Petition for Writ of Certiorari — Ralph Harrison Benning, Petitioner v. Tyrone Oliver, Commissioner, Georgia Department of Corrections, et al.

No. 23IN THE

RALPH HARRISON BENNING,

Petitioner,

v.

TYRONE OLIVER, COMMISSIONER, GEORGIA DEPARTMENT

OF CORRECTIONS; MARGARET PATTERSON, GEORGIA

DEPARTMENT OF CORRECTIONS; JENNIFER EDGAR,

GEORGIA DEPARTMENT OF CORRECTIONS,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Easha Anand

RODERICK & SOLANGE

MACARTHUR JUSTICE

CENTER

2443 Fillmore St.,

#380-15875

San Francisco, CA 94115

Jeffrey L. Fisher

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

R. Stanton Jones

Counsel of Record

Andrew T. Tutt

Katie Weng

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave, NW

Washington, DC 20001

(202) 942-5000

stanton.jones@arnoldporter.com

QUESTION PRESENTED

Nearly 50 years ago, this Court held that the Due

Process Clause requires that a prisoner be notified

and given the opportunity to be heard if the prison

intercepts

outgoing

“correspondence”

or

“communication.” Procunier v. Martinez, 416 U.S.

396, 418-19 (1974). It is undisputed that respondents

intercepted three of Mr. Benning’s outgoing emails

and did not give him notice or an opportunity to be

heard. The Eleventh Circuit correctly held that

conduct violated the Due Process Clause, but

nonetheless

granted

qualified

immunity

to

respondents because Procunier was about mail, not

email.

1. Where the Supreme Court has required that a

prisoner is entitled to procedural safeguards if their

“correspondence” is intercepted, are respondents

entitled to qualified immunity simply because the

correspondence in the Supreme Court case was postal

mail, rather than email?

The judge-made doctrine of qualified immunity

has been assailed as inconsistent with the text of 42

U.S.C. § 1983, untethered from the common law, and

divorced from its ostensible policy rationales. In

addition, qualified immunity has been applied to all

public employees, without regard to whether those

officials would have received qualified immunity at

common law, and all kinds of claims, without regard

to whether this Court’s concern for “split-second

decisionmaking” is relevant to the case at hand.

2. Should the doctrine of qualified immunity be

abolished, pared back, or clarified?

(i)

RELATED PROCEEDINGS

This case arises from the following proceedings:

•

•

•

Benning v. Commissioner, Georgia Department of

Corrections Margaret Patterson, No. 21-11982

(11th Cir. Aug. 17, 2023) (denying petition for

rehearing en banc)

Benning v. Commissioner, Georgia Department of

Corrections Margaret Patterson, No. 21-11982

(11th Cir. June 23, 2023)

Benning v. Commissioner Gregory C. Doazier, No.

5:18-cv-0087 (M.D. Ga. Apr. 30, 2021).

There are no other proceedings in state or federal

trial or appellate courts, or in this Court, directly

related to this case within the meaning of this Court’s

Rule 14.1.

(ii)

TABLE OF CONTENTS

Page

Opinions Below ............................................................ 1

Jurisdiction .................................................................. 1

Constitutional and Statutory Provisions Involved .... 1

Statement of the Case ................................................. 2

Reasons for Granting the Petition.............................. 6

I. The Decision Below Is Wrong And Conflicts With

The Opinions Of Other Circuits ................................. 6

II. This Court Should Grant Certiorari To Overrule,

Pare Back, Or Clarify The Doctrine Of Qualified

Immunity ................................................................... 12

III. This Is The Right Case At The Right Time To

Address The Questions Presented............................ 22

Conclusion ................................................................. 27

Appendix A: Eleventh Circuit Court of Appeals

decision (June 23, 2023) ...................... 1a

Appendix B: District Court order

(Apr. 30, 2021).................................... 34a

Appendix C: Eleventh Circuit Court of Appeals

Order Denying Rehearing En Banc

(Aug. 17, 2023) ................................... 63a

(iii)

TABLE OF AUTHORITIES

Cases

Page(s)

Amy v. Supervisors,

78 U.S. (11 Wall.) 136 (1871)............................... 19

Anderson v. Creighton,

483 U.S. 635 (1987) ................................................ 6

Asher v. Cabell,

50 F. 818 (5th Cir. 1892) ...................................... 19

Baxter v. Bracey,

140 S. Ct. 1862 (2020) .......................................... 25

Bonner v. Outlaw,

552 F.3d 673 (8th Cir. 2009)............................ 9, 10

Boyd v. McNamara,

74 F.4th 662 (5th Cir. 2023) ................................ 21

City of Escondido v. Emmons,

139 S. Ct. 500 (2019) ............................................ 16

City of Tahlequah, Oklahoma v. Bond,

595 U.S. 9 (2021) .................................................. 16

Commonwealth v. Stockton,

21 Ky. (5 T.B. Mon.) 192 (1827) .......................... 18

Dabney v. Taliaferro,

25 Va. (4 Rand.) 256 (1826) ................................. 19

Goffin v. Ashcraft,

977 F.3d 687 (8th Cir. 2020)................................ 25

Gonzalez v. Trevino,

42 F.4th 487 (5th Cir. 2022) .......................... 21, 22

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .............................................. 16

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021) .................................... 18, 21

(iv)

v

Cases—Continued

Page(s)

Hope v. Pelzer,

536 U.S. 730 (2002) ................................................ 6

Horvath v. City of Leander,

946 F.3d 787 (5th Cir. 2020)................................ 22

Intervarsity Christian Fellowship/USA

v. Univ. of Iowa,

5 F.4th 855 (8th Cir. 2021) .................................. 21

Jacklovich v. Simmons,

392 F.3d 420 (10th Cir. 2004).............................. 10

Jefferson v. Lias,

21 F.4th 74 (3d Cir. 2021).................................... 25

Kisela v. Hughes,

138 S. Ct. 1148 (2018) .................................... 16, 25

Knowlton v. Bartlett,

18 Mass. (1 Pick.) 271 (1822)............................... 18

Matthis v. Pollard,

3 Ga. 1 (1847) ....................................................... 18

McCoy v. Alamu,

950 F.3d 226 (5th Cir. 2020)................................ 25

McKinney v. City of Middletown,

49 F.4th 730 (2022) .............................................. 25

Mendoza v. Block,

27 F.3d 1357 (9th Cir. 1994)................................ 10

Mitchum v. Foster,

407 U.S. 225 (1972) .............................................. 15

Montcalm Pub. Corp. v. Beck,

80 F.3d 105 (4th Cir. 1996).................................. 10

Morrow v. Meachum,

917 F.3d 870 (5th Cir. 2019)................................ 25

vi

Cases—Continued

Page(s)

Myers v. Anderson,

238 U.S. 368 (1915) .............................................. 15

Nelson v. City of Davis,

685 F.3d 867 (9th Cir. 2012)................................ 10

Olivier v. Arnold,

19 F.4th 843 (5th Cir. 2021) ................................ 22

Perkins v. Reed,

14 Ala. 536 (1848) ................................................ 18

Perrine v. Planchard,

15 La. Ann. 133 (1860)......................................... 19

Peters v. White,

53 S.W. 726 (Tenn. 1899)..................................... 19

Phillips v. Cmty. Ins. Corp.,

678 F.3d 513 (7th Cir. 2012)................................ 10

Pierson v. Ray,

386 U.S. 547 (1967) .................................. 13, 15, 17

Procunier v. Martinez,

416 U.S. 396 (1974) .............. 4, 6, 7, 8, 9, 10, 23, 24

Procunier v. Navarette,

434 U.S. 555 (1978) .............................................. 18

Reich v. City of Elizabethtown,

945 F.3d 968 (6th Cir. 2019)................................ 25

Reno v. Am. Civ. Liberties Union,

521 U.S. 844 (1997) ................................................ 7

Richardson v. McKnight,

521 U.S. 399 (1997) .............................................. 17

Rivas-Villegas v. Cortesluna,

595 U.S. 1 (2021) ...................................... 16, 21, 23

vii

Cases—Continued

Page(s)

Rodriguez v. Cnty. of Los Angeles,

891 F.3d 776 (9th Cir. 2018)................................ 10

Rodriguez v. Swartz,

899 F.3d 719 (9th Cir. 2018)................................ 25

Rogers v. Jarrett,

63 F.4th 971 (5th Cir. 2023) .................... 12, 14, 26

Saucier v. Katz,

533 U.S. 196 (2001) ................................................ 6

South v. Maryland ex rel. Pottle,

59 U.S. (18 How.) 396 (1856) ............................... 19

Taylor v. Riojas,

592 U.S. 7 (2020) ............................................ 11, 16

Terebesi v. Torreso,

764 F.3d 217 (2d Cir. 2014) ........................... 10, 11

Thompson v. Commonwealth of Va.,

878 F.3d 89 (4th Cir. 2017)............................ 10, 11

Thompson v. Cope,

900 F.3d 414 (7th Cir. 2018)................................ 25

Thornburgh v. Abbott,

490 U.S. 401 (1989) ............................................ 7, 8

Villarreal v. City of Laredo,

44 F. 4th 363 (5th Cir. 2022) ............................... 21

W. Union Tel. Co. v. Call Pub. Co.,

181 U.S. 92 (1901) ................................................ 12

Wearry v. Foster,

33 F.4th 260 (5th Cir. 2022) .................... 14, 25, 27

White v. Pauly,

580 U.S. 73 (2017) .......................................... 16, 20

viii

Cases—Continued

Page(s)

Wyatt v. Cole,

504 U.S. 158 (1992) .............................................. 25

Zadeh v. Robinson,

928 F.3d 457 (5th Cir. 2019).......................... 16, 25

Ziglar v. Abbasi,

582 U.S. 120 (2017) ............................ 15, 17, 18, 20

Constitutional Provisions

U.S. Const. amend. I ................................................... 1

U.S. Const. amend. XIV .............................................. 2

Statutes

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

42 U.S.C. § 1983 .................................................... 2, 12

Civil Rights Act of 1871, Ch. 22, § 1, 17

Stat. 13 (1871) ...................................................... 12

Other Authorities

Aaron L. Nielson & Christopher J.

Walker, The New Qualified

Immunity, 89 S. Cal. L. Rev. 1 (2015) ................. 22

Alexander A. Reinert, Qualified

Immunity’s Flawed Foundation,

111 Calif. L. Rev. 201 (2023) ............. 12, 13, 14, 26

Ann Woolhandler, Patterns of Official

Immunity and Accountability,

37 Case W. Rsrv. L. Rev. 396 (1987) ................... 26

ix

Other Authorities—Continued

Page(s)

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of

Legal Texts (2012)................................................ 14

David E. Engdahl, Immunity and

Accountability for Positive

Governmental Wrongs, 44 U. Colo. L.

Rev. 1 (1972) ......................................................... 13

Hon. Andrew S. Oldham, Official

Immunity at the Founding, 46 Harv.

J. L. & Pub. Pol’y 105 (2023) ............................... 23

James E. Pfander & Jonathan L. Hunt,

Public Wrongs and Private Bills:

Indemnification and Government

Accountability in the Early Republic,

85 N.Y.U. L. Rev. 1862 (2010) ....................... 13, 25

James Pfander, Zones of Discretion at

Common Law, 116 Nw. U. L. Rev.

148 (2021) ............................................................. 25

Joanna C. Schwartz, The Case Against

Qualified Immunity, 93 Notre Dame

L. Rev. 1797 (2018) .............................................. 15

Joanna C. Schwartz, Police

Indemnification, 89 N.Y.U. L. Rev.

885 (2014) ............................................................. 15

John C. Jeffries, Jr., The Liability Rule

for Constitutional Torts, 99 Va. L.

Rev. 207 (2013) ............................................... 25, 26

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

Qualified Immunity?, 62 Fla. L. Rev.

851 (2010) ............................................................. 16

x

Other Authorities—Continued

Page(s)

John F. Preis, Qualified Immunity and

Fault, 93 Notre Dame L. Rev. 1969

(2018) .................................................................... 25

Merriam-Webster, Correspondence,

https://www.merriamwebster.com/dictionary/correspondence ............... 7

Scott A. Keller, Qualified and Absolute

Immunity at Common Law, 73 Stan.

L. Rev. 1337 (2021) ........................................ 23, 24

Thomas M. Cooley, A Treatise on the

Law of Torts or the Wrongs Which

Arise Independent of Contract (1879) ........... 17, 18

William Baude, Is Qualified Immunity

Unlawful?, 106 Calif. L. Rev. 45

(2018) ........................................................ 13, 14, 25

William Baude, Is Quasi-Judicial

Immunity Qualified Immunity?,

74 Stan. L. Rev. Online 115 (2022) ............... 23, 25

Zolan Kanno-Youngs & Luke

Broadwater, Many of Biden’s Goals

on Police Reform Are Still

Incomplete, N.Y. Times

(Feb. 8, 2023) ........................................................ 26

PETITION FOR A WRIT OF CERTIORARI

Petitioner Ralph Harrison Benning respectfully

petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Eleventh Circuit.

OPINIONS BELOW

The opinion of the court of appeals is reported and

available at 71 F.4th 1324. Pet. App. 1a-32a. The

opinion of the United States District Court for the

Middle District of Georgia granting respondents’

motion for summary judgment is unreported but

available at 2021 WL 1713333. Pet. App. 33a-61a.

JURISDICTION

The opinion of the court of appeals was filed on

June 23, 2023. The Eleventh Circuit denied a timely

petition for rehearing en banc on August 17, 2023. On

October 23, 2023, Justice Thomas extended the time

within which to file a petition for a writ of certiorari

to and including December 15, 2023. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the U.S. Constitution

provides in relevant part:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the

freedom of speech, or of the press; or the right

of the people peaceably to assemble, and to

petition the Government for a redress of

grievances.

(1)

2

The Fourteenth Amendment to

Constitution provides in relevant part:

the

U.S.

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

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 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

1. The Georgia Department of Corrections

partners with a private company, JPay, to provide

electronic mail services to incarcerated individuals.

Pet. App. 2a. Each email sent or received by a prisoner

requires a JPay stamp, which cost $0.35. Court of

Appeals Appendix (C.A.A.) 48.

Every email is routed through the Georgia

Department of Corrections Central Intelligence Unit

and automatically screened for certain key words and

phrases. C.A.A. 89. An email containing one of those

key words or phrases is flagged for additional review

3

by the Intelligence Unit, and the email does not reach

its intended recipient unless an Intelligence Unit

employee reviews the email and releases it. If the

employee does not release the email, he can either

“indefinitely detain[]” the email or “discard[]” it

“entirely.” C.A.A. 132.

The Georgia Department of Corrections has

imposed a number of policies restricting prisoners’

ability to communicate via email. One such limitation:

“Offenders shall not request emails to be forwarded,

sent, or mailed to others.” Pet. App. 3a.

2. Petitioner Ralph Harrison Benning is

incarcerated at Wilcox State Prison, operated by the

Georgia Department of Corrections. Pet. App. 34a. In

September and October 2017, Mr. Benning attempted

to send three emails to his sister, Elizabeth Knott. All

three emails raised concerns about gang activity and

corruption at the prison. Pet. App. 3a.

The first email, sent on September 24, 2017,

included a letter seeking to raise awareness about

corruption at the Georgia Department of Corrections.

Pet. App. 3a-4a. He asked his sister to send a copy of

the letter to his other sisters and to “any else” she

thought “might be interested.” C.A.A. 123-26. The

email never reached Ms. Knott. Instead, Georgia

Department of Corrections employees intercepted the

email. Pet. App. 4a. The reason provided in the

Georgia Department of Corrections internal database

was “Entering into a Contract/Engaging in Business.”

During this litigation, defendants defended

intercepting the email based on the policy forbidding

a request to forward an email. C.A.A. 123.

The second and third emails were sent on October

9, 2017, also to Ms. Knott. Pet. App. 3a-4a. Mr.

4

Benning drafted a lengthy message about corruption

among prison officials. C.A.A. 112-13, 115-16. Due to

JPay’s character limits, he sent the message in three

separate emails. Id. At the end of the email, Mr.

Benning mentioned that Ms. Knott could send the

letter to congressmen and senators. Id. Two of the

three emails were flagged for further review and were

intercepted. Id.

Prison officials did not notify Mr. Benning that

any of these emails had been intercepted. Pet. App.

3a-4a. They did not provide Mr. Benning with any

explanation for the interception decisions. Id. Mr.

Benning was given no opportunity to challenge the

interception decisions. Id.

Mr. Benning learned six months later that his

emails were not delivered. C.A.A. 41.

3. In 2018, Mr. Benning, proceeding pro se, filed

suit under 42 U.S.C. § 1983. He raised First

Amendment and procedural due process claims; the

latter is at issue in this petition. The district court

granted summary judgment to defendants.

4. Mr. Benning appealed to the Eleventh Circuit.

Now represented by counsel, he argued that

defendants’

handling

of

his

emails

was

unconstitutional under Procunier v. Martinez, 416

U.S. 396 (1974). Procunier holds that the Due Process

Clause requires two things when prison officials

intercept “outgoing correspondence”: Officials must

notify the prisoner of the interception and give him a

reasonable opportunity to protest that decision,

including the opportunity to complain to someone

other than the person who intercepted the

correspondence. Respondents argued that Procunier

5

was a case about mail and so did not govern their

handling of Mr. Benning’s email.

The Eleventh Circuit rejected respondents’

arguments and found that their interception of Mr.

Benning’s messages without notice or an opportunity

to be heard violated the Due Process Clause. First, the

court explained that the emails were no less free

speech for being disseminated over the Internet. As

the Eleventh Circuit put the point, “[T]he Supreme

Court has told us that First Amendment scrutiny is

not more relaxed in cyberspace.” Pet. App. 10a.

Second, the Eleventh Circuit explained that “the

rationale

of

Procunier

is

concerned

with

correspondence from inmates, regardless of the form

(or medium) the correspondence takes.” Id. In today’s

day and age, the court explained, “emails serve as the

electronic equivalent of physical letters (i.e.

correspondence)”; thus, “it makes both doctrinal and

practical sense to treat outgoing email the same as

physical letters.” Pet. App. 11a.

And finally, respondents themselves treat

outgoing emails like physical letters. Emails are not

immediately transmitted to their intended recipients

but are inspected en route. Pet. App. 12a. “From the

perspective of the [Georgia Department of

Corrections], emails are the functional equivalent of

letters written or typed on paper. And we can think of

no persuasive reason why prison officials should not

be required to provide notice and other procedural

safeguards when they intercept or otherwise censor

emails.” Id.

The Eleventh Circuit nevertheless granted

qualified immunity to respondents. It found that

although the conduct at issue violated the

6

Constitution, there was no “clearly established law”

putting respondents on notice. Pet. App. 16a-18a. It

acknowledged that Procunier applied its rule to all

manner of correspondence. Pet. App. 17a. But since no

case had specifically applied Procunier to email, Mr.

Benning was out of luck. “Although the issue is close,”

the Eleventh Circuit ultimately granted qualified

immunity to respondents.

5. Respondents sought rehearing en banc to

challenge the court of appeals’ holding that they had

violated the Constitution. The petition was denied; no

judge called for a vote. Pet. App. 64a.

6. This petition for certiorari follows.

REASONS FOR GRANTING THE PETITION

I.

The Decision Below Is Wrong And Conflicts With

The Opinions Of Other Circuits

1. The concern underlying the current version of

the judge-made qualified immunity doctrine is that

officers must be “on notice their conduct is unlawful”

before being subjected to damages suits. Saucier v.

Katz, 533 U.S. 196, 206 (2001). An officer is entitled to

qualified immunity unless he has violated “clearly

established law.” Hope v. Pelzer, 536 U.S. 730, 741

(2002). The “clearly established law” must be

“fundamentally similar” to the case at hand, but

“precise factual correspondence” is not necessary. Id.

“[G]eneral statements of the law are not inherently

incapable of giving fair and clear warning” and “a

general constitutional rule already identified in the

decisional law may apply with obvious clarity,” even

though “the very action in question has not previously

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

635, 640 (1987).

7

In this case, the “clearly established law” consists

of two cases from this Court. Procunier v. Martinez,

416 U.S. 396 (1974), held that the Due Process Clause

of the Fourteenth Amendment protects prisoners’

interest in “uncensored communication” from

“arbitrary governmental invasion.” To effectuate that

rule, Procunier required prison officials to notify

prisoners of the interception of outgoing mail and to

give him an opportunity to protest that decision. Id. at

418-19. Fifteen years later, Thornburgh v. Abbott, 490

U.S. 401 (1989), confirmed that Procunier v. Martinez

continued to govern regulations regarding outgoing

correspondence despite other changes in the case law

in the intervening years. Id. at 411-12.

It is undisputed that respondents did not provide

Mr. Benning with notice or an opportunity to protest

their interception of outgoing emails. The Eleventh

Circuit held that doing so violated the Due Process

Clause under Thornburgh and Martinez. The question

is whether violating those two Supreme Court cases’

clear holdings was a violation of “clearly established

law.” The court below said no. The sum total of the

Eleventh Circuit’s analysis: “Email is created and

transmitted in a different medium than physical

mail.” Pet. App. 18a.

But as the Eleventh Circuit itself recognized, in

analyzing whether respondents violated the

Constitution, that is a distinction without a

difference. See supra, 5; Pet. App. 8a-12a. Emails sent

by a prisoner are clearly a form of “outgoing

correspondence.” The Georgia Department of

Corrections itself defines “electronic mail” as

“correspondence sent electronically over an authorized

network.” C.A.A. 94. This Court has recognized since

the 1990s that an email is “generally akin to a note or

8

a letter.” See Reno v. Am. Civ. Liberties Union, 521

U.S. 844, 851 (1997). And most dictionary definitions

of “correspondence” include email. Merriam-Webster,

Correspondence,

https://www.merriamwebster.com/dictionary/correspondence.

Moreover, the logic of Thornburgh and Procunier

applies with full force to outgoing email. This Court

justified its holdings in those cases on two bases.

First, as this Court explained that “[t]he interest of

prisoners and their correspondents in uncensored

communication by letter, grounded as it is in the First

Amendment, is plainly a ‘liberty’ interest within the

meaning of the Fourteenth Amendment” and is thus

“protected from arbitrary governmental invasion.”

Martinez, 416 U.S. at 418. But as the court below

acknowledged, there is no lesser First Amendment

interest just because speech is communicated via the

Internet rather than by lower-tech means. Pet. App.

9a-11a.

Second, prison officials have less leeway in

intercepting outgoing correspondence because such

correspondence poses less risk to prison order and

security (as it cannot be circulated among prisoners)

and because outgoing correspondence falls within

certain “readily identifiable” categories. Thornburgh,

490 U.S. at 411-12; Martinez, 416 U.S. at 416. Those

things are equally true about outgoing email as

outgoing mail—outgoing email is directed to

individuals outside the prison (and is thus unlikely to

cause disruption inside prison walls), and the

categories of concern for outgoing email are also

“readily identifiable.”

2. The Eleventh Circuit’s analysis departs

markedly from how other circuits have handled the

“clearly established law” test in analogous cases.

9

The opinion below squarely splits with the Eighth

Circuit’s opinion in Bonner v. Outlaw, 552 F.3d 673

(8th Cir. 2009). In that case, prison officials

intercepted two packages. The plaintiff was not

notified or given an opportunity to protest. The

officials tried to distinguish Procunier on the grounds

that “its holding applies to ‘letters,’ not to the

‘packages’ rejected in this case,” and “packages have

unique characteristics and pose greater security

concerns than other types of correspondence.” Id. at

676-77. The Court rejected that argument: “Although

Procunier discusses letters, that is because letters

were simply the form of correspondence at issue in

that specific case. Nothing about the reasoning of

Procunier justifies treating packages differently than

letters.” Id. at 677.

The Court went on to deny qualified immunity to

the prison official. “Over thirty years ago, the

Supreme Court in Procunier declared that inmates

have a due process right to notice whenever

correspondence addressed to them is rejected.” Id. at

679-80. Defendant’s argument that the law was not

“clearly established” because Procunier discussed

letters instead of packages “strains credulity”—“[t]he

reasoning of Procunier clearly applies to all forms of

correspondence, even if the decision only discussed

letters.” Id. at 680. And “even if [defendant’s] strained

interpretation of Procunier was reasonable” at some

point, “subsequent case law gave fair warning that

Procunier applies to more than just letters.” Id.

(collecting cases applying Procunier to “play-by-mail

games,” copy of Georgetown Law Journal, and various

magazines and newspapers). Because defendant was

“unable to cite a single case holding Procunier does not

10

apply to a specific form of correspondence,” qualified

immunity was not warranted. Id.

Had Mr. Benning’s case arisen in the Eighth

Circuit, respondents would not have been entitled to

qualified immunity. As in Bonner, this case involved

an application of the Procunier rule to a new type of

correspondence (here, email). As in Bonner, there is

“[n]othing about the reasoning of Procunier” that

would justify treating email differently. As in Bonner,

defendants’ reading of Procunier “strains credulity.”

And as in Bonner, defendants have not “cite[d] a

single case holding Procunier does not apply to a

specific form of correspondence.”

Other circuits, too, have rejected qualified

immunity in cases that apply Procunier to a different

type of correspondence. See, e.g., Jacklovich v.

Simmons, 392 F.3d 420 (10th Cir. 2004) (newspapers);

Montcalm Pub. Corp. v. Beck, 80 F.3d 105 (4th Cir.

1996) (magazines).

More generally, circuits deny qualified immunity

even where prior case law deals with an older

technology. For instance, in the Fourth and Eighth

Amendment contexts, “[a]n officer is not entitled to

qualified immunity on the grounds that the law is not

clearly established every time a novel method is used

to inflict injury.” Rodriguez v. Cnty. of Los Angeles,

891 F.3d 776, 796 (9th Cir. 2018) (quoting Mendoza v.

Block, 27 F.3d 1357, 1362 (9th Cir. 1994)); see also

Nelson v. City of Davis, 685 F.3d 867, 884 (9th Cir.

2012) (“[a]n officer is not entitled to qualified

immunity on the ground[] that the law is not clearly

established every time a novel method is used to

inflict injury); Phillips v. Cmty. Ins. Corp., 678 F.3d

513, 528 (7th Cir. 2012) (“Every time the police employ

a new weapon, officers do not get a free pass to use it

11

in any manner until a case from the Supreme Court

or from this circuit involving that particular weapon

is decided.”); Thompson v. Commonwealth of Va., 878

F.3d 89, 102 (4th Cir. 2017) (“To draw a line

between…different means of effectuating the same

constitutional violation…would encourage bad actors

to invent creative and novel means” of violating

Constitution.).

3. The Eleventh Circuit’s error in this case is so

clear that this Court may wish to consider summary

reversal. Lower courts need to know this Court stands

behind its precedent holding that qualified immunity

cannot be conferred based on meaningless

distinctions. In particular, “[i]t has become

commonplace for defendants…to support their claims

to qualified immunity by pointing to the absence of

prior case law concerning the precise weapon, method,

or technology employed…” Terebesi v. Torreso, 764

F.3d 217, 237 n.20 (2d Cir. 2014). This is just such a

case: The Eleventh Circuit held that a square

Supreme Court holding on precisely the issue in this

case was not sufficient under the “clearly established

law” inquiry because it dealt with postal mail, rather

than email. It would make just as much sense to say

that because the inmates in Procunier had written

letters to relatives the case would not reach

censorship without notice of letters written to an

inmate’s former teachers. This Court should make

clear that sort of distinction without a difference isn’t

dispositive under the “clearly established law”

inquiry.

12

II. This Court Should Grant Certiorari To

Overrule, Pare Back, Or Clarify The Doctrine

Of Qualified Immunity

This Court should grant certiorari to address the

doctrine of qualified immunity itself. First, this Court

should consider doing away with the doctrine of

qualified immunity altogether, as the doctrine finds

no home in the text of the statute itself. Second, this

Court should consider limiting the doctrine to only

those officials who were entitled to invoke qualified

immunity at common law. Third, this Court should

consider clarifying that where officials are not faced

with making split-second decisions, precise factual

correspondence between prior decisions and the

instant case is not necessary to overcome qualified

immunity.

1. This Court should grant certiorari to abolish

the doctrine of qualified immunity, which is

untethered from the text of Section 1983, its historical

backdrop, and its purported policy objectives.

a. Text: To begin, the doctrine of qualified

immunity appears nowhere in the text of Section 1983

itself. What’s more, the language Congress did put in

Section 1983 is broad and unqualified. Section 1983

holds that “every person”—including a public

official—“shall be liable.” The language is mandatory

and admits of no exceptions; it’s not “shall be liable

only if he also violated clearly established law.” See 42

U.S.C. § 1983.

Definitive proof comes from the version of Section

1983 that was passed by the original Reconstruction

Congress. See Civil Rights Act of 1871, Ch. 22, § 1, 17

Stat. 13 (1871). As enacted by Congress, the statute

imposed liability “any such law, statute, ordinance,

13

regulation, custom, or usage of the State to the

contrary notwithstanding.” Id.; Alexander A. Reinert,

Qualified Immunity’s Flawed Foundation, 111 Calif.

L. Rev. 201, 234-241 (2023). The language is “unsubtle

and categorical.” Rogers v. Jarrett, 63 F.4th 971, 97980 (5th Cir. 2023) (Willett, J., concurring). The

reference to “custom or usage” expressly displaces

common-law defenses, such as qualified immunity.

Reinert, supra, at 235 & n.230; W. Union Tel. Co. v.

Call Pub. Co., 181 U.S. 92, 102 (1901) (“common

law…derive[s]…from usages and customs”). That

“notwithstanding” clause was inexplicably omitted

from the first compilation of federal law in 1874.

Reinert, supra, at 207, 237. The Reviser of Federal

Statutes made some sort of unauthorized alteration to

Congress’s language, and the error has simply been

carried forward. Id. But the actual statute Congress

passed expressly excludes qualified immunity.

b. Historical backdrop: Despite the text’s clear

import that no qualified immunity should shield

public officials, this Court chose to import that

doctrine (purportedly from the common law),

reasoning that “[t]he legislative record gives no clear

indication that Congress meant to abolish wholesale

all common-law immunities.” Pierson v. Ray, 386 U.S.

547, 554-55 (1967). As just described, the text of the

statute

gives

that

“clear

indication”—the

“notwithstanding” clause makes clear that the

common law was not supposed to constrain liability

under Section 1983. But even on its own terms, the

“no clear indication Congress meant to abolish”

reasoning is at least triply flawed.

To start, the “common-law immunit[y]” on which

qualified immunity was ostensibly modeled bears no

resemblance to the modern-day doctrine. Qualified

14

immunity at common law was the exception, not the

rule; early public officials generally bore personal

liability for any acts, even acts authorized by the

state. See, e.g., William Baude, Is Qualified Immunity

Unlawful?, 106 Calif. L. Rev. 45, 55-58 (2018)

(hereinafter “Baude I”); James E. Pfander & Jonathan

L. Hunt, Public Wrongs and Private Bills:

Indemnification and Government Accountability in

the Early Republic, 85 N.Y.U. L. Rev. 1862, 1922-24

(2010); David E. Engdahl, Immunity and

Accountability for Positive Governmental Wrongs, 44

U. Colo. L. Rev. 1, 14 (1972).

Where qualified immunity existed, it was an

element of a specific tort, not a freestanding defense

that could apply to any tort. Baude I, supra, at 58-60.

And even where qualified immunity was invoked

under one of those handful of torts, proof was

subjective, not objective. Id. at 60-61; Wearry v. Foster,

33 F.4th 260, 279 (5th Cir. 2022) (Ho, J., concurring

dubitante). Qualified immunity was a good faith

defense. By contrast, today’s “clearly established law”

standard is objective—it turns on what’s in the pages

of the U.S. Reports, not what on what an officer

believed. Id.

Second, the idea that common-law immunities

should be imported into Section 1983 rests on a shaky

foundation. The so-called “Derogation Canon”—the

idea that statutes should not be read in “derogation”

of the common law—has a checkered history. Reinert,

supra, at 234-41. It is unlikely Reconstruction-era

legislators would have operated against that

backdrop. Id. The canon is “a relic of the courts’

historical hostility to the emergence of statutory law”

and should be narrowly construed. Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of

15

Legal Texts 318 (2012). And “since the Founding era,

the Supreme Court had only used the Derogation

Canon (criticized by mid-nineteenth courts and

treatises for arrogating power to judges) to protect

preexisting common law rights, never to import

common law defenses into new remedial statutes.”

Rogers v. Jarrett, 63 F.4th 971, 980 n.8 (5th Cir. 2023)

(Willett, J., concurring) (emphasis original).

Finally, the “legislative record” makes crystal

clear that Congress did seek to “abolish…common-law

immunities.” See Pierson, 386 U.S. at 554-55. The

“very purpose” of Section 1983 “was to interpose the

federal courts between the States and the people, as

guardians of the people’s federal rights.” Mitchum v.

Foster, 407 U.S. 225, 242 (1972). By offering a

“uniquely federal remedy against incursions under

the claimed authority of state law upon rights secured

by the Constitution,” Congress was turning its back

on the then-prevailing law. Id. at 239. Indeed, for the

first century after Section 1983’s passage, no one so

much as suggested that the law might provide for

common-law immunities. See Myers v. Anderson, 238

U.S. 368, 378-79 (1915).

c. Policy justifications: Without the text of the

statute or its common-law backdrop, the sole basis for

today’s qualified-immunity doctrine is a set of

“freewheeling policy choices” of the sort this Court has

generally “disclaimed the power to make.” Ziglar v.

Abbasi, 582 U.S. 120, 159-60 (2017) (Thomas, J.,

concurring). Even assuming those policy preferences

could be an adequate basis to uphold an atextual,

ahistorical doctrine, the policy balance tips away from

qualified immunity.

This Court’s primary policy rationales for

developing the clearly established law test were to

16

“shield [officials] from undue interference with their

duties and from potentially disabling threats of

liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806

(1982). Neither holds water. Empirical evidence

makes clear that the availability of qualified

immunity actually adds to the time and expense of

proceedings, for defendants. See Joanna C. Schwartz,

The Case Against Qualified Immunity, 93 Notre Dame

L. Rev. 1797, 1824 (2018). And near-universal

indemnification of public officials means that

“potentially disabling threats of liability” are few and

far between. See Joanna C. Schwartz, Police

Indemnification, 89 N.Y.U. L. Rev. 885, 892-93 (2014).

On the flip side of the ledger, the clearly

established law analysis has proven totally

unworkable. It’s produced a “mare’s nest of complexity

and confusion,” forcing this Court to time and again

summarily reverse lower courts who both grant and

deny qualified immunity. John C. Jeffries, Jr., What's

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

852 (2010); see, e.g., City of Tahlequah, Oklahoma v.

Bond, 595 U.S. 9 (2021) (per curiam); Rivas-Villegas

v. Cortesluna, 595 U.S. 1 (2021) (per curiam); Taylor

v. Riojas, 592 U.S. 7 (2020) (per curiam); City of

Escondido v. Emmons, 139 S. Ct. 500 (2019) (per

curiam); Kisela v. Hughes, 138 S. Ct. 1148, 1155

(2018) (per curiam); White v. Pauly, 580 U.S. 73, 79

(2017) (“In the last five years, this Court has issued a

number of opinions reversing federal courts in

qualified immunity cases.”). And “courts of appeals

are divided—intractably—over precisely what degree

of factual similarity must exist” for the clearly

established law inquiry. Zadeh v. Robinson, 928 F.3d

457, 498 (5th Cir. 2019) (Willett, J., concurring

dubitante).

17

Perhaps most importantly, “qualified immunity

smacks of unqualified impunity, letting public

officials duck consequences for bad behavior.” Id. And

that puts the modern qualified immunity doctrine

entirely at odds with the text and context of Section

1983, which was intended to end such “unqualified

impunity.”

2. Even if the qualified immunity doctrine needn’t

be jettisoned altogether, it should at least be returned

to its common-law roots. As Justice Thomas has

explained, “[i]n developing immunity doctrine,” this

Court “started off by applying common-law rules.”

Ziglar, 582 U.S. at 158 (Thomas, J., concurring). For

instance, in Pierson v. Ray, 386 U.S. 547 (1967), this

Court granted qualified immunity to police officers in

a case involving an arrest pursuant to an

unconstitutional statute because “the defense of good

faith” was “available against the analogous torts of

false arrest and imprisonment at common law.”

Ziglar, 582 U.S. at 158 (Thomas, J., concurring)

(discussing Pierson). But “[i]n further elaborating the

doctrine of qualified immunity for executive officials,”

this Court has “diverged from” that “historical

inquiry.” Id. “Instead of asking whether the common

law in 1871 would have accorded immunity to an

officer for a tort analogous to the plaintiff's claim

under § 1983, we instead grant immunity to any

officer.” Id. at 159.

a. This case marks a perfect opportunity to

“attempt[] to locate” the qualified immunity standard

in the common law by considering whether the specific

officer or claim would have warranted qualified

immunity. See id. This Court extended qualified

immunity to correctional officials in an opinion that,

as Justice Scalia later objected, “did not trouble itself

18

with history.” Richardson v. McKnight, 521 U.S. 399,

415 (1997) (Scalia, J., dissenting) (discussing

Procunier v. Navarette, 434 U.S. 555 (1978)). That

opinion reasoned, essentially, that all public officials

must be entitled at least to qualified immunity by

virtue of their public employ. Procunier, 434 U.S. at

562. But at common law, there was no “one-size-fitsall doctrine” of immunity that applied in a blanket

way to all public officials, across “a wide range of

responsibilities and functions.” Hoggard v. Rhodes,

141 S. Ct. 2421, 2421-22 (2021) (Thomas, J.,

respecting denial of certiorari). Instead, courts

analyzed the specific office and the “nature of the

duty” a defendant performed to decide whether

immunity from suit was appropriate. Thomas M.

Cooley, A Treatise on the Law of Torts or the Wrongs

Which Arise Independent of Contract 381 (1879).

b. Were this Court to ask “whether officers in

[defendants’] positions would have been accorded

immunity at common law in 1871 from claims

analogous to” those at issue here, as Justice Thomas

has urged, Ziglar, 582 U.S. at 160 (Thomas, J.,

concurring), the answer here would be no.

Start with the officers in defendants’ position.

Suits against jailers—usually sheriffs, at the time of

Section 1983’s passage—were routine, and no mention

was made of qualified immunity. See, e.g.,

Commonwealth v. Stockton, 21 Ky. (5 T.B. Mon.) 192,

193 (1827); Perkins v. Reed, 14 Ala. 536, 537-38

(1848); Knowlton v. Bartlett, 18 Mass. (1 Pick.) 271,

280 (1822); Matthis v. Pollard, 3 Ga. 1, 3 (1847); see

also Cooley, supra, at 392-98.

Nor was qualified immunity available for “claims

analogous to” those at issue here—claims about the

treatment of prisoners. Civil damages were routinely

19

allowed in cases challenging the conditions under

which prisoners were kept. See, e.g., Dabney v.

Taliaferro, 25 Va. (4 Rand.) 256, 261, 263 (1826)

(affirming judgment against sheriff where prisoner

suffered frostbite and disease while incarcerated);

Perrine v. Planchard, 15 La. Ann. 133, 134-35 (1860)

(allowing civil damages against keeper of police jail

who “under color of his authority…cause[d] [plaintiff]

to be forcibly whipped”); Peters v. White, 53 S.W. 726,

726 (Tenn. 1899) (allowing civil damages against

superintendent of county workhouse facility who

whipped an inmate); Asher v. Cabell, 50 F. 818, 827

(5th Cir. 1892) (“That a United States marshal may

take prisoners into his custody, permit them to be

disarmed and shackled, and then negligently and

knowingly deliver them over to incompetent deputies

and the known hostility of mobs, without liability for

his neglect of duty, is a proposition which we think

cannot be sanctioned.”).

Equally telling: At the time of Section 1983’s

passage, there was “an unbroken current of

authorities” holding that “where the law requires

absolutely a ministerial act to be done by a public

officer,” the public officer was not entitled to qualified

immunity. Amy v. Supervisors, 78 U.S. (11 Wall.) 136,

138 (1871). And it was generally understood that a

sheriff acted “[i]n his ministerial capacity” when he

was “keeper of the county jail, and answerable for the

safe-keeping of prisoners.” South v. Maryland ex rel.

Pottle, 59 U.S. (18 How.) 396, 402 (1856). As a result,

the “history of the common law for centuries” reveals

that “[a]ctions against the sheriff for a breach of his

ministerial duties…are to be found in almost every

book of reports.” Id. at 403.

20

c. Returning the question of which defendants are

entitled to qualified immunity to its common-law

basis is well within courts’ competence. After all,

courts continue to conduct that assessment when

considering absolute immunities or when extending

qualified immunity to private, non-state actors. See

Ziglar, 582 U.S. at 158-60 (Thomas, J., concurring)

(collecting cases).

If this Court does not grant certiorari to

altogether reconsider the qualified immunity

doctrine, then, it should at least grant certiorari to

reconsider which defendants can invoke qualified

immunity and return that inquiry to its common-law

roots.

3. At the very least, this Court should grant

certiorari to clarify the “clearly established law”

inquiry. As explained supra, 6-11, the Eleventh

Circuit erred in granting qualified immunity in this

case even under existing doctrine. But that doctrine

was largely developed in the context of police

excessive-force

cases

involving

split-second

decisionmaking, and the justifications it offers for

requiring relatively precise factual correspondence

between the “clearly established law” and the facts of

a particular case do not apply to cases like this one.

The modern qualified immunity doctrine’s focus

on clearly established law that is “particularized to

the facts of the case” derives from its concern that

public officials—chiefly police officers—making splitsecond decisions should only be subjected to liability

if they contravened a specific, unmistakably on-point

rule. See White v. Pauly, 580 U.S. 73, 79 (2017) (per

curiam). When the Eleventh Circuit explained that

the inquiry “must be undertaken in light of the

specific context of the case, not as a broad general

21

proposition,” it was relying on this Court’s cases

dealing with Fourth Amendment claims levied

against police officers making split-second decisions.

Pet. App. 16a-17a (quoting Rivas-Villegas v.

Cortesluna, 595 U.S. 1, 5-6 (2021)).

But applying qualified immunity as a “one-sizefits-all doctrine” is an “odd fit for many cases because

the same test applies to officers who exercise a wide

range of responsibilities and functions.” Hoggard v.

Rhodes, 141 S. Ct. 2421, 2421-22 (2021) (statement

Thomas, J., respecting denial of certiorari). As Justice

Thomas has asked, why should officials “who have

time to make calculated choices about enacting or

enforcing unconstitutional policies, receive the same

protection as a police officer who makes a split-second

decision to use force in a dangerous setting?” Id. This

Court has “never offered a satisfactory explanation to

this question.” Id.

As a result, jurists around the country have

advocated for a standard that would demand less

specificity from “clearly established law” where a

state actor has the luxury of time and space to

deliberate. See, e.g., Villarreal v. City of Laredo, 44 F.

4th 363, 371-72 (5th Cir. 2022) (Ho, J.); Intervarsity

Christian Fellowship/USA v. Univ. of Iowa, 5 F.4th

855, 867 (8th Cir. 2021) (Kobes, J.); Boyd v.

McNamara, 74 F.4th 662, 670-71 (5th Cir. 2023)

(Elrod, J.); Gonzalez v. Trevino, 42 F.4th 487, 507 (5th

Cir. 2022) (Oldham, J., dissenting).

A less demanding standard for overcoming

qualified immunity makes particular sense when the

constitutional right at issue is one related to free

speech. As Judge Ho put the point, in cases like this

one, “[t]here is an additional reason why the fear of

chilling public officials does not justify a ‘clearly

22

established’ requirement unsupported by text”: “[W]e

are concerned about government chilling the citizen—

not the other way around.” Horvath v. City of Leander,

946 F.3d 787, 802 (5th Cir. 2020) (Ho., J., concurring

in part and dissenting in part); see also Olivier v.

Arnold, 19 F.4th 843, 853-54 (5th Cir. 2021) (Ho, J.,

concurring in denial of reh’g en banc); Gonzalez v.

Trevino, 42 F.4th 487, 507 (5th Cir. 2022) (Oldham, J.,

dissenting) (“And it’s not at all clear that we should

apply the same qualified-immunity inquiries for First

Amendment cases, Fourth Amendment cases, splitsecond-decisionmaking cases, and deliberativeconspiracy cases.”).

In this case, the violation of Mr. Benning’s

constitutional rights occurred pursuant to a

longstanding official policy. In adopting and enforcing

the policies, Department of Corrections officials had

access to precisely the sources of information the

Eleventh Circuit later used to determine that the

policy was unconstitutional: They and their counsel

could have read Procunier and its progeny.

In these circumstances, it makes more sense to

hold that officials are entitled to qualified immunity,

if at all, only when the law is clearly unsettled. Thus,

this Court should grant certiorari to clarify that the

level of factual correspondence it has required in cases

involving split-second decisionmaking does not apply

outside that context.

III. This Is The Right Case At The Right Time To

Address The Questions Presented.

1. This case is the ideal vehicle to resolve the

questions presented.

To start, this case is the rare case where we are

certain that qualified immunity made the difference.

23

Because current doctrine allows courts to skip over

the question whether there has been a constitutional

violation at all in favor of finding there was no clearly

established law, very few cases granting qualified

immunity actually reach the constitutional question.

Per one study, in only eight percent of cases do courts

actually find a constitutional violation before granting

qualified immunity. Aaron L. Nielson & Christopher

J. Walker, The New Qualified Immunity, 89 S. Cal. L.

Rev. 1, 35 fig. 2 (2015). This case thus presents a rare

opportunity to isolate the qualified immunity

question, without needing to address the underlying

constitutional violation question as well.

In

addition,

the

relevant

facts

are

straightforward and essentially uncontested. There is

no dispute that defendants prevented three of Mr.

Benning’s emails from reaching their intended

recipients; that Mr. Benning received no notice that

the emails were intercepted; and that he received no

“reasonable opportunity to protest that decision,” let

alone an opportunity “referred to a prison official

other than the person who originally disapproved the

correspondence.” See Pet. App. 3a, 5a, 14a; Procunier,

416 U.S. at 417-19. And no ancillary issues would

obstruct this Court’s consideration of the questions

presented—there are no procedural barriers, and the

sole basis for the decision below was the doctrine of

qualified immunity.

What’s more, Mr. Benning’s clearly established

law argument turns entirely on Procunier v. Martinez,

a Supreme Court case. It’s an open question whether

circuit-court precedent, as opposed to Supreme Court

precedent, can clearly establish the law for qualified

immunity purposes. See, e.g., Rivas-Villegas v.

Cortesluna, 595 U.S. 1, 6 (2021) (per curiam)

24

(assuming, without deciding, that “Circuit precedent

can clearly establish law for purposes of § 1983”). In

this case, the relevant body of law is entirely Supreme

Court precedent; reversing in this case would not

require this Court to resolve that difficult question.

This case also doesn’t implicate the areas where

the arguments for qualified immunity are at their

apex. The few scholarly defenses of qualified

immunity fall into two buckets. Some defend qualified

immunity in Fourth Amendment cases on the basis

that such immunity is embedded in the word

“unreasonable” in that provision. See, e.g., Hon.

Andrew S. Oldham, Official Immunity at the

Founding, 46 Harv. J. L. & Pub. Pol’y 105, 105-06

(2023). Others defend the doctrine as applied to

discretionary acts. See, e.g., Scott A. Keller, Qualified

and Absolute Immunity at Common Law, 73 Stan. L.

Rev. 1337 (2021). Even spotting those critics, but see

generally id., those defenses would have no purchase

in this case, which deals with a Due Process Clause

claim, not a Fourth Amendment claim, and with a

ministerial, rather than discretionary, duty. See

supra, 19.

Nor does this case implicate the policy

justifications this Court has invoked for upholding

qualified immunity in the context of split-second

decisionmaking: Defendants weren’t faced with some

sort of urgent decision that they resolved without

deliberation. Instead, the Due Process Clause

violation in this case was the result of prison policies

promulgated with the luxury of time and consultation.

Finally, this case highlights the ways in which

lower courts’ interpretation of this Court’s clearly

established jurisprudence has gone awry. This isn’t a

case where the governing rule admits of nuance—a

25

question over what constitutes adequate notice or a

“reasonable” opportunity, for instance. Procunier, 416

U.S. at 417-19. Rather, Mr. Benning had no notice and

no opportunity at all to challenge the interception

decision. And requiring a new Supreme Court case to

reiterate an already clear governing rule each time

technology evolves would bring qualified immunity

still closer to absolute immunity—and farther away

from any conceivable common-law ancestor.

2. The time has come for this Court to

reconsider—or at least clarify—its qualifiedimmunity doctrine.

Calls to do so have come from across the

ideological spectrum and from both this Court and

others. See, e.g., Baxter v. Bracey, 140 S. Ct. 1862,

1862 (2020) (Thomas, J., dissenting from denial of

certiorari); Kisela v. Hughes, 138 S. Ct. 1148, 1155

(2018) (Sotomayor, J., joined by Ginsburg, J.,

dissenting); Wyatt v. Cole, 504 U.S. 158, 171-72 (1992)

(Kennedy, J., joined by Scalia, J., dissenting);

McKinney v. City of Middletown, 49 F.4th 730, 756-57

(2022) (Calabresi, J., dissenting); Wearry v. Foster, 33

F.4th 260, 278-79 (5th Cir. 2022) (Ho, J., dubitante);

Jefferson v. Lias, 21 F.4th 74, 87, 93-94 (3d Cir. 2021)

(McKee, J., joined by Restrepo & Fuentes, JJ.,

concurring); Goffin v. Ashcraft, 977 F.3d 687, 694 n.5

(8th Cir. 2020) (Smith, C.J., concurring); Zadeh v.

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

J., concurring dubitante); McCoy v. Alamu, 950 F.3d

226, 234-37 (5th Cir. 2020) (Costa, J., dissenting);

Reich v. City of Elizabethtown, 945 F.3d 968, 989 n.1

(6th Cir. 2019) (Moore, J., dissenting); Morrow v.

Meachum, 917 F.3d 870, 874 n.4 (5th Cir. 2019);

Thompson v. Cope, 900 F.3d 414, 421 n.1 (7th Cir.

26

2018); Rodriguez v. Swartz, 899 F.3d 719, 732 n.40

(9th Cir. 2018).

To the extent this Court has been awaiting a

fuller airing of the flawed origins of the qualifiedimmunity doctrine, that airing has taken place. The

scholarly conversation regarding the history of that

immunity is fully developed. See William Baude, Is

Quasi-Judicial Immunity Qualified Immunity?, 74

Stan. L. Rev. Online 115, 115-17 (2022) (summarizing

existing scholarship); James Pfander, Zones of

Discretion at Common Law, 116 Nw. U. L. Rev. 148,

157-64 (2021); William Baude, Is Qualified Immunity

Unlawful?, 106 Calif. L. Rev. 45, 55-61 (2018); James

E. Pfander & Jonathan L. Hunt, Public Wrongs and

Private Bills: Indemnification and Government

Accountability in the Early Republic, 85 N.Y.U. L.

Rev. 1862, 1863-64 (2010); John F. Preis, Qualified

Immunity and Fault, 93 Notre Dame L. Rev. 1969,

1986 (2018); John C. Jeffries, Jr., The Liability Rule

for Constitutional Torts, 99 Va. L. Rev. 207, 258-64

(2013); Ann Woolhandler, Patterns of Official

Immunity and Accountability, 37 Case W. Rsrv. L.

Rev. 396, 414-33 (1987).

Particularly notable are the recent revelations

that the congressionally enacted text of Section 1983

seems to have explicitly disapproved state-law

limitations on the new cause of action, including statelaw immunities. See Alexander A. Reinert, Qualified

Immunity’s Flawed Foundation, 111 Cal. L. Rev. 201,

234-241 (2023); supra, 26-27. As Judge Willett put the

point: “These are game-changing arguments,

particularly in this text-centric judicial era when

jurists profess unswerving fidelity to the words

Congress chose.” See Rogers v. Jarrett, 63 F. 4th 971,

981 (2023) (Willett, J., concurring).

27

And if this Court was waiting on Congress to step

in and clarify its centuries-old statute, Congress has

made clear it has no intention of doing so. See Zolan

Kanno-Youngs & Luke Broadwater, Many of Biden’s

Goals on Police Reform Are Still Incomplete, N.Y.

Times (Feb. 8, 2023); see also Wearry v. Foster, 33

F.4th 260, 279 (5th Cir. 2022) (“[A]though Congress

can fix what ails us…it shouldn’t have to. … [T]his is

a problem of the courts’ own making.”).

The time has come for this Court to grapple in

some way with its qualified-immunity doctrine, and

this is the case in which to do so.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Easha Anand

RODERICK & SOLANGE

MACARTHUR JUSTICE

CENTER

2443 Fillmore St.,

#380-15875

San Francisco, CA 94115

Jeffrey L. Fisher

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

December 15, 2023

R. Stanton Jones

Counsel of Record

Andrew T. Tutt

Katie Weng

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave, NW

Washington, DC 20001

(202) 942-5000

stanton.jones@arnoldporter.com