Amicus Curiae Brief — Daniel Kinsinger, Petitioner v. Sherelle Thomas, Administrator of the Estate of Terelle Thomas, et al.

No. 23-1204

In the

Supreme Court of the United States

DANIEL KINSINGER,

Petitioner,

v.

SHERELLE THOMAS, ADMINISTRATOR OF

THE ESTATE OF TERELLE THOMAS, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Third Circuit

BRIEF OF THE NATIONAL ASSOCIATION

OF POLICE ORGANIZATIONS AS AMICUS

CURIAE SUPPORTING PETITIONER

Lawrence Rosenthal

Counsel of Record

One University Drive

Orange, CA 92866

(714) 628-2650

rosentha@chapman.edu

William J. Johnson

National A ssociation of

Police Organizations

317 S. Patrick Street

Alexandria, VA 22314

(703) 549-0775

bjohnson@napo.org

June 2024

116833

Mary Elisabeth Naumann

Chacey R. Malhouitre

Jackson Kelly PLLC

100 W. Main Street, Suite 700

Lexington, KY 40507

(859) 255-9500

mnaumann@jacksonkelly.com

chacey.malhouitre@

jacksonkelly.com

Attorneys for Amicus Curiae

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

In this case, a county probation officer was denied

qualified immunity in a lawsuit alleging that he and city

police officers deprived the decedent of his life without

due process of law because, after the decedent had been

taken into custody, the officers, having reason to believe

that the decedent had ingested cocaine, transported the

decedent to a detention facility, rather than a hospital,

although the officers informed the prison medical staff

that they believed the decedent had ingested cocaine.

Although the prison’s medical staff cleared the decedent to

remain at the detention facility, he later died of a fentanyl

and cocaine overdose. The question amicus will address,

fairly presented within the questions presented in the

petition for certiorari, is:

Whether a law-enforcement official should be denied

qualified immunity and subjected to damages liability

absent a breach of a rule of constitutional law that has

been articulated by binding precedent with sufficient

specificity that law enforcement agencies and their

employees should be expected to incorporate it into the

training and supervision of officers, at least absent conduct

so outrageous that it shocks the conscience.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF THE AMICUS CURIAE . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

T H ER E I S M E T HOD OL O GIC A L

DISARRAY IN THE LOWER COURTS

W HEN A SSESSING W HETHER A

RIGHT IS CLEARLY ESTABLISHED . . . . . 10

II. QUALIFIED IMMUNITY DOCTRINE

SHOULD BE FORMULATED SO THAT

IT CAN BE READILY APPLIED TO

LAW-ENFORCEMENT TRA INING

AND SUPERVISION . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iii

TABLE OF CITED AUTHORITIES

Page

CASES

Anderson v. Creighton,

483 U.S. 635 (1987) . . . . . . . . . . . . . . . . 7, 10, 11, 13, 14

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 11

Brosseau v. Haugen,

543 U.S. 194 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Butz v. Economou,

438 U.S. 478 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

City of Canton v. Harris,

489 U.S. 378 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Collins v. City of Harker Heights,

503 U.S. 115 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

County of Sacramento v. Lewis,

523 U.S. 833 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 21

Davis v. Scherer,

468 U.S. 183 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Harlow v. Fitzgerald,

457 U.S. 800 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Hope v. Pelzer,

536 U.S. 730 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12

iv

Cited Authorities

Page

Howlett v. Rose,

496 U.S. 356 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Mack v. Yost,

63 F.4th 211 (3d Cir. 2023) . . . . . . . . . . . . . . . . . . . . . . 4

Mullenix v. Luna,

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

Pearson v. Callahan,

555 U.S. 223 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Reichle v. Howards,

566 U.S. 658 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Richardson v. McKnight,

521 U.S. 399 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Rochin v. California,

342 U.S. 165 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 21

Taylor v. Riojas,

592 U.S. 7 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

White v. Pauly,

580 U.S. 73 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Wilson v. Layne,

526 U.S. 603 (1999) . . . . . . . . . . . . . . . . . . . . . 12, 13, 16

Ziglar v. Abbasi,

582 U.S. 120 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

v

Cited Authorities

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11

U.S. Const. amend. VIII . . . . . . . . . . . . . . . . . . . . . . . . . 12

STATUTES, RULES AND REGULATIONS

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8

42 U.S.C. § 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

42 U.S.C. § 1988(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Civil Rights Act of 1866 . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Civil Rights Act of 1871 . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

S. Ct. Rule 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

S. Ct. Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OTHER AUTHORITIES

Donald A. Dripps, The “New” Exclusionary Rule

Debate: From “Still Preoccupied with 1985” to

“Virtual Deterrence,” 37 Fordham Urb. L.J. 743

(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

John C. Jeffries, Jr., Disaggregating Constitutional

Torts, 110 Yale L.J. 259 (2000) . . . . . . . . . . . . . . . . . . 8

vi

Cited Authorities

Page

Jennifer E. Laurin, Reading Taylor’s Tea Leaves:

The Future of Qualified Immunity, 17 Duke

J. Const. L. & Pub. Pol’y 241 (2022) . . . . . . . . . . . . . 15

Benjamin S. Levine, “Obvious Injustice” and the

Legacy of Hope v. Pelzer, 68 U.C.L.A. L. Rev. 842

(2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Aaron L. Nielson & Christopher J. Walker,

Q u a lif i ed Immunity an d Fed er a li sm,

109 Geo. L.J. 229 (2020) . . . . . . . . . . . . . . . . . . . . . . . 17

Richard A. Posner, Excessive Sanctions for

Governmental Misconduct in Criminal Cases,

57 Wash. L. Rev. 635 (1982) . . . . . . . . . . . . . . . . . . . . . 7

Teresa E. Ravenell & Armando Brigandi, The

Blurred Blue Line: Municipal Liability,

Police Indemnification , and Financial

Accountability in Section 1983 Litigation,

62 Vill. L. Rev. 839 (2017) . . . . . . . . . . . . . . . . . . . . . . 17

Law rence Rosenthal, Defending Qualified

Immunity, 72 S.C. L. Rev. 547 (2020) . . . . . . . . 10, 18

Stephen Rushin, Police Union Contracts,

66 Duke L.J. 1191 (2017) . . . . . . . . . . . . . . . . . . . . . . 17

Joanna C. Schwartz, Police Indemnification,

89 N.Y.U. L. Rev. 885 (2014) . . . . . . . . . . . . . . . . . . . . 18

vii

Cited Authorities

Page

Joanna C. Schwartz, Qualified Immunity’s

Boldest Lie, 88 U. Chi. L. Rev. 605 (2021) . . . . . . . . 20

1

INTEREST OF THE AMICUS CURIAE

The National Association of Police Organizations

(NAPO) is a coalition of police units and associations from

across the United States. It was organized for the purpose

of advancing the interests of America’s law enforcement

officers. Founded in 1978, NAPO is the strongest unified

voice supporting law enforcement in the country. NAPO

represents over 1,000 police units and associations, over

241,000 sworn law enforcement officers, and more than

100,000 citizens who share common dedication to fair and

effective law enforcement. NAPO often appears as amicus

curiae in cases of special importance.

Amicus has a strong interest in this case because of

its members’ exposure to unwarranted litigation under

42 U.S.C. § 1983.1

STATEMENT OF THE CASE

On December 14, 2019, Harrisburg Police Officer

Daril Foose, working with the petitioner, Dauphin County

Probation Officer Dan Kinsinger, stopped a vehicle in

which Terrelle Thomas (“Thomas”) was the back seat

passenger, and Officer Foose observed that Thomas

1. Pursuant to this Court’s Rule 37.6, counsel for amici curiae

certify that no counsel for a party authored this brief in whole or in

part, no counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief, and no person

other than amicus, its members, or its counsel made a monetary

contribution to its preparation or submission. Pursuant to this

Court’s Rule 37.2, counsel of record received timely notice of the

intent to file this brief on May 24, 2024, more than 10 days before

the due date.

2

“spoke to her as if he had ‘cotton mouth’ and had a large

amount of an unknown item inside his mouth.” Pet. App.

4a. Officer Foose also observed “strands in his mouth

that were almost like gum and paste,” that his lips were

“pasty white,” and that his “face was covered with a white

powdery substance,” and therefore concluded that Thomas

had “ingested a large amount of cocaine.” Id. Although

Thomas stated that “the only drugs on his person was a

small amount of marijuana and that his lips were white

because he had consumed a candy cigarette,” Officer Foose

disbelieved him, since she had “observed cocaine rocks

fall out of . . . Thomas’s shirt . . . and she failed to find any

candy cigarettes.” Pet. App. 4a-5a (ellipses in original).

Additional police officers shortly arrived on the scene,

and Officers Foose and Kinsinger informed them that

they believed that Thomas had ingested cocaine. Pet. App.

5a. The officers decided that Thomas should be taken to

Dauphin County Booking Center at the Dauphin County

Prison for detention and processing. Id. At this facility,

Dauphin County provides medical care to detainees

through a contractor, PrimeCare Medical Inc., although

the facility does not have hospital features such as X-ray

or CT machines, and transfers individuals to a nearby

hospital when such facilities are necessary for testing and

treatment. Pet. App. 5a-6a.

Off icer Brian Carriere arrested Thomas and

transported him to Dauphin County Booking Center. Pet.

App. 6a. Upon arrival, Officer Carriere informed prison

officials and medical staff there that Thomas “may have

swallowed crack cocaine.” Id. The prison officials and

PrimeCare staff noted that Thomas had white powder

covering his lips, and then placed Thomas in a cell without

any medical care or observation. Id.

3

Less than t wo hou rs a fter Thomas’s a r rest ,

surveillance video showed Thomas falling, hitting his

head, and suffering cardiac arrest. Prison officials then

transported Thomas to a hospital, where he died three

days later of “cocaine and fentanyl toxicity.” Pet. App. 6a.

Respondent Sherelle Thomas, the administrator

of Thomas’s estate, brought suit alleging, among other

things, that the officers deprived Thomas of his life

without due process of law by failing to provide Thomas

with medical care. Pet. App. 7a. The district court denied

the officers qualified immunity on the ground that they

violated Thomas’s clearly established rights. Pet. App.

43a-47a.

On the officers’ interlocutory appeal, a divided panel

of the Third Circuit affirmed the denial of qualified

immunity on the failure-to-provide-medical-care claim.

The panel’s majority concluded that “[b]ecause there are

sufficient allegations here from which to find deliberate

indifference, as well as a serious medical need, Sherelle

Thomas has plausibly alleged a violation of the right to

medical care.” Pet. App. 13a. Although the panel’s majority

acknowledged, “[t]here has not yet, however, been a

recognition by this Court of the right to medical care

after the ingestion of drugs,” Pet. App. 14a, the majority

nevertheless denied the officers qualified immunity:

We may rely on general principles to find

that the facts here present a violation that is

“so obvious” “that every objectively reasonable

government official facing the circumstances

would know that the [Officers’] conduct . . .

violate[d] federal law when [they] acted.” In

4

such a case, “general standards can ‘clearly

establish’ the answer, even without a body of

relevant case law.” In other words, “officials

can still be on notice that their conduct

violates established law even in novel factual

circumstances.”

Pet. App. 16a (footnotes omitted) (quoting Mack v. Yost,

63 F.4th 211, 232 (3d Cir. 2023); Brosseau v. Haugen, 543

U.S. 194, 199 (2004); and Hope v. Pelzer, 536 U.S. 730,

741 (2002)).

Judge Phipps dissented, observing that “the Majority

Opinion offers no precedent for the proposition that as

of December 14, 2019, the Due Process Clause required

that officers transport to a hospital a detained suspect

who appears to have ingested drugs.” Pet. App. 19a-20a

(footnote omitted). While acknowledging that under

extraordinary circumstances, qualified immunity can

be denied even absent a breach of a rule laid down by a

binding precedent, Judge Phipps reasoned that “because

the allegations do not identify obvious cruelty, the officers

should receive qualified immunity.” Pet. App. 22a. 2

SUMMARY OF THE ARGUMENT

The doctrine of qualified immunity bars damages

awards against public officials unless the defendant

“violate[s] clearly established statutory or constitutional

rights of which a reasonable person would have known.”

2. The Harrisburg police officers that were named as

defendants separately petitioned for certiorari on April 8, 2024.

That petition is pending as No. 23-1108.

5

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal

quotation marks omitted) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)).

There is considerable methodological disagreement

in the lower courts about how to determine whether a

right has become sufficiently established to deprive a

defendant of qualified immunity. In this case, for example,

the court of appeals acknowledged that no precedent

had settled whether a law enforcement officer who

believes a suspect in his custody has ingested narcotics

must immediately transport to a hospital rather than a

detention facility, even when, as here, the suspect exhibits

no obvious medical distress, and the detention facility

provides medical personnel responsible for evaluating

the detainee’s condition and assessing what care and

treatment is required.

In our view, the doctrine of qualified immunity

should be applied in light of a realistic assessment of

the practicalities faced by law enforcement personnel

in the field. Law enforcement personnel should not be

expected to parse every precedent potentially governing

their conduct, as well as the “general principles,” Pet.

App. 16a, that animate each area of constitutional law.

Instead, officers should be expected to adhere to systems

of training and supervision that are attentive to the

constitutional constraints on law enforcement, but without

need to exercise excessive timidity in order to minimize

liability risks.

Accordingly, when constitutional jurisprudence

produces concrete rules that can be practicably incorporated

into training and supervision, law enforcement personnel

6

should be held to those rules, and only then denied

qualified immunity. When the law is not sufficiently clear

that it can be practicably incorporated into police training

and supervision, qualified immunity is warranted.

To be sure, in extraordinary cases, qualified immunity

should be denied when law enforcement conduct “‘shocks

the conscience’ and violates the ‘decencies of civilized

conduct.’” County of Sacramento v. Lewis, 523 U.S. 833,

846 (1998) (quoting Rochin v. California, 342 U.S. 165,

172-72 (1952)). Nothing like that, however, occurred in

this case.

ARGUMENT

The doctrine of qualified immunity offers immunity

from liability for damages unless the defendant “violate[s]

clearly established statutory or constitutional rights of

which a reasonable person would have known.” Pearson,

555 U.S. at 231 (internal quotations omitted) (quoting

Harlow, 457 U.S. at 818). “To be clearly established, a

right must be sufficiently clear that every reasonable

official would [have understood] that what he is doing

violates that right. In other words, existing precedent

must have placed the statutory or constitutional question

beyond debate.” Reichle v. Howards, 566 U.S. 658, 664

(2012) (first brackets added) (citations omitted) (internal

quotation marks omitted) (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011)).

The defense of qualified immunity is justified, this

Court has written, because of “the risk that fear of

personal monetary liability and harassing litigation will

unduly inhibit officials in the discharge of their duties.”

7

Ziglar v. Abbasi, 582 U.S. 120, 150 (2017) (internal

quotation marks omitted) (quoting Anderson v. Creighton,

483 U.S. 635, 638 (1987)).

Indeed, there is ample reason to fear over-deterrence

if public officials faced personal liability in the face of

unsettled law. Law enforcement officials’ compensation is

generally not based on their arrests or the local crime rate;

accordingly, officers internalize few, if any, of the benefits

of effective policing, which are instead externalized to the

public at large. 3 If officials were forced to internalize the

costs of their activities through damages liability, when

they do not internalize its benefits, the likely result would

be over-deterrence—effectively incentivizing officers

to avoid conduct that exposes them to liability, even if

that conduct produces benefits to the public at large. As

Professor John Jeffries put it:

While negative outcomes can readily be

translated into adverse legal claims, the benefits

3. For helpful discussions of this point, see, for example,

Donald A. Dripps, The “New” Exclusionary Rule Debate: From

“Still Preoccupied with 1985” to “Virtual Deterrence,” 37 Fordham

Urb. L.J. 743, 763-64 (2010) (“Individual officers do not internalize

either the benefits or the costs of Fourth Amendment activity.

When the police apprehend an offender, they may improve their

performance evaluations and gain prestige within the force. They

do not, however, pocket what the community is willing to pay to

prosecute and punish the offender.”); Richard A. Posner, Excessive

Sanctions for Governmental Misconduct in Criminal Cases, 57

Wash. L. Rev. 635, 640 (1982) (“Police and other law-enforcement

personnel are compensated on a salaried rather than piece-rate

basis, so that even if they perform their duties with extraordinary

zeal and effectiveness they do not receive financial rewards

commensurate with their performance.”).

8

of good performance are hard to capture. These

skewed incentives may bias discretionary

choices . . . The result is a bias toward inaction,

defensiveness, and bureaucratic self-protection.

John C. Jeffries, Jr., Disaggregating Constitutional Torts,

110 Yale L.J. 259, 267 (2000).

Accordingly, qualified immunity sensibly offers

protection to officers who reasonably believe that their

conduct is consistent with extant law. As this Court

has written, “the most important special government

immunity-producing concern” is “protecting the public

from unwarranted timidity on the part of public officials.”

Richardson v. McKnight, 521 U.S. 399, 408 (1997) (citing

Butz v. Economou, 438 U.S. 478, 506 (1978)).

To be sure, the Civil Rights Act of 1871 provides

that “[e]very person” acting under color of state law who

“subjects, or causes to be subjected, any . . . person . . . to

the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the

party injured.” 42 U.S.C. § 1983. Congress, however, has

authorized the courts to erect a common law of civil-rights

remedies through the Civil Rights Act of 1866, which is

currently codified at 42 U.S.C. § 1988 and provides that

jurisdiction under section 1983

shall be exercised and enforced in conformity

with the laws of the United States . . . but in all

cases where they are not adapted to the object,

or are deficient in the provisions necessary to

furnish suitable remedies and punish offenses

against law, the common law, as modified and

9

changed by the constitution and statutes of the

State wherein the court having jurisdiction of

such civil or criminal cause is held, so far as the

same is not inconsistent with the Constitution

and laws of the United States, shall be extended

to and govern the said courts in the disposition

of the cause. . . .

42 U.S.C. § 1988(a).

By its terms, section 1988 recognizes that section

1983’s text alone does not determine what remedies are

appropriate for deprivations of federal rights. Indeed, if

section 1983’s text were understood to require an award

of damages in every case in which a defendant could be

found liable under that provision, section 1983 litigation

would be utterly transformed; there would be no immunity

from damages liability for judges, legislators, witnesses,

or public officials, no limitations defenses, and all causes

of action would survive the plaintiff ’s death. Indeed, if

the text of section 1983 were not supplemented by section

1988, section 1983 jurisprudence would recognize no

defenses of any kind. Section 1983 means that one who

has deprived a plaintiff of a constitutional right shall be

“liable,” but it does not indicate when an award of damages

is appropriate. That gap is filled by section 1988.

Section 1988, in turn, authorizes the courts to utilize

state law or federal common law, as appropriate, to

delineate the circumstances in which damages and other

remedies are appropriate under section 1983. Moreover,

this Court has concluded that the determination of

immunity from damages liability in section 1983 litigation

is governed by federal and not state law. See, e.g., Howlett

10

v. Rose, 496 U.S. 356, 377-78 (1990) (“To the extent that the

Florida law of sovereign immunity reflects a substantive

disagreement with the extent to which governmental

entities should be held liable for their constitutional

violations, that disagreement cannot override the dictates

of federal law.”).4

There is, however, disarray in the lower courts when it

comes to the methodology for determining whether a right

is sufficiently established to justify a denial of qualified

immunity. That disarray warrants plenary review, as we

explain in Part I below. Moreover, as we explain in Part

II, qualified immunity doctrine should be formulated

in a manner attentive to the realities that confront

police officers in the field, as well as those who train and

supervise them. In this fashion, qualified immunity can

both protect constitutional rights and minimize the risk

that potential liability will over-deter law enforcement.

I.

THERE IS METHODOLOGICAL DISARRAY

IN THE LOWER COURTS WHEN ASSESSING

W H E T H E R A R I G H T I S C L E A R LY

ESTABLISHED.

This Court’s most comprehensive consideration of the

methodology to be employed when assessing whether a

plaintiff has claimed a violation of a clearly established

right can be found in Anderson:

4. For a more elaborate discussion of section 1988 as a

statutory basis for a federal common-law defense of qualified

immunity, see Lawrence Rosenthal, Defending Qualified

Immunity, 72 S.C. L. Rev. 547, 560-71 (2020).

11

The operation of this standard . . . depends

substantially upon the level of generality at which

the relevant legal rule is to be identified.. . . .

[T]he right the official is alleged to have violated

must have been clearly established in a more

particularized, and hence more relevant, sense:

The contours of the right must be sufficiently

clear that a reasonable official would understand

that what he is doing violates that right. This

is not to say that an official action is protected

by qualified immunity unless the very action in

question has previously been held unlawful, but

it is to say that in the light of pre-existing law

the unlawfulness must be apparent.

483 U.S. at 638-39 (internal quotations and citations

omitted). There, however, is a degree of imprecision

lurking in this formulation. Sometimes, but not always, a

binding precedent is required to clearly establish the law.

This duality is reflected in this Court’s qualifiedimmunity jurisprudence. In most of its qualified immunity

decisions, the Court has surveyed applicable precedents

to determine if an official’s conduct violated clearly

established law. See, e.g., White v. Pauly, 580 U.S. 73, 79

(2017) (per curiam) (“The panel majority misunderstood

the ‘clearly established’ analysis: It failed to identify a

case where an officer acting under similar circumstances

as Officer White was held to have violated the Fourth

Amendment.”); Mullenix v. Luna, 577 U.S. 7, 13-14 (2015)

(per curiam) (“The relevant inquiry is whether existing

precedent placed the conclusion that Mullenix acted

unreasonably in these circumstances beyond debate.”

(internal quotations and citation omitted)); Al-Kidd, 563

12

U.S. at 741 (“At the time of al-Kidd’s arrest, not a single

judicial opinion had held that pretext could render an

objectively reasonable arrest pursuant to a materialwitness warrant unconstitutional.”); Wilson v. Layne,

526 U.S. 603, 617 (1999) (“[A]lthough media ride-alongs

of one sort or another had apparently become a common

practice, in 1992 there were no judicial opinions holding

that this practice became unlawful when it entered a

home.” (footnote omitted)).

On occasion, however, the Court has denied qualified

immunity even absent a precedent on point. In Hope

v. Pelzer, 536 U.S. 730 (2002), for example, the Court,

after explaining that while “earlier cases involving

‘fundamentally similar’ facts can provide especially strong

support for a conclusion that the law is clearly established,

they are not necessary to such a finding,” id. at 741, held

that tying a shirtless prisoner to a hitching post in the

Alabama sun for seven hours without bathroom breaks,

and with only one or two offers of water, amounted to a

violation of the Eighth Amendment’s prohibition on cruel

and unusual punishment, for which the defendant prison

guard was not entitled to qualified immunity, writing

that despite the absence of precedent squarely on point,

the prisoner’s right to be free from this type of abuse

was clear in light the “obvious cruelty inherent in th[e]

practice.” Id. at 745.

Similarly, in Taylor v. Riojas, 592 U.S. 7 (2020) (per

curiam), Taylor was confined for six days in two cells, one

“covered, nearly floor to ceiling in a massive amount of

feces,” and another “frigidly cold cell, which was equipped

with only a clogged drain in the floor to dispose of bodily

wastes,” where “he eventually (and involuntarily) relieved

13

himself,” and “[b]ecause the cell lacked a bunk, and

because Taylor was confined without clothing, he was left

to sleep naked in sewage.” Id. at 7 (internal quotations

omitted). The Court concluded that given “the particularly

egregious facts of this case, any reasonable officer should

have realized that Taylor’s conditions of confinement

offended the Constitution.” Id. at 9.

The methodological imprecision over the extent

to which a binding precedent is required to clearly

establish applicable law is understandable. If qualified

immunity were available as long as there were no binding

precedent on point, the most egregious fact patterns

would often produce immunity, since these are the types

of cases least likely to be litigated, producing a binding

precedent, rather than resulting in a prompt settlement

of an indefensible case.

While it is difficult to confine qualified immunity to

cases in which a binding precedent is precisely on point,

absent a binding precedent, it will often be equally difficult

to determine when, “in the light of pre-existing law the

unlawfulness [is] apparent.” Anderson, 483 U.S. at 639.

However understandable, this methodolog ical

imprecision has produced considerable disarray in the

lower courts. As the petitioner points out, in conflict

with the holding below, other circuits have held that it

is not clearly established that a law enforcement official

is required to transport a prisoner directly to a hospital

when there is reason to believe that the prisoner has

ingested potentially dangerous narcotics. See Pet. 22-23.

But, the case for plenary review here extends beyond

a disagreement in the lower courts concerning any

particular fact pattern.

14

In practice, the Court’s admonition in Anderson that

qualified immunity should be denied whenever “in the

light of pre-existing law the unlawfulness [is] apparent,”

483 U.S. at 639, has proven difficult to apply. A recent

comprehensive review of the law in four circuits not only

demonstrated how frequently this methodological issue

arises, but also found inconsistent approaches in the four

circuits reviewed:

[L]ower courts—at least in the reviewed

circuits—can be placed into two categories

with regard to their approach to the clearly

established analysis: circuits that default to a

search for reasonably similar precedent and

treat the possibility of obvious violations as

something of an outlier . . . and circuits that

have developed multitrack frameworks for

identifying clearly established rights, which

consider both the “obvious” possibility and

the potential for precedent—often precedent

involving fairly similar circumstances to the

case at bar—to clearly establish the right.

Benjamin S. Levine, “Obvious Injustice” and the Legacy

of Hope v. Pelzer, 68 U.C.L.A. L. Rev. 842, 899 (2021). 5

Professor Jennifer Laurin has elaborated on the

variety of related methodological disagreements in the

lower courts for determining whether a right is clearly

established:

5. For the author’s discussion of his methodology and the

large number of cases in which this question of how to determine

whether the law was clearly established in the absence of a binding

precedent arose, see id. at 872-75.

15

[A]lthough the Supreme Court has been

assiduous in its attention to how generally or

specifically the contours of a right are described

for clearly-established-law analysis, it has

devoted almost no attention to other details

of how the analysis should be conducted—

and thereby allowed substantial variation to

develop among the circuits. One such detail is

the question of what legal sources “count” for

purposes of deciding whether a right is clearly

established. Lower courts have differed, for

example, in their answer to the question of

whether the decisions of state courts or federal

district courts factor in the clearly established

analysis. Also a matter of debate among the

circuits is whether non-legal sources, such as

departmental training or policies, can properly

be consulted as a source of what makes an

official’s legal obligations “clear.” So too are

lower courts divided over whether a circuit split

on a legal question can unclarify otherwise

clear in-circuit law on the matter. These open

questions have tremendous significance for

qualified immunity’s effects.

Jennifer E. Laurin, Reading Taylor’s Tea Leaves: The

Future of Qualified Immunity, 17 Duke J. Const. L. &

Pub. Pol’y 241, 274-75 (2022) (footnotes omitted).

This case, in which the court of appeals acknowledged

that there was no binding precedent on point, accordingly,

provides an ideal vehicle for the Court to clarify the

methodology for determining when a right is sufficiently

established to deny qualified immunity absent a binding

precedent on point.

16

Indeed, the panel’s majority offered only the vaguest

of formulations for when qualified immunity should be

denied absent a precedent on point, invoking “general

principles” and “general standards,” that can “clearly

establish the answer, even without a body of relevant

case law.” Pet. App. 16a (footnotes and internal quotations

omitted). Surely greater methodological clarity in the law

of qualified immunity is warranted.

II. QUALIFIED IMMUNITY DOCTRINE SHOULD

BE FORMU LATED SO TH AT IT CA N BE

READILY APPLIED TO LAW-ENFORCEMENT

TRAINING AND SUPERVISION.

If qualified immunity doctrine is to achieve its

intended purpose of protecting constitutional rights

without producing overly cautious officers inhibited in the

performance of their duties by the threat of liability, the

doctrine should be applied in a manner attentive to the

realities facing law enforcement.

1. A legalistic focus on what should be clear from a

review of applicable or related precedent is unrealistic;

officers are not lawyers expected to scour the precedents

on an ongoing basis. Rather than requiring each officer

to effectively act as his own legal advisor, the sensible

regime is one in which public employers develop policies

that comport with constitutional norms—policies on which

their employees can then rely.

Indeed, this Court has, at least occasionally,

acknowledged that qualified immunity is appropriate

when public employees reasonably rely on the policies

of their employers. See, e.g., Wilson, 526 U.S. at 617

17

(“[I]mportant to our conclusion [to grant qualified

immunity] was the reliance by the United States marshals

in this case on a Marshals Service ride-along policy. . . .

[T]he state of the law as to third parties accompanying

police on home entries was at best undeveloped, and it was

not unreasonable for law enforcement officers to look and

rely on their formal ride-along policies.” (footnote omitted)

(citation omitted)).

2. Law enforcement agencies, in turn, have ample

incentive to train officers to avoid liability-inducing conduct.

Because the threat of liability can inhibit officers in the

vigorous performance of their duties, law enforcement

agencies have an incentive to train those officers to avoid

such behavior. Moreover, when governmental policies

governing the training and supervision of officers does not

comport with constitutional norms, section 1983 permits

a municipal employer to be held liable. See City of Canton

v. Harris, 489 U.S. 378 (1989) (discussing when a city’s

failure to adequately train officers to provide medical care

can result in municipal liability).

Beyond that, law enforcement agencies typically

indemnify officers for their legal costs arising from

conduct undertaken within the scope of employment. See,

e.g., Aaron L. Nielson & Christopher J. Walker, Qualified

Immunity and Federalism, 109 Geo. L.J. 229, 269-72

(2020) (surveying state and local indemnification laws);

Teresa E. Ravenell & Armando Brigandi, The Blurred

Blue Line: Municipal Liability, Police Indemnification,

and Financial Accountability in Section 1983 Litigation,

62 Vill. L. Rev. 839, 865-67 (2017) (describing contractual

indemnification obligations); Stephen Rushin, Police

Union Contracts, 66 Duke L.J. 1191, 1222 (2017) (same);

18

Joanna C. Schwartz, Police Indemnification, 89 N.Y.U.

L. Rev. 885, 912 (2014) (“[L]aw enforcement officers

employed by the eighty-one jurisdictions in my study

almost never contributed to settlements and judgments

in police misconduct lawsuits during the study period.”).

By shifting the financial burden of liability to the

employer, the obligation to indemnify provides law

enforcement agencies with a potent incentive to train

and supervise employees to comply with constitutional

commands. To the extent that public resources must be

devoted to the defense of litigation and the payment of

judgments, this will reduce the resources available to fund

essential governmental services, often producing hardship

for third parties not responsible for police misconduct, but

who depend on the ability of state and local governments

to adequately fund public services.6

At the same time, law enforcement agencies also

have powerful incentives not to over-deter officers,

thereby compromising the efficacy of law-enforcement

services. After all, law enforcement agencies, funded by

and accountable to the taxpayers and voters, have ample

incentive to provide effective service to the public.

Accordingly, indemnification complements qualified

immunity by incentivizing law enforcement agencies to

train officers to comply with clearly established law, but

not to exercise excessive timidity in the performance of

their duties.

6. For a more extensive discussion of this point, see

Rosenthal, supra note 4, at 574-85.

19

3. Training and supervision can only be effective,

however, when constitutional law contains sufficiently

clear and administrable rules that can be practicably

incorporated in the manner by which officers are trained

and supervised. When applicable law is stated at a

relatively high level of generality, it may be difficult to

expect those who train and supervise public employees

to provide the kind of concrete guidance that facilitates

effective training and supervision. It asks too much to

expect law-enforcement agencies and their personnel to

develop proficiency in applying what the court of appeals

called “general principles” and “general standards,” Pet.

App. 16a (footnotes and internal quotations omitted),

rather than more rule-like commands.

4. Accordingly, the critical inquiry should be whether

a public employer could have been reasonably expected to

impose a system of training, supervision, and discipline

sufficient to direct its employees to avoid a particular

liability risk without undue threat of over-deterrence. If

not, the imposition of liability is unwarranted, whether

the financial burden of liability is imposed on individual

officers or, by virtue of indemnification, is shifted to their

employers.

Qualified immunity doctrine, in other words, properly

functions by permitting damages awards when, but only

when, in light of constitutional jurisprudence extant at the

time of the events giving rise to section 1983 litigation,

public employers should have been expected to train and

supervise their employees to avoid the conduct alleged

to have violated the constitutional rights of the section

1983 plaintiff.

20

This inquiry, moreover, should be attentive to the

practical realities facing law enforcement. As Professor

Joanna Schwartz observed in her study of the manner in

which California law-enforcement agencies train officers

in the use of force: “There could never be sufficient time

to train officers about all the court cases that might

clearly establish the law.” Joanna C. Schwartz, Qualified

Immunity’s Boldest Lie, 88 U. Chi. L. Rev. 605, 672-73

(2021).

To be sure, as the court of appeals obser ved,

Harrisburg Police Department policy provided that

officers should take arrestees to a hospital if the arrestees

have “consumed illegal narcotics in a way that could

jeopardize their health and welfare.” Pet. App. 6a. This

policy, however, requires officers to make a judgment

about the extent of the threat to an arrestee’s health and

welfare, rather than automatically transport all detainees

who have consumed narcotics to a hospital. Its application

to Thomas is therefore less than crystal clear. Moreover,

the policy had no application to the petitioner in this case,

Officer Kinsinger, who was employed by Dauphin County,

not Harrisburg.

In any event, this Court has rejected the view that

breach of an internal policy rather than a rule of federal

constitutional or statutory law can deprive an official of

qualified immunity on a constitutional claim: “Officials

sued for constitutional violations do not lose their qualified

immunity merely because their conduct violates some

statutory or administrative provision.” Davis v. Scherer,

468 U.S. 183, 194 (1984). A contrary rule would provide a

disincentive to promulgate prophylactic policies designed

to provide greater protection than the Constitution might

otherwise require.

21

As we acknowledge above, there are egregious cases

in which qualified immunity should be denied even absent

a binding precedent that gives rise to an administrable

rule of constitutional law. Due process jurisprudence has

long recognized a minimum standard of decency to which

law enforcement personnel are constitutionally held; due

process prohibits deprivations of life, liberty, or property

by means that “‘shock[ ] the conscience’ and violate[ ] the

‘decencies of civilized conduct.’” Lewis, 523 U.S. at 846

(quoting Rochin, 342 U.S. 171-72). Officers require no

specific training in the fundamental decencies of civilized

behavior. Nothing conscience-shocking, however, is alleged

in this case. Nor did the court of appeals claim that the

officers’ conduct “conscience-shocking, in a constitutional

sense.” Collins v. City of Harker Heights, 503 U.S. 115,

128 (1992).

The officers transported Thomas to a facility in which

medical personnel were available to assess the medical

needs of newly-arrived detainees. The officers informed

the prison and medical personnel at the detention facility

that they believed Thomas had ingested cocaine, and both

the prison officials and the prison’s medical contractor’s

personnel observed white powder on Thomas’s lips.

The court of appeals, for its part, did not claim that the

decision to take Thomas to a detention facility rather than

a hospital produced any material delay that prevented

Thomas from obtaining necessary care in a timely fashion,

had the prison’s personnel concluded that transfer to a

hospital was warranted. Indeed, no such allegation of any

material delay attributable to the decision to take Thomas

to a detention facility rather than a hospital appears in

the complaint. See Pet. App. 81a-85a.

22

This is not a case in which arresting officers

abandoned a likely overdose victim in their custody to

his fate. Instead, they left Thomas in the hands of prison

and medical personnel they had reason to believe were

qualified to assess Thomas’s medical needs.

Nothing in this case reflects the kind of abusive,

conscience-shocking techniques that every officer should

know are forbidden even absent appropriate training and

supervision.

CONCLUSION

For the preceding reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Lawrence Rosenthal

Counsel of Record

One University Drive

Orange, CA 92866

(714) 628-2650

rosentha@chapman.edu

William J. Johnson

National A ssociation of

Police Organizations

317 S. Patrick Street

Alexandria, VA 22314

(703) 549-0775

bjohnson@napo.org

June 2024

Mary Elisabeth Naumann

Chacey R. Malhouitre

Jackson Kelly PLLC

100 W. Main Street, Suite 700

Lexington, KY 40507

(859) 255-9500

mnaumann@jacksonkelly.com

chacey.malhouitre@

jacksonkelly.com

Attorneys for Amicus Curiae