Amicus Curiae Brief — Charles Wade, Petitioner v. Gordon Lewis

No. 21-1141

IN THE

Supreme Court of the United States

_______________________

CHARLES WADE,

Petitioner,

v.

GORDON LEWIS,

Respondent.

_______________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh

Circuit

_______________________

BRIEF OF RIGHTS BEHIND BARS AND THE

RODERICK & SOLANGE MACARTHUR

JUSTICE CENTER AS AMICI CURIAE IN

SUPPORT OF PETITIONER

_______________________

DANIEL GREENFIELD

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

NORTHWESTERN PRITZKER

SCHOOL OF LAW

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-8538

daniel-greenfield

@law.northwestern.edu

SAMUEL WEISS

Counsel of Record

RIGHTS BEHIND BARS

416 Florida Avenue, NW

#26152

Washington, DC 20001

(202) 455-4399

sam@rightsbehindbars.org

Counsel for Amicus Curiae

CORRECTED BRIEF

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

STATEMENT OF INTEREST ....................................1

SUMMARY OF THE ARGUMENT ............................1

I.

GOVERNMENT OFFICIALS MAY VIOLATE

“CLEARLY ESTABLISHED LAW” WITHOUT

PRIOR FACTUALLY IDENTICAL

DECISIONS. .........................................................3

II. THE ELEVENTH CIRCUIT ERRONEOUSLY

STACKED REMEDIAL DEFERENCE ATOP

SUBSTANTIVE DEFERENCE. ..........................7

III. THIS CASE MERITS SUMMARY

REVERSAL. ........................................................10

CONCLUSION ..........................................................11

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Creighton,

483 U.S. 635 (1987) ................................................ 4

Bellotte v. Edwards,

629 F.3d 415 (4th Cir. 2011) .................................. 6

Browder v. City of Albuquerque,

787 F.3d 1076 (10th Cir. 2015) .............................. 6

Carroll v. Carman,

574 U.S. 13 (2014) ................................................ 11

City of Escondido v. Emmons,

139 S. Ct. 500 (2019) ............................................ 11

Cowart v. Erwin,

837 F.3d 444 (5th Cir. 2016) .................................. 5

Estelle v. Gamble,

429 U.S. 97 (1976) .................................................. 9

Graham v. Connor,

490 U.S. 386 (1989) ................................................ 9

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .............................................. 11

Hope v. Pelzer,

536 U.S. 730 (2002) ........................................ 2, 4, 8

Hudson v. McMillian,

503 U.S. 1 (1992) .................................................... 8

iii

Kisela v. Hughes,

138 S. Ct. 1148 (2018) .......................................... 11

McCoy v. Alamu,

141 S. Ct. 1364 (2021) .................................... 2, 5, 8

McCoy v. Alamu,

950 F.3d 226 (5th Cir. 2020) .............................. 5, 9

Mullenix v. Luna,

577 U.S. 7 (2015) .................................................. 11

Newman v. Guedry,

703 F.3d 757 (5th Cir. 2012) .................................. 5

Palmer v. Johnson,

193 F.3d 346 (5th Cir. 1999) .................................. 8

Preiser v. Rodriguez,

411 U.S. 475 (1973) ................................................ 7

Rivas-Villegas v. Cortesluna,

142 S. Ct. 4 (2021) ................................................ 11

Stanton v. Sims,

571 U.S. 3 (2013) .................................................. 11

Tahlequah v. Bond,

142 S. Ct. 9 (2021) ................................................ 11

Taylor v. Barkes,

575 U.S. 822 (2015) .............................................. 11

Taylor v. Riojas,

141 S. Ct. 52 (2020) .................................... 2, 4, 5, 8

Taylor v. Stevens,

946 F.3d 211 (5th Cir. 2019) .............................. 4, 8

iv

Turner v. Safley,

482 U.S. 78 (1987) .................................................. 7

White v. Pauly,

137 S. Ct. 548 (2017) ............................................ 11

Other Authorities

Alexander J. Lindvall, Qualified Immunity

and Obvious Constitutional Violations,

28 GEO. MASON L. REV. 1047 (2021) ................. 6

Emma Kaufman, Segregation by

Citizenship, 132 HARV. L. REV. 1379

(2019) ...................................................................... 7

Joanna Schwartz, Qualified Immunity and

Federalism All the Way Down, 109 GEO.

L. J. 305 (2020)....................................................... 7

Michael L. Wells, Qualified Immunity After

Ziglar v. Abbasi: The Case for a

Categorical Approach, 68 AM. U. L.

REV. 379 (2018) ..................................................... 6

Sharon Dolovich, Forms of Deference in

Prison Law, 24 FED. SENT’G REP. 245

(2012) ...................................................................... 7

William Baude, Is Qualified Immunity

Unlawful?, 106 CALIF. L. REV. 45

(2018) .................................................................... 10

STATEMENT OF INTEREST1

Rights Behind Bars (RBB) legally advocates for

people in prison to live in humane conditions and

contributes to a legal ecosystem in which such

advocacy is more effective. RBB seeks to create a

world in which people in prison do not face large

structural obstacles to effectively advocating for

themselves in the courts. RBB helps incarcerated

people advocate for their own interests more

effectively and through such advocacy push towards a

world in which people in prison are treated humanely.

The Roderick & Solange MacArthur Justice Center

(MJC) is a not-for-profit organization founded by the

family of J. Roderick MacArthur to advocate for civil

rights and a fair and humane criminal justice system.

MJC has represented clients facing a myriad of civil

rights injustices and frequently litigates on behalf of

individuals subjected to unconstitutional conditions of

confinement. MJC has an interest in ensuring

accountability for civil rights violations by preventing

the unwarranted expansion of qualified immunity.

SUMMARY OF THE ARGUMENT

The Eleventh Circuit granted qualified immunity

to a correctional officer who ignored the pleas for

medical assistance from a prisoner who was “bleeding

all over” and leaving behind a “path of blood.” It did so

by distinguishing the act of ignoring a “path of blood”

1 No counsel for a party authored this brief in whole or in part,

and no counsel for a party (nor a party itself) made a monetary

contribution intended to fund the preparation or submission of

this brief. No person other than amicus or their counsel made a

monetary contribution to its preparation or submission. Both

parties have consented to the filing of this brief.

(1)

2

from a bleeding prisoner forced to walk from the act of

ignoring a “pool of blood” from a bleeding prisoner

forced to stay still.

The Eleventh Circuit erred. It required factually

identical precedent when both the court’s past

precedent and the broader legal principles were

adequate to put the defendant on notice. Though this

Court has long held that in “obvious” cases, general

principles of constitutional law provide government

officials with all the notice necessary to override the

defense of qualified immunity, see, e.g., Hope v. Pelzer,

536 U.S. 730, 741-46 (2002), lower courts have flouted

that settled rule. Last October Term alone, this Court

twice reversed or vacated lower courts for granting

qualified immunity despite the presence of obvious

constitutional violations. See Taylor v. Riojas, 141 S.

Ct. 52, 53-54 (2020); McCoy v. Alamu, 141 S. Ct. 1364

(2021).

Like handcuffing an incarcerated person to a

hitching post in the blazing Alabama sun, Hope, 536

U.S. at 737-38, forcing a prisoner to lie naked atop

human excrement for days on end, Taylor, 141 S. Ct.

at 53-54, and attacking an incarcerated person with

pepper spray “for no reason at all,” McCoy, 141 S. Ct.

1364, taking a prisoner leaving a trail of blood behind

him and throwing him into solitary confinement

instead of bring him medical assistance is sufficiently

unlawful that corrections officers need not have

opened a casebook to understand that their conduct

was prohibited under the Constitution. Relying on

such minute distinctions in granting qualified

immunity effectively bars recovery for plaintiffs

injured by the unconstitutional acts of a government

official. The court’s error is no less egregious than

those in Taylor and McCoy.

3

Also like in Taylor and McCoy, the court’s mistake

appears to be the result of granting both substantive

and remedial deference to prison officials. The

substantive law governing prison conditions is

already uniquely deferential to government

defendants. When courts erroneously stack a

deferential qualified immunity analysis on top of the

requisite substantive deference, the burden on

plaintiffs is all but insurmountable, even when the

conduct

is

indefensible

and

obviously

unconstitutional. That is what occurred here. This

Court should either grant plenary review and resolve

the circuit split in favor of petitioner or summarily

reverse.

I.

GOVERNMENT OFFICIALS MAY VIOLATE

“CLEARLY

ESTABLISHED

LAW”

WITHOUT

PRIOR

FACTUALLY

IDENTICAL DECISIONS.

Overcoming qualified immunity does not require

plaintiffs to find a case with a virtually identical

factual scenario. The Eleventh Circuit erred first by

distinguishing this case from its own precedent by

relying on trivial distinctions. It erred again in

holding that an officer ignoring the pleas for help from

a prisoner leaving a trail of blood before locking him

in a solitary confinement cell did not qualify as

obvious deliberate indifference to medical care, which

would obviate the need for precisely analogous

precedent.

The Eleventh Circuit’s cramped view of the

qualified immunity inquiry cannot be squared with

this Court’s rationalizations for the defense. This

Court has repeatedly explained that the relevant

question is whether analogous precedent provided

4

notice to defendants, not whether a court has held

that “the very action in question has previously been

held unlawful.” Anderson v. Creighton, 483 U.S. 635,

640 (1987). Therefore, a “general constitutional rule”

identified in prior cases provides fair warning when it

applies with “obvious clarity to the specific conduct in

question.” Taylor, 141 S. Ct. at 53-54 (citation

omitted). Obviousness alone can provide fair warning

to officials that their acts are unlawful. See, e.g.,

Taylor, 141 S. Ct. at 53-54; Hope, 536 U.S. at 741-46.

Just last term, this Court twice considered it

necessary to remind the lower courts of these

principles. First, in Taylor, this Court summarily

reversed the Fifth Circuit for its unduly narrow view

of the clearly established inquiry in a prison

conditions case. 141 S. Ct. at 53-54. Prison officials

had confined the plaintiff in a cell covered with feces

for four days, followed by two days without clothing in

a frigid cell that had a clogged drain overflowing with

human waste, forcing the plaintiff to sleep naked on

the floor in raw sewage. Taylor v. Stevens, 946 F.3d

211, 218-19 (5th Cir. 2019). But, because the lower

court had not previously held that prisoners could not

be “housed in cells teeming with human waste” for

“only six days,” it concluded that the law was not

clearly established. Id. at 222.

This Court, however, was untroubled by the

absence of a prior case establishing that the specific

duration of time a plaintiff was held in the conditions

at issue in Taylor was unconstitutional. Taylor, 141 S.

Ct. at 53-54. Instead, the “obviousness of [the

plaintiff’s] right” to be free from “such deplorably

unsanitary conditions for such an extended period of

time” was apparent from the “general constitutional

rule” barring deliberate indifference under the Eighth

5

Amendment. Id. at 53-54 & n.2 (quoting Hope, 536

U.S. at 741).

Several months later, this Court granted, vacated,

and remanded in another qualified immunity case,

McCoy v. Alamu, 141 S. Ct. 1364 (2021). In McCoy, the

Fifth Circuit had rejected the plaintiff’s argument

that being pepper sprayed by a prison guard “for no

reason” was an “obvious” violation of the general rule

that prison officials cannot act “maliciously and

sadistically to cause harm.” See McCoy v. Alamu, 950

F.3d 226, 229, 234 (5th Cir. 2020). Notwithstanding

Fifth Circuit caselaw clearly establishing that

punching a prisoner in the face for no reason, Cowart

v. Erwin, 837 F.3d 444, 449, 454-55 (5th Cir. 2016), or

tasing a prisoner without provocation, Newman v.

Guedry, 703 F.3d 757, 763-64 (5th Cir. 2012), violates

the Eighth Amendment, the majority granted the

guard qualified immunity because it had never held

that a guard could not pepper spray a prisoner for no

reason. McCoy, 950 F.3d at 232-33. The dissent

centered on obviousness, vigorously contending that

the fact that the “weapon of choice was pepper spray”

instead of a fist or a taser did not matter, and that the

majority erred in not applying the “obviousness

exception.” Id. at 235, 236 (Costa, J., dissenting). This

Court apparently agreed, and instructed the Fifth

Circuit to reconsider in light of Taylor. 141 S. Ct. at

1364.

McCoy and Taylor emphasized to lower courts

what this Court has repeatedly articulated—factually

identical precedent is not necessary to defeat qualified

immunity, especially when the illegality of the

conduct is obvious. As Justice Gorsuch once astutely

pointed out, “the most obviously unlawful things

happen so rarely that a case on point is itself an

6

unusual thing.” Browder v. City of Albuquerque, 787

F.3d 1076, 1082-83 (10th Cir. 2015). Without the

obviousness doctrine, the more “flagrantly unlawful”

the action, the more likely an official would be to

escape liability. See id.; see also Bellotte v. Edwards,

629 F.3d 415, 424 (4th Cir. 2011) (Wilkinson, J.) (“The

absence of ‘a prior case directly on all fours’ here

speaks not to the unsettledness of the law, but to the

brashness of the conduct.”).

One city attorney whose job consists of defending

officers against Section 1983 claims recently urged

that “courts should more frequently withhold

qualified immunity from officers who commit obvious

constitutional violations” to “ensure that reckless and

incompetent officers are held accountable, thereby

increasing the public’s trust in the justice system and

ensuring that constitutional rights are meaningfully

enforced.” Alexander J. Lindvall, Qualified Immunity

and Obvious Constitutional Violations, 28 GEO.

MASON L. REV. 1047, 1049 (2021); see also Michael

L. Wells, Qualified Immunity After Ziglar v. Abbasi:

The Case for a Categorical Approach, 68 AM. U. L.

REV. 379, 437 (2018) (“[T]he question of whether

there is fair warning is often ignored in practice, but

nonetheless appears to be the question lower courts

ought to ask.”).

Were this Court to fail to police the abdication of

the obviousness principle by lower courts, conduct so

cruel and shocking that it is unlikely to ever be

repeated by more than one government official, let

alone in any given circuit—like leading a prisoner

leaving a trail of blood to a solitary confinement cell,

telling him it is not his job to care—would enjoy

immunity, while only common and mundane

violations would be punished. See Lindvall, supra, at

7

1065-76 (collecting “jaw-dropping” cases); Joanna

Schwartz, Qualified Immunity and Federalism All the

Way Down, 109 GEO. L. J. 305, 350-51 (2020)

(observing that robust application of the obvious

violation doctrine would “limit[] one of the most

troublesome aspects of the Court’s qualified immunity

jurisprudence”). This result would be perverse.

II.

THE

ELEVENTH

CIRCUIT

ERRONEOUSLY STACKED REMEDIAL

DEFERENCE

ATOP

SUBSTANTIVE

DEFERENCE.

Erroneously stacking deference to government

officials who raise the defense of qualified immunity

on top of the uniquely deferential substantive law

governing conditions of confinement leads to a

standard that incarcerated plaintiffs can virtually

never meet, regardless of circumstances. This

unauthorized (and unsound) deference-stacking

results in lower courts sanctioning abhorrent

behavior by prison officials. It also amounts to a clean

break from the purported justification for qualified

immunity, which is notice.

This Court has repeatedly asserted that prison

officials are due a unique level of deference. See, e.g.,

Turner v. Safley, 482 U.S. 78, 85 (1987); Preiser v.

Rodriguez, 411 U.S. 475, 491-92 (1973); see also

Emma Kaufman, Segregation by Citizenship, 132

HARV. L. REV. 1379, 1426 (2019) (explaining that the

Court’s deference doctrines result “in a prisoners’

rights jurisprudence in which deference becomes its

own transsubstantive rule—call it the penal power

doctrine—under which prison administrators may

infringe recognized constitutional rights in ways that

other state actors cannot”); Sharon Dolovich, Forms of

8

Deference in Prison Law, 24 FED. SENT’G REP. 245

(2012) (writing that “judicial deference” “is arguably

the primary driver of the Court’s prisoners’ rights

jurisprudence”). This deference is not a mere

defendant-friendly gloss on constitutional claims but

instead drives the creation of demanding standards

for all varieties of prison rights claims.2

In Taylor, the governing standard for the

plaintiff’s conditions of confinement claim was that

the plaintiff could not be deprived of the “minimal

civilized measure of life’s necessities.” Palmer v.

Johnson, 193 F.3d 346, 352–53 (5th Cir. 1999). The

Fifth Circuit held that six days in unimaginable

conditions did indeed constitute a denial of life’s

necessities but that defendants were not sufficiently

on notice that it was so, as while the court’s precedent

had established that many months in filthy conditions

violated the constitution, it had never held as much

when the stay lasted only days. Taylor v. Stevens, 946

F.3d 211, 217 (5th Cir. 2019). “That doom[ed] Taylor’s

claim.” Id. The court relied on this Court’s Fourth

Amendment cases in explaining its reasoning. See id.

(citing Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011);

Mullenix v. Luna, 577 U.S. 7, 11 (2015)).

In McCoy, the Eighth Amendment standard for

excessive force was whether the officer had acted

“maliciously and sadistically to cause harm.” Hudson

Few of this Court’s qualified immunity cases reversing on

behalf of government defendants occurred in the prison context

while all three cases over the same timespan articulating the

importance of notice to reverse or vacate on behalf of plaintiffs

involved prison conditions. McCoy, 141 S. Ct. at 1364; Taylor,

141 S. Ct. at 53-54; Hope, 536 U.S. at 741-46. This is likely not a

coincidence but rather a result of lower court errors in deferencestacking. This petition is another example.

2

9

v. McMillian, 503 U.S. 1, 7 (1992).3 The Fifth Circuit

held that the plaintiff being pepper sprayed in the face

for no reason met this standard, but not obviously so.

After all, “[t]he Supreme Court has repeatedly

admonished courts not to define the relevant law too

capaciously,” citing to this Court’s Fourth

Amendment qualified immunity jurisprudence.

McCoy, 950 F.3d at 234. The injury to McCoy was not

particularly severe and the officer promptly cleaned

him up afterwards—this created enough ambiguity

for the court to make the malice and sadism not

“obvious.” Id.

Those failures to designate egregious conduct

obviously unlawful for purposes of qualified immunity

amount to an unsound expansion of the deference

already owed to prison officials by the substantive

doctrines governing prisoner claims. Such deference

stacking has repeatedly led to the sanctioning of

flagrantly unconstitutional conduct that this Court

was ultimately required to summarily reverse or

vacate.

The present case is no different. The substantive

standard in the present case is once again high—a

prison official must demonstrate deliberate

indifference to a serious medical need, constituting

cruel and unusual punishment. Estelle v. Gamble, 429

U.S. 97, 104 (1976). The court once again cited to

3 This language is noticeably different from the test for a Fourth

Amendment excessive force claim that occurs outside of prison,

which simply asks whether the use of force was objectively

reasonable. Graham v. Connor, 490 U.S. 386, 396 (1989).

Importantly, this reasonableness requirement is not only more

lenient than the “malicious and sadistic” standard but also—in

the absence of binding case law—provides far less notice to

government officials of what conduct is constitutional.

10

Fourth Amendment case law to demonstrate the

importance of specificity in defining clearly

established rights, Pet. App. 15a, and, by doing so,

impermissibly stacked remedial deference atop the

substantive deference already owed. And the result

was once again the sanctioning of conduct that no

court should countenance. Despite this Court’s clear

instructions in Hope and Taylor, this result is common

in the lower federal courts. This case presents an

opportunity for the Court to enforce the guardrails

that exist around deference and qualified immunity,

without which meritorious claims involving shocking

behavior in prisons will continue to perish

prematurely—if not tripping on one hurdle, then

surely falling on the next.

III. THIS

CASE

REVERSAL.

MERITS

SUMMARY

Although petitioner has identified a circuit split

that this Court would be wise to resolve in petitioner’s

favor, even if the Court is disinclined to take up the

case on the merits it should nonetheless grant the

petition and summarily reverse. While fact-bound

applications of existing law are typically

inappropriate for certiorari, qualified immunity is

different: “[M]ost of the Court’s qualified immunity

decisions are just fact-bound applications of the

already-established principle that liability requires

clearly established law.” William Baude, Is Qualified

Immunity Unlawful?, 106 CALIF. L. REV. 45, 85-86

(2018). “[O]nly a special dispensation from the normal

principles of certiorari explains the Court’s qualified

immunity docket,” and the Court has acknowledged

the “privileged status” of the doctrine. Id.

11

This Court has repeatedly used the tool of

summary reversals to police lower courts on qualified

immunity.4 For a number of years that trend ran in

only one direction—in favor of the government official

seeking immunity. Last term, however, as described

above, the Court summarily reversed or vacated two

lower court decisions, Taylor and McCoy, on behalf of

plaintiffs when the defendants were granted qualified

immunity. Then this term it summarily reversed two

additional cases.5

The defense of qualified immunity “is important

not only to the defendant officials, but to society as a

whole.” Harlow v. Fitzgerald, 457 U.S. 800, 814

(1982). So too is the vindication of constitutional

rights in cases when it does not apply. Just as this

Court should not be in the business of denying relief

because a prisoner spent six days in sewage instead of

a year, or was maced in the face for no reason instead

of punched for no reason, the enforcement of

constitutional rights should not turn on a prisoner’s

blood leaving a trail instead of a puddle. Summary

reversal is an appropriate mechanism to correct such

reasoning.

CONCLUSION

For the foregoing reasons and those in the petition,

the Court should reverse the lower court, either

through plenary review or summarily.

4 See City of Escondido v. Emmons, 139 S. Ct. 500 (2019); Kisela

v. Hughes, 138 S. Ct. 1148 (2018); White v. Pauly, 137 S. Ct. 548

(2017); Mullenix v. Luna, 577 U.S. 7 (2015); Taylor v. Barkes, 575

U.S. 822 (2015); Carroll v. Carman, 574 U.S. 13 (2014); Stanton

v. Sims, 571 U.S. 3 (2013).

5 Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021); Tahlequah v.

Bond, 142 S. Ct. 9 (2021).

12

Respectfully submitted,

DANIEL GREENFIELD

RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

NORTHWESTERN PRITZKER

SCHOOL OF LAW

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-8538

daniel-greenfield

@law.northwestern.edu

SAMUEL WEISS

Counsel of Record

RIGHTS BEHIND BARS

416 Florida Avenue, NW

#26152

Washington, DC 20001

(202) 455-4399

sam@rightsbehindbars.org

Counsel for Amicus Curiae

March 24, 2022