25. Nevertheless, despite

Quinette’s calm, respectful demeanor, Reed re-opened

the door, took one large step forward, and, without

warning, forcefully shoved Quinette with two hands

toward the back of the cell. Id. at 71a, ¶ 35. Quinette,

then 54 years old, was thrown to the floor and landed

on his left hip, breaking his hip in the fall. Id. at 71a72a, ¶¶ 38-41.

Reed’s Violent and Abusive Disciplinary History

Reed was the subject of twelve internal affairs

investigations during his tenure with the Cobb County

Sheriff’ Office, six of which were deemed “founded” or

“sustained.” Pet. App. 76a, ¶ 68. Three of these

investigations were for violently attacking restrained

inmates. Id. at 76a, ¶ 69. In the first excessive force

incident, an inmate with a colostomy bag complained

that Reed had twisted the chains of the inmate’s waist

cuffs, rupturing the inmate’s colostomy bag and

causing extreme discomfort and some bleeding. Id. at

77a, ¶¶ 73-75. In the second incident, a restrained

inmate made a comment that angered Reed, and Reed

slammed the handcuffed inmate face-first to the floor,

sending the inmate to the hospital for stitches. Id. at

79a-80a, ¶¶ 84-90. In the third incident, Reed was

escorting a group of inmates who were all handcuffed

to each other in a “chain gang” configuration. Id. at

80a, ¶ 91. When an inmate cursed at Reed, Reed

grabbed the inmate in a headlock and slammed the

inmate to the floor. Id. at 80a-81a, ¶¶ 92-94.

7

Then, in the year before the incident with Quinette,

Reed engaged in a year-long campaign of inmate abuse

yielding 15 separate complaints.

The inmate

complaints are nauseating – there are allegations of

cruel and belittling language,3 racial slurs,4 physical

threats,5 abusive behavior,6 religious abuse,7 and

3 An inmate reported that Reed “talked about my girlfriend, my

children, and my deceased father;” another reported that he

“comes to work like he has a vengeance … demoralizes us and

speaks about our wives;” another reported that he “calls me a Nword and bitch, makes comments that question my sexual

orientation, queer, faggot, that kind of stuff;” another reported he

was “talking about my mother and picking on me every time he

comes in the dorm.” Id. at 83a-85a, ¶¶ 102(c), (d), (e), (o).

4 Four inmates say Reed called them the N-word.

Id. at 83a-85a,

¶¶ 102(e), (f), (m), (n).

5 Reed threatened an inmate and told him “I am the Department

of Corrections;” when the inmate asked if that was a threat, Reed

said, “we’ll see.” Id. at 84a-85a, ¶ 102(k).

6 An inmate claimed Reed sent the inmate to a new housing unit

without socks or underwear, making him leave his personal things

behind “just to be nasty;” another inmate asked for hygiene

products because he’d been wearing the same clothes for 7 days,

to which Reed responded, “get the F out of my face and sit the F

down;” he took one inmate’s armband so inmate couldn’t get his

meals (the inmate was likely Muslim and had a Halal meal

profile); and he took the bedroll of an inmate with a two-mat

profile for a herniated disc. Id. at 83a-85a, ¶¶ 102(c), (h), (l), (m).

7 Reed told

a Muslim inmate to get rid of his Qu’ran and told

another Muslim inmate his religion is “shit.” Id. at 83a-84a, ¶¶

102(b), (i).

8

sexual harassment of a coworker.8 In other words,

Reed’s history shows three past incidents of violent

inmate attacks then a year-plus campaign of escalating

inmate abuse. Reed’s abusive behavior culminated

with the attack on Quinette.9

The supervisory defendants responded to this

history of violence and abuse with meaningless and

ineffective discipline. After the first excessive force

incident, no action was taken. Id. at 79a, ¶ 82. After

the second excessive force incident (where Reed

slammed a restrained inmate’s face into the floor,

sending him to the hospital), Reed was only given a

written reprimand and required to go to a “refresher”

on defensive tactics (i.e., how to defend himself), but

was not suspended and lost no pay. Id. at 80a, ¶ 90.

After the third excessive force incident (where Reed

grabbed a restrained inmate in a headlock and tried to

pull him to the floor, pulling the “chain-gang” of

handcuffed inmates back and forth), Reed was again

given only a written reprimand and “counseling related

to the proper response to verbal abuse from inmates”

8 Reed spread his legs open and told a nurse to “look at this.” Id.

at 83a, ¶ 102 (a).

9 Reed was also found to have violated department policy in four

other incidents, including a knowing misrepresentation in the

context of doing headcounts (Id. at 87a, ¶ 110); a citizen report

that Reed was acting “irate” as if he was on steroids (Id. at 87a, ¶

111); an improper and illegal personal use of the Georgia Crime

Information Center (“GCIC”), a felony under Georgia law (Id. at

87a, ¶ 112); and an incident involving favoritism, where Reed

repeatedly allowed a favored inmate out of his cell in violation of

jail policy, resulting in a fight between segregated inmates (Id. at

89a, ¶¶ 116-18).

9

by two command staff members but was not suspended

and lost no pay. Id. at 81a-82a, ¶¶ 96-99.

Finally, and most importantly, after the year-plus

sustained campaign of inmate abuse, Reed was given

only a verbal reprimand – he was not suspended, he

lost no pay, and he was allowed to continue overseeing

inmates without direct supervision. Id. at 86a, ¶¶ 10809.

Divided Opinion on Whether the Supervisors

Are Protected by Qualified Immunity

Quinette filed suit against Respondents under 42

U.S.C. § 1983, alleging that (1) Reed’s attack was

excessive force, and (2) the supervisory Respondents

were aware of Reed’s violent and abusive history and

failed to properly monitor, discipline, or terminate

Reed despite the obvious risk his continued

employment and ability to supervise inmates without

monitoring posed to the inmate population.

Respondents filed a motion to dismiss the complaint

under Fed. R. Civ. P. 12(b)(6), claiming that they were

protected by qualified immunity.

The district court denied the motion, finding that

neither Reed nor the supervisory Respondents were

protected by qualified immunity. See Pet. App. 26a62a. Regarding the supervisory Respondents, the

district court held that they were not protected by

qualified immunity because “Reed’s extensive history

of using excessive force and violence toward inmates

was sufficient to put the Command Staff Defendants on

notice of his misconduct and was sufficiently blatant to

require them to act.” Id. at 57a.

10

Respondents appealed to the Eleventh Circuit. As

to the claims against Reed, the three-judge panel

affirmed the district court 3-0, easily finding that the

attack was sufficiently egregious that Reed was not

protected by qualified immunity.

Id. at 7a-17a.

Regarding the supervisory Respondents, however, a 21 majority reversed the district court and dismissed the

claims on qualified immunity grounds because the

supervisors had imposed some discipline, lacking as it

was. Id. at 17a-21a. The majority reasoned, “The

supervisors likely could have (and, as it turns out,

should have) done more to discipline Reed … [but] [i]n

this Circuit, the published excessive-force cases

imposing supervisory liability appear to all involve

supervisors who took no action when aware of their

subordinate’s unlawful conduct.” Id. at 20a. The

majority further distinguished a prior Eleventh Circuit

case where municipal liability existed based on

insufficient discipline of an officer, reasoning that (1)

the prior precedent involved municipal rather than

supervisory liability, and (2) the discipline there

(verbal reprimand) was de minimus compared with the

previous discipline of Reed. Id. at 21a.

The Eleventh Circuit panel’s dissenting judge

agreed with the district court, that “Reed’s history of

‘obvious, flagrant, [and] rampant’ use of excessive force

and related conduct, such as using racial epithets,

profanity, and threats, and losing his temper with

inmates provided meaningful notice to the supervisors

that they needed to correct a constitutional violation.”

Id. at 24a-27a.

11

Quinette timely filed a petition for rehearing en

banc, which was denied on October 23, 2020. Id. at 63a.

This petition followed.

REASONS FOR GRANTING THE WRIT

1. The Panel Majority Improperly Applied

Qualified Immunity to Protect Jail Supervisors

Who Repeatedly Failed to Meaningfully

Discipline a Violent and Abusive Jailer

Quinette was attacked by a jailer who had an

unconscionable disciplinary history – he had assaulted

restrained inmates on three separate occasions, and in

the year before he had been the subject of more than

fifteen reports of inmate abuse ranging from racial

epithets to physical threats. Respondents’ failure to

adequately

discipline

Reed

was

obviously

unconstitutional and they should not be protected by

qualified immunity.

A. The panel majority’s holding that

Respondents are entitled to qualified

immunity

despite

the

obvious

unconstitutionality of their conduct conflicts

with this Court’s precedent

As this Court recently reaffirmed, “a general

constitutional rule already identified in the decisional

law may apply with obvious clarity to the specific

conduct in question.” Taylor v. Riojas, 141 S. Ct. 52,

52–54 (2020) (quoting Hope v. Pelzer, 536 U.S. 730,

741, 122 S.Ct. 2508 (2002)). The general constitutional

rule here was stated in City of Canton, Ohio v. Harris:

12

It may seem contrary to common sense to

assert that a municipality will actually have a

policy of not taking reasonable steps to train its

employees. But it may happen that in light of

the duties assigned to specific officers or

employees the need for more or different

training is so obvious, and the inadequacy so

likely to result in the violation of constitutional

rights, that the policymakers of the city can

reasonably be said to have been deliberately

indifferent to the need.

489 U.S. 378, 390, 109 S. Ct. 1197, 1205 (1989).

Applying this principle in the context of a failure to

discipline, the Eleventh Circuit has explained,

“supervisors are liable for the excessive force ... of their

employees where the supervisors received numerous

reports of prior misconduct of that nature by those

same employees and did nothing to remedy the

situation.” Danley v. Allen, 540 F.3d 1298, 1315 (11th

Cir. 2008), overruled on other grounds as recognized in

Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010).

Here, the “need for more or different training” was

patently obvious and the inadequacy of the discipline

imposed was “so likely to result in the violation of

constitutional rights” that a jury could easily find that

Respondents were deliberately indifferent to the need.

13

Reed’s disciplinary history, recounted in the

Complaint, speaks for itself:

April 2000

Lying about

head count

One-day suspension

January

2005

Attack of

restrained

inmate

No discipline

(“unfounded” because

not on video)

August

2005

“Irate” conduct

with citizen

motorist;

exhibiting

symptoms of

steroid abuse

Verbal reprimand

September

2005

Unauthorized

use of GCIC for

personal reasons

(two-year felony)

No discipline

March

2006

Attack of

restrained

inmate on video,

inmate sent to

hospital

Reprimand and

“refresher” on

defensive tactics

June 2008

Arrest on bench

warrant (probate

court warrant

revealed Reed’s

embezzlement of

minor daughter’s

settlement

proceeds)

No discipline

14

September

2009

Attack of

restrained

inmate on video

Reprimand and

informal “counseling”

(merely an informal

conversation)

2013-2014

Campaign of

inmate abuse

(15+ incidents)

Verbal reprimand (no

accompanying

training or

counseling)

May 2015

Allowing a

favored inmate

out of

segregation,

resulting in a

fight

16-hour suspension

As this Court has explained, a municipal

decisionmaker’s “continued adherence to an approach

that they know or should know has failed to prevent

tortious conduct by employees may establish the

conscious disregard for the consequences of their

action—the ‘deliberate indifference’—necessary to

trigger municipal liability.” Bd. of Cty. Comm’rs of

Bryan Cty., Okl. v. Brown, 520 U.S. 397, 407, 117 S. Ct.

1382, 1390 (1997) (citing City of Canton).

At best, Respondents turned a blind eye to Reed’s

repeated transgressions.

More cynically, the

disciplinary history sends a troubling message: while

insubordination is frowned upon, attacking and/or

abusing inmates is tolerated.

In two cases of

insubordination as opposed to attacking and/or

abusing inmates, Reed was suspended. Reed was

15

suspended for eight hours after lying to superiors about

a head count and he was suspended for 16 hours after

letting a favored segregated inmate out of his cell,

allowing for a fight among inmates. In almost 20

instances of attacking or abusing inmates, however,

Reed suffered at most a reprimand and, in only two of

those instances, meaningless counseling, after which

his abusive conduct toward inmates continued.

Despite the unambiguous language from this Court

that in a claim of a failure to discipline and/or train “the

focus must be on the adequacy of the training program

in relation to the tasks which the particular municipal

officers must perform,” City of Canton at 390

(emphasis supplied), the panel majority below refused

to examine the adequacy of Respondents’ employment

decisions. Instead, the panel majority read this Court’s

admonition in City of Escondido v. Emmons, 139 S. Ct.

500, 503 (2019) “not to define clearly established law at

a high level of generality,” took that language to

require an overly-harsh application of qualified

immunity, and dismissed the suit on the pleadings

because there is no identical case where an employee is

repeatedly given inadequate discipline (as opposed to

no discipline) but continues to attack and abuse people.

The majority’s microscopic application of qualified

immunity is misguided. First, the principles from this

Court’s decisions in City of Canton and Bd. of Cty.

Comm’rs of Bryan Cty., Okl. v. Brown make it clear

that the proper inquiry is into the adequacy of the

supervisory response. Second, the Eleventh Circuit

has “long recognized that supervisors are liable for the

16

excessive force ... of their employees where the

supervisors received numerous reports of prior

misconduct of that nature by those same employees

and did nothing to remedy the situation.”10 Third, in

the few cases in which there has been some response to

a disciplinary issue, though inadequate – the Eleventh

Circuit has not afforded those defendants qualified

immunity.11

The panel majority also fails to adequately

distinguish Depew, where municipal liability existed

despite insufficient discipline of an officer.

The

majority reasoned that (1) the prior precedent involved

municipal rather than supervisory liability, and (2) the

discipline there (verbal reprimand) was “de minimus”

compared with the previous discipline of Reed. Both

distinctions fail, however. Regarding the distinction

between municipal and supervisory liability, the

Eleventh Circuit itself has emphasized that the focus

in a qualified immunity analysis is not the legal source

10 Danley at 1315.

See also Brown v. Crawford, 906 F.2d 667, 671

(11th Cir. 1990).

11 See, e.g., Depew v. City of St. Marys, Georgia, 787 F.2d 1496

(11th Cir. 1986) (finding supervisory liability despite prior

discipline against offending officer; “Officer Ring was never

disciplined other than by verbal reprimand although he had been

cited for poor and improper work on many occasions.”); Valdes v.

Crosby, 450 F.3d 1231, 1240 (11th Cir. 2006) (finding supervisory

liability because, in part, one corrections officer bragged that he

had been suspended but not terminated for using excessive force);

Williams v. Santana, 340 F.App’x 614, 617 (11th Cir. 2009)

(rejecting a supervisor’s claim of qualified immunity when an

officer with a history of excessive force had been subjected to a

previous written reprimand).

17

of the right but the contours of the right itself, so the

distinction between municipal and individual liability

in previous authority is irrelevant so long as the right

is clearly established.12 Regarding the supervisory

response, the discipline in Depew is substantially the

same as the discipline here – verbal reprimand. The

panel majority puts great weight in Reed’s

suspensions, but those suspensions were only for

insubordination, never for his repeated abusive and

violent behavior with inmates.

Reed was never

meaningfully disciplined after he violated an inmate’s

constitutional rights.

The panel majority’s

meaningless distinction here is similar to the Fifth

Circuit’s distinction between confining an inmate in a

cell “teeming with human waste” for months versus

doing so for six days. Taylor v. Riojas, 141 S. Ct. 52.

12 See Al-Amin v. Smith, 511 F.3d 1317, 1335–36 (11th Cir. 2008)

(finding that clear law in the context of a Sixth Amendment

violation created the proper notice for a First Amendment

violation notwithstanding the different source of the right

violated: “We have never required that, in order for an official to

know his conduct is unlawful, a reasonable official must be able to

cite by chapter and verse all of the constitutional bases that make

his conduct unlawful.”) See also, e.g., Dodds v. Richardson, 614

F.3d 1185, 1206 (10th Cir. 2010) (finding that precedent in the

context of municipal liability provides proper notice for an

individual capacity claim against a sheriff for supervisory

liability: “while [previous authority] admittedly involved

municipal liability, other cases of ours and the great weight of

authority from other circuits clearly established by 2007 that

officials may be held individually liable for policies they

promulgate, implement, or maintain that deprive persons of their

federally protected rights.”).

18

Ultimately, it is not surprising that there is no

perfectly identical case from the Eleventh Circuit.

What employee keeps his or her job after three violent

attacks, more than fifteen verified instances of racist

language, religious intolerance, and abuse, embezzling

from his daughter, and committing a felony on the job?

As this Court has noted, 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 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)).

The Court should grant review to clarify the correct

application of qualified immunity. Does a plaintiff

alleging a claim of failure to discipline have to identify

a prior case where the response by supervisors to an

employee’s pattern of disturbing conduct was identical

to the response in the plaintiff’s case? Is qualified

immunity applied this narrowly? Alternately, are the

general rules from City of Canton and Danley, read in

conjunction with Depew, narrow enough to put these

supervisors on notice of the unconstitutionality of their

actions? Or, even in the absence of this authority, does

the outrageous decision to allow Reed to continue

supervising (and abusing) inmates despite his history

put the unconstitutionality of Respondents’ behavior

beyond debate?

19

B. The decision below conflicts with circuit

court decisions from the Second, Sixth,

Seventh, and Ninth Circuits, which have

authorized suit on similar facts

The panel majority’s decision also conflicts with

precedent from at least the Second, Sixth, Seventh, and

Ninth circuits.

In Curry v. Scott, 249 F.3d 493, 508–09 (6th Cir.

2001), the Sixth Circuit found that several inmates had

stated valid claims of deliberate indifference against

supervisors after the supervisors failed to adequately

discipline a jailer with a troubled history. That jailer’s

disciplinary history is astonishingly similar to Reed’s

here – a total of nineteen complaints including verbal

abuse, racial slurs, abusive behavior, and reports of

uses of force (though none verified, as opposed to Reed’s

here which were on video). Id. at 498. Notably, the

Curry court rejected the supervisors’ argument that

they met each of the jailer’s individual transgressions

with an appropriate response (the jailer had been

ordered to undergo re-training and corrective

counseling on several occasions), reasoning that this

argument overlooked the vast number of complaints

and pattern of harassment. Id. at 508-09.

Similarly, in Blankenhorn v. City of Orange, 485

F.3d 463, 486 (9th Cir. 2007), the Ninth Circuit found

that an arrestee who was assaulted by an officer stated

a valid supervisory liability claim against the police

chief because of the officer’s disciplinary history. The

officer had been the subject of three previous excessive

force complaints, and after each incident the officer

was suspended or reprimanded. Id. at 485. With the

20

benefit of discovery, the court considered expert

testimony that the reprimands were insufficient and

found this history of “repeated and serious complaints”

sufficient to impose liability on the police chief despite

the discipline imposed. Id. at 485-86.

Or, in J.K.J. v. Polk Cty., 960 F.3d 367, 383 (7th Cir.

2020) (en banc), cert. denied sub nom. Polk Cty., WI v.

J. K. J., No. 20-427, 2021 WL 78483 (U.S. Jan. 11,

2021), the Seventh Circuit authorized a claim of

deliberate indifference against a county after a female

inmate was sexually assaulted by a jailer because the

jail captain was aware of a prior instance of sexual

misconduct by a jailer but inadequately addressed the

problem: “the County’s investigation of [the jailer]

ended with the considered conclusion that a reprimand

was adequate discipline. But even the reprimand came

with jail officials assuring [the jailer] that the censure

was ‘not a big deal.’ The jury could have viewed this

slap on the wrist as confirming the jail’s broken

culture….”

In Lucente v. Cty. of Suffolk, 980 F.3d 284, 289–90

(2d Cir. 2020), the Second Circuit held that an inmate

stated a valid claim of deliberate indifference against

supervisory jail officials after a female inmate was

sexually assaulted by a jailer because supervisors were

aware of a prior instances of sexual harassment,

despite the fact that the jailer had been previously

reprimanded and cautioned that repetition of his

behavior would result in more serious disciplinary

action. Id. at 307 (“supervisors ‘had to correct [his

behavior] so many times it was like being a mother ...

21

you would be frustrated sometimes and just say, okay,

you gotta stop’”).

The panel majority broke with its sister circuits

when it failed to recognize that a wholly inadequate

response to a jailer’s repeated transgressions creates

liability for the supervisors or government entity. This

Court should grant review to establish consistency

among the circuits.

C. In the alternative, the Court should

summarily reverse because the Eleventh

Circuit

applied

qualified

immunity

improperly

If the Court chooses not to grant plenary review, it

should summarily reverse the Eleventh Circuit. First,

as detailed above, the majority holding is plainly

contrary to City of Canton, Danley, and Depew.

Moreover, the decision deviates from the Court’s

qualified immunity doctrine because the absence of

identical precedent does not guarantee immunity for

egregious constitutional violations. See, e.g., Hope v.

Pelzer, 536 U.S. 730, 741, 745-46 (2002), Taylor v.

Riojas, 141 S. Ct. 52 (2020). For these reasons, if the

Court does not grant review it should summarily

reverse the Eleventh Circuit.

2. The Court Should Grant Review to Revise or

Eliminate the Application of Qualified Immunity

to Claims of Supervisory Liability

In Georgia, sheriffs’ offices are powerful law

enforcement agencies. See O.C.G.A. §§ 15-16-1 et seq.

There are 143 county jails in Georgia that incarcerate

22

approximately 236,000 people every year, all run by

county sheriffs.13 Georgia sheriffs also provide law

enforcement duties, register and track sex offenders,

serve civil papers, and provide courthouse security

throughout the state.14

Nonetheless, the patchwork of applicable

immunities makes it nearly impossible to subject a

policy or practice of a sheriff’s office to judicial review.

Under Georgia law, a lawsuit against a sheriff in his

official capacity is considered a suit against the county

and the sheriff is protected by the county’s sovereign

immunity. See Gilbert v. Richardson, 264 Ga. 744,

747(2), 452 S.E.2d 476 (1994). The only waivers of that

immunity are narrow, such as the automobile

insurance waiver. See, e.g., O.C.G.A. § 33-24-51.

Under federal law, claims against Georgia sheriffs for

municipal liability (i.e., an unconstitutional policy or

practice) under 42 U.S.C. § 1983 are typically barred

by Eleventh Amendment immunity because sheriffs

are usually considered “arms of the state” for Eleventh

Amendment immunity purposes. See, e.g., Manders v.

Lee, 338 F.3d 1304 (11th Cir. 2003).

13 See Wanda Bertram and Alexi Jones, How many people in your

state go to local jails every year?, Prison Policy Initiative

(available at https://www.prisonpolicy.org/blog/2019/09/18/statejail-bookings/) (last visited March 18, 2021).

The Georgia Sheriff, March 2021, p.3 (available at

https://georgiasheriffs.org/modules/mod_flipbook_23/tmpl/book.ht

ml) (last visited March 18, 2021) (publication by the Georgia

Sheriffs’ Association outlining the duties of Georgia sheriffs). See

also, e.g., O.C.G.A. § 15-16-10.

14

23

In other words, the Eleventh Circuit and the courts

of Georgia have worked hard to ensure that Georgia

sheriffs are insulated from suit in their official

capacities for claims of unconstitutional policies or

practices. As a result, a citizen injured because of an

unconstitutional policy or practice of a Georgia sheriff’s

office has but one recourse – an individual capacity suit

against supervisory officials under 42 U.S.C. § 1983.

There is no other meaningful option.

Given this backdrop, the fundamental unfairness of

protecting Georgia sheriffs and supervisors with

qualified immunity for the policies and practices of

their offices comes into focus.

While qualified

immunity is unjust in its normal application, as is

discussed below, the injustice is at its apex when it

insulates a decision made by a committee of

supervisors to adopt a formal policy, to allow a pattern

of unconstitutional behavior, or to allow a jailer with a

reprehensible disciplinary history to continue abusing

inmates. This Court has explained that qualified

immunity is especially necessary in the context of an

officer’s split-second decision. See Mullenix v. Luna,

577 U.S. 7, 12, 136 S. Ct. 305, 308 (2015) (“We have

repeatedly told courts ... not to define clearly

established law at a high level of generality. … Such

specificity is especially important in the Fourth

Amendment context, where the Court has recognized

that it is sometimes difficult for an officer to determine

how the relevant legal doctrine, here excessive force,

will apply to the factual situation the officer

confronts.”) (citations and internal quotation omitted).

24

If that is the case, then this Court should consider the

corollary – qualified immunity is less important, and

should be applied with less specificity, when

supervisors have the time and experience to make

reasoned decisions.

That principle – that qualified immunity should be

applied less stringently or not at all to reasoned

decisions by supervisors – makes sense because a claim

for supervisory liability is the functional equivalent of

a claim for municipal liability, for which there is no

qualified immunity. The current approach of applying

qualified immunity to claims against Georgia sheriffs

for unconstitutional policies and procedures creates a

bizarre disconnect. If a citizen is injured by an

unconstitutional policy of city or county law

enforcement where a claim for municipal liability

under 42 U.S.C. § 1983 is viable, he or she has a right

to meaningful judicial review without clearing the

hurdle of qualified immunity. But if that citizen is

injured by a sheriff’s unconstitutional policy which is

not “clearly established” under a microscopic

examination of then-current law, there is no

meaningful judicial review of the potentially

unconstitutional policy.

Moreover, qualified immunity makes less sense in a

claim for supervisory liability because the standard is

so exacting. A plaintiff like Quinette asserting a claim

for a supervisor’s failure to train or discipline an

employee must establish that the failure amounts to

deliberate indifference to the constitutional rights of

the people with whom the employee will interact. City

25

of Canton at 388. Qualified immunity is redundant

when applied to a claim for deliberate indifference

because the “good faith” justification for qualified

immunity is baked into the deliberate indifference

standard. As one author has mused, “[T]he notion that

a supervisor can be deliberately indifferent to a

subordinate’s violation of clearly established law and

at the same time can act in ‘objective legal

reasonableness’ or make a ‘reasonable mistake’ is

incongruous on its face.” Kit Kinports, Iqbal and

Supervisory Immunity, 114 Penn St. L. Rev. 1291,

1305 (2010).

Finally, qualified immunity makes especially bad

policy in the context of a supervisory liability claim.

Supervisors like Georgia sheriffs are ultimately

responsible for the policies and procedures of their

offices; they are the ones with the power and resources

to make necessary reforms. Liability under 42 U.S.C.

§ 1983 creates the incentive for supervisors to make

reforms when necessary, and it can hold them to

account when they do not. In the current landscape, it

is exceedingly difficult to justify such a regressive

policy which does not exist in the text of 42 U.S.C. §

1983 or the common law of official immunity.

The Court should grant review to revisit the

application of qualified immunity to claims against

supervisors, where the justification for the doctrine is

at its least defensible.

26

3. The Court Should Recalibrate or Abolish

Qualified Immunity

Petitioner adds his voice to the chorus of justices,

judges, authors, and advocates who are calling for the

Court to reexamine qualified immunity and either

abolish it entirely or, at a minimum, limit its

application.

A. Qualified immunity has no basis in text or

history

Judge Reeves’ opinion in Jamison v. McClendon,

where he was bound by precedent to dismiss a lawsuit

brought by an innocent black man who was illegally

stopped, harassed, and searched, makes the case for a

reexamination of qualified immunity as well as it can

be made. 476 F. Supp. 3d 386 (S.D. Miss. 2020).

As Judge Reeves recounts, 42 U.S.C. § 1983,

initially the “Ku Klux Klan Act,” came to life during

reconstruction as an effort to curb the “reign imposed

by the Klan upon black citizens and their white

sympathizers in the Southern States.” Id. at 399. The

Ku Klux Klan Act “targeted the racial violence in the

South undertaken by the Klan, and the failure of the

states to cope with that violence.” Id. at 399. The Act

targeted state officials with civil liability because many

of the perpetrators of racial terror were members of law

enforcement. Id. Of course, the Act failed for a century

as reconstruction gave way to white supremacy, until

the Court revived it in the 1961 Monroe v. Pape

decision, breathing life back into the statute and

creating real liability for state actors. Id. at 400-01.

27

Then came qualified immunity or, as Judge Reeves

puts it, “The Empire Strikes Back.” Id. at 402.

Qualified immunity was born in Pierson v. Ray, where

several “white and Negro Episcopal clergymen” were

arrested and prosecuted because they “attempted to

use segregated facilities at an interstate bus terminal”

thereby violating a Mississippi law that essentially

gave police officers unfettered power to order

protesters to disburse and arrest them when they did

not (the law was later invalidated by the Court when it

was used to arrest Freedom Riders in an identical

situation). 386 U.S. 547, 548-49, 87 S.Ct. 1213 (1967).

The officers claimed that they should be able to avoid

civil liability if they “acted in good faith and with

probable cause in making an arrest under a statute

that they believed to be valid.” Id. at 555. The Court

agreed, noting that “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.” Id. at 555-57.15

15 Of course, the common law defense contemplated in Pierson is

not a freestanding defense to any tort claim against a government

official, it is a defense specific to a cause of action for false arrest

which remains a defense to the tort today. See, e.g., Brown v. City

of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010) (“An arrest

without a warrant and lacking probable cause violates the

Constitution and can underpin a § 1983 claim, but the existence

of probable cause at the time of arrest is an absolute bar to a

subsequent constitutional challenge to the arrest.”) So, the first

reading of an immunity defense into 42 U.S.C. § 1983 is that of a

28

After Pierson, however, the Court diverged from

any historical inquiry and “completely reformulated

qualified immunity along principles not at all

embodied in the common law.” Ziglar v. Abbasi, 137 S.

Ct. 1843, 1871, 198 L. Ed. 2d 290 (2017) (Thomas, J.

concurring) (citation omitted). The Court created the

modern qualified immunity doctrine and applied it

“across the board and without regard to the precise

nature of the various officials’ duties or the precise

character of the particular rights alleged to have been

violated.” Id. As Justice Thomas noted, the Court has

yet to “locate that standard in the common law as it

existed in 1871,” and “some evidence supports the

conclusion that common-law immunity as it existed in

1871 looked quite different from our current doctrine.”

Id.

In short, there is no defensible claim that qualified

immunity is rooted in text or history – it is not. “The

Supreme Court came up with it in 1982.” Jamison at

404. Nor is this a novel take on history; there is a

specific defense to a specific tort rather than an inherent

immunity applicable to all claims against all government actors.

29

growing consensus among judges16 and authors17 that

qualified immunity is a modern invention without

basis in common law.

16 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 v. Alamu, 950

F.3d 226, 237 (5th Cir. 2020) (Costa, J., dissenting in part); Kelsay

v. Ernst, 933 F.3d 975, 987 (8th Cir. 2019) (Grasz, J., dissenting);

Zadeh v. Robinson, 928 F.3d 457, 479 (5th Cir. 2019) (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).

See, e.g., Joanna C. Schwartz, The Case Against Qualified

Immunity, 93 NOTRE DAME L. REV. 1797, 1801 (2018); Joanna

C. Schwartz, How Qualified Immunity Fails, 127 YALE L.J. 2, 14

(2017); William Baude, Is Qualified Immunity Unlawful?, 106

CAL. L. REV. 45, 81 (2018); Pamela S. Karlan, Foreword:

Democracy and Disdain, 126 HARV. L. REV. 1, 61 (2012); John C.

Jeffries, Jr., What's Wrong with Qualified Immunity?, 62 FLA. L.

REV. 851, 859 (2010); Mark R. Brown, The Fall and Rise of

Qualified Immunity: From Hope to Harris, 9 NEV. L.J. 185, 195

(2008); Charles R. Wilson, “Location, Location, Location”: Recent

Developments in the Qualified Immunity Defense, 57 N.Y.U.

ANN. SURV. AM. L. 445, 447 (2000); Samuel R. Bagenstos, Who

Is Responsible for the Stealth Assault on Civil Rights?, 114 MICH.

L. REV. 893, 909 (2016); Brief of Cross-Ideological Groups

Dedicated to Ensuring Official Accountability, Restoring the

Public's Trust in Law Enforcement, and Promoting the Rule of

17

30

Given the lack of any justification in the text of 42

U.S.C. § 1983 or in the history of common law tort

defenses, it is time for this Court to reexamine the

doctrine.

B. Qualified

immunity

fails

in

implementation and it fails is to achieve its

policy goals

Qualified immunity is also an unworkable

standard. One only need to look at the procedural

history of this case to see it. The chief district judge (a

federal judge of 24 years) reviewed the facts here, read

the Eleventh Circuit’s decision in Williams v.

Santana,18 and drew the eminently reasonable

conclusion that, if the supervisors in Williams were on

notice of the unconstitutionality of their actions in

2009, the supervisors here were on similar notice. The

Eleventh Circuit dissenting judge (a federal judge of 31

years) likewise believed the supervisors here were on

notice of the unconstitutionality of their actions. The

Law as Amici Curiae in Support of Petitioner, Baxter v. Bracey,

140 S. Ct. 1862 (2020) (No. 18-1287) 2019 WL 2370285.

18 In Williams, the Eleventh Circuit denied supervisors’ claims of

qualified immunity in an analogous case where “numerous prior

incidents involving [a police officer’s] use of force were sufficient

to put [the supervisor] on notice of misconduct that was

sufficiently ‘obvious, flagrant, rampant and of continued duration’

to require him to act” even though the officer had been subject to

a previous written reprimand. 340 F. App’x 614 at 618. There,

the Court found the constitutional principle was clearly

established via Brown v. Crawford, 906 F.2d 667, 671 (11th

Cir.1990) and Danley, 540 F.3d at 1315.

31

panel majority (two judges who have been on the bench

four and 19 years respectively) applied qualified

immunity more narrowly, believing that this Court’s

recent precedents require a much narrower

articulation of constitutional principles before even

allowing Petitioner to undertake discovery.

In other words, four federal judges with almost 80

collective years on the bench devoted the substantial

resources of their offices and, doing their level best to

apply this Court’s precedent faithfully, came out

differently on the question. How workable is a

standard that repeatedly divides the best jurists, and

does so not on political or ideological lines, but purely

on the difficulty of applying the standard?19

It would be easy to say Quinette’s case is uniquely

difficult, but it is not. This level of difficulty in applying

the broken doctrine is not the exception, it is the rule.

Every year, this Court sees petition after petition

where the question of qualified immunity is either

19 “Although the Court is not always unanimous on these issues,

it is fair to say that qualified immunity has been as much a liberal

as a conservative project on the Supreme Court. Judges disagree

in these cases no matter which President appointed them.

Qualified immunity is one area proving the truth of Chief Justice

Roberts’ statement, ‘We do not have Obama judges or Trump

judges, Bush judges or Clinton judges.’” Jamison at 408 (internal

citations and quotations omitted).

32

difficult or impossible to apply correctly.20 This is not

the hallmark of a workable doctrine.21

Nor does qualified immunity accomplish its policy

goals. Qualified immunity, which protects government

actors from personal financial liability, is primarily

justified by the purported fear of chilling government

actors from exercising their duties lest they see

personal financial ruin.22 But when an individual does

not face personal financial liability – when the

damages will be paid by an insurer or the public

20 Last year’s crop of difficult cases included Baxter v. Bracey, 140

S. Ct. 1862 (2020); Brennan v. Dawson, 141 S. Ct. 108 (2020) and

Dawson v. Brennan, 141 S. Ct. 108 (2020); Zadeh v. Robinson, 141

S. Ct. 110 (2020); Corbitt v. Vickers, 141 S. Ct. 110 (2020); West v.

Winfield, 141 S. Ct. 111 (2020); Mason v. Faul, 141 S. Ct. 116

(2020); Anderson v. City of Minneapolis, Minnesota, 141 S. Ct. 110

(2020); and Hunter v. Cole, 141 S. Ct. 111 (2020).

21 See Johnson v. United States, 135 S. Ct. 2551, 2562 (2015) (“The

doctrine of stare decisis allows us to revisit an earlier decision

where experience with its application reveals that it is

unworkable”).

22 See, e.g., Forrester v. White, 484 U.S. 219, 223, 108 S. Ct. 538,

542 (1988) (“Special problems arise [] when government officials

are exposed to liability for damages. … By its nature [] the threat

of liability can create perverse incentives that operate to inhibit

officials in the proper performance of their duties. … When

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.”)

33

treasury – the policy justification fails, and this Court

does not normally extend immunity.23

But recent scholarship has revealed that, in

practice, government actors almost never face personal

financial liability – police officers almost never

contribute to settlements and judgments, they never

contribute to punitive damages awards, and they

almost never have to pay for defense counsel.24 The

same is true for corrections officers like Reed –

personal financial exposure is almost never a

See, e.g., Richardson v. McKnight, 521 U.S. 399, 411 (1997)

(comprehensive insurance coverage for private prison guards

“reduces the employment discouraging fear of unwarranted

liability”); Owen v. City of Independence, 445 U.S. 622, 654 (1980)

(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”).

23

24 See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L.

Rev. 885, 890 (2014) (“Although my data has some arguably

inevitable limitations, it resoundingly answers the question

posed: Police officers are virtually always indemnified. Between

2006 and 2011, in forty-four of the country’s largest jurisdictions,

officers financially contributed to settlements and judgments in

just .41% of the approximately 9225 civil rights damages actions

resolved in plaintiffs’ favor, and their contributions amounted to

just .02% of the over $730 million spent by cities, counties, and

states in these cases. Officers did not pay a dime of the over $3.9

million awarded in punitive damages. And officers in the thirtyseven small and mid-sized jurisdictions in my study never

contributed to settlements or judgments in lawsuits brought

against them.”)

34

legitimate concern.25 The research therefore suggests

that the dilemma which concerned the Court in Pierson

– “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” – is a false one.

386 U.S. at 555-57.

C. Qualified immunity is unjust

In addition to being unmoored in text or history,

categorically unworkable, and unable to accomplish its

stated goals, qualified immunity is also unjust. Judge

Reeves’ accounting of recent qualified immunity

decisions makes the point:

A review of our qualified immunity precedent

makes clear that the Court has dispensed with

any pretense of balancing competing values.

Our courts have shielded a police officer who

shot a child while the officer was attempting to

shoot the family dog;26 prison guards who forced

See Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev.

1555, 1675–76 (2003) (“But for individual officers, litigation is

mostly a minor inconvenience because, although lawsuits name

them as defendants, 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.”)

25

Citing Corbitt v. Vickers, 929 F.3d 1304, 1323 (11th Cir.

2019), cert. denied, No. 19-679, ––– U.S. ––––, 141 S.Ct. 110 (U.S.

June 15, 2020).

26

35

a prisoner to sleep in cells “covered in feces” for

days;27 police officers who stole over $225,000

worth of property;28 a deputy who bodyslammed a woman after she simply “ignored

[the deputy’s] command and walked away”;29 an

officer who seriously burned a woman after

detonating a “flashbang” device in the bedroom

where she was sleeping;30 an officer who

deployed a dog against a suspect who “claim[ed]

that he surrendered by raising his hands in the

air”;31 and an officer who shot an unarmed

woman eight times after she threw a knife and

Citing Taylor v. Stevens, 946 F.3d 211, 220 (5th Cir. 2019).

Taylor v. Stevens was reversed by this Court for improperly

applying qualified immunity, which further demonstrates the

unworkability of the standard – the Fifth Circuit took this Court’s

precedent to require immunity for the deplorable conduct in that

case. See Taylor v. Riojas, 141 S. Ct. 52 (2020).

27

Citing Jessop v. City of Fresno, 936 F.3d 937, 942 (9th Cir.

2019), cert. denied No. 19-1021, 140 S.Ct. 2793 (U.S. May 18,

2020).

28

29 Citing Kelsay v. Ernst, 933 F.3d 975, 980 (8th Cir. 2019), cert.

denied, No. 19-682, 140 S.Ct. 2760 (U.S. May 18, 2020).

30 Citing Dukes v. Deaton, 852 F.3d 1035, 1039 (11th Cir. 2017).

31 Citing Baxter v. Bracey, 751 F. App'x 869, 872 (6th Cir. 2018),

cert. denied, 140 S. Ct. 1862 (2020).

36

glass at a police dog that was attacking her

brother.32

If Section 1983 was created to make the courts

“guardians of the people’s federal rights,” what

kind of guardians have the courts become?

Jamison, 476 F. Supp. 3d at 403–04.

Many scholars call qualified immunity a moral

failure because it “routinely leaves individuals whose

rights are violated without any legal remedy.”33 In

practice, the ability of the victim of governmental

misconduct to get redress “turns not on whether state

actors broke the law, nor even on how serious their

misconduct was, but simply on the happenstance of

whether the case law in their jurisdiction happens to

include prior cases with fact patterns that match their

own.” Id. This is an impossible criticism to answer

because it is an injustice inherent in the standard

itself.

32 Citing Willingham v. Loughnan, 261 F.3d 1178, 1181 (11th Cir.

2001), cert. granted, judgment vacated, 537 U.S. 801, 123 S.Ct. 68

(2002).

33 See Jay Schweikert, Qualified Immunity: A

Legal, Practical,

and Moral Failure, available at https://www.cato.org/policyanalysis/qualified-immunity-legal-practical-moral-failure

(last

visited March 16, 2021). See also, infra, note 14.

37

Moreover, the doctrine creates the uniquely

perverse outcome of barring the more egregious cases

(like Quinette’s) because 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 less likely to do it. See

Safford, 557 U.S. at 377-78.

This is an ideal case for the Court to reconsider

qualified

immunity

because

the

facts

are

straightforward and entirely uncontested – the parties

are here on a dismissal under Fed. R. Civ. P. 12(b)(6).

The law is also squarely presented with no stray or

ancillary issues – the only holding before this Court is

whether the supervisors below were protected by

qualified immunity. Moreover, the context here – a

supervisory decision by multiple commanders in

committee to allow a violent and abusive jailer to

continue overseeing and abusing inmates – is not

clouded with the “split-second decision-making” of a

dynamic decision by a law enforcement officer. Finally,

the granularity of the panel majority’s decision, and

the divide it created among the four judges who

reviewed the matter, perfectly demonstrates the

difficulty courts face in applying this unworkable

doctrine.

38

CONCLUSION

The petition for writ of certiorari should be granted

or, in the alternative, the Court should summarily

reverse because the Eleventh Circuit applied qualified

immunity improperly.

Respectfully Submitted

This 18th day of March, 2021.

/s/ Mark Begnaud

Georgia Bar No. 217641

mbegnaud@eshmanbegnaud.com

ESHMAN BEGNAUD, LLC

315 W. Ponce De Leon Ave, Suite 775

Decatur, GA 30030

(404) 491-0170